i'd like to address four principal arguments in my opening argument and if i get to the others if there's time i'll get to the others but the four that i'd like to address are principally the liability of the united states as an owner for wartime releases the operator liability of sheldon goldstein the circle allocation that was decided by the court and the fourth item would be the court's refusal to award rec row attorneys fees to the plaintiffs with respect to the first issue your honor the place the appellant's believe that the district court heard for two principal reasons first is that the district court ignored evidence that releases occurred at government owned equipment specifically in the course of utilizing if whitman it was required to maintain equipment  doesn't operate continuously without me and and the plane just experts identified that the equipment would have to be maintained with solvents that was standard practice at the time isn't that a factual finding  that is entitle to some deference well yes your honor but i think that the court ignored provisions that were in the d p c least in looking at this issue in addition to mr sachs testimony the d p c leases them themselves had provisions explicitly requiring the colombia aircraft had to be to maintain the equipment where they were going to be held responsible for the costs ordinary ordinary wear and tear so that factual finding the court how does how does the obligation to maintain the equipment necessarily require the factual finding that you advance here it certainly supports it as a possibility but how does it require it well the court your honor did find that it was it was likely that the equipment was maintained using a solvent the dish record however indicated that it wasn't proved that exists in this whole operation the records no longer exists frankly it's amazing we found as many records regarding this defunct facility as we did such lee this was a small machine shop facility and the court found that the likely solvent no evidence in the record that there was any other contaminant present in the plume that the united states alluded to namely you know alls and acetone there's clearly an abundance of p c in this plume which is over a mile long and shut down the man so fine yes the district court found that d c from the general warehouse impacted both the eastern plume which is the mile long plume that shut down the minister wells and they also found that the general warehouse contributed to the western plume in the united states was the machines it was ignored the court also focused on two principal facilities in its findings number one it focused on the entire property and number two it looked at the vapor to research themselves and clearly issue with respect to mr goldstein's operator liability the court found and the united states admits that the only activity conducted on the site by mr goldstein was cleaning up the site and for that basis t whose only responsibility of sight is cleaning it up his response was an operator on the circle i think that flies in the face of the two fundamental principles of circle if you don't see it by the supreme court of burlington northern number one that the statute designed to promote cleanups and number two that the polluter pays mr goldstein did not cause in any way shape or form and i think that's been found by the court and acknowledged by the defendants so therefore your honor we don't believe that is liable as an operator what's the basis for reading a causation requirement in i'm not reading a causation requirement in your honor but the case was tried is of causation was was relevant here i don't think causation is rel fact he didn't really control the cleanup the way cleanups work is you submit plans to a regulatory agency in this case that he was itself a liable party and the d p reviews those plans and then tells the never be accurate that the current owner controls the cleanup if there is any environmental entity involved as well and you know an agency of a state or or federal government is involved in any way well not if the party is specifically submitting plans to that agency your honor and getting the comments and directions from the agencies and then following those comments and directions and there's no evidence in the record of noncompliance by mr goldstein whatsoever the mountains of documents that were submitted to regulatory agencies they were all approved and he did all the work until he brought the rector suit after discovering that the njt itself was responsible for policing isn't it true the mystery gar that a passive release a passive migration can constitute a release under the law yes it can constitute a release but not a disposal your honor and the court is releases enough here he said cartoner he's not a pass or so but when  seven eight one which is what's focused on here your honor uses the word disposal not release and disposal under this court's decision in cd and g requires an affirmative action on the part of the fan that not passive much outlines the liabilities of individual such as mr goldstein in every respect including that release cluing that disposal can clean well your honor i would just say that the the sure realty case deals with owner liability and not operator liability which is what your honor asked of me so i don't think it's on point with respect to  specifically the claims asserted by let's go and goldstein were brought under section one of seven a and sought joint several liability against the defendants that requires when a case like that is brought in the case put on for the defendants they do they burden is shifted for them to a sabbath what their fair liability is that was never done in the course of this trial i objected to it at the close of the case i reserve my rights at the close of the plate this case and the court did not allow us that opportunity to put on evidence concerning allocation the second point i'd like to address has to do with the poultry two percent assigned to the united states which is the only party responsible for the release at the site of t c e other than the d p which is not currently before the court again there were the only generator if you see found both in the general warehouse and there was clear and convincing evidence produced with respect to that they claim that the material was on pallets that it looked ok but the bottom line is there were manifest found showing the crushed bottles of the same nature the bottles found in the pictures were shipped off the site in drums and there was numerous evidences of improper operations by the d p s contractor and releases that occurred during that period as well as a list of one doesn't this come within the district courts discretionary and here ours to allocate i mean it seems to me that this your argument here runs a bit foul of united states which we believe were a clear air number one the court used the fact that us that not ship waste rectally to the site as a factor and if that was used to reduce liability that would reduce the factor was relevant the second factor is that she found that the u s the court found that the us acted with due care and that was based on the united states cross examination of the d e p witness there was no evidence put on that united states representatives acted with you care in fact there was evidence that they used contractors that shipped materials under bills of lading which were has hazardous waste therefore the united states as the generator of material finally did the solid waste act because those materials had to be shipped under manifest and the generator has to sign of madness i thought the principal reason for the paltry allocation of the united states was a natural follow on to it the district court's holding on the degrees are issue because you did not persuade the district court on that  it almost necessarily follows then that the united states is going to get a paltry allocation had you prevailed on the degrees or issue then the united states would have been received a much much higher allocation my incorrect in the scribing that is as part of the district court's rationale for the united states allocation no your honor but the focus on the degree sir is at odds with the court's finding that the massive relief lease occurred in the southeast corner of the property the decre or was not quite outside and dumped there were all sorts of like least incidences including maintenance of equipment wiping with solvent successor which was then go outside and dumped out x we find the focus on the greaser to be on odds with where the release that the goal of the plaintiffs was it to get the responsible parties to do the clean up the d p settled a consent decree was entered the united states opposed that settlement which was designed to start the cleanup you can't reward plaintiff's arguments with respect to increasing the liability that should be allocated or should have been allocated to us defendants and the us i understand is going to address the issue of goldstein as operator liability to sands area because i think it represents an unfair weighing of all the factors and an abuse of discretion first factor i want to address is monitoring well number four this was installed ari's consultant hart in one thousand nine hundred nine and the evidence is unclear whether it was a faulty seal from inception or whether the seal failed within a year with peculiar readings from monitoring well number four instead of investigating goldstein sat on this and his expert and they sat on this for seven years allowing the condition the worsened and his subsequent experts tenant at the property and others all others so seal and there may not have been a problem with the seal under his ownership of property at monitoring well for and he assigned all his rights to do anything about it to go see the district court only mentions in passing this assignment of us the facts but i'm not sure where you're heading as an illegal matter is as a remedy which the allocation was based on three factors as to send diary this was one of the factors it was improper weighing of the facts and a failure to really give consideration to the sign and which prevented sincerity from doing anything about the seal but i once again he your sort of standing on the same footing as far as i can tell it as your friend on the other side because site in my mistaken that was the you now take me to the next part of my argument which is the second issue on which the trial court found liability unallocated now acacia since our but that was to use of discretion for the following reason since very didn't generate the waste it didn't cause it to be removed or stored from one property in newark to the general warehouse where it was it everything legally possible about the situation nor nor did lit go generator store the waste i mean that's just part of the part of the statutory regime is that we want these sites cleaned up so even people who are responsible for being the initial polluters are in the soup so to speak is correct but it goes to what degree of responsibility since harry should bear the d p under gross if we have to call someone a villain in this in this drama enough to persuade me it was the d p and there's something really in my view in equitable are for all of you here today that that the prince of leave responsible parties off the hook but that's the law so i hear pointing fingers at the p c it's seems to me anyway doesn't help you when trying to argue to us that your allocation visa view the other parties that could not take advantage the allocation that the district court made should have been weeded against the other parties rather than to you correct and the third fact th third wanted to address on which the court based some varies allocation share is the allegation that since ari failed to disclose the groundwater your share ten percent of discretion that's a hard one not on that issue alone i would i would have said on that of speculating now i would have said on for this issue i would have accepted ten percent but there are other what about seven its discretion by reducing your allocation four percent and it would have violated abused its discretion reducing its seven percent but not ten percent i think it should be at least ten percent how was the trial court to have the the foresight to know that the the line of demarcation between where its discretion began and where it ended was ten percent well again i think that's one of three factors and i think going to each of the factors the court didn't do what it should have done so if it's ten percent a minimum of ten percent of one factor and maybe ten on another and another so it's not that simple i don't think given you one issue one of the three issues in isolation mr lane let me challenge you on one issue not raised by mr mclaren but gives me some pause it seems to be the overwhelming weight of authority is that the recruit claim should have been brought exclusively in the federal court i know that you have a sixth circuit decision that goes your way on that but there are many many other decisions going the other way it might be my problem frankly with the six circuits analysis is that it looked to a title seven statute that had what appears to me at first blush to be remarkably different language than the language here why why is there not exclusive jurisdiction in the said and read the statute as a mom as an ex modifier of the venue provision of the statute in other words it read the statute to say if you're going to bring a suit you must bring it in the district where the damage occurred now the sixth circuit didn't really go you know adopt that or go into that basis for the reasoning but that's another grounds that distinguishes  jurisdiction because it doesn't say sluice of lee because it may just be saying that if you're going to bring the action the venue has to be in the district where the actual violation occurred and you also have yellow freight and tafel in both construing similar language that didn't have the exclusivity language and a lot of the other cases that have dealt with this issue work and found that you had to bring the suit exclusively in the u s district court where prevail freight free the supreme court in tafel and predate this and a number of the other cases were really the best explication you have your position on this issue davis halfman and yellow freight and a lot of the other cases are before them one that's not interface by judge greenaway doesn't get into any significant analysis of the issue just says i decline to follow davis and doesn't analyze district court and therefore they couldn't get the supreme court of new jersey to or of the state to review this issue of law and vos there was no basis for federal court to  us but to answer you judge stark again castle in yellow freight and davis and the this record in davis as well mr lane let me address one other issue with you is i understand your argument regarding the lic go appellants requests for prejudgment interest i believe you can see that prejudgment interest is mandatory in a section one of seven action  that in essence this case was converted to a section one thirteen action is that correct yes that's the argument if you have any case support for that proposition there's case there are cases that it's discretionary if it's a contribution claim i think we cited caldwell trucking i mean can you support for the conversion issue of the leaky other case any other courts that have held what appeared at first to be a want to serve an action was converted the fact two to one thirteen i'm not aware of anything other than what's in the brief i don't recall that we had one in the brief i will point out something that may be relevant on this the u defendants move for summary judgment for a determination that the plaintiffs were p r piece potentially responsible parties once that became the law of the case that's what made this a contribution case question our position is in this instance it was discretionary and there were some very compelling factors even know the statute says it is mandatory cut because that was the that was the issue i wanted to find out about and what do you suggest under the circumstances that we do about it well because it we hope that it is mandatory because i think you have to look at it as a contribution case because you look to the substance of what really what the claims really became and how it was litigated as not just mechanically how it was needed by the  otherwise the plaintiff always plead it in a way most favorable to the plaintiff i think you look to the substance of what the case became and in addition when you look at the exercise of discretion recall several factors who has no environmental backgrounds and was an educator to try to have a political solution to convince that the that he didn't have to clean up and as a district court found goldstein by his inaction  litigate rather than mitigate or reveal worsen the environmental condition and his own experts at testified that it had worsened by not being cleaned up he told his experts to drag their me before i ask my colleagues if they have any final questions of you are there any issues that you very briefly want to touch upon that you've not yet had an opportunity to mention very briefly the trial before i don't have it is the issue o hart report that analyzes and discusses the very groundwater test results that they now claim he never saw that i told and never got and that's what the point is then that's why their allocation was  no thank you thank you very much mr lane to hear from m mr talk before you begin i'm afraid i'm going to forget this i want to ask you your view on this argument about a one of seven action being converted to a one thirteen action as a way to  your view i'm interested in your view as in that period advocate for mill you with this issue with your view of the pre judgment interest organ well i think it's indicative you're of the united states it waited to pain prejudgment interest so we thought it was available at least in terms of settling it appeal liable under circle and then allocated cost based on equitable consideration of various factors that explain its findings contrary of principles of appellate law look go as that by the district court or a conclusion of law should say which is that she says on page ninety four of the record that there is no evidence linking government owned equipment to chlorinated solvents during world war two and it's true that the go presented evidence that it was there was a possibility in the words of their expert chemists that a government owned equipment could have been wiped down or sprayed with point but that's just a possibility and when the district court made a finding in fact to the contrary that there is simply another possible way to view the evidence isn't enough to establish there was clear ever there has to be only one way that the evidence can in to the word disposal i mean this is important here because it reads into the word disposal that requirement of human action that's only required for past operators in the opinion of that case if there were an action requirement it's going to encourage is not going to discourage people from cleaning up properties it's going to encourage them to fully investigate with you diligence before they acquire properties and agree to bear the risk is mr goldstein did here and additionally the clean done by columbia aircraft not by the united states apologise for going back to the first issue owner issue as far as allocation goes the burden did not shift here because as innocent owner defense that the court rejected as a matter of law so as far as burdens of demonstrating contribution all parties were on equal footing at the beginning of trial and even though the doe argued for an all issues trial and knew that it had an my my recollection is that the district court decided he had circuit for a motion for reconsideration at all but not a trial that's my my recollection of the record well we can ask you both as far as the united states do that made the decision to send those materials to the general warehouse that was made by a third party the fact that there were other containers of corrugated solvents that new jersey's contractor crushed or were still during its cleanup is not something that puts the united states on the hook as an equitable matter for for more than a minimal share here and it wasn't an abuse of discretion for the district court to decide that the first instance as far as  without prejudice that they never got any final relief and not under a canon is required for a party to be prevailing party under attorney statute record does use language that says substantially prevailing in addition to prevailing party and that's a minor distinction ma with buckhannon but the ninth circuit in the context of record applied by canon and rejected the argument that the word substantial added anything meaningful to the prevailing if anything the ninth circuit found this is have said you know what goes fifty four percent since ours twenty one percent you know it's through percent new jersey's twenty three percent and you know what new jersey did here was reprehensible and incompetent so i'm not going to increase the proportion of shares of the other three parties with the district court of the discretion to do that i don't know that it would have been an abuse of discretion for it to have done that i don't think it was compelled to do so here though you know i may not make a difference because the four to seventy cents are went from twenty one to twenty seven so they're incurring increase costs are they not right that's that's fair i did that in the district court have to do distribute your friendship or we're could have just been satisfied with less than one hundred percent liability by refusing to to do so now i don't think you have been an abuse of discretion not to distribute that work and share i just i don't think it was compelled to do so just not be distributed or you don't recall that i believe the orphan sure had to be distributed in the context of this case and that the plaintiffs in this case sought a finding of joint to civil liability that's the fundamental principle under circlets joint and several of that doesn't mean that you're only liable for your fair share in this case your honor in response to your question about the distinction between one of seven and one thirteen the only claim asserted under  circle was one of seven a claim there is a case in the circuit a gear which deals with the distinction it's a recent case between one o seven and one thirteen this case is distinguishable from that case where the court converted one of seven claimants what one thirteen claim for the very simple reason that the plaintiffs in that case were operating under a consent decree which provided for a right of contribution and provided for contribution protection and the court was concerned that the defendants would be unfairly prejudiced by the contribution protection provision and consent decree so here i don't think that's an issue because we only have one of seven claims there's no issue along the lines of  you're you're only seeking pre judgment interest from sens are at this point because you already have it from me last is that correct yes the u s stipulated to iran and you know that's not a super significant power in the context of this and i'd like to step back your honor to the owner liabilities again because there's a second point that united states didn't address which is addressed in in our briefs and that is that the young u s is also an owner of a process installation not to recent  before you go there does that mean you don't have a rejoinder to what mr talk just argued about why release is sufficient and disposal is not required with respect to the city energy decision yes i think you o focused on the heartbeat of the operation here the government on forty three percent of the total value of the equipment they own the biggest pieces of equipment if you compare the equipment lists from the d leases with the equipment list from the certificates and that's in the ceci the big dollar items were owned by the united states and the d p c leases themselves specifically say that this equipment was necessary to produce the products at this facility which is the court's finding in separate oh it's also the court's finding in a slick or american international specialty insurance alliance which is a case that was in the central district  california which involved the united states as the defendant and in that case judge marks also found that while the government may not own the pipe from which things were discharged government equipment was own and it was a necessary department had to make those findings in order to provide equipment to a private operator so i think there's no issue here on that and on that basis alone the united states should be held liable in consistent with the rulings and zac judge greenway below who is now a member of this court he found directly opposite to the court in the ligo decision that it is exclusive in federal courts there's one other point i'd like to raise and that has to do with the due care issue that was found by a judge thompson