# Appendix — Amcast Industrial Corp. v. Detrex Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1550%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 515 U.S. 1103 ## Text la APPENDIX UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 94-2026 AMCAST INDUSTRIAL CORPORATION and ELKHART PRODUCTS CORPORATION, Plaintiffs-A ppellees, Vv. 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 November 29, 1994, Submitted January 10, 1995, Decided Before POSNER, Chief Judge, and FLAUM and KANNE, Circuit Judges. POSNER, Chief Judge: This is a sequel to the deci- sion of the same panel reported at 2 F.3d 746 (7th Cir. 1993), in which we largely aflirmed a judgment that the district court had entered in December of 1992 declaring that Detrex Corporation was liable to the plaintiffs for 2a “response costs” under the Superfund statute, 42 U.S.C. § 9613(g)(2), and that these response costs included the attorneys’ fees that the plaintiffs had incurred to es- tablish Detrex’s liability. No assessment of attorneys’ fees had yet been made, however. More than a year later— March 1994—the district court entered an order directing Detrex to pay more than $500,000 in attorneys’ fees, from which Detrex appeals. In June, while this appeal was pending, the Supreme Court decided Key Tronic Corp. v. United States, 128 L. Ed. 2d 797, 114 S. Ct. 1960 (1994), holding that response costs do not include attorneys’ fees. Detrex argues that the doctrine of law of the case permits us to reconsider, in light of Key Tronic, our earlier ruling that response costs include at- torneys’ fees. The plaintiffs call the ruling res judicata, precluding reconsideration. We affirmed the district court’s declaratory judgment in all but one respect, and this un- related to the amount of response costs for which Detrex was liable or to the issue whether those costs include at- torneys’ fees. (The district judge had based liability on Detrex’s status not only as an owner and operator of tanker trucks but also as an arranger of transportation by a common carrier, and we held that it was liable only as an owner and operator.) The plaintiffs ask us to hold that when we affirmed the relevant portions of the de- claratory judgment, and the Supreme Court denied cer- tiorari, the judgment became “final” for purposes of res judicata. If in our first decision we had merely ruled that re- sponse costs include attorneys’ fees, and had remanded for the entry of an appropriate judgment, it would be reasonably clear that the ruling was merely an interim ruling in an ongoing case. The doctrine of law of the case, which governs the weight that interim rulings in a litigation are given in the subsequent stages of that liti- gation, Williams v. Commissioner, 1 F.3d 502, 503-04 (7th Cir. 1993); Devines v. Maier, 728 F.2d 876, 880 (7th Cir.. 1984), would apply—not res judicata—and 3a would permit reconsideration on the basis of an interven- ing decision by the Supreme Court. Key v. Sullivan, 925 F.2d 1056, 1060 (7th Cir. 1991); Young v. Herring, 938 F.2d 543, 547-48 (Sth Cir. 1991) (en banc). We did more. We affirmed, with an immaterial exception, a declaratory judgment one element of which was a declara- tion that the plaintiffs were entitled to an award of at- torneys’ fees in an amount not yet determined. The Supreme Court denied certiorari. All this happened be- fore the Key Tronic decision. The denial of certiorari is a red herring. It marks the end of the appellate process and so, if the judgment from which certiorari was sought were itself a final judgment (the significance of this qualification will become clear in due course), it establishes finality in a strong sense. But we shall see that a final judgment is res judicata even if it is still appealable. A more important though not necessarily decisive point is that our ruling when last this case was before this panel was not a final judg- ment in the sense in which 28 U.S.C. § 1291 (the “final judgment” rule of federal appealability) makes certain decisions by district courts final and appealable; and the black-letter rule is that the doctrine of res judicata re- quires a final judgment. Federated Department Stores v. Moitie, 452 U.S. 394, 398-99, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981); Hermann v. Cencom Cable Asso- ciates, Inc., 999 F.2d 223, 224 (7th Cir. 1993). This is true whether one is speaking of res judicata in its nar- row sense (“claim preclusion”) as a bar against relitigat- ing or splitting claims, or of collateral estoppel (“issue preclusion”), which bars the relitigation, in subsequent proceedings between the same parties concerning the same dispute, of specific issues heard and decided in their pre- vious suit. “Subsequent proceedings may, it is true, in- clude collateral proceedings in the same litigation—a _per- tinent observation since the dispute in this appeal con- cerns attorney’s fees. Suppose a final judgment were rendered in a plaintiff's favor and later he moved for an 4a award of attorney’s fees or for an order that the defend- ant disclose the whereabouts of assets needed to pay the judgment. The plaintiff could not in those subsequent, collateral proceedings reopen issues settled by the final judgment, on the ground that the suit was ongoing. The suit would have ended. Collateral proceedings are— collateral. They do not disturb finality. The application of collateral estoppel to prevent relitigation in such pro- ceedings is consistent, therefore, with the principle that collateral estoppel like res judicata applies only when there has been a final judgment. And yet the principle itself is not unwavering. It is adhered to much more strictly when the issue is the ap- plicability of res judicata than when it is the applicability of collateral estoppel, Restatement (Second) of Judg- ments § 13, comments a, g (1982), but even there there have been occasional exceptions. See, e.g., Alyeska Pipe- line Service Co. v. United States, 231 Ct. Cl. 540, 688 F.2d 765 (Ct. Cl. 1982). (There are few generalizations in American law to which there are no exceptions.) Yet a good deal more latitude is allowed when collateral estoppel is invoked rather than res judicata. In Méiller Brewing Co. v. Joseph Schlitz Brewing Co., 605 F.2d 990, 996 (7th Cir. 1979), and Gilldorn Savings Ass'n v. Commerce Savings Ass'n, 804 F.2d 390, 393 (7th Cir. 1986), we adopted Judge Friendly’s suggestion in Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961), that “whether a judgment, not ‘final’ in the sense of 28 U.S.C. § 1291, ought never- theless be considered ‘final’ in the sense of precluding further litigation of the same issue, turns upon such fac- tors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review.’ See also Avitia v. Metropoli- tan Club of Chicago, Inc., 924 F.2d 689 (7th Cir. 1991); United States v. Sherman, 912 F.3d 907, 909 (7th Cir. 1990); Restatement, supra, § 13, comment g. And it is collateral estoppel rather than res judicata to 5a which the plaintiffs are appealing in this case. New claims or split claims are not in question. The plaintiffs want us to prevent Detrex from relitigating a specific issue, whether response costs include attorneys’ fees. And although, as the “requirement” of a final judgment implies, res judicata or collateral estoppel is normally as- serted in a separate case from the one in which the judg- ment or ruling sought to be used as a bar to further litigation was rendered, there are exceptions to this prin- ciple too. See, e.g., Avitia v. Metropolitan Club of Chi- cago, Inc., supra; Alyeska Pipeline Service Co. v. United States, supra; Lair v. Oglesby, 14 F.3d 15, 17 n. 2 (8th Cir. 1993); Bullen v. de Bretteville, 239 F.2d 824, 829 (9th Cir. 1956). As one expects, they mainly concern collateral estoppel. Avitia will illustrate. The district judge denied a preliminary injunction, and the disap- pointed movants could of course have appealed even though there was no final judgment. 28 U.S.C. § 1292 (a)(1). They did not. Instead they renewed their mo- tion for a preliminary injunction. We said that recon- sideration of the ground on which the district judge had denied the first motion was barred by collateral estoppel. The movants had had a full and fair opportunity to liti- gate the issue, and it had been decided in a final, appeal- able order. They had deliberately delayed in seeking an authoritative resolution. We must situate the present case in this welter of prin- ciples and exceptions. It is helpful to orderly discussion to ask first whether there is a final judgment in the sense of 28 U.S.C. § 1291 and then whether, if not, the absence can be overlooked on the authority of cases such as Avitia. We did not actually affirm the declaratory judgment that the district judge had issued in December 1992. We reversed in part and remanded for further proceed- ings, which resulted in the issuance of a new declaratory judgment in April 1994, the month after the attorneys’ 6a fees order was entered. Although the new declaratory judgment was not significantly different from the old one, it was a new, final judgment from which Detrex could have appealed and in fact did appeal. (Its appeal is from both the award of attorney’s fees and the second declaratory judgment, although the only relief it seeks concerns the attorney’s fees.) Moreover, even if the re- mand could be ignored, as immaterial to attorney’s fees, the propriety of treating as final and appealable a declara- tory judgment that declares a right to attorneys’ fees in an amount yet to be determined is questionable, to say the least. Szabo v. U.S. Marine Corp., 819 F.2d 714, 717 (7th Cir. 1987), compares such a declaration to a ruling on liability, leaving damages for later determina- tion, and points out that such a ruling is not a final, appealable judgment. If so, there was no final judg- ment in this case when Key Tronic was decided even if the remand for modification of the declaratory judg- ment is ignored. We can approach the question slightly differently, though with the same result. Orders concerning attorneys’ fees are normally deemed collateral to the litigation in which they are awarded. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 100 L. Ed. 2d 178, 108 S. Ct. 1717 (1988). Probably, therefore, the declaratory judg- ment should have been deemed to consist of two orders, one declaring Detrex’s liability for response costs other than attorney’s fees, the other its liability for attorney’s fees. Cf. Szabo v. U.S. Marine Corp., supra, 819 F.2d at 717. The latter order, though possibly reviewable to- gether with the former under the doctrine of pendent ap- pellate jurisdiction, id. at 717, would have been deemed nonfinal until the amount of fees was determined and the fees were ordered paid. Apex Foundation Sales, Inc. v. Kleinfeld, 27 F.3d 931, 935-36 (3d Cir. 1994); see also Szabo v. U.S. Marine Corp., supra, 819 F.2d at 717. That did not happen until March of 1994. ree ne ni NORRIS eR Rae sit8 rennin cB Ta So either the lawsuit as a whole was still pending when Key Tronic was decided, or the order awarding attorneys’ fees—the only part of the lawsuit affected by that decision—was still pending. Either way, there was no final judgment; but we have seen that a final judg- ment is not an absolute requirement of collateral estoppel. (Another way to put this, though it comes to the same thing, is that finality has a different meaning when the issue is appealability and when the issue is collateral estoppel, or in rare cases res judicata. See Restatement, supra, comment b.) And, superficially at least, the Lummus criteria seem fulfilled in this case. We had de- cided, upon full hearing and, we thought, with finality, that response costs do include attorneys’ fees. Certiorari had been sought and denied. The issue was concluded, and could not have been reexamined by the district court; only the amount of attorneys’ fees, not the plaintiffs’ en- titlement to them, remained for further consideration. We had decided the issue of entitlement “finally.” We had. But Detrex had not exhausted its appellate remedies. The Supreme Court has jurisdiction to review nonfinal decisions by the courts of appeals, 28 U.S.C. § 1254(1); Forsyth v. Hammond, 166 U.S. 506, 41 L. Ed. 1095, 17 S. Ct. 665 (1897); 17 Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Fed- eral Practice and Procedure § 4036 (2d ed. 1994), such as our decision affirming in part and reversing in part the first declaratory judgment. A denial of certiorari from one of these nonfinal decisions does not preclude a grant of certiorari to review the identical issue at a later stage in the case. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 365 n. 1, 34 L. Ed. 2d 577, 93 S. Ct. 647 (1973); 16 Charles Alan Wright et al., Federal Practice and Procedure § 4004, p. 511 (2d ed. 1994). Clearly, then, this case is not yet final in the eyes of the Supreme Court. If we refuse to apply Key Tronic, Detrex can ask the Supreme Court to grant review and direct us to do so. The Court is quite likely 8a to oblige, since its policy is to apply new decisions to all cases that were not yet final when the new decision came down. Harper v. Virginia Dept. of Taxation, 125 L. Ed. 2d 74, 113 S. Ct. 2510, 2517 (1993); United States v. Burnom, 27 F.3d 283 (7th Cir. 1994). Although judgments that have not yet been, and still can be, appealed, are res judicata (or have collateral- estoppel effect), Williams v. Commissioner, supra, 1 F.3d at 504, the reasons are to discourage the filing of a new suit when the loser of the prior suit still has a remedy in that suit, id. at 504, and to discourage the parties to dawdle awaiting the decision on appeal of another suit, and neither reason is applicable to a case such as this where the doctrine is invoked in an effort to prevent the loser from exhausting his appellate remedies. Detrex is not bringing a new suit. Nor did it, so far as we can tell, delay the resolution of this suit in the hope that the Supreme Court would bail it out. It is asking us to give it an appellate remedy in its only suit. If we do not, the Supreme Court will. We admit that there is an element of circularity in relying on this last point, for if we decided that the doctrine of collateral estoppel forbade us to apply Key Tronic, this would furnish an independent basis for a decision not to award the plaintiffs attorney’s fees, and if the Court agreed it would not reverse us even if the re- sult was an outcome contrary to Key Tronic. But the essential point is that Detrex should not be deprived of its full appellate remedies in the name of collateral estoppel. What has made this case complicated to analyze is the apparent merger of law of the case and collateral estop- pel that has been brought about by allowing collateral estoppel to be based on judgments that are not final and appealable, that are, therefore, in a sense merely interim rulings, as in this case. For interim rulings are the do- main of the law of the case doctrine. As both law of the ew 9a case and collateral estoppel are flexible doctrines, classifi- cation need not be critical. Both doctrines express a re- luctance motivated by a desire to promote the inexpen- sive and expeditious dispatch of litigation to reopen issues that have been resolved with a fair approach to defini- tiveness. That definitiveness is missing where as in this case a litigant has not exhausted his appellate remedies— recall that “opportunity for review” was cne of the fac- tors mentioned by Judge Friendly in Lummus as bearing on the decision whether to give collateral estoppel effect to a nonfinal order. It is true as we have noted that exhaustion of appellate remedies is not a normal requirement of res judicata or collateral estoppel. A final judgment by a district court has preclusive effect even though the judgment is pend- ing on appeal. But of course the only preclusion is of other suits, or of specific issues in other suits; the los- ing party is not precluded from pressing his appeal! Which describes this case. Until our ruling on the scope of response costs became final, Detrex was entitled to pursue its appellate remedies, and hence to obtain the benefit of a favorable decision by the Supreme Court rendered before the pursuit was complete. The order awarding attorney’s fees is REVERSED. lua 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 Plaintiffs Amecast Industrial Corporation and Elkhart Products Corporation (collectively referred to as “Am- cast”) seek $755,755.57 in attorneys’ fees and litigation expenses, $30,636.76 in additional response costs, and $374,013.64 in prejudgment interest. Amcast also moves for oral argument on its motion, but because the court can address Amcast’s motion adequately based upon the parties’ written submissions, the court denies Amcast’s motion for oral argument. For the reasons that follow, Amcast’s motion for attorney fees must be granted in part and denied in part. I. ATTORNEY FEES Amcast, which bears the burden of establishing the amount of compensable attorney time, Tomazzoli v. Sheedy, 804 F.2d 93, 96 (7th Cir. 1986); Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 776 F.2d 646, 650 (7th Cir. 1985), should have excluded any excessive, redund- ant, or unnecessary hours from its free request; to the extent that it did not, the court has the power to deduct | a os lla such hours from the fees requested. Tomazzoli v. Sheedy, 804 F.2d at 96; Lomas v. Kolb-Lena Cheese Co., 720 F. Supp. 110, 113 (N.D. Ill. 1989). Amcast also must use “billing judgment” in submitting its fees—hours not properly billed to one’s client should not be billed to one’s adversary. Hutchinson v. Wells, 719 F. Supp. 1435, 1441 (S.D. Ind. 1989). Such hours include time spent organiz- ing files or reviewing billing records. /d. Amcast’s counsel used block billing ( grouping a num- ber of tasks together as one entry on the invoice, without breaking down the time spent on each individual task), which poses a challenge to courts: [Where activities are grouped, time should be ap- propriately apportioned. Otherwise, the court is left with the choice of estimating a portion of the time for ap. ~ticular activity, or excluding the entire entry. In the interests of justice, the court will opt for the second a,proach, emphasizing that more detailed documentation would be wise and appropriate in the future. Claus by Claus v. Goshert, 657 F. Supp. 237, 244 (N.D. Ind. 1987); see also Hutchinson v. Wells, 719 F. Supp. at 1441; Bovey v. City of Lafayette, 638 F. Supp. 640, 646-47 (N.D. Ind. 1986). Thus, when there is a valid objection to a specific task within a block billing, the court will estimate the time of the objectionable task, and exclude it from the total fee request. Finally, the court must address Amcast’s method of checking citations. Amcast’s paralegals apparently do more than simply Shepardize cases; they also “check that the proposition being cited is not being misstated or overstated, which requires a reading and an understand- ing of both the brief and the caselaw.” See Amcast’s Reply, at 25-26. The court commends Amcast’s counsel for its thoroughness of review, but finds the bulk of this time duplicative. Given that Améast’s experienced lead 12a counsel were charging up to $170 per hour for their services, defendant Detrex Corporation should not have to pay paralegals to insure that Amcast’s counsel do not misstate or overstate authority to the court. Amcast seeks $755,755.57 in attorneys fees and ex- penses. In support of its motion, Amcast submitted sev- eral hundred pages of billing entries and invoices. Detrex maintains that “$352,151.65 is the most that Amcast can recover for attorney fees and litigation expenses.” See Detrex’s Surreply, at 2. Using Amcast’s billing entries and invoices, Detrex color-coded more than a thousand individual objections to entries on the billings and invoices. Fortunately, most of the objections involve questions of law, which Detrex grouped into the following categories: (1) fees incurred with respect to state law claims; (2) fees incurred in the USEPA/Main Street proceedings; (3) fees and expenses that should never have been incurred; and (4) fees and expenses incurred that are not response costs or not consistent with the National Contingency Plan. Unfortunately, other objections—excessive/duplica- tive time and deficient billing records—must be addressed on an individual basis. These objections will be addressed in turn. The court will proceed to determine the amount of recoverable attorney fees and litigation expenses in the following manner. The court will presume that the amount Amcast requested—$755,755.57—is a correct figure. Using Detrex’s color-coded objections to Amcast’s sub- missions and Detrex’s numerous objections, it is the best method for resolving this dispute. A. State Law Claims (Red Highlights) In addition to claims under the Comprehensive En- vironmental Response, Compensation, and Liability Act (“CERCLA”), Amcast sued Detrex under state law for 13a breach of contract, trespass, negligence, strict liability for harm resulting from an abnormally dangerous activ- ity, nuisance, indemnity, and punitive damages. Amcast also brought state law claims against the shareholders, and brought separate state court proceedings against the representing shareholders. Amcast seeks attorney fees for bringing these non-CERCLA actions because these claims arose and depend upon the same core of facts as Amcast’s successful CERCLA claim. Detrex contends that Amcast cannot recover for un- successful state law claims brought in this court, oF in state court, citing Gopher Oil Co., Inc. v. Union Oil Co. of California, 757 F. Supp. 998 (D. Minn. 1991), aff'd in part and remanded, 955 F.2d 519 (8th Cir. 1992). In that case, the plaintiff brought an action under CERCLA, MERLA (Minnesota Environmental Response and Liability Act, Minn. Stat. $§ 115B.01-115B.37, Min- nesota’s counterpart to CERCLA), as well as a number of state common law theories including negligence, nui- sance, trespass, and fraud. The court directed a verdict for the defendant on all the state common law claims except fraud; judgment ultimately was rendered for the plaintiff under CERCLA and MERLA, and on the fraud claim. The plaintiff sought recovery of attorney fees in- curred in litigating all the claims, but the district court held that the plaintiff could only recover those attorney fees associated with the CERCLA, MERLA, and fraud claims: In addition to claims under CERCLA, MERLA, and common law fraud, [the plaintiff's] complaint contained claims based on negligent misrepresenta- tion, negligence, nuisance, trespass, environmental tort and negligence per se. Only the CERCLA, MERLA and fraud claims were allowed to go to the jury. [The plaintiff] has failed to present the court with any authority which would allow recovery ————— l4a of attorneys’ fees on its non-fraud common law claims. Moreover . . . the United States Supreme Court held that where the plaintiff has failed to pre- vail on a claim that is distinct in all respects from the successful claims, the hours spent on the un- successful claims should be excluded in considering the amount of a reasonable fee. The court finds no persuasive reason why [the plaintiff] should be al- lowed to recover attorneys’ fees for its non-fraud common law claims. Gopher Oil Co. v. Union Oil Co. of California, 757 F. Supp. at 1009 (citation and internal quotations omitted). The United States Court of Appeals for the Eighth Circuit affirmed the district court, but also held that the plaintiff could not recover attorney fees related to the fraud litigation: [The defendant] questions the propriety of the award of attorney fees incurred in pursuing the fraud claim because, absent statutory authority, the pre- vailing party is not entitled to attorney fees. In this case, the successful pursuit of the fraud claim served a purpose overriding the CERCLA and MERLA claims by insulating plaintiff from contribution and making the “as is” clause inapplicable and irrelevant. Under these circumstances, the defendant should not incur liability for fees related to the fraud claim, notwithstanding the interrelationship of that legal work with the environmental claims. Accordingly, we remand for a redetermination or an apportion- ment of attorney fees to exclude work related to the fraud litigation. Gopher Oil Co. v. Union Oil Co. of California, 955 F.2d at 527. Gopher Oil is closely on point. Like the Gopher Oil plaintiff, Amcast brought claims under CERCLA, as 15a well as claims under state common law. Amcast did not prevail on its state law claims, and has presented no authority that would allow it to recover attorney fees for unsuccessful, distinct state law claims. Moreover, most of the state law claims (such as negligence, tres- pass, breach of contract, strict liability, nuisance, indem- nity, and punitive damges) do not further CERCLA’s twin goals of prompt clean-up and imposition of such costs on the responsible party; rather, they simply pro- vide compensation for injury to a party. Accordingly, recovery of attorney fees in this case is not warranted on Amcast’s state law claims. Detrex calculates that the fee entries which relate solely to the state law matters total $17,733.50. The court has reviewed each objection raised by Detrex and calculates a slightly lower figure—$ 1 6,673.00. The difference, $1,060.50, is based on the following: _Smith & Schnake (“S&S”) (8/31/89 )—Because of block billing, Detrex objects to the total amount of $375.00; the court believes that only $200.00 concerned state matters. —Faruki, Gilliam & Ireland ( “FG&I") (04/5/91) —Detrex’s objections total $180.00, not $645.00. —FG&I (4/30/91)—Detrex’s objections total $1,464.50, not $1,465.00. FG&I (8/5/91)—Detrex objected to $180.00 for discovery requests, no showing that these discovery requests concerned state law matters. __FG&I (9/6/91)—Because of block billing, De- trex objected to $360.00; the court believes that only $120.00 concerned state matters. Accordingly, Amcast’s fee request will be reduced by $16,673.00. 16a B. USEPA/Main Street Proceeding (Purple Highlights) Amcast’s billing invoices include entries related to the Main Street Well Field administrative proceedings. In those proceedings; the United States Environmental Pro- tection Agency (“EPA”) apparently seeks to hold Amcast responsible for trichloroethylene allegedly migrating from Elkhart Product’s property to the Main Street Well Field site. Although the Main Street proceedings are not part of this action, Amcast contends that its investigations and remedial actions are intertwined with this action. Amcast explains that documents in this case were turned over to the EPA for use in the Main Street proceedings. Thus, Amcast contends, attorney fees connected with the Main Street proceedings are recoverable in this action. The court disagrees. Attorney fees related to the Main Street proceedings are not recoverable because those proceedings are not part of this CERCLA action. Because the court denied Amcast’s motion to amend its complaint to include the Main Street proceedings, those proceedings remain out- side the pleadings in this case. The parties presented no evidence regarding liability at the Main Street site; the court issued no substantive orders regarding the Main Street site. Finally, Amcast has not cited any authority to support its argument that attorney fees connected with matters outside the pleadings are recoverable. Detrex calculates that the fee entries which relate to the Main Street proceedings total $85,371.79. The court has reviewed each cdjection raised by Detrex and calcu- lates a slightly lower figure—$84,236.79. The $1,135.00 difference is based on the following: —FG&I (3/21/89)—Because of block billing, Detrex objected to $765.00; the court believes that only $405.00 concerned Main Street proceedings. 17a —FG&I (3/08/91)—Because of block billing, Detrex objected to $300.00; the court believes that only $120.00 concerned Main Street proceedings. —Katten, Muchin & Zavis (““KM&Z”) (3/31/92) —Detrex objects to $595.00 in facsimile charges; that amount already was accounted for in KM&Z’s 4/20/92 invoice. Accordingly, Amcast’s fee request will be reduced by $84,236.79. C. Certain Expenses Which Should Have Never Been Incurred (Yellow Highlights) Detrex contends that Amcasts’ fee application includes entries for work that never should have been incurred at all. and that Detrex should not have to pay for these matters. See Hamilton v. Daley, 777 F.2d 1207, 1213 (7th Cir. 1985) (court should disallow expenses that should not have been incurred at all). Detrex contends that attorney fees and litigation ex- penses connected with Amcast’s motion for leave to amend the complaint should not have been incurred be- cause Amcast had ample time to amend its complaint before the June 1, 1989 deadline. Detrex also claims that it should not have to pay for Amcast’s efforts used in opposing the shareholder’s dispositive motions, the related appeal, and the later state court action. Detrex contends this work was unnecessary because Amcast simply could have included the word “operator” in the initial com- plaint, or amended the complaint before June 1 to in- clude operator liability. Thus, Detrex contends that it should not have to pay for Amcast’s pleading errors. The court agrees that Detrex should not have to pay for the fees incurred in the foregoing matters. With re- spect to fees incurred by Amcast in attempting to amend its complaint, and in responding to the shareholder's dis- ll 18a positive motion, Magistrate Judge Pierce’s thorough and reasoned analysis of these issues makes clear that the fees incurred by Amcast were brought on by its own faulty pleadings: In this case, the plaintiffs [Amcast] have offered no suitable explanation for their delay in moving to amend, nor have they provided an adequate reason for failing to request leave prior to the June 1, 1989 deadline. Although the plaintiffs’ motion suggests that it was occasioned, in part, by an April 1989 EPA study, that again does not explain why the plaintiffs waited until January 30, 1990, eight months after the deadline for amendments and more than six months after the Shareholder Defendants moved for summary judgment, to request leave. Moreover, it is clear that the plaintiffs could have raised their claim that the Former Shareholder de- fendants were “operators” of EPC’s plant in their original complaint and, from all that has been shown, could have raised their claim for contribution prior to the June 1, 1989 deadline. Amcast Industrial Corp. v. Detrex Corp., 132 F.R.D. 213, 219 (N.D. Ind. 1990). Detrex also contends that it should not have to reim- burse Amcast for work that was never utilized. Amcast’s counsel apparently billed Amcast for work on a draft motion for summary judgment that was never filed, and a proposed settlement agreement that was never consum- mated. The fees incurred for work on these matters are not recoverable. See United States (EPA) v. Environ- mental Waste Control, Inc., 737 F. Supp. 1485, 1497 (N.D. Ind. 1990) (party not entitled to fees for Rule 11 motion that was never filed). Detrex calculates that the expenses that should not have been incurred total $62,186.21. The court has re- viewed each objection raised by Detrex and calculates a 19a slightly lower figure—$56,461.86. The difference of $5,724.35 is based upon the following: KM&Z (3/31/92)—Detrex objects to $1,895.60; the court cannot find the billing invoice to which Detrex objects. FG&I (1/31/90)—Because of block billing, Detrex objects to the total amount of $735.00; the court believes that only $525.00 concerned amending the complaint. —FG&I (11/06/90)—Detrex objects to $137.50; the court does not find this amount objectionable. —FG&I (12/26/90)—Because of block billing, Detrex objects to the total amount of $660.00; the court believes that only $330.00 concerned the share- holder defendants. —FG&l (12/26/90)—Because of block billing, Detrex objects to the total amount of $1,240.00; the court believes that only $310.00 concerned matters to which Detrex objected. —FG&l (invoice dated 10/07/91)—Detrex ob- | jected to a total of $1,701.25; the court finds that these fees associated with trial preparation are rea- sonable. —FG&I (invoice dated 11/06/91)—Detrex ob- jected to a total of $520.00; the court finds that these fees associated with trial preparation are rea- sonable. Accordingly, Amcast’s fee request will be reduced by $56,461.86. D. Fees and Expenses that are not Response Costs or Consistent with the National Contingency Plan (Red Asterisk) Detrex objects to certain billing entries, contending that they are not response cost or not consistent with | 20a the National Contingency Plan (“NCP”). Basically, Detrex attempts to narrow the court’s earlier opinion which held that attorney fees are recoverable under CERCLA. These objections are not well-taken. E. Excessive/Duplicative Time (Orange Highlights) Detrex objects to a number of entities as being exces- sive or duplicative. For example, Detrex claims, among other things, that: $15,000.00 in attorney fees to draft the complaint is excessive; there was too much intra- office communication between Amcast attorneys; there were too many conferences and discussions; there were too many law firms and attorneys working on the case; and paralegals billed too much for cite-checking. Amcast contends that its billings were not excessive or duplicative. Proper analysis of these objections requires an evaluation of the objections individually. Detrex calculates that the fee entries which are exces- sive or duplicative total $85,371.79. The court has re- viewed each objection raised by Detrex and calculates a lower figure, $17,362.25, as being excessive or duplica- tive. This lower figure is based upon the following de- ductions: SMITH & SCHNAKE DATE (ATTORNEY) AMOUNT REASON 11/11/88 (KM) $357.50 Organize file—duplicative 11/14/88 (KM) $ 55.00 Organize file—duplicative 11/17/88 (KM) $ 96.25 Organize file—duplicative 11/18/88 (AS) $ 67.50 Review pleadings; complaint only pleading at this point TOTAL $576.25 KATTEN, MUCHIN & ZAVIS DATE (ATTORNEY) AMOUNT REASON 1/20/92 (MCF) $100.00 No description of misc. expenses 11/16/89 11/17/89 11/20/89 11/21/89 11/28/89 11/29/89 11/30/89 1/12/91 2/27/91 3/08/91 4/03/91 4/04/91 5/10/91 6/25/91 6/26/91 6/27/91 6/28/91 8/01/91 8/14/91 2la FARUKI, GILLIAM & IRELAND DATE (ATTORNEY) AMOUNT (AW) (AW) (AW) (AW) (AW) (AW) (AW) (SKI) (MLW) (SKI) (SKI) (SKI) (EDM) (SRK) (SRK) (SRK) (SRK) (AW) (SKI) $ RRPRA RADA HK RRA KR $ 735.00 630.00 735.00 840.00 630.00 945.00 835.00 140.00 33.50 50.00 430.00 400.00 150.00 56.25 146.25 123.75 180.00 1,020.00 275.00 REASON Review documents produced by plaintiffs themselves— duplicative (Same as above) (Same as above) (Same as above) (Same as above) (Same as above) (Same as above) $50.00/hour te reproduce docu- ments excessive; court will al- low $10.00/hour Three telephonic conferences on discovery motion excessive; court will allow one conference 1.75 hours to revise notice of deposition excessive; court will allow .75 hours $50.00/hour to reproduce docu- ments excessive; court will al- low $10.00/hour $50.00/hour to reproduce docu- ments excessive; court will al- low $10.00/hour 6.0 hours to do tasks identified excessive; court will allow 3.0 hours Organize documents plaintiffs themselves produced-duplica- tive (Same as above) (Same as above) (Same as above) 11.5 hours to prepare two let- ters and conduct three tele- phone conferences excessive; court will allow 3.0 hours 6.5 hours to cite check exces- sive; court will allow 1.0 hour 22a DATE (ATTORNEY) AMOUNT 8/15/91 8/16/91 9/09/91 /10/91 9/11/91 9/12/91 9/13/91 9/14/91 9/16/91 9/17/91 10/01/91 10/02/91 10/02/91 10/04/91 10/18/91 10/19/91 10/21/91 10/21/91 11/06/91 11/14/91 (SKI) (SKI) (SKI) (SKI) (SKI) (SKI) (SKI) (SKI) (SKI) (SKI) (SKI) (SK1) (CLH) (SRK) (CLH) (CLH) (CLH) (SRK) (CLH) (SKI) $ $ 337.50 412.50 125.00 212.50 237.50 262.50 300.00 125.00 237.50 412.50 387.50 125.00 237.50 123.75 125.00 212.50 275.00 225.00 250.00 362.50 REASON 8.25 hours to cite check exces- sive; court will allow 1.5 hours 9.75 hours to cite check exces- sive; court will allow 1.5 hours 3.0 hours to cite check exces- sive; court will alow .5 hours 5.25 hours to cite check exces- sive; court will allow 1.0 hour 5.75 hours to cite check exces- sive; court will allow 1.0 hour 6.25 hours to cite check exces- sive; court will allow 1.0 hour 7.00 hours to cite check exces- sive; court will allow 1.0 hour 3.0 hours to cite check exces- sive; court will allow .5 hours 5.75 hours to cite check exces- sive; court will allow 1.0 hour 10.25 hours to cite check exces- sive; court will allow 2.0 hours 9.25 hours to cite check exces- sive; court will allow 1.5 hours 3.5 hours to cite check exces- sive; court will allow 1.0 hour 5.75 hours to cite check exces- sive; court will allow 1.0 hour 3.75 hours to cite check exces- sive; court will allow 1.0 hour 3.5 hours to cite check exces- sive; court will allow 1.0 hour 5.25 hours to cite check exces- sive; court will allow 1.0 hour 6.5 hours to cite check exces- sive; court will allow 1.0 hour 6.0 hours to cite check exces- sive; court will allow 1.0 hour 6.0 hours to cite check exces- sive; court will allow 1.0 hour 8.75 hours to cite check exces- sive; court will allow 1.5 hours 23a DATE (ATTORNEY) AMOUNT REASON 11/15/91 (SKI) $ 125.00 3.0 hours to cite check exces- sive; court will allow .5 hours 12/12/91 (SKI) $ 316.25 6.75 hours to cite check exces- sive; court will allow 1.0 hour 12/13/91 (SKI) $ 288.75 6.25 hours to cite check exces- sive; court will allow 1.0 hour 2/19/92 (CLH) $ 250.00 6.0 hours to cite check exces- sive; court will allow 1.0 hour 2/20/92 (CLH) $ 287.50 6.75 hours to cite check exces- sive; court will allow 1.0 hour 2/21/92 (CLH) $ 250.00 6.0 hours to cite check exces- sive; court will allow 1.0 hour 2/21/92 (CLH) $ 187.50 3.75 hours to cite check exces- sive; court will allow 1.0 hour 2/25/92 (CLH) $ 200.00 5.0 hours to cite check exces- sive; court will allow 1.0 hour 2/26/92 (CLH) $ 200.00 5.0 hours to cite check exces- sive; court will allow 1.0 hour 2/27/92 (CLH) $ 300.00 7.50 hours to cite check exces- sive; court will allow 1.5 hours 3/04/92 (SKI) $ 302.50 6.5 hours to cite check exces- sive; court will allow 1.0 hour 8/05/92 (SKI) $ 151.25 3.25 hours to cite check exces- sive; court will allow .5 hours 8/06/92 (SKI) $ 137.50 3.5 hours to cite check exces- sive; court will allow 1.0 hour 3/09/92 (SKI) $ 151.25 3.75 hours to cite check exces- sive; court will allow 1.0 hour 8/10/92 (SKI) $ 247.50 5.5 hours to cite check exces- sive; court will allow 1.0 hour TOTAL $16,686.00 F. Deficient Billing Records (Blue Highlights) Detrex objects to a number of entries as being deficient because there was an insufficient description of the work performed, there were no times or rates associated with ‘the entry, or there were block billing entries contain- ing objectionable entries. Some of the other objections _ 24a coded in blue relate to state law matters, the Main Street Productions, and other previously raised objections. Amcast contends that its entries were not deficient. Proper analysis of these objections requires an evaluation of these objections individually. Detrex calculates that the fee entries which are defi- cient total $117,725.56. The court has viewed each ob- jection raised by Detrex and calculates a lower figure, $26,526.96, as being deficient. This lower figure is based upon the following deductions: SMITH & SCHNAKE DATE (ATTORNEY) AMOUNT REASUN 12/20/85 (RB) $ 60.00 Review materials re: research validation lawsuit; no showing of connection with this suit 8/07/86 (SRP) $ 70.00 Insufficient description of work performed 4/15/87 (FLM) $ 45.00 Insufficient description of work performed 8/30/88 (TF) $ 427.50 Insufficient description of work performed 8/31/88 (TF) $ 360.00 Insufficient description of work performed 9/28/88 (AG) & 92.50 Insufficient description of work performed 2/21/89 (AWG) $ 92.50 Insufficient description of work performed 3/21/89- (EAH) $ 686.25 From Jan. 19 to Jan. 23, 1989, 4/5/89 EAH spent 18.5 hours review- ing and summarizing docu- ments; less than 8 months later, EAH spent 15.25 hours reviewing and summarizing documents; this second review is excessive 4/14/89 (TF) $ 630.00 Block billing; delete 7.0 hours for EPA matter 4/17/89 (DJI) $ 130.00 Block billing; delete 1.0 hour for EPA matter 25a DATE (ATTORNEY) AMOUNT 4/18/89 4/18/89 5/08/89 5/09/89 5/10/89 5/19/89 5/23/89 6/05/89 6/08/89 7/06/89 7/10/89 7/11/89 7/12/89 7/18/89 7/20/89 7/25/89 7/25/89 8/23/89 9/05/89 (TF) (DJ1) (TF) (TF) (DJI) (DJI) (DJI) (TF) (DJI) (AWG) (AWG) (AWG) (AWG) (TF) (CM) (CM) (TF) (EAH) (EAH) $ $ 90.00 130.00 100.00 500.00 70.00 350.00 70.00 50.00 140.00 185.00 555.00 185.00 370.00 46.25 110.00 220.00 300.00 125.00 50.00 REASON Block billing; delete 1.0 hour for EPA matter Block billing; delete 1.0 hour for EPA matter Block billing; delete 1.0 hour for EPA matter Block billing; delete 5.0 hours for EPA matter Block billing; delete .5 hours for EPA matter Block billing; delete 2.5 hours for EPA matter Block billing; delete .5 hours for EPA matter Block billing; delete .5 hours for EPA matter Insufficient description of work performed Insufficient description of work performed Insufficient description of work performed Insufficient description of work performed Insufficient description of work performed Insufficient description of work performed Block billing; delete 1.0 hour for shareholder matter Block billing; delete 2.0 hours for shareholder matter Block billing; delete 3.0 hours for shareholder matter and non-response cost matter Insufficient description of work performed Insufficient description of work performed; work appears to be related to shareholder matter 26a DATE (ATTORNEY) AMOUNT REASON 9/06/89 (BS) $ 40.00 Insufficient description of work performed; work appears to be related to shareholder matter 9/08/89 (EAH) $ 125.00. Insufficient description of work performed; work appears to be related to shareholder matter TOTAL $ 6,405.00 _—_——— —_————— BERICK, PEARLMAN & MILLS DATE (ATTORNEY) AMOUNT REASON 2/06/91 (FIRM) $286.19 Insufficient description of work performed 1/15/31 (FIRM) $198.42 Insufficient description of work performed TOTAL $484.6 —<—< $= FARUKI GILLIAM & IRELAND DATE (ATTORNEY) AMOUNT REASON 12/06/89- $ 1,785.00 AW worked 17 hours reviewing 12/14/89 (AW) documents and preparing chro- nology of significant events; this is not a reasonable fee that should be paid by defend- ant 1/23/90 (AW) $ 105.00 Block billing; delete 1.0 hour for unrelated matter—confer- ence with paralegals regard- ing cite checking 2/12/90 (AW) . 26.25 Insufficient description of work performed; delete .25 hours 2/15/90 (AW) $ 26.25 Insufficient description of work performed 4/23/90 (SKI) 40.00 $50.00/hour to copy documents excessive; court will allow $20.00/hour 2/15/91 (AW) $ 240.00 Insufficient description of work performed 2/26/91 (MLW) $ 65.00 Insufficient description of work performed 2/28/91 (MLW) $ 32.50 Insufficient description of work performed 27a DATE (ATTORNEY) AMOUNT 3/01/91 3/04/91 3/04/91 3/05/91 3/07/91 3/10/91 3/11/91 3/12/91 3/13/91 3/19/91 4/01/91 4/04/91 4/10/91 4/11/91 4/15/91 4/16/91 4/17/91 4/17/91 (AW) (AW) (DJI) (AW) (AW) (AW) (AW) (SKI) (AW) (PLC) (AW) (MLW) (MLW) (MLW) (AW) (AW) (DJI) (AW) $ $ $ 120.00 60.00 77.50 120.00 30.00 120.00 120.00 80.00 90.00 35.00 300.00 65.00 65.00 97.50 120.00 240.00 310.00 420.00 REASON Block billing; delete 1.0 hour for state law matter Block billing; delete .5 hours for state law matter Block billing; delete .5 hours for EPA matter Block billing; delete 1.0 hour for EPA matter Block billing; delete .25 hours for EPA matter Biock billing; delete 1.0 hur for EPA and state law matters Block billing; delete 1.0 hour for EPA, state law, and other matters $50.00/hour to copy documents excessive; court will allow $10.00/hour Block billing; delete .75 hours for non-recoverable matters $45.00/hour to copy documents excessive; court will allow $10.00/hour Block billing; delete 2.5 hours for state law and other matters Block billing; delete 1.0 hour for state law and other matters Block billing; delete 1.0 hour for state law matters Block billing; delete 1.5 hours for state law matters Block billing; delete 1.5 hours for non-recoverable matters Block billing; delete 2.0 hours for state law matters Block billing; delete 2.0 hours for state law and other matters Block billing; delete 3.5 hours for state law and other matters 28a DATE (ATTORNEY) AMOUNT 4/18/91 4/18/91 4/23/91 4/24/91 5/30/91 5/08/91 5/14/91 5/14/91 5/15/91 5/17/91 5/18/91 5/20/91 5/22/91 6/05/91 6/05/91 6/06/91 6/06/91 6/07/91 6/10/91 (DJI) (AW) (EDM) (DJI) (DJI) (DJTI) (DJI) (AW) (DJI) (AW) (AW) (DJI) (DJT) (AW) (MLW) (AW) (DJT) (AW) (AW) $ $ 116.25 300.00 40.00 155.00 38.75 77.50 155.00 180.00 77.50 240.00 300.00 38.75 77.50 60.00 56.25 60.00 77.50 60.00 120.00 REASON Block billings; delete .75 hours for state law matters Block billing; delete 2.5 hours for state law matters $50.00/hour to copy documents excessive; court will allow $10.00/hour Block billing; delete 1.0 hour for state law and other matters Block billing; delete .25 hours for state law matters Block billing; delete .5 hours for state law matters Block billing; delete 1.0 hour for state law matters Block billing; delete 1.5 hours for state law matters Block billing; delete .5 hours for EPA matters Block billing; delete 2.0 hours for state law matters Block billing; delete 2.5 hours for state law matters Block billing; delete .25 hours for state law matters Block billing; delete .5 hours for state law matters Block billing; delete .5 hours for state law matters Block billing; delete .75 hours for state law matters Block billing; delete .5 hours for state law matters Block billing; delete .5 hours for state law matters Block billing; delete .5 hours for state law matters Block billing; delete 1.0 hour Tor state law matters 29a DATE (ATTORNEY) AMOUNT 6/11/91 6/11/91 6/17/91 6/17/91 6/20/91 6/24/91 6/25/91 6/26/91 7/01/91 7/03/91 7/05/91 7/08/91 7/10/91 7/12/91 7/15/91 7/22/91 7/23/91 7/26/91 7/30/91 8/01/91 (AW) (DJI) (SSS) (AW) (SSS) (AW) (SSS) (DJI) (SSS) (DJI) (DJI) (AW) (AW) (DJI) (AW) (AW) (AW) (SSS) (DJI) (SRK) $ $ $ 600.00 310.00 33.75 120.00 90.00 120.00 157.50 77.50 135.00 320.00 531.25 120.00 60.00 160.00 60.00 120.00 120.00 168.75 40.00 22.50 REASON Block billing; delete 5.0 hours for state law matters Block billing; delete 2.0 hours for state law matters Block billing; delete .75 hours for state law matters Block billing; delete 1.0 hour for state law matters Block billing; delete 2.0 hours for state law matters Block billing; delete 1.0 hour for state law matters Block billing; delete 3.5 hours for state law matters Block billing; delete .5 hours for state law matters Block billing; delete 3.0 hours for state law matters Block billing; delete 2.0 hours for state law matters Block billing; delete .75 hours for state law matters Block billing; delete 1.0 hour for state law matters Block billing; delete for EPA matters Block billing; delete 1.0 hour for state law matters Block billing; delete .5 hours for state law matters Block billing; delete 1.0 hour for EPA matters Block billing; delete 1.0 hour for EPA matters Block billing; delete 3.75 hours for state law matters Block billing; delete .25 hours for state law matters Block billing; delete .5 hours for state law matters .5 hours 8/04/91 8/29/91 8/30/91 9/03/91 9/03/91 9/04/91 9/10/91 9/11/91 9/19/91 9/20/91 9/23/91 9/24/91 10/11/91 10/14/91 10/22/91 10/23/91 10/24/91 11/05/91 11/05/91 (AW) (MLW) (MLW) (MLW) (AW) (MLW) (MLW) (MLW) (JDF) (JDF) (MLW) (MLW) (JDF) (JDF) (MLW) (MLW) (AW) (CLH) (JDF) $ $ $ $ 260.00 75.00 225.00 150.00 60.00 75.00 112.50 150.00 480.00 465.00 360.00 300.00 180.00 180.00 150.00 150.00 120.00 75.00 120.00 30a DATE (ATTORNEY) AMOUNT REASON Block billing; delete 3.0 hours for state law matters Block billing; delete 1.0 hour for state law matters Block billing; delete 3.0 hours for state law matters Block billing; delete 2.0 hours for state law matters Block billing; delete .5 hours for state law matters Block billing; delete 1.0 hour for state law matters Block billing; delete 1.5 hours for state law matters Block billing; delete 2.0 hours for state law matters Insufficient description of work performed Insufficient description of work performed Delete 6.0 hours; insufficient description of work performed Delete 5.0 hours; insufficient description of work performed Block billing; delete 3.0 hours for state law matters Block billing; delete 3.0 hours for state law matters Block billing; delete 2.0 hours for state law matters Block billing; delete 2.0 hours for state law matters Block billing; delete 1.0 hour for state law matters Block billing; 2.0 hours to cite check excessive; court will allow .5 hours Block billing; delete 2.0 hours for state law matters aes sate NRA 3la DATE (ATTORNEY) AMOUNT REASON 11/06/91 (JRT) x 60.00 Block billing; delete 1.0 hour for state law matters 11/07/91 (JDF) $ 180.00 Block billing; delete 3.0 hours for state law members 11/07/91 (CLH) $ 125.00 Block billing; 3.5 hours to cite check excessive; court will allow 1.0 hour 11/07/91 (JRT) $ 240.00 Block billing; delete 4.0 hours for state law matters 11/12/91 (JDF) $ 150.00 Block billing; delete 2.5 hours for state law matters 11/14/91 (MLW) $ 356.25 Block billing; delete 4.75 hours for state law matters 11/14/91 (DJI) $ 240.00 Block billing; delete 1.5 hours for state law matters 11/14/91 (JDF) $ 420.00 Block billing; delete 7.0 hours for state law matters 11/14/91 (CLH) $ 200.00 Block billing; 5.0 hours to cite check excessive; court will allow 1.0 hour 11/14/91 (AW) $ 210.00 Block billing; delete 1.75 hours for state law matters 11/15/91 (MLW) $ 300.00 Block billing; delete 4.0 hours for state law matters 11/15/91 (DJI) $ 40.00 Block gilling; delete .25 hours for state law matters 11/15/91 (CLH) $ 150.00 Block billing; 4.0 hours to cite check excessive; court will allow 1.0 hour 11/15/91 (AW) $ 240.00 Block billing; delete 2.0 hours for state law matters 11/16/91 (JDF) $ 285.00 Block billing; delete 4.75 hours for state law matters 11/16/91 (AW) $ 180.00 Block billing; delete 1.5 hours for state law matters 11/17/91 (DJI1) $ 240.00 Block billing; delete 1.5 hours for state law matters 11/17/91 (AW) $ 240.00 Block billing; delete 2.0 hours for state law matters 32a DATE (ATTORNEY) AMOUNT 11/18/91 11/18/91 11/18/91 2/20/92 TOTAL 1/16/90 2/02/90 2/07/90 2/08/90 2/12/90 2/14/90 2/14/90 3/28/90 1/08/90 1/23/90 REASON (MLW) 187.50 Block billing; delete 2.5 hours for state law matters (DJI) 160.00 Block billing; delete 1.0 hour for state law matters (JDF) 120.00 Block billing; delete 2.0 hours for state law matters (CLH) $ 225.00 Block billing; 4.5 hours to cite check excessive; court will allow 1.0 hour $18,722.50 THOMPSON, HINE & FLORY DATE (ATTORNEY) AMOUNT REASON (JWB) $108.75 Block billing; delete .75 hours for EPA matter (KM) $ 60.00 Block billing; delete 1.0 hour for EPA matter (JEG) $ 56.25 Block billing; delete .75 hours for unrelated matter (JEG) $225.00 Block billing; delete 3.0 hours for unrelated matter (JEG) $ 75.00 Block billing; delete 1.0 hour for unrelated matter (JWB) $108.75 Block billing; delete .75 hours for unrelated matter (JEG) $ 18.75 Block billing; delete .25 hours for unrelated matter (FIRM) $152.35 Insufficient description of work performed; appears to be un- related matter (CM) $ 13.75 Block billing; delete for un- related matter (JWB) $ 36.25 Block billing; delete .25 hours for unrelated matter (KM) $ 60.00 Block billing; delete 1.0 hour 1/25/90 TOTAL $914.85 for unrelated matter 33a G. Total Attorney Fees Amcast is entitled to $554,494.71 in attorney fees, calculated as follows: Total Fees Requested $755,755.57 Less: | (1) State Law Claims $16,673.00 (2) USEPA/Main Street Proceeding $84,236.79 (3) Expenses which should not have been incurred $56,461.86 (4) Fees and Expenses that are not Response Costs or not Consistent withthe NCP $ 0.00 (5) Excessive/duplicative time $17,362.25 (6) Deficient Billing Records $26,526.96 Less Deductions — $201,260.86 TOTAL FEE AWARD $554,494.71 II. ADDITIONAL RESPONSE COSTS Amcast seeks $30,636.76 in additional response costs incurred between November 23, 1991 and April 30, 1992. Charles Rytlewski, Elkhart Product Corporation’s controller, affirms that EPC and Amcast expended $6,413.55 on system service charges (sewer and utili- ties); $1,893.12 on labor expenses; $17,067.09 on con- sultants (investigation, design, monitoring); and $5,263.00 on equipment, installation, and monitoring costs. The court finds these additional response costs reasonable, and Amcast is entitled to recover these additional response costs. Ill. PREJUDGMENT INTEREST Amcast seeks to recover $374,013.64 in prejudgment interest. This figure includes $314.912.76 in interest on the April 9, 1992 judgment; $446.71 in interest on the additional response costs; and $58,654.17 in interest on the attorney fees and litigation expenses incurred. Detrex does not object to Amcast’s calculation of prejudgment 34a interest on the April 9 judgment or the additional re- sponse costs. The amount of prejudgment interest on the attorney fees and litigation expenses will have to be recalculated consistent with this opinion. Accordingly, Amcast is entitled to $315,359.47 in pre- judgment interest, and will be ordered to recalculate the prejudgment interest on the attorney fees and litigation expenses consistent with this opinion. IV. CONCLUSION Given the massive volume of the fee petition and the equally huge number of objections, the court has tried to evaluate each fee entry for its reasonableness and con- sistency with CERCLA’s goal—that being the “prompt, thorough, and cost-effective cleanup of a hazardous waste site.’ Woodman v. United States, 764 F. Supp. 1467, 1470 (M.D. Fla. 1991). Accordingly, the court GRANTS Amcast’s motion for attorney fees and litigation expenses, additional response costs, and prejudgment interest (filed June 4, 1992), and ORDERS Detrex Corporation to pay the plaintiffs $554,494.71 in attorneys fees and litigation expenses, $30,636.76 in additional response costs, and $315,359.47 in prejudgment interest. The court also ORDERS the plaintiffs to recalculate the prejudgment interest on the attorney fees and litigation expenses consistent with this opinion, and resubmit that figure to the court within fifteen (15) days of the date of this order. The court DENIES Amcast’s motion for oral argument (filed October 16, 1992). SO ORDERED. ENTERED: March 30, 1994 /s/ Robert L. Miller, Jr. ROBERT L. MILLER, JR. Judge United States District Judge ee [XX] 35a UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA Case Number: S88-620 RLM AMCAST INDUSTRIAL CORPORATION and ELKHART PRODUCTS CORPORATION V. DETREX CORPORATION, et ai. JUDGMENT IN A CIVIL CASE Jury Verdict. This action came before the court for a trial by jury. The issues have been tried and the jury has rendered its verdict. Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED BY ROB- ERT L. MILLER, JR. that Detrex Corporation is to pay the plaintiffs $554,494.71 in attorneys fees and litigation expenses, $30,636.76 in additional response costs, and $315,359.47 in prejudgment interest. The plaintiffs are to recalculate the pre- judgment interest on the attorney fees and litiga- tion expenses and resubmit that figure to the court within 15 days of date of order (Memorandum and Order entered March 31, 1994). 36a This document entered pursuant to Rules 79(A) and 58 of the Federal Rules of Civil Procedure on: Date March 31, 1994 GERALDINE J. CROCKETT Clerk /s/ Carol Farmer (By) Deputy Clerk 37a UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Chicago, Illinois 60604 August 5, 1994 Before Hon. Richard A. Posner, Chief Judge Hon. Joel M. Flaum, Circuit Judge Hon. Michael S. Kanne, Circuit Judge No. 94-2026 AMCAST INDUSTRIAL CORPORATION and ELKHART PRODUCTS 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 ORDER Before us is a motion by the appellees to dismiss por- tions of the appeal as barred by the doctrines of res ju- dicata or, more plausibly, law of the case. In a previous 38a appeal, this panel held the appellate, Detrex, “was liable [to the appellees] under the Superfund statute for the spillage from its own trucks,” as the district court had found, but reversed another part of the judgment and remanded the case for further proceedings consistent with our opinion. 2 F.3d 746, 751 (7th Cir. 1993). The district judge then entered a judgment requiring Detrex to pay response costs, including attorneys’ fees, and Detrex again appealed. The appellees have moved to dis- miss so much of the appeal as seeks to (1) excuse Detrex from any liability for response costs, on the ground that the appellees had failed to comply with the National Con- tingency Plan, and (2) excuse Detrex from having to pay attorneys’ fees. The motion is well taken with respect to (1). Detrex is seeking to relitigate the issue of its liability for response costs, which was settled by our previous decision. It is true that our opinion does not mention the NCP issue, but in upholding Detrex’s liability for response costs we necessarily rejected every ground on which Detrex had opposed that liability. If Detrex thought we had some- how overlooked that ground, it should have filed a peti- tion for rehearing. It did not. With respect to (2), an intervening Supreme Court decision has strengthened Detrex’s argument that it is not liable for attorneys’ fees, and the law of the case doctrine does not bar reconsideration of any issue when there has been an intervening change in law. The motion to. dismiss the appeal is granted in part and denied in part, as indicated. 39a UNITED STATES COURT OF APPEALS SEVENTH CIRCUIT No. 92-2365 AMCAST INDUSTRIAL CORPORATION and ELKHART PRODUCTS CORPORATION, Plaintiffs-A ppellees, V. DETREX CORPORATION, Defendant-A ppellant. Argued Jan. 4, 1993 Decided Aug. 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 Environ- mental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq. We must decide whether, as the district court concluded, the Act extends to any chemical spill that creates an environmental haz- ard. 779 F.Supp. 1519. This is an important question that has not until now been the subject of an appellate case. Our conclusion is that the spiller, but not. the shipper of the chemical that spilled, is within the Act’s long reach. 40a 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), manufacturers copper fit- tings at a plant in Indiana. One of the chemicals that it uses in the manufacturing process is the solvent tri- chloroethylene (TCE). Elkhart used to buy TCE in liquid form from a number of chemical maufacturers, including the defendant, Detrex. Detrex sometimes delivered the solvent in its own tanker trucks and sometimes hired a common carrier, Transport Service, to deliver it. In 1984, TCE was discovered in the groundwater beneath a phar- maceutical plant adjacent to Elkhart’s plant. There is evidence that both Detrex’s and Transport Services’ driv- ers sometimes spilled TCE accidentally on Elkhart’s prem- ises 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, imposes liability for “response costs” (the costs of elimi- nating an environmental hazard) on the “owner and op- erator of a... facility’ from which a hazardous sub- stance has been released, § 9607(a)(1), and on “any person who by contract . . . arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person.” § 9607(a)(3). “Facility” is broadly defined as “(A) any building, structure, in- stallation, equipment, pipe or pipeline . . . , well, pit, pond, lagoon, impoundment, ditch, landfill, storage con- tainer, motor vehicle rolling stock, or aircraft, or (B) 4la 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 responsible per- son, too, and to shift Elkhart’s response costs (that is, the $1 million it had incurred in cleaning up the con- tamination) 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 ot the conduct of the plaintiff as distinct 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 adjudi- cating Elkhart’s claim he had to apportion responsibility for the costs between the parties. The judge rejected this argument, together with Detrex’s more fundamental ar- gument 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. 822 F.Supp. 545. Eventually 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. Meyer, Inc., 932 F.2d 568, 571 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, since De- trex’s claim against Elkhart, dependent as it was on Elk- hart’s establishing Detrex’s liability to it, had not ma- tured when Elkhart’s suit was filed. Fed.R.Civ.P. 13(a); Harbor Ins. Co. Continental Bank Corp., 922 F.2d 357, | 42a 360 (7th Cir.1990); 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practices and Proce- dure § 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 responsible 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 counterclaim 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. R.W. 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 attributable to his own conduct. Ob- viously 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 sep- arate 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 between 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 dis- trict 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 43a F.2d 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, 96 S.Ct. 2857, 2864 n. 10, 49 L.Ed.2d 844 (1976); but see Elder v. Hollo- way, 975 F.2d 1388, 1392-93 (1991), rehearing en banc denied, 984 F.2d 991 (9th Cir.1993) (per curiam), cert. granted, —— USS. , 113 S.Ct. 3033, 125 L.Ed.2d 721 (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 fa- cility; 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 argu- ments or authorities that the appellate court finds per- suasive. The rule in civil cases is that except with re- gard to jurisdictional issues and issues involving comity —the mutual respect owed by soverigns and quasi- sovereigns, such as the states—a ground not raised in the district court cannot be used to reverse that court, Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 276-77 (7th Cir.1991); Zbaraz v. Hartigan, 763 F.2d 1532, 1544 (7th Cir.1985), aff'd by an equally divided Court under the name Hartigan v. Zbaraz, 484 U.S. 171, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987). The Supreme Court has told us, however, that the rule is not absolute, Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); see also Arcadia v. Ohio Power Co., 498 U.S. 73, 77, 111 S.Ct. 415, 418, 112 L.Ed.2d 374 (1990); id. at 86, 111 S.Ct. at 422 (concurring opinion); U.S. National Bank v. Independent Insurance Agents of America, Inc., US. 4 - 113 S.Ct. 2173, 2178-79, 124 L.Ed.2d 402 (1993), a point upon which we have built in carving an exception for plain errors in civil cases. (The civil rules contain no counterpart to Rule 52(a) of the criminal rules, which allows reversal on the basis 44a of plain errors even if they had not been drawn to the attention of the trial court.) Deppe v. Tipp, 863 F.2d 1356, 1362 (7th Cir.1988). Occasional flat statements in our cases that there is no plain error doctrine in civil cases, e.g., United States v. Caputo, 978 F.2d 972, 974 (7th Cir.1992), which puzzled the court in Hudak v. Jepsen of Illinois, 982 F.2d 249, 251 n. 1 (7th Cir. 1992), implicitly refer to error in jury instructions, a setting to which Rule 51 of the civil rules has been inter- preted to make the doctrine of plain error inapplicable. Deppe v. Tripp, supra, 863 F.2d at 1361-62. Forfiture is a sanction, and sanctions should be related 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 en- tirely 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 an- other 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 45a “facility” within the meaning of the Superfund law, § 9601(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 fa- cility excludes, however, a “consumer product in con- sumer use.” § 9601(9). Neither party suggests that the term “consumer product” is limited to products used by consumers as distinct from ones consumed by business firms and other institutions. Dayton Independent School District v. 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. Un- der 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 sug- gests 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 extraordinarily strained reading of “consumer product.” Once Elkhart finished using the TCE in its manufactur- ing process—once consumer use passed over into waste disposal, as happened when Elkhart dumped the used TCE into a waste-disposal pit on its premiscs—Elkhart became, if the statutory reference to a facility that is a consumer product is interpreted to mean a facility that i 46a 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 as- suming reasonably enough that the transportation of a consumer product to the customer is as much a con- sumer use as the consumption of the product in the cus- tomer’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 conclude 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 became the facility owner and a responsible person. This approach does excessive violence to the statutory language. The exception is for facilities that are con- sumer products in consumer use, not for consumer prod- ucts contained in facilities. Although read as it is writ- ten the exception is narrow, it is not meaningless, for the statute defines “facility” so broadly that it could be thought to include a can of lye. Since Detrex, not Elk- hart, was responsible for the environmental damage re- sulting from the spillage of TCE from Detrex’s trucks, there is no anomaly, so far as the purpose of the Super- fund statute is concerned, in deeming Detrex a respon- sible 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 to carry the stuff to the Elkhart plant Detrex “arranged with a transporter for transport 47a for disposal or treatment” of TCE. § 9607(a)(3). De- trex hired a transporter, all right, but it did not hire it to spill TCE on Elkhart’s premises. Although the stat- ute defines disposal to include spilling, the critical words for present purposes are “arranged for.” The words imply intentional action. The only thing that Detrex arranged for Transport Services 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 “dis- posal” 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 monopolize the steel industry—even in the same statute, especially 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” includes 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 Esopian sense illustrated 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 ship- 48a per 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 ar- ranging for the delivery of a useful product, he is not a responsible person 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 shippers strictly liable under the Superfund stat- ute for the consequences of accidents to common carriers or other reputable transportation companies that the ship- pers had hired in good faith to ship their products. Indiana Harbor Belt R.R. v. American Cyanamid Co., 916 F.2d 1174, 1180-81 (7th Cir.1990). The language of the statute permits 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 com- panies for chemical spills, noted in our Indiana Habor Belt R.R. decision, there are a variety of direct regula- tory controls over the transportation of hazardous sub- stances, illustrated by the Hazardous Materials Transpor- tation Act, 49 U.S.C.App. §§ 1801 et seq. And Elkhart was responsible for the cost of cleaning up the contam- ination resulting from the spillage from Transport Serv- ice’s trucks if it couldn’t find any other responsible per- sons 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 Elk- hart by means of its suit for contribution) 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 RE- MANDED. 49a UNITED STATES DISTRICT COURT N.D. INDIANA SOUTH BEND DIVISION No. S88-620 (RLM) AMCAST INDUSTRIAL CORPORATION and ELKHART PRODUCTS CORPORATION Vv. DETREX CORPORATION April 9, 1992 MEMORANDUM AND ORDER MILLER, District Judge. 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 afforded the plaintiffs, Amecast Industrial Corporation and Elkhart Products Corporation (collectively “Am- cast”), 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 familiarity with the facts set forth in the No- vember 18 order and with the procedural history of this case. 779 F.Supp. 1519. 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 be- 50a tween now and the scheduled trial and the court’s famil- iarity with the case. At the pretrial conference held on November 25, 1991, the plaintiffs indicated that they would dismiss their negligence and punitive damages claims without prejudice if this second motion for partial summary judgment is granted; if the motion is denied, these claims are sched- uled for trial on May 11, 1992. In this motion, Amcast bility of defendant Detrex Corporation (“Detrex”) in asks the court to grant summary judgment as to the lia- Count II of the complaint pursuant to 42 U.S.C. § 9607 (a)(3), as to the amount of response costs Amcast is en- titled to recover under Counts I and II of the complaint, and as to Detrex’s liability for Amcast’s future costs in responding to the trichloroethylene (“TCE”) conatami- nation 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 commence 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 determination of the requirements of justice rest within the trial court’s discretion. Campbell v. Ingersoll Milling Machine Co., 893 F.2d 925, 927 (7th Cir.), cert. denied 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (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). Sla The burden to the judicial system can justify a de- nial of a motion to amend “even if the amendment would cause no hardship at all to the opposing party.” Because substantive amendments shortly be- fore trial serve to defeat the public’s interest in speedy resolution of legal disputes, “[a] district court judge is entitled, in such circumstances, to refuse to allow a plaintiff's amendment.” Perrian v. O’Grady, 958 F.2d 192, 194 (7th Cir.1992) (citations omitted). The motion to amend was made three months before trial, after years of discovery and the filing of serial summary judgment motions. As is discussed below, de- nial of the amendment will not prejudice Detrex’s right to pursue its would-be counterclaim in a separate action. Accordingly, while amendment to these pleadings would jeopardize the trial date of a suit in its fifth year of pen- dency, 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 subsmtance 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 neces- sary and consistent with the national contingency plan (“NCP”). Dedham Water Co. v. Cumberland Farms 52a Dairy, Inc., 889 F.2d 1146, 1150 (ist 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. Cumberland Farms Dairy, Inc., 889 F.2d at 1150; Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 670, n. 8 (5th Cir.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). Amcost claims that each element of a prima facie case for Detrex’s liability under 42 U.S.C. § 9607(a)(3) (arranging for disposal of hazardous substances) has been established by the November 18, 1991 order. Detrex was found to have released hazardous substances into the environment, 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 re- sult 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 oc- curred between 1978 and 1986; therefore, Detrex is a responsible party within the meaning of 42 U.S.C. § 9607(a)(3). Furthffier, Detrex “disposed” of a haz- ardous waste when it spilled TCE at the EPC site. Am- cast contends that the law of the case establishes the re- maining elements of CERCLA liability. The November 18 order determined that Amcast incurred clean-up 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- Te ee a 53a 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 sum- mary judgment on liability. Therefore, Detrex asks the court to ignore the portion of the motion which requests summary judgment as to liability under Count II. Amcast suggests that the motion for summary judg- ment on Count II is made in the interest of judicial econ- omy, 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.111.1976). If the motion for reconsideration does not demonstrate mani- fest 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). De- trex’s arguments as to Count II do not demonstrate mani- fest error or present newly discovered evidence. There- fore, the court will not reconsider Detrex’s motion for summary judgment as to Count II. 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. 54a 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 mandatory joint and several liability. The Court may impose joint and several liability where the harm is 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 manda- tory. 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 appor- tion damages according to “the degree of involve- ment 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 respect to the hazardous waste con- cerned.” United States v. A & F Materials Co., 578 F.Supp. 1249, 1256 (S.D.I11.1984). (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 Cir- cuit applied joint and several liability in a case in which the environmental harm was indivisible among multiple 55a generators of hazardous wastes. However, the court stated: Whle CERCLA does not mandate the imposition of joint and several liabiilty, 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 interstitally. Under common law rules, when two or more per- sons act independently to cause a single harm for 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, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989). Detrex acknowledges that it has the burden of dem- onstrating that a reasonable basis for apportionment of damages exists, United States v. Alcan Aluminum 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 dis- tinct from those caused by other parties. There were, at one point, 783 gallons of TCE in the soil and ground- water beneath the FPC facility. Detrex claims that none of this TCE is attributable 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 54a B. Countl 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 mandatory joint and several liability. The Court may impose joint and several liability where the harm is 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 manda- tory. 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 appor- tion damages according to “the degree of involve- ment 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 respect to the hazardous waste con- cerned.” United States v. A & F Materials Co., 578 F.Supp. 1249, 1256 (S.D.II1.1984). (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 Cir- cuit applied joint and several liability in a case in which the environmental harm was indivisible among multiple 55a generators of hazardous wastes. However, the court stated: Whle CERCLA does not mandate the imposition of joint and several liabiilty, 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 interstitally. Under common law rules, when two or more per- sons act independently to cause a single harm for 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, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989). Detrex acknowledges that it has the burden of dem- onstrating that a reasonable basis for apportionment of damages exists, United States v. Alcan Aluminum 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 dis- tinct from those caused by other parties. There were, at one point, 783 gallons of TCE in the soil and ground- water beneath the FPC facility. Detrex claims that none of this TCE is attributable 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 56a found in the soil and groundwater. If Detrex is not re- sponsile for all of the delivery spills, then it is respon- sible only for the 2.8 gallons of spillage from Detrex trucks, or .358% of the 783 gallons of TCE. There- fore, Detrex asserts that theer is a reasonable basis for apportionment of damages. This case involved but one containment, unlike the multi-waste cases in which apportionment was unreason- able because of the synergistic effect of commingling con- taminants. In Kelley v. Thomas Solvent Co., 727 F. Supp. at 1553-54, the court found joint and several lia- bility proper because the defendants presented no evidence demonstrating that the environmental harm was divisible. In one of the contaminated sites, a mixture of pollutants had migrated from the defendants’ facilities. See also O’Neil v. Picillo, 682 F.Supp. 706 (D.R.1.1988), af- firmed, 883 F.2d 176 (1st Cir.1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (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 spils was limited to the delivery area of the FPC 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, be- cause 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 apportion- ing liability if all of the drums contained identical wastes.” See also United States v. Monsanto Co., 858 F.2d at 172, n. 27. 57a 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, 110 S.Ct. 1527, 108 L.Ed.2d 767 (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 indivisible . . . and to allow for apportionment when two or more persons in- dependently are responsible for a single harm that is di- visible.” 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 permits ac- tions 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 insufficient basis upon which to find the harm divisible, citing United States v. Monsanto, 858 F.2d at 172-73. However, more than one containment 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 consequences. Under other circumstances propor- tionate volumes of hazardous substances may well be probative of contributory harm. In this case, how- ever, volume could not establish the effective con- 58a tribution of each waste generator to the harm at the » s » S18B. 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 insuffi- cient 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), af- firmed in part and vacated in part, United States v. Monsanto, 858 F.2d 160 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989), the district court determined that the apportion- ment 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 laking from containers and commingling, so it was im- possible to ascertain the degree of harm caused by each generator. Although only one contaminant is involved in this ac- tion, unlike those cases in which the court expressed concern over commingling of contaminants, the court is not convinced that the harm causéd at the EPC site is readily divisible or that there is a reasonable basis for apportionment. 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 judg- 59a ment holdings concerning the “open valve” spill support that conclusion. Further, the TCE spilled during deliver- ies was less resistent to mobilization through the soil than stillbottoms created during EPC’s processing and spilled by EPC employees. The TCE delivered by Detrex was also more concentrated than the TCE in stillbottoms. Therefore, the amount spilled by EPC employees, com- pared to the amount spilled by Detrex employees, even if it can be determined, may not be a reasonable basis for apportionment of response costs. In the usual case, equitable apportionment of damages comes into play in a contribution action or claim pur- suant to 42 U.S.C. § 9613 after joint and several lia- bility 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 poten- tially responsible for response costs, it is appropriate to try liability and apportion damages in the same action. Detrex claims that it would overlook Congressional in- tent 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.II1.1984). See also O’Neil v. Picillo, 682 F.Supp. at 725-26. Detrex notes that in Amoco Oil 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 is 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 plaintiff/owner of the property shared joint and several liability with the defendant/vendor of the property. In Shapiro v. Alexanderson, 741 F.Supp. 472-478-79 (S.D.N.Y.1990), the court determined that the plaintiff 60a 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 did 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.IIl.1991.), the court stated: Section 9613(f)(1) of CERCLA states that, “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equi- table factors as the court determines are appropri- ate.” Thus, it is apparent that a finding that a defendant is a “responsible party” under § 9607(a), as this Court decided ENSCO was... is only the initial inquiry. Finding that a defendant is a respon- sible party and thus strictly liable for contribution under § 9607(a) does not mean that all parties are equally responsible and should share costs on a pro rata basis. Rather, such a finding means only that a defendant is potentially liable for contribution un- der CERCLA depending upon the relative fault of the parties. Once a defendant is found to be a re- sponsible 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 pa- tently 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 contends that the court should allocate fault in this ac- tion without Detrex having to bring a separate contribu- 6la tion 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. Amcast suggests that Detrex should have to abide by the decision it made earlier in this aciton not to bring a con- tribution claim. Amcast cites United States v. Pretty Products, Inc., 780 F.Supp. 1488, 1503 (S.D.Ohi01991) (“Compara- tive fault has no place in a 9607 suit, although it cer- tainly 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. I am not insensitive to the possible unfairness in- volved in holding a few relatively small contributors 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. Stepan Chemical Co., 544 F.Supp. 1135, 1142-43 (E.D.Pa. 1982). By delaying thorny considerations of equita- ble apportionment to a later contribution proceed- ing, the government is provided immediate funds after the initial liability hearing to take prompt re- medial action at the earliest opportunity. In most 62a instances, immediate response to potential disasters caused by seepage and migration can forestall the accrual of considerably higher compensation costs. (citations omitted). See also United States v. String- fellow, 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 responses costs, regardless of its own potential lia- bility for contribution. United States v. 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] ignores the clear language and structure of the stat- ute. Section 107 imposes liability “[n]Jotwithstand- ing any other provision or rule of law and subject only to” the defenses set forth in seciton 107(b). Congress 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 63a. 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 responsible parties—even if plaintiff was also responsible for the contamina- tion. 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 proceeding—to apportion costs equitably among all the PRPs. Practically speaking, section 107 per- mits 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 PRP’s as its equitable 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, 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 tempo- rary windfall gained in a section 107 action. United States v. Kramer, 757 F.Supp. at 416-17 (empha- sis in original) (footnote omitted). Many of the cases upon which Detrex relies analyzed contribution claims under § 9613, e.g., Amoco Oil v. Borden, 889 F.2d at 672; Shapiro v. Alexanderson, 741 F.Supp. at 479, n. 5. In Jn 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 ad- mitted CERCLA liability. Amcast has made no such 64a admission. Further, the Dant & Russell court appor- tioned liability within the context of a proof of claim in a bankruptcy 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 im- pose liability for response costs: CERCLA liability and accountability 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 dis- posed 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 released from liability, and Detrex was found to have released 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 under § 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 65a comparative fault to a CERCLA action settlement. Un- der § 6 of the Uniform Comparative Fault Act, the plain- tiffs’ recovery against the non-settling defendants is re- duced by the settling defendants’ equitable share of fault. Therefore, Detrex claims, before assigning a percentage of fault against Detrex, the court should determine the fault of Detrex, the plaintiffs, and the former sharehold- ers. Detrex has submitted a considerable amount of evi- dence in this motion and in its previous motion for sum- mary judgment, indicating that the Elkhart Products Cor- poration employees were responsible for some of the TCE contamination. Many of the areas where contami- nation 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 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 . . « Necessary costs of response incurred . . . consistent with the national contingency plan.” 42 U.S.C. § 9607 (a)(4)(B). Amceast claims that its response costs in- clude expenses incurred in storage, confinement, treat- ment, transport, and disposal of hazardous waste, and monitoring the effectiveness of the response. Ascon Prop- erties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1154 (9th Cir.1989), discusses the scope of the term “response cost”. 66a 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/Califor- nia, Inc. v. Dow Chemical Co., 840 F.2d 691, 695 (9th Cir.1988). 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) encom- passed the value of the time the company president spent in evaluating and mitigating the contamination problem. See also United States v. R.W. Meyer, Inc., 889 F.2d 1497 (6th Cir.1989), cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990); and United States v. Hardage, 733 F.Supp. 1424, 1437 (W.D.Okla.1989) (the government was entitled to recover its indirect re- sponse costs). 67a 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 B.R. 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. b.. Attorney Fees Amcast seeks its attorney fees incurred in connection with its response actions and this cost recovery suit, cit- ing 42 U.S.C. § 9601(25), which states that “(t]he terms ‘respond’ or ‘response’ means [sic] remove, removal, rem- edy, and remedial action, all such terms (including the terms ‘removal’ and ‘remedial action’) include enforce- ment activities related thereto.” In Pease & Curren Re- fining, Inc. v. Spectrolab, Inc., 744 F.Supp. 945, 951 (C.D.Cal.1990), and in General Electric Co. v. Litton Business Systems, Inc., 715 F.Supp. 949, 959 (W.D. Mo.1989), aff'd, 920 F.2d 1415 (8th Cir.1990), cert. denied, US. , 111 S.Ct. 1390, 113 L.Ed.2d 446 (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 pervailing rule is that attorneys fees are not recoverable in private CERCLA actions and that if Congress had intended to 68a allow recovery of attorney fees it would have so pro- vided. 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.1.1989). In Pease & Curren Refining, Inc. v. Spectrolab, Inc., 744 F.Supp. at 950-51, the court coricluded that allowing 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 responsible for the release of hazardous substances bore the cost of response, citing Mardaz Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir.1986). See also General Electric Co. v. Litton Industrial Automation Systems, 920 F.2d at 1422. In allowing recovery of attorney fees and litigation expenses in a cost recovery action, the court in Bolin v. Cessna Aircraft Co., 759 F.Supp. 692, 710 (D.Kan.1991), stated: By providing private remedies 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 responsible persons to take action. . . . The court can conceive of no surer method to defeat this purpose than to require private parties to shoulder the financial burden of the very litigation that is necessary to recover these costs. Thus, to the extent that any litigation costs incurred by the plain- tiffs 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 recovery response costs to incur attorney fees in connection with their actions to recover response 69a costs. Enforceemnt 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)(Z) that Detrex is liable for any future costs it incurs in cleaning up the TCE contamina- tion, 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); Rock- well International Corp. v. I U International Corp., 702 F.Supp. 1384, 1388 (N.D.II1.1988). Detrex claims that Amcast is not entitled to declara- tory relief as to the plaintiffs’ future response costs be- cause a trial is necessary to determine each party’s lia- bility. CERCLA provides for a declaratory judgment on liability for response costs in § 9607 actions. 42 U.S.C. § 9613(g)(2). In In re Dant & Russell, Inc., 951 F.2d at 249-50, the court explained the propriety of declara- tory relief as to future response costs in a CERCLA action: [Sections 9607 and 9613(g)‘Z)’ envision that, before suing, CERCLA plaintif [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_IA40386012_1550%3A2. Public record. Not legal advice.