# Petition for Writ of Certiorari — Detrex Corp. v. Amcast Industrial Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0724%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1044 ## Text 93-VSz No. i. “ IN THI = Siuypreme Court of the United States OCTOBER TERM, 1993 DETREX CORPORATION. Petitioner, AMCAST INDUSTRIAL CORPORATION and ELKHART PRODUCTS CORPORATION. Respondents. Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR WRIT OF CERTIORARI JOHN GERALD GLEESON MICHAEL VY. SUCAET Counsel of Record for Petitioner HOWARD & HOWARD The Pinehurst Office Center Suite 250 1400 North Woodward Avenue FERD J. CHMIELNICKI Bloomfield Hills, MI 48304 ROBERT M. CURRIE (313) 645-1483 Of Counsel for Petitioner Counsel for Petitioner * Counsel of Record WILSON - EPES PRINTING Co.. INC. - 789-CO96 - WASHINGTON. D.C. 20001 i) QUESTIONS PRESENTED FOR REVIEW Whether the bulk delivery of useful hazardous sub- Stances by Petitioner in tanker trucks to Respondents’ manufacturing plant falls within the scope of the ex- ception to the definition of “facility” which excludes consumer products in consumer use or in vessels found in the Comprehensive Environmental Response, Com- pensation and Liability Act, 42 U.S.C.A. $$ 9601 through 9675? Is a cost recovery lawsuit by a potentially responsible party against other liable parties under 42 U.S.C.A. S 9607(a) of the Comprehensive Environmental Re- sponse, Compensation and Liability Act an action for contribution requiring district courts to equitably ap- portion responsibility among the litigants after strict and joint and several liability is imposed? (i) ii THE PARTIES Petitioner is Detrex Corporation the only remaining Defendant before the District Court for the Northern District of Indiana and the Appellant before the United States Court of Appeals for the Seventh Circuit. Detrex is a Michigan corporation. Respondents Amecast Indus- trial Corporation and Elkhart Products Corporation were Plaintiffs before the District Court and Appellees before the United States Court of Appeals for the Seventh Cir- cuit. Amcast Industrial Corporation, an Ohio corporation, is the parent of Elkhart Products Corporation, an Indiana corporation. With respect to non-wholly owned subsidiaries, Detrex Corporation owns 100% of The Elco Corporation, an Ohio corporation, which in turn owns 85% of Harvel Plastics, Inc., a Pennsylvania corporation. TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW i THE PARTIES ii TABLE OF AUTHORITIES s dcmaidaloneeaiiecaandas Vv OPINIONS OF THE DISTRICT COURT AND THE COURT OF APPEALS 7 ae 1 JURISDICTIONAL STATEMENT a eae 2 THE STATUTORY PROVISIONS INVOLVED 2 STATEMENT OF THE CASE 2 INTRODUCTION 2 1. Respondents Own and Operate a Manufacturing Facility Which is Extensively Contaminated With Hazardous Substances ___ oe ae 3 2. Procedural History of the Case and Jurisdic- tional Statement =o CRI Raa 5 3. CERCLA Contains a Variety of Liability Ex- ceptions oa ts AD 57 MeO 7 REASONS FOR GRANTING THE PETITION oa 10 I. DETREX IS NOT LIABLE UNDER CERCLA BECAUSE ITS TRUCKS WERE NOT FACIL- ITIES disdain . 11 A. The Definitional Exception Refers to Facili- ties That Contain Consumer Products . 11 B. The Interpretation of § 9601(9) Presents an Important Question of Federal Law _. 17 C. There is a Split of Authority Among the Cir- cuits Concerning the Scope of the Exception 18 (ili) iv TABLE OF CONTENTS—Continued D. The Court has the Opportunity to State a Complete and Understandable Rule of Law. Il. CERCLA LAWSUITS BETWEEN PARTIES UNDER § 9607(a) ARE ACTIONS FOR CON- TRIBUTION REQUIRING AN EQUITABLE ALLOCATION ..._.. jisnicccbbinidsaraaaad mapa asdiousettanee A. Detrex was Entitled to an Equitable Alloca- tion After the Imposition of Joint and Sev- le I carer er ee B. This Petition for a Writ of Certiorari Should be Granted Because There is a Split of Au- COE GM TE TI inc ists kevenemnecseics C. This Issue Presents an Important Question of the Proper Interpretation of a Federal Environmental Statute ........0...00..00.00 0. D. This Issue Should be Resolved with an Un- complicated Rule of Law ................................. Ey SR mR LS OTN PEL BEE NT IN PON Fg knee SOLED ENONEN, MEO NIY ELA, OORT IIENS a! SES, Page 21 21 21 Vv ‘ TABLE OF AUTHORITIES CASES: Page Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Ce PD cctencesestanitacscicun WOM EERE Oe ks ic 22, 23, 26 Ardestani v. INS, —— U.S. ——, 116 L. Ed. 2d Ape, 11S S. CE Bae COO) osc 13 Avnet, Inc. v. Allied-Signal, Inc., 825 F. Supp. pes ee 8 Re, ; NUE he ey Ie 24 County Line Inv. Co. v. Tinney, 933 F.2d 1508 COE COR. FIED vcsteceacn ee 24, 25 CP Holdings, Inc. v. Goldberg-Zoino & Assocs., Inc., 769 F. Supp. 482 (D.N.H. 1991) ............. 20 Davis v. Michigan Dept. of Treas., 489 U.S. 803, 103 L. Ed. 2d 891, 109 S. Ct. 1500 (1989) _...... 15 Dayton Indep. Sch. Dist. v. United States Mineral Prods., Co., 906 F.2d 1059 (5th Cir. 1990)... 12, 18, 19, 20 Demarest v. Manspeaker, 498 U.S. 184, 112 L. Ed. 2d 608, 111 S. Ct. 599 (1991) _...... 13 Electric Power Bd. of Chattanooga v. Westing- house Electric Corp., 716 F. Supp. 1069 (E.D. BOM. TEP ossicakdce eee 20 First United Methodist Church v. United States Gypsum Co., 882 F.2d 862 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 107 L. Ed. 2d 1020, 110 SS. C2. S536 fee 8 Freytag v. Commissioner of Int. Rev., —— U.S. , 115 L. Ed. 2d 764, 111 S. Ct. 2631 (1991). 13 Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 76 L. Ed. 704, 62 S. Ct. 328 (1981) .......................... 13 Howe v. Smith, 452 U.S. 473, 69 L. Ed. 2d 171, 101 ms. CO, S068 €ISGh). .....0 eee 13 In re Dant & Russell, Inc., 951 F.2d 246 (9th Cir. j |; | Pea eenoumenienmeoe a Beto AL son iS hee 0) 23, 26 Reading Co. v. City of Philadelphia, 823 F. Supp. Saee (Ee Fe See ous ee 20 United States v. Alean Aluminum Corp., 964 F.2d ame. Cae RRs PID ence 11, 23, 26 United States v. Asarco, Inc., 814 F. Supp. 951 CR. Cals. S908) «000 Se ee 23 vi TABLE OF AUTHORITIES—Continued Page United States v. Constantine, 296 U.S. 287, 80 L. Ed. 233, 56 S. Ct. 228 (1985) 20 United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 1038 L. Ed. 2d 290, 109 S. Ct. 1026 (1989) data 13 Vernon Village, Inc. v. Gottier, 755 F. Supp. 1142 (D. Conn. 1990) . 20 Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609, 37 L. Ed. 2d 207, 93 S. Ct. 2469 (1973) . lols ae 13, 14 Weyerhaeuser Co. v. Koppers Co., 771 F. Supp. 1420 (D. Md. 1991) RAR SPE ee ee, BY 23 Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801 (9th Cir. 1989) 8 STATUTES: 28 U.S.C.A. § 1254(1) 2 28 U.S.C.A. § 1331. 5 Be Ue is BIOS dicisdneteett 5 42 U.S.C.A. $§ 9601 through 9675 ) 2 42 U.S.C.A. g DE CPD ccknvecnbesecs bs seceesecececeseceeeeePASSim 42 U.S.C.A. § 9601 (14) ; J 8 42 U.S.C.A. § 9601(20) (B) . % 9,16 42 U.S.C.A. § 9601(20) (CC)... Sle . 9,16 412 U.S.C.A. § 9601 (22 9 42 U.S.C.A. § 9607 .. 18 42 U.S.C.A. § 9607 (a) passim 42 U.S.C.A. § 9607 (a) (1) 000. 5, 6,12 42 U.S.C.A. § 9607 (a) (3) 5, 6 42 U.S.C.A. § 9607 (b) 7 42 U.S.C.A. § 9613(b) NA 5 42 U.S.C.A. § 9613(f) . 10, 23, 24, 25 42 U.S.C.A. § 9613(f) (1)... passim 42 U.S.C.A. § 9613 (f) (2). . : 27, 28 42 U.S.C.A. § 9613 (f) (3) (B) 24 42 U.S.C.A. § 9656 . eae 9,15 42 U.S.C.A. § 9656 (a) _. - 16 42 U.S.C.A. § 9656 (b) 9,15 49 U.S.C.A. §§ 1801, et seq. ns 9, 15, 16 D UBS Re A: DOE cntnnaidinkn eee farina 17 P ; ‘ y’ ‘ ; j mie ) "7 | ‘ ’ { im) ) ~~ S30949 (d ed. Nov. 24. 1980) ‘ RI » ASSO LATI n . | ~ Ts — LSND ity SIATISTICAI HANDBOOK JI-2 (1), 99th ¢ ong.. 2d Sess. 59 te 1986 U.S.C.C.A.N. 2861 Dut ‘ CERCLA J cia *>*) IN THE Supreme Court of the United States OCTOBER TERM, 1993 No. DETREX CORPORATION, . Petitioner, AMCAST INDUSTRIAL CORPORATION and ELKHART PRODUCTS CORPORATION. Respondents. Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR WRIT OF CERTIORARI OPINIONS OF THE DISTRICT COURT AND THE COURT OF APPEALS The District Court issued two Memoranda and Orders granting the summary judgment motions of Amcast In- dustrial Corporation and Elkhart Products Corporation (“Respondents”). The initial decision of the District Court is reported at 779 F. Supp. 1519 (N.D. Ind. 1991) and, for the convenience of the Court. is set out in the Appendix at 33a through 8la. Also, the District Court’s second Memorandum and Order is reported at 822 F. Supp. 545 (N.D. Ind. 1992) and is at lla through 32a of the Appendix. The opinion of the United States Court of Appeals for the Seventh Circuit, entered on August 12, 1993, is at fa through 10a of the Appendix. On appeal, the decisions 5 of the District Court were affirmed in part, reversed in part, and the case was remanded for further proceedings. JURISDICTIONAL STATEMENT The judgment of the United States Court of Appeals for the Seventh Circuit was also entered on August 12, 1993. Petitioner Detrex Corporation (“Detrex”) timely filed a Motion to Stay Issuance of the Mandate with the United States Court of Appeals for the Seventh Circuit. Significantly, the motion was granted and issuance of the mandate was stayed until November 12, 1993. The Court has jurisdiction to review the judgment of the United States Court of Appeals for the Seventh Circuit (“Seventh Circuit”) by writ of certiorari pursuant to 28 U.S.C.A. § 1254(1). THE STATUTORY PROVISIONS INVOLVED This case concerns the interpretation of several provi- sions of the Comprehensive Environmental Resporse, Compensation and Liability Act (“CERCLA”), 42 U.S.C.A. $$ 9601 through 9675, as amended. The CERCLA sections at issue, $ 9601(9), $ 9607(a), and § 9613(f)(1). are set out at 82a through 84a of the Appendix for the convenience of the Court. STATEMENT OF THE CASE INTRODUCTION This lawsuit concerns Detrex’s delivery of an industrial solvent, trichloroethylene (“TCE”), to Respondents’ man- ufacturing facility located in Elkhart, Indiana. TCE was occasionally spilled in small amounts during some of the deliveries. Respondents filed suit to recover response costs expended in cleaning up all of the soil and groundwater at its manufacturing facility and included in their complaint two counts under CERCLA. Detrex is not a proper de- fendant under CERCLA because the statutory definition of facility cannot be met. TCE was a “consumer product 3 in consumer use or any vessel.” Because Detrex was not the owner or operator of a facility from which there was a release of hazardous waste, it could not be liable under CERCLA. Respondents, however, may have had recourse under other common law or statutory theories. At the very least. Detrex was entitled to an equitable allocation of the liability of the parties. 1. Respondents Own and Operate a Manufacturing Facil- ity Which is Extensively Contaminated With Hazard- ous Substances. The Respondents own and operate a large manufactur- ing plant in Elkhart, Indiana which is the subject matter of this lawsuit. Since at least the early 1950s, Respond- ents have manufactured copper fittings from copper pipe at the facility. The soil and groundwater at the facility are contaminated with hazardous substances. including TCE and 1-1-1 trichloroethane (“TCA”). TCE and TCA have been widely used by industries as solvents for decades. The chemicals are used to remove lubricants applied dur- ing manufacturing because they are effective cleaning agents. The manufacturing process of the Respondents required the extensive use of degreasing solvents including TCE and TCA. During the manufacturing process, copper fit- tings were covered with heavy oil for lubrication. The heavy oil was removed from the copper fittings with TCE and TCA in a machine called a degreaser. Respondents had two large degreasers within the manufacturing facil- ity. TCE was piped into the degreasers within the plant from two above-ground storage tanks which were located just outside the building. For years the Respondents repeatedly purchased, used. and disposed of thousands of gallons of TCE which were delivered into the two above-ground storage tanks. There were several suppliers of TCE and TCA to Respondents including Inland Chemical, Van Waters & Rogers, and 4 Hoosier Solvents. Detrex supplied only TCE to Respond- ents and did not regularly supply that chemical until 1978. Deliveries of TCE to Respondents were made by both Detrex and Transport Service Company (“Trans- port”), an independent common carrier hired by Detrex. Between 1978 and 1986, Detrex sold TCE to Respond- ents on approximately 34 occasions. Detrex made 19 de- liveries of TCE and Transport made 15. Detrex’s truck drivers received training in delivery techniques and were careful to avoid spilling during deliveries. Nevertheless, this case concerns alleged delivery spills of TCE by both Transport and Detrex drivers. As the Seventh Circuit succinctly phrased the point “[t]here is evidence that both Detrex’s and Transport Services’ [sic] drivers sometimes spilled TCE accidentally on” the manufacturing facility. Appendix at 2a. Respondents are responsible for the vast majority of TCE and ail of the TCA contamination at the manufac- turing facility. The Seventh Circuit concluded that “Elk- hart is admittedly a ‘responsible person,’ as an entity liable for response costs” under CERCLA. Appendix at 3a. Respondents were reckless with TCE because they did not consider it environmentally hazardous. TCE dripped onto the plant floor during the manufacturing process. Virgin TCE was used for cleaning tools at the facility. TCE was used by Respondents to scrub floors within the plant. Black TCE sludge was produced by Respondents as a waste product of their manufacturing process and was stored in drums at several locations at the facility. TCE sludge leaked out of the drums. Rain- water got into the uncovered storage drums and forced TCE sludge out over the top. TCE contamination was first detected in groundwater beneath Miles, Inc., a neighboring landowner, in June of 1984. The environmental report prepared on behalf of Miles, Inc. concluded that the source of the TCE pollution was Respondents’ manufacturing facility. Respondents 5 hired their own environmental consultant who concluded that the soil and groundwater at the manufacturing facility were contaminated with TCE and related organic chemicals. Detrex hired a groundwater hydrogeologist to assess its potential liability who calculated that the maximum amount of TCE which Detrex could have spilled on de- livery was 49 gallons out of almost 800 total gallons in the soH and groundwater. He also concluded that spilled TCE evaporated and could not have impacted the en- vironment. Several other activities of the Respondents were identified by the hydrogeologist as probably causing contamination including: a TCE sludge storage area, a waste disposal pit, a waste water treatment plant, under- ground piping from the tanks into the degreasers, and use of TCE to clean plant floors and tools. 2. Procedural History of the Case and Jurisdictional Statement. Respondents commenced this lawsuit with the filing of a 13 count complaint on October 13, 1988. This lawsuit was properly initiated in the United States District Court for the Northern District of Indiana. The District Court possessed jurisdiction over this lawsuit pursuant to 28 U.S.C.A. $1331, the federal question statute, and 28 U.S.C.A. § 2201, the declaratory judgment act. Section 9613(b) states that district courts enjoy exclusive juris- diction over all CERCLA controversies. The counts within the complaint included negligence, breach of con- tract, trespass, abnormally dangerous activity, and others. The core of the complaint, however, was two CERCLA counts. Count I claimed that Detrex was a potentially responsible party under § 9607(a)(1) of CERCLA as an owner and operator of a facility. Additionally, Count II alleged that under § 9607(a)(3) of CERCLA, Detrex was liable as an arranger for disposal of hazardous sub- stances at the manufacturing facility. Respondents assert 6 that Detrex is liable under CERCLA because it spilled TCE during deliveries. This lawsuit was decided in the District Court based upon two summary judgment motions filed by Respond- ents and one submitted by Detrex. After discovery con- cluded, Respondents sought summary indgment against Detrex under §$ 9607(a)(1) of CERCLA. Detrex’s sum- mary judgment motion requested dismissal of all conts within Respondents’ complaint. These initial motions were resolved by the District Court in a Memorandm and Order dated November 18, 1991. Appendix at 33a through 8la. Detrex, according to the District Court. was liable under § 9607(a)(1) of CERCLA as an owner and operator of a facility. The only bases for concluding that Detrex was a liable party under CERCLA were al- leged small delivery spills and an open valve spill. Appen- dix at 59a and 69a. With respect to Respondents’ claim under § 9607(a)(3),. Detrex argued that the sale of virgin TCE, a useful manufacturing chemical and not a waste product, was not an arrangement for disposal giving rise to CERCLA liability. In the second Memorandum and Order, dated April 9. 1992, Appendix at lla through 32a, the District Court concluded that Detrex was also liable under $ 9607(a) (3) of CERCLA. See Appendix at 15a. Detrex was held severally liable for all of the Respondents’ past and future response costs then totalling $1.197,082.42. A judgment was issued that same day by the District Court against Detrex. The Seventh Circuit’s opinion is dated August 12, 1993. Detrex argued to the Seventh Circuit that it was not liable under § 9607(a)(1) of CERCLA because the definition of facility excludes “any consumer product in consumer use or any vessel.” 42 U.S.C.A. § 9601(9). The Seventh Circuit disagreed concluding that “[t]he exception is for facilities that are consumer products in consumer use, not 7 for consumer products contained in facilities.” Appendix at 8a. With respect to the second isstte on appeal here, Detrex argued that it was entitled to an equitable alloca- tion of liability. Respondents’ action under $ 9607(a) of CERCLA is a claim for contribution because they too are liable under the statute. Private CERCLA lawsuits between parties under § 9607(a) are contribution actions and the District Court should have determined the respec- tive liability percentages of Detrex and Respondents after imposing strict and joint and several liability. The Seventh Circuit rejected Detrex’s apportionment argument. Judge Posner concluded that a defendant in a CERCLA law- suit can counterclaim in the initial action and obtain an allocation of liability percentages or file a second action. According to the Seventh Circuit, absent such a counter- claim, an equitable allocation is not appropriate in a § 9607(a) CERCLA action. Thus, if a CERCLA de- fendant does not file a counterclaim in a § 9607(a) lawsuit, it will not receive a liability apportionment. The judgment of the Seventh Circuit was also issued on August 12, 1993, affirming in part, reversing in part, and remanding the case to the District Court. Detrex timely moved for an order to stay issuance of the mandate by the Seventh Circuit. On September 3, 1993, Judge Posner granted Detrex’s motion staying issuance of the mandate until November 12, 1993. By granting Detrex’s motion, the Seventh Circuit recognized the significance of the issues presented by this case. 3. CERCLA Contains a Variety of Liability Exceptions. CERCLA imposes strict liability upon parties. Liabil- ity under CERCLA, however, is not absolute. The statute contains sundry exceptions or exclusions from liability. The most obvious or common of these are the four de- fenses expressly stated in §$ 9607(b). Liability under 8 CERCLA does not exist if the contamination was caused solely by: 1. an act of God; 2. an act of war; an act or omission of a completely unrelated third party; and 4. any combination of the above. In addition, there are several other liability exclusions which are much broader in their application. These exclu- sions negate one or more of the requisite elements neces- sary to establish CERCLA liability, thereby, preventing recovery under the statute. The phrase “hazardous sub- stance” is very broadly defined under CERCLA. 42 U.S.C.A. § 9601(14). Yet, Congress carved out a huge exception for petroleum and related products. In Wilshire Westwood Assoc. v. Atlantic Richfield Corp., 881 F.2d 801, 810 (9th Cir. 1989), it was held “that the petro- leum exclusion in CERCLA does apply to unrefined and refined gasoline even though certain of its indigenous com- ponents and certain additives during the refining process have themselves been designated as hazardous substances within the meaning of CERCLA.” Benzene is a constitu- ent of petroleum and is known to cause cancer. CERCLA does not apply to removal actions involving asbestos which also causes cancer. In First United Meth- odist Church v. United States Gypsum Co., 882 F.2d 862 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 107 L. Ed. 2d 1020, 110 S. Ct. 1113 (1990), the Court refused to expand CERCLA to cover asbestos abatements. It held that “it is made clear that § 9604(a)(3)(B) represents much more than a procedural limitation on the President’s authority; instead, it is a substantive limitation of the breadth of CERCLA itself.” First United, 882 F.2d at 868. Congress was concerned with how CERCLA would impact transporters of useful hazardous subtances. Accord- 9 ingly, there are at least two provisions within CERCLA which negate liability with respect to the transportation of useful hazardous substances. Sections 9656 and 9601 (20)(B) and (C), have not been judicially construed. Section 9656(b) provides that common or contract car- riers are not liable under CERCLA but may be liable under other law for damages stemming from the release of hazardous substances during the course of transporta- tion. There are other statutory laws which could have application to spills during transportation. For example. the Hazardous Materials Transportation Act (“HMTA”). 49 US.C.A. §§ 1801, ef seq., is intended to “protect the Nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce.” 49 U.S.C.A. § 1801. Common law theories, of course, may also have application. Ship- pers are excluded from liability in certain circumstances under § 9601(20)(B). Also, § 9601(20)(C) exempts a common or contract carrier from CERCLA liability where the release was caused by circumstances or conditions beyond its control. The definition of release found at § 9601(22) also con- tains exclusions. Workplace releases, combustion engine emissions, and certain releases of nuclear material are CERCLA exempt. Unquestionably, while the statute imposes liability with- out regard to fault, Congress did not intend for CERCLA to apply to every release of a useful hazardous substance. The many exceptions to liability within the statute make this clear. Statutes which impose strict liability necessarily limit the scope of their application. This case focuses upon the exception inserted by Congress into the defini- tion of facility. 10 REASONS FOR GRANTING THE PETITION Detrex would raise two arguments on appeal. The first issue is whether Detrex’s deliveries of TCE to Respond- ents’ above-ground storage tanks are exempted from CERCLA liability by virtue of the “consumer product in consumer use or in any vessel” exception to the definition of facility. Detrex believes that the Seventh Circuit in- correctly interpreted $ 9601(9) of CERCLA. Certiorari should be granted on this issue because: 1) the interpre- tation of § 9601(9) presents an important federal ques- tion of concern to all chemical manufacturers and sup- pliers and to all transporters of useful hazardous sub- stances; and 2) there is a split of authority concerning the proper interpretation of this exception. The Court should fashion a clear rule of law on how this provision of CERCLA should be interpreted and applied because of the sheer volume of useful hazardous substances de- livered every day by truck, rail, and ship in the United States. The second issue raised by Detrex is whether a CERCLA defendant is entitled to an equitable allocation in a § 9607(a) action without a formal count invoking § 9613(f). The Seventh Circuit has imposed a technical requirement upon CERCLA defendants by holding that a formal counterclaim or a second lawsuit is necessary before such an allocation can be made. Detrex asserts that this conclusion, too, is erroneous. Certiorari should be allowed on this issue because the decision of the Seventh Circuit directly conflicts with three other circuit court decisions. See infra Section II. The issue also pre- sents an important question of federal law concerning the proper allocation of response costs among those persons responsible for contamination. The issue is a straight- forward one and, therefore, its resolution need not be complex. On the eve of the reauthorization of CERCLA in 1994, Detrex requests that the Court provide guidance concern- 11 ing these two important and recurring CERCLA issues. Answering these questions now will likely help promote cleanup efficiency. If these issues do not have to be litigated in the future, the attention of the parties may focus upon remediation and not litigation. Certainly, the goal of more and prompt cleanups is worth pursuing. I. DETREX IS NOT LIABLE UNDER CERCLA BE- CAUSE ITS TRUCKS WERE NOT FACILTIES. A. The Definitional Exception Refers to Facilities That Contain Consumer Products. CERCLA authorizes private parties to recover response costs expended in cleaning up environmental contamina- tion. Before such a recovery can be obtained, the de- fendant must be determined a liable party under CERCLA. To establish CERCLA liability, a plaintiff must satisfy four elements: 1. the defendant must fall within one of the four categories of liable parties under § 9607(a); 2. the hazardous substances must be released from a facility or come to be located at a facility; 3. there must be a release or threatened release of hazardous substances from a facility into the environment; and 4. the release must cause the incurrence of response costs consistent with the National Contingency Plan. See United States v. Alcan Aluminum Corp., 964 F.2d 252, 258-259 (3d Cir. 1992) and the decision of the District Court, Appendix at 57a. If any element is not satisfied, CERCLA liability does not attach. If liability is not imposed under CERCLA, the plaintiff is not entitled to recover response costs. Detrex argues that Respondents are not entitled to recover response costs from it because the second element 12 cannot be met i.e., the Detrex trucks which delivered the TCE were not facilities by definition. When the TCE was being delivered by Detrex’s truck drivers, the vehicles were not facilities because the TCE contained in them was a consumer product in consumer use or in a vessel. When the TCE was spilled onto Respondents’ property, it was in their facility and Detrex was no longer responsible for it under‘ CERCLA. In short, Detrex argues that it was not an owner or operator of a facility under CERCLA $9607(a)(1). Judge Posner succinctly summarized Detrex’s argument at 7a-8a in the Appendix. This issue concerns the proper interpretation of the definition of facility in § 9601(9) of CERCLA. The first provision of the definition lists various physical objects, including pipes, storage containers, and motor vehicles, which contain or store hazardous substances. The second portion of the definition is a catchall phrase intended to include any site or area where a hazardous substance exists. Congress chose to include within this definition an exception so that the term facility does not include “any consumer product in consumer use or any vessel.” The analysis of the Seventh Circuit addresses this issue in terms of whether the language of the exception should be read literally or not. Judge Posner, while not agreeing with the end result of Detrex’s analysis, concurred with some of the underlying reasoning. The Seventh Circuit concluded that the TCE was a consumer product by con- concurring with the decision in Dayton Indep. Sch. Dist. v. United States Mineral Prods., Co., 906 F.2d 1059 (Sth Cir. 1990). Appendix at 6a-7a. Consequently, the TCE at issue here was a consumer product. The Seventh Cir- cuit went on to hold that only consumer products that are themselves facilities are exempted from liability. Under the interpretation advanced by Detrex, the liability ex- clusion refers to facilities that contain or store hazardous substances like tanker trucks. The Seventh Circuit held that “[t]he exception is for facilities that are consumer a os) yroducts in consumer use, not for consumer products con- ained in facilities. Although read as it is written the ex- ception is narrow, it is not meaningless, for the statute defines ‘facility’ so broadly that it could be thought to include a can of lye.” Appendix at 8a. The decision of the Seventh Circuit is not correct because Judge Posner failed to consider the last three words of the exception. T i T ‘ This Court has pronounced several rules concerning stat- utory interpretation which have application here. Inter- pretation of statutes must begin with the language of the law itself. Ardestani v. INS, ——— U.S. ——, 116 L. Ed. 2d 496, 112 S. Ct. 515 (1991). The Court will not look to extraneous sources to aid in the interpretation of an unambiguous statute. Freytag v. Commissioner of Int. Rev., —— U.S. ——, 115 L. Ed. 2d 764, 111 S. Ct. 2631 (1991). “When we find the terms of a statute un- ambiguous, judicial inquiry is complete except in rare and exceptional circumstances.” Demarest v. Manspeaker, 498 U.S. 184, 190, 112 L. Ed. 2d 608, 111 S. Ct. 599 (1991) (citations omitted). Thus, judicial inquiry is not necessary when the statutory language at issue is unam- bicuous. Howe v. Smith, 452 U.S. 473, 69 L. Ed. 2d 171. 101 S. Ct. 2468 (1981) Reference to legislative history is not necessary where the language of a statute is clear. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989). For scores of years, it has been recognized that every word. clause. and part of a statute must be given effect. Ginsbere & Sons, Inc. v. Popkin, 285 U.S. 204, 208. 76 L. Ed. 704, 52 S. Ct. 322 (1931). More recently. in Weinberger v. Hynson, Westcott & Dunning, 412 US. 609, 633, 37 L. Ed. 2d 207, 93 S. Ct. 2469 (1973), the Court reiterated “the well-settled rule of statutory con- struction that all parts of a statute, if at all possible, are to be given effect.” (citations omitted). 14 With these principles in mind, the holding of the Sev- enth Circuit cannot stand. The Seventh Circuit held that the exception applies to facilities that are themselves con- sumer products in consumer use, as opposed to facilities that contain consumer products. Judge Posner concluded that § 9601(9) is unambiguous having not relied upon legislative history or other sources for his interpretation. Detrex agrees that the definition and its exception are clear. There was error, however, because the interpreta- tion of the Seventh Circuit renders meaningless the last three words of the exception to the definition of facility contrary to the well established rule that every word and phrase of a statute must be given effect. Weinberger, 412 U.S. at 633. Judge Posner did not consider the last phrase of the exception “or any vessel.” The exception unambiguously provides that any con- Sumer product in consumer use or in any vessel does not fall under the definition of facility. As framed by the Sev- enth Circuit, the issue is whether the exception applies to hazardous substances or upon the physical objects in which these materials are contained in or transported in such as a tanker truck. The disjunctive language of the statute clearly establishes that the exception applies to facilities and vessels that contain hazardous substances. The exception excludes “any consumer product in con- sumer use” or “any consumer product in . . . any vessel.” The alternative construction of the phrase is to read the exception as excluding all vessels. Congress could not have intended to exclude all vessels from the definition of facility. Therefore, the exception applies to consumer products in consumer use or consumer products in any vessel. The Seventh Circuit’s opinion to the contrary was erroneous. Judge Posner indicated that a can of lye is an example that would fall under the exception. Under the interpreta- tion of the Seventh Circuit, it is the can that would not 15 be a facility by definition and, therefore, fall under the exception. The can is not the environmental concern, it is the lye inside the can that impacts the environment and not the can itself. Under CERCLA, there is no logical distinction, other than quantity, between a can of lye and a tanker truck full of TCE or some other useful albeit hazardous chemical. Since the can and the truck them- selves do not pose threats to the environment, the intent of the exception must necessarily focus on the hazardous substance contained within the facility or vessel. The statutory scheme and other provisions of CERCLA Support Detrex’s position that the exception applies on these facts. Statutory provisions cannot be read in a vacuum. This Court has held that “[i]t is a fundamental canon of statutory construction that the words of a stat- ute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michi- gan Dept. of Treas., 489 U.S. 803, 809, 103 L. Ed. 2d 891, 109 S. Ct. 1500 (1989). Liability under CERCLA is not absolute and, as dis- cussed, there are a variety of exceptions to liability. F example, spills of petroleum, no matter how large or smail, are not covered by CERCLA. Additionally, the courts have concluded that asbestos is not within CERCLA’s domain. Several other statutory provisions enforce De- trex’s argument that delivery spills of a useful consumer product which also happens to be a hazardous substance do not give rise to CERCLA liability. Such spills of haz- ardous substances may give rise to liability under other statutes like the HMTA or under common law theories. Further, while there are no cases interpreting $ 9656 of CERCLA, it is instructive on this issue. Section 9656(b) of CERCLA provides that: 1. acommon or contract carrier is not liable under CERCLA: 2. for a release of a hazardous substance during the course of transportation; 16 3. if the transportation began prior to the effective date of the listing and regulation of the substance under the Hazardous Materials Transportation Act, 49 U.S.C.A. $$ 1801, ef seq.:; or 4. for substances listed pursuant to § 9656(a), prior to the effective date of such listing. In addition, the definition of owner and operator in $$ 9601(20)(B) and (C) provides transporter liability exceptions. Common or contract carriers are exempted from CERCLA liability under certain conditions. The legislative history of CERCLA is replete with statements of concern about the application of CERCLA “to trans- portation and commerce and the burdens which such application would impose.” 126 Conc. REc. S$30949 (daily ed. Nov. 24, 1980) (statement of Sen. Cannon). Detrex cites these provisions and statements not for the purpose of arguing their application to this case, but rather, to demonstrate, in part, the statutory scheme of CERCLA. CERCLA has exceptions to liability, several of which apply to the transportation of hazardous sub- stances. The exception applicable here, taken in context, negates CERCLA liability as to Detrex because it was transporting a useful consumer product. The application of this exception is supported by other provisions within CERCLA. The other provisions reflect a Congressional intent to negate liability of common or contract carriers for spills during the course of transportation. That cir- cumstance, spills during transportation, does not give rise to CERCLA liability; however, other causes of action may be applicable. Similarly, Detrex argues that the exception found in § 9601(9) negates its liability under CERCLA, although liability may have existed under other statutory or common law theories. 17 B. The Interpretation of § 9601(9) Presents an Impor- tant Question of Federal Law. This case presents important questions of national sig- nificance to a wide range of the environmentally-regulated business community. Because of the importance of this case to chemical manufacturers and suppliers, shippers, common and contract carriers, and ultimately the con- sumer, the Court should grant this petition. The issue here concerns useful chemicals consumer products which also happen to be regulated hazardous substances. These materials have become indispensable to every facet of our lives. For example, chemicals are used to make auto- mobiles and textiles. They are also used in the health care and education professions and in a multitude of other industries. Tons of chemicals consumer products are transported every day in the United States. “[T]he Department of Transportation estimates that approximately 4 billion tons of regulated hazardous materials are transported each year and that approximately 500,000 movements of haz- ardous materials occur each day.”' It is estimated that about 520 million tons of chemicals and allied products were shipped by truck, rail, ship, and other means in 1992." Chemical transportation is economically signifi- cant.” Useful chemicals, which are also regulated haz- ardous substances, are moved by truck, rail, and over water.” A large segment of the environmentally regulated '49 U.S.C.A. App. § 1801 HiIstToRICAL AND STATUTORY NOTES, Congressional Findings: 1990 Amendment. * CHEMICAL MANUFACTURERS ASSOCIATION, U. S. CHEMICAL IN- DUSTRY STATISTICAL HANDBOOK 151 (1993). *“The volume of chemical and allied products moved within the United States is important to the transportation services industry, generating nearly $10 billion in revenues for trucking companies, railroads, barge operators, and other carriers.” /d. 4 For example: About 52 percent of all chemicals and allied products tonnage is shipped by trucks. In 1992, an estimated 269 million tons CC 18 community has more than a passing interest in how the definition of facility is to be interpreted. C. There is a Split of Authority Among the Circuits Concerning the Scope of the Exception. The decision of the Seventh Circuit is in direct conflict with another federal circuit court decision. In Dayton Indep., plaintiffs brought suit to recover response costs incurred in removing ceiling and fireproofing products which contained asbestos from school buildings. Accord- ing to the plaintiffs, § 9607 granted them a cause of action against the generator-suppliers manufacturers who released the asbestos by placing it in the building materials which found its way into the schools. After discussing the term disposal, the Fifth Circuit focused upon the definition of facility and its exception. It held that: | T]he provision expressly exempts consumer products from the definition of facility for purposes of determining liability under the statute. 42 U.S.C. S$ 9601(9). Appellants assert that this exemption were shipped via this mode. About 65 percent of the chemicals shipped via trucks is by truckloads for hire and about 5 percent is via less-than-truckload for hire. The U.S. chemical industry generates about $4.4 billion in revenues to the trucking indus- try. The remaining 30 percent of chemicals shipped via trucks is by private carriers (i.e. chemical companies. ) Over the past several decades, trucks have taken market share from the railroads in transporting chemicals because of the flexibility and quick delivery that this mode of transport offers. This has become increasingly important with the advent of lean manufacturing and just-in-time (JIT) inventory manage- ment techniques. Trucks have increasingly been used for bulk shipments of intermediate chemicals, although trucking is most widely used for small-volume packaged chemical products. Trucks are the most common mode of transport used in ship- ping industrial gases and consumer products. Id. 19 applies to the “facility” into which they allegedly dis- posed of the asbestos—the building materials. Since the building materials are without a doubt consumer products, they cannot be held liable for disposing of asbestos “at a facility”. . .. The provision exempting consumer products obviously was meant to protect from liability those who engage in production activities with a useful purpose, as opposed to those engaged in the disposal of hazardous substances. It is clear that Congress did not intend CERCLA to target legitimate manufac- turers or sellers of useful products. Rather, taken in context, the provision reflects Congress’ desire to hold liable those who would attempt to dispose of hazard- ous wastes or substances under various deceptive guises in order to escape liability for their disposal. Dayton Indep., 906 F.2d at 1065-1066 (footnote omitted ). There are many important legal and factual similarities between Dayton Indep. and this case. Both lawsuits in- volved the recovery of response costs under $ 9607(a) of CERCLA. The TCE and the asbestos containing build- ing materials were both consumer products and useful products not hazardous wastes. The plaintiffs in both actions claimed that the suppliers and manufacturers were liable for the disposal of a hazardous substance. Also. the Fifth Circuit and the Seventh Circuit both squarely addressed the scope of the application of the exception to the definition of facility. Detrex believes that the Fifth Circuit would have favored its interpretation of the ex- ception. There is little. if any, distinction to be made between the sale and delivery of the asbestos containing building materials supplied by the defendants in Dayton Indep. and the sale and delivery of TCE by Detrex. Most importantly, the two courts differed concerning what the focus or intent of the exception is. The Seventh Circuit equated the consumer product to a tacility i.e¢., the exception applies to facilities that are consumer products. 20 For Judse Posner, the exception applies to the physical object which contains the hazardous substance: if it is a consumer product, the exception applies. The approach of the Fifth Circuit is diametrically opposed. In Dayton Inden., the decision hinged upon the asbestos containing building products themselves: according to that Court. legitimate manutacturers and sellers of useful products were not the target of Congress when it enacted CERCLA. For the Fifth Circuit, the focus is upon the alleged con- taminant contained within the facility: if the pollutant i.e.. asbestos containing building materials are consumer products, the exception applies. The same argument by Detrex was rejected by the Seventh Circuit. By analogy, the test of the Seventh Circuit centers on the can which contains the lye, while the Fifth Circuit focuses upon the lye within the can. The district courts have also been struggling with this issue and are likely to continue to do so unless this Court resolves it. Detrex respectfully directs the Court’s atten- tion to the decisions in Verno» Village, Inc. v. Gottier, 755 F. Supp. 1142 (D. Conn. 1990) and Electric Power Bd. of Chattanooga v. Westinghouse Electric Corp., 716 F. Supp. 1069 (E.D. Tenn. 1988) in support of its argu- ment. Respondents are relying on cases like Reading Co. v. City of Philadelphia, 823 F. Supp. 1218 (E.D. Pa. 1993) and CP Holdings, Inc. v. Goldberg-Zoino & Assocs., Inc., 769 F. Supp. 432 (D.N.H. 1991). The Court grants petitions for certiorari based upon confiicts among district courts. In United States v. Con- stantine, 296:0.S& 287, 290, 80 L.Ed. 233, 56 $. Ct. 223 (1935). the Court granted a petition for writ based upon, iri part. “the many other cases pending in which action is awaiting authoritative settlement of the question pre- sented.” The Court is requested to again follow this precedent. zi D. The Court has the Opportunity to State a Com- plete and Understandable Rule of Law. This issue is a straightforward one involving conflicting interpretations of an unambiguous definition in CERCLA. The Court can resolve this argument with a clear rule on $ 9601(9) and its exception. Does the exception apply to. deliveries of useful consumer products which also happen to be hazardous substances and_thus exempt these materials from CERCLA liability? Or, does the exception have no application, leaving Detrex and other commercial suppliers and transporters liable under CERCLA because the definition of facility includes accidental delivery spills of these consumer products from tanker trucks, rail cars. and ships? II. CERCLA LAWSUITS BETWEEN PARTIES UNDER §9607(a) ARE ACTIONS FOR CONTRIBUTION REQUIRING AN EQUITABLE ALLOCATION. A. Detrex was Entitled to an Equitable Allocation After the Imposition of Joint and Several Liability. This issue involves two closely related provisions of CERCLA, specifically § 9607(a) and 8& 9613(f)(1). Section 9607(a) is the liability provision within CERCLA which creates certain categories of responsible parties. By creating four categories of strictly liable parties under § 9607(a), Congress intended for the section to further its chief goal of prompt cleanups. This section of CERCLA was a part of the original 1980 enactment and gave the United States Environmental Protection Agency a strong enforcement tool. Section 9613(f)(1) was added to CERCLA in 1986 to reduce the harsh effects of strict and joint and several liability. Equitable apportionment is accomplished via § 9613(f)(1) in the nature of con- tribution by which the liability percentage of each party is established. The purpose of § 9613(f)(1) was to codify 22 the already existing right of CERCLA parties to gain contribution under § 9607(a).° In the Seventh Circuit, Detrex argued that a second lawsuit should not be required to obtain an apportion- ment. These two sections work in tandem, they do not create separate causes of action. Liability is imposed under § 9607(a) and liability percentages are assigned using $ 9613(f)(1) for guidance. Respondents’ lawsuit against Detrex was filed under only § 9607(a) of CERCLA and is technically one for contribution. If a non-governmental party files a CERCLA § 9607(a) ac- tion, both liability and apportionment should be deter- mined in the same proceeding. The Seventh Circuit rejected this analysis reasoning that Detrex could have filed a separate counterclaim and not be out of pocket more than its fair share. Detrex attempted to file such a counterclaim, however, the District Court denied the motion as untimely. The practical effect of the Seventh Circuit’s opinion is to deny an allocation unless a formal claim is made under § 9613(f)(1). Pure § 9607(a) claims, in the Seventh Circuit, now result in CERCLA defendants being liable for all cleanup costs unless a counterclaim or second lawsuit is filed. Nothing in the express language of CERCLA prevents both liability and contribution issues from being ad- dressed in $ 9607(a) lawsuits. Private actions between CERCLA litigants are for contribution.” The case law also overwhelmingly favors Detrex’s position. In Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (Sth Cir. 1989), plain- ° H.R. REP. No. 99-253(1), 99th Cong., 2d Sess. 59 (1986), re- printed in 1986 U.S.C.C.A.N. 2861. “This section clarifies and con- firms the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances.” 6 Russo, Contribution Under CERCLA: Judicial Treatment After SARA, 14 CoLuM. J. ENVTL. L. 267, 273 (1989). casa eccemaaaa eta ccmeaeareacerareemmmmmmmammmammaamaa ial 23 tiff brought suit to recover response costs under CERCLA. After concluding that the plaintiff was jointly and severally liable with the defendant for response costs, the Fifth Circuit held that “[wJhen one liable party sues another to recover its equitable share of the response costs, the action is one for contribution, which is specifically recog- nized under CERCLA. See § 9613(f).” Amoco Oil, 889 F.2d at 672. The Third Circuit agrees with this holding.’ In Jn re Dant & Russell, Inc., 951 F.2d 246 (9th Cir. 1991), the Court provided further support for Detrex’s position that liability percentages should be assigned in §$ 9607(a) lawsuits. The plaintiff filed an action “under § 9607(a)(4)(B)” for past and future response costs. In re Dant & Russell, 951 F.2d at 247. The Ninth Cir- cuit expressly held that $ 9613(f)(1) was applicable be- cause the lawsuit was a claim under § 9607(a) of CERCLA. Equitable apportionment under § 9613(f)(1) was explicitly authorized after liability was established un- der § 9607(a). In re Dant & Russell, 951 F.2d at 249. A substantial number of district court opinions have also apportioned liability in § 9607(a) lawsuits. In Weyerhaeuser Co. v. Koppers Co., 771 F. Supp. 1420 (D. Md. 1991), the Court allocated damages in a § 9607 (a) lawsuit between two strictly liable parties. The Court in United States v. Asarco, Inc., 814 F. Supp. 951, 956 7In United States v. Alcan Aluminum Corp., 964 F.2d 252, 270 n.29 (3d Cir. 1992), the Third Circuit explained that: [I]n a sense, the “contribution” inquiry involves an analysis similiar to the “divisibility” inquiry, as both focus on what harm the defendant caused. However, we believe that this inquiry, to the extent that it is the same as that discussed in above-noted cases, is best resolved at the initial liability phase and not at the contribution phase since it involves precisely relative degrees of liability. Thus, if the defendant can prove that the harm is divisible and that it only caused some portion of the injury, it should only be held liable for that amount. In our view, the logical consequence of delaying the apportion- ment determination may well be drastic .... 24 (D. Colo. 1993) concluded “that where parties are jointly and severally liable under CERCLA, response costs can only be shifted by one party to another by way of con- tribution.” In Avnet, Inc. v. Allied-Signal, Inc., 825 F. Supp. 1132, 1139 (D.R.I. 1992), the District Court held that “[i]t is clear from the analysis of CERCLA and the history behind it that the plaintiffs’ claim, whatever it’s called, is one for contribution.” Respondents’ lawsuit was filed under § 9607(a) of CERCLA for the recovery of response costs requiring a two step analysis. The first step of the analysis is to de- termine if liability exists under § 9607(a). Both Re- spondents and, arguably, Detrex are liable under § 9607 (a). Therefore, the second step of the analysis should require a liability allocation between the two parties in- stead of severally imposing all response costs upon Detrex. This lawsuit is a dramatic example of why equi- table allocation issues under $ 9613(f)(1) should be con- sidered in § 9607(a) actions. Although Detrex denies CERCLA liability, the most it can be responsible for ts a very small percentage of all the TCE at the facility. Despite what is at worst an extremely minor and localized contribution, Detrex is liable for all past and future re- sponse costs totalling millions of dollars. Assigning li- ability percentages could have prevented this inequitable result. The Tenth Circuit, in County Line Inv. Co. v. Tinney, 933 F.2d 1508 (10th Cir. 1991), explored the close re- lationship between § 9607(a) and § 9613(f)(1). In County Line, the owners of a landfill brought an action under § 9607(a) of CERCLA against a former owner for the recovery of response costs. In addition, the plain- tiffs filed a count under § 9613(f)(3)(B). The District Court dismissed plaintiffs’ § 9613(f) claim on the basis that the remedial action at the site was not consistent with the National Contingency Plan (“NCP”). The NCP is a set of regulations which governs how environmental 25 remediations must be performed. Plaintiffs argued on ap- peal that consistency with the NCP was not an element of a claim under § 9613(f); they asserted that they could seek contribution without reference to $ 9607(a). County Line, 933 F.2d at 1516. The Tenth Circuit rejected plain- tiffs’ argument concluding that § 9607(a) is the source of a party’s claim for contribution. County Line, 933 F.2d at 1516. After briefly reviewing some of the legisla- tive history of § 9613(f), the Tenth Circuit heid that “[njothing in this language suggests that Congress in- tended to do anything more than create a mechanism for apportioning CERCLA-defined costs when it added sec- tion 113(f) to the statute.” County Line, 933 F.2d at 1517. The decision of the Seventh Circuit on this issue is contrary to CERCLA’s unambiguous provisions and its statutory scheme. Detrex was entitled to an equitable apportionment in this § 9607(a) lawsuit. Sections 9607 (a) and 9613(f)(1) must be construed together because the latter does not create a separate cause of action. The analysis proceeds in two steps: 1) strict and joint and several liability is imposed on the CERCLA parties un- der § 9607(a): and 2) because of the imposition of joint and several liability, a right to contribution exists as pro- vided for in § 9613(f)(1). Section 9613(f)(1) was in- tended to provide for equitable allocations after CERCLA liability is imposed in § 9607(a) actions. Both liability and contribution issues should be addressed in § 9607(a) lawsuits. B. This Petition for a Writ of Certiorari Should be Granted Because There is a Split of Authority on This Issue. The Seventh Circuit rejected Detrex’s argument in this regard and, thus, allocation issues are not addressed in $ 9607(a) actions unless a counterclaim is filed. That formality should not be required and is contrary to the opinions of at least four other circuits, several district 26 courts, and one commentator. In the Fifth Circuit under the Amoco Oil decision, when one party sues another, it is an action for contribution. In Alcan Aluminum, the Third Circuit held that the contribution inquiry should be addressed at the initial liability phase under § 9607(a). Section 9613(f)(1) must be applied in § 9607(a) claims in the Ninth Circuit as decided in Jn re Dant & Russell. The decisions of the Third, Fifth, Ninth, and Tenth Circuits directly conflict with Judge Posner’s opinion. Only in the Seventh Circuit are allocation percentages not assigned in § 9607(a) actions. In the Seventh Circuit, a formal counterclaim or even a second lawsuit is neces- sary to obtain an assessment of liability shares. No such technical requirement exists in any of the other four circuits which have addressed the issue. The Seventh Circuit’s interpretation of the relationship between § 9607 (a) and § 9613(f)(1) directly conflicts with the decisions in four other circuits. Because a conflict exists among the circuits, Detrex’s petition for a writ of certiorari should be granted. C. This Issue Presents an Important Question of the Proper Interpretation of a Federal Environmental Statute. The interpretation of the relationship between § 9607 (a) and § 9613(f)(1) is of great significance to virtually all CERCLA parties because of the allocation issue which concerns who pays how much for remediations. The practical effect of the Seventh Circuit’s opinion eliminates the right of litigants to obtain an equitable allocation of liability unless a formal claim is made. Such a result was not intended by Congress when it added § 9613(f)(1) to CERCLA in 1986. According to the Seventh Circuit, an assessment of each litigant’s liability is not appropriate in a § 9607(a) action unless a formal counterclaim or a second lawsuit is filed. Under this approach, CERCLA plaintiffs can ————— eee obtain a recovery of all past and future response costs under §$ 9607(a) and be immune from a claim for con- tribution effectively eliminating an allocation of liability. Stated hypothetically, the Respondents herein could have entered into a settlement, embodied in a consent decree, with the United States Environmental Protection Agency or the Indiana Department of Environmental Manage- ment. The terms of the consent decree would dictate the requirements of the remediation. Respondents would in- cur response costs in conducting the investigation and re- mediation. By virtue of the settlement with the government, how- ever, Respondents could then be entitled to contribution protection under § 9613(f)(2) of CERCLA. Section 9613(f)(2) immunizes parties who settle with the govern- ment from contribution actions by others “regarding mat- ters addressed in the settlement.” Thus, had the Respond- ents settled with the government for the investigation and cleanup of their facility, they could have received contri- bution protection. Continuing with this hypothetical, Respondents could then file suit against Detrex for the recovery of response costs pursuant to § 9607(a). Under the Seventh Circuit’s interpretation of this issue, Respondents would be able to recover all of their response costs from Detrex in that proceeding. According to Judge Posner, Detrex could avoid being out of pocket by filing a counterclaim or a second lawsuit under § 9613(f)(1). Detrex, however, would be precluded from doing so because the Respond- ents would have contribution protection by operation of S$ 9613(f)(2). Respondents could recover all of their response costs from Detrex under § 9607(a). Detrex would have no right of contribution against Respondents because of $ 9613(f)(2)’s preclusive effect. Such a result could not have been intended by Con- gress. The goals of CERCLA are prompt cleanups and fair-share liability allocations among those responsible for 28 the contamination. Under the Seventh Circuit’s rationale, parties will enter into settlements with the government and be able to recover all response costs under § 9607(a) and be immune from contribution claims. Because of the real danger presented by the opinion of the Seventh Circuit, allocation issues must be addressed in § 9607(a) actions. If the decision of the Seventh Circuit stands, CERCLA defendants nationwide will be jointly and severally liable to settling parties for all cleanup costs and unable to obtain contribution. This very real circumstance justifies granting Detrex’s petition for a-writ of certiorari. D. This Issue Should be Resolved with an Uncompli- cated Rule of Law. The resolution of this issue is not complex. Simply, the issue is whether private CERCLA parties are entitled to an equitable allocation of liability in § 9607(a) actions. The language of CERCLA and many court decisions favor an affirmative answer to this issue. To hold otherwise invites an injustice because subsequent contribution actions can be negated by virtue of the contribution protection afforded under § 9613(f)(2). This petition for a writ of certiorari should be granted because the Court can provide clear guidance on this issue. 29 CONCLUSION Detrex’s petition for a writ of certiorari should be granted with respect to both issues. The facility issue is of vital significance to a very large section of the Nation’s economy. The decision of the Seventh Circuit is in direct conflict with at least three other circuits with respect to the allocation issue. If the Court decides to consider this case, it could fashion clear and necessary rules of law and pos- sibly promote cleanup efficiency. For all of the reasons detailed in this petition, Detrex respectfully requests that this case be heard. Respectfully submitted, JOHN GERALD GLEESON * MICHAEL V. SUCAET Counsel of Record for Petitioner HOWARD & HOWARD The Pinehurst Office Center Suite 250 1400 North Woodward Avenue FERD J. CHMIELNICKI Bloomfield Hills, MI 48304 ROBERT M. CURRIE (313) 645-1483 Of Counsel for Petitioner Counsel for Petitioner * Counsel of Record Dated: November 5, 1993 sal APPENDICES la APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 92-2365 AMCAST INDUSTRIAL CORPORATION and ELKHART PRropuctTs CORPORATION, Plaintiffs-A ppellees, V. DETREX CORPORATION, Defendant-A ppellant. Appeal from the United States District Court for the Northern District of Indiana, South Bend Division No. 88 C 620—Robert L. Miller, Jr., Judge ARGUED JANUARY 4. 1993—_DeEcIDED AucustT 12, 1993 Before Posner, FLAUM, and KANNE, Circuit Judges. POSNER, Circuit Judge. This appeal requires us to explore the outer limits of the “Superfund” statute—the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). 42 U.S.C. §§ 9601 et seg. We must decide whether. as the district court concluded. the Act extends to any chemical spill that creates an environmental hazard. This is an important question that has not until now been the Subject of an appellate case. 2a Our conclusion is that the spiller, but not the shipper of the chemical that spilled, is within the Act’s long reach. The facts are simple enough, and we shall make them even simpler where we can do so without affecting the analysis. The principal plaintiff Elkhart (Amcast is its parent, and can be ignored), manufactures copper fittings at a plant in Indiana. One of the chemicals that it uses in the manufacturing process is the solvent trichloroethylene (TCE). Elkhart used to buy TCE in liquid form from a number of chemical manufacturers, including the defend- ant, Detrex. Detrex sometimes delivered the solvent in its own tanker trucks and sometimes hired a common carrier, Transport Services, to deliver it. In 1984, TCE was discovered in the groundwater beneath a pharmaceu- tical plant adjacent to Elkhart’s plant. There is evidence that both Detrex’s and Transport Services’ drivers some- times spilled TCE accidentally on Elkhart’s premises while trying to fill Elkhart’s storage tanks and that some of this spillage found its way into the groundwater beneath the pharmaceutical plant, although an expert hired by Detrex has estimated that out of almost 800 gallons of TCE that have been found in the soil and groundwater beneath the pharmaceutical plant, no more than 49 came from these delivery spills, the rest having leaked from the storage tanks or a waste-disposal pit or the plant itself or been spilled by other suppliers’ drivers. The Superfund statute, so far as bears on this case, im- poses liability for “response costs” (the costs of eliminat- ing an environmental hazard) on the “owner and operator of a... facility” from which a hazardous substance has been released, § 9607(a)(1), and on “any person who by contract . . . arranged for disposal or treatment, or ar- ranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person.” § 9607(a)(3). “Facility” is broadly defined as “(A) any building, structure, installation, equipment, pipe or pipeline . . . , well, pit, pond, lagoon, impound- 3a ment, ditch, landfill, storage container, motor vehicle, roll- ing stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” § 9601(9). Elkhart is admittedly a “responsible person,” as an entity liable for response costs is called; but the statute permits one responsible person to recover all or part of its response costs from another. § 9607(a)(4)(B). Having spent more than $1 million on cleaning up the contamination caused by the spillage of TCE from its facility, Elkhart brought this suit to establish that Detrex was a responsi- ble person, too, and to shift Elkhart’s response costs (that is, the $1 million it had incurred in cleaning up the contamination) from itself to Detrex. A potentially responsible person who, like Detrex., has been sued is entitled to seek, by way of counterclaim. contribution from the plaintiff for the amount of response costs fairly attributable to the conduct of the plaintiff as district from that of the defendant. § 9613(f). Rather than file a counterclaim against Elkhart. Detrex argued to the district judge that in the course of adjudicating Elk- hart’s claim he had to apportion responsibility for the costs between the parties. The judge rejected this argument, together with Detrex’s more fundamental argument that it is not a responsible person within the meaning of the Statute. and entered judgment in favor of Elkhart for the entire response costs that Elkhart had incurred. Eventu- ally Detrex filed a separate action for contribution from Elkhart; that suit is pending in the district court. § 9613 (f)(1): United States v. R.W. Mever, Inc., 932 F.2d 568. S71 n. 2 (6th Cir. 1991). Detrex was entitled to proceed in that fashion. The statute is explicit that a counterclaim for response costs is not compulsory, §§ 9613(f)(1), (g)(3)(A), a result consistent with general law. Detrex’s claim against Elkhart, dependent as it was on Elkhart’s establishing Detrex’s liability to it, had not matured when Elkhart’s suit was filed. Fed. R. Civ. P. 13(a): Harbor Ins. Co. v. Continental Bank Corp., 922 F.2d 357, 360 da (7th Cir. 1990); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1411 at p. 83 (2d ed. 1990). The argument that the judge had to apportion liability between Detrex and Elkhart in Elkhart’s suit makes no sense, so we dispatch it at the outset. The statute is clear that whoever (like Elkhart) incurs costs in cleaning up a contaminated site can seek to recover them from any re- sponsible person, and if the responsible person believes as Detrex does that his contribution to the mess was trivial and wants the point established promptly he can counter- claim for as large a percentage of the costs as he thinks he can prove was due to the plaintiff's own conduct. United States v. RW. Meyer, Inc., supra, 932 F.2d at 571 n. 2; United States v. Mexico Feed & Seed Co., 764 F. Supp. 565, 573 (E.D. Mo. 1991), rev’d in part on other grounds, 980 F.2d 478 (8th Cir. 1992). The counterclaim if - promptly filed will doubtless be tried at the same time as the main claim, so the defendant will at no time be out of pocket by more than the share of the response costs at- tributable to his own conduct. Obviously Detrex could have counterclaimed without giving up its main argument— that it is not a responsible person and therefore is not liable for any part of the response costs. We do not know why it waited and filed a separate suit. The difficult question is whether Detrex is within the grasp of the Superfund law at all; if not, Elkhart’s suit must fail irrespective of any division of responsibilities be- tween Elkhart and Detrex. Elkhart argues that Detrex has forfeited this ground of appeal by failing to present it to the district court. Detrex had argued to the district court on a variety of grounds that it was not liable to the plaintiff under that law, and one of these grounds was that it was not an arranger for disposal or treatment. The fact that it did not marshal in support of this ground all the relevant legislative provisions and history did not work a forfeiture. Dawson v. General Motors Corp., 977 F.2d eee Sa 369, 372 n. * (7th Cir. 1992); Locke v; Bonello, 965 F.2d 534, 536 n. 1 (7th Cir. 1992): cf. Bellotti v. Baird, 428 U.S. 132, 143 n. 10 (1976); but see Elder y. Hollo- way, 975 F.2d 1388, 1392-93 (1991), rehearing en banc denied, 984 F.2d 991 (9th Cir. 1993) (per curiam), cert. granted, 61 U.S.L.W. 3868 (U.S. June 29. 1993). But Detrex tacitly conceded in the district court that it was, though not an arranger for disposal. an owner of a facility, within the meaning of the statute. Detrex thus conceded a ground that it now seeks to raise with us, that it was not an owner of a facility; and failure to have presented to the district court a ground on which reversal is being urged is a more serious matter than failing to Support a ground with the arguments or authorities that the appellate court finds persuasive. The rule in civil cases is that except with regard to jurisdictional issues and issues involving comity— the mutual respect owed by sovereigns and quasi-sover- eigns, such as the states—a ground not raised in the dis- trict court cannot be used to reverse that court. Old Re- public Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269. 276-77 (7th Cir. 1991): Zharaz y. Hartigan, 763 F.2d 1532, 1544 (7th Cir. 1985), aff’d by an equally divided Court under the name Hartigan v. Zharaz, 484 U.S. 171 (1987). The Supreme Court has told us. however, that the rule is not absolute, Singleton v. Wulff, 428 U.S. 106. 121 (1976); see also Arcadia v. Ohio Power Co., 498 USS. 73, 77 (1990); id. at 86 (concurring opinion); U.S. Na- tional Bank vy. Independent Insurance Agents of America, Inc., 113 S. Ct. 2173, 2178-79 (1993). a point upon which we have built in carving an exception for plain errors in civil cases. (The civil rules contain no counter- part to Rule 52(a) of the criminal rules, which allows reversal on the basis of plain errors even if they had not been drawn to the attention of the trial court.) Deppe v. Trippe, 863 F.2d 1356. 1362 (7th Cir. 1988). Occa- sional flat statements in our cases that there is no plain error doctrine in civil cases, e.g., United States y. Caputo, 978 F.2d 972, 974 (7th Cir. 1992), which puzzled the 6a court in Hudak v. Jepsen of Illinois, 982 F.2d 249, 251 n. | (7th Cir. 1992), implicitly refer to error in jury instructions, a setting to which Rule 51 of the civil rules has been interpreted to make the doctrine of plain error inapplicable. Deppe v. Trippe, supra, 863 F.2d at 1361-62. Forfeiture is a sanction, and sanctions should be re- lated to harm done or threatened. In the rare case in which failure to present a ground to the district court has caused no one—not the district judge, not us, not the appellee—any harm of which the law ought to take note, we have the power and the right to permit it to be raised for the first time to us. Rosser v. Chrysler Corp., 864 F.2d 1299, 1306 n. 7 (7th Cir. 1988); Charlton v. United States, 743 F.2d 557, 561 n. 5 (7th Cir. 1984) (per curiam). This is a suitable case in which to exercise our power of lenity. The new ground is fully argued in the brief of the appellant, so that Elkhart had—and it took—a full opportunity to respond. The ground rests entirely on a pure issue of statutory interpretation, as to which the district judge’s view, while it would no doubt be interesting, could have no effect on our review which is plenary on matters of law. It is unrealistic to think that if Detrex had made the argument to the district court and prevailed, there would have been no appeal. The appeal just would have been filed by Elkhart rather than by Detrex. The issue having been fully briefed and argued, there is no reason to defer its resolution to another case. There will be no better time to resolve the issue than now. Each of the tanker trucks owned by Detrex in which it delivered TCE to Elkhart constituted prima facie a “facil- ity” within the meaning of the Superfund law. § 9061 (9)(A), contained a hazardous substance, namely TCE, and “disposed of” it when the truck spilled it, because the statute defines disposal to include spilling. $$ 6903(3), 9601(29). The statutory definition of facility excludes, however, a “consumer product in consumer use.” a 7a § 9601(9). Neither party suggests that the term ‘“con- sumer product” is limited to products used by consumers as distinct from ones consumed by business firms and other institutions. Dayton Independent School District vy. U.S. Mineral Products Co., 906 F.2d 1059, 1065-66 (5th Cir. 1990), holds correctly in our view, that asbestos products incorporated into walls and ceilings of school buildings are consumer products within the meaning of the Superfund law. The difficult question is whether the reference to consumer product in section 9601(9), the definition of “facility,” is to be read literally. If it is read literally, the only consumer product ex- empted by the statute is the consumer product that is a facility. The alternative is to read the exemption as re- ferring to facilities that contain consumer products. Under this alternative reading, as long as Elkhart was using TCE in its plant in the ordinary course, with no spills or leaks, it was not the owner of a “facility” within the meaning of the statute. The Dayton decision even suggests that the school buildings themselves might have been consumer products within the meaning of the statute, 906 F.2d at 1065 n. 4, and likewise Elkhart’s plant, so long as it was merely manufacturing useful products and not creating hazardous wastes. That, however, would be an extraor- dinarily strained reading of “consumer product.” Once Elkhart finished using the TCE in its manufac- turing process—once consumer use passed over into waste disposal, as happened when Elkhart dumped the used TCE into a waste-disposal pit on its premises—Elkhart became, if the statutory reference to a facility that is a consumer product is interpreted to mean a facility that contains a consumer product, a responsible person, as a facility owner no longer sheltered by the exception for consumer products in consumer use. Continuing with this interpretation of the consumer-product exception, and assuming reasonably enough that the transportation of a consumer product to the customer is as much a consumer 8a use as the consumption of the product in the customer’s manufacturing process (the trucks themselves might be thought consumer products. within the extended meaning attached to this term in the Dayton footnote, but we reject sO strained an interpretation of the term), we would con- clude that until the TCE transported in Detrex’s trucks spilled, it was a consumer product in consumer use. It ceased to be in consumer use when it spilled; but the spilled TCE was no longer in the trucks or any other property owned by Detrex, and when it hit the ground it was in premises owned by Elkhart, and Elkhart thus be- came the facility owner and a responsible person. This approach does excessive violence to the statutory language. The exception js for facilities that are consumer products in consumer use, not for consumer products con- tained in facilities. Although read as it is written the exception is narrow, it is not meaningless, for the stat- ute defines “facility” so broadly that it could be thought to include a can of lye. Since Detrex, not Elkhart, was responsible for the environmental damage resulting from the spillage of TCE from Detrex’s trucks, there is no anomaly, so far as the purpose of the Superfund statute is concerned, in deeming Detrex a responsible person along with Elkhart. A literal interpretation that furthers the statute’s purpose is hard to beat. Irrespective of the issue of consumer product and con- sumer use, however, Detrex was a responsible person with respect to the TCE that was spilled by trucks owned by Transport Services only if by hiring Transport Services to carry the stuff to the Elkhart plant Detrex “arranged with a transporter for transport for disposal or treatment” of TCE. § 9607(a)(3). Detrex hired a transporter, all right, but it did not hire it to spill TCE on Elkhart’s premises. Although the statute defines disposal to include spilling, the critical words for present purposes are “ar- ranged for.” The words imply intentional action. The only thing that Detrex arranged for Transport Services —————— 9a to do was to deliver TCE to Elkhart’s storage tanks. It did not arrange for spilling the stuff on the ground. No one arranges for an accident, except in the sinister sense, not involved here, of “staging” an accident—that is, causing deliberate harm but making it seem accidental. Statutes sometimes use words in nonstandard senses, and do so without benefit of a definitional section. (The Superfund statute does not define “arrange for.”) Elkhart argues that we can tell that Congress was doing that here because the provision in question speaks of “disposal” and we know that “disposal” includes accidentally spilling. But since context determines meaning, the same word can mean different things in different sentences—to monopolize a conversation doesn’t mean the same thing as to monop- olize the steel industry—even in the same statute, espe- cially when the statute does not attempt to impose a single meaning by defining the word. In the context of the operator of a hazardous-waste dump, “disposal” in- cludes accidental spillage; in the context of the shipper who is arranging for the transportation of a product, “disposal” excludes accidental spillage because you do not arrange for an accident except in the AZsopian sense illus- trated by the staged accident. The words “arranged with a transporter for transport for disposal or treatment” appear to contemplate a case in which a person or institution that wants to get rid of its hazardous wastes hires a transportation company to carry them to a disposal site. If the wastes spill en route, then since spillage is disposal and the shipper had ar- ranged for disposal—though not in that form—the shipper is a responsible person and is therefore liable for clean-up costs. But when the shipper is not trying to arrange for the disposal of hazardous wastes, but is arranging for the delivery of a useful product, he is not a responsible per- son within the meaning of the statute and if a mishap occurs en route his liability is governed by other legal doctrines. It would be an extraordinary thing to make 10a shippers strictly liable under the Superfund statute for the consequences of accidents to common carriers or other reputab'e transportation companies that the shippers had hired in good faith to ship their products. /ndiana Harbor Belt R.R. v. American Cyanamid Co., 916 F.2d 1174, 1180-81 (7th Cir. 1990). The language of the statute per- mits but does not compel such a result, and we can find no evidence that it was intended. This conclusion does not create a regulatory void. Apart from common law liability of transportation companies for chemical spills, noted in our /ndiana Harbor Belt R.R. decision, there are a variety of direct regulatory con- trols over the transportation of hazardous substances, il- lustrated by the Hazardous Materials Transportation Act, 49 U.S.C. App. $$ 1801 et seg. And Elkhart was respon- sible for the cost of cleaning up the contamination result- ing from the spillage from Transport Service’s trucks if it couldn't find any other responsible persons to whom to shift that cost in whole or in part. We conclude that Detrex was liable under the Super- fund statute for the spillage from its own trucks (though it may be able to shift some of that liability back to E’k- hart by means of the counterclaim) but not the spillage from the trucks of the common carrier that it hired. The judgment for Elkhart is therefore affirmed in part and reversed in part and the case remanded to the district court for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit lla APPENDIX B UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION Cause No. S88-620 (RLM) AMCAST INDUSTRIAL CORPORATION, et al., Plaintiffs, VS, DETREX CORPORATION, Defendant. MEMORANDUM AND ORDER Following the order of November 18. 1991 granting in part and denying in part the parties’ cross-summary judgment motions, the court continued the trial and af- forded the plaintiffs, Amcast Industrial Corporation and Elkhart Products Corporation (collectively “Amcast’), until December 16 to move for partial summary judgment on the issue of damages. Amcast has filed its motion, and the briefing is now complete. The court assumes familiar- ity with the facts set forth in the November 18 order and with the procedural history of this case. The court acknowledges both parties’ requests for oral argument on this motion, but declines to hold an oral argument in light of the court’s heavy calendar between now and the scheduled trial and the court’s familiarity with the case. At the pretrial conference held on November 25, 1991, the plaintiffs indicated that they would dismiss their negli- 12a gence and punitive damages claims without prejudice if this second motion for partial summary judgment is granted; if the motion is denied, these claims are scheduled for trial on May 11, 1992. In this motion, Amcast asks the court to grant summary judgment as to the liability of defendant Detrex Corporation (“Detrex”) in Count II of the complaint pursuant to 42 U.S.C. § 9607(a)(3), as to the amount of response costs Amcast is entitled to recover under Counts I and II of the complaint, and as to Detrex’s liability for Arcast’s future costs in respond- ing to the trichloroethylene (“TCE”) contamination at the Elkhart Products Corporation (“EPC”) facility. I. THE MOTION TO AMEND AND ADD A COUNTERCLAIM As a preliminary matter, on February 7, 1992, Detrex moved for leave to amend its answer to include a counter- claim under 42 U.S.C. §$ 9613. Trial is scheduled to com- mence on May 11, and the suit has been pending for four and a half years. Leave to amend is to be freely given when justice so requires, Fed. R. Civ. P. 15(a), but deter- mination of the requirements of justice rest within the trial court’s discretion. Campbell v. Ingersoll Milling Ma- chine Co., 893 F.2d 925, 927 (7th Cir.), cert. denied 111 S.Ct. 127 (1990). Delay alone is not a sufficient basis for denial of a requested amendment, Feldman v. Allegheny Int'l, Inc., 850 F.2d 1217, 1225 (7th Cir. 1988), but a presumption against amendment grows with delay. Tamari v. Bache & Co. S.A.L., 838 F.2d 904, 908 (7th Cir. 1988). The burden to the judicial system can justify a denial of a motion to amend “even if the amendment would cause no hardship at all to the opposing party.” Be- cause substantive amendments shortly before trial serve to defeat the public’s interest in speedy resolu- tion of legal disputes, “[a] district court judge is en- titled, in such circumstances, to refuse to allow a plaintiff's amendment,” l3a Perrian v. O’Grady, No. 90-1267, slip op. at 5 (7th Cir., March 19, 1992) (citations omitted). The motion to amend was made three months before trial, after years of discovery and the filing of serial sum- mary judgment motions. As is discussed below, denial of the amendment will not prejudice Detrex’s right to pur- sue its would-be counterclaim in a separate action. Ac- cordingly, while amendment to these pleadings would jeopardize the trial date of a suit in its fifth year of pendency, the motion’s denial will prejudice nobody. For these reasons, the court now denies the motion to amend. Il. AMCAST’S SUMMARY JUDGMENT MOTION A. Count Il Amcast claims that it is entitled to summary judgment on Detrex’s liability in Count II because the court has already found that Detrex arranged for the disposal of hazardous substances on the EPC site. In a cost recovery action under 42 U.S.C. § 9607(a) (4) (B), a private party must show that: (1) the defendant is a covered person under 42 U.S.C. § 9607(a); (2) there has been a release or threatened release of a hazardous substance from the defendant’s facility; (3) the plaintiffs incurred response costs as a result of the release or threatened release; and (4) the plaintiffs’ response costs were necessary and con- sistent with the national contingency plan (“NCP”). Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989); B.F. Goodrich Co. v. Murtha, 754 F. Supp. 960, 963-64 (D. Conn. 1991); Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269, 1278-79 (D. Del. 1987), affirmed, 851 F.2d 643 (3d Cir. 1988). Amcast notes that CERCLA liability is strict. Dedham Water Co. v. Cum- berland Farms Dairy, Inc., 889 F.2d at 1150; Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 670, n.8 (Sth Cir. l4a 1989); Rodenbeck v. Marathon Petroleum Co., 742 F. Supp. 1448, 1456 (N.D. Ind. 1990). The elements of a prima facie case are straightforward and several courts have found that liability may be resolved in a summary judgment motion. United States v. Bliss, 667 F. Supp. 1298, 1308-09 (E.D. Mo. 1987). Amcast claims that each element of a prima facie case for Detrex’s liability under 42 U.S.C. § 9607(a)(3) (ar- ranging for disposal of hazardous substances) has been established by the November 18, 1991 order. Detrex was found to have released hazardous substances into the envi- ronment, and Amcast was found to have incurred costs that were necessary and consistent with the NCP. Detrex cannot avail itself of the statutory defenses to liability: the environmental contamination did not result from an act of God, an act of war, or an act of a completely independent third party. The November 18 order found that Detrex’s drivers or Detrex’s—contractor, Transport Services, were responsible for spills which occurred be- tween 1978 and 1986; therefore, Detrex is a responsible party within the meaning of 42 U.S.C. § 9607(a)(3). Further, Detrex “disposed” of a hazardous waste when it spilled TCE at the EPC site. Amcast contends that the law of the case establishes the remaining elements of CERCLA liability. The November 18 order determined that Amcast incurred cleanup costs that were necessary and consistent with the NCP. Detrex responds that Amcast’s motion for summary judgment on Count II goes beyond the order of Novem- ber 25. That order allowed the plaintiffs until Decem- ber 16, 1991 to file a motion as to damages, but did not allow the plaintiffs to file another motion for summary judgment on liability. Therefore, Detrex asks the court to ignore the portion of the motion which requests sum- mary judgment as to liability under Count II. Amcast suggests that the motion for summary judgment on Count II is made in the interest of judicial economy, EE —— ean l5a as it would tie up loose ends in this litigation and allow for the presentation of a complete record on appeal. Amcast also claims that a finding of Detrex’s liability under Count II would not affect Detrex’s liability for damages; whether Detrex is liable under Count I or II or both, it is jointly and severally liable for Amcast’s re- sponse costs. In the alternative, Detrex asks the court to reconsider the November 18 order and grant summary judgment in Detrex’s favor on Count II. However, a motion for re- consideration should not be used to relitigate matters upon which the court has ruled. Evans, Inc. v. Tiffany & Co., 416 F. Supp. 224, 244 (N.D. Ill. 1976). If the motion for reconsideration does not demonstrate manifest error of law or fact or present newly discovered evidence, it should be denied. Dresser Industries, Inc. v. Pyrrhus Ag, 936 F.2d 921, 936 (7th Cir. 1991). Detrex’s argu- ments as to Count II do not demonstrate manifest error or present newly discovered evidence. Therefore, the court will not reconsider Detrex’s motion for summary judg- ment as to Count IT. The court finds that, in light of the order of November 18, 1991, summary judgment should be granted in the plaintiffs’ favor as to Count II, except as to any allega- tions related to an overfill spill. B. Count! 1. Joint and Several Liability Detrex argues that CERCLA liability may be several rather than joint and several, and that Detrex should be allowed to show either the divisibility of the harm or the degree of harm caused by Detrex. Detrex cites United States v. Hardage, 116 F.R.D. 460, 465-66 (W.D. Okla. 1987), in which the court stated: A careful review of the legislative history of CERCLA establishes Congress wished to avoid man- l6a datory joint and several liability. The Court may impose joint and several liability where the harm its single and indivisible. However, defendants must be given the opportunity to demonstrate the divisibility of the harm and the degrees to which each defendant is responsible. This determination of liability turns on whether the harm caused .. . is “divisible” or “in- divisible.” The Court notes that imposition of joint and several liability is permissive, but not mandatory. Congress intended issues of liability under CERCLA, including joint and several liability, to be determined under traditional and evolving principles of federal common law. The Court may also apportion dam- ages according to “the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous wastes,” and “the degree of care exercised by the parties with re- spet to the hazardous waste concerned.” United States v. A & F Materials Co., 578 F.Supp. 1249, 1256 (S.D.Ill. 1984). (citation omitted). Detrex suggests applying a case-by-case evaluation of the facts in order to determine whether to impose joint and several liability. State of Idaho v. Bunker Hill Co., 635 F. Supp. 665, 676 (D. Idaho 1986). The Fourth Circuit applied joint and several liability in a case in which the environmental harm was indivisible among multiple generators of hazardous wastes. However, the court stated: While CERCLA does not mandate the imposition of joint and several liability, it permits it in cases of indivisible harm. In each case, the court must con- sider traditional and evolving principles of federal common law, which Congress has left to the courts to supply interstitially. Under common law rules, when two or more persons act independently to cause a single harm for i 17a which there is a reasonable basis of apportionment according to the contribution of each, each is held liable only for the portion of harm that he causes. United States v. Monsanto Co., 858 F.2d 160, 171 (4th Cir. 1988) (citations and footnote omitted), cert. denied, 490 U.S. 1106 (1989). Detrex acknowledges that it has the burden of demon- strating that a reasonable basis for apportionment of damages exists, United States v. Alcan Corp., 755 F.Supp. 531 (N.D.N.Y. 1991); Kelly v. Thomas Solvent Co., 727 F. Supp. 1532, 1552 (W.D. Mich. 1989), and claims that it can do so. Detrex submits the affidavit of Mark Rowland, a groundwater hydrologist, to demonstrate that the harms caused by Detrex are distinct from those caused by other parties. There were, at one point, 783 gallons of TCE in the soil and groundwater beneath the EPC facility. Detrex claims that none of this TCE is at- tributable to the delivery spills for which it is held liable. Mr. Rowland believes that the TCE which spilled during deliveries did not reach the soil, but evaporated without causing harm to the soil or groundwater. Mr. Rowland states that the maximum amount of TCE spilled during deliveries was 49.3 gallons. This constitutes a small percentage (6.296%) of the TCE found in the soil and groundwater. If Detrex is not responsible for all of the delivery spills, then it is responsible only for the 2.8 gallons of spillage from Detrex trucks, or .358% of the 783 gallons of TCE. Therefore, Detrex asserts that there is a reasonable basis for apportionment of damages. This case involved but one contaminant, unlike the multiwaste cases in which apportionment was unreason- able because of the synergistic effect of commingling con- taminants. In Kelly v. Thomas Solvent Co., 727 F. Supp. at 1553-54, the court found joint and several liability proper because the defendants presented no evidence demonstrating that the environmental harm was divisible. In one of the contaminated sites, a mixture of pollutants 18a had migrated from the defendants’ facilities. See also O'Neil v. Picillo, 682 F. Supp. 706 (D.R.I. 1988), af- firmed, 883 F.2d 176 (1st Cir. 1989), cert. denied, 493 U.S. 1071 (1990). Detrex distinguishes this case from United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1395-96 (D.N.H. 1985), in which the hazardous waste was buried in drums throughout the site. In the case at hand, Detrex main- tains, the TCE contamination resulting from delivery spills was limited to the delivery area of the EPC facility. Detrex claims that the court can apportion liability in this case based on the quantity of TCE spilled during delivery compared to the total TCE contamination found. In O’Neil v. Picillo, 682 F. Supp. at 725, the court found it impossible to determine which defendant’s waste con- tributed in a specific manner to the contamination, because different substances of differing levels of toxicity could commingle and have a synergistic effect. However, the court noted: “There is no question that the number of drums may be an appropriate criterion for apportioning liability if all of the drums contained identical wastes.” See also United States v. Monsanto Co., 858 F.2d at 172, n.27. For these reasons, Detrex asks the court to conduct a trial to allow it to establish the negligible amount of dam- ages arising from its “several” liability. Amcast cites United States v. R. W. Meyer, Inc., 889 F.2d 1497 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990), in which the court noted that the responsible parties bear the burden of proving the divisibility of harm, and that “CERCLA has been interpreted to impose joint and several liability when the environmental harm is in- divisible . . . and to allow for apportionment when two or more persons independently are responsible for a single harm that is divisible.” 889 F.2d at 1507 (citing United States v. Monsanto Co., 858 F.2d 160, 171-73 (4th Cir. 1988)). The court went on to state that CERCLA per- EEE 19a mits actions for contribution among parties who are found jointly and severally liable. 889 F.2d at 1507. Amcast claims that although imposing joint and several liability may result in some defendants paying more than their Share of the harm, it would further Congressional intent for “those proven at least partially culpable to bear the cost of the uncertainty.” O’Neil v. Picillo, 883 F.2d at 179. Amcast notes that the volume of TCE alone is an in- sufficient basis upon which to find the harm divisible, citing United States v. Monsanto, 858 F.2d. at 172-73. However, more than one contaminant was found to have caused environmental harm in the Monsanto case: Common sense counsels that a million gallons of certain substances could be mixed together without significant consequences, whereas a few pints of others improperly mixed could result in disastrous conse- quences. Under other circumstances proportionate volumes of hazardous substances may well be proba- tive of contributory harm. In this case, however. volume could not establish the effective contribution of each waste generator to the harm at the . . . site. 858 F.2d at 172-173 (footnotes omitted). Amcast also submits the affidavit of its expert witness. John Mundell. to show that volume alone is an insufficient basis to divide the harm. Mr. Mundell states that the environmental harm is indivisible because “distinct areas indicating separate spill events are not apparent.” Further. the soil and groundwater diffuse chemical spills from the source point, making it impossible to determine whether response costs can be attributed to a particular spill. Amcast claims that to avoid joint and several liability. Detrex must demonstrate a reasonable basis for appor- tionment in addition to demonstrating the divisibility of the harm. In United States v. South Carolina Recycling and Disposal, Inc., 653 F. Supp. 984 (D.S.C. 1984), i i i 20a affirmed in part and vacated in part, United States v. Monsanto, 858 F.2d 160 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989), the district court determined that the apportionment of costs of responding to environmental harm could not be based solely on the volume of wastes each party generated. In that case, however, unlike the case at hand, there were several types of hazardous wastes that were leaking from containers and commingling, so it was impossible to ascertain the degree of harm caused by each generator. Although only one contaminant is involved in this action, unlike those cases in which the court expressed concern over commingling of contaminants, the court is not con- vinced that the harm caused at the EPC site is readily divisible or that there is a reasonable basis for apportion- ment. In light of Mr. Mundell’s affidavit, it appears that the TCE contamination caused by Detrex is not limited to a single area; the earlier summary judgment holdings concerning the “open valve” spill support that conclusion. Further, the TCE spilled during deliverties was less resist- ent to mobilization through the soil than stillbottoms cre- ated during EPC’s processing and spilled by EPC em- ployees. The TCE delivered by Detrex was also more concentrated than the TCE in stillbottoms. Therefore, the amount spilled by EPC employees. compared to the amount spilled by Detrex employees, even if it can be determined. may not be a reasonable basis for apportion- ment of response costs. In the usual case, equitable apportionment of damages comes into play in a contribution action or claim pursuant to 42 U.S.C. § 9613 after joint and several liability is imposed in a cost recovery action pursuant to 42 U.S.C. § 9607. Detrex asserts, however, that in some CERCLA cases between private parties who are potentially responsi- ble for response costs, it is appropriate to try liability and apportion damages in the same action. 2la Detrex claims that it would overlook Congressional intent to require it to reimburse Amcast for one hundred percent of its costs. Congress did not intend for minor contributors to fund the entire Cleanup of a hazardous Waste cite. United States v. A & F Materials Co., Inc., 578 F. Supp. 1249, 1256 (S.D. Ill. 1984). See also O'Neil v. Picillo, 682 F. Supp. at 725-26. Detrex notes that in Amoco Qi] Co. v. Borden, 889 F.2d at 672, the court recognized that in a cost recovery Suit between private Parties, “the action is one for con- tribution, which js specifically recognized under CERCLA. See § 9613(f). Under that Provision, a court has con- siderable latitude in determining each party’s equitable share.” In that case. however, the court concluded that the environmental harm was indivisible and that the plain- tiff ‘owner of the property shared joint and several liability with the defendant/vendor of the property. In Shapiro y. Alexanderson, 741 F. Supp. 472, 478-79 (S.D.N.Y. 1990), the court determined that the plaintiff who was responsible for environmental harm could re- cover contribution from other parties for response costs based on their degree of responsibility. The Shapiro court cid not suggest, however. that the plaintiff's right to re- cover in the § 9607 action should be delayed while the Parties litigated the degree of culpability of each party. In Environmental Transportation Systems, Inc. v. Ensco, Inc., 763 F. Supp. 384 (C.D. Il. 1991), the court stated: Section 9613(f)(1) of CERCLA states that. “fijn resolving contribution claims. the court may allocate response costs among liable parties using such equita- ble factors as the court determines are appropriate.” Thus, it is apparent that a finding that a defendant is a “responsible party” under § 9607(a). as this Court decided ENSCO was . . . 1s only the initial inquiry. Finding that a defendant IS a responsible party and thus strictly liable for contribution under § 9607(a) does not mean that all parties are equally 99a responsible and should share costs on a pro rata basis. Rather, such a finding means only that a defendant is potentially liable for contribution under CERCLA depending upon the relevant fault of the parties. Once a defendant is found to be a responsible party under § 9607(a), the question shifts to how much is that defendant responsible for under the provisions in §$ 9613(f)(1). Thus, ETS’s request for pro rata assessment is rejected as patently inconsistent with the dictates of CERCLA. Section 9613 contemplates a court’s assessing the “relative culpability of each responsible party in de- termining the proportionate share of costs each must bear.” United States v. Monsanto Co., 858 F.2d 160, 170 n.29 (4th Cir. 1988). Environmental Transportation Systems, Inc. v. Ensco, Inc., 763 F. Supp. at 388 (emphasis in original). Detrex con- tends that the court should allocate fault in this action without Detrex having to bring a separate contribution action pursuant to § 9613. Amcast claims that equitable apportionment is only applicable in suits for contribution brought pursuant to 42 U.S.C. § 9613(f), and not in this action, noting that Detrex did not assert a contribution claim. Detrex initially denied all liability. Ameast sug- gests that Detrex should have to abide by the decision it made earlier in this action not to bring a contribution claim. Amcast cites United States v. Pretty Products, Inc., 780 F. Supp. 1488, 1403 (S.D. Ohio 1991) (“Compara- tive fault has no place in a 9607 suit, although it certainly may be relevant in a suit for contribution under 9613.”). In O'Neil v. Picillo, 682 F. Supp. at 725-26, the court determined that apportionment should await an action for contribution. 1 am not insensitive to the possible unfairness involved in holding a few relatively small contributors rr ren 23a jointly and severally liable for the entire harm. In- deed, there is no question that in CERCLA actions, like other actions involving joint tortfeasors, a court may consider equitable factors to apportion damages and mitigate the effects of joint and several liability. I believe. however, that issues of fairness and equita- ble apportionment may be more properly addressed in a subsequent contribution action... . . This is consistent with CERCLA’s key objective of “facilitat[ing] the prompt cleanup of hazardous dumpsites by providing a means of financing both governmental and private responses, and by placing the ultimate financial burden upon those responsible for the danger.” City of Philadelphia v. Stephan Chemical Co., 544 F.Supp. 1135, 1142-43 (E.D.Pa. 1982). By delaying thorny considerations of equita- ble apportionment to a later contribution proceeding, the government is provided immediate funds after the initial liability hearing to take prompt remedial ac- tion at the earliest opportunity. In most instances. immediate response to potential disasters caused by Seepage and migration can forestall the accrual of considerably higher compensation costs. (citation omitted). See also United States v. Stringfellow, 661 F. Supp. 1053, 1060 (C.D. Cal. 1987). In United States v. Kramer, 757 F. Supp. 397, 412 (D.N.J. 1991), the court noted that a contribution claim may be brought during the pendency of a cost recovery action under 42 U.S.C. § 9607. The court allowed the plaintiff, in that case the federal government, to recover its response costs, regardless of its own potential liability for contribution. United States y. Kramer, 757 F. Supp. at 414. The court further reasoned that $ 9607 and § 9613 have different purposes. Collapsing the distinction between section 107 [42 U.S.C. § 9607] and section 113 [42 U.S.C. § 9613] 24a ignores the clear language and structure of the stat- ute. Section 107 imposes liability “[n]Jotwithstanding any other provision or rule of law and subject only to” the defenses set forth in section 107(b). Con- gress enacted section 113 as a separate section to address contribution. [I]t would be “anomalous” to permit apportion- ment of clean-up costs among PRPs in a section 113 action and not to permit apportionment in a section 107 action, but only if defendants in a section 107 action could not seek contribution in a section 113 action. But the structure of CERCLA does not pre- clude consideration of equitable factors, including the liability of a PRP who was (or is) plaintiff in a section 107 action. Rather, CERCLA separates those equitable factors from section 107 and con- siders them in a section 113 contribution action... . .. . CERCLA was enacted to facilitate cleanup of the tens of thousands of hazardous waste sites in this country. Section 107 permits the Government or a private party to go in, clean up the mess, pay the bill, then collect all its costs not inconsistent with the NCP from other responsiblz parties—even if plaintiff was also responsible for the contamination. Any PRP is entitled under section 113 to bring a contribution action against other PRPs—including the PRP who previously cleaned up the mess and was paid for its trouble through a section 107 pro- ceeding—to apportion costs equitably among all the PRPs. Practically speaking, section 107 permits a PRP, including the Government, to collect all its response costs, even those that that same PRP may be required to pay back to other PRPs as its equita- ble share in a section 113 proceeding. What might be called a windfall for a_ plaintiff PRP in a section 107 action serves as .an incentive for private parties to clean up hazardous waste sites, a 25a to risk their own capital initially, knowing that by then prevailing in a section 107 action, they will be reimbursed perhaps in excess of what might be shown in a section 113 action to have been their equitable Share. If the courts collapse the distinction between a section 107 and 113 proceeding, there will be less incentive for private parties to initiate cleanup, since they would lose the use of that temporary windfall gained in a section 107 action. United States v. Kramer, 757 F. Supp. at 416-17 (em- phasis in original) (footnote omitted ). Many of the cases upon which Detrex relies analyzed contribution claims under &§ 9613, e.g., Amoco Oil vy. Borden, Inc., 889 F.2d at 672; Shapiro v. Alexanderson, 741 F. Supp. at 479, n.5. In In re Dant & Russell, Inc., 951 F.2d 246 (9th Cir. 1991), the court applied § 9613 to apportion liability in a § 9607 action, but relied in part on the fact that the party seeking response costs had admitted CERCLA liability. Amcast has made no such admission. Further, the Dant & Russell court apportioned liability within the context of a proof of claim in a bank- ruptcy case. Detrex cites FMC Corp. v. Northern Pump Co., 668 F. Supp. 1285 (D. Minn. 1987), in which the plaintiff brought a § 9607 claim and there was no § 9613 counter- claim. In that case, the district court determined that one of the potentially responsible persons was not liable. The court noted that two factors were necessary to impose liability for response costs: CERCLA liability and account- ability for disposal of hazardous wastes. The court found that one party was potentially liable under CERCLA, but it was not accountable for disposal of hazardous wastes. The court’s decision was based in part on the fact that the party had been released from liability by agreement, and that the party had not disposed of hazardous wastes at the site. FMC Corp. v. Northern Pump Co., 668 F. Supp. at 1290-91. In this case, Detrex has not been re- 26a leased from liability, and Detrex was found to have re- leased TCE at the EPC site. The court finds the reasoning of United States v. Kramer, 757 F. Supp. 397, persuasive. CERCLA’s intent is better realized when the apportionment of liability takes place in a claim under § 9613. Section 9607 does not provide for apportionment of liability, and has only a limited number of defenses that do not apply to this action. Therefore, the court concludes that it should not engage in equitable apportionment of the parties’ liability in this case. Apportionment will have to await Detrex’s filing of an action against § 9613. Detrex argues that Amcast’s earlier settlement with former shareholder defendants should be considered in this court’s apportionment. The plaintiffs in this action received $1 million from the former shareholder defend- ants. In Comerica Bank-Detroit v. Allen Industries, Inc., 769 F. Supp. 1408 (E.D. Mich. 1991), the court applied comparative fault to a CERCLA action settlement. Under §$ 6 of the Uniform Comparative Fault Act, the plaintiffs’ recovery against the non-settling defendants is reduced by the settling defendants’ equitable share of fault. There- fore, Detrex claims, before assigning a percentage of fault against Detrex, the court should determine the fault of Detrex, the plaintiffs, and the former shareholders. Detrex has submitted a considerable amount of evidence in this motion and in its previous motion for summary judgment, indicating that the Elkhart Products Corporation employ- ees were responsible for some of the TCE contamination. Many of the areas where contamination occurred were separate from the delivery area, where Detrex’s spills occurred. For the reasons stated above, the court will not appor- tion liability in this case. Even if apportionment were applied against Amcast, the court would not apportion the liability of the former shareholder defendants, as the order of November 14, 1990 determined that the former 27a shareholders were not liable. The plaintiffs are entitled to recover their response costs from Detrex. 2. Additional Costs Amcast claims that it is entitled to recover all of its response costs, including its attorney fees, against Detrex in light of the court’s finding of liability on Count I. As of November 22, 1991, Amcast had incurred $1.197,- 082.42 in costs which it now seeks to recover. CERCLA provides that private parties may recover “any . . . neces- sary costs of response incurred . . . consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). Amcast claims that its response costs include expenses incurred in storage, confinement, treatment, transport, and disposal of hazardous waste, and monitoring the effective- ness of the response. Ascon Properties, Inc. v. Mobile Oil Co., 866 F.2d 1149, 1154 (9th Cir. 1989), discusses the scope of the term “response cost”. CERCLA does not define the term “response cost.” However, in its definitional section, CERCLA does define “response” as “remove, removal. remedy, and remedial action.” 42 U.S.C. § 9601(25). These four terms are defined in the two immediately pre- ceding subsections, §§ 9601(23) & (24). Section 9601(23) makes clear that “removal” includes “the cleanup . . . of released hazardous substances from the environment.” (citation omitted). Amcast’s response costs include the cost of investigating the release of a hazardous substance, as well as evaluating and producing methods to address the release. 42 U.S.C. §§ 9601(23), (24); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1575 (Sth Cir. 1988); Cadillac Fairview ‘California, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir. 1988). 28a a. Indirect Costs Amcast also contends that in addition to recovering the costs directly related to addressing the TCE con- tamination, it is entitled to recover such indirect costs as labor expenses and office supplies attributable to its re- sponse action. Of the $1,197,082.42 of costs incurred as of November 22, 1991, $55,992.28 constituted in- direct employee labor costs. In T & E Industries, Inc. v. Safety Light Corp., 680 F. Supp. 696, 706-07 (D.N.J. 1988), the court found that recoverable costs under 42 U.S.C. § 9601(23) en- compassed the value of the time the company president spent in evaluating and mitigating the contamination prob- lem. See also United States v. R. W. Meyer, Inc., 889 F.2d 1497 (6th Cir. 1989), cert. denied, 494 U.S. 1057 (1990); and United States v. Hardage, 733 F. Supp. 1424, 1437 (W.D. Okla. 1989) (the government was entitled to recover its indirect response costs). Detrex contends that employee labor is not a response cost recoverable in a CERCLA action, citing Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269, 1285-96 (D. Del. 1987), aff'd, 851 F.2d 643 (3rd Cir. 1988), which noted that Congress chose not to provide recovery for income loss. Detrex also cites In re Hemingway Transport, Inc., 126 Bankr. 656, 663 (D. Mass. 1991), aff'd, 954 F.2d 1 (1st Cir. 1992), which stated that CERCLA does not provide recovery for employee time spent in cleanup efforts. The court agrees with Amcast that the indirect costs of employee labor and overhead expenses are recoverable, as such costs are “part and parcel of all costs of the removal action, which are recoverable under CERCLA.” United States v. R. W. Meyer, Inc., 889 F.2d at 1503. 29a b. Attorney Fees Amcast seeks its attorney fees incurred in connection with its response actions and this cost recovery suit, citing 42 U.S.C. § 9601(25), which states that “[t]he terms ‘respond’ or ‘response’ means [sic] remove, re- moval, remedy, and remedial action, all such terms (in- cluding the terms ‘removal’ and ‘remedial action’) include enforcement activities related thereto.” In Pease & Cur- ren Refining, Inc. v. Spectrolab, Inc., 744 F. Supp. 945, 951 (C.D. Cal. 1990), and in General Electric Co. v. Lit- ton Business Systems, Inc., 715 F. Supp. 949, 959 (W.D. Mo. 1989), aff'd, 920 F.2d 1415 (8th Cir. 1990), cert. denied, 111 S. Ct. 1390 (1991), the courts determined that attorney fees were recoverable response costs. Detrex claims that attorney fees are not recoverable response costs. Case law is inconsistent. Several cases have denied attorney fees in private CERCLA actions. State of New York v. SCA Services, Inc., 754 F. Supp. 995, 1000 (S.D.N.Y. 1991), stated that the prevailing rule is that attorneys fees are not recoverable in private CERCLA actions and that if Congress had intended to allow recovery of attorney fees it would have so provided See also Mesiti v. Microdot, Inc., 739 F. Supp. 57, 62 (D.N.H. 1990); Regan v. Cherry Corp., 706 F. Supp. 145, 149 (D.R.I. 1989). In Pease & Curren Refining, Inc v. Spectrolab, Inc., 744 F. Supp. at 950-51, the court concluded that allow- ing attorney fees as recoverable response costs would further CERCLA’s intent to provide prompt and effective cleanup of waste disposal sites and insure that those re- sponsible for the release of hazardous substances bore the cost of response, citing Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir. 1986). See also General Electric Co. v. Litton Automation Systems, 920 F.2d at 1422. In allowing recovery of attorney fees and litigation expenses in a cost recovery action, the court 30a in Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 710 (D. Kan. 1991), stated: By providing private parties with a federal cause of action for the recovery of necessary expenses in the cleanup of hazardous wastes, Congress intended § 107 as a powerful incentive for these parties to expend their own funds initially without waiting for the re- sponsible persons to take action. ... The court can conceive of no surer method to defeat this purpose than to require private parties to shoulder the finan- cial burden of the very litigation that is necessary to recover these costs. Thus, to the extent that any litigation costs incurred by the plaintiffs fall within the meaning of the “necessary costs’ authorized under § 9607(a)(4)(B), plaintiffs are entitled to recover such costs. See also Key Tronic Corp. v. United States, 766 F. Supp. 865, 871-72 (E.D. Wash. 1991). This court finds the Bolin court’s position persuasive and well-taken. It would defeat the express purpose of CERCLA to require plain- tiffs seeking to recover response costs to incur attorney fees in connection with their actions to recover response costs. Enforcement activities recoverable under § 9607 necessarily include attorney fees, and, therefore, Amcast may recover its attorney fees in this action. C. Declaratory Relief Amcast requests a declaratory judgment pursuant to 42 U.S.C. § 9613(g)(2) that Detrex is liable for any future costs it incurs in cleaning up the TCE contamination, claiming that such a judgment is appropriate as to future costs because the court cannot award costs until they are incurred. United States v. Hardage, 733 F. Supp. at 1439; Williams v. Allied Automotive Autolite Division, 704 F. Supp. 782, 784° (N.D. Ohio 1988); Rockwell In- ternational Corp. v. I U International Corp., 702 F. Supp. 1384, 1388 (N.D. Ill, 1988). ee 3la Detrex claims that Amcast is not entitled to declara- tory relief as to the plaintiffs’ future response costs because a trial is necessary to determine each party’s liability. CERCLA provides for a declaratory judgment on liability for response costs in § 9607 actions. 42 U.S.C. § 9613 (g)(2). InIn re Dant & Russell, Inc., 951 F.2d at 249- 50, the court explained the propriety of declaratory re- lief as to future response costs in a CERCLA action: [Sections 9607 and 9613(g)(2)] envision that, before suing, CERCLA plaintiffs will spend some money responding to an environmental hazard. They can then go to court and obtain reimbursement for their initial outlays, as well as a declaration that the responsible party will have continuing liability for the cost of finishing the job. This system strikes a balance between a number of considerations. By requiring a plaintiff to take some positive action before coming to court, CERCLA insures that the dispute will be ripe for judicial review. On the other hand, by not requiring plaintiffs to perform full cleanup before coming to court, and by expressly providing for declaratory judgments, CERCLA substantially reduces the risk involved in performing the cleanup. This encourages private response. (citation omitted). See also United States v. Kramer, 757 F. Supp. at 412. The court agrees, and concludes that the plaintiffs are entitled to a declaratory judgment as to their future re- sponse costs. III. CONCLUSION For the foregoing reasons, the court hereby DENIES the defendants’ motion to amend, and GRANTS the plain- tiffs’ motion for partial summary judgment. In light of the plaintiffs’ representation that they will dismiss their 32a common law negligence claim in Count VI and their claim for punitive damages, it appears that no issues remain in this case, and the clerk is directed to enter judgment in accordance with this order and the order of November 18, 1991. Judgment shall be entered for the plaintiffs on Counts I, Il, IV, V, VIl, VUI, (X, and XIII of the plaintiffs’ complaint in the amount of $1,197,082.42 as response costs incurred as of November 22, 1991, plus attorneys fees, litigation expenses and prejudgment interest in sums to be determined hereafter pursuant to District Rule 43. Interest shall accrue on the amount of the judgment as allowed by law. Declaratory judgment shall be entered for the piaintiffs as to defendant Detrex’s liability for all future response costs incurred by plaintiffs in responding to the TCE contamination at plaintiff Elkhart Products’ plant in Elkhart, Indiana. The future response costs for which defendant Detrex and its successors or assigns are liable include attorneys fees, litigation and expenses and prejudgment interest. SO ORDERED. ENTERED: April 9, 1992 /s/ Robert L. Miller, Jr. ROBERT L. MILLER, JR. United States District Court Judge 33a APPENDIX C UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION Cause No. $88-620 (RLM) AMCAST INDUSTRIAL CORPORATION, et al., Plaintiffs Vs. DETREX CORPORATION, et al., Defendants MEMORANDUM AND ORDER This is a CERCLA case in which the plaintiff seeks to recover response costs against a supplier of a hazardous [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0724%3A1. Public record. Not legal advice.