BOEING v CASCADE 9635246 We review the district court's interpretation of the statute de novo.
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BOEING COMPANY, Plaintiff-Appellee- Nos. 96-35246 Cross-Appellant, 96-35304 v. D.C. No. CV-89-00119-MFM CASCADE CORPORATION, Defendant-Appellant- OPINION Cross-Appellee.
Appeals from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge Presiding
Argued and Submitted
March 2, 1999--Portland, Oregon
Filed March 24, 2000
Before: Andrew J. Kleinfeld and Michael Daly Hawkins,
Circuit Judges, and William W. Schwarzer, 1 District Judge.
Opinion by Judge Kleinfeld;
Environmental Response, Compensation, and Liability Act
(CERCLA), when a party is liable for pollution response
costs, it must share them regardless of whether it is the sole
cause of the costs.
Appellee Boeing Company and appellant Cascade Corpora-
tion are neighboring landowners near Portland, Oregon.
Because Cascade's property is upslope from Boeing's, liquid
in the ground flows from Cascade's property toward Boe-
ing's.
Boeing, Cascade, and their predecessors used toxic solvents
in their manufacturing operations, some of which contami-
nated the soil at each site. Public authorities became con-
cerned that contaminated groundwater flowed toward the
Columbia River and municipal water wells. Both Boeing and
Cascade undertook investigations to determine the source and
extent of the contamination.
Under the supervisions of Oregon environmental authori-
ties, Boeing and Cascade worked together on investigation
and cleanup. They agreed that groundwater west of a north-
south separation in a sandstone aquifer was contaminated
solely by Boeing, while groundwater east of it was contami-
nated by Cascade and possibly Boeing.
Boeing pumped and treated the contaminated groundwater,
pulling some from a gravel aquifer above the sandstone aqui-
fer so that it would not seep into the sandstone. It did not sep-
arate its expenses for the gravel aquifer from those for the
sandstone aquifer.
Boeing settled with Electronic Specialty Company and
International Control Corporation, its predecessors on the
property, for $7.5 million as their share of the costs of
remediation for both the sandstone and gravel aquifers.
Boeing brought a CERCLA contribution action against
Cascade. At trial, Boeing's evidence broke out the separate
costs for the gravel and sandstone aquifers based on allocation
decisions of its accounting consultant. He segregated costs
that were exclusively related to the sandstone or gravel aqui-
fers, and allocated indirect costs to each. The direct and indi-
rect costs he attributed to the sandstone aquifer, plus
prejudgment interest, came to $7.26 million. The district court
found that remediation of the sandstone aquifer cost Boeing
$7.2 million.
An engineer testified for Boeing that he calculated Cas-
cade's contribution to the total mass of the contaminants to be
80 percent. Cascade's expert testified that Boeing had under-
estimated its contribution to the contaminant mass. The dis-
trict court agreed, and adjusted the allocation of contaminant
mass to reflect Boeing's larger share: a 70:30 allocation
instead of the 80:20 suggested by Boeing.
The district court found that of the more than $18 million
Boeing spent in response costs, about one third was attribut-
able to the sandstone aquifer. To avoid a double recovery by
Boeing, the court rejected Boeing's assertion that the $7.5
million it collected from International Control and Electronic
Specialty should not be considered in determining what part
of the $6 million spent on the sandstone aquifer was owed by
Cascade.
By the district court's reckoning, Cascade owed Boeing
$1.34 million plus interest. The court also granted Boeing
declaratory relief: Cascade and Boeing would split future
remediation costs 70:30.
On appeal, Cascade contended that it should not have been
held liable for a share of Boeing's costs because Boeing
would have incurred them even if Cascade had not contami-
nated Boeing's soil.
Cascade also argued that because Boeing did not separate
its expenses for the gravel and sandstone aquifers, the district
court should not have required it to pay 70 percent of about
$2 million incorrectly attributed to the sandstone acquifer.
Regarding aggregation of the remediation costs based on rela-
tive contaminant mass, Cascade asserted that the district court
should have required that each party should be responsible for
only the expenses it incurred for the work on its own land.
As to the declaratory relief granted by the district court,
Cascade complained that the court lacked authority to issue a
judgment allocating expenses not yet borne. Alternatively,
Cascade urged that even if the court had such authority, the
amounts were too speculative to support the judgment.
[1] CERCLA provides that a party that releases a hazardous
substance is liable for another's response costs, but only if its
release caused the other party to incur those costs. [2] Once
a party is liable, it is required to share the costs of response
regardless of whether it was the sole cause of those costs. So
long as the pollution was serious enough to require that the
site be cleaned up, the party is a sufficient cause of the
cleanup, and it is not inequitable to make it contribute sub-
stantially to the cost.
[3] To recover damages, CERCLA requires a plaintiff to
prove that costs are necessary response costs consistent with
the national contingency plan. The national contingency plan
requires accurate accounting of costs incurred for response
actions. "Accurate accounting" need not mean contemporane-
ous separation of expenses. [4] Though other approaches
might have been well or better justified, the district court's
finding that remediation of the sandstone acquifer cost Boeing
$7.2 million of the $18.4 million it spent was not clear error.
[5] CERCLA provides that the district court may allocate
response costs using such factors as the court determines are
appropriate. This gives courts discretion to decide what fac-
tors ought to be considered, as well as the duty to allocate
costs according to those factors. [6] Both parties were genera-
tors of the contaminants. Moreover, it was impossible to
know how much waste was dumped. [7] Cascade's argument
that each party should be left with the expenses it bore for the
cleanup on its land had no persuasive force. Most of the dirty
water from Cascade's uphill site would no longer have been
there when the cleanup was done, and much of the dirty water
in Boeing's sandstone aquifer would have come from its
uphill neighbor.
[8] The district court was within its discretion in using vol-
ume as the primary or exclusive basis for allocation. [9] Vol-
ume may be a reasonable means of apportioning liability. The
question of whether there is a reasonable basis for apportion-
ment depends on whether there is sufficient evidence from
which the court can determine the amount of harm caused by
each defendant. Boeing presented sufficient evidence from
which a reasonable approximation of each defendant's contri-
bution to the contamination could be made. [10] Though the
testimony might have led the trial court to a different conclu-
sion, the 70:30 allocation was among the reasonable conclu-
sions supported by the evidence.
[11] The district court erred in deducting the settlement
from Boeing's expenditure before applying the 70:30 ratio.
Instead of eliminating double reimbursement for the same
expense to Boeing, the error had the effect of reducing the
total expenditure by the $2.5 million Boeing's predecessors
contributed before applying the 70:30 ratio. There was no
double reimbursement to Boeing if the 70:30 ratio were
applied to the sum of its and its predecessors' expenditures
plus Cascade's.
[12] CERCLA is silent on whether declaratory judgments
are authorized in contribution actions. It does not prohibit
them. The statute was intended to encourage quick response
and to place costs on those responsible. Declaratory relief
serves these purposes because all parties will know their share
of costs before they are incurred. Declaratory relief allocating
future costs is consistent with the broader purposes of CER-
CLA.
_________________________________________________________________
COUNSEL
Peter Bunch (briefed) and George W. McKallip Jr. (briefed
and argued), Kennedy, King & Zimmer, Portland, Oregon, for
defendant-appellant-cross-appellee Cascade Corporation.
David A. Bledsoe (briefed), Paul T. Fortino (briefed), and
Mark W. Schneider (argued), Perkins, Coie, Portland, Ore-
gon, for plaintiff-appellee-cross-appellant The Boeing Com-
pany.
_________________________________________________________________
OPINION
KLEINFELD, Circuit Judge:
This case involves an action for contribution under the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA). The Boeing Company and Cascade
Corporation contaminated porous soil, called an aquifer. The
contamination overlapped. Both companies spent a great deal
of money investigating and beginning the cleaning. The issue
in this case is how their respective expenses ought to be allo-
cated in a contribution action.
FACTS
Boeing sued Cascade for contribution to offset Boeing's
higher expenses so far, and for a declaratory judgment allocat-
ing future expenses. The case was tried to the court without
a jury. Boeing won, though not all it sought. Both sides
appeal.
The district court determined that the fairest way to allocate
costs between the companies was by the quantity of toxic
chemicals each company put into the ground. Cascade was
judged liable for seventy percent of the costs, Boeing for
thirty percent. Cascade argues that the 70:30 allocation is
erroneous and that the district court lacked jurisdiction to
enter a declaratory judgment imposing the 70:30 ratio on
future expenses. Boeing argues that Cascade was allowed to
apply too much of what it had spent to its seventy percent
share, and was erroneously given credit against its share for
a settlement Boeing collected from a third party. We affirm
in part and remand in part the district court's judgment.
Boeing owns land about 200 feet northwest of Cascade's
land near Portland, Oregon. Because the ground slopes down
to the north, liquid in the ground flows from Cascade's prop-
erty towards Boeing's. Boeing manufactures airplane parts on
its 151 acres and Cascade manufactures lift truck attachments
on its 6 acres. Both companies and their predecessors have
used chlorine-based solvents to clean machine parts and for
vapor degreasers. Some of the solvents spilled or were
dumped and contaminated the soil at each site. Nobody claims
that there were any laws prohibiting them from disposing of
the solvents in such a way at the time. Public authorities even-
tually grew concerned that contaminated groundwater flowed
north towards the Columbia River, and towards water wells
operated by the City of Portland as a supplemental source of
drinking water. Neither Boeing nor Cascade has been accused
of any legal wrongdoing and the evidence indicates that both
companies have been diligently attempting to remedy the
problem since learning of it.
In 1985, Boeing drilled monitoring wells on its property for
another project and discovered the contaminated aquifer. An
aquifer is a relatively porous soil layer, such as sandstone, that
holds water, something like a sponge. In 1986, Boeing signed
a consent order with the Environmental Protection Agency
requiring Boeing to investigate the extent of the contamina-
tion and to identify its potential sources. Boeing installed
monitoring wells, sampled groundwater and soil gas, and con-
ducted pump and tracer tests to determine the sources and
extent of the contamination. Sixteen of the wells, in Boeing's
southeast corner (the part of its property closest to Cascade's),
yielded samples suggesting that contaminated groundwater
was flowing from Cascade's property into Boeing's.
Cascade learned of contamination in its industrial supply
well a little later than Boeing, in 1986. For the next two years,
Cascade tested the well and sent the results to the Oregon
State Department of Environmental Quality. In 1987, Cascade
tested the waste in the underground tanks it used to store
waste oil and coolants, and discovered chlorine-based chemi-
cals in the waste. Cascade removed the contaminated soil
from the site and, in 1988, entered into a consent order with
the Department of Environmental Quality to evaluate the
extent and source of contamination at its site. Cascade, like
Boeing, investigated the potential sources of the contamina-
tion, and has been trying to eliminate it.
In 1989, Boeing and Cascade began working together on
investigation and cleanup under the supervision of the Oregon
Department of Environmental Quality. In 1993, Boeing and
Cascade entered into a joint consent order that directed the
parties to control the contaminant plume and to learn more
about the area so as to protect Portland's water supply. Their
cooperation has continued since.
There are three aquifers separated by two confining units or
aquitards. An aquitard is a relatively impermeable layer that
retards the flow of water. Thus, the structure is something like
three wet sponges separated by dishes. The top sponge is cal-
led the Troutdale gravel aquifer. Beneath it is an aquitard,
then the second sponge, called the Troutdale sandstone aqui-
fer. The sandstone layer has an upper more uniform part, and
a lower, more varied part. A second aquitard lies below it,
then a third aquifer. The second aquifer down, the sandstone
layer, holds the Boeing and Cascade contamination at issue.
Because the aquifers and aquitards are natural dirt and rock,
not sponges and dishes, they are irregular. Each layer contains
"lenses," or points within it that may hold water or retard its
flow differently from the surrounding oil and rock. Some
water flows along an aquitard, then seeps around a lens and
through breaks and discontinuities into the aquifer below. In
some areas, erosion and geologic stresses have removed the
top aquifer and aquitard, leaving the sandstone aquifer imme-
diately below the surface. Over the northeast portion of the
Boeing land the top aquitard disappears, so groundwater flow-
ing north toward the river in the gravel aquifer on top seeps
without hindrance into the sandstone aquifer below it. The
slope of the underground formations makes the water flow
south instead of north for a stretch, then breaks it into two
separate flows north toward the river.
There is a north-south separation in the sandstone aquifer
on Boeing's property. The parties agree that groundwater
west of it has been contaminated solely by Boeing, while
groundwater east of it was contaminated by Cascade and pos-
sibly by Boeing as well. One of Boeing's experts, Dr. Henry
Landau, testified that pumping from wells operated by the city
may have pulled some of the contaminants across the separa-
tion. When a well is pumping, it pulls water toward it. The
City of Portland's wells draw groundwater toward them from
more than two miles away. A local water district, the Rock-
wood Wells District, also draws from wells in the area and
pulls water. Boeing started to pump and treat the groundwater
in 1989, pulling some of the contaminated groundwater from
the gravel aquifer so that it did not flow into the sandstone
aquifer.
Both the gravel and sandstone aquifers are contaminated.
Boeing and Cascade are separately cleaning up the gravel
aquifers on their respective property and those costs are not
at issue in this case. But contamination from the gravel aqui-
fer has seeped past the top aquitard into the sandstone, as
explained above. The dirty water plume extends beyond Boe-
ing's and Cascade's properties and may have seeped past the
second aquitard into the third aquifer down, the sand and
gravel aquifer. The flow of contaminants could eventually
reach the City of Portland wells if nothing were done about
it.
The contamination of the sandstone aquifer is the subject of
this case. The contaminant plume is generally north of the
Cascade property, and extends both northeast and northwest
of Cascade. The northwest portion of the plume extends under
part of Boeing's property. The eastern portion of the plume
contains groundwater that flowed north from Cascade, and is
solely attributable to Cascade. The westernmost portion of the
plume is solely attributable to Boeing and its predecessors. A
portion of the plume in between contains contaminated
groundwater from both Boeing and Cascade.
The contaminants in the groundwater are chlorinated sol-
vents known as volatile organic compounds. The major con-
taminants in the Sandstone Aquifer are trichloroethene, 1,2-
dichloroethene, and perchloroethene or tetrachloroethane.
Freon, 1,1,1-trichloroethane, and 1,1-dichloroethene are also
present in lesser concentrations. These compounds, the find-
ings say, share common properties such as high toxicity, low
solubility, and high mobility in the environment.
The contaminants came from solvents used by Boeing and
its predecessors and Cascade. Boeing and its predecessors
used trichloroethene as their primary degreaser solvent until
1980, and then switched to 1,1,1-trichloroethane. They stored
waste solvents in storage tanks and dumped them into the
ground or stored them in barrels underground. Based on evi-
dence available at trial, the original contaminant mass in the
gravel aquifer at Boeing was about 4500 pounds. As of the
time of trial, 2560 pounds had been extracted, leaving 2046
pounds.
Cascade's vapor degreaser used trichloroethene from 1961
until 1975 when it switched to non-chlorinated solvents. Cas-
cade also stored waste solvents in storage tanks and may have
dumped some of the waste into the ground.
ANALYSIS
A. Causation.
Cascade argues that it should not have been held liable for
a share of Boeing's costs because Boeing would have
incurred them even if Cascade had not contaminated Boeing's
soil. Since the EPA ordered Boeing to investigate its own
contamination, Cascade reasons that Boeing would have
incurred its investigation costs even without Cascade's
releases, and therefore Cascade was not the cause of the
response costs incurred by Boeing. CERCLA conditions lia-
bility on causation,2 and in Cascade's view, its contamination
cannot be a cause but for which Boeing would not have
incurred costs, when Boeing would have had to incur the
same costs without it.
[1] We review the district court's interpretation of the stat-
ute de novo.3 CERCLA provides that a party that releases a
hazardous substance is liable for another's response costs, but
only if its release caused the other party to incur those
response costs:
[A]n owner and operator of . . . a facility . . . from
which there is a release, or a threatened release
which causes the incurrence of response costs, of a
hazardous substance, shall be liable for--
. . .
(B) any other necessary costs of response
incurred by any other person consistent
with the national contingency plan; . . . .4
The statute says that a party that releases hazardous sub-
stances is liable if the release "causes the incurrence of
response costs."5
The essence of Cascade's argument is: (1) we can be liable
only if our release of contaminants caused the response costs;
(2) Boeing would have had the response costs anyway, i.e.,
because of its own release of contaminants it cannot be said
that the costs would not have been incurred "but for" our
release of contaminants; so (3) we cannot be liable, since our
release did not cause the response costs.
Causation requirements of course permeate many areas of
the law. The statute requires a releaser to compensate a party
that bore response costs only if the release "causes the incur-
rence of response costs." The issue Cascade raises is whether
causation, which the statute expressly requires, is necessarily
"but for" causation. "But for" causation is a short way of say-
ing "[t]he defendant's conduct is a cause of the event if the
event would not have occurred but for that conduct."6 It is
sometimes stated as "sine qua non" causation,7 i.e., "without
which not," and that may be clearer because it does not
require that the reader remember the rest of the "but for" sen-
tence. The entirely undescriptive term "causation in fact" has
sometimes been used to mean the same thing.8
The courts and scholars have long recognized that there is
a limited class of cases in which conduct ought to be treated
as a cause of damages even though the conduct was not a sine
qua non. For example, Harper and James cite the case of two
motorcyclists who pass a horse, one close to each side.9 The
spooked horse gallops out of control and causes injury. Nei-
ther motorcyclist's conduct was a sine qua non of the injury,
because the horse would have been spooked by the other
motorcyclist. The rule that has evolved is that, at least where
both causes involve comparable blameworthiness, both actors
are liable, even though the conduct of either one was not a
sine qua non of the injury because of the conduct of the other.10
There is no reason why a polluter should be insulated from
responsibility in a case where a traditional tortfeasor would
not be.
Cascade would have us read the statutory language,"causes
the incurrence of response costs," to mean that liability cannot
be imposed without sine qua non causation. That raises the
question whether the word "causes" means "causes as a sine
qua non." Ordinarily it does, but we have already explained
that in common law tort actions, it sometimes does not. Hart
and Honore, in their classic discussion of causation in the law,
describe a class of cases "when causally relevant factors are
not conditions sine qua non."11
A general moral may be drawn from the examination
in this chapter of cases where a sine qua non is not
a causally relevant factor and the converse cases
where a causally relevant factor is not a condition
sine qua non. Plainly, to be a condition sine qua non
of some event on some given occasion and to be
causally connected with it are not the same thing.
The general utility in legal cases of the question
`Would this harm have happened without this event,
act, or omission?' as a test of causal connection does
not spring from the fact that a condition sine qua non
is the fundamental element in the notion of causation
or its sole factual component; for this is not the case.12
Hart and Honore criticize Prosser's question begging formula-
tion, that "a cause in fact" is a "substantial" factor, and "ordi-
narily conduct will be a substantial factor if the result would
not have happened without it. . . . Little, however seems to be
gained by describing, even to a jury, such cases[in which nei-
ther cause is a sine qua non] in terms of the admittedly inde-
finable idea of a `substantial factor'."13 Hart and Honore
ultimately conclude that "when each factor is sufficient, with
other normal conditions, to bring about the harm as and when
it occurs, each is properly described as a cause of the harm,"14
and thus both actors are liable.
Philosophers subsequent to Hart and Honore have devel-
oped the analysis of causes that are not sine qua nons under
the rubric of "causal overdetermination." 15 Two classic exam-
ples they use are these:
E1. A short circuit starts a fire in a house's kitchen.
At the same time, a cigarette ash starts a fire in the
master bedroom. Either fire alone would have spread
and destroyed the house completely in one hour. In
one hour the house is completely destroyed.
E2. An overhead switch is controlled by front and
rear light switches. One person flips up the front
switch at precise the same time another person flips
up the rear switch. The light goes on.16
The philosophers' phrase entered the law in Justice Bren-
nan's plurality opinion in Price Waterhouse v. Hopkins,17
where he refers to "events that are causally overdetermined."18
The term is useful, because it distinguishes the small number
of cases in which a legal cause need not be a sine qua non
from the general run of cases where a cause has to have
"made a difference to the outcome" and "any standard less
than but-for . . . simply represents a decision to impose liabil-
ity without causation."19
In the special circumstance of causal overdetermination,
conduct can be a cause of a result even though it is not a sine
qua non. Take the philosophers' example above of the kitchen
with a light switch at each end. When two people simulta-
neously flip both switches on, the light goes on. Neither per-
son's conduct is a sine qua non, because the light would have
gone on anyway. Neither individual's conduct made a differ-
ence to the outcome. Cascade's analysis would compel the
conclusion that neither person caused the light to go on.
Cascade's argument that liability can only attach to conduct
that is a sine qua non of the harm, even for causally over-
determined harm, cannot be right, as the kitchen light hypo-
thetical case shows. The problem with Cascade's argument is
that where the result is overdetermined, each person's argu-
ment is as strong as the other's identical argument. If we
accept one person's argument that he did not cause the light
to go on, then we have to accept the identical and equally
valid argument of the other person that he did not cause the
light to go on. Each accurately points out that his switching
the light on was not a sine qua non of its going on. It is true
that the light would have gone on anyway because of the
other person's conduct. If conduct had to be a sine qua non
even for this overdetermined result, then neither person's con-
duct caused the light to go on. But the light went on. And it
did so by human agency, not spontaneously. So the conclu-
sion that Cascade's argument compels, that no one caused the
light to go on, is false. Because the correct answer has to be
the same for the two individuals, by eliminating the false
answer we have left only one possible answer which must be
true: Each of the two persons caused the light to go on.
This is not just a matter of abstraction. Cascade's argument,
if accepted, would generate senseless practical consequences.
Were we to accept Cascade's argument that sine qua non cau-
sation is required even in cases of causal overdetermination,
CERCLA would encourage parties to avoid investigating and
cleaning up contamination to which others as well as them-
selves contributed. A party that had discharged into a mixed
plume could wait for another discharger to incur the costs of
investigation, and have a fair chance of leaving the other pol-
luter stuck with the entire bill. Because the pollutant, rocks,
and dirt do not respect property lines, the expense of cleanup
may be only slightly responsive to quantity, causal overdeter-
mination of response costs may be less rare in CERCLA cases
than in other kinds of cases. A requirement of sine qua non
causation in such cases would give irresponsible defendants
an absolute defense. One of the goals of CERCLA was to
"affix the ultimate cost of cleaning up these disposal sites to
the parties responsible for the contamination." 20 To leave one
party shouldering the entire cost of investigation and remedia-
tion while another rides for free frustrates this goal, rather
than ensuring that those who caused the contamination pay
their fair share of the costs associated with clean-up. Thus, the
practical consequences lead the same way as philosophical
analysis in construing the statutory requirement of causation.
We therefore conclude that in the special case of causal
overdetermination, i.e., where either polluter's conduct would
have caused the same response cost to be incurred in the same
amount, and the conduct was of substantially equal blame-
worthiness, the proper construction of the causation require-
ment in the statute is that both polluters should be treated as
having caused the response cost. In this special case, pollution
is properly treated under the statute as having "caused" the
response cost even though it was not a sine qua non of the
response cost.
[2] Other circuits have likewise construed CERCLA to
mean that once a party is liable, it is required to share the
costs of response regardless of whether it is the sole cause of
those costs. In Control Data Corp. v. S.C.S.C. Corp.,21 the
Eighth Circuit resolved this issue as we have. The Eighth Cir-
cuit noted CERCLA's dual goals of "quick response and to
place the cost of that response on those responsible for the
hazardous condition," because a party discovering contamina-
tion would not want to investigate if it could not easily
recover those costs.22 Control Data cited as support the
Supreme Court's decision in Key Tronic Corp. v. United States,23
which held that costs attributable to searching for other
responsible solvent polluters are recoverable, reasoning that
such an investigation promotes cleanup.24 Cascade seeks to
distinguish Control Data on its facts. But, despite the distinc-
tions, Control Data's reasoning applies to the facts before us.
Likewise, in Browning-Ferris Industries, 25 the Seventh Circuit
resolved this issue as we do. It held that so long as the defen-
dant's pollution "was serious enough . . . to require that the
site be cleaned up," the defendant is still a sufficient cause of
the clean up and therefore "it is not inequitable to make it
contribute substantially to the cost."26
B. Allocation of Costs.
1. Accounting.
Cascade argues that Boeing did not properly separate its
expenses for the gravel aquifer from those for the sandstone
aquifer. Because Boeing's claim only related to the sandstone
layer, Cascade argues that the district court erroneously bur-
dened it with 70% of about $2 million incorrectly attributed
to the sandstone aquifer. Boeing did not keep separate
accounts for the gravel and sandstone aquifers when it spent
the money. Instead, its expert witnesses made an allocation
after the fact, which the judge evaluated in light of all the evi-
dence, including Cascade's expert's views.
[3] To recover damages, CERCLA requires a plaintiff to
prove that costs are "necessary response costs consistent with
the national contingency plan."27 The national contingency
plan requires "accurate accounting of . . . private party costs
incurred for response actions."28 But "accurate accounting"
need not mean contemporaneous separation of expenses. No
case has held that it does. Neither party knew that the other
was involved at the time the contamination was discovered,
so there was no reason to segregate costs. Post hoc accounting
lends itself to inappropriate shifting of expenses from non-
compensable to compensable categories, but so would con-
temporaneous accounting, for example, where one company
knew one category might be compensable but not the other.
The contemporaneity of the accounting, and the interests a
party might be trying to advance when it did the accounting
go only to the credibility of the accounting.
Boeing presented extensive testimony about its investiga-
tion costs. It provided exhibits illustrating its total costs, both
internal and external. One of its witnesses, the accounting
consultant, described his function as "account[ing] for costs
and to assure they are reasonably accurate and necessary." He
explained Boeing's accounting procedures and referred to
exhibits summarizing five boxes of invoices. Boeing's spread-
sheets broke out the separate costs for the gravel aquifer and
the sandstone aquifer based upon the allocation decisions of
its accounting consultant.
[4] The accounting consultant testified that he segregated
any costs that were exclusively related to the gravel aquifer or
the sandstone aquifer. Then he allocated indirect costs using
the average, 37.2%, of the percentage of wells drilled into the
sandstone aquifer (34.3%) and the percentage of samples that
were collected from the sandstone aquifer (40.1%). Thus,
37.2% of Boeing's indirect costs were attributable to the sand-
stone aquifer, or $1,984,825. The direct costs, $4,231,634,
added to the indirect costs, $1,984,825, plus pre-judgment
interest of $1,043,262, result in a total of $7,259,721 attribut-
able to the sandstone aquifer. Though other approaches might
be as well or better justified, such as perhaps allocating each
of the 11,000 receipts, the district judge could reasonably give
credence to the method that Boeing used. We review the dis-
trict court's finding that the remediation of the sandstone
aquifer cost Boeing $7.2 million of the $18.4 million it spent
for clear error.29 There was none.
2. Mass.
Cascade argues that the plumes of contaminated groundwa-
ter were largely separate, so the district court should not have
aggregated the remediation costs and divided the total.
Instead, the district court should have left each party with the
expenses it bore for the work on its own land. Even if aggre-
gation were proper, Cascade argues that the court erred by
dividing the costs according to the volume of each party's
contaminants, 70:30.
[5] CERCLA provides that "the court may allocate
response costs among liable parties using such equitable fac-
tors as the court determines are appropriate." 30 This language
gives district courts discretion to decide what factors ought to
be considered, as well as the duty to allocate costs according
to those factors.31 We reverse only for an abuse of the discre-
tion to select factors,32 or for clear error in the allocation
according to those factors.33
[6] Some courts use what are called the "Gore factors,"
named after a failed attempt to amend CERCLA.34 Congress
rejected the amendment that would have listed the Gore fac-
tors as the basis for allocating liability. The trial court is there-
fore not limited to the Gore factors. The statutory language
gives the trial court the discretion to consider "such equitable
factors as it finds appropriate"35 so we review for abuse of dis-
cretion in determining appropriateness, not conformity to
some predetermined list or rule. The district court considered
the Gore factors, which include volume, but concluded, as is
typical with multi-factor tests, that "[m]ost of the Gore fac-
tors, unfortunately, fail to assist in this case. " Both parties
were generators of the contaminants, neither party's contami-
nants were any more toxic than the other's, and neither party
was more careless than the other in light of the practices char-
acteristic of the time. Moreover, given the practices of the
time, it is impossible to know precisely how much waste was
dumped, as record keeping was not mandated the way it is
today. Once the contamination was discovered and Boeing
and Cascade were linked to it, both parties were very respon-
sive in taking steps to begin clean up.
[7] Cascade's argument that each party should be left with
the expense it bore for the cleanup it had done on its own land
has no persuasive force. Water flows downhill. Thus, most of
the dirty water from Cascade's uphill site would naturally no
longer be there when the cleanup was done, and much of the
dirty water in Boeing's sandstone aquifer would naturally
come from its uphill neighbor, Cascade. The district court so
found.
Boeing presented extensive expert testimony on the relative
mass of each party's contribution to the plume. An engineer
testified for Boeing that he calculated Cascade's contribution
to the total mass of contaminants as eighty percent. To allo-
cate the mass between Boeing and Cascade, he delineated two
plumes on either side of the north-south trough: one for which
Cascade was responsible, and the other originating at the Boe-
ing site. Thus, he provided the court with evidence from
which it could draw a conclusion regarding divisibility and
share of responsibility.
Cascade's expert testified that Boeing's expert understated
Boeing's contribution to the contaminant mass. She testified
that Boeing's contaminants had flowed into what Boeing's
expert characterized as Cascade's plume. The district judge
accepted her testimony on this point and adjusted the alloca-
tion of contaminant mass to reflect Boeing's larger share: a
70:30 allocation instead of the 80:20 ratio that Boeing's
expert had suggested.
Cascade argues that allocating responsibility simply by vol-
ume is inappropriate. This argument, as a general proposition,
has persuasive force. Suppose one party disposed of a pound
of highly toxic contaminants dissolved in water that flowed
over a great expanse, while another dumped a well sealed
cannister of 500 pounds of the same contaminant; it might be
so much cheaper to haul away the cannister than all the con-
taminated dirt from the dissolved contaminant that imposing
500 times the expense on the cannister dumper would be inap-
propriate.
[8] In this case, though, the district court was within its dis-
cretion in using volume as the primary or exclusive basis for
allocation. Cascade and Boeing each argue for numerous
other factors that would have benefitted each. A district judge
must use discretion to determine which factors are appropriate
in the particular case. We cannot say that this district judge
abused his discretion by using volume as the basis for alloca-
tion in this case.
[9] The Fifth Circuit has also held that "volume may be a
reasonable means of apportioning liability." 36 "Essentially, the
question of whether there is a reasonable basis for apportion-
ment depends on whether there is sufficient evidence from
which the court can determine the amount of harm caused by
each defendant."37 Like the claimant in the Fifth Circuit case,
Boeing presented "sufficient evidence from which a reason-
able and rational approximation of each defendant's individ-
ual contribution to the contamination can be made."38
[10] Cascade argues that even if allocation by volume was
appropriate, the district judge erred in his allocation of sev-
enty percent liability to Cascade and thirty percent to Boeing.
We review the district court's allocation as a finding of fact
for clear error.39 Though the testimony presented might have
led the trial court to a different conclusion, the 70:30 alloca-
tion was among the reasonable conclusions supported by the
evidence. "Where there are two permissible views of the evi-
dence, the fact finder's choice between them cannot be clearly
erroneous."40
3. The Settlement.
Electronic Specialty Company, among others, formerly
operated the plant that Boeing now operates. Boeing claimed
that it was responsible for much of the contamination. Elec-
tronic Specialty and its parent company, International Control
Corporation, settled with Boeing for $7.5 million. Boeing
may receive $6 million more from International Control's
insurers, under a term of the settlement not affecting the issue
before us. The settlement was for all contamination, both the
gravel aquifer, for which no claim is made against Cascade,
and for the sandstone aquifer which is at issue.
The district court found that of the $18 million Boeing had
incurred in response costs, approximately one third was for
response costs for the sandstone aquifer at issue between Boe-
ing and Cascade. Thus, about $6 million was spent by Boeing
on the sandstone aquifer, and about $12 million on response
costs for which it made no claim against Cascade. The district
court then rejected Boeing's argument that the $7.5 million it
had collected from International Control and Electronic Spe-
cialty should not be considered in determining what Cascade
owed. The district court opinion says "I find that the prohibi-
tion of 42 U.S.C. S 9614 against double recovery requires that
the settlement funds be factored into allocation of response
costs."41
The district court then allocated the response costs as fol-
low:
The relative contributions of each party are as fol-
lows: Boeing's [sandstone aquifer] costs of
$6,216,459 are reduced by 1/3 of the $7,500,000
recovered from previous owners/operators (or
$2,500,000) to yield Boeing's [sandstone aquifer
expenditures: $3,716,459. Cascade's [sandstone
aquifer] expenditures and Boeing's are added
together, for total [sandstone aquifer] expenditures
of $7,920,074. This total [sandstone aquifer] expen-
diture is then allocated on a 70/30 basis.
Boeing's relative share, 30% of the total [sand-
stone aquifer] expenditures of $7,920,074, is
$2,376,022. As Boeing has already expended
$3,716,459, Boeing has overpaid $1,340,437. Cas-
cade's relative share, 70%, of the total [sandstone
aquifer expenditures, is $5,544,052; as Cascade has
expended $4,203,615,Cascade has underpaid
$1,340,437. Accordingly, Cascade must pay Boeing
$1,340,437, plus prejudgment interest of $224,955,
for a total payment of $1,565,392.42
The statute says that if a party makes an approved settle-
ment with the federal or a state government, that settlement
"reduces the potential liability of the others by the amount of
the settlement."43 This is of no help to Cascade, though,
because Electronic Specialty and International Control settled
with Boeing, not with the federal or a state government. The
preceding subsection of the statute does speak to this case: "In
resolving contribution claims, the court may allocate response
costs among liable parties using such equitable factors as the
court determines are appropriate."44 The district court cor-
rectly notes that one equitable factor is preventing someone
from recovering for the same harm twice. The statute the dis-
trict court cited says that a party that receives compensation
under CERCLA is "precluded from recovering compensation
for the same removal costs or damages or claims" pursuant to
other state or federal law.45 But the numbers in the district
_________________________________________________________________
42 Id.
43 42 U.S.C. S 9613(f)(2).
44 42 U.S.C. S 9613(f)(1).
45 42 U.S.C. S 9614(b).
court's calculation do not work consistently with this equita-
ble factor.
The numbers are easier to understand if put in columns like
a spreadsheet than spread out in essay form, so here is how
we lay them out, consistent with the district court's unchal-
lenged fact findings:
Boeing's response costs for the
sandstone aquifer$6,216,459
Cascade's response costs for
sandstone aquifer$4,203,615
total response costs $10,420,074
Electronic Specialty-International
Control settlement paid to Boeing$7,500,000
portion of settlement not for the
sandstone aquifer at issue$5,000,000
portion of settlement for sandstone
aquifer$2,500,000
The question is what to do with the $2,500,000. Electronic
Specialty and International Control reimbursed Boeing for
that much of the $6,216,459 Boeing spent on the sandstone
aquifer. There are no factual issues raised by the parties, just
an argument about whether the way the judge treated the
$2,500,00 was "double counting."
Here is what the district court did:
Boeing's response costs on sandstone
aquifer $6,216,459
less what Boeing collected in
settlement$2,500,000
net Boeing sandstone aquifer
expense$3,716,459
plus Cascade's sandstone aquifer
expense$4,203,615
total sandstone aquifer expense$7,920,074
Boeing's 30% share $2,376,022
Cascade's 70% share $5,544,052
Boeing's overpayment ($3,716,459-
$2,376,022) $1,340,437
Cascade's underpayment
($5,544,052-$4,203,615) $1,340,437
Thus Boeing's judgment against Cascade was for $1,340,437
plus interest.
Laying the numbers out reveals an error. The court deter-
mined that Boeing and its predecessors were responsible for
only 30% of the pollution in the sandstone aquifer. The total
expenditures on the sandstone aquifer were $10,420,074,
which is Boeing's $6,216,459 plus Cascade's $4,203,615.
Although Boeing was reimbursed by its predecessors to the
extent of $2.5 million of this $6.2 million expenditure on the
sandstone aquifer, so it did not wind up out of pocket $6.2
million, Boeing and its predecessors did wind up out of
pocket $6.2 million, and Cascade $4.2 million, for remedia-
tion on the sandstone aquifer.
But these figures do not match the district court's findings
that the pollution in the sandstone aquifer came 30% from
Boeing and its predecessors, 70% from Cascade. Applying
those percentages to the total expenditure of $10,420,074,
Boeing and its predecessors should pay $3,126,022, and Cas-
cade should pay $7,294,052. Because Boeing and its pre-
decessors have spent $6,216,459, they have paid $3,090,437
more than their 30% share.
[11] The district court erred in deducting the settlement
from Boeing's expenditure before applying the 70-30 ratio.
Instead of eliminating double reimbursement for the same
expense to Boeing, which the district court quite properly
intended to do, the computation error had the effect of reduc-
ing the total expenditure by the $2.5 million Boeing's pre-
decessors contributed before applying the 70-30 ratio. Thus
Boeing and its predecessors wound up stuck with $6.2 mil-
lion, less the $1.3 million judgment against Cascade, for
$4,876,022 of the $10.4 million expense, about 47% of an
expense that the district court found was 30% attributable to
them. There is no double reimbursement to Boeing for its
cleanup expense if the 70-30 ratio is applied to the sum of its
and its predecessors' expenditures plus Cascade's. Rather,
there was a failure to count once the $2.5 million, because the
district court did not split that portion of the response costs
70:30.
Because we have rejected the challenge to the 70-30 alloca-
tion of responsibility, and there is no challenge (except for the
accounting dispute dealt with above) to the 1/3 - 2/3 split
between Boeing's and its predecessors' expenditures on the
sandstone aquifer and the aquifer for which Cascade has no
responsibility, the judgment ought to be based on those ratios
and the figures above. That implies that Boeing's judgment
against Cascade should be for the difference between the
$6,216,459 it and its predecessors spent, and the $3,126,022
they should have spent under the district court's findings,
which is $3,090,437 plus interest. We remand so that the
judgment can be corrected to this extent.
4. Internal costs.
Cascade argues that the district court erred by giving Boe-
ing credit for its internal costs as well as what it paid to third
parties for investigation and remediation, but giving Cascade
credit only for what it paid to third parties. Cascade made no
explicit request for recovery of internal costs--not before
trial, not after trial, not in any post-trial motion. There was
evidence, two pages of testimony by Cascade's treasurer, that
Cascade spent about $1 million internally, based on which the
district judge could have credited Cascade. But Cascade did
not ask the court to credit it with this amount, or offer an
exhibit adding in this amount. The judge evidently used Cas-
cade's own exhibit showing its expenses as a basis for its
findings of fact. Cascade did not make a Rule 59(e) motion
or in any way ask the district court to correct the error, if it
was an error, by crediting the extra $1 million buried in two
pages of its treasurer's testimony. Because this issue of credit-
ing the internal costs was not preserved by raising it ade-
quately in the trial court, it is not available for appeal.46
C. Declaratory Judgment Allocating Future Costs
The litigation was concluded before the cleanup was con-
cluded. Boeing won a declaratory judgment that the remain-
ing cleanup expenses should also be split 70:30. Cascade
argues that the district court lacked authority to issue a declar-
atory judgment allocating expenses not yet borne, and even if
it had authority, the amounts were too speculative to support
the judgment. To the extent that this inquiry requires that we
construe CERCLA, our review is de novo. 47
We have upheld declaratory judgments in CERCLA cases,
but Cascade would distinguish those cases because they con-
cern suits for costs under 42 USC S 9607, rather than for con-
tribution under 42 U.S.C. S 9613. They do. Cascade argues
that an express statutory provision for declaratory judgments
in cost recovery actions in a part of the statute addressing lim-
itations periods implies an absence of such authority in contri-
bution actions,48 for which there is no parallel language in the
statute.49
[12] The statute is silent on whether declaratory judgments
are authorized in contribution actions. It does not prohibit
them. It is hard to see why it would. CERCLA was intended
to encourage quick response and to place the costs on those
responsible.50 Declaratory relief serves these purposes because
all parties, like those in this case, will know their share of
costs before they are incurred. The more liability can be lim-
ited and quantified, the more practical it is for a party to bud-
get and borrow to finance it. Environmental litigation is
tremendously complex, lengthy, and expensive. The costs and
time involved in relitigating issues as complex as these where
new costs are incurred would be massive and wasteful.
Declaratory relief allocating future costs is therefore consis-
tent with the broader purposes of CERCLA.
Nor do we see much force to Cascade's argument based on
syntax. If the costs recovery provision said that the court
"may" grant declaratory judgments, there might be an impli-
cation that it may not in another section without the "may
grant" language. But saying, as the statute does, that the court
"shall" grant declaratory judgments in cost recovery cases
does not imply that it may not in cases where it is silent. Say-
ing that a court "shall" do A, may as reasonably imply that it
"may" do B, about which it is silent.
Cascade argues that the facts of this case do not render it
appropriate for declaratory relief because the costs of
remediation are not sufficiently stable to permit declaratory
relief. We review for an abuse of discretion.51 Whether declar-
atory relief is appropriate depends upon
"whether the facts alleged, under all the circum-
stances, show that there is a substantial controversy,
between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issu-
ance of declaratory judgment." A case is ripe where
the essential facts establishing the right to declara-
tory relief have already occurred.52
That is plainly so in this case. The pollution has been care-
fully studied, the parties litigated a genuine controversy about
millions of dollars they had already spent, and the facts bring-
ing about their relative responsibility have already occurred.
CONCLUSION
We affirm the judgment in response to Cascade's appeal.
On Boeing's appeal, we remand, so that the amount of the
judgment can be increased as explained above in section 3.
AFFIRMED in part and REMANDED in part. Costs in
favor of Boeing.
_______________________________________________________________
FOOTNOTES
1 The Honorable William W. Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
2 See 42 U.S.C. S 9607(a) (1994) (describing liable party as, in pertinent
part, an "owner or operator of a facility . . . from which there is a release
. . . which causes the incurrence of response costs." (emphasis added)).
3 See Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298,
1300 (9th Cir. 1997).
4 42 U.S.C. S 9607(a)(4) (1994) (emphasis added).
5 42 U.S.C. S 9607(a)(4); see also 3550 Stevens Creek Assoc. v. Barclays
Bank, 915 F.2d 1355, 1358 (9th Cir. 1990) (requiring a plaintiff to demon-
strate that release or threatened release caused plaintiff to incur response
costs).
6 W. Page Keeton, et al., Prosser & Keeton On the Law Of Torts S 41,
at 266 (5th ed. 1984).
7 See H.L.A. Hart & Tony Honore, Causation in the Law, 128 (2d ed.
1985).
8 See, e.g., Keeton, supra note 6, S 41, at 263.
9 4 Fowler V. Harper et al., The Law of Torts S 20.3 (2d ed. 1986) (citing
Corey v. Havener, 65 N.E. 69 (1902)).
10 See id.
11 Hart & Honore, supra note 7, at 122.
12 Id. at 128-29.
13 Id. at 124.
14 See id. at 228-29.
15 See Louis E. Loeb, Causal Theories and Causal Overdetermination,
71 J. of Phil. 526 passim (1974); see also Martin Bunzl, Causal Over-determination, 76 J. of Phil. 134 passim (1979); Louis E. Loeb,
On a Heady Attempt to Befriend Causal Theories of Knowledge,
29 Phil. Studies 331 passim (1976); Yael Tamir, Who Done It? Moral
Responsibility for Collective Action (visited February 29, 2000)
http://www.stthom.edu/cbes/zohar.htm (discussing causal overdetermina-
tion of results in analysis of voting by members of corporate boards of
directors).
16 Loeb, Causal Overdetermination, supra note 15, at 526.
17 Price Waterhouse v. Hopkins ,
490 U.S. 228
(1988).
18 Id. at 241 (emphasis added).
19 Id. at 282 (Kennedy, J., dissenting).
20 Kaiser Aluminum & Chem. Corp. v. Catellus Dev. Corp., 976 F.2d
1338, 1340 (9th Cir. 1992).
21 Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930 (8th Cir. 1995).
22 See id. at 936.
23 Key Tronic Corp., v. United States,
511 U.S. 809
(1994).
24 See Control Data, 53 F.3d at 937 (citing Key Tronic,
511 U.S. at 810
).
25 Browning-Ferris Indus. v. Ter Maat, 195 F.3d 953 (7th Cir. 1999)
(Posner, J.).
26 Id. at 958.
27 42 U.S.C. S 9607(a)(4)(B).
28 40 C.F.R. S 300.160(a)(1) (1998).
29 See Valley Eng'rs, Inc. v. Electric Eng'g Co., 158 F.3d 1051, 1052
(9th Cir. 1999) (stating that the district court's findings of fact are
reviewed for clear error); In re Bell Petroleum Servs., Inc., 3 F.3d 889,
896 (5th Cir. 1993) (stating that actual apportionment of damages is a
question of fact).
30 42 U.S.C. S 9613(f)(1).
31 See Bedford Affiliates v. Sills , 156 F.3d 416, 423-24 (2d Cir. 1998);
Bancamerica Commercial Corp. v. Mosher Steel, 100 F.3d 792, 802 (10th
Cir. 1996); Environmental Transp. Sys. Inc., v. ENSCO, Inc., 969 F.2d
503, 509 (7th Cir. 1992); United States v. R.W. Meyer, Inc., 932 F.2d 568,
571 (6th Cir. 1991).
32 See In re Dant & Russell, Inc. , 951 F.2d 246, 249 (9th Cir. 1990).
33 See Bell Petroleum, 3 F.3d at 896 (stating that actual apportionment
of damages is a question of fact).
34 See, e.g., Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 74 (1st Cir.
1999); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d
344, 354 (6th Cir. 1998); Control Data, 53 F.3d at 935; United States v.
Colorado & Eastern R.R. Co., 50 F.3d 1530, 1536 n.5 (10th Cir. 1995);
Kerr-McGee Chem. Corp. v. Lofton Iron & Metal Co. , 14 F.3d 321, 326
(7th Cir. 1994); Bell Petroleum, 3 F.3d at 899-900.
35 42 U.S.C. S 9613(f)(1).
36 Bell Petroleum, 3 F.3d at 901.
37 Id. at 903.
38 Id.
39 See Bell Petroleum, 3 F.3d at 896; U.S. v. Alcan Aluminum, Corp.,
990 F.2d 711, 722 (2d Cir. 1993).
40 Cree v. Flores, 157 F.3d 762, 768 (9th Cir. 1998) (quoting Anderson
v. City of Bessemer City,
470 U.S. 564, 573
(1985)).
41 Boeing Co. v. Cascade Corp., 920 F. Supp. 1121, 1140 (D. Ore.
1996).
46 See Fed. R. Civ. P. Rule 46; see also Janovich v. United States, 813
F.2d 1035, 1037 (9th Cir. 1987).
47 See Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298,
1300 (9th Cir. 1997).
48 See 42 U.S.C. S 9613(g). In relevant part, that provision states:
In any such action described in this subsection[cost recovery
actions], the court shall enter a declaratory judgment on liability
for response costs or damages that will be binding on any subse-
quent action or actions to recover further response costs or dam-
ages.
42 U.S.C. S 9613(g)(2).
49 See 42 U.S.C. S 9613(g)(3).
50 See, e.g., Control Data , 53 F.3d at 936.
51 See Wilton v. Seven Falls Co. ,
515 U.S. 277, 289
(1995) ("We believe
it more consistent with the statute to vest district courts with discretion inthe first instance, because facts bearing on the usefulness of the declara-
tory judgment remedy, and the fitness of the case for resolution are pecu-
liarly within their grasp."); Government Employees Ins. Co. v. Dizol, 133
F.3d 1220, 1223 (9th Cir. 1998) (stating that review of exercise of declara-
tory relief for abuse of discretion is appropriate where party made objec-
tion below and trial court issued written decision detailing its reasons).
52 Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 893 (9th Cir.
1986) (quoting Maryland Cas. Co. V. Pacific Coal & Oil, Co., 312 U.S.
270, 273 (1941)) (citations omitted).
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