Kalamazoo River Study Group v. ROCKWELL INTERNATIONAL CORPORATION and EATON CORPORATION

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0018P (6th Cir.)
File Name: 04a0018p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KALAMAZOO RIVER STUDY
GROUP,
Plaintiff-Appellant,
v.
ROCKWELL INTERNATIONAL
CORPORATION and EATON
CORPORATION,
Defendants-Appellees.
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Nos. 01-2453;
02-2192
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 95-00838—Robert Holmes Bell, Chief District Judge.
Argued: September 9, 2003
Decided and Filed: January 14, 2004
Before: MOORE and GILMAN, Circuit Judges; MILLS,
District Judge.*
2 Kalamazoo River v.
Rockwell Int’l Corp. et al.
Nos. 01-2453;02-2192
_________________
COUNSEL
ARGUED: Jerome T. Wolf, SONNENSCHEIN NATH &
ROSENTHAL, Kansas City, Missouri, for Appellant.
Joseph C. Basta, DYKEMA GOSSETT, Ann Arbor,
Michigan, for Appellees. ON BRIEF: Jerome T. Wolf,
James L. Moeller, David S. Ladwig, SONNENSCHEIN
NATH & ROSENTHAL, Kansas City, Missouri, Alan C.
Bennett, LAW, WEATHERS & RICHARDSON, Grand
Rapids, Michigan, for Appellant. Joseph C. Basta,
DYKEMA GOSSETT, Ann Arbor, Michigan, Kathryn J.
Humphrey, DYKEMA GOSSETT, Detroit, Michigan, for
Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In 1990,
federal and state environmental authorities officially
recognized the massive polychlorinated biphenyls (“PCB”)
contamination of the Kalamazoo River in Michigan by
placing a portion of the river on the National Priorities List
(“NPL”). The ensuing litigation over which entities were
responsible for what share of the considerable investigation
and cleanup costs has traced an eight-year oscillation through
and between various levels of the federal court system. In the
latest appearance in our courthouse, Plaintiff-Appellant
Kalamazoo River Study Group (“KRSG”), a consortium of
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
(“Eaton”).

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

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5
concluded in 1997 that the river contained over 350,000
pounds of PCBs.
PCBs, which accumulate predominantly in organically rich,
quiescent areas of the river, present a grave public health risk,
mainly because they contaminate fish with potentially
cancerous chemical waste. Monsanto Corporation produced
several different varieties of PCBs all under the brand name
“Aroclor,” (i.e., Aroclors 1242, 1254, and 1260, with the
higher number corresponding to a greater PCB molecular
weight). The KRSG companies used Aroclor 1242
extensively in their de-inking and paper manufacturing
operations for several decades beginning in the 1930s, and
they also used Aroclor 1254 in transformers, capacitors,
hydraulic systems, and paints. Throughout the NPL site,
Aroclor 1242 is the most prevalent PCB, and the MDEQ and
EPA determined that KRSG companies were responsible for
the bulk of the Aroclor 1242 contamination at the NPL site.
The MDEQ also detected Aroclors 1254 and 1260 at the site,
the questionable source of which forms the kernel of these
appeals.
All four KRSG companies have not disputed that they are
liable and responsible parties within the meaning of
CERCLA. See 42 U.S.C. § 9607. They have, however,
claimed that they only contributed minimally to the Aroclor
1254 and 1260 pollution at the NPL site and thus another
party must be responsible for those PCBs. As responsible
parties with a statutory right to contribution from potentially
liable parties, see 42 U.S.C. § 9613(f), the KRSG members
brought an action in December 1995 against Rockwell, Eaton,
and six other companies, including Benteler Industries and
Consumers Power. KRSG alleged that these factory owners
were partially responsible for the PCB contamination at the
NPL site such that they owed KRSG contribution for the costs
of the investigation and future clean-up.
6 Kalamazoo River v.
Rockwell Int’l Corp. et al.
Nos. 01-2453;02-2192
1Although the district court improperly burdened KR SG with a
higher liability standard tha n was appropriate and this panel subsequently
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).
B. Rockwell
KRSG’s contribution action against Rockwell alleged that
Rockwell’s Allegan facility, which produced universal joints
for automobiles and construction equipment, contributed to
the PCB contamination at the NPL site. The Allegan facility
was in operation from the early 1900s until 1989. In 1987,
the EPA, in an unrelated action, added the Allegan facility to
the NPL because of arsenic, cyanide, and chromium
contamination, but not because of any widespread PCB
contamination. Soil tests at Allegan did reveal the presence
of some Aroclor 1254 (along with some Aroclor 1242 and
1260) in the groundwater and light non-aqueous phase liquid
(the oily film on top of water). Even though there existed no
definitive proof that Rockwell ever purchased PCBs or
conducted manufacturing operations that would necessitate
the use of PCB-containing oils, the presence of PCBs on the
property indicated that it did in fact purchase and employ
PCBs in its operation. This fact, however, did not resolve the
more salient question of whether these PCBs actually found
their way to the Kalamazoo River such that they contributed
to the overall pollution for which KRSG was responsible. In
December 1998, the district court held that Rockwell did
release PCBs into the Kalamazoo River NPL site and was
therefore liable for some of the pollution.1
Subsequently, in June 2000, the district court set out to
determine the precise allocation of costs Rockwell owed to
KRSG. The district court focused almost exclusively on the
quantity of PCBs released by Rockwell versus the amount
leaked by the KRSG companies. It determined that “[g]iven

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

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9
boundaries of the NPL site, it was within the larger confines
of the RI/FS zone. The Battle Creek facility manufactured
automotive parts, namely engine valves and gears, and
undisputedly released significant quantities of oil into the
river for over four decades. The main question attendant to
the contribution action against Eaton is whether that oil
contained PCBs and if it did, whether those PCBs affected the
NPL site and the RI/FS zone.
There is some evidence that Eaton Battle Creek employed
PCB-laden oils in its manufacturing processes, although it
appears that it did not do so on a regular basis. Investigators
discovered PCBs (primarily Aroclors 1248, 1254, and 1260)
in several sewer outditches and in the wood blocks that lined
the floor at Battle Creek. The district court eventually
concluded that “the PCBs used in Eaton’s Battle Creek
facility were only found in the transformers and capacitors
and the hydraulic fluids, and those fluids were not released to
the River in any regular or measurable manner.” J.A. II at
300 (Dist. Ct. Op. 12/7/98). In other words, Eaton minimally
used some PCB-containing hydraulic oils in closed systems;
the oil from these systems did not flush directly into the river
and leaked only in small amounts onto the floor and possibly
into various sewer ditches on the Eaton property.
KRSG attempted to prove that Eaton PCBs actually entered
the river and contributed to the pollution of the NPL site or
the RI/FS zone by presenting undisputed evidence that
Morrow Lake, situated between Battle Creek and the NPL
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
questions were (1) whether Eaton polluted Morrow Lake and
(2) whether any of the Morrow Lake PCB contamination
impacted the NPL site such that upstream polluters of
Morrow Lake should be held responsible as contributing
10 Kalamazoo River v.
Rockwell Int’l Corp. et al.
Nos. 01-2453;02-2192
3KRSG is not responsible for the clean-up of Morrow Lake and other
areas outside of the defined NPL site, but the RI/FS zone encompasses
Morrow Lake and the Kalamazoo River upstream to Eaton Battle Creek.
Eaton, as a contributio n defendant, is potentially liable for future
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.
parties.3 Morrow Lake is contaminated with Aroclor 1254
(constituting ninety percent of the total PCB contamination),
and while there is evidence that Battle Creek’s wastewater
discharge ditch is heavily contaminated with Aroclors 1254
and 1260 at levels comparable to or exceeding the Aroclor
1242 contamination at the actual NPL site, other companies,
including Clark Equipment, used this ditch. Evidence also
exists that between Eaton Battle Creek and Morrow Lake, the
PCBs appeared in high concentrations in areas with low
amounts of organic material, suggesting that when one
controls for the presence of organic content (a procedure
known as “carbon normalization”), the PCB concentration of
Aroclors 1254 and 1260 near Battle Creek was among the
highest in the Kalamazoo River area.
In December 1998, the district court ruled that while the
evidence showed that Eaton did utilize some PCBs in its
electrical and hydraulic equipment, any PCB leaks were
minimal in volume and sporadic in occurrence, such that
Eaton was not liable for contribution. However, in assessing
liability, the district court employed an improper liability
standard, which caused us to remand the case for
reevaluation. See Kalamazoo River Study Group v. Menasha,
228 F.3d at 661. In May 2001, the district court, while
maintaining its previous holding that there was only the most
scant evidence of a measurable PCB discharge into the NPL
site from Battle Creek, ruled that it was “constrained to find
that Eaton is liable for some PCB releases . . . to the
Kalamazoo River.” J.A. II at 399.

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

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this contention as lacking an “articulated scientific basis.”
J.A. II at 468. Instead, the district court accepted Connolly’s
estimate that only 1.3% of the PCBs in the NPL site could
have come from Morrow Lake. In sum, the court rejected
both the notion that Morrow Lake was a primary contributor
of PCBs to the NPL and that Eaton was a primary contributor
to the PCB contamination at Morrow Lake.
On appeal of the Eaton decision, KRSG first contends
that“[a]lthough the District Court paid lip service to the
preponderance of the evidence standard . . . it applied a much
more stringent standard,” requiring KRSG to disprove the
potential responsibility of other upstream facilities. KRSG’s
Eaton Br. at 17. Second, KRSG claims that the district court
committed clear factual errors by accepting the theory that the
PCB contamination at Morrow Lake and at the NPL site
might have come from sources other than Battle Creek.
II. JURISDICTION
The district court had proper jurisdiction over the original
contribution action pursuant to 42 U.S.C. § 9613(b), the
jurisdictional provision for CERCLA actions. The district
court’s ability to hear KRSG’s motion to reopen the
allocation proceedings stems from those same jurisdictional
provisions. In a November 9, 2001 order, we ruled that we
had jurisdiction over KRSG’s appeal from the district court’s
denial of the motion to reopen the allocation proceedings
against Rockwell. We have jurisdiction over KRSG’s appeal
of the district court’s final Eaton allocation decision pursuant
to 28 U.S.C. § 1291.
III. ANALYSIS
Because KRSG’s two appeals present completely distinct
legal and factual issues, we discuss each in turn. First, we
examine KRSG’s claim that the district court erred in denying
KRSG’s motion to reopen the allocation decision against
14 Kalamazoo River v.
Rockwell Int’l Corp. et al.
Nos. 01-2453;02-2192
Rockwell. Second, we explore KRSG’s argument that the
district court erred both in its choice of a standard of liability
and its application of that standard to the facts in its Eaton
allocation order. We hold that the district court acted
properly in both instances.
A. KRSG’s Rockwell Appeal
1. Standard of Review
Generally, we review the denial of a Rule 60(b) motion for
abuse of discretion. See Blue Diamond Coal Co. v. Trustees
of the UMWA Combined Benefit Fund, 249 F.3d 519, 524
(6th Cir. 2001). However, we must “treat the district court’s
interpretation and application of the Federal Rules of Civil
Procedure as a question of law and, as with all legal
questions, review [the district court’s] analysis de novo.”
Jalapeno Prop. Mgmt., LLC v. Dukas, 265 F.3d 506, 510 (6th
Cir. 2001) (citing Indiana Lumbermens Mut. Ins. Co. v.
Timberland Pallet & Lumber Co., 195 F.3d 368, 374 (8th Cir.
1999)). The district court’s decision to construe KRSG’s
motion to reopen as one falling under the umbrella of Rule
60(b), and more specifically Rule 60(b)(2), is clearly an
interpretation and application of the Rules of Civil Procedure,
and thus we review de novo this portion of the court’s
analysis.
2. The Reopening of Allocation Orders under CERCLA
KRSG bases its objection to the district court’s
pigeonholing of its motion to reopen as a Rule 60(b) motion
on the notion that the inherently equitable nature of the
CERCLA allocation mechanism permits the reopening of
allocation judgments independent of Rule 60(b). KRSG
argues that CERCLA allocation orders are subject to revision
whenever the equities underlying the decision shift. Finding
no aspect of CERCLA that confirms KRSG’s assertion, we
disagree.

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

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

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

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

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

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

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

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

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Nos. 01-2453;02-2192 Kalamazoo River v.
Rockwell Int’l Corp. et al.
31
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.

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