State of RI v. Env. Tech.

• Court: Court of Appeals for the First Circuit
• Decided: August 17, 2001
• Docket: 00-1013
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 00-1234, 00-1342, 00-1343, 00-1344, 00-1345, 00-1399, 00-1400, 00- 1401, 00-1402, 00-1403, 00-1404

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

WILLIAM M. DAVIS, et al.,

Defendant, Appellee. ________________________

ASHLAND, INC., et al.,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Lipez, Circuit Judge,

Zobel and Woodlock, District Judges.*

Denis V. Brenan for appellant Ashland, with whom Neal J. McNamara and Morgan, Lewis & Bockius LLP were on the brief; Gerald J. Petros for appellants Acco Bristol and Gar Electroforming Division, with whom Christopher R. Bush, Charles D. Blackman, and Hinckley, Allen & Snyder LLP were on the brief; Gregory L. Benik and Robin L. Main for appellants Morton International, Inc. and Perkin-Elmer Corporation, with whom Karen A. Mignone and McGovern Noel & Benik, Inc. were on the brief. Robert E. Maher, attorney, U.S. Department of Justice, for appellee United States, with whom Joan M. Pepin, Susan M. Akers, Scott D. Bauer, attorneys, U.S. Department of Justice, and Lois J. Schiffer, Assistant Attorney General, were on the brief. R. Bradford Fawley for appellee United Technologies Corporation, with whom Bruce C. Palmer, Robert A. Miller, and Downs Rachlin & Martin were on the brief; Alok Ahuja for appellees BFI Waste Systems of North America, Inc., Michael A. Macera, Robert A. Cece, and Macera Brothers Container Service, Inc., with whom Harold I. Kessler, Friedman & Kessler, William G. Beck, and Lathrop & Gage, L.C., were on the brief; Craig M. Scott for appellee City of New Jersey, with whom Duffy & Sweeney, LTD was on the brief; Mark T. Reynolds for appellee Electroformers, Inc., with whom Boyer, Reynolds & Demarco, LTD was on the brief.

August 17, 2001 * Of the District of Massachusetts, sitting by designation.

Table of Contents

I Background II The Consent Decrees A. Background 1. Consent Decree I 2. Consent Decrees II, III, IV, and Capuano 3. The District Court Approval B. Reviewing the Approval of the Consent Decree 1. Standard of Review 2. Case or Controversy 3. Fairness a. Procedural b. Substantive 4. Reasonableness 5. Statutory Fidelity 6. Unconstitutional Taking III The Declaratory Judgment A. Background on CERCLA Contribution Actions B. The District Court's Declaratory Judgment Ruling C. The Parties' Challenges to the Declaratory Judgment 1. Proof that the Defendants Disposed of Hazardous Waste a. Ashland b. Acco-Bristol c. Black & Decker a/k/a Gar d. Perkin-Elmer 2. Wilbert Jones's Testimony a. Grounds for Exclusion b. Grounds for Disbelieving

-3- 3. Exclusion of Master Chart a. Procedural Posture b. Admissibility of the Chart 4. Proof that Defendants' Waste Caused or Contributed to Cleanup Costs 5. The Entry of a Declaratory Judgment under 42 U.S.C. § 9613 (g)(2) and the Declaratory Judgment Act 6. Morton's Liability a. Claims of Clearly Erroneous Factual Findings b. Claims of Legal Error 7. Successor-in-Interest Liability for Gar 8. UTC's Appeal a. The Judgment in Favor of Macera i. Transporter Liability ii. Arranger Liability b. The Judgment in Favor of the City of New Jersey

c. The Government's $6 Million Enforcement Costs IV Conclusion

Appendix I A Roster of Parties, Principals, and Witnesses Appendix II A Summary of Relevant Monetary Sums

-4- LIPEZ, Circuit Judge. This appeal concerns the third phase

of litigation under the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.,

stemming from the disposal of hundreds of thousands of gallons of

hazardous waste in the late 1970s at a site in Smithfield, Rhode Island

owned by William and Eleanor Davis. This phase concerns an action by

United Technologies Corporation (UTC) under CERCLA's contribution

provision, 42 U.S.C. § 9613(f). In 1995, UTC was found jointly and

severally liable for costs incurred by the United States for the

cleanup of the Davis site. Hoping to relieve itself of some of the

-5- burden of that judgment, UTC sued several dozen other potentially

responsible parties. Most of these parties, as well as UTC, signed

partial consent decrees with the United States in which they agreed to

pay a share of the cleanup costs. Several parties, however, did not

settle, and in 1998 UTC took them to trial. One of the non-settlors,

Ashland, Inc., appeals the district court's entry of the partial

consent decrees. Ashland and four other non-settlors also appeal the

court's entry following trial of a declaratory judgment holding them

liable for disposing of hazardous waste at the Davis site and

allocating to them shares of responsibility for cleanup costs.

Finally, UTC appeals three aspects of the court's ruling.

We affirm, with one exception -- a remand for clarification

of the district court's ruling that UTC may be solely responsible for

$6 million in government enforcement costs.

I. Background

We describe the facts in the light most favorable to the

judgment.1 During the 1970s, William Davis operated a waste disposal

site on ten acres of land in Smithfield, Rhode Island.2 In 1982, the

1To assist the reader of this opinion, there are two appendices attached. The first identifies the roles of the multiple parties to this appeal and the roles of the key principals and witnesses. The second breaks down the liability and settlement amounts referred to in the case. 2Forest borders the Davis site to the east and west, and wetlands and swamp border it to the north and south. When the United States filed suit in 1990, there were about 100 homes within one mile of the

-6- Environmental Protection Agency (EPA) placed the Davis site on its

National Priorities List of hazardous waste sites. After undertaking a

remediation investigation and completing a feasibility study, the EPA

issued a Record of Decision in 1987 describing the cleanup work that it

deemed necessary to mitigate the environmental damage caused by the

hazardous waste disposal. As described by the EPA, the cleanup

required the government to "(1) complete a water line to supply

drinking water to areas where the drinking water wells already are

contaminated and to areas where the contaminated groundwater plume

threatens additional wells; (2) clean contaminated groundwater; and (3)

excavate and clean contaminated soils that continue to contaminate the

groundwater and other environmental media at the Site." The EPA

estimated the cost of this work at about $3 million for the water line,

$13 million for groundwater cleanup, and $14 million for soil

remediation. The government began the work of constructing water lines

to nearby residents, but took no action on the soil or groundwater

cleanups. See United States v. Davis, 11 F. Supp. 2d 183, 192 (D.R.I.

1998) (Davis II).

In 1990, the United States brought an action under 42 U.S.C.

§ 9607 for recovery of past and future response costs at the Davis

site. This provision of CERCLA allows the government to bring a "cost

site, and about 3,800 residents within three miles. The site lies within a 20-mile radius of Providence, Rhode Island.

-7- recovery action" against an owner or operator of a facility at which

hazardous substances were disposed, against a transporter of hazardous

waste, and against a party who arranged for the disposal or transport

of hazardous waste. 42 U.S.C. § 9607(a).3 The government sued William

3 Section 9607(a) states:

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section-- (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for-- (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury,

-8- Davis as an owner-operator; Eleanor Davis as an owner; United

Sanitation, Inc. and A. Capuano Brothers Inc. as transporters and

arrangers; and Ciba-Geigy Corporation, Clairol Inc., Pfizer Inc., The

Providence Journal Company, and UTC as arrangers.4

The district court trifurcated the government's case. Phase

I would determine whether the defendants were liable for response

costs. Phase II would establish the amount of response costs incurred

by the United States. Phase III, which is at issue in these appeals,

would deal with all remaining claims, including claims for

contribution, indemnification, and allocation of responsibility.

In 1991, with the government's case against it pending, UTC

sued some of its co-defendants and 88 other companies under 42 U.S.C.

§ 9613(f), which allows one potentially responsible party (PRP) to

bring an action for contribution against other PRPs.5 Some of these

destruction, or loss resulting from such a release; and (D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

4The court at times referred to the arranger defendants as "generators." United States v. Davis, 882 F. Supp. 1217, 1219 (D.R.I. 1995) (Davis I). 5 In its original form, CERCLA did not expressly provide that a party who was liable for cleanup costs under § 9607 could seek contribution from other PRPs. See Keytronic Corp. v. United States, 511 U.S. 809, 816 (1994). In 1986, Congress expressly created a "contribution action" by amending CERCLA with the Superfund Amendments and Reauthorization Act (SARA). 42 U.S.C. § 9613(f). Section 9613(f)

- 9 - third-party defendants impleaded additional fourth-party defendants,

bringing a total of 138 defendants into the litigation. The United

States did not sue these parties directly.

In a 1994 partial consent decree, Clairol Inc., Ciba-Geigy

Corporation, Pfizer Inc., and The Providence Journal Company agreed

collectively to pay the United States $5.625 million, plus interest

accruing from the date of the settlement, toward the Davis site

cleanup. UTC, however, did not settle, and the government took it to

trial in 1995.6 After a bench trial, the district court found that UTC

had dumped wax and solvent waste at the Davis site and held UTC jointly

and severally liable for all past and future cleanup costs. See Davis

I, 882 F. Supp. at 1225.

While preserving the right to appeal that judgment, UTC

states in relevant part:

(1) Contribution Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.

6 The claims against William and Eleanor Davis, United Sanitation, and A. Capuano Brothers were not settled "but for reasons that are not entirely clear . . . were held in abeyance." Davis II, 11 F. Supp. 2d at 186.

- 10 - stipulated that the response costs incurred by the EPA before September

30, 1987, and the enforcement costs incurred by the Department of

Justice before September 30, 1994 -- the cut-off dates set by the court

for determining the government's costs -- totaled $9.1 million. See

id. UTC and the United States also stipulated that the $5.8 million

($5.625 million plus interest) paid by the four settlors would be

deducted from UTC's liability. These stipulations eliminated the need

for a Phase II trial.

The case next proceeded to the Phase III claims for

contribution, indemnification, and allocation of responsibility against

the third and fourth-party defendants.7 By April 1996, the government

said that it had incurred $19 million in response costs for site study

and partial construction of waterlines and $6 million in litigation

enforcement costs. See id. at 192. It projected future costs of $3

million to complete the water lines, $14 million for soil remediation,

and $13 million for groundwater remediation, bringing the total

response and enforcement costs at the site to $55 million. See id.

In settlement negotiations, the government assigned PRPs to

two groups according to their estimated share of liability, with

settlement amounts based on the strength of the evidentiary case

against each party. Eighty PRPs settled claims by joining one of five

7 In August 1997, Judge Pettine took inactive senior status, and the case was transferred to Judge Torres, who then presided over Phase III of the litigation.

- 11 - partial consent decrees, which also afforded the parties contribution

protection against other PRPs. The first and largest of these consent

decrees involved the United States, UTC, and 49 third and fourth-party

defendants. See id. at 185. The parties agreed to pay $13.5 million

plus $440,000 in oversight costs, of which UTC would pay $2.8 million.

In addition, UTC agreed to perform the soil cleanup for the Davis site.

While the cost of the soil work was estimated at $14 million, UTC

agreed to accept the risk that the work might in fact cost more. UTC's

liability is reduced, however, by the other partial consent decrees,

which provide for payments to UTC of up to $5.364 million. The

district court approved the consent decrees in 1998 and 1999, finding

them fair, both procedurally and substantively, reasonable, and

consistent with CERCLA's objectives.8 Soil remediation efforts began

in July 1997. United States v. Davis, 31 F. Supp. 2d 45, 52 (D.R.I.

1998) (Davis IV). To avoid recontamination, the groundwater cleanup

will begin after the soil work is completed.

Several defendants chose not to participate in any of the

consent decrees. UTC prepared to try its claims for contribution

against the non-settling defendants, including William Davis as owner

and operator of the Davis site; Eleanor Davis as owner;

8The consent decrees are described in greater detail in Part II of this opinion.

- 12 - Chemical Waste Removal (CWR),9 Chemical Control Corporation (CCC),10 and

Macera Brothers Container Service, Inc. (Macera) as transporters;11 and

Acco Bristol Division of Babcock Industries (Acco), Ashland Chemical,

Inc. (Ashland), Gar Electroforming Division (Gar), a/k/a Black &

Decker,12 Perkin-Elmer Corporation (PE), Thiokol, a/k/a/ Morton

International Inc. (Morton), and the City of New Jersey as arrangers.13

Before trial began, the district court said that the trial would

adjudicate UTC's "request to determine the 'equitable contribution

share of liability' for past and future response costs at the Site."

However, when UTC admitted at the start of trial that it had not begun

to incur costs for soil remediation by the close of discovery, the

9 UTC also brought claims against CWR's principal, Emanuel Musillo, and against CWR's corporate predecessor and its principal, Drum Automation and Michael Musillo. The district court found Emanuel Musillo liable with CWR. The court dismissed the claims against Drum Automation and Michael Musillo. UTC did not appeal these rulings. 10UTC also brought claims against CCC's principal, William Carracino. The district court found Carracino liable with CCC. 11 UTC also brought claims against BFI Waste Systems of North America as Macera's corporate successor. 12UTC brought claims against Black & Decker and Electroformers as Gar's possible corporate successors. The district court found Black & Decker liable as Gar's successor and dismissed the claims against Electroformers. Black & Decker appeals that ruling, as we discuss infra. 13UTC brought claims against several other defendants which the district court dismissed. UTC did not appeal these rulings.

- 13 - court narrowed the trial's focus to UTC's right to contribution for

future rather than past costs. It defined future costs as those that

UTC had incurred since the close of discovery and those that it would

incur as it completed the soil remediation.

On September 28, 1998, following a 26-day bench trial, the

court partially granted a motion for judgment made by some of the

defendants based on partial findings pursuant to Federal Rule of Civil

Procedure 52(c). The court ruled that while Macera had transported

hazardous waste to the Davis site, it was not liable as a matter of law

because UTC failed to prove that Macera "selected" Davis as a disposal

site, as § 9607(a)(4) requires to hold a transporter of hazardous waste

liable. See United States v. Davis, 20 F. Supp. 2d 326, 334 ( Davis

III). The court also dismissed UTC's case against the City of New

Jersey, finding that the city was immune from liability under 42 U.S.C.

§ 9607(d)(2). Id. at 335.

On December 15, 1998, the court issued a declaratory judgment

holding appellants Ashland, Acco, Gar, Morton, and PE liable for

arranging for the disposal of their waste at the Davis site.14 With the

exception of Morton, the court allocated to each defendant a share of

responsibility for UTC's future cleanup costs. Davis IV, 31 F. Supp.

14The court also found William Davis liable as an owner-operator, Eleanor Davis liable as an owner, and CWR, CCC, and Capuano liable as transporters. Those parties have not appealed the judgments against them.

- 14 - 2d at 69.

The appeals currently before us result from the district

court's entry of the Phase III consent decrees, its rulings for some of

the defendants pursuant to Rule 52(c), and its declaratory judgment in

favor of UTC. Ashland appeals the district court's approval of the

consent decrees. Ashland, Acco, Gar, Morton, and PE appeal several

aspects of the declaratory judgment. Specifically, four appellants

(Ashland, Acco, Gar, and PE) argue that UTC failed to prove by a

preponderance of the evidence that they arranged for the disposal of

waste at the Davis site. These four appellants also argue that the

district court abused its discretion by admitting and crediting the

testimony of CWR driver Wilbert Jones. Acco and Gar also argue that

the district court abused its discretion by excluding a "Master Chart"

of the parties' claims compiled by UTC's lawyers to prepare the witness

designated by UTC to testify on behalf of the corporation pursuant to

Federal Rule of Evidence 30(b)(6). Three appellants (Ashland, Acco,

and Gar) contend that UTC failed to prove by a preponderance of the

evidence that their respective waste contained hazardous substances and

so caused the incurrence of cleanup costs. These three appellants also

argue that the court's entry of a declaratory judgment was improper.

Appellant Gar, a/k/a Black & Decker, challenges the court's finding of

corporate successor liability. Finally, UTC contests the court's

dismissal of the case against the City of New Jersey and Macera, and

- 15 - its ruling that UTC was solely responsible for $6 million in government

enforcement costs incurred during Phase I and II of the litigation. We

will discuss each of these challenges in turn.

II. The Consent Decrees

A. Background

1. Consent Decree I

Ashland's appeal focuses on Consent Decree I, the primary

settlement between the United States and UTC, which began consent

decree negotiations with the United States as an alternative to

pursuing an appeal of the judgment in Davis I. In discussions with

UTC, the EPA assigned possibly settling PRPs (generators and

transporters of waste) to two groups, "carve-out" and "non-carve-out."

The carve-out entities were deemed primarily responsible for the waste

at the Davis site, and so were compelled to negotiate individual

settlements with the United States. Non-carve-out third parties were

encouraged to negotiate a possible global settlement among themselves,

with the assistance of liaison counsel.

On July 14, 1995, following the Phase I settlement with four

parties, the United States offered to settle with all remaining parties

for about $16 million plus the performance of site soil cleanup using

low-temperature thermal desorption technology. UTC provisionally

agreed to the United States's settlement offer and pursued its

contribution claims. Ultimately, UTC, carve-outs Olin Hunt and

- 16 - American Cyanamid, and about fifty other parties joined this

settlement. The parties paid a total of $13.5 million to the United

States, plus $440,000 in oversight costs. Of that amount, Olin Hunt

and American Cyanamid paid $2.75 million each (with some portion going

to resolution of state claims), non-carve-out parties paid a total of

$7.2 million, and UTC paid the remaining balance, about $2.8 million.15

Furthermore, UTC took responsibility for the entire expense

of site soil remediation, an estimated cost of about $14 million.

Under the settlement, UTC and the United States each receive half of

future contribution recoveries, with UTC's recovery capped at $5.364

million after deducting 15 percent of contribution recoveries for

attorneys' fees incurred in contribution litigation after March 1996.

Finally, the settling parties received complete contribution protection

from claims by other PRPs. Separate recoveries by the United States

would not be subject to contribution sharing.

While the predicted cost of cleaning up the Davis site has

varied over the years, the most recent estimate, from 1997, took into

account new remediation technology and set the total at $55 million.

This amount guided the United States in determining the settlement

amounts. In addition, the allocations to Clairol and the other parties

15The allocation among the non-carve-outs was initially confidential, though the payment amounts have now been disclosed.

- 17 - in the earlier Phase I, $5.625 million settlement provided a

"benchmark" for the amounts requested from potential settlors in the

later consent decrees. Davis II, 11 F. Supp. 2d at 191.

2. Consent Decrees II, III, IV and Capuano

The remaining consent decrees included 27 additional parties

and involved UTC's settlement of claims for contribution from other

PRPs, resulting in some additional payments to the United States

pursuant to UTC's agreement with the United States in Consent Decree I.

In Consent Decree II, 23 parties paid a total of $4.135 million, with

individual party liability detailed in briefs to the district court.

Consent Decree III involved National Starch, which paid $5 million.

Consent Decree IV involved a $150,000 payment by Swan Engraving and a

$50,000 payment by Power Semiconductors. All parties to these

settlements received complete contribution protection from future

claims. Finally, Capuano Brothers paid $200,000 to the government,

plus a like amount for settlement of cleanup costs at another Superfund

site.

3. The District Court Approval

To assist in its assessment of Consent Decree I, t he district

court held a two-day hearing to determine whether the proposed

settlement was fair, both procedurally and substantively, reasonable,

and consistent with CERCLA's objectives. United States v. Cannons

Eng'g Corp., 899 F.2d 79, 84 (1st Cir. 1990). Procedurally, the court

- 18 - found that "[t]he negotiations were conducted openly and all parties

were given an opportunity to participate." Davis II, 11 F. Supp. 2d at

189. Substantively, the court concluded that the consent decree met

all requirements because the "proposed settlement reflects a rational

method of allocating liability in a manner that reasonably approximates

each party's share of responsibility; the method is applied

evenhandedly with respect to all PRP's and sufficient information is

presented to enable the Court to determine whether that has been done."

Id. at 192.

In assessing the reasonableness of the consent decree, the

court's chief concern was "whether the public can be adequately

compensated by a settlement in which the United States receives only a

portion of the remediation cost from a party previously adjudged liable

for the entire cost," id. at 186, a reference to the release of UTC

from the Phase I judgment. According to the district court, under the

terms of the settlement the United States would receive $27.5 million,

plus the $5.8 million from the original defendants, leaving a $21.7

million shortfall in compensation for the projected cost of the

cleanup. This issue distinguished the Davis case from others in which

the United States settled before judgment. "In those cases,

compromising for a fraction of the response costs with a PRP that is

potentially liable for the entire cost usually is justifiable on the

ground that litigation might result in the United States recovering no

- 19 - response costs at all." Id. at 192.

The court thus framed the reasonableness question in terms

of "whether the amount by which the judgment has been discounted

reasonably reflects the risk of reversal [on appeal]," and called this

"a very close question." Id. at 193. The court acknowledged some

"remaining, albeit diminished, litigation risk associated with the

claim against UTC." Id. The court also suggested that concern about

releasing UTC from the judgment was mitigated by the fact that the

United States could still sue the non-settlors for the $21.7 million

shortfall, but recognized that this course of action seemed to involve

"much greater litigation risk" than simply pursuing the judgment

against UTC. Id.

In resolving the issue, the court considered factors beyond

an assessment of litigation risks. The court noted that "the financial

obligations imposed on UTC are considerably greater than the

obligations assumed by the other 'carve-out' settlors," reinforcing

UTC's substantial responsibility. Id. It also noted that "given the

deference accorded to the EPA's judgment in such matters, it cannot be

said that the proposed discount is unreasonable." Id. The court said

that the consent decree avoided an unduly harsh result for UTC, whereas

the judgment would have "saddled [it], unfairly, with liability for

remediation costs that far exceed its fair share." Id. Acknowledging

that UTC could pursue contribution actions against other PRPs, the

- 20 - court still concluded that the consent decree was reasonable given the

great "difficulty of establishing entitlement to contribution." Id.

Finally, the court found the consent decree to be consistent with the

statute because it advanced "the overriding goal of promptly and

efficiently cleaning up hazardous waste sites." Id.

Pursuant to its thorough opinion, the district court approved

Consent Decree I on February 13, 1998, and entered final judgment on

December 9, 1999. Consent Decrees II, III, IV and the Capuano decree

were each summarily approved subsequently. Final judgment was also

entered on these decrees in December 1999. On appeal, Ashland, a non-

settling PRP, lodges numerous objections to the approval of the consent

decrees, including a jurisdictional objection. We assess these

arguments.

B. Reviewing the Approval of the Consent Decrees

1. Standard of Review

Considerable deference is involved in the review of CERCLA

consent decrees. Indeed, appellate review is "encased in a double

layer of swaddling." Cannons, 899 F.2d at 84. First, there is

deference to the administrative agency's construction of the

settlement. "That so many affected parties, themselves knowledgeable

and represented by experienced lawyers, have hammered out an agreement

at arm's length and advocate its embodiment in a judicial decree,

itself deserves weight in the ensuing balance." Id. at 84. Second, the

- 21 - appellate court can only review a district court's approval of a

consent decree for abuse of discretion, characterized by "a serious

error of law" or a "meaningful lapse of judgment." United States v.

Charles George Trucking, 34 F.3d 1081, 1085 (1st Cir. 1994); United

States v. DiBiase, 45 F.3d 541, 544 (1st Cir. 1995). "Because an

appellate court ordinarily cannot rival a district court's mastery of

a factually complex case -- a mastery often, as in this instance,

acquired through painstaking involvement over many years -- the

district court's views must also be accorded considerable respect."

Charles George, 34 F.3d at 1085. This double deference "places a heavy

burden on those who purpose to upset a trial judge's approval of a

consent decree." Cannons, 899 F.2d at 84.

2. Case or Controversy

As a preliminary matter, Ashland contends that the district

court had no jurisdiction under Article III to approve the consent

decrees because, "with the exception of UTC, the U.S. never sued any of

the third or fourth-party defendants settling in Consent Decrees I-IV.

Moreover, approximately 34 entities who were signatories to Consent

Decree I were never sued by any party to this action." In Ashland's

view, this circumstance means that there was no "case or controversy"

to be resolved by the district court. We conclude that, even if there

were parties not sued by the United States involved in the consent

decrees, their inclusion would be permissible because the Supreme Court

- 22 - has allowed unpleaded claims to be part of consent decrees, and thus,

there is no "case or controversy" concern.

In Local 93, Int'l Ass'n of Firefighters v. City of

Cleveland, 478 U.S. 501, 525 (1986), the Supreme Court ruled that a

consent decree must (1) spring from and serve to resolve a dispute

within the court's subject matter jurisdiction; (2) come within the

general scope of the case based on the pleadings; and (3) further the

objectives of the law on which the claim is based. Although

Firefighters involved a challenge to the scope of a consent decree

rather than an Article III case or controversy argument, satisfying the

criteria set forth in that case resolves any case or controversy claim.

The district court found that the criteria were satisfied by Consent

Decree I:

The United States's claims against the settling third and fourth-party defendants spring from and fall well within the scope of the controversy described in the pleading; . . . Furthermore, the United States and all of the settling PRP's are parties to the action16 and the consent decree resolves the dispute among them. Finally, . . . approval of the consent decree also furthers the objectives of CERCLA by facilitating the prompt and efficient remediation of a major hazardous waste site.

Davis II, 11 F.Supp. 2d at 188.

16We understand the court's reference to "parties to the action" to include those initially sued by the United States, defendants to the UTC contribution claims, as well as the numerous parties named in suits among the third and fourth-party defendants.

- 23 - We have applied the Firefighters test in the CERCLA context

before. In Charles George, we found that claims not expressly set out

in the pleadings may be addressed in a consent decree as long as they

fall within the pleadings' general scope. 34 F.3d at 1089-91.

Likewise, unpleaded claims that could not be brought against third-

party defendants pursuant to a case management order (CMO) were

appropriately included in the consent decree. Id. at 1091. Here, the

purported failure to file complaints contemporaneous with the consent

decrees does not defeat the legitimacy of the settlements. As we wrote

in Charles George:

[T]he Supreme Court has made clear that there is no per se prohibition against consent decrees that exceed the possible bounds of a decision issued directly by the trial court. Because a consent decree is animated not only by the parties' legal claims but also by the parties' consent, a court is 'not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after trial.'

Id. at 1091 (quoting Firefighters, 478 U.S. at 525).

The district court allowed the inclusion of parties not sued

by the United States in the consent decrees, finding that UTC's

contribution claims "are based on the same body of evidence and raise

the same issues as the United States' claims against the settling third

and fourth-party defendants." Davis II, 11 F. Supp. 2d at 188. Like

a settlement that is greater in scope than the originally pled claims,

the inclusion of various third and fourth-party defendants, as well as

- 24 - interested non-parties, is permissible pursuant to Firefighters.17

Indeed, any conclusion to the contrary would disrupt the goals of

CERCLA, which seeks early settlement with as many PRPs as possible to

further expeditious remediation.

3. Fairness

a. Procedural

Assessing fairness in the CERCLA settlement context has both

procedural and substantive dimensions. "To measure procedural

fairness, a court should ordinarily look to the negotiation process and

attempt to gauge its candor, openness, and bargaining balance."

Cannons, 899 F.2d at 86. The EPA has ample authority to structure its

settlement negotiations, including "broad discretion to structure

classes of PRPs." Id. A finding of procedural fairness may also be an

acceptable proxy for substantive fairness, when other circumstantial

indicia of fairness are present. See Charles George, 34 F.3d at 1089.

Ashland asserts that the consent decrees failed to meet the

criteria of procedural fairness because the establishment of party

categories inhibited the openness of negotiations; discovery relating

to the settlement terms was inadequate; and the United States abdicated

to UTC its responsibility to conduct the negotiations under CERCLA.

17 Ashland further contests the inclusion of "successors in interest" and "corporate affiliates" within the scope of Consent Decree I. Given the potential liability of such entities, this inclusion is appropriate.

- 25 - Ashland also argues that information fundamental to evaluation of the

consent decrees was not disclosed by the United States, including: (1)

the United States' total past and estimated future costs of

remediation; (2) the strength of the United States' case against each

settlor; (3) the type, volume and toxicity of the waste for which each

settlor was responsible and a correlation to site cleanup costs; (4)

the formula by which the settlement amounts were calculated, and

evidentiary support for the formula.

These arguments are unpersuasive. All identified players in

the hazardous waste site were notified of early opportunities for

settlement with the United States, and later, with UTC. There is no

reason to doubt that the consent decrees were the result of "arm's

length, good faith bargaining" between sophisticated parties. United

States v. Comunidades Unidas Contra la Contaminacion, 204 F.3d 275, 281

(1st Cir. 2000). PRPs were offered the assistance of a magistrate

judge and an alternative dispute resolution administrator in the

negotiation of their settlements. In addition, the early

classification of carve-outs and non-carve-outs was an attempt at

settlement management within the discretion of the United States.

The district court also found no breach of the requirement

for public disclosure, concluding that the parties offered "facts

sufficient to enable one to determine whether" the terms of the

agreement were fair. Davis II, 11 F. Supp. 2d at 194. The proposed

- 26 - decrees lodged with the court "set[] forth, at length, all of the terms

of the settlement." Id. They were published in compliance with 42

U.S.C. § 9622(d)(2)(A)-(B), making the decrees available to non-parties

and the public for comment in a timely manner. Furthermore, the

district court noted that "there is no indication that the United

States misrepresented or withheld any material facts." Id. at 189.

There is no error in any of these findings. Ashland's argument that

the identified information had to be available is not supported by the

law, which makes significant allowances for gaps in information, given

the sometimes impossible task of deriving this data.

b. Substantive

Substantive fairness involves concepts of corrective justice

and accountability, concentrating on "the proposed allocation of

responsibility as between settling and non-settling PRPs." Charles

George, 34 F.3d at 1088. "[T]he proper way to gauge the adequacy of

settlement amounts to be paid by settling PRPs is to compare the

proportion of total projected costs to be paid by the settlors with the

proportion of liability attributable to them." Id. at 1087. Ashland

asserts that the formula used by the government to assess liability

among the carve-out and non-carve-out parties, settling or not, was

arbitrary and capricious, unrelated to comparative fault and

inconsistently applied across consent decrees.

The law on this issue is clear. The EPA formula should be

- 27 - upheld "so long as the agency supplies some plausible explanation for

it, welding some reasonable linkage between factors it includes in its

formula or scheme and the proportionate shares of the settling PRPs."

Cannons, 899 F.2d at 87. In assessing the formula applied, the quality

of the information available to the government and settling parties

informs the fairness analysis because data on the total extent of harm

and the respective liabilities of various PRPs are often unavailable.

See id. at 88. Such difficulties will not preclude a court from

entering a consent decree. See Charles George, 34 F.3d at 1089. The

calculation of liability and the allocation of that responsibility is

specially within the scope of the Agency's and parties' expertise. "As

long as the data the EPA uses to apportion liability for purposes of a

consent decree falls along the broad spectrum of plausible

approximations, judicial intrusion is unwarranted . . . . Having

selected a reasonable method of weighing comparative fault, the agency

need not show that it is the best, or even the fairest, of all

conceivable methods." Cannons, 899 F.2d at 88.

In this case, the EPA assessed liability based on "its

estimate of the volume of waste attributable to each PRP." Davis II,

11 F. Supp. at 190. The EPA also considered the strength of the cases

against the respective PRPs, taking "into account that there was direct

and credible evidence linking some of the PRP's to the Site and that

the evidence with respect to other PRP's was almost entirely

- 28 - circumstantial and varied in probative value." Id. The district court

found the interplay of these factors in this case to be "rational" and

"especially appropriate in cases like this where the wastes have been

intermingled and it is virtually impossible to attribute discrete

portions of the cleanup costs to particular wastes." Id. The court

further observed that, in accord with the precedent, "assessing

relative responsibility is an imperfect process because it requires

subjective judgments based on evidence that is not completely developed

and may be disputed. However, . . . the evidence need not be

exhaustive or conclusive in order to determine whether a proposed

settlement is substantively fair." Id. at 191.

We agree with the district court's analysis supporting the

substantive fairness of the liability allocation among carve-outs and

non-carve-outs, settlors and non-settlors alike. In arguments before

the district court, the government attorney and others noted that the

settlements involved "roughly half of the parties paying somewhat more

than half of the costs." In its decision, the district court stressed

the parity of the amounts paid by settling PRPs and non-settling PRPs,

both carve-outs and non-carve-outs. Davis II, 11 F. Supp. 2d at 191.

The court wrote:

Comparing the amounts paid by the settling 'carve-out' PRP's to the Clairol benchmark and to the demands made upon the non-settling 'carve- out' PRP's supports the conclusion that the proposed settlement apportions liability in a manner that roughly approximates a rational

- 29 - estimate of the relative responsibilities borne by both the settling and non-settling PRP's.

Id. at 190.

The court proceeded to compare the settlement offered to

American Cyanamid and Olin Hunt with the settlements paid in the

Clairol agreement and demands made of eight non-settling carve-out

PRPs, all of which fell between $2.75 million and $3 million. See id.

at 191. Interestingly, the court also noted that the government

demanded $8.25 million from the State of New Jersey, BFI and Ashland,

averaging to a total of $2.75 million each, though Ashland "was

expected to pay a larger share because EPA determined that Ashland

produced a high volume of hazardous waste and that a significant amount

of evidence existed linking Ashland to the Davis site." Id. at 191

n.7. Finally, the court noted "an even closer correlation between the

amounts paid by settling 'non-carve-out' PRP's and the amounts demanded

from non-settling 'non-carve-out' PRP's" -- $13.5 million demanded of

eighty-five non-carve-out PRPs, averaging $158,800 apiece, compared

with the $7.2 million proposed settlement with forty-seven non-carve-

out PRPs, amounting to $152,200 each. Id. at 191. The court also

pointed out that the allocation assessed to UTC was a considerably

greater financial obligation than that imposed on any non-settling

carve-out party. See id.

In addition, the ultimate measure of accountability "is the

extent of the overall recovery, not the amount of money paid by any

- 30 - individual defendant." Charles George, 34 F.3d at 1086. Accordingly,

a consent decree need not specify each generator's or transporter's

degree of culpability. It is appropriate for classes of PRPs to be

assigned aggregate settlement amounts to allocate among themselves.

See id. In Charles George we said: "Realistically, a government

agency, in the midst of negotiations, is in no position to put so fine

a point on accountability. We, therefore, endorse, in general, EPA's

practice of negotiating with a representative group of PRPs and then

permitting the group members to divide the burden of the settlement

among themselves." Id.

Ashland's challenge to the group allocations in these

settlements is meritless. Our prior observation remains pertinent:

"[A]s is true of consent decrees generally, they are built upon

compromise and compromise in turn is a product of judgment."

Comunidades Unidas, 204 F.3d at 282. We agree with the district

court's conclusion that a "rational" method of allocating liability was

"evenhandedly" applied. Davis II, 11 F. Supp. 2d at 192.

4. Reasonableness

In considering the reasonableness of Consent Decree I, the

district court addressed the novel issue of whether the public can be

adequately compensated by a settlement in which the United States

receives only a portion of the remediation cost from a party previously

adjudged liable for the entire cost. See Davis II, 11 F. Supp. 2d at

- 31 - 186. Arguing that adequate compensation is not possible under such

circumstances, Ashland asserts that the consent decrees do not comport

with the objectives of CERCLA.

The assessment of reasonableness focuses on several elements:

the effectiveness of the decree as a vehicle for cleaning the

environment; providing satisfactory public compensation for actual (and

anticipated) costs of remediation; and accounting for the relative

strength of the parties' litigating positions and foreseeable risks of

loss. See Cannons, 899 F.2d at 89-90. In making these assessments, a

court must once again allow for the agency's lack of "mathematical

precision," as long as the figures derive from a plausible

interpretation of the record. Id. at 90. Furthermore, effective

remediation demands a more pragmatic meaning than whether the

settlement meets a scientific ideal or approximates the projected costs

of cleanup. See Charles George, 34 F.3d at 1085; United States v.

Charter Int'l Oil Co., 83 F.3d 510, 521 (1st Cir. 1996) ("A district

court's reasonableness inquiry, like that of fairness, is a pragmatic

one."); Comunidades Unidas, 204 F.3d at 281.

Although the UTC allocation in Consent Decree I does not pay

for the entire expense of the cleanup, UTC assumed the full cost of

soil remediation (mitigated by contribution from later settlors), even

if that estimated cost ultimately exceeds projections. Furthermore,

the consent decrees staved off litigation risks associated with the

- 32 - settling parties, including a possible appeal by UTC of the judgment

against it. See Davis II, 11 F. Supp. 2d at 192. In addition, as the

district court observed, "fundamental fairness prohibits the imposition

of liability that is totally disproportionate to UTC's share of

responsibility." Id. at 193.

Discounts on maximum potential liability as an incentive to

settle are considered fair and reasonable under Congress's statutory

scheme. See DiBiase, 45 F.3d at 546; see also Interim CERCLA

Settlement Policy, Environmental Protection Agency, 50 F.R. 5034

(February 5, 1985). A PRP's assumption of open-ended risks, such as

the full cost of a component of the cleanup, may merit a discount. See

Cannons, 899 F.2d at 88. Also, party-specific discounts may reflect

the chances of the United States's success in litigation against a

given PRP. See id. It is appropriate "to factor into the equation any

reasonable discounts for litigation risks, time savings, and the like

that may be justified." Charles George, 34 F.3d at 1087.

The United States received a significant sum from the initial

settlors, Consent Decree I settlors and contributions from settlors in

Consent Decrees II-IV and Capuano. Indeed, the United States fulfilled

60 percent of its $55 million claim through the consent decrees,

including the earlier $5.625 million settlement with Clairol and other

parties. The United States also retains the option of pursuing future

cost-recovery actions against other non-settling PRPs. In light of the

- 33 - role of the consent decrees in expediting the remediation work, the

substantial cost recovery by the United States, and the strength of the

cases against the various PRPs, we agree with the district court that

the consent decrees met the test of reasonableness.

5. Statutory Fidelity

The purposes of CERCLA include expeditious remediation at

waste sites, adequate compensation to the public fisc and the

imposition of accountability. "[I]t would disserve a principal end of

the statute -- achievement of prompt settlement and a concomitant head

start on response activities -- to leave matters in limbo until more

precise information [is] amassed." Cannons, 899 F.2d at 88; see also

DiBiase, 45 F.3d at 545 ("[S]ettlements reduce excessive litigation

expenses and transaction costs, thereby preserving scarce resources for

CERCLA's real goal: the expeditious cleanup of hazardous waste

sites."). Additionally, there is a "strong public policy in favor of

settlements, particularly in very complex and technical regulatory

contexts." Comunidades Unidas, 204 F.3d at 280. Importantly, even

though it was not obligated to do so, UTC began the process of remedial

soil treatment in July 1997, well before the approval of Consent Decree

I. This task included: excavation, removal and proper disposal of more

than 1,000 drums of waste and 10,000 small jars, containers and vials;

removal of more than 750,000 tires; and sampling and chemical analysis

of over 65,000 cubic yards of soil. This head-start on repair of a

- 34 - hazardous waste site is the sort of good-faith cooperation that CERCLA

seeks to encourage via settlement. To find this progress inadequate

would frustrate the statute's purpose.

In asserting that the consent decrees are not faithful to the

purposes of CERCLA, Ashland focuses on the contribution protection

afforded the parties to the consent decrees, fearing that a handful of

non-settlors (i.e., Ashland and the other appellants), foreclosed from

contribution actions because they did not join the consent decrees,

could be held liable for a disproportionate share of the $21.7 million

in as-yet unrecovered costs if the United States pursued them in cost

recovery actions. CERCLA provides that "[a] person who has resolved

its liability to the United States or a State in an administrative or

judicially approved settlement shall not be liable for claims for

contribution regarding matters addressed in the settlement." 42 U.S.C.

§ 9613(f)(2); see also 42 U.S.C § 9622(f)(2). Despite this "matters

addressed in the settlement" language of the statute, Ashland says that

the "matters addressed" language of the decrees here is overreaching

because they include, quoting the consent decrees, "response costs

incurred and to be incurred by any person or entity other than the

United States for response actions related to the site or identified in

the remedy." Ashland complains that, "[a]s written, the 'matters

addressed' provision of three partial consent decrees have been

expanded to include all costs, whether the costs are incurred by the

- 35 - U.S. or by a private party. This is clearly impermissible under

CERCLA." Facing exposure to performance of the groundwater remedy,

which may represent 40 percent of the total site costs, Ashland worries

that parties like itself will bear disproportionate liability because

they are unfairly barred from seeking contribution from earlier-

settling parties.

The practice of encouraging early settlements by providing

broad contribution protection is provided by statute. 42 U.S.C. §

9613(f)(2); see also Charter, 83 F.3d at 522; UTC v. Browning-Ferris

Ind., Inc., 33 F.3d 96, 103 (1st Cir. 1994) ("This paradigm is not a

scrivener's accident."). CERCLA also seeks to induce settlements at

higher amounts by allowing settlors to seek contribution from those who

have not yet settled. See 42 U.S.C. § 9613(f)(3)(B); Charter, 83 F.3d

at 522. Still, EPA policy encourages the court reviewing a consent

decree incorporating contribution protection to seek "a demonstration

that this result is fair to potential contribution plaintiffs whose

rights would be extinguished." DOJ/EPA Memorandum, Defining "Matters

Addressed" in CERCLA Settlements, March 14, 1997. In a case such as

this, where UTC assumes an open-ended cost for soil remediation, and

takes the lead in coordinating settlements and beginning the cleanup

effort, the benefit of contribution protection is appropriate. Also,

as UTC points out in its brief, Ashland's preoccupation with the

potential of disproportionate liability "ignores the fact that UTC,

- 36 - which was allocated responsibility for 1.54 percent of the liability by

the trial court, will perform the source control remedy, which will

amount to over one-fourth of the total costs of remediating the site."

UTC draws from this fact an appropriate conclusion: "This comparison

shows that CERCLA can impose harsh results on PRPs; it also shows that

these contribution defendants [Ashland and other non-settlors] may bear

a burden roughly comparable to that of UTC."

The point we made in an earlier decision remains apt: "As

to the extinguished contribution claims of non-settlors or later round

settlors, protection against those claims was a reasonable benefit [the

settlor] acquired in exchange for settling before those others."

Charter, 83 F.3d at 522. The result of non-settlors possibly bearing

disproportionate liability for the open-ended cost of remediation is

therefore consistent with the statute's paradigm, which encourages the

finality of early settlement. See Browning-Ferris, 33 F.3d at 103.

6. Unconstitutional Taking

To the extent that CERCLA authorizes the contribution

protection to which Ashland objects, Ashland asserts that this

protection could result in an unconstitutional taking of the

protectable property interests of non-settling parties because they

will be prohibited from seeking contribution from earlier-settling

parties. Indeed, Ashland points out, CERCLA recognizes that in a

settlement "limiting any person's right to obtain contribution from any

- 37 - party," the result could be "a taking without just compensation" under

the Fifth Amendment. 42 U.S.C. § 9657.

Ashland's argument in support of this takings claim is so

perfunctorily developed that we deem it unworthy of response. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived."). In support of its

takings argument, set forth in two-and-a-half pages at the end of an

85-page brief, Ashland relies entirely on a brief description of the

recent Supreme Court decision in Eastern Enterprises v. Apfel, 524 U.S.

498 (1998), a case in which a deeply divided Supreme Court struck down

retroactive application of the Coal Industry Retiree Health Benefit Act

of 1992. The takings analysis put forth by the plurality opinion in

that case did not command a majority of the court, a fact which, as the

government notes in its brief, severely limits the precedential value

of that takings analysis. See Hertz v. Woodman, 218 U.S. 205, 213-14

(1910) ("[T]he principles of law involved not having been agreed upon

by a majority of the court sitting prevents the case from becoming an

authority for the determination of other cases, either in this or in

inferior courts.") As Justice Kennedy noted in his concurring opinion

in Eastern Enterprises, where he disavowed the takings analysis of the

plurality: "Cases attempting to decide when a regulation becomes a

taking are among the most litigated and perplexing in current law."

- 38 - 524 U.S. at 541. We will not assay the takings issue on the basis of

the insubstantial argument put forth by Ashland.18

III. The Declaratory Judgment

A. Background on CERCLA Contribution Actions

When an innocent party, usually the government, brings a cost

recovery action under § 9607, CERCLA imposes strict liability for the

costs of cleanup on a party found to be an owner or operator, past

operator, transporter, or arranger. See Acushnet Co. v. Mohasco Corp.,

191 F.3d 69, 74 (1st Cir. 1999).19 A party found liable under § 9607

may in turn bring an action for contribution against other polluters

under § 9613(f). In other words, while CERCLA allows for full recovery

of costs from a party sued successfully under § 9607, it also permits

that party to seek contribution from other parties that have helped

create a hazardous waste problem. See Control Data Corp. v. S.C.S.C.

Corp., 53 F.3d 930, 936 (8th Cir. 1995). The statute thus provides

that a court may, in its discretion, "allocate response costs among

liable parties using such equitable factors as the court determines are

appropriate." 42 U.S.C. § 9613(f). As the Ninth Circuit has said,

"[a] PRP's contribution liability will correspond to that party's

18We note that the Sixth Circuit recently rejected a takings argument addressed to CERCLA and premised on Eastern Enterprises in Franklin County Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 552 (6th Cir. 2001). 19 A few affirmative defenses are available, but they are difficult to satisfy. See Acushnet, 191 F.3d at 74.

- 39 - equitable share of the total liability and will not be joint and

several." Pinal Creek Group v. Newmont Mining Corp., 188 F.3d 1298,

1301 (9th Cir. 1997).

The standard for contribution liability is the same as the

standard for cost recovery liability. See Acushnet, 191 F.3d at 75.

A plaintiff seeking contribution under § 9613(f) must prove that (1)

the defendant falls within one of the four categories of covered

entities (i.e. is a current or past owner or operator, a transporter,

or an arranger); (2) a "release or threatened release" of hazardous

waste involving the defendant's facility occurred; (3) the release or

threatened release caused the incurrence of response costs by the

plaintiff; and (4) the plaintiff's costs were "necessary costs of

response . . . consistent with the national contingency plan." 42

U.S.C. § 9607.20

B. The District Court's Declaratory Judgment Ruling

The district court found that UTC had unquestionably proven

that the Davis site was a hazardous waste facility, that a release of

hazardous waste had occurred, and that this release caused the

incurrence of response costs because of the necessary cleanup. The

20 The National Contingency Plan promulgated by the EPA, 40 C.F.R. pt. 300 (1988), "establish[es] procedures and standards for responding to releases of hazardous substances." Because the district court reserved challenges to UTC's specific expenditures for later proceedings, the compliance of UTC's cleanup plan with the National Contingency Plan is not at issue in this case.

- 40 - court thus focused on the only remaining issue for CERCLA liability:

"[W]hether the defendants are liable for those response costs on the

grounds that they either operated the facility, transported the

hazardous substances to the site, or arranged for the hazardous

substances to be disposed of at the Site." Davis IV, 31 F. Supp. 2d at

61. Since each of the appellants was found to be an arranger, we focus

on that aspect of the court's ruling.

The court began by considering the evidence that CWR, the

Bridgeport, Connecticut waste transport company used by Ashland, Acco,

Gar, and PE, disposed of waste at the Davis site. The court found that

in 1977, "all of CWR's waste was taken, initially, to Sanitary

Landfill," another Rhode Island disposal site, but that sometime after

May 1977, Anthony and Jack Capuano, owners of Sanitary Landfill, began

diverting some of CWR's waste to the Davis site. Id. at 53. Based on

receipts kept by William Davis and offered into evidence by UTC, the

court found that "the Capuanos directed CWR drivers to the Davis Site

on fifteen separate occasions." Id. The Davis receipts show that

these CWR deliveries took place between May 13 and July 7.21

The court said that CWR had two drivers, Wilbert Jones and

Johnny Granfield, who collected 55-gallon drums of waste from

21Davis testified that dumping occurred on his property between 1976 and the first part of 1977. However, he was only able to locate receipts for the period between January 10, 1977 and July 7, 1977. As a result, that is the time period relevant to the district court's findings.

- 41 - customers. Both Jones and Granfield sometimes drove a 40-foot flatbed

truck that carried a full load of 79 drums and was "used to haul drums

to Rhode Island." Id. at 52-53. Based on the testimony of Jones and

of Emanuel and Michael Musillo, the principals of CWR, the court made

findings about CWR's pickup and disposal practices:

If a full load was collected early in the day, the drums, sometimes, would be taken directly to Sanitary Landfill. Usually, however, the truck would return to CWR, and the load of drums would be taken to Sanitary Landfill on the following day. If less than a full load was collected, the drums would be kept at CWR until seventy-nine drums had accumulated. Those drums then would be loaded onto the flatbed and driven to Sanitary Landfill.

Drums were collected with such regularity that they never remained on CWR's premises for more than three days.

Id. at 53.

Following the theory that CWR disposed of waste within three

days of collecting it from a customer, the district court matched the

dates of CWR waste pickups from appellants Ashland, Acco, Gar, and PE

to the dates of waste deliveries to the Davis site. CWR kept bills of

lading that recorded the dates on which it picked up wastes from

customers. Some of the appellants kept parallel invoices. William

Davis's receipts included the dates of waste deliveries. Based on this

evidence, the district court determined when an arranger's waste was

picked up within three days of a delivery to the Davis site. The court

then concluded that it was "reasonable to infer" that this waste was in

- 42 - fact disposed of at the Davis site. Id. at 56. For example, the court

held Ashland liable for a 79-drum load that CWR picked up from Ashland

on June 1, 1977 because a Davis receipt showed that CWR driver Wilbert

Jones delivered 79 drums to Davis on June 2. Id.

The court next turned to allegations that transporter CCC,

the company used by Morton, disposed of waste at the Davis site. The

court found that CCC made 47 trips to the Davis site between May 1977

and the first week of July and that Morton's waste was included in some

of those deliveries. Id. at 55.

Finally, the district court allocated responsibility for

cleanup costs that UTC had incurred or would incur in completing the

soil remediation. The chief factor in the court's determination was

the volume of waste disposed at the Davis site that could be attributed

to each defendant based on the evidence about specific deliveries.

Davis IV, 31 F. Supp. 2d at 64. For example, the court found that CWR

made two 79-drum deliveries containing 8,690 gallons of Ashland's waste

to the Davis site, and so allocated to Ashland a share of

responsibility for cleanup costs based on that volume. Id. at 67.

Based on its calculations of waste volume, the court allocated 1.03

percent of UTC's future cleanup costs to Ashland, .16 percent to Acco,

.03 percent to Gar, and .57 percent to PE. Id. at 69. The court also

allocated 1.54 percent of responsibility to UTC. Id. Because the

court found no evidence of specific deliveries yielding data about the

- 43 - volume of Morton waste disposed, it did not allocate a share of future

cleanup costs to Morton. Id. at 65.

C. The Parties' Challenges to the Declaratory Judgment

1. Proof that the Defendants Disposed of Hazardous Waste

We review the district court's factual findings pursuant to

a clear error standard. See Dedham Water Co., Inc. v. Cumberland Farms

Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992). Clear error review

means that:

Findings of fact will be given effect unless, after reading the record with care and making due allowance for the trier's superior ability to gauge credibility, the reviewing court form [sic] a strong, unyielding belief that a mistake has been made . . . . The same high level of respect attaches whether the conclusions of the trial court depend on its election among conflicting facts or its choice of which competing inferences to draw from undisputed basic facts.

Id. (internal quotation marks omitted). Importantly for this case,

"[w]hen the evidence supports conflicting inferences, the district

court's choice from among the several inferences cannot be clearly

erroneous." Id. at 462. We also note that findings of fact, even if

brief, are sufficient as long as they permit a clear understanding of

the grounds for the decision below. See Applewood Landscape & Nursery

Co., Inc. v. Hollingsworth, 884 F.2d 1502, 1503 (1st Cir. 1989). With

those standards in mind, we address each party's claims separately.

a. Ashland

In 1977, Ashland operated a chemical manufacturing plant in

- 44 - Great Meadows, New Jersey, generating waste that contained nitrating

acid, sulfuric acid, nitric acid, and solvents composed of isopropyl

alcohol, methyl alcohol, toluene, benzene, and xylene. It is

undisputed that Ashland contracted with CWR to dispose of this waste,

and the record supports the district court's finding that CWR

transported waste to the Davis site. While Michael Musillo of CWR

testified that between 1975 and 1977 the company took all of its waste

initially to the Sanitary Landfill owned by the Capuanos, Jack Capuano

testified that after April 1977, when the landfill began getting

complaints about odor, his brother Anthony Capuano began diverting some

of CWR's waste to the Davis site.

CWR's pickup slips and billing records, as well as Ashland's

disposal logs, show that during May and June of 1977, CWR picked up

thirteen tanker loads and four flatbed loads from Ashland. Each of the

flatbed loads contained 79 55-gallon drums. One of the flatbed pickups

took place on June 1 and another occurred on June 30. Davis receipts

bearing the name "Capuano," signed by Wilbert Jones, and recording 79-

drum loads, show that CWR deliveries were diverted from Sanitary

Landfill to the Davis site on June 2 and July 5. Based on its theory

that CWR delivered its waste within three days of accumulating a full

flatbed load, and the explanation that the intervening weekend and July

4th holiday accounted for the five-day gap between June 30 and July 5,

the district court found Ashland liable for the waste that CWR

- 45 - delivered to the Davis site on June 2 and July 5.

There is evidence in the record to support the court's

conclusion. Emanuel Musillo, principal of CWR, testified that when a

driver picked up a full 79-drum load early in the day, he would go

straight to Rhode Island to dispose of it. When a driver picked up a

full load late in the day or picked up only a partial load, he would

park the load at CWR overnight. The next day the driver would either

continue to Rhode Island if the truck was full, or collect waste from

another customer if it was not. While Musillo did not definitively

testify that CWR always delivered waste within three days of collecting

it, he said that when a driver accumulated a full 79-drum load, the

drums would be taken to Rhode Island "within a few days, I would

imagine." CWR driver Wilbert Jones also testified that after picking

up a complete load, he would leave it at CWR overnight and then leave

for Rhode Island early the next morning.

Ashland challenges the court's factual findings on several

grounds.22 Ashland begins by pointing out that UTC presented no direct

evidence, such as drums or other containers bearing Ashland's name and

22Ashland titles the section of its brief challenging the district court's factual findings "As a Matter of Law, Ashland Could not Be Found Liable." This attempt to win de novo review fails. "[A]ppellant's plaint boils down to little more than thinly veiled dissatisfaction with the district court's factual findings." Dedham Water, 972 F.2d at 460. Ashland's alternate theories about why the court should have made other findings and inferences are factual rather than legal theories and so are subject to the clear error standard.

- 46 - found at the Davis site, to show that Ashland's waste was on the CWR

deliveries to the Davis site. While Ashland is correct, direct

evidence is not a prerequisite to proving the elements of liability in

a contribution action. See 42 U.S.C. § 9613(f) (setting forth elements

of liability).

To attack the district court's finding that CWR disposed of

waste within three days of collecting it, Ashland offers alternative

scenarios. Ashland's most plausible theory is based on Jones's

testimony that the Musillos sometimes "offloaded" nonflammable liquid

waste by pouring it from drums into a tanker truck or underground

storage facility at CWR.23 Ashland argues that its waste thus was

likely unloaded at CWR's Bridgeport site after pickup and either mixed

with other waste or stored there for an indefinite period.

Additional testimony by Jones and the Musillos calls this

theory into question. Jones was asked this question: "[L]et's suppose

that you brought back some drums from one or more customers to

Bridgeport, and that you offloaded those drums. Let's say it wasn't a

full load. Typically, how long would it take before those offloaded

23 Jones said in response to a question about whether CWR mixed waste collected at different times: "Things, anything that could be mixed and wouldn't explode, catch a fire, put it in the tanker. Then when the tanker is full take it to Rhode Island." Jones also said "if there was, let's say, an overflow of drums, there were more pickups to be made, and we couldn't handle it because the truck was full, and they had to be made, we would take them off, put them in the warehouse until we get a trip to go up to Rhode Island."

- 47 - drums would find their way to Rhode Island to be dumped?" Jones

answered: "No more than three days." Jones also said that the

Musillos, not he, did most of the mixing work. Emanuel Musillo

testified that offloading was not CWR's normal practice because of the

"double work" involved. He said that when drums were offloaded, they

usually contained waste oil that CWR could resell. Musillo also said

that occasionally other kinds of waste were stored at CWR, but only

until the next delivery trip to Rhode Island. Michael Musillo

corroborated aspects of his brother's account.

In light of this testimony, the district court did not err

in finding that it was more likely than not that the waste CWR

collected from Ashland on June 1 and June 30 was the waste the

transporter delivered to the Davis site on June 2 and July 5. Since

both pickups from Ashland were full 79-drum loads, it seems

particularly unlikely that CWR drivers would have taken a full load off

the flatbed truck on one day, only to deliver a full load of different

drums to the Davis site on the next business day. Ashland's

alternative scenarios are simply "competing inferences" that the

district court chose not to draw. Dedham Water, 972 F.2d at 457. Such

a choice cannot be clear error.

Ashland's other alternative scenarios also run afoul of the

clear error standard. First, Ashland argues that CWR often kept waste

at its Bridgeport facility for unspecified periods, making it unlikely

- 48 - that the transporter delivered Ashland's waste to the Davis site within

three days of collecting it. Ashland cites evidence that 13,000 drums

of waste were stockpiled at CWR in the fall of 1977. However, since

Emanuel Musillo testified that stockpiling did not begin until CWR's

disposal sites were shut down after the summer of 1977, the evidence on

this point does not undermine the district court's findings. Second,

Ashland argues that the June 2 and July 5 disposals that CWR made at

Davis likely contained waste generated by an unknown source that CWR

picked up from an unidentified parking lot in the New Jersey

Meadowlands. While Jones testified that he picked up drum loads of

waste from a parking lot somewhere in the Meadowlands not "more than

eight or ten times" during 1977, he did not remember the dates of those

pickups. His testimony thus lacks the specifics necessary to link the

Meadowlands pickups to the June 2 and July 5 deliveries to the Davis

site. Finally, Ashland argues that the June 2 and July 5 disposals

contained waste that CWR picked up from CCC customers. There is no

evidence to show that CWR picked up waste for CCC during the relevant

time period.24

24 Ashland and PE also argue that the district court's finding that CWR had an established practice of delivering waste within three days of collecting it conflicts with United States v. Newman, 982 F.2d 665 (1st Cir. 1992). However, Newman is inapposite to the case at hand. In that case, we held that a trial judge did not abuse his discretion by excluding material habit evidence under Federal Rule of Evidence 406 when that evidence "did not require the conclusion that the putative practice was followed with the necessary regularity." Id. at 669 (emphasis added). Newman thus concerns the standards for the

- 49 - In short, while the testimony by Jones and the Musillos

contains some minor ambiguities, the district court did not err by

inferring that CWR regularly disposed of waste within three days of

collecting it, or by inferring that CWR transported Ashland's waste to

the Davis site on June 2 and July 5.25

b. Acco-Bristol

admission of habit or routine practice. Here, by contrast, the testimony from the Musillos and Jones was admitted without objection by the appellants, who now argue that this evidence is not sufficient to establish CWR's pickup and delivery practices. This argument fails. Once routine practice evidence has been admitted, Rule 406 does not limit the district court's consideration of such evidence, or the weight that it may be given.

25Ashlandalso mounts a misnomer defense, arguing that UTC did not name the proper party in its pleadings when it sued "Ashland Chemical Inc." rather than "Ashland Chemical Co." According to stipulations of fact by the parties, Ashland Chemical Inc. was incorporated in 1989 and merged into Ashland Oil Inc. in 1993. In 1996, Ashland Oil Inc. changed its name to Ashland Inc. Ashland Chemical Co., which operated the Great Meadows, New Jersey facility from which CWR transported hazardous waste, was a division of Ashland Oil Inc. in 1977. While Ashland Chemical Inc. may technically be an inaccurate reference to Ashland Chemical Co., there is no question that Ashland received adequate notice that it was being sued, and that it owned the Great Meadows facility from which the liability at issue here stemmed. Cf. Fed. R. Civ. Proc. 15(c)(3), Advisory Committee Notes 1991 Amendment ("An intended defendant who is notified of an action within the period allowed . . . for service of a summons and complaint may not under the revised rule defeat the action on account of a defect in the pleading with respect to the defendant's name . . . . [A] complaint may be amended at any time to correct a formal defect such as a misnomer or misidentification."); Hill v. Shelander, 924 F.2d 1370, 1374 n.2 (7th Cir. 1991) ("Plainly, the new language [of Rule 15(c)(3)] comprehends a situation where the original complaint sues the correct party but identifies him by a technically incorrect name."). There is no question here that UTC sued the correct party and that judgment was entered against that party. As a result, we reject Ashland's misnomer defense.

- 50 - Acco-Bristol Division of Babcock Industries maintained a

manufacturing facility in Waterbury, Connecticut in 1977. This

facility produced controls for oil and gas lines through processes

involving electroplating, soldering, welding, and degreasing machine

parts. Wastes produced by Acco included 1,1,1-TCA, a soap and cyanide

waste stream, and acid sludge. Acco typically put the waste in 55-

gallon drums for disposal.

CWR twice picked up waste from Acco during the spring and

summer of 1977, collecting 50 drums on April 6 26 and 24 drums on June

28. On June 29, CWR received a check in the amount of $324 for these

pickups. A "Capuano Dumping Charge Slip," also dated June 29,

indicates that CWR delivered a full load of 79 drums to the Davis site.

The evidence at trial indicated that drivers directed to the Davis site

by the Capuanos at Sanitary Landfill sometimes presented Capuano

dumping receipts to William Davis. Davis testified that he used these

slips to verify the amount of waste dumped on his property and to help

him prepare invoices for Sanitary Landfill. In keeping with this

practice, Davis sent a bill to Sanitary Landfill on June 29 for 79

gallons of waste.

Based on this evidence, the district court inferred that the

24 drums of Acco waste went to the Davis site in CWR's shipment on June

26 The district court declined to infer that the shipment picked up by CWR on April 6 went to the Davis site because there were no Davis slips within three days of that date.

- 51 - 29. We cannot conclude that this determination is clearly erroneous.

Acco points out that on June 27 and 28, CWR picked up 99 drums of waste

from various customers -- 20 drums more than were dumped at the Davis

site. However, at least 17 of those drums were picked up from

customers who frequently disposed of waste oils. Because CWR tended to

sell waste oil to salvagers, as we have noted, the district court's

conclusion that the 24 drums of Acco's waste were part of the 79 drums

sent to the Davis site on June 29 was reasonable.

Acco argues that the district court erred in relying on the

Capuano slip to infer the presence of Acco's waste at the Davis site

because the slip does not specify a transporter. Specifically, Acco

claims that CCC or another waste company, rather than CWR, Acco's only

transporter, could have brought the waste delivered on June 29.

However, testimony at trial makes clear that by June 1977, CCC was

dumping waste directly at the Davis site without stopping at Sanitary

Landfill first. Thus, it is not likely that the June 29 Capuano

Dumping Charge Slip accounted for waste hauled by CCC. As a result, we

cannot say that the district court's findings that the Capuano slip

referred to waste dumped by CWR, and that Acco's waste was part of that

delivery, was clearly erroneous. See Dedham Water, 972 F.2d at 463.

c. Black & Decker a/k/a Gar

Gar operated an electroplating business in Danbury,

Connecticut. Its waste contained nitric acid, copper, nickel, and

- 52 - cyanide. According to CWR records, the transporter picked up five

loads of waste from Gar on May 6 (13 drums), June 20 (5 drums), June 27

(2 drums), September 2 (7 drums), and September 30 (11 drums). A Davis

receipt shows that on June 21, the day after the five-drum pickup, CWR

disposed of 60 drums of waste at the Davis site. The five drums

collected on June 20 contained 275 gallons of waste. Based on this

evidence, the district court found Gar liable for dumping 275 gallons

of waste at the Davis site.

Gar poses two challenges to the court's factual findings.27

It notes that CWR picked up more than 300 drums28 from Connecticut and

New Jersey customers on the three business days before June 21, and

concludes that in light of those pickups it is not mathematically

likely that Gar's five drums were among the 60 drums that CWR delivered

to Davis on June 21. Admittedly, the collection of more than 300 drums

in the days leading up to the June 21 delivery to Davis means that it

is less likely that Gar's five drums were among those delivered than it

is, for example, that the 79 drums picked up from Ashland on June 1

were the 79 drums delivered to the Davis site on June 2.

27Gar also argues, like Ashland, that there was no direct evidence that its waste ended up at Davis, and that CWR regularly offloaded its customers' waste at its property for unspecified periods of time and also mixed different customers' waste at its Bridgeport facility. These arguments fail for the same reasons discussed above. 28Gar says that CWR picked up 352 drums on the three business days before the June 21 delivery. UTC counts 326 drums and 13 smaller containers collected between June 17 and June 22.

- 53 - Nonetheless, the evidence that Gar emphasizes does not lead

us to conclude that the district court's findings were clear error. As

UTC points out, the Davis receipts show that CWR delivered a total of

219 drums to the Davis site on June 21, June 22, and June 23,

increasing the likelihood that Gar's five drums were among those

delivered. In addition, 62 of the 300-plus drums collected on the

preceding days came from customers that sent waste oil to CWR, and so,

according to Emanuel Musillo's testimony, would likely have been

offloaded and stored for resale rather than being delivered to the

Davis site.

To cast further doubt on the district court's findings, Gar

points out that the Davis slip from June 21 says "SOLIDS" for solid

waste, and that Gar produced liquid waste. Davis's testimony at trial

undermines the significance of the solids designation. Davis said that

he distinguished between solid and liquid waste because he poured

liquid waste out of the barrels and resold them. Because he could not

resell the barrels containing solids, he charged more for solid waste

(one dollar per barrel) than he did for liquid waste (50 cents per

barrel). Davis therefore had a financial incentive to classify drums

of waste as solid rather than liquid. Davis also testified that he

considered anything "solid" that did not pour easily, including any

sludge or residue left in the drums. Also, there is no evidence that

Davis examined each barrel before classifying a shipment.

- 54 - Finally, Gar notes that while the evidence shows that CWR

driver Johnny Granfield made the June 21 delivery to the Davis site,

there is no evidence concerning which CWR driver picked up Gar's waste

on June 20. This matters because each CWR driver only drove waste to

the Davis site that he himself collected. Thus Gar argues that the

possibility that Wilbert Jones, the other CWR driver, picked up its

waste on June 20 lessens the likelihood that its waste was among the 60

drums delivered to the Davis site on June 21. However, since there is

no evidence to show that Granfield was not the driver who collected

Gar's waste on June 20, and since the evidence did establish that the

driver who delivered waste to the Davis site had picked it up, the

district court could have inferred that Granfield collected the waste

from Gar, and that this waste was on his truck when he made the June 21

delivery to Davis.

d. Perkin-Elmer

PE operated four Connecticut facilities in 1977, at which it

generated waste that included methylene chloride, 1,1,1-TCA, and

toluene.29 PE acknowledges that these hazardous substances were

identified at the Davis site.

29 PE operated facilities at four locations: (1) a primary manufacturing facility in Norwalk; (2) a research facility at 50 Danbury Road in Wilton; (3) a manufacturing and research facility at 77 Danbury Road in Wilton; and (4) and Qualitron Corporation's manufacturing facility in Danbury. Qualitron became a wholly-owned subsidiary of PE in May 1984. PE does not contest its responsibility for Qualitron's environmental liability in this case.

- 55 - PE's records show that CWR picked up waste from one of PE's

facilities seven times during the spring and early summer of 1977: on

May 26, June 20, June 22 (from three facilities), June 27, and July 1.

Davis slips indicated that CWR delivered drums to the site on May 27,

June 21, June 23, June 29, and July 5, 6, and 7. Based on the theory

that CWR delivered waste within three days of collecting it, the

district court inferred that the PE pickup on May 26 was dumped at the

Davis site on May 27; the pickup on June 20 was dumped on June 21; the

pickups on June 22 were dumped on June 23; the pickup on June 27 was

dumped on June 29; and the pickup on July 1 was dumped on July 5, 6, or

7.

PE objects to the district court's finding of liability on

numerous grounds. First, it argues that the court erred in not

"locating and identifying" PE's waste at the Davis site. As PE notes,

the district court said in articulating the proof required by CERCLA:

"In the context of this case, proof that a defendant generator's

hazardous waste 'can be located and identified at the Davis Site' is a

sina qua non in establishing arranger liability." Davis IV, 31 F.

Supp. 2d at 61 (quoting Davis I, 882 F. Supp. at 1221). PE argues

unpersuasively that the district court intended with this language to

create a new and higher standard of liability under CERCLA, requiring

that UTC establish waste deposits with direct evidence such as

containers bearing PE's name and containing residue of a hazardous

- 56 - waste PE generated. We have already rejected an interpretation of

CERCLA that "would cast the plaintiff in the impossible role of tracing

chemical waste to particular sources in particular amounts, a task that

is often technologically infeasible due to the fluctuating quantity and

varied nature of the pollution at a site over the course of many

years." Acushnet, 191 F.3d at 76.

PE also points out that the number of drums of waste picked

up by CWR in any three-day period before PE's waste was allegedly

delivered to the Davis site is not the same as the number of drums

noted on the Davis slip for that day. However, as we have discussed

above, some of those drums from other customers contained waste oil

which CWR often salvaged and so likely would not have delivered to the

Davis site. Thus, the discrepancy between the number of barrels picked

up and delivered by CWR does not undermine the court's conclusion that

PE's waste went to the Davis site.

PE also argues that its waste was not dumped at the Davis

site because it produced only liquid waste, and all of the Davis slips

linking its waste to the site indicated that the barrels dumped by CWR

contained solid waste. PE's contention that it only produced liquid

waste is contradicted by evidence in the record. Joseph Rabideau,

designated by PE to testify on behalf of the corporation, testified

that CWR disposed of waste for PE that included "a solidified scrape

off type material" and that waste picked up by CWR in open-top five

- 57 - gallon pails was "solidified material." Rabideau also explained that

PE's use of methylene chloride as a solvent produced "still bottoms"

that were disposed of "in a fairly solidified form." PE also produced

a semi-solid paint residue sludge as part of its paint operation.

Moreover, as we have discussed, Davis's testimony at trial

demonstrated that his classification of waste as solid or liquid was

not an exact process. Thus, the district court did not clearly err in

concluding that waste classified as a liquid by PE might nonetheless be

considered a solid by Davis if the barrel contained any residue that

could not be easily poured. Based on this evidence, it was not clear

error for the district court to conclude that Davis could have

characterized a shipment of 79 barrels as "solid" even though some --

or even most -- of the drums he did not examine actually contained

liquids.

In sum, all of PE's objections to the district court's

finding of liability are essentially disputes about the court's finding

of the facts and the inferences drawn from CWR's established waste

practices. We must uphold these findings and inferences unless they

are clearly erroneous. See Dedham, 972 F.2d at 457. For the reasons

we have explained, evidence in the record amply supports the district

court's determinations.

2. Wilbert Jones's Testimony

Acco, Ashland, Gar, and Perkin-Elmer all argue that the

- 58 - district court erred in admitting and crediting the deposition

testimony of Wilbert Jones, one of the two drivers who hauled waste for

CWR. At the time of his deposition in June 1996, Jones was unemployed

and very ill. He died in May 1997. UTC paid Jones approximately $30

per hour as compensation for the time he spent preparing and

testifying, for a total of between $700 and $800.30

At trial, the defendants argued that UTC's payments to Jones

raise an inference that Jones's testimony was improperly influenced by

UTC and should be excluded for that reason. The district court

rejected this argument in a ruling from the bench, finding that "under

these circumstances it's a reasonable amount to have paid him." The

defendants appeal this ruling to admit the testimony.

Citing two grounds for disbelieving Jones's testimony, the

defendants argue further that the district court should not have

credited Jones's testimony. First, they state that the payments UTC

made to Jones -- if they do not render his testimony inadmissible --

should have caused the district court to reject his account of CWR's

practices. Second, the defendants argue that Jones should not be

believed because he signed affidavits prepared for other litigation

that they claim are inconsistent with his testimony in this case.

30The defendants claim that UTC did not timely or adequately disclose the details of the payments it made to Jones. However, the issue of his compensation was raised during the June 1996 deposition and the defendants had the opportunity to cross-examine Jones on the issue of compensation at that time.

- 59 - a. Grounds for Exclusion

We first consider whether the district court abused its

discretion in admitting Jones's deposition testimony.31 To the extent

that the defendants argue that the payments to Jones rendered him

incompetent as a witness, their effort fails. Federal Rule of Evidence

601 provides: "Every person is competent to be a witness except as

otherwise provided in these rules."32 See also United States v. Devin,

918 F.2d 280, 292 (1st Cir. 1990) ("It is a well-established principle,

embodied in Fed. R. Evid. 601, that witnesses are presumed competent to

testify."). A district court's determination to allow a witness to

testify is overturned only for abuse of discretion. See Devin, 918

F.2d at 292; United States v. Hyson, 721 F.2d 856, 864 (1st Cir. 1983)

31The defendants cite Rule 3.4(b) of the Rhode Island Rules of Professional Conduct for the proposition that a lawyer shall not "offer an inducement to a witness that is prohibited by law." This ethical rule does not advance their argument. The rule only prohibits compensation given to a witness in violation of law. For reasons we explain here, reasonable compensation to witnesses is not prohibited by law and does not render their testimony inadmissible. 32 As the district court recognized, the defendants' challenge to Jones's competency is not a challenge to his competency "in the sense of whether he had all of his [mental] faculties." While "competency" generally refers to a witness's mental capacity to perceive events and comprehend the obligation to tell the truth, see, e.g., United States v. Devin, 918 F.2d 280, 292 (1st Cir. 1990) (affirming district court's determination that a witness with a history of psychiatric episodes was competent), the concept of competency has been used to challenge testimony where it is alleged that a witness's credibility is so poor as to render his or her testimony inadmissible, see, e.g., United States v. Bedonie, 913 F.2d 782, 799 (10th Cir. 1990) (rejecting the argument that prior inconsistent statements rendered a witness incompetent to testify under Rule 601).

- 60 - ("The competency of a witness to testify is for the trial judge.").

We have been reluctant to exclude testimony based only on the

fact that a witness was paid. For example, in United States v. Cresta,

where an informant had been paid by the government, we said: "Rather

than adopting an exclusionary rule for a particular factual situation,

irrespective of the mode of payment, we prefer the rule that would

leave the entire matter to the jury to consider in weighing the

credibility of the witness-informant." 825 F.2d 538, 547 (1st Cir.

1987) (quoting United States v. Grimes, 438 F.2d 391, 396 (6th Cir.

1971)). See also Borges v. Our Lady of the Sea Corp., 935 F.2d 436,

440 (1st Cir. 1991) (assuming without deciding that even if a witness's

statements were obtained improperly, "such impropriety in the means of

obtaining a statement would not automatically bar admission of the

statement at trial."). Since the witness in Cresta had received most

of his compensation prior to trial, his payment was not contingent upon

the conviction of any of the defendants. See id. Because the witness

had been thoroughly cross-examined about the nature of his agreement

with the government and the jury had been told to consider his

testimony with care, the admission of the testimony was upheld on

appeal. While Cresta involved a payment to a government informer

rather than to a witness deposed in a civil action, the reasoning of

Cresta applies here. The defendants have not claimed that the payment

to Jones was contingent upon a finding that the defendants were liable.

- 61 - Additionally, the district court was fully informed about the payments

made to Jones -- as the jury was in Cresta -- and considered those

payments as part of its assessment of Jones's credibility. The

defendants have not attempted to distinguish Cresta from the instant

matter.33

b. Grounds for Disbelieving

The defendants argue that even if the payments Jones received

did not render his testimony inadmissible, those payments should have

caused the district court to discredit Jones's testimony.

Specifically, they say that Jones's total compensation is excessive in

light of the fact that he was elderly, ill, and unemployed at the time

of the deposition. They claim that the time spent testifying did not

divert Jones from any other lucrative pursuits and that payments at a

rate of $30 per hour constituted a windfall to him and raise an

inference that the payments were intended to improperly influence his

testimony. The district court explicitly considered these arguments

and rejected them. Reviewing the court's decision to credit Jones's

33 The case cited by the defendants for the proposition that payment to a fact witness to testify at depositions violated a state ethics rule prohibiting lawyers from offering inducements to witnesses is Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non- Marine Assoc., 865 F. Supp. 1516, 1526 (S.D. Fla. 1994). Golden Door is easily distinguished from the present case because the payments to two witnesses totaled over $400,000 and $100,000. See id. Indeed, Golden Door itself acknowledges that "[p]ayments made to fact witnesses as actual expenses as permitted by law will not be disturbed or set aside." Id. at 1526 n.11.

- 62 - testimony for clear error, see United States v. Rostoff, 164 F.3d 63,

71 (1st Cir. 1999), we find none.34 Although Jones was ill and

unemployed when he gave his testimony, $30 per hour is not a payment so

outrageously high as to raise an inference that his testimony was

influenced. As the district court stated from the bench when it ruled

on this issue: "Everybody's time is worth something."

The defendants also argue that the district court should have

discredited Jones's deposition testimony because he allegedly made

prior inconsistent statements in affidavits he signed for litigation

known as the Picillo Superfund case. See generally O'Neil v. Picillo,

883 F.2d 176 (1st Cir. 1989). Jones signed these Picillo affidavits in

September 1995. Four of the affidavits were admitted into evidence at

the Davis trial. The affidavits all said in similar language that

Jones dumped waste at the site known as the "Picillo Pig Farm" in

Coventry, Rhode Island during 1977. For example, the affidavit

relating to PE states the following:

One of the Musillo customers I went to was Perkin Elmer in Norwalk, Connecticut. Each week, during

34The defendants attempt to avoid this deferential standard of review by arguing that the district court was not in a position to evaluate Jones's credibility firsthand because Jones's testimony at trial was submitted by reading lengthy excerpts from his deposition. However, it is well-settled that the court's credibility findings regarding deposition testimony are still entitled to deference on appeal. See Amer. Foreign Ins. Ass'n v. Seatrain Lines of Puerto Rico, Inc., 689 F.2d 295, 298 (1st Cir. 1982) (applying clearly erroneous standard of review to factual findings of the trial court even where the record consisted only of photographs and deposition testimony).

- 63 - the year 1977, I would haul 15 to 20 drums, 55 gallon size . . . . I would haul these same drums of waste to the Chemical Waste Removal yard in Bridgeport where they were stored until a full flatbed trailer load of 79 drums was accumulated. I would then dispose of these Perkin Elmer drums of waste at Picillo Pig Farm.

Attorneys for the defendants questioned Jones about these statements

during his deposition and asked him to reconcile the affidavits with

his testimony in the Davis litigation. He explained that he never

dumped at the Davis site again after he began dumping at the Picillo

site in 1977. Therefore, Jones's deposition testimony in this case and

the Picillo affidavits may be interpreted to provide a consistent

account of his dumping practices during 1977: Jones dumped at the Davis

site until Davis stopped accepting waste in September, at which time he

began dumping at the Picillo pig farm. Moreover, even without this

explanation, the affidavits are not facially inconsistent with Jones's

testimony because the affidavits do not mention the Davis site at all,

leaving open the possibility that Jones dumped at both sites during

1977, but at different times. In sum, the statements in the Picillo

affidavits are not, as the defendants contend, flatly contradictory or

inconsistent with Jones's testimony in the Davis litigation.

Particularly in light of the documentary evidence offered at trial --

consisting of Davis slips, bills of lading, and other ledgers and

receipts -- and the testimony of the Musillo brothers that corroborated

much of what Jones said, we cannot conclude that the district court

- 64 - clearly erred in choosing to credit some of Jones's testimony.

3. Exclusion of Master Chart

Acco and Gar argue that the district court erred in excluding

a 120-page chart captioned "Contentions of the Contribution Plaintiffs"

that UTC's lawyers prepared for the Rule 30(b)(6)35 testimony of UTC's

corporate designee, Troy Charlton. The chart summarized information

UTC obtained during discovery about the claims and theories of various

parties to the litigation, most of whom were third or fourth-party

defendants. More specifically, the chart, organized by party name,

listed information about the dates of disposal at the Davis site, the

volume of waste, the hauler used by that party, and the hazardous

substances contained in the waste. The chart also identified pertinent

documents and testimony for each of the parties. Charlton referred to

the chart to answer questions throughout his deposition and

occasionally read from it verbatim.

35 Fed. R. Civ. P. 30(b)(6) provides: A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.

- 65 - a. Procedural Posture

UTC claims that Acco and Gar cannot appeal the exclusion of

the chart from evidence because they did not move for its admission

below. Only Sealed Air Corporation (SAC) and Morton moved to introduce

the chart at trial, arguing that it constituted an admission by UTC.

See Fed. R. Evid. 801(d)(2) (defining admissions by a party-opponent as

"not hearsay"). Neither SAC nor Morton appealed the district court's

denial of their motions, although Acco and Gar now argue that the

district court erred in excluding the chart. Acco and Gar are not

precluded from making this claim despite their failure to do so below.

The plain language of Fed. R. Evid. 103(a)(2), written in the passive

tense, does not require a party to have made an offer of proof at trial

in order to preserve the right to appeal. Rather, Rule 103(a)(2)

states that an offer of proof is adequate when: "In case the ruling is

one excluding evidence, the substance of the evidence was made known to

the court by offer or was apparent from the context within which

questions were asked." Fed. R. Evid. R. 103(a)(2) (emphasis added).

In considering whether an adequate offer of proof was made at trial, we

have focused on whether the proof sufficed to notify the court of the

significance of the evidence such that the record was developed

adequately for appeal. See, e.g., Harrison v. Sears, Roebuck & Co.,

981 F.2d 25, 30 (1st Cir. 1992) (Rule 103(a)(2) requires an offer of

proof "to ensure that the trial judge and the appellate court can

- 66 - evaluate the matter fully"). Morton and SAC made an adequate offer of

proof in attempting to admit the master chart into evidence. They

filed motions to admit the chart, as well as lengthy memoranda of law,

and argued orally before the district court that it was admissible as

an admission by UTC. Accordingly, Acco and Gar may appeal the district

court's decision to exclude the chart.36

b. Admissibility of the Chart

In moving to introduce the chart at trial, SAC and Morton

argued that it constituted a party admission by UTC. See Fed. R. Evid.

801(d)(2). Ruling on this motion from the bench, the district court

concluded that the chart was UTC's statement but found that it did not

qualify as an admission. Noting that there must be "some indication of

reliability" for the statement to be an admission, the court found that

a party cannot be "bound by statements that simply relate to hearsay

information received regarding matters clearly outside the scope of the

corporations knowledge or statements that describe evidence compiled

from third-party sources by the corporation in preparation for trial."

The district court then explained its view of the statements contained

in the master chart, noting first that it appeared "to contain a

36 UTC cites only one case to support its argument that Acco and Gar may not appeal the ruling to exclude the chart. See United States v. Long, 706 F.2d 1044, 1052 (9th Cir. 1983) (finding that defendant who did not move to admit an affidavit at trial had waived his right to do so on appeal, although his co-defendant had moved for its admission). In light of the plain language of Fed. R. Evid. 103 and our precedent on this issue, we do not find Long persuasive.

- 67 - mixture of different things." The court described the chart as

follows:

Information that UTC received from a variety of third-party sources. For example, it consisted primarily of things like what UTC has summarized as being contained in documents obtained from Mr. Davis and others; what Mr. Carracino and others may have said according to UTC in their depositions. They all - they also contain, in addition to this . . . information, which seems to be dominant, they also contain a significant - significant number of unattributed statements [or] inferences based on the first category of information.

Accordingly, the district court denied Morton and SAC's motions to

admit the master chart, concluding: "it is impossible to determine

exactly what all this information is and in a sense it clearly appears

that most of it is simply information obtained from third-party sources

and compiled in preparation for trial."

"[A] trial court enjoys considerable discretion in connection

with the admission or exclusion of evidence." Udemba v. Nicoli, 237

F.3d 8, 15 (1st Cir. 2001). The decision not to admit the chart in

this case is reviewed for abuse of discretion. See Udemba, 237 F.3d at

15; Williams v. Drake, 146 F.3d 44, 47 (1st Cir. 1998). With respect

to party admissions, we have noted the following:

For a statement to be an admission under Rule 801(d)(2), the statement must be made by a party, or by a party's agent or servant within the scope of the agency of employment. . . . Each link in the chain must be admissible, either because it is an admission and thus not hearsay or under some other hearsay exception. . . . While there

- 68 - may be controversy over whether admissions must be based on personal knowledge, . . . unattributed statements repeated by party- opponents cannot be admissible. As the original declarant is unknown, it is impossible to determine whether the original declarant also fits within the party-opponent definition, and thus the exclusion of [the challenged statements] was proper.

Vazquez v. Lopez-Rosario, 134 F.3d 28, 34 (1st Cir. 1998) (emphasis

added). Acco and Gar must establish that the chart prepared by UTC is

grounded in admissible evidence.37 They have not done so. The chart

was prepared by UTC's lawyers and contained information UTC had

developed from discovery, including inferences from third-party

information. The chart also contained a number of unattributed

statements. Acco and Gar have not attempted to identify the source of

these statements or specify which of the statements might be

admissible. Accordingly, we affirm the district court's decision to

exclude the chart from evidence.

4. Proof that Defendants' Waste Caused or Contributed to Cleanup Costs

37Summary charts offered pursuant to Fed. R. Evid. 1006, governing charts summarizing voluminous writings, must also be grounded in admissible evidence. See United States v. Nivica, 887 F.2d 1110, 1126 (1st Cir. 1989); United States v. Sorrentino, 726 F.2d 876, 884 (1st Cir. 1984) ("[P]urported summaries containing assertions not otherwise supported by the record are not admissible."). While Acco and Gar have not identified the master chart as a summary chart under Rule 1006, seeking to admit it as an admission of UTC instead, the master chart -- more than 100 pages long -- summarizes a large quantity of information, and whether it is deemed a party admission or a summary chart, Acco and Gar must prove that the statements in the chart are admissible.

- 69 - Ashland and Acco argue that there is no evidence

concerning the quality or quantity of hazardous substances in the

Ashland and Acco drums found at the Davis site, and thus no evidence

that disposal of the drums can cause UTC to incur cleanup costs. Gar

makes two additional lack of causation arguments, contending that: (1)

there is no evidence that the company contributed more than background

levels of contamination since it was found liable for only five drums

of waste; and (2) that its waste, which contained metals, has not

contributed to UTC's soil remediation costs because the remediation is

directed only at cleaning up volatile organic compounds. We review for

clear error the court's factual finding that the appellants' waste

triggered cleanup costs. See Dedham Water, 972 F.2d at 457.

In discussing the environmental damage at the Davis site, the

district court found that three categories of waste were present in the

soil and ground or surface water at greater than background levels:38

"volatile organic compounds (VOCs), semi-volatile organic compounds

(SVOCs), and metals." See Davis IV, 31 F. Supp. 2d at 51. The VOCs

included "benzene, methyl ethyl ketone (MEK), methylene chloride,

perchloroethylene a/k/a tetrachloroethylene (PCE), 1,1,1,

tricloroethane (1,1,1-TCA), trichlorethylene (TCE), toluene, and

38The background level of a hazardous substance is measured in parts per million or parts per billion, and reflects the level that presents an acceptable degree of health risk, according to scientific judgments.

- 70 - xylene." Id. The metals included "cadmium, copper, cyanide, and

nickel." Id.

The court found that Acco, which manufactured controls for

oil and gasoline lines, produced waste containing 1,1,1,-TCA, cadmium,

copper, and nickel compounds, cyanide, and hydrochloric or sulfuric

acid. See id. at 55. Ashland, a chemical manufacturer, generated

waste that contained nitrating acid, composed of sulfuric acid and

nitric acid, as well as solvents composed of isopropyl alcohol, methyl

alcohol, toluene, benzene, and xylene. See id. at 56. Gar, which "was

in the electroplating business," generated wastes containing nitric

acid, copper, nickel, and cyanide. Id.

The court found that "[s]ince the hazardous waste deposited

at the Davis site has been commingled into an essentially homogeneous

'witches' brew,' it is impossible to allocate discrete portions of the

cleanup cost to any particular type of waste or any particular party."

Id. at 64. As a result, the court made a general finding that "the

evidence does establish hazardous substances produced by Acco-Bristol,

Ashland, Gar, and Perkin-Elmer as well as Morton were deposited at the

Davis Site, that each of them contracted for the disposal and that the

release and threatened release of those kinds of substances triggered

response costs." Id. at 62.

In finding that the appellants' waste contributed to UTC's

cleanup costs, the district court drew a reasonable inference based on

- 71 - the evidence. Evidence about the defendants' manufacturing processes

in 1976 and 1977 supports the finding that each defendant generated

waste that contained one or more of the hazardous substances identified

at the Davis site at concentrations exceeding background levels. See

id. at 51. Evidence about the commingling of these substances in the

water and soil at the site supports the finding that the harm caused by

each individual substance could not be remediated separately. The court

thus concluded that the defendants had caused or contributed to cleanup

costs at the site.

The appellants' arguments to the contrary rely on a highly

selective reading of Acushnet Co. v. Mohasco Corp., 191 F.3d 69 (1st

Cir. 1999). The passage they cite states:

It might, of course, make sense to say that a defendant's release did not 'cause' the incurrence of response costs when the monies were expended for purposes wholly unrelated to responding to environmental contamination. And we suppose it may even be accurate to say that a generator or transporter of waste did not cause a plaintiff to incur remediation costs when that person did not actually cause any alleged contamination, or perhaps even where clean up efforts were directed at cleaning up toxins other than those attributed to the defendant.

Acushnet, 191 F.3d at 77 n.7 (citation omitted). Based on this

language, the appellants assert that CERCLA contribution plaintiffs

must prove that a defendant's waste contributed more than background

contamination levels and is the type of waste being cleaned up at the

- 72 - site. Their attempt to somehow raise the threshold for proving

causation, however, misconstrues the holding of Acushnet.

In Acushnet, a settling defendant brought a contribution

action against a non-settler. The non-settler admitted that it had

discarded waste containing a substance called PAH at the site in

question, but moved for summary judgment on the ground that the

quantity of PAH it disposed was far less than the background level and

tiny in comparison to the amount of PAH dumped by other parties. The

district court granted summary judgment because the plaintiff failed to

create a triable issue of fact about whether the defendant's disposal

of PAH caused cleanup costs to be incurred. We affirmed "on somewhat

different grounds," saying that "[t]o the extent that the court's

ruling may be interpreted to incorporate into CERCLA a causation

standard that would require a polluter's waste to meet a minimum

quantitative threshold, we disagree." Id. at 72. We explained:

To read a quantitative threshold into the language 'causes the incurrence of response costs' would cast the plaintiff in the impossible role of tracing chemical waste to particular sources in particular amounts, a task that is often technologically infeasible due to the fluctuating quantity and varied nature of the pollution at a site over the course of many years. Moreover, it would be extremely difficult, if not impossible, to articulate a workable numerical threshold in defining causation. . . . Our own decisions provide no basis for such an approach. . . . [W]e have never discussed CERCLA causation in quantitative terms.

Id. at 76-77.

- 73 - To be sure, CERCLA allows a defendant to assert a defense

that the liability attributable to it is divisible from that borne by

other parties. See id. at 77 ("[W]here environmental harms are

divisible, a defendant may be held responsible only for his

proportional share of the response costs"). However, once the

plaintiff has established that a defendant disposed of hazardous waste,

Acushnet put the burden of proof on the defendant to show that this

waste did not contribute to cleanup costs. See id. Other courts faced

with the commingling of chemicals that inevitably occurs at many

hazardous waste sites have followed a similar approach. See Tosco

Corp. v. Koch Indus., Inc., 216 F.3d 886, 891 (10th Cir. 2000) ("The

plaintiff in a CERCLA response cost recovery action involving multiple

potentially responsible persons need not prove a specific causal link

between costs incurred and an individual responsible person's waste.");

Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir. 1995)

("[A] plain reading of [CERCLA] leads us to the conclusion that once a

party is liable, it is liable for its share, as determined by Section

9613(f), of 'any' and all response costs, not just those costs 'caused'

by its release."); United States v. Alcan Aluminum Corp., 964 F.2d 252,

264-66 (3d Cir. 1992); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 670

n.8 (5th Cir. 1989) ("[I]n cases involving multiple sources of

contamination, a plaintiff need not prove a specific causal link

between costs incurred and an individual generator's waste.").

- 74 - Neither Acco nor Ashland have any evidence to show that the

many hazardous substances contained in their waste "constitute[] no

more than background amounts of such substances in the environment and

cannot concentrate with other wastes to produce higher amounts."

Acushnet, 191 F.3d at 77. Gar also has no evidence to show that the

copper, cadmium, and cyanide it generated are present below background

levels.

Acushnet also disposes of Gar's additional arguments that its

waste has not contributed to UTC's cleanup costs. Gar's contention

that its five drums of waste were insufficient to contribute more than

background levels of waste presupposes a minimum quantitative threshold

for liability, which Acushnet rejected. See id. at 77.39 Gar also

argues that it should not have to pay for a cleanup directed at VOCs

when its waste contained only metals. The record shows that while the

EPA plan for the Davis site, which drives UTC's cleanup efforts,

focuses primarily on VOCs, it also aims to mitigate the other

pollutants present at the site. According to testimony at trial, UTC

will have to take additional steps to reduce metal contaminants if

those contaminants are still present in the soil at greater than

39 The district court took Gar's relatively minor waste contribution into account by allocating to the company only .03 percent of UTC's cleanup costs. Gar itself calls this allocation "minuscule." At oral argument, it became apparent that the real concern of Gar and the other appellants is that the government will use the judgment against them here in a future § 9607 action for the costs of the groundwater and well remedies which have not yet been recovered.

- 75 - background levels after VOC levels have abated. Gar thus has failed to

show that the harm caused by its waste is divisible from the harm

treated in UTC's soil remediation.

5. The Entry of a Declaratory Judgment under § 9613(g)(2) and the Declaratory Judgment Act

The appellants argue that the district court's entry of a

declaratory judgment was improper because: (1) CERCLA does not provide

for declaratory relief in a contribution action for future cleanup

costs; and (2) the Declaratory Judgment Act does not provide for

declaratory relief in this case because no case or controversy existed

between the parties. To support the latter claim, the appellants argue

that UTC failed to prove that it was likely to incur more than its fair

share of future cleanup costs and that UTC's settlement with the

government did not extinguish the appellants' liability.40 We discuss

each argument in turn.

The appellants argue that CERCLA's declaratory relief

provision, § 9613(g)(2), does not permit UTC to receive declaratory

40The appellants also argue that UTC failed to request declaratory relief. This argument is easily disposed of. As the district court pointed out, UTC need not have used the magic word "declaratory judgment" in its pleading to put the defendants on notice that its claims could be resolved with a grant of declaratory relief. See Davis IV, 31 F. Supp. 2d at 60. UTC's complaint asked the court to enter a judgment to "determine . . . the equitable contribution share of liability . . . properly allocated to each [party.]" The court's case management order before trial used similar language. This language gave the defendants sufficient notice that declaratory relief might be granted.

- 76 - relief for cleanup costs that it incurred after the close of discovery

and continues to incur as it completes the soil remediation. They

correctly point out that the amount that UTC will ultimately pay for

soil remediation is unknown. While the EPA projected a cost of $14

million for soil remediation, this estimate is several years old.

Rather than allowing into evidence more recent figures on the amount of

ongoing and future cleanup costs, the court relied on the EPA estimates

for purposes of the Phase III adjudication, saying that the defendants

could challenge specific expenditures in post-trial proceedings.41

The district court dismissed UTC's claims for past cleanup

costs on the ground that the company had not paid for any cleanup

before the close of discovery.42 See Davis III, 20 F. Supp. 2d at 330.

The court expressed doubts about whether UTC was entitled to

declaratory relief for future costs given the ongoing nature of the

payments and their unknown total amount, but ultimately concluded that

"the evidence presented is sufficient to enable the Court to make a

meaningful allocation based upon the facts presently available." Davis

41The district court "retain[ed] jurisdiction for the purpose of revising this allocation if and when additional facts are discovered that were not reasonably available to the parties at the time of trial and that clearly demonstrate a change in circumstances so significant that the allocation would be rendered manifestly inequitable." Davis IV, 31 F. Supp. 2d at 69. 42 UTC's indemnification claims were dismissed "for the same reason" and because the district court determined that UTC "was not entitled to indemnification under Rhode Island law." Davis IV, 20 F. Supp. 2d at 330.

- 77 - IV, 31 F. Supp. 2d at 59. The court thus granted declaratory relief

pursuant to CERCLA, 42 U.S.C. § 9613(g)(2), and the Declaratory

Judgment Act, 28 U.S.C. § 2201.

To determine whether the court's grant of declaratory relief

was proper under § 9613(g)(2), we begin with the plain language of the

statute. See United States v. Rivera, 131 F.3d 222, 224 (1st Cir.

1997). Section 9613(g)(2) provides that "[i]n any such action

described in this subsection, the court shall enter a declaratory

judgment on liability for response costs or damages that will be

binding on any subsequent action or actions to recover further response

costs or damages." 42 U.S.C. § 9613(g)(2). The statute does not

explicitly provide for declaratory relief for a contribution action for

future or past response costs. However, nothing in the statute

precludes an interpretation that declaratory relief is available in

both instances. See Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1191

(9th Cir. 2000). The statute suggests this interpretation by adopting

a flexible time line, providing that "[a] person may seek contribution

. . . during or following any civil action under . . . section 9607(a)

of this title." 42 U.S.C. § 9613(f)(1) (emphasis added). This

language anticipates that a defendant in a § 9607 cost recovery action

may initiate a contribution action before its own liability is

established. Consistent with this scheme, a § 9607 defendant whose

liability has been established may be awarded declaratory relief before

- 78 - that liability has been fully discharged.

The district court acknowledged that a few courts have held

that § 9613(g)(2) applies to actions brought under § 9607, the vehicle

for an innocent party to recover cleanup costs, and not to actions

brought under § 9613(f), the vehicle for a non-innocent party to seek

contribution from other polluters. See Davis IV, 31 F. Supp. 2d at 590

(citing Reichhold Chems., Inc. v. Textron, Inc., 888 F. Supp. 1116,

1123-24 (N.D. Fla. 1995) and Sun Co. v. Browning-Ferris, Inc., 919 F.

Supp. 1523, 1532 (N.D. Okla. 1996), overruled in part by 124 F.3d 1187

(10th Cir. 1997)). However, the Ninth and Tenth Circuits have taken

the position, as we do here, that § 9613(g)(2), the declaratory

judgment provision of CERCLA, applies to § 9613(f) contribution actions

for both past and future response costs. In Boeing Co. v. Cascade

Corp., the Ninth Circuit said:

CERCLA was intended to encourage quick response and to place the costs on those responsible. Declaratory relief serves these purposes because parties, like those in this case, will know their share of costs before they are incurred . . . . The costs and time involved in relitigating issues as complex as these where new costs are incurred would be massive and wasteful. Declaratory relief allocating future costs is therefore consistent with the broader purposes of CERCLA.

207 F.3d at 1191; see also Tosco Corp., 216 F.3d at 897 ("[W]here, as

here, a responsible party chooses to go to trial and future response

costs are likely to be incurred, but the exact amount remains unknown,

- 79 - a judgment on proportional liability is an appropriate remedy.").43 We

agree with these rationales. As the district court said, in this case

"allocation helps to alleviate the hardship that would be visited upon

the [PRP] seeking contribution if that PRP was, in effect, required to

finance the entire cleanup operation before getting a determination

regarding the shares attributable to the other PRP's." Davis IV, 31 F.

Supp. 2d at 58.

Since we find that § 9613(g)(2) applies to § 9613(f)

contribution actions for both past and future response costs, we need

not address in detail the appellants' arguments that the district

court's entry of a declaratory judgment was improper under the

Declaratory Judgment Act because there was no case or controversy

permitting the court to act. We address the arguments only because

they apply, at least by implication, to the availability of declaratory

relief under § 9613(g)(2).

First, the appellants say that there was no controversy

between the parties, as the Act requires, because UTC did not prove

that it would pay more than its fair share of cleanup costs. They

argue that UTC cannot prove that it is likely to pay more than its fair

43Other courts have also reasoned that declaratory relief furthers CERCLA's goals in finding that the entry of such relief is mandatory in § 9607 cost recovery actions. See Dent v. Beazer Materials & Servs., Inc., 156 F.3d 523, 532 (4th Cir. 1998); Kelley v. E.I. DuPont De Nemours & Co., 17 F.3d 836, 844 (6th Cir. 1994) ("The fact that future costs are somewhat speculative is no bar to a present declaration of liability.") (internal quotation marks omitted).

- 80 - share of cleanup costs because it began incurring those costs only

shortly before trial and offered no evidence about the amount of those

costs.

The Declaratory Judgment Act provides: "In a case of actual

controversy within its jurisdiction . . . any court of the United

States, upon the filing of an appropriate pleading, may declare the

rights and other legal relations of any interested party seeking such

declaration, whether or not further relief is or could be sought." 28

U.S.C. § 2201. Here, the district court observed:

the premise underlying UTC's request for a judgment 'determining . . . the equitable contribution share of liability for the site properly allocated to each [party]' is that, at some time in the future, it is likely that UTC will be required to pay more than its fair share of the alleged common liability; and, therefore, that it will be entitled to contribution from the defendants.

Davis IV, 31 F. Supp. 2d at 58 (alterations in original). For the

principle that a PRP seeking contribution must prove that it has paid

more than its fair share, the court relied on United Tech. Corp. v.

Browning-Ferris Indus., Inc., 33 F.3d 96, 100 (1st Cir. 1994) (holding

that CERCLA allows a non-innocent party bringing a § 9613(f) action

"only to seek recoupment of that portion of his expenditures which

exceeds his pro rata share of the overall liability--in other words, to

seek contribution rather than complete indemnity"). The district court

set UTC's share as 1.54 percent of the total waste at the Davis site

- 81 - based on the volume of its waste established by the evidence. See

Davis IV, 31 F. Supp. 2d at 67. The court translated this 1.54 percent

liability share into $754,600, using an estimate of $55 million for

total cleanup and enforcement costs. See id. at 69. Reasoning that

UTC was bound by the proposed consent decrees to pay at least $10.35

million, the court found that UTC had necessarily incurred more than

its fair share of cleanup costs.44 See id.

The appellants' argument to the contrary fails for the same

reasons that led us to reject the argument that the district court had

no authority to enter a consent decree. UTC's agreement in Consent

Decree I to make a cash payment and perform the soil remediation

created a fixed obligation subject only to the court's approval. UTC

did not have to actually make the payments to which it agreed to show

that it was liable for more than its fair share of the total costs of

cleanup. The ongoing nature of the work and the fact that its ultimate

cost was not known at trial did not affect the district court's ability

to consider the evidence that other PRPs contributed to the waste in

the soil, and to determine whether some of UTC's costs should thus be

allocated to them.

The appellants also argue that there is no case or

44The court reached this figure by deducting the amounts that UTC can recoup from other PRPs pursuant to the other partial consent decrees from the $16.8 million it agreed to pay pursuant to Consent Decree I. We note without resolving the issue that the government sets UTC's minimum payment at $9.3 million.

- 82 - controversy between the parties because UTC has not extinguished their

entire liability. As we have discussed, the partial consent decrees do

not cover an estimated $21.7 million of the government's projected

response costs. Because the government can still seek to recover those

costs from them, the appellants argue that "[p]ermitting UTC to recover

from the defendants under these circumstances would expose the

defendants to the CERCLA equivalent of 'double jeopardy.'" In support

of their position, the appellants cite United Techs. Corp., which

defined the term "contribution" as "a claim by and between jointly and

severally liable parties for an appropriate division of the payment one

of them has been compelled to make." 33 F.3d at 99 (internal quotation

marks omitted).

The appellants' argument that UTC is not entitled to

contribution because it has not extinguished the appellants' entire

liability fails in light of the plain language of § 9613(f):

A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. . . . A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement referred to [above].

42 U.S.C. § 9613(f)(2) & (3)(B) (emphasis added). CERCLA clearly

anticipated that some settlements, like the one in this case, would

- 83 - cover only a portion of the total cleanup costs for a hazardous waste

site. The statute does not impose a requirement that a contribution

action plaintiff must settle the entire cost of cleaning up a site

before it can seek contribution.

The appellants' complaint that they may bear a

disproportionate share of the total liability if the government chooses

to bring further proceedings against them is part of the risk they

assumed in choosing not to settle. As we have said before:

CERCLA seeks to provide EPA with the necessary tools to achieve prompt cleanups. One such tool is the ability to foster incentives for timely settlements. To this end, 42 U.S.C. § 9613(f)(2) provides that a party who settles with the government 'shall not be liable for claims for contribution regarding matters addressed in the settlement.' Because only the amount of the settlement, not the pro rata share attributable to the settling party, is subtracted from the aggregate liability of the nonsettling parties, section 9613(f)(2) envisions that nonsettling parties may bear disproportionate liability. This paradigm is not a scrivener's accident. It was designed to encourage settlements and provide PRPs a measure of finality in return for their willingness to settle.

United Techs. Corp., 33 F.3d at 102-03 (citations and internal

quotation marks omitted); see also Charles George, 34 F.3d at 1086

("non-settling defendants . . . are potentially liable for the full

difference between the costs of cleanup and the total amount paid by

the settling PRPs"). While our precedents on CERCLA consent decrees

are attentive to the fairness of the settlements for settling versus

- 84 - non-settling PRPs, they do not go so far as to protect PRPs who choose

not to settle from the consequences of non-settlement imposed by CERCLA

itself. See Charles George, 34 F.3d at 1088. In sum, the district

court's entry of a declaratory judgment was proper.

6. Morton's Liability

The district court found Morton International liable for

hazardous waste dumped by Thiokol Corporation Chemical Division

(Thiokol) at the Davis site. For purposes of this case, Morton has

stipulated that it is a successor to Thiokol's liabilities.

a. Claims of Clearly Erroneous Factual Findings

Morton's liability, unlike that of other parties whose waste

was hauled by CWR, depends on the court's findings about the waste

practices of CCC. Thiokol was one of the approximately 130 companies

from whom CCC collected waste during 1976 and 1977. Reasoning that

since CCC made 47 deliveries to Davis, and since "there is no reason to

believe that CCC handled Thiokol's waste any differently than the waste

of its other 130 customers," the district court found that Thiokol's

waste went to the Davis site, and thus found Morton liable as an

arranger. Davis IV, 31 F. Supp. 2d at 55. However, because there was

no evidence regarding the volume of Thiokol's waste transported by CCC,

or the volume of waste from other customers that CCC transported to the

Davis site, the court concluded that it was unable to allocate to

- 85 - Morton a share of the cleanup costs.45 See id.

We begin with the evidence about CCC's practices. CCC was

located in Elizabeth, New Jersey and was owned and operated by William

Carracino. Carracino testified that CCC began sending waste to Rhode

Island in 1977, initially to Sanitary Landfill. Beginning in May, the

Capuanos began diverting the CCC waste to the Davis site, and the CCC

drivers proceeded straight there without stopping first at Sanitary

Landfill. CCC continued to bring waste to the Davis site until

September, when Davis refused to accept the waste and seized CCC's

truck because CCC was overdue in its payments. Based on the 47 trips

CCC made to the Davis site between May and the first week of July, and

the volume of waste transported during those weeks, the district court

estimated that CCC delivered a total of 441,450 gallons of waste to the

Davis site. Testimony by Carracino and CCC driver John Mayo about

these trips to Rhode Island was corroborated by toll receipts and petty

cash vouchers.

CCC began collecting Thiokol's waste in 1971. This waste,

generated by three separate plants in New Jersey, averaged

approximately 22,000 gallons per year. Much of the waste was

identified on shipment forms prepared by Thiokol simply as

45As became clear at oral argument, Morton still appeals because of its concern that the government will use the judgment of liability in this case to pursue a § 9607 action for the cost of the groundwater and well remediation that remains unallocated.

- 86 - "miscellaneous chemical waste." Testimony by a former Thiokol employee

indicated that Thiokol did not separate its waste. In particular,

Thiokol did not separate its chlorinated waste until 1979. The waste

was disposed of primarily in 55-gallon drums, but Thiokol used drums of

smaller sizes, as well as 5-gallon pails. The waste contained

flammable liquids and spent solvents, including methylene chloride,

methyl ethyl ketone (MEK), and 1,1,1-TCA, all of which were found at

the Davis site. Other waste picked up on a more occasional basis

included urethane, filter cakes used in producing plasticizers, and

lubricating oil.

CCC handled waste it collected in a variety of ways. It sold

some liquid waste to salvagers, burned some of the flammable liquids in

an incinerator on the Elizabeth site, transported waste to various dump

sites, and stored some waste on the premises for future disposal.

Carracino testified that solid waste, polymers, and sludges were sent

straight from CCC to disposal sites because of their tendency to clog

the incinerator. CCC employee John Prahm, who operated the

incinerator, corroborated that testimony. Waste shipment forms confirm

that CCC picked up polymers from Thiokol.

Evidence at trial indicated that CCC's incinerator did not

effectively destroy many chemicals -- particularly chlorinated waste --

because it did not operate at a sufficiently high temperature. An

expert witness testified that the incinerator produced a sludge or

- 87 - residue, which was itself a hazardous waste, because of this

inefficient operation. Prahm testified that this residue from the

incinerator was placed in drums for disposal. Evidence regarding

Thiokol's disposal practices supports an inference that some of its

flammable waste likely went to the Davis site as residue from the

incinerator. More specifically, Thiokol did not separate chlorinated

waste from unchlorinated waste, and chlorinated waste was not

effectively destroyed in the incinerator because it required a higher

temperature. Thus, we cannot conclude that the district court erred in

finding that at least some of Thiokol's waste "consisted of flammable

solvents that probably were incinerated," Davis IV, F. Supp. 2d at 55,

and that because there is no basis for finding that Thiokol's waste was

treated differently from other waste at CCC, the hazardous residue

produced by the incineration of such waste was likely placed in drums

and transported to the Davis site.

Thiokol's disposal of waste in 5-gallon pails further

supports the district court's finding of liability. UTC offered the

deposition testimony of a former Thiokol employee, Melvin Schulman,

that Thiokol disposed of some liquid waste in spring-top, 5-gallon

cans. Waste shipment forms indicate that CCC picked up these cans for

disposal. A notation on at least one cancelled check drawn on CCC's

account reads "5 gal. pails to RI, 6/8/77." Carracino confirmed in his

deposition testimony that the notation was in his writing and that the

- 88 - check was payment for dumping waste. Davis also testified at trial

that he recalled receiving loads of waste in which 5-gallon pails,

containing liquid waste, had been transported to his site on top of 55-

gallon drums. Davis specifically recalled that these shipments came

from New Jersey. While the testimony regarding these 5-gallon pails

does not establish conclusively that Morton's waste was dumped at the

Davis site, the district court was not clearly erroneous in crediting

this testimony and considering it part of the evidence tending to

establish that it was more probable than not that Morton's hazardous

waste was shipped by CCC to the site.

Morton argues that "the mere presence of 1,1,1-TCA in

Morton's waste and its presence at the Davis site does not, without

more, establish that Morton's waste was located at the Davis site."

However, the district court did not base its finding that Morton was

liable solely on the presence of that chemical at the site. Rather,

the district court inferred from other evidence that Thiokol's waste

was taken to the Davis site and noted that such an inference "finds

some support" in the fact that the chemical was found at the site.

Davis IV, 31 F. Supp. 2d at 55.

b. Claims of Legal Error

Morton argues that the district court improperly shifted the

burden of proof to Morton, requiring it to show that it had not dumped

waste at the Davis site, rather than requiring UTC to prove each

- 89 - element of its claim for contribution. Morton cites New Jersey

Turnpike Auth. v. PPG Indus., Inc., 197 F.3d 96, 105 (3d Cir. 1999) for

the proposition that UTC "must offer some proof that [the defendants]

deposited, or caused the disposal of, [the waste] at each of the sites

at issue in this case." Morton seems to construe this requirement of

"some proof" as a requirement for direct, not circumstantial proof.

However, for reasons explained above, UTC introduced adequate

circumstantial evidence that Thiokol deposited waste at the Davis site.

That circumstantial evidence distinguishes this case from New Jersey

Turnpike Authority, where the plaintiff introduced no evidence

regarding the transporters the defendants may have used and relied only

on "the conceded large scale production of [the waste] by the

appellees, the need for its local disposal, the proximity of the

appellees' production facilities to the sites at issue, and the use of

this material as fill over the years." Id. at 109. Here, UTC

introduced evidence of Thiokol's production of hazardous waste, CCC's

records regarding pickups of waste and deliveries to the Davis site,

and CCC's practices in handling different kinds of waste. We do not

agree with Morton that the district court engaged in an improper

burden-shifting analysis in finding, based on this evidence, that some

of Thiokol's waste was dumped at the Davis site.

Finally, Morton argues that it was impermissible for the

district court to find it liable as an arranger because the court

- 90 - declined to allocate to Morton a specific share of responsibility.

However, Acushnet, 191 F.3d 69, precludes this argument. Acushnet

emphasizes the broad discretion of a district court in allocating

responsibility: "A court, in evaluating contribution claims under §

9613(f), is 'free to allocate responsibility according to any

combination of equitable factors it deems appropriate.'" Id. at 78

(quoting O'Neil v. Picillo, 883 F.2d at 183). The district court here

found that "the fairest, and most practical, measure of relative

responsibility is the quantity or volume of hazardous waste

attributable to each party." Davis IV, 31 F. Supp. 2d at 64. Because

there was no way to calculate the volume of waste Thiokol dumped at the

Davis site, the court declined to allocate a share of responsibility to

Morton. This determination was well within the district court's broad

discretion.

Morton argues that the district court's decision not to

allocate a share of responsibility to Morton should have compelled a

finding that Morton was not liable because Thiokol's waste could not be

located and identified at the Davis site.46 However, as we have noted,

we said in Acushnet that there is no minimum quantity threshold for

imposing liability on polluters, 191 F.3d at 76, adding that "[i]n an

46Morton also claims that the district court erred in finding liability without applying a standard of "locating and identifying" its waste at the Davis site. We have already rejected an interpretation of § 9613(f) that would require an arranger's waste to be specifically located at the Davis site with direct evidence.

- 91 - appropriate set of circumstances, a tortfeasor's fair share of the

response costs may even be zero, id. at 78. The district court's

decision not to allocate responsibility to Morton is consistent with

Acushnet, and Morton has not even attempted to explain why the

principles of that opinion should not apply here.

7. Successor-in-Interest Liability for Gar

Black & Decker ("B & D") argues that the district court erred

in finding that it, rather than Electroformers, Inc., is Gar's

corporate successor-in-interest and thus liable for Gar's disposal of

waste at the Davis site. Gar's corporate history is as follows. In

1977, MITE Corporation owned Gar Electroforming Division, the

manufacturing facility in Danbury, Connecticut that generated the

hazardous waste disposed of at the Davis site. In November 1978, MITE

agreed to sell Gar's assets to Electroformers, Inc., which had

incorporated a month earlier. The Asset Purchase Agreement signed by

the parties in January 1979 provided that Electroformers would buy

certain accounts receivable, furniture, fixtures, machinery, equipment,

trademarks and trade names, business records, inventory and customer

lists. Electroformers used the name "Gar Electroformers Division" for

a time after the sale, subleased the Danbury facility from MITE, and

continued to make the same product with the same manufacturing process

and to use the same employee pension plan. MITE agreed not to compete

with Electroformers in its area of business for ten years. The Asset

- 92 - Purchase Agreement provided that the "[b]uyer will not assume any of

the liabilities of the Gar Electroforming Division existing on the date

of the closing and MITE agrees to defend any claims relating thereto

presented against Buyer and to save Buyer harmless from any such

claims." MITE also represented that, to its knowledge, it was not in

violation of any environmental or pollution-related law or ordinance.

In 1985, the Emhart Corporation bought MITE. In 1989, B & D acquired

Emhart, which continues to exist as B & D's wholly owned subsidiary.

UTC sued both B & D and Electroformers for contribution as

Gar's successor-in-interest. Both defendants filed motions for summary

judgment. The district court referred to a magistrate judge the

question of which entity, B & D or Electroformers, should be liable as

Gar's successor. The magistrate judge discussed the choice between the

state law and federal common law tests for determining corporate

successor liability, and found that B & D was liable under either

analysis because Electroformers bought Gar's assets from MITE through

a true assets purchase agreement. The district court adopted this

recommendation.

On appeal, B & D argues that the federal common law

"substantial continuation" test should determine corporate successor

liability under CERCLA, and that Electroformers should be found liable

using this test. Electroformers and UTC47 argue that Connecticut's

47 UTC took the opposite position before the district court.

- 93 - "mere continuation" test should apply,48 and that Electroformers should

not be found liable using either the "substantial continuation" or the

"mere continuation" tests. We begin with the choice of law question,

which we review de novo. See Kukias v. Chandris Lines, Inc., 839 F.3d

860, 861 (1st Cir. 1988).

The "mere continuation" test is an exception to the common

law rule that the buyer of a corporation's assets (as opposed to its

stock) does not incur liability for the divesting corporation's debts.

See Ed Peters Jewelry Co. v. C & J Jewelry Co., 124 F.3d 252, 266 (1st

Cir. 1997). The test is designed to protect creditors from sales that

seek to evade valid claims. See id. Successor liability is an

equitable doctrine, and courts traditionally consider five factors: (1)

the divesting corporation's transfer of assets; (2) payment by the

buyer of less than fair market value for the assets; (3) continuation

by the buyer of the divesting corporation's business; (4) a common

officer of the buyer and divesting corporations who was instrumental in

the transfer; and (5) inability of the divesting corporation to pay its

debts after the assets transfer. See id. at 268.

The federal "substantial continuation" test, which has been

adopted in past cases by a few circuits, see B.F. Goodrich v. Betkoski,

99 F.3d 505, 519 (2d Cir. 1996); United States v. Carolina Transformer

48The Asset Purchase Agreement calls for application of Connecticut law, and the parties do not argue that another state's law should apply.

- 94 - Co., 978 F.2d 832, 837 (4th Cir. 1992), requires courts to consider

eight factors: "(1) retention of the same employees [by the buyer]; (2)

retention of the same supervisory personnel; (3) retention of the same

production facilities in the same location; (4) production of the same

product; (5) retention of the same name; (6) continuity of assets; (7)

continuity of general business operations; and (8) whether the buyer

holds itself out as a continuation of the" divesting corporation,

Carolina Transformer Co., 978 F.2d at 838. In general, before creating

a federal rule courts must consider whether federal interests require

a nationally uniform body of law, whether applying state law would

frustrate or conflict with a specific federal objective, and the extent

to which a federal rule would disrupt commercial relationships

predicated on state law. See United States v. Kimbell Foods, Inc., 440

U.S. 715, 728-29 (1979). In adopting the "substantial continuation"

test, courts have cited CERCLA's "broad remedial purpose" and the

"importance of national uniformity." See B.F. Goodrich, 99 F.3d at

519; Carolina Transformer Co., 978 F.2d at 837.

Other courts, however, have rejected the need for a federal

test. See, e.g., Redwing Carriers, Inc. v. Saraland Apartments, 94

F.3d 1489, 1501-02 (11th Cir. 1996); City Mgmt. Corp. v. U.S. Chem.

Co., Inc., 43 F.3d 244, 253 n.12 (6th Cir. 1994). These cases heed the

Supreme Court's warnings that courts should presume that matters left

unaddressed are subject to state law when a "comprehensive and

- 95 - detailed" federal statutory regime is at issue, and that cases in which

the creation of a "special federal rule would be justified" generally

are "few and restricted." See O'Melveny & Meyers v. Fed. Deposit Ins.

Corp., 512 U.S. 79, 85 & 87 (1994).

We have concluded that the majority rule is to apply state

law "so long as it is not hostile to the federal interests animating

CERCLA," and have applied Massachusetts contracts law to determine an

issue of successor liability. John S. Boyd Co., Inc. v. Boston Gas

Co., 992 F.2d 401, 406 (1st Cir. 1993). Recent Supreme Court precedent

confirms that Boyd's approach is correct. The Court applied state

corporation law in a recent CERCLA case involving the potential

liability of a parent corporation for its subsidiary and left little

room for the creation of a federal rule of liability under the statute.

See United States v. Bestfoods, 524 U.S. 51, 63 (1998) ("CERCLA is . .

. like many another congressional enactment in giving no indication

that the entire corpus of state corporation law is to be replaced

simply because a plaintiff's cause of action is based upon a federal

statute.") (internal quotation marks omitted). The Court's statements

in Bestfoods and O'Melveny demonstrate that to justify the creation of

a federal rule, "there must be a specific, concrete federal policy or

interest that is compromised by the application of state law."

Atkison, Topeka & Santa Fe Railway Co. v. Brown & Bryant, Inc., 159

F.3d 358, 363-64 (9th Cir. 1998) (internal quotation marks omitted).

- 96 - We see no evidence that application of state law to the facts of this

case would frustrate any federal objective. Connecticut's "mere

continuation" test thus is the correct test for determining successor

liability for the hazardous waste disposed by Gar.

In applying the "mere continuation" test, the magistrate

judge recommended successor liability for B & D rather than

Electroformers based on the following facts: (1) MITE and

Electroformers did not share a common officer or director who was

involved in the transfer; (2) MITE received fair compensation for Gar;

(3) MITE continued to operate its other businesses; (4) MITE remained

financially viable.49 B & D did not challenge these factual findings,

but objects to the magistrate's conclusion that Electroformers

purchased Gar's assets through a true asset purchase agreement on the

grounds that Electroformers shared certain commonalities with Gar and

essentially continued its business. In support of this position, B &

D notes that Electroformers made the same product that Gar made when

MITE owned it, employed the same supervisory employees, used the same

production facility and the same customer base, and initially operated

under Gar's name.

The facts emphasized by B & D do not outweigh those cited by

the magistrate judge to support the finding that Electroformers merely

49The magistrate judge also found B & D liable under the federal law "substantial continuation" test. Because we apply the state law test, we do not reach this issue.

- 97 - bought Gar's assets from MITE. MITE's receipt of fair compensation for

the Gar division and the lack of common officers and directors between

the two entities indicate that its sale of Gar's assets to

Electroformers was an arms-length deal. Moreover, MITE continued as a

financially viable business following the sale, leaving little reason

to except it from the rule that successor liability does not transfer

when one company buys another's assets. See Ricciardello v. J.W. Gant

& Co., 717 F. Supp. 56, 59 (D. Conn. 1989) ("A sale of assets by one

corporation to another, in good faith and for valuable consideration,

does not impose any liability on the buyer for the debts of another.")

(citing Davis v. Hemming, 127 A. 514, 518 (Conn. 1925)). The district

court did not err in adopting the magistrate judge's recommendation

imposing successor liability on B & D rather than Electroformers.50

8. UTC's Appeal

a. The Judgment in Favor of Macera

After UTC rested its case, the district court rendered a

bench decision granting judgment as a matter of law pursuant to Fed. R.

Civ. P. 52(c) in favor of BFI and Macera. Macera Brothers Container

50B & D also argues that the magistrate judge's recommendation of successor liability for B & D rather than for Electrofomers conflicts with the magistrate judge's recommendation of successor liability for BFI, the purchaser of Macera. Since the district court did not adopt the magistrate judge's recommendation of liability for BFI, any disparity between the two recommendations, if there is one, lacks legal significance.

- 98 - Service, Inc.51 hauled waste to various facilities for disposal.

Michael Macera and Robert Cece were two principals in the corporation.

BFI Waste Systems of North America, Inc. is in this action only as

successor to Macera.52

The court explained its reasons for the judgment in a written

memorandum and order after the trial concluded. See Davis III, 20 F.

Supp. 2d at 329.53 UTC appeals this ruling on two grounds. First, UTC

claims that it proved Macera was liable as a transporter under CERCLA.

Second, UTC argues that it proved Macera was liable as an arranger of

hazardous waste, and that its claim of liability on this theory was

timely asserted. Finally, BFI argues that if this Court finds that the

district court erred in granting the judgment in favor of BFI and

Macera, BFI is still not liable because it is not Macera's corporate

successor. For the reasons that follow, we affirm the district court's

judgment on partial findings in favor of BFI and do not reach BFI's

51Macera Brothers Container Service, Inc. changed its name to Macera Disposal, Inc. in 1984. In 1987, Macera Disposal was merged into M & C Enterprises, Inc. BFI purchased the assets of M & C Enterprises in July 1987. 52We will refer collectively to Macera Brothers Container Service, Michael Macera, Robert Cece, and BFI as "Macera" when discussing the claims regarding transporter and arranger liability. 53We review for clear error the factual findings made as part of the district court's judgment on partial findings. "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous." Fed. R. Civ. P. 52(a) (emphasis added). See also Touch v. Master Unit Die Prods., Inc., 43 F.3d 754, 757 (1st Cir. 1995).

- 99 - claim regarding successor liability.

1. Transporter Liability

CERCLA imposes transporter liability on "any person who

accepts or accepted any hazardous substances for transport to disposal

or treatment facilities, incineration vessels or sites selected by such

person" from which there is a release of hazardous substances. 42

U.S.C. § 9607(a)(4) (emphasis added). Noting that the statute itself

does not define the term "selected," the district court in this case

stated: "a person 'selecting' a site is a person who chooses that site

from a group of possible sites." Davis III, 20 F. Supp. 2d at 333.

Adopting a standard of "[a]ctive and substantial participation," the

court ruled that "determining whether, or to what extent, a transporter

made or actively participated in the site selection decision turns on

the nature of the dealings between the transporter and the generator."

Davis III, 20 F. Supp. 2d at 333-34. The court found that UTC had

failed to present sufficient evidence regarding the negotiations

between Macera and the generators for whom it hauled waste. Moreover,

because there was evidence that some of the waste hauled by Macera came

from UTC, the court found that UTC should have presented evidence

regarding its own dealings with Macera in order to prove that Macera

actively participated in the selection of the Davis site for UTC's

waste. See Davis III, 20 F. Supp. 2d at 334.

The district court applied the correct legal standard in

- 100 - determining whether Macera is a transporter under CERCLA. See Tippins

Inc. v. USX Corp., 37 F.3d 87, 94 (3d Cir. 1994). In Tippins, the

court stated:

[W]e believe that a person is liable as a transporter not only if it ultimately selects the disposal facility, but also when it actively participates in the disposal decision to the extent of having had substantial input into which facility was ultimately chosen. . . The substantiality of the input will be a function, in part, of whether the decisionmaker relied upon the transporter's special expertise in reaching its final decision.

37 F.3d at 94-95 (citation omitted). See also B.F. Goodrich, 99 F.3d

at 520; United States v. USX Corp., 68 F.3d 811, 820 (3d Cir. 1995).

In contrast to a transporter who actively participated in the selection

of a site, Tippins described circumstances where a transporter that

merely followed the orders of a generator would not be liable:

We emphasize that for liability to attach, a transporter must be so involved in the selection process that it has substantial input into the disposal decision. A transporter clearly does not select the disposal site merely by following the directions of the party with which it contracts. . . . In such cases, the transporter is no more than a conduit of the waste and its connection with the material is the most attenuated among potentially responsible parties. . . . Congress intended such transporters to avoid liability.

37 F.3d at 95 (citations and internal quotation marks omitted). See

also Interstate Power Co. v. Kansas City Power & Light Co., 909 F.

Supp. 1284, 1289 (N.D. Iowa 1994) (granting summary judgment to party

- 101 - alleged to be a transporter where evidence showed the party had no

discretion in hauling waste to the site but merely followed the orders

of a waste generator). Thus, Tippins distinguishes between

transporters that actively participate in the selection decision or

have substantial input in that decision, and transporters that merely

follow the directives of the generator. UTC has not explained why we

should not follow the approach in Tippins. Accordingly, we examine the

facts to determine whether the district court was clearly erroneous in

concluding that Macera did not actively participate in the decision to

transport waste to the Davis site.

The only evidence of Macera's participation in selecting the

Davis site was the testimony of William Davis regarding his dealings

with Robert Cece. Davis testified that he had known Cece for a long

time, and that Cece visited the site on one occasion to discuss the

possibility of dumping waste there. Davis also stated that he was paid

by Macera for this dumping. The following excerpt from the district

court's opinion summarizes its reasoning regarding the inferences that

could be drawn from this evidence:

The fact that Cece approached Davis and made arrangements to dump at the Site could support a reasonable inference that Cece actively and substantially participated in the selection of the Site. On the other hand, it also would be reasonable to infer that Cece was acting at the direction of UTC, the generator of the waste. Ordinarily, the former inference might be more plausible. However, under these circumstances, its plausibility is eroded by the dearth of

- 102 - evidence regarding the dealings between the Macera defendants and UTC.

Davis III, 20 F. Supp. 2d at 334. The district court's determination

on this matter is essentially a refusal to choose between two equally

plausible inferences where there is no reason to support one inference

over the other. Because rulings under Rule 52(c) are reviewed for

clear error, see Fed. R. Civ. P. 52(a), we defer to the district

court's decision not to draw any inference.

In an attempt to evade the clear error standard of review for

factual findings of the district court, UTC claims that the district

court made an error of law by impermissibly drawing an adverse

inference regarding UTC's failure to present evidence of its

negotiations with Macera about the hauling of its waste. UTC quotes

the following language from the court's written opinion in support of

this claim:

Since evidence of the dealings between UTC and the Macera defendants was readily available to and under the control of UTC, UTC's failure to present that evidence or to explain why it was unable to do so, gives rise to an inference that the evidence would have been unfavorable to UTC. . . . In short, the absence of evidence regarding the Macera defendants' dealings with UTC and the fact that such evidence was within UTC's control cause this Court to find that UTC has failed to establish that Macera Brothers 'selected' the Davis Site.

Davis III, 20 F. Supp. 2d at 334 (citation omitted). The case cited by

the district court in support of this inference provides that two

- 103 - conditions must be satisfied before an adverse inference about the non-

production of evidence may be drawn. See Commercial Ins. Co. v.

Gonzalez, 512 F.2d 1307, 1314 (1st Cir. 1975). The evidence must be

"specially available" to the non-producing party, and that party must

have "had some reason to suppose that non-production would justify the

inference." Id. UTC argues that "specially available" means evidence

within its control but not within the control of Macera. Thus, UTC

claims that the inference cannot apply in this case because Macera also

has knowledge of any negotiations between Macera and UTC regarding the

disposal of UTC's waste. Cf. Kean v. Comm'r of Internal Revenue, 469

F.2d 1183, 1187 (9th Cir. 1972) ("Where a potential witness is equally

available to both parties, no inference should be drawn from the

failure of a party to call such witness.").

We conclude that UTC, with its reliance on the "adverse

inference" argument, misses the essential point of the district court's

analysis. The district court expressed its concern over UTC's overall

failure to present any evidence whatsoever about Macera's relationship

with generators -- both UTC and other unidentified parties -- for whom

it hauled waste. Several paragraphs before discussing the inference

drawn against UTC, the court stated: "UTC has failed to present

sufficient evidence regarding those dealings [between Macera and

generator defendants] to sustain its burden of proving that Macera

Brothers 'selected' the Davis Site." Davis III, 20 F. Supp. 2d at 334.

- 104 - The district court's conclusion about the insufficiency of the evidence

at this point in its analysis makes the propriety of the adverse

inference irrelevant. The court found against UTC simply because UTC

failed to meet its burden of proof. In light of that finding, any

adverse inference that might be drawn from UTC's failure to produce

evidence of its own negotiations with Macera was not necessary to the

district court's conclusion. We conclude, therefore, that the district

court did not rely improperly on an adverse inference and affirm its

finding that UTC did not present sufficient proof that Macera selected

the Davis site.

2. Arranger Liability

UTC also argues that it proved that Macera was liable as an

arranger of waste under CERCLA. Macera claims that UTC's assertion of

an arranger claim is untimely. In the 1991 third-party complaint

originally naming Macera as a defendant, UTC alleged only that Macera

was liable as a transporter of waste. The district court entered a

case management and scheduling order in December 1995 providing that

"[a]ll cross-claims and counterclaims are deemed made and denied,

except that contractual claims for indemnity must be specifically

plead." The order also specified that amendments to third-party

complaints had to be filed before January 2, 1996.

After the case was transferred to Chief Judge Torres, he

entered an order in January 1998 providing:

- 105 - On December 14, 1995, an order was entered providing that all parties were deemed to have asserted claims, cross-claims and counterclaims against all other parties for contribution and/or indemnity without the need for specifically pleading such claims.

Whereas it is impossible to determine what parties, in fact, are asserting such claims, the nature of any such claims or the basis for any such claims . . .

it is hereby ORDERED that on or before February 15, 1998, each party asserting a claim, cross- claim or counterclaim for contribution and/or indemnity shall, if such party has not already done so, file and serve pleadings setting forth such claim. Such pleadings shall specify the precise nature and basis of each claim asserted.

Relying on that order, UTC filed an amended third-party complaint

against Macera, alleging for the first time that Macera was also liable

as an arranger. In its answer, Macera objected to this amendment as

untimely. For reasons that are unclear, the issue of whether UTC

timely pled an arranger claim against Macera was not resolved before

trial. However, the district court addressed this dispute during oral

argument on Macera's Rule 52 motion for judgment after UTC rested its

case. When UTC's lawyer first mentioned arranger liability, the

following exchange occurred:

THE COURT: Arranger didn't come into this until much later. There is nothing about, there is no arranger liability theory pled in the original complaint against Cece, was there?

UTC'S COUNSEL: There was no arranger liability pled in our original complaint. We did take

- 106 - advantage of Your Honor's invitation to correct the pleadings in [January].

THE COURT: Not correct the pleadings, not to correct the pleadings. Make it clear who was asserting claims against whom, that was the -

After additional discussion on the issue, the district court stated:

And I certainly don't think that the attempt to include the arranger theory in the specific claims that the Court required parties to assert just before the case went to trial, I don't think that that invitation or requirement that the parties plead their - let the Court know who they were asserting claims against constituted a license to amend the pleadings and raise new theories, and there is no question that arranger liability is significantly different from hauler liability.

Thus, the district court ruled that its order of January 1998 did not

authorize UTC to assert a belated claim of arranger liability. We

defer to this interpretation because the district court was uniquely

positioned to explain the meaning of its own pretrial order. See

Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked &

Abandoned Steam Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987) ("We

have noted before the special role played by the writing judge in

elucidating the meaning and intendment of an order which he

authored."); Lefkowitz v. Fair, 816 F.2d 17, 22 (1st Cir. 1987)

("[U]ncertainty as to the meaning and intendment of a district court

order can sometimes best be dispelled by deference to the views of the

writing judge."). We reject UTC's argument that the order authorized

it to amend its complaint.

- 107 - Next, UTC argues that the district court erred in denying UTC

permission to amend its complaint to conform to the evidence offered at

trial. "When issues not raised by the pleadings are tried by express

or implied consent of the parties, they shall be treated in all

respects as if they had been raised in the pleadings." Fed. R. Civ. P.

15(b). "Such late pleading amendments may be allowed under Rule 15(b)

at the discretion of the court, but only to the extent that the party

opposing the amendment will not be unduly prejudiced." Campana v.

Eller, 755 F.2d 212, 215 (1st Cir. 1985) (emphasis added). Where the

party seeking amendment of the pleadings has shown no justification for

its delay in doing so, we have affirmed the trial court's ruling to

deny the amendment. See id. at 216. UTC has not even attempted to

explain its failure to amend the pleadings at an earlier date.

Still, UTC argues that we should reverse the district court's

determination on this issue because Macera did not suffer prejudice as

a result of UTC's untimely pleading of the arranger claim. UTC insists

that "the evidence admitted to prove 'transporter' liability was no

different than the proof that established 'arranger' liability."

However, any lack of prejudice to Macera is irrelevant because the

district court gave other reasons for its ruling. We consider

prejudice to the non-moving party as one factor to be weighed in

permitting an untimely amendment to the pleadings. See, e.g., Campana,

755 F.2d at 215. In other words, a finding that the non-moving party

- 108 - would not be prejudiced by an untimely amendment does not compel a

determination that the amendment is appropriate.

UTC also argues that Macera consented to being tried as an

arranger by failing to object to evidence tending to establish arranger

liability at trial. The district court rejected this claim, citing its

recollection that Macera had objected to the use of the term

"arranger." We affirm this determination. "Consent to the trial of an

issue may be implied if, during the trial, a party acquiesces in the

introduction of evidence which is relevant only to that issue." DCPB,

Inc. v. City of Lebanon, 957 F.2d 913, 917 (1st Cir. 1992) (emphasis

added). As just noted, UTC asserted that Macera would not be

prejudiced by a ruling that it consented to being tried as an arranger

because the evidence proving Macera's liability as an arranger of

hazardous substances was the same evidence proving Macera's liability

as a transporter. This argument about lack of prejudice forecloses

UTC's claim regarding trial by consent: "The introduction of evidence

directly relevant to a pleaded issue cannot be the basis for a founded

claim that the opposing party should have realized that a new issue was

infiltrating the case." Id. Where, as here, the evidence regarding

Macera's transport of waste to the Davis site was directly relevant to

transporter liability, and, according to UTC, arranger liability, we

find no error in the court's conclusion that Macera did not consent to

being tried on an arranger theory by not objecting to the admission of

- 109 - that evidence.54

b. The Judgment in Favor of the City of New Jersey

UTC brought a contribution claim against the City of New

Jersey (Jersey City) for disposing of approximately 2,000 drums

abandoned on a city pier and containing corrosive, toxic and flammable

substances found at the Davis site. The district court found Jersey

City immune from liability under § 9607(d)(2) of CERCLA, which provides

immunity for local governments from costs and damages resulting from

their emergency response to the potential release of hazardous

substances.55 See Davis III, 20 F. Supp. 2d at 335. On appeal, UTC

argues that the district court erred in applying § 9607(d)(2) by

failing to consider whether Jersey City voluntarily removed the 2,000

54Even if we concluded that UTC introduced evidence that was relevant only to prove that Macera was liable as an arranger, we agree with the district court's determination that Macera did not acquiesce to being tried on that theory. As the district court noted in its ruling from the bench, Macera objected to the use of the word "arranger" at least twice during the trial. 55 Section 9607(d)(2) provides:

No state or local government shall be liable under this Title for costs or damages as a result of actions taken in response to an emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another person. This paragraph shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the State or local government. For the purposes of the proceeding sentence, reckless, willful, or wanton misconduct shall constitute gross negligence.

42 U.S.C. § 9607(d)(2).

- 110 - drums.

The facts relating to Jersey City's waste disposal are not

disputed. On a night in February 1977, Jersey City police caught Perk

Chemical Company dumping waste at an abandoned city warehouse at a pier

on the Hudson River. After police discovered approximately 2,000 drums

of waste, the city secured the warehouse. City officials quickly

contacted the New Jersey Department of Environmental Protection (DEP),

which determined that the drums contained potentially explosive

hazardous chemicals that could cause serious environmental harm. Both

Jersey City and the New Jersey DEP agreed that the waste required

prompt disposal, but disputed who should finance the cleanup.

Two weeks later, the DEP obtained a judgment ordering Jersey

City to fund the cleanup. After contacting state-recommended

contractors and expediting the normal bidding process, the city quickly

hired a contractor to remove the waste. Within a few weeks all of the

waste was successfully removed from the warehouse. The contractor hired

by the city subcontracted with CCC to transport the waste for disposal.

UTC argues that the statute contains a requirement of

voluntary action that Jersey City did not satisfy because it only acted

to dispose of the drums after the state obtained a judgment ordering

the city to pay for the cleanup.56 We review the district court's

56UTC also argues that Jersey City is not exempt because it owned the pier warehouse in which the waste was dumped, meaning that the waste cannot be "from a facility owned by another person," as the

- 110 - application of § 9607(d)(2) de novo. See Rivera, 131 F.3d at 224. To

construe the statute, we look at its plain language. See id. If the

meaning of the language is clear, our inquiry need go no further.

See id. We construe the statutory language within the context of

CERCLA as a whole. See id. at 225; Conroy v. Aniskoff, 507 U.S. 511,

515 (1993) ("[T]he meaning of statutory language, plain or not, depends

on context.").

According to the plain language of § 9607(d)(2), state and

local governments are immune except in cases where their handling of

the waste amounts to "gross negligence or intentional misconduct."

Although UTC concedes that Jersey City was not grossly negligent and

did not engage in intentional misconduct, it argues that CERCLA's broad

remedial purpose requires us to read a voluntariness requirement into

the statute.

There is nothing in the plain language of § 9607(d)(2) that

supports UTC's argument. Indeed, UTC seeks to add to the statutory

language on policy grounds. There is no basis for doing so. This is

not the rare case in which applying the plain language of the statute

will produce an absurd or irrational result, Conservation Law Found. v.

Busey, 79 F.3d 1250, 1267 (1st Cir. 1996), or one that is "demonstrably

at odds with the intention of its drafters," United States v. Ron Pair

statute requires. 42 U.S.C. § 9607(d)(2). However, the statute also offers immunity if the hazardous waste at issue was "generated by . . . another person," as was the case here. Id.

- 110 - Enters., 489 U.S. 235, 242 (1989).57 We thus affirm the district

court's ruling that Jersey City is immune from liability under §

9607(d)(2).

c. The Government's $6 Million Enforcement Costs

UTC appeals the district court's apparent ruling that it is

solely responsible for $6 million in government enforcement costs,

arguing that the ruling is "insufficiently clear for purposes of the

application of estoppel and res judicata," and that there is no

competent evidence to support the conclusion that UTC caused all of the

government's enforcement costs. The appellants respond that the court

"properly exercised its discretion in allocating $6 million in

government enforcement costs to UTC," either based on equitable

contribution or divisibility principles, and that there is evidence in

the record to support this ruling.

The "enforcement costs" at issue are the government's

expenditures for litigating the cost recovery action against UTC and

the other original eight defendants through the Phase I trial against

57 Our application of the statute is consistent with the 6th Circuit's opinion in United States v. Cordova Chem. Co., 113 F.3d 572 (6th Cir. 1997), vacated on other grounds sub nom United States v. Bestfoods, 524 U.S. 51 (1998). In Cordova, the 6th Circuit found the Michigan Department of Natural Resources immune from liability under § 9607(d)(2) for the costs of a hazardous waste site cleanup. See id. at 582. We note that the facts of Cordova indicate that the Michigan department received immunity for an emergency response that was considerably less efficient and effective then Jersey City's here.

- 110 - UTC.58 The district court made two statements about UTC's

responsibility for these costs. In its September 28, 1998 judgment

based on partial findings, the court said:

In this case, calculating UTC's pro rata share of the total response costs requires that the enforcement cost component and the cleanup cost component be considered separately. The $6 million in enforcement costs is attributable, almost entirely, to the Phase I litigation between the government and UTC. The defendants did not participate in that phase of the litigation and it was necessitated because UTC denied that any of its waste was deposited at the Davis site. Accordingly, UTC bears 100% of the responsibility for those enforcement costs.

Davis III, 20 F. Supp. 2d at 338. The court also discussed the issue

of enforcement costs in its December 15, 1998 declaratory judgment,

saying:

It appears that the [$6 million] enforcement costs are attributable almost entirely to expenses incurred by the government in the Phase I litigation against UTC, and that, therefore, they should be borne entirely by UTC. However, that issue need not be decided in order to determine the likelihood that UTC will be required to pay more than its fair share.

58The parties do not contest that $6 million is an accurate estimate of the amount of the government's costs to that point. However, UTC argues that the precise figure for the costs -- $5,855,812.01, according to the government's written submission in support of entry of its consent decree with UTC and other settling parties -- as well as other evidence about who bears responsibility for these costs comes from the consent decree proceedings, and so is not part of the record in the declaratory judgment appeals. Because we remand to the district court for clarification, we do not reach this issue.

- 110 - Davis IV, 31 F. Supp. 2d at 69. The court denied UTC's motion seeking

amendment or clarification of these statements.

UTC argues that the "the equivocal language that the district

court used and the context of the issue it was deciding indicate it was

only engaging in a presumption, based on extra-record evidence, to test

whether it should issue declaratory relief." It asks us to construe the

court's statements as "argumentative presumptions without preclusive

effect."

We agree that the intended effect of the court's statements

is insufficiently clear. The court discussed UTC's responsibility for

the government's enforcement costs only in terms of its assessment of

whether UTC paid more than its fair share of the total response costs

for the Davis site. On the one hand, the court's initial statement

that "UTC bears 100% of the responsibility for those enforcement costs"

suggests that the court may have intended a ruling that obligates UTC

to pay the government $6 million on top of the payments agreed to in

the settlement. On the other hand, the court's later statement that

the issue of UTC's responsibility for the costs "need not be decided"

suggests that the court ultimately refrained from reaching this

question.

Moreover, it is not clear how the court's statements fit with

its other Phase I and Phase III rulings. Did the court intend merely

to restate the joint and several liability findings against UTC

- 110 - following the Phase I trial, which indisputably included liability for

an estimated $49 million in cleanup costs and $6 million in enforcement

costs?59 Or did the court intend to allocate the enforcement costs to

UTC, irrespective of the consent decree settlement and the finding that

UTC should bear 1.54 percent share of the total liability?

The appellants argue that an equitable allocation to UTC of

the government's enforcement costs would lie within the district

court's broad discretionary authority under CERCLA. See Acushnet, 191

F.3d at 77. However, we are not willing to assume that the court made

such a finding of causation or equitable allocation without a more

complete explication. As a result, we instruct the district court on

remand to explain the intended effect of its statements about UTC's

responsibility for the government's enforcement costs.60 In remanding

for clarification of this issue, we do not retain jurisdiction of the

case. See Clauson v. New England Ins. Co., 254 F.3d 331, 342 (1st Cir.

59By order of May 5, 1995, UTC was adjudged liable for "all unreimbursed costs that have been incurred by the United States of America related to the Davis Liquid Waste Site." 60This remand does not disturb the district court's finding that UTC paid more than its fair share of the total enforcement costs. As we have noted, the court translated UTC's 1.54 percent share of liability into $754,600 and said that UTC will pay the government at least $10.35 million after contribution is received from the settling third and fourth-party defendants. Thus "even if the $6 million in enforcement costs is viewed as an additional part of UTC's contribution threshold, the threshold clearly is exceeded by UTC's settlement obligation of at least $10.35 million." Davis IV, 31 F. Supp. 2d at 69.

- 110 - 2001).

IV. Conclusion

As a final note, we wish to acknowledge the district court's

careful attention to this unusually complex case. Its skillful

management of the case and its cogent decisions over many years

considerably aided our disposition of this ganglion of appeals.

For all of the reasons discussed herein, we affirm the

determinations of the district court, with the exception of that

concerning the issue of whether UTC is solely responsible for $6

million in government enforcement costs. On that issue, we remand for

a clarification of the district court's position. Each party is to

bear its own costs.

So ordered.

- 110 - APPENDIX I

A Roster of Parties, Principals, and Witnesses

Acco-Bristol: defendant found liable for dumping

Ashland: defendant found liable for dumping; also appeals the consent decrees

BFI: alleged to be corporate successor of Macera Brothers; won judgment on partial findings at the close of UTC's evidence

Black & Decker: found to be corporate successor of Gar

Anthony Capuano: principal of Sanitary Landfill

Jack Capuano: principal of Sanitary Landfill

William Carracino: principal of CCC

Robert Cece: principal of Macera Brothers

Chemical Control Corporation (CCC): waste hauler located in New Jersey

Chemical Waste Removal (CWR): waste hauler located in Connecticut

William Davis: owner of the Davis site

Electroformers: found not to be corporate successor of Gar

Johnny Granfield: driver for CWR

Wilbert Jones: driver for CWR

Macera Brothers: waste hauler that dumped at the Davis site; won judgment on partial findings at the close of UTC's evidence

John Mayo: driver for CCC

Morton: defendant found liable for the dumping of Thiokol; acknowledges successor

- 110 - liability for Thiokol

Emanuel Musillo: principal of CWR

Michael Musillo: principal of Drum Automation, CWR's corporate successor

City of New Jersey: won judgment on partial findings at the close of UTC's evidence

Perkin-Elmer (PE): defendant found liable for dumping

John Prahm: employee of CCC

Qualitron: corporation that dumped at the Davis site; PE acknowledges successor liability for Qualitron

Sanitary Landfill: landfill where CWR and CCC dumped waste before dumping at the Davis site

United Technologies Corporation (UTC): found liable in Phase I; sued third and fourth-party defendants in Phase III

- 111 - APPENDIX II

A Summary of Relevant Monetary Sums

Estimated Total Cost: $55 million

Initial EPA response costs: $19 million Initial DOJ enforcement costs: $6 million Soil remediation: $14 million Groundwater cleanup: $13 million Water line extension: $3 million

Phase I

Partial Consent Decree: approximately $5.625 million

Clairol: $3 million, plus interest Pfizer: $1.5 million, plus interest Providence Journal: $650,000, plus interest Ciba-Geigy: $475,000, plus interest

Phase II

Consent Decree I: $13.5 million, plus $440,000 for government oversight costs and the expense of soil remediation

American Cyanamid: $2.75 million (portion to settle state claims) Olin Hunt: $2.75 million (portion to settle state claims) Forty-seven non-carve-out parties: $7.2 million UTC: Remainder of settlement, approximately $2.8 million Soil remediation, estimated at $14 million (UTC contribution action recoveries to be split with the United States after deduction of attorneys' fees; UTC recovery capped at $5.364 million)

Consent Decree II: $4.135 million (part to U.S. and part to UTC)

Twenty-three non-carve-out parties: $4.135 million

Consent Decree III: $5 million (part to U.S. and part to UTC)

National Starch: $5 million

Consent Decree IV: $200,000 (part to U.S. and part to UTC)

Swan Engraving: $150,000

- 112 - Power Semiconductors: $50,000

Capuano Consent Decree: $200,000

Capuano Brothers: $200,000

Total from Partial Consent Decrees, Phase I and II: approximately $33 million (not including interest on escrowed amounts)

- 113 -