           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    Kalamazoo River v.               Nos. 01-2453;02-2192
        ELECTRONIC CITATION: 2004 FED App. 0018P (6th Cir.)                      Rockwell Int’l Corp. et al.
                    File Name: 04a0018p.06
                                                                                               _________________
UNITED STATES COURT OF APPEALS                                                                      COUNSEL
                   FOR THE SIXTH CIRCUIT                                    ARGUED: Jerome T. Wolf, SONNENSCHEIN NATH &
                     _________________                                      ROSENTHAL, Kansas City, Missouri, for Appellant.
                                                                            Joseph C. Basta, DYKEMA GOSSETT, Ann Arbor,
 KALAMAZOO RIVER STUDY           X                                          Michigan, for Appellees. ON BRIEF: Jerome T. Wolf,
 GROUP,                           -                                         James L. Moeller, David S. Ladwig, SONNENSCHEIN
         Plaintiff-Appellant,     -                                         NATH & ROSENTHAL, Kansas City, Missouri, Alan C.
                                  -   Nos. 01-2453;                         Bennett, LAW, WEATHERS & RICHARDSON, Grand
                                  -   02-2192                               Rapids, Michigan, for Appellant.   Joseph C. Basta,
           v.                      >                                        DYKEMA GOSSETT, Ann Arbor, Michigan, Kathryn J.
                                  ,
                                  -                                         Humphrey, DYKEMA GOSSETT, Detroit, Michigan, for
 ROCKWELL INTERNATIONAL           -                                         Appellees.
 CORPORATION and EATON            -                                                            _________________
 CORPORATION ,                    -
         Defendants-Appellees. -                                                                   OPINION
                                  -                                                            _________________
                                  -
                                  -                                            KAREN NELSON MOORE, Circuit Judge. In 1990,
                                 N                                          federal and state environmental authorities officially
       Appeal from the United States District Court                         recognized the massive polychlorinated biphenyls (“PCB”)
  for the Western District of Michigan at Grand Rapids.                     contamination of the Kalamazoo River in Michigan by
 No. 95-00838—Robert Holmes Bell, Chief District Judge.                     placing a portion of the river on the National Priorities List
                                                                            (“NPL”). The ensuing litigation over which entities were
                   Argued: September 9, 2003                                responsible for what share of the considerable investigation
                                                                            and cleanup costs has traced an eight-year oscillation through
             Decided and Filed: January 14, 2004                            and between various levels of the federal court system. In the
                                                                            latest appearance in our courthouse, Plaintiff-Appellant
 Before: MOORE and GILMAN, Circuit Judges; MILLS,                           Kalamazoo River Study Group (“KRSG”), a consortium of
                 District Judge.*                                           former paper-mill owners whose facilities polluted the river,
                                                                            appeals two distinct decisions of the District Court for the
                                                                            Western District of Michigan regarding the allocation of
                                                                            investigation and remediation costs to Defendants-Appellees
    *                                                                       Rockwell/Meritor (“Rockwell”) and Eaton Corporation
     The Hon orable R ichard M ills, United States District Judge for the   (“Eaton”).
Central District of Illinois, sitting by designation.

                                   1
Nos. 01-2453;02-2192              Kalamazoo River v.         3    4    Kalamazoo River v.              Nos. 01-2453;02-2192
                             Rockwell Int’l Corp. et al.               Rockwell Int’l Corp. et al.

  Following the placement of a stretch of the river on the        v. Menasha Corp., 228 F.3d 648 (6th Cir. 2000); Kalamazoo
NPL, the member companies of the KRSG entered into a              River Study Group v. Rockwell Int’l Corp., 274 F.3d 1043
remediation agreement with state and federal authorities.         (6th Cir. 2001) (“Rockwell II”). However, a brief overview
KRSG then filed actions against several other manufacturers       of the litigation is in order.
who operated facilities on the river, including Rockwell and
Eaton, under the contribution provision of the Comprehensive      A. Overview
Environmental Response, Compensation and Liability Act of
1980 (“CERCLA”). See 42 U.S.C. § 9613(f). Following                  In 1990, the federal Environmental Protection Agency
lengthy trials, punctuated by visits to our court, the district   (“EPA”) added to the NPL a thirty-five-mile stretch of the
court found both Rockwell and Eaton liable for some of the        Kalamazoo River after discovering, in coordination with the
PCB contamination, but allocated none of the investigation or     Michigan Department of Natural Resources (“MDNR”), large
cleanup costs to Rockwell and only a small portion to Eaton.      PCB concentrations in the river. Rockwell I, 171 F.3d at
                                                                  1066. In conjunction with the EPA, the MDNR identified
   KRSG first appeals the district court’s denial of its motion   several paper mills owned by HM Holdings/Allied Paper, Inc.
to reopen the order relieving Rockwell of any contribution        (“Allied”), Georgia-Pacific Corp. (“GP”), and Simpson
responsibility. After the district court issued its zero-         Plainwell Paper Co. (“Simpson”) as the main sources of the
allocation order, KRSG discovered new evidence of increased       PCB contamination. In December 1990, these three mill
environmental contamination, prompting it to file the motion      owners entered into an Administrative Order by Consent
to reopen. The district court, construing KRSG’s filing as a      (“AOC”) with the MDNR, which required them to fund a
motion under Rule 60(b)(2) of the Federal Rules of Civil          remedial investigation of the NPL site, even though these
Procedure, denied the request as time-barred. KRSG also           KRSG members did not admit liability for the PCB pollution
appeals the district court’s order allocating to Eaton only a     by signing the AOC. The Fort James Operating Co. (“Fort
small portion of the investigation costs and none of the future   James”), which also owned a facility located adjacent to the
remediation costs. KRSG contends that the district court          NPL site, joined together with Allied, GP, and Simpson to
applied an inappropriate standard of liability and that the       form the Kalamazoo River Study Group, which would
district court made several errors in its factual findings.       conduct the investigation and clean-up of the river. Rockwell
                                                                  I, 171 F.3d at 1067.
  We AFFIRM both district court judgments.
                                                                    The study of the river, referred to as the Remedial
      I. FACTS AND PROCEDURAL HISTORY                             Investigation/Feasability Study (“RI/FS”), uncovered massive
                                                                  PCB contamination. The AOC mandated that for the
  In their nearly decade-long battle, these adversaries have      purposes of the RI/FS, KRSG had to study an expanded
amassed a prodigious factual record, brimming with                ninety-five-mile stretch of the Kalamazoo River. The RI/FS
environmental assessments, ecological data, and scientific        zone included the Eaton Battle Creek plant fifteen miles
opinions. We have already comprehensively detailed many           upstream of the NPL site and the Rockwell Universal Joint
of the pertinent factual disputes elsewhere. See Kalamazoo        facility, located in Allegan downstream of the NPL site. The
River Study Group v. Rockwell Int’l Corp., 171 F.3d 1065          administrative successor to the MDNR, the Michigan
(6th Cir. 1999) (“Rockwell I”); Kalamazoo River Study Group       Department of Environmental Equality (“MDEQ”), ultimately
Nos. 01-2453;02-2192               Kalamazoo River v.          5    6        Kalamazoo River v.                       Nos. 01-2453;02-2192
                              Rockwell Int’l Corp. et al.                    Rockwell Int’l Corp. et al.

concluded in 1997 that the river contained over 350,000             B. Rockwell
pounds of PCBs.
                                                                       KRSG’s contribution action against Rockwell alleged that
  PCBs, which accumulate predominantly in organically rich,         Rockwell’s Allegan facility, which produced universal joints
quiescent areas of the river, present a grave public health risk,   for automobiles and construction equipment, contributed to
mainly because they contaminate fish with potentially               the PCB contamination at the NPL site. The Allegan facility
cancerous chemical waste. Monsanto Corporation produced             was in operation from the early 1900s until 1989. In 1987,
several different varieties of PCBs all under the brand name        the EPA, in an unrelated action, added the Allegan facility to
“Aroclor,” (i.e., Aroclors 1242, 1254, and 1260, with the           the NPL because of arsenic, cyanide, and chromium
higher number corresponding to a greater PCB molecular              contamination, but not because of any widespread PCB
weight). The KRSG companies used Aroclor 1242                       contamination. Soil tests at Allegan did reveal the presence
extensively in their de-inking and paper manufacturing              of some Aroclor 1254 (along with some Aroclor 1242 and
operations for several decades beginning in the 1930s, and          1260) in the groundwater and light non-aqueous phase liquid
they also used Aroclor 1254 in transformers, capacitors,            (the oily film on top of water). Even though there existed no
hydraulic systems, and paints. Throughout the NPL site,             definitive proof that Rockwell ever purchased PCBs or
Aroclor 1242 is the most prevalent PCB, and the MDEQ and            conducted manufacturing operations that would necessitate
EPA determined that KRSG companies were responsible for             the use of PCB-containing oils, the presence of PCBs on the
the bulk of the Aroclor 1242 contamination at the NPL site.         property indicated that it did in fact purchase and employ
The MDEQ also detected Aroclors 1254 and 1260 at the site,          PCBs in its operation. This fact, however, did not resolve the
the questionable source of which forms the kernel of these          more salient question of whether these PCBs actually found
appeals.                                                            their way to the Kalamazoo River such that they contributed
                                                                    to the overall pollution for which KRSG was responsible. In
   All four KRSG companies have not disputed that they are          December 1998, the district court held that Rockwell did
liable and responsible parties within the meaning of                release PCBs into the Kalamazoo River NPL site and was
CERCLA. See 42 U.S.C. § 9607. They have, however,                   therefore liable for some of the pollution.1
claimed that they only contributed minimally to the Aroclor
1254 and 1260 pollution at the NPL site and thus another              Subsequently, in June 2000, the district court set out to
party must be responsible for those PCBs. As responsible            determine the precise allocation of costs Rockwell owed to
parties with a statutory right to contribution from potentially     KRSG. The district court focused almost exclusively on the
liable parties, see 42 U.S.C. § 9613(f), the KRSG members           quantity of PCBs released by Rockwell versus the amount
brought an action in December 1995 against Rockwell, Eaton,         leaked by the KRSG companies. It determined that “[g]iven
and six other companies, including Benteler Industries and
Consumers Power. KRSG alleged that these factory owners
                                                                         1
were partially responsible for the PCB contamination at the               Although the district court improperly burdened KR SG with a
NPL site such that they owed KRSG contribution for the costs        higher liability standard tha n was appropriate and this panel subsequently
of the investigation and future clean-up.                           reversed the district court’s application of that standard, the district co urt’s
                                                                    finding of liability for Rockwell stands under both the discredited higher
                                                                    standard and the less onerous stand ard. See Kalamazoo River Study
                                                                    Group v. Menasha Corp., 228 F.3d 64 8, 655 (6th Cir. 2000).
Nos. 01-2453;02-2192                   Kalamazoo River v.              7    8    Kalamazoo River v.                Nos. 01-2453;02-2192
                                  Rockwell Int’l Corp. et al.                    Rockwell Int’l Corp. et al.

the low levels of PCBs on the Rockwell property, and the fact                  After learning of the EPA order, KRSG filed a motion with
that the river sediments and the fish tend to show no                       the district court on September 21, 2001 to reopen the
significant contribution by Rockwell, the Court finds that                  CERCLA allocation proceedings fifteen months after the
Rockwell’s PCB contribution was very minimal, particularly                  court had made its June 2000 allocation order. KRSG
in contrast to the contribution by [KSRG’s] members.” Joint                 claimed that Rockwell had deliberately obfuscated this data
Appendix (“J.A.”) I at 926 (Dist. Ct. Op. 6/3/00).2 The court               in contravention of its statutory duty, and as a result KRSG
ruled that KRSG could not recover from Rockwell. KSRG                       asked the court to use its “equitable power” to reconsider the
appealed, arguing that the existence of a logical discontinuity             allocation. KRSG did not refer to its motion as a Rule 60(b)
between holding a party liable and allocating no costs                      motion, but on October 15, 2001, the district court ruled as if
demonstrated that the district court had abused its discretion.             the motion were of the Rule 60(b)(2) mold. The district court
We affirmed the district court’s holding in December 2001;                  denied KRSG’s motion because KRSG filed it after the one-
there was no inconsistency, and the district court had broad                year time limit for Rule 60(b)(2) motions had expired.
discretion to allocate the costs of the remedial investigation,
even if the result was a zero allocation to a liable corporation.             On appeal, KRSG offers several alternative arguments.
See Rockwell II, 274 F.3d at 1049.                                          First, KRSG contends that the district court erroneously
                                                                            considered KRSG’s motion as a Rule 60(b)(2) motion,
   The immediate circumstances giving rise to this appeal                   because CERCLA itself provides an equitable basis for
were borne of the acrimonious relationship between the EPA                  reopening an allocation order in the face of changed
and Rockwell. In April 1998, the EPA revoked Rockwell’s                     circumstances. Second, KRSG argues that if Rule 60(b) does
authority to investigate the Allegan NPL site because of                    apply, then the district court should have invoked Rule
multiple delays and acts of noncompliance by Rockwell.                      60(b)(5) instead of Rule 60(b)(2) because the district court’s
Throughout 2000 and 2001, the EPA assumed control of the                    original order was “prospective” and accordingly subject to
investigation and discovered that the Allegan facility in fact              Rule 60(b)(5)’s “reasonable time” limitation, as opposed to
had dramatically higher PCB levels than Rockwell had                        Rule 60(b)(2)’s one-year time bar. Third, KRSG implicitly
previously disclosed; in some instances the new PCB levels                  posits that the newly discovered evidence provides a
were more than one hundred times the previously reported                    sufficient basis for reallocating the remediation costs.
levels. On August 9, 2001, the EPA ordered Rockwell to
abate an “imminent and substantial endangerment to the                      C. Eaton
public health . . . .” J.A. I at 942 (EPA Order, Aug. 2001).
The EPA also noted one PCB plume was then entering the                         KRSG originally brought a contribution action against
Kalamazoo River and another was migrating towards the                       Eaton because Eaton operated three facilities near the
river.                                                                      Kalamazoo River NPL site: Eaton Marshall, Eaton Battle
                                                                            Creek, and Eaton Kalamazoo. The district court granted
                                                                            summary judgment in favor of Eaton as to the Marshall and
    2
                                                                            Kalamazoo facilities in June 1998. Eaton Battle Creek, which
     Owing to the consolidated nature of this case, the parties submitted   is no longer in operation, was located fifteen miles upstream
two different joint appendices. The KR SG-Roc kwell joint appendix (No.     of Morrow Lake Dam and twenty miles upstream of the
01-2453) is denoted J.A. I, whereas the KRSG-Eaton joint appendix (No.
02-2192 ) is denoted J.A. II.
                                                                            Kalamazoo River NPL site. While it was beyond the
Nos. 01-2453;02-2192               Kalamazoo River v.         9    10       Kalamazoo River v.                   Nos. 01-2453;02-2192
                              Rockwell Int’l Corp. et al.                   Rockwell Int’l Corp. et al.

boundaries of the NPL site, it was within the larger confines      parties.3 Morrow Lake is contaminated with Aroclor 1254
of the RI/FS zone. The Battle Creek facility manufactured          (constituting ninety percent of the total PCB contamination),
automotive parts, namely engine valves and gears, and              and while there is evidence that Battle Creek’s wastewater
undisputedly released significant quantities of oil into the       discharge ditch is heavily contaminated with Aroclors 1254
river for over four decades. The main question attendant to        and 1260 at levels comparable to or exceeding the Aroclor
the contribution action against Eaton is whether that oil          1242 contamination at the actual NPL site, other companies,
contained PCBs and if it did, whether those PCBs affected the      including Clark Equipment, used this ditch. Evidence also
NPL site and the RI/FS zone.                                       exists that between Eaton Battle Creek and Morrow Lake, the
                                                                   PCBs appeared in high concentrations in areas with low
   There is some evidence that Eaton Battle Creek employed         amounts of organic material, suggesting that when one
PCB-laden oils in its manufacturing processes, although it         controls for the presence of organic content (a procedure
appears that it did not do so on a regular basis. Investigators    known as “carbon normalization”), the PCB concentration of
discovered PCBs (primarily Aroclors 1248, 1254, and 1260)          Aroclors 1254 and 1260 near Battle Creek was among the
in several sewer outditches and in the wood blocks that lined      highest in the Kalamazoo River area.
the floor at Battle Creek. The district court eventually
concluded that “the PCBs used in Eaton’s Battle Creek                 In December 1998, the district court ruled that while the
facility were only found in the transformers and capacitors        evidence showed that Eaton did utilize some PCBs in its
and the hydraulic fluids, and those fluids were not released to    electrical and hydraulic equipment, any PCB leaks were
the River in any regular or measurable manner.” J.A. II at         minimal in volume and sporadic in occurrence, such that
300 (Dist. Ct. Op. 12/7/98). In other words, Eaton minimally       Eaton was not liable for contribution. However, in assessing
used some PCB-containing hydraulic oils in closed systems;         liability, the district court employed an improper liability
the oil from these systems did not flush directly into the river   standard, which caused us to remand the case for
and leaked only in small amounts onto the floor and possibly       reevaluation. See Kalamazoo River Study Group v. Menasha,
into various sewer ditches on the Eaton property.                  228 F.3d at 661. In May 2001, the district court, while
                                                                   maintaining its previous holding that there was only the most
   KRSG attempted to prove that Eaton PCBs actually entered        scant evidence of a measurable PCB discharge into the NPL
the river and contributed to the pollution of the NPL site or      site from Battle Creek, ruled that it was “constrained to find
the RI/FS zone by presenting undisputed evidence that              that Eaton is liable for some PCB releases . . . to the
Morrow Lake, situated between Battle Creek and the NPL             Kalamazoo River.” J.A. II at 399.
site, is polluted with primarily Aroclor 1254 and minimally
Aroclor 1260. KRSG could not have polluted Morrow Lake,
because it lies upstream of the KRSG facilities, so the ensuing         3
                                                                         KRSG is not responsible for the clean-up of Morrow Lake and other
questions were (1) whether Eaton polluted Morrow Lake and          areas outside of the defined NPL site, but the RI/FS zone encompasses
(2) whether any of the Morrow Lake PCB contamination               Morrow Lake and the Kalamazoo River upstream to Eaton Battle Creek.
impacted the NPL site such that upstream polluters of              Eaton, as a contributio n defendant, is potentially liable for future
Morrow Lake should be held responsible as contributing             remediation costs only to the extent that PCBs for which it is responsible
                                                                   flowed downstream and impacted the NPL site. Eaton could be
                                                                   respo nsible for the costs of investigating the RI/FS even if its PCB s did
                                                                   not affect the NPL site.
Nos. 01-2453;02-2192              Kalamazoo River v.        11    12   Kalamazoo River v.               Nos. 01-2453;02-2192
                             Rockwell Int’l Corp. et al.               Rockwell Int’l Corp. et al.

   The district court then proceeded to receive evidence on the      On August 29, 2002, the district court ordered Eaton to pay
allocation of response costs between KRSG and Eaton.              ten percent of KRSG’s investigation costs in the RI/FS zone
KRSG presented the testimonies of Brown and McLaughlin,           (ten percent of the total $622,615.79 investigation cost for
with the latter stating that he discovered at Battle Creek PCB    that portion equals $ 62,261.58). First, the court noted that
concentrations ranking in the upper 2% of all PCB samples         KRSG had “the burden of proving its equitable right to
taken from the NPL site. Many of McLaughlin’s samples,            contribution by a preponderance of the evidence.” J.A. II at
which demonstrate the presence of high PCB concentrations,        433 (citing United States v. R.W. Meyer, Inc., 932 F.2d 568,
came from a drainage ditch leading to the river that Eaton        573-74 (6th Cir. 1991)). Second, the district court rejected
shared with Clark Equipment. McLaughlin concluded that            McLaughlin’s testimony in favor of Connolly’s, writing that
Battle Creek significantly contributed to the PCB                 while it did “not find Mr. McLaughlin’s conclusions to be
contamination at the NPL site.                                    well supported,” it “found the testimony of Dr. Connolly to be
                                                                  more persuasive . . . .” J.A. II at 443, 445. It reached this
   Eaton, in response, relied on the testimony of Connolly,       conclusion because of Connolly’s credentials and because it
who testified that the PCB concentrations in the ditch and        had more confidence in the science underlying Connolly’s
several of the sample locations near the ditch’s outfall to the   conclusions. In listing the reasons why it disfavored
river were not characteristic of the PCB concentrations in the    McLaughlin’s position, the district court noted that KRSG’s
river between Battle Creek and Morrow Lake. Connolly              claim that Eaton principally contaminated the river with
essentially posited that the Aroclor 1248, 1254, and 1260         Aroclor 1254 “ignore[d] other potential sources of PCBs
concentrations in the general river channel were not              located upstream of Eaton’s Battle Creek facility that could
consistent with Eaton Battle Creek as a PCB point source.         have contributed to the PCBs found in the former channel and
Connolly noted the lack of a PCB gradient spanning the            current channel of the Kalamazoo River near the Eaton/Clark
distance between Battle Creek and Morrow Lake. Generally,         ditch.” J.A. II at 444. Consequently, the court agreed with
PCB concentrations will be highest near the PCB source and        Connolly’s dual contentions that other parties contributed to
will increasingly diminish as the distance from that source       the PCB contamination in Morrow Lake and that Eaton
grows. Comparing the Kalamazoo River to other PCB-                discharged only a “de micromis,” J.A. II at 457, amount of
contaminated rivers with a “normal” PCB gradient, such as         PCBs to the Eaton/Clark ditch. The court found persuasive
the Hudson River in New York and the Housatonic River in          the argument that only a fraction of this “de micromis”
Massachusetts, Connolly highlighted the lack of a gradient        amount traveled to Morrow Lake and only a fraction of that
stretching from the Battle Creek “source” to further              fraction actually passed over the Morrow Lake Dam to the
downstream points. Connolly testified that this lack of a         NPL site.
gradient contradicted the conclusion that Battle Creek was a
primary contributor of Aroclor 1254. Connolly bolstered his         The court then reached the ten-percent figure by applying
theory by suggesting that the absence of a high concentration     the “Gore Factors” outlined in Centerior Service Co. v. Acme
of PCB contamination at the sediment-rich upstream entrance       Scrap Iron & Metal Corp., 153 F.3d 344, 354 (6th Cir. 1998),
to Morrow Lake provided strong evidence that facilities           and relying almost exclusively on the “the amount of the
closer to Morrow Lake, such as the Benteler Industries and        hazardous waste involved.” Plaintiff’s experts had estimated
Consumers Power sites, were the true sources of the Morrow        that Eaton was responsible for forty percent of the Aroclors
Lake contamination.                                               1254 and 1260 at the NPL site, but the district court rejected
Nos. 01-2453;02-2192               Kalamazoo River v.        13    14    Kalamazoo River v.                 Nos. 01-2453;02-2192
                              Rockwell Int’l Corp. et al.                Rockwell Int’l Corp. et al.

this contention as lacking an “articulated scientific basis.”      Rockwell. Second, we explore KRSG’s argument that the
J.A. II at 468. Instead, the district court accepted Connolly’s    district court erred both in its choice of a standard of liability
estimate that only 1.3% of the PCBs in the NPL site could          and its application of that standard to the facts in its Eaton
have come from Morrow Lake. In sum, the court rejected             allocation order. We hold that the district court acted
both the notion that Morrow Lake was a primary contributor         properly in both instances.
of PCBs to the NPL and that Eaton was a primary contributor
to the PCB contamination at Morrow Lake.                           A. KRSG’s Rockwell Appeal

  On appeal of the Eaton decision, KRSG first contends               1. Standard of Review
that“[a]lthough the District Court paid lip service to the
preponderance of the evidence standard . . . it applied a much       Generally, we review the denial of a Rule 60(b) motion for
more stringent standard,” requiring KRSG to disprove the           abuse of discretion. See Blue Diamond Coal Co. v. Trustees
potential responsibility of other upstream facilities. KRSG’s      of the UMWA Combined Benefit Fund, 249 F.3d 519, 524
Eaton Br. at 17. Second, KRSG claims that the district court       (6th Cir. 2001). However, we must “treat the district court’s
committed clear factual errors by accepting the theory that the    interpretation and application of the Federal Rules of Civil
PCB contamination at Morrow Lake and at the NPL site               Procedure as a question of law and, as with all legal
might have come from sources other than Battle Creek.              questions, review [the district court’s] analysis de novo.”
                                                                   Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 510 (6th
                    II. JURISDICTION                               Cir. 2001) (citing Indiana Lumbermens Mut. Ins. Co. v.
                                                                   Timberland Pallet & Lumber Co., 195 F.3d 368, 374 (8th Cir.
   The district court had proper jurisdiction over the original    1999)). The district court’s decision to construe KRSG’s
contribution action pursuant to 42 U.S.C. § 9613(b), the           motion to reopen as one falling under the umbrella of Rule
jurisdictional provision for CERCLA actions. The district          60(b), and more specifically Rule 60(b)(2), is clearly an
court’s ability to hear KRSG’s motion to reopen the                interpretation and application of the Rules of Civil Procedure,
allocation proceedings stems from those same jurisdictional        and thus we review de novo this portion of the court’s
provisions. In a November 9, 2001 order, we ruled that we          analysis.
had jurisdiction over KRSG’s appeal from the district court’s
denial of the motion to reopen the allocation proceedings            2. The Reopening of Allocation Orders under CERCLA
against Rockwell. We have jurisdiction over KRSG’s appeal
of the district court’s final Eaton allocation decision pursuant      KRSG bases its objection to the district court’s
to 28 U.S.C. § 1291.                                               pigeonholing of its motion to reopen as a Rule 60(b) motion
                                                                   on the notion that the inherently equitable nature of the
                      III. ANALYSIS                                CERCLA allocation mechanism permits the reopening of
                                                                   allocation judgments independent of Rule 60(b). KRSG
  Because KRSG’s two appeals present completely distinct           argues that CERCLA allocation orders are subject to revision
legal and factual issues, we discuss each in turn. First, we       whenever the equities underlying the decision shift. Finding
examine KRSG’s claim that the district court erred in denying      no aspect of CERCLA that confirms KRSG’s assertion, we
KRSG’s motion to reopen the allocation decision against            disagree.
Nos. 01-2453;02-2192                   Kalamazoo River v.             15     16     Kalamazoo River v.                        Nos. 01-2453;02-2192
                                  Rockwell Int’l Corp. et al.                       Rockwell Int’l Corp. et al.

   KRSG is certainly correct that principles of equity guide                    KRSG directs our attention to two cases as support for its
CERCLA’s contribution provision, but nothing in CERCLA                       view that CERCLA contains an internal mechanism for
compels the conclusion that the equitable underpinnings of an                reopening allocation decisions, but neither opinion
allocation decision exempt it from the requirement that                      persuasively proves KRSG’s contention. In Acushnet Co. v.
motions to alter judgments be brought under Rule 60(b).                      Coaters, Inc., 972 F. Supp. 41(D. Mass. 1997), a federal
CERCLA permits courts to “allocate response costs among                      district court fashioned an ongoing and provisional CERCLA
liable parties using such equitable factors as the court                     allocation order, stating, “Either party may file with the court,
determines are appropriate.” 42 U.S.C. § 9613(f)(1). There                   when good cause to do so has developed factually, a motion
is nothing in § 9613(f) that suggests that Rule 60(b) is not the             supported by a showing of a material change in circumstances
proper vehicle for altering a judgment, and quite the opposite,              that justifies a change in the allocation of shares among the
42 U.S.C. § 9613(f)(1) clearly states that all claims “shall be              parties.” Id. at 63. Uncertainty about the completeness of the
brought in accordance with . . . the Federal Rules of Civil                  remedial-cost evidence before the court prompted it to permit
Procedure.” Presumably, this illustrates Congress’s intention                explicity a “reasonable opportunity for any interested party to
to make CERCLA allocation decisions no less subject to the                   initiate later proceedings to modify the provisional allocation
Federal Rules of Civil Procedure than any other contribution                 of equitable shares of legal responsibility . . . .” Id. at 69.
decision.                                                                    The district court believed that aspects of CERCLA militated
                                                                             against finality, and it accepted “the consequences of delay
   The crux of KRSG’s argument is that because a district                    and greater expense of final adjudication in order to come
court relies upon equitable factors to make an allocation                    closer . . . [to] equitable allocation of legal responsibilities.”
decision, such a decision is forever subject to revision should              Id. at 62. The court issued a provisional judgment because of
there be any alteration in the equities underlying the
allocation order. KRSG’s position cannot prevail. The
equitable basis of CERCLA allocation decisions does not                      9605(c)(4) is completely inapposite here; it concerns future changes to the
deprive all allocation orders of their finality. Other equitable             President’s national contingency plan for the removal of hazardous
decisions, such as an order mandating specific performance                   substances and states that “[n]othing . . . shall preclude the President from
                                                                             taking new information into account in undertaking response actions
in a contract dispute, are not automatically subject to future               . . . .” Section 9622 is slightly more on point, as it contro ls the President’s
revision. KRSG does not point us to any part of CERCLA in                    ability to enter into settlem ents and agreements with po tentially
which Congress has expressed a desire that all allocation                    responsible parties. It explicitly states that cleanup agreements are to be
decisions should be considered ongoing or nonfinal such that                 entered as consent decrees in a district court. 42 U.S.C. § 9622 (d)(1)(A).
there is another method by which relief from judgment may                    Reliance on § 9622 does not aid KRSG. First, a consent decree is
be sought other than Rule 60(b).4                                            inherently different from a contrib ution allocation dec ision, which is a
                                                                             monetary judgment; a consent decree is “a settlement agreement subject
                                                                             to continued judicial policing.” Lorain NAACP v. Lorain Bd. of Educ.,
                                                                             979 F.2d 114 1, 11 48 (6th Cir. 1992) (quotation omitted). Second, § 9622
    4
                                                                             does not explicitly discuss any mechanism for reopening final judgments
     At oral argume nt, counsel for KRSG suggested that two sections of      that is unique to CERCLA Instead it states, “In the case of consent
CERCLA support KR SG ’s argument in this reg ard. See 42 U.S.C.              decrees . . . no provision of this chap ter shall be construed to preclude or
§§ 9605(c)(4), 962 2. Co unsel’s reference to these sections was misguided   otherwise affect the applicability of general principles of law regarding
because while both concern the impact of future events upon some aspect      the setting aside or modification of consent decrees or other settlem ents.”
of CERCLA , neither even remo tely supports KRSG’s argument. Section         42 U.S.C. § 96 22(m).
Nos. 01-2453;02-2192               Kalamazoo River v.         17    18    Kalamazoo River v.                Nos. 01-2453;02-2192
                              Rockwell Int’l Corp. et al.                 Rockwell Int’l Corp. et al.

the insufficiency of the evidence before it, which prevented it       What these cases show is not that allocation decisions in
from assessing “equitable shares of legal responsibility with       CERCLA cases are inherently subject to change, but rather
the degree of confidence implicit in findings made on a             that courts have the power to fashion relief that is subject to
preponderance of the evidence.” Id. at 71.                          future change. Neither case stands for the proposition that
                                                                    CERCLA provides an alternative route for reopening
   KRSG also cites the Seventh Circuit’s opinion in PMC, Inc.       decisions in lieu of Rule 60(b), but rather they affirm the
v. Sherwin-Williams Co., 151 F.3d 610 (7th Cir. 1998), for          broad equitable powers of the district court. The court in
the proposition that district courts may always reopen an           Acushnet saturated nearly thirty written pages with an
allocation judgment even in the absence of a Rule 60(b)             explanation for why a provisional ruling was necessary.
motion. In PMC, the district court had made Sherwin                 While the Acushnet court did discuss an ideal of flexibility
Williams liable for one-hundred percent of the costs of             within CERCLA, it did not (nor could it) establish a broad
cleaning up a hazardous waste site. Sherwin Williams sought         rule that allocation orders were provisional and exempt from
contribution because PMC had dumped waste at the site after         Rule 60(b). It instead created a provisional order in the face
it acquired the property from Sherwin Williams. The court           of insufficient evidence when there was a concern that the
recognized that PMC might be responsible for future clean-up        evidentiary moorings of any fixed allocation would
costs should it be ordered to clean up any waste, other than        disintegrate in the future.
waste at issue in Sherwin Williams’s contribution order, that
PMC contributed to the site after it purchased the property.           Similarly, KRSG’s focus on PMC is misplaced. The
Id. at 617. However, the Seventh Circuit held that the district     Seventh Circuit’s PMC decision only hypothesized about
judge did not abuse his discretion in ruling that PMC did not       what a district court could do in the face of a premature claim
owe Sherwin Williams contribution for already incurred costs        if there were uncertainty about one of the equitable factors,
because PMC’s dumped waste “may have been too                       i.e., cooperation. The Seventh Circuit’s statements in dicta
inconsequential to affect [Sherwin Williams’] cost of cleaning      did not establish a ground rule that all allocation decisions
up significantly.” Id. at 616. KRSG directs our attention to        based on equitable determinations will always be subject to
the Seventh Circuit’s consideration of whether the allocation       revisions. Moreover, hurting rather than helping KRSG’s
of cleanup costs was premature given that it concerned costs        argument is the fact that the Seventh Circuit affirmed the
“that PMC has not yet incurred.” Hypothesizing, the court           district court’s decision not to alter the allocation despite new
confirmed that the allocation was proper because “[i]t              evidence of contamination when the district court concluded
economizes on judicial time . . . and it also lets the parties      that any contribution PMC may have made to the
know at the earliest opportunity where they stand.” Id. The         contamination at the site was negligible.
court continued, “cooperativeness in doing the actual clean-up
is a relevant equitable factor that cannot be evaluated until the     In allocating no costs of the future remediation to
clean up is complete . . . [b]ut this concern can be                Rockwell, the district judge mentioned nothing about a
accommodated . . . by allowing the district court to make an        provisional order or potential alterations in the future. Nor
all-at-once determination subject to the court’s revisiting the     does the language of the district court’s order leave room for
issue should a failure of cooperation or some other unforeseen      us to infer that the allocation decision was provisional or
circumstance make adherence to the original determination           susceptible to change based upon future events. Unlike the
inequitable.” Id. (citations omitted).                              lower courts in Acushnet and PMC, the district court did not
Nos. 01-2453;02-2192               Kalamazoo River v.        19    20       Kalamazoo River v.                       Nos. 01-2453;02-2192
                              Rockwell Int’l Corp. et al.                   Rockwell Int’l Corp. et al.

describe how the circumstances of this case or the                 order.5 We review de novo the district court’s decision and
insufficiency of the evidence left open the possibility for        hold that there was no error, because the district court’s initial
future alteration of the allocation. Rather, the district court    allocation order was not “prospective” within the meaning of
here simply stated that under the “Gore” equitable factors,        Rule 60(b)(5) and accordingly the time strictures of Rule
“Rockwell should not be required to contribute to the              60(b)(2) control.
remediation of the . . . Superfund site. The PCB releases by
Plaintiff’s members are more than sufficient to justify              Rule 60(b)(5) states in pertinent part that “the court may
imposing on Plaintiff the entire cost of response activities       relieve a party . . . from a[n] . . . order . . . [when] it is no
relating to the NPL site.” J.A. I at 926 (Dist. Ct. Op. 6/3/00).   longer equitable that the judgment should have prospective
This allocation order does not intimate that the evidence          application.” Unlike Rule 60(b)(1)-(3) motions, which cannot
before the district court on any of the equitable factors
considered was incomplete such that the order would be                  5
subject to revision without a Rule 60(b) motion. Nothing in                At the outset, we ca nnot criticize the district court’s turn to Rule
our opinion, however, should be construed as ruling that           60(b)(2), given that it was analyzing a motion to reopen that did not even
district courts cannot fashion provisional allocation orders or    mention Rule 60(b). The district court in many ways gave KRSG the
                                                                   benefit of the doubt, because the district judge could have denied the
that district courts must explicitly label an allocation order     motion on the ground that his allocation order was not subject to revision
“provisional” for a reviewing court to evaluate it as such. As     absent a Rule 60(b) motion given tha t nothing in CERCLA mandates the
demonstrated by Achushnet and PMC, provisional allocation          reopening of allocation orders. However, the district judge did not follow
orders can be valuable equitable tools in the event of             that path, and now, after KR SG ’s failure to m ention Rule 6 0(b) initially,
incomplete evidence.                                               KRSG contends that the district judge chose the wrong su bsection to
                                                                   app ly.
                                                                          KR SG ’s approach raises the specter of waiver. It is “a prerequisite
  This was not such an order. There is no reading of the           to relief under Rule 6 0(b), [that] a p arty must establish that the facts of its
district court’s opinion that suggests its zero-allocation order   case are within one of the enumerated reasons contained in Rule 60(b)
was ongoing or subject to change in the future. Furthermore,       . . . .” Lewis v. Alexander, 987 F.2d 392, 396 (6th C ir. 199 3). Failure to
we have been presented with no support for the notion that         raise an issue at the trial court gene rally prevents a party from arguing the
                                                                   issue on appeal. See Th urman v. Yellow Freight Sys. Inc., 90 F.3d 1160,
CERCLA provides a mechanism independent of Rule 60(b)              1172 (6th C ir. 199 6). K RSG claims that it did raise the sub stance of its
for revisiting allocation orders.                                  Rule 60(b)(5) argument in its motion to reopen, even though it did not
                                                                   explicitly mention Rule 60(b)(5). As support, it points to a 1998 decision
  3.   The District Court’s Choice Between Application of          in which we stated that an argument not explicitly raised at the trial court
       Rule 60(b)(2) or Rule 60(b)(5)                              level would still be considered when it involved a question of law. United
                                                                   Food & Com mercial W orkers Un ion, Loca l 109 9 v. South west O hio Reg’l
   KRSG alternatively contends that if its motion to reopen is     Tran sit Auth., 163 F.3d 341, 360 n.9 (6th Cir. 1998). While United Food
                                                                   is somewhat inapposite, because it concerned a party’s attempt to raise a
viewed as a Rule 60(b) motion, then the more generous time         First Amendm ent overbreadth argument that was not raised in those terms
limits of Rule 60(b)(5) should apply. The district court           initially, we agree that KR SG has eluded waiver by the slimmest of
analyzed KRSG’s motion as if it were a Rule 60(b)(2) motion        margins. The general principle that a district court should not raise a Rule
and accordingly denied it as time-barred, because KRSG filed       60(b) motion sua spon te does no t apply, because the rule against doing so
its motion more than one year after the entry of the allocation    only adheres if the litigant has failed to file any motion, whereas here
                                                                   KRSG filed a motion, albeit an amb iguous one. See Eaton v. Jamrog, 984
                                                                   F.2d 760 , 762 (6th Cir. 1993).
Nos. 01-2453;02-2192               Kalamazoo River v.        21    22    Kalamazoo River v.                Nos. 01-2453;02-2192
                              Rockwell Int’l Corp. et al.                Rockwell Int’l Corp. et al.

be brought more than a year after an entry of judgment, Rule       NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.
60(b)(5) motions can “be made within a reasonable time”            1992) (citing the Rufo modification standard in the school
after the entry of the order. Fed. R. Civ. P. 60(b)(5). The        desegregation context); see also United States v. W. Elec. Co.,
application of Rule 60(b)(5) here turns on the meaning of          46 F.3d 1198, 1203 (D.C. Cir. 1995) (applying Rufo’s “less
“prospective.” The mere possibility that a judgment has some       stringent [] standard” to antitrust consent decree outside of the
future effect does not mean that it is “prospective” because       institutional-reform context, but noting that Rufo only applies
“[v]irtually every court order causes at least some                to certain types of injunctive relief) (alteration in original);
reverberations into the future, and has . . . some prospective     United States v. Kayser-Roth Corp., 272 F.3d 89, 95-96 (1st
effect.” Twelve John Does v. District of Columbia, 841 F.2d        Cir. 2001) (engaging in a Rule 60(b)(5) analysis when a
1133, 1138 (D.C. Cir. 1988). The essential inquiry into the        declaratory judgment for future response costs would have
prospective nature of a judgment revolves around “whether it       prospective effect and there existed changed circumstances).
is ‘executory’ or involves the ‘supervision of changing
conduct or conditions.’” Id. at 1139 (quotation omitted).            We also must heed the requirement that parties cannot
Injunctions (permanent or temporary), some declaratory             disguise Rule 60(b)(1)-(3) motions as 60(b)(4)-(6) motions.
judgments, and particularly consent decrees are prospective        What in reality is a 60(b)(2) motion cannot be labeled as a
judgments susceptible to a Rule 60(b)(5) challenge. See 12         60(b)(5) motion to gain the benefits of a more generous
James Wm. Moore, Moore’s Federal Practice §§ 60.47[1]-             limitations period. McDowell v. Dynamics Corp. of Am., 931
[2]. Money judgments, however, do not generally have               F.2d 380, 383-84 (6th Cir. 1991). KRSG complains that the
prospective application because they are final in the sense of     new evidence of PCB dumping at the Allegan facility alters
involving a set monetary outlay. Id. at § 60.47[1][b].             the equitable calculus employed by the district court, but its
                                                                   claim sounds very much like a claim regarding newly
  Most cases consider Rule 60(b)(5)’s “prospective                 discovered evidence, which is controlled by Rule 60(b)(2).
application” clause in the context of consent decrees, which       See CMC Heartland Partners v. Union Pac. R.R. (In re
are prospective by nature. The Supreme Court in Rufo v.            Chicago, Milwaukee, St. Paul & Pac. RR Co.), 78 F.3d 285,
Inmates of Suffolk County Jail, 502 U.S. 367 (1992), held that     293-94 (7th Cir. 1996) (considering under Rule 60(b)(2)
a plaintiff in institutional-reform litigation could get relief    claim that party was entitled to relief when there was new
under Rule 60(b)(5) where “a significant change either in          evidence regarding cleanup of site in an action concerning a
factual conditions or in law” altered the equitable basis for an   noncontribution provision of CERCLA).
ongoing consent decree. Id. at 384. The Court made clear in
Rufo that this rule should not be limited to institutional-           KRSG is incorrect in its assertion that the district court’s
reform litigation, but while the Court may have intended its       allocation order was “prospective” in the Rule 60(b)(5) sense
analysis to apply to consent decrees involving private parties,    of the word. The district court’s allocation order was not a
the Court did not expand the scope of the term “prospective”       consent decree, an injunction, or even a declaratory judgment.
so as to encompass more varieties of equitable judgments.          Rather, the allocation decision stated that Rockwell was not
We are not aware of any case in which Rufo has been applied        responsible for any measurable PCB contamination to the
to judgments other than consent decrees, declaratory               NPL site; this was a one-time judgment that Rockwell was
judgments, and injunctions, which often require ongoing            not required to contribute and it did not provide for any future
court supervision and future judicial involvement. See Lorain      supervision or alteration by the district court. Merely because
Nos. 01-2453;02-2192                     Kalamazoo River v.              23     24    Kalamazoo River v.                Nos. 01-2453;02-2192
                                    Rockwell Int’l Corp. et al.                       Rockwell Int’l Corp. et al.

KRSG requested contribution for future costs, which the                         evidence” standard, while actually employing a much higher
district court denied, and merely because KRSG’s prospective                    and more stringent standard; in KRSG’s estimation, the
remediation expenses would be higher in a relative sense as                     district court held it to an impermissible standard of “absolute
a result of the district judge’s order, does not mean that the                  disproof” because it required KRSG to demonstrate
order was “prospective” under Rule 60(b)(5).                                    conclusively that other parties did not cause the PCB
                                                                                contamination in the discharge ditch and in the river. We
   Thus, we agree with the district court’s decision to apply                   disagree. We conclude that the district court applied the
Rule 60(b)(2), which permits motions for relief from orders                     appropriate “preponderance of the evidence” standard and
based upon “newly discovered evidence which by due                              neither abused its discretion in allocating only ten percent of
diligence could not have been discovered in time to move for                    the costs to Eaton nor committed a clear error in its factual
a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). Rule                   findings.
60(b)(2) motions must be brought within one year after entry,
which permits a party an extra 355 days more than the usual                       1. Standards of Review
ten-day period to file a motion for a new trial. KRSG’s
motion must fail because it was filed more than fifteen                            We review different aspects of the district court’s order
months after the entry of the judgment.6                                        using different standards of review. We review de novo the
                                                                                legal conclusions of the district court, but we review the
B. KRSG’s Eaton Appeal                                                          court’s factual findings following a bench trial for clear error.
                                                                                Menasha, 228 F.3d at 652. We review the district court’s
  KRSG appeals both the evidentiary standard employed by                        allocation decision more deferentially, particularly because of
the district court and the court’s allocation to Eaton of only                  the equitable nature of CERCLA contribution decisions. See
for ten percent of the investigation and for none of the future                 Franklin County Convention Facilities Auth. v. Am. Premier
cleanup costs. More specifically, KRSG claims that the                          Underwriters, Inc., 240 F.3d 534, 549 (6th Cir. 2001) (noting
district court paid “lip service” to the “preponderance of                      the district court’s “broad discretion” in allocating CERCLA
                                                                                contribution). We will overturn the district court’s allocation
                                                                                order only if we are left with the “definite and firm conviction
    6
       Even if KRS G had filed a timely Rule 60(b)(2) motion, it could not
                                                                                that the trial court committed a clear error of judgment.”
obtain relief. It did not appear to exercise due diligence in obtaining the     Rockwell II, 274 F.3d at 1047 (quoting Logan v. Dayton
new evidence. It is somewhat surprising that KRSG d id not seek to test         Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989)). The
the Rockwell site itself sometime during discovery. It is even more             factual findings underlying the district court’s allocation order
incred ible that KRSG did not seek access to the Rockwell site in A pril        are reviewed for clear error. Schroyer v. Frankel, 197 F.3d
1998 when the EPA anno unced its suspicion that Rockwell was “not
fulfilling its obligation to tho roughly and objectively investigate the Site
                                                                                1170, 1173 (6th Cir. 1999); see also Franklin County, 240
and present the results on behalf of the public; but, rather, contriving a      F.3d at 541 (noting in a CERCLA contribution opinion that
study to avoid liabilities at the Site[,]” which raised a bold red flag. J.A.   “[w]here two logically permissive interpretations of the
I at 1498 (EPA Letter). KRSG certainly had time to investigate the site         evidence exist, the trial judge’s selection cannot be adjudged
either during the three years of discovery that preceded the liability          clearly erroneous on appeal.”)
portion of the trial or during the eighteen-month span between the April
1998 EPA action and the beginning of the allocation phase in November
1999.
Nos. 01-2453;02-2192               Kalamazoo River v.         25    26    Kalamazoo River v.                Nos. 01-2453;02-2192
                              Rockwell Int’l Corp. et al.                 Rockwell Int’l Corp. et al.

  2.   The District Court’s Application of a Standard of            Eaton could ever be “ruled in” as a PCB contributor and thus
       Liability                                                    that KRSG’s failure to “rule out” other potential contributors
                                                                    was only one part of the district court’s final order. We
   The district court’s application of a preponderance of the       accept neither view, but rather affirm the district court’s order
evidence standard is a mixed question of law and fact that we       because it appropriately weighed the evidence presented by
review de novo. CERCLA contribution plaintiffs must prove           both sides to conclude that Eaton was only minimally
that they are entitled to reimbursement by a preponderance of       responsible for some of the investigation costs incurred by
the evidence. See B.F. Goodrich v. Betkoski, 99 F.3d 505,           KRSG.
526 (2d Cir. 1996). Nothing in the wording of the CERLCA
contribution provision suggests otherwise. See 42 U.S.C.               First, there is no indication that the district court clearly
§ 9613(f). In his August 2002 allocation order, the district        erred in its factual findings. Some of the evidence does
judge wrote that “although [KRSG] is not required to prove          support the theory that Eaton contributed to the PCB
its case with . . . mathematical precision, or scientific           contamination for which KRSG is responsible. Aroclors
certainty, it still has the burden of proving its equitable right   1254 and 1260, which comprise twenty-five percent of the
to contribution by a preponderance of the evidence.” J.A. II        PCB contamination at the NPL site and ninety percent of the
at 433 (Dist. Ct. Op. 8/29/02). KRSG asserts that the district      PCB contamination at Morrow Lake, were found at Battle
court only nominally applied this standard, while effectively       Creek. Throughout its history, Eaton Battle Creek discharged
holding KRSG to a much higher standard. This argument is            large quantities of oil to the river, and the wastewater ditch
misguided because the district judge specifically stated that he    connecting the Battle Creek facility to the river contained
was employing a preponderance of the evidence standard and          high PCB concentrations, particularly when one controls for
even made clear that KRSG did not have to prove its case            the amount of carbon content. Additionally, KRSG’s expert,
with “scientific certainty,” or “absolute proof” as KRSG            McLaughlin, testified that no other potentially responsible
labels it. KRSG’s argument that the allocation order focused        party upstream of Morrow Lake, including Clark Equipment
too heavily on KRSG’s inability to disprove the possible            with whom Eaton shared the wastewater ditch, released as
contamination by other facilities on the Kalamazoo River is         much PCBs to the river as Eaton. McLaughlin also
a contention that the district court misweighed the evidence;       concluded that sources closer to Morrow Lake, such as
it is not an assertion that the district court applied an           Benteler Industries and Consumers Power, did not release
inappropriate burden of proof.                                      PCBs to Morrow Lake and thus Eaton must be responsible.
  3. The District Court’s Allocation Decision                          Eaton countered KRSG’s evidence with support of its own
                                                                    and ultimately the court found Eaton’s proof more compelling
  We affirm the district court’s judgment because the court         than KRSG’s. The evidence presented by Eaton showed that
neither clearly erred in its factual finding nor abused its         it barely used any PCB-laden oils at Battle Creek and that
discretion in allocating only a small portion of KRSG’s             most of the PCBs found in the wood floors came from closed-
investigation costs to Eaton. KRSG contends that the district       system transformers and hydraulics. The PCBs in the floor
court improperly required KRSG to disprove the complicity           were thus the result of incidental and minor spillage, the oil
of potentially responsible parties other than Eaton. Eaton          from which would not have been flushed to the river. Eaton’s
responds that KRSG did not provide enough evidence that             expert explained that polluted rivers generally have a higher
Nos. 01-2453;02-2192               Kalamazoo River v.         27    28    Kalamazoo River v.                 Nos. 01-2453;02-2192
                              Rockwell Int’l Corp. et al.                 Rockwell Int’l Corp. et al.

concentration of PCBs near the source with decreasing               a whole, and the district court chose between two permissible
concentrations as one travels further from the source. There        interpretations of the evidence.
was no such gradient stretching downstream from Battle
Creek, and the MDNR found scant proof of PCB                          KRSG contends that the district court erred because rather
contamination in the fifteen-mile stretch of river between          than requiring it to prove Eaton’s complicity, the court forced
Battle Creek and Morrow Lake, which indicated that sources          KRSG to disprove the potential responsibility of Clark,
closer to Morrow Lake, such as Benteler Industries and              Benteler, and Consumers Power to the PCB contamination in
Consumers Power, primarily contaminated the lake with               the Eaton/Clark wastewater ditch and Morrow Lake. This
PCBs. Such a conclusion was bolstered by the fact that the          argument is flawed. Most importantly, the court did not rely
downstream portions of Morrow Lake had higher PCB                   solely on evidence that other parties may have added to the
concentrations than the entrance to the lake closer to Battle       PCB contamination in Morrow Lake and the NPL site; in
Creek; if there was an upstream PCB source, the upstream            making its ruling, the court focused primarily on Connolly’s
entrance to Morrow Lake should have had high PCB levels             testimony about the lack of a gradient and the evidence that
because of its high organic content, but in reality it had a low    any PCBs Eaton may have leaked did not contribute to the
PCB concentration.                                                  pollution upstream of Morrow Lake, in Morrow Lake, or in
                                                                    the NPL site. Additionally, evidence exists that Clark,
   The district court assessed all of this evidence and             Benteler, and Consumers may have contributed to the PCB
concluded that Eaton’s use of PCBs was exceedingly minimal          contamination upstream of the NPL site. The district court
and that any PCBs it did use barely impacted the pollution at       did not require KRSG to disprove in any absolute sense the
Morrow Lake, let alone the contamination at the actual NPL          potential contamination by those facilities, but rather
site. In making this factual finding, the district judge rejected   considered the significant probability that they added to the
the testimony of KRSG’s expert McLaughlin because the               pollution for which Eaton was being blamed. Thus, we
judge did not believe that it was well-supported and because        cannot agree that the district court clearly erred in reaching its
he considered Connolly’s testimony to be more persuasive.           factual findings.
This preference of one expert over another was not clearly
erroneous, as the district judge had the opportunity to assess         Second, we hold that the district court did not abuse its
and observe each expert before making his decision. The             discretion by concluding that Eaton was responsible only for
district court noted that Connolly “has the most expertise of       ten percent of the investigation costs and not responsible for
any of the witnesses in the area of hydrogeology and the            any future costs of remediating the NPL site. KRSG contends
transport of PCBs in the river environment” and that                that the district judge abused his discretion, because he
Connolly had testified before Congress. J.A. II at 445 (Dist.       ignored evidence of Eaton’s culpability and required KRSG
Ct. Op. 8/29/02). Based on his acceptance of Connolly’s             to disprove affirmatively that other parties, such as Clark and
testimony, the district judge concluded that KRSG had not           Benteler, were the actual sources of the PCBs. Again, we
proven by a preponderance of the evidence that Eaton should         cannot accept KRSG’s position. The district judge did not
be responsible for a portion of KRSG’s costs. The district          ignore evidence of Eaton’s role in adding to the
court did not clearly err in making these factual                   contamination, but rather found other contrary evidence more
determinations; they were well-supported by the evidence as         probative and persuasive. The district court noted that Eaton
                                                                    may have released some PCBs into the river, although it
Nos. 01-2453;02-2192                    Kalamazoo River v.              29     30     Kalamazoo River v.                         Nos. 01-2453;02-2192
                                   Rockwell Int’l Corp. et al.                        Rockwell Int’l Corp. et al.

could not say with certainty that Eaton was the source of the                  ignoring the evidence of PCB contamination by Clark,
PCBs in the wastewater ditch. Yet, the district court rested its               Benteler, and Consumers Power, we are not left with the firm
decision on Connolly’s testimony and ruled that it was                         and definite conviction that the district court committed a
unlikely that Eaton’s PCBs added to the pollution in the                       mistake. Connolly’s testimony about the lack of a gradient
Morrow Lake Dam and even less likely that these PCBs then                      flowing downstream from Eaton and the concentration of
entered the NPL site. If Eaton did release any PCBs, it                        PCBs at the downstream, rather than the upstream border of
released an extremely minimal volume to the RI/FS zone such                    Morrow Lake, as well as the dearth of evidence that Eaton
that Eaton was responsible for only a small share of KRSG’s                    even used PCBs in significant quantities at any point in its
costs.                                                                         operation, all help bolster the district court’s allocation order.
  Furthermore, the court did not myopically base its decision
on KRSG’s failure to rule out Clark and Benteler as potential
PCB sources. Whereas KRSG views the district court as
requiring it to disprove other parties’ potential responsibility,
the district court in reality recognized that some convincing
evidence demonstrated that parties other than Eaton may have
been the chief polluters of the wastewater ditch, Morrow
Lake, and the NPL site. It accordingly held that Eaton was                     liability phase, see J.A. II at 382 -83 (D ist. Ct. Op . 5/9/01), that C lark did
responsible for only a small portion of KRSG’s costs, because                  not discharge any e ffluent to the ditch it shared with Eaton, because the
evidence showed that Clark contributed to the PCB                              district cou rt held that this earlier finding was based upon the erroneous
                                                                               testimony of Thomas Mattson, who mistakenly claimed that Clark did not
contamination in the discharge ditch and that Benteler                         discharge any PCB-containing effluent to the shared ditch. See J.A. II at
Industries and/or Consumers Power were the main sources of                     436-37 (D ist. Ct. Op. 8/29/02).
Aroclors 1254 and 1260 at Morrow Lake.7 Yet, even                                   KRSG also complains about an alleged inconsistency between
                                                                               previous findings and the district court’s holding that facilities closer to
                                                                               Morrow Lake were in fact the most likely source of the Aroclor 1254 and
    7
                                                                               1260 pollution at Mo rrow Lake. In an earlier order, the district court
      KR SG ’s argume nt that the d istrict court is being inconsistent with   granted Benteler’s motion for summary jud gment on K RSG’s
its past opinions in regards to the potential contributions of Clark and       contribution claim, which we affirmed. Rockwell I, 171 F.3d at 1073.
Benteler is without m erit. KRSG argues at one point that the district court   KRSG believes that the district court canno t have logically “exonerated”
had previously exculpated Clark by stating that there was no qualitative       Be nteler in 1996 and then found it to be a potential PCB contributor in
or quantitative evidence o f any PC B d ischarge by C lark. See KR SG ’s       2002. KRSG’s argument highlights its misunderstanding of the nature of
Eaton Br. at 21 (citing J.A. II at 437 (D ist. Ct. Op. 8/29/02)). Quite the    its evidentiary burden. The district court did not exonerate Benteler.
opposite, the district court noted that Clark may have been responsible for    Rather, it granted the motion for summary judgment because KRSG did
some PCB contamination. It first remarked that even KRSG ’s expert,            not offer evidence that created a genuine issue of material fact regarding
McL aughlin, “conceded that the PCBs found in the Eaton/Clark ditch            Benteler’s contribution o f PCBs. H ere, a d ifferent defendant, Eaton,
could have originated from Clark if Clark’s effluent contained P CB s.”        prese nts the type of evidence that KRSG should have p resented six years
J.A. II at 437 (Dist. Ct. Op. 8/29/02). The district judge cautioned that      ago; i.e., some convincing facts that the Morrow Lake contaminatio n did
“no direct evidence” showed that Clark’s discharges contained PCBs, but        not come from sources upstream of Morrow Lake, but rather came from
he mentio ned that Clark may have used P CB -containing oils in its            facilities on the lake. This is not an inconsistency, but rather it is the
transformers and hydraulic systems. J.A. II at 437 . Furthermore, there is     reality that Eaton is using evidence against KRSG that would have helped
no inconsistency with the district court’s previous finding during the         KRS G in its case against Benteler.
Nos. 01-2453;02-2192               Kalamazoo River v.        31
                              Rockwell Int’l Corp. et al.

                    IV. CONCLUSION
  Because the district court correctly dismissed KRSG’s
motion to reopen as a Rule 60(b)(2) motion that was time-
barred and because the district court did not commit clear
error or abuse its discretion in allocating to Eaton only a very
small portion of KRSG’s investigation costs, we AFFIRM
the decisions of the lower court.
