* The Hon orable R ichard M ills, United States D i strict Judge for the Central Distri ct of Ill inois, s itting by designation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0018P (6th C ir.) File Name: 04a00 18p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

K ALAMAZOO R IVER S TUDY G ROUP , Plaintiff-

Appellant

,

v.

R OCKWELL I

NTERNATI ONAL C ORPORATI ON and E ATON C ORPORATI ON , Defenda nts-Appe llees. X - - - -

> , - - - - - - - - N Nos. 01-2453; 02-2192

Appeal from the United States District Court for the We stern Dis trict of M ichiga n at Gran d Rapids. No. 95-00838—Robert Holmes Bell, Chief District Judge.

Argued: September 9, 2003
Decided and Filed: January 14, 2004

Befor e: MOORE a

nd GILMAN , Circuit Jud ges; MI LL S, District Judge. * 2 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

_________________ COUNSEL

ARG U ED: Jerome T. Wolf, SONNENSCHEIN NATH & ROS ENT HAL, Kansas City, Missouri , fo r Appella nt. Joseph C. Basta, D YK EMA GOSSETT, Ann Arbor, Michigan, for Appe llees. ON BRI EF: Jerome T. Wolf, James L. Moeller, Da vi d S . Lad wig , S ONN ENS CHE IN NATH & ROS ENTHAL , Kansas City , Missouri, Alan C. Bennet t, LAW, WEATHERS & RICHARDSON, Gr and Rapids, Michigan, for Appe llant . Joseph C. Basta, DY KEMA

GOSSETT, Ann Arbor, Michigan, Kathry n J

. Hu mp hr ey, DYKEMA GOSSETT , D etroit, Michigan, for Appellees.

_________________

OPINION

_________________ KAREN NELSON MOOR E, Circuit Judge. In 1990, federaland state

environmental au

thorities officia lly recognized

the mass i ve polychlorinated biphe nyls (“PCB”) contaminationof the Kala mazoo River in Michigan by placinga portion of the river on the Nat iona l Prioritie s List (“NPL”). The ens uing l itiga t ion over which entities were responsi ble for what share of the considerable inve stig ation and cleanup costs has traced

an eight-y

ear oscillation

throu gh and between various levels of the federal court sy stem. In the la test appear ance in o

ur court house, Pla

intiff-A ppella n t Kalamazoo River Study Group (“ KRSG ”), a consortium of former paper-mill owners whose facilities polluted the river, appea ls two distinct decisions of the District Court for th e WesternDi s trict of Michigan regarding the allocation of investigation

and reme diation c osts to Defendants-Appellees Rockwell / Mer itor (“Rockwell”) and Eaton Corporation (“Eaton”).Nos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 3

Following the placement of a stretch of the river on the NP L, the member companies of the KRSG entered into a

reme diation agreement with state and feder al authorities

. KRSGthenfiled actions against several other manufacturers who operated facilities on the river, includingRockwell and Eaton, under the contribution provision o f the Compreh ensive Environmental Response, Compensation and Liab ility Act of 1980 (“CERCLA”). See 42 U.S. C. § 9613(f). Following le ngt hy 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 Roc

kwell and only a small portion to Eaton.

KRSGfirst

appeals the distri ct court ’s denia

l of its motion to reopen the orde r relieving Rockwell of any contribution

res po ns ib il it y. After the district court issued its zer o

allo cationorder, KRSG discovered new evidence of increase d environmental contamination, pr ompting i t to file the motion to reopen. The distr

ict cour t, constr uing KRSG ’s filing

as a motion under Rule 60(b)(2) of the Federa l Rules of C iv il Procedure, denied the request as time-bar red. KRSG also appeals the distri ct court ’s o rde r a ll oc at in g t o E at on on ly a smallportion of

the inves tigation

costs and none of the future

r emediationcosts. KRSG contends that the district court applied an inappropriate standard of l iability and that the district c ourt made

severa l errors in its factual findi

ngs.

We AFFIRM both distri ct court judgmen ts.

I. FACTS AND PROCEDURAL HISTORY

Inth ei r n ea rl y d ec ade-long battle, these adversar ies have amassed a prodigious factu a l recor d, brimming

with environmental assessme

nts, ecol ogical

data, an d scientif ic opinions. We have alrea dy comprehensively detailed many of the pertinent factual disputes elsewhere. See Kalamazoo Ri ve r Study Group v. Rockwell Int’l Corp. , 171 F.3d 1065 (6th Cir. 1999) (“

R ockwell I

”); Kalamazoo River Study Group 4 Kalamazoo River v. Rockwel l 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 (6t h Cir. 2001) ( “Rockwell II ”). However, a brief overvie w of the litigation is in order.

A. Overview

In1990, the feder a l Environmental Protection Agency (“EPA”) added to t

he NPL a th irty-fi ve-mile stretch of the Kalamazoo River after discovering, in coordination with the Michigan Department of Na

tural Resourc es (“MD NR”), large PCB concentrations in the river. Rockwel l I , 171 F.3d at 1066

. In c onjunction with the E PA, the MDN

R identif ie d several paper mi lls owned by HM Holding s/Allied Paper, Inc. (“Allied”), Georgia-Pacific Corp. (“GP”) , an d Simpson Plainwell Paper Co. (“Simpson”) as the m ain s ources of the PCB contamination. In Dec ember 19 90, these three mil l

owners entered

int o an Administrative Order by Consent (“AOC”) with the MDNR, which required them to fund a remedial investig ation of the NPL si te, e ven thoug

h these KRSGmembers d

id not admit liability for

the PCB pollution by signing the A OC. The Fort James Operating Co. (“Fort Ja mes”), which also owned a facility located adjacent to th e NPL site, joined together with Allied, GP , and Simpson to formth e K al am az oo Ri ve r S tu dy G roup, which would conduct the investigation and

clean-up of the river. Rockwel l I , 171 F.3d at 1067.

The study of the river, r eferred to a s t he Remedial In vestiga tion/Fea sability

St ud y ( “RI/FS”), uncovered massiv e PCB contamination. The AOC mandated that for the purposes of the RI/FS, KRSG had to stud y an expanded ninety -five-m ile stretch of the Kalamazoo River. The RI/FS

zone included the Eaton Battle Creek plan t fifte en miles upstream of the NPL site and the Rockwell Universa l Joint fa ci li ty, located in Allegan downstream of the NPL site. The administrative success or to the MDNR, th e M ichigan D epartment

of Envir onmental Equality (“MDEQ”), ultimatel yNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 5

concluded

in 199 7 that the river contained over 350,000 pounds of PCBs.
PCBs, which accumulate predomina ntly in organica

lly rich, quiescent areas of the river, present a g rave public health risk, mainly because they contaminate fish with p otentiall y
cancerous chemical waste. Monsanto Corporation produced several differe

nt varieties of PCB s all unde r the bra nd name “Aroclor,” (i.e., A

roclo r s 1242, 1254, and 1260, with the higher number corres pondin g to a greater PCB molec ular weight). The KRSG companies used Arocl or 1242 extens ivel y

in their de-inking and paper manufacturing operations for seve

ral dec ades beg

inning in the 1930s, and they a lso u sed Aroc lor 1254 in transformers, c apacitors, hyd raulicsyst ems , an d pa in ts . Th rou gho ut th e NP L site
, Aroclor 1242 is the most prevalent PCB, and the MDEQ and EPAdetermined that KRSG companies were responsible for the bulk of the Aroclor 1242 cont aminatio n at the NPL site. The MDEQ also detected Aroclors 1254 and

1260 at the site, the questionable source of which forms the kernel of t hes e appeals

. All four KRSG

companies have not disputed that they are liab le and res ponsi ble pa rties with in th e meani ng o f CERCLA. See 42 U.S.C. § 9607. They have , however, claimed that they only

contributed minimally to the Aroclor 1254 and 1260 p olluti on a t the NPL site and thus another party must be responsible for those PCBs. As respon si ble parties with a statutory rig ht to contribution from potentia lly liableparties, see 42 U.S.C. § 9613(f), the KRSG members brought an acti on in Decemb er 199 5 aga ins t Rockwell, Eaton, and six other companies, including Benteler I ndustries and Consumers Power. KRSGalleged that these factory owners
were partiall

y r esponsibl e for the

PCB conta

mi natio n at the NPL site such that they owed K RSG contribution for the costs of the investigation and future clean-up. 6 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

1 Although the di stri ct court improper ly b urdened KR SG with a higher liability stand ard tha n was a ppr opr iate and thi s panel subse que ntly

revers ed the di stri ct court ’s appl icat ion of t hat standard, the district co urt’s fi ndin g of

lia bili ty f or Rockwell stands under both t he discr edited hi gher standard and th e less o nero us stand ard. See Kalam azoo Riv er Study Group v. Menas ha Corp. , 228 F.3d 64 8, 655 (6th Cir. 2000). B. Rockwell

KRSG’s contribu

tion action again st

Rockwell alleged

that Rockwell’s Allegan

fa ci li ty, which pr

oduced u niversa l joints for automobiles and construction equipment, contribu ted to the PCB contamination at the NPL site. The Allega n facilit y
was in opera

tion from t

he earl y 19 00s u ntil 1989. In 1987, the EPA, in

anunrelat

ed action, added

the Allegan faci lity

to the NPL because of ar senic, cya

nide, and chro mium contamination, but not because of any widespre ad PCB contamination. Soil te s ts at Allegan did reveal the presenc e of some Aroc lo r 1254 (along with some Aroclor 1242 and 1260) in the groundwater and light non-aqueous pha se liquid (the oily film on top of water). Even though there existed no de finitive proof that R ockwell ever p urchased PC Bs o r conducted

manufacturing o

perations that w o uld nece ssitate the use of PCB-containing oils, the presence of PCBs on the propert y indicated th at it did in fact purchase and employ PCBs in its oper

ation. Thi s fact, however, did not resolve the

more salient qu

estion of whether these PCB s actu ally

found their way to the

Kalamazoo River such that they contributed to the over

all polluti on for wh

ich KRSG

was responsible. In December

1998, the

district c ourt held

that Rockwell did releas e PCBs into the Kalamazoo Rive rNPL site and was therefore liable for some of the pollution. 1

Su bsequen tl y, in June 2000, the distri ct court set out to determine the precise allocation o f c osts Rockw ell owed t o KRSG. The distr

ict cour t focuse d almost exc lusively on the quantity o f PCBs released by Rockwell versus the amount leaked by t he KRSG companies. It determined that “[g]ivenNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 7

2 Owing to th e consoli dated nature of this case, the part ies s ubmitt ed two different

joint appendices. The KR SG-Roc kwell joint app end ix (No. 01-2453) is denot ed J.A. I, whereas the KRSG-Eaton j oint appendi x (No. 02-2192 ) is denoted J.A. II. the low levels of PCBs on the Rockwell property , and the fact that t he river sediments and the fish tend to show no significant

contribu tion by Ro ckwel l, the Court finds that Rockwell’s PCB contribu tion was ve

ry minimal, particu

larly incontras tto 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 c ould not re cover f rom Rockw ell. KSRG appealed, arguing that theexistence of a logicaldiscontin uity between holding a

party liable an

d all oc ating no

costs demonstrated

that the district court had

abused its discretion. We affirme d the distr

ict c ourt’ s holding in December 2001; there was no inconsistency, a nd the district co urt had broad discreti on to alloc ate the c osts of the remedial investigation,

even if the re sult was a

zero allocation to a

liable corporation. See Rockwell II

, 274 F.3d at 1049.

The immediate circumstances giving rise to this appea l

were borne of

the acrimonious relation ship betwe en the EPA and Roc k well. In April 1998, the EPA revoked Rockwe ll’s authority to investigate the Allegan NPL site becaus e o f multiple delays and a

cts of noncompliance by Rockwe ll

. Throughout

2000 and 2001, the EPA assumed control of the investigation

and d iscovered that the Allegan facility in fact had dramatically hig

her PCB levels than Rockwell had previous ly

disclose d; in some in stances the new PCB levels

were more than one hundred times the previ ously reported levels. On Augu st 9, 2001, the EPA or dered Ro ckwellto ab ate an “imminent and substantial endangerment to the publi c health

. . . .” J.A. I at 942 (EPA Order, Aug . 2001). The EPA also noted one PCB plume was then enter ing the Kalamazoo Riverand another was migrating towar ds the river. 8 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

After learnin g of the EPA order, KRSG

filed a motion wi

th the district court on September 21, 200 1 to reopen the CE RC LA allocation proceedings fi fte en months after the court had made

its June 2000

allocati on order . KRS G claimed that Rockwell had de liberate ly o bfuscat ed this da ta incontravention of its statutory duty , and as a result KRS G 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 bec ause KRSG filed it after the oneyear time limit for Rule 60(b)(2) motions had expired.

Onap peal, KRSG

offers severa l alterna tive arg uments. First, KRSG contends that the district court er rone ously considered

KRSG’s mo tio n as a Rule 60(b)(2) motion, because CERCLA

itself pr ovides an

equita b le basis for reop ening an allocation order in the face of cha ng e d circumst ances. Second, KRSG argues that if Rule 60(b) does appl y, then the district court should have invoked Rul e 60(b)(5) instead o f Rule 60( b)(2) be cause

the district court’s original order w as “ pr ospectiv e” and a ccordin gly subject to Rul e 6 0(b)(5) ’s “rea sonable t ime” limita

tion, as op

posed to Rule 60(b)(2 )’s one-ye ar time ba r. Third, KRS G impli citly posits that the newly discove redevidenc e provide s a sufficie nt basis for reallo cating

the reme diation c osts.

C. Eaton

KRSGor i ginally

brough t a contr ibution action aga

inst Eatonbecause Eaton operat ed three facilities near the Kalamazoo River NPL

site: Eaton Ma

rshal l, Eaton B attle Creek, and Eaton Kalamazoo. The district court granted summary judgme nt in fa vor of Eaton as to the Marshall and Kalamazoo facilities in June 1998. Eaton Battle Creek, which is no longe

r in operation, was located

fifteen miles upstream of Morrow Lake Dam

and twen

ty m iles upstream of the Kalamazoo River NPL

site. While

it was b ey ond th eNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 9

boundaries of the NPL site, it waswithin the larger confines of the RI /FS zone. T

he Battl e Creek

facility manuf actured

a utomot ive parts, namely e ngine valves and gears, and undispute dly

releas ed significant quantities of oil into the river for over four dec ades. The main que stion atte ndant to the contribution ac tion aga inst Eaton

is whethe

r that oil contained PCBs and

if it did, whether those PCBs affected the NPL site and the RI

/FS zone.

There is some evidenc e that Ea

ton Battl e Creek employe d PCB-laden

oils in its manufacturing processe s, althoug h it appears that it did n

ot do so on a regular basis. I nvestigators discovered

PCBs (pri

marily Aroclors 1248, 1254, and 1260) inseveral sewer outditches and in the wood blocks that lined the floor at B attle Cre ek. The d istrict c ourt eve

ntually concluded

that “the PCBs used i n Ea ton’s Battle Creek facility were only f

ound in the transformers and c apa citors and the hy draulic fluids, and those

fluids we re not re leased t

o the River in any

re gular or measurable manner.” J.A. II at 300 (Dist. Ct. Op. 12/7/98). In other words, Ea

ton minimal ly used some PCB- containi

ng hy draulic oils in closed sys tems; the oil from these systems did not flush directly into the river and leaked only in small amounts onto the floor and possibly in to va ri ou s s ew er di tc he s o n t he Ea to n p ro pe rt y.

KRSGattempted

to prove that Eaton PCBs actually entered the river a

nd contri buted to the pollution o f the NPL site or the RI/FS zone by p resenting undisputed evidence that MorrowLake , situated

betwee n Battle Cr eek and

the NPL site
, is polluted

with prima

rily Aroclor 1254 and m

inim all y Aroclor 1260. KRSG could nothave 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 M orrow Lake PCB conta mination impacted the NPL

site such

that upstre am polluters of MorrowLake should be held responsible as c o nt ributing 10 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

3 KRSG is not responsibl e for the clean- up of Morrow Lake and other

areas o utsi de o f th e defi ned NPL site, but the RI/FS zone en compasses Morrow Lake and the Kalamazoo River upstream to Eaton Battle Creek. Eaton, as a contri butio n defendant, is potentiall y liable f or future remedi ati on costs o nly to th e extent that PCBs for which it is respo nsible flowed downst

ream an d impact ed th e NPL sit e. Eat on c ould be respo nsible for the costs of investi gating the RI/FS even if its P CB s did not af fect the NPL sit e. parties. 3 Morrow Lake is contaminated w ith Arocl or 1254 (constituting ninety perce nt of the total PCB contamination), and while there is evide nce that Battle Creek’s wastewater disch arge ditch is heavily contaminated with Ar oclors 1254 and 1260 at levels compa

r able to or exceeding the Aroclor 1242 contaminationat the actual NPL site, othe r compan ies, including Clark Equipm ent, used this d itch. Evid

ence al so exists that between Eaton

Battle Creek and

Morrow Lake, the PCBs appeared in high concentra tions in area s with

low amounts of organ ic mat erial , sugg e sting that when one

con trols for the presence of org anic content (a procedure knownas “car

bon norma

lization”) , the PCB concentration of Aroclors 1254 an d 1260 near Battle Creek was among the highest in the Kalamazoo River area.

InDecemb er 1998, the distri ct court rule d t hat while the evidence showed that Eaton did ut ilize some PCB s in its electrical and hy

draulic equip ment, any PCB leaks we re minimal in vol ume and sporadic in occurrence, such tha t Eatonwas not liable for contribution. However, in assessing li ab il it y, the distri ct court employ ed an impr

oper lia bility standard, which ca

used us to rema

nd the case for reevaluation. See Kalamazoo River Study Group v. Menasha
, 228 F .3d at 661 . In M ay 2001, the

district c ourt, whil e maintaining its previous holding that there was only the most scant ev idence o f a meas

urable PC B discha

rge int o the NPL site fromBattle Creek, ruled that it was “constrained to find that Eaton is liable for some PCB rel eases . . . to the Kalamazoo River.” J.A. II at 399.Nos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 11

The district court then proceeded to receive evidence

on the allocationof response costs betw ee n KRSG and Eaton. KRSGpresented the testimonies of Brown and McLaug

hlin, with the latter statingthat he discovered at Battle Creek PCB concentrations ranking in the upper 2% of all PCB samples taken from the NPL site. Ma ny o f McL aughlin ’s sample s, whichdemonstr

ate the presence of high P CB conc entrations,
camefrom a d

rainag e ditch leading to the river that Eaton shared with Clark Equipment. McLaughlin conclude d tha t Battle Creek significantly

contributed t o the PCB contamination at the NPL site.
Eaton, in respons e , r el ie d o n t he te st im on y of Co nn ol ly, who testified that the P CB c once ntrations in the ditch and several of the sample locations near the ditch’s o utfall tothe river were not characteristic of thePCB concentrations in the river between Battle Creek

and Morrow Lake. Conn olly essentia lly posited t hat the Aroclor 1248, 1254, and 1260 concentrations in the g ene ral 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 L ake. Ge ne ra ll y, PCB concentrations will be highest near the PCB source and will increa singly

diminish as

the distan

ce from t h at source grows. Comparing

the Kala

maz oo River to other PCBcontaminated

rivers with a “nor

mal” PCB gradient, such as the HudsonRiver in NewYork and the Housa

tonic Rive

r in Massach usetts, Connolly highlighted the la ck of a gr adient stretchingfrom the Battle Creek “source” to f urther downstream

points. Co nnolly testified that this lack of a gradient contradicted the conclusion that Battle Cr eek was a primary contributor of Aroclor 1254. Connolly bolstere d his theory by sugg esting that

the absence of a high conce ntration of PCB contamination at

the sediment-rich

upstream entrance to Morrow Lake provided stron g e vidence that facilities closer to Mor row Lake , su ch a s t he B ent ele r In dustries and Consumers Power site s, were the true sources of the Morrow Lake contamination. 12 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

OnAugust 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 inve stigation cost for that portion e quals $ 62, 261.58). First, the court noted that KRSGhad “the burd en of provin g its equ itable ri ght to contributionby a preponde rance of the evidence.” J.A. I I at 433 (c itin g United

States v. R.W. Meye

r, Inc. , 932 F.2d

568, 573-74 (6th Cir. 1 991)). Se cond, th e d istrict court rejected McLaughlin’s

testimony in favor of

Connolly ’s, writing that while it did “no t find Mr. McLaughlin’s c onclusions to be wellsupported,” it “found the testimony of

Dr. Connolly to be

more persuas iv e . . . .” J.A. I I at 4 43, 445. I

t reached this conclusionbecause

of Connolly’s creden

tials and b ecause

it had more conf

idenc e in the science underly ing Connolly’s

co n clusions. In listing the reasons why it disfavored McLaughlin’s position, the district court noted that KRSG’s claim that Eaton princip ally

contami nat ed the ri

ver with Aroclor 1254 “ignore[d] othe rpotential sources of P CBs located upstrea m of Eaton ’s Battl e Creek facility that coul d have contribut ed to the PC Bs found in the former channel and current channel of

the Kalamazoo River near the Eaton/Clark ditch.” J.A. II

at 444. Con sequentl

y, t he court agree d with Connolly’s dual contentions that other parties contribu ted to the PCB contamination i n Mo rrow Lake and tha t Eaton discharged

onl y a “d e mi cro mi s,” J. A. II a t 457, amount of PCBs to the Eat

on/Clark d

it ch. Th e court found persuasive th e a rgumen

t that only

a fraction of this

“de micr

omis” amount traveled to Morrow Lake and only a fr

action of th at fraction actuall y pa ss ed over the Morrow La ke Dam to the NPL site.

The cou rt then reached the ten-perce nt figure by

applying the “Gore F actors”

outlined in Centerior Service Co. v. Acme Scrap Iron & M

etal Corp. , 153 F.3d 344, 354 (6th Cir. 1998), and rely ing almo st exclusive ly on the “the amount o f th e hazardous waste involved.” Plaintiff’s experts had estimated that Eaton was responsible for forty perc e nt of the Aroclors 1254 and 1260 at

the NPL site, but the district court rejectedNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 13

this contention as lacking an “articulated scie ntific b asis .” J.A. II at 468. Instead, the district court accepted Connolly ’s estimate that only 1.3% of the PCBs in the NPL site coul d have come from Morrow La ke. In sum, the cou

rt rejec ted both the notion thatMorrow Lake was a primary

contributor of PCBs to the

NPL and that Eaton was a primary

contributor to the PCB contamination at Morrow Lake.

O n app eal of the Eaton decision, KRSG first contends that“ [a]l thou gh the Distr ict C our t paid lip service to the preponderanceof the evidence standar d . . . it applied a much

more stringent standard,” re quir ing KRSG to disprove the potential responsibility of other upstream facilities. KRSG’s EatonBr. at 1 7. Second , KRSG cla ims that the district court committed

clear factual errors

by accepting the theory

that the PCB contamination at Morrow Lake and at the NPL sit e might have come from sources other than B attle Creek.

II. JURISD ICTION
The district court had proper jurisdiction over the original contribut io naction pursuant to 42 U.S.C. § 9613(b), the jurisdictional provision for CERCLA actions. The di strict court’ s abili ty to hear KRSG’s motion to reopen the allocation pro ceedings stems from those same jurisdictional p rovisio ns. In a November 9, 2001 orde r, we ruled that we had jurisdiction over

KRSG’s appeal from the district court’s denial of the motion to reopen the alloca t ion p roceed ings againstRockwell. We have jurisdiction over KRSG’s appeal of the district court’s final Eaton allocation decision pursuant to 28 U.S.C. § 1291.

III. ANALY SIS

Becau se KRSG’s two appea ls present completely distinct legal and factual issues, we discuss each in turn. First, w e examine KRSG’s claim that the districtcourt erred in deny ing KRSG’s motion t o r eopen the allocati on decisi on aga

inst 14 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

Rockwell

. Second, we explore KRSG’s ar

gument that t

he districtcourt er

red both i nits choice of

a standa rd of liab ility and its application of that standard to the facts in its Eaton allocation ord er. We hold that the district court acted properl y in both insta

nces. A. KRSG’s Rockwell Appeal

1. Standard of Review

Ge ne ra ll y, we review the denial of a Rule 60(b) motion for abuseof discretion. See BlueDiamond 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 ap plication

of the Fe deral Rul es of Civil Procedure as a question of law and, as with all legal questions
, review [the di stric t court’s] analysis de novo.” Jalapeno Prop. Mgmt.
, LLC v. Dukas , 265 F.3d 506, 510 (6th Cir. 2001) (citi ng Indiana Lu mbermen s Mut. Ins . Co . v

. Timberland

Pallet & Lumber

Co. , 195 F.3d 368, 374 (8th Cir. 1999)). The distri ct court’s decision to construe KRSG’s

mo tion to reopen as one falling under the umbrella of R ul e 60(b), and more specifically Rule 60(b)(2), i s clearly a n interpretation

and application of the Rules of Civil Procedure, and thus w e review de novo this portion of the court’s analy sis.

2. The Reopening of Allocat ion Orders under CERCLA

KRSGbases its objectionto the district court’s pigeonholing of its motion to reopen as a Rule 60(b) motion

onthe notion

that the i nherently equitable nature of the CE RC LA allocati on mechanism permits the reopening of allocationjudgmen

ts indepe ndent of R

ule 60(b) . KRSG argues that

CE RC LA allocation orders are subject to revision whenever the equit ies under lyin g the de cision shif

t. Finding

no aspect o f C ERCLA that confirms KRSG’s assertion, we disagree.Nos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 15

4 At oral ar gume nt, couns el f or KRSG sugg est ed th at t wo sec ti ons of CERCLA sup por t KR SG ’s argum ent in this reg ard. See 42 U.S. C. §§ 9605(c)(4), 962 2. Co unsel’s re ferenc e to these secti ons was mi sguided because while both c oncern the impact

of fut ure event s upon some aspect of CERCLA , nei ther e ven remo tely suppor ts KRSG’s arg ument . Sec ti on KRSGis certainly cor

rect th at principles of equity g uide CERCLA’s contribution provision, butnot hi ng i n C ER CLA compelsthe conclusion

that the equitable underpinnings of an allocationdecision exempt it from the requi rem ent that motions to alter judgments be broug h t under Rule 60(b). CE RC LA permits courts to “ a llocate response costs among liableparties using such equitable fa ct ors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(1). There is nothing i

n § 9613(f

) that suggeststhat Rule

60(b) is not the proper vehicle for al terin g a

judgment, and quite the opposite, 42 U.S.C. § 9613(f)(1) clearly states that

all claim s “shall

be brought in accordance with . . . t he Fede ral Rules of Civil Procedure.” Presumably, this illustrates Congress’s intention to make CERCLA allocation decisions no less subject to the FederalRules of Civ

il 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 de cision isforever subject to revision should there be any alt erati on in the eq uiti es und erlying th e allocationorder. KRSG’s position c an not prevail. The equitabl e basis of CERCLA a l location decisions does not deprive all allocation orders of their finality . Other e quitable decision s, such as an order mandating sp ecific performance ina c on tract dispute, are not automatically subject to future revision. KRSG does n

ot point us to

any part of CE

RCLA in whichCongr ess has expressed a desire that all

allocation decisions should be considered ongoing or nonfinal such tha t there is another method by which r el i ef from judgment may be sought other than Rule 60(b). 4 16 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

9605(c)( 4) is comple tely inapposi te her e; i t concern s fut ure change s to the Pre siden t’s n ationa l contingency plan f or the removal of hazardous subst ances and stat es tha t “[n]oth ing . . . shall precl ude t he Pres ident fr om taking new information i nto account in undertaking response actions

. . . .” Se cti on 9622 is slightly mo re on poin t, as it contro ls the Pr eside nt’s

a bility to ente r into settlem ents and agree men ts with po tentially responsible parties. It explici tly s tates t hat cleanup agre ement s ar e to be entere d as consent decrees in a dis tr ict cour t. 42 U.S .C. § 9622 (d)(1)(A). Relian ce on § 9622 does not aid KRSG. Firs t, a consent decr ee i s inhere ntly differen t from a contrib ution a llocatio n dec isio n, whi ch is a

mone t ary judgment; a consent decree is “a set

tlement agreement

subject to contin ued judic ial pol icin g.” Lorain NAACP v. Lorain Bd. of Educ.
, 979 F.2d 114 1, 11 48 ( 6th Cir. 1992) (qu otat ion omi tt ed). Second, § 9622 does not explicit ly discuss any mechanism for reopening final jud gme nts that is uni que t o CE RCLA Instead it states, “In the case of consent decrees

. . . no pr ovis ion of this chap ter shall be cons tru ed to pr eclu de or otherwise affect the a pplic ability of g eneral principles of law regarding the setti ng as ide or modi fi cati on of cons ent de crees or oth er settlem ents.” 42 U.S.C. § 96 22(m). KRSGdirects our attention to two cases as support for i ts viewthat CERCLA contains an internal mechani sm for reopening allocation decisions, but neither opinion persuas ively

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

, Inc. , 972 F. Supp. 41(D. Mass. 1997), a federal districtcourt fashioned an ong oi ng a nd p rov is io nal CE RC LA allocationorder, s tating, “Either party may file with the

court, when go od cause

to do so ha s d ev el op ed fa ct ua ll y, a motion supported by a showing

of a mate rial cha nge in circumstances that justifies

a chang e in the a

llocation of share s amo ng th e parties.” Id. at

63. Uncertainty a

boutthe completeness of the remedia l-cost evidenc e befor

e the cou rt prompte d it to perm

it explicity a “rea sonable o

pportunit y for any interest ed party to initiate later proceedings to modify the provisional allocation of equitable shares of legal responsibil ity . . . .” Id. at 69. The district c ourt belie

ved that a spects of C ER CLA militated againstfina l ity, and it acce pted “the consequences of delay and greater expense of final ad ju dication

in order to come closer . . . [to] equitable allocation of legal responsibilities.” Id. at 62. The cour

t issued a provisional judgment beca use ofNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 17

the insufficiency of

the evidence before

it, which prevente d it from asse ssing “e quitable shares o f lega

l respons ibility

with th e degree of confidence implicit in findings made on a preponderance of the evidence .” Id. at 71.

KRSGalso cites the Seventh Circ ui t’s opinion in PMC, Inc.

v. Sherwin-W

illia ms Co. , 151 F.3d 610 (7th Cir. 1998), for the proposition that distr ict cour ts may always re open an allocationjudgment even in the absence of a Rule 60(b) motion. In PMC, the district court had made Sherw i n Williams liable for one-h u ndred percent of the costs of cleaningup a hazardous waste site. Sherwin Williams sought contribution because PMC had dumped wa ste at the

site after it acquired the property

fro m S herwin Williams. The court recognized

that PMC mightbe responsible for future clean-up costs should it be o rd ered to clean up any waste, other than wasteat issue in Sherwin Williams’s contribution order, that PMC co nt ri bu te d t o t he si te af te r i t p ur ch as ed th e p ro pe rt y. Id. at 617. However, the Seven thCircuit he ld

that the district judge did not abuse

his discre

tion in ruli

ng that PM C did

not

owe Sherwin Williams contribution for already incurred costs because PMC’s dumpe d waste “m ay have

been too inconseq uenti al to affect [Sherwin W illiams’] cost of cleaning up significantly.” Id . at 616. K RSG directs our atte

ntion to the Seventh Circuit’s consideration of whether the allocation of cleanup costs was pre

mature given that

it concer ned costs “that P MC has not yet incurre d.” Hypothesizing, the c ourt

co nfirme d

that t he al loca tion w as pr

oper beca use “ [i]t

ec onomizes on judicia

l time . . . a

nd it also le

ts the par tie s know at the earliest opportunity w here they stand.” Id. The court continued
, “coope

rativen ess i n doing the actual clean-up is a relevant equitable factor that cannot

be evaluated until the clean up is compl ete . . . [b]u t t his 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 ci rcum stance make adherence to the origina l determination inequitable.” Id. (citations omitted). 18 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

Whatthese ca ses sh ow is no t that allo cation de cisions in CE RC LA cases are inherently subject to change, but rather that courts ha ve the power to fa shion rel ief that i s subject to future change. Nei ther

case stands for the proposition that CE RC LA provides an alternative route for re opening decision s in li eu of Rule 60(b), but rather they affirm the broad equitable powers of the district court. Thecourt i n Acus hnet saturate d nearly thirty written p ages w

itha n
e xplanation for why a

provisional ruling was necessary

. While the Acushne t court di d discuss a n ideal of flexibility within CERCLA, it di d not (nor could it) establish a broad rule that allocation orders were provisional and exempt from Rule 60(b). It instead crea ted a provisional order in the face of insufficient evidence when the r e was a concern that the evide ntiary

mooring s of any

fixed alloc ation wou ld disintegrate in the future.

Si mi la rl y, KRSG’s foc us on PMC is misplaced. The Seventh Circuit’s PMC

decision only hy

pothesized about what a district court c ould

do in the fa

ce of a prematur

e claim if t here were uncertainty

about one of the equitable fact ors , i.e., cooperation. The Seventh Circ uit’ s stateme nts in dicta did not establish a ground rule that all allocation decisions based on eq ui ta bl e d et er mi na ti on s w il l a lw ays be subject to revision s. Moreover, hurting rather than helping KRSG’s argument is the fact th at the Seventh Circuit affirmed the districtcourt’s

decision not to alter the allocation despite new evidence of contamination when the district court concluded t hat any contribution PMC may have made to the contamination at the site was negligible.

Inallocating no costs of the future remediat io n to Rockwell
, the distri ct judge mentione d nothing

about a provisional ord er or potential alterations in the future. Nor does the language of the district cour t’s order leave room for

us to in fer tha t the allocation decision was provisional or suscepti ble to change based upon future eve nts. U nlike the lower co urts in Acushne t and PMC , the district court did notNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 19

describe how the c ircumsta nces of t

h is ca se or the insufficiency

of the evidenc e left open the possibility for fu ture alteration of the allocation. Rather, the district court here simply

stated tha

t under the “Gore ” equit able f actors, “Rockwe ll should not be required to contribu te to the remediation of the . . . Superfund site. The PCB releases by Plaintiff’s membe r s are more than sufficient to justify imp o sing on Plaintiff the entire cost of response activities relatingto the NPL site.” J.A. I at 926 (Dist. Ct. Op. 6/3/00). This allocation order d oes not intimate that the evidence before th e distri ct 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, howe ver, should be construed as ruling that districtcourts cannot fashion provisional allocation orders or that district courts must explicitly label an allocation orde r “provisi onal”for a reviewing court to evalua te it as such. As demonstrated

by Achushne t and PMC , provisional allocation orders can be v aluable

equitab le tools in the event of incomplete evidence.

This was not such an order. There i s n o reading of the districtcourt’s

opinion tha

t sugg ests its zero-allocation order

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

we have been presented with no suppor t fo r the notion that CE RC LA provides a mechanism indepe ndent of Rule 60(b) for revisiting a

llocation orders.

3. The Distric

t Court’s Choice Between Applica tion o f Rule 60(b)(2) or Rule 60(b)(5)

KRSGalterna

tively contends that if its m

otion to reopen i s viewed as a Rule 60(b) motion, then the more gener ous time limits of Rule 60(b) (5) should apply. The district court analyzed KRSG’s moti on as if it

were a Rule 60(b)(2) motion and accord ingly denied it as time-b arred, because

KRSGfiled its motion more than one ye ar after the entry

of the allocation 20 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

5 At the ou tset, we ca nnot c riticize the district c ourt’s turn to Ru le 60(b)(2), given that i t was analyzi ng a motion t o reopen that did not ev en menti on R ule 60(b). The district court in many ways gave KRSG the ben efit of t he doubt, because the distri ct judge could have denied the moti on on the ground that his a llocat ion order was not subj ect to r evis ion absent a Ru le 60 (b) m otion given tha t nothing in CERCLA mandates the reopening of allocati on orders. However, the distric t judge did not f oll ow that path, and now, a fter KR SG ’s failure to m ention Rule 6 0(b ) initially, KRSG contends that t he distric t judge chos e the wr ong su bsec tion to app ly. KR SG ’s approach raises the specter o f waiver . It is “a prer equ isite to reli ef under

Rule 6 0(b ), [that] a p arty mu st establish that the fac ts of its

case are wit

hin one of

the e numera ted reas ons con tai ned i n Rule 60(b)

. . . .” Lewis v. Alexander
, 987 F.2d 392, 396 (6th C ir. 199 3). Fa ilure to raise an is sue at

the trial co urt gene rally pre vents a party from arguing t he issue on app eal. See Th urm an v. Ye llow Fre ight Sys. Inc. , 90 F. 3d 1160, 1172 (6th C ir. 199 6). K RS G c laims tha t it did ra ise the sub stance of its R ule 60(b )(5) argu ment in i ts moti on to r eopen, even t hough it did not exp licitly ment ion Rul e 60(b)( 5). As support, it point s t o a 1998 deci sion in which we sta ted th at an ar gument not expli citly rai sed at the tri al court level woul d st il l be c onsi dered wh en i t i nvol ved a ques tion of la w. United Food & Com me rcial W orke rs Un ion, L oca l 109 9 v. S outh west O hio Reg’l Tran sit Auth. , 163 F.3d 341, 360 n.9 (6t h Cir. 1998). While United Food is somewh at i napposi te, becaus e it concer ned a party ’s at

tempt t o raise a First Amendm ent overbreadth argument that was n ot raise d in th ose ter ms initially, we ag ree tha t KR SG has elu ded waiv er by the sl immes t of margins. The general principle that a distri ct court should not rais e a Rule 60(b) motion sua spon te does no t apply, becau se the rule against doing so onl y adher es if t

he liti gant has fai led to fil e any motion, whereas here KRSG fil ed a motion, albeit an amb iguou s one

. See Eaton v . Jamrog , 984 F.2d 760 , 762 (6th Cir. 1993). order. 5 We revi ew de no vo the district court’s decision and hold that there was no error, because the district court’s initial allocationorder w as not “pr ospectiv e” within

the meaning of Rule 60(b)(5 ) and ac cordingly the tim e strictur es of Rule 60(b)(2 ) contro l.

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

re lieve a p arty . . . from a [n] . . . order . . . [when] it is no longer equitable that the judgment shou ld hav e prospective application.” Unl ike Rule 60(b)(1)-(3) motions, which cannotNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 21

be brought more than

a yea r after a n 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 applicationof Rule 60(b)(5) here turns on the meaning of “prospective.” The mere possibility that a jud gment ha s some future effect does not mean that it is “p ros pective ” becau se “[v] irtua lly

every court or

der cau ses at lea st some

reve rberations into the future, and has . . . some prospect iv e effect.” Twelve J

ohn Does v

. District o

f Columbia , 841 F.2d 1133, 1138 (D.C. Cir. 198 8). The essential inquiry into the prospective nature of

a judgmen t revolve s around “

whether it is ‘executory ’ or invol

ves the ‘s upervision of changing conduct or conditions.’” Id. at 1139 (q uotation omitt ed)

. Inj unct ions (permanent or temporary ), some declaratory judgmen ts, and particularly

consent decrees are prospec tive judgmen ts suscepti

b l e to a Rule 60(b)(5) challenge. See 12 James Wm. Moore, Moore’s Federal P

ra ct ice §§ 60. 47[1]- [2]. Money judgme

nts, however, d o not generally have prospective applica

tion beca use they are

final in the sense of involving a set monetary

outlay. Id. at § 6 0.47[ 1][b].

Most cases consider Rule 60(b)(5)’s “prosp ective application” clause in the context of consent decrees, which

are pros pect ive by nature. T he Supreme Court in Rufo v. Inmates of Suffolk C

ounty Jail , 502 U.S. 367 (1992 ), held that

a plaintiff in institutional-reform litigation could get relief under Rule 60(b)(5 ) where “ a signif icant change e ither in factual conditions or

in law” a ltered the equita

ble basis for an ongoingconsent

decree. Id. at

384. The C ourt made

clear in Rufo t ha t this rule

should not b e limited to institutionalreform litigati on, but whi le the Court may have inte nded its analy sis to apply

to consen t decre es involvi

ng priva te partie s, the Court did not expand the scope of the term “prospective”

so as to encompass more varieties of equi table j udgmen ts. We are not aware of any

case in which Rufo has been applied to judgments other than consent decrees, dec laratory judgmen ts, and injunctions, which often require ongoing court supervis ion and fu

ture judic ial in

volv ement. See Lorain 22 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

NAACP v. Lorain Bd. of Educ.
, 979 F.2d 1141, 1148 (6th Cir. 1992) (citing the Rufo modifica tion sta ndard in the school desegregation

context); see also United States v. W. Elec. Co.
, 46 F.3d 1 1 98, 12 03 (D. C. Ci r. 199 5) (app lying Rufo ’s “less stringent [] standard” to antitrust consent decree outside of the institutional-reformcontext, but noting that Rufo only applies to certain typ es of inju

nctive r elief) ( alterat

ion in origin al); United States v. Kayser-Roth Corp. , 272 F.3d 89, 95-96(1st Cir. 2001) (engaging

in a Rule 60(b)(5) analy sis when a declaratory

judg ment f

or future response costs would have prospective effect and there existed change d circumstances).

We also must

heed the requirement that parties cannot disguise Rule 60(b )(1)-( 3) motions a s 60(b)(4)-(6)motions. Whatin reality is a 60(b)(2) m otion can not be lab eled as a 60(b)(5) motion to g ain the be nefit s 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

newe viden ce of PCB dumping at the Allegan fa cility alters the equitable calculus employed by the distri ct court , but its claim sounds ve ry much like a claim r

egard ing newly discovered

evidenc e, whi ch 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 (7 th Cir. 1996) (considering under Rule 60(b)(2) claim that par ty was en titled to relief when there was new evidence regar

ding cle anup of si

te in anactio n conc ernin g a noncontribution provision of CERCLA).

KRSGis incorrect in its assertion that the distri ct court’s allocationorder

was “prospective” in theRule 60(b )(5) se nse of t he word. The distr

ict cour t’s alloc ation ord

er was not a consent decree, an injunction, or even a declaratory judgmen t. Rather, the alloc ation dec is ion stated that Rockwell was not responsi ble for any me asurable PCB contamination to the NPL site; this was a one-time jud gment that Rockwell was notrequired

to contribute and it did not provide for any future supervisionor

alterat ion by the distri ct court . Merely becauseNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 23

6 Even if KRS G had filed a timely Rule 60(b)(2) motion, it coul d not obtain r elie f. It di d not appear t o exercis e due dil igence in obtaining t he

new evidence . It is somewhat su rprisin g that KR SG d id not seek to test the Rockwell s ite i tself s ometime during discovery. It is even more incred ible that

KRSG did not s eek access to th e R oc kwell site in A pril 1998 when the EPA anno unced its suspi cion that Rockw ell was “not fulfilling its obliga tion to tho roug hly and obj ectively inv estigate th e Site and present the resul ts on behalf of t he public; but, r athe r , contrivi ng a stu dy to avoid liabil ities at the Sit e[, ]” wh ich rai sed a boldred fl ag. J. A. I at 1498 (EPA Letter) . KRSG certainl y had ti me to inv esti gat e the sit e eith er duri ng the t hree year s of dis covery

tha t pre ceded t

he l iabi lit y porti on of th e trial or d uring the eightee n-mo nth spa n betw een the Apr il 1998 EPA action and th e beginni ng of t he all ocation pha se in November 1999. KRSGrequested c on tribution for future costs, which the district c ourt denied, and merely because KRSG’s prospect iv e
reme d iation expenses would be higher in a relative sense as

a result of the distri ct ju dge’s order, does not mean that the order was “prospective” under Rule 60( b)(5).
Thus, we agr

ee with the district court’s decision to apply Rule 60(b)(2 ), which

permi ts motions for relief from orders based upon “ne

wly discover

ed evidence which by due diligence could not have been discovered in time to move for

a new trial under

Rule 59(b ).” Fe d. R. Civ. P. 60(b )(2). Rul e 60(b)(2) motions must be brought within one year a fter en tr y, wh ic h p er mi ts a p ar ty a n e xt ra 35 5 d ays more than the usual ten-da y periodto file a motion for a new trial. KRSG’s motion must fail because it was filed more t h an fifteen months af ter the e ntry of the jud

gment. 6

B. KRSG’s Eaton Appeal
KRSG appeals both the evidentiary standa rd employed

by the district c ourt and t

he court ’s all ocation t o Eaton of only for ten percent of the investigation and for none of the future cleanu p costs . More specifically , KRSG claims that the districtcourt pa

id “lip ser

vic e” t o the “preponderance of 24 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

evidence” standar

d, while actually employing a

much higher and more stri

ngent st andard; in KRSG’s estim ation, the districtcourt held it to an

impermiss ible standar

d of “abs olute disproof” because it required KRSG to d e monstrate concl u sively

that othe

r partie s did not ca

use the PCB contaminationin the discharge ditch a nd in t he ri ver. We disagree. We conclude that the district court applied the appropr iate “prepondera

nce of the evidence” standard and neither abused it s discretion in allocating only ten percent

of the costs to Ea

ton nor committed a c lear er ror in its f

ac tual finding s.

1. Standards of Review

We review d

iffere nt aspects of the d

istrict cou rt’s order using different standards of review. We review de novo the legal conclusions of the distric t 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 cour t’s allocationdecision

more def erentia lly, parti cul arly bec ause of the equitable nature of

CERCLA contribution decisions. See FranklinCounty Convention Facilities Auth. v. Am. Premier Underwrit

ers, Inc. , 240 F.3d

534, 549 ( 6th

Cir. 2001) (noting the districtcourt’s

“broad d iscretion” in

all oca ti ng C ER CLA 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 j udgmen t.” Rockw ell II , 274 F .3d at 1047 ( quot ing Logan v. Dayto n Hudson Corp. , 865 F.2d 789, 790 (6th Cir. 198 9)). Th e fact ual findi ngs un derlying

the district court’s allocation order

are reviewed for clear er

ror. S chroyer v. Frankel , 197 F.3d 1170, 1173 (6th C ir. 1999) ; see also Franklin Count y, 2 40 F.3d at 541 (noting in a CERCLA contri bution opinion that

“ [w]here two logically pe rmissive interpretations of th e evidence exist, the trial judge’s selection cannot be adjudg ed clearly e rroneous on appeal.”)Nos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 25

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

The distri ct court’s application of a preponderanc e 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 preponde

rance of th e evidenc e. See B.F. Goodrich v. Betkoski , 99 F.3d 505, 526 (2d Cir. 1996). Nothing in the wording of theCERLCA contribu tio n provision suggests otherwise. See 42 U.S.C. § 9613(f). In hi s August 2002 allocation order, the district judge wr ote that “although [KRSG] is not required to prove its case wit

h . . . mathe

mati cal prec ision, or s cientifi c certain ty, it still has t

he burde n of provi ng its equitable right to co nt ri bu ti on by a preponderance of the evidence .” J.A. II at 433 (Dist. Ct. Op. 8/29/02). KRSG asserts that the district court onl y nominally

applied t his standa rd, while effectively holding K

RSG to a much higher standard. This arg ument is misguided beca

use the district judge specifically stated that he

was employing a

preponderance of

the evidence standard and

even made cle ar that K

RSG did not ha

ve to prove i ts case with “scientific certainty ,” o r “ab solute pr oof” as K

RSG labels it. KRSG’s argument that the allocation order focused too heav ily

on KRSG’s i

nability to disprov e the poss ible contaminationby other fa cilities on the Kala

mazoo River

is

a contentionthat

the district court misweighed the evidence; it is not an asser

tion th at the district court applied an inappropriate burden of proof.

3. The District Court’s Allocation Decision

We affirm the district court’s judgment becaus e the court neither clearly erred i n its fact ual findin

g nor a bused its discretionin all ocat ing only a small portion of KRSG’s investigation

costs to Eaton. KRSG contends that the district court improper ly r equired KRSG to disprove the

comp lici ty of potentia lly r esponsibl e partie s other than Eato n. Eaton responds that KRSG did not provide e nough evidence that 26 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

Eatoncould 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 di strict cou

rt’sfina l orde r. We accept neither view, but rather affirm the districtcourt’s order because it appropriately we ighed the evidence presen ted b y both sides to c onclude t

hat Eaton

was only

mi nimall y responsi ble for some

of the inv estiga

tion costs i

n curr ed by KRSG.
First, there is n

o indicat ion that the

district cou rt clear

ly erred in its factual findings. Some of the evidence does support the theo ry that Eaton contrib uted to the

PCB conta mina tion for which KRSG is responsible. Aroclors 12 54 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 f ound at B attle Creek. Throug

hout its hist

ory , Eaton B attle Creek discharged large quantitie s o f oil t o the river, and the wastewater ditch connectingt he Ba ttle Creek facility to the r iver contained high PCB conc entrations, particu larly when one

controls for the amount of

carbon content. Additiona lly, KRSG’s expe

rt, McLaughlin, testifie d tha t no other potentia lly r esponsibl e party upstream of Morrow Lake, including Clark Equipment with wh om Eaton shared the wastewater ditch, relea sed as muchPCBs to the river as Eaton. McLaug hl in also concluded

that sour

ces clos er to Mor

row L ake, such as Benteler Industries and Con sumers Power, di d not rele ase PCBs to Morrow Lake and thus Eaton must be re sponsible.

Eatoncountered KRSG’s evidence with support of its own and ultimately

the cour t fo und Eaton’s proof more compelling thanKRSG’s. The evidence presented by Eatonshowed that it barely use d an y PCB-lad en oils at Battle Creek and that most of the PCBs found in the wood floors came from closedsystem transformers and hydraulics. The P CBs in the floor

were thus the result of inci den tal and min or spillage, the oil fromwhichwould nothave been flushed to the river. Eaton’s expertexplained that pollutedrivers generally have a higherNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 27

concen trati on of

PCBs near the source with decreasing concentrations as one travels further from thesource. There

was no such gradient stret c hing dow nstream f rom Batt le Creek, and the M DNR found scant pr

oof of PCB

c ontamination in the fifteen-mile stretch of river between Battle Creek and Morrow Lake, w

hichindicated that sources clo ser to Morrow

Lake , such as B enteler Indu stries a

n d Consumers Power, primarily conta minated the lake with PCBs. Such a conclu s ion was bolstered by the f act that the downstream

portions of Morrow Lake had h igher PCB concentrations than the e ntr ance t o the lake

closer to Battle Creek; if there was an upstream PCB source, the upstrea m entrance to MorrowL ake shou ld have ha

d high PCB levels because of its hig h orga nic conte nt, but in r

eality it had a low PCB concentration.

The district court assessed a ll o f this evidence and concluded

that Eaton’s use of PCB s was exce edingly minimal and that any PCBs it did use barely impacted the pollution at Morrow Lake, let alone

the contamination at the actual N PL site. In ma

king this factual finding, the district judge rejected t he tes timony of KRSG’s expert McL aughlin because the judge did not bel ieve tha

t it was we ll-suppor

ted and be cause he considered Connolly’s testimony to be more persuasive. This preference of one expert over an ot her was

not clea rly

errone ous, as the

district ju

dge ha d the opportunity

to assess and observe each expert before makin g his decision. The districtcourt not

ed that Con nolly “has the most expertise of any of the witnesses in the area of hy drogeology

and the transport of PCBs in the river environment ” and t hat Connolly had testified

before Congress. J.A. II

at 445 (D ist. Ct. Op. 8/29/0 2). Bas ed on his accept ance of Connolly’s testi mo ny, the district judge concluded that KRSG had no t proven by a preponde

rance of the evidence that Eaton sho

uld be responsi

ble for a portion of

KRSG’s co sts. The district court did not clearly e

rr in making these factual determinations; they were well-supported by the e

vidence as 28 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

a whole, and the district

court chose betw een two p ermissibl e interpretations of the evidence.

KRSGcontends that

the district court erred because rathe r thanrequirin

g it to prove Eaton’s complicity, the court forced KRSGto disprov e t he potential responsibility of Clark, Benteler, and

Consumers Power to the PCB contamination in th e Eaton/Clark wastewater ditch and Morrow Lake. T hi s argument is flawed. Most import

antly , the cour

t did not re ly solely on evidence that other parties may have adde d to the PCB contaminationin Mo rrow L ake and the NPL site; in making its ruling, the court focused primarily on Connolly ’s testimony about t he la ck of a gradient and the evidenc e that any PCBs Eaton may have

leaked did not contribute to the pollution upstrea

m of Morrow La

ke, in Mor

row L ake, or i

n the NPL site. Additionally , evidenc e e xists that Clark, Benteler, and Consumers ma y h ave con

tributed t o the PCB contaminationupstream of the NPL si te. The district court did n ot require KRSG to disprove in any absolute sense the po tential contamination by those fac ilities, but rathe r considered

the significant probability that they added to the pollution for w hich Eaton was being blamed. Thus, we cannot agree that the district court clear ly erre d in reaching

its factua l finding s. Second, we hold

tha t the distr

ict cour t did not ab

use its discretionby

concluding that

Eaton was responsible only f or tenpercent of

the investigation costs and not responsible for any future costs of

remedia ting the NPL site. KRSG contends that the distri ct ju dge abu sed his discretion, because he ignored evi dence o f Eaton’ s culpabi lity and requ ired KRSG to disprove affirmatively

that other parties, such

as Clark and Benteler, were the actual sources of t he P CBs. Again, we

cannot accept KRSG’s position. The district judge did not ignore evidence of Eaton’s role in ad ding to the contamination, but rather

found other

contrary evidence more probative and persuasive. The district court noted that Eaton may have re leased s ome PCBs in to the rive

r, alt houg h itNos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 29

7 KR SG ’s arg ume nt t hat the d istrict cou rt is being incon sistent with its past opinions in regard s to the potenti al contributi ons of Clark and Benteler is without m erit. KRSG argues at one poin t th at the distr ict court had previously exculpat ed Clark by stati ng tha t the re was no qualitati ve

or quan titativ e evide nce o f any PC B d ischarg e by C lark. See KR SG ’s Eaton Br. at 21 (citing J.A. II at 437 (D ist . C t. Op . 8/29/02)). Quite the opposite, the di stri ct court noted that

Clark mayhave been res ponsi ble f or
some PC B contamination. It f irst r emarked that even KRSG ’s expert
, McL aughlin, “conced e d that the PCBs found i n the Eat on/Clark ditch

cou ld have originated fr om Clark i f Clar k’s effluent c ontain ed P CB s.” J.A. I I at 437 (Dist. Ct. Op. 8/29/ 02). The dist rict judge caut ioned th at “no direct

evidence” show ed tha t Clark ’s discharges contained PCBs, but he mentio ned that Cla rk ma y have u sed P CB -conta i ning o ils in its transformers and h ydrau lic systems. J.A. II a t 437 . Furthe rmo re, there is

no inconsist ency with t he distri ct court ’s pr evious findi ng during the could not say with cer

tainty that Eaton was the source of the PCBs in the wastewater ditch. Yet, thedistrict c ourt res ted its decisionon Connolly’s tes ti mo ny and ruled that it was unlikely that E aton’ s PCBs added to the pollution in the MorrowLake Dam and eve n less likely that these PCBs then ente red th e N PL si te . If

Ea to n d id re le as e a ny P CBs, i t released an extreme ly

minimal v olume to t he RI/FS zone such that Eaton wa s respons ible for only a small share of KRSG’s costs.
Furthermore, the court did not myo pically base itsdecision

onKRSG’s failure to rule out Clark and Benteler as potential PCB sou rces. Whe

reas KRSG

views the

district c ourt a s requiringit to disprove other parties’ potential re sp on si bi li ty, the district court in reality re cognized 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. I t accor dingly

held that Eaton was responsi ble for only

a small portion of

KRSG’s co sts, beca

use evidence showed that Clark c ontribute d to the PCB

c ontamination in the disc harge ditch and

that Ben

te le r Industries and/or Consumers Po wer wer e the main

sources of Ar oclors 1254 and 1260 at Morrow Lake

. 7 Yet, e ve n 30 Kalamazoo River v. Rockwel l Int’l Corp . et al. Nos. 01-2453;02-2192

liability phas e, see J.A. II a t 382 -83 (D ist. Ct. Op . 5/9/0 1), that C lark did not discharg e any e ffl uent to the dit ch it shared wit h Eaton, because the dist rict cou rt h eld that t

his earli er finding was based upon the erroneous testi mony of Thomas M attson, w ho m istakenly cla imed t hat Clark

did not discharge any PCB-contai ning ef flu ent t o the sh ared ditch. See J.A. IIat 436-37 (D ist. Ct. Op. 8/29/02). KRSG als o compl ains a bout an al leged i nconsis tencybetween previous fin dings an d the d istric t court’s h oldin g that facilities c loser to Morrow Lake were i n fact the most lik ely s ource of

the Aroclor 1254 and 1260 polluti on at Mo rrow Lake. In an earlier order, the dist

rict court grante d Bentel er’ s moti on for su mm ary jud gme nt on K RS G’s contr ibut ion cl aim , wh ich we a ff ir me d. Ro ckw ell I , 171 F. 3d at 1073. KRSG believ es tha t th e dist rict cour t canno t have lo gically “exon erat ed” Be nte ler in 1996 and then found it to be a potential PCB contribut or i n 2002. KRSG’s ar gument hig hli ght s i ts misunders tanding of the nature of its evident iary

burden . The distri ct court did not exonerate Benteler. Rat her, it

gran ted t

he mot ion f

or su mmary judgmen t bec ause KRSG di d not offer evidence t

hat created a genuine iss ue of material f act regarding Be ntele r’s c ontrib ution o f PC Bs. H ere, a d ifferent defendant , Eaton, prese nts the type of

evidence that KRSG should have p resented six y ears ago; i. e., some convi ncin g fa cts tha t t he Morrow Lake conta minatio n did not come f

rom sou rces upst

ream of Morrow Lake , but

rather c ame f

rom faci lit ies on th e la ke. This i s not an inc onsistency, but rather i t is t he reality that

Eaton is usin g evidence agains t KRSG that would have h elped KRS G in its case agai nst Benteler. ignoring the evidence of PCB contamination by Clark, Benteler, and Consumers Power, we are not left with the firm andde finite conviction that the district court committed a mistake. Connolly’s testimony about the l ack of

a gradient flowing downstream

fr om Eaton and the concentration of PCBs at the downstream, rather than the upstream border of M orrowLake, as well as the de arth of evidence that Eat o n
eve n used PCBs

in signif icant qua ntities at any point in its operation, all help bolster the district court’s allocation order.Nos. 01-2453;02-2192 Kalamazoo River v. Rockwel l Int’l Corp . et al. 31

IV. CONCL USION

Becau se the distri ct court correctly d

ismis s ed KRSG’s motion to reopen as a Rule 60(b) (2) motio n that was timebarred and bec ause the

district c ourt did no t c omm it clear

error or abuse its discretion in allocating to Eaton only a very smallportion of KRSG’s investigation cos t s, we AFFIRM the deci sions of th e lower c ourt.