American Cyanamid Co v. A. Capuano Brothers

United States Court of Appeals
For the First Circuit

No. 03-2143

AMERICAN CYANAMID COMPANY,
Plaintiff,

ROHM AND HAAS COMPANY,
Plaintiff, Appellee,

v.

DANIEL J. CAPUANO, JR.; JACK CAPUANO;
UNITED SANITATION, INC.,
Defendants, Appellants,

A. CAPUANO BROS., INC.; CAPUANO ENTERPRISES, INC.,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Saris,* District Judge.

Mortimer C. Newton, was on brief, for appellants.
John M. Armstrong, with whom Schnader Harrison Segal & Lewis
LLP was on brief, for appellee.

August 18, 2004

*
Of the District of Massachusetts, sitting by designation.
 TORRUELLA, Circuit Judge. In 1977, Warren Picillo, Sr.

and his wife agreed to allow part of their pig farm in Coventry,

Rhode Island ("Picillo site") to be used as a disposal site for

drummed and bulk waste. Later that year, after thousands of

barrels of hazardous waste replaced what pigs at one time called

home, a monstrous explosion ripped through the Picillo site. The

towering flames, lasting several days, brought the waste site to

the attention of the Rhode Island environmental authorities. Rhode

Island investigators "discovered large trenches and pits filled

with free-flowing, multi-colored, pungent liquid wastes." Violet

v. Picillo, 648 F. Supp. 1283, 1286 (D.R.I. 1986). Recognizing the

environmental disaster it had discovered, Rhode Island closed the

pig farm and, with the federal government, began the cleanup

process.

In a nutshell, this case involves an action under the

Comprehensive Environmental Response, Compensation and Liability

Act ("CERCLA") §§ 101-405, as amended by the Superfund Amendments

and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. §§ 9601-9675,

brought by a company whose hazardous waste was deposited at the

Picillo site against a group of people who were involved with the

site.

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 I. Background

A. CERCLA

CERCLA is a statutory scheme that provides specific

procedures for the remediation of a hazardous site. To understand

this appeal, it is necessary to mention some of these procedures

and define certain terms.

The remediation process at a hazardous site is called a

response action. 42 U.S.C. § 9601(25). A response action involves

removal actions, which "means the cleanup or removal of released

hazardous substances from the environment," id. § 9601(23), and

remedial actions, which "means 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," id. § 9601(24).

When the government performs a response action, it can

bring "a cost recovery action under § 9607 . . . for the costs of

the cleanup [against] a party found to be an owner or operator,

past operator, transporter, or arranger." United States v. Davis,

261 F.3d 1, 28-29 (1st Cir. 2001). "A party found liable under

§ 9607 may in turn bring an action for contribution" against

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potentially responsible parties ("PRPs")1 under § 9613(f). Id. at

29.

B. The parties

Defendants-appellants, Daniel Capuano, Jr.; Jack Capuano;

United Sanitation, Inc.; A. Capuano Brothers, Inc.; and Capuano

Enterprises, Inc. (hereinafter referred to as "the Capuanos"), were

in the business of hauling hazardous waste. Jack Capuano was the

president and sole shareholder of Sanitary Landfill, Inc., a

landfill operation located in Cranston, Rhode Island. Jack Capuano

and Daniel Capuano jointly owned United Sanitation, Inc., a waste

hauling company. Jack Capuano was the president of United

Sanitation and Daniel was the vice-president. In 1977, the

Capuanos reached an agreement with Warren Picillo to dump hazardous

waste on his pig farm.

In 1977, plaintiff-appellee, Rohm & Haas Company ("R&H")

operated research facilities in Spring House and Bristol,

Pennsylvania, which generated hazardous waste. Forty-nine of the

10,000 drums of waste at Picillo were generated by R&H. O'Neil v.

Picillo, 682 F. Supp. 706, 709, 720 (D.R.I. 1988).

These drums ended up at the Picillo site in a round-about

way. R&H's Spring House facility contracted with Jonas Waste

1
PRP's can include "present and past owners and operators of a
contaminated site, transporters who selected the site, and
generators of waste who arranged for disposal of their wastes at
the site." Jeff Civins & Bane Phillippi, New Federal Brownfields
Legislation: Who's Liable Now?, 65 Tex. B.J. 982, 983 (Dec. 2002).

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Removal ("Jonas") to dispose of its waste. Jonas sent the waste to

the Chemical Control Corporation, which later contracted with

Chemical Waste Removal to dispose of the waste. Chemical Waste

Removal disposed of the waste at the Picillo site. R&H's Bristol

facility contracted with Scientific Chemical Processing ("SCP") to

dispose of its waste. SCP later contracted with Daniel Capuano and

United Sanitation to dispose of the waste at the Picillo site.

C. The soil cleanup

In 1983, Rhode Island brought an enforcement action under

CERCLA § 107, 42 U.S.C. § 9607, for cleanup costs at the Picillo

site. This initial action was brought against 35 defendants "who

were either owner/operators of the site, parties who allegedly

transported waste there, parties alleged to have arranged for their

waste to be transported to the site, and parties alleged to have

produced waste deposited at the site." O'Neil, 682 F. Supp. at

709.

Rhode Island settled with twenty of the defendants,

including the Capuanos. The Capuanos agreed to pay $500,000.

Rhode Island went to trial against five of the remaining

defendants, including R&H. After trial, the district court found

R&H and two other companies jointly and severally liable for un-

reimbursed past response costs of $991,937 and for "all future

costs of removal or remedial action incurred by the state . . .

includ[ing] any costs associated with the removal of contaminated

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soil piles." Id. at 731. We affirmed the district court's

holdings. O'Neil v. Picillo, 883 F.2d 176 (1st Cir. 1989).

The United States also sought reimbursement for its

response costs associated with the soil cleanup at the Picillo site

and settled with many parties, including the Capuanos. The

Capuanos agreed to pay $1,500,000. The settling parties received

contribution protection as part of the settlement agreement. See

42 U.S.C. § 9613(f)(2) ("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."). In 1989, the

United States filed a cost recovery action under § 9607 against R&H

and another company, American Cyanamid. See United States v.

American Cyanamid Co., 794 F. Supp. 61 (D.R.I. 1990). The district

court entered a judgment against them for $3,339,029 plus interest.

United States v. American Cyanamid Co., 786 F. Supp. 152, 165

(D.R.I. 1992).

D. Groundwater cleanup

In 1987, the United States began developing a Remedial

Investigation and Feasibility Study ("RI/FS") with respect to the

groundwater at the Picillo site. By September 1993, the United

States called for a groundwater cleanup. On March 30, 1994, the

United States issued a "special notice letter" to twenty PRPs,

including the Capuanos and R&H, demanding they implement a

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groundwater remedy and reimburse the Environmental Protection

Agency ("EPA") for the costs related to the RI/FS and enforcement

costs. In response to the United States's letter, two groups of

PRPs made settlement offers. The Capuanos joined neither group.

R&H joined one of the groups making a settlement offer. As a

result, R&H began incurring cleanup costs in late 1994. R&H was

expelled from the settlement group, however, in March 1995 because

it could not agree with the group regarding R&H's contribution.

Without R&H, a group of PRPs settled with the United States and

agreed to implement a groundwater remedy.

In 1998, R&H entered a consent decree with the United

States to pay $4,350,000 to compensate the United States for direct

response costs related to groundwater cleanup, plus $110,000

towards oversight costs, and $69,000 towards natural resource

damage. The consent decree was approved in October 1998.

E. R&H's contribution action

In April 1995, R&H instituted a § 9613(f)(1) contribution

action in the United States District Court for the District of New

Jersey to recover past and future response costs related to

groundwater cleanup. The suit named 52 PRPs, including the

Capuanos. In March 1999, the Capuanos moved to dismiss R&H's

claims against them based on personal jurisdiction and venue

grounds. The District Court of New Jersey concluded it lacked

jurisdiction over the Capuanos. Thus, the District Court of New

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Jersey severed the claims against the Capuanos and transferred them

to the District Court of Rhode Island.

F. The proceedings below

In 2001, the Capuanos filed a motion for summary

judgment, which was denied. In March 2003, the matter was tried

before a district judge who found the Capuanos liable to R&H and

entered judgment for $2,651,838. In September 2003, the district

court amended the judgment to include $507,369 for prejudgment

interest. The Capuanos appeal from this amended judgment and for

the reasons stated below, we affirm.

For ease of discussion, this opinion is organized into

three parts. Part One addresses the affirmative defenses raised by

the Capuanos -- statute of limitations, res judicata, and

contribution immunity. Part Two addresses issues relating to the

trial. Part Three addresses issues relating to the judgment and

the awarding of prejudgment interest.

II. Part One: Affirmative defenses

A. Statute of limitations

CERCLA mandates that:

No action for contribution for any response
costs or damages may be commenced more than 3
years after --

(A) the date of judgment in any action under
this Act for recovery of such costs or
damages, or

(B) the date of an administrative order under
section 122(g) [42 USCS § 9622(g)] (relating

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 to de minimis settlements) or 122(h) [42 USCS
§ 9622(h)] (relating to cost recovery
settlements) or entry of a judicially approved
settlement with respect to such costs or
damages.

42 U.S.C. § 9613(g)(3).

Section 9613(g)(3) lists four events that trigger the

running of the statute of limitations: (1) the entry of a

judgment; (2) a § 9622(g) de minimis settlement; (3) a § 9622(h)

cost recovery settlement; and (4) a judicially approved settlement.

The Capuanos contend that R&H's contribution action is time-barred

because a judgment against R&H was entered on April 20, 1988, at

which time R&H was adjudged jointly and severally liable for past

and future costs of remediation at the Picillo site. See O'Neil,

682 F. Supp. at 730-31. If they are correct, any claims for

contribution should have been brought by April 20, 1991, many years

before this case was filed.

To support their argument, the Capuanos first contend

that the plain language of § 9613(g)(3) sets the triggering date

for starting the statute of limitations as the "date of judgment in

any action under this Act." 42 U.S.C. § 9613(g)(3) (emphasis

added). Since O'Neil was a "judgment" in an "action" under § 9607,

the plain language of § 9613(g)(3) would suggest that the statute

of limitations started in 1988. The Capuanos make this argument

acknowledging that response costs relating to the groundwater

remediation had not been identified or incurred at the time of the

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O'Neil judgment. Nevertheless, citing United States v. Davis, 261

F.3d 1, 46 (1st Cir. 2001), the Capuanos argue that costs or

damages need not be identified for a plaintiff in a CERCLA action

to seek an allocation of future response costs.

The Capuanos also argue that an adjudged liable PRP who

is permitted to seek contribution for response costs before its

liability is established, and who can seek an allocation of future

response costs once its liability is established, should not be

able to split its contribution claims into several successive

lawsuits as the cleanup continues and the PRP's costs become fixed.

Splitting contribution suits results in inefficiencies and

conflicting judgments, the antitheses of CERCLA's policy

objectives.

The district court, rejecting the Capuanos' arguments,

held that "whether a PRP can seek contribution ultimately depends

on whether it incurs future costs. Until that occurs, regardless

of whether liability has been assessed against a contribution

defendant, there has been no expenditure or fixing of costs for

which a PRP may seek contribution." We agree with the district

court's holding and reject the Capuanos' arguments for similar

reasons.

We review de novo questions regarding the proper

interpretation of a statute. See United Techs. Corp. v. Browning-

Ferris Indus., Inc., 33 F.3d 96, 98 (1st Cir. 1994). "It is

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apodictic that our first recourse must be to the statute's text and

structure." Id. at 99. The main issue on appeal is whether the

1988 O'Neil judgment qualifies, for purposes of the limitations

period in this action, as a "judgment in any action under this Act

for recovery of such costs or damages." 42 U.S.C. § 9613(g)(3).

It is undisputed that O'Neil was a judgment in an action under

CERCLA. The controversy surrounds whether the O'Neil judgment was

for "recovery of such costs or damages." We believe it was not.

1. The declaratory judgment in O'Neil

The district court, in O'Neil, issued a declaratory

judgment holding R&H "jointly and severally liable for all future

costs of removal or remedial action incurred by the state relative

to the Picillo site." This declaratory judgment did not trigger

the statute of limitations for the groundwater cleanup because

being held jointly and severally liable for all future costs of

removal or remedial action is not a judgment for the recovery of

such costs.

Reaching this conclusion requires us to dissect 42 U.S.C.

§ 9613. Section 9613(g)(2) provides that, in an initial action for

the recovery of costs, "the court shall enter a declaratory

judgment on liability for response costs or damages that will be

binding on any subsequent action or actions to recover further

response costs or damages." 42 U.S.C. § 9613(g)(2)(B) (emphasis

added). The O'Neil judgment was an initial action for the recovery

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of costs associated only with the soil remediation. The district

court also entered a declaratory judgment by holding that "the

defendants are jointly and severally liable for all future costs of

removal or remedial action incurred by the state relative to the

Picillo site." O'Neil, 682 F. Supp. at 730. Although the district

court entered a judgment on liability for future response costs,

the district court did not enter a judgment for the recovery of

such costs. The declaratory judgment is binding on any subsequent

actions to recover response costs or damages, but it is not itself

a judgment for the recovery of such costs or damages.

2. The judgment for past soil remediation response costs

The Capuanos also contend that the O'Neil judgment

triggered the running of the statute of limitations because it was

a judgment for the recovery of response costs. In O'Neil, R&H was

held "jointly and severally liable for past response costs totaling

$991,937.30" for the soil remediation. Thus, the Capuanos argue,

R&H had three years from the date of the O'Neil judgment to bring

a contribution action not only for costs relating to the soil

remediation, but also for any response costs or damages that could

arise in the future.

We disagree and, once again, begin our inquiry by

examining the language of the statute. When interpreting a

statute, "courts must strive to give effect to each subsection

contained in a statute, indeed, to give effect to each word and

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phrase." Browning-Ferris, 33 F.3d at 101. Section 9613(g)(3)

states that "[n]o action for contribution for any response costs or

damages may be commenced more than 3 years after -- (a) the date of

judgment in any action . . . for recovery of such costs or

damages." 42 U.S.C. 9613(g)(3) (emphasis added). There are two

plausible interpretations of subparagraph (a). Under one

interpretation, the term "such costs or damages" refers to any

response costs. Under a second interpretation, the term "such

costs or damages" refers to the costs or damages contained in the

"judgment" mentioned in subparagraph (a).

Several factors favor the latter interpretation. First,

other subsections of § 9613(g)(3) contain the word "such" and use

it to limit and identify a word within the same sentence. For

example, § 9613 (g)(4) states that "[n]o action based on rights

subrogated pursuant to this section by reason of payment of a claim

may be commenced . . . more than 3 years after the date of payment

of such claim." 42 U.S.C. § 9613(g)(4) (emphasis added).

Similarly, § 9613(g)(5) states that "where a payment pursuant to an

indemnification agreement with a response action contractor is made

. . . an action . . . for recovery of such indemnification payment

from a potentially responsible party may be brought at any time

before the expiration of 3 years from the date on which such

payment is made." 42 U.S.C. § 9613(g)(5) (emphasis added). In

both subsections, the word "such" is used to identify a particular

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claim or payment. Similarly, we find that "such costs" in § 9613

(g)(3) refers to the judgment mentioned earlier in the sentence and

identifies a particular claim or payment.2

Our interpretation of other subsections of § 9613 further

supports the interpretation that "such costs" refers to costs

identified in the judgment. Section 9613(g)(2) requires a court to

enter a declaratory judgment on liability and then provides that

subsequent actions for future response costs "may be maintained at

any time during the response action, but must be commenced no later

than 3 years after the date of completion of all response action."

See 42 U.S.C. § 9613(g)(2)(B). Section 9613(g)(2), therefore,

allows for the cleanup and the payment for that cleanup to occur in

phases. When a PRP is forced to pay more than its share of that

cleanup, it turns to § 9613(f), which allows a PRP to "seek

contribution from any other person who is liable or potentially

liable." 42 U.S.C. § 9613(f)(1). We have determined that § 9613

(g)(2)'s declaratory provision applies to § 9613(f)(1), allowing a

PRP to obtain a declaratory judgment in a contribution action.

See Davis, 261 F.3d at 45-46. After obtaining such a declaratory

judgment, a PRP is able to seek contribution from other PRPs in

2
The comparison to the other subsections is not perfect. Indeed,
in §§ 9613(g)(4)&(5) the terms "such claims" and "such
indemnification" refers back to the words "claim" or
indemnification" used earlier in the sentence, whereas in § 9613
(g)(3), we read the term "such costs" to refer back to the costs
contained in a "judgment."

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phases as it incurs costs beyond its pro rata share. By

interpreting "such costs" to refer to those costs contained in a

judgment, a PRP would not lose the ability to seek contribution if

a phase of a cleanup occurs after three years of an initial

judgment.

The Capuanos disagree and contend, citing Davis, that

regardless of when a PRP incurs response costs, a PRP is required

to seek a declaratory judgment in a contribution action for any

future remediation within three years of being held liable for any

type of remediation. Such an argument is self-defeating and proves

why a judgment for soil remediation does not trigger the statute of

limitations for contribution claims relating to the groundwater

remediation. The O'Neil judgment regarding soil remediation

triggered the statute of limitations for a contribution action

regarding soil remediation. Consequently, R&H sought contribution

from other PRPs for the soil remediation. See American Cyanamid v.

King Indus., Inc., 814 F. Supp. 215 (D.R.I. 1993). R&H could not,

however, seek contribution relating to the soil remediation from

the Capuanos because the Capuanos had settled with the government

regarding costs associated with soil remediation and, as discussed

earlier, settling parties are immune from contribution suits

regarding matters addressed in the settlement. See 42 U.S.C.

§ 9613(f)(2). At the time of the O'Neil judgment, R&H was also

unable to seek contribution relating to the groundwater remediation

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because it was uncertain whether groundwater remediation was likely

to occur. See Davis, 261 F.3d at 47-48 (stating that a PRP may

seek a declaratory judgment in a contribution action if the PRP is

likely to incur more than its fair share of future cleanup); see

also Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1192 (9th Cir.

2000) (stating that declaratory relief is appropriate when "there

is a substantial controversy, between parties having adverse legal

interests, of sufficient immediacy and reality to warrant"

declaratory relief (citation omitted)). Indeed, in 1988, Rhode

Island and the United States had not assessed whether there was

groundwater contamination at the Picillo site. On appeal in

O'Neil, we discussed giving Rhode Island and the EPA "time to

conduct further tests" and we discussed the possibility that "after

conducting the necessary tests, the government [could] conclude[]

[that] there was in fact no harm to the area's groundwater."

O'Neil, 883 F.2d at 183. As such, R&H could not seek a declaratory

judgment against the Capuanos after the O'Neil judgment because, at

the time of the O'Neil judgment, R&H did not have a contribution

claim, declaratory or otherwise, against the Capuanos. See Davis,

261 F.3d at 48 (stating that a PRP may seek a declaratory judgment

in a contribution action if the PRP is likely to incur more than

its fair share of future cleanup). Thus, the O'Neil judgment

pertaining to soil remediation could not trigger the statute of

limitations for a contribution action for groundwater remediation.

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 This interpretation of § 9613 comports with the

legislative history of the statute of limitations and advances

CERCLA's purpose. See Ortega v. Star-Kist Foods, Inc., 370 F.3d

124, 143 (1st Cir. 2004) ("Resort to legislative history is

appropriate where, as here, the text of a statute is susceptible to

two textually plausible interpretations.").

The legislative history indicates that § 9613

"establishes a three-year statute of limitations for the filing of

an action for contribution for response costs or damages. The

statute of limitations begins to run at the date of judgment for

recovery of response costs or damages or the date of entry of a

judicially approved settlement with respect to such costs or

damages." H.R. Rep. No. 253 (I), 99th Cong., 1st Sess., at *79

(1985). In discussing the statute of limitations, Congress

referred to § 9613(g)(3)(A) and § 9613(g)(3)(B) together. In

subsection (B), the statute of limitations is triggered by the

"entry of a judicially approved settlement with respect to such

costs or damages." 42 U.S.C. § 9613(g)(3)(B). The entry of a

judicially approved settlement provides contribution protection

only "regarding matters addressed in the settlement" and allows a

settling PRP to seek contribution within three years of that

settlement for costs incurred in the settlement. See 42 U.S.C.

§ 9613(f)(2). Similarly, a PRP has three years to seek

contribution for costs contained within a judgment. The statute of

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limitations, however, is not triggered for costs not contained

within the judgment.

Generally, the interpretation of § 9613 implicates two

competing principles. On the one hand, "CERCLA's 'essential

purpose' [is] making 'those responsible for problems caused by the

disposal of chemical poisons bear the costs and responsibility for

remedying the harmful conditions they created.'" Boyd v. Boston

Gas Co., 992 F.2d 401, 405 (1st Cir. 1993) (quoting Dedham Water

Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir.

1986)). Congress also wanted "to give potentially responsible

parties the explicit right to sue other liable or potentially

liable parties who also may be responsible for the hazardous waste

site." H.R. Rep. No. 253 (I), 99th Cong., 1st Sess., at 15 (1985)

(by enacting SARA, Congress wanted to "protect the interests and

rights of those who may be held liable for . . . clean-ups.").

On the other hand, the Supreme Court has recognized that

statutes of limitations are not disfavored, but rather "'are found

and approved in all systems of enlightened jurisprudence' [and]

represent a pervasive legislative judgment that . . . 'the right to

be free of stale claims in time comes to prevail over the right to

prosecute them.'" United States v. Kubrick, 444 U.S. 111, 117

(1979) (citations omitted). Indeed, by passing SARA, Congress

recognized that "CERCLA currently includes no explicit statute of

limitations for the filing of cost recovery actions [and SARA]

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provides for the timely filing of cost recovery actions, to assure

that evidence concerning liability and response costs is fresh and

to provide a measure of finality to affected responsible parties."

H.R. Rep. No. 253 (I), 99th Cong., 1st Sess., at 15 (1985).

Defining "such costs" to identify those costs contained

in a judgment upholds both principles. First, it ensures those

responsible for environmental damage bear the costs for remedying

the harmful conditions they created. An environmental cleanup

takes many years to complete. To make the cleanup manageable, it

is done in phases. If an initial cost recovery action triggered

the statute of limitations for the recovery of any costs in future

phases, PRPs could manipulate CERCLA to avoid paying their share.

Indeed, by settling with the government for the soil remediation,

the Capuanos received contribution protection for the soil

remediation only. At the time of the soil remediation, the

likelihood of a groundwater cleanup was unknown. Allowing the

immunity the Capuanos's received for the soil remediation to

effectively shield them from contribution relating to future phases

of the cleanup would provide the Capuanos protection for which they

never paid -- a result in conflict with the purpose of CERCLA.

Our interpretation of § 9613 also ensures that evidence

concerning liability and response costs is fresh and provides a

measure of finality to affected responsible parties. To limit

"such costs" to those costs contained in a judgment results in a

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contribution action tracking the statute of limitations for cost

recovery actions. In a cost recovery action, any actions after a

declaratory judgment "must be commenced no later than 3 years after

the date of completion of all response action." 42 U.S.C. § 9613

(g)(2)(B). Thus, the latest a judgment for the recovery of costs

could occur is three years after the completion of a response

action. A PRP would then have three years to commence a

contribution action. The workings of 42 U.S.C. § 9613, therefore,

ensure that evidence concerning liability and response costs is

fresh.

B. Res judicata

The Capuanos argue that, under the doctrine of res

judicata, R&H is precluded from seeking contribution against them.

"The applicability of the doctrine of res judicata is a question of

law subject to plenary review." Bay State HMO Mgmt., Inc. v.

Tingley Sys., Inc., 181 F.3d 174, 177 (1st Cir. 1999). Under the

doctrine of res judicata, "a final judgment on the merits of an

action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action." Allen

v. McCurry, 449 U.S. 90, 94 (1980) (citation omitted). "For a

claim to be precluded, there must be: (1) a final judgment on the

merits in an earlier action; (2) sufficient identity between the

causes of action asserted in the earlier and later suits; and (3)

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sufficient identity between the parties in the two suits." Bay

State, 181 F.3d at 177.

The Capuanos first argue that R&H cannot seek

contribution from them in this case because R&H failed to seek

contribution from them in the King Industries case. See King

Indus., Inc., 814 F. Supp. 215. The King Industries case was filed

after R&H was found liable in O'Neil. In R&H's Second Amended

Complaint in King Industries, R&H alleged that the defendants were

"jointly and severally liable to the plaintiffs for contribution

. . . [for] past and future response costs." R&H entered into

multiple settlement agreements and dismissal agreements, approved

by the district court, with most of the parties sued in King

Industries. See King Indus., Inc., 814 F. Supp. 215. Some of the

settlement agreements included dismissals with prejudice. The

Capuanos contend that the dismissals with prejudice were judgments

on the merits and therefore the doctrine of res judicata should

preclude the suit before us from proceeding. We disagree for

several reasons.

It is true that "a voluntary dismissal with prejudice is

ordinarily deemed a final judgment that satisfies the res judicata

criterion." United States v. Cunan, 156 F.3d 110, 114 (1st Cir.

1998). But, a dismissal with prejudice contained in a consent

decree "is not a ruling on the merits . . . [that] applies to

others under the law of claim preclusion." Langton v. Hogan, 71

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F.3d 930, 935 (1st Cir. 1995) (emphasis added). The Capuanos were

not defendants in King Industries and were not parties to any of

the settlement agreements. Therefore, the dismissal agreements do

not have a res judicata effect over claims against the Capuanos.

Second, at the time of the King Industries suit, R&H

could not pursue a claim against the Capuanos because the

groundwater remediation had not yet occurred and the Capuanos had

contribution immunity for claims relating to the soil remediation.

"[R]es judicata will not attach if the claim asserted in the second

suit could not have been asserted in the first." Mass. Sch. of Law

at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 38 (1st Cir. 1998);

González v. Banco Cent. Corp., 27 F.3d 751, 756 (1st Cir. 1994)

(stating that "principles of res judicata will bar all claims that

either were or could have been asserted in the initial action.").

The Capuanos also argue that R&H is precluded from

seeking contribution because of Fed. R. Civ. P. 41(a)(1), also

known as the "two dismissal" rule. This Rule states that "an

action may be dismissed by the plaintiff without order of court

. . . [and] the dismissal is without prejudice, except that a

notice of dismissal operates as an adjudication upon the merits

when filed by a plaintiff who has once dismissed . . . an action

based on or including the same claim." R&H dismissed two cases:

the King Industries case and a 1995 contribution lawsuit against

the Capuanos filed in the District Court of Rhode Island.

-22-
Nonetheless, the "two dismissal" rule does not apply to this case

because the dismissal in the King Industries case does not count as

a dismissal for purposes of this rule as applied to the Capuanos.

The "two dismissal" rule "is not applicable unless the defendants

are the same or substantially the same or in privity in both

actions." 5 Moore's Federal Practice § 41.04 (2d ed. 1996). The

Capuanos were not defendants in King Industries, nor were they in

privity with the defendants in King Industries. See generally

González, 27 F.3d at 757-63. As a result, the "two dismissal" rule

does not preclude R&H's claims against the Capuanos.

C. Contribution Immunity

In 1988, the Capuanos entered settlement agreements with

the United States and Rhode Island. In return for contribution

immunity, the Capuanos paid $1,500,000 to the United States and

$500,000 to Rhode Island. The Capuanos argue that their Consent

Decree provides contribution immunity against R&H's contribution

claims.3 The Capuanos' settlement agreement provided immunity for

"future liability" for past response costs, but it did not provide

immunity for claims related to "groundwater protection or

remediation." The Capuanos argue that R&H failed to prove that the

money R&H paid to the United States, and for which R&H now seeks

3
The Capuanos also argue that their settlement agreements
prohibits all future contribution claims. The Capuanos abandon
this argument, however, after conceding that the "four corners" of
the Consent Decree does not support it.

-23-
contribution, was for groundwater protection or remediation. We

disagree. The Capuanos' argument is nothing more than creative

word play. According to the Capuanos, R&H settled with the

government for "past response costs." R&H's "past response costs"

are costs incurred by the United States through October 25, 1995.

Thus, R&H's "past response costs" would be "future liability" for

past response costs as it pertains to the Capuanos and the Capuanos

have contribution protection for future liability for past response

costs.

Regardless of how the Capuanos choose to phrase the costs

incurred, it is undisputed that the four corners of the Capuanos

Consent Decree does not provide contribution immunity for costs

relating to groundwater protection or remediation. At trial, R&H

introduced documents detailing the work performed by the United

States in regard to the groundwater remediation and introduced the

testimony of an expert that the cost of the groundwater Remedial

Investigation ("RI") and Feasibility Study ("FS") exceeded $4.7

million. The expert testified that the groundwater RI/FS was

different from the soil RI/FS and the $4.7 million did not include

any costs dealing with the soil remediation. R&H ultimately

settled with the United States for $4.35 million and is seeking

contribution for a portion of that amount. The evidence showed,

therefore, that the costs R&H paid to the United States, for which

it now seeks contribution, were for groundwater protection and

-24-
remediation, and the Capuanos do not have contribution immunity for

costs relating to groundwater protection or remediation.

In the alternative, the Capuanos argue that even if there

was proof showing that R&H is seeking contribution for the RI/FS

relating to the groundwater, a RI/FS is part of a "removal action"

and is not "groundwater protection or remediation" and thus it is

not a cost that was excluded from the Capuanos' Consent Decree.

The RI/FS is part of the groundwater protection and

remediation process. "The purpose of the . . . (RI/FS) is to

assess site conditions and evaluate alternatives to the extent

necessary to select a remedy. Developing and conducting an RI/FS

generally includes the following activities: project scoping, data

collection, risk assessment, treatability studies, and analysis of

alternatives. " 40 CFR 300.430. Since the RI/FS is the first step

in groundwater protection and remediation, the RI/FS is not a cost

excluded by this Consent Decree.

III. Issues relating to the trial

In reviewing the appeal of a bench trial, we review the

district court's legal conclusions de novo and its factual findings

for clear error. Cariglia v. Hertz Equip. Rental Corp., 363 F.3d

77, 82 (1st Cir. 2004).

-25-
A. Fed. R. Civ. P. 19 joinder

The Capuanos argued to the district court that Fed. R.

Civ. P. 19(a) required all non-settling PRPs to be joined as

"necessary" parties. The district court held that Rule 19 does not

require joinder of other known solvent PRPs. In their appellate

brief, the Capuanos mention the Rule 19 issue, but do not provide

any arguments as to why Rule 19 requires other PRPs to be joined.

Since the Capuanos failed to develop any argument, we consider this

issue waived. See United States v. Bongiorno, 106 F.3d 1027, 1034

(1st Cir. 1997) ("We have steadfastly deemed waived issues raised

on appeal in a perfunctory manner, not accompanied by developed

argumentation.").

B. Allocation of shares of liability

After trial, the district court concluded that the

Capuanos, as operators, were "liable for the total volume (100%) of

waste dumped at the Picillo site." The Capuanos were also "liable

for a share of the waste dumped at the Picillo site as arrangers

[and they were] liable as transporters for 7.94% of the total

waste delivered to the site." The district court concluded that

R&H was liable for 3.23% of the waste.

Before allocating percentage shares of liability, the

district court informed the Capuanos that it would "consider the

relative fault of non-parties in arriving at an equitable

allocation of liability." The district court did not ultimately

-26-
consider the relative fault of non-parties when allocating

liability because the parties failed to present evidence concerning

the relative fault of non-parties. According to the district

court, the Capuanos' "decision not to present any evidence that may

have mitigated their liability . . . is one they will have to live

with." The Capuanos, not wanting to "live with" it, appealed the

issue, arguing that a district court cannot make a proper

allocation unless it accounts for the shares of all PRPs,

regardless of whether the PRPs are parties to the action and

regardless of whether evidence was presented regarding the absent

PRP's actions.

In resolving contribution claims, a district court has

broad discretion to "allocate response costs among liable parties

using such equitable factors as the court determines are

appropriate." 42 U.S.C. § 9613(f)(1). It is not unprecedented for

a district court to reason "that a fair and equitable allocation

[can] only be achieved by comparing [a defendant's] role as a PRP

to other PRPs." United States v. Consol. Coal Co., 345 F.3d 409,

414 (6th Cir. 2003). However, the decision to allocate response

costs among the named parties or all parties "is within the Court's

discretion to adopt and apply." United States v. Consol. Coal Co.,

184 F. Supp. 2d 723, 745 (S.D. Ohio 2002). Indeed, in some cases

apportioning responsibility among all PRPs is not an attractive

option as it could "complicate an already difficult allocation

-27-
process or saddle firms . . . with excess costs" and "might take

years of trial time." Akzo Nobel Coatings, Inc. v. Aigner Corp.,

197 F.3d 302, 306 (7th Cir. 1999).

R&H provided the district court with evidence indicating

that the Capuanos were liable, as operators, for 100% of the waste

at the Picillo site. The district court did not abuse its

discretion in reaching such a conclusion since the district court

found the evidence to be "credible" and, more important for the

purposes of this discussion, "unrefuted." See, e.g., United States

v. Davis, 31 F. Supp. 2d at 68 (allocating 100% liability among the

parties to the action, even though many other PRPs existed).

C. Accounting for settlements of other PRPs

The district court concluded that R&H paid the United

States government $4,636,725 for groundwater related cleanup costs.

By using a pro tanto approach and subtracting the $382,807 R&H

received in settlements, the district court concluded that the net

total R&H paid to the United States for the groundwater cleanup was

$4,253,918. Since R&H's share of the cleanup, based upon 3.23% of

liability, was $1,602,080, the Capuanos were held liable for

$2,651,838 -- the amount R&H paid in excess of their share.

The Capuanos argue that the district court erred in

making this calculation because the district court should have

determined the equitable pro-rata share of liability of the

settling PRPs rather than deducting the monetary amount of the

-28-
settlements from R&H's costs. CERCLA, as amended by SARA, states

that "[a] person who has resolved its liability to the United

States or a State . . . does not discharge any of the other

potentially liable persons unless its terms so provide, but it

reduces the potential liability of the others by the amount of the

settlement." 42 U.S.C. § 9613(f)(2) (emphasis added). We have

held that this "plain language admits of no construction other than

a dollar-for-dollar reduction of the aggregate liability." United

States v. Cannons Eng. Corp., 899 F.2d 79, 92 (1st Cir. 1990).

CERCLA also allows a private party to seek contribution

from non-settling parties, but, unlike a settlement with the United

States or a State, CERCLA does not instruct a court as to how a

settlement agreement between two private parties affects the

contribution liability of non-settling parties. See 42 U.S.C.

§ 9613(f)(1). Rather, CERCLA charges a district court to "allocate

response costs among liable parties using such equitable factors as

the court determines are appropriate." 42 U.S.C. § 9613(f)(1).

We read this provision to give the district court

discretion regarding the most equitable method of accounting for

settling parties. We believe that the district court did not abuse

its discretion by applying the pro tanto approach given the

circumstances of this case. Courts that have addressed the issue

of a private-party contribution suit involving settling parties

have debated between two approaches. The first approach, the claim

-29-
reduction approach, advanced by the Capuanos, follows the method of

the Uniform Comparative Fault Act ("UCFA"), which provides that the

liability of non-settlers is reduced by the proportionate share of

fault attributed to the settling parties. UCFA § 2.4 The second

approach, the pro tanto approach, follows the method of the Uniform

Contribution Among Tortfeasors Act ("UCATA"), which reduces the

liability of litigants by the dollar amount of third-party

settlements. UCATA § 4; see Akzo Nobel Coatings, Inc., 197 F.3d at

307-08.

Both of these approaches have distinct advantages and

disadvantages. The claim reduction approach "requires the court to

determine the responsibility of all firms that have settled, as

well as those still involved in the litigation." Id. at 307. Such

a process can lead to a "complex and unproductive inquiry" and may

be unrealistic in situations where waste was deposited by hundreds

of polluters for years, if not decades, prior to the litigation.

Id. The claim reduction approach has the benefit, however, of

4
See Pneumo Abex Corp. v. Bessemer & Lake Erie R.R. Co., 936 F.
Supp. 1274 (E.D. Va. 1996); United States v. GenCorp, Inc., 935 F.
Supp. 928 (N.D. Ohio 1996); Hillsborough Co. v. A & E Road Oiling
Serv., Inc., 853 F. Supp. 1402 (M.D. Fla. 1994); Atlantic Richfield
Co. v. American Airlines, Inc., 836 F. Supp. 763 (N.D. Okla. 1993);
Barton Solvents v. Southwest Petro-Chem., Inc., 834 F. Supp. 342
(D. Kan. 1993); City & County of Denver v. Adolph Coors Co., 829 F.
Supp. 340 (D. Colo. 1993); United States v. SCA Serv. of Ind.,
Inc., 827 F. Supp. 526 (N.D. Ind. 1993); King Indus., Inc., 814 F.
Supp. at 215; Comerica Bank-Detroit v. Allen Indus., Inc., 769 F.
Supp. 1408 (E.D. Mich. 1991).

-30-
ensuring, in theory, that damages are apportioned equitably among

the liable parties.5

In contrast, under the pro tanto approach "a litigating

defendant's liability will frequently differ from its equitable

share, because a settlement with one defendant for less than its

equitable share requires the nonsettling defendant to pay more than

its share." McDermott, Inc. v. AmClyde, 511 U.S. 202, 212 (1994);

see Lewis A. Kornhauser & Richard L. Revesz, Settlements Under

Joint and Several Liability, 68 N.Y.U. L. Rev. 427, 474 (1993).

Nonetheless, the pro tanto approach is easier to administer and is

the approach adopted by CERCLA when there is a settlement between

a person and the United States or a State. See 42 U.S.C. § 9613

(f)(2).

The different approaches to accounting for settling

parties can produce different results and, for uniformity purposes,

it may be wise to choose one of these two approaches.

See McDermott, Inc., 511 U.S. at 207 (granting certiorari because

the courts of appeals had differing approaches for determining how

a settlement with less than all of the defendants in an admiralty

5
This benefit varies. For example, assume there are four PRPs,
labelled PRP A-D, and that PRP A settled with the government for
$100,000. Also assume PRP A settled with PRP B for $20,000, but
went to trial against PRP C & D. If, at trial, the court
determined that PRP B was responsible for $40,000, then PRP A, C
& D would be responsible for the $60,000 total remaining. The
$20,000 not awarded would be borne entirely by PRP A. In contrast,
had PRP A settled with PRP B for $50,000, then PRP A would
experience a $10,000 windfall.

-31-
case affect the liability of non-settling defendants). At this

juncture, however, we decline to do so. CERCLA provides the

district court with the discretion to allocate response costs among

liable parties, and we believe that determining how a settlement

affects the liability of the non-settling parties is within that

discretion. While it is not unimaginable that the use of one of

these approaches might produce a result so inequitable that it

would constitute an abuse of discretion, in this case it did not

and therefore we do not disturb the district court's utilization of

the pro tanto approach.

D. The district court's factual findings

The Capuanos contend that the district court committed

clear error by basing its findings of fact on the deposition

testimony of Warren Picillo, Sr., rather than on the deposition

testimony of Jack and Daniel Capuano. Ultimately, "weighing the

evidence and assessing the witnesses' credibility is uniquely the

province of the district court" and when there are "two permissible

views of the evidence . . . the factfinder's choice between those

competing views cannot be clearly erroneous." Fed. Refinance Co.

Inc. v. Klock, 352 F.3d 16, 29 (1st Cir. 2003) (citations omitted).

The task of assessing witness credibility in this case was a

difficult one as both sides produced testimony calling for

scrupulous credibility evaluation. On the one hand, the testimony

contained in Warren Picillo's deposition was tainted by the fact

-32-
that he had attempted to extort money from the Capuanos in exchange

for his silence or favorable testimony. On the other hand, the

testimony of Jack and Daniel Capuano was, in the district court's

words, "wholly incredible" as they openly admitted that their prior

deposition testimony contained "carefully constructed lies." In

the end, the district court had to determine whose testimony was

believable by examining the testimony of all the parties in

relation to the documentary evidence. After conducting the

requisite inquiry, we conclude that the district court did not

commit clear error in its factual findings.

E. Transporter Liability

The Capuanos appeal the district court's conclusion that

the Capuanos transported hazardous waste to the Picillo site.

CERCLA imposes transporter liability on "any person who accepts or

accepted any hazardous substances for transport to disposal or

treatment facilities, incineration vessels or sites selected by

such person" from which there is a release of hazardous substances.

42 U.S.C. § 9607(a)(4). The district court concluded that United

Sanitation and its officers, Jack and Daniel Capuano, were liable

as transporters for 7.94% of the waste delivered to the Picillo

site since Jack and Daniel selected the Picillo site and United

Transportation transported 960 55-gallon drums of hazardous waste

to the site.

-33-
 The Capuanos argue that the district court's finding was

clearly erroneous because (1) United Sanitation did not transport

hazardous waste; (2) United Sanitation and the Capuanos had no

trucks capable of transporting hazardous waste; and (3) the only

Capuano remotely identified with hazardous waste disposal was

Anthony Capuano. After examining the record, we find that the

district court's conclusion that the Capuanos were "transporters"

was not clearly erroneous.

First, Picillo testified that "the Capuanos themselves

brought their own waste down [to the Picillo site] on their own

trucks" and that some of the barrels "came from Danny Capuano's

place." Although this testimony supports the finding that the

Capuanos physically transported some of the waste, we have

interpreted CERCLA not to impose liability on a transporter who

merely follows the directives of a generator. See Davis, 261 F.3d

at 55. Rather, for CERCLA liability to attach, a transporter must

"actively participate in the selection decision or have substantial

input in that decision." Id. In this case, the Capuanos had

substantial input in the decision, often making the final

determination whether to allow waste to be dumped at their own land

fill or to send it on to the Picillo site. Further, the Capuanos

arranged for employees of the Scientific Chemical Corporation to

visit the Picillo site as a possible waste dumping location. After

-34-
viewing the site, the visitors concluded "this would be an ideal

spot."

Second, according to deposition and trial testimony,

trucks carrying hazardous waste would arrive at the Capuanos place

of business only to be redirected by the Capuanos, or their

employee Louie Falcone, to the Picillo site. Indeed, since the

Picillo site was difficult to find, the Capuanos would come to the

Picillo site "in a pick-up truck in front of the big trucks and

show them where the farm was and show them where the dump was, to

dump" the hazardous waste. See 42 U.S.C. § 9601(26) (defining

"transportation" as "the movement of a hazardous substance by any

mode").

Third, when the drivers arrived at the Picillo site, they

would give Picillo, Sr. a bill of lading. At the end of the week,

Picillo, Sr. would take the bills of lading to the Capuanos to get

paid. The record confirms that Mr. Picillo received United

Sanitation checks signed by Jack Capuano and Dan Capuano. Although

these payments do not, in and of themselves, prove that the

Capuanos transported the waste, the payments do support the

inference that the Capuanos were involved with the transportation

of waste to the Picillo site.

F. Operator Liability

The Capuanos appeal the district court's conclusion that

the Capuanos were liable as operators of the Picillo site. CERCLA

-35-
imposes liability on "the owner and operator of a vessel or a

facility." 42 U.S.C. § 9607(a)(2). "The phrase 'owner and

operator' is defined only by tautology . . . as 'any person owning

or operating’ a facility, § 9601(20)(A)(ii). . . . " United States

v. Bestfoods, 524 U.S. 51, 56 (1998). The Supreme Court has

clarified that, "under CERCLA, an operator is simply someone who

directs the workings of, manages, or conducts the affairs of a

facility." Id. at 66. More specifically, "an operator must

manage, direct, or conduct operations specifically related to

pollution, that is, operations having to do with the leakage or

disposal of hazardous waste, or decisions about compliance with

environmental regulations." Id. at 66-67.

The district court's conclusion that the Capuanos were

operators of the site was not clearly erroneous. First, the

Capuanos approached Warren Picillo with the idea of dumping on his

pig farm. Once Warren agreed, he gave the Capuanos exclusive

disposal rights at the site and the Capuanos hired a bulldozer to

clear the trees and "dig a big, big hole." The Capuanos walked the

operator of the bull-dozer to the site and "showed him what to do

and how to do it." Such actions are consistent with those of an

operator of a facility "who directs the workings of, manages, or

conducts the affairs of a facility." Id. at 56 (1999).

Second, as discussed earlier, the Capuanos directed the

hazardous waste to the Picillo site. If the drivers of the waste

-36-
did not know how to reach the site, the Capuanos would drive them

to the site so they could dump the waste. Further, the Capuanos

managed and conducted the affairs of the Picillo site by organizing

and implementing its payment structure. The waste generators paid

the Capuanos to dispose of their waste and then the Capuanos would

give Warren Picillo a share of the money. "[O]perator liability

requires an ultimate finding of . . . involvement with operations

having to do with the leakage or disposal of hazardous waste."

United States v. Kayser-Roth Corp., 272 F.3d 89, 102 (1st Cir.

2001) (internal quotations and citation omitted). The fact that

the Capuanos developed the idea for using the site, prepared the

site for dumping, arranged for waste to be dumped at the site,

showed transporters where to dump on the site, and collected

payment and transmitted a share to Warren Picillo for dumping at

the site demonstrates that the district court's conclusion that the

Capuanos were liable as operators of the site was not clearly

erroneous.

G. Arranger Liability

The Capuanos appeal the district court's conclusion that

the Capuanos were liable as arrangers. The district court

concluded that the Capuanos were arrangers because their conduct

"constituted active participation as a broker in the disposal of

their customer's waste." The Capuanos argue that arranger

liability can only be imposed on a party that owned or possessed

-37-
hazardous materials, not on a party that brokered the disposal of

hazardous material. We review whether arranger liability can

attach to a party that brokered the disposal of waste de novo as

such review entails statutory interpretation of 42 U.S.C. § 9607

(3). See United Techs. Corp., 33 F.3d at 98. We review whether

the Capuanos acted as a broker for the disposal of hazardous waste

for clear error.

An arranger is defined as

any person who by contract, agreement, or
otherwise arranged for disposal or treatment,
or arranged with a transporter for transport
for disposal or treatment, of hazardous
substances owned or possessed by such person,
by any other party or entity, at any facility
. . . owned or operated by another party or
entity and containing such hazardous
substances, . . . .

42 U.S.C. § 9607(3) (emphasis added). We begin our inquiry by

examining the plain language of the statute. This portion of 42

U.S.C. § 9607(3) can be read two ways, depending on which words the

clause "by any other party or entity" modifies. First, this clause

can be read to modify the preceding words "owned or possessed by

such persons," which would make liable any person who arranged for

the disposal of a hazardous substance "owned or possessed by such

person [or] by any other party or entity." See United States v.

Mottolo, 629 F. Supp. 56, 60 (D.N.H. 1984) (holding that the

arranger liability "provision clearly states that the person who

arranges for disposal or transport for disposal of hazardous

-38-
substances need not own or possess the waste"). Or, second, the

clause can be read to modify the words "disposal or treatment,"

which would make the sentence read "any person who . . . arranged

for disposal or treatment . . . by any other party or entity." The

sentence structure of § 9607(3) makes it clear that the latter

interpretation is the correct one. The clause "by any other party

or entity" clarifies that, for arranger liability to attach, the

disposal or treatment must be performed by another party or entity,

as was the case here.

Some courts have held parties liable as arrangers even if

they did not actually own or physically possess the hazardous waste

so long as they had the authority to control the handling and

disposal of the hazardous substances. See United States v.

Northeastern Pharm. & Chem. Co., 810 F.2d 726, 743 (8th Cir. 1986)

(holding that "requiring proof of personal ownership or actual

physical possession of hazardous substances as a precondition of

liability . . . would be inconsistent with the broad remedial

purposes of CERCLA"); Gould, Inc. v. A.M. Battery & Tire Serv., 954

F. Supp. 1020 (M.D. Pa. 1997); New York v. SCA Servs., Inc., 844 F.

Supp. 926 (S.D.N.Y. 1994); Emergency Technical Servs. Corp. v.

Morton Int'l, 1993 U.S. Dist. LEXIS 8018 (N.D. Il. 1993); United

States v. Bliss, 667 F. Supp. 1298 (E.D. Mo. 1987); Mottolo, 629 F.

Supp. at 60; see also Sea Lion v. Wall Chem. Corp., 974 F. Supp.

589, 596 (S.D. Tex. 1996) (noting that "under definitive and well

-39-
reasoned authorities, the ownership definition [for arranger

liability] is quite broad and includes constructive possession").

Most of these cases involved a corporate officer of a generator of

hazardous waste claiming he could not be liable as an arranger

because he did not personally own or possess the waste.

Northeastern Pharm., 810 F.2d at 746 (holding that a corporate

officer is liable as an arranger for making corporate decisions

about the handling and disposal of hazardous substances); Mottolo,

629 F. Supp. at 60 (discussing the liability of a corporate

officer). Thus, these holdings reflect the idea that a corporate

officer can be liable as an arranger if he controls the decision to

dispose of the waste on behalf of his company that owns the waste.

These cases are distinguishable from the case at hand because this

case does not involve corporate officers; rather it involves a

party that does not own the waste and that arranges for the

disposal of others' waste.

The case of SCA Services, 844 F. Supp. 926, although

similar to this case, is also distinguishable. In SCA Services,

a transporter accepted waste for disposal. Subsequent to the

pickup, the transporter learned it could not dispose of the waste

at its designated site, so the transporter arranged for a different

transporter to pick up the waste and dispose of it. Id. at 928.

In SCA Services, the first transporter went beyond its role as

transporter and effectively became an arranger by taking possession

-40-
of the waste and making arrangements for the waste to be picked up

and disposed of by another company. Id. Unlike the transporter in

SCA Services, though, the Capuanos did not take possession of the

waste before arranging to have it disposed by another transporter.

There is a category of cases, however, that involves

defendants similar to the Capuanos, brokers who arranged for a

generator's waste to be disposed of illegally. See Gould, Inc.

954 F. Supp. 1020 (a broker who arranged for the disposal of waste,

made contact with the site, and received a profit is liable as an

arranger); Emergency Technical, 1993 U.S. Dist. LEXIS 8018 (holding

that a broker who was actively involved in the timing, manner and

location of the disposal of hazardous substances could be liable as

an arranger); Bliss, 667 F. Supp. 1298 (broker liable as an

arranger because controlled the place and manner of disposal).

These cases involved brokers who did not own or transport hazardous

waste but controlled the hazardous waste's disposal. These courts

held that a broker could be liable as an arranger, and we agree.

When a broker arranges for the disposal of hazardous

waste and it does so by exercising control over the waste, such

control can amount to constructive possession of the waste. Were

we to interpret CERCLA not to impose liability on a party that

constructively possessed hazardous waste and arranged for its

illegal disposal, then the statute would be subject to a loophole

through which brokers and middlemen could escape liability by

-41-
arranging to have hazardous waste picked up and deposited at an

illegal site. In addition to escaping liability, the broker would

also profit by charging a fee for his services. Indeed, the

Capuanos earned most of their profits in this manner. The Capuanos

found a site, the Picillo pig farm, where hazardous waste could be

dumped illegally. They then arranged for the waste to be picked up

from various waste generators across New England and dumped on the

illegal site. A broker should not be able to profit from such

activity, much less escape liability. We therefore hold that a

broker can be liable as an arranger if the broker controls the

disposal of the waste.

Since the Capuanos, as discussed above, selected,

secured, and directed the waste to the Picillo site, all for a fee,

it was not clearly erroneous for the district court to conclude

that the Capuanos were liable as arrangers given our interpretation

of the statute.

IV. Post-trial issues

A. Measure of contribution entitlement

The district court entered a monetary judgment in favor

of R&H based upon the costs associated with the groundwater

cleanup. The Capuanos contend that any contribution entitlement

should have been based on aggregate response costs, including

monies expended on soil remediation. We review the district

-42-
court's legal conclusion on this issue de novo. Cariglia v. Hertz

Equip. Rental Corp., 363 F.3d 77, 82 (1st Cir. 2004).

In interpreting CERCLA's contribution provisions, this

circuit "give[s] the word 'contribution' its generally accepted

legal meaning." Browning-Ferris Indus., 33 F.3d at 99. When

applied to an environmental case, the term contribution "refers to

an action by a responsible party to recover from another

responsible party that portion of its costs that are in excess of

its pro rata share of the aggregate response costs." Id. at 103

(emphasis added). Focusing on the words "aggregate response

costs," the Capuanos contend that the district court erred by not

calculating the soil remediation costs together with the

groundwater remediation costs. We disagree. Contribution is the

right "of one who has discharged a common liability to recover of

another also liable, the aliquot portion which he ought to pay or

bear." Id. at 99 (quoting Black's Law Dictionary 399 (6th ed.

1990)). In the action before the district court, the Capuanos and

R&H shared common liability for the groundwater remediation only.

Since the Capuanos had contribution immunity for costs relating to

the soil remediation, it was not error for the district court to

conclude that the costs associated with the soil remediation were

not relevant.

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B. Awarding of contribution entitlement

The district court determined that R&H's share of

liability for its hazardous waste at the Picillo site was 3.23%.

R&H paid the United States $4,636,725 in groundwater cleanup costs

and received $382,807 in settlements. Thus, R&H's total net

payment for the groundwater cleanup to the United States was

$4,253,918.

The district court concluded that the total estimated

cost of the groundwater cleanup would be $49,600,000. By

multiplying the total estimated cost of the cleanup ($49,600,000)

by R&H's share of responsibility (3.23%), the district court

concluded that R&H's share of payment for the groundwater

remediation should have been $1,602,080. Since R&H had already

paid $4,253,918, the district court concluded that the Capuanos

were liable for the $2,651,838 that R&H paid over its fair share

($4,253,918 - $1,602,080).

The Capuanos contend that the district court should not

have entered a monetary judgment since the cost of the groundwater

cleanup is unknown and, therefore, it is impossible to calculate

whether R&H paid an amount in excess of its pro rata share. It is

firmly established in this circuit that a party may seek

declaratory relief in a contribution action. Davis, 261 F.3d at

47. By allowing such relief, parties "will know their share of

costs before they are incurred." Id. (citing Boeing Co., 207 F.3d

-44-
at 1191). Indeed, "the more liability can be limited and

quantified, the more practical it is for a party to budget and

borrow to finance it." Boeing Co., 207 F.3d at 1191. Taking this

logic one step further, the district court in this case entertained

estimates of the costs of the groundwater remedy and entered a

judgment based on the submitted evidence. In so doing, the

district court did not abuse its discretion.

R&H presented the district court with three alternatives

for calculating estimated response costs. First, R&H proposed that

the common liability was $5,969,202.52, based upon the response

costs the United States incurred until this litigation in the

district court. As the district court correctly noted, this amount

is only a small fraction of the costs expected to be incurred in

the future. Second, R&H submitted the total costs for the

groundwater remedy as estimated by the EPA's Record of Decision,

which was $22,300,000. Last, R&H submitted the estimate provided

by the Ashland Group, a group of PRPs that has sued R&H for

contribution in the United States District Court for the District

of New Jersey. This estimate was $49,600,000.

In some cases, it may be impossible to estimate the total

cost of a remediation. In other cases, the available estimates may

be too outdated to make an informed calculation. In this case,

however, the district court was presented with a recent estimate

-45-
provided by a group of companies performing the groundwater remedy.

The Capuanos did not challenge the accuracy of this estimate.

The district court acted consistent with CERCLA's goals

by entering a monetary judgment before the remediation was

completed. Entering a monetary judgment fosters an incentive for

timely settlements and provides finality for those parties that

choose to settle. See United Techs. Corp., 33 F.3d at 103 (stating

that CERCLA "was designed to encourage settlements and provide PRPs

a measure of finality in return for their willingness to settle").

By settling with the United States, a PRP pays a portion

of the response costs. By seeking contribution from other PRPs, a

settling PRP seeks to recoup the portion it paid in excess of its

pro rata share. If a PRP is unable to receive a monetary judgment

until the remediation process is complete, then a PRP may be

reluctant to settle knowing it will be unable to recoup any money

it paid in excess of its pro rata share until the remediation is

completed. In contrast, by not settling, a PRP could be held

liable for a percentage of the cleanup in a contribution action but

forestall payment of that percentage until the cleanup is

completed. Thus, a non-settler could avoid payment to the PRP that

did settle for many years, if not decades. Such an approach favors

a non-settling PRP over a settling PRP, the antithesis of what

CERCLA was enacted to achieve.

-46-
 Entering a monetary judgment is a double-edged sword for

both parties. For example, in this case, if the response costs are

more than estimated, R&H will receive a windfall at the expense of

the Capuanos. In contrast, if the response costs are less than

estimated, the Capuanos will receive a windfall at the expense of

R&H. In a CERCLA action, the district court is afforded broad

discretion in apportioning liability because it is very difficult

to determine accurately the liability of each party. As a result,

one party may be forced to pay more than its equitable share. See,

e.g., Davis, 261 F.3d at 48-49; United Techs. Corp., 33 F.3d at

102-03; United States v. Charles George Trucking, Inc., 34 F.3d

1081, 1086 (1st Cir. 1994). The fact that the monetary judgment

is entered based on an estimate, therefore, does not on its own

make that judgment unjust. The district court entertained many

possibilities regarding the estimate of total response costs and

both sides had opportunities to suggest whether the estimated

response cost was too low or too high. After reviewing the

possible estimated costs, the district court concluded that

$49,600,000 was the best estimate of total response costs and

entered a judgment using that estimate. We believe it was not

error to do so.

C. Joint and Several Liability

The district court held that "judgment shall enter

against Defendants Jack and Daniel Capuano, and United Sanitation"

-47-
in the amount of $2,651,838. The Capuanos briefly argue that the

district court erred by entering judgment in this manner and that

the district court should have allocated a percentage of

responsibility to Jack and Daniel individually for which they would

have been severally liable. As we stated previously, "we have

steadfastly deemed waived issues raised on appeal in a perfunctory

manner, not accompanied by developed argumentation." See

Bongiorno, 106 F.3d at 1034. The dearth of argumentation not only

deprives this court an explanation of the basis of an argument, it

also confuses one's adversary. Indeed, the Capuanos brief

argumentation on this point produced a tangential line of

argumentation from R&H in response, resulting in the proverbial two

ships passing in the night. Therefore, we will not address this

issue and consider it waived.

D. Pre-judgment interest

The district court awarded R&H prejudgment interest

citing the language of 42 U.S.C. § 9607, which provides that "[t]he

amounts recoverable in an action under this section shall include

interest on the amounts recoverable . . . . Such interest shall

accrue from the later of (i) the date payment of a specified amount

is demanded in writing, or (ii) the date of the expenditure

concerned." 42 U.S.C. § 9607(a). The Capuanos argue that the

district court's reliance on § 9607 was misplaced since this action

was brought pursuant to § 9613, not § 9607. The prejudgment

-48-
interest statute specifically limits itself to amounts recoverable

"under this section." Reviewing this question of statutory

interpretation de novo, we affirm the awarding of prejudgment

interest. See United Techs. Corp., 33 F.3d at 98.

Prior to the passage of SARA, there was "much uncertainty

. . . as to whether a responsible party could recover from other

PRPs the portion of its cleanup costs that exceeded its pro rata

share." Id., at 100 (citation omitted). This uncertainty ended

when Congress adopted 42 U.S.C. § 9613. "A principal goal of

[this] new section 9613 was to clarify and confirm the right of a

person held jointly and severally liable under CERCLA to seek

contribution from other potentially responsible parties . . . ."

Id. (quotation marks and citations omitted). Thus, § 9613 begins

by incorporating provisions of § 9607. See 42 U.S.C. § 9613(f)(1)

(stating that "[a]ny person may seek contribution from any other

person who is liable or potentially liable under section 107(a) [42

U.S.C.S. § 9607(a)]"). Since the prejudgment interest provision of

§ 9607 refers to "actions under this section" and because § 9613(f)

incorporates the liability provisions of § 9607, an action for

contribution also incorporates the prejudgment interest provision.

See Consol. Coal Co., 345 F.3d at 415; Goodrich Corp. v. Town of

Middlesbury, 311 F.3d 154, 177 (2d Cir. 2002); Bancamerica

Commercial Corp., v. Mosher Steel of Kansas, Inc., 100 F.3d 792,

801 (10th Cir. 1996). For some purposes, such as statutes of

-49-
limitations, § 9613 and § 9607 are "distinct, non-overlapping

anodynes." United Techs. Corp., 33 F.3d at 103 (distinguishing

between the different statutes of limitations for a § 9607 and a

§ 9613 action). But, since § 9613 incorporates the liability

provision of § 9607, we believe it also incorporates the

prejudgment interest provision.

As the Tenth Circuit stated, and the Second Circuit

agreed, such a conclusion is consistent with both logic and policy.

Bancamerica Commercial Corp., 100 F.3d at 801; Goodrich Corp., 311

F.3d at 177.

The purpose of contribution is to equitably
apportion response costs among liable parties.
Failure to grant prejudgment interest on
contribution awards may instead result in
inequitable apportionment, because parties
awarded contribution will still have lost the
time value of the money they spent on behalf
of other liable persons, and those persons
will have gained an equal amount. Further,
refusal to grant prejudgment interest is a
disincentive for private parties to
voluntarily undertake cleanup actions because
they will lose the time value of the money
they spend on behalf of other persons.
Indeed, it would create a perverse incentive
for responsible parties to delay involvement
in cleanups, because as they delay, they gain
the time value of the funds they should be
investing in the cleanup.

Bancamerica Commercial Corp., 100 F.3d at 801 (emphasis in

original); see also Goodrich Corp., 311 F.3d at 177.

The conclusion that awarding prejudgment interest was

appropriate does not end our inquiry. The Capuanos also contend

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that prejudgment interest cannot be awarded because R&H waited to

supplement the record after trial -- rather than submitting

evidence during trial -- regarding accrual dates and numbers

required to calculate interest. Other circuits have held, and we

agree, that "because interest determinations are compounded

calculations, it may be impossible for parties to provide accurate

calculations prior to the court's allocation of response cost

liability. In such instances, parties may submit their interest

calculations to the court subsequent to that finding." Bancamerica

Commercial Corp., 100 F.3d at 802 (citing cases); United States v.

Town of Brighton, 153 F.3d 307, 321 (6th Cir. 1998). Therefore,

the district properly awarded prejudgment interest.

Last, the Capuanos argue that the district court erred by

accepting the accrual date submitted by R&H. The district court

calculated prejudgment interest from May 5, 1999, the date when R&H

made a written demand to the Capuanos. The Capuanos argue,

however, that this written demand letter was never presented to the

district court during or after the trial. Attached to R&H's motion

for prejudgment interest was an "Exhibit A" which calculated

prejudgment interest from May 5, 1999 through July 31, 2003. The

district court relied on this exhibit and found that the letter was

sent on May 5, 1999. The Capuanos did not object to this finding.

Therefore, the prejudgment interest award is affirmed. See Town of

Brighton, 153 F.3d at 321 (stating that there was "an adequate

-51-
basis for the district court to calculate prejudgment interest"

when the plaintiff "claim[ed], without refutation, that it issued

a demand letter" on a certain date).

V. Conclusion

For the reasons discussed herein, we affirm the judgment

of the district court.

Affirmed.

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