United States of America v. CONSOLIDATION COAL CO.; TRIANGLE WIRE & CABLE, INC., Third-Party

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0346P (6th Cir.)
File Name: 03a0346p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff,
v.
CONSOLIDATION COAL CO.;
TRIANGLE WIRE & CABLE,
INC.,
Third-Party
Plaintiffs-Appellees,
NEVILLE CHEMICAL CO.,
Third-Party
Defendant-Appellant.
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No. 02-3308
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
Nos. 94-00785; 94-00248—George C. Smith,
District Judge.
Argued: July 30, 2003
Decided and Filed: September 26, 2003
2 United States v. Consolidation
Coal Co., et al.
No. 02-3308
*The Honorable Karen Caldwell, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
Before: DAUGHTREY and GILMAN, Circuit Judges;
CALDWELL, District Judge.*
_________________
COUNSEL
ARGUED: Neil G. Epstein, ECKERT, SEAMANS,
CHERIN & MELLOTT, Philadelphia, Pennsylvania, for
Appellant. Daniel M. Darragh, BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION, Pitts burgh ,
Pennsylvania, for Appellees. ON BRIEF: Neil G. Epstein,
Carol L. Press, ECKERT, SEAMANS, CHERIN &
MELLOTT, Philadelphia, Pennsylvania, Richard S.
Wiedman, ECKERT, SEAMANS, CHERIN & MELLOTT,
Pittsburgh, Pennsylvania, for Appellant. Daniel M. Darragh,
B U C H A N A N I N G E R S O LL P R O F E S S I O N AL
CORPORATION, Pittsburgh, Pennsylvania, Joseph D.
Lonardo, VORYS, SATER, SEYMOUR & PEASE,
Washington, D.C., for Appellees.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. Third-
party defendant Neville Chemical Company appeals a district
court decision holding it liable for a portion of the past and
future costs of cleanup at the Buckeye Reclamation Landfill
in Belmont County, Ohio. The landfill has been on the
National Priorities List as a Superfund site since 1983. Third-
party plaintiffs Consolidation Coal Company (referred to
throughout the record as Consol) and Triangle Wire & Cable,

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No. 02-3308 United States v. Consolidation
Coal Co., et al.
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Inc., brought an action under § 113 of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (CERCLA), 42 U.S.C. §§ 9601
et seq., seeking a declaration of liability and equitable
allocation of response costs to Neville Chemical. Although
the chemical company stipulated that it had deposited
472,000 gallons of wastewater sludge from its Pennsylvania
treatment plant in the landfill between December 1978 and
February 1979, Neville Chemical claims that the district court
was unreasonable in imposing any of the cleanup costs on it
because the wastewater caused no harm. The district court
found Neville Chemical liable under CERCLA and
determined its equitable share of past and future response
costs for cleanup of the landfill to be 6%. See United States
v. Consolidation Coal Co., 184 F. Supp. 2d 723, 752 (S.D.
Ohio 2002).
For the reasons set out below, we affirm the district court’s
decision as to liability and equitable share based on the
reasoning in the district court opinion. However, as to the
district court’s calculation of prejudgment interest, awarded
to Consol and Triangle Wire under 42 U.S.C. § 9607(a), we
find it necessary to remand the case for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
The record indicates that three different kinds of waste were
deposited at the Buckeye Reclamation Landfill over the last
seven decades. First, the landfill contains “gob,” material left
over from coal mining operations in the area from 1934 to
1954 and composed of coal, rock, clay, and other geological
materials. The “gob” was left on the property before the area
was a landfill. Second, the landfill contains industrial waste,
which was disposed of primarily in a small area known as the
“waste pit.” The parties have stipulated the weight, type, and
relative amount of the 45,000 tons of industrial waste that
various entities deposited at the landfill from 1972 to 1980.
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Coal Co., et al.
No. 02-3308
Neville Chemical’s share was calculated to be 4.78%. Third,
the landfill contains municipal waste, between 755,000 and
955,000 tons of which were disposed of at the landfill from
1970 to 1991. All three types of waste contain hazardous
substances and contribute to the current need for cleanup.
After investigation by the Ohio Environmental Protection
Agency (OEPA) and the United States Environmental
Protection Agency (USEPA), the USEPA placed the landfill
on the list of Superfund sites in September 1983. In
December 1984, the USEPA notified a number of companies
that it considered them potentially responsible parties (PRPs)
and requested that the companies conduct a remedial
investigation and feasibility study. Neville Chemical declined
to participate, but the other companies worked with the
USEPA to develop an administrative consent order that
required a remedial investigation and feasibility study, as well
as an endangerment assessment. After evaluating the results
of the remedial investigation and feasibility study, the
USEPA selected construction of a solid waste landfill cap as
the appropriate remedy, at a cost of $48 million to $52
million. When the USEPA notified non-participating PRPs
of their potential liability, a number of them began to
participate in the remediation process that resulted in a second
administrative consent order. Neville Chemical again
declined to participate.
In 1994, Consol filed a complaint for declaratory judgment,
in part to determine liability and allocation of costs under
CERCLA, and the United States filed a complaint for the
recovery of costs. The cases were consolidated and realigned
so that the sole plaintiff in both cases was the United States.
Ten of the defendant PRPs filed a third-party complaint for
contribution against 64 third-party defendants, including
Neville Chemical. During this time, the USEPA and the
cooperating PRPs, including Consol and Triangle Wire,
continued to negotiate modifications to the remediation plan.

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No. 02-3308 United States v. Consolidation
Coal Co., et al.
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Although invited to do so by the court, Neville Chemical once
again declined to participate.
As a result of the negotiations, the USEPA modified its
decision as to the chosen remediation for the site. The cost of
the revised plan was estimated at $25 million, about one-half
of the cost of the original plan. In March 1998, the court
entered a consent decree between the United States and the
cooperating PRPs providing for performance of the selected
remediation at the landfill site. Consol, acting individually
and on behalf of a number of other cooperating PRPs, and
Triangle Wire continued to pursue their third-party action
against Neville, seeking contribution under CERCLA’s § 113.
After a long and detailed analysis, the district court
ultimately ruled for Consol and Triangle Wire, determining
that Neville Chemical was responsible for 6% of the past and
future response cost of the Buckeye Reclamation Landfill.
Neville appeals both the finding of liability and the allocation
of a 6% equitable share.
II. STANDARD OF REVIEW
A district court’s allocation of response costs in a CERCLA
contribution will not be set aside in the absence of a finding
that the district court abused its discretion. See United States
v. R.W. Meyer, Inc., 932 F.2d 568, 573 (6th Cir. 1991). “An
abuse of discretion is found where we are left with
the‘definite and firm conviction that the trial court committed
a clear error of judgment.’” Kalamazoo River Study Group v.
Rockwell Int’l Corp., 274 F.3d 1043, 1047 (6th Cir. 2001)
(quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790
(6th Cir. 1989).
In addition, we set aside factual findings underlying the
district court’s allocation of response costs only if such
findings are clearly erroneous. Kalamazoo River Study Group
v. Rockwell Int’l Corp., 274 F.3d at 1047. “A factual finding
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Coal Co., et al.
No. 02-3308
is clearly erroneous where, although there is evidence to
support that finding, ‘the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.’” Id., quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948).
III. ANALYSIS
A. Liability and Equitable Allocation
The district court found that Neville Chemical was liable as
a responsible party after articulating the purpose of CERCLA,
i.e., facilitating prompt cleanup of hazardous waste sites
financed by those responsible for the hazardous waste, and
based on the relevant statutory sections governing liability,
§§ 107(a) and 113 (f)(1), 42 U.S.C. §§ 9607(a) and
9613(f)(1). Under those provisions, a party is liable in a
contribution claim under § 113(f)(1) if it was liable or
potentially liable under § 107(a). The court found Neville
Chemical liable to Consol and Triangle Wire under the § 113
claim because all four elements necessary for § 107(a)
liability were met: (1) the Buckeye Reclamation Landfill is a
“facility” within the meaning of CERCLA; (2) a release of
hazardous substance occurred there; (3) the release caused
Consol and Triangle Wire to incur response costs; and
(4) Neville Chemical falls into one of the four categories of
PRPs listed in § 107(a). See Kalamazoo River Study Group
v. Menasha Corp., 228 F.3d 648, 653 (6th Cir. 2000). The
district court did not abuse its discretion in finding Neville
Chemical liable and, in fact, nowhere in its briefs does the
chemical company contest the district court’s conclusion of
law that it meets all four elements of liability articulated in
Kalamazoo River Study Group and §107(a).
The district court next recognized the broad discretion it
had in making CERCLA contribution allocations using “such
equitable factors as the court determines are appropriate.” 42
U.S.C. § 9613(f)(1). It discussed commonly used equitable

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Coal Co., et al.
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1See, e.g., Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp.,
153 F.3d 344 , 354 (6th Cir. 1998) ((stating that Ҥ 113 's equitable
allocation provision allows the court to allocate costs equitably among
PRPs considering the so-called ‘G ore F actors’”); United States v.
Hercu les, Inc., 247 F.3d 706, 718 (8th Cir. 200 1) (recognizing that in
making an equitable allocation of liability, “courts generally take into
account the so-called ‘G ore factors’”); United States v. Colorado &
Eastern R.R. Co., 50 F.3d 1 53 0, 15 36 n. 5 (10 th Cir. 1995 ). See also
Robert P. Dahlquist, Ma king Se nse of Su perfund Alloca tion Decisions:
The Rough Justice of Negotiated and Litigated Allocations, 31 Envtl. L.
Rep. 110 98, 1 109 9 (2001 ) (“The G ore factors are mo st relevant in
acad emic and theoretical analysis of the way Superfund liabilities should
be allocated. But in the real world Judge Torre’s list of four critical
factors often provides the basis upon which Superfund allocations are
made.”).
factors, including the six so-called “Gore factors” considered
by Congress in enacting the law and the four “critical factors”
identified by Judge Torre in United States v. Davis, 31 F.
Supp.2d 45, 63 (D.R.I. 1998), aff’d, 261 F.3d 1 (1st Cir.
2001).1 Neither of these lists is intended to be exhaustive or
exclusive, and “in any given case, a court may consider
several factors, a few factors, or only one determining factor
. . . depending on the totality of the circumstances presented
to the court.” See Environmental Trans. Sys., Inc. v. ENSCO,
Inc., 969 F.2d 503, 509 (7th Cir. 1992).
Although both Consol and Neville Chemical argued that
the district court had to determine only Neville Chemical’s
equitable share, and not the share of any other PRP, the
district court rejected that argument, reasoning that a fair and
equitable allocation could only be achieved by comparing
Neville’s role as a PRP to other PRPs. The district court then
divided the PRPs into four categories: generators and
transporters of industrial waste; owners and operators of the
landfill; Consol as the generator of the gob; and generators
and transporters of the municipal solid waste. In allocating
response costs, the district court focused primarily on the
second “critical factor” from Davis, the PRP’s varying levels
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Coal Co., et al.
No. 02-3308
of culpability, and two of the “Gore factors,” the amount of
waste and cooperation with the government, after carefully
explaining why other factors were not helpful in deciding this
particular case.
The court determined the equitable allocation across the
four groups in the following way. First, the court assigned
the industrial generators and transporters, including Neville
Chemical, an equitable share of 60% of past and future costs,
finding they were the most culpable. Their culpability arose
from the fact that they knew or should have known, of the
hazardous substances present in their waste, yet they disposed
of their waste without seeking the permission required by the
Belmont County Board of Commissioners. Second, the court
assigned the owners and operators of the landfill a 25%
equitable share of the response costs based on their lesser
culpability, but also on their irresponsibility in not doing
more to prevent the disposal of industrial wastes. Third, the
court assigned Consol as generator of the “gob” a 10%
equitable share, finding that Consol had knowledge that it
contained hazardous substances, but recognizing at the same
time that the material was deposited at the site between 1934
and 1952, at a time when there was nothing to prohibit such
disposal. Finally, the court assigned the generators and
transporters of municipal solid waste a 5% equitable share,
because the group had little or no knowledge that the waste
contained hazardous substances and because they were
required to dispose of the waste at the landfill by rule of the
Belmont County Board of Commissioners.
Within the 60% equitable share assigned to the industrial
generators and transporters, the court used percentage weight
of the waste as a fair and equitable way of determining
individual shares. The parties stipulated that Neville
Chemical was responsible for 4.78% of the industrial waste
by percentage weight. The court rounded Neville’s 4.78%
share up to 5% based on the fact that Neville did not seek
prior written approval of the Belmont County Board of

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Coal Co., et al.
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Commissioners, as the county regulations required it to do.
Triangle Wire is the only industrial generator which did seek
prior approval, and the court found that this fact made that
company marginally less culpable than its percentage weight
would reflect. By rounding up Neville Chemical’s individual
share and decreasing Triangle Wire’s share, the district court
adjusted for Neville Chemical’s violation of applicable local
regulation and Triangle Wire’s compliance. Thus, at this
point in the court’s analysis, Neville Chemical had an
individual share of 5% of 60%, or 3%, of the past and future
response costs.
The court considered one additional equitable factor in its
analysis: cooperation with the government. The court
concluded that Neville Chemical did not cooperate with the
OEPA or the USEPA and that it did not participate in any
efforts of the other PRPs to work with the government to
investigate the site, design a remedy, abide by the remedy. In
sum, the district court found that “Neville did not
meaningfully cooperate in any phase of the CERCLA process
in this case, although it was given ample opportunity to do
so.” Because of this “persistent, pervasive, and unjustified”
lack of cooperation when Neville Chemical knew or should
have known that its sludge had been deposited at the site, the
court doubled the company’s share of response costs from 3%
to 6%. The court also noted that because the cooperating
PRPs had negotiated a remedy that was half the cost of the
originally approved remedy, doubling Neville Chemical’s
individual share would avoid the possibility of a windfall to
that company, based on the successful efforts of the
cooperating PRPs to find a less costly solution.
Neville Chemical argues on appeal that the district court
abused its discretion in this allocation of chemical costs,
given the opinion of Neville Chemical’s expert that the
company’s waste caused no harm. However, the district court
found the opinion of the expert unreliable because it was not
10 United States v. Consolidation
Coal Co., et al.
No. 02-3308
based on conditions similar to those that existed in the waste
pit.
Neville Chemical also argues that the district court abused
its direction in allocating 60% of the response costs to the
industrial generators and 5% that share to Neville Chemical.
Finally, the company argues that the district court abused its
discretion in doubling Neville Chemical’s share from 3% to
6%. However, all these arguments boil down to a
disagreement with the particular equitable factors the district
court chose to use and how the court applied them. After an
independent review, we conclude that nothing in Neville’s
arguments leads us to a “definite and firm conviction that the
trial court committed a clear error of judgment.” Kalamazoo
River Study Group v. Rockwell Int’l Corp., 274 F.3d at 1047.
B. Prejudgment Interest
We do, however, conclude that the district court failed to
comply with a statutory requirement in awarding prejudgment
interest to Consol and Triangle Wire. The court calculated
the award at $298,750, based on past response costs
beginning in 1986, which is apparently when such costs were
first incurred at the site.
An award of prejudgment interest is provided for in
CERCLA § 107(a), 42 U.S.C. § 9607(a), and is mandatory.
See United States v. Township of Brighton, 153 F.3d 307, 321
(6th Cir. 1998) (finding prejudgment interest is mandatary in
a § 107 action); Allied Signal, Inc. v. Amcast Int’l Corp., 177
F. Supp. 2d 7813, 757-58 (S.D. Ohio 2001) (reasoning that
prejudgment interest must be awarded to a party seeking
contribution under § 113(f) in the same manner that it would
be awarded to a party bringing a cost recovery action under
§ 107(a), because an action under § 113(f) is governed by the
requirements of § 107(a)). The statute specifies exactly when
it begins to accrue, that being “the later of (i) the date
payment of a specified amount is demanded in writing, or

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Coal Co., et al.
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(ii) the date of the expenditure concerned.” 42 U.S.C.
§ 9607(a).
Hence, as applied to this case, the statute requires that
interest be calculated from the later of two dates: the date on
which Neville Chemical’s payment of a specific amount was
demanded in writing or the date on which the expenditure
occurred. The district court appears to have calculated the
prejudgment interest based solely on when the expenditure
actually occurred, without regard to the statute’s directive that
it be based on the later occurring of the two dates. Although
Consol and Triangle Wire began incurring response costs in
1986, there is no evidence, nor did the district court make a
finding, as to when they made a written demand for a
specified sum from Neville Chemical.
Consol and Triangle Wire argue that a letter written on
behalf of the Buckeye Reclamation Landfill Steering
Committee on February 21, 1986, constituted a written
“demand letter.” However, to call this letter a “demand
letter” for a specified sum is a clear mischaracterization of the
document, because the letter simply invited Neville Chemical
to join the group of cooperating PRPs to participate in the
investigation of the landfill and informed the chemical
company of the time and place of the group’s next meeting.
The district court did not refer to this letter in awarding
prejudgment interest, and we decline to rely on it as a basis
for the award.
In the alternative, Consol argues that the third-party
complaint constitutes the written demand of a specified sum
because it alleged that the cost of the remedy was over $47
million. But this third-party complaint was brought against
59 third-party defendants, as well as various unidentified
parties, and did nothing to specify the amount being
demanded from each of the third-party defendants. Although
other circuits have found that a complaint can meet the
statutory written demand requirement, see Bancamerica
12 United States v. Consolidation
Coal Co., et al.
No. 02-3308
Commercial Corp. v. Mosher Steel of Kansas, Inc., 100 F.3d
792, 801 (10th Cir. 1996); In re Bell Petroleum Servs., Inc.,
3 F.3d 89, 908 (5th Cir. 1993), we cannot say that the
complaint in this case satisfies the statutory prerequisite for
an award of prejudgment interest, because it is not sufficiently
specific.
We therefore conclude that the district court erred as a
matter of law in calculating the amount of prejudgment
interest owed by Neville Chemical without making a finding
regarding when the statutory prerequisites to prejudgment
interest were met. It follows that the calculation of
prejudgment interest contained in the judgment cannot be
sustained in the absence of a further determination under
§ 107(a).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court as to Neville Chemical Company’s liability and
its individual share of past and future response costs, based on
our holding that the district court did not abuse its discretion
in equitably allocating those costs.
We further VACATE the award of prejudgment interest
and REMAND the case to the district court for a recalculation
of the prejudgment-interest award consistent with this
opinion.

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