*

The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0018P (6th Cir.)

File Name: 04a0018p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

KALAMAZOO RIVER STUDY

GROUP,

Plaintiff-Appellant,

v.

ROCKWELL INTERNATIONAL

CORPORATION and EATON

CORPORATION,

Defendants-Appellees.

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Nos. 01-2453;

02-2192

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 95-00838—Robert Holmes Bell, Chief District Judge.

Argued: September 9, 2003

Decided and Filed: January 14, 2004 

Before: MOORE and GILMAN, Circuit Judges; MILLS,

District Judge.*

2 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

_________________

COUNSEL

ARGUED: Jerome T. Wolf, SONNENSCHEIN NATH &

ROSENTHAL, Kansas City, Missouri, for Appellant.

Joseph C. Basta, DYKEMA GOSSETT, Ann Arbor,

Michigan, for Appellees. ON BRIEF: Jerome T. Wolf,

James L. Moeller, David S. Ladwig, SONNENSCHEIN

NATH & ROSENTHAL, Kansas City, Missouri, Alan C.

Bennett, LAW, WEATHERS & RICHARDSON, Grand

Rapids, Michigan, for Appellant. Joseph C. Basta,

DYKEMA GOSSETT, Ann Arbor, Michigan, Kathryn J.

Humphrey, DYKEMA GOSSETT, Detroit, Michigan, for

Appellees. 

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. In 1990,

federal and state environmental authorities officially

recognized the massive polychlorinated biphenyls (“PCB”)

contamination of the Kalamazoo River in Michigan by

placing a portion of the river on the National Priorities List

(“NPL”). The ensuing litigation over which entities were

responsible for what share of the considerable investigation

and cleanup costs has traced an eight-year oscillation through

and between various levels of the federal court system. In the

latest appearance in our courthouse, Plaintiff-Appellant

Kalamazoo River Study Group (“KRSG”), a consortium of

former paper-mill owners whose facilities polluted the river,

appeals two distinct decisions of the District Court for the

Western District of Michigan regarding the allocation of

investigation and remediation costs to Defendants-Appellees

Rockwell/Meritor (“Rockwell”) and Eaton Corporation

(“Eaton”).
Nos. 01-2453;02-2192 Kalamazoo River v.

Rockwell Int’l Corp. et al.

3

Following the placement of a stretch of the river on the

NPL, the member companies of the KRSG entered into a

remediation agreement with state and federal authorities.

KRSG then filed actions against several other manufacturers

who operated facilities on the river, including Rockwell and

Eaton, under the contribution provision oftheComprehensive

Environmental Response, Compensation and Liability Act of

1980 (“CERCLA”). See 42 U.S.C. § 9613(f). Following

lengthy trials, punctuated by visits to our court, the district

court found both Rockwell and Eaton liable for some of the

PCB contamination, but allocated none of the investigation or

cleanup costs to Rockwell and only a small portion to Eaton.

KRSG first appeals the district court’s denial of its motion

to reopen the order relieving Rockwell of any contribution

responsibility. After the district court issued its zeroallocation order, KRSG discovered new evidence ofincreased

environmental contamination, prompting it to file the motion

to reopen. The district court, construing KRSG’s filing as a

motion under Rule 60(b)(2) of the Federal Rules of Civil

Procedure, denied the request as time-barred. KRSG also

appeals the district court’s order allocating to Eaton only a

small portion of the investigation costs and none of the future

remediation costs. KRSG contends that the district court

applied an inappropriate standard of liability and that the

district court made several errors in its factual findings.

We AFFIRM both district court judgments.

I. FACTS AND PROCEDURAL HISTORY

In their nearly decade-long battle, these adversaries have

amassed a prodigious factual record, brimming with

environmental assessments, ecological data, and scientific

opinions. We have already comprehensively detailed many

of the pertinent factual disputes elsewhere. See Kalamazoo

River Study Group v. Rockwell Int’l Corp., 171 F.3d 1065

(6th Cir. 1999) (“Rockwell I”); Kalamazoo River Study Group

4 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

v. Menasha Corp., 228 F.3d 648 (6th Cir. 2000); Kalamazoo

River Study Group v. Rockwell Int’l Corp., 274 F.3d 1043

(6th Cir. 2001) (“Rockwell II”). However, a brief overview

of the litigation is in order.

A. Overview

In 1990, the federal Environmental Protection Agency

(“EPA”) added to the NPL a thirty-five-mile stretch of the

Kalamazoo River after discovering, in coordination with the

Michigan Department of NaturalResources (“MDNR”), large

PCB concentrations in the river. Rockwell I, 171 F.3d at

1066. In conjunction with the EPA, the MDNR identified

several paper mills owned by HM Holdings/Allied Paper, Inc.

(“Allied”), Georgia-Pacific Corp. (“GP”), and Simpson

Plainwell Paper Co. (“Simpson”) as the main sources of the

PCB contamination. In December 1990, these three mill

owners entered into an Administrative Order by Consent

(“AOC”) with the MDNR, which required them to fund a

remedial investigation of the NPL site, even though these

KRSG members did not admit liability for the PCB pollution

by signing the AOC. The Fort James Operating Co. (“Fort

James”), which also owned a facility located adjacent to the

NPL site, joined together with Allied, GP, and Simpson to

form the Kalamazoo River Study Group, which would

conduct the investigation and clean-up of the river. Rockwell

I, 171 F.3d at 1067.

The study of the river, referred to as the Remedial

Investigation/Feasability Study (“RI/FS”),uncoveredmassive

PCB contamination. The AOC mandated that for the

purposes of the RI/FS, KRSG had to study an expanded

ninety-five-mile stretch of the Kalamazoo River. The RI/FS

zone included the Eaton Battle Creek plant fifteen miles

upstream of the NPL site and the Rockwell Universal Joint

facility, located in Allegan downstream of the NPL site. The

administrative successor to the MDNR, the Michigan

Department of EnvironmentalEquality(“MDEQ”),ultimately
Nos. 01-2453;02-2192 Kalamazoo River v.

Rockwell Int’l Corp. et al.

5

concluded in 1997 that the river contained over 350,000

pounds of PCBs.

PCBs, which accumulate predominantlyin organically rich,

quiescent areas of the river, present a grave public health risk,

mainly because they contaminate fish with potentially

cancerous chemical waste. Monsanto Corporation produced

several different varieties of PCBs all under the brand name

“Aroclor,” (i.e., Aroclors 1242, 1254, and 1260, with the

higher number corresponding to a greater PCB molecular

weight). The KRSG companies used Aroclor 1242

extensively in their de-inking and paper manufacturing

operations for several decades beginning in the 1930s, and

they also used Aroclor 1254 in transformers, capacitors,

hydraulic systems, and paints. Throughout the NPL site,

Aroclor 1242 is the most prevalent PCB, and the MDEQ and

EPA determined that KRSG companies were responsible for

the bulk of the Aroclor 1242 contamination at the NPL site.

The MDEQ also detected Aroclors 1254 and 1260 at the site,

the questionable source of which forms the kernel of these

appeals.

All four KRSG companies have not disputed that they are

liable and responsible parties within the meaning of

CERCLA. See 42 U.S.C. § 9607. They have, however,

claimed that they only contributed minimally to the Aroclor

1254 and 1260 pollution at the NPL site and thus another

party must be responsible for those PCBs. As responsible

parties with a statutory right to contribution from potentially

liable parties, see 42 U.S.C. § 9613(f), the KRSG members

brought an action in December 1995 against Rockwell, Eaton,

and six other companies, including Benteler Industries and

Consumers Power. KRSG alleged that these factory owners

were partially responsible for the PCB contamination at the

NPL site such that they owed KRSG contribution for the costs

of the investigation and future clean-up.

6 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

1

Although the district court improperly burdened KRSG with a

higher liability standard than was appropriate and this panel subsequently

reversed the district court’s application of that standard, the district court’s

finding of liability for Rockwell stands under both the discredited higher

standard and the less onerous standard. See Kalamazoo River Study

Group v. Menasha Corp., 228 F.3d 648, 655 (6th Cir. 2000).

B. Rockwell

KRSG’s contribution action against Rockwell alleged that

Rockwell’s Allegan facility, which produced universal joints

for automobiles and construction equipment, contributed to

the PCB contamination at the NPL site. The Allegan facility

was in operation from the early 1900s until 1989. In 1987,

the EPA, in an unrelated action, added the Allegan facility to

the NPL because of arsenic, cyanide, and chromium

contamination, but not because of any widespread PCB

contamination. Soil tests at Allegan did reveal the presence

of some Aroclor 1254 (along with some Aroclor 1242 and

1260) in the groundwater and light non-aqueous phase liquid

(the oily film on top of water). Even though there existed no

definitive proof that Rockwell ever purchased PCBs or

conducted manufacturing operations that would necessitate

the use of PCB-containing oils, the presence of PCBs on the

property indicated that it did in fact purchase and employ

PCBs in its operation. This fact, however, did not resolve the

more salient question of whether these PCBs actually found

their way to the Kalamazoo River such that they contributed

to the overall pollution for which KRSG was responsible. In

December 1998, the district court held that Rockwell did

release PCBs into the Kalamazoo River NPL site and was

therefore liable for some of the pollution.1

Subsequently, in June 2000, the district court set out to

determine the precise allocation of costs Rockwell owed to

KRSG. The district court focused almost exclusively on the

quantity of PCBs released by Rockwell versus the amount

leaked by the KRSG companies. It determined that “[g]iven
Nos. 01-2453;02-2192 Kalamazoo River v.

Rockwell Int’l Corp. et al.

7

2

Owing to the consolidated nature of this case, the parties submitted

two different joint appendices. The KRSG-Rockwell joint appendix (No.

01-2453) is denoted J.A. I, whereas the KRSG-Eaton joint appendix (No.

02-2192) is denoted J.A. II.

the low levels of PCBs on the Rockwell property, and the fact

that the river sediments and the fish tend to show no

significant contribution by Rockwell, the Court finds that

Rockwell’s PCB contribution was very minimal, particularly

in contrast to the contribution by [KSRG’s] members.” Joint

Appendix (“J.A.”) I at 926 (Dist. Ct. Op. 6/3/00).2 The court

ruled that KRSG could not recover from Rockwell. KSRG

appealed, arguing that the existence of a logical discontinuity

between holding a party liable and allocating no costs

demonstrated that the district court had abused its discretion.

We affirmed the district court’s holding in December 2001;

there was no inconsistency, and the district court had broad

discretion to allocate the costs of the remedial investigation,

even if the result was a zero allocation to a liable corporation.

See Rockwell II, 274 F.3d at 1049.

The immediate circumstances giving rise to this appeal

were borne of the acrimonious relationship between the EPA

and Rockwell. In April 1998, the EPA revoked Rockwell’s

authority to investigate the Allegan NPL site because of

multiple delays and acts of noncompliance by Rockwell.

Throughout 2000 and 2001, the EPA assumed control of the

investigation and discovered that the Allegan facility in fact

had dramatically higher PCB levels than Rockwell had

previously disclosed; in some instances the new PCB levels

were more than one hundred times the previously reported

levels. On August 9, 2001, the EPA ordered Rockwell to

abate an “imminent and substantial endangerment to the

public health . . . .” J.A. I at 942 (EPA Order, Aug. 2001).

The EPA also noted one PCB plume was then entering the

Kalamazoo River and another was migrating towards the

river.

8 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

After learning of the EPA order, KRSG filed a motion with

the district court on September 21, 2001 to reopen the

CERCLA allocation proceedings fifteen months after the

court had made its June 2000 allocation order. KRSG

claimed that Rockwell had deliberately obfuscated this data

in contravention of its statutory duty, and as a result KRSG

asked the court to use its “equitable power” to reconsider the

allocation. KRSG did not refer to its motion as a Rule 60(b)

motion, but on October 15, 2001, the district court ruled as if

the motion were of the Rule 60(b)(2) mold. The district court

denied KRSG’s motion because KRSG filed it after the oneyear time limit for Rule 60(b)(2) motions had expired.

On appeal, KRSG offers several alternative arguments.

First, KRSG contends that the district court erroneously

considered KRSG’s motion as a Rule 60(b)(2) motion,

because CERCLA itself provides an equitable basis for

reopening an allocation order in the face of changed

circumstances. Second, KRSG argues that if Rule 60(b) does

apply, then the district court should have invoked Rule

60(b)(5) instead of Rule 60(b)(2) because the district court’s

original order was “prospective” and accordingly subject to

Rule 60(b)(5)’s “reasonable time” limitation, as opposed to

Rule 60(b)(2)’s one-year time bar. Third, KRSG implicitly

posits that the newly discovered evidence provides a

sufficient basis for reallocating the remediation costs.

C. Eaton

KRSG originally brought a contribution action against

Eaton because Eaton operated three facilities near the

Kalamazoo River NPL site: Eaton Marshall, Eaton Battle

Creek, and Eaton Kalamazoo. The district court granted

summary judgment in favor of Eaton as to the Marshall and

Kalamazoo facilities in June 1998. Eaton Battle Creek, which

is no longer in operation, was located fifteen miles upstream

of Morrow Lake Dam and twenty miles upstream of the

Kalamazoo River NPL site. While it was beyond the
Nos. 01-2453;02-2192 Kalamazoo River v.

Rockwell Int’l Corp. et al.

9

boundaries of the NPL site, it was within the larger confines

of the RI/FS zone. The Battle Creek facility manufactured

automotive parts, namely engine valves and gears, and

undisputedly released significant quantities of oil into the

river for over four decades. The main question attendant to

the contribution action against Eaton is whether that oil

contained PCBs and if it did, whether those PCBs affected the

NPL site and the RI/FS zone.

There is some evidence that Eaton Battle Creek employed

PCB-laden oils in its manufacturing processes, although it

appears that it did not do so on a regular basis. Investigators

discovered PCBs (primarily Aroclors 1248, 1254, and 1260)

in several sewer outditches and in the wood blocks that lined

the floor at Battle Creek. The district court eventually

concluded that “the PCBs used in Eaton’s Battle Creek

facility were only found in the transformers and capacitors

and the hydraulic fluids, and those fluids were not released to

the River in any regular or measurable manner.” J.A. II at

300 (Dist. Ct. Op. 12/7/98). In other words, Eaton minimally

used some PCB-containing hydraulic oils in closed systems;

the oil from these systems did not flush directly into the river

and leaked only in small amounts onto the floor and possibly

into various sewer ditches on the Eaton property.

KRSG attempted to prove that Eaton PCBs actually entered

the river and contributed to the pollution of the NPL site or

the RI/FS zone by presenting undisputed evidence that

Morrow Lake, situated between Battle Creek and the NPL

site, is polluted with primarily Aroclor 1254 and minimally

Aroclor 1260. KRSG could not have polluted Morrow Lake,

because it lies upstream of the KRSG facilities, so the ensuing

questions were (1) whether Eaton polluted Morrow Lake and

(2) whether any of the Morrow Lake PCB contamination

impacted the NPL site such that upstream polluters of

Morrow Lake should be held responsible as contributing

10 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

3

KRSG is not responsible for the clean-up of Morrow Lake and other

areas outside of the defined NPL site, but the RI/FS zone encompasses

Morrow Lake and the Kalamazoo River upstream to Eaton Battle Creek.

Eaton, as a contribution defendant, is potentially liable for future

remediation costs only to the extent that PCBs for which it is responsible

flowed downstream and impacted the NPL site. Eaton could be

responsible for the costs of investigating the RI/FS even if its PCBs did

not affect the NPL site.

parties.3 Morrow Lake is contaminated with Aroclor 1254

(constituting ninety percent of the total PCB contamination),

and while there is evidence that Battle Creek’s wastewater

discharge ditch is heavily contaminated with Aroclors 1254

and 1260 at levels comparable to or exceeding the Aroclor

1242 contamination at the actual NPL site, other companies,

including Clark Equipment, used this ditch. Evidence also

exists that between Eaton Battle Creek and Morrow Lake, the

PCBs appeared in high concentrations in areas with low

amounts of organic material, suggesting that when one

controls for the presence of organic content (a procedure

known as “carbon normalization”), the PCB concentration of

Aroclors 1254 and 1260 near Battle Creek was among the

highest in the Kalamazoo River area.

In December 1998, the district court ruled that while the

evidence showed that Eaton did utilize some PCBs in its

electrical and hydraulic equipment, any PCB leaks were

minimal in volume and sporadic in occurrence, such that

Eaton was not liable for contribution. However, in assessing

liability, the district court employed an improper liability

standard, which caused us to remand the case for

reevaluation. See Kalamazoo River Study Group v. Menasha,

228 F.3d at 661. In May 2001, the district court, while

maintaining its previous holding that there was only the most

scant evidence of a measurable PCB discharge into the NPL

site from Battle Creek, ruled that it was “constrained to find

that Eaton is liable for some PCB releases . . . to the

Kalamazoo River.” J.A. II at 399.
Nos. 01-2453;02-2192 Kalamazoo River v.

Rockwell Int’l Corp. et al.

11

The district court then proceeded to receive evidence on the

allocation of response costs between KRSG and Eaton.

KRSG presented the testimonies of Brown and McLaughlin,

with the latter stating that he discovered at Battle Creek PCB

concentrations ranking in the upper 2% of all PCB samples

taken from the NPL site. Many of McLaughlin’s samples,

which demonstrate the presence of high PCB concentrations,

came from a drainage ditch leading to the river that Eaton

shared with Clark Equipment. McLaughlin concluded that

Battle Creek significantly contributed to the PCB

contamination at the NPL site.

Eaton, in response, relied on the testimony of Connolly,

who testified that the PCB concentrations in the ditch and

several of the sample locations near the ditch’s outfall to the

river were not characteristic of the PCB concentrations in the

river between Battle Creek and Morrow Lake. Connolly

essentially posited that the Aroclor 1248, 1254, and 1260

concentrations in the general river channel were not

consistent with Eaton Battle Creek as a PCB point source.

Connolly noted the lack of a PCB gradient spanning the

distance between Battle Creek and Morrow Lake. Generally,

PCB concentrations will be highest near the PCB source and

will increasingly diminish as the distance from that source

grows. Comparing the Kalamazoo River to other PCBcontaminated rivers with a “normal” PCB gradient, such as

the Hudson River in New York and the Housatonic River in

Massachusetts, Connolly highlighted the lack of a gradient

stretching from the Battle Creek “source” to further

downstream points. Connolly testified that this lack of a

gradient contradicted the conclusion that Battle Creek was a

primary contributor of Aroclor 1254. Connolly bolstered his

theory by suggesting that the absence of a high concentration

of PCB contamination at the sediment-rich upstream entrance

to Morrow Lake provided strong evidence that facilities

closer to Morrow Lake, such as the Benteler Industries and

Consumers Power sites, were the true sources of the Morrow

Lake contamination.

12 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

On August 29, 2002, the district court ordered Eaton to pay

ten percent of KRSG’s investigation costs in the RI/FS zone

(ten percent of the total $622,615.79 investigation cost for

that portion equals $ 62,261.58). First, the court noted that

KRSG had “the burden of proving its equitable right to

contribution by a preponderance of the evidence.” J.A. II at

433 (citing United States v. R.W. Meyer, Inc., 932 F.2d 568,

573-74 (6th Cir. 1991)). Second, the district court rejected

McLaughlin’s testimony in favor of Connolly’s, writing that

while it did “not find Mr. McLaughlin’s conclusions to be

well supported,” it “found the testimony of Dr. Connolly to be

more persuasive . . . .” J.A. II at 443, 445. It reached this

conclusion because of Connolly’s credentials and because it

had more confidence in the science underlying Connolly’s

conclusions. In listing the reasons why it disfavored

McLaughlin’s position, the district court noted that KRSG’s

claim that Eaton principally contaminated the river with

Aroclor 1254 “ignore[d] other potential sources of PCBs

located upstream of Eaton’s Battle Creek facility that could

have contributed to the PCBs found in the former channel and

current channel of the Kalamazoo River near the Eaton/Clark

ditch.” J.A. II at 444. Consequently, the court agreed with

Connolly’s dual contentions that other parties contributed to

the PCB contamination in Morrow Lake and that Eaton

discharged only a “de micromis,” J.A. II at 457, amount of

PCBs to the Eaton/Clark ditch. The court found persuasive

the argument that only a fraction of this “de micromis”

amount traveled to Morrow Lake and only a fraction of that

fraction actually passed over the Morrow Lake Dam to the

NPL site.

The court then reached the ten-percent figure by applying

the “Gore Factors” outlined in Centerior Service Co. v. Acme

Scrap Iron & Metal Corp., 153 F.3d 344, 354 (6th Cir. 1998),

and relying almost exclusively on the “the amount of the

hazardous waste involved.” Plaintiff’s experts had estimated

that Eaton was responsible for forty percent of the Aroclors

1254 and 1260 at the NPL site, but the district court rejected
Nos. 01-2453;02-2192 Kalamazoo River v.

Rockwell Int’l Corp. et al.

13

this contention as lacking an “articulated scientific basis.”

J.A. II at 468. Instead, the district court accepted Connolly’s

estimate that only 1.3% of the PCBs in the NPL site could

have come from Morrow Lake. In sum, the court rejected

both the notion that Morrow Lake was a primary contributor

of PCBs to the NPL and that Eaton was a primary contributor

to the PCB contamination at Morrow Lake.

On appeal of the Eaton decision, KRSG first contends

that“[a]lthough the District Court paid lip service to the

preponderance of the evidence standard . . . it applied a much

more stringent standard,” requiring KRSG to disprove the

potential responsibility of other upstream facilities. KRSG’s

Eaton Br. at 17. Second, KRSG claims that the district court

committed clear factual errors by accepting the theory that the

PCB contamination at Morrow Lake and at the NPL site

might have come from sources other than Battle Creek.

II. JURISDICTION

The district court had proper jurisdiction over the original

contribution action pursuant to 42 U.S.C. § 9613(b), the

jurisdictional provision for CERCLA actions. The district

court’s ability to hear KRSG’s motion to reopen the

allocation proceedings stems from those same jurisdictional

provisions. In a November 9, 2001 order, we ruled that we

had jurisdiction over KRSG’s appeal from the district court’s

denial of the motion to reopen the allocation proceedings

against Rockwell. We have jurisdiction over KRSG’s appeal

of the district court’s final Eaton allocation decision pursuant

to 28 U.S.C. § 1291.

III. ANALYSIS

Because KRSG’s two appeals present completely distinct

legal and factual issues, we discuss each in turn. First, we

examine KRSG’s claim that the district court erred in denying

KRSG’s motion to reopen the allocation decision against

14 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

Rockwell. Second, we explore KRSG’s argument that the

district court erred both in its choice of a standard of liability

and its application of that standard to the facts in its Eaton

allocation order. We hold that the district court acted

properly in both instances.

A. KRSG’s Rockwell Appeal

1. Standard of Review

Generally, we review the denial of a Rule 60(b) motion for

abuse of discretion. See Blue Diamond Coal Co. v. Trustees

of the UMWA Combined Benefit Fund, 249 F.3d 519, 524

(6th Cir. 2001). However, we must “treat the district court’s

interpretation and application of the Federal Rules of Civil

Procedure as a question of law and, as with all legal

questions, review [the district court’s] analysis de novo.”

Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 510 (6th

Cir. 2001) (citing Indiana Lumbermens Mut. Ins. Co. v.

Timberland Pallet & Lumber Co., 195 F.3d 368, 374 (8th Cir.

1999)). The district court’s decision to construe KRSG’s

motion to reopen as one falling under the umbrella of Rule

60(b), and more specifically Rule 60(b)(2), is clearly an

interpretation and application of the Rules of Civil Procedure,

and thus we review de novo this portion of the court’s

analysis.

2. The Reopening of AllocationOrdersunder CERCLA

KRSG bases its objection to the district court’s

pigeonholing of its motion to reopen as a Rule 60(b) motion

on the notion that the inherently equitable nature of the

CERCLA allocation mechanism permits the reopening of

allocation judgments independent of Rule 60(b). KRSG

argues that CERCLA allocation orders are subject to revision

whenever the equities underlying the decision shift. Finding

no aspect of CERCLA that confirms KRSG’s assertion, we

disagree.
Nos. 01-2453;02-2192 Kalamazoo River v.

Rockwell Int’l Corp. et al.

15

4

At oral argument, counsel for KRSG suggested that two sections of

CERCLA support KRSG’s argument in this regard. See 42 U.S.C.

§§ 9605(c)(4), 9622. Counsel’s reference to these sections was misguided

because while both concern the impact of future events upon some aspect

of CERCLA, neither even remotely supports KRSG’s argument. Section

KRSG is certainly correct that principles of equity guide

CERCLA’s contribution provision, but nothing in CERCLA

compels the conclusion that the equitable underpinnings of an

allocation decision exempt it from the requirement that

motions to alter judgments be brought under Rule 60(b).

CERCLA permits courts to “allocate response costs among

liable parties using such equitable factors as the court

determines are appropriate.” 42 U.S.C. § 9613(f)(1). There

is nothing in § 9613(f) that suggests that Rule 60(b) is not the

proper vehicle for altering a judgment, and quite the opposite,

42 U.S.C. § 9613(f)(1) clearly states that all claims “shall be

brought in accordance with . . . the Federal Rules of Civil

Procedure.” Presumably, this illustrates Congress’s intention

to make CERCLA allocation decisions no less subject to the

Federal Rules of Civil Procedure than any other contribution

decision.

The crux of KRSG’s argument is that because a district

court relies upon equitable factors to make an allocation

decision, such a decision is forever subject to revision should

there be any alteration in the equities underlying the

allocation order. KRSG’s position cannot prevail. The

equitable basis of CERCLA allocation decisions does not

deprive all allocation orders of their finality. Other equitable

decisions, such as an order mandating specific performance

in a contract dispute, are not automatically subject to future

revision. KRSG does not point us to any part of CERCLA in

which Congress has expressed a desire that all allocation

decisions should be considered ongoing or nonfinal such that

there is another method by which relief from judgment may

be sought other than Rule 60(b).4

16 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

9605(c)(4) is completely inapposite here; it concerns future changes to the

President’s national contingency plan for the removal of hazardous

substances and states that “[n]othing . . . shall preclude the President from

taking new information into account in undertaking response actions

. . . .” Section 9622 is slightly more on point, as it controls the President’s

ability to enter into settlements and agreements with potentially

responsible parties. It explicitly states that cleanup agreements are to be

entered as consent decrees in a district court. 42 U.S.C. § 9622(d)(1)(A).

Reliance on § 9622 does not aid KRSG. First, a consent decree is

inherently different from a contribution allocation decision, which is a

monetary judgment; a consent decree is “a settlement agreement subject

to continued judicial policing.” Lorain NAACP v. Lorain Bd. of Educ.,

979 F.2d 1141, 1148 (6th Cir. 1992) (quotation omitted). Second, § 9622

does not explicitly discuss any mechanism for reopening final judgments

that is unique to CERCLA Instead it states, “In the case of consent

decrees . . . no provision of this chapter shall be construed to preclude or

otherwise affect the applicability of general principles of law regarding

the setting aside or modification of consent decrees or other settlements.”

42 U.S.C. § 9622(m).

KRSG directs our attention to two cases as support for its

view that CERCLA contains an internal mechanism for

reopening allocation decisions, but neither opinion

persuasively proves KRSG’s contention. In Acushnet Co. v.

Coaters, Inc., 972 F. Supp. 41(D. Mass. 1997), a federal

district court fashioned an ongoing and provisional CERCLA

allocation order, stating, “Either party may file with the court,

when good cause to do so has developed factually, a motion

supported by a showing of a material change in circumstances

that justifies a change in the allocation of shares among the

parties.” Id. at 63. Uncertainty about the completeness of the

remedial-cost evidence before the court prompted it to permit

explicity a “reasonable opportunity for any interested party to

initiate later proceedings to modify the provisional allocation

of equitable shares of legal responsibility . . . .” Id. at 69.

The district court believed that aspects of CERCLA militated

against finality, and it accepted “the consequences of delay

and greater expense of final adjudication in order to come

closer . . . [to] equitable allocation of legal responsibilities.”

Id. at 62. The court issued a provisional judgment because of
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17

the insufficiency of the evidence before it, which prevented it

from assessing “equitable shares of legal responsibility with

the degree of confidence implicit in findings made on a

preponderance of the evidence.” Id. at 71.

KRSG also cites the Seventh Circuit’s opinion in PMC, Inc.

v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir. 1998), for

the proposition that district courts may always reopen an

allocation judgment even in the absence of a Rule 60(b)

motion. In PMC, the district court had made Sherwin

Williams liable for one-hundred percent of the costs of

cleaning up a hazardous waste site. Sherwin Williams sought

contribution because PMC had dumped waste at the site after

it acquired the property from Sherwin Williams. The court

recognized that PMC might be responsible for future clean-up

costs should it be ordered to clean up any waste, other than

waste at issue in Sherwin Williams’s contribution order, that

PMC contributed to the site after it purchased the property.

Id. at 617. However, the Seventh Circuit held that the district

judge did not abuse his discretion in ruling that PMC did not

owe Sherwin Williams contribution for already incurred costs

because PMC’s dumped waste “may have been too

inconsequentialto affect[SherwinWilliams’] cost of cleaning

up significantly.” Id. at 616. KRSG directs our attention to

the Seventh Circuit’s consideration of whether the allocation

of cleanup costs was premature given that it concerned costs

“that PMC has not yet incurred.” Hypothesizing, the court

confirmed that the allocation was proper because “[i]t

economizes on judicial time . . . and it also lets the parties

know at the earliest opportunity where they stand.” Id. The

court continued, “cooperativenessin doing the actual clean-up

is a relevant equitable factor that cannot be evaluated until the

clean up is complete . . . [b]ut this concern can be

accommodated . . . by allowing the district court to make an

all-at-once determination subject to the court’s revisiting the

issue should a failure of cooperation or some other unforeseen

circumstance make adherence to the original determination

inequitable.” Id. (citations omitted).

18 Kalamazoo River v.

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Nos. 01-2453;02-2192

What these cases show is not that allocation decisions in

CERCLA cases are inherently subject to change, but rather

that courts have the power to fashion relief that is subject to

future change. Neither case stands for the proposition that

CERCLA provides an alternative route for reopening

decisions in lieu of Rule 60(b), but rather they affirm the

broad equitable powers of the district court. The court in

Acushnet saturated nearly thirty written pages with an

explanation for why a provisional ruling was necessary.

While the Acushnet court did discuss an ideal of flexibility

within CERCLA, it did not (nor could it) establish a broad

rule that allocation orders were provisional and exempt from

Rule 60(b). It instead created a provisional order in the face

of insufficient evidence when there was a concern that the

evidentiary moorings of any fixed allocation would

disintegrate in the future.

Similarly, KRSG’s focus on PMC is misplaced. The

Seventh Circuit’s PMC decision only hypothesized about

what a district court could do in the face of a premature claim

if there were uncertainty about one of the equitable factors,

i.e., cooperation. The Seventh Circuit’s statements in dicta

did not establish a ground rule that all allocation decisions

based on equitable determinations will always be subject to

revisions. Moreover, hurting rather than helping KRSG’s

argument is the fact that the Seventh Circuit affirmed the

district court’s decision not to alter the allocation despite new

evidence of contamination when the district court concluded

that any contribution PMC may have made to the

contamination at the site was negligible.

In allocating no costs of the future remediation to

Rockwell, the district judge mentioned nothing about a

provisional order or potential alterations in the future. Nor

does the language of the district court’s order leave room for

us to infer that the allocation decision was provisional or

susceptible to change based upon future events. Unlike the

lower courts in Acushnet and PMC, the district court did not
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19

describe how the circumstances of this case or the

insufficiency of the evidence left open the possibility for

future alteration of the allocation. Rather, the district court

here simply stated that under the “Gore” equitable factors,

“Rockwell should not be required to contribute to the

remediation of the . . . Superfund site. The PCB releases by

Plaintiff’s members are more than sufficient to justify

imposing on Plaintiff the entire cost of response activities

relating to the NPL site.” J.A. I at 926 (Dist. Ct. Op. 6/3/00).

This allocation order does not intimate that the evidence

before the district court on any of the equitable factors

considered was incomplete such that the order would be

subject to revision without a Rule 60(b) motion. Nothing in

our opinion, however, should be construed as ruling that

district courts cannot fashion provisional allocation orders or

that district courts must explicitly label an allocation order

“provisional” for a reviewing court to evaluate it as such. As

demonstrated by Achushnet and PMC, provisional allocation

orders can be valuable equitable tools in the event of

incomplete evidence.

This was not such an order. There is no reading of the

district court’s opinion that suggests its zero-allocation order

was ongoing or subject to change in the future. Furthermore,

we have been presented with no support for the notion that

CERCLA provides a mechanism independent of Rule 60(b)

for revisiting allocation orders.

3. TheDistrict Court’s Choice Between Application of

Rule 60(b)(2) or Rule 60(b)(5)

KRSG alternatively contends that if its motion to reopen is

viewed as a Rule 60(b) motion, then the more generous time

limits of Rule 60(b)(5) should apply. The district court

analyzed KRSG’s motion as if it were a Rule 60(b)(2) motion

and accordingly denied it as time-barred, because KRSG filed

its motion more than one year after the entry of the allocation

20 Kalamazoo River v.

Rockwell Int’l Corp. et al.

Nos. 01-2453;02-2192

5

At the outset, we cannot criticize the district court’s turn to Rule

60(b)(2), given that it was analyzing a motion to reopen that did not even

mention Rule 60(b). The district court in many ways gave KRSG the

benefit of the doubt, because the district judge could have denied the

motion on the ground that his allocation order was not subject to revision

absent a Rule 60(b) motion given that nothing in CERCLA mandates the

reopening of allocation orders. However, the district judge did not follow

that path, and now, after KRSG’s failure to mention Rule 60(b) initially,

KRSG contends that the district judge chose the wrong subsection to

apply.

KRSG’s approach raises the specter of waiver. It is “a prerequisite

to relief under Rule 60(b), [that] a party must establish that the facts of its

case are within one of the enumerated reasons contained in Rule 60(b)

. . . .” Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993). Failure to

raise an issue at the trial court generally prevents a party from arguing the

issue on appeal. See Thurman v. Yellow Freight Sys. Inc., 90 F.3d 1160,

1172 (6th Cir. 1996). KRSG claims that it did raise the substance of its

Rule 60(b)(5) argument in its motion to reopen, even though it did not

explicitly mention Rule 60(b)(5). As support, it points to a 1998 decision

in which we stated that an argument not explicitly raised at the trial court

level would still be considered when it involved a question of law. United

Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l

Transit Auth., 163 F.3d 341, 360 n.9 (6th Cir. 1998). While United Food

is somewhat inapposite, because it concerned a party’s attempt to raise a

First Amendment overbreadth argument that was not raised in those terms

initially, we agree that KRSG has eluded waiver by the slimmest of

margins. The general principle that a district court should not raise a Rule

60(b) motion sua sponte does not apply, because the rule against doing so

only adheres if the litigant has failed to file any motion, whereas here

KRSG filed a motion, albeit an ambiguous one. See Eaton v. Jamrog, 984

F.2d 760, 762 (6th Cir. 1993).

order.5 We review de novo the district court’s decision and

hold that there was no error, because the district court’s initial

allocation order was not “prospective” within the meaning of

Rule 60(b)(5) and accordingly the time strictures of Rule

60(b)(2) control.

Rule 60(b)(5) states in pertinent part that “the court may

relieve a party . . . from a[n] . . . order . . . [when] it is no

longer equitable that the judgment should have prospective

application.”Unlike Rule 60(b)(1)-(3) motions, which cannot
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21

be brought more than a year after an entry of judgment, Rule

60(b)(5) motions can “be made within a reasonable time”

after the entry of the order. Fed. R. Civ. P. 60(b)(5). The

application of Rule 60(b)(5) here turns on the meaning of

“prospective.” The mere possibility that a judgment has some

future effect does not mean that it is “prospective” because

“[v]irtually every court order causes at least some

reverberations into the future, and has . . . some prospective

effect.” Twelve John Does v. District of Columbia, 841 F.2d

1133, 1138 (D.C. Cir. 1988). The essential inquiry into the

prospective nature of a judgment revolves around “whether it

is ‘executory’ or involves the ‘supervision of changing

conduct or conditions.’” Id. at 1139 (quotation omitted).

Injunctions (permanent or temporary), some declaratory

judgments, and particularly consent decrees are prospective

judgments susceptible to a Rule 60(b)(5) challenge. See 12

James Wm. Moore, Moore’s Federal Practice §§ 60.47[1]-

[2]. Money judgments, however, do not generally have

prospective application because they are final in the sense of

involving a set monetary outlay. Id. at § 60.47[1][b].

Most cases consider Rule 60(b)(5)’s “prospective

application” clause in the context of consent decrees, which

are prospective by nature. The Supreme Court in Rufo v.

Inmates of Suffolk County Jail, 502 U.S. 367 (1992), held that

a plaintiff in institutional-reform litigation could get relief

under Rule 60(b)(5) where “a significant change either in

factual conditions or in law” altered the equitable basis for an

ongoing consent decree. Id. at 384. The Court made clear in

Rufo that this rule should not be limited to institutionalreform litigation, but while the Court may have intended its

analysis to apply to consent decrees involving private parties,

the Court did not expand the scope of the term “prospective”

so as to encompass more varieties of equitable judgments.

We are not aware of any case in which Rufo has been applied

to judgments other than consent decrees, declaratory

judgments, and injunctions, which often require ongoing

court supervision and future judicial involvement. See Lorain

22 Kalamazoo River v.

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Nos. 01-2453;02-2192

NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.

1992) (citing the Rufo modification standard in the school

desegregation context); see also United States v. W. Elec. Co.,

46 F.3d 1198, 1203 (D.C. Cir. 1995) (applying Rufo’s “less

stringent [] standard” to antitrust consent decree outside of the

institutional-reform context, but noting that Rufo only applies

to certain types of injunctive relief) (alteration in original);

United States v. Kayser-Roth Corp., 272 F.3d 89, 95-96 (1st

Cir. 2001) (engaging in a Rule 60(b)(5) analysis when a

declaratory judgment for future response costs would have

prospective effect and there existed changed circumstances).

We also must heed the requirement that parties cannot

disguise Rule 60(b)(1)-(3) motions as 60(b)(4)-(6) motions.

What in reality is a 60(b)(2) motion cannot be labeled as a

60(b)(5) motion to gain the benefits of a more generous

limitations period. McDowell v. Dynamics Corp. of Am., 931

F.2d 380, 383-84 (6th Cir. 1991). KRSG complains that the

new evidence of PCB dumping at the Allegan facility alters

the equitable calculus employed by the district court, but its

claim sounds very much like a claim regarding newly

discovered evidence, which is controlled by Rule 60(b)(2).

See CMC Heartland Partners v. Union Pac. R.R. (In re

Chicago, Milwaukee, St. Paul & Pac. RR Co.), 78 F.3d 285,

293-94 (7th Cir. 1996) (considering under Rule 60(b)(2)

claim that party was entitled to relief when there was new

evidence regarding cleanup of site in an action concerning a

noncontribution provision of CERCLA).

KRSG is incorrect in its assertion that the district court’s

allocation order was “prospective” in the Rule 60(b)(5) sense

of the word. The district court’s allocation order was not a

consent decree, an injunction, or even a declaratory judgment.

Rather, the allocation decision stated that Rockwell was not

responsible for any measurable PCB contamination to the

NPL site; this was a one-time judgment that Rockwell was

not required to contribute and it did not provide for any future

supervision or alteration by the district court. Merely because
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6

Even if KRSG had filed a timely Rule 60(b)(2) motion, it could not

obtain relief. It did not appear to exercise due diligence in obtaining the

new evidence. It is somewhat surprising that KRSG did not seek to test

the Rockwell site itself sometime during discovery. It is even more

incredible that KRSG did not seek access to the Rockwell site in April

1998 when the EPA announced its suspicion that Rockwell was “not

fulfilling its obligation to thoroughly and objectively investigate the Site

and present the results on behalf of the public; but, rather, contriving a

study to avoid liabilities at the Site[,]” which raised a bold red flag. J.A.

I at 1498 (EPA Letter). KRSG certainly had time to investigate the site

either during the three years of discovery that preceded the liability

portion of the trial or during the eighteen-month span between the April

1998 EPA action and the beginning of the allocation phase in November

1999.

KRSG requested contribution for future costs, which the

district court denied, and merely because KRSG’s prospective

remediation expenses would be higher in a relative sense as

a result of the district judge’s order, does not mean that the

order was “prospective” under Rule 60(b)(5).

Thus, we agree with the district court’s decision to apply

Rule 60(b)(2), which permits motions for relief from orders

based upon “newly discovered evidence which by due

diligence could not have been discovered in time to move for

a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). Rule

60(b)(2) motions must be brought within one year after entry,

which permits a party an extra 355 days more than the usual

ten-day period to file a motion for a new trial. KRSG’s

motion must fail because it was filed more than fifteen

months after the entry of the judgment.6

B. KRSG’s Eaton Appeal

KRSG appeals both the evidentiary standard employed by

the district court and the court’s allocation to Eaton of only

for ten percent of the investigation and for none of the future

cleanup costs. More specifically, KRSG claims that the

district court paid “lip service” to the “preponderance of

24 Kalamazoo River v.

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Nos. 01-2453;02-2192

evidence” standard, while actually employing a much higher

and more stringent standard; in KRSG’s estimation, the

district court held it to an impermissible standard of “absolute

disproof” because it required KRSG to demonstrate

conclusively that other parties did not cause the PCB

contamination in the discharge ditch and in the river. We

disagree. We conclude that the district court applied the

appropriate “preponderance of the evidence” standard and

neither abused its discretion in allocating only ten percent of

the costs to Eaton nor committed a clear error in its factual

findings.

1. Standards of Review

We review different aspects of the district court’s order

using different standards of review. We review de novo the

legal conclusions of the district court, but we review the

court’s factual findings following a bench trial for clear error.

Menasha, 228 F.3d at 652. We review the district court’s

allocation decision more deferentially, particularly because of

the equitable nature of CERCLA contribution decisions. See

Franklin County Convention Facilities Auth. v. Am. Premier

Underwriters, Inc., 240 F.3d 534, 549 (6th Cir. 2001) (noting

the district court’s “broad discretion” in allocating CERCLA

contribution). We will overturn the district court’s allocation

order only if we are left with the “definite and firm conviction

that the trial court committed a clear error of judgment.”

Rockwell II, 274 F.3d at 1047 (quoting Logan v. Dayton

Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989)). The

factualfindings underlying the district court’s allocation order

are reviewed for clear error. Schroyer v. Frankel, 197 F.3d

1170, 1173 (6th Cir. 1999); see also Franklin County, 240

F.3d at 541 (noting in a CERCLA contribution opinion that

“[w]here two logically permissive interpretations of the

evidence exist, the trial judge’s selection cannot be adjudged

clearly erroneous on appeal.”)
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25

2. The District Court’s Application of a Standard of

Liability

The district court’s application of a preponderance of the

evidence standard is a mixed question of law and fact that we

review de novo. CERCLA contribution plaintiffs must prove

that they are entitled to reimbursement by a preponderance of

the evidence. See B.F. Goodrich v. Betkoski, 99 F.3d 505,

526 (2d Cir. 1996). Nothing in the wording of the CERLCA

contribution provision suggests otherwise. See 42 U.S.C.

§ 9613(f). In his August 2002 allocation order, the district

judge wrote that “although [KRSG] is not required to prove

its case with . . . mathematical precision, or scientific

certainty, it still has the burden of proving its equitable right

to contribution by a preponderance of the evidence.” J.A. II

at 433 (Dist. Ct. Op. 8/29/02). KRSG asserts that the district

court only nominally applied this standard, while effectively

holding KRSG to a much higher standard. This argument is

misguided because the district judge specifically stated that he

was employing a preponderance of the evidence standard and

even made clear that KRSG did not have to prove its case

with “scientific certainty,” or “absolute proof” as KRSG

labels it. KRSG’s argument that the allocation order focused

too heavily on KRSG’s inability to disprove the possible

contamination by other facilities on the Kalamazoo River is

a contention that the district court misweighed the evidence;

it is not an assertion that the district court applied an

inappropriate burden of proof.

3. The District Court’s Allocation Decision

We affirm the district court’s judgment because the court

neither clearly erred in its factual finding nor abused its

discretion in allocating only a small portion of KRSG’s

investigation costs to Eaton. KRSG contends that the district

court improperly required KRSG to disprove the complicity

of potentially responsible parties other than Eaton. Eaton

responds that KRSG did not provide enough evidence that

26 Kalamazoo River v.

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Nos. 01-2453;02-2192

Eaton could ever be “ruled in” as a PCB contributor and thus

that KRSG’s failure to “rule out” other potential contributors

was only one part of the district court’s final order. We

accept neither view, but rather affirm the district court’s order

because it appropriately weighed the evidence presented by

both sides to conclude that Eaton was only minimally

responsible for some of the investigation costs incurred by

KRSG.

First, there is no indication that the district court clearly

erred in its factual findings. Some of the evidence does

support the theory that Eaton contributed to the PCB

contamination for which KRSG is responsible. Aroclors

1254 and 1260, which comprise twenty-five percent of the

PCB contamination at the NPL site and ninety percent of the

PCB contamination at Morrow Lake, were found at Battle

Creek. Throughout its history, Eaton Battle Creek discharged

large quantities of oil to the river, and the wastewater ditch

connecting the Battle Creek facility to the river contained

high PCB concentrations, particularly when one controls for

the amount of carbon content. Additionally, KRSG’s expert,

McLaughlin, testified that no other potentially responsible

party upstream of Morrow Lake, including Clark Equipment

with whom Eaton shared the wastewater ditch, released as

much PCBs to the river as Eaton. McLaughlin also

concluded that sources closer to Morrow Lake, such as

Benteler Industries and Consumers Power, did not release

PCBs to Morrow Lake and thus Eaton must be responsible.

Eaton countered KRSG’s evidence with support of its own

and ultimately the court found Eaton’s proof more compelling

than KRSG’s. The evidence presented by Eaton showed that

it barely used any PCB-laden oils at Battle Creek and that

most of the PCBs found in the wood floors came from closedsystem transformers and hydraulics. The PCBs in the floor

were thus the result of incidental and minor spillage, the oil

from which would not have been flushed to the river. Eaton’s

expert explained that polluted rivers generally have a higher
Nos. 01-2453;02-2192 Kalamazoo River v.

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27

concentration of PCBs near the source with decreasing

concentrations as one travels further from the source. There

was no such gradient stretching downstream from Battle

Creek, and the MDNR found scant proof of PCB

contamination in the fifteen-mile stretch of river between

Battle Creek and Morrow Lake, which indicated that sources

closer to Morrow Lake, such as Benteler Industries and

Consumers Power, primarily contaminated the lake with

PCBs. Such a conclusion was bolstered by the fact that the

downstream portions of Morrow Lake had higher PCB

concentrations than the entrance to the lake closer to Battle

Creek; if there was an upstream PCB source, the upstream

entrance to Morrow Lake should have had high PCB levels

because of its high organic content, but in reality it had a low

PCB concentration.

The district court assessed all of this evidence and

concluded that Eaton’s use of PCBs was exceedingly minimal

and that any PCBs it did use barely impacted the pollution at

Morrow Lake, let alone the contamination at the actual NPL

site. In making this factual finding, the district judge rejected

the testimony of KRSG’s expert McLaughlin because the

judge did not believe that it was well-supported and because

he considered Connolly’s testimony to be more persuasive.

This preference of one expert over another was not clearly

erroneous, as the district judge had the opportunity to assess

and observe each expert before making his decision. The

district court noted that Connolly “has the most expertise of

any of the witnesses in the area of hydrogeology and the

transport of PCBs in the river environment” and that

Connolly had testified before Congress. J.A. II at 445 (Dist.

Ct. Op. 8/29/02). Based on his acceptance of Connolly’s

testimony, the district judge concluded that KRSG had not

proven by a preponderance of the evidence that Eaton should

be responsible for a portion of KRSG’s costs. The district

court did not clearly err in making these factual

determinations; they were well-supported by the evidence as

28 Kalamazoo River v.

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Nos. 01-2453;02-2192

a whole, and the district court chose between two permissible

interpretations of the evidence.

KRSG contends that the district court erred because rather

than requiring it to prove Eaton’s complicity, the court forced

KRSG to disprove the potential responsibility of Clark,

Benteler, and Consumers Power to the PCB contamination in

the Eaton/Clark wastewater ditch and Morrow Lake. This

argument is flawed. Most importantly, the court did not rely

solely on evidence that other parties may have added to the

PCB contamination in Morrow Lake and the NPL site; in

making its ruling, the court focused primarily on Connolly’s

testimony about the lack of a gradient and the evidence that

any PCBs Eaton may have leaked did not contribute to the

pollution upstream of Morrow Lake, in Morrow Lake, or in

the NPL site. Additionally, evidence exists that Clark,

Benteler, and Consumers may have contributed to the PCB

contamination upstream of the NPL site. The district court

did not require KRSG to disprove in any absolute sense the

potential contamination by those facilities, but rather

considered the significant probability that they added to the

pollution for which Eaton was being blamed. Thus, we

cannot agree that the district court clearly erred in reaching its

factual findings.

Second, we hold that the district court did not abuse its

discretion by concluding that Eaton was responsible only for

ten percent of the investigation costs and not responsible for

any future costs of remediating the NPL site. KRSG contends

that the district judge abused his discretion, because he

ignored evidence of Eaton’s culpability and required KRSG

to disprove affirmatively that other parties, such as Clark and

Benteler, were the actual sources of the PCBs. Again, we

cannot accept KRSG’s position. The district judge did not

ignore evidence of Eaton’s role in adding to the

contamination, but rather found other contrary evidence more

probative and persuasive. The district court noted that Eaton

may have released some PCBs into the river, although it
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29

7

KRSG’s argument that the district court is being inconsistent with

its past opinions in regards to the potential contributions of Clark and

Benteler is without merit. KRSG argues at one point that the district court

had previously exculpated Clark by stating that there was no qualitative

or quantitative evidence of any PCB discharge by Clark. See KRSG’s

Eaton Br. at 21 (citing J.A. II at 437 (Dist. Ct. Op. 8/29/02)). Quite the

opposite, the district court noted that Clark may have been responsible for

some PCB contamination. It first remarked that even KRSG’s expert,

McLaughlin, “conceded that the PCBs found in the Eaton/Clark ditch

could have originated from Clark if Clark’s effluent contained PCBs.”

J.A. II at 437 (Dist. Ct. Op. 8/29/02). The district judge cautioned that

“no direct evidence” showed that Clark’s discharges contained PCBs, but

he mentioned that Clark may have used PCB-containing oils in its

transformers and hydraulic systems. J.A. II at 437. Furthermore, there is

no inconsistency with the district court’s previous finding during the

could not say with certainty that Eaton was the source of the

PCBs in the wastewater ditch. Yet, the district court rested its

decision on Connolly’s testimony and ruled that it was

unlikely that Eaton’s PCBs added to the pollution in the

Morrow Lake Dam and even less likely that these PCBs then

entered the NPL site. If Eaton did release any PCBs, it

released an extremely minimal volume to the RI/FS zone such

that Eaton was responsible for only a small share of KRSG’s

costs.

Furthermore, the court did not myopically base its decision

on KRSG’s failure to rule out Clark and Benteler as potential

PCB sources. Whereas KRSG views the district court as

requiring it to disprove other parties’ potential responsibility,

the district court in reality recognized that some convincing

evidence demonstrated that parties other than Eaton may have

been the chief polluters of the wastewater ditch, Morrow

Lake, and the NPL site. It accordingly held that Eaton was

responsible for only a small portion of KRSG’s costs, because

evidence showed that Clark contributed to the PCB

contamination in the discharge ditch and that Benteler

Industries and/or Consumers Power were the main sources of

Aroclors 1254 and 1260 at Morrow Lake.

7

 Yet, even

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Nos. 01-2453;02-2192

liability phase, see J.A. II at 382-83 (Dist. Ct. Op. 5/9/01), that Clark did

not discharge any effluent to the ditch it shared with Eaton, because the

district court held that this earlier finding was based upon the erroneous

testimony of Thomas Mattson, who mistakenly claimed that Clark did not

discharge any PCB-containing effluent to the shared ditch. See J.A. II at

436-37 (Dist. Ct. Op. 8/29/02).

KRSG also complains about an alleged inconsistency between

previous findings and the district court’s holding that facilities closer to

Morrow Lake were in fact the most likely source of the Aroclor 1254 and

1260 pollution at Morrow Lake. In an earlier order, the district court

granted Benteler’s motion for summary judgment on KRSG’s

contribution claim, which we affirmed. Rockwell I, 171 F.3d at 1073.

KRSG believes that the district court cannot have logically “exonerated”

Benteler in 1996 and then found it to be a potential PCB contributor in

2002. KRSG’s argument highlights its misunderstanding of the nature of

its evidentiary burden. The district court did not exonerate Benteler.

Rather, it granted the motion for summary judgment because KRSG did

not offer evidence that created a genuine issue of material fact regarding

Benteler’s contribution of PCBs. Here, a different defendant, Eaton,

presents the type of evidence that KRSG should have presented six years

ago; i.e., some convincing facts that the Morrow Lake contamination did

not come from sources upstream of Morrow Lake, but rather came from

facilities on the lake. This is not an inconsistency, but rather it is the

reality that Eaton is using evidence against KRSG that would have helped

KRSG in its case against Benteler.

ignoring the evidence of PCB contamination by Clark,

Benteler, and Consumers Power, we are not left with the firm

and definite conviction that the district court committed a

mistake. Connolly’s testimony about the lack of a gradient

flowing downstream from Eaton and the concentration of

PCBs at the downstream, rather than the upstream border of

Morrow Lake, as well as the dearth of evidence that Eaton

even used PCBs in significant quantities at any point in its

operation, all help bolster the district court’s allocation order.
Nos. 01-2453;02-2192 Kalamazoo River v.

Rockwell Int’l Corp. et al.

31

IV. CONCLUSION

Because the district court correctly dismissed KRSG’s

motion to reopen as a Rule 60(b)(2) motion that was timebarred and because the district court did not commit clear

error or abuse its discretion in allocating to Eaton only a very

small portion of KRSG’s investigation costs, we AFFIRM

the decisions of the lower court.