Litgo New Jersey Inc. v. Commissioner New Jersey Department of Environmental Protection

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 12-1288
No. 12-1418
___________

LITGO NEW JERSEY INC; SHELDON GOLDSTEIN,

Appellants

v.

COMMISSIONER NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION; UNITED STATES
OF AMERICA; UNITED STATES DEPARTMENT OF
ARMY; UNITED STATES DEPARTMENT OF THE AIR
FORCE; UNITED STATES DEPARTMENT OF NAVY;
ALFRED SANZARI ENTERPRISES INC; MARY
SANZARI; DAVID SANZARI, as Executor of the Estate of
Alfred Sanzari; FRANK HUTTLE, as Executor of the Estate
of Alfred Sanzari; MIAN REALTY; KIRBY AVENUE
REALTY HOLDINGS
__________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-06-cv-02891)
District Judge: Honorable Anne E. Thompson
___________
 Argued February 14, 2013

Before: HARDIMAN, and GARTH, Circuit Judges
and STARK, District Judge.

(Filed: August 6, 2013)

John McGahren [ARGUED]
Andrew McNally
Daniel F. Mulvihill, IV
Patton Boggs
One Riverfront Plaza
6th Floor
Newark, NJ 07102-0000

Brendan M. Walsh
Pashman Stein
21 Main Street
Court Plaza South, Suite 100
Hackensack, NJ 07601-0000
Attorneys for Appellants/Cross-Appellees Sheldon
Goldstein

Edward Devine
Rachel J. Lehr
A. Paul Stofa


Honorable Leonard P. Stark, Judge of the United
States District Court for the District of Delaware, sitting by
designation.

2
Office of Attorney General of New Jersey
Division of Law
P.O. Box 097
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625-0000
Attorneys for Defendant Commissioner of the New
Jersey Department of Environmental Protection

Brian C. Toth [ARGUED]
Aaron P. Avila
United States Department of Justice
Environment & Natural Resources Division
P.O. Box 7415
Washington, DC 20044

Jessica O'Donnell
Christina L. Richmond
United States Department of Justice
Environmental Defense Section
Land and Natural Resources Division
P.O. Box 23986
Washington, DC 20026-3986

T. Monique Peoples
United States Department of Justice
Environmental Defense Section
Suite 8000
601 D Street, N.W.
Washington, DC 20004-0000
Attorneys for Appellees/ Cross-Appellants Department
of Air Force, United States Department of Navy and
United States Department of the Army

3
Robert A. Bornstein
Berger & Bornstein
237 South Street
P.O. Box 2049
Morristown, NJ 07962

David F. Edelstein
Christopher R. Gibson
Archer & Greiner
One Centennial Square
33 East Euclid Avenue
Haddonfield, NJ 08033-0000
Attorneys for Defendants

Kenneth K. Lehn [ARGUED]
Winne, Banta, Hetherington, Basralian & Kahn
Suite 101
21 Main Street
Suite 101, Court Plaza South, East Wing
Hackensack, NJ 07601
Attorneys for Appellees/Cross-Appellants Frank
Huttle, David Sanzari and Alfred Sanzari Enterprises
Inc.

Craig S. Provorny
Anthony J. Reitano
Herold Law
25 Independence Boulevard
Warren, NJ 07059-0000
Attorneys for Defendant-Appellee Mian Realty

____________

4
 OPINION OF THE COURT
____________

HARDIMAN, Circuit Judge.

This appeal comes to us following a seventeen-day
bench trial that involved several claims arising under federal
and state environmental laws. At issue is which parties bear
the responsibility for the removal of hazardous substances
present in the soil and groundwater at a parcel of land in
Somerville, New Jersey (the Litgo Property or Property).
Although this issue is complicated by the fact that the
Property has been the site of various private and public
concerns since 1910, the District Court engaged in a careful
examination of the evidence and the arguments of the parties,
and we essentially agree with its adjudication of the case. We
disagree with the District Court’s determination, however, in
two respects, and will reverse in part and remand.

I. Background

A. Contamination of the Litgo Property

The Litgo Property is located at 40 Haynes Street in
Somerville, New Jersey. During the past century, title to the
Property has passed hands many times, and the site has been
put to various uses. Somerville Iron Works, a company that
operated a sanitary landfill on adjacent tracts of land, owned
the Property in the early 1900s and used it to manufacture
pipes and fittings. In 1941, the Property was leased to
Columbia Aircraft, a manufacturer that machined precision
parts for the United States military effort during World War
II. Decades later, in 1976, the Property was purchased by

5
Alfred Sanzari, who converted the buildings thereon into
warehouses. Those warehouses were then leased to a number
of commercial and industrial tenants, including a company
known as JANR Transport, Inc.

Both the soil and the groundwater on the Litgo
Property became contaminated as a result of the commercial
activity that occurred there over the years. The soil contained
high levels of metals and petroleum hydrocarbons, and the
groundwater currently contains a high level of volatile
organic compounds (VOCs), including trichloroethylene
(TCE) and tetrachloroethylene (PCE). The District Court
provided a thorough account of the history of this
contamination in its opinion, see Litgo N.J., Inc. v. Martin
(Litgo I), 2010 WL 2400388, at *2–19 (D.N.J. June 10,
2010), on reconsideration in part, 2011 WL 65933 (D.N.J.
Jan. 7, 2011) (Litgo II), and so we will recount it only briefly
here.

The contamination most likely began in the 1940s,
when Columbia Aircraft leased the Property. Columbia
Aircraft machined precision parts on-site for military
equipment using some equipment owned by the United States
government, including boring mills, grinding machines,
lathers, milling machines, and a shaper. After the precision
parts were machined, they were cleaned of excess grease as
part of the “finishing” process. Columbia Aircraft degreased
the precision parts in vapor degreaser tanks, using TCE as the
degreasing agent. It then disposed of the TCE by dumping it
onto the ground and allowing it to evaporate.

The contamination worsened after a series of accidents
that occurred between 1983 and 1987. In 1983, a company
known as Signo Trading International was storing both

6
hazardous and non-hazardous waste at a location other than
the Litgo Property. Some of this waste had been generated by
the United States, which had contracted with Resource
Technologies Service (RTS), a then-reputable hazardous
waste transporter, for its disposal. RTS had arranged to store
the waste at Signo’s property, but the waste containers were
removed under the supervision of the New Jersey Department
of Environmental Protection (NJDEP) following a fire in
April 1983. Signo was allowed to send non-hazardous
substances to a location of its choice, but NJDEP was
responsible for ensuring that the hazardous wastes were
moved by licensed haulers to licensed facilities. As a result
of NJDEP’s inadequate supervision, thousands of containers
of materials were shipped to the JANR warehouse on the
Litgo Property, and some of them contained hazardous waste.

In 1984, the Borough of Somerville became aware that
hazardous materials were being stored improperly at the
JANR warehouse, and that many of the containers were
spilling and leaking. An inspection and inventory of the
materials at the warehouse revealed that it contained 106
gallons of TCE. NJDEP hired an inexperienced contractor to
remediate the site, resulting in significant problems, including
spills and leaks. Both TCE and PCE were likely released into
the soil and the groundwater during the warehouse cleanup,
contributing to the contamination.

Some of the remedial actions that have since taken
place at the Litgo Property may have contributed further to
the contamination. Sanzari—the owner of the Litgo Property
between 1976 and 1990—hired environmental consultants to
investigate the extent of the contamination and conduct
remedial activities, such as soil excavations. One of the
monitoring wells installed on the Property, however, had a

7
faulty seal, a defect that likely increased the zone of
contamination on the Property.

Although significant action has since been taken to
remediate the soil contamination, groundwater contamination
remains a significant problem on the Litgo Property. In this
case, the central issue is who should be held responsible for
past and future remediation.

B. The Litgo Appellants’ Involvement at the Litgo Property

The Litgo Property is currently owned by Appellant
Litgo New Jersey, Inc., a single purpose entity. Its sole
shareholder, Appellant Sheldon Goldstein, first learned about
the Property in the 1980s from an acquaintance, Lawrence
Seidman, who suggested forming a partnership to develop it.
Goldstein, who had previous experience in real estate,
intended to have the Property rezoned for residential use, get
approvals to build townhouses, and then sell the Property. He
entered into an agreement of sale (Sales Agreement) with
Sanzari to acquire the Property in August 1985.

Goldstein knew at the time that he entered into the
Sales Agreement with Sanzari that there were problems with
the site. Sanzari had informed him that there was some soil
contamination, and a letter from NJDEP, incorporated by
reference into the Sales Agreement, stated that hazardous
wastes were being improperly stored at the JANR warehouse
and that Sanzari had been ordered to take remedial steps.
Goldstein was not, however, aware that TCE was present in
the groundwater. Before entering the sale, he neither visited
the Property nor further investigated the environmental
issues.

8
 The Sales Agreement stated that Sanzari would
comply with all of the provisions of the New Jersey
Environmental Cleanup Responsibility Act (ECRA), as well
as obtain a cleanup plan from NJDEP. It also provided,
however, that if the costs of obtaining and processing a
cleanup plan were to exceed $100,000, Sanzari would have
the option of terminating the Sales Agreement, unless
Goldstein agreed to pay all costs in excess of $100,000.

NJDEP rejected Sanzari’s proposed cleanup plan, and
Sanzari—concerned about the potential cleanup costs—
attempted to exercise his right to cancel the contract.
Goldstein sought specific performance of the Sales
Agreement in the Superior Court of New Jersey. During the
suit, Goldstein hired an environmental consulting firm,
EWMA, to review the compliance documents and cost
estimates created by Sanzari’s environmental consultants.
EWMA criticized the reports for not fully disclosing the soil
contamination and for failing to address potential
groundwater issues. It found that the actual costs of a cleanup
could not be accurately estimated based on the present
information, and concluded that the actual costs could be far
greater than the existing estimate.

Nevertheless, Sanzari and Goldstein reached an
agreement regarding the Litgo Property, pursuant to which
samples taken from monitoring wells on the Property would
be tested for various substances. Goldstein could elect to
move forward with the transaction within ten days of
receiving the results, and, if he did so, he would assume all
ECRA compliance costs in excess of $100,000.

The wells were tested for VOCs, including TCE, as
well as metals, PCBs, pesticides, and cyanide. Sanzari

9
received the preliminary results for all of the substances, but
sent only the preliminary results for metals, PCBs, pesticides,
and cyanide to Goldstein’s counsel. He also failed to disclose
that there were concerns about TCE contamination on a farm
near the Litgo Property.

Meanwhile, Goldstein’s partner, Seidman, decided not
to proceed with the sale because of concerns about potential
environmental costs. Goldstein nevertheless reelected to
proceed with the transaction in June 1989. Thereafter,
Goldstein received a report that included the full test results,
stating that the TCE levels at the Property exceeded NJDEP
guidelines.

When he discovered that he would be responsible for
additional groundwater investigation, Goldstein tried to refuse
to take title to the Litgo Property, but the New Jersey
Superior Court issued an order in December 1989 requiring
him to proceed with the transaction. After he assumed
ownership of the Property and Sanzari’s obligations under the
cleanup plan, Goldstein transferred title of the Property to
Litgo New Jersey.

Beginning in 1990, Goldstein and Litgo New Jersey
(the Litgo Appellants) retained two environmental consultants
(first EWMA, and, after a dispute with EWMA, JM Sorge,
Inc.) to carry out the cleanup plan. The consultants
investigated the soil contamination and conducted remedial
activities, including the excavation of contaminated soil. The
Litgo Appellants did not, however, conduct comprehensive
sampling for VOCs until 1997. Although they have installed
multiple wells on or near the Property to determine the extent
of the groundwater contamination, they had not, at the time of
trial, engaged in any work to remediate that contamination.

10
 C. Prior Litigation

Before filing the present action, Goldstein had been
involved in several other lawsuits regarding the
contamination at the Litgo Property. In 1996, he filed a
lawsuit in the New Jersey Superior Court against multiple
parties, including Sanzari, Sanzari’s environmental
consultants, and Dande Plastics, a company that conducted
machining and manufacturing operations at a building near
the Litgo Property. He alleged, among other things, that
Sanzari’s environmental consultants had failed to properly
investigate and remediate the TCE contamination at the Litgo
Property. The New Jersey Superior Court granted summary
judgment in favor of the consultants. Goldstein also asserted
a Spill Act claim against Dande Plastics, asserting that it was
a source of contamination at the Property. The District Court
granted Dande Plastics’ motion to dismiss in part, and
Goldstein and Dande Plastics then settled the remainder of the
claims for $105,000.

Goldstein was also involved in a lawsuit against his
environmental consultant, EWMA. EWMA sued the Litgo
Appellants after they failed to pay their bills, and the Litgo
Appellants brought a counterclaim, asserting that EWMA had
performed negligently and provided substandard services at
the Property.

D. Current Litigation

1. Claims

In June 2006, the Litgo Appellants filed the present
action in the United States District Court for the District of
New Jersey, which named the Sanzari Appellees and the

11
United States Appellees as defendants.1 The claims asserted
in the complaint were aimed at shifting responsibility for the
remediation onto the defendants.

First, the Litgo Appellants brought claims against the
Sanzari Appellees and the United States Appellees under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9601 et seq.2 As we
shall explain in more detail, CERCLA § 107(a) allows private
parties to seek compensation for the costs of remediation
from parties that are statutorily responsible for the
contamination. The Litgo Appellants sought additional
compensatory relief under the New Jersey Spill
Compensation and Control Act (Spill Act), N.J. Stat. Ann.
§ 58:10-23.11 et seq., a statute that functions much like
CERCLA, except that it permits parties to recover costs
incurred because of petroleum-related contamination. Cf. 42
U.S.C. § 9601(14) (excluding petroleum from the definition
of “hazardous substance”). The Sanzari Appellees and the
United States Appellees filed counterclaims against the Litgo

1
The Sanzari Appellees include the executors of
Alfred Sanzari’s estate and Alfred Sanzari Enterprises. The
United States Appellees include the United States of America,
the United States Department of the Army, the United States
Department of the Air Force, and the United States
Department of the Navy.
2
The Litgo Appellants also brought CERCLA claims
against two other parties, Mian Realty and Kirby Avenue
Realty Holdings. They subsequently entered into a settlement
agreement with Mian, and their claims against Kirby were
dismissed at the close of trial.

12
Appellants and cross-claims against each other, seeking
contribution for the remediation costs under CERCLA
§ 113(f) and the Spill Act.

The Litgo Appellants also sought injunctive relief
under the Resource Conservation and Recovery Act (RCRA),
42 U.S.C. § 6972, which permits citizen suits against any
person who has contributed or is contributing to the disposal
of waste in a way that might present an “imminent and
substantial endangerment to health or the environment.” 42
U.S.C. § 6972(a).

Finally, the Litgo Appellants sought rescission of the
Sales Agreement under the New Jersey Sanitary Landfill
Facility Closure Act and Contingency Fund (Closure Act),
N.J. Stat. Ann. § 13:1E-100 et seq., a statute that requires
sellers of land to disclose in the contract of sale whether the
property has ever been used as a landfill.

2. The District Court’s Decisions

The District Court entered summary judgment in favor
of the Sanzari Appellees on the Litgo Appellants’ RCRA
claim. It found that this claim was barred by New Jersey’s
entire controversy doctrine because it should have been
asserted in the 1996 New Jersey Superior Court proceedings.
It held a bench trial on the remaining claims, which began on
January 19, 2010 and ended on February 12, 2010. For
reasons that we shall discuss in more detail, the District Court
determined that the Litgo Appellants, the Sanzari Appellees,
and the United States Appellees were each liable for the costs
of remediation under CERCLA. It then allocated the
percentage of costs to be borne by each party, ultimately
assigning 70% of the costs to the Litgo Appellants, 27% of

13
the costs to the Sanzari Appellees, and 3% of the costs to the
United States Appellees. The District Court also found that
the Sanzari Appellees and the Litgo Appellants were liable
for the costs of remediation under the Spill Act, and allocated
the Spill Act costs based on the same factors that it had
considered in allocating the CERCLA costs.

The District Court determined that the United States
Appellees were likely liable parties under RCRA, but
expressed doubt as to whether injunctive relief would be
appropriate. It reserved judgment on that issue until after the
damages hearing. Finally, the District Court found that
because the Litgo Property had not been used as a landfill, the
Litgo Appellants were not entitled to rescission under the
Closure Act.

The Litgo Appellants and the United States Appellees
entered into a settlement agreement before the damages
hearing was held. The Litgo Appellants dismissed their claim
for injunctive relief under RCRA, but claimed to have
reserved the right to seek litigation costs from the United
States Appellees as prevailing parties under RCRA. The
parties stipulated that the Litgo Appellants had incurred
$1,729,279 in CERCLA response costs, and that the United
States Appellees owed $51,878.37 based on their allocation.

Following the damages hearing, the District Court
found that the Litgo Appellants had incurred $1,566,236.78 in
recoverable costs under CERCLA, and denied the Litgo
Appellants’ request for prejudgment interest. It also found
that the Litgo Appellants had incurred an additional
$315,098.30 in recoverable costs under the Spill Act. Finally,
it held that the Litgo Appellants were not entitled to litigation

14
costs under RCRA because no relief had been granted on that
claim.

The Litgo Appellants appealed, raising a plethora of
challenges to the District Court’s liability determinations, its
allocation of costs, and the damages award. With respect to
the CERCLA claims, they argue that the District Court:
(1) erred when it held them liable as “operators”; (2) erred
when it held that the United States Appellees were not liable
as “owners” based on their involvement at the Columbia
Aircraft site; (3) abused its discretion when it allocated
CERCLA costs; and (4) erred when it denied their request for
prejudgment interest. In addition, the Litgo Appellants claim
that the District Court’s allocation of costs under the Spill Act
was an abuse of discretion. As to their RCRA claims, they
argue that the District Court erred in two respects: (1) in
granting summary judgment for the Sanzari Appellees based
on the entire controversy doctrine; and (2) in denying their
request for litigation costs. Finally, they claim that the
District Court erred in denying their claim under the Closure
Act.

The Sanzari Appellees cross-appealed. Like the Litgo
Appellants, they claim that the District Court’s allocation of
CERCLA and Spill Act costs was an abuse of discretion.
They also claim that the District Court erred in refusing to
grant them a settlement credit for CERCLA damages.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over the parties’
federal law claims under 42 U.S.C. §§ 6972(a) and 9613(b)
and 28 U.S.C. § 1331. It had supplemental jurisdiction over
the parties’ state law claims under 28 U.S.C. § 1367. We

15
have jurisdiction pursuant to 28 U.S.C. § 1291. We may set
aside the District Court’s factual findings only if they are
clearly erroneous, and we exercise plenary review over the
District Court’s interpretation of the relevant statutes. Agere
Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 216
(3d Cir. 2010). We review the District Court’s allocation of
costs for abuse of discretion. Id. (citing Beazer E., Inc. v.
Mead Corp., 412 F.3d 429, 445 n.18 (3d Cir. 2005)).

III. CERCLA Claims

A. Overview

Congress enacted CERCLA “to promote the timely
cleanup of hazardous waste sites and to ensure that the costs
of such cleanup efforts were borne by those responsible for
the contamination.” Burlington N. & Santa Fe Ry. Co. v.
United States, 556 U.S. 599, 602 (2009) (internal quotation
marks omitted); see also United States v. Alcan Aluminum
Corp., 964 F.2d 252, 257–58 (3d Cir. 1992). To accomplish
this goal, CERCLA § 107(a) gives private parties the right to
recover costs incurred in cleaning up a waste site from
“potentially responsible parties” (PRPs)—four broad classes
of persons who may be held strictly liable for releases of
hazardous substances that occur at a facility. Burlington N.,
556 U.S. at 608−09 (citing 42 U.S.C. § 9607(a)).

Under CERCLA, PRPs are: (1) current owners and
operators of the “facility” at which the contamination
occurred; (2) persons who were owners or operators of the
facility “at the time of disposal of any hazardous substance”;
(3) persons who arranged for the disposal or treatment of the
hazardous substance; and (4) persons who transported the
hazardous substance. 42 U.S.C. § 9607(a). A party falling

16
into one of these four categories will be liable when there is a
“release” or a “threatened release” of a hazardous substance
from the facility that generates response costs. Id.; see
Burlington N., 556 U.S. at 608−09; N.J. Turnpike Auth. v.
PPG Indus., Inc., 197 F.3d 96, 103–04 (3d Cir. 1999). Once
liability has been determined, the court allocates the
remediation costs among the PRPs “using such equitable
factors as [it] determines are appropriate.” 42 U.S.C.
§ 9613(f). PRPs may seek contribution from other PRPs—
including the party that originally brought the § 107(a)
action—under CERCLA § 113(f). Id.; United States v. Atl.
Research Corp., 551 U.S. 128, 138–39 (2007).

Here, the District Court determined that the United
States Appellees, the Sanzari Appellees, and the Litgo
Appellants were each PRPs. The Sanzari Appellees were
liable because they had owned and operated the Litgo
Property when hazardous waste was disposed at the JANR
warehouse. Litgo New Jersey was liable as the current owner
of the Property, and both Litgo Appellants were liable as
current operators of the Property. The United States
Appellees were liable because they arranged for the disposal
of some of the hazardous waste that was ultimately stored at
the JANR warehouse. The District Court determined,
however, that the United States Appellees did not incur PRP
liability based on any releases that had occurred at the
Columbia Aircraft site because they did not own any of the
relevant facilities; they did not manage, direct, or conduct any
of the operations at the Columbia Aircraft site; and they did
not own or possess any of the VOCs that were disposed of at
the Columbia Aircraft site.

The District Court then turned to the allocation of the
remediation costs. It determined that the Sanzari Appellees

17
were responsible for 21% of the costs. 3 Although it
recognized that Sanzari was not directly involved in the
generation, storage, treatment, or disposal of hazardous
wastes, it determined that he had nevertheless taken actions
that justified assigning the Sanzari Appellees a significant
percentage of the costs. For example, Sanzari failed to
provide Goldstein with a full set of the preliminary test results
from the monitoring wells and with information regarding
TCE contamination on a nearby plot of land before Goldstein
opted to proceed with purchasing the Property. The Court
explained that Sanzari was “the only party that had notice of
the full extent of the contamination prior to Goldstein’s
election yet acted in a manner which would ensure that
someone else—Goldstein—would have to take the
responsibility for the remediation.” Litgo I, 2010 WL
2400388, at *39. Additionally, one of Sanzari’s
environmental contractors installed a monitoring well with a
faulty seal, and this seal, “which was discoverable and
fixable,” likely increased the extent of contamination. Id. at
*38.

3
Initially, the District Court allocated 25% of the costs
to the Sanzari Appellees, based in part on its determination
that they should have taken more action to remediate the
conditions at the JANR warehouse. Upon careful
consideration of the parties’ motions to reconsider, however,
the Court found that the Sanzari Appellees did, in fact,
behave reasonably with respect to the JANR warehouse, and
it decreased their share of the responsibility by 4%. It
determined that the Litgo Appellants’ share should
accordingly be increased by 4%.

18
 The District Court found that the Litgo Appellants
were responsible for 54% of the response costs. It found
them liable as PRPs “based solely on their current ownership
and operation of the Litgo Property,” and acknowledged that
they had not been directly involved in the generation, storage,
treatment, or disposal of hazardous wastes. Id. at *39. It also
acknowledged that the Litgo Appellants’ only activities on
the site “have been those necessary to remove and remediate
the soil and groundwater contamination.” Id. The Court
found, however, that the Litgo Appellants had consistently
put off taking any steps to remediate the groundwater
contamination, and this lack of action may have increased the
threat to the environment and the public. Additionally,
Goldstein, in the Sales Agreement, had agreed to remediate
the Property in accordance with ECRA, and accepted
financial responsibility for remediation beyond the first
$100,000. Although he did not know specifically that there
was TCE contamination, he was aware that there were
significant environmental issues, and voluntarily assumed that
risk. The District Court also noted that the Litgo Appellants
were the only parties that stood to benefit financially from the
remediation of the Property.

The United States Appellees, in contrast, were
allocated only 2% of the costs. The Court noted that they had
previously generated and possessed some of the hazardous
substances that were transferred to the JANR warehouse, and
that some of those substances may have been released there.
However, it explained that the United States Appellees had
not been involved in the transportation of the substances to
the Litgo Property, in their storage in the JANR warehouse,
or in their treatment and disposal. It also found that the
United States Appellees had exercised reasonable care

19
regarding the transportation of the substances by entrusting
them to a hazardous waste disposal contractor who, at the
time, was considered reputable. It explained that, “[a]lthough
the United States [Appellees] arranged for the disposal of
these wastes, the materials they generated appear to have
reached the JANR warehouse only due to the inappropriate
and potentially illegal conduct of other third-party actors not
involved in the suit.” Litgo II, 2011 WL 65933, at *6.

The District Court then determined that the poor
execution of the JANR warehouse cleanup—which had been
overseen by NJDEP—had contributed to the contamination at
the Litgo Property. Because of Eleventh Amendment
immunity, however, NJDEP could not be held liable. The
Court thus assigned the NJDEP Commissioner an “orphan
share” of 23% of the costs.4 It then distributed these costs
among the PRPs. After this recalculation, the Sanzari
Appellees were ultimately responsible for 27% of the costs,
the Litgo Appellants were responsible for 70% of the costs,
and the United States Appellees were responsible for 3% of
the costs.

4
When a court cannot “assign an ideal measure of
monetary responsibility to an otherwise responsible party”—
because, for example, that party is immune from suit,
bankrupt, or defunct—this gives rise to an orphan share.
United States v. Kramer, 953 F. Supp. 592, 595 (D.N.J.
1997). A court may equitably allocate orphan shares among
liable parties at its discretion. Stearns & Foster Bedding Co.
v. Franklin Holding Corp., 947 F. Supp. 790, 801 (D.N.J.
1996).

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 Both the Litgo Appellants and the Sanzari Appellees
raise multiple challenges to the District Court’s analysis of
the CERCLA claims. First, the Litgo Appellants contend that
the District Court incorrectly identified who could be held
liable as PRPs under CERCLA. They claim that the United
States Appellees should have been liable as past owners based
on their involvement in Columbia Aircraft’s manufacturing
operations, and that the Litgo Appellants should not have
been found liable as current operators. Second, both the
Litgo Appellants and the Sanzari Appellees contend that the
District Court abused its discretion in allocating costs among
the liable parties. Third, the Sanzari Appellees argue that the
District Court erred in failing to assign it a settlement credit,
based on the United States Appellees’ stipulation to the
amount of damages. Finally, the Litgo Appellants contend
that the District Court erred in denying their request for
prejudgment interest. We address each of these contentions
in turn.

B. PRP Liability

1. “Current Operator” Liability

The District Court did not err in finding that the Litgo
Appellants were liable as current operators under CERCLA.
An operator is “someone who directs the workings of,
manages, or conducts the affairs of a facility.” United States
v. Bestfoods, 524 U.S. 51, 66 (1998).5 For that role to subject
5
The Litgo Property is undisputedly a “facility” for
CERCLA purposes. See 42 U.S.C. § 9601(9) (“facility”
includes “any site or area where a hazardous substance has
been deposited, stored, disposed of, or placed, or otherwise
come to be located”).

21
someone to CERCLA liability, the operator must “manage,
direct, or conduct operations specifically related to pollution,
that is, operations having to do with the leakage or disposal of
hazardous waste, or decisions about compliance with
environmental regulations.” Id. at 66–67. Here, the District
Court found that the Litgo Appellants were actively involved
in activities related to the contamination on the Litgo
Property: not only did the Litgo Appellants have the actual
authority to make decisions about compliance with
environmental regulations, they hired environmental
consultants to conduct tests and remediation operations on the
Litgo Property, and they oversaw that work.

Relying on United States v. Bestfoods, the Litgo
Appellants argue that they should not be held liable as current
operators because they have only managed remedial activities
on the site. That is, they argue, they have not engaged in any
operations that caused further contamination, so they have not
been involved in “operations specifically related to
pollution,” id. at 66. This interpretation reads Bestfoods far
too narrowly, and is contrary to CERCLA’s liability scheme.

Under CERCLA, current operators—like all other
classes of PRPs—are held strictly liable for all releases that
occur at a facility. See Burlington N., 556 U.S. at 608 (citing
42 U.S.C. § 9607(a)). The statute does not require a showing
that the operator was directly responsible for the release of a
hazardous substance for PRP liability to attach. See 42
U.S.C. § 9607(a) (PRP liability attaches when a current
“owner [or] operator of . . . a facility . . . from which there is a
release, or a threatened release which causes the incurrence
of response costs, of a hazardous substance.” (emphasis
added)); Alcan Aluminum Corp., 964 F.2d at 264–66. Indeed,
in the case of a current operator, as opposed to a past

22
operator, the plaintiff is not even required to show that the
party was an operator when an active “disposal” of hazardous
waste occurred. Compare 42 U.S.C. § 9607(a)(1) (PRP status
applies to “the owner and operator of a vessel or a facility”),
with 42 U.S.C. § 9607(a)(2) (PRP status applies to “any
person who at the time of disposal of any hazardous
substance owned or operated any facility at which such
hazardous substances were disposed of” (emphasis added)).
The plaintiff need only show that the party engaged in
operations related to pollution and that a “release” of
hazardous substances occurred, a requirement that can be met
by showing that there was a passive migration of waste. See
United States v. CDMG Realty Co., 96 F.3d 706, 715 (3d Cir.
1996) (citing 42 U.S.C. § 9601(22)); see also id. at 714
(“disposal,” by contrast, requires more than passive migration
of contaminants).

A determination that current operators cannot be held
liable unless they have actually engaged in polluting activities
would require us to disregard the distinction between past and
present operators set out in the statute. See id. at 715
(explaining that Congress must have intended for current
owners and operators and past owners and operators to be
liable under different circumstances, as it distinguished
between the two in the definition of PRP). It would also add
a causation requirement that is not found in the text.6 The

6
Nor does this requirement have strong support in case
law. The Litgo Appellants cite to Universal Paragon Corp. v.
Ingersoll-Rand Co., 2007 WL 518828, at *5 (N.D. Cal. Feb.
13, 2007), in which a district court refused to impose operator
liability when the party “had no involvement in the
contaminating activities.” Litgo Br. 32. But there, the district

23
Supreme Court has recognized that, under CERCLA’s broad
liability scheme, “even parties not responsible for
contamination may fall within the broad definitions of PRP,”
Atl. Research Corp., 551 U.S. at 136 (citing 42 U.S.C.
§ 9607(a)(1)), and, contrary to the Litgo Appellants’
suggestion, the Supreme Court’s decision in Bestfoods does
not create an exception for “innocent” operators. Bestfoods
addresses when a parent company can be held directly
responsible for the activities of its subsidiary as an
“operator.” In defining “operator,” the Supreme Court
employed broad, passive language: an operator is one who is
involved in operations “having to do with the leakage or

court appears to conflate the requirements for being a current
owner with the requirements for being a past owner, so the
opinion is not especially persuasive. The Litgo Appellants
also cite to Bob’s Beverage, Inc. v. ACME, Inc., a district
court case asserting that “a person must affirmatively act to
cause a release of hazardous waste to become an operator.”
169 F. Supp. 2d 695, 721 (N.D. Ohio 1999). This
requirement, as discussed above, is not found in CERCLA.
Nor is it found in United States v. Township of Brighton, 153
F.3d 307 (6th Cir. 1998), the Sixth Circuit case on which
Bob’s Beverage relies. Township of Brighton states only that
an operator must be actively involved on the site in some way
that relates to the pollution; it does not provide that the
operator must have caused the release. See id. at 314–15. In
any event, the Litgo Appellants did exercise actual control
over pollution-related operations at the Litgo Property by
taking affirmative actions: they conducted tests and hired
contractors to perform remediation operations on the
property.

24
disposal of hazardous waste,” Bestfoods, 524 U.S. at 66–67
(emphasis added), not one who is involved in operations
“causing” or “leading to” the leakage or disposal of waste.
Moreover, the Court expressly noted that operator liability
may be imposed when a party is responsible for “decisions
about compliance with environmental regulations,” id. at 67,
a description which directly applies to the Litgo Appellants’
activities at the Property.7

This interpretation does not—as the Litgo Appellants
suggest—lead to unfair consequences. Although CERCLA’s
strict liability regime may subject “innocent” private parties
to liability, see Atl. Research Corp., 551 U.S. at 136, innocent
owners and operators do have some protection. After
identifying PRPs, courts allocate response costs based on
equitable factors. An operator who has participated in
remediation without slowing or interfering with that process
likely will not be assessed a large share of the remediation
costs, if it is assessed any at all. See, e.g., Am. Color &
Chem. Corp. v. Tenneco Polymers, Inc., 918 F. Supp. 945,
959–60 (D.S.C. 1995) (0% to current owner and operator);
7
The Litgo Appellants also cite to several district court
cases suggesting that mere investigation into contamination
will not, by itself, subject a party to current operator PRP
liability. See City of Grass Valley v. Newmont Mining Corp.,
2007 WL 4287603, at *5 & n.3 (E.D. Cal. Dec. 4, 2007);
Spectrum Int’l Holdings, Inc. v. Universal Coops., Inc., 2006
WL 2033377, at *2, *5–6 (D. Minn. July 17, 2006). But the
Litgo Appellants have been actively involved in remediation
operations on the site, so we need not here decide whether
purely investigative activities could subject a party to
operator liability.

25
Alcan-Toyo Am., Inc. v. N. Ill. Gas Co., 881 F. Supp. 342,
346–47 (N.D. Ill. 1995) (10% to current owner). An operator
who has delayed with remediation, however, may still receive
a share of the remediation costs, see Bedford Affiliates v. Sills,
156 F.3d 416, 430 (2d Cir. 1998), abrogated on other
grounds by W.R. Grace & Co.—Conn. v. Zotos Int’l, Inc., 559
F.3d 85, 90 (2d Cir. 2009), in accordance with CERCLA’s
purpose of encouraging prompt cleanup, see Burlington N.,
556 U.S. at 602.

2. “Past Owner” Liability

The District Court did not err in finding that the United
States Appellees are not “past owners” based on their
involvement at the Columbia Aircraft manufacturing site;
they are PRPs only because they arranged for the disposal of
hazardous substances that may have eventually been released
at the JANR warehouse.

A party may be liable as a past owner when, “at the
time of disposal of any hazardous substance,” it “owned or
operated any facility at which such hazardous substances
were disposed of.” 42 U.S.C. § 9607(a)(2). CERCLA
defines “facility” broadly as:

(A) any building, structure, installation,
equipment, pipe or pipeline (including any pipe
into a sewer or publicly owned treatment
works), well, pit, pond, lagoon, impoundment,
ditch, landfill, storage container, motor vehicle,
rolling stock, or aircraft, or (B) any site or area
where a hazardous substance has been
deposited, stored, disposed of, or placed, or
otherwise come to be located.

26
42 U.S.C. § 9601(9). The District Court found that there
were only two relevant “facilities” at which hazardous
substances had been disposed in this case—the Litgo Property
(as a “site or area”), and the vapor degreasers used to clean
the precision parts (as “equipment”). It found that the United
States Appellees did not own either of those facilities.

The Litgo Appellants raise two challenges to the
District Court’s determination. First, they argue that the
evidence shows that the government-owned equipment leased
by Columbia Aircraft—which clearly falls within the
definition of a “facility”—was cleaned using TCE, and this
constitutes a disposal of hazardous waste. Second, they claim
that the United States Appellees’ ownership of some of the
equipment used in Columbia Aircraft’s manufacturing
process is sufficient to subject them to ownership liability.

The Litgo Appellants’ first challenge is meritless. The
District Court found that the precision parts manufactured by
Columbia Aircraft were degreased using TCE as a solvent,
but it rejected the claim that TCE was used to clean the
equipment used in the manufacturing process. The Litgo
Appellants’ expert did testify that TCE was commonly used
at the time to service electrical motors and other parts of
machinery. This testimony, however, was focused on the use
of TCE to degrease airplane parts. When asked whether TCE
would have been used “on the equipment itself,” the expert
responded only that it was a “possibility.” He also testified
that other solvents, like acetone, could have been used instead
of TCE. Thus, the District Court’s factual determination that
there was no direct relationship between the government-

27
owned equipment and the TCE solvents was not clearly
erroneous.

The Litgo Appellants also claim that the United States
Appellees were “owners” of a facility where TCE was
disposed during the 1940s because they owned part of a
“process installation”—that is, they owned machinery and
equipment that was a necessary part of the manufacturing
process. In particular, the United States Appellees owned
some of the equipment that Columbia Aircraft used to
manufacture precision parts, and Columbia Aircraft disposed
of TCE when it degreased those parts later in the production
process, using separate machinery (vapor degreasers). The
Litgo Appellants, relying primarily on United States v.
Saporito, 684 F. Supp. 2d 1043 (N.D. Ill. 2010),8 argue that
this is enough to subject the United States Appellees to past
owner liability. We disagree.

8
The Litgo Appellants also rely on American
International Specialty Lines Insurance Co. v. United States,
2010 WL 2635768 (C.D. Cal. June 30, 2010), which states
that there need not be evidence that any specific piece of
equipment owned by the defendant was responsible for a
specific release; “[i]t is enough that the components owned by
the defendant were ‘a necessary part’ of the manufacturing
process.” Id. at *23 (citing Saporito, 684 F. Supp. 2d at
1056). However, in American International Specialty Lines,
some of the government-owned equipment was directly
involved in the release of hazardous waste. For example, the
government owned “grinders” that created perchlorate dust,
one of the waste products at issue in the case. Id. at *8−9.
These grinders were then cleaned with VOCs, including TCE.
Id.

28
 Under the Litgo Appellants’ view, if a party owns any
equipment used at a manufacturing site, it can be held
responsible for the disposal of hazardous waste that occurs at
other pieces of equipment elsewhere at the site, as long as the
two pieces of equipment are part of the same overarching
“process.” This broad definition of facility finds no support
in CERCLA.

The term “process installation” is not used in
CERCLA’s definition of “facility,” although “installation” is
mentioned.9 Installation generally means “a thing installed,
in particular: a large piece of equipment installed for use.”
Concise Oxford American Dictionary 464 (2006); see also
Random House Dictionary of the English Language 988 (2d
ed. 1987) (defining installation as “something installed, as
machinery or apparatus placed in position or connected for
use”). It is a physical item: a piece of machinery or
equipment that has been installed. This fits well with the
other types of “facility” listed in the definition, all of which
are physical. See Dole v. United Steelworkers of Am., 494
U.S. 26, 36 (1990) (“[W]ords grouped in a list should be
given related meaning.”). The Litgo Appellants’ attempt to
define “installation” more conceptually—as a process,
potentially made up of various discrete pieces of machinery
that may or may not be located near each other or used
together—is not supported by the statutory language.

9
“Process installation,” as far as we can tell, is simply
a phrase used by the Litgo Appellants’ counsel and expert
during the expert’s testimony. See App. 2757. It does not
appear in other cases, and the Litgo Appellants do not explain
the term’s origin.

29
 It may nevertheless be possible for two pieces of
equipment to be sufficiently close in relation to each other
that they should be considered components in a larger piece
of machinery (which may, itself, be “equipment” or an
“installation”). See, e.g., Saporito, 684 F. Supp. 2d at 1057
(determining that the party was liable based on ownership of
necessary equipment in a plating line). Here, however, the
District Court reasonably determined that no such relationship
between the government-owned equipment and the vapor
degreasers existed. There is no suggestion that the equipment
owned by the United States Appellees was in any way
attached to the vapor degreaser tanks that disposed of waste
or used in close connection with them. The only relationship
between the vapor degreasers and the United States
Appellees’ equipment is that both were used by Columbia
Aircraft to manufacture precision parts. They were not,
however, used at the same stage of the production process.
Accordingly, we will uphold the determination that there was
insufficient evidence to connect the equipment owned by the
United States Appellees to the disposal or release of
hazardous substances, and that the United States Appellees
thus were not past owners under CERCLA.

C. Allocation of Costs

The Litgo Appellants and Sanzari Appellees argue that
the District Court’s allocation of costs under CERCLA was
an abuse of discretion.10 In our view, the District Court
10
The Litgo Appellants also contend that the District
Court abused its discretion when it declined to hold a separate
hearing on how costs should be allocated among the PRPs,
and instead allocated costs after the seventeen-day bench trial
on the merits. Courts may hold a separate hearing to allocate

30
carefully and judiciously compared the parties’ relative fault
both in its initial opinion on the merits and upon
reconsideration.

First, the parties challenge multiple findings of fact
upon which the District Court relied in allocating costs,
including: (1) that the Sanzari Appellees’ environmental
consultant installed a faulty seal on one of the monitoring
wells; (2) that the Sanzari Appellees failed to deliver a full set
of preliminary groundwater test results and failed to disclose
information about TCE contamination on a nearby property;
(3) that the Litgo Appellants deliberately slowed the
remediation process; (4) that the Litgo Appellants, unlike the
other PRPs, stood to benefit from the remediation; and
(5) that the United States Appellees exercised reasonable care
in hiring a reputable contractor to transport the waste. They
also claim that the District Court should have found that the
United States Appellees did not cooperate with NJDEP’s
cleanup of the JANR warehouse.

costs, and sometimes choose to do so. See, e.g., United States
v. Davis, 261 F.3d 1, 16 (1st Cir. 2001) (describing three
phases of a trial on a § 107(a) claim involving over 100
defendants). But CERCLA does not require courts to
conduct a separate allocation hearing. See Acushnet Co. v.
Mohasco Corp., 191 F.3d 69, 82 (1st Cir. 1999) (“CERCLA
does not demand a bifurcated trial on this score, nor have we
insisted that the many knotty issues that arise in the typical
CERCLA action be resolved in any particular chronological
order.”). Here, the Litgo Appellants did not even request a
bifurcated trial—the United States Appellees did—and the
District Court reasonably determined that separate
proceedings were unnecessary in this case.

31
 After carefully reviewing the record, we cannot
conclude that any of these findings of fact was clearly
erroneous. With respect to the faulty monitoring well, the
United States Appellees’ expert testified that the cement seal
that was supposed to be around the monitoring well “was
missing, had degraded or crumbled, or maybe was never
installed properly in the first place.” See App. 3663. From
this testimony, the District Court could reasonably infer that
some mistake had occurred during the installation process—
either the seal was never secured properly, or it became loose
over time because of the manner in which it was installed.

There is also sufficient evidence to support the District
Court’s finding that the Litgo Appellants did not receive a full
set of preliminary test results and that the Sanzari Appellees
did not disclose information about contamination at a nearby
property. At trial, the Litgo Appellants introduced an April
1989 letter from Sanzari’s attorney to Goldstein’s attorney.
The letter included information about some of the
contaminants on the Property but omitted information about
VOCs, including TCE. See App. 6192. Although the Sanzari
Appellees argue that the relevant information may have been
provided shortly thereafter, at a time when Goldstein still had
the opportunity to back out of the transaction, the District
Court was not required to so find. The Litgo Appellants also
presented evidence at trial showing that there was
contamination at a well close to the Property that the Sanzari
Appellees were aware of, but did not disclose. See App. 5346
(letter to Sanzari from Ken Hortsman stating that he had
instructed the environmental consultant not to include
information about the alleged existence of groundwater
contamination in Bridgewater, New Jersey in his report to
NJDEP); App. 4142–46 (testimony regarding the

32
contamination of the nearby property and the Hortsman
letter). Again, while the Sanzari Appellees dispute the
inferences that may be drawn from these communications and
testimony, it was not clear error for the District Court to rely
on them.

The record also supports the District Court’s finding
that the Litgo Appellants deliberately slowed the remediation
process. For example, Goldstein’s deposition testimony, used
at trial for impeachment purposes, suggests that he instructed
the consultants to slow down the groundwater investigation:

[Q:] You’re saying that [the consultant]
recommended to you that you should stall the
DEP?

[A:] No. No professional would ever
recommend to stall. He felt that we should do
what the DEP is saying we should do, but not—
not as fast as they’re looking for, but don’t stall.
I mean, you know, I don’t think any
professional would ever stall the DEP.

...

[Q:] Well, wasn’t he actually recommending to
you that you offer as a more aggressive
approach to delineate the groundwater in the
southeast and propose a mediation technique
for—

...

[A:] I told him that I was not interested at this
point in doing and learning how bad this thing

33
 is going to be because he was talking
astronomical numbers and we should just not
get boxed in to where it may cost me five or six
million dollars.

See App. 1416; see also App. 1418 (Goldstein wanted to “go
very slowly” because the contamination “could be a
monstrous thing”). The District Court reasonably found that
“groundwater contamination continues to migrate
downstream,” and so the Litgo Appellants’ “lack of action
over the past twenty years may well have increased the threat
to the environment and public health.” App. 126; see also
App. 2175–76 (plumes are continuing to migrate).

Nor was the District Court’s determination that the
Litgo Appellants were the only parties that stood to benefit
from the remediation clearly erroneous. Because of the
contamination, the Litgo Property is currently unusable and
cannot be developed. If the land could be developed after
remediation, it would increase its value, and the Litgo
Appellants are the only parties that stand to benefit from such
an increase. See Alcan-Toyo Am., Inc., 881 F. Supp. at 347
(finding that the current owner was the only party that would
“reap the benefits of the environmental cleanup of its
property,” and so it should bear a portion of the costs).

The District Court’s findings with respect to the
United States Appellees were also supported by the record.
The Litgo Appellants and Sanzari Appellees claim there was
insufficient evidence to show that the United States Appellees
exercised reasonable care in disposing of waste. They argue
that the only evidence supporting the Court’s finding was
testimony from an NJDEP witness, who stated that NJDEP
believed at the time that RTS, the contractor the United States

34
Appellees used, was reputable. This testimony suffices.
NJDEP’s testimony as to its own views about the contractor
could support an inference that the contractor had a good
reputation at that time. Finally, the record does not mandate a
finding that the United States Appellees failed to cooperate
with NJDEP in cleaning up the JANR warehouse. As the
District Court explained, NJDEP contacted the United States
Appellees in an attempt to identify the source of the
contaminants in the warehouse, but there was no testimony
suggesting that NJDEP ever asked or expected the United
States Appellees to help remove the hazardous substances at
that time. Thus, the District Court reasonably concluded that
the United States Appellees did not “fail to cooperate” with
NJDEP.

The Litgo Appellants and the Sanzari Appellees assert
further challenges both to the particular factors considered by
the District Court and the weight given to each. CERCLA
does not specify which factors courts must consider in
allocating costs among responsible parties; instead, it
provides that, “[i]n resolving contribution claims, the court
may allocate response costs among liable parties using such
equitable factors as the court determines are appropriate.”
42 U.S.C. § 9613(f) (emphasis added). This provision affords
district courts tremendous discretion. As we have previously
explained, “[c]ourts examining this language and its history
have concluded that Congress intended to grant the district
courts significant flexibility in determining equitable
allocations of response costs, without requiring the courts to
prioritize, much less consider, any specific factor.” Beazer
E., 412 F.3d at 446.

Some of the factors frequently considered by courts,
taken from an unsuccessful amendment to CERCLA, are

35
known as the “Gore factors.” See Matter of Bell Petroleum
Servs., Inc., 3 F.3d 889, 899 (5th Cir. 1993). They include:

(i) the ability of the parties to demonstrate
that their contribution to a discharge,
release or disposal of a hazardous waste
can be distinguished;

(ii) the amount of the hazardous waste
involved;

(iii) the degree of toxicity of the hazardous
waste involved;

(iv) the degree of involvement by the parties
in the generation, transportation,
treatment, storage, or disposal of the
hazardous waste;

(v) the degree of care exercised by the
parties with respect to the hazardous
waste concerned, taking into account the
characteristics of such hazardous waste;
and

(vi) the degree of cooperation by the parties
with the Federal, State or local officials
to prevent any harm to the public health
or the environment.

Id. at 899–900 (internal alteration omitted); United States v.
Kramer, 644 F. Supp. 2d 479, 493 n.13 (D.N.J. 2008).

Courts are not, however, bound to consider each of the
Gore factors, nor are they limited to considering only the

36
Gore factors. Beazer E., 412 F.3d at 446; Envtl. Transp. Sys.,
Inc. v. ENSCO, Inc., 969 F.2d 503, 507 (7th Cir. 1992)
(§ 9613(f) “does not limit courts to any particular list of
factors, nor does the section direct the courts to employ any
particular test”). Nevertheless, both the Litgo Appellants and
the Sanzari Appellees argue that the District Court should
have given more weight to the fact that the United States
Appellees were the only identified generators of waste, and
the fact that the Litgo Appellants and the Sanzari Appellees
did not contribute anything to the contamination. They also
claim that the District Court erred in failing to take into
consideration the United States Appellees’ business
relationship with Columbia Aircraft.

The Court thoroughly compared the role the United
States Appellees played in the contamination with that of the
Litgo Appellants and the Sanzari Appellees—parties whose
active concealment or resistance to remediation may have
worsened the conditions at the Litgo Property. The United
States Appellees arranged for hazardous waste to be disposed
of by what was then considered to be a reputable contractor,
and the waste reached the JANR warehouse only because of
third-party actors.

Nor did the Court abuse its discretion in declining to
consider the United States Appellees’ relationship with
Columbia Aircraft in the 1940s. The District Court found that
it would be “inappropriate” to assign the United States
Appellees additional costs based on conduct that would not
subject them to CERCLA liability. The Litgo Appellants and
Sanzari Appellees argue that courts have broad discretion in
considering equitable factors when allocating responsibility,
and these factors could include both the fact that the United
States Appellees leased Columbia Aircraft equipment and the

37
fact that Columbia Aircraft was assisting with the war effort.
See, e.g., United States v. Shell Oil Co., 294 F.3d 1045, 1060
(9th Cir. 2002). Although the United States Appellees’
relationship with Columbia Aircraft may be a factor that the
Court could have considered in allocating costs, the decision
not to take that factor into account was well within the
Court’s discretion, and is not reversible error.

The Litgo Appellants and the Sanzari Appellees also
challenge the significant size of their own shares of
responsibility, given that they were deemed PRPs as owners
and operators, rather than as parties directly involved in the
disposal of waste. As the Litgo Appellants point out, it may
be unusual for an owner or operator who played no role in the
discharge to be allocated such a large percentage of the costs.
See, e.g., Am. Color & Chem. Corp., 918 F. Supp. at 959–60
(0% to current owner); Bedford Affiliates, 156 F.3d at 430
(5% to current owner); Alcan-Toyo Am., Inc., 881 F. Supp. at
346–47 (10% to current owner). In most of the cases they
cite, however, the current owners did not take steps to delay
the remediation process, or to conceal the contamination
problem. Compare Am. Color & Chem. Corp., 918 F. Supp.
at 959–60 (owner did not contribute to release and fully
cooperated with state and local officials), with Bedford
Affiliates, 156 F.3d at 430 (fact that owner delayed cleanup
served as an “independent basis for imposing some liability”).
And perhaps more importantly, in each of these cases, one of
the PRPs was directly responsible for the release or discharge
of waste, so it was reasonable to allocate a substantial portion
of the costs to that party. See Am. Color & Chem. Corp., 918
F. Supp. at 948, 959–60 (party whose activities resulted in the
discharge of waste held fully responsible); Bedford Affiliates,
156 F.3d at 422, 430 (party at fault assigned 95% of the

38
responsibility); Alcan-Toyo Am., Inc., 881 F. Supp. at 345,
347 (companies that deposited coal tar at site held responsible
for 90% of future costs). Here, the most responsible parties—
Columbia Aircraft, Signo, JANR, and NJDEP—either were
not joined as parties in the suit, or could not be sued under
CERCLA. 11 Thus, the unavailability of the most responsible
parties accounts for the relatively high allocations assigned to
the Litgo Appellants and the Sanzari Appellees.

The Sanzari Appellees raise several additional
equitable claims, which require only brief discussion. First,
they claim that the Court should have taken into account the
settlement agreements that Goldstein reached with two other
parties—Dande Plastics and Wausau Insurance—during the
1996 proceedings. See K.C.1986 Ltd. P’ship v. Reade Mfg.,
472 F.3d 1009, 1017–18 (8th Cir. 2007) (stating that courts
should generally take settlements into account to avoid
duplicate recovery). Although the Court did not rely on the
settlement agreement in determining the Litgo Appellants’
allocation of responsibility, it did deduct the amount that the
Litgo Appellants had received in these settlements from the
total remediation costs, which avoided the problem of
duplicate recovery.

Second, the Sanzari Appellees claim that the District
Court should have considered prior litigation positions taken
by Goldstein in its suit against EWMA. The Sanzari
Appellees contend that Goldstein’s allegations of negligence

11
The NJDEP Commissioner was immune from suit
under the Eleventh Amendment, Columbia Aircraft was
defunct long before the suit began, and the parties do not
explain why Signo and JANR were not joined.

39
and substandard services were essentially admissions that the
Litgo Appellants paid too much for the remedial services that
they received, and the District Court should have taken those
admissions into account. The Sanzari Appellees point to no
case law suggesting that courts are required to take prior
inconsistent positions into account in allocating remediation
costs. See Alcan-Toyo Am., Inc., 881 F. Supp. at 346–47
(explaining that “estoppel . . . may be considered in the
allocation of contribution shares” (emphasis added)). In any
event, the Sanzari Appellees ignore that the District Court did
take into account the Litgo Appellants’ prior allegations
against its own consultant in its damages determination.

Third, the Sanzari Appellees claim that the District
Court failed to fully account for the nature of the Sales
Agreement between Sanzari and Goldstein. Pursuant to the
Sales Agreement, Goldstein agreed to assume Sanzari’s
environmental obligations, and he was assigned the right to
pursue claims against Sanzari’s former tenants and others.
He used the assignment to pursue Sanzari’s insurer, Sanzari’s
environmental consultants, and Dande Plastics in the 1996
litigation. A review of the record shows, however, that the
District Court did give weight to Goldstein’s assumption of
risk when it assigned the Litgo Appellants 70% of the
remediation costs. It also took into account Sanzari’s failure
to disclose relevant information to Goldstein before he chose
to assume that risk. The District Court’s balancing of these
two factors was not an abuse of discretion.12

12
We further note that, contrary to the Litgo
Appellants’ and Sanzari Appellees’ contentions, there is
nothing inconsistent about the District Court’s finding that,
although Sanzari failed to disclose all relevant information

40
 Finally, the Sanzari Appellees contend that the District
Court erred in holding them responsible for the costs of soil
remediation, in addition to the costs of groundwater
remediation. The Sanzari Appellees argue that they were
candid with the Litgo Appellants about the possibility of soil
contamination. They also claim that, even if they were
responsible for the installation of a faulty well, that defect
would have only increased groundwater—not soil—
contamination. The District Court addressed these arguments
in its opinion on the motions for reconsideration. It explained
that it “had taken this argument into consideration as one of
the factors in its decision to reduce the Sanzari Appellees’
final allocation to 27%,” but that it did not believe that it was
necessary to separate the costs. Sanzari’s failure to disclose
had consequences that extended beyond responsibility for the
groundwater contamination alone, and the Court did not
clearly err in holding the Sanzari Appellees responsible for
part of the costs of soil remediation.

D. Settlement Credit

After the hearing on liability and allocation of costs,
the United States Appellees and the Litgo Appellants reached
an agreement on damages. They stipulated that the Litgo
Appellants had incurred $1,729,279 in CERCLA response

about the contamination on the Property, Goldstein
appreciated that there were risks involved in the transaction
when he entered into the Sales Agreement. Goldstein had
ample information suggesting that contamination was an issue
and could be costly; he simply did not have the specific test
results that Sanzari withheld, showing that it was, in fact,
going to be very costly.

41
costs, and that the United States Appellees owed $51,878.37
(3% of the total damages). Following the damages hearing,
the District Court determined that the Litgo Appellants
actually had incurred $1,566,236.78 in recoverable costs—an
amount less than had been stipulated. The Sanzari Appellees
argue that they should have received a credit for the 3%
difference between the amount stipulated and the amount of
the Litgo Appellants’ actual damages. Otherwise, they
contend, the Litgo Appellants will be overcompensated for
the remediation costs that they incurred.

As the Sanzari Appellees note, CERCLA is designed
to permit plaintiffs to recover costs expended, or costs that
will need to be expended. It includes certain provisions to
ensure that plaintiffs do not receive a windfall. See, e.g., 42
U.S.C. § 9613(f)(2) (explaining that a settlement that resolves
a person’s liability to the United States or a State “reduces the
potential liability of the others by the amount of the
settlement”); see also 42 U.S.C. § 9614(b) (“Any person who
receives compensation for removal costs or damages or
claims pursuant to this chapter shall be precluded from
recovering compensation for the same removal costs or
damages or claims pursuant to any other State or Federal
law.”). These provisions do not directly apply to the situation
here—that is, where a government entity has resolved its
liability to a non-governmental entity in a settlement
agreement. There is nothing in the statutory language
mandating that the District Court give the Sanzari Appellees a
settlement credit.

Based on CERCLA’s general policy against double
recovery, however, courts have found that prior settlements
not governed by 42 U.S.C. § 9613(f)(2) should be taken into
account as an equitable factor in allocating responsibility and

42
awarding damages. See, e.g., K.C.1986 Ltd. P’ship, 472 F.3d
at 1017–18 (finding that a district court abused its discretion
when it “neither credited [prior] settlements against the
judgment nor articulated an equitable reason for not doing
so,” id. at 1018); see also Boeing Co. v. Cascade Corp., 207
F.3d 1177, 1189 (9th Cir. 2000) (treating the existence of
prior settlements as an equitable factor to be considered).
Here, the District Court took into account other settlements
that the Litgo Appellants had previously entered into. It
determined that a credit to the Sanzari Appellees based on the
stipulation was not appropriate, but did not explain why.

Although the District Court did not explicitly state
why it refused to award a settlement credit, it clearly
recognized the importance of avoiding double recovery, as it
subtracted the other settlement awards the Litgo Appellants
had received from the total remediation costs. The Court
provided a thorough and detailed discussion of other
equitable factors that it considered, including the Sanzari
Appellees’ conduct, and these other factors may have led the
Court to believe that a settlement credit of $4,891.27—less
than one percent of the total costs being allocated among the
parties—was not warranted. Although the Court should have
explained its reasoning in denying the additional settlement
credit, this determination was a very small part of the
allocation process, and we are confident that the Court
recognized the relevant factors and considered them. Cf.
Beazer E., 412 F.3d at 446 (district court abused its discretion
when it gave one equitable factor undue weight and, in doing
so, entirely failed to consider another factor). We thus hold
that the District Court’s refusal to credit the Sanzari
Appellees for the United States Appellees’ overpayment is
not reversible error.

43
 E. Prejudgment Interest

Although we agree almost entirely with the District
Court’s thorough assessment of the parties’ CERCLA claims,
we will reverse its order to the extent that it denied the Litgo
Appellants’ request for prejudgment interest under CERCLA
§ 107(a).

An award of prejudgment interest under § 107(a) of
CERCLA is mandatory. Caldwell Trucking PRP v. Rexon
Tech. Corp., 421 F.3d 234, 247 (3d Cir. 2005); see also 42
U.S.C. § 9607(a) (“The amounts recoverable in [a § 107(a)
action] shall include interest.” (emphasis added)). The
Sanzari Appellees recognize that the Litgo Appellants
brought this case as a § 107(a) cost recovery action, but argue
that when the Appellees sought contribution from the Litgo
Appellants and each other, “the case effectively became a
straight allocation case, subject to Section 113(f).” Sanzari
Br. 76. They contend that prejudgment interest is
discretionary under § 113(f).

The Sanzari Appellees’ argument mischaracterizes the
nature of the proceedings between the Litgo Appellants and
Appellees. Because they bore the costs of remediation, the
Litgo Appellants were entitled to bring suit to recover costs
against the Appellees under § 107(a), Atl. Research Corp.,
551 U.S. at 139, and they did so. Although Appellees
properly sought contribution from each other and from the
Litgo Appellants under § 113(f), this did not transform the
case into a “straight allocation case” and eliminate the Litgo
Appellants’ § 107(a) claim. Indeed, Appellees’ right to bring
a suit for contribution was premised on a finding of liability
under § 107(a). As the Supreme Court explained in Atlantic
Research:

44
 [T]he remedies available under §§ 107(a) and
113(f) complement each other by providing
causes of action to persons in different
procedural circumstances. Section 113(f)(1)
authorizes a contribution action to PRPs with
common liability stemming from an action
instituted under . . . § 107(a). And § 107(a)
permits cost recovery (as distinct from
contribution) by a private party that has itself
incurred cleanup costs.

551 U.S. at 139 (internal quotation marks and citations
omitted); see also id. at 138–39 (“The statute authorizes a
PRP to seek contribution ‘during or following’ a suit under
. . . § 107(a).” (emphasis added)). Therefore, the Litgo
Appellants’ claim was a § 107(a) claim.

Because the imposition of prejudgment interest under
§ 107(a) is mandatory, the Sanzari Appellees’ equitable
arguments against the imposition of interest are unavailing.
The Litgo Appellants recovered under § 107(a), so they are
entitled to prejudgment interest. We will therefore remand
for the District Court to calculate that interest.

IV. Spill Act Claims

Like CERCLA, the Spill Act permits courts to
“allocate the costs of cleanup and removal among liable
parties using such equitable factors as the court determines
are appropriate.” N.J. Stat. Ann. § 58:10-23.11f(a)(2)(a).
The District Court determined that both the Litgo Appellants
and the Sanzari Appellees were liable under the Spill Act for
response costs incurred for petroleum-related soil
contamination. Based on the same factors considered for

45
CERCLA cost allocation, it allocated 67% of the costs to the
Litgo Appellants and 33% of the costs to the Sanzari
Appellees.

The Sanzari Appellees argue that the District Court
erred in assigning them liability under the Spill Act because
they did not own or transport any of the hazardous materials
stored in the JANR warehouse, nor did they exercise control
over the warehouse at the time of NJDEP’s botched cleanup
in the 1980s. We disagree.

Under the Spill Act, if a party owns property at the
time of a discharge, they are responsible for that discharge.
See N.J. Dep’t of Envtl. Prot. v. Dimant, 51 A.3d 816, 829–30
(N.J. 2012) (citing Marsh v. N.J. Dep’t of Envtl. Prot., 703
A.2d 927, 931 (N.J. 1997)); see also N.J. Admin. Code
§ 7:1E-1.6 (defining “person responsible for a discharge” to
include “[e]ach owner or operator of any facility, vehicle or
vessel from which a discharge has occurred”). For liability to
attach, the plaintiff must also show that there was a
“reasonable nexus” between the discharge of waste for which
the defendant is responsible and the contamination on the site.
Dimant, 51 A.3d at 832–33, 835 (holding that there was an
insufficient nexus between the discharge caused by the
defendant and the contamination at the site when there was no
evidence connecting fluid leaking onto a paved driveway with
any of the complained-of contamination found in residential
wells). Here, the Sanzari Appellees were the owners of the
Litgo Property when hazardous waste was stored at the JANR
warehouse, and when NJDEP disposed of that hazardous
waste improperly. Because evidence presented at trial
connected the JANR warehouse discharge to the
contamination at the Litgo Property, the District Court did not
err in concluding that the Sanzari Appellees were liable under

46
the Spill Act. Nor did the District Court err in allocating Spill
Act costs, for the same reasons we discussed regarding the
CERCLA cost allocation.

V. RCRA Claims

RCRA was enacted “to reduce the generation of
hazardous waste and to ensure the proper treatment, storage,
and disposal of that waste which is nonetheless generated.”
Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996). To
accomplish this goal, RCRA permits citizen suits against any
person who has contributed or is contributing to the handling
or disposal of waste “which may present an imminent and
substantial endangerment to health or the environment,” and
authorizes district courts to issue injunctions to alleviate that
harm. 42 U.S.C. § 6972(a)(1)(B). Courts may also “award
costs of litigation (including reasonable attorney and expert
witness fees) to the prevailing or substantially prevailing
party, whenever the court determines such an award is
appropriate.” 42 U.S.C. § 6972(e).

The District Court granted summary judgment in favor
of the Sanzari Appellees on the Litgo Appellants’ RCRA
claim, based on New Jersey’s entire controversy doctrine.
Under that doctrine, all claims which arise from related facts
or the same transaction or series of transactions must be
joined together. DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J.
1995). If a plaintiff could have brought a related claim in a
prior state court proceeding and failed to do so, he will be
barred from bringing that claim in the future. He would not,
however, be barred if the state court lacked subject matter
jurisdiction over the claim. See Nanavati v. Burdette Tomlin
Mem’l Hosp., 857 F.2d 96, 112, 115 (3d Cir. 1988). The
District Court determined that the RCRA claim was

47
sufficiently related to the claims brought by the Litgo
Appellants in the 1996 proceedings that the entire controversy
doctrine applied. It concluded that state courts have
concurrent jurisdiction over RCRA claims, so the claim could
have been brought in the prior proceeding.

The Litgo Appellants’ RCRA claims against the
United States Appellees proceeded to trial. The Court found
that the United States Appellees were liable under RCRA
because they “contributed to the storage and disposal of
hazardous wastes which have been linked to the
contamination at the Litgo Property.” Litgo I, 2010 WL
2400388, at *32. It expressed doubt, however, as to whether
injunctive relief was appropriate. It explained that the United
States Appellees were not “currently taking any actions at the
site that pose an imminent and substantial endangerment to
health or the environment and thus there is no need to
‘restrain’ [them].” Id. at *40. The Court decided not to enter
an injunction at that time because it did “not feel that the
issue of what injunctive relief would be appropriate has been
sufficiently addressed by the parties.” Id. It explained that
the issue of what, if any, injunctive relief should be granted
could be addressed at the damages hearing.

Before the hearing on damages, the United States
Appellees and the Litgo Appellants entered into a settlement
agreement. The Litgo Appellants dismissed their claim for
injunctive relief under RCRA, but claimed to have
“reserve[d] their right to seek litigation costs from the United
States [Appellees] as a ‘prevailing party’ under Section
7002(e) of RCRA.” Supp. App. 8. The Litgo Appellants then
moved for costs, which were denied.

48
 The Litgo Appellants now challenge the District
Court’s dismissal of their RCRA claim against the Sanzari
Appellees and its denial of litigation costs. For the reasons
that follow, we will reverse the District Court’s summary
judgment in favor of the Sanzari Appellees and remand for
further proceedings. We will affirm the District Court’s
denial of costs and attorney’s fees.

A. Jurisdiction Over RCRA Claims

The District Court granted summary judgment in favor
of the Sanzari Appellees on the RCRA claim because it
determined that state and federal courts have concurrent
jurisdiction over RCRA claims, such that the claim was
foreclosed by the entire controversy doctrine. Because we
hold that federal courts have exclusive jurisdiction over
claims brought under RCRA, we will remand this claim for
further proceedings.

RCRA provides, in relevant part:

Any action under paragraph (a)(1) of this
subsection [permitting actions against alleged
polluters] shall be brought in the district court
for the district in which the alleged violation
occurred or the alleged endangerment may
occur. Any action brought under paragraph
(a)(2) of this subsection [permitting actions
against the administrator of the Environmental
Protection Agency (EPA)] may be brought in
the district court for the district in which the
alleged violation occurred or in the District
Court of the District of Columbia. The district
court shall have jurisdiction, without regard to

49
 the amount in controversy or the citizenship of
the parties, . . . to restrain any person who has
contributed or who is contributing to the past or
present handling, storage, treatment,
transportation, or disposal of any solid or
hazardous waste.

42 U.S.C. § 6972(a) (emphases added). The overwhelming
majority of courts that have addressed this issue have read
this provision to confer exclusive jurisdiction on federal
courts, based on the statute’s instruction that RCRA claims
“shall be brought” in a “district court.” See Blue Legs v. U.S.
Bureau of Indian Affairs, 867 F.2d 1094, 1098 (8th Cir.
1989); Interfaith Cmty. Org. Inc. v. PPG Indus., Inc., 702 F.
Supp. 2d 295, 304 (D.N.J. 2010); Remington v. Mathson,
2010 WL 1233803, at *6–9 (N.D. Cal. Mar. 26, 2010); K-7
Enterprises, L.P. v. Jester, 562 F. Supp. 2d 819, 827 (E.D.
Tex. 2007); Spillane v. Commonwealth Edison Co., 291 F.
Supp. 2d 728, 732 (N.D. Ill. 2003); White & Brewer
Trucking, Inc. v. Donley, 952 F. Supp. 1306, 1312 (C.D. Ill.
1997); Prisco v. New York, 1992 WL 88165, at *3 (S.D.N.Y.
Apr. 22, 1992); Middlesex Cnty. Bd. of Chosen Freeholders v.
N.J., Dept. of Envtl. Prot., 645 F. Supp. 715, 719 (D.N.J.
1986).13 The Sixth Circuit, in contrast, has found that RCRA
13
We have previously noted that the view that federal
courts have exclusive jurisdiction over RCRA claims
“accords with that of most other courts to have considered the
question.” See Raritan Baykeeper v. NL Indus., Inc., 660 F.3d
686, 693 (3d Cir. 2011). We did not thoroughly analyze this
issue in Raritan Baykeeper, however, because both parties
conceded that state courts did not have concurrent
jurisdiction. Id.

50
does not confer exclusive jurisdiction on federal courts, Davis
v. Sun Oil Co., 148 F.3d 606, 612 (6th Cir. 1998), and the
District Court followed that path.

Under our federal system, there is a “deeply rooted
presumption in favor of concurrent state court jurisdiction.”
Tafflin v. Levitt, 493 U.S. 455, 459 (1990); see also Yellow
Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 823 (1990).
This presumption “is, of course, rebutted if Congress
affirmatively ousts the state courts of jurisdiction over a
particular federal claim.” Tafflin, 493 U.S. at 459. Congress
may divest state courts of jurisdiction “either explicitly or
implicitly,” although its intent to do so must be clear. Id.
(quoting Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473,
478 (1981). Thus, exclusive jurisdiction may be conferred
“by an explicit statutory directive, by unmistakable
implication from legislative history, or by a clear
incompatibility between state-court jurisdiction and federal
interests.” Id. at 459–60 (quoting Gulf Offshore, 453 U.S. at
478)).

We agree with the majority of courts that have
addressed this issue that the language of § 6972(a)
unambiguously demonstrates that federal courts have
exclusive jurisdiction over RCRA claims. The statute
provides that RCRA claims “shall be brought” in a “district
court.” As used in this context, “shall be brought” is most
naturally read as a mandate; the suit must be brought in a
district court. See Middlesex Cnty. Bd. of Chosen
Freeholders, 645 F. Supp. at 719 (citing United States v.
Kravitz, 738 F.2d 102, 104 (3d Cir. 1984)). When written in
the United States Code, “district court” refers to federal, not
state, trial courts. Indeed, other statutes instructing parties to
file suit in a “district court” involve exclusively federal

51
claims.14 A provision stating that plaintiffs must file in
federal court is sufficient to establish that federal courts have
exclusive federal jurisdiction. See Tafflin, 493 U.S. at 471
(Scalia, J., concurring) (“In the standard fields of exclusive
federal jurisdiction, the governing statutes specifically recite

14
See, e.g., 42 U.S.C. § 6972(a) (CERCLA) (action
“shall be brought in the district court for the district in which
the alleged violation occurred or the alleged endangerment
may occur”) and 42 U.S.C. § 9613(b) (federal courts have
exclusive jurisdiction over CERCLA actions); 28 U.S.C.
§ 1402(d) (“Any civil action under section 2409a to quiet title
to an estate or interest in real property in which an interest is
claimed by the United States shall be brought in the district
court of the district where the property is located or, if located
in different districts, in any of such districts.”); 28 U.S.C.
§ 1403 (eminent domain) (“Proceedings to condemn real
estate for the use of the United States or its departments or
agencies shall be brought in the district court of the district
where the land is located or, if located in different districts in
the same State, in any of such districts.”); 39 U.S.C.
§ 3012(b)(1) (civil action brought by the post office) (“Any
such action shall be brought in the district court of the United
States for the district in which the defendant resides or
receives mail.”) and 28 U.S.C. § 1355(a) (granting federal
courts exclusive jurisdiction over fines and penalties incurred
under federal statute). When concurrent jurisdiction exists,
litigants are not similarly limited to district courts. See, e.g.,
42 U.S.C. § 2000e-5(f)(3) (Title VII) (“Such an action may be
brought in any judicial district in the State in which the
unlawful employment practice is alleged to have been
committed . . . .”).

52
that suit may be brought ‘only’ in federal court; that the
jurisdiction of federal courts shall be ‘exclusive,’ or indeed
even that the jurisdiction of the federal courts shall be
‘exclusive of the courts of the States’” (emphasis added)
(internal citations omitted) (citing the Investment Company
Act of 1940, 15 U.S.C. § 80a-35(b)(5), as an example of a
statute that divested state courts of jurisdiction by directing
plaintiffs to file suit in a United States district court)); cf. id.
at 460–61 (explaining that a provision stating that a person
“may sue . . . in any appropriate United States district court”
did not suggest that federal courts had exclusive jurisdiction,
because “[i]t provides that suits of the kind described ‘may’
be brought in the federal district courts, not that they must be”
(emphasis added)).15

The Sanzari Appellees, relying on the Sixth Circuit’s
decision in Davis, argue that the Supreme Court has
previously determined that language similar to the language
in RCRA does not deprive the state courts of jurisdiction. In
Yellow Freight, the Supreme Court addressed whether state
courts have concurrent jurisdiction over claims arising under
Title VII, which provides:

15
Although Congress could have explicitly used the
phrase “exclusive jurisdiction”—and often does so—we
reject our dissenting colleague’s suggestion that statutes must
invoke a “talismanic term” to divest state courts of
jurisdiction. Dissenting Op. at 7. Such a requirement
contravenes the Supreme Court’s repeated instruction that
Congress may explicitly or implicitly divest state courts of
jurisdiction. See Tafflin, 493 U.S. at 459 (quoting Gulf
Offshore, 453 U.S. at 478).

53
 Each United States district court and each
United States court of a place subject to the
jurisdiction of the United States shall have
jurisdiction of actions brought under this
subchapter.

42 U.S.C. § 2000e-5(f)(3) (emphasis added). The Supreme
Court held that this language did not “expressly confine[]
jurisdiction to the federal courts or oust[] state courts of their
presumptive jurisdiction.” Yellow Freight, 494 U.S. at 823.
The Sanzari Appellees argue that the same reasoning applies
to the text of RCRA, and the Sixth Circuit expressed the same
view in Davis, opining:

The “shall have” language [in Title VII] was not
deemed to be sufficient evidence that Congress
intended to divest the state courts of jurisdiction
over those matters. In the same way, the “shall”
language in the RCRA enforcement provision
does not grant exclusive jurisdiction to the
federal courts in suits brought pursuant thereto.

Davis, 148 F.3d at 612.

The similarities between the language at issue in Title
VII (“shall have jurisdiction”) and RCRA (“shall be brought
in the district court”) are, at best, superficial. The former is
merely a grant of authority; nothing in the statement “Each
United States district court . . . shall have jurisdiction” is
inconsistent with concurrent jurisdiction. See Gulf Offshore
Co., 453 U.S. at 479 (“It is black letter law . . . that the mere
grant of jurisdiction to a federal court does not operate to oust
a state court from concurrent jurisdiction over the cause of

54
action.”). The latter is, by contrast, an order requiring
litigants to bring RCRA claims in a district court.16

The Sanzari Appellees argue, and our dissenting
colleague agrees, that this phrase could be read to mean that
“if a citizen suit claim is brought in federal court, then it must

16
The Sixth Circuit’s decision in Davis has been
criticized in several academic journals. See Jason M. Levy,
Note, Conflicting Enforcement Mechanisms Under RCRA:
The Abstention Battleground Between State Agencies and
Citizen Suits, 39 Ecology L.Q. 373, 398 (2012) (describing
Davis as a “curious decision” that “defies logic”); A. Mark
Segreti, Jr., RCRA Citizen Suits and State Courts:
Jurisdictional Trap After Davis v. Sun Oil Company, 19 Pace
Envtl. L. Rev. 73, 92−93 (2001) (“The court did not consider
the total phrase ‘shall be brought in the district court for the
district,’ apparently not seeing the significance of a
mandatory designation of a court, as opposed to merely
conferring jurisdiction on the court by stating that the courts
‘shall have’ jurisdiction.”); Charlotte Gibson, Note, Citizen
Suits Under the Resource Conservation and Recovery Act:
Plotting Abstention on a Map of Federalism, 98 Mich. L.
Rev. 269, 282 (1999) (remarking that “Title VII’s
jurisdictional provision is easily distinguishable from
RCRA’s”). Even the commentator cited by the dissent, who
approved of the result in Davis, has described the Sixth
Circuit’s reasoning as “doubtful,” given the differences
between the provision in Title VII and the language used in
RCRA. Christopher S. Elmendorf, Note, State Courts,
Citizen Suits, and the Enforcement of Federal Environmental
Law by Non-Article III Plaintiffs, 110 Yale L.J. 1003, 1017
(2001).

55
be brought in the district where the violation or alleged
endangerment occurred, rather than the district where a
defendant may be subject to personal jurisdiction,” Sanzari
Br. 65 (citing Davis v. Sun Oil Co., 953 F. Supp. 890, 895
(S.D. Ohio 1996)); Dissenting Op. at 10−11 (quoting
Christopher S. Elmendorf, Note, State Courts, Citizen Suits,
and the Enforcement of Federal Environmental Law by Non-
Article III Plaintiffs, 110 Yale L.J. 1003, 1007 (2001)). The
problem with this interpretation, however, is that the statutory
language is plainly unconditional. The statute does not
instruct claimants on what to do “if” they file in federal court.
Instead, it mandates: “Any action under paragraph (a)(1) of
this subsection shall be brought in the district court for the
district in which the alleged violation occurred or the alleged
endangerment may occur.” 42 U.S.C. § 6972(a) (emphasis
added); see also Elmendorf, supra at 1017 (“[T]he RCRA
citizen-suit provision, if read literally, affirmatively requires
citizens to bring their claim in one particular and presumably
federal court (the district court for the judicial district in
which the alleged violation occurred).”).17

17
The law review note on which the dissent relies
argues that the RCRA provision is ambiguous because it uses
the phrase “district court” instead of the phrase “United States
district court.” This ambiguity, the note contends, permits
courts to read the provision as conditional. It suggests that a
statute with a similar provision—the Toxic Substances
Control Act (TSCA)—likely could not be read as conditional
because it uses the phrase “United States district court”
instead.

56
 In stating that citizen suits “shall be brought in
the United States district court for the district in
which the alleged violation occurred,” TSCA
resolves the ambiguity in RCRA and comes as
close as a statute can to reserving jurisdiction
expressly to the federal courts without use of
the phrase “exclusive jurisdiction.” To find that
TSCA confers state court jurisdiction, one
would have to abandon plain meanings
altogether, massaging the word “shall” until it
acquires the shape of “may.”

Elmendorf, supra at 1019. Because “district court,” in fact,
unambiguously refers to federal courts, we do not find this
distinction to be persuasive. We “would have to abandon
plain meanings altogether” to find that parties may bring a
RCRA claim in state court.

The dissent further suggests that our interpretation of
the statute could have strange results, as “RCRA does not
consistently use the term ‘shall’ while dictating the
procedures for filing a citizen complaint.” Dissenting Op. at
11. It claims that our interpretation may implicitly permit
suits against the EPA or other agencies in state court, even
though plaintiffs may only bring suits against polluters in
federal district court. Although we need not reach the issue
of whether suits brought against the EPA can be brought in
state court in this case, we note that we do not think that this
result necessarily follows from the text of the statute. As
explained above, RCRA provides:

Any action under paragraph (a)(1) of this
subsection [permitting actions against alleged

57
 polluters] shall be brought in the district court
for the district in which the alleged violation
occurred or the alleged endangerment may
occur. Any action brought under paragraph
(a)(2) of this subsection [permitting actions
against the administrator of the EPA] may be
brought in the district court for the district in
which the alleged violation occurred or in the
District Court of the District of Columbia.

42 U.S.C. § 6972(a). Read as a whole, the provision may use
“shall” in the first sentence because plaintiffs filing suits
against polluters have only one choice—they must file suit in
the district court in the district where the violation occurred.
The use of “may” in the second sentence could simply
suggest that plaintiffs filing against the EPA administrator, in
contrast, have two choices—the district court in the district
where the violation occurred, or the District Court for the
District of Columbia. The two provisions, taken together, do
not necessarily suggest that a plaintiff could file suit against
an agency in the district court in the district where the
violation occurred, in the District Court for the District of
Columbia, or in a state court. Other statutes that have been
interpreted as permissive have been stand-alone provisions;
they have not been found in a similar context. See, e.g., 18
U.S.C. § 1964(c) (statute found to be permissive in Charles
Dowd Box, Co. v. Courtney, 368 U.S. 502 (1962), which
states only that suits “may” be brought “in any appropriate
United States district court”); 47 U.S.C. § 227(b)(3)
(Telephone Consumer Protection Act).

58
 Because the New Jersey state court lacked subject
matter jurisdiction over the RCRA claim, the District Court
erred in determining that the entire controversy doctrine
applied and in granting summary judgment to the Sanzari
Appellees on that basis. Thus, we will reverse this aspect of
the District Court’s order and remand for further
proceedings. 18

B. Litigation Costs under RCRA

The Litgo Appellants also claim that the District Court
erred in denying their request for an award of $4,751,201.88
in litigation costs, including attorney’s fees, against the

18
The dissent claims that our approach will “‘result in
a significant impingement of the States’ traditional and
primary power over land and water use,’ thus disrupting the
balance of state and federal regulation over state, county, and
local pollution that both Congress and the Supreme Court
have recognized and respected.” Dissenting Op. at 3−4
(internal citation omitted) (quoting Solid Waste Agency of N.
Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159,
174 (2001)). We disagree. We hold only that the rights
provided by RCRA’s citizen suit provision must be enforced
in federal court. This holding does not prevent New Jersey
from enforcing its own environmental statutes and common
law. See 42 U.S.C. § 6972(f) (“Nothing in this section shall
restrict any right which any person (or class of persons) may
have under any statute or common law to seek enforcement of
any standard or requirement relating to the management of
solid waste or hazardous waste, or to seek any other relief
(including relief against the Administrator or a State
agency).”).

59
United States Appellees. Although RCRA gives courts
discretion to award a “prevailing or substantially prevailing
party” litigation costs, see 42 U.S.C. § 6972(e), the District
Court refused to grant such an award here, in part because it
determined that the Litgo Appellants were not prevailing or
substantially prevailing parties. 19 We will affirm on that
basis.

To have “prevailed” or “substantially prevailed” on
their claims, the Litgo Appellants must have “secure[d] a
material alteration of [their] legal relationship” with the
United States Appellees—that is, they must have obtained
some kind of judicial relief. NAACP v. N. Hudson Reg’l Fire
& Rescue, 665 F.3d 464, 486 n.12 (3d Cir. 2011) (internal
quotation marks omitted) (prevailing party); United States v.
Craig, 694 F.3d 509, 512 (3d Cir. 2012) (substantially
prevailing party); see also Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598,
606 (2001). A party who “has failed to secure a judgment on
the merits or a court-ordered consent decree, but has
nonetheless achieved the desired result because the lawsuit
brought about a voluntary change in the defendant’s conduct”
is not a prevailing party. Buckhannon Bd., 532 U.S. at 600
(“[W]e have not awarded attorney’s fees where the plaintiff
has . . . acquired a judicial pronouncement that the defendant
has violated the Constitution unaccompanied by ‘judicial
19
The District Court further determined that an award
of litigation costs would be inappropriate for equitable
reasons. Because we agree with the District Court that the
Litgo Appellants were not prevailing or substantially
prevailing parties, we need not address this alternative
holding.

60
relief,’” id. at 605–06 (internal citations omitted)); see also
Hewitt v. Helms, 482 U.S. 755, 760 (1987) (“Respect for
ordinary language requires that a plaintiff receive at least
some relief on the merits of his claim before he can be said to
prevail.”).

The District Court found that the United States
Appellees were liable parties under RCRA. It did not,
however, grant relief on that claim. Instead, it reserved the
question of “what, if any, injunctive relief is appropriate” for
the hearing on damages. Litgo I, 2010 WL 2400388, at *40
n.36. The Litgo Appellants and the United States Appellees
then entered into a settlement agreement, so the District Court
never decided whether injunctive relief was proper. Because
the Litgo Appellants never obtained judicial relief on their
CERCLA claim, the District Court correctly found that they
are not entitled to litigation costs.

VI. Closure Act Claim

Finally, the Litgo Appellants requested rescission of
the Sales Agreement under the New Jersey Closure Act,
which requires sellers of land to disclose whether the property
has ever been used as a landfill in the contract of sale. N.J.
Stat. Ann. § 13:1E-116(a). Contracts that do not disclose that
there was a landfill on the property are voidable. Id. § 13:1E-
116(b). The Litgo Appellants argued at trial that there had
been a sanitary landfill on the Litgo Property, and that the
Sanzari Appellees failed to disclose that fact. The District
Court determined that there was insufficient evidence to find
that there had been a sanitary landfill.

We cannot say that the District Court’s conclusion was
clearly erroneous. Although evidence presented at trial

61
demonstrated that there was a landfill on the properties
adjacent to the Litgo Property, the evidence was ambiguous
as to whether the Property itself had been put to such a use.
The District Court listed its reasons for finding that the Litgo
Appellants had not shown by a preponderance of the evidence
that the Property was used as a landfill, which included: (1)
lack of documentary evidence; (2) physical evidence
suggesting that the Property had not been used for such a
purpose; and (3) physical evidence suggesting that the
Property would not have been a good site to use for such a
purpose. Because these findings are supported by the record,
the District Court did not err in denying the Litgo Appellants’
request for rescission.

* * *

For the reasons discussed herein, we agree with the
great majority of the District Court’s comprehensive and
thoughtful consideration of this complex case, and will affirm
its judgment in all respects save two: (1) the Litgo Appellants
should have been awarded prejudgment interest; and (2) the
District Court erred in dismissing the RCRA claim against the
Sanzari Appellees. We will vacate the District Court’s order
in those respects and will remand for further proceedings
consistent with this opinion.

62
GARTH, Circuit Judge, dissenting:
There is only one issue in this appeal of true
significance. Indeed, it has presented us with an issue of first
impression in this Court: whether the individual states have
the authority, i.e., concurrent jurisdiction with the federal
courts, to regulate pollution of the lands and property within
and comprising the state.
The majority opinion in this case proclaims that only
the federal courts have jurisdiction to hear Resource
Conservation and Recovery Act (RCRA) cases affecting the
property and lands of the sovereign states and that the states
have no jurisdiction to entertain such cases. 1

1
The relevant text of the Resource Conservation and
Recovery Act of 1976, as amended by the Hazardous and
Solid Waste Amendments of 1985 (RCRA), 42 U.S.C. § 6901
et seq., provides:

Any action under paragraph (a)(1) of this subsection
shall be brought in the district court for the district in
which the alleged violation occurred or the alleged
endangerment may occur. Any action brought under
paragraph (a)(2) of this subsection may be brought in
the district court for the district in which the alleged
violation occurred or in the District Court of the District
of Columbia. The district court shall have jurisdiction,
without regard to the amount in controversy or the
citizenship of the parties, to enforce the permit,
standard, regulation, condition, requirement,
prohibition, or order, referred to in paragraph (1)(A), to
restrain any person who has contributed or who is
contributing to the past or present handling, storage,

1
 On this basis, the majority has reversed the District
Court’s order dismissing Litgo’s RCRA claim. The District
Court held that Litgo had been obliged to bring that claim in
New Jersey’s Superior Court, where it had previously brought
suit against the Sanzari defendants.2

treatment, transportation, or disposal of any solid or
hazardous waste referred to in paragraph (1)(B), to order
such person to take such other action as may be
necessary, or both, or to order the Administrator to
perform the act or duty referred to in paragraph (2), as
the case may be, and to apply any appropriate civil
penalties under section 6928(a) and (g) of this title.

42 U.S.C. § 6972(a).
2
The issue of concurrent jurisdiction—i.e. whether the
respective states’ courts have authority to regulate and
control pollution within their own state—arises because
Litgo, the plaintiff, and the Sanzari defendants previously
litigated similar issues in New Jersey state court, and at no
time during this previous litigation did Litgo raise a claim
under RCRA.
New Jersey has adopted an “Entire Controversy
Doctrine” which “embodies the principle that the adjudication
of a legal controversy should occur in one litigation in only
one court.” Cogdell by Cogdell v. Hosp. Ctr. at Orange, 116
N.J. 7, 15 (1989). The Entire Controversy Doctrine has been
codified to provide that “[n]on-joinder of claims required to
be joined by the entire controversy doctrine shall result in the
preclusion of the omitted claims to the extent required by the
entire controversy doctrine. . . .” New Jersey Court Rule
4:30A.

2
 The majority opinion reaches its conclusion
notwithstanding the fact that there is nothing in the text,
intent, history, or purpose of RCRA indicating that Congress
affirmatively prohibited the states from hearing and deciding
cases brought pursuant to RCRA. The majority in its opinion
has accordingly defied enduring Supreme Court precedents
that go as far back as 1876. See, e.g., Claflin v. Houseman, 93
U.S. 130 (1876); Tafflin v. Levitt, 493 U.S. 455, 459 (1990).
Those precedents hold that state courts have the same
jurisdiction over claims involving federal law as federal
courts do, unless Congress affirmatively and explicitly states
otherwise. Congress has not stated otherwise in enacting
RCRA.
By failing to give proper weight to the forceful
presumption that state courts may exercise jurisdiction over
federal-law claims, the majority opinion also undermines the
well established primacy of a state in protecting and
regulating its own property and ground. Adopting the
majority’s approach “would result in a significant
impingement of the States’ traditional and primary power
over land and water use,” Solid Waste Agency of N. Cook
Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 174

As this court has recognized, “[a] federal court hearing
a federal cause of action is bound by New Jersey’s Entire
Controversy Doctrine, an aspect of the substantive law of
New Jersey, by virtue of the Full Faith and Credit Act, 28
U.S.C. § 1738 (1994).” Rycoline Products, Inc. v. C & W
Unlimited, 109 F.3d 883, 887 (3d Cir. 1997). There is no
dispute that, if New Jersey may exercise concurrent
jurisdiction over RCRA claims, Litgo’s failure to raise this
claim in the previous New Jersey court litigation precludes it
from litigating this issue anew in the present case.

3
(2001), thus disrupting the balance of state and federal
regulation over state, county, and local pollution that both
Congress and the Supreme Court have recognized and
respected.
I am therefore obliged to dissent from the
jurisdictional holding of the majority. I would hold that
RCRA provides concurrent jurisdiction to both state and
federal courts in this area of “quintessential state and local
power.” Rapanos v. United States, 547 U.S. 715, 738 (2006).
I would therefore affirm the order of the District Court in
having so held.3
I
Presumption in favor of concurrent jurisdiction
I begin by highlighting the core principles that must
guide analysis of this issue. The Supreme Court has long
abided by the “general rule that the grant of jurisdiction to
one court does not, of itself, imply that the jurisdiction is to
be exclusive.” United States v. Bank of New York & Trust
Co., 296 U.S. 463, 479 (1936). As the Supreme Court has
further emphasized, there is in our federalism a “deeply
rooted presumption in favor of concurrent state court
jurisdiction.” Tafflin, 493 U.S. 459. This presumption, which

3
I agree with the balance of the majority’s opinion and thus
would affirm all of the District Court’s comprehensive and
well reasoned opinion other than its decision on prejudgment
interest. The District Court denied CERCLA prejudgment
interest to Litgo when it should have granted it because
CERCLA § 107(a) mandates that interest be paid. Hence we
are obliged to reverse and remand for calculation of
prejudgment interest.

4
the majority recognizes but refuses to follow, is subject to
rebuttal only “if Congress affirmatively ousts the state courts
of jurisdiction over a particular federal claim . . . . ‘by an
explicit statutory directive, by unmistakable implication from
legislative history, or by a clear incompatibility between
state-court jurisdiction and federal interests.’” Id. at 459-60
(emphasis added) (quoting Gulf Offshore Co. v. Mobil Oil
Corp., 453 U.S. 473, 478 (1981)).
As Justice Stevens explained for a unanimous court in
Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820 (1990):
“Under our ‘system of dual sovereignty, we have consistently
held that state courts have inherent authority, and are thus
presumptively competent, to adjudicate claims arising under
the laws of the United States.’” Id. at 823 (quoting Tafflin,
493 U.S. 458). The Court looked at Claflin v. Houseman, 93
U.S. 130 (1876) (involving the Bankruptcy Act of March 2,
1867) and Gulfshore v. Mobil Oil Corp., 453 U.S. 473
(involving the Outer Continental Shelflands Act, 43 U.S.C. §
1333), thus illustrating the traditional, generational, and
historical context of concurrent jurisdiction.
The Court went on to say: “to give Federal Courts
exclusive jurisdiction over a Federal cause of action,
Congress must, in an exercise of its powers under the
Supremacy Clause, affirmatively divest State Courts of their
presumptive concurrent jurisdiction.” Yellow Freight, 494
U.S. 823 (emphasis added).
In Yellow Freight, the Court was called upon to apply
these principles in the context of Title VII. The plaintiff had
complained about discrimination in the action brought in the
state court. Her claim was removed to the federal court, and
when the Court of Appeals for the Seventh Circuit held that
there was exclusive jurisdiction over the Title VII litigation,

5
the Supreme Court granted certiorari. In referring to the text
of Title VII, the Court noted that Title VII had been enacted
with the provision that:
“[e]ach United States district court and each United
States court of a place subject to the jurisdiction of the
United States shall have jurisdiction of actions brought
under this subchapter.” 42 U.S.C. § 2000e-5(f)(3) (1982
ed.).

Yellow Freight, 494 U.S. 823. The Court held that this
language, notwithstanding its use of the purportedly
mandatory term “shall,” contained no language that expressly
confined jurisdiction to federal courts. Nor did this “shall”
language operate to oust the state courts of their presumptive
jurisdiction. In so holding, the Court noted that “omission of
any such provision [that expressly confines jurisdiction to
federal courts or ousts state courts of their presumptive
jurisdiction] is strong, and arguably sufficient, evidence that
Congress had no such intent” to confer exclusive jurisdiction
on the federal courts. Id.
To reiterate, the Court went on to emphasize that “[t]o
give federal courts exclusive jurisdiction over a federal cause
of action, Congress must, in an exercise of its powers under
the Supremacy Clause, affirmatively divest state courts of
their presumptively concurrent jurisdiction.” Yellow Freight,
494 U.S. 823 (emphasis added). Absent such an affirmative
divestment, the Court concluded, even a “persuasive showing
that most legislators, judges, and administrators who have
been involved in the enactment, amendment, enforcement,
and interpretation of Title VII expected that such litigation
would be processed exclusively in federal courts” was
inadequate to support exclusive jurisdiction, as “such

6
anticipation does not overcome the presumption of concurrent
jurisdiction that lies at the core of our federal system.” Id. at
826.
II
Concurrent Jurisdiction in RCRA
In enacting RCRA, Congress acknowledged “the
collection and disposal of solid wastes . . . to be primarily the
function of State, regional, and local agencies . . . .” 42 U.S.C.
§ 6901(a)(4). The provision of RCRA directly at issue in this
case states that “[a]ny action under paragraph (a)(1) of this
subsection shall be brought in the district court for the district
in which the alleged violation occurred or the alleged
endangerment may occur.” 42 U.S.C. § 6972(a). Notably, this
language plainly does not include the talismanic term
“exclusive jurisdiction,” as does, for example, CERCLA, 42
U.S.C. § 9613(b),4 as well as other statutes conferring
exclusive jurisdiction.5 As these statutes make clear, Congress

4
CERCLA, 42 U.S.C. § 9613(b) (“Except as provided in
subsections (a) and (h) of this section, the United States
district courts shall have exclusive original jurisdiction over
all controversies arising under this chapter, without regard to
the citizenship of the parties or the amount in controversy.
Venue shall lie in any district in which the release or damages
occurred, or in which the defendant resides, may be found, or
has his principal office.”) (emphases added).
5
For example, 15 U.S.C. § 78aa, concerning violations of
rules governing securities exchanges, provides: “The district
courts of the United States and the United States courts of any
Territory or other place subject to the jurisdiction of the
United States shall have exclusive jurisdiction of violations of

7
is perfectly capable of clearly indicating when it intends to
oust states of their presumptive jurisdiction.
Absent a clearer grant of exclusive jurisdiction, the
text of the RCRA cannot be properly read to oust states of
their presumptive jurisdiction. As the Sixth Circuit held in
Davis v. Sun Oil Co., 148 F.3d 606 (6th Cir. 1998), “the term
‘shall’ as it is used in [RCRA] does not affirmatively divest
the state court’s of their presumptive jurisdiction. . . . [T]he
‘shall’ language in the RCRA enforcement provision does not
grant exclusive jurisdiction to the federal courts . . . .” Id. at
612 (emphases added).
In determining, contra Davis, that RCRA confers
exclusive jurisdiction on the federal courts, the majority

this chapter or the rules and regulations thereunder, and of all
suits in equity and actions at law brought to enforce any
liability or duty created by this chapter or the rules and
regulations thereunder.” (emphasis added.)
Similarly, 16 U.S.C. § 2440, concerning the Antarctic
Marine Living Resources Convention, provides: “The district
courts of the United States shall have exclusive jurisdiction
over any case or controversy arising under the provisions of
this chapter or of any regulation promulgated under this
chapter.” (emphasis added.)
Likewise, 28 U.S.C. § 1338(a), pertaining to patents
and other intellectual property, states: “The district courts
shall have original jurisdiction of any civil action arising
under any Act of Congress relating to patents, plant variety
protection, copyrights and trademarks. No State court shall
have jurisdiction over any claim for relief arising under any
Act of Congress relating to patents, plant variety protection,
or copyrights.” (emphasis added.)

8
opinion emphasizes that “[t]he overwhelming majority of
courts that have addressed this issue have read this provision
to confer exclusive jurisdiction on federal courts, based on the
statute’s instruction that RCRA claims ‘shall’ be brought in a
‘district court.’” Maj. Op. at 50. This position rests on two
fatally flawed foundational arguments: first, that there is
weighty and persuasive judicial authority on this subject, and
second, that the phrase “shall be brought in . . . district court”
represents a textual grant of exclusive jurisdiction.
“The overwhelming majority of courts”
Of the eight cases cited by the majority for the
proposition that there is consensus on this issue, the majority
has mustered only a single opinion from a Court of Appeals,
Blue Legs v. U.S. Bureau of Indian Affairs, 867 F.2d 1094
(8th Cir. 1989). Blue Legs, an Eighth Circuit Court of
Appeals opinion, involves Indian tribes and lands rather than
the states and state lands. The opinion limits its discussion to
just these two sentences:
Our examination of the RCRA leads us to conclude that
exhaustion of tribal remedies is not required in this case.
The RCRA places exclusive jurisdiction in federal
courts for suits brought pursuant to section 6972(a)(1)
of the Resource Conservation and Recovery Act.
Any action under paragraph (a)(1) of this subsection
[as this case is] shall be brought in the district court
for the district in which the alleged violation
occurred.
42 U.S.C. § 6972(a). Accord Middlesex County Board
of Union Freeholders v. New Jersey, 645 F.Supp. 715,
719–20 (D.N.J.1986).

9
Blue Legs, 867 F.2d 1098 (8th Cir. 1989).
The overwhelming majority of District Courts cited by
the majority opinion as overwhelming authority at best echo
Blue Legs’ two-sentence decision. Just as Blue Legs provided
no careful, thoughtful and meaningful analysis, the District
Courts which echo Blue Legs provide none either.
I thus do not regard Blue Legs’ discussion of
jurisdiction, nor the District Courts’ discussions which follow
Blue Legs’ two-sentence discussion of jurisdiction, to be
authoritative—and certainly they are not binding in the area
of federal/state jurisdiction.
Venue: the “may” – “shall” distinction
The substantive textual argument advanced by the
majority is unconvincing because it fails to appreciate that
RCRA’s requirement that actions “shall be brought in the
district court for the district in which the alleged violation
occurred” imposes a venue restriction that applies only if a
litigant chooses to file in federal court rather than a
jurisdictional requirement that a litigant must file in federal
court. As noted in Christopher S. Elmendorf, State Courts,
Citizen Suits, and the Enforcement of Federal Environmental
Law by Non-Article III Plaintiffs, 110 YALE L.J. 1003, 1017
(2001):
One could read RCRA’s mandate that citizen suits
“shall be brought in the district court for the district in
which the alleged violation occurred” as operating
subsequent to the decision to bring a claim in state or
federal court. Once you have chosen a judicial system,
then you must bring your claims in the district court for
the judicial district in which the alleged violation
occurred. (footnote omitted.)

10
 Examining the provision of RCRA at issue reveals that
it concerns venue rather than jurisdiction. First, RCRA, §
6972(a), has an express jurisdictional statement. It provides:
“The district court shall have jurisdiction, without regard to
the amount in controversy or the citizenship of the parties . . .
.” Had Congress intended to confer exclusive jurisdiction, it
could very naturally and easily have specified that “the
district court shall have exclusive jurisdiction,” as it has done
in other statutes, including CERCLA. (See notes 4 and 5,
supra.) Instead, Congress has set out a facially nonrestrictive
jurisdictional provision, thus leaving undisturbed the
presumption of concurrent state court jurisdiction.
Second, RCRA does not consistently use the term
“shall” when dictating the procedures for filing a citizen
complaint. The text immediately following the language at
issue, which relates to suits brought against the administrator
of the Environmental Protection Agency for failing to
perform a non-discretionary action, provides: “Any action
brought under paragraph (a)(2) of this subsection may be
brought in the district court for the district in which the
alleged violation occurred or in the District Court of the
District of Columbia.” § 6972(a) (emphasis added).
As the Supreme Court has recently made clear,
permissive formulations of this sort cannot overcome the
presumption of concurrent jurisdiction. Mims v. Arrow Fin.
Services, LLC, 132 S. Ct. 740, 749 (2012) (“Nothing in the
permissive language of [the Telephone Consumer Protection
Act, 47 U.S.C.] § 227(b)(3) [providing that “A person or
entity may, if otherwise permitted by the laws or rules of
court of a State, bring in an appropriate court of that State”]
makes state-court jurisdiction exclusive, or otherwise purports

11
to oust federal courts of their 28 U.S.C. § 1331 jurisdiction
over federal claims.”).
It cannot be that Congress intended the terms “shall”
and “may” as variously used in RCRA, § 6972(a), to
implicitly permit suits against the EPA in state court while
still insisting on exclusive federal jurisdiction over suits
against private polluters. Rather, the “may/shall” distinction
obviously refers to the lesser venue requirements applicable
to suits against the EPA as opposed to than the more
restrictive requirement that suits against individual polluters
be brought where the pollution occurred.
Third, where Congress has elsewhere used the
formulation “shall be brought in the district court for the
district in which the alleged violation occurred,” it has done
so in provisions expressly concerned with venue.6

6
CERCLA, 42 U.S.C. § 9659(b), for example, contains a
provision concerning citizen suits that provides:

Venue
(1) Actions under subsection (a)(1)
Any action under subsection (a)(1) of this section shall
be brought in the district court for the district in which
the alleged violation occurred.
(2) Actions under subsection (a)(2)
Any action brought under subsection (a)(2) of this
section may be brought in the United States District
Court for the District of Columbia.

Similarly, 42 U.S.C. § 11046(b) provides:

Venue

12
 The majority has thus erroneously decided that
Congress has used a statutory formulation for venue to
override and trump the Supreme Court’s instruction and
precedent that both state and federal jurisdiction are available
under RCRA. Congress in § 6972(a) of RCRA, however, has
simply dictated which federal district courts have venue over
RCRA claims and has said nothing impinging upon,
affecting, or eliminating concurrent state jurisdiction.
IV
Pollution regulation – primary state function
There is, moreover, no incompatibility between RCRA
and state jurisdiction. Quite to the contrary! When one
considers the very subject of RCRA, it is all too evident that
the individual states, each of which is defined by property
borders, have the primary interest and concern in protecting
and shielding their own sovereign lands. RCRA recognizes
that “the collection and disposal of solid wastes should
continue to be primarily the function of State, regional, and
local agencies . . . .” 42 U.S.C. § 6901(a)(4). The important
state interest in land, moreover, cannot rest at the mercy of
federal whim or be restricted just to the federal courts for
remediation. As the Supreme Court has said, in describing the
limits of federal jurisdiction:

(1) Any action under subsection (a) of this section
against an owner or operator of a facility shall be
brought in the district court for the district in which the
alleged violation occurred.
(2) Any action under subsection (a) of this section
against the Administrator may be brought in the United
States District Court for the District of Columbia.

13
 Permitting [the U.S. Army Corps of Engineers] to claim
federal jurisdiction over ponds and mudflats falling
within the “Migratory Bird Rule” would result in a
significant impingement of the States’ traditional and
primary power over land and water use. See, e.g., Hess
v. Port Authority Trans–Hudson Corporation, 513 U.S.
30, 44, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994)
(“[R]egulation of land use [is] a function traditionally
performed by local governments”). Rather than
expressing a desire to readjust the federal-state balance
in this manner, Congress chose to “recognize, preserve,
and protect the primary responsibilities and rights of
States ... to plan the development and use ... of land and
water resources ....” 33 U.S.C. § 1251(b).

Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of
Engineers, 531 U.S. 174 (emphasis added).
For the same reasons that federal authority cannot
excessively intrude on local regulation of land and water, it is
essential (absent an express Congressional declaration
otherwise) that the states should, through their own courts, be
able to enforce the laws governing pollution of their land,
even when the source of the law is federal.
V
Conclusion
I am compelled to part company with my colleagues in
the majority because they have failed to adhere to Supreme
Court precedent interpreting Congress’ legislation. As I have
pointed out, since at least 1867 the Supreme Court has
required federal courts to recognize dual jurisdiction in
matters such as RCRA. The majority here has not.

14
 Instead of respecting our “system of dual sovereignty,”
which requires that state courts have inherent authority and
are thus presumptively competent to adjudicate claims under
the laws of the United States, the majority has ignored this
principle and thus defied Supreme Court precedent. See
Tafflin, 493 U.S. 458 (“Under this system of dual
sovereignty, we have consistently held that state courts have
inherent authority, and are thus presumptively competent, to
adjudicate claims arising under the laws of the United
States.”). Instead, the majority opinion, as I have pointed out,
has followed the unanalytic path of the solitary Court of
Appeals which has held that federal courts have exclusive
RCRA jurisdiction. Only the District Courts have adopted
this position, following the Eighth Circuit opinion of Blue
Legs without any additional persuasive analysis.
The opinions of the District Courts do not follow
Supreme Court precedent or employ logic in denying RCRA
state court jurisdiction. Rather, they have cited to the Blue
Legs position and to one another in superficial treatment of
their respective jurisdictional conclusions. Sadly and
unfortunately, the majority opinion has followed suit.
Accordingly, just as with the opinions it has cited, the
majority opinion lacks authoritative precedential analysis and
statutory interpretation. The majority opinion, and the courts
it has looked to, have thus failed to take into consideration the
traditional, generational, and historical principles and
precedents of concurrent jurisdiction.
It is for that reason that I must dissent. I cannot join
the majority opinion, which has remanded this case to the
District Court again—a case which originated in actions taken
in the 1940s. Respectfully, therefore, I would adhere to
Supreme Court teaching and precedent and hold for the first

15
time in this Court that New Jersey has concurrent jurisdiction
in RCRA cases with the federal courts.
In so doing, I would affirm all of the District Court’s
present judgment in all particulars, with the exception of
CERCLA prejudgment interest. See note 3, supra.

16