Agere Systems, Inc. v. Advanced Environmental Technology Corp.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 09-1814
_____________

AGERE SYSTEMS, INC.;
CYTEC INDUSTRIES, INC.; FORD MOTOR COMPANY;
SPS TECHNOLOGIES, LLC; TI GROUP AUTOMOTIVE
SYSTEMS, LLC

v.

ADVANCED ENVIRONMENTAL TECHNOLOGY
CORPORATION; ASHLAND, INC.; CARPENTER
TECHNOLOGY CORPORATION;
DIAZ CHEMICAL CORPORATION; FCG INC;
HANDY & HARMAN TUBE CO, INC.; NRM
INVESTMENT COMPANY

Carpenter Technology Corporation,
Appellant
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-3830)
District Judge: Honorable Legrome D. Davis
_______________
 Argued December 17, 2009

Before: SLOVITER, JORDAN and GREENBERG, Circuit
Judges.

(Filed: April 12, 2010)
_______________

Robert D. Fox [ARGUED]
Neil S. Witkes
Kathleen B. Campbell
Manko, Gold, Katcher & Fox, LLP
401 City Avenue - #500
Bala Cynwyd, PA 19004
Counsel for Appellant

Glenn A. Harris [ARGUED]
Amy M. Trojecki
Ballard Spahr Andrews & Ingersol, LLP
Plaza 1000 - Ste. 500, Main Street
Voorhees, NJ 08043
Counsel for Appellees
_______________

OPINION OF THE COURT
_______________
 Table of Contents

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

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

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

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

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

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

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

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

II. Statement of Jurisdiction and Standard of Review. 14

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

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

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

C. Cytec, Ford, SPS, and TI’s § 113(f)
Claim for Reimbursement of Payments
Made to the EPA for Past Costs. . . . . . . . . . 21

i. Background. . . . . . . . . . . . . . . . . . . . 21
i
 ii. The Statute of Limitations to
Recover Past Costs.. . . . . . . . . . . . . . 21

iii. The Exceptions to the Three-Year
Statute of Limitations Period . . . . . . 25

D. TI and Agere’s § 107(a) Claims to
Recover Costs Paid to Other Plaintiffs
Pursuant to Settlement Agreements. . . . . . . 32

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

ii. Section 107(a) Cost Recovery
Claims.. . . . . . . . . . . . . . . . . . . . . . . . 33

E. The District Court’s Equitable Allocation
for the Plaintiffs’ Costs of Performing
Work Under the OU-1 and OU-2Consent
Decrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

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

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

iii. The District Court’s Equitable
Allocation Under § 113(f). . . . . . . . . 42

iv. The June 23rd Stipulation is Not an
Admission that is Admissible
Against Carpenter. . . . . . . . . . . . . . . 46

ii
 v. Other Evidence Regarding Waste
Volumes. . . . . . . . . . . . . . . . . . . . . . . 49

F. Other Contentions Regarding the District
Court’s Equitable Allocation. . . . . . . . . . . . 51

i. NRM’s Waste. . . . . . . . . . . . . . . . . . . 51

ii. The Culpability and Lack of
Cooperation of Settling Defendants.. 53

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

G. The Pennsylvania Hazardous Sites
Cleanup Act. . . . . . . . . . . . . . . . . . . . . . . . . . 55

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

iii
JORDAN, Circuit Judge.

This appeal arises from nearly three decades of
involvement by the Environmental Protection Agency (“EPA”)
at the Boarhead Farms Superfund Site in Bucks County,
Pennsylvania (the “Boarhead Site” or the “Site”). At issue in
the underlying case was the disposal of millions of gallons of
toxic waste, over a six-year time period, by more than twenty
parties, with millions of dollars of cleanup costs at stake. Along
with the factual issues born of that history, the case implicates
the still developing distinctions between liability under § 107(a)
and § 113(f) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 and the Superfund
Amendments and Reauthorization Act of 1986 (“SARA”),
codified together at 42 U.S.C. §§ 9601-9675 (collectively
“CERCLA”).

On June 18, 2002, five plaintiffs – Agere Systems, Inc.
(“Agere”), Cytec Industries, Inc. (“Cytec”), Ford Motor
Company (“Ford”), SPS Technology, LLC (“SPS”), and TI
Automotive Systems LLC (“TI”) (collectively “plaintiffs” or
“appellees”) – filed the present suit against twenty-three
defendants for cost recovery and contribution under CERCLA
and the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”),
35 PA. STAT. ANN. § 6020.101-104 et seq., to recover costs that
the plaintiffs had paid to the EPA pursuant to certain consent
decrees or that they had provided as a consequence of the
cleanup of hazardous substances at the Boarhead Site. All of
the defendants except one, Carpenter Technology Corporation
(“Carpenter”), settled their liabilities with the plaintiffs or were
otherwise dismissed from the suit after a bench trial. On
1
August 22, 2008, the United States District Court for the
Eastern District of Pennsylvania entered judgment against
Carpenter, finding it liable for 80% of the costs paid by the
plaintiffs as of December 31, 2007, plus prejudgment interest.
The Court also entered a declaratory judgment that Carpenter is
liable for 80% of all cleanup costs that the plaintiffs may incur
after January 1, 2008. The District Court denied Carpenter’s
motion to alter or amend the judgment, and Carpenter filed this
appeal. For the following reasons, we will vacate the District
Court’s judgment and remand for proceedings consistent with
this opinion.

I. Background

Beginning in 1972, DeRewal Chemical Corporation
(“DCC”), a business that removed, transported, and disposed of
chemical waste generated by other companies, began illegally
dumping its customers’ waste at the Boarhead Site. The
dumping continued until 1976, when DCC was enjoined from
bringing any chemicals to the Site.1

1
Between 1973 and 1976, the Bucks County Department of
Health filed over fifteen Waste Discharge Inspection Reports
regarding the Boarhead Site. On October 15, 1976, an
injunction was issued preventing DCC from bringing any
chemicals to the Site. In addition to the Boarhead Site, DCC
disposed of its customers’ waste at two other sites, known to the
parties as the Ontario Street property and the Wissinoming
Industrial Park. The former was a rental property that DCC took
possession of on November 15, 1973, on Ontario Street in

2
 A. EPA Actions at the Boarhead Site

Between 1984 and 1986, the EPA completed an initial
investigation of the contamination at the Boarhead Site. Based
on the results of that investigation, the Site was added to the
EPA’s National Priorities List on March 13, 1989,2 and thus
became a Superfund site.3 Later that year, the EPA performed
a remedial investigation of the Site to identify whether there

Philadelphia, Pennsylvania. On June 13, 1975, the Philadelphia
Water Department sealed the lateral connection between the
Ontario Street property and the city sewer system after the
Department discovered that DCC was improperly disposing of
chemical waste into the city sewer system from the property. On
May 6, 1976, the owner of DCC leased another site, through its
subsidiary, located in the Wissinoming Industrial Park in
Philadelphia. DCC eventually ceased use of that site as a result
of concerns raised by the Philadelphia Water Department, the
Philadelphia Police Department, and the EPA. Those two
disposal sites are not the focus of the present appeal.
2
“The NPL [National Priorities List] is the list of priority
releases for long-term remedial evaluation and response.” 40
C.F.R. § 300.425(b).
3
Superfund sites are those hazardous waste sites listed on the
EPA’s National Priorities List. See U.S. E NVIRONMENTAL
PROTECTION AGENCY, SUPERFUND,
http://www.epa.gov/superfund/index.htm (last visited March 5,
2010).

3
were contaminants that posed a risk to human health and the
environment. That investigation revealed a variety of hazardous
substances in the soil, sediments, and groundwater. In
response, the EPA conducted several small-scale cleanup
actions4 over the next three years to address immediate risks.

A report of the remedial investigation was published in
January 1997, and, by the following July, the EPA issued a
feasibility study that defined objectives for a larger-scale
response with additional remedial actions.5 In January 1998,
the EPA produced its proposed remedial action plan, based on
both the remedial investigation and the feasability study. Then,
on November 18, 1998, it issued its Record of Decision
(“ROD”) respecting the Site.6 The ROD was to be implemented

4
In general, when we use the term “action” throughout this
opinion, we are using it to refer to environmental cleanup work,
and not as a synonym for a lawsuit.
5
See infra note 29 regarding the definitions of remedial
actions and removal actions.
6
“A ROD provides the justification for the remedial action
(treatment) chosen at a Superfund site. It also contains site
history, site description, site characteristics, community
participation, enforcement activities, past and present activities,
contaminated media, the contaminants present, scope and role
of response action and the remedy selected for cleanup.” U.S.
E NVIRONMENT AL P RO T ECT IO N A GENCY , S UPERFUND
INFORMATION SYSTEMS, R ECORD OF D ECISION S YSTEM,

4
in two stages, which, in the argot of the EPA, are referred to as
“operable units.” An operable unit is a “discrete action that
comprises an incremental step toward comprehensively
addressing site problems.” 40 C.F.R. § 307.14. The two
planned for the Boarhead Site were designated as Operable Unit
One (“OU-1”) and Operable Unit Two (“OU-2”).7

i. The OU-1 Consent Decree

On June 2, 2000, the EPA commenced a suit in the
District Court against Cytec, Ford, and SPS, under § 107 of
CERCLA, 42 U.S.C. § 9607,8 by filing a complaint along with

http:/www.epa.gov/superfund/sites/rods/ (last visited Dec. 30,
2009).
7
OU-1 addressed groundwater extraction, metal precipitation,
air stripping, the installation of wells, residential water
treatment, phytoremediation, and the installation of institutional
controls and monitoring for OU-1. OU-2 addressed soil aeration
and treatment of volatile organic compound hotspots, the
excavation and off-site disposal of buried drums, and the
implementation of institutional controls and monitoring for OU-
2.
8
As more fully discussed herein, § 107 authorizes the United
States or a state or “any other person” to seek reimbursement for
removal or remedial costs incurred in responding to releases of
hazardous substances as defined by CERCLA, provided that
those actions are consistent with the national contingency plan.

5
a consent decree that those parties had executed (the “OU-1
Consent Decree”). The District Court approved the OU-1
Consent Decree on September 28, 2000. Pursuant to the
mandates of the decree, as well as an administrative order,9
Cytec, Ford, and SPS were required to do the work
contemplated for OU-1 and to reimburse the EPA for its
administrative and oversight costs in connection with the OU-1
cleanup.

Cytec, Ford, and SPS subsequently entered into a
separate settlement agreement with Agere, TI, and two other
companies, whereby they all agreed to collectively fund and
perform OU-1 work and to otherwise comply with the OU-1
Consent Decree. All seven of those companies, which, for
convenience, we will call the “OU-1 group,” have contributed
to trust accounts from which various contractors have been paid
and will continue to be paid to perform the work required by the
OU-1 Consent Decree.

See 42 U.S.C. § 9607(a). The national contingency plan has
been called “the federal government’s roadmap for responding
to the release of hazardous substances.” Niagara Mohawk Pwr.
Corp. v. Chevron U.S.A., Inc., No. 08-3843-CV, 2010 WL
626064, at *3 (2d Cir. Feb. 24, 2010).
9
Plaintiffs Cytec, Ford and SPS are also signatories to an EPA
Administrative Order for Consent for Remedial Design executed
in February 2000.

6
 ii. The OU-2 Consent Decree

On December 6, 2001, the EPA commenced another suit
in federal court under § 107 against Cytec, Ford, SPS, and TI,
by filing a complaint and a second consent decree that those
parties had executed (the “OU-2 Consent Decree”). The
District Court approved the OU-2 Consent Decree on March 14,
2002. Pursuant to that decree and, again, an administrative
order,10 the Court ordered Cytec, Ford, SPS, and TI to do four
things: (1) do the work contemplated for OU-2; (2) reimburse
the EPA for approximately $7 million in costs related to
removal actions at the Boarhead Site that the EPA had incurred
prior to July 2000;11 (3) reimburse the EPA for a yet-to-be-
determined amount of response costs incurred after July 2000;
and (4) reimburse the EPA for its other future response costs in
connection with OU-2 work.

Ford, Cytec, SPS, and TI subsequently entered into a
separate, private settlement with Agere whereby the parties
agreed to collectively fund and perform OU-2 work and to
otherwise comply with the OU-2 Consent Decree. Again for
convenience, we will refer to those five companies as “the OU-
2 group.” In a fashion similar to the OU-1 group, the five

10
Plaintiffs Cytec, Ford, SPS, and TI are also signatories to an
EPA Administrative Order for Consent for Remedial Design,
executed on October 17, 2001.
11
The significance of July 2000 as a pivotal point in the timing
of EPA’s costs and calculations is not clear from the record.

7
members of the OU-2 group contributed to group trust accounts
from which they paid and will continue to pay various
contractors to perform the work required by the OU-2 Consent
Decree.

On March 30, 2007, in exchange for $400,000, Agere
(which had never itself been sued by the EPA), assigned to
Cytec, Ford, SPS, and TI its claims to recover the approximately
one million dollars it had paid into the OU-1 and OU-2 group
trust accounts.12

iii. Carpenter

DCC collected and disposed of waste at the Boarhead
Site from more than twenty customers between 1972 and 1977.
Carpenter was one of those customers and is a Delaware

12
While none of the parties has raised the issue, we are left to
wonder whether Agere has standing to bring the present suit
against Carpenter after having assigned to others its right to
recover the amounts it paid into the OU-1 and OU-2 group trust
accounts. Whether or not Agere has standing, however, we refer
to the claims which originated with it as being “Agere’s claims,”
since, whether held by Agere or assignees, the claims
themselves remain. On remand, the District Court should
determine who holds these claims and, specifically, to what
extent, if any, Agere retains standing. This opinion and
accompanying judgment order are, obviously, to be understood
as permitting recovery by the parties in interest only.

8
corporation with its principal place of business in Reading,
Pennsylvania.

Carpenter received a notice from the EPA concerning the
Boarhead Site, dated September 28, 2000, asking it to resolve
its potential liability to the EPA for past cleanup costs and
further asking that it agree to perform work required by the
EPA’s 1998 ROD, excluding the work outlined in the OU-1
Consent Decree.13 The letter included a list of ten previous
recipients of similar letters from the EPA concerning the
Boarhead Site. Carpenter did not comply with the requests in
the letter.

B. Present Suit

On June 18, 2002, the five plaintiffs in this suit – Agere,
Cytec, Ford, SPS, and TI – filed their original complaint in the
District Court against twenty-three defendants,14 seeking cost
recovery and contribution under CERCLA and under the HSCA

13
The basis for that exclusion has not been explained on
appeal.
14
The original defendants included the following parties:
Advanced Environmental Technology Corporation; Ashland
Chemical Company; Boarhead Corporation; Carpenter; Crown
Metro, Inc.; Diaz Chemical Corporation; Etched Circuits, Inc.;
fcg, Inc.; Globe Disposal Co., Inc.; Handy & Harman Tube
Company, Inc.; Knoll, Inc.; Merit Metals Products Corporation;
Novartis Corporation; NRM Investment Company; Plymouth
Tube Company; Quickline Design and Manufacturing
Company; Rahns Specialty Metals, Inc; Rohm and Haas
Company; Simon Wrecking Co., Inc.; Techalloy Co., Inc.;
Thomas & Betts Corporation; Unisys Corporation; and the
United States of America Department of Navy.

9
to recoup costs they had paid to the EPA pursuant to one or
more consent decrees or had reimbursed to one another, all
relating to the cleanup of hazardous substances at the Boarhead
Site. By January 21, 2008, the plaintiffs had filed a fifth
amended complaint and seven defendants remained.15 When
the bench trial commenced on June 23, 2008, only two
defendants were left, Handy & Harman Tube Company, Inc.
(“H&H”) and Carpenter.16 After trial, H&H was granted an
unopposed motion to dismiss, leaving Carpenter as the sole
remaining defendant.

i. Stipulations

The parties17 entered into several stipulations before and
during trial, to narrow the factual and legal issues before the
District Court. First, they signed a stipulation of background
facts, many of which have been noted here already.18 Second,

15
At the time of the fifth and final amended complaint, the
defendants included Advanced Environmental Technology
Corporation; Ashland Chemical Company; Carpenter; Diaz
Chemical Corporation; fcg, Inc; Handy & Harman Tube
Company, Inc.; and NRM Investment Company.
16
By the time of the bench trial, all of the other defendants had
either settled or had been granted unopposed motions to dismiss
or unopposed summary judgment motions.
17
From this point forward, references to “the parties” are to
the named plaintiffs in this suit and Carpenter, unless the
context dictates otherwise.
18
The exact date on which the parties entered into this
stipulation is not entirely clear from the record. The signature
page, however, suggests that the date might have been June 18,
2008. (See App. at 14:A6390.)

10
on June 19, 2008, they stipulated to the volume of waste that
DCC collected from fifteen other companies, fourteen of which
were defendants. Carpenter’s waste was not included in that
stipulation. Third, on June 23, 2008, the plaintiffs and
defendant H&H stipulated to the volume of waste that DCC
collected from three of the plaintiffs – Cytec, Ford, and SPS –
and from H&H. Importantly, Carpenter did not join that
stipulation. Finally, on July 1, 2008, the plaintiffs, Carpenter,
and H&H stipulated to the fact that the waste described in the
June 23rd stipulation was hazardous waste as defined by
CERCLA. They also stipulated that DCC had not hauled any
waste from TI or Agere to the Boarhead Site. Thus, while the
effect of the July 1st stipulation is contested, it is undisputed that
Carpenter never directly stipulated to the volume of waste that
Cytec, Ford, SPS, and H&H had contributed to the Boarhead
Site.

ii. Bench Trial

Pursuant to CERCLA, the District Court’s responsibility
included “allocat[ing] response costs among liable parties using
such equitable factors as the court determine[d] [to be]
appropriate.” 42 U.S.C. § 9613(f)(1). The Court decided that
the parties’ various volumes of waste at the Boarhead Site
constituted the most equitable basis upon which to allocate
costs. Hence, the purpose of the bench trial, held in July of
2008, was to figure out as a matter of fact what those volumes
were, including the volumes attributable to Carpenter. The
Court also held that culpability and the degree of cooperation
the parties had demonstrated in dealing with the cleanup should
be considered in allocating response costs.

11
 The District Court found that the plaintiffs had incurred
costs totaling $13,678,378.55 as of December 31, 2007.19 The
Court then concluded that those costs had been incurred of
necessity in complying with the requirements of the ROD. The
Court also held that cleanup at the Boarhead Site must continue
until the organic and inorganic contaminants in the groundwater
reach an acceptable level as set forth by the EPA in the ROD.
Thus, the Court noted, the plaintiffs will continue to incur costs
for the foreseeable future.

To prove the waste volumes at the Site, the plaintiffs
presented testimony from truck drivers who had been employed
by DCC. Based on that testimony and the above-described
stipulations, the Court calculated the volume of waste that DCC
collected from each of the parties, and then calculated what
percentage of that waste was disposed of at the Boarhead Site.
Regarding Carpenter’s waste volumes, the Court also had the
benefit of Carpenter’s business records, which confirmed parts
of the testimony of the DCC drivers. The Court found that
Carpenter’s waste constituted 62.6% of the hazardous waste
disposed of at the Boarhead Site.20

19
The costs broke down as follows:
• Agere: $902,152.49
• Cytec: $3,368,551.07
• Ford: $3,354,122.22
• SPS: $3,354,122.22
• TI: $2,699,430.55

20
The 62.6% was calculated as follows: the Court found that
the volume of waste disposed of at the Boarhead Site from all of
the plaintiffs, and the settled and dismissed parties, as well as
Carpenter, was 1,594,668 gallons. The Court found that the
total volume of waste disposed of at the Boarhead Site by

12
 The plaintiffs also presented evidence that in 1969
Carpenter hired two waste collection companies, Revere
Chemical Company (“Revere”) and Echo, Inc. (“Echo”), to haul
its waste acids. Carpenter knew that Manfred DeRewal, who
later founded DCC, was the president of Revere and Echo. The
evidence showed that in 1970 Carpenter learned that Revere
and Echo were shut down for unlawful polluting practices.21
Nevertheless, in June 1973, Carpenter hired DCC, which
Carpenter knew was owned by DeRewal, simply because
DCC’s bid was significantly below the competing bids.
Because “Carpenter relinquished its potent waste acids to a
known polluter,” and because Carpenter did not cooperate with
the EPA, the Court allocated to Carpenter an additional 17.4%
of the total clean-up cost – 8.7% for repeatedly working with a
known polluter and 8.7% for not cooperating with the EPA –
holding that “culpability is an appropriate equitable factor in
resolving contribution claims.” (App. at 1:A72.)22 In other
words, the Court adjusted Carpenter’s share of liability above
what it had determined to be Carpenter’s volumetric share of
waste, based on Carpenter’s significant culpability in creating
a Superfund site and its lack of cooperation in cleaning it up.

Carpenter was 998,284 gallons. Thus, the Court determined that
Carpenter’s percentage share of the total volume was 62.6 %.
21
The record is not clear as to what regulatory authority or
authorities decided that Revere and Echo could no longer
operate.
22
We refer to the appendix on appeal by the volume number
followed by a colon and the page number on which the cited
material appears, followed by specific paragraphs, if applicable.

13
 On August 22, 2008, the District Court entered judgment
against Carpenter, finding it liable for 80% (62.6% plus 8.7%
plus 8.7%) of the $13,678,378.55 paid by the plaintiffs as of
December 31, 2007, plus prejudgment interest. That resulted in
a judgment of $10,942,702.84 against Carpenter. The
remaining 20% of liability was allocated to the plaintiffs. The
Court also entered a declaratory judgment that Carpenter is
liable for 80% of all future costs, as measured from January 1,
2008, for response actions pursuant to the OU-1 and the OU-2
Consent Decrees. Finally, the Court found that Carpenter’s
liability under the HSCA parallels its liability under CERCLA.

Carpenter filed a motion to alter or amend the judgment,
which the District Court denied on February 20, 2009.
Carpenter then filed a timely notice of appeal to our Court.

II. Statement of Jurisdiction and Standard of Review

The District Court had jurisdiction over the plaintiffs’
CERCLA claims pursuant to 42 U.S.C. § 9613(b) and 28
U.S.C. § 1331. It had supplemental jurisdiction over the
HSCA claims under 28 U.S.C. § 1367. We have jurisdiction
pursuant to 28 U.S.C. § 1291.

“We may set aside [a] district court’s findings of fact
only if they are clearly erroneous.” FMC Corp. v. U.S. Dep’t.
of Commerce, 29 F.3d 833, 838 (3d Cir. 1994); cf. In re
Fruehauf Trailer Corp., 444 F.3d 203, 210 (3d Cir. 2006)
(explaining that “[f]actual findings may only be overturned if
they are completely devoid of a credible evidentiary basis or
bear no rational relationship to the supporting data” (citation
omitted) (internal quotation omitted)).

However, we review a district court’s allocation of
CERCLA response costs for abuse of discretion. Beazer E.,
Inc. v. Mead Corp., 412 F.3d 429, 446 n.18 (3d Cir. 2005).
14
“An abuse of discretion occurs when ‘the district court’s
decision rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.’”
Id. (quoting Int’l Union v. Mack Trucks, Inc., 820 F.2d 91, 95
(3d Cir. 1987)).

Finally, we exercise plenary review over a district court’s
interpretation of CERCLA, including statute of limitations
issues. United States v. Se. Pa. Transp. Auth., 235 F.3d 817,
822 (3d Cir. 2000); see also New Castle County v. Halliburton
NUS Corp., 111 F.3d 1116, 1120 (3d Cir. 1997) (explaining
that, in approaching a statute of limitations issue, we must
“exercise plenary review over the district court’s interpretation
of the relevant CERCLA ... provisions”).

III. Discussion

A. Statutory Background Law

All of Carpenter’s contentions on appeal involve the
plaintiffs’ claims under CERCLA § 107(a) for cost recovery
and § 113(f) for contribution. Thus, we present a brief
overview of those two statutory remedies before addressing
Carpenter’s specific contentions.

CERCLA provides two mechanisms that allow
potentially responsible parties (“PRPs”) to recover costs they
have expended to decontaminate a polluted site: § 107(a) cost
recovery claims and § 113(f) contribution claims. The first
option, § 107(a), provides that PRPs are liable for “any ...
necessary costs of response incurred by any other person”
consistent with CERCLA.23 42 U.S.C. § 9607(a)(4)(B).

23
Section 107(a) actually says “consistent with the national
contingency plan,” see 42 U.S.C. § 9607(a), which, as noted

15
Section 107(a) thus allows private parties to bring cost recovery
suits against other PRPs,24 and courts have developed several
principles for application in such suits. 4 THE LAW OF
HAZARDOUS WASTE § 14.01[2][c] (Susan M. Cooke, ed., 2009).
Significantly, § 107(a) allows for complete cost recovery under
a joint and several liability scheme. See N.J. Tpk. Auth. v. PPG
Indus., Inc., 197 F.3d 96, 104 (3d Cir. 1999). Initially, “[w]hen
CERCLA was first enacted, [§ 107 cost recovery] was the only
remedy available, and [c]ourts struggled with whether PRPs
(themselves liable for some of the cleanup) could invoke § 107
for contribution from other PRPs for their proportionate share
of the costs as opposed to full cost recovery.” Niagara Mohawk
Pwr. Corp., 2010 WL 626064, at *3.

Congress ultimately provided the language necessary to
authorize contribution under CERCLA when it added § 113 to
the statutory scheme with the passage of SARA. Id. at *3.
Section 113(f) specifically is a second means of recouping
cleanup costs, and it, in turn, provides two avenues of relief.
Under § 113(f)(1), a PRP can seek contribution from another
PRP during or following a CERCLA suit brought against the
first PRP. 42 U.S.C. § 9613(f)(1); see also United States v. Atl.
Research Corp., 551 U.S. 128, 139 (2007) (explaining that
“[s]ection 113(f)(1) authorizes a contribution action to PRPs

above (supra note 8), is the federal government’s plan for
responding to releases of hazardous substances. Niagara
Mohawk Pwr. Corp., 2010 WL 626064, at *3.
24
Section 107 also provides the EPA with a mechanism to
recover costs from PRPs, stating that PRPs are liable for “all
costs of removal or remedial action incurred by the United
States Government or a State or an Indian tribe not inconsistent
with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(A).
This aspect of § 107 is not at issue in the present matter.

16
with common liability stemming from an action instituted under
[CERCLA]”). Likewise, under §113(f)(3)(B), PRPs who
resolve their liability to the United States or an individual State
through an administratively or judicially approved settlement
can seek contribution from another PRP. 42 U.S.C.
§ 9613(f)(3)(B); see also Atl. Research Corp., 551 U.S. at 139
n.5 (“Similarly, § 113(f)(3)(B) permits a PRP to seek
contribution after it ‘has resolved its liability to the United
States or a State ... in an administrative or judicially approved
settlement ... .’” (quoting 42 U.S.C. § 9613(f)(3)(B))).

In Atlantic Research, the Supreme Court endeavored to
clarify the relationship between § 107(a) cost recovery claims
and § 113(f) contribution claims, noting that those remedies are
distinct. See Atl. Research Corp., 551 U.S. at 138 (“[Sections]
107(a) and 113(f) provide two ‘clearly distinct’ remedies.
‘CERCLA provide[s] for a right to cost recovery in certain
circumstances, § 107(a), and separate rights to contribution in
other circumstances, §§ 113(f)(1), 113(f)(3)(B).’” (quoting
Cooper Indus., Inc. v. Aviall Serv., Inc., 543 U.S. 157, 163 n.3
(2004))). With regard to § 113(f) contribution claims, the Court
held that a private party may not bring a contribution claim
unless it has been sued under § 106 or § 107 of CERCLA.25
See Cooper Indus., Inc. 543 U.S. at 168 (explaining that
§ 113(f) “authorizes contribution claims only ‘during or
following’ a civil action under § 106 or § 107(a)”); see also Atl.
Research Corp., 551 U.S. at 139 (“Section 113(f)(1) authorizes

25
Section 106 authorizes the United States to bring a suit
seeking injunctive relief to abate “imminent and substantial
endangerment” resulting from the release of a hazardous
substance. The section also authorizes the EPA to issue an
administrative order to abate such a condition. See 42 U.S.C.
§ 9606; see also 4 T HE L AW OF H AZARDOUS W ASTE
§ 14.02[1][c] (Susan M. Cooke, ed., 2009).

17
a contribution action to PRPs with common liability stemming
from an action instituted under [CERCLA].”). With regard to
§ 107(a) cost recovery claims, the Court held that a private party
who voluntarily undertakes a cleanup action – and is therefore
unable to sue under § 113(f) because it “remediated the
hazardous material [] without the judicial spur of § 106 or
§ 107” – can seek recovery of response costs under
§ 107(a)(4)(B). Niagara Mohawk Pwr. Corp., 2010 WL
626064, at *3 (describing Atl. Research Corp., 551 U.S. at
139). Thus, a private party may recover under § 107(a) without
any establishment of liability on its part to a third party,
including the government. Atl. Research Corp., 551 U.S. at
139.

In short, the Court summarized the distinction as follows:

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

Id. (citations omitted) (internal quotations omitted). Despite
this clarification, navigating the interplay between § 107(a) and
§ 113(f) remains a deeply difficult task. See New York v.
Solvent Chem. Co., Inc., No. 83-CV-1401-JTC, 2010 WL
376328, at *67 (W.D.N.Y. Jan. 26, 2010) (“[R]ecent rulings
have done little to provide the lower courts with useful
guidance in determining which subsection of CERCLA
provides a cause of action for parties seeking reimbursement of
response costs in differing situations.”); see also id. at *64
(“Perhaps most perplexing is the interplay between the two cost
18
recovery provisions which this court must apply in resolving the
difficult factual and legal issues.”). The sometimes blurry
relationship between § 107(a) cost recovery claims and § 113(f)
contribution claims is a theme to which we will return
repeatedly in this opinion.

B. Issues on Appeal

The issues raised by Carpenter on appeal can be grouped
into six overarching contentions.

The first is that plaintiffs Cytec, Ford, SPS, and TI
cannot bring a § 113(f) contribution claim for the approximately
$7 million they paid to the EPA under the OU-2 Consent
Decree to reimburse the EPA for its response costs because the
EPA’s suit to enforce the OU-2 Consent Decree was time-
barred. According to Carpenter, it does not share a common
liability with those plaintiffs because none of the plaintiffs
could have been sued by the EPA at the time they chose to settle
with the agency.

Second, Carpenter argues that Agere and TI cannot bring
a § 107(a) cost recovery claim for sums they paid pursuant to
private settlements with other plaintiffs, as opposed to sums
paid to the EPA directly, because § 107(a) does not allow for
the recovery of such payments.

Third, Carpenter argues that those plaintiffs who signed
the OU-1 and OU-2 Consent Decrees – Cytec, Ford, and SPS –
as well as TI, who signed the OU-2 Consent Decree only, do
not have § 107(a) cost recovery claims for costs expended
pursuant to the OU-1 and OU-2 Consent Decrees because, once
a party has been sued or has settled under CERCLA, that party
may pursue only a § 113(f) contribution claim. Thus, Carpenter
contends, those plaintiffs have nothing but § 113(f) available as

19
a vehicle for trying to recover the amounts they expended to
comply with the OU-1 and OU-2 Consent Decrees.

Fourth, recognizing that the District Court proceeded
under § 113(f) with regard to those claims, and not under
§ 107(a), Carpenter argues that Cytec, Ford, SPS, and TI failed
to present evidence of the total volume of waste disposed of at
the Boarhead Site and, therefore, the District Court’s allocation
of liability among the parties under § 113(f) cannot stand.
Specifically, Carpenter argues that, other than the stipulation
that it refused to sign, the plaintiffs have failed to introduce any
evidence of the volume of waste for which Cytec, Ford, SPS,
and H&H are responsible. Without evidence as to those parties,
says Carpenter, it is impossible to know the total volume of
waste disposed of at the Boarhead Site.

Fifth, Carpenter argues that the District Court erred in
three ways in its cost allocation. First, Carpenter contends that
the Court miscalculated the volumetric share of waste that
former defendant NRM sent to the Boarhead Site. Next,
Carpenter says that the Court did not consider other defendants’
culpability or lack of cooperation with the EPA to the same
extent that it considered Carpenter’s lack of cooperation and
culpability. As its last cost allocation point, Carpenter contends
that the District Court wrongly considered the settling
defendants’ volumetric share of waste, rather than the dollar
amounts that the plaintiffs obtained from those settling
defendants, when the Court performed its equitable allocation.

Sixth and finally, Carpenter argues that, since
§ 702(a)(3) of the HSCA mirrors § 107(a)(4)(B) of CERCLA,
the plaintiffs do not have a viable claim under that section of the
HSCA, for the same reasons that Carpenter believes the
plaintiffs do not have a claim under § 107 of CERCLA.

20
 C. Cytec, Ford, SPS, and TI’s § 113(f) Claim for
Reimbursement of Payments Made to the EPA for
Past Costs

i. Background

The OU-2 Consent Decree obligated the plaintiffs who
signed it – Cytec, Ford, SPS, and TI – to reimburse the EPA for
a percentage of past response costs that the EPA had incurred
in various removal efforts at the Boarhead Site, including work
related to the OU-1 Consent Decree. Specifically, pursuant to
the OU-2 Consent Decree, Cytec, Ford, SPS, and TI agreed,
among other things, to reimburse the EPA for approximately $7
million in response costs incurred and accounted for prior to
July 2000. In their fifth amended complaint, those four
plaintiffs asserted a contribution claim under § 113(f), seeking
reimbursement from Carpenter for that $7 million.

On appeal, Carpenter argues that the plaintiffs cannot
recover the $7 million because there was no “common liability”
among Carpenter and the plaintiffs at the time the plaintiffs
settled with the EPA, as required by Atlantic Research. More
particularly, Carpenter contends that no common liability exists
because, when the EPA brought suit against the plaintiffs on
December 6, 2001 to enforce the OU-2 Consent Decree, that
suit, and therefore any hypothetical suit against Carpenter, was
time-barred. The plaintiffs, of course, say that Carpenter is
mistaken about the statute of limitations.

ii. The Statute of Limitations to Recover Past
Costs

Contribution claims under § 113(f) require a “common
liability” among PRPs at the time the underlying claim is
resolved. See Atl. Research Corp., 551 U.S. at 139 (“[A]
PRP’s right to contribution under § 113(f)(1) is contingent upon
21
... common liability among liable parties.”); In re Reading Co.,
115 F.3d 1111, 1224 (3d Cir. 1997) (“Contribution, by its own
definition, requires a common liability for the same injury.”),
abrogation on other grounds recognized by E.I. DuPont De
Nemours & Co. v. United States, 460 F.3d 515, 518 (3d Cir.
2006). Thus, Carpenter correctly asserts that, in order for it to
be liable under § 113(f), it must have had a “common liability”
with the plaintiffs at the time the EPA filed suit to enforce the
OU-2 Consent Decree. In other words, the EPA claim must
have been viable against both the plaintiffs and Carpenter at the
time the EPA sought to enforce the OU-2 Consent Decree;
otherwise, there is no “‘common liability’ to serve as the basis
of a contribution action.” (Appellant’s Op. Br. at 14.) Hence,
this contention boils down to a question about the applicable
statute of limitations.

The timeliness of an EPA suit to recover costs associated
with a removal action is governed by § 113(g)(2), which
requires that any such suit be brought “within 3 years after
completion of the removal action.” 42 U.S.C. § 9613(g)(2)(A).
At the same time, the statute provides for three exceptions that
extend the limitations period. Before addressing those,
however, we must describe more fully Carpenter’s statute of
limitations argument and an essential flaw in the District
Court’s decision.

Carpenter argues that the EPA’s claim is time-barred
because the EPA completed its removal action on November
18, 1998, but did not initiate its lawsuit against the plaintiffs
until December 6, 2001, more than three years after the
completion of the removal action. As Carpenter sees it, since
none of the exceptions to the three-year statute of limitations
apply, the EPA’s lawsuit against the plaintiffs was untimely,
and, if Carpenter had been named as a defendant, the EPA’s
claims against it would have been untimely too. Carpenter has
rightly identified the completion of the removal action as the
22
point from which the statute of limitations begins to run. The
District Court held that the EPA “conducted a single ‘removal
action’ which ended, at the earliest, on November 18, 1998,
when EPA issued the ROD.” (App. at 1:A64.) In an
accompanying footnote in its opinion, however, the Court said,
“[i]t is more likely that EPA’s removal action was ongoing as
of September 28, 2000.” (App. at 1:A64 n.38.) Despite its “at
the earliest” caveat when citing the November 18, 1998 date,
and also despite its comment on the “more likely” course of
events, the District Court went on to say that, in order to give
Carpenter every reasonable consideration, it would “select[]”
the November 18, 1998 date as the date that the EPA completed
the removal action. (Id.)

Given the magnitude and complexity of the record, as
well as the decades of EPA involvement at the Boarhead Site,
we can appreciate the difficulty in determining the time frame
within which the EPA completed its removal action.
Nevertheless, by stating that it was “more likely” that removal
work was ongoing on September 28, 2000, but then
“select[ing]” the earlier date of November 18, 1998 as the date
that work was completed, the Court has left a legally significant
ambiguity in the record. There is no clear finding of fact as to
a date or even a range of dates within which the EPA’s removal
work was completed.

Of course, a court may, for analytical purposes, assume
facts in favor of a party to demonstrate that, even under that
party’s most advantageous view of the record, legal relief is
unavailable. That appears to have been the District Court’s
intention here. Nevertheless, the opinion is not entirely clear
and there is a strong implication that the completion date of the
EPA’s removal work was later than the selected date, which, if
true, is of real importance in this case. If the removal work was
ongoing as of September 28, 2000, as indicated by the Court,
then the applicability of complicated exceptions to the three-
23
year statute of limitations becomes irrelevant, and the EPA’s
suit was timely regardless of those exceptions.

Because the District Court has not made a factual finding
sufficient to determine whether or not the EPA’s December 6,
2001 enforcement suit for the OU-2 Consent Decree was timely
under the three-year statute of limitations, we will vacate the
judgment and remand for the Court to make an unequivocal
finding as to the date or time period within which the EPA
completed its removal action, if such a finding is possible.26 To
the extent the District Court needs to reopen the record in order
to resolve this ambiguity, it may do so, since Carpenter’s statute
of limitations defense makes the date on which the EPA
completed its removal action a potentially claim-dispositive
fact.27

26
We do not discount the possibility that the District Court did
not make a definitive finding because the record would not
support one. Also, if the District Court’s finding of fact turns
out to be that the removal action ended sometime after
September 28, 2000, that will be sufficient, since, with that
finding, Cytec, Ford, SPS, and TI’s claims to recover for their
approximately $7 million reimbursement to the EPA for past
response costs would be timely, as is more fully discussed
herein. See infra Section III.C.iii.
27
We also ask the District Court to make a definitive finding
as to the amount that the OU-2 plaintiffs paid to reimburse the
EPA for past costs. While the stipulated facts cite the amount
as $7 million in one place, in another place it appears to be
approximately $7.4 million, and Carpenter cites the amount as
$ 7.4 million. (Compare App. at 14:A6379 ¶ 40, and App. at
14:A6383 ¶ 59, with Appellant’s Op. Br. at 13.)

24
 iii. The Exceptions to the Three-Year Statute
of Limitations Period

As the District Court rightly recognized, the EPA’s suit
to recover past costs could still be timely even if the earlier
November 18, 1998 date is correct, assuming that an exception
to the statute of limitations applies. Though there are three
exceptions generally available, the only one possibly of
consequence is found in 42 U.S.C. § 9613(g)(2)(B), which is
the one the District Court applied.28

28
The two other exceptions to the three-year statute of
limitations are of no practical effect. The first exception, the
“subsequent action” exception, is simply not applicable. That
exception pertains to situations in which the EPA has brought
more than one legal action (and here the term “action” is being
used as a synonym for “lawsuit”) against the plaintiffs to recover
costs. The statute provides that if the EPA’s suit is a
“subsequent action” to recover further response costs (i.e., there
has already been an “initial action” to recover response costs),
the suit must be commenced no later than 3 years after the date
of completion of the initial action. See 42 U.S.C. § 9613(g)(2).
A “subsequent” suit for further response costs can “be
maintained at any time during the response action, but [it] must
be commenced no later than 3 years after the date of completion
of the response action.” Id. § 9613(g)(2)(B). The plaintiffs
argue that the EPA’s 2001 suit was a timely subsequent action,
because the three-year limitations period applies only to the
EPA’s initial action, which they identify as the EPA’s June 2,
2000 suit against Cytec, Ford, and SPS to enforce the OU-1
Consent Decree. Appellees contend that “[i]t does not matter
that Carpenter was not a defendant in the 2000 EPA action”
because the statute does not indicate that the defendant must
have been a party to the initial action. (Appellees’ Ans. Br. at
23.) That argument fails. The EPA sued Cytec, Ford, and SPS

25
in 2000, but not Carpenter. Thus, the only parties against which
the EPA brought a subsequent action in 2001 are Cytec, Ford,
and SPS. As a result, the “subsequent action” exception is
inapplicable here. See United States v. Navistar Int’l Transp.,
152 F.3d 702, 710 (7th Cir. 1998) (“We believe that, from the
language and structure of the statute, a ‘subsequent action ... for
further response costs’ must be one brought against the same
party or parties against which an ‘initial action’ to recover such
costs has been maintained.” (quoting 42 U.S.C. § 9613(g)(2)).).
The second exception is an alternative limitations period
that may well be applicable here. That exception states that
when the EPA grants a consistency waiver under § 104(c)(1)(C)
to extend the removal action, the limitations period is six years,
rather than three years, from the date of a determination to grant
that waiver. See 42 U.S.C. § 9613(g)(2)(A). In other words, the
EPA must bring its suit within six years of the grant of a
consistency waiver, regardless of when its removal action is
completed. The parties have not defined the term “consistency
waiver,” but publicly available information from the EPA
indicates that a consistency waiver “is an exemption to the
statutory limits of two million dollars in expenditures ... for
removal actions.” Memorandum from Lon Biasco, On-Scene
Coordinator with the U.S. Envtl. Prot. Agency, to Myron O.
Knudson, Region 6 Superfund division Dir. of the U.S. Envtl.
P r o t . A g e n c y , 9 ,
http://www.epa.gov/region6/6sf/louisiana/ag_street/important
_documents/action_memo_agstreet.pdf. The EPA performed a
1992 removal action at the Site pursuant to a consistency waiver
it had granted on September 4, 1992. Under § 113(g)(2)(A),
then, the EPA had to file its suit to recover those costs no later
than September 4, 1998, six years from the grant of the waiver.
Carpenter argues that since the EPA did not file the OU-2 suit
until after 1998, the suit is barred under the “consistency
waiver” exception. However, Carpenter concedes that the

26
 Section 9613(g)(2)(B) states that removal costs may be
recovered as part of a remedial action suit, which effectively
extends the statute of limitations to six years from the initiation
of physical on-site construction of the remedial action.
However, to recover such costs, the remedial action suit must be
initiated within three years after the completion of the removal
action.2 9 Id. In other words, the limitations

EPA’s 1992 consistency waiver only applied to one specific
remedial action, which cost $4.3 million. All of the EPA’s other
costs are not subject to the “consistency waiver” exception.
Plaintiffs and Carpenter acknowledge that the EPA incurred
costs on the order of $14 million and only sought reimbursement
for $7.4 million. Thus, even accepting Carpenter’s argument
that $4.3 million of the EPA’s past costs are time-barred, the
EPA still has claims for approximately $10 million which are
not time-barred under the consistency waiver exception.
Therefore, the EPA’s $7.4 million claim remains recoverable.
29
Removal actions are defined as

the cleanup or removal of released hazardous
substances from the environment, such actions as
may be necessary taken in the event of the threat
of release of hazardous substances into the
environment, such actions as may be necessary to
monitor, assess, and evaluate the release or threat
of release of hazardous substances, the disposal of
removed material, or the taking of such other
actions as may be necessary to prevent, minimize,
or mitigate damage to the public health or welfare
or to the environment, which may otherwise result
from a release or threat of release. The term
includes, in addition, without being limited to,

27
 security fencing or other measures to limit access,
provision of alternative water supplies, temporary
evacuation and housing of threatened individuals
not otherwise provided for, action taken under
section 9604(b) of this title, and any emergency
assistance which may be provided under the
Disaster Relief and Emergency Assistance Act
[42 U.S.C. § 5121 et seq.].

42 U.S.C. § 9601(23).

Remedial actions are defined as

those actions consistent with permanent remedy
taken instead of or in addition to removal actions
in the event of a release or threatened release of a
hazardous substance into the environment, to
prevent or minimize the release of hazardous
substances so that they do not migrate to cause
substantial danger to present or future public
health or welfare or the environment. The term
includes, but is not limited to, such actions at the
location of the release as storage, confinement,
perimeter protection using dikes, trenches, or
ditches, clay cover, neutralization, cleanup of
released hazardous substances and associated
contaminated materials, recycling or reuse,
diversion, destruction, segregation of reactive
wastes, dredging or excavations, repair or
replacement of leaking containers, collection of
leachate and runoff, onsite treatment or
incineration, provision of alternative water
supplies, and any monitoring reasonably required
to assure that such actions protect the public

28
period may be extended if the EPA attempts to recover removal
costs during a remedial action suit, rather than in a removal
action suit. See id. But, if the EPA seeks to do so, it must bring
that remedial action suit “within 6 years after [the] initiation of
physical on-site construction of the remedial action,” and the
remedial action must be initiated within three years after the
completion of the removal action. Id. Given the language of
§ 9613(g)(2)(B), we read the requirement that remedial action
(i.e., remedial work at the site) be “initiated” within three years
of completion of the removal action (i.e., removal work at the
site) to mean that the physical on-site construction of the
remedial action has to be initiated within that three-year time
period. As Carpenter notes, any other interpretation of that
language would create two different meanings of the word
“initiate” in § 9613(g)(2)(B), and, more importantly would
eviscerate the three-year statute of limitations period for

health and welfare and the environment. The term
includes the costs of permanent relocation of
residents and businesses and community facilities
where the President determines that, alone or in
combination with other measures, such relocation
is more cost-effective than and environmentally
preferable to the transportation, storage,
treatment, destruction, or secure disposition
offsite of hazardous substances, or may otherwise
be necessary to protect the public health or
welfare; the term includes offsite transport and
offsite storage, treatment, destruction, or secure
disposition of hazardous substances and
associated contaminated materials.

Id. § 9601(24).

29
removal actions contained in §9613(g)(2)(A).30 Thus, whether

30
The text of the relevant provision is as follows:

An initial action for recovery of costs ... must be
commenced ... (B) for a remedial action, within 6
years after initiation of physical on-site
construction of the remedial action, except that, if
the remedial action is initiated within 3 years after
the completion of the removal action, costs
incurred in the removal action may be recovered
in the cost recovery action brought under this
subparagraph.

42 U.S.C. § 9613(g)(2). When the drafters first used a form of
the word “initiate” in this section, it is specified as being the
“initiation of physical on-site construction of the remedial
action.” Thus, when the word “initiate” is used a second time,
in the very next sentence, we read the statute to again mean the
“initiation of physical on-site construction,” rather than the
initiation of some other environmental cleanup endeavor. As
Carpenter persuasively argues, to read the statute otherwise
undermines the statute of limitations:

If EPA could use the six year limitation period in
§ 113(g)(2)(B) simply by incurring any type of
response costs ... after issuance of the ROD, but
before initiation of on-site construction of the
remedial action, the three year limitations period
for removal actions would never apply at any site
at which remedial action occurs.

(Appellant’s Reply Br. at 12.) This is because, by using the
definition of “initiate” that the plaintiffs suggest (i.e., incurring
any type of further response costs), the EPA could simply take

30
the § 9613(g)(2)(B) exception applies in the present case is
again dependent upon the time that the EPA completed its
removal work.

Carpenter argues that the EPA completed its removal
action on November 18, 1998, when it issued the ROD, because
case law supports the idea that, for statute of limitations
purposes, a removal action is complete upon the issuance of a
ROD. (See Appellant’s Reply Br. at 9 (citing, inter alia, Kelley
v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 834-44 (6th
Cir. 1995)).) Plaintiffs, however, note that in the OU-1 Consent
Decree, filed September 28, 2000, the EPA stated that it
“conducted [a] removal action at the Site beginning in the year
1992 and continuing to the present ... .” (App. at 5:A2132,
¶ G.) Thus, say the plaintiffs, the EPA has essentially affirmed
that its removal action was ongoing as of September 28, 2000.

Again, as with the effect of the three-year statute of
limitations, we cannot tell whether this exception applies
because the District Court has not made a definitive factual
finding as to when the EPA completed its removal action.
Thus, we cannot determine whether the EPA initiated on-site
physical construction of the remedial action within three years
of the completion of its removal action.

In sum, the EPA’s lawsuit to recover past costs was
timely if one of two circumstances is found to exist: either the
date or time period that the EPA completed its removal action
fell within three years of the EPA’s OU-2 enforcement suit, or
the EPA initiated on-site physical construction of the remedial
action within three years of the completion of its removal
action. If the first of these requirements is met, the suit was

any one of a variety of later steps that it could claim constitutes
the commencement of a remedial action.

31
timely under the three-year statute of limitations. If the second
is met, the six-year statute of limitations exception contained in
§ 113(g)(2)(b) would apply, allowing the filing to be timely.

D. TI and Agere’s § 107(a) Claims to Recover Costs
Paid to Other Plaintiffs Pursuant to Settlement
Agreements

i. Background

Agere was not a party to either the OU-1 or the OU-2
Consent Decrees. However, Agere entered into a private
settlement agreement with the plaintiffs who signed the OU-1
Consent Decree and a second private settlement agreement with
the plaintiffs who signed the OU-2 Consent Decree. Pursuant
to those agreements, Agere contributed to group trust accounts
that funded the work associated with the consent decrees.
Agere’s total costs from contributing to both trust accounts
were found to be $902,152.49.

Although TI was a party to the OU-2 Consent Decree, it
was not a party to the OU-1 Consent Decree. However, TI
entered into a private settlement agreement with the plaintiffs
who did sign the OU-1 Consent Decree, and, pursuant to that
agreement, TI contributed to a group trust account that funded
the work required by the OU-1 Consent Decree. TI’s total costs
from contributing to the OU-1 group trust account were found
to be $308,961.37.

In their fifth amended complaint, Agere and TI asserted
§ 107(a) cost recovery claims for the amounts that they had paid
pursuant to their settlement agreements with the other plaintiffs,
and the District Court held that Agere and TI did indeed have
such claims. On appeal, Carpenter argues that the District

32
Court erred in that conclusion and that Agere and TI should be
barred from recovering those sums.31

ii. Section 107(a) Cost Recovery Claims

The cost recovery available under § 107(a) is founded on
the statutory language providing that PRPs shall be liable for
“any other necessary costs of response incurred by any other
person” consistent with CERCLA. 42 U.S.C. § 9607(a)(4)(B).
The Supreme Court has held that Ҥ 107(a) permits a PRP to
recover only the costs it has ‘incurred’ in cleaning up a site.”
Atl. Research Corp., 551 U.S. at 139 (quoting 42 U.S.C.
§ 9607(a)(4)(B)). The Court has further explained that,
“[w]hen a party pays to satisfy a settlement agreement or a court
judgment, it does not incur its own costs of response. Rather,
it reimburses other parties for costs that those parties incurred.”
Id.

Agere and TI are seeking to recoup costs that each paid
pursuant to private settlement agreements with other plaintiffs
– TI with regard to the OU-1 Consent Decree and Agere with
regard to both OU-1 and OU-2 Consent Decrees. Their
payments under the private settlement agreements were
combined into group trust accounts with money paid by the
signatories to the consent decrees, and those group trust

31
Plaintiffs argue that Carpenter waived this argument by
failing to raise it before the District Court. Even if Carpenter
had not raised the issue below, the District Court ruled on it
when it held that Agere and TI had § 107(a) claims for costs
they had contributed via the private settlement agreements.
More to the point, though, Carpenter adequately preserved the
issue when it argued, in its reply to the plaintiffs’ proposed
findings of fact and conclusions of law, that Agere and TI could
not bring those § 107(a) claims.

33
accounts were then used to fund the OU-1 and OU-2 work.
Carpenter argues that, in making those payments into group
trust accounts, Agere and TI did not “incur” their own costs of
response. Instead, says Carpenter, Agere and TI paid into the
group trust accounts only to “satisfy a settlement agreement,”
and, pursuant to Atlantic Research, those payments cannot be
considered “costs incurred,” as required under § 107(a).

We disagree and will affirm the District Court in
allowing Agere and TI to pursue § 107(a) claims for the
amounts they have contributed to trust accounts funding the
OU-1 and OU-2 work. We do not think the Supreme Court
intended to deprive the word “incurred” of its ordinary
meaning. Agere and TI put their money in the pot right along
with the money from the signers of the consent decrees. The
costs they paid for were incurred at the same time as the costs
incurred by the signers of the consent decrees and for the same
work. Those costs were incurred in the ordinary sense that a
bill one obligates onself to pay comes due as a job gets done.
While the Supreme Court in Atlantic Research did hold that
§ 107(a) permits a PRP to recover only costs it has “incurred,”
and did suggest that costs paid pursuant to a settlement
agreement are not such costs, those statements were not made
in the context of payments made for on-going work.

Moreover, the Court appears to have made its statement
about the unavailability of § 107(a) relief on the assumption that
“a PRP that pays money to satisfy a settlement agreement ...
may pursue a § 113(f) contribution.” Id. In other words, while
the Court indicated that parties seeking reimbursement for
settlement payments do not have a § 107(a) claim, a basic
premise of that holding was that those parties do have a § 113(f)
contribution claim for their settlement amounts. We do not
believe that the Court intended its holding to reach a
circumstance like this, where Agere and TI do not have § 113(f)
contribution claims for the settlement sums because those
34
parties were never themselves sued for those amounts by the
EPA or by other PRPs. See Cooper Indus., Inc., 543 U.S. at
168 (explaining that § 113(f) authorizes contribution claims
only for PRPs who have been subject to a civil action under
CERCLA).

If we were to hold that Agere and TI cannot pursue
§ 107(a) claims for their settlement payments, they would be
completely barred from recovering those amounts under
CERCLA. To accept that outcome, one must imagine that
Congress intended to penalize cooperative cleanup efforts by
excluding from CERCLA’s broad recovery provisions all PRPs
who, like Agere and TI, agree to come forward and assist in a
cleanup even though they have not been subjected to a cost
recovery suit. Such an intent is extremely unlikely, since the
goal of CERCLA is “to encourage private parties to assume the
financial responsibility of cleanup by allowing them to seek
recovery from others.” Key Tronic Corp. v. United States, 511
U.S. 809, 819 n.13 (1994); see also W.R. Grace & Co. v. Zotos
Int’l, Inc., 559 F.3d 85, 88 (2d Cir. 2009) (“[I]t has now been
over twenty-five years since CERCLA’s enactment, and
although many of the provisions remain perplexing, the statute’s
primary purposes are axiomatic: (1) to encourage the timely
cleanup of hazardous waste sites; and (2) to plac[e] the cost of
that [cleanup] on those responsible for creating or maintaining
the hazardous condition.” (alterations in original) (citations
omitted) (internal quotations omitted)).

When a company in the position of Agere and TI has not
yet been sued by the EPA but appreciates that it bears some
responsibility for cleaning up hazardous waste, the language of
CERCLA, which is intended to encourage cleanup, ought not
be interpreted to discourage participation in cleanup if a more
consistent construction of the statute is plausible. Private actors
are not likely to settle and step forward unless they know that
they can seek some of the amounts they will contribute, just like
35
those who have been sued by the EPA or a PRP, or those who
voluntarily clean up a site in the first instance. To encourage
participation in environmental cleanup, the statute should be
read in a way that assures PRPs like Agere and TI that they can
later bring a § 107(a) cost recovery claim for the amounts they
pay to help with the cleanup, even if those costs are related to
a settlement obligation. Cf. Steven Patrick, Superfund: Second
Circuit Says EPA Settlement Approval Is Unnecessary to
Trigger Contribution Right, 41 Daily Envtl. Rep. (BNA) A-10
(Mar. 4, 2010) (citing a Department of Justice amicus brief filed
in Niagara Mohawk Pwr. Corp., stating that “[i]t is important
that PRPs ... that ... engage in response activities in settlements
with states have appropriate CERCLA claims for contribution
against other PRPs [because o]therwise PRPs will decline to
enter into administrative settlements and instead wait for the
filing of civil actions to ensure they can sue for contribution
under Section 113(f)(1).”). Our holding is buttressed by the
Supreme Court’s description of § 107(a) and § 113(f) as
“overlapping” remedies. Atl. Research Corp., 551 U.S. at 139
n.6. It would be a stretch to describe the remedies as
“overlapping” if they are actually intended to exclude an entire
group of PRPs from both remedies.

Accordingly, we affirm the District Court’s holding that
TI (with regard to OU-1) and Agere (with regard to OU-1 and
OU-2)32 have § 107(a) cost recovery claims to recoup costs paid

32
We recognize that the OU-2 Consent Decree included a
lump payment of $7.4 million in “past costs” to the EPA, and
that Agere accepted responsibility for this amount as well.
Specifically, Agere’s share for these past costs was $83,000.
While this specific amount could arguably be considered
reimbursement rather then co-funding, the parties do not address
this issue explicitly. Particularly, in light of the policy reasons
outlined above, however, we are content to give the benefit of

36
for cleanup work, even though the payments were made
pursuant to settlement agreements. Those claims may thus go
forward on remand.

E. The District Court’s Equitable Allocation for the
Plaintiffs’ Costs of Performing Work Under the
OU-1 and OU-2 Consent Decrees

i. Background

The District Court concluded that Cytec, Ford, and SPS
had both § 107(a) and § 113(f) claims for the costs of
performing work pursuant to the OU-1 and OU-2 Consent
Decrees, and that TI had such claims with respect to the OU-2
Consent Decree. Carpenter argues that those plaintiffs have
§ 113(f) claims only, for the costs they incurred performing the
work required by the consent decrees. They do not have
§ 107(a) claims, Carpenter says, because once a party has been
sued or has settled under CERCLA its sole avenue of relief is
a § 113(f) claim.

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

The Supreme Court, in Atlantic Research, left open the
precise question raised by Carpenter’s argument, namely,
whether plaintiffs in the position of Cytec, Ford, SPS, and TI
can bring a §107(a) claim in addition to a § 113(f) claim. The
Court said,

We do not suggest that §§ 107(a)(4)(B) and
113(f) have no overlap at all. For instance, we
recognize that a PRP may sustain expenses

the doubt to Agere and believe that it is entitled to recover that
amount.

37
 pursuant to a consent decree following a suit
under ... § 107(a). In such a case, the PRP does
not incur costs voluntarily but does not reimburse
the costs of another party. We do not decide
whether these compelled costs of response are
recoverable under § 113(f), § 107(a), or both.
For our purposes, it suffices to demonstrate that
costs incurred voluntarily are recoverable only by
way of § 107(a)(4)(B), and costs of
reimbursement to another person pursuant to a
legal judgment or settlement are recoverable only
under § 113(f). Thus, at a minimum, neither
remedy swallows the other ... .

Id. (citations omitted); see also Key Tronic Corp. 511 U.S. at
816 (stating that the provisions provide “similar and somewhat
overlapping remed[ies]”). Claims by Cytec, Ford, and SPS for
costs of performing the OU-1 and OU-2 work, and TI’s costs
associated with OU-2, fall into the region of doubt identified by
the Supreme Court in Atlantic Research. The costs were neither
“incurred voluntarily,” because the parties were in fact sued by
the EPA, nor were they “reimbursed to another party,” because
they were expended in performing the OU-1 and OU-2 work
directly. Rather, they are costs incurred pursuant to a consent
decree following a CERCLA suit. See W.R. Grace & Co., 559
F.3d at 93 n.7 (“As the Supreme Court suggested, it may well
be that a party who sustains expenses pursuant to a consent
decree following a suit under [CERCLA] may have a cause of
action under either section 113(f), section 107(a), or both.”).

The District Court correctly recognized that the claims of
Cytec, Ford, SPS, and TI associated with the consent decrees
fall within an “open question of law.” (App. at 1:A59).
Without explanation, the Court concluded that those plaintiffs
have both § 113(f) and § 107(a) claims. Thus, while it appears

38
that the Court went on to allocate liability under § 113(f),33 we
are squarely confronted with the issue left open in Atlantic
Research: whether, in addition to §113(f) claims, plaintiffs
such as these have §107(a) claims for expenses sustained
pursuant to a consent decree following a CERCLA suit. This
is not simply a matter of academic interest. Were we to find
that these parties have § 107(a) claims in addition to § 113(f)
claims, the District Court could, on remand, decide to allocate
liability under § 107(a) and potentially impose 100 percent of
the liability on Carpenter pursuant to the joint and several
liability available under that provision of the statute. For that
reason, the parties have heavily briefed and vigorously argued
the issue.

In Atlantic Research, immediately after setting forth this
unanswered question, and after suggesting that there is, in fact,
some “overlap” between § 107(a) and § 113(f), the Supreme
Court stated that “a defendant PRP in such a § 107(a) [joint and
several liability] suit could blunt any inequitable distribution of

33
We read the District Court’s opinion as proceeding under
§ 113(f) for the following reasons. First, the Court said as much
when it held that “cooperation with the government is also an
appropriate equitable factor to consider in allocating response
costs under § 113(f).” (App. at 1:A73.) Second, the Court spent
two pages of its opinion outlining the elements a plaintiff must
prove under § 113(f), and then organized its analysis based on
those elements. And, third, the Court held that “[c]ulpability is
an appropriate equitable factor in resolving contribution claims”
(App. at 1:A72), which, by use of the word “contribution,”
suggests that the District Court allocated liability under § 113(f).
In addition, despite arguing that they have § 107(a) claims in
addition to their § 113(f) claims, the plaintiffs concede that “the
District Court determined the shares of each party without
regard to those § 107(a) claims.” (Appellees’ Ans. Br. at 47.)

39
costs by filing a § 113(f) counterclaim.” 551 U.S. at 140. The
Court explained that any fear that “PRPs will eschew equitable
apportionment under § 113(f) in favor of joint and several
liability under § 107(a)” is mitigated by the fact that “a § 113(f)
counterclaim would necessitate the equitable apportionment of
costs among the liable parties, including the PRP that filed the
§ 107(a) action.” Id. at 138, 40. Unfortunately, the potential
for an inequitable result remains in this case because Carpenter
would not be able to bring a § 113(f) counterclaim against
Cytec, Ford, SPS, and TI. Section 113(f)(2) would prevent it.
That subsection states that “[a] person who has resolved its
liability to the United States or a State in an administrative or
judicially approved settlement shall not be liable for claims for
contribution regarding matters addressed in the settlement.” 42
U.S.C. § 9613(f)(2). Thus, if we allowed Cytec, Ford, SPS, or
TI to bring a § 107(a) claim here and assert joint and several
liability against Carpenter, Carpenter would be barred from then
bringing a contribution counterclaim against them because
those plaintiffs have entered into consent decrees, i.e., judicially
approved settlements with the EPA. As a result, those plaintiffs
would be able to recover 100 percent of their own costs against
Carpenter, even though they themselves are actually responsible
for, and have stipulated that they are responsible for, a
significant portion of the contamination at the Boarhead Site.

As Carpenter summarized it, “[Plaintiffs who had
entered into consent decrees with the EPA] would not be
subject to equitable allocation. They would have no liability
because they would be able to assert joint and several liability
against the other parties.” (Oral Argument Tr. at 9-10.) This is
a perverse result, since a primary goal of CERCLA is to make
polluters pay. Indeed, the Supreme Court expressed concern
about this very type of result when it recognized that, without
defendants having the availability of a § 113(f) counterclaim,
PRP plaintiffs might “eschew equitable apportionment ... in
favor of joint and several liability under § 107(a).” Atl.
40
Research Corp., 551 U.S. at 138. The Court’s explanation that
the harshness of joint and several liability is mitigated by the
possibility of a § 113(f) counterclaim is of no comfort to
defendants like Carpenter.

Further, even under joint and several liability, a district
court is not supposed to fashion an award that allows a plaintiff
to recover from a defendant costs associated with the cleanup of
waste that the plaintiff itself has contributed to the site. See
THE UNIFORM COMPARATIVE FAULT ACT § 2 cmt. [hereinafter
“U.C.F.A.”] (indicating that even when imposing joint and
several liability, courts must nevertheless “set forth ... the
equitable share of the total obligation to the claimant for each
party, based on his established percentage of fault ... [so that]
each party should eventually be responsible for [that amount] as
a result of the rules of contribution.”). That is to say, while
joint and several liability allows a plaintiff to collect from a
single defendant the collective liability of all defendants, it does
not permit a plaintiff to recover from a defendant the costs to
undo what the plaintiff itself has done. Yet this is precisely
what would occur if Carpenter were barred from bringing a
contribution counterclaim against the plaintiffs after the
plaintiffs recovered from Carpenter under joint and several
liability.

Thus, we hold that plaintiffs in the position of Cytec,
Ford, SPS, and TI, who if permitted to bring a § 107(a) claim
would be shielded from contribution counterclaims under
§ 113(f)(2), do not have any § 107(a) claims for costs incurred
pursuant to consent decrees in a CERCLA suit. Cf. Niagara
Mohawk Pwr. Corp., 2010 WL 626064, at *8 (holding that a
PRP who had settled its CERCLA liability by consent order
with a state environmental agency had a § 113(f)(3)(B) claim
but not a § 107(a) claim, and saying, “[c]learly, the two sections
have differing restrictions and different purposes.”). We need
not decide the contours of the overlap postulated in Atlantic
41
Research because, regardless of whether § 107(a) and § 113(f)
remedies overlap at all, they cannot properly be seen to overlap
here.

iii. The District Court’s Equitable Allocation
Under § 113(f)

As discussed above, Cytec, Ford, and SPS, have only
§ 113(f) claims for costs they incurred pursuant to the OU-1 and
OU-2 Consent Decrees, and TI is in the same position with its
OU-2 costs. Because the District Court resolved those claims
under § 113(f) “by determining the equitable shares of [all of
the parties]” (App. at 1:A61), we must now address the Court’s
allocation of cleanup costs.

The plaintiffs concede that they had to “put on evidence
sufficient for the District Court to determine which equitable
factors were appropriate and to apply those factors to the facts
to determine each party’s share.” (Appellees’ Ans. Br. at 38.)
At trial, the “[p]laintiffs’ theory of the case was that the volume
of each party’s waste disposed of at the Site was the most
appropriate equitable factor for allocation.” (Id.) The District
Court adopted that theory, holding that the “[v]olume of waste
disposed at the Site is the most equitable manner of cost
allocation and the Court is not hesitant to use this as its primary
equitable factor.” (App. at 1:A70-A71.) The Court further held
that, “because culpability and cooperation are significant
equitable considerations, they will be considered in the
allocation equation.” (App. at 1:A71.)

On appeal, Carpenter argues that the only evidence the
plaintiffs introduced as to the volume of waste attributable to
parties other than NRM and Carpenter consisted of the
following three stipulations: (1) the June 19, 2008 stipulation
among all of the parties as to the waste that DCC collected from
fifteen of the defendants (not including Carpenter’s, NRM’s, or
42
H&H’s waste volumes); (2) the June 23, 2008 stipulation
between the plaintiffs and H&H (that Carpenter did not sign) as
to the volume of waste that DCC collected from plaintiffs Ford,
Cytec, and SPS, and from former defendant H&H; and (3) the
July 1, 2008 stipulation between the plaintiffs, Carpenter, and
H&H, stipulating to the fact that the waste described in the June
23rd stipulation was CERCLA hazardous waste. Carpenter
asserts that the June 23rd “stipulation is not competent evidence
of the volumes of waste that DCC acquired from [the] plaintiffs
and [from] H&H, because Carpenter, the only party against
whom it [is] being used, did not stipulate to those volumes.”34
(Appellant’s Op. Br. at 43.) Thus, the argument runs, “if you
don’t have the plaintiffs’ volume ... you don’t know the total

34
Despite the plaintiffs’ argument to the contrary, Carpenter
preserved this argument at trial. During trial, when the plaintiffs
moved to admit the June 23 rd stipulation into evidence,
Carpenter objected by reminding the Court that it had not joined
in the stipulation. In response, the plaintiffs’ counsel stated to
the Court, “Your honor, we’re not asking Defendant Carpenter
to stipulate to any of these facts.” (App. at 3:A1198.) Carpenter
then responded, “That’s fine so long as it is not a stipulation
among all of the parties relating to the drawing of waste that was
hauled by [DCC] from the same company.” (Id.) Moreover,
when the Court confirmed that it was “a stipulation of limited
scope which doesn’t involve [Carpenter],” Carpenter responded,
“[W]e’re just making a record that we do not agree or stipulate
or we’re not waiving any kind of objection ... .” (App. at
3:A1199.) The Court then asked the plaintiffs’ counsel whether
he thought Carpenter had “waived any objection,” to which the
plaintiffs’ counsel responded, “No your Honor.” (Id.) Finally,
at oral argument before us, the plaintiffs’ counsel conceded that
“Carpenter chose not to agree” with the stipulation, and that
Carpenter had voiced its objection at trial. (Oral Argument Tr.
at 28.) The issue was thus amply preserved in the District Court.

43
volume at this site. If you don’t know the total volume at the
site, you can’t allocate between all the parties.” (Oral Argument
Tr. at 17.)

The plaintiffs, in response, argue that they offered
sufficient evidence for the Court to determine the volume of
waste that each party left at the site since they “offer[ed] into
evidence the stipulations of all parties to the volumes of waste
hauled by DCC from each [p]laintiff and each [d]efendant
(other than Carpenter and NRM) ... .” (Appellee’s Ans. Br. at
39.) The plaintiffs contend that they “thus had only to offer
additional evidence sufficient for the District Court to determine
the volumes of Carpenter and NRM waste that were disposed
of at the Site, thereby finding all of the facts necessary to apply
its primary equitable factor [i.e., waste volume].” (Id. at 40.)
Specifically, the plaintiffs argue that “[a]ll of these stipulations
were properly admitted into the record, whether or not
Carpenter was an original signatory to the June 23rd stipulation.”
(Id. at 42-43 n.14.)

Forced to confront the fact that Carpenter did not sign
the June 23, 2008 stipulation, and thus never stipulated to the
plaintiffs’ and H&H’s waste volumes, the plaintiffs advance
the following theory on appeal:

Plaintiffs and H&H stipulated on June 23, 2008
as to the nature and volume of H&H waste
disposed of at the Site and the volumes of waste[]
of Plaintiffs that were hauled by DCC. Then
Plaintiffs, H&H, and Carpenter entered into a
July 1, 2008 stipulation clarifying that the June
23rd stipulation was intended (by referencing no
volumes for TI and Agere) to include the
conclusion that no waste from TI and Agere was
hauled by DCC, and that the wastes of the other
three Plaintiffs referenced in the June 23rd
44
 stipulation ... contained CERCLA hazardous
substances. By executing the second [July 1st]
stipulation, Carpenter also joined in the first one
as well.”

(Id. (internal citations omitted) (emphasis added).) The
plaintiffs thus argue that, because the July 1st stipulation refers
to the June 23rd stipulation, the later one was “intended” to
incorporate the earlier.35 (Id.)

35
After oral argument, the plaintiffs’ counsel sent a letter to
our Court pursuant to Fed. R. App. P. 28(j) to address what he
described as a “misstatement during oral argument ... that
Appellees did not introduce evidence at trial concerning the
volumes of Cytec’s, SPS’s, and Ford’s wastes that were
disposed of at the Boarhead Farms Superfund Site.” Letter from
Glenn A. Harris, Counsel for Plaintiffs, to Marcia M. Waldron,
Clerk of the United States Court of Appeals for the Third Circuit
(Dec. 18, 2009) (on file with the Court). Specifically, the
plaintiffs’ counsel points to several exhibits moved into
evidence at trial, including purchase orders from Ford and SPS
to DCC, DCC invoices to Ford and SPS, and filings made with
the New Jersey Department of Environmental Protection that
evidence certain volumes of Cytec’s waste disposed of at the
Site. (Id.) The plaintiffs’ position is that “[t]he exhibits are in
the trial record and thus can be relied upon” by our Court. (Id.)

However, even if we were to consider those exhibits, they
are not evidence of the plaintiffs’ waste volumes transported by
DCC to the Boarhead Site during the relevant time period. They
appear to be only a collection of invoices and purchase orders
with no testimony to explain what they mean. Moreover,
plaintiffs have not directed us to anything indicating that they
argued at trial that those documents were evidence of their waste
volumes. In fact, in the plaintiffs’ reply to Carpenter’s proposed

45
 The District Court accepted that theory, stating that
“[a]lthough Carpenter did not enter into [the June 23rd
stipulation], it is nonetheless evidence of plaintiffs volumetric
shares.” (App. at 1:A71 n.43.) From the Court’s opinion, it
appears that the stipulations were the only evidence the Court
considered with regard to the plaintiffs’ and H&H’s waste. All
other volume evidence discussed by the District Court relates to
Carpenter’s or NRM’s waste.

iv. The June 23rd Stipulation is Not an
Admission that is Admissible Against
Carpenter

The June 23rd stipulation is the only one that included the
plaintiffs’ and H&H’s volumes of waste, and Carpenter did not
sign it. The July 1, 2008 stipulation does not incorporate by
reference the June 23, 2008 stipulation, nor does it even address
the volumes of waste in the earlier stipulation. It reads, in
relevant part, that “[t]he waste from Plaintiff companies
referenced in paragraph 5 of the June 23, 2008 [s]tipulation ...
contained at least some CERCLA hazardous substances. There
were no wastes hauled by [DCC] from [TI, Agere,] or their
predecessors.” (App. at 14:A6398.) When plaintiffs moved to
admit the June 23rd stipulation at trial, Carpenter pointedly
objected, as it had before, to any substantive use of the
stipulation, stating “[w]e’re just making a record that we do not
agree or stipulate or we’re not waiving any kind of objection to
paragraph 5 of [the June 23rd] stipulation.” (App. at 3:A1199;
see also supra note 34.)

It would be extraordinary, in light of Carpenter’s
decision not to sign the June 23rd stipulation and its repeated

findings of fact, they stated that the volume evidence for
plaintiffs and H&H came from the stipulations. The District
Court’s opinion reveals that the Court relied solely on those
stipulations to make findings of fact as to the plaintiffs’ waste
volumes and did not rely on the evidence discussed in the recent
28(j) letter to our Court.

46
and emphatic objections, to allow the use of the stipulation to
bind it, and to permit the stipulation to become exactly what
Carpenter had a right to say it was not, namely evidence against
it of the volumes of waste at issue. The District Court should
not have decided the plaintiffs’ and H&H’s volume of waste
from a stipulation that Carpenter did not join. Particularly in a
case like this, where the question is who bears what share of the
responsibility among those who are culpable, it is no mere
technical violation of the rules of evidence to allow some
parties to stipulate to their share of responsibility and then later
have that stipulation be used as the basis of liability against
another party. No matter how culpable a polluter may be – and
in this instance, Carpenter gave the District Court ample reason
to view it as highly culpable – liability can only be assigned on
the basis of procedures consistent with the Due Process Clause
of the Fifth Amendment of the United States Constitution and
the Federal Rules of Evidence. Cf. Dawson v. Delaware, 503
U.S. 159, 178 (1992) (“The Due Process Clause ... traditionally
has regulated questions about the improper admission of
evidence.”).

Before us, plaintiffs’ counsel argued that the stipulation
was “properly admitted into evidence” because it constitutes an
admission by the plaintiffs.36 This, of course, misapprehends

36
The argument went as follows:

Plaintiffs’ Counsel: [T]he stipulation is admitted
into evidence as proof
against my client of the
three entities’ volumes.
They could have disputed it.
But its not that there’s no
evidence.
...

The Court: Your argument is this was,
in effect, an admission.

Plaintiffs’ Counsel: Exactly.

47
the issue entirely. The question isn’t whether the stipulation is
an admission by the plaintiffs and therefore binding as to them.
The question is whether the plaintiffs’ self-serving stipulation
can bind Carpenter.

Taking a stipulation that a party has chosen not to sign
and using it as evidence against the non-signatory violates at
least the rule against hearsay. In general, hearsay “is a
statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” FED . R. EVID. 801(c). Hearsay is not
admissible unless it falls under one of the exceptions to the
hearsay rule contained in the Federal Rules of Evidence. FED.
R. EVID. 802. One thing which the rules define as non-hearsay
is an admission by a party-opponent, defined as a “party’s own
statement, in either an individual or representative capacity” that
is “offered against” that party. FED. R. EVID. 801(d)(2)(A).
Thus, whether a statement constitutes inadmissible hearsay, or
is instead considered not to be hearsay at all because it is an
admission of a party-opponent, depends on both who made the
statement and whom it is being offered against. Here, while the
stipulation might well be admissible non-hearsay if it were
being offered against the parties who signed it, it should not
have been admitted against Carpenter, since Carpenter did not
sign it and no exception to the hearsay rule was advanced by the

...

Plaintiffs’ Counsel: That’s exactly correct. We
admitted and we stipulated
with [H&H] that those are
the volumes for those three
companies. ... [I]t was in
evidence. The judge used it.
I mean he counted on it.
Look on, look at the
opinion. He counts those
volumes against me.

(Oral Argument Tr. at 23-24.)

48
plaintiffs.37 Cf. Brzozowski v. Corr. Physician Servs., Inc., 360
F.3d 173, 179 (3d Cir. 2004) (cautioning that a plaintiff could
not rely on a consent judgment against a party because that
party did not sign the “stipulation ... and must be afforded the
opportunity to defend itself against the claim de novo.”).

Because the June 23rd stipulation should not have been
admitted against Carpenter, the District Court did not rely on
competent evidence as to four of the parties’ waste volumes.
As a result, Carpenter is correct in its assertion that the Court
did not articulate an adequate basis for its decision as to the
total volume of waste at the Boarhead Site. The plaintiffs
concede, as they must, that it was their burden to prove each
party’s “fair share” or “size of the pie.” (Oral Argument Tr. at
24-25.) They did not meet that burden, and, without a mention
of any other evidence of the matters covered by the June 23rd
stipulation, it was impossible for the District Court to perform
an equitable allocation of waste volumes among Carpenter and
the other PRPs. Thus, the District Court’s volume allocation
constitutes an abuse of discretion and cannot stand.

v. Other Evidence Regarding Waste Volumes

That conclusion, however, does not end the matter.
While the stipulations are inadmissible unless a hearsay
exception applies, there may well be other evidence of record
that could be dispositive as to plaintiffs’ and H&H’s waste
volumes. For example, in a footnote, the District Court
indicated that, because the plaintiffs stated their volumes of
waste and other parties’ volumes of waste in answers to
contention interrogatories, and because Carpenter moved those
answers into evidence, “these answers corroborate the volumes

37
Although no exception to the hearsay rule is immediately
apparent as being applicable here, we do not decide that none
applies to the June 23 rd stipulation, since that issue is not before
us. We decide only that the June 23 rd stipulation was not
incorporated into any stipulation Carpenter did sign and that it
is not admissible against Carpenter as an admission because
Carpenter admitted nothing by it.

49
of plaintiffs’ waste disposed of at the Site.” (App. at 1:A71
n.43; see also App. at 14:A6416-6498; 6485.) Carpenter
concedes that it did, indeed, introduce into evidence plaintiffs’
responses to contention interrogatories. (See Appellant’s Reply
Br. at 25.) Moreover, in another part of its argument –
concerning alleged error by the District Court in determining
defendant NRM’s waste volumes – Carpenter relied, and
continues to rely, on those very same responses to argue its own
point.38 (See App. at 1:A39 n.21; Appellant’s Reply Br. at 25.)
It thus may be that the answers to contention interrogatories
constitute admissions that Carpenter has adopted.39
The District Court, which is far more familiar with the
context in which Carpenter moved to admit those responses,
and the ways in which Carpenter argued their relevance, is in a
better position to consider that issue. The Court may also

38
See infra Section III.F.i.
39
An adoptive admission refers to “evidence of other conduct
of a party manifesting circumstantially the party’s assent to the
truth of a statement made by another.” 2 G EORGE E. D IX, ET AL.,
M CC ORMICK ON E VIDENCE § 261 (Kenneth S. Broun, ed., 6th
ed., 2009) [hereinafter “McCormick”]. Adoptive admissions in
federal courts are governed by Federal Rule of Evidence
801(d)(2)(B), which provides that a statement is non-hearsay if
“[t]he statement is offered against a party and is ... (B) a
statement of which the party has manifested an adoption or
belief in its truth.” F ED. R. E VID. 801(d)(2)(B). Here, Carpenter
not only cited to plaintiffs’ responses to contention
interrogatories, but it moved those responses into evidence,
relied on them, and continues to rely on them on appeal. In
other words, Carpenter urged the District Court – and now urges
us – to rely on those responses as competent evidence.
Carpenter thus may be viewed as showing its “assent to the truth
of a statement made by another.” M CC ORMICK, supra at § 261
(explaining that “the introduction of evidence by a party” may
constitute an adoptive admission “depend[ing] upon whether the
particular circumstances warrant the conclusion that adoption in
fact occurred”). However, we leave that determination to the
District Court in the first instance.

50
decide that, in the unusual circumstances of this case, the record
will need to be reopened to consider the equitable allocation
again, and, in that context, it may review any admissible
evidence as to the plaintiffs’ and H&H’s waste volumes. Since
it may be necessary to reopen the record to address other
questions, like the time period during which the EPA completed
its removal action, issues of waste volumes could be addressed
at the same time.

F. Other Contentions Regarding the District Court’s
Equitable Allocation

Carpenter contends that, in addition to the improper
admission of the June 23rd stipulation as volume evidence for
the plaintiffs and H&H, the District Court erred in its equitable
allocation analysis in three other ways. First, Carpenter argues
that the Court miscalculated the volumetric share of waste that
former defendant NRM sent to the Boarhead Site. Second, it
argues that the District Court did not consider other defendants’
culpability and lack of cooperation with the EPA to the same
extent it considered Carpenter’s behavior. Finally, Carpenter
says that, in allocating liability, the Court should have
considered the dollar amounts that the plaintiffs obtained from
settling defendants, rather than those defendants’ volumetric
share of waste. Each of those contentions is unpersuasive.

i. NRM’s Waste

Because the parties did not stipulate to NRM’s waste,
the Court heard testimony from several DCC drivers, all of
whom were questioned about transporting NRM’s waste to the
Boarhead Site. The testimony produced the following evidence.
One driver picked up waste from NRM but transported all of it
to another location, not the Boarhead Site. A second driver
never went to NRM to pick up waste. Two other drivers
transported all NRM waste to a third location, not the Boarhead
Site. June Stephens, another driver, was unclear as to whether
she had driven a truck containing NRM waste, and, if she had,
whether or not she had disposed of that waste at the Boarhead
Site. Finally, a driver named Manfred (“Freddie”) DeRewal, Jr.

51
testified that he took six to ten tankers of NRM waste to the
Boarhead site, but took the remainder of NRM’s waste to other
locations.

Based on that testimony, the District Court found that
32,000 gallons of NRM’s waste was disposed of at the
Boarhead Site. According to the Court,

Freddie DeRewal took six to ten tankers of NRM
waste to the [Site] ... . As a tanker truck held
approximately 4,000 gallons of waste, DCC
disposed of between 24,000 and 40,000 gallons
of NRM waste at the Site ... . The Court finds
that DCC disposed of 32,000 gallons of NRM
waste at the Site during the Gap Period.

(App. at 1:A36.) The District Court thus chose the halfway
point in the 24,000 and 40,000 gallon range.

Carpenter offers two specific contentions with regard to
the NRM waste figure. First, it argues that the plaintiffs gave
more definite figures in response to contention interrogatories
and that the Court should have used those figures. Second, it
argues that June Stephens’s testimony demonstrates that she
did, in fact, collect waste from NRM. As to the first point, there
was nothing improper in the District Court’s decision to give
greater weight to witness testimony than to contention
interrogatory answers. As to the second, Stephens stated
explicitly that, instead of the waste she collected being NRM’s,
it “could have been [waste belonging to] another one of these
outfits.” (App. at 15:A878.) Given the indecisiveness of
Stephens’s testimony, the District Court did not clearly err in
interpreting her testimony the way that it did. Considering the
testimony before it regarding the handling of NRM’s waste, the
District Court could properly determine that 32,000 gallons of
waste were fairly attributable to NRM.

52
 ii. The Culpability and Lack of Cooperation
of Settling Defendants

The District Court concluded that, in addition to volume,
culpability and cooperation with the government should also be
considered in allocating response costs. Because “Carpenter
relinquished its potent waste acids to a known polluter,” (App.
at 1:A72), and because Carpenter did not cooperate with the
EPA, the Court decided to allocate to Carpenter an additional
17.4% of the total clean-up cost: 8.7% for working with a
known polluter and 8.7% for not cooperating with the EPA.
(App. at 1:A73-A74.)

Carpenter does not dispute the District Court’s findings
of fact concerning its repeated business dealings with DCC and
related companies or the refusal to participate in cleaning up the
Boarhead Site when asked to do so by the EPA. Rather,
Carpenter contends on appeal that the District Court erred in
ignoring the same kind of evidence with regard to other parties.

We disagree. The District Court found that Carpenter’s
culpability was of a different character than any other
defendant’s because Carpenter had actual knowledge of
DeRewal’s polluting activities and yet twice chose to hire his
companies to dispose of toxic waste. Carpenter introduced no
evidence demonstrating that any other party acted with the same
callous disregard as it did in its dealings with DeRewal’s
companies or with the EPA. The record reveals that Carpenter
was particularly contemptuous of the law and public safety in
the way it stonewalled participation in the government’s
cleanup efforts at the Boarhead Site. These are valid bases for
viewing Carpenter as occupying a category of culpability all its
own in this case. Thus, the District Court’s decision to allocate
an additional 17.4% of liability to Carpenter was certainly not
an abuse of discretion, and the increased liability need not be
revisited on remand.

53
 iii. Settlement Amounts

The District Court chose to use the waste volumes of the
settling defendants, rather than the dollar amounts that those
settling defendants paid, as the primary equitable factor for its
allocation. The District Court explained that it was adopting the
U.C.F.A. to determine the settling parties’ shares of liability.
That Act states that “[t]he claim of the releasing person against
other persons is reduced by the released person’s equitable
share of the obligation ... .” U.C.F.A. § 6. Thus, the Court
concluded that, since it had used waste volumes to determine
the equitable shares of the remaining PRPs, the settling
defendants’ liability should be “reduced by the settling party’s
equitable share of the liability, not by the dollar value of the
settlement.” (App. at 1:A71 n.43.) The District Court had in
fact held four years before trial that “the liability of the Non-
Settlers [will be] determined without regard to the dollar
amounts of previous settlements.” (App. at 1:A85.)

Carpenter argues that the Court erred in concluding that
the dollar value of the settlements were not relevant to the
equitable allocation. But the District Court did not err. First,
practically speaking, the settlement amounts are not of record
and so the District Court could not have used them as an
equitable factor. Second, as the District Court noted, the
plaintiffs have every incentive to settle for as close to the
settling parties’ shares as possible because the plaintiffs bear the
risk that those parties’ shares of the cleanup costs may be
greater than the settlement amount. Thus, the volume allocation
likely reflects the dollar amounts. Finally, to the extent waste
volumes and settlement dollars diverge, it was well within the
Court’s discretion to determine that the former, which are
historical facts developed before litigation, are a better measure
of fault than the latter, which are necessarily colored by
litigation concerns. In short, while the District Court must
revisit certain PRPs’ volumes for the reasons described above,
there was nothing wrong with its choosing to use volume, rather
than the dollar value of the settlements, as the basis for
allocating liability among the parties.

54
 G. The Pennsylvania Hazardous Sites Cleanup Act

Lastly, Carpenter argues that plaintiffs Cytec, Ford, SPS,
and TI do not have viable cost recovery claims under § 702(a)
of the HSCA for the same reasons that they do not have a §
107(a) claim under CERCLA. Neither party disputes that
liability under the HSCA mirrors liability under CERCLA and
that § 702(a) of the HSCA mirrors § 107(a) of CERCLA.
Rather, Carpenter simply repeats its contentions as to why it
believes the District Court erred in holding that Cytec, Ford,
SPS, and TI have § 107(a) claims for the costs they incurred
under the OU-1 and/or OU-2 Consent Decrees.

The District Court correctly held that Carpenter’s
liability “is neither greater nor lesser under the HSCA.” (App.
at 1:A76.) Indeed, the cost recovery and contribution
provisions in HSCA are virtually identical to those in CERCLA.
Compare 35 PA. STAT. ANN. §§ 6020.702(a)(3), 705(a), with 42
U.S.C. §§ 9607(a)(4)(B), 9613(f). Thus, on remand, the
District Court should continue to address the CERCLA and
HSCA issues in this case identically.40

IV. Conclusion

We recognize the many difficulties inherent in
adjudicating this highly complex and contentious case and
express appreciation for the clarity with which the District
Court set forth its reasoning in support of the equitable
allocation it determined. However, for the reasons discussed
above, we must vacate the judgment and remand the case.

40
Carpenter also argues that even if the plaintiffs could state
a § 702(a) cost recovery claim under the HSCA, that claim
would be barred by HSCA’s statute of limitations provision,
contained in 35 P A. S TAT. A NN. § 6020.1114. We need not
address that contention because no statute of limitations
argument has been made pertaining to § 107(a). All the statute
of limitations arguments that the parties have made to us pertain
to § 113(f).

55
 In summary, first, we ask the District Court to make a
clear and unequivocal finding, if possible, as to when the EPA
completed its removal action. To the extent the District Court
decides it must reopen the record in order to make that finding,
it may do so. Such a finding will allow the District Court to
determine whether the EPA’s December 6, 2001 filing of the
suit to enforce the OU-2 Consent Decree was timely, and thus
whether there is a time-bar to plaintiffs’ recovering the
approximately $7 million they paid to reimburse the EPA for
past costs. Further, if the District Court finds that the EPA
initiated “on-site physical construction” of the remedial action
within three years of the completion of its removal action, it
may apply the six-year statute of limitations exception contained
in § 113(g)(2)(B). If the District Court finds that the EPA’s
December 6, 2001 suit was not time-barred, and that the
plaintiffs are able to recover for past costs, the Court should
make a more exact finding as the amount that the plaintiffs paid
to reimburse the EPA for past costs.

Second, the District Court should permit TI (with regard
to OU-1) and Agere41 (with regard to OU-1 and OU-2) to go
forward with their § 107(a) cost recovery claims to recoup costs
paid as part of the shared expense of cleaning up the Boarhead
Site.

Third, because we hold that Cytec, Ford, and SPS, as
well as TI (with regard to OU-2), are shielded from contribution
counterclaims under § 113(f)(2) and therefore do not have
§ 107(a) claims for costs incurred pursuant to the consent
decrees, the District Court should again proceed solely under
§ 113(f) as to those claims.

Fourth, while proceeding under § 113(f) to allocate
liability among the parties, the District Court may not consider
the June 23rd stipulation as evidence against Carpenter, at least
not without addressing the evidentiary problems noted herein.

41
Again (see supra n. 12), we note that the District Court must
determine on remand whether Agere’s claims are held by it or
by assignees.

56
Beyond the stipulation, there may be evidence in the record that
the District Court can rely on to perform its equitable allocation,
but the District Court may also reopen the record if it deems that
necessary.

For the foregoing reasons, we vacate the District Court’s
judgment and remand for further proceedings consistent with
this opinion.

57