concurring in
part and dissenting in part:
I concur in the majority’s thorough and reasoned approach to the difficult questions addressed in Parts IV(A) and IV(B) of its opinion. I concur also in the majority’s holding regarding the prejudgment interest issue. However, I must dissent in substantial part from the majority opinion, for the following reasons.
I
Joint and Several Liability
I cannot agree with the majority’s holding-on the joint and several liability/quantitative apportionment issue in this case. I do agree that the determination of whether the type harm involved in this case is capable of quantitative apportionment is a question of law. And the majority is correct that the single chromium harm suffered by the Trinity Aquifer is the sort theoretically capable of apportionment. However, while Sequa met its legal burden of establishing that the type harm involved is capable of apportionment, it failed to meet its factual burden relative to apportionment. If proof exists by which the fact-finder could determine, on a reasonable basis, the extent of environmental injury attributable to a party, then certainly that party is entitled to escape the heavy hand of joint and several liability and to have its liability restricted to its actual, quantitative contribution to the single harm. The majority correctly places the burden of proof on the party seeking such a finding, to produce credible evidence to meet its burden. But the majority confuses the distinction between the legal burden that the single harm at issue caused is of a type capable of apportionment, and the factual burden of proving the amount of harm attributable to a particular party. See majority opinion at 903. (“Our review of the record convinces us that Sequa met its burden of proving that, as a matter of law, there is a reasonable basis for apportionment.” This case is closely analogous to the Restatement’s illustrations in which apportionment of liability is appropriate.”).
The gist of the majority opinion is this legal fallacy: because the evidence is clear that Sequa did not cause 100% of the harm to the aquifer, Sequa must be entitled to a finding by the district court apportioning the amount of harm attributable to it under the Restatement (Second) of Torts, § 433. We are not to approach our analytical task from that end. The majority’s “rule of thumb” miscasts the role of the district court and eviscerates the very concept of joint and several liability.
I agree with the majority that certainty is not required. What is required is proof by a preponderance of the evidence. The majority properly embraces the applicability of the Restatement (Second) of Torts to this case, but then seeks to divorce itself from the applicable preponderance of the evidence standard of proof so as to mandate that the district court “pick a number” apportioning liability.
Civil cases are decided by a preponderance of the evidence because such proof affords a reasonable basis for decision. In other words, while certainty of proof is not required in civil eases, probability is. Evidence by “fifty-one percent,” or to the extent of “more likely than not,” is deemed sufficiently reliable for resolution of civil disputes. But proof by less than this amount is unacceptably speculative; and amounts to mere possibility, not probability. Dean William Pros-ser said it well in his influential treatise:
On the issue of the fact of causation, ... [the one bearing the burden of proof by a preponderance of the evidence] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that [the causation exists]. A mere possibility of such causation is not enough;[ ] and when the matter remains one of pure speculation or conjecture,[ ] or the probabilities are at best evenly bai-*910anced,[ ] it becomes the duty of the court to direct a verdict for the defendant. Where the conclusion is not one within the common knowledge of laymen, expert testimony may provide a sufficient basis for it, [ ] but in the absence of such testimony it may not be drawn.1
If proof by a preponderance of the evidence is to be abandoned ip CERCLA apportionment cases, the district court is at least entitled to guidance regarding the level of possibilities that is acceptable. Will 10% do? 20%? 30%?2
The majority quotes the Restatement’s § 433:
(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.
The majority proceeds to quote comment d on subsection (1) of this Section, to the effect that a single harm that is conceptually divisible, “while not so clearly marked out as severable into distinct parts, [is] still capable of division upon a reasonable and rational basis, and of fair apportionment among the causes responsible.... Where such apportionment can be made without injustice to any of the parties, the court may require it to be made.” The majority discusses two examples of such harm given in this comment: the first being where cattle owned by two or more persons trespass upon another’s land and destroy the other’s crops; and the second involving the pollution of a stream by two or more factories. But in both of these examples, as the Restatement’s comment explains, a reasonable, factual basis for division must exist in order for the court to actually draw the possible apportionment. In the cattle example, the comment explains that, although “the aggregate harm is a lost crop, ... it may nevertheless be apportioned among the owners of the cattle, on the basis of the number owned by each, and the reasonable assumption that the respective harm done is proportionate to that number.” In the stream pollution example, the comment makes it plain that “the interference with the plaintiffs use of the water may be treated as divisible in terms of degree, and may be apportioned among the owners of the factories, on the basis of evidence of the respective quantities of pollution discharged into the stream.” If the Restatement (Second) of Tort’s term, “reasonable basis,” as used in the majority opinion, means something other than preponderance of the evidence, the majority should at least say so, and why.
“As other courts have noted, apportionment itself is an intensely factual determination.” United States v. Alcan Aluminum Corp., 990 F.2d 711, 722 (2nd Cir.1993) (citing e.g., United States v. Chem-Dyne Corp., 572 F.Supp. 802, 811 (S.D.Ohio 1983)). The example used by the majority is a good one. If cows belonging to Farmers A and B damage another’s crop, that is the type harm that as a matter of law is capable of apportionment. However, to evade joint and several liability, Farmer A or B must meet the burden of proving that apportionment is reasonable on some basis, such as the number of cows in the field belonging to each farmer or the amount of time each farmer’s cows were in the field. Proof that each farmer had some unknown number of cows in the field, or that an established number of cows belonging to each farmer were in the field for some unknown period of time, is not enough — because under such circumstances the fact-finder is left to speculate on the *911question of the amount of harm reasonably attributable to each farmer’s cows.
In this case an experienced and careful district judge heard and reviewed the quantitative apportionment testimony and exhibits in this ease, and it possessed opportunities to assess their convincingness far superior to those of this (appellate) court. The district court found Sequa failed to meet its quantitative apportionment burden of proof by a preponderance of the credible evidence. That finding is reviewable at the Court of Appeals only on the basis of whether it was clearly erroneous. The district court’s finding was not clearly erroneous.
The district court afforded Sequa its full apportionment due — the opportunity to avoid joint and several liability by meeting its burden of proof through the presentation of credible evidence persuading the district court that the amount of harm caused by Sequa can be apportioned to a level of knowledge that is sufficiently reliable (ie., by a preponderance of the evidence). Sequa simply failed to meet its burden. The majority opinion notwithstanding, there is no reason to believe Sequa’s appellate claim that the district court applied the wrong standard for apportionment (ie., a standard of certainty, as opposed to the appropriate standard, of a reasonable basis). Rather, the district court’s analysis, in the record, demonstrates that court’s clear understanding of and application of the appropriate reasonable basis standard for apportionment questions like the one it faced. See e.g., District Court Order of May 9, 1990 (emphasis added here) (“this Court is of the opinion the chromium contamination found in the ground waters below the Odessa I Site is not divisible. The evidence at both the Phase I and Phase III hearings clearly demonstrated there is no method of dividing the liability among the Defendants which would rise to any level of fairness above mere speculation. * * * Having heard the evidence adduced at trial of Phase III, this Court is of the opinion none of the [defendants’ proffered methods of actual quantitative apportionment] offer viable methods for dividing liability among John Leigh, Bell or Sequa.”).
The majority remands the case to the district court for a finding apportioning liability on a volumetric basis. Such was, however, precisely the purpose of Phase III of the trial. In Phase III of the trial, the district court heard approximately 400 pages of testimony from 19 witnesses, 3 of whom were experts. The district court reviewed over 150 exhibits: 80 new exhibits were admitted during Phase III of the trial; and the district court allowed for the more than 70 exhibits from Phase I to also be used during Phase III.
A review of the record reveals that Sequa attempted to climb the preponderance hill by focusing on several potential methods of achieving a reasonable basis for quantitative apportionment of liability on a volumetric basis.
Under one proffered method of such apportionment by a Sequa expert, the expert assumed that Sequa’s electrical usage for plating operations was 30% of its total electrical usage, while, in contrast, he attributed to both Bell and Leigh a plating percentage of 50% of their respective total electrical usages. But the bases for this expert’s electrical percentage assumptions were effectively refuted by other evidence in the case.
Sales records served as the springboard for another proffered method of apportionment. The sales record approach suffered fatally from Sequa’s ability to produce only scattered invoices.
An attempt was then made to compare the defendants’ expense records. However, the only expense records for Sequa demonstrated that it purchased 3,500 pounds of chromic acid flake within a three month period in 1977. Sequa’s other records were destroyed. Any attempt to extrapolate from the three month period in 1977 would have been at best speculative.
A Sequa expert also assumed that Sequa had no waste disposal after the installation of a catch tank. The credibility of this assumption was fatally eroded by contrary evidence — of substantial overflows, spills of plating solution, leaks in the plating tanks, and plating solution dumped by Sequa.
*912Indeed, the only evidence the district court could view with any comfort was evidence of relative times of facility ownership and the periods of plating activity by the defendants. Yet, the apportionment import of even this evidence was reduced to mere speculation when attempts were made to prove the actual level, or quantity, of plating activity conducted during the known periods of time. In the language of the majority’s cited example of cows in the field: the defendants evidenced what periods of time each farmer had cows in the field, but failed to demonstrate to any degree above speculation how many cows each farmer had in the field.
This case is a simple one by CERCLA standards. But it is nonetheless quite typical of CERCLA-apportionment cases: years after the pollution at issue, it is very difficult for a defendant to prove by a preponderance of the evidence even its rough share of responsibility for the single harm caused by pollution. This is why the equitable (contribution) phase of CERCLA response cost proceedings is so important — as Congress expressly recognized in the 1986 amendments to CERCLA (SARA). See H.R. No. 99-253(1), 99th Cong., 2d Sess. 79, reprinted in 1986 U.S.C.C.A.N. 2835, 2861 (SARA “confirms” federal right of contribution under CERCLA); see also United States v. Alcan Aluminum Corp., 990 F.2d 711, 724 (2nd Cir.1993) (“In [SARA] courts are granted implicit authority, using appropriate equitable factors, to ‘allocate response costs among liable parties.’ ”) (emphasis added) (quoting O’Neil v. Picillo, 883 F.2d 176, 179 (1st Cir.1989)). Sequa’s evidence will not improve upon remand. There is no more apportionment evidence available. Unless the district court’s view of the evidence on remand is somehow “enlightened” by the majority’s view of the evidence, the district court will have to apply a standard of proof of less than a preponderance of the evidence in order to reach a decision in conformity with the apportionment result mandated by the majority.
Actually, the district court did attempt to “apportion” the defendants’ liability on a basis other than a reasonable, amount of contribution basis — by making alternative findings on a purely equitable basis taking into account the facts that: Bell occupied the site for the longest period of time; Sequa gained access to the site with knowledge that chromium contamination was a problem and measures to correct the contamination were necessary; and Leigh accrued the least financial gain from the chrome plating venture, but cooperated with the government in the government’s efforts to discover the sources of the contamination. The district court apportioned the defendants’ equitable responsibility for costs at 35% each to Bell and Sequa, and 30% to Leigh. See District Court Order of May 9, 1990 (“this Court is of the opinion the liability of the parties for contamination of the Chromium I Site is indivisible other than by equitable means. * * * In the alternative [to accepting the proposed Partial Consent Decree attacked by Sequa on quantitative apportionment and equitable cost allocation grounds], this Court is of the opinion the responsibility for costs should be divided roughly equally among the parties with Bell and Sequa shouldering 35% of the burden each and john [sic ] Leigh shouldering 30%. The reasons for such division are purely equitable, as Bell occupied the Site for the longest period of time and Sequa gained access to the Site with knowledge that chromium contamination was a problem and measures to correct the contamination were necessary.” John Leigh accrued the least financial gain from his chromium-plating venture and has cooperated at every juncture with the Government in the government’s efforts to discover the sources behind the chrome contamination.”).
The adoption of the Chem-Dyne approach in Part IV(B) of the majority opinion precludes such equitable apportionment except as part of a contribution claim proceeding. I agree with the majority’s embrace of the Chemr-Dyne approach. But I think we should address the impact of the Leigh and Bell consent decrees upon Sequa’s SARA-bestowed contribution rights — in light of the alternative, equitable divisibility determinations already rendered by the district court after its “Phase III” hearing on the issue of the “relative contributions of Bell, Sequa and John Leigh to the contamination at the ... *913Site.”3 In my opinion, the following is the appropriate appellate court approach to this case.
First, we should hold that the district court was not clearly erroneous in its finding that Sequa failed to meet its burden of proof on the factual, quantitative apportionment issue — of Sequa’s proportionate responsibility for the single chromium harm suffered by the aquifer. Then, we should reject the district court's conclusion that, in this case, it did not need to consider the fairness of the proposed consent decrees relative to Sequa’s SARA-bestowed, equitable cost allocation rights. See 42 U.S.C. § 9613(f)(1). I think we must address the impact of the consent decrees on the defendants’ statutory equitable cost allocation rights — in light of the alternative, equitable “apportionment” finding reasonably rendered by the district court. This approach is consistent with the caselaw on appropriate contribution analyses.4 And my approach certainly offers a much better prospect for bringing this protracted and expensive litigation to an end than does a remand to the district court for more (essentially redundant) proceedings.
Equity and 42 U.S.C. § 9613
As the majority has noted, after concluding that Sequa had failed to meet its burden of demonstrating a reasonable fact basis for apportionment of the relative responsibilities of the defendants, the district court rendered an alternative, purely equitable “apportionment” determination. In reaching its alternative conclusion, the district court considered the following equitable facts: that Bell occupied the site for the longest period of time; that Sequa gained access to the site with knowledge that chromium contamination was a problem and measures to correct the contamination were necessary; and that Leigh accrued the least financial gain from the chrome plating venture, but cooperated with the government in the government’s efforts to discover the sources of the contamination. The district court “apportioned” the defendants’ equitable responsibility for costs at 35% each to Bell and Sequa, and 30% to Leigh. While the district court’s alternative equitable findings are not articulated as a “contribution claim” adjudication, I would hold that they satisfy the essential requirements of CERCLA § 9613(f)(1), and that they are consistent with this Circuit’s decision in Amoco Oil Co. v. Borden, 889 F.2d 664 (5th Cir.1989)' — and thus, that they are sufficient to constitute contribution findings based in equity.
In light of the procedural posture of this case and, in particular, in light of the district court’s reasonably based, 35% — 35%—30%, “purely equitable” “apportionment” findings, the parameters of Sequa’s equity rights are plainly such that it would be inequitable and violative of the contribution claims provision of SARA, 42 U.S.C. § 9613(f)(1), for those rights to be destroyed by the Leigh and Bell consent decrees.
Consistent with CERCLA § 9613(f)(1) and § 9613(f)(2), I would hold that when, in a ease such as this one, the EPA finds it advantageous to enter into a settlement with jointly and severally liable defendants, thereby shielding the settling defendants from contribution liability (by operation of CERC-LA’s § 9613(f)(2)), the EPA must bear the risk of its bargain being proved less than satisfying upon district court resolution of a non-settling defendant’s, consent decree-attacking, § 9613(f)(1) equitable cost allocation claim. Under the facts of this case, the EPA *914cannot have it both ways. It cannot enjoy the benefits of joint and several liability and at the same time enter into consent decrees with the otherwise jointly and severally liable defendants to destroy a non-settling defendant’s statutory right to an equitable allocation of costs under 42 U.S.C. § 9613(f)(1). The majority’s sanctioning of such enjoyment by the government improperly allows the government to smelt what is plainly intended by Congress to be a defendants’ rights provision (42 U.S.C. § 9613) into a governmental sword against defendants.
Under the facts of this case, Sequa’s equitable cost allocation rights are not limited to 42 U.S.C. § 9613(f)(2), which provision focuses on providing for offset contribution. In short, because Sequa raised its claims for an equitable, proportionate cost allocation ruling in what amounts to a contribution claims proceeding — before the district court embraced the consent decrees shielding Bell and Leigh, under 42 U.S.C. § 9613(f)(2), from contribution liability — Sequa is entitled to invoke the broader equitable response cost allocation remedy contained in 42 U.S.C. § 9613(f)(1). Compare 42 U.S.C. § 9613(f)(1) (emphasis added here) - (“Any person may seek contribution from any person who is liable or potentially liable under section 9607(a).... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.”), with 42 U.S.C. § 9613(f)(2) (emphasis added here) (“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. Such settlement 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.”).5
II
Alternate Water Supply System
I further disagree' with the majority’s treatment of Sequa’s challenge to the EPA’s decision to provide an alternate water supply system (AWS) to the chromium-affected area as an interim measure pending the completion of final remedial action. We are supposed to uphold the EPA’s decision “unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.” CERCLA, § 113(f)(2), 42 U.S.C. § 9613(f)(2). I think it is clear that Sequa has again failed to meet its burden of proof.
In 1983, the Supreme Court held:
The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.... In reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.
Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-2867, 77 L.Ed.2d 443 (1983) (citations omitted; internal quotation marks omitted). A year later, in Chevron U.S.A v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Supreme Court further clarified that when a court has determined the intent of Congress is statutorily vague or ambiguous with respect to the specific issue before the court, the court must defer to the “reasonable policy choice” of the agency charged with administering the statute. 467 U.S. at 843-845, 104 S.Ct. at 2782-2783.
State Farm and Chevron make it plain that the courts are not to second-guess the scientific judgments of the EPA. The EPA *915Administrator may apply his or her expertise to draw conclusions from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as “fact,” and the like. See Ethyl Corp. v. EPA, 541 F.2d 1, 28 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). And, while deference to agency decisionmaking does not require us to abdicate our judicial duty to carefully review the record in order to ensure that the agency has made a reasoned decision based on reasonable extrapolations from some reliable evidence, the agency’s decision need only be reasonable in light of the facts reflected in the administrative record and under the applicable statute(s) and regulations; it need not be the “best” or “most reasonable” decision. See generally Chevron, supra. The majority opinion notwithstanding: in this case, the agency’s AWS decision was both a permissible, reasonable reading of the operative CERCLA provisions — and the NCP — under Chevron, and not otherwise arbitrary or capricious under State Farm.
A
The Statutory Regime
It will most often be true that the general aims and policies of a controlling statute will be evident from its text. United States v. Gaubert, 499 U.S. 315, -, 111 S.Ct. 1267, 1274, 113 L.Ed.2d 335 (1991). It is evident from CERCLA’s text that CERCLA’s purpose is to enable the executive branch (i.e., the EPA) to target and clean up hazardous waste sites in an efficient manner; and the Superfund amendments of 1986 [SARA] have undoubtedly clarified and strengthened the executive’s CERCLA responsibilities and authority. See J.V. Peters & Co., Inc. v. Administrator, EPA, 767 F.2d 263, 264 (6th Cir.1985). In order to effectuate CERCLA’s purposes, Congress delegated very broad powers to the EPA — for the agency to reasonably interpret the CERCLA statutory scheme and respond to hazardous substance scenarios in accordance with such interpretation.
In particular, the EPA is under the broad statutory obligation to expeditiously react to any release or threatened release of hazardous substances that may pose harm to the public health, welfare or to the environment. CERCLA, § 101(23), 42 U.S.C. § 9601(23) (emphasis added). There are two types of CERCLA reactions, or responses, envisioned by the statute: (1) removal actions, or interim measures like the AWS at issue in this ease; and (2) remedial, or permanent measures. “Removal actions” are defined as actions designed to effect an interim solution to a contamination problem, but very vaguely:
“remove” or “removal” means 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, security fencing or other measures to limit access, provision of alternate 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 Assistance Act.
CERCLA, § 101(23), 42 U.S.C. § 9601(23) (emphasis added). See also National Contingency Plan, 40 C.F.R. § 300.6 (Definitions) (1986). “Remedial actions” are defined as actions designed to effect a permanent solution to the contamination problem, but they are defined just as vaguely:
“remedy” or “remedial action” 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 hazardous substance into the environment, to prevent or mini*916mize 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 or 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 health and welfare and the environment.
CERCLA, § 101(24), 42 U.S.C. § 9601(24) (emphasis added). See also National Contingency Plan, 40 C.F.R. § 300.6 (Definitions) (1986).
CERCLA provides some much more specific requirements for the EPA’s response actions, as well. For example, where groundwater is contaminated by chromium, the maximum contaminant levels allowed by the Safe Drinking Water Act (SDWA), 42 U.S.C. 300f, are “applicable or relevant and appropriate standards,” for agency decision-making if the groundwater is a potential drinking water supply. 42 U.S.C. § 9621(d)(2)(A). Chromium is one element for which maximum concentration limits (“MCLs”) were set under the SDWA. CERCLA nonetheless defines a “potential drinking water supply” quite broadly — as “any raw or finished water source that is or may be used by a public water system * * * or as drinking water by one or more individuals." 42 U.S.C. § 9601(7) (emphasis added).6 Clearly, the agency’s determination that the sole source, Trinity Aquifer falls within the statute’s drinking water supply definition was not arbitrary or capricious, and reflects a reasonable construction and implementation of the EPA’s broad CERC-LA enforcement license.
B
The National Contingency Plan
As the majority has stated, the National Contingency Plan (NCP) guides federal and state response activities by specifically identifying methods for investigating the environmental and health problems resulting from a release or threatened release of hazardous substances, and establishing criteria for determining the appropriate extent of response activities. The 1986 NCP was the operative one in this case.
According to the 1986 NCP:
The purpose of the ... (NCP or Plan) ... is to effectuate the response powers and responsibilities created by (CERCLA) and the authorities established by section 311 of the Clean Water Act (CWA), as amended.
* * * # * *
§ 300.3 Scope
(a) The Plan applies to all Federal agencies and this plan is in effect for:
>;« sj: #
(2) Releases or substantial threats of releases of hazardous substances into the environment, and releases or substantial threats of releases or pollutants or contaminants which may present an imminent and substantial danger to public health or welfare.
(b) The Plan provides for efficient, coordinated, and effective response to discharges of oil and releases of hazardous substances, pollutants, and contaminants in accordance with the authorities of CERC-LA and the CWA.
*917It provides for:
(1) Division and specification of responsibilities among the Federal, State, and local governments in response actions, and appropriate roles for private entities.
NCP, 40 C.F.R. § 300.3 (1986) (emphasis added). In this case, the EPA worked with the Texas Water Commission (TWC), and a private environmental research, or investigatory firm — IT Corporation.
Consistent with CERCLA, the 1986 NCP required that drinking water supplies meet the Safe Drinking Water Act (SDWA) standards for chromium — -a statutorily defined, “hazardous substance.” 40 C.F.R. § 300.-68(i), Appendix V(2). And the NCP defined a “drinking water supply” as “any raw or finished water source that is or may be used by a public water system (as defined by the Safe Drinking Act) or as drinking water by one or more individuals.” NCP, 40 C.F.R. § 300.6 (Definitions) (1986) (emphasis added). The 1986 NCP also listed, as an appropriate response “to the threat of direct contact with hazardous substances or pollutants or contaminants,” the provision of an alternate water supply “where it will reduce the likelihood of exposure of humans or animals to contaminated water.” 40 C.F.R. § 300.-65(e)(8) (emphasis added). In short, contrary to the majority opinion, the EPA has not been statutorily or administratively handicapped to act only in an “all or nothing” manner relative to threats of hazardous substance exposure; quite the contrary.
C
The Administrative Record
The majority’s contentions notwithstanding, the Administrative Record in fact contains substantial evidence that the EPA’s provision of an alternate water supply system was not arbitrary or capricious at the time the EPA made its AWS decision.
In accordance with the NCP’s fair, established procedures, a study was conducted to examine the alternatives available to accomplish the task of providing safe water to those in the affected area. Based on this study, a determination was made that the best option was to extend the public water supply operated by the adjacent city of Odessa, Texas to the site. Indeed, the determination to provide this alternate water supply to those in the affected area was based on an extensive Administrative Record, including in particular a two-volume Remedial Investigation report and a Record of Decision (which incorporates by reference, among other documents, the Remedial Investigation) — outlining the EPA’s reasons for selecting the AWS approach to the threats posed by the chromium-contaminated, sole drinking water source, Trinity Aquifer.
The chromium posed a threat to present and future human life in the area. As already stated, in making its assessments of the situation, the government was compelled by the NCP in effect at the time to follow the standards set in the Safe Drinking Water Act (the “SDWA”), 42 U.S.C. § 300f et seq.; and chromium is one element for which maximum concentration limits (“MCLs”) were set under the SDWA. The government found twelve of the fifteen sample wells tested had chromium levels at or above the MCL for chromium. Further, nine of these twelve met or exceeded the higher recommended MCLs for chromium proposed by the EPA in the Federal Register of November 13, 1985. Administrative Record at 3146. And the Remedial Investigation “determined that about thirty (30) people were presently being served by seven (7) wells that produce the groundwater with chromium concentrations above the drinking water standard.” Administrative Record at 4015.
The Administrative Record reflects a decision “to provide the residents and businesses in the Superfund Impacted Service Area with an alternate water supply from the City of Odessa (City).” Id. (emphasis added) (also stating that this alternative had “been given conceptual approval by the past City Council and is contingent upon the contract being signed between the City of Odessa and the TWC (Texas Water Commission)”). See also id. (“Concurrently [with the Remedial Investigation and the Feasibility Study for the site], a Focused Feasibility Study (FFS) was conducted and completed in August, 1986, to determine what alternate methods were available to supply these people and sur*918rounding potentially affected areas with a safe drinking water source.”).
Sequa complains that businesses using the chromium-contaminated wells ultimately were not “allowed” to participate in the alternate water supply system, and argues that this demonstrates that the decision to implement the AWS was arbitrary and capricious. However, as already noted, and contrary to Sequa’s contention, the Administrative Record reveals that businesses were indeed a focus of the AWS decision. The Administrative Record further reflects that businesses could be incorporated into the design and construction of the system if they bore their own administrative costs and burdens.7 Moreover, CERCLA requires the EPA to take measures to minimize threats to public health and the environment, not to ensure elimination of all such threats. Accordingly, the 1986 NCP listed, as an appropriate response “to the threat of direct contact with hazardous substances or pollutants or contaminants,” the provision of an alternate water supply — “where it will reduce the likelihood of exposure of humans or animals to contaminated water.” 40 C.F.R. § 300.-66(c)(8) (1986) (emphasis added). It is obvious that the AWS provided to the area (an area otherwise dependent upon a chromium-contaminated aquifer for its sole source of drinking water) (at least) minimized the likelihood, present and future, of exposure of humans and animals to the contaminated water.8
In sum: the majority has erred in substituting its own, post hoc vision of wise response action judgment for that of the agency. The EPA’s determination to install the AWS is the type of technically expert decision to which this Court properly accords “great deference.” The agency’s interpretations of its broad CERCLA directives were reasonable. The Administrative Record supports the agency’s particular AWS determination. And the agency determination is not inconsistent with the NCP. We should uphold the district court’s decision to grant summary judgment to the agency on the questions associated with the executive agency decision to provide an alternate water supply to the individuals residing in the chromium-affected area. To so uphold the agency’s decisionmaking and action does not amount to “meek deference” to the EPA’s *919scientific expertise, as the majority has asserted. However, the scrutiny to which the majority subjects the agency’s AWS decision certainly amounts to much more than the appropriate deferential review of the agency’s action called for under the Supreme Court’s easelaw concerning agency implementation of federal statutes. See e.g., Chevron, U.S.A., Inc. v. Natural Resources Defense, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Ill
All Costs? Yes.
I think we should decide whether the EPA is entitled to recover all of its costs for designing and constructing the AWS. We should decide that it is.
As the majority has stated, CERCLA’s § 107 provides for the recovery of the following costs:
(A) 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;
(B) any other necessary costs incurred by any other person consistent with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and
(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.
42 U.S.C. § 9607(a)(4) (emphasis added). I share the majority’s serious doubt that Congress intended to give the EPA completely unrestrained spending discretion. But we are bound to pay attention to the fact that, while CERCLA’s § 9607(a)(4)(A) provides that the United States is entitled to recover “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,” other provisions of the statute — dealing with recovery of costs by private parties under CERC-LA — state that these private parties are entitled to recover only “reasonable costs” of certain activities. See 42 U.S.C. § 9607(a)(4)(B).
We must presume that when Congress wants to make cost a factor of statutory analysis it knows how to do so. See e.g., Union of Concerned, Scientists v. United States Nuclear Regulatory Commission, 824 F.2d 108, 115 (D.C.Cir.1987), and cases cited therein.9. Were we to ascribe no meaning to the distinctions drawn in CERCLA’s § 9607, we would be derelict in our duty to pay close heed to both what Congress has said and what Congress has not said in the statute under review. We would be derelict in our duty to interpret the law as plainly written by Congress.
I note also that the congressional intent reflected in CERCLA’s § 9607’s “all costs” language reasonably reflects a fundamental purpose of CERCLA — to ensure that there be rapid recovery of response costs from polluters, which in turn ensures that the Superfund will be made whole quickly and that the funds recovered can be applied to still other hazardous sites. As the Second Circuit explained recently:
In passing CERCLA Congress faced the unenviable choice of enacting a legislative scheme that would be somewhat unfair to generators of hazardous substances or one that would unfairly burden the taxpaying public. The financial burdens of toxic clean-up had been vastly underestimated— in 1980 when CERCLA was enacted $1.8 billion was thought to be enough. In 1986 when the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1618 (1986), was passed, $100 billion was held to be needed. It may well be more today. It is of course the public-at-large that is already bearing *920the economic brunt of this enormous national problem.
United States v. Alcan Aluminum Corp., 990 F.2d 711, 716-717 (2nd Cir.1993).
Sequa has failed to show that the EPA’s AWS action in this case was inconsistent with the NCP guiding EPA responses at the time of the agency’s AWS decision and action. Thus, in this case at least, Sequa’s “reasonable cost” argument must fail. See United States v. Northeastern Pharmaceutical, 810 F.2d 726, 747-748 (8th Cir.1986) (noting that CERCLA’s § 9607(a)(4)(A) does not refer to all reasonable costs, but simply to all costs, and concluding therefore that all costs incurred by the government that are not inconsistent with the NCP are conclusively presumed to be reasonable), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987); United States v. Hardage, 982 F.2d 1436, 1443 (10th Cir.1992) (“[a]s long as the government’s choice of response action is not inconsistent with the NCP, its costs are presumed to be reasonable and therefore recoverable.”).
Finally, I cannot join in the majority’s commensuration with Sequa over the imagined “horrible” of unbounded liability for response costs assertedly effectuated by the district court’s ruling. As the Second Circuit discussed in Alcan Aluminum Corp., Congress and the courts have constructed a framework of fairness to avoid the majority’s feared “lack of limits” to the scope of CERCLA liability. See United States v. Alcan Aluminum Corp., 990 F.2d 711, 721-722 (2nd Cir.1993).10 The majority nonetheless finds particularly frightening Sequa’s hypothetical in which the EPA enters into an independent contract with someone to investigate and respond to hazardous waste possibilities, and then collects from the defendant polluters, as among the costs of this response, a Rolls Royce to be provided to the independent contractor as a perk for the latter’s good labors. Yet, the majority’s fears are simply unfounded. The legal reality is that this sort of grossly-attenuated “horrible” cannot come to pass. As the United States Supreme Court put it, in a similar context:
There are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception [to the Federal Tort Claims Act] because these acts cannot be said to be based on the purposes that the regulatory regime seeks to accomplish. If one of the officials involved in this case drove an automobile on a mission connected with his official duties and negligently collided with another car, the exception would not apply. Although driving requires the constant exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.
United States v. Gaubert, 499 U.S. 315, - n. 7, 111 S.Ct. 1267, 1275 n. 7, 113 L.Ed.2d 335 (1991) (emphasis added). Thus, there exist well-established standards whereby the majority’s imagined Rolls Royce “horrible” would surely be adjudged arbitrary and capricious. In stark contrast to the Rolls Royce “horrible” constructed by Sequa and the majority, the EPA response action at issue in this case — as reflected in the Administrative Record — is well grounded in CERC-LA regulatory policy, not to mention the plain language of the statute, and is not arbitrary and capricious.
IV
Settlement Credit
Finally, I do not think the district court erred in crediting the consent decree proceeds toward reimbursing the government for the costs incurred in pursuing Bell through bankruptcy proceedings, before allowing the leftover proceeds from the Bell settlement to be credited toward the sum Sequa was left owing the government. Se-qua’s interpretation of 42 U.S.C. § 9613(f)(2) is unduly narrow and unreasonably strained.11
*921First, reimbursable “response costs” made the subject of the Bell consent decree are specifically defined in the consent decree, as including enforcement expenses — including in particular’, attorneys’ fees. And such expenses are recoverable under CERCLA — at least in response cost recovery cases brought by the government. See e.g., United States v. Northernaire Plating Co., 685 F.Supp. 1410, 1418 (W.D.Mich.1988) (recoverable costs include “attorney fees and litigation expenses incurred by the staffs of the EPA and the Department of Justice”), aff'd sub nom. United States v. R.W. Meyer Inc., 889 F.2d 1497 (6th Cir.), cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990); United States v. Northeastern Pharmaceutical, 579 F.Supp. 823, 851-852 (W.D.Mo.1984) (to the same effect), aff'd in part, rev’d in part on other grounds, 810 F.2d 726 (8th Cir.1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). But cf. Stanton Road Associates v. Lohrey Enterprises, 984 F.2d 1015 (9th Cir.1993) (holding that private parties are not entitled to recover attorneys’ fees and expenses as costs incurred in bringing CERCLA cleanup cost recovery action), with General Electric Co. v. Litton Industrial Automation Systems, Inc., 920 F.2d 1415 (8th Cir.1990) (holding that private parties are entitled to recover attorneys’ fees and expenses incurred in bringing CERCLA cleanup cost recovery action), cert. denied, 499 U.S. 937, 111 S.Ct. 1390, 113 L.Ed.2d 446 (1991).
Moreover, the purpose of the § 9613(f)(2) settlement offset provision is to prevent the government from obtaining “double recoveries” in cases in which joint and several liability has been imposed. See United States v. Northeastern Pharmaceutical, 810 F.2d 726, 748-749 (8th Cir.1986) (“Appellants argue that unless the judgment is offset by the amount of the Syntex settlement, the government will improperly receive a double recovery of that amount from Syntax and the appellants.”), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). The district court’s treatment of the consent decree proceeds is fully consistent with this anti-double recovery purpose. The district court’s ruling, that the initial crediting of the Bell settlement funds must go toward making the government whole with respect to the enforcement expenses it incurred in connection with pursuing Bell in bankruptcy proceedings, does not provide the government with a “double recovery.” Indeed, an adoption of Sequa’s view of the crediting provision would provide Sequa with a “windfall” at the expense of the Superfund. In short, the result advocated by Sequa is contrary to the most fundamental purposes of CERCLA.
In my opinion, Sequa should be provided its statutory right of equitable response cost allocation under 42 U.S.C. § 9613(f)(1). My approach approves the district court’s alternate, equitable “appropriation” as a § 9613(f)(1), equitable response cost allocation. Under my approach, Sequa would be responsible for its 35% share of cost responsibility, and no more — -notwithstanding the settlement the government has negotiated with Bell. If that amount would, absent a crediting from the settlement proceeds, result in the government reaping a “double recovery,” then the crediting provision should be applied to prevent that result. In such circumstances, the money remaining from the Bell settlement after the application of some of it toward the reimbursement of the government for its enforcement expenses incurred against Bell in bankruptcy proceedings may be credited to the joint and several liability of Sequa. If, on the other hand, the combination of Sequa’s equitable allocation of response costs payment plus the leftover settlement (crediting) proceeds still fails to make the Superfund whole, it is my opinion that such is simply the proper consequence of the bargain the government struck in this case; the government must live with its bargain.
V
Conclusion
While I concur with much of the majority opinion, I must also dissent from much of it. *922Contrary to congressional intent and traditional judicial doctrines — not to mention the bedrock principle of a prudent separation of federal governmental powers — the majority has become much more than an appellate court in order to reach its rulings in this case regarding quantitative apportionment and the executive branch decision to provide the chromium-affected area with an alternate water supply system. The majority has usurped for itself the special powers of the executive agency and the trial court as well.
Chief Judge of the Eastern District of Texas, sitting by designation.
. William L. Prosser, The Handbook of the Law of Torts (2nd ed. 1955), § 42 (Causation and Joint Torts), at 222 (citations omitted) (emphasis added).
. The majority, in a footnoted dissent to my dissent, asserts that it has adhered to the preponderance of the evidence standard. To the contrary, the majority has not done so. Also in its “majority dissent,” the majority calls the standard X have articulated a "rigorous” one, "far above the level necessary to satisfy the preponderance of the evidence standard.” The second part of this "majority dissent” assertion is also just not so. The first part of it (about it being "rigorous”) is so only to the extent the majority finds the fundamental civil case standard of preponderance of the evidence too "rigorous” to be applied in this case.
. District Court Order of May 9, 1990.
. See e.g., Amoco Oil Co. v. Borden, 889 F.2d 664 (5th Cir.1989), which recognized that under CERCLA's contribution provision:
a court has considerable latitude in determining each party’s equitable share. * * * Possible relevant factors include: "the amount of hazardous substances involved; the degree of toxicity or hazard of the materials involved; the degree of involvement by parties in the generation, transportation, treatment, storage, or disposal of the substances; the degree of care exercised by the parties with respect to the substances involved; and the degree of cooperation of the parties with government officials to prevent any harm to public health or the environment.”!] Additionally, the circumstances and conditions involved in the property’s conveyance, including the price paid and discounts granted, should be weighed in allocating response costs.!].
Amoco Oil Co., 889 F.2d at 672-673 (quoting Amendments Report, pt. III, at 19, reprinted in 1986 U.S.C.C.A.N. at 3042; other citations omitted; emphasis added).
. Of course, at the time of a hearing considering the appropriateness or inappropriateness of a consent decree, the would-be settling defendant is still "potentially liable” under 42 U.S.C. § 9607(a). See also Amoco Oil Co. v. Borden, 889 F.2d 664, 672 (5th Cir.1989) ("a court has considerable latitude in determining each party's equitable share.”).
. It is also illuminating that CERCLA § 118, 42 U.S.C. § 9618 — part of the 1986, SARA amendments to CERCLA — made explicit that the executive branch is to give high priority to contaminated drinking water supplies. Section 118 provides:
For purposes of taking action under section 9604 or 9606 of this title and listing facilities on the National Priorities List, the President shall give a high priority to facilities where the release of hazardous substances or pollutants or contaminants has resulted in the closing of drinking water wells or has contaminated a principal drinking water supply.
. The following record of communication is found in the Administrative Record:
It was further decided that only those who responded “yes” on the survey [for those interested in water at Odessa I and II — of which there were 2 (owning 8 lots) out of ten, and 56 out of 56 residents contacted, respectively)] would be given the opportunity to sign a contract for water. * * * Businesses and those who responded "no” on the questionnaire are not being considered for contact again. These residents can be incorporated into the design and construction of the system if they do their own platwork — obtaining plat information and get their contracts notarized [sic]. The businesses must do their own negotiations with the city, and they incur all expenses for construction.
Administrative Record at 4068 (Record of Communication to the EPA from the Texas Water Commission, regarding a discussion of the Record of Decision for Phase 2 of the Odessa AWS design; dated 8/19/87).
In its footnoted “majority dissent,” the majority has misconstrued my citation of the 1987 Record of Communication as an attempt to rely upon an "event” occurring subsequent to the EPA’s initial AWS decision to support that decision. Actually, I have cited the 1987 Record of Communication simply to refute the majority’s misguided, post hoc assertion on Sequa’s behalf that the AWS decision must be "arbitrary and capricious” because businesses in the area were not "allowed” to participate in the AWS. The 1987 Record of Communication in fact reflects that the official decision to impose an entitlement regime upon area businesses regarding their ability to participate in the AWS — i.e., only if the businesses do their own platwork and do their own negotiations with the city and incur their own expenses for construction — was made after the initial decision to provide the AWS to the area generally.
. In light of the fact that the statutory and administrative regime does not handicap the EPA to act in response to health and environmental threats merely in an "all or nothing” manner, I am unable to fathom the majority’s dissenting point in its footnote 21 — to the effect that I have "not explained how any potential threats to the public health were minimized by the alternate water supply system, when the EPA did not require residents to connect to the new system and did not prohibit them from using contaminated water from their wells.” The bemoaning of the fact that an agency did not use more of its enforcement and regulatory power strikes me as a strange argument to be made in the course of criticizing the very use of agency enforcement and regulatory power.
. An example is close at hand. CERCLA requires that remedial (permanent) actions be cost-effective; however, there is no corresponding requirement with respect to removal (interim) actions. 42 U.S.C. § 9621(b). (The NCP implements the remedial action, cost-effectiveness statutory directive by requiring the EPA to consider cost with respect to any remedial alternative, and to select only a cost-effective remedial measure. See Hardage, 982 F.2d at 1443.)
. The defendant's opportunity to demonstrate that reasonable apportionment is possible is part of this framework. So is the statutory availability of equitable response cost allocation.
. 42 U.S.C. § 9613, as amended by the 1986, SARA amendments, provides:
(f) Contribution
(2) Settlement
*921A 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. Such settlement 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.