2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-12-2010

Agere Sys Inc v. Advanced Env Consul

Precedential or Non-Precedential: Precedential

Docket No. 09-1814

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-1814

_____________

AGERE SYSTEMS, INC.; 

CYTEC INDUSTRIES, INC.; FORD MOTOR COMPANY; 

SPS TECHNOLOGIES, LLC; TI GROUP AUTOMOTIVE

SYSTEMS, LLC 

v.

ADVANCED ENVIRONMENTAL TECHNOLOGY

CORPORATION; ASHLAND, INC.; CARPENTER

TECHNOLOGY CORPORATION; 

DIAZ CHEMICAL CORPORATION; FCG INC; 

HANDY & HARMAN TUBE CO, INC.; NRM

INVESTMENT COMPANY

 Carpenter Technology Corporation,

 Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 02-cv-3830)

District Judge: Honorable Legrome D. Davis

_______________
Argued December 17, 2009

Before: SLOVITER, JORDAN and GREENBERG, Circuit

Judges.

(Filed: April 12, 2010)

_______________

Robert D. Fox [ARGUED]

Neil S. Witkes

Kathleen B. Campbell

Manko, Gold, Katcher & Fox, LLP

401 City Avenue - #500

Bala Cynwyd, PA 19004 

Counsel for Appellant

Glenn A. Harris [ARGUED]

Amy M. Trojecki

Ballard Spahr Andrews & Ingersol, LLP

Plaza 1000 - Ste. 500, Main Street

Voorhees, NJ 08043

Counsel for Appellees

_______________

OPINION OF THE COURT

_______________
i

Table of Contents

I. Background................................. 2

A. EPA Actions at the Boarhead Site.......... 3

i. The OU-1 Consent Decree. ......... 5

ii. The OU-2 Consent Decree. ......... 6

iii. Carpenter ....................... 8

B. Present Suit ........................... 9

i. Stipulations..................... 10

ii. Bench Trial..................... 11

II. Statement of Jurisdiction and Standard of Review. 14

III. Discussion................................. 15

A. Statutory Background Law. ............. 15

B. Issues on Appeal. ..................... 19

C. Cytec, Ford, SPS, and TI’s § 113(f) 

Claim for Reimbursement of Payments 

Made to the EPA for Past Costs. ......... 21

i. Background. ................... 21
ii

ii. The Statute of Limitations to 

Recover Past Costs............... 21

iii. The Exceptions to the Three-Year 

Statute of Limitations Period . ..... 25

D. TI and Agere’s § 107(a) Claims to 

Recover Costs Paid to Other Plaintiffs

Pursuant to Settlement Agreements. ...... 32

i. Background. ................... 32

ii. Section 107(a) Cost Recovery 

Claims......................... 33

E. The District Court’s Equitable Allocation

for the Plaintiffs’ Costs of Performing 

Work Under the OU-1 and OU-2Consent

Decrees . ............................ 37

i. Background. ................... 37

ii. Sections 107(a) and 113(f). ........ 37

iii. The District Court’s Equitable

Allocation Under § 113(f). ........ 42

iv. The June 23 Stipulation is Not an rd

Admission that is Admissible 

Against Carpenter. .............. 46
iii

v. Other Evidence Regarding Waste

Volumes. ...................... 49

F. Other Contentions Regarding the District

Court’s Equitable Allocation. ........... 51

i. NRM’s Waste. .................. 51

ii. The Culpability and Lack of

Cooperation of Settling Defendants.. 53

iii. Settlement Amounts. ............. 54

G. The Pennsylvania Hazardous Sites 

Cleanup Act. ......................... 55

IV. Conclusion. ............................... 55
1

JORDAN, Circuit Judge.

This appeal arises from nearly three decades of

involvement by the Environmental Protection Agency (“EPA”)

at the Boarhead Farms Superfund Site in Bucks County,

Pennsylvania (the “Boarhead Site” or the “Site”). At issue in

the underlying case was the disposal of millions of gallons of

toxic waste, over a six-year time period, by more than twenty

parties, with millions of dollars of cleanup costs at stake. Along

with the factual issues born of that history, the case implicates

the still developing distinctions between liability under § 107(a)

and § 113(f) of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 and the Superfund

Amendments and Reauthorization Act of 1986 (“SARA”),

codified together at 42 U.S.C. §§ 9601-9675 (collectively

“CERCLA”).

On June 18, 2002, five plaintiffs – Agere Systems, Inc.

(“Agere”), Cytec Industries, Inc. (“Cytec”), Ford Motor

Company (“Ford”), SPS Technology, LLC (“SPS”), and TI

Automotive Systems LLC (“TI”) (collectively “plaintiffs” or

“appellees”) – filed the present suit against twenty-three

defendants for cost recovery and contribution under CERCLA

and the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”),

35 PA. STAT. ANN. § 6020.101-104 et seq., to recover costs that

the plaintiffs had paid to the EPA pursuant to certain consent

decrees or that they had provided as a consequence of the

cleanup of hazardous substances at the Boarhead Site. All of

the defendants except one, Carpenter Technology Corporation

(“Carpenter”), settled their liabilities with the plaintiffs or were

otherwise dismissed from the suit after a bench trial. On
 Between 1973 and 1976, the Bucks County Department of 1

Health filed over fifteen Waste Discharge Inspection Reports

regarding the Boarhead Site. On October 15, 1976, an

injunction was issued preventing DCC from bringing any

chemicals to the Site. In addition to the Boarhead Site, DCC

disposed of its customers’ waste at two other sites, known to the

parties as the Ontario Street property and the Wissinoming

Industrial Park. The former was a rental property that DCC took

possession of on November 15, 1973, on Ontario Street in

2

August 22, 2008, the United States District Court for the

Eastern District of Pennsylvania entered judgment against

Carpenter, finding it liable for 80% of the costs paid by the

plaintiffs as of December 31, 2007, plus prejudgment interest.

The Court also entered a declaratory judgment that Carpenter is

liable for 80% of all cleanup costs that the plaintiffs may incur

after January 1, 2008. The District Court denied Carpenter’s

motion to alter or amend the judgment, and Carpenter filed this

appeal. For the following reasons, we will vacate the District

Court’s judgment and remand for proceedings consistent with

this opinion. 

I. Background

Beginning in 1972, DeRewal Chemical Corporation

(“DCC”), a business that removed, transported, and disposed of

chemical waste generated by other companies, began illegally

dumping its customers’ waste at the Boarhead Site. The

dumping continued until 1976, when DCC was enjoined from

bringing any chemicals to the Site. 

1
Philadelphia, Pennsylvania. On June 13, 1975, the Philadelphia

Water Department sealed the lateral connection between the

Ontario Street property and the city sewer system after the

Department discovered that DCC was improperly disposing of

chemical waste into the city sewer system from the property. On

May 6, 1976, the owner of DCC leased another site, through its

subsidiary, located in the Wissinoming Industrial Park in

Philadelphia. DCC eventually ceased use of that site as a result

of concerns raised by the Philadelphia Water Department, the

Philadelphia Police Department, and the EPA. Those two

disposal sites are not the focus of the present appeal.

 “The NPL [National Priorities List] is the list of priority 2

releases for long-term remedial evaluation and response.” 40

C.F.R. § 300.425(b). 

 Superfund sites are those hazardous waste sites listed on the 3

EPA’s National Priorities List. See U.S. ENVIRONMENTAL

P R O T E C T I O N A GENCY , S U P E R F U N D ,

http://www.epa.gov/superfund/index.htm (last visited March 5,

2010).

3

A. EPA Actions at the Boarhead Site

Between 1984 and 1986, the EPA completed an initial

investigation of the contamination at the Boarhead Site. Based

on the results of that investigation, the Site was added to the

EPA’s National Priorities List on March 13, 1989, and thus 2

became a Superfund site. Later that year, the EPA performed 3

a remedial investigation of the Site to identify whether there
 In general, when we use the term “action” throughout this 4

opinion, we are using it to refer to environmental cleanup work,

and not as a synonym for a lawsuit.

 See infra note 29 regarding the definitions of remedial 5

actions and removal actions.

 “A ROD provides the justification for the remedial action 6

(treatment) chosen at a Superfund site. It also contains site

history, site description, site characteristics, community

participation, enforcement activities, past and present activities,

contaminated media, the contaminants present, scope and role

of response action and the remedy selected for cleanup.” U.S.

ENVIRONMENTAL PROTECTION AGENCY, SUPERFUND

INFORMATION SYSTEMS, RECORD OF DECISION SYSTEM,

4

were contaminants that posed a risk to human health and the

environment. That investigation revealed a variety of hazardous

substances in the soil, sediments, and groundwater. In

response, the EPA conducted several small-scale cleanup

actions over the next three years to address immediate risks. 4

A report of the remedial investigation was published in

January 1997, and, by the following July, the EPA issued a

feasibility study that defined objectives for a larger-scale

response with additional remedial actions. In January 1998, 5

the EPA produced its proposed remedial action plan, based on

both the remedial investigation and the feasability study. Then,

on November 18, 1998, it issued its Record of Decision

(“ROD”) respecting the Site. The ROD was to be implemented

6
http:/www.epa.gov/superfund/sites/rods/ (last visited Dec. 30,

2009).

OU-1 addressed groundwater extraction, metal precipitation, 7

air stripping, the installation of wells, residential water

treatment, phytoremediation, and the installation of institutional

controls and monitoring for OU-1. OU-2 addressed soil aeration

and treatment of volatile organic compound hotspots, the

excavation and off-site disposal of buried drums, and the

implementation of institutional controls and monitoring for OU2. 

 As more fully discussed herein, § 107 authorizes the United 8

States or a state or “any other person” to seek reimbursement for

removal or remedial costs incurred in responding to releases of

hazardous substances as defined by CERCLA, provided that

those actions are consistent with the national contingency plan.

5

in two stages, which, in the argot of the EPA, are referred to as

“operable units.” An operable unit is a “discrete action that

comprises an incremental step toward comprehensively

addressing site problems.” 40 C.F.R. § 307.14. The two

planned for the Boarhead Site were designated as Operable Unit

One (“OU-1”) and Operable Unit Two (“OU-2”). 

7

i. The OU-1 Consent Decree

On June 2, 2000, the EPA commenced a suit in the

District Court against Cytec, Ford, and SPS, under § 107 of

CERCLA, 42 U.S.C. § 9607, by filing a complaint along with 8
See 42 U.S.C. § 9607(a). The national contingency plan has

been called “the federal government’s roadmap for responding

to the release of hazardous substances.” Niagara Mohawk Pwr.

Corp. v. Chevron U.S.A., Inc., No. 08-3843-CV, 2010 WL

626064, at *3 (2d Cir. Feb. 24, 2010).

 Plaintiffs Cytec, Ford and SPS are also signatories to an EPA 9

Administrative Order for Consent for Remedial Design executed

in February 2000. 

6

a consent decree that those parties had executed (the “OU-1

Consent Decree”). The District Court approved the OU-1

Consent Decree on September 28, 2000. Pursuant to the

mandates of the decree, as well as an administrative order,

9

Cytec, Ford, and SPS were required to do the work

contemplated for OU-1 and to reimburse the EPA for its

administrative and oversight costs in connection with the OU-1

cleanup. 

Cytec, Ford, and SPS subsequently entered into a

separate settlement agreement with Agere, TI, and two other

companies, whereby they all agreed to collectively fund and

perform OU-1 work and to otherwise comply with the OU-1

Consent Decree. All seven of those companies, which, for

convenience, we will call the “OU-1 group,” have contributed

to trust accounts fromwhich various contractors have been paid

and will continue to be paid to perform the work required by the

OU-1 Consent Decree. 
 Plaintiffs Cytec, Ford, SPS, and TI are also signatories to an 10

EPA Administrative Order for Consent for Remedial Design,

executed on October 17, 2001. 

 The significance of July 2000 as a pivotal point in the timing 11

of EPA’s costs and calculations is not clear from the record.

7

ii. The OU-2 Consent Decree

On December 6, 2001, the EPA commenced another suit

in federal court under § 107 against Cytec, Ford, SPS, and TI,

by filing a complaint and a second consent decree that those

parties had executed (the “OU-2 Consent Decree”). The

District Court approved the OU-2 Consent Decree on March 14,

2002. Pursuant to that decree and, again, an administrative

order, the Court ordered Cytec, Ford, SPS, and TI to do four 10

things: (1) do the work contemplated for OU-2; (2) reimburse

the EPA for approximately $7 million in costs related to

removal actions at the Boarhead Site that the EPA had incurred

prior to July 2000; (3) reimburse the EPA for a yet-to-be- 11

determined amount of response costs incurred after July 2000;

and (4) reimburse the EPA for its other future response costs in

connection with OU-2 work. 

Ford, Cytec, SPS, and TI subsequently entered into a

separate, private settlement with Agere whereby the parties

agreed to collectively fund and perform OU-2 work and to

otherwise comply with the OU-2 Consent Decree. Again for

convenience, we will refer to those five companies as “the OU2 group.” In a fashion similar to the OU-1 group, the five
 While none of the parties has raised the issue, we are left to 12

wonder whether Agere has standing to bring the present suit

against Carpenter after having assigned to others its right to

recover the amounts it paid into the OU-1 and OU-2 group trust

accounts. Whether or not Agere has standing, however, we refer

to the claims which originated with it as being “Agere’s claims,”

since, whether held by Agere or assignees, the claims

themselves remain. On remand, the District Court should

determine who holds these claims and, specifically, to what

extent, if any, Agere retains standing. This opinion and

accompanying judgment order are, obviously, to be understood

as permitting recovery by the parties in interest only.

8

members of the OU-2 group contributed to group trust accounts

from which they paid and will continue to pay various

contractors to perform the work required by the OU-2 Consent

Decree. 

On March 30, 2007, in exchange for $400,000, Agere

(which had never itself been sued by the EPA), assigned to

Cytec, Ford, SPS, and TI its claims to recover the approximately

one million dollars it had paid into the OU-1 and OU-2 group

trust accounts.12

iii. Carpenter

DCC collected and disposed of waste at the Boarhead

Site from more than twenty customers between 1972 and 1977.

Carpenter was one of those customers and is a Delaware
 The basis for that exclusion has not been explained on 13

appeal.

 The original defendants included the following parties: 14

Advanced Environmental Technology Corporation; Ashland

Chemical Company; Boarhead Corporation; Carpenter; Crown

Metro, Inc.; Diaz Chemical Corporation; Etched Circuits, Inc.;

fcg, Inc.; Globe Disposal Co., Inc.; Handy & Harman Tube

Company, Inc.; Knoll, Inc.; Merit Metals Products Corporation;

Novartis Corporation; NRM Investment Company; Plymouth

Tube Company; Quickline Design and Manufacturing

Company; Rahns Specialty Metals, Inc; Rohm and Haas

Company; Simon Wrecking Co., Inc.; Techalloy Co., Inc.;

Thomas & Betts Corporation; Unisys Corporation; and the

United States of America Department of Navy. 

9

corporation with its principal place of business in Reading,

Pennsylvania. 

Carpenter received a notice from the EPA concerning the

Boarhead Site, dated September 28, 2000, asking it to resolve

its potential liability to the EPA for past cleanup costs and

further asking that it agree to perform work required by the

EPA’s 1998 ROD, excluding the work outlined in the OU-1

Consent Decree. The letter included a list of ten previous 13

recipients of similar letters from the EPA concerning the

Boarhead Site. Carpenter did not comply with the requests in

the letter. 

B. Present Suit

On June 18, 2002, the five plaintiffs in this suit – Agere,

Cytec, Ford, SPS, and TI – filed their original complaint in the

District Court against twenty-three defendants, seeking cost 14

recovery and contribution under CERCLA and under the HSCA
 At the time of the fifth and final amended complaint, the 15

defendants included Advanced Environmental Technology

Corporation; Ashland Chemical Company; Carpenter; Diaz

Chemical Corporation; fcg, Inc; Handy & Harman Tube

Company, Inc.; and NRM Investment Company. 

 By the time of the bench trial, all of the other defendants had 16

either settled or had been granted unopposed motions to dismiss

or unopposed summary judgment motions. 

 From this point forward, references to “the parties” are to 17

the named plaintiffs in this suit and Carpenter, unless the

context dictates otherwise.

 The exact date on which the parties entered into this 18

stipulation is not entirely clear from the record. The signature

page, however, suggests that the date might have been June 18,

2008. (See App. at 14:A6390.)

10

to recoup costs they had paid to the EPA pursuant to one or

more consent decrees or had reimbursed to one another, all

relating to the cleanup of hazardous substances at the Boarhead

Site. By January 21, 2008, the plaintiffs had filed a fifth

amended complaint and seven defendants remained. When 15

the bench trial commenced on June 23, 2008, only two

defendants were left, Handy & Harman Tube Company, Inc.

(“H&H”) and Carpenter. After trial, H&H was granted an 16

unopposed motion to dismiss, leaving Carpenter as the sole

remaining defendant. 

i. Stipulations

The parties entered into several stipulations before and 17

during trial, to narrow the factual and legal issues before the

District Court. First, they signed a stipulation of background

facts, many of which have been noted here already. Second, 18
11

on June 19, 2008, they stipulated to the volume of waste that

DCC collected from fifteen other companies, fourteen of which

were defendants. Carpenter’s waste was not included in that

stipulation. Third, on June 23, 2008, the plaintiffs and

defendant H&H stipulated to the volume of waste that DCC

collected from three of the plaintiffs – Cytec, Ford, and SPS –

and from H&H. Importantly, Carpenter did not join that

stipulation. Finally, on July 1, 2008, the plaintiffs, Carpenter,

and H&H stipulated to the fact that the waste described in the

June 23 stipulation was hazardous waste as defined by rd

CERCLA. They also stipulated that DCC had not hauled any

waste from TI or Agere to the Boarhead Site. Thus, while the

effect of the July 1 stipulation is contested, it is undisputed that st

Carpenter never directly stipulated to the volume of waste that

Cytec, Ford, SPS, and H&H had contributed to the Boarhead

Site.

ii. Bench Trial

Pursuant toCERCLA, the District Court’s responsibility

included “allocat[ing] response costs among liable parties using

such equitable factors as the court determine[d] [to be]

appropriate.” 42 U.S.C. § 9613(f)(1). The Court decided that

the parties’ various volumes of waste at the Boarhead Site

constituted the most equitable basis upon which to allocate

costs. Hence, the purpose of the bench trial, held in July of

2008, was to figure out as a matter of fact what those volumes

were, including the volumes attributable to Carpenter. The

Court also held that culpability and the degree of cooperation

the parties had demonstrated in dealing with the cleanup should

be considered in allocating response costs. 
 The costs broke down as follows: 19

• Agere: $902,152.49

• Cytec: $3,368,551.07

• Ford: $3,354,122.22

• SPS: $3,354,122.22

• TI: $2,699,430.55

 The 62.6% was calculated as follows: the Court found that 20

the volume of waste disposed of at the Boarhead Site from all of

the plaintiffs, and the settled and dismissed parties, as well as

Carpenter, was 1,594,668 gallons. The Court found that the

total volume of waste disposed of at the Boarhead Site by

12

The District Court found that the plaintiffs had incurred

costs totaling $13,678,378.55 as of December 31, 2007. The 19

Court then concluded that those costs had been incurred of

necessity in complying with the requirements of the ROD. The

Court also held that cleanup at the Boarhead Site must continue

until the organic and inorganic contaminants in the groundwater

reach an acceptable level as set forth by the EPA in the ROD.

Thus, the Court noted, the plaintiffs will continue to incur costs

for the foreseeable future. 

To prove the waste volumes at the Site, the plaintiffs

presented testimony from truck drivers who had been employed

by DCC. Based on that testimony and the above-described

stipulations, the Court calculated the volume of waste that DCC

collected from each of the parties, and then calculated what

percentage of that waste was disposed of at the Boarhead Site.

Regarding Carpenter’s waste volumes, the Court also had the

benefit of Carpenter’s business records, which confirmed parts

of the testimony of the DCC drivers. The Court found that

Carpenter’s waste constituted 62.6% of the hazardous waste

disposed of at the Boarhead Site. 

20
Carpenter was 998,284 gallons. Thus, the Court determined that

Carpenter’s percentage share of the total volume was 62.6 %. 

 The record is not clear as to what regulatory authority or 21

authorities decided that Revere and Echo could no longer

operate. 

 We refer to the appendix on appeal by the volume number 22

followed by a colon and the page number on which the cited

material appears, followed by specific paragraphs, if applicable.

13

The plaintiffs also presented evidence that in 1969

Carpenter hired two waste collection companies, Revere

Chemical Company (“Revere”) and Echo, Inc. (“Echo”), to haul

its waste acids. Carpenter knew that Manfred DeRewal, who

later founded DCC, wasthe president of Revere and Echo. The

evidence showed that in 1970 Carpenter learned that Revere

and Echo were shut down for unlawful polluting practices.21

Nevertheless, in June 1973, Carpenter hired DCC, which

Carpenter knew was owned by DeRewal, simply because

DCC’s bid was significantly below the competing bids.

Because “Carpenter relinquished its potent waste acids to a

known polluter,” and because Carpenter did not cooperate with

the EPA, the Court allocated to Carpenter an additional 17.4%

of the total clean-up cost – 8.7% for repeatedly working with a

known polluter and 8.7% for not cooperating with the EPA –

holding that “culpability is an appropriate equitable factor in

resolving contribution claims.” (App. at 1:A72.) In other 22

words, the Court adjusted Carpenter’s share of liability above

what it had determined to be Carpenter’s volumetric share of

waste, based on Carpenter’s significant culpability in creating

a Superfund site and its lack of cooperation in cleaning it up.
14

On August 22, 2008, the District Court entered judgment

against Carpenter, finding it liable for 80% (62.6% plus 8.7%

plus 8.7%) of the $13,678,378.55 paid by the plaintiffs as of

December 31, 2007, plus prejudgment interest. That resulted in

a judgment of $10,942,702.84 against Carpenter. The

remaining 20% of liability was allocated to the plaintiffs. The

Court also entered a declaratory judgment that Carpenter is

liable for 80% of all future costs, as measured from January 1,

2008, for response actions pursuant to the OU-1 and the OU-2

Consent Decrees. Finally, the Court found that Carpenter’s

liability under the HSCA parallels its liability under CERCLA.

Carpenter filed a motion to alter or amend the judgment,

which the District Court denied on February 20, 2009.

Carpenter then filed a timely notice of appeal to our Court. 

II. Statement of Jurisdiction and Standard of Review

The District Court had jurisdiction over the plaintiffs’

CERCLA claims pursuant to 42 U.S.C. § 9613(b) and 28

U.S.C. § 1331. It had supplemental jurisdiction over the

HSCA claims under 28 U.S.C. § 1367. We have jurisdiction

pursuant to 28 U.S.C. § 1291. 

“We may set aside [a] district court’s findings of fact

only if they are clearly erroneous.” FMC Corp. v. U.S. Dep’t.

of Commerce, 29 F.3d 833, 838 (3d Cir. 1994); cf. In re

Fruehauf Trailer Corp., 444 F.3d 203, 210 (3d Cir. 2006)

(explaining that “[f]actual findings may only be overturned if

they are completely devoid of a credible evidentiary basis or

bear no rational relationship to the supporting data” (citation

omitted) (internal quotation omitted)). 

However, we review a district court’s allocation of

CERCLA response costs for abuse of discretion. Beazer E.,

Inc. v. Mead Corp., 412 F.3d 429, 446 n.18 (3d Cir. 2005).
 Section 107(a) actually says “consistent with the national 23

contingency plan,” see 42 U.S.C. § 9607(a), which, as noted

15

“An abuse of discretion occurs when ‘the district court’s

decision rests upon a clearly erroneousfinding of fact, an errant

conclusion of law or an improper application of law to fact.’”

Id. (quoting Int’l Union v. Mack Trucks, Inc., 820 F.2d 91, 95

(3d Cir. 1987)). 

Finally, we exercise plenary review over a district court’s

interpretation of CERCLA, including statute of limitations

issues. United States v. Se. Pa. Transp. Auth., 235 F.3d 817,

822 (3d Cir. 2000); see also New Castle County v. Halliburton

NUS Corp., 111 F.3d 1116, 1120 (3d Cir. 1997) (explaining

that, in approaching a statute of limitations issue, we must

“exercise plenary review over the district court’s interpretation

of the relevant CERCLA ... provisions”). 

III. Discussion

A. Statutory Background Law

All of Carpenter’s contentions on appeal involve the

plaintiffs’ claims under CERCLA § 107(a) for cost recovery

and § 113(f) for contribution. Thus, we present a brief

overview of those two statutory remedies before addressing

Carpenter’s specific contentions.

CERCLA provides two mechanisms that allow

potentially responsible parties (“PRPs”) to recover costs they

have expended to decontaminate a polluted site: § 107(a) cost

recovery claims and § 113(f) contribution claims. The first

option, § 107(a), provides that PRPs are liable for “any ...

necessary costs of response incurred by any other person”

consistent with CERCLA. 42 U.S.C. § 9607(a)(4)(B). 23
above (supra note 8), is the federal government’s plan for

responding to releases of hazardous substances. Niagara

Mohawk Pwr. Corp., 2010 WL 626064, at *3. 

 Section 107 also provides the EPA with a mechanism to 24

recover costs from PRPs, stating that PRPs are liable for “all

costs of removal or remedial action incurred by the United

States Government or a State or an Indian tribe not inconsistent

with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(A).

This aspect of § 107 is not at issue in the present matter.

16

Section 107(a) thus allows private parties to bring cost recovery

suits against other PRPs, and courts have developed several

24

principles for application in such suits. 4 THE LAW OF

HAZARDOUS WASTE § 14.01[2][c] (Susan M. Cooke, ed., 2009).

Significantly, § 107(a) allows for complete cost recovery under

a joint and several liability scheme. See N.J. Tpk. Auth. v. PPG

Indus., Inc., 197 F.3d 96, 104 (3d Cir. 1999). Initially, “[w]hen

CERCLA was first enacted, [§ 107 cost recovery] was the only

remedy available, and [c]ourts struggled with whether PRPs

(themselves liable for some of the cleanup) could invoke § 107

for contribution from other PRPs for their proportionate share

of the costs as opposed to full cost recovery.” Niagara Mohawk

Pwr. Corp., 2010 WL 626064, at *3. 

Congress ultimately provided the language necessary to

authorize contribution under CERCLA when it added § 113 to

the statutory scheme with the passage of SARA. Id. at *3.

Section 113(f) specifically is a second means of recouping

cleanup costs, and it, in turn, provides two avenues of relief.

Under § 113(f)(1), a PRP can seek contribution from another

PRP during or following a CERCLA suit brought against the

first PRP. 42 U.S.C. § 9613(f)(1); see also United States v. Atl.

Research Corp., 551 U.S. 128, 139 (2007) (explaining that

“[s]ection 113(f)(1) authorizes a contribution action to PRPs
 Section 106 authorizes the United States to bring a suit 25

seeking injunctive relief to abate “imminent and substantial

endangerment” resulting from the release of a hazardous

substance. The section also authorizes the EPA to issue an

administrative order to abate such a condition. See 42 U.S.C.

§ 9606; see also 4 THE LAW OF HAZARDOUS WASTE

§ 14.02[1][c] (Susan M. Cooke, ed., 2009).

17

with common liabilitystemming from an action instituted under

[CERCLA]”). Likewise, under §113(f)(3)(B), PRPs who

resolve their liability to the United States or an individual State

through an administratively or judicially approved settlement

can seek contribution from another PRP. 42 U.S.C.

§ 9613(f)(3)(B); see also Atl. Research Corp., 551 U.S. at 139

n.5 (“Similarly, § 113(f)(3)(B) permits a PRP to seek

contribution after it ‘has resolved its liability to the United

States or a State ... in an administrative or judicially approved

settlement ... .’” (quoting 42 U.S.C. § 9613(f)(3)(B))).

In Atlantic Research, the Supreme Court endeavored to

clarify the relationship between § 107(a) cost recovery claims

and § 113(f) contribution claims, noting that those remedies are

distinct. See Atl. Research Corp., 551 U.S. at 138 (“[Sections]

107(a) and 113(f) provide two ‘clearly distinct’ remedies.

‘CERCLA provide[s] for a right to cost recovery in certain

circumstances, § 107(a), and separate rights to contribution in

other circumstances, §§ 113(f)(1), 113(f)(3)(B).’” (quoting

Cooper Indus., Inc. v. Aviall Serv., Inc., 543 U.S. 157, 163 n.3

(2004))). With regard to § 113(f) contribution claims, the Court

held that a private party may not bring a contribution claim

unless it has been sued under § 106 or § 107 of CERCLA.

25

See Cooper Indus., Inc. 543 U.S. at 168 (explaining that

§ 113(f) “authorizes contribution claims only ‘during or

following’ a civil action under § 106 or § 107(a)”); see also Atl.

Research Corp., 551 U.S. at 139 (“Section 113(f)(1) authorizes
18

a contribution action to PRPs with common liability stemming

from an action instituted under [CERCLA].”). With regard to

§ 107(a) cost recovery claims, the Court held that a private party

who voluntarily undertakes a cleanup action – and is therefore

unable to sue under § 113(f) because it “remediated the

hazardous material [] without the judicial spur of § 106 or

§ 107” – can seek recovery of response costs under

§ 107(a)(4)(B). Niagara Mohawk Pwr. Corp., 2010 WL

626064, at *3 (describing Atl. Research Corp., 551 U.S. at

139). Thus, a private party may recover under § 107(a) without

any establishment of liability on its part to a third party,

including the government. Atl. Research Corp., 551 U.S. at

139.

In short, the Court summarized the distinction as follows:

[T]he remedies available in §§ 107(a) and 113(f)

complement each other by providing causes of

action to persons in different procedural

circumstances ... . Section 113(f)(1) authorizes a

contribution action to PRPs with common

liability stemming from an action instituted under

... § 107(a). And § 107(a) permits cost recovery

(as distinct from contribution) by a private party

that has itself incurred cleanup costs.

Id. (citations omitted) (internal quotations omitted). Despite

this clarification, navigating the interplay between § 107(a) and

§ 113(f) remains a deeply difficult task. See New York v.

Solvent Chem. Co., Inc., No. 83-CV-1401-JTC, 2010 WL

376328, at *67 (W.D.N.Y. Jan. 26, 2010) (“[R]ecent rulings

have done little to provide the lower courts with useful

guidance in determining which subsection of CERCLA

provides a cause of action for partiesseeking reimbursement of

response costs in differing situations.”); see also id. at *64

(“Perhaps most perplexing is the interplay between the two cost
19

recovery provisions which this courtmust applyin resolving the

difficult factual and legal issues.”). The sometimes blurry

relationship between § 107(a) cost recovery claims and § 113(f)

contribution claims is a theme to which we will return

repeatedly in this opinion.

B. Issues on Appeal

The issues raised byCarpenter on appeal can be grouped

into six overarching contentions. 

The first is that plaintiffs Cytec, Ford, SPS, and TI

cannot bring a § 113(f) contribution claim for the approximately

$7 million they paid to the EPA under the OU-2 Consent

Decree to reimburse the EPA for its response costs because the

EPA’s suit to enforce the OU-2 Consent Decree was timebarred. According to Carpenter, it does not share a common

liability with those plaintiffs because none of the plaintiffs

could have been sued by the EPA at the time they chose to settle

with the agency. 

Second, Carpenter argues that Agere and TI cannot bring

a § 107(a) cost recovery claim for sums they paid pursuant to

private settlements with other plaintiffs, as opposed to sums

paid to the EPA directly, because § 107(a) does not allow for

the recovery of such payments. 

Third, Carpenter argues that those plaintiffs who signed

the OU-1 and OU-2 Consent Decrees – Cytec, Ford, and SPS –

as well as TI, who signed the OU-2 Consent Decree only, do

not have § 107(a) cost recovery claims for costs expended

pursuant to the OU-1 and OU-2 Consent Decrees because, once

a party has been sued or has settled under CERCLA, that party

may pursue only a § 113(f) contribution claim. Thus, Carpenter

contends, those plaintiffs have nothing but § 113(f) available as
20

a vehicle for trying to recover the amounts they expended to

comply with the OU-1 and OU-2 Consent Decrees.

Fourth, recognizing that the District Court proceeded

under § 113(f) with regard to those claims, and not under

§ 107(a), Carpenter argues that Cytec, Ford, SPS, and TI failed

to present evidence of the total volume of waste disposed of at

the Boarhead Site and, therefore, the District Court’s allocation

of liability among the parties under § 113(f) cannot stand.

Specifically, Carpenter argues that, other than the stipulation

that it refused to sign, the plaintiffs have failed to introduce any

evidence of the volume of waste for which Cytec, Ford, SPS,

and H&H are responsible. Without evidence as to those parties,

says Carpenter, it is impossible to know the total volume of

waste disposed of at the Boarhead Site. 

Fifth, Carpenter argues that the District Court erred in

three ways in its cost allocation. First, Carpenter contends that

the Court miscalculated the volumetric share of waste that

former defendant NRM sent to the Boarhead Site. Next,

Carpenter says that the Court did not consider other defendants’

culpability or lack of cooperation with the EPA to the same

extent that it considered Carpenter’s lack of cooperation and

culpability. Asitslast cost allocation point,Carpenter contends

that the District Court wrongly considered the settling

defendants’ volumetric share of waste, rather than the dollar

amounts that the plaintiffs obtained from those settling

defendants, when the Court performed its equitable allocation.

Sixth and finally, Carpenter argues that, since

§ 702(a)(3) of the HSCA mirrors § 107(a)(4)(B) of CERCLA,

the plaintiffs do not have a viable claim under that section of the

HSCA, for the same reasons that Carpenter believes the

plaintiffs do not have a claim under § 107 of CERCLA. 
21

C. Cytec, Ford, SPS, and TI’s § 113(f) Claim for

Reimbursement of Payments Made to the EPA for

Past Costs

i. Background

The OU-2 Consent Decree obligated the plaintiffs who

signed it – Cytec, Ford, SPS, and TI – to reimburse the EPA for

a percentage of past response costs that the EPA had incurred

in various removal efforts at the Boarhead Site, including work

related to the OU-1 Consent Decree. Specifically, pursuant to

the OU-2 Consent Decree, Cytec, Ford, SPS, and TI agreed,

among other things, to reimburse the EPA for approximately $7

million in response costs incurred and accounted for prior to

July 2000. In their fifth amended complaint, those four

plaintiffs asserted a contribution claim under § 113(f), seeking

reimbursement from Carpenter for that $7 million. 

On appeal, Carpenter argues that the plaintiffs cannot

recover the $7 million because there was no “common liability”

among Carpenter and the plaintiffs at the time the plaintiffs

settled with the EPA, as required by Atlantic Research. More

particularly, Carpenter contends that no common liability exists

because, when the EPA brought suit against the plaintiffs on

December 6, 2001 to enforce the OU-2 Consent Decree, that

suit, and therefore any hypothetical suit against Carpenter, was

time-barred. The plaintiffs, of course, say that Carpenter is

mistaken about the statute of limitations. 

ii. The Statute of Limitations to Recover Past

Costs

Contribution claims under § 113(f) require a “common

liability” among PRPs at the time the underlying claim is

resolved. See Atl. Research Corp., 551 U.S. at 139 (“[A]

PRP’s right to contribution under § 113(f)(1) is contingent upon
22

... common liability among liable parties.”); In re Reading Co.,

115 F.3d 1111, 1224 (3d Cir. 1997) (“Contribution, by its own

definition, requires a common liability for the same injury.”),

abrogation on other grounds recognized by E.I. DuPont De

Nemours & Co. v. United States, 460 F.3d 515, 518 (3d Cir.

2006). Thus, Carpenter correctly asserts that, in order for it to

be liable under § 113(f), it must have had a “common liability”

with the plaintiffs at the time the EPA filed suit to enforce the

OU-2 Consent Decree. In other words, the EPA claim must

have been viable against both the plaintiffs and Carpenter at the

time the EPA sought to enforce the OU-2 Consent Decree;

otherwise, there is no “‘common liability’ to serve as the basis

of a contribution action.” (Appellant’s Op. Br. at 14.) Hence,

this contention boils down to a question about the applicable

statute of limitations.

The timeliness of an EPA suit to recover costs associated

with a removal action is governed by § 113(g)(2), which

requires that any such suit be brought “within 3 years after

completion of the removal action.” 42 U.S.C. § 9613(g)(2)(A).

At the same time, the statute provides for three exceptions that

extend the limitations period. Before addressing those,

however, we must describe more fully Carpenter’s statute of

limitations argument and an essential flaw in the District

Court’s decision. 

Carpenter argues that the EPA’s claim is time-barred

because the EPA completed its removal action on November

18, 1998, but did not initiate its lawsuit against the plaintiffs

until December 6, 2001, more than three years after the

completion of the removal action. As Carpenter sees it, since

none of the exceptions to the three-year statute of limitations

apply, the EPA’s lawsuit against the plaintiffs was untimely,

and, if Carpenter had been named as a defendant, the EPA’s

claims against it would have been untimely too. Carpenter has

rightly identified the completion of the removal action as the
23

point from which the statute of limitations begins to run. The

District Court held that the EPA “conducted a single ‘removal

action’ which ended, at the earliest, on November 18, 1998,

when EPA issued the ROD.” (App. at 1:A64.) In an

accompanying footnote in its opinion, however, the Court said,

“[i]t is more likely that EPA’s removal action was ongoing as

of September 28, 2000.” (App. at 1:A64 n.38.) Despite its “at

the earliest” caveat when citing the November 18, 1998 date,

and also despite its comment on the “more likely” course of

events, the District Court went on to say that, in order to give

Carpenter every reasonable consideration, it would “select[]”

the November 18, 1998 date as the date that the EPA completed

the removal action. (Id.) 

Given the magnitude and complexity of the record, as

well as the decades of EPA involvement at the Boarhead Site,

we can appreciate the difficulty in determining the time frame

within which the EPA completed its removal action.

Nevertheless, by stating that it was “more likely” that removal

work was ongoing on September 28, 2000, but then

“select[ing]” the earlier date of November 18, 1998 as the date

that work was completed, the Court has left a legally significant

ambiguity in the record. There is no clear finding of fact as to

a date or even a range of dates within which the EPA’s removal

work was completed. 

Of course, a court may, for analytical purposes, assume

facts in favor of a party to demonstrate that, even under that

party’s most advantageous view of the record, legal relief is

unavailable. That appears to have been the District Court’s

intention here. Nevertheless, the opinion is not entirely clear

and there is a strong implication that the completion date of the

EPA’s removal work was later than the selected date, which, if

true, is of real importance in this case. If the removal work was

ongoing as of September 28, 2000, as indicated by the Court,

then the applicability of complicated exceptions to the three-
 We do not discount the possibility that the District Court did 26

not make a definitive finding because the record would not

support one. Also, if the District Court’s finding of fact turns

out to be that the removal action ended sometime after

September 28, 2000, that will be sufficient, since, with that

finding, Cytec, Ford, SPS, and TI’s claims to recover for their

approximately $7 million reimbursement to the EPA for past

response costs would be timely, as is more fully discussed

herein. See infra Section III.C.iii. 

We also ask the District Court to make a definitive finding 27

as to the amount that the OU-2 plaintiffs paid to reimburse the

EPA for past costs. While the stipulated facts cite the amount

as $7 million in one place, in another place it appears to be

approximately $7.4 million, and Carpenter cites the amount as

$ 7.4 million. (Compare App. at 14:A6379 ¶ 40, and App. at

14:A6383 ¶ 59, with Appellant’s Op. Br. at 13.) 

24

year statute of limitations becomes irrelevant, and the EPA’s

suit was timely regardless of those exceptions.

Because the DistrictCourt has not made a factual finding

sufficient to determine whether or not the EPA’s December 6,

2001 enforcement suit for the OU-2 Consent Decree was timely

under the three-year statute of limitations, we will vacate the

judgment and remand for the Court to make an unequivocal

finding as to the date or time period within which the EPA

completed itsremoval action, if such a finding is possible. To 26

the extent the District Court needs to reopen the record in order

to resolve this ambiguity, it may do so, since Carpenter’s statute

of limitations defense makes the date on which the EPA

completed its removal action a potentially claim-dispositive

fact.27
 The two other exceptions to the three-year statute of 28

limitations are of no practical effect. The first exception, the

“subsequent action” exception, is simply not applicable. That

exception pertains to situations in which the EPA has brought

more than one legal action (and here the term “action” is being

used as a synonym for “lawsuit”) against the plaintiffs to recover

costs. The statute provides that if the EPA’s suit is a

“subsequent action” to recover further response costs (i.e., there

has already been an “initial action” to recover response costs),

the suit must be commenced no later than 3 years after the date

of completion of the initial action. See 42 U.S.C. § 9613(g)(2).

A “subsequent” suit for further response costs can “be

maintained at any time during the response action, but [it] must

be commenced no later than 3 years after the date of completion

of the response action.” Id. § 9613(g)(2)(B). The plaintiffs

argue that the EPA’s 2001 suit was a timely subsequent action,

because the three-year limitations period applies only to the

EPA’s initial action, which they identify as the EPA’s June 2,

2000 suit against Cytec, Ford, and SPS to enforce the OU-1

Consent Decree. Appellees contend that “[i]t does not matter

that Carpenter was not a defendant in the 2000 EPA action”

because the statute does not indicate that the defendant must

have been a party to the initial action. (Appellees’ Ans. Br. at

23.) That argument fails. The EPA sued Cytec, Ford, and SPS

25

iii. The Exceptions to the Three-Year Statute

of Limitations Period

As the District Court rightly recognized, the EPA’s suit

to recover past costs could still be timely even if the earlier

November 18, 1998 date is correct, assuming that an exception

to the statute of limitations applies. Though there are three

exceptions generally available, the only one possibly of

consequence is found in 42 U.S.C. § 9613(g)(2)(B), which is

the one the District Court applied. 

28
in 2000, but not Carpenter. Thus, the only parties against which

the EPA brought a subsequent action in 2001 are Cytec, Ford,

and SPS. As a result, the “subsequent action” exception is

inapplicable here. See United States v. Navistar Int’l Transp.,

152 F.3d 702, 710 (7th Cir. 1998) (“We believe that, from the

language and structure of the statute, a ‘subsequent action ... for

further response costs’ must be one brought against the same

party or parties against which an ‘initial action’ to recover such

costs has been maintained.” (quoting 42 U.S.C. § 9613(g)(2)).).

The second exception is an alternative limitations period

that may well be applicable here. That exception states that

when the EPA grants a consistency waiver under § 104(c)(1)(C)

to extend the removal action, the limitations period is six years,

rather than three years, from the date of a determination to grant

that waiver. See 42 U.S.C. § 9613(g)(2)(A). In other words, the

EPA must bring its suit within six years of the grant of a

consistency waiver, regardless of when its removal action is

completed. The parties have not defined the term “consistency

waiver,” but publicly available information from the EPA

indicates that a consistency waiver “is an exemption to the

statutory limits of two million dollars in expenditures ... for

removal actions.” Memorandum from Lon Biasco, On-Scene

Coordinator with the U.S. Envtl. Prot. Agency, to Myron O.

Knudson, Region 6 Superfund division Dir. of the U.S. Envtl.

P r o t . A g ency , 9,

http://www.epa.gov/region6/6sf/louisiana/ag_street/important

_documents/action_memo_agstreet.pdf. The EPA performed a

1992 removal action at the Site pursuant to a consistency waiver

it had granted on September 4, 1992. Under § 113(g)(2)(A),

then, the EPA had to file its suit to recover those costs no later

than September 4, 1998, six years from the grant of the waiver.

Carpenter argues that since the EPA did not file the OU-2 suit

until after 1998, the suit is barred under the “consistency

waiver” exception. However, Carpenter concedes that the

26
EPA’s 1992 consistency waiver only applied to one specific

remedial action, which cost $4.3 million. All of the EPA’s other

costs are not subject to the “consistency waiver” exception.

Plaintiffs and Carpenter acknowledge that the EPA incurred

costs on the order of $14 million and only sought reimbursement

for $7.4 million. Thus, even accepting Carpenter’s argument

that $4.3 million of the EPA’s past costs are time-barred, the

EPA still has claims for approximately $10 million which are

not time-barred under the consistency waiver exception.

Therefore, the EPA’s $7.4 million claim remains recoverable. 

 Removal actions are defined as 29

the cleanup or removal of released hazardous

substances from the environment, such actions as

may be necessary taken in the event of the threat

of release of hazardous substances into the

environment, such actions as may be necessary to

monitor, assess, and evaluate the release or threat

of release of hazardous substances, the disposal of

removed material, or the taking of such other

actions as may be necessary to prevent, minimize,

or mitigate damage to the public health or welfare

or to the environment, which may otherwise result

from a release or threat of release. The term

includes, in addition, without being limited to,

27

Section 9613(g)(2)(B) states that removal costs may be

recovered as part of a remedial action suit, which effectively

extends the statute of limitations to six years from the initiation

of physical on-site construction of the remedial action.

However, to recover such costs, the remedial action suit must be

initiated within three years after the completion of the removal

action. Id. In other words, the limitations 29
security fencing or other measures to limit access,

provision of alternative water supplies, temporary

evacuation and housing of threatened individuals

not otherwise provided for, action taken under

section 9604(b) of this title, and any emergency

assistance which may be provided under the

Disaster Relief and Emergency Assistance Act

[42 U.S.C. § 5121 et seq.]. 

42 U.S.C. § 9601(23). 

Remedial actions are defined as

those actions consistent with permanent remedy

taken instead of or in addition to removal actions

in the event of a release or threatened release of a

hazardous substance into the environment, to

prevent or minimize the release of hazardous

substances so that they do not migrate to cause

substantial danger to present or future public

health or welfare or the environment. The term

includes, but is not limited to, such actions at the

location of the release as storage, confinement,

perimeter protection using dikes, trenches, or

ditches, clay cover, neutralization, cleanup of

released hazardous substances and associated

contaminated materials, recycling or reuse,

diversion, destruction, segregation of reactive

wastes, dredging or excavations, repair or

replacement of leaking containers, collection of

leachate and runoff, onsite treatment or

incineration, provision of alternative water

supplies, and any monitoring reasonably required

to assure that such actions protect the public

28
health and welfare and the environment. The term

includes the costs of permanent relocation of

residents and businesses and community facilities

where the President determines that, alone or in

combination with other measures, such relocation

is more cost-effective than and environmentally

preferable to the transportation, storage,

treatment, destruction, or secure disposition

offsite of hazardous substances, or may otherwise

be necessary to protect the public health or

welfare; the term includes offsite transport and

offsite storage, treatment, destruction, or secure

disposition of hazardous substances and

associated contaminated materials.

Id. § 9601(24).

29

period may be extended if the EPA attempts to recover removal

costs during a remedial action suit, rather than in a removal

action suit. See id. But, if the EPA seeks to do so, it must bring

that remedial action suit “within 6 years after [the] initiation of

physical on-site construction of the remedial action,” and the

remedial action must be initiated within three years after the

completion of the removal action. Id. Given the language of

§ 9613(g)(2)(B), we read the requirement that remedial action

(i.e., remedial work at the site) be “initiated” within three years

of completion of the removal action (i.e., removal work at the

site) to mean that the physical on-site construction of the

remedial action has to be initiated within that three-year time

period. As Carpenter notes, any other interpretation of that

language would create two different meanings of the word

“initiate” in § 9613(g)(2)(B), and, more importantly would

eviscerate the three-year statute of limitations period for
 The text of the relevant provision is as follows: 30

An initial action for recovery of costs ... must be

commenced ... (B) for a remedial action, within 6

years after initiation of physical on-site

construction of the remedial action, except that, if

the remedial action is initiated within 3 years after

the completion of the removal action, costs

incurred in the removal action may be recovered

in the cost recovery action brought under this

subparagraph. 

42 U.S.C. § 9613(g)(2). When the drafters first used a form of

the word “initiate” in this section, it is specified as being the

“initiation of physical on-site construction of the remedial

action.” Thus, when the word “initiate” is used a second time,

in the very next sentence, we read the statute to again mean the

“initiation of physical on-site construction,” rather than the

initiation of some other environmental cleanup endeavor. As

Carpenter persuasively argues, to read the statute otherwise

undermines the statute of limitations:

If EPA could use the six year limitation period in

§ 113(g)(2)(B) simply by incurring any type of

response costs ... after issuance of the ROD, but

before initiation of on-site construction of the

remedial action, the three year limitations period

for removal actions would never apply at any site

at which remedial action occurs.

(Appellant’s Reply Br. at 12.) This is because, by using the

definition of “initiate” that the plaintiffs suggest (i.e., incurring

any type of further response costs), the EPA could simply take

30

removal actions contained in §9613(g)(2)(A). Thus, whether 30
any one of a variety of later steps that it could claim constitutes

the commencement of a remedial action.

31

the § 9613(g)(2)(B) exception applies in the present case is

again dependent upon the time that the EPA completed its

removal work. 

Carpenter argues that the EPA completed its removal

action on November 18, 1998, when it issued the ROD, because

case law supports the idea that, for statute of limitations

purposes, a removal action is complete upon the issuance of a

ROD. (See Appellant’s ReplyBr. at 9 (citing, inter alia, Kelley

v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 834-44 (6th

Cir. 1995)).) Plaintiffs, however, note that in the OU-1 Consent

Decree, filed September 28, 2000, the EPA stated that it

“conducted [a] removal action at the Site beginning in the year

1992 and continuing to the present ... .” (App. at 5:A2132,

¶ G.) Thus, say the plaintiffs, the EPA has essentially affirmed

that its removal action was ongoing as of September 28, 2000.

Again, as with the effect of the three-year statute of

limitations, we cannot tell whether this exception applies

because the District Court has not made a definitive factual

finding as to when the EPA completed its removal action.

Thus, we cannot determine whether the EPA initiated on-site

physical construction of the remedial action within three years

of the completion of its removal action. 

In sum, the EPA’s lawsuit to recover past costs was

timely if one of two circumstances is found to exist: either the

date or time period that the EPA completed its removal action

fell within three years of the EPA’s OU-2 enforcement suit, or

the EPA initiated on-site physical construction of the remedial

action within three years of the completion of its removal

action. If the first of these requirements is met, the suit was
32

timely under the three-year statute of limitations. If the second

is met, the six-year statute of limitations exception contained in

§ 113(g)(2)(b) would apply, allowing the filing to be timely.

D. TI and Agere’s § 107(a) Claims to Recover Costs

Paid to Other Plaintiffs Pursuant to Settlement

Agreements

i. Background

Agere was not a party to either the OU-1 or the OU-2

Consent Decrees. However, Agere entered into a private

settlement agreement with the plaintiffs who signed the OU-1

Consent Decree and a second private settlement agreement with

the plaintiffs who signed the OU-2 Consent Decree. Pursuant

to those agreements, Agere contributed to group trust accounts

that funded the work associated with the consent decrees.

Agere’s total costs from contributing to both trust accounts

were found to be $902,152.49. 

Although TI was a party to the OU-2 Consent Decree, it

was not a party to the OU-1 Consent Decree. However, TI

entered into a private settlement agreement with the plaintiffs

who did sign the OU-1 Consent Decree, and, pursuant to that

agreement, TI contributed to a group trust account that funded

the work required by the OU-1 Consent Decree. TI’s total costs

from contributing to the OU-1 group trust account were found

to be $308,961.37. 

In their fifth amended complaint, Agere and TI asserted

§ 107(a) cost recovery claims for the amounts that they had paid

pursuant to their settlement agreements with the other plaintiffs,

and the District Court held that Agere and TI did indeed have

such claims. On appeal, Carpenter argues that the District
 Plaintiffs argue that Carpenter waived this argument by 31

failing to raise it before the District Court. Even if Carpenter

had not raised the issue below, the District Court ruled on it

when it held that Agere and TI had § 107(a) claims for costs

they had contributed via the private settlement agreements.

More to the point, though, Carpenter adequately preserved the

issue when it argued, in its reply to the plaintiffs’ proposed

findings of fact and conclusions of law, that Agere and TI could

not bring those § 107(a) claims. 

33

Court erred in that conclusion and that Agere and TI should be

barred from recovering those sums.31

ii. Section 107(a) Cost Recovery Claims

The costrecovery available under § 107(a) is founded on

the statutory language providing that PRPs shall be liable for

“any other necessary costs of response incurred by any other

person” consistent with CERCLA. 42 U.S.C. § 9607(a)(4)(B).

The Supreme Court has held that “§ 107(a) permits a PRP to

recover only the costs it has ‘incurred’ in cleaning up a site.”

Atl. Research Corp., 551 U.S. at 139 (quoting 42 U.S.C.

§ 9607(a)(4)(B)). The Court has further explained that,

“[w]hen a party pays to satisfy a settlement agreement or a court

judgment, it does not incur its own costs of response. Rather,

it reimburses other parties for costs that those parties incurred.”

Id. 

Agere and TI are seeking to recoup costs that each paid

pursuant to private settlement agreements with other plaintiffs

– TI with regard to the OU-1 Consent Decree and Agere with

regard to both OU-1 and OU-2 Consent Decrees. Their

payments under the private settlement agreements were

combined into group trust accounts with money paid by the

signatories to the consent decrees, and those group trust
34

accounts were then used to fund the OU-1 and OU-2 work.

Carpenter argues that, in making those payments into group

trust accounts, Agere and TI did not “incur” their own costs of

response. Instead, says Carpenter, Agere and TI paid into the

group trust accounts only to “satisfy a settlement agreement,”

and, pursuant to Atlantic Research, those payments cannot be

considered “costs incurred,” as required under § 107(a).

We disagree and will affirm the District Court in

allowing Agere and TI to pursue § 107(a) claims for the

amounts they have contributed to trust accounts funding the

OU-1 and OU-2 work. We do not think the Supreme Court

intended to deprive the word “incurred” of its ordinary

meaning. Agere and TI put their money in the pot right along

with the money from the signers of the consent decrees. The

costs they paid for were incurred at the same time as the costs

incurred by the signers of the consent decrees and for the same

work. Those costs were incurred in the ordinary sense that a

bill one obligates onself to pay comes due as a job gets done.

While the Supreme Court in Atlantic Research did hold that

§ 107(a) permits a PRP to recover only costs it has “incurred,”

and did suggest that costs paid pursuant to a settlement

agreement are not such costs, those statements were not made

in the context of payments made for on-going work.

Moreover, the Court appears to have made its statement

about the unavailabilityof § 107(a) relief on the assumption that

“a PRP that pays money to satisfy a settlement agreement ...

may pursue a § 113(f) contribution.” Id. In other words, while

the Court indicated that parties seeking reimbursement for

settlement payments do not have a § 107(a) claim, a basic

premise of that holding was that those parties do have a § 113(f)

contribution claim for their settlement amounts. We do not

believe that the Court intended its holding to reach a

circumstance like this, where Agere and TI do not have § 113(f)

contribution claims for the settlement sums because those
35

parties were never themselves sued for those amounts by the

EPA or by other PRPs. See Cooper Indus., Inc., 543 U.S. at

168 (explaining that § 113(f) authorizes contribution claims

only for PRPs who have been subject to a civil action under

CERCLA). 

If we were to hold that Agere and TI cannot pursue

§ 107(a) claims for their settlement payments, they would be

completely barred from recovering those amounts under

CERCLA. To accept that outcome, one must imagine that

Congress intended to penalize cooperative cleanup efforts by

excluding from CERCLA’s broad recovery provisions all PRPs

who, like Agere and TI, agree to come forward and assist in a

cleanup even though they have not been subjected to a cost

recovery suit. Such an intent is extremely unlikely, since the

goal of CERCLA is “to encourage private parties to assume the

financial responsibility of cleanup by allowing them to seek

recovery from others.” Key Tronic Corp. v. United States, 511

U.S. 809, 819 n.13 (1994); see also W.R. Grace & Co. v. Zotos

Int’l, Inc., 559 F.3d 85, 88 (2d Cir. 2009) (“[I]t has now been

over twenty-five years since CERCLA’s enactment, and

although many of the provisions remain perplexing, the statute’s

primary purposes are axiomatic: (1) to encourage the timely

cleanup of hazardous waste sites; and (2) to plac[e] the cost of

that [cleanup] on those responsible for creating or maintaining

the hazardous condition.” (alterations in original) (citations

omitted) (internal quotations omitted)). 

When a company in the position of Agere and TI has not

yet been sued by the EPA but appreciates that it bears some

responsibility for cleaning up hazardous waste, the language of

CERCLA, which is intended to encourage cleanup, ought not

be interpreted to discourage participation in cleanup if a more

consistent construction of the statute is plausible. Private actors

are not likely to settle and step forward unless they know that

they can seek some of the amounts they will contribute, just like
 We recognize that the OU-2 Consent Decree included a 32

lump payment of $7.4 million in “past costs” to the EPA, and

that Agere accepted responsibility for this amount as well.

Specifically, Agere’s share for these past costs was $83,000.

While this specific amount could arguably be considered

reimbursement rather then co-funding, the parties do not address

this issue explicitly. Particularly, in light of the policy reasons

outlined above, however, we are content to give the benefit of

36

those who have been sued by the EPA or a PRP, or those who

voluntarily clean up a site in the first instance. To encourage

participation in environmental cleanup, the statute should be

read in a way that assures PRPs like Agere and TI that they can

later bring a § 107(a) cost recovery claim for the amounts they

pay to help with the cleanup, even if those costs are related to

a settlement obligation. Cf. Steven Patrick, Superfund: Second

Circuit Says EPA Settlement Approval Is Unnecessary to

Trigger Contribution Right, 41 Daily Envtl. Rep. (BNA) A-10

(Mar. 4, 2010) (citing a Department of Justice amicus brief filed

in Niagara Mohawk Pwr. Corp., stating that “[i]t is important

that PRPs ... that ... engage in response activities in settlements

with states have appropriate CERCLA claims for contribution

against other PRPs [because o]therwise PRPs will decline to

enter into administrative settlements and instead wait for the

filing of civil actions to ensure they can sue for contribution

under Section 113(f)(1).”). Our holding is buttressed by the

Supreme Court’s description of § 107(a) and § 113(f) as

“overlapping” remedies. Atl. Research Corp., 551 U.S. at 139

n.6. It would be a stretch to describe the remedies as

“overlapping” if they are actually intended to exclude an entire

group of PRPs from both remedies. 

Accordingly, we affirm the District Court’s holding that

TI (with regard to OU-1) and Agere (with regard to OU-1 and

OU-2) have § 107(a) cost recovery claims to recoup costs paid 32
the doubt to Agere and believe that it is entitled to recover that

amount.

37

for cleanup work, even though the payments were made

pursuant to settlement agreements. Those claims may thus go

forward on remand. 

E. The District Court’s Equitable Allocation for the

Plaintiffs’ Costs of Performing Work Under the

OU-1 and OU-2 Consent Decrees

i. Background

The District Court concluded that Cytec, Ford, and SPS

had both § 107(a) and § 113(f) claims for the costs of

performing work pursuant to the OU-1 and OU-2 Consent

Decrees, and that TI had such claims with respect to the OU-2

Consent Decree. Carpenter argues that those plaintiffs have

§ 113(f) claims only, for the costs they incurred performing the

work required by the consent decrees. They do not have

§ 107(a) claims, Carpenter says, because once a party has been

sued or has settled under CERCLA its sole avenue of relief is

a § 113(f) claim. 

ii. Sections 107(a) and 113(f)

The Supreme Court, in Atlantic Research, left open the

precise question raised by Carpenter’s argument, namely,

whether plaintiffs in the position of Cytec, Ford, SPS, and TI

can bring a §107(a) claim in addition to a § 113(f) claim. The

Court said,

We do not suggest that §§ 107(a)(4)(B) and

113(f) have no overlap at all. For instance, we

recognize that a PRP may sustain expenses
38

pursuant to a consent decree following a suit

under ... § 107(a). In such a case, the PRP does

not incur costs voluntarily but does not reimburse

the costs of another party. We do not decide

whether these compelled costs of response are

recoverable under § 113(f), § 107(a), or both.

For our purposes, it suffices to demonstrate that

costsincurred voluntarily are recoverable only by

way of § 107(a)(4)(B), and costs of

reimbursement to another person pursuant to a

legal judgment or settlement are recoverable only

under § 113(f). Thus, at a minimum, neither

remedy swallows the other ... .

Id. (citations omitted); see also Key Tronic Corp. 511 U.S. at

816 (stating that the provisions provide “similar and somewhat

overlapping remed[ies]”). Claims by Cytec, Ford, and SPS for

costs of performing the OU-1 and OU-2 work, and TI’s costs

associated with OU-2, fall into the region of doubt identified by

the Supreme Court in Atlantic Research. The costs were neither

“incurred voluntarily,” because the parties were in fact sued by

the EPA, nor were they “reimbursed to another party,” because

they were expended in performing the OU-1 and OU-2 work

directly. Rather, they are costs incurred pursuant to a consent

decree following a CERCLA suit. See W.R. Grace & Co., 559

F.3d at 93 n.7 (“As the Supreme Court suggested, it may well

be that a party who sustains expenses pursuant to a consent

decree following a suit under [CERCLA] may have a cause of

action under either section 113(f), section 107(a), or both.”).

The District Court correctly recognized that the claims of

Cytec, Ford, SPS, and TI associated with the consent decrees

fall within an “open question of law.” (App. at 1:A59).

Without explanation, the Court concluded that those plaintiffs

have both § 113(f) and § 107(a) claims. Thus, while it appears
 We read the District Court’s opinion as proceeding under 33

§ 113(f) for the following reasons. First, the Court said as much

when it held that “cooperation with the government is also an

appropriate equitable factor to consider in allocating response

costs under § 113(f).” (App. at 1:A73.) Second, the Court spent

two pages of its opinion outlining the elements a plaintiff must

prove under § 113(f), and then organized its analysis based on

those elements. And, third, the Court held that “[c]ulpability is

an appropriate equitable factor in resolving contribution claims”

(App. at 1:A72), which, by use of the word “contribution,”

suggests that the District Court allocated liability under § 113(f).

In addition, despite arguing that they have § 107(a) claims in

addition to their § 113(f) claims, the plaintiffs concede that “the

District Court determined the shares of each party without

regard to those § 107(a) claims.” (Appellees’ Ans. Br. at 47.)

39

that the Court went on to allocate liability under § 113(f), we 33

are squarely confronted with the issue left open in Atlantic

Research: whether, in addition to §113(f) claims, plaintiffs

such as these have §107(a) claims for expenses sustained

pursuant to a consent decree following a CERCLA suit. This

is not simply a matter of academic interest. Were we to find

that these parties have § 107(a) claims in addition to § 113(f)

claims, the District Court could, on remand, decide to allocate

liability under § 107(a) and potentially impose 100 percent of

the liability on Carpenter pursuant to the joint and several

liability available under that provision of the statute. For that

reason, the parties have heavily briefed and vigorously argued

the issue.

In Atlantic Research, immediately after setting forth this

unanswered question, and after suggesting that there is, in fact,

some “overlap” between § 107(a) and § 113(f), the Supreme

Court stated that “a defendant PRP in such a § 107(a) [joint and

several liability] suit could blunt any inequitable distribution of
40

costs by filing a § 113(f) counterclaim.” 551 U.S. at 140. The

Court explained that any fear that “PRPs will eschew equitable

apportionment under § 113(f) in favor of joint and several

liability under § 107(a)” is mitigated by the fact that “a § 113(f)

counterclaim would necessitate the equitable apportionment of

costs among the liable parties, including the PRP that filed the

§ 107(a) action.” Id. at 138, 40. Unfortunately, the potential

for an inequitable result remains in this case because Carpenter

would not be able to bring a § 113(f) counterclaim against

Cytec, Ford, SPS, and TI. Section 113(f)(2) would prevent it.

That subsection states that “[a] person who has resolved its

liability to the United States or a State in an administrative or

judicially approved settlement shall not be liable for claims for

contribution regarding matters addressed in the settlement.” 42

U.S.C. § 9613(f)(2). Thus, if we allowed Cytec, Ford, SPS, or

TI to bring a § 107(a) claim here and assert joint and several

liability against Carpenter, Carpenter would be barred from then

bringing a contribution counterclaim against them because

those plaintiffs have entered into consent decrees, i.e., judicially

approved settlements with the EPA. As a result, those plaintiffs

would be able to recover 100 percent of their own costs against

Carpenter, even though they themselves are actually responsible

for, and have stipulated that they are responsible for, a

significant portion of the contamination at the Boarhead Site. 

As Carpenter summarized it, “[Plaintiffs who had

entered into consent decrees with the EPA] would not be

subject to equitable allocation. They would have no liability

because they would be able to assert joint and several liability

against the other parties.” (Oral Argument Tr. at 9-10.) This is

a perverse result, since a primary goal of CERCLA is to make

polluters pay. Indeed, the Supreme Court expressed concern

about this very type of result when it recognized that, without

defendants having the availability of a § 113(f) counterclaim,

PRP plaintiffs might “eschew equitable apportionment ... in

favor of joint and several liability under § 107(a).” Atl.
41

Research Corp., 551 U.S. at 138. The Court’s explanation that

the harshness of joint and several liability is mitigated by the

possibility of a § 113(f) counterclaim is of no comfort to

defendants like Carpenter. 

Further, even under joint and several liability, a district

court is not supposed to fashion an award that allows a plaintiff

to recoverfrom a defendant costs associated with the cleanup of

waste that the plaintiff itself has contributed to the site. See

THE UNIFORM COMPARATIVE FAULT ACT § 2 cmt. [hereinafter

“U.C.F.A.”] (indicating that even when imposing joint and

several liability, courts must nevertheless “set forth ... the

equitable share of the total obligation to the claimant for each

party, based on his established percentage of fault ... [so that]

each party should eventuallybe responsible for [that amount] as

a result of the rules of contribution.”). That is to say, while

joint and several liability allows a plaintiff to collect from a

single defendant the collective liability of all defendants, it does

not permit a plaintiff to recover from a defendant the costs to

undo what the plaintiff itself has done. Yet this is precisely

what would occur if Carpenter were barred from bringing a

contribution counterclaim against the plaintiffs after the

plaintiffs recovered from Carpenter under joint and several

liability.

Thus, we hold that plaintiffs in the position of Cytec,

Ford, SPS, and TI, who if permitted to bring a § 107(a) claim

would be shielded from contribution counterclaims under

§ 113(f)(2), do not have any § 107(a) claims for costs incurred

pursuant to consent decrees in a CERCLA suit. Cf. Niagara

Mohawk Pwr. Corp., 2010 WL 626064, at *8 (holding that a

PRP who had settled its CERCLA liability by consent order

with a state environmental agency had a § 113(f)(3)(B) claim

but not a § 107(a) claim, and saying, “[c]learly, the two sections

have differing restrictions and different purposes.”). We need

not decide the contours of the overlap postulated in Atlantic
42

Research because, regardless of whether § 107(a) and § 113(f)

remedies overlap at all, they cannot properly be seen to overlap

here. 

iii. The District Court’s Equitable Allocation

Under § 113(f)

As discussed above, Cytec, Ford, and SPS, have only

§ 113(f) claims for costs they incurred pursuant to the OU-1 and

OU-2 Consent Decrees, and TI is in the same position with its

OU-2 costs. Because the District Court resolved those claims

under § 113(f) “by determining the equitable shares of [all of

the parties]” (App. at 1:A61), we must now address the Court’s

allocation of cleanup costs.

The plaintiffs concede that they had to “put on evidence

sufficient for the District Court to determine which equitable

factors were appropriate and to apply those factors to the facts

to determine each party’s share.” (Appellees’ Ans. Br. at 38.)

At trial, the “[p]laintiffs’ theory of the case wasthat the volume

of each party’s waste disposed of at the Site was the most

appropriate equitable factor for allocation.” (Id.) The District

Court adopted that theory, holding that the “[v]olume of waste

disposed at the Site is the most equitable manner of cost

allocation and the Court is not hesitant to use this as its primary

equitable factor.” (App. at 1:A70-A71.) The Court further held

that, “because culpability and cooperation are significant

equitable considerations, they will be considered in the

allocation equation.” (App. at 1:A71.) 

On appeal, Carpenter argues that the only evidence the

plaintiffs introduced as to the volume of waste attributable to

parties other than NRM and Carpenter consisted of the

following three stipulations: (1) the June 19, 2008 stipulation

among all of the parties as to the waste that DCC collected from

fifteen of the defendants (not including Carpenter’s, NRM’s, or
 Despite the plaintiffs’ argument to the contrary, Carpenter 34

preserved this argument at trial. During trial, when the plaintiffs

moved to admit the June 23 stipulation into evidence,

rd

Carpenter objected by reminding the Court that it had not joined

in the stipulation. In response, the plaintiffs’ counsel stated to

the Court, “Your honor, we’re not asking Defendant Carpenter

to stipulate to any of these facts.” (App. at 3:A1198.) Carpenter

then responded, “That’s fine so long as it is not a stipulation

among all of the parties relating to the drawing of waste that was

hauled by [DCC] from the same company.” (Id.) Moreover,

when the Court confirmed that it was “a stipulation of limited

scope which doesn’t involve [Carpenter],” Carpenter responded,

“[W]e’re just making a record that we do not agree or stipulate

or we’re not waiving any kind of objection ... .” (App. at

3:A1199.) The Court then asked the plaintiffs’ counsel whether

he thought Carpenter had “waived any objection,” to which the

plaintiffs’ counsel responded, “No your Honor.” (Id.) Finally,

at oral argument before us, the plaintiffs’ counsel conceded that

“Carpenter chose not to agree” with the stipulation, and that

Carpenter had voiced its objection at trial. (Oral Argument Tr.

at 28.) The issue was thus amply preserved in the District Court.

43

H&H’s waste volumes); (2) the June 23, 2008 stipulation

between the plaintiffs and H&H (that Carpenter did not sign) as

to the volume of waste that DCC collected from plaintiffs Ford,

Cytec, and SPS, and from former defendant H&H; and (3) the

July 1, 2008 stipulation between the plaintiffs, Carpenter, and

H&H, stipulating to the fact that the waste described in the June

23 stipulation was CERCLA hazardous waste. Carpenter rd

asserts that the June 23 “stipulation is not competent evidence rd

of the volumes of waste that DCC acquired from [the] plaintiffs

and [from] H&H, because Carpenter, the only party against

whom it [is] being used, did not stipulate to those volumes.”34

(Appellant’s Op. Br. at 43.) Thus, the argument runs, “if you

don’t have the plaintiffs’ volume ... you don’t know the total
44

volume at this site. If you don’t know the total volume at the

site, you can’t allocate between all the parties.” (Oral Argument

Tr. at 17.) 

The plaintiffs, in response, argue that they offered

sufficient evidence for the Court to determine the volume of

waste that each party left at the site since they “offer[ed] into

evidence the stipulations of all parties to the volumes of waste

hauled by DCC from each [p]laintiff and each [d]efendant

(other than Carpenter and NRM) ... .” (Appellee’s Ans. Br. at

39.) The plaintiffs contend that they “thus had only to offer

additional evidence sufficient for the District Court to determine

the volumes of Carpenter and NRM waste that were disposed

of at the Site, thereby finding all of the facts necessary to apply

its primary equitable factor [i.e., waste volume].” (Id. at 40.)

Specifically, the plaintiffs argue that “[a]ll of these stipulations

were properly admitted into the record, whether or not

Carpenter was an original signatory to the June 23 stipulation.” rd

(Id. at 42-43 n.14.) 

Forced to confront the fact that Carpenter did not sign

the June 23, 2008 stipulation, and thus never stipulated to the

plaintiffs’ and H&H’s waste volumes, the plaintiffs advance

the following theory on appeal:

Plaintiffs and H&H stipulated on June 23, 2008

as to the nature and volume of H&H waste

disposed of at the Site and the volumes of waste[]

of Plaintiffs that were hauled by DCC. Then

Plaintiffs, H&H, and Carpenter entered into a

July 1, 2008 stipulation clarifying that the June

23 stipulation was intended (by referencing no rd

volumes for TI and Agere) to include the

conclusion that no waste from TI and Agere was

hauled by DCC, and that the wastes of the other

three Plaintiffs referenced in the June 23rd
After oral argument, the plaintiffs’ counsel sent a letter to 35

our Court pursuant to Fed. R. App. P. 28(j) to address what he

described as a “misstatement during oral argument ... that

Appellees did not introduce evidence at trial concerning the

volumes of Cytec’s, SPS’s, and Ford’s wastes that were

disposed of at the Boarhead Farms Superfund Site.” Letter from

Glenn A. Harris, Counsel for Plaintiffs, to Marcia M. Waldron,

Clerk of the United States Court of Appeals for the Third Circuit

(Dec. 18, 2009) (on file with the Court). Specifically, the

plaintiffs’ counsel points to several exhibits moved into

evidence at trial, including purchase orders from Ford and SPS

to DCC, DCC invoices to Ford and SPS, and filings made with

the New Jersey Department of Environmental Protection that

evidence certain volumes of Cytec’s waste disposed of at the

Site. (Id.) The plaintiffs’ position is that “[t]he exhibits are in

the trial record and thus can be relied upon” by our Court. (Id.)

However, even if we were to consider those exhibits, they

are not evidence of the plaintiffs’ waste volumes transported by

DCC to the Boarhead Site during the relevant time period. They

appear to be only a collection of invoices and purchase orders

with no testimony to explain what they mean. Moreover,

plaintiffs have not directed us to anything indicating that they

argued at trial that those documents were evidence of their waste

volumes. In fact, in the plaintiffs’ reply to Carpenter’s proposed

45

stipulation ... contained CERCLA hazardous

substances. By executing the second [July 1 ]

st

stipulation, Carpenter also joined in the first one

as well.” 

(Id. (internal citations omitted) (emphasis added).) The

plaintiffs thus argue that, because the July 1 stipulation refers st

to the June 23 stipulation, the later one was “intended” to rd

incorporate the earlier. (Id.)

35
findings of fact, they stated that the volume evidence for

plaintiffs and H&H came from the stipulations. The District

Court’s opinion reveals that the Court relied solely on those

stipulations to make findings of fact as to the plaintiffs’ waste

volumes and did not rely on the evidence discussed in the recent

28(j) letter to our Court. 

46

The District Court accepted that theory, stating that

“[a]lthough Carpenter did not enter into [the June 23rd

stipulation], it is nonetheless evidence of plaintiffs volumetric

shares.” (App. at 1:A71 n.43.) From the Court’s opinion, it

appears that the stipulations were the only evidence the Court

considered with regard to the plaintiffs’ and H&H’s waste. All

other volume evidence discussed by the District Court relates to

Carpenter’s or NRM’s waste. 

iv. The June 23 Stipulation is Not an rd

Admission that is Admissible Against

Carpenter

The June 23 stipulation is the only one that included the rd

plaintiffs’ and H&H’s volumes of waste, and Carpenter did not

sign it. The July 1, 2008 stipulation does not incorporate by

reference the June 23, 2008 stipulation, nor does it even address

the volumes of waste in the earlier stipulation. It reads, in

relevant part, that “[t]he waste from Plaintiff companies

referenced in paragraph 5 of the June 23, 2008 [s]tipulation ...

contained at least some CERCLA hazardous substances. There

were no wastes hauled by [DCC] from [TI, Agere,] or their

predecessors.” (App. at 14:A6398.) When plaintiffs moved to

admit the June 23 stipulation at trial, Carpenter pointedly rd

objected, as it had before, to any substantive use of the

stipulation, stating “[w]e’re just making a record that we do not

agree or stipulate or we’re not waiving any kind of objection to

paragraph 5 of [the June 23 ] stipulation.” (App. at 3:A1199; rd

see also supra note 34.)

It would be extraordinary, in light of Carpenter’s

decision not to sign the June 23 stipulation and its repeated

rd
 The argument went as follows: 36

Plaintiffs’ Counsel: [T]he stipulation is admitted

into evidence as proof

against my client of the

three entities’ volumes.

They could have disputed it.

But its not that there’s no

evidence.

. . .

The Court: Your argument is this was,

in effect, an admission.

Plaintiffs’ Counsel: Exactly.

47

and emphatic objections, to allow the use of the stipulation to

bind it, and to permit the stipulation to become exactly what

Carpenter had a right to say it was not, namely evidence against

it of the volumes of waste at issue. The District Court should

not have decided the plaintiffs’ and H&H’s volume of waste

from a stipulation that Carpenter did not join. Particularly in a

case like this, where the question is who bears what share of the

responsibility among those who are culpable, it is no mere

technical violation of the rules of evidence to allow some

parties to stipulate to their share of responsibility and then later

have that stipulation be used as the basis of liability against

another party. No matter how culpable a polluter may be – and

in this instance, Carpenter gave the District Court ample reason

to view it as highly culpable – liability can only be assigned on

the basis of procedures consistent with the Due Process Clause

of the Fifth Amendment of the United States Constitution and

the Federal Rules of Evidence. Cf. Dawson v. Delaware, 503

U.S. 159, 178 (1992) (“The Due Process Clause ... traditionally

has regulated questions about the improper admission of

evidence.”). 

Before us, plaintiffs’ counsel argued that the stipulation

was “properly admitted into evidence” because it constitutes an

admission by the plaintiffs. This, of course, misapprehends 36
. . .

Plaintiffs’ Counsel: That’s exactly correct. We

admitted and we stipulated

with [H&H] that those are

the volumes for those three

companies. ... [I]t was in

evidence. The judge used it.

I mean he counted on it.

Look on, look at the

opinion. He counts those

volumes against me.

(Oral Argument Tr. at 23-24.) 

48

the issue entirely. The question isn’t whether the stipulation is

an admission by the plaintiffs and therefore binding as to them.

The question is whether the plaintiffs’ self-serving stipulation

can bind Carpenter. 

Taking a stipulation that a party has chosen not to sign

and using it as evidence against the non-signatory violates at

least the rule against hearsay. In general, hearsay “is a

statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” FED. R. EVID. 801(c). Hearsay is not

admissible unless it falls under one of the exceptions to the

hearsay rule contained in the Federal Rules of Evidence. FED.

R. EVID. 802. One thing which the rules define as non-hearsay

is an admission by a party-opponent, defined as a “party’s own

statement, in either an individual or representative capacity” that

is “offered against” that party. FED. R. EVID. 801(d)(2)(A).

Thus, whether a statement constitutes inadmissible hearsay, or

is instead considered not to be hearsay at all because it is an

admission of a party-opponent, depends on both who made the

statement and whom it is being offered against. Here, while the

stipulation might well be admissible non-hearsay if it were

being offered against the parties who signed it, it should not

have been admitted against Carpenter, since Carpenter did not

sign it and no exception to the hearsay rule was advanced by the
Although no exception to the hearsay rule is immediately 37

apparent as being applicable here, we do not decide that none

applies to the June 23 stipulation, since that issue is not before rd

us. We decide only that the June 23 stipulation was not rd

incorporated into any stipulation Carpenter did sign and that it

is not admissible against Carpenter as an admission because

Carpenter admitted nothing by it.

49

plaintiffs. Cf. Brzozowski v. Corr. Physician Servs., Inc., 360 37

F.3d 173, 179 (3d Cir. 2004) (cautioning that a plaintiff could

not rely on a consent judgment against a party because that

party did not sign the “stipulation ... and must be afforded the

opportunity to defend itself against the claim de novo.”). 

Because the June 23 stipulation should not have been rd

admitted against Carpenter, the District Court did not rely on

competent evidence as to four of the parties’ waste volumes.

As a result, Carpenter is correct in its assertion that the Court

did not articulate an adequate basis for its decision as to the

total volume of waste at the Boarhead Site. The plaintiffs

concede, as they must, that it was their burden to prove each

party’s “fair share” or “size of the pie.” (Oral Argument Tr. at

24-25.) They did not meet that burden, and, without a mention

of any other evidence of the matters covered by the June 23rd

stipulation, it was impossible for the District Court to perform

an equitable allocation of waste volumes among Carpenter and

the other PRPs. Thus, the District Court’s volume allocation

constitutes an abuse of discretion and cannot stand. 

v. Other Evidence Regarding Waste Volumes

That conclusion, however, does not end the matter.

While the stipulations are inadmissible unless a hearsay

exception applies, there may well be other evidence of record

that could be dispositive as to plaintiffs’ and H&H’s waste

volumes. For example, in a footnote, the District Court

indicated that, because the plaintiffs stated their volumes of

waste and other parties’ volumes of waste in answers to

contention interrogatories, and because Carpenter moved those

answers into evidence, “these answers corroborate the volumes
 See infra Section III.F.i. 38

 An adoptive admission refers to “evidence of other conduct 39

of a party manifesting circumstantially the party’s assent to the

truth of a statement made by another.” 2 GEORGE E. DIX, ET AL.,

MCCORMICK ON EVIDENCE § 261 (Kenneth S. Broun, ed., 6th

ed., 2009) [hereinafter “McCormick”]. Adoptive admissions in

federal courts are governed by Federal Rule of Evidence

801(d)(2)(B), which provides that a statement is non-hearsay if

“[t]he statement is offered against a party and is ... (B) a

statement of which the party has manifested an adoption or

belief in its truth.” FED.R. EVID. 801(d)(2)(B). Here, Carpenter

not only cited to plaintiffs’ responses to contention

interrogatories, but it moved those responses into evidence,

relied on them, and continues to rely on them on appeal. In

other words, Carpenter urged the District Court – and now urges

us – to rely on those responses as competent evidence.

Carpenter thus may be viewed as showing its “assent to the truth

of a statement made by another.” MCCORMICK, supra at § 261

(explaining that “the introduction of evidence by a party” may

constitute an adoptive admission “depend[ing] upon whether the

particular circumstances warrant the conclusion that adoption in

fact occurred”). However, we leave that determination to the

District Court in the first instance.

50

of plaintiffs’ waste disposed of at the Site.” (App. at 1:A71

n.43; see also App. at 14:A6416-6498; 6485.) Carpenter

concedes that it did, indeed, introduce into evidence plaintiffs’

responses to contention interrogatories. (See Appellant’s Reply

Br. at 25.) Moreover, in another part of its argument –

concerning alleged error by the District Court in determining

defendant NRM’s waste volumes – Carpenter relied, and

continues to rely, on those very same responsesto argue its own

point. (See App. at 1:A39 n.21; Appellant’s Reply Br. at 25.) 38

It thus may be that the answers to contention interrogatories

constitute admissions that Carpenter has adopted.39

The District Court, which is far more familiar with the

context in which Carpenter moved to admit those responses,

and the ways in which Carpenter argued their relevance, is in a

better position to consider that issue. The Court may also
51

decide that, in the unusual circumstances of this case, the record

will need to be reopened to consider the equitable allocation

again, and, in that context, it may review any admissible

evidence as to the plaintiffs’ and H&H’s waste volumes. Since

it may be necessary to reopen the record to address other

questions, like the time period during which the EPA completed

its removal action, issues of waste volumes could be addressed

at the same time. 

F. Other Contentions Regarding the District Court’s

Equitable Allocation

Carpenter contends that, in addition to the improper

admission of the June 23 stipulation as volume evidence for rd

the plaintiffs and H&H, the District Court erred in its equitable

allocation analysis in three other ways. First, Carpenter argues

that the Court miscalculated the volumetric share of waste that

former defendant NRM sent to the Boarhead Site. Second, it

argues that the District Court did not consider other defendants’

culpability and lack of cooperation with the EPA to the same

extent it considered Carpenter’s behavior. Finally, Carpenter

says that, in allocating liability, the Court should have

considered the dollar amounts that the plaintiffs obtained from

settling defendants, rather than those defendants’ volumetric

share of waste. Each of those contentions is unpersuasive.

i. NRM’s Waste

 Because the parties did not stipulate to NRM’s waste,

the Court heard testimony from several DCC drivers, all of

whom were questioned about transporting NRM’s waste to the

Boarhead Site. The testimony produced the following evidence.

One driver picked up waste from NRM but transported all of it

to another location, not the Boarhead Site. A second driver

never went to NRM to pick up waste. Two other drivers

transported all NRM waste to a third location, not the Boarhead

Site. June Stephens, another driver, was unclear as to whether

she had driven a truck containing NRM waste, and, if she had,

whether or not she had disposed of that waste at the Boarhead

Site. Finally, a driver named Manfred (“Freddie”) DeRewal, Jr.
52

testified that he took six to ten tankers of NRM waste to the

Boarhead site, but took the remainder of NRM’s waste to other

locations. 

Based on that testimony, the District Court found that

32,000 gallons of NRM’s waste was disposed of at the

Boarhead Site. According to the Court, 

Freddie DeRewal took six to ten tankers of NRM

waste to the [Site] ... . As a tanker truck held

approximately 4,000 gallons of waste, DCC

disposed of between 24,000 and 40,000 gallons

of NRM waste at the Site ... . The Court finds

that DCC disposed of 32,000 gallons of NRM

waste at the Site during the Gap Period.

(App. at 1:A36.) The District Court thus chose the halfway

point in the 24,000 and 40,000 gallon range.

Carpenter offers two specific contentions with regard to

the NRM waste figure. First, it argues that the plaintiffs gave

more definite figures in response to contention interrogatories

and that the Court should have used those figures. Second, it

argues that June Stephens’s testimony demonstrates that she

did, in fact, collect waste from NRM. As to the first point, there

was nothing improper in the District Court’s decision to give

greater weight to witness testimony than to contention

interrogatory answers. As to the second, Stephens stated

explicitly that, instead of the waste she collected being NRM’s,

it “could have been [waste belonging to] another one of these

outfits.” (App. at 15:A878.) Given the indecisiveness of

Stephens’s testimony, the District Court did not clearly err in

interpreting her testimony the way that it did. Considering the

testimony before it regarding the handling of NRM’s waste, the

District Court could properly determine that 32,000 gallons of

waste were fairly attributable to NRM. 
53

ii. The Culpability and Lack of Cooperation

of Settling Defendants

The District Court concluded that, in addition to volume,

culpability and cooperation with the government should also be

considered in allocating response costs. Because “Carpenter

relinquished its potent waste acids to a known polluter,” (App.

at 1:A72), and because Carpenter did not cooperate with the

EPA, the Court decided to allocate to Carpenter an additional

17.4% of the total clean-up cost: 8.7% for working with a

known polluter and 8.7% for not cooperating with the EPA.

(App. at 1:A73-A74.)

Carpenter does not dispute the District Court’s findings

of fact concerning its repeated business dealings with DCC and

related companies or the refusal to participate in cleaning up the

Boarhead Site when asked to do so by the EPA. Rather,

Carpenter contends on appeal that the District Court erred in

ignoring the same kind of evidence with regard to other parties.

We disagree. The District Court found that Carpenter’s

culpability was of a different character than any other

defendant’s because Carpenter had actual knowledge of

DeRewal’s polluting activities and yet twice chose to hire his

companies to dispose of toxic waste. Carpenter introduced no

evidence demonstrating that any other party acted with the same

callous disregard as it did in its dealings with DeRewal’s

companies or with the EPA. The record reveals that Carpenter

was particularly contemptuous of the law and public safety in

the way it stonewalled participation in the government’s

cleanup efforts at the Boarhead Site. These are valid bases for

viewing Carpenter as occupying a category of culpability all its

own in this case. Thus, the District Court’s decision to allocate

an additional 17.4% of liability to Carpenter was certainly not

an abuse of discretion, and the increased liability need not be

revisited on remand.
54

iii. Settlement Amounts

The District Court chose to use the waste volumes of the

settling defendants, rather than the dollar amounts that those

settling defendants paid, as the primary equitable factor for its

allocation. The District Court explained that it was adopting the

U.C.F.A. to determine the settling parties’ shares of liability.

That Act states that “[t]he claim of the releasing person against

other persons is reduced by the released person’s equitable

share of the obligation ... .” U.C.F.A. § 6. Thus, the Court

concluded that, since it had used waste volumes to determine

the equitable shares of the remaining PRPs, the settling

defendants’ liability should be “reduced by the settling party’s

equitable share of the liability, not by the dollar value of the

settlement.” (App. at 1:A71 n.43.) The District Court had in

fact held four years before trial that “the liability of the NonSettlers [will be] determined without regard to the dollar

amounts of previous settlements.” (App. at 1:A85.)

Carpenter argues that the Court erred in concluding that

the dollar value of the settlements were not relevant to the

equitable allocation. But the District Court did not err. First,

practically speaking, the settlement amounts are not of record

and so the District Court could not have used them as an

equitable factor. Second, as the District Court noted, the

plaintiffs have every incentive to settle for as close to the

settling parties’ shares as possible because the plaintiffs bear the

risk that those parties’ shares of the cleanup costs may be

greaterthan the settlement amount. Thus, the volume allocation

likely reflects the dollar amounts. Finally, to the extent waste

volumes and settlement dollars diverge, it was well within the

Court’s discretion to determine that the former, which are

historical facts developed before litigation, are a better measure

of fault than the latter, which are necessarily colored by

litigation concerns. In short, while the District Court must

revisit certain PRPs’ volumes for the reasons described above,

there was nothing wrong with its choosing to use volume, rather

than the dollar value of the settlements, as the basis for

allocating liability among the parties. 
Carpenter also argues that even if the plaintiffs could state 40

a § 702(a) cost recovery claim under the HSCA, that claim

would be barred by HSCA’s statute of limitations provision,

contained in 35 PA. STAT. ANN. § 6020.1114. We need not

address that contention because no statute of limitations

argument has been made pertaining to § 107(a). All the statute

of limitations arguments that the parties have made to us pertain

to § 113(f). 

55

G. The Pennsylvania Hazardous Sites Cleanup Act

Lastly, Carpenter argues that plaintiffsCytec, Ford, SPS,

and TI do not have viable cost recovery claims under § 702(a)

of the HSCA for the same reasons that they do not have a §

107(a) claim under CERCLA. Neither party disputes that

liability under the HSCA mirrors liability under CERCLA and

that § 702(a) of the HSCA mirrors § 107(a) of CERCLA.

Rather, Carpenter simply repeats its contentions as to why it

believes the District Court erred in holding that Cytec, Ford,

SPS, and TI have § 107(a) claims for the costs they incurred

under the OU-1 and/or OU-2 Consent Decrees. 

The District Court correctly held that Carpenter’s

liability “is neither greater nor lesser under the HSCA.” (App.

at 1:A76.) Indeed, the cost recovery and contribution

provisions in HSCA are virtually identical to those in CERCLA.

Compare 35 PA.STAT.ANN.§§ 6020.702(a)(3), 705(a), with 42

U.S.C. §§ 9607(a)(4)(B), 9613(f). Thus, on remand, the

District Court should continue to address the CERCLA and

HSCA issues in this case identically. 

40

IV. Conclusion

We recognize the many difficulties inherent in

adjudicating this highly complex and contentious case and

express appreciation for the clarity with which the District

Court set forth its reasoning in support of the equitable

allocation it determined. However, for the reasons discussed

above, we must vacate the judgment and remand the case.
 Again (see supra n. 12), we note that the District Court must 41

determine on remand whether Agere’s claims are held by it or

by assignees.

56

In summary, first, we ask the District Court to make a

clear and unequivocal finding, if possible, as to when the EPA

completed its removal action. To the extent the District Court

decides it must reopen the record in order to make that finding,

it may do so. Such a finding will allow the District Court to

determine whether the EPA’s December 6, 2001 filing of the

suit to enforce the OU-2 Consent Decree was timely, and thus

whether there is a time-bar to plaintiffs’ recovering the

approximately $7 million they paid to reimburse the EPA for

past costs. Further, if the District Court finds that the EPA

initiated “on-site physical construction” of the remedial action

within three years of the completion of its removal action, it

may apply the six-year statute of limitations exception contained

in § 113(g)(2)(B). If the District Court finds that the EPA’s

December 6, 2001 suit was not time-barred, and that the

plaintiffs are able to recover for past costs, the Court should

make a more exact finding as the amount that the plaintiffs paid

to reimburse the EPA for past costs.

Second, the District Court should permit TI (with regard

to OU-1) and Agere (with regard to OU-1 and OU-2) to go 41

forward with their § 107(a) cost recovery claims to recoup costs

paid as part of the shared expense of cleaning up the Boarhead

Site. 

Third, because we hold that Cytec, Ford, and SPS, as

well as TI(with regard to OU-2), are shielded from contribution

counterclaims under § 113(f)(2) and therefore do not have

§ 107(a) claims for costs incurred pursuant to the consent

decrees, the District Court should again proceed solely under

§ 113(f) as to those claims.

Fourth, while proceeding under § 113(f) to allocate

liability among the parties, the District Court may not consider

the June 23 stipulation as evidence against Carpenter, at least rd

not without addressing the evidentiary problems noted herein.
57

Beyond the stipulation, there may be evidence in the record that

the District Court can rely on to perform its equitable allocation,

but the District Court may also reopen the record if it deems that

necessary.

For the foregoing reasons, we vacate the District Court’s

judgment and remand for further proceedings consistent with

this opinion.