fund site over at least six years by over at least twenty two parties despite the involvement of all those parties and to dispose of all that waste the district court allocated to one party carpenter eighty with what i consider to be the most primary error and that is his finding that the parties who enter into the consent decrees with the united states had a one o seven action for cost recovery under superfund they do not they have  thirteen action why what is it about the precedent particularly in light of what atlanta greasers says in that footnote number six the makes you think it's not quite possible that they had both the one of seven a thirteen f it's very clear in atlantic research that they did not reach that issue and they did not reach that issue because the facts of that case were such that the party did not enter into a consent decree well i know they didn't reach it i mean that's the whole point footnote six it says we don't one of seven days and then they say in that footnote and we're not saying there's not an overlap there sure could be consent decrees might be one of those places i mean and they all were right in that zone why should we be looking at that footnote six and saying well this is what the supreme seven and enters into a consent decree has only a one thirteen claim i have only one of only that you know we're want to cheat in atlantic research and show me where it says they've got only because that would make footnote six in absurdity wouldn't it what they tried to distinguish between what is appropriate for a one thirteen case and what is appropriate for one of seven case and what they said clearly in that case on the facts of that case is if you're sued you have won thirteen case if you're not sued and you incur the cost yourself you have a one zero seven case and judge slopers opinion for this court in dupont says the exact same thing right it says a party who is sued under one of six or want to seven does not have a want to seven case that's exactly what happened here these parties were sued and the reason that makes sense and this is i think what you're getting at the reason that makes sense is the following i'm not getting anything i'm trying to get you to something which is why you read the word only into atlantic research when the court seems to be doing exactly the opposite and saying if you're under a consent decree we really can't say it's voluntary so maybe you're in and you're not incurring your own costs so maybe you're in this in between spot and the reason for that is because if you allow that party who was sued by the united states and entered to a consent decree to have a one zero seven claim it would be inconsistent with the entire structure of the statute i'll give you two examples of that the first example is is exactly this case a party who enters into a consent decree after being sued under the statute section one thirteen f two is entitled the contribution protection that means that they cannot as a matter of statute be sued by any other party for contribution so these plaintiffs in this case if they had a one zero seven action with then sue other parties a search joined several liability against those parties those parties by statute would be barred from bringing a contribution counterclaim and those parties then would be able to recover one hundred percent of their own costs against the other parties regardless of how liable they are the statute is meant to make the polluter pay isn't so isn't the driver here and i'm is the driver here the concerned that if it's one of seven claim there is joint a liability the carpenter could be exposed to the driver is that a party who settles if they have a one of seven claim and in any case they can assert joint and several liability against any defend are and they they themselves then would not be subject to equitable allocation they would have no liability because they would be able to assert joint and several liability against the other parties does it all of the super fund does burlington northern indicate that even with the one of seven claim you could do  certain that the burlington northern says that presupposes that there's joint several liability not all they say is a portion that which is not an equitable allocation apportionment is the burden of the defendant and the defendant has to show that the harm was divisible that's what burlington northern deals with not allocation this claim is a claim among jointly and severally liable parties and under the statute the clear language of the statute that requires an equitable allocation the result that the district well let me let me ask you this looking at what judge dave's actually did it looks like he he missed he was looking at the recent supreme court authority and saying could be one of seventy could be one thirteen now and then if you kind of read the tea leaves everybody seems to be agree on that maybe he was proceeding under one thirteen f maybe i'm reading your briefing wrong but but  if he really did leave it up in the air and said one of seventy one thirteen i'm going to i've decided to divide up things in the way i'm going to divide up could he have done that properly under the law of either one of seventy in light of burlington not have a choice between the two because to do so i'm not making my question clear and her colleagues as is probably not clear whether he was right or wrong on that point if he if he thought himself one of seventy one thirteen now i could go under either leave aside your argument for if he did go under either was he correct if i'm reading him right in and thinking you know i can divide this up even under one of seven a i can divide this now that would be incorrect if it's a one of the seven actually question why why not because under one of seven there's joint and several liability does that mean there can be no equitable decision about how to divvy things up exactly either it's got to be it's all or nothing exactly because fi operation a statute under one thirteen af those parties are entitled to contribution protection we would not have a contribution counterclaim against them there would be no equitable allocation at all and the importance of that is and this is why people have been fighting for fifteen years under over one of seven vs one thirteen is who has the burden of proof and under i won thirteen claim the plaintiffs have the burden of proof and they did not meet their burden of proof when i was using the volume of all parties in this case mr fox what's the meaning of this language from the supreme court's opinion this year in burlington northern where it says quoting the  nal case of ken dine that the act impose strict liability it did not mandate joint several liability in every case rather congress intended the scope of liability to be determined from traditional evolving principles of common law going down a it means your you cut not the liability and slices given those different slices to different parties right i would say no apportionment is very specific a fortune in means that you as the defendant in the case have to determine that the harm was visible meaning that it was reasonably capable of apportionment equitable allocation is an entirely different animal you're assuming that all parties are liable for one in the visible harm and then you're using equitable factors to decide how they pay for that and l a very different as a matter of law and has always been different under superfund however the tools operate at the end of the day if you call an allocation or you call apportionment if the judge moves forward and says i'm dividing this harm up at the end of the day you've got different parties holding different slices of the cost right only if the defendant in a want to seven action has met its burden of proof right at the harm was a portion of will not alec a portion of all and that's the key issue in this case because in a one thirteen proof and so the judgment should be reversed and should be entered in favor of carpenter you know and exactly further hearings knew absolutely not the plaintiffs concede and the court found that the key equitable factor in this case was the volume of the parties at the site and the play to simply did not put on any admissible evidence in this case as to the volume well i have three of the franken primers testimony not with respect to plaintiffs with plaintiffs they only had one document which was a stipulation it was a stipulation that was entered into between the plaintiffs and another defendant not carpenter and i call your attention to the colloquy between the court and the parties with regard to that stipulation which is at the and him and the reality is that the the district court decided that that to put too fine a point that your client was was a bad actor or gaar in addition to volume but that there your view is because of your assertion that there's a failure of proof partner gets a a walk that's correct they did not they did not not that there are you can't have both i was correct consequence if there is a one of seven on that particular claim then the burden of proof would be on the defendant and their contribution however we can't have a contribution counter claim against them here it's barred by the statute we would be able to put on evidence of our contribution counter claim against them because our by the statute section one thirteen f two says pacifically and it's incorporated into both of the consent decrees if a party settles with the united states in the consent decree they are not they shall not be subject to any claims for contribution that you didn't make it she's a carpenter didn't make us we made a contribution counterpoint now no you made it yeah but what was your contribution i meant was your contributions in terms of money i think oh no i'm talking about a contribution can a claim a claim under one thirteen for may please the court my name's glenn harris i'm counsel for the athletes let me address a few points that were just raised mr fox was wrong on both points let's start with the stipulation mr holder sorry yes let's start with the same appeal agency let's start with the stipulation there were two stipulations stipulation one number one was made during trial between plaintiffs and hand in harm and the other defendant that's stipulation specifically said here's the piers the volume of waste from hand in harmony with the liver to the site and here's the volume of waste from three of the plaintiffs that was handled by manfred rules need to rule chemical come right and that and there's no dispute that the carpenter was not a party to that right and that's correct they were not a part of th and when it was offered your whole argument your whole argument for pin them with your stipulation is that that's the elation got mentioned in a later stipulation right they got more than mentioned but i don't want to make the harley oral argument though that proves to pleasure was properly admitted as evidence they weren't bound to the stipulation before they agreed to the second stipulation and let me come back to that in a second but the stipulation is admitted into evidence as proof against my client of the three client the three entities volume's they could have disputed but it's not that there's no evidence he's saying i offered no evidence that's just not true that first if elation came into evidence it was binding against me and it was properly considered by the court even if there'd been no second stipulation so you mean the evidence goes away your argument on this your argument is this was in effect an admission it's exactly an admission which was wildly in our favor if you think about it from their but it was in evidence the judge used it i mean he counted it look on the look on the judge look look at their opinion he counts those volumes against me they could have put on evidence that they wanted to prove it was a different number and they chose not to so it's just not correct to say there's zero evidence well let me ask you this if you have the burden of proof which you did right well that's another one that's a different question i have to prove that i paid more than my fair share right so if it's your burden to prove what your fair share is right it's also your burden to prove what the size of the pie is that's being cut up into shares right yesterday and if i understand your argument correctly you're saying that your proof in this instance is and if he dixit you can come in and say my proof of what the size of the pie is i say it's this much i'm done and that that's proof sufficient to carry your bird so right not exactly like you know here here's the part that here's the part that's not exact i don't agree that i have to put in evidence as a bio and share my sure could be zero i mean we don't have to reveal that in this case i would have to say that when to i mean i'm having a hard time understanding that position in order for judge davis approach to work his approach was a percentage of the whole yes you got a crew the whole in order to prove a percentage of the whole can't you know one of my sure zero well then you would say my share is zero and then that would be a statement that would prove what the hole was i mean the problem is not that you said zero or that you had proof of some other number there from their perspective the problem is there is no there is no credible proof that would allow one to make a conclusion about the whole at least if you come in and said it's zero and you had proof that it was zero then they would say ok well then that's proof of what the whole is i guess my point is it's an adversarial process so to say before there's any proof that my share is zero i don't have why do i have to prove the case against myself just because you call it a contribution case the fact is not my wife didn't go to the site in still some in till the judge decided to trial the my waist went to the site so i didn't have to put on proof i can we didn't get to this point because i want to had put on  stipulation but my point is i don't think i really had to do that it doesn't strike you i'm sorry if i might remember the year for my other two clients is just lower points out is the row the guy in a gear ended up with a zero share that they did stipulate to by the way at bottom your position is and i guess has to be on this record that even if carpenter isn't bound by your stipulation it was proof sufficient to carry your burden of proof about what the overall volume was that is exactly correct on normal days to the overall volume by saying this is the first sentence of these three where where is the proof the totality ok well let me let me let my set driver say well it's all of this stuff see there were all kinds of evidence that came into this case from which the judge and seventy five pages sifting through the evidence and deciding what really happened fact i don't remember if we asked them to agree with it but it went into evidence then the bury the second to last day of trial they had a witness to call and this is reflected in the transcript they had mr hoke writer who was an expert witness his expert court was in part testimony concerning the volume of waste that was generated by the five plaintiffs companies at their facilities not that it got to the site but that it was generated he was sitting there in that he was sitting there in the in the stand waiting to testify the night before the day that we're talking about now mr booth the counsel then for carpenter was asked who are you going to call tomorrow he said well i might call mr hope writer but not if we can enter into a stipulation that's in the transcript the next day we come in and we have about three hours two and a half hours of closed room stipulation negotiations between myself and mr booth carpenter's lawyer about bust next appeal ation that results in the stipulation that sixty three ninety eight the carpenter and harmon and the plaintiffs joined him all right and before we even get to what that stipulation said when i offered that stipulation in evidence they didn't call mr hope right or why not what did i say i said your honor we've entered into a stipulation meaning the next one the second one that is now with all the parties left in the case the that the intent of the second stipulation was that volume's and the whole point of the first if relation i guess it can mean that because of just what they've said in the briefing that you can stipulate that stuff has circle waste in it without stipulating to the amounts well but be that as it may  would like if i could to church have you turn your attention to the last argument that your opponent made which is there's no way there could be a while seventy claim here oaks it's impossible because on one thirteen we were barred absolutely barred from having some a contribution claim well that's an interesting comment because if you read the opinion which i'm sure you did they had a one thirteen counterclaim the judge notes they had a one thirteen counter claim and the judge flat says unmistakably i'm deciding this case under one thirteen f and i'm equitably eloquent he flat says that this is a complete red herring it really is let's get back to your question of how i can have one of seven claims because it landed on research specifically says folks the words are any other person under one hundred seven may bring a claim for one of the seven and they plan it research that you know what any other person means any other person in the whole world except for the united states the state or an indian tribe exactly what your honor judge slover said you know on opinion you noted that that was any other person means any other person period full stop no exceptions and in the line of research the supposedly exception was open and the other person except for p r pieces the courts it that's there's no exceptions any other person they're not telling you any other person means any other person unless they happen to have a one thirteen claim to well and they can't be true there's no way the justice thomas would write in the pinion and say well even though i said any other person means any other person without qualification now i'm going to tell you that i was wrong that any other person means any other person except persons that have won thirteen claims now why are you mean that one why are we fighting over this you say it's a red herring is a red herring why it's a red hair it's a red herring because the only thing it has to do with is this burden of proof issue because see they concede that s p s ford and cite tech n t i on the second century have won thirteen claims and the judge decided the case under one thirteen so it's irrelevant the only reason it's relevant is because of my argument that there are you're trying to argue that i had this super burden of proof under one thirteen that i don't have one or one of seven your honor was correct when you're talking to fox when you noted that under one of seven i just have to prove that they're  because that's the end i don't have to prove any allegation at all that's what this whole argument is about it has nothing to do with how the case ended up really doesn't so any other person means any other person  period and your honor pointed out in talking to mr fox how can the supreme court possibly mean anything other than you might have a one hundred seven claim and you might have won thirteen glenn and you might have both we're going to decided someday but certainly that can't possibly be read to mean like he said well you can't do it no opinion that i'm aware of ever said that only because because you got sued you know you can't have a want to settle a claim it's completely contrary to what a lot of research stands for reasons good and sufficient to themselves get in and contribute money yes correct ok so they don't seem to but they're not operating under the consent decree at plaintiffs if they're not incurring their own costs they are they paid the money now let's wait does it maybe i'm confused but i thought incur the cost doesn't just mean you pay the money it means you're doing the work was that you pay somebody else to do the work right it's that you're in there doing the work and you're incurring those costs directly and because you're incurring those costs directly that's what makes you want to seventy but i got it wrong you got it right but the facts are different they did pay the money directly here's the point here's what happened in this case any time there's a group a group of companies that collectively are going to clean up a site they join a group they make a joint common account they hire the contractors who are actually going to do the work collectively they put money into the hog that's correct exactly correct that's correct one thing i want to clear up is one of the things that was said in the reply brief the critical fact here is that e p a continue to do work at this site way after the date of the record a decision on the statute of limitations yes exactly and i want to just clear this up real simply they constructed an op and a ground water collection and treatment system in that light in the ninety's that continued to operate up until the day we took it over in may of two thousand with that we have to say it was clearly erroneous then right what judge davis found because judge davis finds as a fact that november eight hundred ninety eight is that and oh i disagree with that completely a completely absolutely he says he says at the earliest it was the date of the rod and then his footnote he specifically says in fact it's more likely to be september of two thousand selecting that is the end date why is that not how is that not his finding of fact because if you read what he says he says i'm selecting that for the purpose of doing the statute of limitations analysis to give carpenter every benefit of the dou probably we might have meant that too but let's up i'll be happy to talk about clearly erroneous there's all kinds of evidence in the record that that the e p a continue to operate and maintain that treatment plant up until may of two thousand when we took over first of all he made that finding of fact on page eight of his negotiating with the united states on the first consent decree trying to decide whether to take the plant over or not try to make a deal he went and observed the plant he saw how it was being run by e p a he figured out you know how much it was going to cost to do it he testifies that we then took over that plant in may of two thousand there's additionally a modification proposal that we made to e p a we said we want to change the plan the modification proposals in evidence it's a sixty seven eighty two eighty five and it specifically says the e p a was running that plant up until may two thousand plus you've got the cost report e p a s cost report that was the basis for the dollar settlement was through june of two thousand and the second consent decree we had to pay them four hundred twenty four thousand for work done that they had they just hadn't gotten around to recording after june two there's no doubt the e p a continued to do activity at the site and the cure really can be no doubt that this treatment plant i want to go back to the burden of proof and the statement that it's a red herring that is the central issue in this case if they have a one thirteen action only then they have the burden of proof but mr harris just said if i have a one a seven action i don't have the bullshitters but they had a one thirteen action and have that burden of proof ok now if that's true then i want to respond please to his argument which is whether whether the carpenter is bound by it in the form as a stipulation or not it can and does constitute an admission we put it in evidence the judge chose to credit it and he's within his power to do that and and therefore it it's evidence and it was the foundation for decision what's your response to that that evidence is not admissible evidence against carpenter because it is a hearsay statement carpenter did not adopt the statement they're not a coconspira them it's in the nature of our saying yeah we did it we did it to this amount and he credits that admission i don't not believe and we've cited cases that stipulations between two parties are miscible evidence against carpenter it may have been admis against handy in harman the defendant who entered into it it was not admissible against carpenter we've cited cases that deal with findings and consent decrees that are between two parties and that is not admissible evidence against a party who is not a party to that consent decree if you look at federal rule of evidence eight zero one which is the exception today here's a rule for admissions of pardons it specifically says it's not admissible against other parties except when their coconspirators are party adopts that statement it is not admissible evidence against carpenter in this case and that was their burden of proof here and if there's any doubt about that either really need to look at the colloquy this was expressly objected to by carpenter carpenter said that does not apply to us this is the quote plaintiff's counsel made in front of the court when carpenter objected your honor we're not asking defendant carpenter to stipulate to any of these facts and then the court says ok so it's a stipulation with a limited scope which doesn't clot involve your client it's not admissible against carpenter we're not saying that it can't be used against handy in harmon but he can't be used against carpenter they have not met their burden of proof against carpenter one other point i wanted to make with respect to this red herring in the contribution protection provisions it's not only a statutory bar both of the consent decrees both of the consent decrees have that language in there that says that carpenter does not have the right to assert a contribution action in its counter claim against the parties who entered into the consent decree both of them and that's at a at the appendix a twenty one ninety to ninety one and a twenty four twenty two and twenty three there's something in that rebuttal and the fact that carpenter clearly that just in equitable under the whole concept of sark well there's no doubt that it's a harsh result that we're seeking however it's the correct result because the plaintiff still has to put on their case they still have to