*

Honorable Stanley Marcus, U.S. District Judge for the

Southern District of Florida, sitting by designation. 

United States Court of Appeals, Eleventh Circuit.

No. 95-6198.

REDWING CARRIERS, INC., Plaintiff-Counter-defendant-Appellant,

v.

SARALAND APARTMENTS, Roar Company, Defendants-Counter-claimantsAppellees,

Michael Coit, in his capacity as legal representative of the

Estate of Robert Coit, Christopher M. Weil, in his capacity as

legal representative of the estate of Robert Coit, Marcrum

Management Company, et al., Defendants-Appellees,

Robert Coit, Defendant-Counter-claimant.

Sept. 12, 1996.

Appeal from the United States District Court for the Southern

District of Alabama. (No. CV-91-0524-BH-S), William Brevard Hand,

Judge.

Before DUBINA and BLACK, Circuit Judges, and MARCUS*

, District

Judge.

BLACK, Circuit Judge:

Redwing Carriers, Inc. (Redwing) appeals the district court's

grant of summary judgment in favor of Appellees Saraland

Apartments, Ltd., Michael Coit and Christopher Weil, Roar Company,

Hutton Advantaged Properties Ltd., H/R Special Limited Partnership,

Marcrum Management Company and Meador Contracting Company. Redwing

sued the Appellees claiming they are liable under the Comprehensive

Environmental Response, Compensation and Liability Act of 1980

(CERCLA or "the Act") for response costs Redwing has incurred in

cleaning up a Superfund Site in Saraland, Alabama. Redwing argues

the district court committed numerous errors in rejecting its

CERCLA claims and allocating the entire cost of cleaning up the
 1

A.B. Meador was the president of Meador as well as a

general partner in Saraland Limited. 

Site to Redwing. As discussed below, we affirm in part, reverse in

part, and remand.

I. BACKGROUND

The Redwing Carriers, Inc. (Saraland) Site is a 5.1-acre

parcel of land located within the southern Alabama community of

Saraland. From 1961 to 1972, Redwing operated a trucking terminal

on the property. Redwing was in the business of hauling materials

used in construction and other industries, and trucks passing

through the Saraland terminal carried substances such as asphalt,

tail oil, and molten sulfur. At the terminal, trucks were cleaned

out, and the waste water permitted to drain onto the property.

Redwing built levees on the Site to contain the waste water runoff

and dumped excess asphalt directly into pits dug out of the ground.

As a result of Redwing's activities, the ground at the Site became

contaminated with hazardous chemicals which have combined to form

a black, tar-like toxic substance.

In 1971, Redwing sold the Site to Harrington, Inc., which in

turn sold the property to Apartments, Inc., later that year. In

March 1973, Saraland Apartments, Ltd. ("Saraland Limited" or "the

Partnership") purchased the property from Apartments, Inc. At the

time, Ralph C. Harrington, A.B. Meador, E.L. MacDonald, and W.D.

Bolton were partners in Saraland Limited. The Partnership promptly

hired Meador Contracting Company (Meador) to build an apartment

complex on the Site.1 As part of the construction, Meador had to

grade, excavate and fill the ground on the property. During the
grading and excavating, Meador's subcontractor encountered patches

of contaminated soil and deposits of the tar-like substance buried

by Redwing. Meador completed construction of the Saraland

Apartments complex in May 1974.

Construction of the complex was subsidized by the United

States Department of Housing and Urban Development (HUD) to provide

low-income housing. In 1980, Saraland Limited hired Marcrum

Management Company (Marcrum) as its "management agent" for the

property. According to Marcrum, it provides administrative support

to the Partnership to assure the Partnership conforms with federal

regulations governing HUD-subsidized properties. Marcrum denies

Redwing's claim that the company is the daily, on-site manager of

the property.

Redwing further alleges that after Marcrum assumed management

of Saraland Apartments, two events caused a dispersal of

contaminated soil at the Site. In 1986, the complex's parking lot

was repaved. In 1991, contractors hired by Marcrum performed

maintenance work on an underground gas line on the property. To

access the pipeline, workers dug up soil at specific locations

along the pipeline.

Saraland Limited first became aware of tar seeping to the

surface of the property in 1977. HUD noted tar in several areas of

the complex during a July 1983 inspection. In an August 1984

inspection report, HUD again cited tar surfacing in various

locations in the complex. By this time, residents of Saraland

Apartments had been complaining about tar problems for several

years.
 2

Robert Coit was the principal officer and shareholder in

Roar. 

 3

Robert Coit died while this action was pending in the

district court, and Michael Coit and Christopher Weil were

substituted as representatives of Robert Coit's estate. We shall

refer to Michael Coit and Christopher Weil, in their joint

capacity as legal representatives of Robert Coit's estate, as

"Coit." 

 4Other notable powers of the Hutton partners include: (1)

H/R Special Partnership must consent to any refinancing or

prepayment of the mortgage on Saraland Apartments; (2) a general

partner must obtain the consent of H/R Special Partnership before

withdrawing from the Partnership; and (3) H/R Special

Partnership may remove a general partner in certain

circumstances. 

In October 1984, a group of investors bought out the original

partners in Saraland Limited. Robert Coit and Roar Company (Roar)2

purchased a 1% general partnership interest in the Partnership.3

Hutton Advantaged Properties, Ltd. and H/R Special Limited

Partnership (collectively, "the Hutton partners") purchased the

remaining 99% interest and became limited partners in Saraland

Limited.

Under the amended partnership agreement signed in 1984, Coit

and Roar are responsible for managing the business of the

Partnership. The limited partners, however, possess certain rights

giving them a measure of control over the Partnership's affairs.

For example, H/R Special Partnership may force the Partnership to

sell the apartment complex and may veto any proposed sale of the

property. H/R Special Partnership must likewise consent to any

extended management contract for the complex or any change in the

managing agent.4

In 1985, Redwing entered into an "administrative order by

consent" with the Environmental Protection Agency (EPA) agreeing to
 5

Other than Redwing's claims against the individual partners

predicated on partnership law, the parties have not contested the

district court's disposition of the state law counts. 

Accordingly, we will not address these claims. 

monitor the Site for tar seeps and to remove any seeps that

appeared. Redwing bound itself in a second consent order in July

1990 to perform the remedial investigation/feasibility study for

the property. Redwing claims it has spent approximately $1.9

million in investigating and cleaning up the Site.

Redwing filed this suit seeking to recoup these costs.

Redwing alleged the Partnership, Coit, Roar, the Hutton partners,

Marcrum, and Meador were liable under §§ 113(f) and 107(a) of

CERCLA for the costs Redwing has incurred and will incur in the

future in cleaning up the Site. Redwing also sought relief under

several state law theories. The Partnership, Coit, Roar, and the

Hutton partners alleged counterclaims against Redwing for

contribution under § 113(f) of CERCLA. These defendants also

brought claims under Alabama law seeking recovery from Redwing for

property damage caused by Redwing's burial of toxic chemicals on

the Site.

In time, Redwing and the Appellees filed cross-motions for

summary judgment on the CERCLA and state law claims. 5

 With the

exception of Redwing's claim against Saraland Limited, the district

court denied Redwing's motion for summary judgment on its CERCLA

claims. Redwing Carriers, Inc. v. Saraland Apartments, Ltd., 875

F.Supp. 1545, 1555-67 (S.D.Ala.1995). The court granted the other

appellees' cross-motions for summary judgment on their liability

under CERCLA. Id. The Partnership, as the current owner of the
Site, conceded it was a "covered person" within the meaning of

subsection 107(a)(1) of CERCLA and hence potentially responsible

for response costs. Id. at 1566-67. The district court, however,

granted the Partnership's motion for summary judgment on its

contribution claim under § 113(f) of CERCLA. Id. at 1569. The

court then allocated 100% of the response costs to Redwing, thereby

absolving the Partnership of any responsibility under CERCLA. Id.

Redwing appeals the district court's denial of its motion for

summary judgment on its CERCLA claims as well as the court's

allocation of costs under § 113(f).

II. STANDARD OF REVIEW

 We review a district court's grant of summary judgment de

novo. Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 906, 130 L.Ed.2d

788 (1995). A motion for summary judgment should be granted when

"the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper,

833 F.2d 1507, 1510 (11th Cir.1987). An issue of fact is "genuine"

if the record as a whole could lead a reasonable trier of fact to

find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An

issue is "material" if it might affect the outcome of the case

under the governing law. Id.
 6

Redwing has not denied its liability under CERCLA before

this Court. Notably, Redwing has not appealed the liability

ruling of the district court's summary judgment in favor of

Saraland Ltd., Coit, Roar, and the Hutton partners on their

counterclaims under § 113(f). Rather than challenging the

district court's finding that the company is a responsible party

under CERCLA, Redwing contests the district court's allocation of

costs between Redwing and the Appellees. 

III. DISCUSSION

 In its amended complaint, Redwing alleged separate claims

against the Appellees under §§ 107(a) and 113(f) of CERCLA, 42

U.S.C. §§ 9607(a) and 9613(f). As a matter of law, however,

Redwing's CERCLA claims against the Appellees are claims for

contribution governed by § 113(f). To bring a cost recovery action

based solely on § 107(a), Redwing would have to be an innocent

party to the contamination of the Saraland Site. See United

Technologies Corp. v. Browning-Ferris Indus., 33 F.3d 96, 99-100

(1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1176, 130

L.Ed.2d 1128 (1995); Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d

761, 764 (7th Cir.1994). Redwing cannot claim such innocence.

Although Redwing disavowed liability in its consent orders with the

EPA, Redwing cannot deny it originally disposed of most, if not

all, of the hazardous substances now contaminating the Site.

Redwing is a responsible party under CERCLA6

, and therefore, its

claims against other allegedly responsible parties are claims for

contribution. See United States v. Colorado & E.R. Co., 50 F.3d

1530, 1535-36 (10th Cir.1995); Amoco Oil Co. v. Borden, Inc., 889

F.2d 664, 672 (5th Cir.1989).

 Whether Redwing brings its claims under § 107(a) or § 113(f)
 7

The importance of distinguishing between cost recovery

actions brought under § 107(a) and contribution claims under §

113(f) will become evident in our discussion of equitable

allocation under § 113(f) in section III(E), infra. For now, we

note a crucial difference between claims brought under these two

sections is the nature of liability imposed on defendants. In

most cases, a defendant found liable to an innocent plaintiff,

i.e., a plaintiff who is not itself liable under CERCLA for

cleaning up a site, is held jointly and severally liable under §

107(a) to the plaintiff for all of the plaintiff's response

costs. See Colorado & E.R. Co., 50 F.3d at 1535; Akzo Coatings,

30 F.3d at 764. In contrast, subsection 113(f)(1) expressly

permits courts to allocate response costs among responsible

parties—including the plaintiff—in contribution actions between

responsible parties. 42 U.S.C. § 9613(f)(1). 

 8

The NCP is a body of regulations governing the clean up of

hazardous waste sites under CERCLA. See 42 U.S.C. § 9605(a); 40

C.F.R. Part 300 (1995).

Courts are split on whether a CERCLA plaintiff must

demonstrate consistency with the NCP to obtain a partial

summary judgment on a defendant's "liability" under CERCLA. 

does not matter insofar as establishing the Appellees' liability.7

The elements of a claim under both sections are the same. See 42

U.S.C. § 9613(f)(1) ("Any person may seek contribution from any

other person who is liable or potentially liable under section

9607(a) [107(a) ] of this title."). Compare United States v. Alcan

Aluminum Corp., 990 F.2d 711, 719-20 (2d Cir.1993) (listing

elements of a cost recovery action under § 107(a)) with Amoco Oil,

889 F.2d at 668 (listing elements in contribution action brought by

one responsible party against another). To prevail on a claim

under CERCLA, a plaintiff must demonstrate:

1. the site in question is a "facility" as defined in § 101(9) of

CERCLA, 42 U.S.C. § 9601(9);

2. a release or threatened release of a hazardous substance has

occurred;

3. the release or threatened release has caused the plaintiff to

incur response costs consistent with the "national contingency

plan" (NCP)8

; and
Compare Alcan Aluminum, 990 F.2d at 720 (stating CERCLA

plaintiff entitled to summary judgment on issue of

liability, even when genuine issues of fact remain as to

appropriate damages) and Amoco Oil, 889 F.2d at 668 (same)

with Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406,

1413-14 (D.Md.1991) (reasoning that to establish liability

under CERCLA, plaintiff must demonstrate at least some of

the costs sought are consistent with the NCP) and Artesian

Water Co. v. Government of New Castle County, 659 F.Supp.

1269, 1291-92 (D.Del.1987) (reasoning plaintiff must

demonstrate consistency with the NCP to obtain partial

summary judgment), aff'd, 851 F.2d 643 (3d Cir.1988). We

need not decide this issue here. The district court did not

address NCP consistency, and the parties have not raised the

issue on appeal. 

 9

CERCLA broadly defines "person" as including an

"individual, firm, corporation, association, partnership,

consortium, joint venture, commercial entity, United States

Government, State, municipality, commission, political

subdivision of a State, or any interstate body." 42 U.S.C. §

9601(21). 

4. the defendant is a "covered person" under § 107(a) of CERCLA.

Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146,

1150 (1st Cir.1989); Amoco Oil, 889 F.2d at 668; Ascon

Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152-53 (9th

Cir.1989). The parties do not contest Redwing has established the

first three elements. The Saraland Site is a "facility" under

CERCLA, and there has been a release of hazardous substances on the

property. The Appellees furthermore do not deny Redwing's claim

that it has incurred response costs and will continue to incur

response costs in the future.

The parties focus their debate on whether some or all of the

Appellees are "covered persons" under § 107(a). This section

defines four classes of potentially responsible parties:

1) the owner and operator of a vessel or a facility,

2) any person9

 who at the time of disposal of any

hazardous substance owned or operated any facility at which
 10Redwing does not allege any of the Appellees are liable

according to subsection 107(a)(4) as parties who transported

hazardous substances to the Saraland Site. 

such hazardous substances were disposed of,

3) any person who by contract, agreement, or otherwise

arranged for disposal or treatment, or arranged with a

transporter for transport for disposal or treatment, of

hazardous substances owned or possessed by such person, by any

other party or entity, at any facility or incineration vessel

owned or operated by another party or entity and containing

such hazardous substances, and

4) any person who accepts or accepted any hazardous

substances for transport to disposal or treatment facilities,

incineration vessels or sites selected by such person, from

which there is a release, or a threatened release which causes

the incurrence of response costs, of a hazardous substance.

42 U.S.C. § 9607(a). This appeal concerns CERCLA's definition of

the first three classes of persons.10

In its amended complaint, Redwing alleged all of the Appellees

except Meador were liable under subsections 107(a)(1), (2), and

(3). Redwing alleged Meador was responsible only for having

"arranged for" the disposal of hazardous substances at the Site as

defined in subsection 107(a)(3). We will review Redwing's

arguments regarding each Appellee's liability under these

subsections of § 107(a) below.

 We pause, however, to address the district court's

interpretation of subsection 107(a)(1). This provision imposes

liability on any current "owner and operator" of a site. See 42

U.S.C. § 9607(a)(1) (emphasis supplied). The district court

reasoned the phrase "owner and operator" means a defendant could

only be liable under this subsection if the defendant was both the

owner and the operator of a site. See Redwing Carriers, 875

F.Supp. at 1555-56. This conclusion is contrary to the law of this
Circuit. In United States v. Fleet Factors Corp., 901 F.2d 1550,

1554 n. 3 (11th Cir.1990), cert. denied, 498 U.S. 1046, 111 S.Ct.

752, 112 L.Ed.2d 772 (1991), we interpreted the phrase "owner and

operator" in subsection 107(a)(1) to be disjunctive, imposing

liability on any person who was either the current owner or the

current operator of a facility. The district court acknowledged

Fleet Factor 's reasoning, but suggested this view is not supported

by the statutory text and is due to be reconsidered. See Redwing

Carriers, 875 F.Supp. at 1556. The district court was not free to

disregard Fleet Factor 's reasoning, and neither are we. Absent a

supervening Supreme Court decision or a change in statutory law, we

are bound by a prior panel's decision. Myrick v. Freuhauf Corp.,

13 F.3d 1516, 1521 (11th Cir.1994), aff'd, --- U.S. ----, 115 S.Ct.

1483, 131 L.Ed.2d 385 (1995); United States v. Woodard, 938 F.2d

1255, 1258 & n. 4 (11th Cir.1991), cert. denied, 502 U.S. 1109, 112

S.Ct. 1210, 117 L.Ed.2d 449 (1992). It is therefore settled that

a person is a responsible party under subsection 107(a)(1) if they

are the current owner or operator of a facility.

The parties do not dispute Saraland Limited holds title to the

Site. The Partnership thus concedes it is a potentially

responsible party under subsection 107(a)(1) as the current owner

of the property. The primary question in this appeal is whether

Redwing carried its burden on summary judgment of showing any of

the other Appellees are also responsible parties under § 107(a).

A. The Hutton Partners

Hutton Advantaged Properties, Ltd. and H/R Special Limited

Partnership, Ltd. became limited partners in Saraland Limited when
they purchased a 99 percent interest in the Partnership. Citing

this interest together with the rights the Hutton partners have

under the amended partnership agreement, Redwing argues these

limited partners are "owners" and "operators" of the Site within

the meaning of § 107(a). Redwing further alleges the Hutton

partners are liable for having "arranged for" the disposal of

hazardous substances on the property as defined in subsection

107(a)(3). The district court found Redwing's arguments

unconvincing, Redwing Carriers, 875 F.Supp. at 1556-1559, and we

are similarly unpersuaded.

1. "Owner" Liability.

 Subsection 107(a)(1) imposes liability on the current "owner"

of a facility while subsection 107(a)(2) does likewise for parties

who in the past "owned" the site at the time a hazardous substance

was disposed of at the facility. 42 U.S.C. § 9607(a)(1), (2).

"Owner" does not have any special meaning under CERCLA. The

statute defines the "owner or operator" of "an onshore facility" as

"any person owning or operating such facility." 42 U.S.C. §

9601(20)(A)(ii). This circular definition of "owner or operator"

suggests these terms have their ordinary meanings rather than any

unusual or technical meaning. Edward Hines Lumber Co. v. Vulcan

Materials Co., 861 F.2d 155, 156 (7th Cir.1988).

 Redwing essentially argues that given the Hutton partners'

stake in Saraland Limited and their power to control the

Partnership, they should be deemed "owners" of the Saraland Site

under CERCLA. This argument ignores the settled principle that

property interests and rights are defined by state law. Butner v.
United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136

(1979). In the absence of any unique definition of "ownership" in

CERCLA, we look to Alabama law to define the ownership interest of

the limited partners in the Site.

 Title to the Site rests with the Partnership—not the limited

partners. Under Alabama's limited partnership statute, a partner's

interest in the partnership is personal property. Ala.Code § 10-

9A-120 (1994). The Hutton partners' interest in Saraland Limited

permits them to share in the profits and losses of the Partnership,

as well as receive distributions of the Partnership's assets and

any allocation of income, gain, loss, deduction, credit or similar

items. Id. § 10-9A-1(10). Neither Alabama law nor the amended

partnership agreement of 1984 suggests the Hutton partners hold

title to the Partnership's assets. Since the limited partners are

not owners of the Site under Alabama law, they are not "owners" of

the Site within the meaning of § 107(a) of CERCLA.

We reject Redwing's suggestion that limited liability

structures such as corporations and limited partnerships are

irrelevant in assessing "owner" liability under CERCLA. Nothing in

§ 107(a) or § 101(20)(A) implies that owner liability can be

imposed directly on a limited partner in disregard of the

partnership structure established according to state law. If

Congress intended for courts to ignore state law defining property

interests in assessing CERCLA owner liability, then it would have

stated so. Since the statute does not evince such an intent, we

will not interpret it in this fashion. Cf. United States v. USX

Corp., 68 F.3d 811, 824 (3d Cir.1995) (finding CERCLA's language
"fails to indicate that traditional concepts of limited liability

are to be disregarded" and refusing to hold a corporation's

shareholders and officers directly liable under subsection

107(a)(4) of CERCLA for the corporation's acts); Joslyn Mfg. Co.

v. T.L. James & Co., 893 F.2d 80, 83 (5th Cir.1990) (noting a

similar lack of any intent to extend CERCLA liability directly to

a parent corporation based on the liability of its subsidiary),

cert. denied, 498 U.S. 1108, 111 S.Ct. 1017, 112 L.Ed.2d 1098

(1991).

 That the Hutton partners are not owners of the Site under

CERCLA does not end our analysis. This only means the limited

partners are not directly liable under the Act for cleaning up the

Site. The question remains whether the Hutton partners, by virtue

of their being limited partners in the Partnership, are accountable

indirectly for the Partnership's CERCLA liability under applicable

partnership law. As a general rule, a limited partner is not

liable for the obligations of the partnership. See, e.g., Ala.Code

§ 10-9A-42(a); Cal.Corp.Code § 15632 (West 1996); Fla.Stat.Ann.

§ 620.129(1) (West 1993). An exception arises when a limited

partner acts like a general partner in controlling the

partnership's business. In those circumstances, the limited

partner may lose its limited liability status and be held to

account for the partnership's liability. See, e.g., Ala.Code § 10-

9A-42(a); Cal.Corp.Code § 15632; Fla.Stat.Ann. § 620.129(1). The

Hutton partners' liability for the Partnership's CERCLA obligations

therefore depends on whether they crossed this line in controlling
 11The district court concluded the question of whether the

Hutton partners were liable under partnership law was moot

because the Court ultimately allocated all the costs of cleaning

up the Site to Redwing. Redwing Carriers, 875 F.Supp. at 1557. 

Since the district court on remand could arrive at a different

allocation of responsibility and assess some costs to the

Partnership, it is prudent to address whether the Hutton partners

can be held accountable for any CERCLA liability imposed on the

Partnership. 

 12The parties have cited, and our research has uncovered,

only one reported decision from a federal court addressing a

limited partner's liability under CERCLA. See Soo Line R. Co. v.

B.J. Carney & Co., 797 F.Supp. 1472, 1485-86 (D.Minn.1992). In

Soo Line, the general and limited partners of a partnership moved

to dismiss the plaintiff's claim for imposing joint and several

liability against them based on the potential liability of the

partnership under CERCLA. Id. at 1485. The partners contended

they were shielded from such liability by state partnership law. 

Id. at 1485-86. The limited partners in Soo Line, as the Hutton

partners have in this case, argued they were not liable under

state law for any debts of the partnership without having

controlled the partnership. Id. The district court rejected the

the business of Saraland Limited.11

Neither CERCLA's text nor its legislative history address

whether state or federal law governs when a limited partner may be

held liable for the partnership's debts. As several jurists have

noted, Congress passed CERCLA in great haste and in the process

left many holes in its framework for courts to fill in. Smith Land

& Improvement Corp. v. Celotex Corp., 851 F.2d 86, 91 (3d

Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 837, 102 L.Ed.2d

969 (1989); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805

F.2d 1074, 1080 (1st Cir.1986). One of the more significant gaps

in CERCLA's scheme arises where the right to recovery created by

the Act confronts state law governing business entities like

corporations and partnerships.

Although there is a dearth of authority regarding CERCLA's

interaction with state partnership law,12 courts have been called
partners' arguments reasoning:

[R]esponsible parties may be held jointly and severally

liable under CERCLA. Both individuals and partnerships

are statutorily defined "persons." ... As a general

rule, CERCLA imposes joint and several liability upon

responsible persons except where they can show that the

harm is divisible.... Accordingly, the Court will let

stand the allegations of joint and several liability

unless and until the defendants show that the harm is

divisible.

Id. at 1486 (citations omitted). Given the procedural

posture of Soo Line and the joint argument of the general

and limited partners in that case, we hesitate to read too

much into the district court's holding. Still, to the

extent the Soo Line court rested this particular holding on

the premise that CERCLA imposes liability directly on a

limited partner merely because the partnership itself is

liable, then we must respectfully disagree with this

conclusion. Such reasoning ignores the limited liability

nature of these partnerships under state law. As explained

earlier, nothing in CERCLA suggests we should disregard

traditional concepts of limited liability in the corporate

and partnership contexts in assessing owner liability under

the Act. 

upon to resolve issues of CERCLA liability for corporations and

their shareholders. For example, courts in CERCLA actions have had

to determine when to "pierce the corporate veil" to hold a

corporation's shareholders liable, see United States v. Cordova

Chem. Co., 59 F.3d 584, 592 (6th Cir.), reh'g en banc granted and

judgment vacated, 67 F.3d 586 (6th Cir.1995); Lansford-Coaldale

Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1224-25 (3d

Cir.1993), whether a corporation can be held accountable as a

"successor" corporation for its predecessor's CERCLA liability, see

Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1244-47 (6th

Cir.1991); Smith Land, 851 F.2d at 90-92, and whether a dissolved

corporation is subject to suit under CERCLA, see Levin Metals Corp.

v. Parr-Richmond Terminal Co., 817 F.2d 1448, 1450-51 (9th
Cir.1987); United States v. Sharon Steel Corp., 681 F.Supp. 1492,

1494-98 (D.Utah 1987). In resolving questions of liability for

shareholders, officers and employees of corporations under CERCLA,

courts have reached different conclusions on whether state or

federal common law provides the rule of decision. Compare Anspec

Co., 922 F.2d at 1248-51 (Kennedy, J., concurring) (reasoning state

law governs the issue of corporate successor liability under

CERCLA) with Smith Land, 851 F.2d at 91-92 (stating federal common

law standard should govern successor liability) and LouisianaPacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1263 (9th Cir.1990)

(agreeing with Smith Land on this question).

 Ultimately, federal law determines the issue of CERCLA

liability. CERCLA is a federal statute targeting a national

problem: the cleanup of hazardous waste sites. Consequently, the

rights and liabilities created by CERCLA are governed by federal

law. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 726-

28, 99 S.Ct. 1448, 1457-58, 59 L.Ed.2d 711 (1979); Clearfield

Trust Co. v. United States, 318 U.S. 363, 366-67, 63 S.Ct. 573,

574-75, 87 L.Ed. 838 (1943). The Supreme Court has cautioned,

however, that controversies governed by federal law "do not

inevitably require resort to uniform federal rules." Kimbell

Foods, 440 U.S. at 727-28, 99 S.Ct. at 1458 (citing Clearfield

Trust, 318 U.S. at 367, 63 S.Ct. at 575 and United States v. Little

Lake Misere Land Co., 412 U.S. 580, 594-95, 93 S.Ct. 2389, 2397-

2398, 37 L.Ed.2d 187 (1973)). Instead, "[w]hether to adopt state

law or to fashion a nationwide federal rule is a matter of judicial

policy "dependent upon a variety of considerations always relevant
 13Subsection 113(f)(1) of CERCLA states actions for

contribution under the statute are "governed by Federal law." 42

U.S.C. § 9613(f)(1). As explained at the outset, Redwing's

CERCLA claims against the Appellees are for contribution and

hence controlled by § 113(f)(1). We do not, however, interpret §

113(f)(1)'s language as mandating a federal common law rule be

fashioned to resolve the issue of a limited partner's liability

under CERCLA for the partnership's debts.

The issue of the Hutton partners' liability under

CERCLA, as was the issue in Kimbell Foods, is unquestionably

"governed by federal law." Cf. Kimbell Foods, 440 U.S. at

726, 99 S.Ct. at 1457. Our task is to determine whether

"federal law" should be a uniform common law rule or the

applicable state law rule. In Kimbell Foods, the Supreme

Court held federal law should adopt "nondiscriminatory state

laws" as the federal decision rule in resolving the priority

of liens stemming from governmental lending programs. Id.

at 740, 99 S.Ct. at 1465. Similarly, we conclude state

partnership law should be adopted as the federal decision

rule for evaluating a limited partner's liability under

CERCLA. Thus, in resolving Redwing's contribution claims

under § 113(f), we are applying a federal law rule that is

defined by the applicable state law. 

to the nature of the specific governmental interests and to the

effects upon them of applying state law.' " Id. at 728, 99 S.Ct.

at 1458 (quoting United States v. Standard Oil Co., 332 U.S. 301,

310, 67 S.Ct. 1604, 1609, 91 L.Ed. 2067 (1947)).13

 In Kimbell Foods, the Supreme Court fashioned a three-factor

test for determining whether, when filling a gap in a federal

statute, to craft a uniform common law rule or to adopt the

applicable state law rule as the federal standard. Under the

Kimbell Foods test, courts must consider:

1. whether there is a need for a nationally uniform body of law to

apply in situations like the one before the court;

2. whether application of the state law rule would frustrate

important federal policy; and

3. the impact a federal common law rule might have on existing

relationships under state law.

Id. at 728-29, 99 S.Ct. at 1458-59; FDIC v. Jenkins, 888 F.2d
 14There is significant agreement among the 50 states and the

District of Columbia on the broad outlines of a rule governing

the liability of limited partners. This is because nearly every

jurisdiction in this country has adopted a version of the Revised

Uniform Limited Partnership Act of 1976 (RULPA).

Section 303 of RULPA defines when a limited partner is

liable to a third party. See Revised Unif. Limited

Partnership Act § 303, 6A U.L.A. 144-45 (1995). As amended

in 1985, § 303 of RULPA holds a limited partner who has

"participate[d] in the control of the business" liable to:

persons who transact business with the limited

partnership reasonably believing, based upon the

limited partner's conduct, that the limited partner is

a general partner.

Id. at § 303(a), 6A U.L.A. 144. In its "safe harbor"

provisions, the model rule defines certain acts a limited

partner can take without being deemed to "participate in the

control of the business" thereby jeopardizing the partner's

limited liability. See id. at § 303(b), 6A U.L.A. 144-45. 

This rule, with some modifications among the jurisdictions,

has been adopted by 39 states and the District of Columbia. 

See id. at 6A U.L.A. 1-2 (table) (listing statutory

citations to state law adaptations of the model act).

Seven states—Alabama, Iowa, Michigan, Montana, New

Jersey, North Carolina and South Carolina—have adopted the

1537, 1545 (11th Cir.1989). As have other courts that have

addressed similar issues of corporate liability under CERCLA, see

Anspec Co., 922 F.2d at 1248-51 (Kennedy, J., concurring);

Atlantic Richfield Co. v. Blosenski, 847 F.Supp. 1261, 1279

(E.D.Pa.1994), we find it necessary to apply the Kimbell Foods test

to the issue of whether federal common law or state law should

govern when a limited partner can be held accountable for the

CERCLA liability of the partnership. After doing so, we conclude

this question should be answered according to the applicable state

law rule.

Initially, we are not convinced of the need for a uniform

federal rule governing limited partner liability under CERCLA. 14
test for limited partner liability set forth in § 303(a) of

RULPA prior to the 1985 amendments. See id. Under this

standard, a limited partner is liable if:

in addition to the exercise of his [or her] rights and

powers as a limited partner, he [or she] takes part in

the control of the business. However, if the limited

partner's participation in the control of the business

is not substantially the same as the exercise of the

powers of a general partner, he [or she] is liable only

to persons who transact business with the limited

partnership with actual knowledge of his participation

in control.

Revised Unif. Limited Partnership Act § 303(a), 6A U.L.A.

144 (1995). With 47 jurisdictions having based their rule

of limited partner liability on either the amended or

unamended version of § 303 of RULPA, the need for a federal

common law standard diminishes. 

Adopting a uniform rule would, perhaps, expedite enforcement of

CERCLA by decreasing uncertainty in assessing liability under the

statute. But this argument could be made for adopting a uniform

rule in the context of just about any federal statute. If this

interest was sufficient in every case, then the Supreme Court would

not, as it did in Kimbell Foods, have sanctioned adopting state law

as the federal rule of decision. Absent a showing that state

partnership law is inadequate to achieve the goals of CERCLA, "we

discern no imperative need to develop a general body of federal

common law to decide cases such as this." Wilson v. Omaha Indian

Tribe, 442 U.S. 653, 673, 99 S.Ct. 2529, 2541, 61 L.Ed.2d 153

(1979); cf. Anspec Co., 922 F.2d at 1249 (Kennedy, J., concurring)

(citing Wilson in support of adopting state corporate law on

"successor" liability in a CERCLA action).

Nor do we view state rules governing the liability of limited

partners as being in conflict with CERCLA's goals. "An essential

purpose of CERCLA is to place the ultimate responsibility for the
clean up of hazardous waste on "those responsible for problems

caused by the disposal of chemical poison.' " Florida Power &

Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th

Cir.1990) (quoting United States v. Aceto Agric. Chems. Corp., 872

F.2d 1373, 1377 (8th Cir.1989)). CERCLA, however, does not purport

to be a source of partnership law. Thus, CERCLA does not require

federal law displace state laws governing the liability of limited

partners unless these laws permit action prohibited by the Act, or

unless "their application would be inconsistent with the federal

policy underlying the cause of action." Anspec Co., 922 F.2d at

1249-50 (Kennedy, J., concurring) (quoting Johnson v. Railway

Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d

295 (1975)).

In Anspec Co., Judge Kennedy of the Sixth Circuit made the

following observation regarding the adoption of state law on

corporate dissolution and merger as the federal decision rule under

CERCLA:

Any fears that states will engage in a "race to the bottom" in

their effort to attract corporate business and enact laws that

limit vicarious liability are in my opinion groundless.

States have a substantial interest in protecting their

citizens and state resources. Most states have their own

counterparts to CERCLA and the EPA and they share a

complementary interest with the United States in enforcement

of laws like CERCLA that are used to remedy environmental

contamination. I see no necessity to create federal common

law in this area to guard against the risk that states will

create safe havens for polluters.

Id. at 1250. This observation applies with equal force in the

context of state partnership rules governing the liability of

limited partners. At present, state rules permit plaintiffs to

hold limited partners accountable for a partnership's CERCLA
liability under certain circumstances. We do not foresee states

enacting more protective statutes in an effort to defeat CERCLA's

goal of having the polluter pay.

The third factor in the Kimbell Foods analysis, the

potentially unsettling effect of a federal common law rule on

relations grounded on state law, offers the strongest support for

adopting state law on limited partner liability. What makes

partnerships such as Saraland Limited attractive to investors is

the very concept of limited liability: as limited partners,

investors can participate in the partnership's profits without

exposing themselves to liability for the partnership's debts. When

determining whether to enter a limited partnership, however,

investors naturally evaluate their ability to control their risk by

participating in the management of the partnership. Existing state

limited-partnership statutes define how far a limited partner can

go in managing the partnership's business without losing its

limited liability status. Given the popularity of the

limited-partnership structure as a means of organizing businesses

and attracting investment in this country, we hesitate to upset the

expectations investors have under current state law rules by

adopting a federal common law rule.

The Kimbell Foods factors weigh against crafting a common law

rule in this case. Consequently federal law governing liability

under CERCLA should incorporate the applicable state law rule for

determining when a limited partner loses its limited liability

status so as to become accountable for the CERCLA liability of the

partnership. Having reached this conclusion, we turn to Alabama
 15Section 10-9A-42(b) of the Alabama Code states in full:

A limited partner does not participate in the control

of the business within the meaning of subsection (a) solely

by doing one or more of the following:

(1) Being a contractor for or an agent,

attorney-at-law, or employee of the limited partnership

or of a general partner, or an officer, director, or

shareholder of a general partner;

(2) Consulting with and advising a general partner

with respect to the business of the limited partnership

or examining into the state and progress of the

partnership business;

(3) Acting as surety or guarantor for any

liabilities for the limited partnership;

(4) Approving or disapproving an amendment to the

partnership agreement; or

(5) Voting on one or more of the following

matters:

law and the evidence of the Hutton partners' participation in

Saraland Limited.

Section 10-9A-42(a) of the Alabama Code provides:

A limited partner is not liable for the obligations of a

limited partnership unless he is also a general partner or, in

addition to the exercise of his rights and powers as a limited

partner, he takes part in the control of the business.

However, if the limited partner's participation in the control

of the business is not substantially the same as the exercise

of the powers of a general partner, he is liable only to

persons who, with actual knowledge of his participation in

control and in reasonable reliance thereon, transact business

with the partnership.

Ala.Code § 10-9A-42(a) (1994). In subsection (b), the statute

lists certain acts a limited partner can take without being deemed

to have "participate[d] in the control of the [partnership's]

business" thus subjecting the partner to liability for the

partnership's obligations under subsection (a). Id. § 10-9A42(b).15 The statute further clarifies that the listing of certain
(i) The dissolution and winding up of the limited

partnership;

(ii) The sale, exchange, lease, mortgage, pledge,

or other transfer of all or substantially all of

the assets of the limited partnership other than

in the ordinary course of its business;

(iii) The incurrence of indebtedness by the

limited partnership other than in the ordinary

course of its business;

(iv) A change in the nature of the business; or

(v) The removal of a general partner.

Ala.Code § 10-9A-42(b). 

"safe harbor" provisions in subsection (b) "does not mean that the

possession or exercise of any other powers by a limited partner

constitutes participation by him in the business of the limited

partnership." Id. § 10-9A-42(c).

 Under this standard, any effort to hold the Hutton partners

liable must fail. While the Hutton partners possess rights under

the amended partnership agreement to control important decisions in

the Partnership's business, nothing in the record indicates the

Hutton partners have ever exercised any of these rights. At most,

the record reveals the Hutton partners have monitored their

investment and implemented certain bookkeeping practices for the

Partnership. Merely having the authority to control certain

aspects of a partnership's business without actually using that

authority does not amount to "tak[ing] part in the control of the

[partnership's] business."

Since the Hutton partners have not lost their limited

liability status under § 10-9A-42 of the Alabama Code, they cannot

be held accountable for Saraland Limited's CERCLA liability based
 16Redwing argues the Hutton partners, as well as Coit and

Roar, are liable as "successors" to Saraland Limited's CERCLA

liability because the partners purchased interests in the

partnership. Redwing relies on cases applying the corporate law

doctrine of successor liability to hold a succeeding corporation

liable under CERCLA for the acts of a predecessor corporation. 

See e.g., United States v. Carolina Transformer Co., 978 F.2d

832, 837-38 (4th Cir.1992) (applying doctrine in CERCLA action).

Redwing misconstrues the nature of successor liability. 

In 1984, the Hutton partners, Coit, and Roar bought

interests in an on-going partnership. Although the current

Saraland Limited partnership could perhaps be considered a

"successor" to the partnership formed in 1973 given an

amended partnership agreement was executed in 1984, the

current partners themselves are not "successors" to any

partnership. Rather, they own an interest in the potential

"successor" partnership. Holding an interest in a

partnership, even a 99% interest, does not make a partner a

"successor" to any partnership debts. 

on the Partnership's ownership of the Site.16

2. "Operator" Liability.

 Whereas the Hutton partners can only be held indirectly

liable under CERCLA and Alabama law based on the Partnership's

ownership of Saraland Apartments, they can be held directly liable

as operators of the Site. In the corporate context, courts have

reasoned that an officer or a shareholder in a corporation may be

directly liable under CERCLA if the officer or shareholder in fact

operated the facility at issue. Sidney S. Arst Co. v. Pipefitters

Welfare Educ. Fund, 25 F.3d 417, 420-21 (7th Cir.1994); United

States v. Kayser-Roth Corp., 910 F.2d 24, 26-27 (1st Cir.1990),

cert. denied, 498 U.S. 1084, 111 S.Ct. 957, 112 L.Ed.2d 1045

(1991). This is so despite the traditional corporate law principle

that officers, shareholders, and employees are not liable for the

acts of a corporation. Schiavone v. Pearce, 79 F.3d 248, 253-54

(2d Cir.1996); Riverside Mkt. Dev. Corp. v. International Building
 17Panels from two circuits have suggested that operator

liability under § 107(a) may only be imposed derivatively against

officers and shareholders in a corporation through "piercing the

corporate veil." In Joslyn Mfg. Co. v. T.L. James & Co., 893

F.2d 80, 82-83 (5th Cir.1990), cert. denied, 498 U.S. 1108, 111

S.Ct. 1017, 112 L.Ed.2d 1098 (1991), a Fifth Circuit panel

rejected any "control test" in assessing "owner or operator"

liability under § 107(a)(2). Without distinguishing between

"owner" and "operator" liability, the Joslyn Mfg. panel concluded

a shareholder could only be held liable under this provision in

circumstances justifying the piercing of the corporation's veil. 

Joslyn Mfg., 893 F.2d at 83. A subsequent panel from the same

circuit, however, has reasoned "CERCLA prevents individuals from

hiding behind the corporate shield when, as "operators,' they

themselves actually participate in the wrongful conduct

prohibited by the Act." Riverside Mkt. Dev. Corp., 931 F.2d at

330. Riverside Mkt. suggests Joslyn Mfg.'s reasoning has been

limited to "owner" liability.

A panel of the Sixth Circuit likewise concluded in a

case involving a parent corporation being sued for the

conduct of its subsidiary that "a parent corporation incurs

operator liability pursuant to section 107(a)(2) of CERCLA

... only when the requirements necessary to pierce the

corporate veil are met." United States v. Cordova Chem.

Co., 59 F.3d 584, 590 (6th Cir.1995). This decision was

subsequently vacated for en banc rehearing by the Sixth

Circuit. See United States v. Cordova Chem. Co., 67 F.3d

586 (6th Cir.1995). 

Prods., 931 F.2d 327, 330 (5th Cir.), cert. denied, 502 U.S. 1004,

112 S.Ct. 636, 116 L.Ed.2d 654 (1991). We implicitly recognized

the direct nature of operator liability in Jacksonville Elec. Auth.

v. Bernuth Corp., 996 F.2d 1107, 1109-11 (11th Cir.1993)

[hereinafter "Jacksonville Elec."].17 The Hutton partners may

therefore be held accountable for cleaning up the Saraland Site,

despite the fact the Partnership owns the property, if the limited

partners themselves were operators of the Site.

In Jacksonville Elec., we reviewed the standard for assessing

operator liability under CERCLA. In that case, the owner of

property that was formerly the site of a wood treatment facility

sued Tufts University to recover costs the property owner had
incurred in cleaning up creosote and arsenic contamination.

Jacksonville Elec., 996 F.2d at 1108. From 1926 to 1942, Tufts

University held most and eventually all of the stock of Eppinger &

Russell, the company that owned the wood treatment facility. Id.

The property owner alleged the University was liable under

subsection 107(a)(2) of CERCLA as a party who operated the wood

treatment plant at the time creosote and arsenic were disposed of

on the property. Id. at 1109-11.

 In upholding summary judgment for the University, we reasoned

that because "CERCLA contemplates "operator' liability based only

on a person's actions," mere ownership of stock in a corporation

that disposed of hazardous waste was not sufficient to hold a

shareholder liable. Id. at 1110. (citing Kayser-Roth, 910 F.2d at

27). Instead, shareholders are "operators" under the statute only

when "they themselves actually participate in the wrongful conduct

prohibited by the Act." Id. (quoting Riverside Mkt. Dev. Corp.,

931 F.2d at 330). We concluded:

[A] person is liable as an "operator" when that person

actually supervises the activities of the facility. That is,

the person must play an active role in the actual management

of the enterprise.

Id.

Citing Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d

837 (4th Cir.), cert. denied, 506 U.S. 940, 113 S.Ct. 377, 121

L.Ed.2d 288 (1992), Redwing argues the Hutton partners are

operators of the Saraland Site because they have the authority to

control the property. In Nurad, the Fourth Circuit reasoned

subsection 107(a)(2) imposes operator liability on a party who had

the "authority to control" a hazardous waste site regardless of
 18The Ninth Circuit has suggested the "authority to control"

standard applies in that circuit as well. See Kaiser Aluminum &

Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1341-42 (9th

Cir.1992) (citing Nurad ). 

 19The Eighth Circuit has rejected the "authority to control"

test articulated by the Fourth Circuit in Nurad in favor of the

following standard:

[A]n individual may not be held liable as an "operator"

under § 9607(a)(2) unless he or she (1) had authority

to determine whether hazardous wastes would be disposed

of and to determine the method of disposal and (2)

actually exercised that authority, either by personally

performing the tasks necessary to dispose of the

hazardous wastes or by directing others to perform

those tasks.

United States v. Gurley, 43 F.3d 1188, 1193 (8th Cir.1994),

cert. denied, --- U.S. ----, 116 S.Ct. 73, 133 L.Ed.2d 33

(1995).

whether they exercised "actual control" of the site. Nurad, 966

F.2d at 842; see also United States v. Carolina Transformer Co.,

978 F.2d 832, 836-37 (4th Cir.1992) (interpreting Nurad as

requiring only "authority to control" site).18 Redwing contends the

Hutton partners have the authority to control the Saraland Site

because they own a 99% interest in the Partnership, retained

significant control over the Partnership's business through rights

secured in the amended partnership agreement, and agreed to remove

the tar seeps on the property.

 Redwing's argument fails on both the law and the evidence.

The Fourth Circuit's "authority to control" test is simply

incompatible with our reasoning in Jacksonville Elec. In

Jacksonville Elec., we adopted the "actual control" standard for

operator liability. See Jacksonville Elec., 996 F.2d at 1110;

accord Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d

1209, 1222 (3d Cir.1993); Kayser-Roth, 910 F.2d at 27 (1st Cir.).19
The Eighth Circuit's rule in Gurley goes beyond our

reasoning in Jacksonville Elec. in protecting officers,

shareholders and employees from operator liability. Under

Gurley, an officer or shareholder of a corporation can only

be found liable as an operator when they actually controlled

the disposal of hazardous substances at a facility. See id.

In contrast, we stated in Jacksonville Elec. that "[a]ctual

involvement in decisions regarding the disposal of hazardous

substances is a sufficient, but not a necessary, condition

to the imposition of operator liability." Jacksonville

Elec., 996 F.2d at 1110 (quoting Jacksonville Elec. Auth. v.

Eppinger & Russell Co., 776 F.Supp. 1542, 1547-48

(M.D.Fla.1991)) (emphasis added). Under this Circuit's

standard, an individual need not have actually controlled

the specific decision to dispose of hazardous substances. 

Rather, it is enough if the individual "actually

participated in the operations of the facility ... [or]

actually exercised control over, or was otherwise intimately

involved in the operations of, the corporation immediately

responsible for the operation of the facility." Id.

(citation and quotation marks omitted). 

Under this standard, it is not enough that the Hutton partners hold

a 99% interest in Saraland Limited. Nor is it sufficient that the

limited partners have the authority under the partnership agreement

to control important decisions for the Partnership. Rather,

Redwing must demonstrate the Hutton partners either (1) actually

participated in operating the Site or in the activities resulting

in the disposal of hazardous substances, or (2) "actually exercised

control over, or [were] otherwise intimately involved in the

operations of" the Partnership. See Jacksonville Elec., 996 F.2d

at 1110 (quoting Levin Metals Corp. v. Parr-Richmond Terminal Co.,

781 F.Supp. 1454, 1456-57 & n. 9 (N.D.Cal.1991)).

 Redwing has failed to show the Hutton partners actually

controlled the Partnership or the Site itself. As noted earlier,

there is no evidence the limited partners have invoked their rights

under the partnership agreement to control the Partnership's

affairs. Moreover, the record lacks any significantly probative
 20Redwing claims the repaving of the apartment complex's

parking lot in 1986 and repair work on the gas line in 1991

resulted in "disposals" of contaminated dirt at the Site. 

 21Redwing contends the Hutton partners agreed in 1984 to

remedy the tar seep problem at Saraland Apartments in exchange

for a $15,000 reduction in the purchase price of their

partnership interest. Redwing further claims HUD conditioned the

transfer of interests in Saraland Limited on the Hutton partners

assuming responsibility for the tar seep problem.

Even viewed in a light most favorable to Redwing, the

record does not reveal the Hutton partners received a

reduced price for assuming the duty of repairing the tar

seep problem or that HUD conditioned the 1984 deal on the

partners taking on this task. Assuming the record did

support Redwing's factual claims, we fail to appreciate how

this evidence supports finding the Hutton partners operated

the Site within the meaning of CERCLA. At best, this

evidence shows the Hutton partners agreed to rectify the tar

seeps noted in the 1984 HUD report. It does not suggest the

limited partners have assumed control over the Partnership

or the Site itself. And it does not link the partners to

the alleged disposals resulting from the parking lot

repaving in 1986 and the gas line work in 1991. 

 22This liability, like that of an "operator" under

subsection 107(a)(1) and (a)(2), is direct. See United States v.

TIC Inv. Corp., 68 F.3d 1082, 1092 (8th Cir.1995), pet. for cert.

filed, 64 U.S.L.W. 3727 (U.S. Apr. 2, 1996) (No. 95-1698). 

evidence that the Hutton partners controlled the Saraland Site

itself or had any connection with the alleged disposals occurring

after they bought their interest in 1984.20 Redwing has therefore

failed to carry its burden on summary judgment of showing the

Hutton partners are operators of the Site.21

3. "Arranger" Liability.

 Subsection 107(a)(3) imposes liability on "any person who by

contract, agreement, or otherwise arranged for disposal or

treatment ... of hazardous substances ... at any facility." 42

U.S.C. § 9607(a)(3).22 Redwing contends the Hutton partners have

"arranged for" the disposal of hazardous substances at the Saraland
Site since they purchased their interests in the Partnership. In

particular, Redwing points to two events occurring after October

1984 that allegedly resulted in "disposals" on the property: the

repaving of the apartment complex's parking lot in 1986 and the gas

line repairs in 1991. Redwing also argues the Hutton partners

"arranged for" a disposal when they agreed to remove the tar seeps

as part of the 1984 deal, yet failed to do so.

The district court rejected Redwing's subsection 107(a)(3)

claim against the Hutton partners based on its finding the parking

lot and gas line repairs did not result in "disposals" of hazardous

substances as that term is used in CERCLA. See Redwing Carriers,

875 F.Supp. at 1559. In the alternative, the district court

reasoned the Hutton partners could not have "arranged for" a

disposal because the partners lacked the intent to dispose in

connection with the repairs in 1986 and 1991, and did not make any

of the "crucial decisions" regarding how, when, and where the

alleged disposals were to occur. See id. We agree with the

district court's disposition of this arranger claim, but for

different reasons.

 Initially, Redwing fails to explain how the Hutton partners'

alleged inaction in cleaning up the tar seeps amounts to an

"arrangement" for disposal. Even assuming the record supported

Redwing's position that the partners agreed to clean up the tar

seeps, this demonstrates only that the partners agreed to remove

the tar-like substance from the Site and dispose of it elsewhere.

Redwing's proof fails to show the 1984 deal involved any

arrangement for the disposal of hazardous substances at the
 23In holding Redwing has failed to demonstrate a subsection

107(a)(3) claim against the Hutton partners in this case, we are

not stating it is impossible for an arranger claim to be based on

a defendant's failure to take action. Whether a party has

"arranged for" the disposal of a hazardous substance within the

meaning of subsection 107(a)(3) depends on the particular facts

of the case. South Fla. Water Management Dist., 84 F.3d at 407. 

Here, the record fails to demonstrate the Hutton partners made

any "arrangement to dispose" by simply failing to rectify the tar

problems at the Saraland Apartments complex. It is possible that

under different factual circumstances, a plaintiff could

predicate a claim under subsection 107(a)(3) on a defendant's

failure to act. 

Saraland Site. And this is the only facility at issue here.

Furthermore, we do not accept Redwing's premise that under the

circumstances of this case, the Hutton partners' alleged failure to

remove the tar seeps qualifies as an arrangement to dispose of a

hazardous substance. By failing to excavate the tar seeps, the

Hutton partners merely left the hazardous substances in the ground.

They took no "affirmative act" to dispose of the tar-like

substances. See South Fla. Water Management Dist. v. Montalvo, 84

F.3d 402, 407 (11th Cir.1996). While this inaction on the

partners' part may amount to a breach of an alleged contractual

duty, it does not amount to an "arrangement" for disposal within

the meaning of CERCLA.23

 The record also fails to support an arranger claim based on

the parking lot repaving and gas line work. Simply put, Redwing

has failed to establish any link between the Hutton partners and

these events. Again, there is no proof the Hutton partners

participated in the management of the apartment complex, or

otherwise approved of the repairs. Indeed, there is no evidence

the partners even knew about these events at the time they were

occurring. Absent some evidence linking the Hutton partners to the
 24In its 1993 unilateral administrative order (UAO), the EPA

concluded the Hutton partners, as well as the other Appellees,

were responsible parties under § 107(a) of CERCLA. Redwing

repeatedly refers to the EPA's UAO as proof the Appellees are

liable under the Act and should be forced to bear part or all of

the clean up costs at the Site. Redwing suggests this Court must

defer to the EPA's findings in its UAO because Congress has

entrusted the agency to interpret and administer CERCLA.

Redwing mischaracterizes the nature of the EPA's

findings in its UAO. The EPA issued this order pursuant to

its authority under § 106(a) of CERCLA to issue "such orders

as may be necessary to protect public health and welfare and

the environment." See 42 U.S.C. § 9606(a). When the EPA

issues a § 106 order to a party, the agency is not

interpreting the statute or otherwise engaging in rulemaking

authorized by Congress. Instead, the EPA is acting in its

role as prosecutor in enforcing a federal environmental

statute. Any findings made in such orders are therefore not

entitled to deference under the reasoning of Chevron U.S.A.,

Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S.

837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) or our decision

in Borden v. Meese, 803 F.2d 1530, 1535 (11th Cir.1986). 

Rather than being authoritative interpretations of a

statute, these findings are merely the agency's conclusions

regarding who is liable under CERCLA given the facts of a

particular case. Although the EPA's view of who is liable

for cleaning up the Saraland Site may support Redwing's

case, neither the district court nor this Court are obliged

to defer to the agency's conclusions on this issue. Courts,

not the EPA, are the adjudicators of the scope of CERCLA

liability. See Kelley v. Environmental Protection Agency,

15 F.3d 1100, 1107-08 (D.C.Cir.1994), cert. denied, --- U.S.

----, 115 S.Ct. 900, 130 L.Ed.2d 784 (1995). 

decisions to make these repairs, Redwing's arranger claims must

fail.

 Under the circumstances, we conclude the district court

properly granted summary judgment to the Hutton partners on

Redwing's claims under subsection 107(a)(3). Since we also find

the district court did not err in granting judgment for the limited

partners on Redwing's owner and operator claims under subsections

107(a)(1) and (a)(2), we affirm the court's grant of summary

judgment in favor of the Hutton partners in all respects.24
 25We express no opinion regarding the district court's

finding that Coit and Roar are not responsible parties within the

meaning of § 107(a). 

B. Robert Coit and Roar Company

At the same time the Hutton partners invested in Saraland

Limited, Robert Coit and Roar Company became general partners in

the Partnership. Redwing alleges the general partners, like the

limited partners, are liable as owners and operators of the

Saraland Site. Redwing further asserts Coit and Roar have on

several occasions "arranged for" the disposal of hazardous

substances on the property. Coit and Roar initially deny being

responsible parties as defined in § 107(a). Assuming they are

responsible under § 107(a), Coit and Roar contend the "third-party"

defense of subsection 107(b)(3) shields them from liability.

The district court concluded Coit and Roar were entitled to

summary judgment on both grounds. See Redwing Carriers, 875

F.Supp. at 1566-67. Since we agree with the district court's

finding that Coit and Roar have carried their burden of proving

their affirmative defense, we affirm summary judgment in their

favor on Redwing's CERCLA claims brought directly against these

partners. For the purposes of this appeal, we assume Coit and Roar

are responsible parties under § 107(a) of CERCLA.25

 Persons who are responsible under § 107(a) may escape CERCLA

liability if they can prove one of the three affirmative defenses

set forth in § 107(b). See 42 U.S.C. § 9607(a). The first two

defenses, barring liability if a release or threat of release

resulted solely from an "act of God" or an "act of war," are rarely

invoked and not applicable here. See id. § 9607(b)(1), (2). The
 26The general partners and the district court point to

Redwing as being the only "third party" at issue here. See

Redwing Carriers, 875 F.Supp. at 1567. Although it was Redwing

who originally disposed of the toxic substances now seeping to

the surface of the Site, Meador is another party who may be

guilty of causing a release or threat of release on the property. 

As explained in section III(D), infra, we reverse the district

court's summary judgment in favor of Meador after concluding that

in grading and filling the land while constructing the apartment

complex, Meador's subcontractor may have dispersed contaminated

soil throughout the Site. Meador therefore must be considered a

"third party" potentially responsible for the release or threat

final defense, referred to as the "third-party" defense, is cited

most often by litigants. See id. § 9607(b)(3). Subsection

107(b)(3) provides in relevant part:

"There shall be no liability under subsection (a) of this

section for a person otherwise liable who can establish by a

preponderance of the evidence that the release or threat of

release of a hazardous substance and the damages resulting

therefrom were caused solely by—

....

(3) an act or omission of a third party other than an

employee or agent of the defendant, or than one whose act or

omission occurs in connection with a contractual relationship,

existing directly or indirectly, with the defendant ... if the

defendant establishes by a preponderance of the evidence that

(a) he exercised due care with respect to the hazardous

substance concerned, taking into consideration the

characteristics of such hazardous substance, in light of all

relevant facts and circumstances, and (b) he took precautions

against foreseeable acts or omissions of any such third party

and the consequences that could foreseeably result from such

acts or omissions ..."

Id. § 107(b)(3).

Coit and Roar have satisfied all the elements of this defense.

The general partners have never had a direct or indirect

contractual relationship with either Redwing or Meador Contracting

Company—the only two parties whose conduct potentially caused the

release or threat of release of hazardous substances at the

Saraland Site.26 Redwing closed its trucking terminal on the
of release of hazardous substances at the Site. 

property in 1972. Approximately two years later, Meador graded and

filled the property while building the apartment complex. Coit and

Roar had no contact with these parties when they purchased their

partnership interest in Saraland Limited in 1984—12 years after

Redwing last buried toxic substances on the Site. It is plain that

the environmental damage to this property was done long before Coit

and Roar ever became partners in Saraland Limited.

The record indicates that since 1984, the general partners

have exercised due care towards the hazardous substances

contaminating the property. A HUD report identified tar seeps on

the property in August 1984, and three months later Coit approved

a maintenance plan to remove the seeps. In April and May of 1985,

the EPA conducted its preliminary investigation of the Site. Two

months later, the EPA entered into its first consent order with

Redwing requiring Redwing to, among other things, periodically

remove tar-like material from the surface of the property. Thus,

less than a year after Coit and Roar became general partners, a

program was in place to remedy the tar seeps on the property.

Meanwhile, Coit and Roar have demonstrated they did nothing to

exacerbate conditions at the Site. Redwing has identified only two

events after 1984—the repaving of the parking lot and the

maintenance work on the gas line—that allegedly increased the

amount of contaminated soil on the property. As general partners,

Coit and Roar approved these projects. Nothing suggests, however,

that in repaving the parking lot and repairing the gas line,

workers disturbed contaminated soil or otherwise disposed of
 27It is widely accepted that general partners are liable for

a partnership's debts. Every state except Louisiana has adopted

a version of either the Uniform Partnership Act of 1914 (1914

Act) or Uniform Partnership Act of 1994 ("Revised Act"). See

Unif. Partnership Act (1994), 6 U.L.A. 1 (1995) (table) and Unif.

Partnership Act (1914), 6 U.L.A. 125-26 (1995) (table). Section

15 of the 1914 Act makes general partners jointly liable for the

obligations of the partnership. Unif. Partnership Act (1914) §

15, 6 U.L.A. 456. Among the states that have adopted the 1914

Act, there is a split between those who have retained the joint

liability standard proposed by the drafters and those who

modified the uniform rule to impose joint and several liability. 

See id. (comment). The Revised Act, which has been adopted in

seven states, modifies the 1914 Act to impose joint and several

liability. See Unif. Partnership Act (1994) § 306, 6 U.L.A. 45. 

Both the 1914 Act and the Revised Act limit the liability of

incoming partners for pre-existing partnership obligations. See

id.; Unif. Partnership Act (1914) § 17, 6 U.L.A. 519. Although

the nature of liability varies, the 49 jurisdictions that have

patterned their partnership law on one of the uniform acts all

impose liability on general partners for the obligations of the

partnership. 

hazardous substances on the Site. The record supports the general

partners' position that they have taken all necessary precautions

in addressing a toxic waste problem created almost entirely by

Redwing.

Regardless of their liability under § 107(a), Coit and Roar

have carried their burden of demonstrating they are entitled to

summary judgment on their third-party defense under § 107(b). This

defense relieves the general partners of any direct liability under

CERCLA.

We note, however, that whether Coit and Roar are accountable

for the Partnership's CERCLA liability remains an open issue.27

Although the parties debated this question on summary judgment, the

district court did not grant or deny judgment on this claim.

Instead, the court dismissed all "partnership law" claims as being

moot. Redwing Carriers, 875 F.Supp. at 1571. This holding is
 28Marcrum must perform the following services, among others,

at the complex: (1) show the premises to prospective tenants, as

well as process rental applications, screen applicants, and lease

apartments; (2) collect rents; (3) enforce leases; and (4)

maintain and repair the complex. Although the management

agreement designates the residential manager an employee of the

Partnership, the agreement holds Marcrum responsible for hiring,

supervising, and firing the resident manager. 

apparently premised on the court's absolving the Partnership of any

liability by allocating the entire cost of cleaning up the Site to

Redwing. As explained below, we must reverse and remand the

district court's equitable allocation of costs in light of our

conclusion the court erred in granting summary judgment in favor of

Marcrum and Meador. Should the district court on remand find

Saraland Limited must bear some of the response costs, the question

of Coit and Roar's liability for these costs would again be before

the court. Since the record in regard to Redwing's partnership law

claims against Coit and Roar is poorly developed, we leave it to

the district court to address the legal and factual issues raised

by Redwing's derivative claims against the general partners.

C. Marcrum Management Co.

The 1984 partnership agreement between Coit, Roar, and the

Hutton partners calls for a "management agent" to carry out the

general partners' duty of managing Saraland Apartments. Since

1980, Marcrum Management Co. has served as the Partnership's

management agent. An agreement between Marcrum and the Partnership

details the company's duties.28 Marcrum characterizes its role as

providing "administrative" assistance and "consulting" with the

Partnership on how the complex should be managed.

Redwing asserts Marcrum is not a mere consultant, but is
 29In its amended complaint, Redwing also charged Marcrum

with having "arranged for" the disposal of hazardous substances

at the Site according to subsection 107(a)(3). The district

court granted summary judgment in favor of Marcrum on this

arranger claim, see Redwing Carriers, 875 F.Supp. at 1563, but

Redwing has not appealed this holding. 

instead responsible for the daily management of the complex.

Consequently, Redwing alleges Marcrum is liable as the current and

past operator of the Site under subsections 107(a)(1) and (a)(2).

The district court granted Marcrum's motion for summary judgment on

these claims after finding Marcrum was not an "operator" of the

Site based on the reasoning of Jacksonville Elec. Redwing Carriers,

875 F.Supp. at 1559-60. The court further reasoned Marcrum could

not be liable under subsection 107(a)(2) because there were no

"disposals" on the property after Marcrum became involved with the

Site in 1980. Id. at 1560-63.29

 Contrary to Marcrum's claim, there is evidence the management

company has done more than "consult" or give "administrative"

assistance in managing the complex. The record indicates Marcrum

has done the following in its role as managing agent for the

complex:

1. prepared annual budgets for the complex and required the

resident manager to regularly report expenses to Marcrum and

seek approval from Marcrum of any expenses exceeding the

budget;

2. regularly inspected the complex, and required the resident

manager to perform quarterly inspections and report on these

inspections to Marcrum;

3. ordered the resident manager to implement major improvement and

repair programs for the complex as a whole;

4. ordered the resident manager to make specific repairs to

particular units by certain deadlines;

5. received complaints from tenants, and forwarded these complaints
to the resident manager with instructions as to how and by

when to respond to the complaints; and

6. prepared proposed rent increases for approval by the Partnership

and HUD.

In addition to having a hand in these routine operations of the

complex, the record also suggests Marcrum has, in the past, been

partly responsible for remedying tar seeps as they appeared on the

property.

Taken as a whole, this evidence could support a claim that

Marcrum is an operator of the Saraland Site. Unlike the case

against Tufts University in Jacksonville Elec., it is evident

Marcrum is "actively involved in ... [the] occupational business

affairs" of Saraland Apartments. This supports finding Marcrum has

"actually participated in the operations of the facility" so as to

be an "operator" within the meaning of § 107(a). Jacksonville

Elec., 996 F.2d at 1110. We therefore reverse the district court's

grant of summary judgment on Redwing's claim under subsection

107(a)(1) based on Marcrum being a current operator of the Site.

 While demonstrating Marcrum is currently an operator of the

Site may establish a claim under subsection (a)(1), this does not

support an operator claim under subsection (a)(2). Subsection

(a)(2) covers only persons who were operators of a facility "at the

time of disposal of any hazardous substance." 42 U.S.C. §

9607(a)(2). Under this provision, Marcrum is only accountable if

a "disposal" occurred during the time it has operated the facility,

i.e., since 1980. Again, the only two events occurring after 1980

that could possibly be deemed "disposals" are the gas line repair

work and the repaving of the complex's parking lot. Redwing's
subsection 107(a)(2) claim against Marcrum is based on the belief

that during these activities, workers disturbed and disbursed

contaminated soil at the Site.

The district court did not dispute Redwing's premise that the

dispersal of hazardous substances already deposited at a facility

could amount to a "disposal" under CERCLA. See Redwing Carriers,

875 F.Supp. at 1561. Instead, the court crafted a test for when

such a dispersal results in a "second-hand disposal." Id. at 1561-

63. Applying this test, the district court concluded neither the

gas line repair work nor the parking lot repaving qualified as a

"disposal" within the meaning of CERCLA. Id. at 1563.

 While we arrive at the same conclusion, we must reject the

district court's "second-hand disposal" standard and its analysis.

According to CERCLA, a "disposal" occurs whenever a party

"deposit[s] ... or plac[es] ... any solid waste or hazardous waste

into or on any land or water so that such solid waste or hazardous

waste or any constituent thereof may enter the environment or be

emitted into the air or discharged into any waters, including

ground waters." 42 U.S.C. §§ 9601(29), 6903(3). Instead of

parsing the language of this definition to arrive at a rigid rule

for when conduct results in a "disposal," courts should look at the

definition of "disposal" in its entirety in ascertaining whether a

particular event qualifies as such.

 Viewed in this fashion, we do not read CERCLA's definition of

"disposal" as being limited to instances where a hazardous

substance is initially introduced into the environment at a

facility. See Kaiser Aluminum & Chem. Corp. v. Catellus Dev.
Corp., 976 F.2d 1338, 1342 (9th Cir.1992). Rather, CERCLA's

definition of "disposal" should be read broadly to include the

subsequent movement and dispersal of hazardous substances within a

facility. Id. (citing Tanglewood E. Homeowners v. Charles-Thomas,

Inc., 849 F.2d 1568, 1573 (5th Cir.1988)).

 As noted earlier, however, the record lacks any evidence that

either the repaving of the parking lot in 1986 or the gas line work

in 1991 resulted in a movement of contaminated soil. As to the

repaving of the parking lot, the record reveals only that this task

was performed. Nothing suggests that during the course of the

repaving any contaminated soil was moved or dispersed on the Site.

Likewise, the record does not indicate soil was "disposed of" while

servicing the gas line in 1991. While this maintenance

necessitated digging through soil to reach the gas line, there is

no indication the soil was contaminated. Furthermore, the only

reasonable inference is that any soil dug up during the process was

returned from whence it came. No matter how broadly the term is

defined, this conduct did not amount to a "disposal."

Redwing has therefore failed to carry its burden of

demonstrating there is a genuine issue of fact as to whether either

the gas line work or the parking lot repaving resulted in a

"disposal" as defined in CERCLA. The district court thus properly

granted summary judgment against Redwing on its operator claim

against Marcrum based on subsection 107(a)(2).

D. Meador Contracting Company

Meador's only connection with the Site was back in 1973 and

1974 when, as the Partnership's contractor, Meador constructed the
 30Redwing also asserts Meador was an "operator" of the Site

under subsection 107(a)(2). Redwing neither pled this claim in

its amended complaint nor argued it before the district court in

summary judgment proceedings. As a general rule, we will not

address claims or arguments not fairly presented to the district

court. RTC v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir.) (en

banc), cert. denied, --- U.S. ----, 116 S.Ct. 74, 133 L.Ed.2d 33

(1995). We therefore refuse to review Redwing's claim that

Meador is an "operator" under CERCLA. For the same reason, we

decline to address Meador's defense that holding it liable under

CERCLA would amount to an unconstitutional extension of Congress'

Commerce Clause powers according to United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). 

Saraland Apartments complex. In preparing to build the complex,

Meador had to excavate, grade, and fill the land over much of the

five-acre site. Meador apparently subcontracted part or all of

this excavation work to another party. Meador hired another

subcontractor to apply the pesticides chlordane and dieldrin to the

ground and foundations of the buildings as termite treatment.

Tests reveal these two hazardous substances are present in the soil

at the Site.

 Based on the excavation and pesticide treatment, Redwing

alleges Meador "arranged for" the disposal of hazardous substances

on the property.30 Redwing contends that in grading and filling the

land, Meador and its subcontractor dug up and dispersed throughout

the property the tar-like substances Redwing had earlier buried on

the Site. According to Redwing, this dispersal amounted to a

"disposal" under CERCLA. Redwing further argues the application of

chlordane and dieldrin was a separate disposal of hazardous

substances for which Meador can be held accountable under

subsection 107(a)(3).

 The district court rejected Redwing's arguments and granted

summary judgment to Meador. Redwing Carriers, 875 F.Supp. at 1564-
 31This provision states in relevant part:

No person (including the United States or any State or

Indian tribe) may recover under the authority of this

section for any response costs or damages resulting

from the application of a pesticide product registered

under the Federal Insecticide, Fungicide, and

Rodenticide Act [FIFRA].

42 U.S.C. § 9607(i).

We affirm the district court's finding that Meador

cannot be held liable for the alleged disposal of chlordane

and dieldrin. Redwing has not produced any evidence

refuting Meador's proof that these pesticides were properly

applied to treat the property for termites. Although

chlordane and dieldrin have since lost their registration

under FIFRA, the record indicates these pesticides were

registered under FIFRA at the time they were applied at the

Site. Subsection 107(I) thus protects Meador from liability

under CERCLA for this application. See 42 U.S.C. § 9607(i). 

65. Relying on its "second-hand disposal" analysis, the court

concluded the grading and filling of the Site in 1973 and 1974 did

not result in a "disposal." Id. at 1564. The court further

reasoned Meador was insulated from liability for the termite

treatment by subsection 107(i) of the Act.31 Id. at 1564-65.

 Two other circuits have interpreted CERCLA's definition of

"disposal" to include the dispersal of contaminated soil during the

excavation and grading of a construction site. See Kaiser Aluminum

& Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1342 (9th

Cir.1992); Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849

F.2d 1568, 1573 (5th Cir.1988). In Kaiser, it was alleged a

contractor had excavated tainted soil during the construction of a

housing development at the former site of a shipbuilding plant.

976 F.2d at 1339-40. The contractor allegedly spread this soil

over uncontaminated portions of the property. Id. at 1342.
Likewise, developers in Tanglewood allegedly filled and graded

creosote pools on the grounds of a former wood treatment facility.

849 F.2d at 1573. The courts in Kaiser and Tanglewood held these

allegations stated the developers had disposed of hazardous

substances for CERCLA purposes even though they had not introduced

the substances to the sites. See Kaiser, 976 F.2d at 1342;

Tanglewood, 849 F.2d at 1573. We agree with the Fifth and Ninth

circuits, and hold that a "disposal" may occur when a party

disperses contaminated soil during the course of grading and

filling a construction site.

 In the district court, Redwing supported its motion for

summary judgment with evidence showing contaminated soil was

dispersed during the construction of Saraland Apartments.

Redwing's expert testified that soil borings revealing seams of the

tar-like substance are located in fill material placed on the Site

during construction. Moreover, contaminated soil has been found in

an area of the Site that was inaccessible during Redwing's

occupation of the property. This evidence contradicts Meador's

position that any contaminated soil encountered during the

preparation of the Site was dug up and disposed of off the

property.

 Unable to prevail on its disposal argument, Meador contends

it still cannot be held liable under subsection 107(a)(3) because

it never intended to dispose of hazardous substances when it built

the complex and did not make the "crucial decisions" regarding how,

where, and when to dispose of contaminated soil at the Site. A

CERCLA plaintiff, however, need not demonstrate a party acted with
the specific intent to dispose of hazardous substances or made

certain "crucial decisions" regarding the disposal of those

substances in order to establish a defendant has "arranged for" a

disposal. South Fla. Water Management Dist. v. Montalvo, 84 F.3d

402, 407 (11th Cir.1996); United States v. TIC Inv. Corp., 68 F.3d

1082, 1088-89 (8th Cir.1995) (rejecting argument that subsection

107(a)(3) incorporates a specific intent requirement). While these

factors are certainly relevant in assessing arranger liability,

they are not required to establish liability under subsection

107(a)(3) in every case. See South Fla. Water Management Dist., 84

F.3d at 407.

Since the district court erred in finding as a matter of law

that the grading and filling of the Site could not have resulted in

a disposal of hazardous substances, we reverse on this claim.

E. Equitable Allocation of Costs under § 113(f)

Of the Appellees, the district court found only Saraland

Limited was a responsible party under § 107(a). The court,

however, granted summary judgment to the Partnership and the

partners on their counterclaims against Redwing for contribution

under § 113(f). This section provides that a court "may allocate

response costs among liable parties using such equitable factors as

the court determines are appropriate." 42 U.S.C. § 9613(f). The

court concluded that between Redwing and Saraland Limited, Redwing

should bear all of the costs of cleaning up the Saraland Site.

Redwing Carriers, 875 F.Supp. at 1569.

Having determined the district court erred in granting summary

judgment in favor of Marcrum and Meador, we must reverse the
district court's allocation of costs under § 113(f). On remand,

Marcrum and Meador could be found responsible parties under §

107(a) thus requiring the court to evaluate whether they should

share liability with Redwing and Saraland Limited. In reversing

the district court's allocation under § 113(f), we express no

opinion on the court's decision to hold Redwing entirely

responsible for cleaning up the property. Although the parties

debate the equity of this holding, we need not review it at this

time.

 Our attention is instead drawn to the district court's

underlying legal analysis which illustrates how courts and

practitioners often misinterpret the nature of liability under §

113(f). The court reasoned that prior to allocating costs based on

"such equitable factors as the court determines are appropriate,"

it first had to find the harm at the Saraland Site was "divisible."

In finding the harm at the Site was divisible, the court relied on

United States v. Monsanto Co., 858 F.2d 160, 171-72 (4th Cir.1988),

cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019

(1989), where the Fourth Circuit adopted the rule of § 433A of the

Restatement (Second) of Torts for determining when to impose joint

and several liability on parties found liable to federal and state

governments under § 107(a) of CERCLA. Redwing Carriers, 875

F.Supp. at 1568. Through its reliance on Monsanto and other cases

involving governmental plaintiffs, the district court improperly

imported the "divisibility" defense to joint and several liability

under § 107(a) into the analysis for equitable allocation under §

113(f).
CERCLA creates two avenues of recovery for two types of

plaintiffs. Parties who are not themselves liable or potentially

liable for response costs under § 107(a) of CERCLA can bring a cost

recovery action directly under § 107(a) against potentially

responsible parties. See United Technologies Corp. v. BrowningFerris Indus., 33 F.3d 96, 99-100 (1st Cir.1994), cert. denied, ---

U.S. ----, 115 S.Ct. 1176, 130 L.Ed.2d 1128 (1995); Akzo Coatings,

Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994). Although it

possible that a private party may qualify as an "innocent"

plaintiff enabling it to bring a cost recovery action based on §

107(a) alone, the typical § 107(a) action is brought by a

governmental plaintiff that has expended taxpayer dollars in

cleaning up a facility. In most of these cases, where the focus is

on allowing state and federal governments to recoup their expenses,

defendants are held jointly and severally liable. See, e.g.,

O'Neil v. Picillo, 883 F.2d 176, 183 (1st Cir.1989), cert. denied,

493 U.S. 1071, 110 S.Ct. 1115, 107 L.Ed.2d 1022 (1990); Monsanto,

858 F.2d at 171-73.

 Joint and several liability under § 107(a) is not automatic,

however. Recognizing Congress' intent that "traditional and

evolving common law principles" should define the scope of

liability under CERCLA, courts have looked to the Restatement

(Second) of Torts, particularly § 433A, for guidance. In re Bell

Petroleum Servs., Inc., 3 F.3d 889, 895 (5th Cir.1993); accord

United States v. Alcan Aluminum Corp., 964 F.2d 252, 268 (3d

Cir.1992); Monsanto, 858 F.2d at 172. This section provides:

(1) Damages for harm are to be apportioned among two or more

causes where
(a) there are distinct harms, or

(b) there is a reasonable basis for determining the

contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two

or more causes.

Restatement (Second) of Torts § 433A (1965). Consequently, courts

will not hold a defendant jointly and severally liable to a

governmental or non-liable private plaintiff where the defendant

can demonstrate the harm at a given site is "divisible," i.e.,

there are distinct harms or a reasonable basis for determining the

contribution of each cause to a single harm. Bell Petroleum, 3

F.3d at 904; Alcan Aluminum, 964 F.2d at 268-69; United States v.

Chem-Dyne Corp., 572 F.Supp. 802, 810 (S.D.Ohio 1983). When a

defendant successfully demonstrates the harm at the site is

divisible, it will only be held liable for that portion of the

cleanup costs attributable to its conduct. Alcan Aluminum, 964

F.2d at 269; Chem-Dyne, 572 F.Supp. at 810.

 While the "divisibility" defense to joint and several

liability is frequently invoked in cost recovery actions brought

under § 107(a), it is not a defense to a contribution action under

§ 113(f). In contrast to a § 107(a) action, a contribution claim

under § 113(f) is a means of equitably allocating response costs

among responsible or potentially responsible parties. See S.Rep.

No. 11, 99th Cong., 1st Sess. 44 (1985). Thus, when one liable

party sues another liable party under CERCLA, the action is not a

cost recovery action under § 107(a). Rather, it is a claim for

contribution under § 113(f). See United States v. Colorado & E.R.

Co., 50 F.3d 1530, 1535-36 (10th Cir.1995); Amoco Oil Co. v.
 32This is not to say the ability of the court, with the

assistance of the parties, to distinguish among separate harms

caused by different parties at a site is irrelevant in allocating

response costs under § 113(f). This is unquestionably an

"appropriate" factor for a court to consider in making a fair

division of liability. 

Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989). Whereas joint and

several liability is the rule for defendants in actions under §

107(a), courts in contribution cases may "allocate response costs

among liable parties." See 42 U.S.C. § 9613(f)(1). This could

include allocating some response costs to the plaintiff. Since

there is no joint and several liability among defendants in a

contribution action, the divisibility defense has no relevance as

a "defense" in these cases.32

As we noted at the outset of our discussion, Redwing's CERCLA

claims against the Appellees are claims for contribution governed

by § 113(f). This is true as well for the Appellees' CERCLA

counterclaims. The divisibility defense is therefore not at issue

in this case. Once the district court determines who are

responsible parties under § 107(a), the next step under § 113(f) is

to equitably allocate responsibility among the parties.

Divisibility of the harm at the Saraland Site is not a prerequisite

to making this allocation.

IV. CONCLUSION

Noting "the essential policy underlying CERCLA is to place the

ultimate responsibility for cleaning up hazardous waste on those

responsible for [the] problems cause by the disposal of chemical

poison," the district court held Redwing responsible for the entire

cost of cleaning up the Saraland Site. Redwing Carriers, 875
F.Supp. at 1569 (citations and quotation marks omitted). While we

agree Redwing must bear its fair share of the cost of remedying a

condition it largely created, the district's court's holding was

premature. We affirm the court's grant of summary judgment in

favor of the Hutton partners. And with the exception of Redwing's

partnership law claims against Coit and Roar, we affirm summary

judgment for the general partners as well. As to Marcrum, we

affirm summary judgment on Redwing's claims premised on subsections

107(a)(2) and (a)(3). We reverse, however, on Redwing's operator

claim against Marcrum based on subsection 107(a)(1). We likewise

find there are genuine issues of material fact precluding summary

judgment on Redwing's arranger claim against Meador. If Marcrum

and/or Meador are found to be responsible parties under § 107(a) of

CERCLA, then the district court must consider their roles and

circumstances in allocating costs under § 113(f).

AFFIRMED in part, REVERSED in part, and REMANDED.