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Short Haul Survival Committee v. United States

DUNIWAY, Circuit Judge: These are petitions to set aside a report and order issued by the Interstate Commerce Commission in Ex Parte No. MC-37 (Sub-No. 26), Commercial Zones and Terminal Areas, 1976, 128 M.C.C. 422. In that proceeding the Commission adopted new rules for determining geographic boundaries of commercial zones and terminal areas. In No. 77-1070, the Short Haul Survival Committee, an ad hoc committee of the Local and Short Haul Carriers National Conference of the American Trucking Associations, Inc., petitioned for review of the Commission’s report and order in this court. In Nos. 77-1774 and 77-2038, petitions for review were filed in the Third Circuit and the District of Columbia Circuit, respectively, by A-C Berwick Transporters, Inc., et al., a group of short-haul carriers active in the greater New York metropolitan area, and by the American Trucking Associations, Inc. These petitions were transferred to this court pursuant to 28 U.S.C. § 2112(a). Numerous parties have intervened in the litigation, some supporting and others challenging the rules adopted by the Commission. We decline to set aside the Commission’s report and order, and we affirm it. I. THE COMMISSION PROCEEDING In its December 17, 1976 decision in Ex Parte No. MC-37 (Sub-No. 26), Commercial Zones and Terminal Areas, supra, which we refer to as the Report, the Commission modified its rules defining the geographic boundaries of “commercial zones” and “terminal areas” as those terms are used in sections 203(b)(8) and 202(c) of the Interstate Commerce Act, 49 U.S.C. §§ 303(b)(8) and 302(c). The Commission first resorted to rule making to define the scope of commercial zones and terminal areas in the mid 1940’s, and its proceedings culminated in the adoption of a “population-mileage” formula for commercial zones in 1946, Ex Parte No. MC-37, Commercial Zones and Terminal Areas, 46 M.C.C. 665, and for carriers’ terminal areas in Commercial Zones and Terminal Areas, 1952, 54 M.C.C. 21 (Sixth Supplemental Report, Ex Parte No. MC-37). Since 1946, the Commission has decided 43 cases involving defining specifically the limits of particular zones. By 1975, the Commission felt that circumstances throughout the nation had changed so much that a new rule making procedure was appropriate. The procedure was begun on August 12, 1975, by publication of a notice in the Federal Register suggesting a new formula and inviting the submission of written data, views and arguments. The response was widespread, and the Commission issued an Interim Report (Ex Parte No. MC-37 (Sub-No. 26), Commercial Zones and Terminal Areas, 124 M.C.C. 130) on December 18, 1975. The interim report of 55 pages plus appendices stated tentative conclusions and invited further filings. Again, the response was widespread. There were over 600 responses, and a massive record was compiled, consisting of 23 large volumes. The final Report, adopting a new population-mileage formula, issued on December 17, 1976. It covers 134 pages in the record, plus a lengthy appendix, and carefully analyzes the issues and the data and views submitted by the many parties who filed them. The new rules took effect on April 8, 1977. They bring up to date the 1946 population-mileage formula to reflect the tremendous urban expansion which the nation has experienced during the last three decades. In addition to expanding substantially the commercial zones and terminal areas of cities with populations of 200,000 or more, the Commission’s order greatly simplifies the old rules by making the revised population-mileage formula applicable to 42 cities, the zones of which were previously individually described. The old and new population-mileage formulae are as follows: 1946 New Municipal Pooulation Boundaries Boundaries less than 2,500 2 3 2,500 to 24,999 3 4 25,000 to 99,999 4 6 100,000 to 199,999 5 8 200,000 to 499,999 5 10 500,000 to 999,999 5 15 1 million or more 5 20 ii. THE STATUTORY FRAMEWORK Section 203(b)(8) of the Interstate Commerce Act, 49 U.S.C. § 303(b)(8), establishes a contingent exemption from federal regulation of interstate motor transportation. In pertinent part the statute provides: nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the national transportation policy declared in this Act, shall the provisions of this chapter . . . apply to: (8) The transportation of ... property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone . . . . [emphasis supplied] Three types of local movements in interstate or foreign commerce are thus exempted from federal regulation. The geographic meaning of the first two types of local movements — those carried out “wholly within a municipality” or “between contiguous municipalities” — derives from political boundaries and is thus readily ascertainable. It requires no further definition by the Commission. However, the scope of the third type of exempt movement — that carried out “within a zone adjacent to and commercially a part of” the base municipality — does pose definitional problems and is the subject of the rule making proceeding with which we are here concerned. The section 203(b)(8) exemption applies only to local carriage in and around those cities situated near state lines because similar traffic elsewhere is already exempt from federal regulation because of its intrastate character. However, the geographic limits of commercial zones are of broader significance because the Commission employs them in administering other sections of the Act. Most importantly, commercial zone boundaries are used to construe certificates of operating authority so that, for example, a carrier authorized to operate between San Francisco and Seattle may carry goods between those two cities’ commercial zones. Section 202(c) of the Act, 49 U.S.C. § 302(c), complements the commercial zone exemption by excluding from Commission regulation transfer, collection and delivery services performed within the “terminal areas” of line-haul carriers in connection with line-haul operations. The 202(c) exemption allows local cartage operators to contract with or act as agents for regulated line-haul carriers when performing such services within the carriers’ terminal areas. The Commission has long defined commercial zones and terminal areas coextensively. This simplifies administration of the two exemptions and makes good sense because “if commercial zone limits mark the limits of an industrial, business, or residential community, then they also mark the limits of the areas which can be served in bona fide collection and delivery service and beyond which any service takes on the character of a line-haul. . . Commercial Zones and Terminal Areas, supra, 54 M.C.C. 21, 63. III. THE PROPRIETY OF RULE MAKING RATHER THAN ADJUDICATION This is an obvious case for the exercise of rule making rather than adjudicatory proceedings. As the Commission recognized in the 1946 decision (46 M.C.C. at 677), there is a potential commercial zone around every one of the thousands of municipalities in the United States. To define, in a separate proceeding, each of those zones, would be at worst impossible, and at best an enormous waste of time, energy and talent that could be better spent in other activities, or even in doing nothing at all. This kind of problem can only be handled by rule making — a legislative type of activity. It follows that there is no merit in the argument of intervening petitioners Auto Fast Freight, et ah, a group of short-haul motor carriers, that in expanding the scope of commercial zones the Commission was required to hold the oral hearings mandated by section 212(a) of the Act, 49 U.S.C. § 312(a). Characterizing the Commission’s action as “individual in impact and condemnatory in purpose,” they maintain that the Commission has revoked their certificates and was obliged to conduct adjudications with all of the procedural formalities mandated by 5 U.S.C. § 554. American Airlines, Inc. v. CAB, 1966, 123 U.S.App.D.C. 310, 359 F.2d 624, cert. denied, 1966, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75, involved a similar challenge to agency rule making. The court squarely rejected the challenge, characterizing rule making as “a vital part of the administrative process” which ought “not to be shackled, in the absence of clear and specific Congressional requirement, by importation of formalities developed for the adjudicatory process and basically unsuited for policy rule making.” 359 F.2d at 629. It noted that [w]e are not here concerned with a proceeding that in form is couched as rule making, general in scope and prospective in operation, but in substance and effect is individual in impact and condemnatory in purpose. The proceeding before us is rule making both in form and effect. There is no individual action here masquerading as a general rule. 359 F.2d at 631. Here, as in American Airlines, we deal with a good-faith exercise of administrative rule making authority. The Commission was not obliged to proceed by adjudication merely because its action affected carriers individually and in some cases adversely. Section 212(a) of the Interstate Commerce Act, 49 U.S.C. § 312(a), which authorizes the Commission to amend carrier certificates only after “notice and hearing,” does not require a different result. That section must be read with section 208(a) of the Act, 49 U.S.C. § 308(a), which expressly authorizes the Commission to impose general conditions on the exercise of privileges granted by certificates of operating authority. See, Thompson Van Lines, Inc. v. United States, D.D.C., 1975, 399 F.Supp. 1131, 1136, aff’d, 1976, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 630. IV. THE SCOPE OF REVIEW The scope of review is highly circumscribed because petitioners are challenging the product of a rule making proceeding. Our inquiry is limited to determining whether the Commission’s order is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is a “highly deferential” standard of review which “presumes agency action to be valid,” Ethyl Corp. v. Environmental Protection Agency, 1976, 176 U.S.App.D.C. 373, 406, 541 F.2d 1, 34, cert. denied, 1976, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 394 and which imposes upon petitioners the “heavy burden” of showing that the Commission acted unreasonably in updating the old population-mileage formula. American Public Power Association v. F.P.C., 1975, 173 U.S. App.D.C. 36, 522 F.2d 142, 146. In reviewing the challenged order we may not substitute our judgment for that of the Commission, Citizens to Preserve Overton Park v. Volpe, 1971, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 and we must affirm if a rational basis for the agency’s action is demonstrated. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 1974, 419 U.S. 281, 290, 95 S.Ct. 438, 42 L.Ed.2d 447. As the Supreme Court stated recently in reviewing another product of Commission rule making, [w]e do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. United States v. Allegheny-Lublum Steel Corp., 1972, 406 U.S. 742, 749, 92 S.Ct. 1941, 1946, 32 L.Ed.2d 453. Petitioner Short Haul Survival Committee exhorts us to apply the “substantial evidence” test of 5 U.S.C. § 706(2)(E) in reviewing the Commission’s action. The Commission says that the substantial evidence standard of review is “simply not applicable here.” We agree that 5 U.S.C. § 706(2)(E) is, by its terms, inapplicable. However, we also tend to agree with the Second Circuit’s characterization of a similar controversy over the appropriate scope of judicial review as “semantic in some degree” and largely lacking in “dispositional importance.” Associated Industries of New York State, Inc. v. United States Department of Labor, 2 Cir., 1973, 487 F.2d 342, 349. As Judge Friendly noted in that case, “it is difficult to imagine a decision having no substantial evidence to support it which is not.‘arbitrary’ or a decision struck down as arbitrary which is in fact supported by ‘substantial evidence’ . . . .” 487 F.2d at 349. V. RATIONALITY OF THE COMMISSION’S ACTION The best proof of the rationality of the Commission’s action is to be found in the Report and the Interim Report that preceded it. It is unfair to the Commission to assert, as some of the petitioners and intervenors do, that the Commission became, bemused by demographic data which, like Gilbert’s “flowers that bloom in the spring” have “nothing to do with the case.” The two reports demonstrate that the Commission relied heavily upon economic data, and concluded, quite rationally in the light of the record, that those data, like the more complete and detailed demographic data, support the conclusions at which the Commission arrived. It would be quite impossible for us to say that the Commission’s conclusions are not rationally supported. Indeed, we might well conclude that a contrary result would not be rationally supported. Petitioner Short Haul Survival Committee objects to the “blanket effect” of the rules promulgated by the Commission, arguing that the revised population-mileage formula “becomes purely arbitrary” when “applied indiscriminately” to all municipalities. Petitioner A-C Berwick, et al., and various intervening petitioners also challenge the broad coverage of the new formula, characterizing its application to the particular zones in which they operate as irrational. In the Assigned Car Cases, 1927, 274 U.S. 564, 47 S.Ct. 727, 71 L.Ed. 1204, the Court rejected a similar challenge to a general rule adopted by the Commission to govern the distribution of railroad cars among coal producers in times of shortage. In language which was quoted with approval in the recent case of United States v. Allegheny-Ludlum Steel Corp., supra, 406 U.S. at 749, 92 S.Ct. 1941, the Court responded: [I]n establishing a rule of general application, it is not a condition of its validity that there be adduced evidence of its appropriateness in respect to every railroad to which it will be applicable. In this connection the Commission, like other legislators, may reason from the particular to the general. 274 U.S. at 583, 47 S.Ct. at 734. The natural circumstance that the new population-mileage formula will, inevitably, require some fine tuning, does not vitiate its essential rationality. Here, as in the Assigned Car Cases, the Commission was privileged to “reason from the particular to the general” and was not required to assess the varying impact of its proposed rules on a myriad of individual zones. In its report the Commission did, however, analyze in detail the impact of the new formula on major cities which were individually described under the old rules. Report, pp. 98-109. It also established special rules for determining the zones of twin cities, cities with consolidated governments, and cities the zones of which would otherwise be reduced under the new formula. Report, pp. 110-114, 118-119. In adopting the new population-mileage formula the Commission expressly stated that it was “cognizant of the fact that this general rule will not describe all commercial zones with precision.” Report, p. 84. However, because the stated purpose of the rule making proceeding was limited to determining on a “broad basis” whether commercial zones should be expanded, it concluded that claims that the new formula operated inequitably when applied to particular municipalities would be better considered in subsequent petitions seeking individual determinations. The Commission announced its willingness to entertain such petitions and guaranteed consideration “on an expedited basis.” Report, p. 85. Those parties who challenge the application of the new rules to particular municipalities should accept the Commission’s explicit invitation and file petitions for special consideration. Attacking the general formula here is not their proper recourse. VI. CONGRESSIONAL INTENT Petitioner Short Haul Survival Committee characterizes the Commission’s action as contrary to the legislative intent underlying section 203(b)(8). The Committee acknowledges that the legislative history of the commercial zone exemption is “scant” but nonetheless makes much of certain introductory remarks to the Motor Carrier Act of 1935 made by Senator Wheeler, then Chairman of the Committee on Interstate Commerce. In his remarks the Senator characterized the commercial zone exemption as applicable to “intramunicipal or occasional operations.” The argument that only “intramunicipal” carriage falls within the commercial zone exemption is contrary to the plain language of the statute. In section 203(b)(8) Congress did exempt transportation carried out “wholly within a municipality” from federal regulation. It did not rest there, however, but went on to exclude from the Act’s coverage transportation carried out “within a zone adjacent to and commercially a part of” a base municipality. If these words mean no more than intramunicipal transportation they would be mere surplusage, a result which we do not think that Congress intended. The Commission’s expansion of commercial zones accords fully with the legislative purpose behind the commercial zone exemption of section 203(b)(8). That exemption reflects a policy judgment by Congress that federal intrusion into local transportation is undesirable. Because tremendous urban expansion occurred after 1946 without a corresponding increase in zone limits, the Commission has, in recent years, found itself engaged in the very sort of regulation of local transportation which Congress rejected in the Act. To correct that situation and carry out its legislative mandate to “frame a workable delimitation by examining the words of the statute in light of contemporary economic reality and modern transportation needs,” Report, p. 56, the Commission adopted the challenged rules. VII. THE ADJACENCY REQUIREMENT Section 203(b)(8) specifies that an area must be “adjacent to” as well as “commercially a part of” a base municipality if it is to fall within that municipality’s commercial zone. Arguing that the newly enlarged zones include areas which are not adjacent to one another, petitioner Short Haul Survival Committee says that the Commission has violated the express criteria of the statute. Numerous intervenors mount a similar attack on the geographic scope of the expanded commercial zones, selecting the most distant points in the zones of the nation’s largest cities and arguing that these points are too remote to satisfy section 203(b)(8)’s adjacency requirement. The argument ignores the meaning of “adjacent”: “lying near, close, or contiguous” (Webster II). Indeed, the inner circumference of every zone is not only adjacent to the exterior boundary of the base city, it is contiguous to it — it “adjoins” it. This is more than “adjacent” requires. However, it is still arguable that a portion of the zone, near its exterior circumference, may not be adjacent to the base city. The key relationship under the statute is the economic nexus between outlying points and the base municipality. Two communities which are neither geographically contiguous nor economically interdependent may nonetheless qualify for inclusion in a single commercial zone if both are “adjacent to” the same city. Conversely, the adjacency requirement precludes inclusion of points remote from a municipality in its commercial zone, notwithstanding the existence of intense economic interaction between them. For example, this effectively rules out a single “Northeast corridor” commercial zone extending from Washington, D. C., to Boston, Massachusetts. As the Commission concluded in its Report, technological advances in transportation necessarily “engender an element of elasticity with respect to the meaning of ‘adjacent.’ ” Report, p. 61. Transportation movements of even 15 or 20 miles beyond city limits do not contradict modern notions of “local movements” in large metropolitan areas. Metropolitan transportation networks of beltways and expressways often span such an area, and these distances can be covered in a matter of minutes. Report, p. 84. The Commission properly interpreted section 203(b)(8) as a legislative mandate to reevaluate periodically the scope of the commercial zone exemption in light of changing economic circumstances and technological advances. The newly adopted rules cannot be said to contravene the statutory requirement simply because the expanded zones include communities which are not geographically contiguous to one another. VIII. THE NATIONAL TRANSPORTATION POLICY Section 203(b)(8) of the Act provides that commercial zone exemption from federal regulation shall apply “unless and to the extent that the Commission shall from time to time find” that regulation “is necessary to carry out the national transportation policy.” The National Transportation Policy is set forth in the preamble to the Act, 49 U.S.C. preceding §§ 1, 301, 901 and 1001. It declares, inter alia, that the Act shall be administered “to promote safe, adequate, economical, and efficient service”; “to foster sound economic conditions in transportation and among the several carriers”; “to encourage the establishment and maintenance of reasonable charges” without “unfair or destructive competitive practices”; and “to encourage fair wages and equitable working conditions.” Petitioners Short Haul Survival Committee, A-C Berwick, et al., American Trucking Associations, Inc., and numerous intervening petitioners assert that the Commission abused its discretion in concluding that the expansion of commercial zones would promote, rather than frustrate, the goals set forth in the National Transportation Policy. They claim that zone enlargement will drive large numbers of short-haul carriers out of business; that shippers will experience a loss of inexpensive, dependable service as a result; that unregulated carriers operating within the newly expanded zones will pose a safety hazard to the public; and that the new rules will result in lower wages and poorer working conditions for employees of trucking concerns. Throughout the lengthy proceeding which culminated in the Report, shipper support for larger commercial zones was virtually unanimous. The reasons for this overwhelmingly positive response are not far to seek. Augmented zones and enlarged terminal areas will enable suburban shippers to contract with exempt local carriers, thereby placing them on an equal footing with shippers located within the old zones. The new rules will also enable long-haul carriers to serve suburban shippers directly without the need for costly, time-consuming “interlining.” The Commission rationally concluded on the basis of the evidence submitted that zone expansion will result in lower rates, shorter transit times and reduced cargo damage for suburban shippers, thereby fostering the National Transportation Policy’s stated goal of “economical and efficient service.” The Commission also concluded that its proposed rules were likely to benefit unregulated local carriers, long-haul carriers and freight forwarders as well. In its Report it noted that the expansion of commercial zones will enable local carriers who were previously confined to the central cities to recapture a share of the business generated by the many shippers who have relocated to the suburbs during the last three decades. The Commission also concluded that the new rules will improve the lot of long-haul carriers by enabling them to perform more single-line service, and benefit freight forwarders by enlarging the areas within which local cartage operators can act as agents for them in performing collection and delivery services. The Commission did not act irrationally or abuse its discretion in determining that zone expansion would have these salutary effects, thereby fostering “sound economic conditions in transportation and among the several carriers.” Substantial record evidence supports the Commission’s conclusions. Petitioners assert that the Commission ignored evidence that the new rules “will have the effect of irreparably injuring short-haul carriers.” They predict that “cut-throat competition” in the newly enlarged zones will sharply curtail their revenues and drive many short-haul concerns out of business. The Commission did not ignore the likely impact of the contemplated rule changes on short-haul carriers but rather analyzed the matter carefully in its Report and concluded that as a result of commercial zone expansion, [s]hort-haul carriers will experience three types of adverse effects. First, some truck load traffic will be diverted by the ability of long-haul carriers to provide more single-line service. Secondly, they will lose protection from competition on those portions of their service routes encompassed by the expanded zones. Thirdly, in many cases the pecuniary value attached to their operating certificates will be substantially diminished. Report, p. 128. While it recognized that increased competition in the expended zones might result in decreased profits for short-haul carriers, the Commission concluded that “the over all benefits to the public of more single-line service and greater flexibility of local operations within urban areas amply justifies our actions in this proceeding.” Report, p. 128. We cannot say that the Commission acted irrationally in striking the balance among competing interests in this fashion. As the Supreme Court noted when faced with a similar challenge, [t]he Commission’s conclusion that consumer benefits outweighed any adverse impact upon the existing carriers reflects the kind of judgment that is entrusted to it, a power to weigh the competing interests and arrive at a balance that is deemed “the public convenience and necessity.” United States v. Pierce Auto Lines, 327 U.S. 515, 535-536, 66 S.Ct. 687, 697-98, 90 L.Ed. 821 (1946). If the Commission has “drawn out and crystallized these competing interests [and] attempted to judge them with as much delicacy as the prospective nature of the inquiry permits,” ICC v. J-T Transport Co., 368 U.S. 81, 89, 82 S.Ct. 204, 209, 7 L.Ed.2d 147 (1961), we can require no more. Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 1974, 419 U.S. 281, 293-94, 95 S.Ct. 438, 446, 42 L.Ed.2d 447. Petitioners assert that commercial zone expansion is likely to result in a marked decline in highway safety, predicting that “extensive deregulation in and around many of our major cities will induce entry by the inadequately financed who will be forced to cut corners at the expense of safety.” Responsibility for establishing and enforcing highway traffic safety regulations was shifted from the Commission to the Department of Transportation’s Federal Highway Administration in 1967. See, 49 U.S.C. § 1655(e). Safety rules promulgated by the Federal Highway Administration extend to regulated and unregulated carriers alike and will thus apply in full force to carriers operating within the newly expanded commercial zones. The Highway Administration announced in a notice published in the Federal Register on February 25, 1976, that the Commission’s action would not affect coverage of its safety regulations. 41 Fed.Reg. 8175. The Teamsters Union, an intervening petitioner, claims that zone expansion will lead to lower wages and inequitable working conditions for employees of trucking concerns but marshalls little concrete support for its position. Its arguments must be evaluated in light of the fact that local exempt carriers, whose scope of operation will be substantially increased as a result of the Commission’s action, are often small, family-run enterprises which do not employ union drivers. The Teamsters argue, in effect, that the very existence of these concerns runs counter to the goals expressed in the National Transportation Policy. However, that Policy, which directs the Commission to administer the Act in a manner calculated to promote the public interest generally, rather than the Teamsters’ interests specifically, does not prohibit carriers from employing non-union personnel. IX. THE NATIONAL ENVIRONMENTAL POLICY ACT Petitioners Short Haul Survival Committee and A-C Berwick, et al., challenge the adequacy of the environmental impact statement (EIS) prepared by the Commission pursuant to section 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C). In its EIS the Commission concluded that (1) zone expansion will increase the efficiency of long-haul carriers by enabling them to serve the suburbs directly, thereby reducing fuel consumption, air pollution and traffic congestion; (2) heightened competition in the expanded zones will, for a time, cause inefficiencies such as more empty mileage and smaller load factors but these effects will be short-lived because ultimately “only the more efficient operators should survive” in the expanded zones; and (3) zone enlargement will not cause significant numbers of shippers to relocate to the suburbs. NEPA is “essentially a procedural statute” designed to insure that “agencies will be fully aware of the impact of their decisions when they make them.” Lathan v. Brinegar, 9 Cir., 1974, 506 F.2d 677, 693. While a reviewing court must ascertain that an agency has taken a “hard look” at the environmental consequences of its action, Kleppe v. Sierra Club, 1976, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576, it may not “substitute its judgment for that of the agency as to the necessity or desirability” of taking the contemplated action. Daly v. Volpe, 9 Cir., 1975, 514 F.2d 1106, 1108. In this case we are satisfied that the Commission took a “hard look” at the environmental impact of zone expansion before it acted, and that its EIS was “sufficiently detailed to aid in the substantive decision whether to proceed.” Trout Unlimited v. Morton, 9 Cir., 1974, 509 F.2d 1276,1283. It must be remembered that the enlargement of zones is not a physical undertaking akin to the construction of a pipeline, a dam, or roadway. The environmental consequences of the Commission’s action cannot be readily determined on the basis of empirical data, as is sometimes the case with more concrete projects. Viewed in the light of this inherent limitation, the Commission’s EIS is more than adequate to satisfy NEPA’s mandate. The City of Portland, Oregon, intervening on behalf of petitioners, argues that commercial zone expansion will interfere with effective land use planning, exacerbating the problem of urban sprawl and undermining certain environmental programs which it has undertaken. While we strongly sympathize with Portland’s efforts to contain urban sprawl, the record does not show that the City’s goals will be thwarted by the Commission’s action. It is possible that commercial zone expansion will encourage shippers to relocate from the central city to outlying areas. Nonetheless, Portland remains free to regulate urban growth by adopting any land use ordinances that it thinks necessary or desirable, and it is free to enlist the assistance of a not unsympathetic state of Oregon, if necessary. The Report and Order of the Commission are affirmed. Miles measured from municipal limits.

D. C. Federation of Civic Associations v. Adams

HAYNSWORTH, Chief Judge: The proposal to build Interstate-66, in particular, the segment running from the Capital Beltway to a connection with the Theodore Roosevelt Bridge, has spawned substantial controversy and litigation. This court enjoined construction of one 1-66 proposal in 1972 because the Secretary of Transportation had not complied with the applicable environmental protection statutes. Since that time, the proposals for building 1-66 have been modified substantially in response to the changing transportation plans and needs of the Northern Virginia-Washington, D. C. area and the criticisms of the Secretary of Transportation. A new citizen’s group was formed to oppose the most recent incarnation of 1-66, and it initiated this round of litigation. The district court found that the Secretary of Transportation had complied with all of the applicable environmental protection statutes in approving the final 1-66 proposal. We affirm that holding, for substantially the same reasons as were given by the district court. The context in which several of the plaintiffs’ arguments are advanced, however, justifies an explanation of the basis of our decision. The plaintiffs’ major argument on appeal is that the Secretary of Transportation failed to comply with the procedural requirements of Section 102(2)(C) of the National Environmental Policy Act, 42 U.S. C.A. § 4332(2)(C), Section 109 of the Federal-Aid Highway Act, 23 U.S.C.A. § 109, Section 4(f) of the Department of Transportation Act, 49 U.S.C.A. § 1653(f), and Section 138 of the Federal-Aid Highway Act, 23 U.S.C.A. § 138. The first, and most important, defect alleged by the plaintiffs is that while the Secretary approved the final 1-66 proposal because of the virtues of the combination of 1-66 and the Metro K line, the Environmental Impact Statement failed to discuss the possibility that the Metro K line would never be constructed between Vienna, Virginia and Glebe Road. We think the EIS and the Secretary adequately considered the possibility suggested by the plaintiffs, given the reasonableness of that possibility at the time of the decisions and statements by the agencies involved. The district court found that the Supplemental EIS did mention the possibility that buses would operate in the 1-66 median, rather than the Metro K line. This fact implieitly indicates some consideration of the possibility that the Metro K line would not be completed, even though all planners believed then that the Metro K line would be built as planned. Only after the Final Supplemental Environmental Impact Statement was filed on August 10, 1976, did the events listed by the plaintiffs create any doubt about the future of the Metro K line. Although the Federal Highway Administration (FHWA) could have modified the EIS in light of these developments before approving the EIS on December 20, 1976, the FHWA was aware of those developments and legitimately could have concluded that the possibility that the Metro K line would be abandoned, as opposed to merely delayed, was not sufficiently likely, or reasonable, to merit further discussion in the EIS. Secretary Coleman’s decision approving the 1-66 proposal, after the FHWA approved the EIS, indicates that he, too, was very aware of the developments that threatened the completion of the Metro K line. Yet the Secretary’s decision also clearly indicates that he believed the Metro K line would be completed, even if later than originally planned, and the Secretary approved the 1-66 proposal on the basis of that belief. The consideration given to the possibility that the Metro K line would not be completed between Vienna and Glebe Road satisfies the purposes of NEPA’s procedural requirement. An EIS must discuss reasonable alternatives and issues in order to inform the public and to guarantee that the planners consider relevant alternatives and issues before such substantial inertia develops that a proposal cannot be rejected or reevaluated. The record in this case demonstrates that both the public and the planners knew of and considered the questions concerning the future of Metro, as those questions developed. NEPA did not require the Secretary of Transportation to delay approving 1-66 until the Transit Authority finally resolved the questions about the Metro K line, especially when the proposal approved by Secretary Coleman was intended to facilitate construction of the rail line in issue. At some point, construction plans must become final. In this case, the plans were all but final when the possibility complained of first developed. Given the defendants’ consideration and treatment of that possibility, and the fact that even the plaintiffs do not contend that the approval of the EIS or the 1-66 proposal were “arbitrary and capricious,” we conclude that the EIS here satisfied the procedural requirements of the environmental protection statutes. The plaintiffs also allege that the EIS is procedurally deficient in another respect, because the EIS failed to discuss in sufficient detail four alternatives that the plaintiffs consider to be reasonable substitutes for the 1-66 proposal. To the extent that these alternatives were reasonable means for obtaining the benefits of the 1-66 proposal, we conclude that the EIS discussed those alternatives in sufficient detail. See Coalition for Responsible Regional Development v. Coleman, 555 F.2d 398 (4th Cir. 1977); Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021 (4th Cir. 1975), cert. denied, 423 U.S. 912, 96 S.Ct. 216, 46 L.Ed.2d 140 (1976). The third procedural defect alleged by the plaintiffs is the reliance in the EIS on projections that the plaintiffs contend are arbitrary and biased. The district court found that the projections of carpool formation were prepared by experts in the field of traffic forecasting, using accepted methodologies. The plaintiffs’ own witnesses admitted that they could not provide more reliable projections of carpool formation. Blind reliance on the projections of the impact of 1-66 on the use of the Metro K line would have been less defensible, but better data for these projections were not available, and the FHWA addendum to the EIS and Secretary Coleman adequately considered the problems with these projections. Under these circumstances, we conclude that the EIS provided an adequate record for the concerned planners to make an informed decision. In addition to the procedural arguments based on the aforementioned statutes, the plaintiffs contend that Secretary Coleman did not comply with the National Historic Preservation Act (NHPA), 16 U.S. C.A. § 470f, and the implementing regulations of the Advisory Council on Historic Preservation. While we do not condone what may be a failure to adhere literally to the Advisory Council’s regulations, we do conclude that any possible deviation from the proper procedures, under the circumstances of this ease, did not justify injunctive relief. The NHPA obligated the Secretary to “take into account the effect” of the 1-66 proposal on properties included in the National Register. The Advisory Council’s regulations procedurally require the Secretary to “identify properties located within the area of the undertaking’s potential environmental impact” that are included in the National Register and then to consult with the State Historic Preservation Officer to determine whether the undertaking will, in fact, have an impact upon the identified properties. The Secretary contended from the outset that 1-66 would have no impact on historic properties in the District of Columbia and decided to “identify” only properties located in Virginia. Even if historic District properties potentially would have been affected, as the plaintiffs contend, the district court found that the 1-66 proposal would not adversely affect these properties. And notwithstanding the decision not to “identify” historic properties in the District, the Secretary did furnish a copy of the new EIS to the Advisory Council and invite comments about the impact of 1-66 on historic properties in the District. Because the Secretary did comply with the statute itself, and his substantive conclusion was upheld by the district court, and the experts on historic properties did have an opportunity to comment, we affirm the district court’s decision not to grant relief on this claim. Finally, the plaintiffs contend that Secretary Coleman based his decision to approve the 1-66 proposal on considerations extraneous to the merits of the highway proposal. The plaintiffs rely upon D. C. Federation of Civic Associations v. Volpe, 148 U.S.App.D.C. 207, 221-225, 459 F.2d 1231, 1245-49 (1971), cert. denied, 405 U.S. 1030, 95 S.Ct. 1290, 31 L.Ed.2d 489 (1972), but that reliance is misplaced. The record indicates that Secretary Coleman based his decision upon the virtues of, and in furtherance of, an integrated transportation system that would include 1-66 and the Metro K line, as the relevant statutes authorized him to do. The record does not support the plaintiffs’ characterization of the basis for the Secretary’s decision, as the district court’s opinion makes clear. Thus, this case does not involve the same type of improper and extraneous consideration that was present in the decision to approve the Three Sisters Bridge. The remainder of the plaintiffs’ arguments were discussed sufficiently in the district court’s opinion and need not be discussed again here. We agree with the district court’s resolution of the plaintiffs’ challenges to the decision to approve 1-66. The judgment is affirmed. AFFIRMED. . Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972). The district court dissolved that injunction in Arlington Coalition on Transportation v. Volpe, No. 59-71-A (E.D.Va., filed Feb. 14, 1977), after determining that the Secretary had corrected the statutory deficiencies of the 1-66 proposal at issue in that case. That decision of the district court is not challenged in this appeal. . Initially, the governments planned to build an 1-266 connection with 1-66 and a new Three Sisters Bridge over the Potomac. Both plans have been abandoned. In addition, the Washington Metropolitan Area Transit Authority adopted a plan in 1968 for constructing a part of the Metro rail transportation system, known as the Metro K line, in the median of the proposed segment of 1-66 between the Capital Beltway and Glebe Road. . The Federal Highway Administration (FHWA), in conjunction with the Virginia Department of Highways and Transportation and an independent transportation consultant, completed an Environmental Impact Statement in July 1974 for the 1-66 proposal enjoined previously in Arlington Coalition, supra. A Supplemental EIS was prepared when the FHWA requested that 1-66 consist of only six lanes, instead of eight. Secretary of Transportation Coleman, however, disapproved the request to build the six-lane 1-66 proposal in August 1975. The Virginia officials devised a new 1-66 proposal after Secretary Coleman’s disapproval, consisting of a partially restricted four-lane highway with space for the Metro K line to be built in the median from the Capital Beltway to Glebe Road. The FHWA approved a Draft Supplemental EIS for this proposal on June 1, 1976, filed the Final Supplemental EIS on August 10, 1976, and approved the Final Supplemental EIS (with an addendum) on December 20, 1976. Secretary Coleman issued a 71-page decision on January 5, 1977 approving the four-lane 1-66 proposal, subject to several conditions. . See Secretary’s Decision on Interstate Highway 66, Fairfax and Arlington Counties, Virginia at 7, 11, 23 (Jan. 5, 1977). . See Carolina Environmental Study Group v. United States, 166 U.S.App.D.C. 416, 510 F.2d 796 (1975). . To the extent that any of the plaintiffs’ arguments on appeal could be construed as challenges to the Secretary’s substantive decision, we note our agreement with the district court’s finding that the Secretary’s decision was within the scope of his authority and neither arbitrary nor capricious. . See Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Movement Against Destruction v. Trainor, 400 F.Supp. 533, 554 (D.Md.1975). . The facts of this case do not require us to interpret the Advisory Council’s regulations, 36 C.F.R. § 800.1 et seq., nor to decide whether the Secretary obeyed those regulations literally. . 16 U.S.C.A. § 470f. The Secretary also was required to allow the Advisory Council an opportunity to comment on the 1-66 proposal. . 36 C.F.R. §§ 800.4(a)-(b). . Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971), does not control the issue in this case, because the defendants in Ely had not complied in any respect with the NHPA.

Arkansas Community Organization for Reform Now v. Coleman

PER CURIAM. This is an appeal from the entry of an order by the district court enjoining a segment of the construction of a federally-funded expressway pending preparation and filing of an environmental impact statement (EIS) pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA). Arkansas Community Organization For Reform Now v. Brinegar, 398 F.Supp. 685 (E.D.Ark.1975). The action requesting declaratory and injunctive relief was initiated by the appellants, Arkansas Community Organization For Reform Now (ACORN) and individual members of that organization who reside in the eastern part of the city of Little Rock, Arkansas. ACORN is a nonprofit, unincorporated association representing people of middle or low incomes. The requested relief was directed at the appellees, the Secretary of the United States Department of Transportation, the Administrator of Region 6 of the Federal Highway Administration (FHWA), the Division Engineer of the Department of Transportation, individual members of the Arkansas State Highway Department, and the Director of the Arkansas State Highway Department. The city of Little Rock, the Little Rock Public School District, and the Arkansas Baptist Medical Center have been permitted to intervene. All are aligned with the appellees. Appellants have attempted to prevent or delay further construction of the Wilbur D. Mills Freeway, designed as a six-lane, controlled access, divided expressway running across the city of Little Rock from east to west between 1-30 and 1-430. In the district court appellants contended that the Secretary of Transportation had not made environmental findings required by section 4(f) of the Transportation Act of 1966 and section 18(a) of the Federal-Aid Highway Act of 1968 with respect to public parks, specifically McArthur and Kanis, which are located adjacent to the proposed highway route. Appellants further asserted that the Arkansas State Highway Department had not adequately discharged its obligations under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, which demands assurance of alternative housing to people displaced by highway construction. Finally, it was claimed that the draft and final EIS prepared by the Arkansas State Highway Department and approved by the FHWA had not satisfied the discussional requirements of NEPA. Appellees contended that ACORN’s claims were entirely without merit. It was also asserted by the appellees that ACORN should have been barred by laches from maintaining the suit. The district court, however, found that the delay in the commencement of the suit had been caused by the unsuccessful efforts of ACORN to obtain financial assistance from other environmental groups and that the appellees had not been prejudiced by the delay. The court rejected, therefore, the defense of laches. In reaching the merits of ACORN’s claims, the district court found that McArthur Park and Kanis Park will not be impacted by the highway project to the extent that the environmental impacts will amount to a constructive use of the parks. Accordingly, the court concluded that it was not necessary for the Secretary of Transportation to make affirmative section 4(f) findings. Section 4(f) provides that no part of a public park may be “used” for federal highway purposes unless the Secretary finds that there is no feasible or prudent alternative to such a use and that all possible planning has been done to minimize harm to the park. See 49 U.S.C. § 1653(f) (1970). See also 23 U.S.C. § 138 (1970). Moreover, the trial court found that adequate and appropriate plans existed for ensuring the orderly and efficient relocation of people compelled to move from their homes because of the highway construction. See 42 U.S.C. § 4601 et seq. (1970). Finally, the district court found that the environmental impact statements were inadequate, particularly in the area of alternatives and alternatives relating to the design of the project, and concluded that the statements would have to be rewritten. See 42 U.S.C. § 4332(2)(C) (1970). Consequently, the district court exercised its remedial discretion by enjoining further construction of the eastern segment of the highway project. Since the court found that the Little Rock School District was faced with time limits relating to federal funding and planning for the relocation of Parham School in the eastern segment, the Highway Department was allowed to resort to condemnation if necessary real estate could not be acquired voluntarily. Furthermore, the trial court found that continuation of work in the western segment of the highway would not inflict immediate harm on anyone, would avoid further delay of the availability of transportation in that locale, and would obviate interference with necessary health care services emanating from the Baptist Medical Center. Generally, appellants contend that the district court erred by failing to require a section 4(f) statement, concluding that adequate relocation plans were available, refusing to grant injunctive relief with regard to the western segment of the highway, and failing to enjoin condemnation of real estate necessary to ensure relocation of Parham School. A cross-appeal has also been filed by the state appellees, i. e., individual members of the Arkansas State Highway Commission and the Director of the Arkansas State Highway Department. Principally, the cross-appellants assert that the trial court erred by declaring the environmental impact statements to be inadequate, requiring new statements to be prepared as outlined in the district court opinion and granting injunctive relief with respect to the eastern segment of the project. We affirm on the basis of the well-reasoned opinion of the district court. Arkansas Community Organization For Reform Now v. Brinegar, 398 F.Supp. 685 (E.D.Ark. 1975). We are satisfied that the findings of the district court are amply supported by the record and no error of law is apparent. See Rule 14. Affirmed. ORDER Cross-appellants in No. 75-1777 move this court for leave to proceed in the United States District Court, Eastern District of Arkansas, Western Division, with a motion under Rule 60(b), Fed.R.Civ.P., for relief from judgment and clarification of judgment. More specifically, they urge that it is no longer equitable that the terms of the injunction entered herein have prospective application in certain respects (rule 60(b)(5)) because changed operative facts surrounding the project support modifications serving substantial justice. For example, they urge that utility adjustments and relocations need to be accomplished during the allowed voluntary acquisition stage of the project. Cross-appellees resist cross-appellants’ motion contending that cross-appellants are seeking to reverse the judgment of the district court which was affirmed by this court on appeal. We are satisfied that a decree may not normally be changed if the purposes of the litigation have not been fully achieved. However, unforeseen hardships and/or changing conditions may require modifications. Flavor Corporation of America v. Kemin Industries, Inc., 503 F.2d 729 (8th Cir. 1974). See also United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999, 1005 (1932). The need for clarification is largely within the discretion of the trial court. In the instant case, the trial court retained jurisdiction “for all appropriate purposes.” 388 F.Supp. at 700. Leave is granted cross-appellants to seek relief in the district court under Rule 60(b). We express no opinion with respect to the merits thereof. . The Honorable J. Smith Henley, Circuit Judge. At the inception of this action Judge Henley was sitting as United States District Judge for the Eastern District of Arkansas and subsequently was appointed to the Eighth Circuit Court of Appeals. . 42 U.S.C. § 4332(C) (1970). . 49 U.S.C. § 1653(f) (1970). . 23 U.S.C. § 138 (1970). . 42 U.S.C. § 4601 et seq. (1970). . Since new environmental impact statements were ordered to be prepared, the court did not reach the issue of whether the FHWA had impermissibly delegated its responsibility to prepare the statements. . The district court denominated the part of the highway project east of Dennison Street in Little Rock as the eastern segment and the part of the project west of University Avenue as the western segment. . Cross-appellants request that the original trial judge, now Circuit Judge J. Smith Henley, be specially designated to hear this cause. This is a matter to be considered by the district court.

Valley Citizens for A Safe Environment v. Aldridge

BREYER, Circuit Judge. The United States Air Force has transferred 16 C-5A airplanes from Dover, Delaware to Westover Air Force Base in western Massachusetts. Valley Citizens for a Safe Environment, an association of local residents, opposes the transfer, primarily because its members believe the airplanes are too noisy. They claim that the Air Force did not prepare a proper Environmental Impact Statement (“EIS”) before deciding to send the planes to Westover. After examining the record, we conclude that the Air Force’s Final Environmental Impact Statement adequately sets forth the likely “environmental impact of the proposed” transfer, including any unavoidable “adverse environmental effects” and reasonable “alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C)(i-iii). The Air Force, in promulgating that Statement, acted lawfully. We affirm the district court’s similar determination. I Background When the Air Force received new cargo airplanes in 1982, it decided to transfer 16 older C-5As from Dover Air Force Base in Delaware to a new location. The Air Force wanted to assign the C-5As to the Air Force Reserve’s 439th Tactical Airlift wing, located at Westover Air Force Base, Massachusetts. It recognized that the C-5As made more noise than the 16 C-130s currently at Westover. And, on September 26, 1985, the Air Force met with local citizens to discuss the problem. After the meeting, the Air Force prepared a Draft Environmental Impact Statement; it released the Draft for public comment on December 5, 1985; and it closed the comment period fourteen months later, on February 11, 1987. On April 10, 1987, after revising the draft Environmental Impact Statement in response to the comments received, the Air Force published a 173-page final Environmental Impact Statement with five technical appendices. Subsequently, after considering likely environmental effects, as revealed in the Statement, the Air Force decided to transfer the C-5As to Westover. On June 30,1987, after the Air Force had transferred some, but not all, of the planes, Valley Citizens brought this legal action. It asked the federal district court to enjoin transfer of the planes on the ground that the Air Force had not prepared an adequate Environmental Impact Statement before making its transfer decision. See 42 U.S.C. § 4332(2)(C); Robertson v. Methow Valley Citizens Council, — U.S. -, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989) (agency must adequately identify and evaluate adverse environmental effects of proposed action). Valley Citizens said that the Environmental Impact Statement was not adequate in that it failed to take account of alternatives to the Westover transfer; it failed properly to describe potential adverse air pollution effects, and it failed to predict just how irritating airplane noise would prove to be. See, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (NEPA requires discussion of feasible alternatives to the proposed action); Sierra Club v. United States Department of Transportation, 753 F.2d 120 (D.C.Cir.1985) (noise relevant environmental concern of proposed action). The district court, after reviewing the record before the administrative agency (the Air Force) and examining the parties’ additional evidentiary submissions, granted summary judgment for the Air Force. Valley Citizens appeals. After examining the record, we conclude that the district court was legally correct. II Standards The National Environmental Policy Act (“NEPA”) requires an agency to prepare, in respect to proposed “major Federal actions significantly affecting the quality of the human environment,” a “detailed statement,” describing, among other things, the “environmental impact of the proposed action ... any adverse environmental effects which cannot be avoided, [and] ... alternatives to the proposed action.” 42 U.S.C. § 4332(C). In a typical challenge to the adequacy of such a statement, a reviewing court will apply “a reasonableness standard ... aimed at insuring a good faith effort by the Agency.” Conservation Law Foundation v. Andrus, 623 F.2d 712, 719 (1st Cir.1979); Silva v. Lynn, 482 F.2d 1282 (1st Cir.1973) (review of EIS governed by APA “arbitrary and capricious” standard, 5 U.S.C. § 706(2)(A)). In applying this standard we recognize NEPA’s basic objective, namely to inform the agency and the public, before the agency makes a final decision, about what adverse environmental effects might occur and whether less harmful alternatives are likely to be available. Robertson v. Methow Valley Citizens Council, 109 S.Ct. at 1845-46. We must ask whether, in light of this objective, the agency has carried out NEPA’s mandate in a reasonable way. In a typical case, a reviewing court, in answering this legal question, looks first and foremost at the record before the agency. That is because one cannot ordinarily expect an agency to do more than make reasonable efforts to gather relevant information and then to evaluate that information in light of the comments interested parties have made. The relevant legal question therefore is normally whether the Statement is “adequate” in light of the information and comments before the agency at the time it produced the Statement. Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983); Roosevelt Campobello International Park v. United States Environmental Protection Agency, 684 F.2d 1041, 1046 (1st Cir.1982). And, the record compiled by the agency will often contain sufficient information to permit the court to make this judgment. 0Changes in circumstance are relevant to the different legal question of whether the agency must prepare a supplement. See Commonwealth of Massachusetts v. Watt, supra; 40 C.F.R. § 1502.9(c).) A court’s tendency to review the legal adequacy of an Environmental Impact Statement on the basis of the record before the agency also may reflect the fact that such review often takes place in a court of appeals, a court that is not well equipped to try factual disputes de novo. E.g., 28 U.S.C. § 2342 (granting court of appeals exclusive jurisdiction to review certain final orders from certain commissions, including the Nuclear Regulatory Commission). See Sierra Club v. Marsh, 769 F.2d 868, 872 (1st Cir.1985). And the degree to which a party is, or is not, legally free to build a new record ought not to reflect simply the happenstance of which level of reviewing court a particular jurisdictional statute selects. Thus, it is not surprising that the Supreme Court pointed out in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971), and explicitly stated in Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” See also Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 1606, 84 L.Ed.2d 643 (1985). The fact that review sometimes or often focuses on the initial administrative record does not mean it must, or always, will do so. It could happen that a particular instance of judicial review of an EIS raises a “genuine” and “material” dispute of facts that requires a trial: Did the agency know, for example, about some important matter that the EIS ignored (and which the commenting parties did not know about and could not have pointed out?). See Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir.1986); County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1384-85 (2d Cir.1977), cert, denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). Or, did the agency improperly rely upon some other important, but secret, information not part of the record? Friends of the Earth v. Hintz, supra. Moreover, a reviewing court might want additional testimony by experts, simply to help it understand matters in the agency record; indeed, it might ask for additional factual evidence as an aid to understanding. However desirable this kind of evidentiary supplementation as an aid to understanding highly technical, environmental matters, its use is discretionary with the reviewing court. Love v. Thomas, 858 F.2d 1347 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989); Asarco, Inc. v. U.S.E.P.A., 616 F.2d 1153 (9th Cir.1980). We mention some of the circumstances in which an EIS review might lead to a trial to distinguish those circumstances from the present case. Here, the district court de- cided not to exercise any of its discretionary power to hear oral expert testimony. Moreover, here there is little “genuine” dispute about the information that was before the Air Force when it promulgated the EIS. The questions before us, rather, are legal: (1) Given the information before the agency, should the Air Force, in its EIS, have analyzed alternative locations for the C-5As more closely? (2) Did the EIS make a significant error in its estimate of the likely C-5A-eaused increase in nitrous oxide emissions? (3) Did the EIS properly analyze likely increases in noise levels? Although the parties’ briefs make factual claims that diverge, so widely that one is tempted to think some “material” factual issue must be in dispute, a close reading of their briefs, and an effort to track those divergent claims to their sources in the record reveals that there are no “material” disputes of fact. The parties argue about how many people the C-5A noise would irritate and how many pounds of nitrous oxide the plane will emit, but the answers to those factual questions do not determine the answer to the relevant legal question, whether the EIS reasonably, hence adequately, discussed these issues in light of the information the Air Force had, or should have had, at the time. Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.1989). To put the same point differently, even if we assume the answers to “genuine” factual disputes in Valley Citizens’ favor, we must find the Air Force’s discussion of “alternatives” adequate, its mistake about nitrous oxide inconsequential, and its noise analysis permissible. Our reasons for reaching these conclusions follow. Ill The EIS’s Discussion of Alternatives Valley Citizens first argues that the EIS did not adequately describe “alternatives to the proposed action.” 42 U.S.C. §§ 4332(2)(C)(iii), 4332(2)(E). In particular, Valley Citizens says the EIS should have discussed further the possibility of sending the C-5As to other Air Force bases. The legal question, as we have said, is whether the EIS’s discussion of the alternatives was a reasonable one. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. at 551, 98 S.Ct. at 1215 (NEPA does not require discussion of alternatives that are remote and speculative possibilities); Roosevelt Campobello International Park Commission v. United States Environmental Protection Agency, supra, (agency should study alternatives that are reasonable and appropriate); Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir.1980) (courts cannot require agencies to include in an EIS alternatives that are too fanciful or hypothetical). And, we think it was. A. The EIS Discussion. The EIS says that the Air Force, in deciding where to locate the planes, applied several critical now-environmental criteria, including (1) the adequacy of physical facilities, such as runways, ramps, etc.; (2) the recruiting potential for reservists in the base area; (3) the costs of additional needed construction; (4) the relationship to existing base uses; and (5) the adequacy of fuel systems. The EIS then states that the Air Force has examined five other possible locations: Orlando International Airport, Florida; Patrick Air Force Base, Florida; Cape Canaveral Air Force Station, Florida; Charleston Air Force Base, South Carolina, and Hunter Airfield, Georgia. The EIS goes on to describe how each of these locations fails to meet critical non -environmental criteria. In about two single spaced pages, it says that moving the planes (a) to Orlando would require spending $83.4 million for construction and would require buying additional land (which is not available); (b) to Patrick would require spending $83.4 million for construction plus the cost of filling in 70 to 150 acres of the Banana River because there is no land available to buy; (c) to Cape Canaveral would require spending about $138.6 million for construction and would also risk interference from missile launches; (d) to Charleston, would require spending only $23.6 million in construction, but it would also require moving 29 C-141s at a cost of double the construction estimates, and “the ability to recruit additional personnel necessary to operate a C-5A unit is doubtful;” (e) to Hunter Airfield would require spending $79.1 million for construction and “the demographics of the Savannah area are not considered adequate to recruit personnel with the skills necessary for a C-5A operation.” Finally, by way of comparison, the EIS says that moving the C-5A to Westover would impose added construction costs of about $46.9 million, significantly less than every other base but Charleston (where recruiting the 1,000 or more additional personnel would prove difficult). B. The reasonableness of the discussion. 1. The environmental discussion. The lack of discussion of the likely environmental effects of stationing the C-5As at Orlando, Patrick, Cape Canaveral, Charleston, or Hunter was perfectly reasonable. The EIS makes clear that the Air Force will not send the C-5As to the other bases because of significant added construction costs or recruitment problems. It will not send them irrespective of environmental effects at those other bases; it will not send them even if there are no harmful environmental effects, even if no one in those areas thinks the planes are too noisy. What purpose, then, could a discussion of environmental effects at those other bases serve, at least as long as the Air Force makes clear it is prepared to evaluate those alternatives on the assumption that their “adverse environmental effects” are zero? See 40 C.F.R. § 1502.14(a) (if alternatives are eliminated from detailed study and consideration, the agency shall briefly discuss the reasons why the alternatives have been eliminated). 2. The non-environmental discussion. The EIS’s discussion of the wow-environmental aspects of the other bases was brief but adequate. For one thing, the Air Force’s reasons for not sending its C-5As to those other bases, on their face, seem reasonable. For another thing, none of the comments that any person made about the draft EIS suggested that the Air Force go into the matter more deeply. In Roosevelt Campobello International Park v. U.S.E. P.A., supra, we made clear that the agency’s duty under NEPA is to study all alternatives that “appear reasonable and appropriate for study at the time” of drafting the EIS, as well as “significant alternatives” suggested by other agencies or the public during the comment period. In order to preserve an alternatives issue for review, it is not enough simply to make a facially plausible suggestion; rather, an intervenor must offer tangible evidence that an alternative site might offer a “substantial measure of superiority” as a site. Id. at 1047. (Emphasis added.) The only relevant comments we have found consist of requests to send the C-5As to “a remote location” or to a base where takeoffs and landings would be “over water.” The Air Force in its EIS responded adequately to those comments, pointing out that the only practical “remote” location was Cape Canaveral; that the only “over water” locations were Cape Canaveral and Patrick; and that cost and other wow-environmental objections made those alternatives impractical. Nothing in the agency record, or in the comments made to the draft, or in the record before us, as expanded in this judicial proceeding, points out any inaccuracy in the Air Force’s cost descriptions, or in its discussions of other non-environmental considerations. And nothing whatsoever suggests that any of the other bases enjoys (in the words of Roosevelt Campobello) a “substantial measure of superiority” to Westover. Without some good reason to doubt the accuracy of the Air Force’s wow-environmental conclusions (hence to believe that adverse environmental consequences might have played a role in ruling out these other bases), one cannot fairly criticize the EIS’s discussion of them, at least not when one reads that discussion in light of the comments made on the EIS draft. Cf. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. at 553, 98 S.Ct. at 1216 (“while it is true that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action, it is still incumbent upon intervenors who wish to participate to structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.”) Valley Citizens responds that the EIS discussion of “alternatives” should have seemed obviously far too abbreviated irrespective of the comments, and this fact itself would be obvious were the agency action at issue the building of a large nuclear power plant or the building of a double deck bridge, or the dumping of millions of tons of refuse. But the problem with this argument is that the agency action at issue is not the building of a power plant or a bridge or ocean dumping; the action consists of moving some Air Force planes from one base to another. And, what counts as a “reasonable” or “adequate” discussion in an EIS depends upon the circumstances, including the nature of the action at issue. Manygoats v. Kleppe, 558 F.2d 556 (10th Cir.1977) (kind of impact statement depends on kind of federal action); Sierra Club v. Lynn, 502 F.2d 43 (5th Cir.1974) (adequacy of EIS must be determined in light of nature of federal action), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484 (1975). What counts as a reasonable discussion in the context of a proposed Defense Department decision to move a battle group east to make it more readily available should trouble arise in the Middle East might seem not at all reasonable or adequate in the context of a plan to build a major oil refinery at the gateway to a national park. To insist that, in both sorts of instances, an EIS must reflect the same number of hours of work, or embody the same time-consuming and deeply probing investigation is to misuse the words “reasonable” and “adequate.” And, to force every EIS to fit any such procrustean bed would risk a procedure that, in some instances, might unnecessarily prevent an agency from taking timely and critical action, and in other instances, might fail to produce the detailed explanation of environmental effects needed for protection of the environment. NEPA’s success in large part arises from the use of legal concepts such as “reasonableness” and “adequacy” that permit courts to adapt it successfully to so many different kinds of circumstances surrounding so many different kinds of governmental decisions. Valley Citizens adds that the Air Force, in considering alternatives, should have taken account of potential adverse environmental effects and added costs at Westover arising from the cold winter weather. We have found only one comment on this matter, however, a letter from the Air Force’s regional civil engineer, stating that, if the Air Force intends more de-icing operations than at present, it should amend its spill control plan to take account of the risk of spilling antifreeze. The Air Force responded adequately to this count by saying it would do so. We have read and reread the Freedom of Information Act letter that Valley Citizens refers to in its reply brief without finding anything that one could fairly interpret as calling the Air Force’s attention to a need to say something about some special “cold weather” environmental (or other) effects. Nor was this need somehow obvious. Consequently, in this respect, too, the EIS, viewed as of the time it was made and in light of the comments, is reasonable and adequate. IV Nitrous Oxide Valley Citizens claims that the EIS failed accurately to portray the extent to which the transfer would increase air pollution, specifically by increasing concentrations of nitrous oxide. They have shown (and the Air Force concedes) that the EIS did not take account of the extra (i.e., compared to the C-130s) nitrous oxide that the C5-As would emit during some of the airborne portion of their flight “sorties” and during engine testing. The legal question before us is whether these emissions were “significant.” Conservation Law Foundation v. Andrus, 623 F.2d 712, 719 (1st Cir.1979) (a minor deficiency in an EIS does not entitle the court to disregard the deference the agency is entitled to); Commonwealth of Massachusetts v. Andrus, 594 F.2d 872, 884 (1st Cir.1979) (a court “may not use minor lapses in the statement as an excuse to thwart actions that it believes to be unwise ... or require of the discussion a degree of detail too exacting to be realized”). We conclude that the EIS’s inaccuracies about nitrous oxide were not significant. A. What were the inaccuracies? We have used the parties’ briefs and related record references to determine the precise nature of the factual dispute between them and therefore the size of the inaccuracy we must assume for present purposes. We end up assuming that, for summary judgment purposes, a court could at most find that the EIS failed to take into account about 75 tons of nitrous oxide per year. We shall first explain how we reached this conclusion and then discuss its significance. 1. The EIS calculations. The EIS calculated the extent to which flying C-5As might add to air pollution by taking the following four steps. Step One. The EIS described what would occur on a typical C-5A training “sortie,” as follows: A typical C-5A training sortie would provide training for four flight crews. Initially, two crews would board the aircraft, start the engines, taxi to the end of the runway, perform an engine runup, and then take off. The aircraft would fly for approximately 2lh hr, with flight crews changing places at approximately the midpoint of the flight. At the end of the 2V4-hr period, the aircraft would land and then taxi to the operations area where two additional flight crews would board the aircraft and the original crews would deplane. The engines would remain running during the crew change. Following the crew change, the aircraft would taxi to the end of the runway, and take off and fly for approximately 2xh additional hours, with the aircrews changing places at approximately the midpoint of the flight. At the conclusion of the flight, the aircraft would land, taxi to the ramp area, and the engines would be shut down. Including the time required for startup and engine check, engine running, crew change, and shutdown, a typical training sortie would last approximately 5 hr_ During the sortie, the aircraft would make two takeoffs from a full stop, two landings resulting in full stops, and approximately 18 touch- and-go landings or low approaches. (In a touch-and-go landing, the aircraft touches down on the runway, rolls for several hundred feet, and then takes off again without stopping. In a low approach, the aircraft descends to approximately 50 ft above the runway and then departs without touching down on the runway....) Step Two. The EIS determined how many pounds of pollutants (carbon monoxide, hydrocarbons, nitrous oxides, sulfur dioxide, and particulates) each C-5A plane emitted during each take-off-and-landing (which it defined to include idling time, taxiing, take-off run, ascending to 3600 feet, descending from 3600 feet, and touchdown) as well as during each touch-and-go operation. The Air Force made the EIS calculation through use of Table A-4 contained in a document called “Aircraft Engine Emissions Estimator, 1985.” Exhibit 27 in the court record. That table sets forth typical emissions for a C-5A. It shows, for example, that during a typical take-off-and-landing cycle, a C-5A emits 3.0 X 10-2 metric tons of nitrous oxide {i.e., 30 kilograms) and during a touch-and-go the same plane emits 1.3 X 10-2 metric tons {i.e., 13 kilograms). The EIS translates this into pounds (66.2, 28.7) and places the result in EIS Table 4-43. Step Three. The EIS determines “emissions per sortie” by multiplying the “takeoff-and-landing” figure by two (each plane takes off and lands twice during each sortie); by multiplying the “touch-and-go” figure by 18 (each plane “touches-and-goes” 18 times during each sortie); and then adding the results together. It multiplies the “emissions per sortie” by the number of sorties each plane will make per week (4); it multiplies again by the number of weeks per year (52); and it multiplies a final time by the number of C-5A planes (16). The result is total C-5A emissions per year, which (converted into metric tons), says the EIS, in the case of nitrous oxide, amounts to 73.1 tons per year. Step Four. The EIS makes a similar calculation for the C-130s that the C-5As will replace. The C-5As emit more pollutants, but the Air Force will fly them fewer hours. The result is a decrease in all pollutants except for nitrous oxide emissions which will increase from 34.6 tons to 73.1 tons per year. 2. The EIS’s mistakes. Valley Citizens says that the EIS made two important mistakes. First, the EIS did not take account of emissions created during engine testing. Second, the EIS did not take account of pollutants emitted during sorties while the C-5As are flying, but not taking off, landing or engaging in “touch-and-goes.” Such flying obviously would likely take place at quite a distance off the ground, but still at altitudes of less than 3600 feet, a height that the Air Force concedes is significant in respect to pollution. (The record suggests that the EIS also omitted to count pollutants emitted during certain “cargo flights”.) 3. The amount of emissions omitted. Before we can decide whether these mistakes are significant, we must determine how much pollutant is at issue. And, since the parties seem to dispute this matter, we must determine the outside limit of what (the record here indicates) Valley Citizens might prove. a. Engine testing. The Air Force has recalculated likely emissions amounts. Its recalculation (embodied in Exhibit 29) finds that engine testing of C-5As will produce 41.4 tons of nitrous oxides per year; the C-130s produced 4.0 tons; thus “engine testing,” omitted from the EIS, will increase nitrous oxide emissions by an extra 37.4 tons per year. (Exhibit 29, p. 2). Valley Citizens disputes this figure. It claims that “engine testing” C-5As would produce 144.5 extra tons of nitrous oxides per year. (Reply Brief note 3.) Valley Citizens bases its estimate, however, on Air Force documents provided during discovery, contained in Exhibit 37. That document, an Air Force study done before the study that the Air Force used to make its 41.4 ton estimate (Exhibit 29), based its finding on an assumption that is not true (which is why the Air Force rejected it). The amount of “engine testing” emissions obviously depends upon how many times each week the Air Force will test each engine. The early study of Exhibit 37 assumed that the Air Force would test its planes 24 times per week. The earlier study based this assumption upon two sets of phone conversations with Air Force officials, one of which led the earlier study’s authors to believe the Air Force would test its planes more than 30 times per week and the other of which led them to believe the Air Force would test its planes 16 times per week; the authors then simply averaged these two numbers, pointing out in a footnote that their assumption about how many times each week the Air Force would test its engines was somewhat arbitrary. The second, later study, Exhibit 29 (the study the Air Force used to obtain the 41.4 ton estimate) is considerably more detailed; it measures emissions at different engine speeds over sets of different time periods. It bases its assumption about how often the Air Force will test its engines upon the “actual maintenance history" of C-5As “Air Force-wide” and the C-130’s “actual history (at Westover, AFB).” (Emphasis added.) It adds that this “actual history” shows that “engine runups” will be “much less frequent and of briefer, duration than previously assumed.” Having examined the two studies in light of the explanation and the record, which contains nothing that casts doubt on the explanation, we do not see how any reasonable person could accept the results of the first, rather than the second, study as showing what is, in fact, likely to happen at Westover Air Force Base. The record therefore requires us to accept the Air Force estimate that the amount of extra nitrous oxide due to “engine testing” omitted from the EIS amounted to 37.4 tons. b. Cargo flights. The Air Force also modified its estimate of the nitrous oxide emitted during operations to take account of five “non-local cargo missions” per week. For this reason, it increased its estimate from 73.1 to 84.3 tons per year, thereby increasing total nitrous oxide emissions by 11.2 tons. Valley Citizens does not dispute this amount. c. Sortie emissions. Valley Citizens argues that the EIS estimate of nitrous oxide emitted from the C5-As during sorties underestimated the amount by 321.3 tons. We have searched the record, using the references Valley Citizens provides in its footnotes, to try to understand how it arrived at its estimate and what accounts for the difference. We have found that both the Air Force’s estimate and Valley Citizens’ estimates come from using the same reference, the Aircraft Engine Emissions Estimator, 1985. This Estimator provides two different methods for estimating air pollution. One of those methods (Table 3) uses time periods that different airplanes, with different engines, will fly at different engine modes, and, using different calculation fractions for different pollutants, it determines an amount of pollutant the plane will emit during virtually any kind of flight. The other method (Table A-4) uses what seems to be a finer set of calculations that describes just how much of each pollutant a C-5A will emit during a take-off-and-landing and during a touch- and-go operation. The Estimator makes clear that a user can use either calculation method. Valley Citizens relies upon a set of figures that a Mr. Weister at Robbins Air Force Base developed (for the Air Force) using the first of these methods. It applies Table 3 to an estimate of just how much time during each 5-hour sortie a C-5A will fly (or taxi, or take off, or land, or “touch-and-go”) with its engine set at each of four different possible engine modes. (Exhibit 26.) The Air Force relies upon the second of these methods. It applies Table A-4 to the 2 take-off-and-landing operations and the 18 touch-and-go operations conducted during each 5-hour sortie. (Exhibit 29.) Since the second of these methodologies is not “obviously incorrect,” Commonwealth v. Andrus, 594 F.2d at 886, and since Valley Citizens concedes that it will not argue “that the methodology used by the Air Force to calculate air pollution is wrong” (Reply Brief at 8), one might think that this is the end of the matter, that a court must accept the Air Force’s estimate, which, in essence, is that of the EIS. Valley Citizens, however, goes on to make an argument that the Air Force does not fully refute. It says that the reason these estimates differ is that the first method took account of the entire 5-hour sortie, while the second method (the EIS method) took account only of the time the plane was taking off, landing, or engaging in “touch and go.” It omitted (says Valley Citizens) the time the plane spent circling around (though Valley Citizens does not tell us how much of the 5 hours the planes spent just circling around). The Air Force, of course, might claim that there is no such thing as “circling around time;” it might claim that the two take offs, the two landings, and the 18 touch-and-go operations (accounted for in the second methodology) take up the entire five hours. But, even if the Air Force might say this, it has not said it. And, we must take the facts on a summary judgment record as a reasonable trier of fact might find them. Still, no one could reasonably conclude that the entire 321 tons represents nitrous oxides that the C5-As will emit while they are “circling around.” For one thing, Exhibit 26 itself, which embodies the first methodology and which produces the 321 ton figure, makes clear that the 321 ton figure represents emissions over the entire 5-hour sortie, including nitrous oxide emitted during taking off, landing, and touch- and-go operations, (as well, possibly, as “circling”). Two take offs, two landings and 18 touch-and-go operations simply must consume nearly all, if not all, of a 5-hour sortie and therefore must account for nearly all, if not all, of the 321 tons of nitrous oxide emissions. No one could reasonably conclude that much of the difference between the 321 ton “first method” estimate that Valley Citizens puts forward and the 73.1 ton “second method” estimate that the Air Force uses represents the second method’s omission of circling time. (Certainly, Valley Citizens has not, on this appeal, pointed to anything in the record that would refute the common sense view that 2 take-offs, 2 landings, and 18 touch- and-go operations would consume almost all of a 5-hour flight.) Rather, the differences in the estimates, if they reflect the second method’s failure to count circling must to a far greater degree reflect the use of different methodologies. (The Estimator’s differing numbers in respect to other pollutants confirm the fact that different results reflect the use of different methodologies, and not simply the omission of circling time.) Moreover, one must adjust Valley Citizens’ claim downwards to reflect the fact that the C-130s, too, would have circled around during their flights; if the C-5As emit nitrous oxide during such circling so must the C-130s have done; and the relevant question is how much additional nitrous oxide emissions replacement by C-5As will bring about. The upshot is that, in our view, a reasonable trier of fact might find that the original EIS understated the nitrous oxides the C-5As will emit during flight by an amount that is much less than the 248 ton difference between the first method’s 321 ton estimate and the second method’s 73.1 ton estimate. To put an outer bound on the total “misestimates,” we add the 37.4 ton “engine testing” omission to the 11.2 ton “cargo operation” omission, and then add some small extra number for any “circling around time” omission. Simply to put an outer bound number on this extra amount (which the record does not quantify but which must be small), we shall assume for summary judgment purposes that Valley Citizens could show that the EIS underestimated nitrous oxide emissions by a figure in the range of, say, 50 to 75 tons per year. 4. The significance of the EIS’ omission. We now must determine whether, in context, the EIS’s 50 ton (more or less) nitrous oxide omission is significant. If it is, the Air Force must redo the EIS. Sierra Club v. Marsh, 872 F.2d at 499-501. On the one hand, the error is large in terms of absolute numbers of tons and large in relative terms comparing a revised, to the initial, nitrous oxide emission estimate. On the other hand, undisputed figures in Exhibit 29 indicate that the region’s total yearly emissions of nitrous oxide amount to over 34,000 tons. And, the region is in attainment for nitrous oxide. Further, the C-5A transfer, while increasing nitrous oxide emissions, would, to a small degree, reduce emissions of hydrocarbons as well as emissions of carbon monoxide and particulates, pollutants in respect to which the area is not in attainment. Additionally, the Massachusetts Department of Environmental Quality raised no objection to the fact that a different, but related proposal in the same EIS (a proposal to extend operating hours at the base) would have increased nitrous oxide emissions by 152 tons per year. Also, some of the omitted nitrous oxide emissions would take place when airplanes circle several thousand feet above ground — lower than the EPA’s 3,600 feet ceiling, but still at a considerable distance from the earth where emissions most seriously add to pollution. Finally, and perhaps most important, the entire record makes clear that the basic environmental problem with the transfer of the C-5A concerns noise pollution, not air pollution. Ultimately, though we find the issue closer than the district court suggested, we agree with its conclusion. We would state the matter narrowly by noting that, assuming fact findings appropriately favorable to Valley Citizens, Valley Citizens still has not convinced us that the EIS’s failure to consider engine testing, or other factors that account for differences in nitrous oxide emission estimates is significant. Conservation Law Foundation v. Andrus, 623 F.2d at 719; Commonwealth of Massachusetts v. Andrus, 594 F.2d at 886. V Noise Transfer of the C-5As to Westover undoubtedly means more noise. The EIS analyzes the noise question in detail. It draws map contours showing the places and the number of people that the sorties will expose to noise levels above 65 decibels (a level that the National Academy of Sciences (“NAS”) Guidelines, Exhibit 49, says will “significantly” disturb outdoor speech) and above 75 decibels (a level that the NAS Guidelines says will produce a “very significant disturbance.”) It specifies, for example, that a typical 5-hour sortie operation from runway 05 will expose 25,649 people to noise levels between 65 and 70 decibels, 14,958 to levels between 70 and 75 decibels, 5,933 to levels between 75 and 80 decibels, and 937 to sounds above 80 decibels. It discusses the resulting interference with speech, with sleep, and with land use. It also describes what it calls “annoyance,” using an average, or cumulative noise analysis, in accordance with the National Academy of Sciences Guidelines. It says that, over the course of a year, it expects 3,550 persons to be exposed to an average, or cumulative noise level of more than 65 decibels, and it predicts that, of these, 22 percent will be highly annoyed. Valley Citizens claims that the EIS should not have used the NAS Guidelines to determine the number of people whom the flights would “highly annoy.” It correctly notes that the irritation that a loud noise can cause will depend on (a) how loud it is, (b) how long the noise lasts, and (c) how often it occurs. A very loud noise that occurs once may irritate only briefly; a fairly loud noise that lasts for 50 minutes, 5 days per year may irritate more; a slightly loud noise that recurs every day may prove still more annoying. The relevant questions are: how loud? how long? how often? The NAS Guidelines try to take these matters into account by measuring average noise levels over a 24-hour period, weighing nighttime noise more heavily; and then averaging these averages over the course of a year, producing what it calls a yearly average “day/night noise level.” The Air Force, after calculating that level for the C-5As, checked it against a chart prepared by Professor T.J. Shultz in 1978 (based on studies done at Heathrow Airport in London and elsewhere). The chart shows what percent of those exposed to a particular cumulative yearly average level will likely prove to be “highly annoyed.” This chart yielded the Air Force’s estimate of 771 “highly annoyed” individuals. To show that this NAS Guidelines cumulative approach is unacceptable, Valley Citizens introduced into the record two affidavits by Professor Richard Freyman and affidavits from 1535 citizens of the area. The former stated that the Air Force should not have applied the NAS cumulative average methodology to Westover, in light of the fact that it would only fly sorties approximately every other, rather than every day. The latter affidavits stated that Valley Citizens found the noise (from the C-5A flights that the Air Force had begun to make) extremely bothersome. Professor Freyman’s affidavits (whether or not taken together with the 1535 citizen affidavits) are not sufficient, however, to warrant a legal conclusion that the Air Force used an improper methodology for several reasons. First, Jerry Speakman, an Air Force research physicist, states (by affidavit) without contradiction that the “Air Force’s methodology ... is also the fundamental methodology of all other federal agencies, such as EPA, HUD, and FAA, ... widely endorsed in one form or another since the early 1970s.” See Sierra Club v. United States Department of Transportation, 753 F.2d at 128 (within FAA’s discretion to use cumulative noise impacts to assess environmental effects). Second, Professor Freyman’s affidavits offer a fairly obvious criticism of the standard methodology (that it does not work as well when a loud noise occurs every so often as when it occurs every day, for it “averages out” the occasional noisy day with quiet days, thereby equating the disruption to that caused by a less loud noise that occurs more frequently); but those same affidavits do not offer any alternative measure that seems both practical and superior. Indeed, Professor Freyman says that the Air Force used its methodology “mostly for lack of a better alternative.” Third, NAS methodology, in fact, takes special account of the sudden, occasional loud noise. As Robert Miller, an acoustical expert, points out in his affidavit, average DNL “weights very significantly the loudest days.[in that] the average of two [decibel average] values of, say, 55 and 75 decibels is 72 decibels and not 65 decibels as might be expected.” Fourth, the comments on the draft EIS do not take issue with the standard methodology. It should have been clear from the start that since the methodology is standard, the Air Force would likely use it. Valley Citizens’ comments indicate awareness that the Air Force relied upon Professor Schultz’s work to determine annoyance levels. Thus, the time to complain, and to complain clearly, about methodology was at the comment stage, not two years later after the EIS was complete. Roosevelt Campobello, 684 F.2d at 1047, see pp. 462-63, supra. Fifth, the EIS, taken as a whole, shows a clear awareness that the individual sorties, in and of themselves, create a noise problem leaving aside any matter of yearly averages. The EIS describes the number of sorties, their frequency, and their noise levels. It thereby fully discloses the problem. Its use of the figure 771 tied to the words “highly annoyed,” and to a particularly historical methodology, does not, in context, suggest the EIS believes that the number represents the full extent of the noise problem. Sixth, the law makes clear that the agency has discretion “to determine proper testing methods.” Sierra Club v. United States Department of Transportation, 753 F.2d at 128. See also Suburban O’Hare Commission v. Dole, 787 F.2d 186, 197 (7th Cir.1986) (same), cert. denied, 479 U.S. 847, 107 S.Ct. 169, 93 L.Ed.2d 106 (1986); Webb v. Gorsuch, 699 F.2d 157, 160 (4th Cir.1983) (“When there is conflicting expert opinion, it is for the administrative agency and not the courts to resolve the conflict”). See p. 466, supra. And, it also makes clear that we are normally to judge the reasonableness of the agency’s action in light of the circumstances (normally as revealed in the agency record) as of the time it made the decision. See pp. 459-60, supra. Given these seven sets of circumstances, we cannot say that the Air Force was unreasonable in using the NAS methodology. Although we approve its use here, as did the District of Columbia Circuit in Sierra Club v. United States Department of Transportation, supra, we do not imply that it is immune from criticism or legal attack. But, the place to attack standard methodology, at least in the first instance, is before the agency, not before a reviewing court. Given the commentators’ failure to launch any such attack in their comments, the fact that the methodology is well accepted, and at least a very rough fit between methodology and problem, we find its use in the final EIS reasonable. And, we do not believe the later fact, that 1535 persons signed affidavits saying the noise is very bothersome, can change the reasonableness of the agency’s having previously used the methodology at hand. For these reasons, the judgment of the district court is Affirmed.

Washington Utilities & Transportation Commission v. Federal Communications Commission

OPINION BROWNING, Circuit Judge: The Federal Communications Commission authorized Microwave Communications, Inc., to construct a specialized communications common carrier route between St. Louis and Chicago. Microwave Communications, Inc., 18 F.C.C.2d 953 (1969). As a result, a large number of applications were filed by others interested in providing specialized communications services in competition with the established carriers. The applications raised common questions. The Commission instituted a proceeding to formulate policy and establish rules with respect to these issues. See Notice of Inquiry to Formulate Policy, Notice of Proposed Rulemaking, and Order, 24 F.C.C.2d 318 (1970). These petitions seek review of the final order issued as a result of that proceeding. First Report and Order, 29 F.C.C.2d 870 (1971). The Commission’s order reflects two basic determinations. The Commission decided that “a general policy in favor of the entry of new carriers in the specialized communications field would serve the public interest, convenience, and necessity.” 29 F.C.C.2d at 920. It also decided that “it is not necessary or desirable in the public interest to hold comparative hearings for the purpose of restricting new entry in any particular area to only one private line applicant.” 29 F.C.C.2d at 926. Petitioners attack both determinations on substantive and procedural grounds resting upon the Federal Communications Act, 47 U.S.C. §§ 214, 309. They also argue that the Commission failed to consider the environmental impact of the policy adopted by the order as required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. Respondents respond on the merits, and, in addition, challenge petitioners’ standing to seek review of the Commission’s order. We hold that petitioners have standing. We affirm the order. I We have been admonished that “[generalizations about standing to sue are largely worthless as such” (Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970)), and that the solution to standing “problems is in any event more or less determined by the specific circumstances of individual situations.” United States ex rel. Chapman v. Federal Power Commission, 345 U.S. 153, 156, 73 S.Ct. 609, 612, 97 L.Ed. 918 (1953). From an examination of the nature of this proceeding, the character and interest of the parties, and the substance of the issues, we conclude that each petitioner is a “proper party to request an adjudication of [the] particular issue[s] ” it seeks to raise. Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). See also United States v. Richardson, 418 U.S. 166, 174, 94 S.Ct. 2940, 2945, 41 L.Ed.2d 678 (1974); Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Petitioners seek review of final administrative action. The availability of judicial review of administrative decisions is generally thought to serve important public purposes. This premise underlies the rule that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review” (Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)), and has led to a progressive expansion of the categories of persons who are granted standing to obtain such review. See, e. g., Arnold Tours, Inc. v. Camp, 400 U.S. 45, 91 S.Ct. 158, 27 L.Ed.2d 179 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Association of Data Processing Service Organizations, Inc. v. Camp, supra. Congress has expressly authorized review of final orders of the FCC. Thus, “Congress has weighed the need for and value of judicial review of a given category of administrative decisions, and has decided it is warranted. Congress having explicitly made that decision, the Court has before it only the implementing, secondary decision as to whether there is reason not to allow the particular plaintiff in question to be one of those who may invoke the review — and the standing rules tend to become more liberal.” Scott, Standing in the Supreme Court — A Functional Analysis, 86 Harv. L.Rev. 645, 656 (1973). A. The Washington Utilities and Transportation Commission (WUTC) is an agency of the State of Washington, charged by law with responsibilities related to issues it seeks to raise. There is substantial authority that such an agency, raising such issues, is a proper plaintiff to obtain review of an administrative order. WUTC’s petition for review alleges that WUTC and the general public of Washington “are aggrieved” by the FCC order because “[ejffectuation of the Order would serve to increase the burden to intrastate telephone users by reason of the diversion of interstate usage of telephone network facilities to the detriment of telephone users whose rates are regulated by state authorities.” The factual and legal premises for WUTC’s assertion of standing are largely conceded. The telephone system is a single, integrated network. The same services and equipment provide both interstate and intrastate services. The rates fixed for these services must be sufficient to allow the utility to recover its expenses and receive a reasonable return on its investment. Since the rates of interstate services are fixed by the federal agency and rates for intrastate services by state agencies, common plant and service costs must be allocated between them. Smith v. Illinois Bell Telephone Co., 282 U.S. 133, 146-149, 51 S.Ct. 65, 75 L.Ed. 255 (1930); The Minnesota Rate Cases, 230 U.S. 352, 435, 33 S.Ct. 729, 57 L.Ed. 1511 (1913). The allocation reflects the relative use of the common facilities in providing one service or the other. A reduction in interstate service relative to intrastate service would decrease the allocation of the costs of common plant and services to the base for interstate rates, and increase the allocation of these costs to the base for intrastate rates, thus requiring state regulatory agencies to increase rates for intrastate service. WUTC contends that by authorizing new carriers to furnish specialized interstate communication services without determining that present carriers are unable to meet the need for this service, ■and without individualized determination of economic exclusivity, the Commission’s order will result in an increase in the number of carriers competing to provide this interstate service and will decrease the usage existing carriers will make of common telephone facilities for the purpose of providing interstate service. This in turn will require allocation to intrastate service of a larger share of the costs of service and equipment used in providing both intrastate and interstate services, and will compel WUTC to raise rates for intrastate service, contrary to the interests of Washington telephone users. WUTC is invested by statute with broad responsibilities to protect the interests of the people of the State of Washington in matters related to the cost and quality of telephone service. WUTC is required to “[r]egulate in the public interest . . . the rates, services, facilities, and practices of all persons [including telephone companies] engaging within this state in the business of supplying any utility service . to the public for compensation ..” R.C.W. 80.01.040(3). The interest of the public to be protected under the statute is that of the customers of the regulated utility. Cole v. Washington Utilities & Transportation Commission, 79 Wash.2d 302, 306, 485 P.2d 71, 73-74 (1971). WUTC is empowered to fix rates for intrastate telephone service that are “just and reasonable” in order to protect consumers from charges that are “unjust, unreasonable, unjustly discriminatory or unduly preferential,” as well as to protect the utilities from charges that are “insufficient to yield reasonable compensation for the service rendered.” R.C.W. 80.36.140. The Supreme Court of Washington has specifically recognized that WUTC has an obligation to protect the interests of telephone users in separations matters— analogous to those underlying WUTC’s petition for review in this case — that come within its intrastate regulatory jurisdiction. In State ex rel. Pacific Northwest Bell Telephone Co. v. Washington Utilities & Transportation Commission, 66 Wash.2d 411, 403 P.2d 73 (1965), WUTC, under authority granted by R.C.W. 80.36.160, issued an order relating to the division of revenues derived from the interchange of interstate long distance telephone messages between Pacific Northwest Bell and two independent telephone companies. The determination of the appropriate division of revenues in turn required WUTC to devise a plan for the separation or allocation of costs among the various local and toll telephone services performed by the independent companies. In its opinion affirming the order, the court stated: The present proceeding is preliminary to the Commission’s principal function, which is to establish rates for telephone service which are found to be fair, just, and reasonable to the user, and sufficient to provide reasonable compensation to the utility for the service rendered. See RCW 80.36.080 and 140. The Commission, in its order, pointed out that the division of revenues is inextricably related to the rate-making process. Thus the real parties in interest in this case are all the users of telephone service in the state of Washington who will have to pay the rates ultimately established for such service. 66 Wash.2d at 427, 403 P.2d at 84. In addition to these regulatory functions, two other Washington statutes impose upon WUTC an advocacy role in support of the interests — stated in the broadest terms — of telephone users of the state. WUTC is authorized to participate in administrative and judicial proceedings of the kind involved here, “in which there is at issue the authority, rates or practices for . . . utility services affecting the interests of the state of Washington, its businesses and general public . . ..” R.C.W. 80.01.-075. WUTC’s authority under this statute does not appear to be limited to proceedings relating to intrastate services; it exists whenever the authority, rate, or practice affects the interests of the state, its businesses, or its people. A second Washington statute gives WUTC power to investigate interstate rates and charges for telephone services, and provides, “[wjhere any acts in relation thereto take place within this state which, in the opinion of the commission, are excessive or discriminatory, or are levied or laid in violation of the federal communications act . . .WUTC can petition the FCC for relief. R.C.W. 80.36.250. For thirty years or more WUTC and other state utilities commissions have acted on the premise that their duty to protect the interest of the people of their respective states is not discharged simply by accepting the existing allocation of joint costs to intrastate use as a base for determining reasonable intrastate rates. They have actively sought to reduce the allocation of joint costs to the intrastate rate base to the extent consistent with law. Congress and the FCC have long recognized that the state utilities commissions are the appropriate parties to represent their respective states in this effort. The test currently applied to determine if a private person has standing to seek judicial review of agency action is set forth in Association of Data Processing Service Organizations, Inc. v. Camp, supra, 397 U.S. at 152-153, 90 S.Ct. at 829: The complainant must allege “that the challenged action has caused him injury in fact, economic or otherwise,” and the interest which the complainant seeks to protect must be “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Both parts of the Data Processing test are satisfied in this case. The purposes of the first Data Processing requirement — “injury in fact”— are satisfied here because the alleged interference with WUTC’s ability to discharge its obligation to protect the interests of Washington telephone users gives specificity and concreteness to the controversy and assures its presentation with adversarial vigor. The fact that WUTC’s alleged injury is not economic in nature and cannot be quantified does not prevent it from satisfying the requirement of “injury in fact.” Data Processing, supra, 397 U.S. at 154, 90 S.Ct. 827; Sierra Club v. Morton, supra, 405 U.S. at 734, 92 S.Ct. 1361; United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). WUTC’s allegation that the FCC order will affect the discharge by WUTC of its duty to protect the interest of Washington telephone users arises too plausibly from the known facts of the industry to be dismissed as “an ingenious academic exercise in the conceivable.” United States v. SCRAP, supra, 412 U.S. at 688, 93 S.Ct. at 2416. And it is no bar to WUTC’s standing that the line of causation between the FCC order and interference with WUTC’s performance of its duties may be attenuated. Id. at 688—690, 93 S.Ct. 2405. The obligation interfered with is imposed directly and specifically upon WUTC by statute. Thus, WUTC seeks to discharge a legal duty — it does not act from a generalized “motivation,” Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 225-226, 94 S.Ct. 2925, 2934, 41 L.Ed.2d 706 (1974), or because of a “mere ‘interest in a problem,’ ” Sierra Club v. Morton, supra, 405 U.S. at 739, 92 S.Ct. 1361; and its concern is not of a kind shared by citizens generally. Schlesinger v. Reservists Committee to Stop the War, supra, 418 U.S. at 216—217, 94 S.Ct. 2925, 2930; United States v. Richardson, supra, 418 U.S. at 176—179, 94 S.Ct. 2940, 2946-2947. As Judge Leventhal said in a similar context, “We should not be niggardly in gauging the interest of a state administrative officer in the validity of what his federal counterpart has done in an area of overlapping fact and intertwined law.” Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 700 (1967). In Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), the Supreme Court strongly suggested, in a somewhat different context, that for purposes of standing, impairment of an administrative agency’s interest in the effective discharge of the obligations imposed upon the agency by law is the equivalent of the “personal stake,” “injury in fact,” or “concrete injury” that would support standing of a private plaintiff. The immediate question in Coleman v. Miller was whether state senators opposing ratification of the Child Labor Amendment had standing to seek review by the Supreme Court of a state court decision sustaining the right of the lieutenant governor to cast a decisive vote in favor of ratification. The Supreme Court held that the senators’ interest in maintaining the effectiveness of their votes was sufficient to support standing. The Court noted, “[Tjhere has been recognition of the legitimate interest of public officials and administrative commissions, federal and state, to resist the endeavor to prevent the enforcement of statutes in relation to which they have official duties.” 307 U.S. at 441—442, 59 S.Ct. at 977. Reviewing certain of its past decisions, the Court concluded (id. at 445, 59 S.Ct. at 978): This class of cases in which we have exercised our appellate jurisdiction on the application of state officers may be said to recognize that they have an adequate interest in the controversy by reason of their duty to enforce the state statutes the validity of which has been drawn in question. In none of these cases could it be said that the state officers invoking our jurisdiction were sustaining any “private damage.” United States ex rel. Chapman v. Federal Power Commission, supra, 345 U.S. at 153, 73 S.Ct. 609, also holds, though without discussion, that an adverse effect on the performance of official duties constitutes the kind of injury necessary to support standing to sue. The Secretary of the Interior was permitted to challenge an FPC order granting a license to a private company to build a generating plant on a site that the Secretary argued had been withdrawn from the licensing jurisdiction of the FPC and reserved for public construction. The Court set out the bases relied upon by the Secretary for standing as follows (345 U.S. at 155-156, 73 S.Ct. at 612): The Secretary of the Interior points to his statutory duty to act as sole marketing agent of power developed at public hydroelectric projects and not required for the operation of the project; § 5 of the Flood Control Act of 1944 directs him to transmit and dispose of such power in a manner calculated to “encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles.” 58 Stat. 890, 16 U.S.C. § 825s, 16 U.S.C.A. § 825s. This provision, it is said, announces a congressional policy for the guidance of. the Secretary that would be disturbed by the respondent company’s plan; thus a specific interest of the Secretary, in addition to his more general duties relating to the conservation and utilization of the Nation’s water resources, is said to be adversely affected by the Commission’s order. Because of “[differences of view” among the Justices, 345 U.S. at 156, 73 S.Ct. 609, the grounds for the holding that the Secretary had standing to seek review of the FPC order were not discussed. However, since the Secretary alleged no private injury of any kind, his standing necessarily rested upon the adverse effect of the FTC order on performance of his official duties to encourage widespread use of electricity at the lowest possible rates, and, more generally, to manage the nation’s water resources. The Supreme Court held in Interstate Commerce Commission v. Oregon-Washington Railroad & Navigation Co., 288 U.S. 14, 24-25, 53 S.Ct. 266, 268, 77 L.Ed. 588 (1933), that state agencies had standing to challenge a district court order reversing an ICC order requiring construction of several railroad routes, because the agencies “officially represented] the interest of their states in obtaining adequate transportation service.” In a different context, the Court held in Securities & Exchange Commission v. United States Realty & Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940), that the SEC should be permitted to intervene in a Chapter XI proceeding that the Commission alleged should have been brought under Chapter X, which provides for participation by the Commission. The Court said, “we think it [is] plain that the Commission has a sufficient interest in the maintenance of its statutory authority and the performance of its public duties to entitle it through intervention to prevent reorganizations which should rightly be subjected to its scrutiny, from proceeding without it.” 310 U.S. at 460, 60 S.Ct. at 1055. In this circuit the principle that a public agency has standing to seek judicial review of governmental action that affects the performance of its duties has been explicitly recognized by a three-judge court in a case involving WUTC’s predecessor agency, the Department of Public Works of the State of Washington. In Department of Public Works v. United States, 55 F.2d 392 (W.D. Wash.1932), the department was held to have standing to obtain judicial review of an order of the Interstate Commerce Commission. The order provided that rates for transporting grain from points south of the Snake River in Washington and Oregon to ' Portland, Oregon, must be 10 per cent lower than the rates for shipment of grain from the same area to ports on Puget Sound, Washington. The effect of the order was to prescribe an intrastate rate that would otherwise have been subject to the jurisdiction of the state agency. The court held (55 F.2d at 394): the laws of the United States having made provision for suits to set aside unauthorized orders of the Intrastate Commerce Commission, it would be unreasonable to deny to the petitioner the right to bring a suit such as the present in order that it may, in a proper case, remove obstacles to the exercise of its statutory powers. As long as the order of the Interstate Commerce Commission remains in effect, it is an obstacle hindering, if not preventing, the exercise by the department of its powers under section 10389. On the basis of these and other cases in which state and federal officials and agencies have been allowed to challenge a wide range of administrative orders affecting the discharge by the officer or agency of obligations imposed by law, and because the purposes of the “injury in fact” requirement are adequately served, we conclude that the adverse effect of the FCC’s order on WUTC’s exercise of its statutory duties satisfies this element of the Data Processing test for standing. The second requirement of Data Processing is also satisfied: The interest WUTC seeks to protect — reasonable intrastate telephone rates and, more generally, high quality and widely available intrastate telephone service — is “arguably within the zone of interests to be protected” by the Federal Communications Act. The statutory standard governing the licensing of communications carriers is the “public convenience and necessity,” 47 U.S.C. § 214(a), and the touchstone of decision in applying this standard is “to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.” 47 U.S.C. § 151. The Commission’s broad mandate would not permit it to ignore the impact of its orders upon the quality and cost of local telephone service which constitutes the vast bulk of the total telephone service used by the people of the United States. This is obviously the Commission’s view, for it gave specific consideration to that impact in the present proceeding. See 31 F.C.C.2d at 1107-98. Permitting a public agency charged with relevant legal obligations to obtain judicial review of a final order of a regulatory agency specifically declared reviewable by Congress, on the ground that the order has an adverse impact on the complainant agency’s performance of its statutory obligations, presents no potential whatever for abuse of the judicial process or distortion of the role of the Judicial branch of government in its relationship to the Executive and the Legislative branches — concerns that may have some substance where private litigants assert standing as taxpayers or citizens to initiate plenary actions challenging the constitutionality of federal statutes or of the conduct of executive departments. See, e. g., Schlesinger v. Reservists to Stop the War, supra; United States v. Richardson, supra. Indeed, allowing such agencies standing may often be the only practical means of effectuating Congress’ declaration that judicial review of particular federal agency action is appropriate. In the present case, for example, although judicial review of the Commission’s order is expressly provided for, any adverse impact of the FCC order on intrastate telephone rates would probably be so indirect, and take place so gradually, that individual users of intrastate telephone service would be unaware of it, or, in any case, would have inadequate incentive to incur the expense of judicial review. See Akron Board of Education v. State Board of Education, 490 F.2d 1285, 1289-1290 (6th Cir. 1974). We therefore hold that WUTC has standing in its own right to secure judicial review of this FCC order. WUTC may also obtain review of the challenged FCC action as parens patriae. A substantial ■ portion of Washington’s citizens would be affected by an increase in intrastate telephone rates. Cf. Kansas v. Colorado, 206 U.S. 46, 99, 27 S.Ct. 655, 51 L.Ed. 956 (1907). Petitions for review by individual users are not a practicable remedy. See Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497 (1901). The state has an interest independent of its individual citizens, for increased rates for intrastate telephone service would inhibit communication vital to the economic and social well-being of the community as a whole. See Georgia v. Pennsylvania Railroad, 324 U.S. 439, 450-451, 65 S.Ct. 716, 89 L.Ed. 1051 (1945); Pennsylvania v. West Virginia, 262 U.S. 553, 592, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 51 L.Ed. 1038 (1907); California v. Frito-Lay, Inc., 474 F.2d 774, 775 (9th Cir. 1973). The fact that communications rates are closely regulated by both the United States and the various states reflects the presence of a governmental interest above and beyond the concerns of the individual citizen. Finally, none of the considerations that have justified restrictions upon the power of the state to represent the interest of its citizenry parens patriae are present here. The original jurisdiction of the Supreme Court is not invoked, and the availability of a remedy need not be restricted by the necessity of husbanding that court’s limited resources. Since no state is sued, there is no threat of circumvention of the Eleventh Amendment. See, e. g., Hawaii v. Standard Oil Co., 405 U.S. 251, 258 n. 12, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387, 392-393, 58 S.Ct. 954, 82 L.Ed. 1416 (1938). Since no damages are sought, there is no risk of duplicating recoveries. Hawaii v. Standard Oil Co., supra, 405 U.S. at 261-264, 92 S.Ct. 885. Since no absent persons will be barred from a remedy otherwise available if this petition is entertained, the proceeding is not subject to criticism as a substitute for a class action without its safeguards. California v. Frito-Lay, Inc., supra, 474 F.2d at 777 n. 11. The argument is made that WUTC is barred from maintaining a parens patri-ae challenge to an order of an agency of the federal government by the holding of Massachusetts v. Mellon, 262 U.S. 447, 485-486, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), that “[w]hile the State, under some circumstances, may sue [as parens patriae] for the protection of its citizens (Missouri v. Illinois and Chicago District, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497), it is no part of its duty or power to enforce their rights in respect of their relations with the federal government. In that field it is the United States, and not the state, which represents them as parens patriae . . ..” The doctrine of Massachusetts v. Mellon is not applicable to this proceeding. Massachusetts had alleged that a federal statute was unconstitutional as a usurpation by Congress of power reserved to the states. As the Court pointed out in Georgia v. Pennsylvania Railroad, supra, Massachusetts sought to litigate a “question of distribution of powers between the State and the national government” (324 U.S. at 445, 65 S.Ct. at 720), and “protect her citizens from the operation of federal statutes” (id. at 447, 65 S.Ct. at 721). There are no such questions here. WUTC does not attack the constitutionality of the Communications Act on any ground; rather, it relies upon the federal statute, and seeks to vindicate the congressional will by preventing what it asserts to be a violation of that statute by the administrative agency charged with its enforcement. That federal agency is not the only public body that may invoke judicial assistance to enforce the Act. See Georgia v. Pennsylvania Railroad, supra, 324 U.S. at 447, 65 S.Ct. at 721 (“The fact that the United States may bring criminal prosecutions or suits for injunctions under [the antitrust] laws does not mean that [a state] may not maintain [a par-ens patriae suit] ” ). B. We turn to the standing of the National Association of Regulatory Utility Commissioners (NARUC). A substantial argument can be made that NARUC has standing in its own right, but we need not reach that question. NARUC describes itself as a “quasi-governmental nonprofit organization” composed of “the governmental bodies of the fifty States engaged in the regulation of utilities and carriers,” including WUTC. Since WUTC and other public agencies alleged to have similar duties are members of NARUC, and since WUTC and similar agencies have standing to sue, NA-RUC’s right to judicial review is established upon this ground alone. Sierra Club v. Morton, supra, 405 U.S. at 739, 92 S.Ct. 1361; National Association for the Advancement of Colored People v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). II On the merits, the issue most strongly pressed is that the Commission violated both substantive and procedural requirements of the Federal Communications Act in determining that a general policy in favor of entry of new carriers in the specialized communications field would serve the public interest. NARUC’s principal argument is that under the “public interest, convenience, and necessity” standard of the Act, 47 U.S.C. §§ 214, 309, the Commission cannot approve new common carriers unless existing common carriers could not provide the service, and such a finding has not been, and could not be, made. WUTC emphasizes the procedural objection, arguing that under the provisions of the Act, 47 U.S.C. §§ 309, 316, an evidentiary hearing must be held on each pending application to decide whether the competition proposed by that application would further the public interest, and that a policy and rulemaking proceeding will not suffice. A. The business involved is that of providing specialized private or leased line communication services through microwave transmission facilities, as distinguished from public exchange and long distance toll telephone service. The latter consists primarily of voice communication service from and to all points on an integrated national and international telephone network, available to the public generally. The proposed service consists of communication of all types of signals, including data and other non-voice traffic, but only to or from limited points, and only pursuant to private contract. The applicants propose to offer users a wide range of choice as to cost, speed, and quality of transmission, part- or full-time availability, shared or exclusive usage, and utilization of the customer’s own terminal equipment. The Commission had earlier authorized private companies to build and operate their own microwave facilities to meet such specialized needs, upon a showing of financial and technical qualifications. Allocation of Microwave Frequencies above 890 Me., 27 F.C.C. 359 (1959), 29 F.C.C. 825 (1960). The Commission’s Notice of the present proceeding stated the first issue to be “Whether as a general policy the public interest would be served by permitting the entry of new carriers . . . .” 24 F.C.C.2d 318, 327 (1970). The legal and factual bases upon which the Commission’s staff recommended an affirmative answer were set out in detail in the Notice, and comments were solicited. Id. at 328—38. Over 200 interested persons responded, all but a few favoring the proposed policy. First Report and Order, 29 F.C.C.2d 870, 879 (1971). The Commission heard oral argument and received rebuttal comments. It then filed its report and order, concluding, among other things, that “a general policy in favor of the entry of new carriers in the specialized communications field would serve the public interest, convenience, and necessity.” Id. at 920. The Commission based its conclusion upon the following general findings: “[T]here is a public need and demand for the proposed facilities and services and for new and diverse sources of supply, competition in the specialized communications field is reasonably feasible, there are grounds for a reasonable expectation that new entry will have some beneficial effects, and there is no reason to anticipate that new entry would have any adverse impact on service to the public by existing carriers such as to outweigh the consideration supporting new entry.” Id, These findings are based in turn upon subsidiary factual determinations, forecasts, and expert judgments detailed in the Commission’s report. Id. at 904-20. These are briefly outlined in the margin. The Commission’s subsidiary findings weaken NARUC’s factual premise that existing carriers might have been able to furnish the proposed services. Nonetheless, the Commission clearly rejected NARUC’s legal premise that the existence of such a capability would require rejection of applications from new carriers, and the merits of NARUC’s contention must therefore be considered. NARUC asserts that Congress, in enacting the Communications Act of 1934 and the amendments thereto, “clearly intended that the Commission would regulate common carriers as quasi-monopolies and that new entrants would only be authorized when existing carriers [could] not provide adequate service.” For this proposition NARUC relies principally upon an historical review tracing the origin of sections 201 — 222 of Title II of the Communications Act to the Interstate Commerce Act, and upon decisions relating to the regulation of transportation common carriers. NARUC interprets the Communications Act too narrowly. As the Commission points out, “[t]he statutory standard governing the Commission’s consideration of applications for microwave radio facilities to provide common carrier services is broadly stated in Sections 309 and 214 of the Communications Act: whether a grant would serve the present or future public interest, convenience, and necessity.” 29 F.C.C.2d at 901. As the Commission further notes, and as we noted in Part I of this opinion, this broad standard is to be interpreted in light of the Commission’s sweeping mandate to regulate “interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communications service with adequate facilities at reasonable charges . . . .” (47 U.S.C. § 151), and “generally encourage the larger and more effective use of radio in the public interest” (47 U.S.C. § 303(g)). See 29 F.C.C.2d at 901. This statutory language does not suggest that the Commission is to give controlling weight to the mere fact that existing common carriers have the ability to perform the service an applicant wishes to furnish. Nor, for that matter, does it suggest that the Commission is to accord controlling weight to asserted benefits of competition, or to any other particular factor. The Commission’s authority is stated broadly to avoid the need for repeated congressional review and revision of the Commission’s authority to meet the needs of a dynamic, rapidly changing industry. National Association of Theatre Owners v. Federal Communications Commission, 136 U.S.App. D. C. 352, 420 F.2d 194, 199 (1969). Regulatory practices and policies that will serve the “public interest” today may be quite different from those that were adequate to that purpose in 1910, 1927, or 1934, or that may further the public interest in the future. The power of the Commission, in determining the “public interest,” to accord competitive considerations the weight the Commission gave to them in this case is fully supported by the Supreme Court’s opinion in Federal Communications Commission v. RCA Communications Inc., 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1470 (1953). The Court held that the Commission could not treat the encouragement of competition as such as “the single or controlling reliance for safeguarding the public interest,” (id 346 U.S. at 93, 73 S.Ct. at 1003), and therefore could not authorize entry of a competing carrier on the naked assumption that as a matter of national policy, competition was to be fostered if “reasonably feasible” (id at 95, 73 S.Ct. at 998). Because the Commission had authorized a new radio telegraph service on just that premise, the case was remanded for reconsideration. The Court made it clear, however, that “competition is a relevant factor in weighing the public interest,” and if the Commission had “clearly indicated that it relied on its own evaluation of the needs of the industry rather than on what it deemed a national policy, its order would have a different foundation.” Id at 94, 73 S.Ct. at 1004. The Court spelled out the basis upon which the Commission could authorize new entry because of competitive considerations (id at 96—97, 73 S.Ct. at 1004-1005): We think it not inadmissible for the Commission, when it makes manifest that in so doing it is conscientiously exercising the discretion given it by Congress, to reach a conclusion whereby authorizations would be granted wherever competition is reasonably feasible. This is so precisely because the exercise of its functions gives it accumulating insight not vouchsafed to courts dealing episodically with the practical problems involved in such determination. Here, however, the conclusion was not based on the Commission’s own judgment but rather on the unjustified assumption that it was Congress’ judgment that such authorizations are desirable. In reaching a conclusion that duplicating authorizations are in the public interest wherever competition is reasonably feasible, the Commission is not required to make specific findings of tangible benefit. It is not required to grant authorizations only if there is a demonstration of facts indicating immediate benefit to the public. To restrict the Commission’s action to cases in which tangible evidence appropriate for judicial determination is available would disregard a major reason for the creation of administrative agencies, better equipped as they are for weighing intangibles “by specialization, by insight gained through experience, and by more flexible procedure.” Far East Conference v. United States, 342 U.S. 570, 575 [72 S.Ct. 492, 494, 90 L.Ed. 576]. In the nature of things, the possible benefits of competition do not lend themselves to detailed forecast, cf. National Labor Relations Board v. Seven-Up Bottling Co., 344 U.S. 344, 348 [73 S.Ct. 287, 289 (97 L.Ed. 377)], but the Commission must at least warrant, as it were, that competition would serve some beneficial purpose such as maintaining good service and improving it. Although we think RCAC’s contention that an applicant must demonstrate tangible benefits is asking too much, it is not too much to ask that there be ground for reasonable expectation that competition may have some beneficial effect. Merely to assume that competition is bound to be of advantage, in an industry so regulated and so largely closed as is this one, is not enough. We have quoted the Court at length because it is evident from the Commission’s opinion in the present case that the Commission was fully conscious of the guidelines announced in RCA Communications, and sought conscientiously to follow them. Our earlier summary of the Commission’s opinion demonstrates that the Commission succeeded. See note 21 supra. The Commission’s policy determination that the public interest would be served by entry of new carriers in the specialized communications field is based upon its own judgment that such authorizations are desirable, a judgment reached in a conscientious exercise of the discretion vested in the Commission by Congress. As to the benefits of competition, the Commission said, “It is our judgment, based on our cumulative knowledge of the industry and the entire record in this proceeding — including our staff’s analysis, that there is a sufficient ground for a reasonable expectation that new entry here will have some beneficial effects. We so warrant.” 29 F.C.C.2d at 910. Against their benefits, the Commission carefully weighed possible adverse effects of competition upon existing carriers and their services (29 F.C. C.2d at 910 — 14) before finally concluding that a general policy of new entry would serve the public interest, convenience, and necessity. The Supreme Court’s disposition of RCA Communications is flatly inconsistent with NARUC’s contention that new entry is impermissible if it will result in duplication of facilities of existing carriers capable of furnishing the service. The Supreme Court noted that the Commission had found that more facilities were then authorized than were necessary to handle the present and expected volume of traffic under sound operating conditions. 346 U.S. at 88, 73 S.Ct. 998. Nonetheless, the Court remanded with the express understanding that the Commission might permit entry of new carriers if it found the public interest would be served. The disposition on remand is significant. As the Commission notes (29 F.C. C.2d at 902 n. 19): On remand in that case the Commission concluded on the basis of its experience that competition resulting from a grant of the application was reasonably feasible and would serve the public interest. It stated: “What we require is that, in order to be successful an applicant must demonstrate that, as has been done here, through the operation of such a circuit, some public need would be served or some advantage would accrue to the public, or at least that there is a reasonable expectation that such competition may have some beneficial effect.” Mackey Radio and Telegraph Company, Inc., 19 FCC 1321, 1350 (1955), aff’d RCA Communications, Inc. v. FCC, 99 U.S.App.D.C. 163, 238 F.2d 24, 27-28 (1956), cert. den. 352 U.S. 1004, 77 S.Ct. 563, 1 L.Ed.2d 549 (1957). As the Commission puts it, RCA Communications stands for the proposition that “while wasteful duplication is generally to be avoided, duplication is not wasteful where a certificating agency appropriately concludes that competition is reasonably feasible and may be expected to have some beneficial effect.” 29 F.C.C.2d at 902 n. 20. Assuming that the use of rule-making procedures in this case was appropriate, we are not persuaded by NARUC’s attacks upon the sufficiency of the record in support of the rule adopted. We are satisfied that “there is sufficient relationship between the Commission’s conclusion and the factual bases in the record upon which it relied to substantively support this exercise of its authority.” United States v. Allegheny-Ludlum Steel Co., 406 U.S. 742, 755-56, 92 S.Ct. 1941, 1950, 32 L.Ed.2d 453 (1972). Not surprisingly, both NARUC and WUTC place some emphasis upon the contention that the Commission did not give sufficient consideration to the risk that new specialized carriers would divert interstate business from the established carriers, leading to higher rates for local users. It is argued that the Commission did not sufficiently investigate the nature and size of the market or the potential economic impact of new entrants. The Commission specifically addressed itself to these contentions. 29 F.C.C.2d at 910-14, 917-20; 31 F.C.C.2d at 1107—08. Its response is adequate. There is truth in NARUC’s charge that the Commission’s decision rests in good part upon “suppositious eventualities.” Planning necessarily rests upon the acceptance of uncertain forecasts of future events. No other course is possible if the Commission is to formulate regulatory practices and policies that will enable the industry to satisfy future public needs. B. We turn now to WUTC’s argument that it was improper for the Commission to employ policy- and rulemaking procedures to determine whether competition would further the public interest rather than determining this issue in adjudicative hearings on individual applications. At the outset, it is clear that if it was permissible for the Commission to adopt a general and nationwide policy that the public interest would be served by permitting the entry of new carriers in the specialized communications field, it was appropriate for the Commission to do so in a rulemaking proceeding. The policy proposed and adopted by the Commission falls precisely within the Administrative Procedure Act’s definition of a “rule.” The problem confronting the Commission met uniformly accepted standards for utilization of rulemaking procedures: It affected large numbers of individual situations, it involved determination of a general policy applicable equally to all in the affected class, case-by-case adjudication would require repetitious determination of precisely the same issue, it concerned future events, and it required a broad judgment, legislative in nature, rather than resolution of a particular dispute of fact. The crucial question is whether the Commission acted within its statutory authority in adopting a general policy favoring entry of new carriers rather than considering the costs and benefits of the specific proposal in each application. We hold that the Commission did act within its authority. WUTC contends that 47 U.S.C. §§ 214 and 309, particularly the latter, bar formulation of a policy determination in rulemaking proceedings that the public interest would be served by the entry of new carriers. As WUTC points out, section 309(a) provides that “the Commission shall determine, in the case of each application filed with it ... whether the public interest, convenience, and necessity will be served by the granting of such application”; and sections 309(d)(2) and 309(e) mandate an adjudicatory hearing, conducted in accordance with 5 U.S.C. § 556(d), if “a substantial and material issue of fact is presented.” The Commission points out that it did act upon the merits of individual applications: “[T]his proceeding does not undertake to decide all of the issues pertinent to pending applications, and does not go to the qualifications of the applicants or the sufficiency of particular proposals. Such questions will be resolved by appropriate procedures when the applications are processed [under § 309].” See 29 F.C.C.2d at 896. WUTC responds that by adopting a policy in favor of competitive entry the Commission decided the substance of the issue of public interest, convenience, ánd necessity as to each of the pending applications, leaving open only whether the particular applicant is qualified and the proposed service is technically and economically sound. WUTC asserts that the adequacy of existing service, the need for the new service, and the desirability of competitive entry must also be determined in adjudicatory proceedings upon each application pursuant to section 309. The same argument has been advanced repeatedly both under the statutory provisions involved here and analogous statutes, and has been repeatedly rejected. Sections 4(i), 4(j) and 303(r) of the Act, 47 U.S.C. §§ 154(i) & (j), 303(r), describe the Commission’s broad power to issue rules and regulations. Section 309 defines the Commission’s authority in granting or denying an individual application. WUTC’s “contentions sharply pose the issue whether provisions for general rule making by administrative agencies are to be applied in their apparent breadth or are limited by other statutory provisions seemingly framed to deal with the different problem \of individual applications. In resolving the conflict it is well to remember that Congress could hardly have intended to deprive administrative agencies of the ability to administer.” WBEN, Inc. v. United States, 396 F.2d 601, 617 (2d Cir. 1968). As the concluding admonition foretells, WBEN, Inc. resolved the conflict in favor of the Commission’s broad rulemak-ing power. Acting under section 303(r) of the Act, the Commission in that case had promulgated a new rule limiting the predawn broadcasting rights of a class of broadcasters. The latter contended that a separate evidentiary hearing as to each licensee was required by section 316(a) of the Act which permits modification of a station license or permit only if the Commission determines “such action will promote the public interest, convenience, and necessity,” and requires that the holder be given an opportunity to show cause “by public hearing” why the modification should not issue. The court held (396 F.2d at 618): But no case cited to us has held that § 316 thus disables the agency in the exercise of its rule-making powers. Rather, in the only decision in point, the Ninth Circuit upheld the Commission’s modification of existing license rights by rule, declaring that § 316’s “primary function is to protect the individual licensee from a modification order of the Commission and is concerned with the conduct and other facts peculiar to an individual licensee.” California Citizens Band Association v. United States, 375 F.2d 43 (1967), cert. denied, 389 U.S. 844, 88 S.Ct. 96, 19 L.Ed.2d 112 (1967). The decision draws the proper line. Another of the Commission’s rules involved in WBEN, Inc. provided that an authorization to offer pre-sunrise broadcast service was to issue to eligible stations merely upon a showing as to technical matters. It was contended that this rule was precluded by the provisions of section 309(d) (the section relied upon by WUTC in this case) allowing any party in interest the right to file a petition to deny such an application, and requiring an evidentiary hearing to resolve any “substantial and material questions of fact.” 396 F.2d at 621. The court held that the analysis of section 316 in relation to section 303(r) applied to section 309 as well. The court said (396 F.2d at 622): § 309(d) was an attempt to provide a workable method whereby persons affected by an individual application for a license or its modification were to have notice and a reasonable period for registering their objections without, however, requiring the FCC to hold a hearing in every ease where a petition to deny was filed. Nothing in the text or in the history indicates that the statute was addressed to the entirely different situation where, after proceeding under § 4 of the APA, the Commission utilizes the rule-making power granted by § 303(r) to alter the permissible times of operation by existing licensees, particularly since, as indicated above, compliance with § 309(d) after such a rule-making proceeding would generally be an exercise in futility. The Supreme Court arrived at the same conclusion with respect to the relationship between the Commission’s rule-making power under section 303(r) of the Act and its duty to adjudicate under section 309 in United States v. Storer Broadcasting Company, 351 U.S. 192, 76 S.Ct. 763, 100 L.Ed. 1081 (1956). Following a rulemaking proceeding under the authority of section 303(r), the Commission issued rules providing that in passing upon applications for television broadcasting licenses it would consider it to be contrary to public interest, convenience, or necessity for any party to have an interest in more than five television stations. Storer Broadcasting Company had five such stations. On the day the rules were adopted, a pending application by Storer for an additional station was dismissed on the basis of the rule. Storer argued that by the express terms of section 309 its application could not be rejected without a “full hearing.” The Supreme Court held, however, that the Act must be read as a whole, that section 309 did not withdraw the Commission’s rulemaking power under section 303(r), that in the exercise of that power the Commission could announce in advance its attitude regarding concentration of control as it related to the public interest, and that unless an application set forth reasons sufficient to justify a change or waiver of the rule, section 309 did not require a hearing. 351 U.S. at 202-205, 76 S.Ct. 763. Federal Power Commission v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112 (1964), applied the same analysis to comparable provisions of the Natural Gas Act. Following rulemaking proceedings the Commission issued regulations providing that a producer’s application for a certificate of public interest, convenience, and necessity under section 7 of the Act would be rejected if any contract submitted in support of the application contained certain forbidden provisions. An application submitted by Texaco, Inc. was. rejected under the rule without a hearing despite the provision of section 7 that the Commission “shall set” such applications “for hearing.” The Court of Appeals set aside the Commission’s order, holding that the regulation was a valid statement of Commission policy, but that it could not “be used to deprive an applicant of the statutory hearing granted those who seek certificates of public convenience and necessity.” 377 U.S. at 37, 84 S.Ct. 1105, 1108. The Supreme Court reversed, holding, on the authority of Storer, “that the statutory requirement for a hearing under § 7 does not preclude the Commission from particularizing statutory standards through the rule-making process and barring at the threshold those who neither measure up to them nor show reasons why in the public interest the rule should be waived.” Id. at 39, 84 S.Ct. at 1109. The same principle was applied under similar statutory provisions in American Airlines, Inc. v. Civil Aeronautics Board, 123 U.S.App.D.C. 310, 359 F.2d 624, 628, 631 (1966), and Airline Pilots Association v. Quesada, 276 F.2d 892 (2d Cir. 1960). In American Airlines, Inc. the Civil Aeronautics Board issued a policy statement after rulemaking proceedings that only all-cargo carriers could sell space for freight on a reserved basis at wholesale rates. The Board approved pending tariffs of all-cargo carriers providing for such service and summarily rejected the similar tariffs filed by combination carriers. The latter objected on the ground that the Board’s action effected a modification of their certificates of public convenience and necessity which could be accomplished only after a full adjudicatory hearing under section 401(g) of the Federal Aviation Act, 49 U.S.C. § 1371(g). The court rejected the argument on the basis of the Storer rule “that notwithstanding the statutory hearing requirement the Commission retained the power to promulgate rules of general application consistent with the Act, and to deny an adjudicatory hearing to applicants whose applications on their face showed violations of the rule.” 359 F.2d at 628. The court, in rejecting the suggestion that Storer applied only to regulations affecting future applications for new certificates, and not to regulations affecting rights under existing certificates, stated (359 F.2d at 629): [T]he Storer doctrine is not to be revised or reshaped by reference to fortuitous circumstances. It rests on a fundamental awareness that rule making is a vital part of the administrative process, particularly adapted to and needful for sound evolution of policy in guiding the future development of industries subject to intensive administrative regulation in the public interest, and that such rule making is not to be shackled, in the absence of clear and specific Congressional requirement, by importation of formalities developed for the adjudicatory process and basically unsuited for policy rule making. Airline Pilots Association sustained a regulation issued by the Federal Aviation Agency after rulemaking proceedings that no person over 60 could serve as a commercial aircraft pilot. Plaintiffs argued that the regulation was invalid because it was issued without an adjudicatory hearing required by section 609 of the Federal Aviation Act of 1958, 49 U.S.C. § 1429, before an airman’s license may be amended, modified, suspended, or revoked. The court rejected the argument, holding that section 1429 applied “only when an order of the Administrator is directed to an individual airman and is concerned with conduct or other facts peculiar to the airman,” and was “not intended to apply when a general directive of the Administrator is promulgated [under § 601 of the Act, 49 U.S.C. § 1421] though the regulation may in fact modify airmen’s certificates.” 276 F.2d at 897. WUTC distinguishes Storer on several grounds. It notes that the regulation involved in Storer set up standards that barred issuance of a certificate of public interest, convenience, and necessity to applicants who did not meet them, while in this case the standard permitted entry. The relevance of this difference is not apparent. The rules involved in WBEN, Inc. and American Airlines favored some grants and barred others. In either case the Commission uses rule-making procedures to arrive at a general determination as to a matter relevant to the public interest, convenience, and necessity. To repeat, “the Storer doctrine is not to be revised or reshaped by reference to fortuitous circumstances.” American Airlines, Inc. v. Civil Aeronautics Board, supra, 359 F.2d at 629. WUTC seems to argue that Storer should not be applied because the issue resolved by rulemaking in this case is somehow more central to the discharge of the Commission’s ultimate statutory responsibility to determine the public interest, convenience, and necessity. The rule involved in Storer, as in each of the other cases discussed, effectively determined that a class of applications would be approved or rejected, and thus effectively determined the public interest, convenience, and necessity as related to the disposition of each such application. These cases reject WUTC’s assumption that adjudicatory proceedings are preferred if not mandated for the determination of issues central to the public interest. When, as here, the issue is resolved by adoption of a general policy for uniform application in the regulation of a nationwide industry, rulemak-ing is an entirely appropriate means for “a particularization of the Commission’s conception of the ‘public interest’ sought to be safeguarded by Congress in enacting the Communications Act of 1934.” National Broadcasting Co. v. United States, 319 U.S. 190, 218, 63 S.Ct. 997, 1010, 87 L.Ed. 1344 (1943). WUTC contends that the Commission bound “itself inflexibly to the licensing policies expressed” in its order, contrary to the requirement of National Broadcasting Co. v. United States, supra, 319 U.S. at 225, 63 S.Ct. at 1013; see Federal Power Commission v. Texaco, Inc., supra, 377 U.S. at 40-41, 84 S.Ct. 1105; United States v. Storer Broadcasting Company, supra, 351 U.S. at 204-205, 76 S.Ct. 763. Though the Commission said it would pass separately upon the merits of each pending application, presumably the rule would govern individual cases. That is its function. Cf. Port Angeles Telecable, Inc. v. Federal Communications Commission, 416 F.2d 243, 246 n. 6 (9th Cir. 1969). Nonetheless, the Commission’s regulations specifically provide for waiver of “rules, regulations or other requirements” upon an appropriate showing. 47 C.F.R. § 1.566 (1973); United States v. Storer Broadcasting Company, supra, 357 U.S. at 201, 205, 76 S.Ct. 763; see also 47 C.F.R. § 1.3 (1973); WBEN, Inc. v. United States, supra, 396 F.2d at 618. In addition, the Commission specifically noted (29 F.C.C.2d at 900 n. 17): “As in the case of any policy or rule of general applicability, a waiver, exception or evidentiary hearing may be granted upon an adequate showing of exceptional circumstances making it inappropriate to apply the policy or rule in a particular situation.” Further, the Commission said it would “examine future applications in light of the circumstances then shown,” and expressed its willingness to alter its policy “if it no longer comports with the public interest, convenience, and necessity” (29 F.C.C.2d at 927), an assurance the Commission has recently reaffirmed. See In re Commission Policies Governing the Licensing and Regulation of Specialized Common Carriers, 44 F.C.C.2d 467, 471 n. 2 (1973). Ill Both NARUC and WUTC challenge the Commission’s conclusion that “it is not necessary or desirable in the public interest to hold comparative hearings for the purpose of restricting new entry in any particular area to only one private line applicant.” 29 F.C.C.2d at 926. Again, the petitioners’ arguments rest on somewhat different grounds. NARUC’s argument is not directed to comparative hearings as such; rather, under this heading, NARUC presents a general objection to the Commission’s use of rulemaking procedures. Its argument is simply that section 309(e) requires an adjudicatory hearing when “a substantial and material question of fact is presented”; and that both the record in this proceeding and the several opinions filed in Microwave Communications Inc., 18 F.C.C.2d 953 (1969), demonstrate that many such questions were presented here, including the nature and extent of the market, the ability of existing carriers to supply it, whether the applicants proposed a different service than is now available, the cost of the proposed service, the extent of duplication of facilities involved, the potential for “cream skimming,” and the effect upon existing carriers of this and other potential consequences of competition. The answer to this argument, as we have said, is that rulemaking pursuant to section 303(r) is an alternative to adjudicatory proceedings under section 309 in a proper case, and that this is such a case. Rulemaking is hardly limited, as NARUC implies, to that certainly rare and probably entirely hypothetical situation in which the facts relevant to determination of a question of general policy are beyond dispute. WUTC’s argument is that the Commission must inquire whether the service proposed by any of the applicants would preclude the service proposed by any other; and, if it would, that the Commission must hold a comparative hearing to determine which applicant should be authorized to render the service. WUTC relies primarily upon what are commonly referred to as the Ashbacker doctrine and the Carroll doctrine, originating in Ashbacker Radio Corporation v. Federal Communications Commission, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), and Carroll Broadcasting Co. v. Federal Communications Commission, 103 U.S. App.D.C. 346, 258 F.2d 440 (1958). Ashbacker involved two applications for broadcasting authority that were actually exclusive in the sense that the broadcast signals would interfere with each other. Only one of the two applications could be granted. The Commission granted one and set the other for hearing. The Court held that as a practical matter this required the second applicant to justify displacement of an established licensee, and made the second applicant’s right under section 309(a) to a hearing before denial an “empty thing.” The Court held, “where two bona fide applications are mutually exclusive the grant of one without a hearing to both deprives the loser of the opportunity which Congress chose to give him.” 326 U.S. at 333, 66 S.Ct. at 151. Mutual exclusivity in the Ashbacker sense is not involved in this case. Carroll held that, in some circumstances, . before an application for a license can be granted a section 309 hearing is required “to determine whether the economic effect of a second license in this area would be to damage or destroy service to an extent inconsistent with the public interest,” 258 F.2d at 443. As the Carroll court plainly stated, the doctrine of that case is simply a particularization of the public interest standard: “The basic charter of the Commission is, of course, to act in the public interest. It grants or denies licenses as the public interest, convenience and necessity dictate. Whatever factual elements make up that criterion in any given problem— and the problem may differ factually from case to case — must be considered.” Id. Carroll recognized that sometimes competition may serve the public interest; sometimes it may not. If in a proceeding under section 309 the Commission is presented with a substantial showing that it will not, appropriate findings should be made. Id., 258 F.2d at 444. The showing required is described in WLVA, Inc. v. Federal Communications Commission, 148 U.S.App.D.C. 262, 459 F.2d 1286, 1297 (1972): “[A] petitioner seeking a hearing on the Carroll issue must plead specific factual data sufficient to make out a prima facie case that the economic consequences of a grant of the challenged application will lead to an overall derogation of service to the public.” But once again, the Commission may determine general questions relating to the public interest, convenience, and necessity in rulemaking proceedings; and, specifically, may determine that competition in the furnishing of a class of regulated service will lead not to poorer but to better service to the public, and will otherwise be in the public interest. We have sustained the Commission’s determination to this effect with respect to the specialized communications field as a whole, supporting a general policy favoring entry of new carriers nationwide. The Commission’s determination with regard to comparative hearings is simply a reaffirmation of that general policy, as applied to the specific applications then pending. The reasons given by the Commission in support of its conclusion that it would be contrary to the public interest and inconsistent with its policy determination in favor of new entry to limit entry among pending applications by holding comparative hearings on issues of economic exclusivity, are summarized in the margin. They reflect a careful consideration of the relevant factors, and a reasoned exercise of the Commission’s discretion. IV NARUC attacks the order on the additional ground that the Commission failed to consider the environmental impact of the policy adopted by the order, as required by section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. Neither NARUC nor any other party raised the NEPA claim before the Commission. The Commission argues that this court is barred from considering the claim by 47 U.S.C. § 405, which “precludes judicial review of questions of law or fact that the Commission has not had an opportunity to pass upon.” Neckritz v. Federal Communications Commission, 446 F.2d 501, 503 (9th Cir. 1971); see Great Falls Community TV Cable Co. v. Federal Communications Commission, 416 F.2d 238 (9th Cir. 1969). NEPA does not permit the Commission to confine itself to consideration of environmental issues raised by the parties. Calvert Cliffs’ Coordinating Committee v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1118-1119 (1971). The Commission is required “to consider environmental values ‘at every distinctive and comprehensive stage of the [agency’s] process.’ The primary and nondelegable responsibility for fulfilling that function lies with the Commission.” Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 420 (2d Cir. 1972), quoting Calvert Cliffs’ Coordinating Committee v. Atomic Energy Commission, supra, 449 F.2d at 1119. The immediate question, however, is not whether the FCC failed to discharge its obligations under NEPA, but whether its alleged failure may be considered on review of the Commission’s order. That question is still governed by section 405(a), for “NEPA was not intended to repeal by implication any other statute.” United States v. SCRAP, supra, 412 U.S. at 694, 93 S.Ct. at 2419. But “the doctrine expressed in section 405 is not inflexible; it leaves room for the operation of sound judicial discretion to determine whether and to what extent judicial review of questions not raised before the agency should be denied.” Great Falls Community TV Cable Co. v. Federal Communications Commission, supra, 416 F.2d at 239. A proper accommodation with NEPA requires that the appellate court in exercising its discretion under section 405 weigh the “lofty purposes” of NEPA (United States v. SCRAP, supra, 412 U.S. at 693, 93 S.Ct. 2405) heavily in the balance. Giving full weight to NEPA’s vital purposes, we conclude that in the particular circumstances of this case the balance should be struck against possible review and reversal of this Commission order on the ground NARUC seeks to raise for the first time in this court. In reaching this conclusion, we do not mean to imply that an environmental impact statement would have been required had the issue been raised before the Commission. Any damage that might be done to NEPA interests by failure to review the NEPA questions now is problematical and, in any event, slight. The FCC’s order simply adopts policy. Before any construction is authorized, separate hearings must be held on each application. NEPA will be applicable to those proceedings. The FCC must consider “the environmental impact of the proposed action” as a whole, and in full context. It cannot treat each application separately from the others and ignore the total program of which it is a part. There is no apparent obstacle to NARUC presenting its position on the environmental issue to the Commission in a proceeding on one or more of the individual applications; and, if the Commission fails to apply the proper standard, NA-RUC may obtain judicial review. It is also of some relevance to the balancing of interests that NARUC’s claims of environmental impact do not appear to be particularly substantial. If the order had not been entered, the specialized communications services would have been furnished by the present common carriers, using facilities built for that purpose. These carriers insist that they alone could and would have supplied all future needs for these services. The effect of the order will be to introduce competition in the furnishing of the services. The immediate effect of the order is upon who will furnish the service, not whether it will be furnished, or how much; competition may or may not increase the total volume of service performed. At issue is the incremental adverse effect that might result from the substitution of competition for monopoly, and only the portion of this increment, if any, that cannot be adequately considered in individualized hearings. Balanced against these problematical and attenuated adverse consequences of denying review, the disadvantages of allowing NARUC and others similarly situated to bypass the administrative proceeding are substantial. We are denied the benefit of the Commission’s views on even the threshold question of whether and to what extent NEPA applies in the peculiar substantive and procedural posture of this matter. If the NEPA issue had been timely raised, it might have been fully explored by the Commission, and could now be finally resolved, on an adequate record, without further delay. Such a resolution cannot now be achieved without great delay, waste, and expense. The order under consideration is a first step in a continuing, interrelated, administrative process. It is important that challenges to such a process be raised and resolved in its earlier stages so that subsequent steps may be undertaken with a full appreciation of the risks. Cf. United States v. Tucker Truck Lines, 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952). Finally, we cannot ignore the potential for abuse if those who object to an agency’s action, and would prefer to delay it if it cannot be wholly barred, are permitted to reserve an issue that might induce a remand if all else fails. The order of the Commission is affirmed. . As of March 15, 1971, 33 applicants had submitted 46 separate proposals for the operation of 1877 microwave stations. First Report & Order, 29 F.C.C.2d 870, 871 n. 1 (1971). . The Commission’s Memorandum Opinion and Order denying petitions for reconsideration is reported at 31 F.C.C.2d 1106 (1971). . See, e. g., Tucker, The Metamorphosis of the Standing to Sue Doctrine, 17 N.Y.L.Forum 911, 935-40 (1972). . “The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of— (1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47.” 28 U.S.C. § 2342(1). “Any proceeding to enjoin, set aside, annul, or suspend any order of the Commission under this chapter (except those appealable under subsection (b) of this section) shall be brought as provided by and in the manner prescribed in chapter 19A of Title 5.” 47 U.S.C. § 402(a). “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Any party aggrieved by [a final order reviewable under 47 U.S.C. § 402(a)] may, within 60 days after its entry, file a petition to review the order in the court of appeals where venue lies.” 28 U.S.C. § 2344. . As stated in a recent Senate Report discussing telephone rates, “The determination of the rate base at the Federal level, then, has a strong relation to the rates which are charged at the local level.” S.Rep.No. 362, 92d Cong., 1st Sess. (1971), 2 U.S.Code Cong. & Admin. News, pp. 1511, 1513. . The statute reads: The commission shall have the authority as petitioner, intervenor or otherwise to initiate and/or participate in proceedings before federal administrative agencies in which there is at issue the authority, rates or practices for transportation or utility services affecting the interests of the state of Washington, its businesses and general public, and to do all things necessary in its opinion to present to such federal administrative agencies all facts bearing upon such issues, and to similarly initiate and/or participate in any judicial proceedings relating thereto. . In 1941 the FCC and the National Association of Regulatory Utility Commissioners (NARUC) initiated a cooperative study of procedures for the allocation of joint costs. American Tel. & Tel. Co. and the Associated Bell System Companies, 3 F.C.C.2d 307, 309 (1960). In 1947 the FCC published the NA-RUC-FCC Separations Manual based on this study. Id. at 310. The FCC observed in its 1969 report: “Separations procedures that have been developed through the cooperative efforts of the Commission, the State regulatory agencies through the NARUC, and the telephone industry have long been used by telephone regulatory agencies for ratemaking purposes.” 35th Annual Report of the FCC 60 (1969). In 1969 the FCC ordered a $237 million reduction in interstate rates; at the same time rate increases of $500 million were pending before state regulatory agencies. 117 Cong. Rec. 28906-07 (1971). The reduction in interstate rates was based on the development of new technology, such as microwave transmission and coaxial cables, capable of application primarily in interstate communication. Id. at 28907 (remarks of Rep. Rooney). The FCC and NARUC cooperated, through a joint board administratively established by the FCC at NARUC’s request, in recommending proposed rule changes for jurisdictional separations which, when adopted, resulted in a shift of $126 million in revenue requirements from intrastate to interstate operations. H.R. Rep.No. 429, 92d Cong., 1st Sess. 3 (1971). Congress was fully advised of these developments. The FCC and NARUC then agreed upon legislation for the establishment of a permanent Federal-State Joint Board to deal with separation problems. S.Rep.No. 92-362, 2 U.S.Code Cong. & Admin.News, 92d Cong., 1st Sess. pp. 1511, 1513-1514 (1971). In enacting the proposed statute Congress recognized, with approval, that the result of allowing representatives of the state commissions to participate would be an increase in the allocation of joint plant and operation costs to interstate use. 117 Cong.Rec. 28906-07. . The Supreme Court has applied this two-part test in cases where there was no specific statutory provision for judicial review, and complainants relied on the general review provisions of the Administrative Procedure Act. Since in this instance the statute specifically provides for review, a less strict test for standing may be justified. See Scott, Standing in the Supreme Court — A Functional Analysis, 86 Harv.L.Rev. 645, 667-68 (1973). . The FCC found there is “no reason to anticipate that hew entry in the specialized field would result in any substantial diversion of A.T.&T.’s revenues or would have any significant adverse impact on telephone users” (29 F.C.C.2d at 912), but this finding cannot be conclusive on the issue of standing — one of the issues WUTC seeks to raise on review is that this finding is not sustained by the record. See United States v. SCRAP, 412 U.S. 669, 688-690, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Association of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S. 150, 153, 158, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). . Section 10389 is the predecessor of R.C.W. 81.28.230, which is identical to R.C.W. 80.36.-140, see p. 1147 supra, except that the former governs transportation of persons and property and the latter the transmission of messages by telegraph or telephone. . See also Board of Educ. v. Allen, 392 U.S. 236, 241 n. 5, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); Akron Bd. of Educ. v. State Bd. of Educ., 490 F.2d 1285 (6th Cir. 1974); Brewer v. Hoxie School Dist., 238 F.2d 91, 104 (8th Cir. 1956). . Approximately 169 billion calls were transmitted in 1969. Of these, almost 160 billion were local calls regulated by state commissions. 36 FCC Annual Reports, Table at 255 (1970). Of the approximately 9.5 billion toll calls, a substantial number were intrastate and therefore also subject to state regulation. The FCC exercises jurisdiction over approximately 25% of A.T.&T.’s plant. State commissions exercise jurisdiction over the remaining 75% and over virtually all of the plant of the independent (non-Bell) telephone companies. Re American Tel. & Tel. Co., 70 P.U.R.3d 129, 145, H 21 (1967). . States or territories have been permitted to sue as parens patriae for review of federal regulatory agency decisions in many cases. E. g., Guam v. Federal Maritime Comm’n, 117 U.S.App.D.C. 296, 329 F.2d 251, 252-253 & n. 7 (1964); California v. FPC, 111 U.S.App.D.C. 226, 296 F.2d 348 (1961), rev’d on other grounds, 369 U.S. 482, 82 S.Ct. 901, 8 L.Ed.2d 54 (1962); Puerto Rico v. Federal Maritime Bd., 110 U.S.App.D.C. 17, 288 F.2d 419 (1961); New York v. United States, 65 F. Supp. 856, 872 (N.D.N.Y.1946), aff’d, 331 U.S. 284, 67 S.Ct. 1207, 91 L.Ed. 1492 (1947). See also Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954), aff’g Wisconsin v. FPC, 92 U.S.App. D.C. 284, 205 F.2d 706 (1953) (standing apparently based on parens patriae, though standing issue not discussed); Public Utilities Comm’n v. FPC, 205 F.2d 116, 119 (3d Cir. 1953) (assuming standing without deciding). WUTC’s authority to initiate these judicial proceedings on behalf of the people of the State of Washington is found in R.C.W. 80.-01.075. See note 6. . At least where injunctive relief is sought, the grounds separately listed here may be alternative. An independent state interest may be sufficient, whether or not a substantial portion of the citizenry is affected or an adequate individual remedy is available. Note, Federal Jurisdiction — Suits by a State as Parens Patriae, 48 N.C.L.Rev. 963, 969 (1970). . “Today the policy underlying the eleventh amendment appears to be the principal limitation on the state’s attempt to assert the interests of its citizens as parens patriae.” Comment, The Original Jurisdiction of the United States Supreme Court, 11 Stan.L.Rev. 665, 674 (1959). . The Georgia v. Pennsylvania R.R. majority rejected the broad principle stated by Justice Stone in dissent that “[t]he federal government alone stands in such relationship to the citizens and inhabitants of the United States, as to permit the bringing of suit in their behalf, to protect them from the violation of federal laws relating to interstate commerce.” 324 U.S. at 474, 65 S.Ct. at 734. See also Note, Federal Jurisdiction — Suits by a State as Parens Patriae, 48 N.C.L.Rev. 963, 966-67 (1970). In Minnesota v. Benson, 107 U.S.App.D.C. 106, 274 F.2d 764 (1960), this theory was invoked to deny Minnesota the right as par-ens patriae to obtain judicial review of an order of the Secretary of Agriculture. But in Guam v. Federal Maritime Comm’n, 117 U.S. App.D.C. 296, 329 F.2d 251, 252 (1964), Benson was limited to review of “an action of the federal government itself, 1. e., a milk regulation.” The court held in Guam that “in utility cases involving private operators a state or municipal government may be a proper party and, if adversely affected as such by an order, is aggrieved,” and may obtain judicial review. Id., 329 F.2d at 253. In a footnote in Public Utilities Comm’n v. United States, 356 F.2d 236, 241 n. 1 (9th Cir. 1966), Judge Madden queried whether Mellon barred review of an FCC order on petition of the California commission, but concluded that it was not necessary to answer the question in that case. The authority of Mellon, at least as a broad rather than a narrow proposition, may have been “eroded by time.” Massachusetts v. Laird, 400 U.S. 886, 889, 91 S.Ct. 128, 27 L.Ed.2d 130 (1970) (Douglas, J., dissenting from denial of leave to file bill of complaint). Indeed, the Supreme Court has allowed a state to challenge as parens patriae an allegedly unconstitutional congressional statute. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). This action has been taken by several commentators as casting doubt on the Mellon proposition. C. Wright, Law of Federal Courts 503 (1970); Bickel, The Voting Rights Cases, 1966 Sup.Ct.Rev. 79, 87-89. It would be improvident to extend a doctrine that is of questionable authority in its original application. . NARUC is not merely a “concerned bystander” seeking “vindication of value interests.” United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Congress has accorded NARUC official status as the representative of state regulatory agencies in dealing with the basic problem underlying these petitions for review. A brief statement of the joint efforts of the FCC and NARUC in the area of allocating common carrier property and expenses between interstate and intrastate operations, as the base for determining telephone rates, is found in footnote 7. See also S.Rep.No. 92-362, 92d Cong., 1st Sess. (1971), 2 U.S.Code Cong. & Admin.News, pp. 1511, 1513-1514, accompanying H.R. 7048 enacted as P.L. 92-131, amending 47 U.S.C. § 410. The latter amendment provides for the creation of a Federal-State Joint Board to consider proceedings “regarding the jurisdictional separation of common carrier property and expenses between interstate and intrastate operations.” 47 U.S.C. § 410(c). The statute further provides, “The Joint Board shall be composed of three Commissioners of the [Federal Communications] Commission and of four State commissioners nominated by the national organization of the State commissions, as referred to in section 302(b) and 305(f) of Title 49, and approved by the Commission.” Id. The “national organization” referred to is NARUC. See H.R.Rep.No. 253, 89th Cong., lst Sess. (1965), 2 U.S.Code Cong. & Admin. News, pp. 2923, 2928. The order sought to be reviewed in this case is not directly concerned with the “separations” problem. However, the petitioners allege that the order will have an effect in this area that will impair the performance of obligations that, in the case of WUTC, are officially imposed, and, in the case of NARUC, are officially sanctioned. Although NARUC is not compelled by statute to discharge these obligations, it assumed them with the acquiescence, encouragement, and solicitation of the Congress and the Commission. As Judge Leventhal has said, “Interest groups are, in today’s complex society, an indispensable part of an effective channel of communication between government and the persons whose conduct the government seeks to affect.” National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S.App.D.C. 274, 443 F.2d 689, 694 (1971). “[W]hether or not this begins as a duty, it is a necessity, and gives rise to relationships that cannot be ignored by the courts.” Id. At least where the relationship is as nearly official and as relevant to the subject matter to be litigated as it is in this instance with respect to NARUC, the purposes of the standing requirement are satisfied for essentially the same reasons as they are with respect to WUTC. . NARUC’s petition for review states: The NARUC is a quasi-governmental nonprofit organization founded in 1889. Within its membership are the governmental bodies of the fifty States engaged in the regulation of utilities and carriers. The mission of the NARUC is to improve the quality and effectiveness of public regulation in America. More specifically, the NARUC contains the State officials charged with the duty of regulating communication common carriers within their respective States and, as such, they have the obligation to assure the establishment and maintenance of such communications service and facilities as may be required by the public convenience and necessity, and the furnishing of service at rates that are just and reasonable. . NARUC’s petition for review specifically alleged injury to its member state commissions. . Since NARUC has standing to raise the Federal Communications Act issues, it may also challenge the order for noncompliance with the National Environmental Protection Act, as it has sought to do. Sierra Club v. Morton, 405 U.S. 727, 737, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). . Use of microwave frequencies in the transmission of communications is a post-World War XI development, capable of a wide range of specialized applications. The need for all communications services is growing rapidly. Existing carriers (principally A.T.&T. and Western Union) have not met the increasing and widespread need for diverse and flexible specialized communications services, particularly in the transmission of data. Market studies and independent forecasts establish that there is a very large undeveloped market for such services. Although there is some overlap, the services proposed by applicants are significantly different from those offered by established carriers. The applicants seek primarily to develop new services and markets, and to tap latent, undeveloped submark-ets for existing service. The applicants offer service features designed to meet the special and diverse technical and service requirements of specialized users, achieving the economies and benefits of specialization. It is reasonable to conclude that the effect of new entry will be expansion of the total communications market. Competition within the market for specialized services should motivate innovation, and produce even greater growth rates. The existing carriers’ facilities and practices have been developed primarily to meet the needs of voice transmission. Major modifications may be required to meet the different needs for efficient data transmission. Moreover, the capability of established carriers to meet future requirements should not be determinative where growing future traffic is concerned and new services are proposed. Even if existing carriers might furnish the prospective services, other benefits are reasonably to be anticipated from new entry in the specialized communications field. New entry will provide flexibility and wider choice in satisfying expanding and changing requirements in this field. It is questionable whether existing carriers can meet the new requirements in the specialized communications field and still meet the increasing requirements of the public monopoly services, particularly in view of the diversity of such requirements, the designing and engineering problems involved, and the huge and increasing amounts of new capital required. Entry of new carriers would disperse the burdens, risks, and initiatives involved. Competition in specialized communications would enlarge the equipment market for manufacturers other than Western Electric, and thus stimulate innovation. New carriers could devote their undivided attention to particular needs, and would be under pressure to innovate. New carriers would provide a useful regulatory tool, furnishing a standard for comparison among specialized communications carriers, and encouraging beneficial changes in A.T.&T.’s services and charges. New entry in the specialized field would not adversely affect the furnishing of services to the public by existing carriers. The specialized communications services involved constitute only a very small percentage of A.T.&T.’s total market. The market for standard voice communications services is not affected; it accounts for the bulk of A.T.&T.’s revenue, and it is also expanding with great rapidity. A.T.&T. will also be free to compete in the new field and is likely to obtain a very substantial portion of the potential market for specialized services. The potential impact on Western Union is greater, since a larger percentage of its service will be vulnerable to the new competition. However, a recently approved merger (In Re Western Union Tel. Co., 24 F.C.C.2d 664 (1970)) will add substantially to Western Union’s revenue. Moreover, the market involved is new, relatively untouched, and growing at a very rapid rate, and Western Union may retain most of its present specialized business as well as capture a sizeable share of the potential market. The independent telephone companies do not furnish intercity facilities, and to the extent the new entrants rely on existing local distribution facilities the business of independent telephone companies will increase. The “cream skimming” charge is unfounded primarily because applicants propose to serve special service markets that have not yet been developed, and because they propose to serve all such markets, excluding none that has a significant need. The contention that allowing new entry will sacrifice potential economies of size is rejected because the potential for such economies is not great in the specialized communications field in view of rapidly changing applications of improved technology and growing potential markets made up of diverse consumer demands. Attempts to adapt A.T.&T.’s voice communication facilities to data communication may leave users of both types of service unsatisfied and vitiate any economies of each. Any such economies that might be realized are overbalanced by the benefits that can be expected from the participation of smaller, specialized carriers. . E. g., American Trucking Ass’n v. United States, 326 U.S. 77, 86, 65 S.Ct. 1499, 89 L.Ed. 2065 (1945); McLean Trucking Co. v. United States, 321 U.S. 67, 83, 64 S.Ct. 370, 88 L.Ed. 544 (1944); Transit Comm’n v. United States, 289 U.S. 121, 125-126, 53 S.Ct. 536, 77 L.Ed. 1075 (1933); Texas & New Orleans R.R. v. Northside Belt Ry., 276 U.S. 475, 479, 48 S.Ct. 361, 72 L.Ed. 661 (1928). See also Delta Airlines v. CAB, 143 U.S.App.D.C. 8, 442 F.2d 730, 733 (1970); Delta Airlines v. CAB, 107 U.S.App.D.C. 174, 275 F.2d 632, 637-638 (1959). NARUC also refers to language suggesting that traditional telephone and telegraph companies, because they were considered to be natural monopolies, were intended to be regulated with a presumption against competition, much as railroads had been. FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 84 L.Ed. 869 (1940); National Ass’n of Theatre Owners v. FCC, 136 U.S.App.D.C. 352, 420 F.2d 194, 203 (1969). See also Hawaiian Tel. Co. v. FCC, 498 F.2d 771 (D.C.Cir.1974). For a specific rejection of the view that the public convenience and necessity standard of § 214 of the Communications Act is to be interpreted generally in the same manner as § 1(18) of the Interstate Commerce Act, see General Tel. Co. v. United States, 449 F.2d 846, 856 (5th Cir. 1971). . Cases cited by the Commission (29 F.C. C.2d at 901) sustain its interpretation of §§ 4(i) and (j) and 303(r) of the Communications Act, 47 U.S.C. §§ 154(i) and (j), 303(r), as conferring “ ‘not niggardly but expansive powers’ and wide discretion to adopt flexible procedures, rules and orders to meet ever-changing communications needs. National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344; FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-138, 60 S.Ct. 437, 87 L.Ed. 656; United States v. Southwestern Cable Co., 392 U.S. 157, 172-173; United States v. Storer Broadcasting Co., 351 U.S. 192, 202-203, 76 S.Ct. 763, 100 L.Ed. 1081.” . General Tel. Co. v. United States, 449 F.2d 846, 857-58 (5th Cir. 1971). See also Gulf States Util. Co. v. FPC, 411 U.S. 747, 759, 93 S.Ct. 1870, 36 L.Ed.2d 635 (1973); City of Huntingburg v. FPC, 498 F.2d 778, 783-84 (D.C.Cir.1974). . This finding prompted Justice Douglas to dissent from the Court’s ultimate disposition of the case, arguing that remand would be fruitless because the Commission, exercising its independent judgment, could not possibly find that the entry of new carriers would serve the public interest. 346 U.S. at 99, 73 S.Ct. 998. . The Court explained this standard of review as follows: We do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. 406 U.S. at 749, 92 S.Ct. at 1946. Prior to this decision, there was disagreement among lower courts as to the standard of review of agency rules such as those involved in Allegheny-Ludlum Steel Corp. and in this case. Compare California Citizens Band Ass’n v. United States, 375 F.2d 43, 53-54 (9th Cir. 1967) and Superior Oil Co. v. FPC, 322 F.2d 601, 619 (9th Cir. 1963) with City of Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731, 741-745 (1972). . FCC v. RCA Communications, Inc., 346 U.S. 86, 96-97, 73 S.Ct. 998, 97 L.Ed. 1470 (1953); United States v. Detroit & Cleveland Nav. Co., 326 U.S. 236, 241, 66 S.Ct. 75, 90 L.Ed. 38 (1945); GTE Serv. Corp. v. FCC, 474 F.2d 724, 731 (2d Cir. 1973); see American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624, 633 (1966). . A “rule” is defined as “[t]he whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4). . “It must be emphasized that here the Commission is moving into a new area of policy affecting large numbers of telephone carriers. The advantages of rule-making over adjudicatory proceedings in such circumstances are well understood.” GTE Serv. Corp. v. FCC, 474 F.2d 724, 732 (2d Cir. 1973). “Adjudicatory hearings serve an important function when the agency bases its decision on the peculiar situation of individual parties who know more about this than anyone else. But when, as here, a new policy is based upon the general characteristics of an industry, rational decision is not furthered by requiring the agency to lose itself in an excursion into detail that too often obscures fundamental issues rather than clarifies them.” WBEN, Inc. v. United States, 396 F.2d 601, 618 (2d Cir. 1968). “The adversary nature of [a trial-type] proceeding is particularly suited to the determination of ‘adjudicative’ facts, but not to the development of ‘legislative’ facts — that is, to determine specific events in the past which are contested rather than general information upon which policy decisions are based.” Note, The Judicial Role in Defining Procedural Requirements for Agency Rulemaking, 87 Harv.L.Rev. 782, 784 (1974). See also United States v. Florida East Coast Ry., 410 U.S. 224, 245-246, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973); FPC v. Texaco, Inc., 377 U.S. 33, 44, 84 S.Ct. 1105, 12 L.Ed.2d 112 (1964); SEC v. Chenery Corp., 332 U.S. 194, 202-203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); City of Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731, 739 (1971); General Tel. Co. v. United States, 449 F.2d 846, 863 n. 15 (5th Cir. 1971); Airline Pilots Ass’n v. Quesada, 276 F.2d 892, 895-896 (2d Cir. 1960). . 47 U.S.C. § 154(i) provides: The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions. 47 U.S.C. § 154(j) provides in part: The Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. 47 U.S.C. § 303(r) authorizes the Commission to: Make . . . such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter . In United States v. Florida East Coast Ry., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973), it was argued that because § l(14)(a) of the Interstate Commerce Act required the Commission to give consideration to certain factors specified in the statute when it fixed the compensation to be paid by one railroad for the use of freight cars of another, the Commission was required to make its determination “on the record after opportunity for agency hearing” pursuant to 5 U.S.C. § 553(c), rather than by informal rulemaking procedures. The Court rejected the argument, stating (410 U.S. at 235, 93 S.Ct. at 816): We know of no reason to think that an administrative agency in reaching a decision cannot accord consideration to factors such as those set forth in the 1966 amendment by means other than a trial-type hearing or the presentation of oral argument by the affected parties. Congress by that amendment specified necessary components of the ultimate decision, but it did not specify the method by which the Commission should acquire information about those components. . The Court continued: Specifically, the petitioner must raise substantial and material questions of fact as to whether: (1) the revenue potential of the market is such that a grant will cause the petitioner to suffer a significant loss of income; (2) the effect of this loss will be to compel the petitioner to eliminate some or all of its public service programming; and (3) this loss of programming will not be offset by the increased non-network programming proposed to be offered by the applicant. . As the Commission had concluded, the public interest would be served by offering users flexibility and a wide range of choice. The applicants were seeking to develop a relatively new and potentially very large market with heterogeneous submarkets. The proposals reflected differing routes and services. The various systems might develop along different lines. The number of potentially successful operations might well depend on the ingenuity, enterprise, and initiative of the participants in developing new services and equipment. Only four of the 33 applicants claimed economic exclusivity, and they failed to make a substantial prima facie showing that the potential specialized market along any route was so limited as to support only a single entrant. The remaining applicants are willing to proceed in the face of competition. The Commission has found a general public need and demand for the proposed services in all areas. The record as a whole indicates that entry by more than one private line carrier should generally be reasonably feasible, in view of the large and heterogeneous potential market. The investment and revenue requirements are such that a comparatively small share of the potential market may result in a financially successful operation for any one applicant and that a number of small carriers may co-exist in any particular region. If some fail, the adverse consequences would not be significant. Merger is more likely than bankruptcy or removal of facilities from the field. Even if a carrier is lost, demand for this type of communication could be met by another entrant or by an established carrier, and the frequencies would revert to the Commission for reassignment to others. There would be minimal inconvenience to the public. If it should turn out that the market is spread so thin among the new entrants as to adversely affect their service to the public in an area, the Commission can take remedial action by rulemaking or comparative hearing at license renewal time. The Commission does not know whether all of the pending applications will be found qualified and, if so, will elect to proceed. Since new entry of more than one private applicant appears reasonably feasible in the potential market, the market place is a more reliable and effective instrument than the comparative hearing process for determining how many and which new entrants may succeed. In summary, it is desirable to avoid delay in the institution of services needed by the public now, the public will be benefited by the availability of diverse options, and there will be no public detriment if some of the pending applicants fail. . The Commission responded briefly but adequately to WUTC’s vigorously pressed argument that special consideration was required of applications to provide service in the Pacific Coast area. 29 F.C.C.2d at 899, 926-27. . 47 U.S.C. § 405 provides that “[t]he filing of a petition for rehearing shall not be a condition precedent to judicial review of any . order, decision, report, or action [by the Commission], except where the party seeking such review ... (2) relies on questions of fact or law upon which the Commission . . . has been afforded no opportunity to pass.” . The discretion exercised by the court under 47 U.S.C. § 405 is the same as that exercised in applying the general nonstatutory requirement of exhaustion of administrative remedies; for the doctrine “is substantially the same whether or not it happens to be embodied in such a statutory provision.” K. Davis, Administrative Law Treatise § 20.06, at 92 (1958). See also McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). The factors to be considered are spelled out in McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971), and McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657 (1969). See also Craycroft v. Ferrad, 408 F.2d 587 (9th Cir. 1969). City of New York v. United States, 337 F.Supp. 150 (E.D.N.Y.1972) (three judge court), does not hold that the general doctrine requiring exhaustion of administrative remedies is inapplicable to NEPA issues. In that case the NEPA issues were presented to the agency during the administrative process. . See Natural Resources Defense Council v. Grant, 341 F.Supp. 356, 367 (E.D.N.C.1972). The Guidelines of the Council on Environmental Quality provide: The statutory clause “major Federal actions significantly affecting the quality of the human environment” is to be construed by agencies with a view to the overall, cumulative impact of the action proposed (and of further actions contemplated). Such actions may be localized in their impact, but if there is potential that the environment may be significantly affected, the statement is to be prepared. Proposed actions, the environmental impact of which is apt to be highly controversial, should be covered in all cases. 36 Fed.Reg. 7724 (1971) (emphasis supplied).

Washington Utilities & Transportation Commission v. Federal Communications Commission

WALLACE, Circuit Judge (concurring): I concur in the result reached by the majority. However, I disagree that standing for Washington Utilities & Transportation Commission (WUTC) should be based on the alternative ground of parens patriae. Not only is the parens patriae reasoning unnecessary to decide this case but application of the doctrine appears to be barred by Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). There Massachusetts, acting as parens patriae, sued to prevent enforcement of the Maternity Act of 1921, alleging that it was an unconstitutional usurpation of state power. The Court stated: We need not go so far as to say that a state may never intervene by suit to protect its citizens against any form of enforcement of unconstitutional acts of Congress; but we are clear that the right to do so does not arise here. [T]he citizens of Massachusetts are also citizens of the United States. It cannot be conceded that a state, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the state, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois and Chicago District, 180 U.S. 208, 241 [21 S.Ct. 331, 45 L.Ed. 497]), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status. Id. at 485-86, 43 S.Ct. at 600. The Supreme Court has relied upon Massachusetts v. Mellon to deny Florida standing to act as parens patriae in an action to enjoin collection of federal inheritance taxes in Florida. Florida v. Mellon, 273 U.S. 12, 18, 47 S.Ct. 265, 71 L.Ed. 511 (1927). The Court has also denied standing to the Governor of Louisiana to bring an original action on behalf of the state to enjoin the enforcement of a regulation under the Emergency Price Control Act of 1942 fixing maximum prices for strawberries. Jones ex rel. Louisiana v. Bowles, 322 U.S. 707, 64 S.Ct. 1043, 88 L.Ed. 1551 (1944) (Per Curiam). See H. Hart and H. Wechsler, The Federal Courts and The Federal System 276 (2d ed. 1973). The holding of Massachusetts v. Mellon has not been, as the majority contends, “eroded by time.” This phrase is from the dissenting opinion of Justice Douglas in Massachusetts v. Laird, 400 U.S. 886, 889, 91 S.Ct. 128, 27 L.Ed.2d 130 (1970), a case in which Massachusetts sought to adjudicate the constitutionality of the participation of the United States in the Vietnam war. The majority, however, denied the state leave to file a complaint either because it lacked standing or because it did not present a justi-ciable controversy. See id. at 887, 91 S.Ct. 128 (Douglas, J., dissenting). Furthermore, the Solicitor General had argued that Massachusetts v. Mellon barred the suit. See id. Thus, if anything, this case implies that the doctrine of Massachusetts v. Mellon is alive and well. Moreover, I believe the majority is wrong in asserting in footnote 16 that South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), “allowed a state to challenge as parens patriae an allegedly unconstitutional congressional statute.” Quite the contrary, the Court held that Massachusetts v. Mellon barred a parens patriae suit by South Carolina. Id. at 324, 86 S.Ct. 803. Standing was granted to the state, not as parens patriae but in its own right, because the Voting Rights Act of 1965 arguably invaded powers reserved to the states. See id. at 323-327, 86 S.Ct. 803. Finally, our decision in Public Utilities Comm’n of California v. United States, 356 F.2d 236 (9th Cir.), cert. denied, 385 U.S. 816, 87 S.Ct. 35, 17 L.Ed.2d 54 (1966), cites Massachusetts v. Mellon with approval in a situation identical to that presented by this case. There the California counterpart to WUTC challenged an ICC public notice that invited telephone companies to propose tariffs reducing interstate rates. We reasoned that public utility regulation has historically been a legislative function and that rate fixing by a regulatory commission is an essentially legislative act. Id., 356 F.2d at 241. In a footnote we then discussed the parens patriae issue: This raises the question of whether petitioner has standing to maintain this suit in its capacity as a representative of the people of the State of California. It has long been recognized that a state, as parens patriae, cannot institute judicial proceedings to protect citizens of the United States from the operation of federal statutes because it is the United States, not the state, to whom citizens of the United States must look as parens patriae for protection of whatever rights they might have under federal legislation. Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 61 L.Ed. 1078 (1923). Id. 356 F.2d at 241 n.1 (dictum). I must also specifically dissociate myself from footnote 17 of the majority opinion, which states that National Association of Regulatory Utility Commissioners (NARUC) has standing in its own right. As with the parens patriae discussion, this ground for standing is not needed to decide this case. True, the majority has admitted it to be dicta and placed it in a footnote. Nevertheless, the argument should not go unchallenged. The majority asserts that NARUC has standing because “Congress has accorded NARUC official status as the representative of- state regulatory agencies in dealing with the basic problem underlying these petitions for review.” I believe this to be incorrect. Congress has created a Federal-State Joint Board to consider the problems of allocating common carrier property and expenses between interstate and intrastate operations (which is one basis for determining telephone rates). 47 U.S.C. § 410(c). Each time the Federal Communications Commission has a proceeding which concerns the separation problem, it creates a Joint Board to act as a hearing examiner. The board then forwards its recommended decision to the full FCC. The board is composed of three FCC members and four state commissioners “nominated by the national organization of State commissions,” which is NARUC. The state members may participate in the subsequent FCC deliberations, but they do not have a vote. Id. Thus it is inaccurate to say that NA-RUC has “official status as the representative of state regulatory agencies,” at least with respect to the functions of the Joint Board. First, NARUC only nominates the state members — the commission still has the responsibility to select them. The FCC’s dominant role in the selection process is illustrated by the parallel provisions of subsection (a) giving the commission discretion to reject any nominee. 47 U.S.C. § 410(a). Second, only the state agency members actually appointed to the Joint Board serve as representatives of state commissions. They, not NARUC, sit on the board as hearing examiners; they, not NARUC, participate in the subsequent FCC deliberations. NARUC’s role is, therefore, rather limited. The organization itself cannot be injured by the FCC’s action in the present matter: Its’ right to nominate will remain unimpaired. Certainly NA-RUC has an interest in the matter but only as an interest group like the Sierra Club. It may indeed have standing to challenge FCC decisions but only by asserting injury in fact to its members. Sierra Club v. Morton, 405 U.S. 727, 734— 735, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Finally, I do not believe the reliance upon and quotations from National Automatic Laundry and Cleaning Council v. Schultz, 143 U.S.App.D.C. 274, 443 F.2d 689, 694 (1971), in the footnote are persuasive. That case was decided prior to Sierra Club v. Morton and, in my judgment, is inconsistent with the latter’s requirement of injury in fact to organization members. See 405 U.S. at 738—740, 92 S.Ct. 1361.

Massachusetts Air Pollution & Noise Abatement Committee v. Brinegar

PER CURIAM. This is an appeal from a district judge’s refusal to grant a temporary restraining order prohibiting three flights by the Concorde, a supersonic transport (SST), in and out of Boston during the next several days. This is not the setting in which courts ordinarily address themselves to complex, long-term issues. Thus our decision today has no implications whatever for the merits of plaintiffs’ claim that there must be an environmental impact statement (EIS) before the Concorde operates within this country. We act within the constraints of familiar law that the granting or denying of a temporary restraining order is seldom reviewable by an appellate court. The law in this circuit, not unlike that in others, has carved out narrow exceptions where, in effect, an action on a temporary restraining order may be treated as an appealable action on a request for a preliminary injunction. These exceptions are restricted to cases where there has been a full adversary presentation of evidence or where the circumstances are such that if review is refused there is no further possibility of interlocutory relief. Here, because of the exigencies of time, there was no opportunity for a full presentation of evidence by the parties. While plaintiffs would be content to rest on the present record, defendants are not. Perhaps this defect of evidence would not be conclusive if we could say with confidence that on the facts before us plaintiffs’ case was so strong that they will probably succeed. But we cannot presently say this. The nexus between the three flights and possible future demonstration flights and the deliberations of the Federal Aviation Administration connected with its consideration of the Concorde’s owners’ application for a U. S. type certificate is as yet unclear. An evidentiary hearing is needed to clarify the situation. The cited precedents concern factual situations sufficiently different from this as not to be dispositive, although it is clear that environmental law requires that a federal agency involve itself early and continuously with EIS’s in considering its programs and projects. When we consider the plaintiffs’ continuing prospects for relief if we do not accept this appeal, we see at least two possibilities. The first is that plaintiffs after further proceedings might obtain a declaration or injunction, preliminary or otherwise, if other flights or other situations of this nature are reasonably likely to occur, if the court finds a sufficient connection with the planning for any continuing SST operation. A second possiblity is that the case may be found moot. Given the narrowing concept of mootness developed in recent years, such a finding would in all likelihood indicate that plaintiffs’ fears of further flights were groundless. To the extent that we are in equilibrium as far as the substantive law is concerned and doubtful that further interlocutory relief is foreclosed, we look at the prospects of irreparable harm. In a close case on the prior two issues, we might be persuaded to grant relief if plaintiffs were to suffer serious irreparable injury and defendants were to suffer relatively little or none. Here, however, there is no showing that the three flights in question will seriously damage the environment or people, apart from some incremental annoyance equivalent to the noise and emissions of several added conventional aircraft. The path of take-off and landing over the harbor and the fact that the plane will operate at subsonic speed over land are calculated to minimize such effects. We therefore look on the injury to plaintiffs as perhaps irreparable but not of great magnitude. And we look on the injury to defendants, were we to grant relief, as also irreparable, and though of a different kind, as not being insubstantial. We therefore are unable to find here the compelling circumstances that would convince us that we have appellate jurisdiction. This ruling is a narrow one. The question of the environmental impact of SST’s such as the Concorde is serious and important, and will require the most careful scrutiny. We do not today consider whether regular or frequent operation of SST’s will do envíronmental harm, or whether even demonstration and test flights are permitted without environmental impact statements. Nor do we attempt to say when the FAA is obliged to prepare them. All we now say is that we lack appellate jurisdiction over plaintiffs’ appeal from the court’s denial of their request for a temporary restraining order enjoining the three flights. . Three landings and three departures are scheduled from Logan Airport, the first on June 13, 1974 and the last on June 16, 1974. . The imminence of the three Boston flights is, of course, undisputed. What is in dispute is whether these are merely isolated occurrences, so that federal permission therefor may not be “major” federal action requiring an BIS or whether, as plaintiffs contend, they are inextricably bound to further sales demonstration flights and to proceedings for U. S. type certification.

Oregon Natural Resources Council v. Mohla

GOODWIN, Chief Judge: This case requires us to resolve an issue we explicitly left open in Portland Audubon Society v. Lujan, 884 F.2d 1233 (9th Cir.1989): whether section 314 of Pub.L. No. 100-446, 102 Stat. 1825 (1988) bars a challenge to a Forest Service timber sale which raises environmental concerns in the context of the individual sale. Alleging a violation of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-70 (1982), Oregon Natural Resources Council (ONRC) challenges the United States Forest Service’s decision to sell 240 acres of primarily old-growth forest in the Mt. Hood National Forest in Oregon. The district court held that ONRC’s challenge was jurisdictionally barred by section 314, which prohibits challenges to Forest Service plans on the sole basis that the plans in their entirety are outdated. The planning history leading to the Forest Service’s decision to auction the Badger Creek Resell is important to an understanding of the nature of ONRC’s challenge to this timber sale. In early 1975, the Forest Service completed a Land Use Plan (LUP) and an accompanying Environmental Impact Statement (EIS) for the Salmon River Unit and Roaring River Unit, where the Badger Resell is located. The LUP operates as a broad planning guide to direct specific resource management, including timber, within the areas covered by the plan. The general management policy for the Roaring River General Forest Unit is that “[t]imber will be managed to maintain a variety of successional types, high water quality and high timber productivity.” The accompanying EIS evaluated the environmental effects of this policy, and concluded that timber harvest would adversely affect the habitat for those amphibians, mammals, and birds which require old-growth forests. Environmental concerns were thus recognized and placed in tension with productivity concerns. In 1977, the Forest Service completed a ten-year Timber Management Plan (TMP) and an accompanying EIS for the Mt. Hood National Forest. The Badger Resell lies entirely within that forest. The EIS accepted the land use allocation for high timber productivity made in the TMP, and considered the environmental impact of various timber management alternatives, from lowering the then-current level of timber harvest to increasing timber harvest. The TMP adopted a plan calling for intensive timber management, which the EIS concluded would cause adverse environmental effects through the loss of old-growth habitat. The plan was nonetheless adopted, and the decision to convert the old-growth forest to second-growth managed “tree farms” became final. On August 2, 1977, the Forest Service prepared a site-specific Environmental Analysis Report (EA) for the Badger Resell. The EA was “tiered” to the LUP and its accompanying EIS, which means that the EA accepted the land use allocations made in the LUP. See 40 C.F.R. § 1502.20 (1988). The EA evaluated only site-specific concerns, including the environmental impact of the proposed timber sale. On September 24, 1979, the Forest Service sold the timber now called the Badger Resell to the Publishers Paper Company. No environmental litigation by ONRC challenged that sale. The contract was in default and was returned to the Forest Service in early 1986, under the provisions of the Federal Timber Contract Payment Modification Act, 16 U.S.C. § 618 (1985). The Forest Service prepared a supplement to the 1977 Badger Resell EA, and concluded that a timber resale would not significantly affect the quality of the environment, making the preparation of an EIS for the sale unnecessary. Based on this finding, the Forest Service approved the resale, and, in March, 1988, published a Decision Notice to reoffer Badger Resell. ONRC administratively appealed the resale. The Forest Service denied the appeal. Following the denial of ONRC’s administrative appeal, the Forest Service auctioned the Badger Resell and awarded the timber contract to Avison Timber Company (Avi-son). ONRC filed a complaint in district court against the Forest Service and Avison, seeking declaratory relief and an order enjoining the logging of Badger Resell. The district court granted summary judgment to the Forest Service, holding that ONRC’s challenge to the logging of Badger Resell constituted an impermissible challenge to decisions made in the TMP, and was therefore barred by section 314. A temporary restraining order delayed the actual logging of the sale until midsummer in 1989, and part of the timber was removed after the TRO was lifted. Is ONRC’s Challenge Barred by Section 314? Section 314 bars challenges to a Forest Service plan “on the sole basis that the plan in its entirety is outdated.” It permits challenges to “any and all particular activities to be carried out under existing plans.” ONRC appeals the district court’s finding on summary judgment that ONRC challenges the logging of Badger Resell solely on the basis that the TMP in its entirety is outdated. ONRC argues that its challenge comes within the savings clause for particular activities. There is a strong presumption in favor of judicial review of administrative actions. Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1932, 104 L.Ed.2d 403 (1989). We narrowly construe prohibitions against judicial review. Id. ONRC’s NEPA claim is not phrased as a challenge to the existing Forest Service TMP. Instead, as the district court noted, ONRC phrases its claim as a challenge to the procedures the Forest Service used in reoffering the Badger Resell for timber harvest. ONRC contends that the EA, first published in 1977, is outdated, and the Forest Service’s decision not to revise the EA or prepare a supplemental EIS in light of significant new findings concerning the relationship between flora and fauna and the human environment in old-growth forests violated NEPA. The district court broadly construed section 314, as prohibiting judicial challenge to an individual timber sale where the challenge does not involve information specific to that timber sale. As the court noted, the Forest Service’s decision to log old growth was made more than ten years ago in the TMP and its accompanying EIS. Because ONRC’s contention that the Forest Service failed to consider significant new findings concerning the value of old-growth forests is the type of generic issue which brings into question decisions made in the Forest Service TMP, the district court found that ONRC s challenge was jurisdic-tionally barred by section 314. The court observed that, if it allowed ONRC’s challenge, the practical effect would be that ONRC or similarly motivated plaintiffs would be able to stop any Forest Service timber sale which offers old-growth forests for logging in accordance with current Forest Service plans. This case requires us to grapple with section 314’s extraordinary language once again. See Portland Audubon Society v. Lujan, 884 F.2d 1233 (9th Cir.1989). Section 314 bars a court challenge only “on the sole basis that the plan in its entirety is outdated.” On its face, this is not such a challenge. In its administrative appeal, ONRC challenged the site-specific Badger Resell EA on the ground that the EA failed to address new information regarding old-growth forests. While ONRC’s challenge to the adequacy of this EA is couched in site-specific terms, the suit, if successful, would enable the plaintiffs to challenge, sale by sale, the entire Mt. Hood National Forest Timber Management Plan on the ground that the EAs failed to take into account new information. Such challenges would amount to an attack on the entire plan as outdated because it failed to take into account recent ecological studies of the value of old-growth forests. While the statute suffers from some want of clarity which is not substantially cured by legislative history, it is plain that Congress did not intend such litigation. AFFIRMED. . The Badger Creek sale was "repossessed” in 1986 by the Forest Service when economic conditions made the original sale improvident. The sale is referred to as the "Resell” in this opinion. . The case is not moot because logging was not completed during the 1989 summer season.

United States v. 178.15 Acres of Land

PER CURIAM: Upon the appeal of this condemnation proceeding the appellant-landowners take the position that the Government lacked the power to exercise its right of eminent domain over their lands because of its failure to file an Environmental Impact Statement in accordance with Section 102(2)(c) of the National Environmental Policy Act, 42 U.S.C. § 4332, prior to the taking. The appellants also contend that the district court improperly limited the evidence with respect to the value of the property, and denied them their constitutional right to have the issue of fair market value tried by a jury. Upon consideration of the record, brief and oral arguments, we perceive no merit in any of these contentions and, accordingly, affirm the order of the district court. AFFIRMED.

Transcontinental Gas Pipe Line Corp. v. Hackensack Meadowlands Development Commission

OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. In this appeal, we are faced with the question of the extent to which a state may legitimately interfere with interstate commerce through the exercise of its police powers. In apparent conflict are the State of New Jersey’s plans for the controlled development of its “Meadowlands District” and the right of a federally certificated natural gas company to expand its storage facilities on land acquired by it approximately five years before the enactment of the Hackensack Meadowlands Reclamation & Development Act, N.J.S.A. 13:17-1 et seq. I Transcontinental Gas Pipeline Corporation (“Transeo”), the appellee, is a natural gas company within the meaning of the Natural Gas Act (“Act”), 15 U. S.C. § 717 et seq., and is thereby vested with various rights and powers as well as concomitant duties and obligations. Pursuant to authorization by the Act and the resulting periodic issuance of Certificates of Public Convenience and Necessity by the Federal Power Commission (“FPC”), Transeo has constructed and presently maintains an extensive pipeline system which gathers natural gas from onshore and offshore Gulf Coast locations, transports the gas through interstate commerce, and subsequently sells it to various distributors along the East Coast. Approximately seventy-five percent of the total amount of natural gas used in the state of New Jersey is supplied by Transeo. In 1963 Transeo purchased from the New Jersey Borough of Carlstadt a five hundred acre tract of barren and undeveloped meadowlands for the purpose of constructing facilities for the processing and storage of Liquified Natural Gas (“LNG”). Subsequently the company acquired from the state, in return for settlement of pending litigation, any interests the state might have under disputed title. After the FPC issued the necessary certificates, Transeo constructed an LNG plant including an underground storage container. Soon after completion, however, engineering studies determined that the container, as constructed, would be unable to accommodate the full quantity of LNG for which it had been designed. In July of 1968, the FPC issued an amended certificate, authorizing the construction of an above-ground cylindrical storage container. The plant — including the above-ground container and appurtenant liquification and vaporization facilities — is presently in' full operation. In January of 1968, pursuant to the enactment of the Hackensack Meadow-lands Reclamation and Development Act, the Hackensack Meadowlands Development Commission (“Commission”), an autonomous, regional agency was established with the power to “adopt a master plan . . . for the physical development of all lands lying within the [Hackensack Meadowlands] District. . ” As stated in the Act, the area encompasses approximately 21,000 acres of saltwater swamps, meadows and marshes commonly known as “meadow-lands” located in the lower Hackensack River Basin. The Transco property is located within one of the Commission’s “Planning Areas,” the company’s existing facilities utilizing approximately sixteen acres of its five hundred acre tract. In the fall of 1969, Transco was notified by its customers that additional LNG service would hence be required, especially during the peak winter season periods. To meet these demands, Trans-co applied to the FPC for authorization to construct a second above-ground storage facility. The construction would encompass an additional seven acres of the Transco property. As required by law, public notice of the application was published by the FPC and special notice given to the Governor and Public Service Commission of New Jersey. Neither the State, nor the Public Service Commission, nor the Commission petitioned to intervene or participate in any manner in the proceedings before the FPC although a number of Transco’s customers were granted permission to intervene in support of the application. After a hearing the certificate was issued on March 12, 1970. The Hackensack Meadowlands Reclamation and Development Act provides that a building permit must be obtained from the Commission prior to the commencement of any construction on land covered by the Commission’s Master Plan. After numerous meetings with Transco representatives, the Commission refused to issue the necessary permit, ostensibly on the grounds that the construction and operation of the proposed storage facility was not a “permitted use” under the Master Plan. The Commission concluded that to allow the proposed construction a variance would have to be issued. However, that, too, was denied, the Commission concluding that the construction would “seriously restrict the range of possible uses in the surrounding areas” and that it would “fail to meet applicable planning and safety regulations.” Nevertheless, after further negotiations, the Commission offered to “reconsider” its position upon the condition that Transco, inter alia, agree to abandon the entire plant by 1980. Transco refused, contending that its obligations under the Natural Gas Act prohibited such an agreement. On July 22, 1970, Transco filed suit in the District Court to enjoin the Commission from interfering with construction of the facility. The Commission counterclaimed to enjoin commencement of construction. After six days of hearings, the District Court permanently restrained the Commission from' interfering with construction of the facility. The Commission appeals and we affirm. II It is well established that the interstate transmission and sale of natural gas is within the regulatory ambit of the Commerce Clause of the Constitution. Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 43 S.Ct. 658, 67 L.Ed. 1117 (1923); Federal Power Commission v. National Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037 (1942). Although the states are not precluded from imposing reasonable restraints and restrictions on interstate commerce, and although the authority to enact zoning ordinances under the state’s police power is clear, see, e. g., Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), it is equally settled that a state may not exercise that police power where the necessary effect would be to place a substantial burden on interstate commerce. Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). We must therefore look to the particular facts presented by this case to determine whether the Commission’s complete interdiction of the proposed facility was a reasonable exercise of its police powers, or as the District Court determined, an “arbitrary, unreasonable and unjustifiable interference” with interstate commerce. The Commission initially contends that the District Court’s decision must be reversed for its alleged failure to consider adequately the “substantial public benefit” which will accrue to the Meadowlands area by the implementation of the Commission’s Master Plan. Specifically, the argument is advanced that in determining whether or not an undue burden has been imposed upon interstate commerce, the District Court did not weigh sufficiently the reasons for the Commission’s action. According to appellant, that action was adequately justified by the inherent benefits forthcoming to the area through strict adherence to the Master Plan. Our reading of the record, however, convinces us that the Commission’s testimony was taken into consideration and, as indicated in the District Court’s opinion, its viewpoint was, in fact, seriously weighed. Ill The Commission argues that land surrounding the Transco site “has characteristics which will permit the establishment of higher uses than the heavy industrial character to which the proposed LNG facility would commit to the area” and that these planning goals are themselves a sufficient justification for the Commission’s interference with interstate commerce. At the hearings and in its briefs to this Court, the Commission stated that these contemplated “higher uses” include the construction of a balanced residential community for 60,000 inhabitants in close proximity to the Transco site. However, the record reveals that if residential communities are in fact being considered, those plans are in the earliest stages of development and apparently thirty years in the future. In fact, it would appear that the only reasonably definitive plans for the development of the land surrounding the Transco site are — as counsel for Transco has contended without contradiction— the construction of a 750 acre sports complex consisting of two stadia, a race track, and various adjacent parking facilities. New Jersey Sports and Exposition Authority Law, N.J.S.A. 5:10-1 et seq.; see also New Jersey Sports & Exposition Authority v. McCrane, 61 N.J. 1, 292 A.2d 545 (1972). The Sports Authority and the Commission apparently have joint responsibilities over this 750-acre tract. Counsel for appellant conceded at oral argument that the Commission’s opposition was not directed solely at this proposed facility. Rather, he candidly admitted that appellant was primarily distressed by the prospect of further construction on the Transco property in the future and the Commission’s inability to restrict such FPC-certificated construction. Notwithstanding these concerns, we affirm the District Court’s conclusion that the Commission’s actions were an unlawful interference with interstate commerce. Although we are cognizant of the tremendous importance of sound community and regional planning, see, e. g., E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970), we must also consider the needs of the New York-New Jersey metropolitan area for the adequate and efficient supply and delivery of natural gas. Upon this record and with full consideration of the state’s interest in the Meadowland District, we conclude that the District Court’s determination characterizing the Commission’s action as “arbitrary,” and an “unwarranted imposition upon interstate commerce” was correct. IV The record reveals that the Commission had not promulgated any set of regulations, standards or criteria applicable to the construction of this type of industrial facility. It nevertheless concluded that the denial of the variance was “based mainly on the lack of conformity with applicable planning regulations and safety considerations.” In the District Court extensive docn mentary evidence as well as testimony was presented by Transco, attesting to the safety of the proposed storage container. The Court found as a fact that the relevant Transco plans “conformed to all current building and safety standards.” The Commission, however, does not accept this finding, asserts that it is against the weight of the evidence and argues that the District Court should be reversed. Our standard of review is carefully circumscribed. On appeal, the District Court’s findings of fact will not be set aside unless they are “clearly erroneous.” F.R.Civ.P., Rule 52(a) Andrews v. Chemical Carriers, Inc., 457 F.2d 636 (3d Cir. 1972); Petition of M & J Tracy Inc., 422 F.2d 929, 931 (3d Cir. 1969). After careful consideration, we conclude that none of the pertinent findings of the District Court are “clearly erroneous.” The testimony presented by Transco included that of Dale Hauser, the engineer in charge of the construction of the facility, who in considerable detail testified to the effect that the container met all existing safety regulations including those of the National Fire Protection Association and the American Petroleum Institution. It was uncontroverted that the specifications for the proposed facility not only complied with all existing safety standards relevant to the construction of such a facility but in fact included additional safety features suggested by Transco and the contractor— Pittsburgh-Des Moines Steel Company. In addition, William M. Nix, an engineer employed with an independent consulting firm, testified that the plans and specifications were “standard for the industry,” included all safety factors and devices recognized and used in the industry, met the safety codes of all regulatory authorities and were in accordance with good engineering practices. The Commission, however, contends that its expert witness, Marvin Salzenstein, presented testimony concerning the “possibility” of gas dispersion from the container, that this testimony was not refuted by Transco and that the District Court was therefore “entirely unjustified” in concluding that the Transco had in fact adequately rebutted Salzenstein’s “damaging” testimony. The weight to be given expert testimony is in the province of the trial judge and will not be set aside, unless the “clearly erroneous” standard is met. United States ex rel. Carter Nelson, Inc. v. Campbell, 293 F.2d 816 (9th Cir. 1961); Evans v. United States, 319 F.2d 751 (1st Cir. 1963). We conclude that credible testimony of the Transco witnesses adequately rebutted the Salzenstein testimony and we therefore will not disturb the Court’s findings on this point. To conclude, not only are the District Court’s findings of fact not “clearly erroneous” but our review of the record mandates the conclusion that they are correct. V The National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4331 et seq., mandates that all executive and administrative agencies give good faith, careful and informed consideration to environmental values during the course of their decision making processes. See, e. g., Pennsylvania Environmental Council v. Bartlett, 454 F.2d 613 (3d Cir. 1971); Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). Section 102, 42 U.S.C. § 4332, contains the procedural provisions of NEPA. Of particular import to the present action is Subsection (C) which requires that to “the fullest extent possible” all federal agencies shall include a detailed environmental impact statement in “every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. . . . ” This Court has held that NEPA should not be given retroactive application. Pennsylvania Environmental Council v. Bartlett, supra; Concerned Citizens of Marlboro v. Volpe, 459 F.2d 332 (3d Cir. 1972). We have not as yet been called upon, however, to decide whether strict compliance with NEPA is mandated immediately as of January 1, 1970, when NEPA first became effective. We conclude that in the particular circumstances of this case, the FPC was not required to file a Section 102 impact statement. Section 4333 directs all Federal agencies to: “review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter.” The facts of this case demonstrate clearly why a flexible approach to NEPA should be taken. It is undisputed that Transco submitted its application for certification in December of 1969, that the stated “effective date” of NEPA was January 1, 1970 and that the FPC certificate was issued on March 12, 1970. Neither the FPC nor the Council on Environmental Quality (“CEQ”) had as yet promulgated any guidelines whatsoever, the CEQ’s Interim Guidelines only being issued on April 23, 1970, 35 Fed.Reg. 7390. The FPC’s guidelines were issued on December 4, 1970. 35 Fed.Reg. 18958. Thus, in January and February of 1970, it was questionable whether the granting of a certificate or other entitlement for use was even an “action” within the meaning of Section 102(c), much less a “major federal action.” It was not until the publication of the CEQ Interim Guidelines on April 30, 1970 — a month after the certificate was issued — that the former question was resolved. Whether a project is a “major federal action” is, of course, a question which can only be resolved through a careful case-by-case analysis. Taking into consideration the facts that the Transco LNG facility had been in operation for a considerable period, that this was an expansion of an existing facility, that there was no expenditure of any federal funds, and that there was no taking of any public lands, it is quite reasonable for the FPC to have concluded — in the absence of any indication to the contrary — that this was not the sort of federal “action” that required a Section 102 impact statement. It is important to note that the approval of the construction of the facility in question is certainly not the type of “action” which most reasonable men would conclude, without any guidelines, to be either “major” or even an “action.” Cf. Calvert Cliffs’, supra. We therefore conclude that the failure of the FPC to prepare an impact statement does not invalidate the issuance of the certificate. The order of the District Court will be affirmed. . 15 U.S.C. § 717a(6) defines a “natural gas company” as an entity engaged in “the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale.” . See 15 U.S.C. § 717f. . See Transcontinental Gas Pipe Line Corp. v. Department of Conservation, 43 N.J. 135, 202 A.2d 849 (1964). Trans-co’s pipelines have run through the meadowlands since 1950. . N.J.S.A. 13:17-1 et seq. . N.J.S.A. 13:17-9. See also N.J.S.A. 13 :17-11: “The master plan shall include provisions or criteria for the location and uso of buildings, structures, facilities, and land for solid waste disposal, and may include provisions for: (1) the use of land and buildings, residential, commercial, industrial, mining, agricultural, park and other like purposes ; (2) service-water supply, utilities, sewerage, and other like matters; (3) transportation, streets, parking, public transit lines, and stations both above and below ground level, freight facilities, airports, harbors, channels, docks and wharves, and other like matters; (4) housing, residential standards: clearance, redevelopment, rehabilitation, conservation, and other like matters; (5) water, forest, soil conservation, flood control, and other like matters; (6) public and semipublic facilities including but not limited to civic centers, schools, libraries, parks, playgrounds, fire houses, police buildings, hospitals, and other like matters; (7) the distribution and density of population; (8) planned unit development; (9) community appearance; (10) financing and programming capital improvements; (11) and other related elements of growth and development, including the social implications of any proposed development, and advances in technology related to any subject included in the plan.” . N.J.S.A. 13 :17-1. Of these 21,000 acres 18,000 are within the Commission’s jurisdiction and apparently 10,000 acres have been deemed by the Commission to be “sufficiently undeveloped” for zoning and planning purposes. . N.J.S.A. 13:17-12. . The FPC certificate was issued to Transco prior to the adoption by the Commission of those portions of the Master Plan which prohibit the construction of the proposed facility. . The Commission’s resolution reads' in relevant part as follows: “The consensus of the special committee studying the Transcontinental proposal for the construction of a second above-ground facility, concurred in by a majority of the members at a formal meeting held on Wednesday, June 10, was that the Commission would instruct its staff to approve the variance and building permit of Transcontinental, after the public hearing on the variance, provided the company enter into a written agreement containing the following: a “II. A covenant, acceptable in form to both the Company and the Commission, which will require and guarantee the removal of existing above ground gas storage facility and the proposed one, and all ancillary equipment and structures thereto within 10 years of the date of execution. The forms and provisions of the covenant to be agreed upon by both parties prior to the approval of the variance and the covenant to be filed at the same time as the building is approved. “III. The execution of a performance bond for the removal of both above ground facilities and all ancillary equipment and structures thereto at the lapse of 10 years.” . 15 U.S.C. § 717f (b) states: “No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.” . An injunction was also entered directing the Borough of Carlstadt, defendants in the District Court, to issue the necessary building permits. . The FPC was granted leave to.appear as amicus curiae in the proceedings below. Its motion to present brief and oral argument to this Court was also granted and we are appreciative of counsel’s presentation. . In Southern Pacific, supra, the Supreme Court stated: “The principle that, without controlling . Congressional action, a state may not regulate interstate commerce so as substantially to affect its flow or deprive it of needed uniformity in its regulation is not to he avoided hy ‘simply invoicing the convenient apologetics of the police power.’ ” 325 U.S. at 779, 65 S.Ct. at 1525, citing Kansas City Southern R. Co. v. Kaw Valley District, 233 U.S. 75, 79, 34 S.Ct. 564, 58 L.Ed. 857 (1914) (emphasis added). . It is important to emphasize that the Commission is not attempting to require the Transco facility to conform to any specific regulation. Rather it is attempting to prohibit construction altogether. . The New Jersey Sports and Exposition Law declares in Section 2 “that the general welfare, health and prosperity of the people of the State will be promoted by the holding of athletic contests, horse racing and other spectator sporting events and of trade shows and other expositions in the State; that in order to induce professional athletic teams, particularly major league football and baseball teams, to locate their franchises in the State, it is necessary to provide stadiums and related facilities for the use of such teams, in addition to the facilities for horse racing and other spectator sporting events; that such stadiums and other facilities would also accommodate other events and serve other uses which would provide needed recreation, forums and expositions for the public.” N.J.S.A. 5 :- 10-2. . The site was presumably chosen with the Commission’s approval as the Sports Authority Law requires. . The District Court determined that the burden which the Commission placed upon Transco to convince the Commission that the property was safe without having set forth reasonable and specific standards “was quite unreasonable in view of the potential conflict with a federally regulated business.” We agree. . “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Company, 333 U.S. 364, 394-395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). . Appellant also attacks a reference in the District Court’s opinion to what allegedly occurred at the administrative proceedings before the Commission. The Court’s remarks were, however, at most parenthetical and this issue is of no import at this point. . Since we have concluded that the District Court’s findings on the safety issue are supported by the record and since the Commission had no applicable criteria of its own, we need not discuss the issue of federal preemption. See generally the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. § 1671 et seq., Florida Lime & Avocado Growers Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963) ; Northern States Power Company v. State of Minnesota, 404 U.S. 1056, 92 S.Ct. 741, 30 L.Ed.2d 744 (1972) ; 1968 U.S.Code Cong-. & Admin. News, p. 3241. . For a comprehensive discussion of the background and scope of NEPA, see Calvert Cliffs’, supra. . Section 102 reads as follows: “The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall — ■ (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations ; (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented. (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of Title 5, shall accompany the proposal through the existing agency review processes; (D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; (E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment ; (F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment; (G) initiate and utilize ecological information in the planning and development of resource-oriented projects, and (H) assist the Council on Environmental Quality established by subchapter II of this chapter.” . The FPC regulations have been amended several times and are now contained in 36 Fed.Reg. 22738 (Nov. 9, 1971). The regulations provide in essence that an application for a certificate pursuant to Section 7 (c) of the Act must submit with the application “a detailed statement of the [five] environmental factors.” This procedure is followed in lieu of an independent FPC inquiry and impact statement and has been held inadequate by the 2nd Circuit. Greene County Planning Board v. F. P. C., 455 F.2d 412 (2nd Cir. 1972). There the Court held that the statement must be prepared by the F.P.C.’s staff and not the appellant. . 35 Fed.Reg. 7390 (April 30, 1970) read in relevant part: “Actions included. The following criteria will be employed by agencies in deeiding whether a proposed action requires the preparation of an environmental statement: (a) ‘Actions’ include but are not limited to: (i) Recommendations or reports relating to legislation and appropriations; (ii) Projects and continuing activities: —Directly undertaken by Federal agencies ; —Supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding assistance ; —Involving a Federal lease, permit, license, certificate or other entitlement for use; (iii) Policy — and procedure-making.”

McQueary v. Laird

BARRETT, Circuit Judge. Appellants, residents of five counties, including or adjacent to the area known as Rocky Mountain Arsenal in Adams County, Colorado, filed an Amended Complaint, in the nature of a class action, against Appellees Melvin Laird, Secretary of the Department of Defense, Stanley R. Resor, Secretary of the Army, and Lt. Col. John A. Bryan, Commander of the Rocky Mountain Arsenal, praying that the Court “ * * * declare that the storage of chemical and biological warfare agents at the Rocky Mountain Arsenal * * * constitutes a deprivation of the rights of the plaintiffs to life, liberty and property without due process of law, all in violation of the Fifth and Ninth Amendments to the Constitution of the United States of America, and contrary to applicable federal statutes * * * and further that this Court enjoin the defendants from storing chemical and biological warfare agents in any shape or manner at the Rocky Mountain Arsenal * * *” The appellees moved to dismiss and/or for summary judgment. On September 11, 1970 the trial court entered its order granting the Motion to Dismiss on the grounds that this is an unconsented suit against the United States and that the court is without jurisdiction over the defendants or the subject matter of the action. This appeal is taken from the Judgment of Dismissal entered September 14,1970. The amended complaint: (1) challenged the authority of the defendants to store, charge and handle the chemical and biological warfare agents at Rocky Mountain Arsenal; (2) alleged that the warfare agents and munitions were stored, charged and handled in an open, hazardous and careless manner, subject to low flying aircraft, earthquakes and sabotage; and (3) alleged that the defendants had not taken proper safety measures to prevent the hazardous conditions in violation of 10 U.S.C. § 172, thus creating a nuisance. Affidavits and other exhibits were filed by the ap-pellees on the Motion to Dismiss and/or for Summary Judgment. The Rocky Mountain Arsenal was established in 1942 during World War II. At the time of its original construction the area was sparsely populated. It was built to produce toxic chemical agents. Mustard gas was produced there in 1942. G.B. Nerve Gas was produced there in 1953. No warfare agents have been produced there since 1957. When this suit was filed the area around the Arsenal was thickly populated. Nearby Stapleton International Airport had become one of the nation’s busiest terminals. Large quantities of chemical and biological warfare agents were stored at the Arsenal. The defendants-appellees filed four affidavits, a report by the National Academy of Sciences and a copy of an F.A.A. letter to airmen. In a nutshell, these exhibits reflect awareness of the dangers asserted and that safety standards and procedures had been adopted on an annual study and inspection basis and complied with. Appellants alleged jurisdiction under Title 10, U.S.C. § 172 (The Military Ammunition Storage Act), 28 U.S.C. § 1361 (mandamus over federal officers, employees and agencies), 28 U.S.C. §§ 2201 and 2202 (declaratory judgment and further relief), 5 U.S.C. § 702 (aggrieved person entitled to review because of agency action), and 28 U.S.C. § 1331(a) (amount in controversy exceeds $10,000 and arises under the Constitution, laws, or treaties of the United States). We agree with the trial court’s judgment that this is an unconsented suit against the United States. No statutes cited and relied upon by the appellants for jurisdiction contain an express waiver of sovereign immunity. The courts shall not entertain an unconsented suit which, while nominally against officers of the United States, is in reality against the Government itself. Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). There is no general statutory jurisdiction over actions against federal officers, employees and agencies. Dugan v. Rank, supra, held that notwithstanding lack of express statutory consent, the doctrine of sovereign immunity does not apply if (1) the actions of the officers are beyond their statutory authority; and (2) although acting within the scope of their authority, the powers exercised or the manner in which they are exercised are constitutionally void. Neither exception applies here. Appellants allege that the appellees have violated their statutory duties as officers under 10 U.S.C. § 172(a) and (b). This Act is known as the Military Storage Act. It clearly constitutes a discretionary grant of the sovereign power. “ § 172. Ammunition storage board (a) The Secretaries of the military departments, acting through a joint board of officers selected by them, shall keep informed on stored supplies of ammunition and components thereof for use of the Army, Navy, Air Force, and Marine Corps, with particular regard to keeping those supplies properly dispersed and stored and to preventing hazardous conditions from arising to endanger life and property inside or outside of storage reservations. (b) The board shall confer with and advise the Secretaries of the military departments in carrying out the recommendations in House Document No. 199 of the Seventieth Congress. Aug. 10,1956, e. 1041, 70A Stat. 8.” Article I, Section 8, Clause 17 of the Constitution of the United States expressly grants the Federal Government the right to acquire lands for the “Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” In addition to the statutory authority, discretionary in nature, to store chemical warfare agents prescribed under 10 U.S.C. § 172, supra, the Congress in 1969 enacted Public Law 91-121, 83 Stat. 209, Sec. 409, providing safeguards relating to shipment of chemical agents to or from any military installation in the United States. Appellants rely primarily for jurisdiction upon 28 U.S.C. § 1361, supra. This statute was enacted in 1962. The Congress granted Federal District Courts original jurisdiction over any action in the nature of mandamus to compel an officer or employee of the United States to perform a duty owed to a plaintiff. This court has interpreted that statute as not granting jurisdiction for the purpose of injunctive or declaratory judgment relief. Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir.1966), cert. denied 385 U.S. 831, 87 S.Ct. 70, 17 L.Ed. 2d 67 (1966). This court has held that the 1962 Act relating to mandamus against federal officers, employees and agencies authorizes the court to issue mandamus only to require the exercise of permissible discretion, or to compel performance of ministerial duties. Udall v. Taunah, 398 F.2d 795 (10th Cir.1968); Prairie Band of Pottawatomie Tribe of Indians v. Udall, supra; Smith v. United States, 333 F.2d 70 (10th Cir.1964). In no event, however, may the court direct the manner in which discretionary acts are to be performed nor may it direct or influence the exercise of discretion in making that decision. In Larson, v. Domestic & Foreign Corp., supra, 337 U.S. at 695, 69 S.Ct. at 1464 the United States Supreme Court said: “It is argued that an officer given the power to make decisions is only given the power to make correct decisions. If his decisions are not correct, then his action based on those decisions is beyond his authority and not the action of the sovereign. * * * we have heretofore rejected the argument that official action is invalid if based on an incorrect decision as to law or fact, if the officer making the decision was empowered to do so. Adams v. Nagle, 303 U.S. 532, 542, 58 S.Ct. 687, 82 L.Ed. 999 (1938). * * * We hold that if the actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign * * * the action itself cannot be enjoined or directed, since it is also the action of the sovereign.” In Cotter Corporation v. Seaborg, 370 F.2d 686 (10th Cir.1966), this court adopted the rule laid down in Larson v. Domestic & Foreign Corp., supra. That rule was again upheld and applied in Pankey Land & Cattle Company v. Hardin, 427 F.2d 43 (10th Cir.1970), where the Court noted that the appellants’ request would require affirmative action on the part of government officials and affect public administration. See also State of New Mexico v. Backer, 199 F.2d 426 (10th Cir.1952) ; Smith v. United States Air Force, 280 F.Supp. 478 (E.D.Pa.1968); Indiana & Michigan Electric Co. v. Federal Power Com’n, 224 F.Supp. 166 (N.D.Ind.1963); Mc-Eachern v. United States, 212 F.Supp. 706 (W.D.S.C.1963), modified in 321 F. 2d 31 (4th Cir.1963). And nothing in this section constitutes an implied waiver of the sovereign immunity of the United States. Smith v. United States, supra. Injunctive relief is not authorized under the above Act. Injunction is a remedy to restrain the doing of an injurious act, whereas mandamus commands the performance of a particular duty. If a federal officer does or attempts to do acts which are in excess of his authority or under authority not validly conferred, equity has jurisdiction to restrain him. Colorado v. Toll, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927 (1925); Harper v. Jones, 195 F.2d 705 (10th Cir.1952). In order to sustain jurisdiction under the 1962 Act, it is necessary for the appellants here to allege and plead that the appellees failed or refused to perform a discretionary duty imposed by law. The only act directly controlling here is the Military Storage Act, 10 U.S.C. § 172, supra. The actions taken by appellees are clearly within the am-bits of that statute and are anchored firmly to Art. I, Sec. 8, Clause 17 of the United States Constitution. The Dugan v. Rank exceptions to the doctrine of sovereign immunity do not apply here. During oral argument the appellants for the first time indicated that jurisdiction may vest by virtue of the National Environmental Policy Act of 1969, Public Law 91-190, 42 U.S.C. §§ 4331-4347. This Act generally requires that every federal agency must consider ecological factors when dealing with activities which affect man’s environment. We know of no decisions rendered nor do appellants cite us to any which recognize standing to invoke jurisdiction under this Act challenging a military or defense facility as hazardous to human health and safety “created by environmental pollution”. 42 U.S.C. § 4393. We observe that the functions vested by law in specific departments or agencies transferred to the Environmental Protection Agency, do not include functions involving the Department of Defense or the Secretary of the Army. See Reorganization Plan No. 3 of 1970 (Dec. 2, 1970), 35 F.R. 15623. We do not intend to imply that the federal officers and agencies charged with the administration and operation of arsenals are exempt from the Act. The statute requires that all agencies of the federal government shall report in detail and consult with the Council on Environmental Quality. 42 U.S.C. § 4332. The Act requires such agency disclosure as will alert the President, the Council, the public, and the Congress to all possible environmental consequences of proposed agency action. Thus, in National Helium Corporation v. Morton, No. 71-1369 (Oct. 4, 1971) this court upheld a restraining order prohibiting the Secretary of the Interior from terminating a contract for purchase of helium in light of the Secretary’s failure to observe the statutory requirements of NEPA that environmental consequences of contemplated action be detailed. 42 U.S.C. § 4332. Under the Helium Act, one of the justifications for government purchase of helium is conservation of this natural resource. It was uncontradicted that the contract termination in that case would result in helium being vented into the atmosphere when the natural gas was consumed as fuel. That case did not involve disclosures relating to a military-defense establishment or national security. Public disclosure relating to military-defense facilities creates serious problems involving national security. We hold that NEPA does not create substantive rights in the plaintiffs-appellants here to raise the environmental challenge in regard to the Rocky Mountain Arsenal. In its proprietary military capacity, the Federal Government has traditionally exercised unfettered control with respect to internal management and operation of federal military establishments. Cafeteria and Restaurant Workers Union, Local 473, A.F.L.C.I.O. v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). Upon cession by a state to the national government of jurisdiction over property to be used for military purposes, the Congress has exclusive jurisdiction to legislate in respect thereto. Howard v. Commissioners, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 (1953); Benson v. United States, 146 U.S. 325, 13 S.Ct. 60, 36 L.Ed. 991 (1892); Murphy v. Love, 249 F.2d 783 (10th Cir.1957), cert. denied 355 U.S. 958, 78 S.Ct. 544, 2 L.Ed.2d 533 (1958). The challenges raised by the appellants in this case fall within that narrow band of matters wholly committed to official discretion which, in recognition of the needs involved in national security, do not blend with tests in an evidentiary hearing. We affirm.

Oregon Natural Resources Council v. Harrell

RYMER, Circuit Judge: This is a companion case to Oregon Natural Resources Council v. Marsh (Marsh VII), 52 F.3d 1485 (9th Cir.1994). ONRC brought this action against Ernest J. Harrell, the Commander and Division Engineer of the Army Corps of Engineers (Corps), John E. Lowe, the Regional Forester of the United States Forest Service, and D. Dean Bibles, the Oregon/Washington Director of the Bureau of Land Management (BLM), after Corps had completed the environmental review process on the proposed Elk Creek Dam by issuing a Record of Decision (ROD). This case raises issues under both the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. § 1271 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C.'§ 4321 et seq. As the factual background is fully set out in the Marsh opinions, we do not repeat it here. The principal issue we must decide is whether Corps should have secured the consent under § 7(a) of the WSRA, 16 U.S.C. § 1278, of the Secretaries of Interior and Agriculture (through the BLM and the Forest Service), who administer the Wild and Scenic area of the Rogue River potentially impacted by the dam, before issuing the ROD or proceeding to request congressional appropriations for completing construction. The district court held that Corps had no duty to obtain a § 7(a) determination before issuing the ROD, but that it was obliged to withdraw the ROD once the Secretaries determined that the dam unreasonably diminishes the fish values of the Wild and Scenic portion of the Rogue River and to refrain from further action prior to obtaining their consent. We hold that consent of the administering departments is not required for this project because it is congressionally authorized. Corps is not an authorizing agency in this case; as such, Corps’ only obligations under § 7(a) are to submit a report to Congress discussing adverse impacts and to give the Secretaries notice sixty days in advance of its intention to request appropriations, if and when it decides to make such a request. Therefore, we disagree with the district court’s order requiring Corps to withdraw its ROD on account of the § 7(a) determination and enjoining Corps from proceeding with the Elk Creek project until the consent of the Secretaries is secured. However, the district court also found that the Second Environmental Impact Statement Supplement (EISS-2) did not adequately consider new information contained in the § 7(a) determination, as well as in a 1991 report by the Endangered Species Committee of the American Fisheries Society (AFS). As Corps has not appealed this ruling, it will have to prepare an additional supplement or an explanation of why supplementation is not required. In either ease the 1992 ROD is rendered inoperative, and we therefore leave in place the order that it be withdrawn. Since the ROD is no longer effective, for prudential reasons we decline to reach ONRC’s challenge to its adequacy. We likewise do not reach ONRC’s contention that the district court erred in concluding that the § 7(a) determination is not reviewable, or alternatively, was not arbitrary and capricious. As Corps has no obligation to seek the Secretaries’ consent for this project, the § 7(a) determination has no direct effect and acts only as new information which the district court has already held the Corps must consider. Finally, ONRC appeals the denial by the district court of two forms of injunctive relief. The district court declined to mandate destruction of the dam or its spillway, which ONRC argues is necessary for salmon and steelhead trout survival. We affirm, as the court was within its discretion to deny such extraordinary relief on the record adduced. The court also refused to order preparation of a supplemental environmental impact statement (EIS), which we also affirm because the fact that new information is significant enough to require consideration does not necessarily mean that it is significant enough to require a supplemental EIS. I In 1962, Congress authorized the Corps to construct a system of three dams in Oregon, known as the Rogue River Basin Project. Two of the dams have been completed and are operational. The proposed Elk Creek dam was about one-third completed when further construction was enjoined as a result of our remand in Marsh II. Marsh III, 677 F.Supp. 1072 (D.Or.1987). Elk Creek is a tributary to the Rogue River, about 55 miles upstream from a part of the river Congress designated as a ‘Wild and Scenic River” under § 3 of the WSRA, 16 U.S.C. § 1274(a)(5). Elk Creek supports wild salmon and steelhead trout runs, which migrate through the Wild and Scenic segment of the Rogue. Congress included the Rogue River in the Wild and Scenic Rivers System in 1968 to protect and enhance its “outstandingly remarkable” values, including the wild salmon and steelhead. In 1971, Corps filed the final EIS with the Council on Environmental Quality (CEQ) for the Elk Creek portion of the project. The first supplemental EIS (EISS-1) was prepared in 1980, and Corps approved construction of the Elk Creek Dam in 1982. Following appropriation of construction funds by Congress in 1985, ONRC and others brought the Marsh action for alleged violations of NEPA. The district court ordered a second supplement in 1990, and in 1991 the Corps issued a final supplemental EIS (EISS-2). In December of 1991, ONRC asked the Corps to secure a § 7(a) determination from the Secretaries of Interior and Agriculture, and on January 16, 1992 ONRC asked the Secretaries to determine whether the dam would unreasonably diminish the values of the Rogue River pursuant to § 7(a). Harrell issued the ROD on January 24, 1992, reflecting the Corps’ decision to go forward with construction of the dam, and adopting the “No Conservation Pool” operating alternative, where the dam would be used only for flood control, with the possibility of water conservation use at some time in the future pursuant to new environmental impact studies. In November, 1992 the BLM and Forest Service jointly issued a § 7(a) determination finding that [t]he unfinished Elk Creek Lake dam results in unreasonable diminishment to the anadromous fisheries resource because of impediments to migration and some loss of spawning and rearing habitat. The condition of diminishment will continue until such time as successful fish passage is assured. In the NCP [No Conservation Pool] Alternative passage is assured only in concept. When the Corps of Engineers is able to complete and implement a system which effectively provides fish passage, the condition would not be considered unreasonable diminishment. It concluded that [t]he problem of fish passage at the dam causes the existing situation and the NCP Alternative, until fully mitigated, to unreasonably diminish the fisheries resource of the Rogue W & SR. In addition, elimination of high quality habitat immediately above the dam decreased potential for recovery of wild coho stocks in the Rogue River. In light of this determination, ONRC demanded that Corps withdraw the ROD, but Harrell refused. This action ensued. On cross-motions for summary judgment, the district court held that the § 7(a) determination contains significant information that has not been considered adequately by Corps in the NEPA process, and remanded for Corps to consider information on extirpation of the coho and steelhead runs in the No Conservation Pool operating mode, the relationship between the potential extirpation of the Elk Creek fisheries and the viability of the Rogue River fisheries, fish passage and how it will affect the summer fisheries, feasibility of passage, spawning and rearing habitat in the area above the dam, and negative interactions of hatchery fish with native stocks. No appeal was taken from this part of the court’s decision. ONRC appeals the district court’s conclusion that the Corps did not have to obtain the Secretaries’ consent before issuing the ROD; its rulings on the § 7(a) determination; its failure to hold that EISS-2 and the ROD violate NEPA in certain respects; and its denial of ONRC’s requests for an order that Corps prepare another supplement and tear the dam down. Corps cross-appeals the court’s order that it take no action before securing the Secretaries’ consent. II ONRC argues that Corps violated the WSRA by approving the construction of Elk Creek Dam prior to a determination of the dam’s impacts on the Wild and Scenic segment of the Rogue River as required by § 7(a). It reads § 7(a) as prohibiting federal agencies from authorizing the construction of any water resources project on a tributary that will unreasonably diminish a Wild and Scenic River’s values, as determined by the Secretary charged with its administration. Corps, on the other hand, argues that its ROD selecting the “No Conservation Pool” Alternative is neither final agency action that is judicially reviewable, nor “assistance” within the meaning of the WSRA because the Act reserves to Congress, not the resource agencies, the decision whether to build a purely federal water resources project. A In its cross appeal, Corps contends that the district court erred in concluding that the issuance of the ROD was reviewable final agency action as the formal record of the decision to implement the chosen alternative (the No Conservation Pool alternative). Marsh VI, 845 F.Supp. at 771. However, we held in Friedman Brothers Investment Company v. Lewis, 676 F.2d 1317, (9th Cir.1982), that a federal agency’s decision that a bus yard qualified for a categorical exclusion from NEPA was reviewable final agency action even though it had not made a final funding commitment. Id. at 1319-20. Moreover, it is more pragmatic to review Corps’ action at the end of the agency’s decision-making process than after Congress has appropriated funds. See Dietary Supplemental Coalition, Inc. v. Sullivan, 978 F.2d 560, 562 (9th Cir.1992) (stating that the “finality element must be interpreted in a ‘pragmatic’ and ‘flexible’ manner.”), cert, denied, — U.S. -, 113 S.Ct. 2333, 124 L.Ed.2d 245 (1993). Since judicial review in this case “will not interfere with any ongoing agency decision-making process,” we hold that the district court had jurisdiction over this action. Friedman, 676 F.2d at 1319. B Section 7(a) provides that no agency shall “assist by loan, grant, license, or otherwise” in the construction of a water resources project with an adverse effect on river values; that such prohibition shall not preclude licensing of or “assistance” to developments above a Wild and Scenic River area which will not unreasonably diminish its values; and that no agency shall recommend authorization of, or request appropriations to begin construction of, any such project that would have an adverse effect on the values for which the river was designated as wild and scenic, without advising the Secretary. The first two sentences thus restrict agencies when they act to assist in the construction of a project; the third sentence establishes procedural requirements when they recommend authorization or request appropriations for such projects. Neither “assist” nor “assistance” is defined in the Act. Under ONRC’s view of § 7(a), federal agencies may not “authorize construction” before notifying the resource agency, which will then consent to issuance of an “authorization” only upon determining that the effects will not diminish relevant values of the Wild and Scenic River. The Corps’ ROD does not, however, “authorize construction” of the Elk Creek Dam. Only Congress can do that. See 33 U.S.C. § 701s (Corps’ authority to implement projects without congressional authorization and appropriation limited to $5 million). ONRC posits that because CEQ regulations require the Corps to issue a “record of decision” before construction of the dam can begin, the ROD constitutes an “authorization ... required by an agency ... of the Federal Government before ... construction of a water resources project” under 36 C.F.R. 297.3. Section 297.3 defines “Federal assistance” as “any assistance by an authorizing agency” including “[a] license, permit, or other authorization granted by the Corps,” id. § 297.3(b), and “[a]ny other license, permit, or authorization which may be required by an agency or Department of the Federal Government before, during, or after construction of a water resources project.” Id. § 297.3(c). As the Corps has no authority to “authorize” construction of a dam of this magnitude, however, we do not see how its decision to adopt the No Conservation Pool Alternative can be an “authorization” which, in turn, amounts to “assistance” requiring prior consent by the Secretaries. If it were, it would mean that a required part of the environmental impact review process is “assistance” to that process; and if that were the case, it would mean that.no work could begin on any part of the NEPA process, if a Wild and Scenic River is implicated, without the Secretaries’ consent. To read § 7(a) in this way would not only turn the review process inside out, but would effectively render the third sentence — providing for notice of intent to seek appropriations to begin construction of a project with adverse effect as determined by the Secretaries — superfluous. ONRC faults the district court for having considered § 7(a)’s third sentence at all, because the ROD neither recommends authorization of the dam nor requests appropriations to build it. By its terms, the third sentence applies when a federal agency intends to recommend authorization or request appropriations to begin construction of a water resources project. While ONRC’s view is correct so far as it goes, it does not thereby follow that the first two sentences do apply. No loan, grant or license is involved in Corps’ ROD, so the only way the first two sentences could apply is if Corps could be said to “assist ... otherwise” than by loan, grant or license in the construction of the dam. The accepted meaning of “assist” is “to give support, aid, or help to.” Webster’s Unabridged Dictionary of the English Language (Portland House 1989). Likewise, “loan, grant or license” connotes an enabling act by an authorizing agency. Thus, the normal sense of “assist by loan, grant, license or otherwise” is action by one entity to make it possible for another entity to engage in construction affecting a Wild and Scenic River. As Corps is the only entity involved in issuing a record of decision, and the only entity involved in constructing the dam (subject to congressional authorization and appropriation), it strains logic as well as language to conclude that by such action it can “assist” itself. Contrary to ONRC’s view that the regulations meld the requirements of § 7(a)’s first three sentences by prohibiting “assistance,” we believe they are consistent with the Corps’ interpretation that § 7(a) is concerned with two different types of projects: those that are federally assisted on the one hand (governed by the first two sentences), and those that are congressionally authorized on the other (governed by the third sentence). Section 297.3 defines “construction” as “any action carried on with Federal assistance.” 36 C.F.R. § 297.3. “Federal assistance,” in turn, “means any assistance by an authorizing agency” including a license, permit or other authorization granted by the Corps. Id. § 297.3(b). Section 297.4 proscribes issuing a “license, permit, or other authorization” for a federally assisted water resources project without a § 7(a) determination. The regulations thus have to do with assistance by means of authorization. They do not suggest that the Corps provides such “assistance” by issuing a record of its own decision to adopt a particular alternative operating mode subject to congressional appropriation. Taken as a whole, the most coherent reading of § 7(a) and its implementing regulations requires that a federal agency giving assistance to others to enable them to take action affecting a Wild and Scenic River must comply with the procedure set out in the first two sentences, whereas an agency taking action directed at Congress, which may authorize or appropriate funds for a project affecting a Wild and Scenic River, must comply with the procedures set out in the third sentence. This- construction comports with such legislative history as there is and squares with the evident intent underlying § 7(a). As Rep. Wayne Aspinall, the Chair of the House Committee on Interior and Insular Affairs, explained: If the Corps of Engineers, for instance, wants to put a development in on any of [these rivers], all it has to do is to advise the Secretary of the Interior ahead of time and inform the Congress what the effects of its development will be. Then if Congress says OK, OK it is. 114 Cong.Ree. 26590 (Sept. 12, 1968); see also 114 Cong.Rec. 28,313 (Sept. 26, 1968) (conference report on bill, suggesting non-federal projects fall under first half and purely federal ones receive congressional review); id. at 3811-12 (House Report discussion of the parts of § 7(a)). The part of the House Report relied on by ONRC is not to the contrary; indeed it supports construing § 7(a) as distinguishing between federal projects (which are to be reviewed by the administering departments and Congress equally) and actions by a federal agency (which may not make loans or grants or provide other forms of assistance without the administering department’s blessing): Designation [of a river] as [a] compo-nente ] of the National Scenic Rivers System means ... that no Federal water project should be constructed on [a Wild and Scenic River] without being thoroughly reviewed both in the Departments and in Congress, that no Federal agency should make any loans or grants for or give any other form of assistance to such a project without assurance from the head of the Department administering the scenic river that the project will not have a direct and adverse effect.... H.R.Rep. No. 1623, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 3801, 3807. Thus, it appears that Congress intended to require the appropriate Secretary’s consent where a federal agency is the authorizing agency, and Congress will not be involved, but not where Congress itself is the decisionmaker. When Congress is in the driver’s seat, it must have intended for the administering Secretary to be informed and to provide input — but not to have a veto. The requirement of notification within sixty days is designed to provide administering secretaries with sufficient time to voice to Congress any concerns they have about the construction prior to congressional action, and Congress makes a determination based on this advice and on the statutorily required report by the Corps on the project’s potential harm to the Wild and Scenic River. This makes sense, because otherwise the administering Secretaries would effectively have power to prevent an agency such as Corps, with a congressional mandate to build a dam, from reporting to Congress and requesting appropriations. It is implausible that Congress would have conferred such authority on the Executive when Congress has the ultimate responsibility for authorizing construction and appropriating funds. In this case, Corps was not acting to license, permit or otherwise authorize a third party to take action, but rather was acting to record its own choice of operating mode for a congressionally authorized dam. As such, the ROD was not “assistance” within the meaning of WSRA § 7(a). Accordingly, the district court correctly held that the Secretaries’ prior consent was not required, but incorrectly concluded that Corps could not proceed with the Elk Creek project, presumably including the issuance of a new record of decision, report or request for appropriations to Congress, without the Secretaries’ consent. So far as this project is concerned, § 7(a) and the Secretaries’ determination (to the extent it, or any future determination, finds a direct and adverse effect on the values for which the Rogue was designated a Wild and Scenic River) only constrains the Corps from requesting appropriations without (a) advising the Secretaries of its intention to seek funding, sixty days in advance, and (b) reporting to Congress in what respects construction would conflict with the purposes of WSRA and would affect the values to be protected. Ill Even though it believes that Corps should be bound by the Secretaries’ determination, ONRC nevertheless submits that the BLM and Forest Service determination of the Elk Creek Dam’s impacts on the Wild and Scenic part of the Rogue River was arbitrary and capricious because it found the elimination of spawning and rearing habitat, alone, will not unreasonably dimmish the fisheries resource. In order to get there, however, ONRC urges that we reverse the district court’s decision that a § 7(a) determination is unreviewable, as it is committed to the Secretaries’ discretion. Because we conclude that the ROD was not “assistance” within the meaning of § 7(a), the determination has no effect on the parties except to the extent that the district court ruled that it contains new information which must be considered by the Corps. Neither that ruling, nor its scope, has been appealed. Therefore, whether the BLM and Forest Service concluded correctly or incorrectly that the dam will not unreasonably diminish the fisheries resource if the Corps is able to complete and implement a system which effectively provides fish passage is immaterial to any issue remaining in the case. On remand, Corps will no doubt take seriously the new information, the Secretaries’ conclusions, and the views of ONRC about the impact on Elk Creek’s spawning and rearing habitat. However, it is unnecessary for us to reach any of these issues. IV ONRC continues its NEPA challenge, begun in Marsh, on the adequacy of EISS-2. ONRC claims that EISS-2 fails to disclose adequately the current need for the dam, and fails to disclose and discuss adequately possible mitigation measures. The district court did not address either claim directly, perhaps because it believed it had disposed of the NEPA issues remaining after remand. As explained in Marsh VII, 52 F.3d 1485, the remand was limited to evaluation of the cumulative impacts of the Elk Creek Dam along with Applegate and Little Lake Dams on the Rogue River basin. However, as the district court recognized, the limited nature of the remand did not immunize Corps from complying with NEPA in other respects. A ONRC argues that Corps’ discussion of mitigation should, but did not, indicate how well the measures that might be used would work. In particular, it maintains that Corps, in addition to its discussion of mitigation through hatchery replacement, should have identified protection and enhancement of natural anadromous fish habitat elsewhere in the basin as a possible way of mitigating the loss of habitat due to the dam. During the comment period, exploration of this option was suggested by the Department of the Interior and Oregon Department of Fish and Wildlife. The Department of Interior specifically observed that while mitigation by way of the hatchery “would be consistent with the initial planning objectives for the Rogue River Basin Project, it is not consistent with the present management emphasis for wild stocks in the Rogue River Basin.” In the EISS-2 Appendix, Corps responded to these comments by stating that it had been determined at the time the first of the three dams was built that mitigation would be through hatcheries, and that resource agencies had agreed. Further, Corps pointed to the cost of building the hatchery and asserted there was no justification for the cost of other off-site mitigation. ONRC faults Corps for its failure to respond more thoroughly to the suggestion that, preservation and enhancement of the fish spawning areas would be better than the hatchery measure, in light of changed scientific perspectives on how best to treat the Rogue River basin fish issues and the actual effects of hatchery fish. Although Corps argues that the mitigation discussions in EIS and EISS-1 were adequate, that no additional mitigation need was identified as a result of the cumulative impacts discussion, and that it is mitigating through hatcheries and its trap and haul program, it represents that mitigation “is continuing to be discussed, as the federal and state agencies work together to design and evaluate fish passage options.” The district court’s order already requires Corps to consider the new information provided in the Secretaries’ § 7(a) determination and the report by the Endangered Species Committee of the AFS. The § 7(a) determination states that “updated science has shown there are significant differences between hatchery and wild stocks” and indicates that the hatchery may be inadequate mitigation for the loss of habitat. -Analyses of these documents on remand will require Corps to consider the extent to which-current programs and its plan for mitigation under the No Conservation Pool Alternative will provide adequate mitigation. The consideration required by the district court order will necessarily entail consideration of other mitigation alternatives which address fish passage options and spawning and rearing habitat. See Marsh VI, 845 F.Supp. at 768 (explaining the significance of the new information contained in the § 7(a) determination and AFS report pertaining to spawning and rearing habitat and fish passage). B ONRC also contends that because circumstances have changed significantly over the past thirty years, and the need for flood control is no longer as important as it once was, EISS-2 fails accurately to specify the current need for the dam. It points to a 1982 report from the Comptroller General which recommended that Corps recalculate the expected benefits from the dam in light of changes in the growth rate and greater restrictions on development along the river. Regardless of whether EISS-2 should have discussed the current need in more detail, we cannot say that, fairly read, information in the Comptroller General’s report is not significant new information. As with the other new information Corps is to consider on remand, Corps must make “a reasoned decision based on its evaluation of the significance — or lack of significance — of the new information” whether supplementation is necessary, and if not, explain why this information does not merit supplementation. Marsh IV, 490 U.S. at 373-78, 109 S.Ct. at 1859-61. V ONRC expands its NEPA challenge in this action to the ROD, contending that it does not state whether all practicable mitigation measures had been adopted and if not, why not, and that it fails to adopt a monitoring and enforcement program as required by 40 C.F.R. § 1505.2(c). We do not reach this issue because the district court’s order withdrawing the 1992 ROD moots the question. A record of decision comes at the end of the pre-decision, environmental review process and is intended to make public the agency’s decision, to identify the alternatives considered and which are environmentally preferable, to state whether all practicable means to avoid or minimize environmental harm have been adopted, and to summarize the monitoring and enforcement program that has been adopted. Id. § 1505.2. As the environmental impact statement supplement upon which the 1992 ROD was based must be supplemented in light of our decision in Marsh VII, that record of decision can no longer be taken as the Corps’ operative decision. Accordingly, we must decline to give an advisory opinion as to its sufficiency. As with the new information on the table, however, we assume the Corps will carefully consider these claimed deficiencies. VI A ONRC asked the district court to enter an order enjoining Corps either to demolish the structure or to remove the dam’s spillway section. It claims both remedies are warranted, since eliminating the obstruction is the only way to prevent Elk Creek’s wild anadromous fish runs from being lost. While recognizing that ONRC made a compelling case for doing something about the partially-completed dam to save the fisheries, the district court believed it was appropriate to give the agencies with expertise an opportunity to respond to the new information on remand before ordering the mandatory relief ONRC sought. Mandamus may be granted when “(1) the plaintiffs claim is clear and certain; (2) the duty is ‘ministerial and so plainly prescribed as to be free from doubt’; and (3) no other adequate remedy is available.” Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986) (citations omitted). The extraordinary remedy of mandamus lies within the discretion of the trial court, even if the three elements are satisfied. Id. Whether each element of the mandamus test is satisfied is a question of law reviewed de novo. Id. When the effect of a mandatory injunction is the equivalent of mandamus,' it is governed by the same standard. Id. (citing Miguel v. McCarl, 291 U.S. 442, 452, 54 S.Ct. 465, 467, 78 L.Ed. 901 (1934)). Assuming for purposes of this appeal that equitable relief of the sort requested is available, and that ONRC can meet the first two prongs, there is no showing of the lack of other adequate remedy. The district court remanded for the Corps to consider new information on fish passage, habitat, and mitigation, among other things. Nor does either party discuss the impact of the act of taking down the dam itself. Even though labeled as a request for permanent injunctive relief, the remedy ONRC seeks is essentially temporary in nature: an injunction against leaving the partially-completed dam in place until completion of the decision-making process. Even without a fully developed record, it is obvious that destruction, and possible reconstruction, of any portion of the dam is likely to have environmental consequences. In the meantime, Corps has instituted a trap and haul program to help sustain the wild coho. Although there is no assurance as to how successful it will be, there also is no showing that it is likely to be so unsuccessful in the short term that the dam should be torn down forthwith. ONRC’s evidence pertains mainly to the long term hazards of the dam and the ineffectiveness of the trap and haul program as a long term solution. However, since the remedy sought is removal of the dam or spillway until the decision-making process is completed, evidence that the dam will destroy habitat and possibly extirpate the fish eventually does not compel demolition of the structure now. We cannot say that the district court abused its discretion in declining the extraordinary remedy of mandating destruction of the partially constructed dam. While ONRC demonstrated some flaws in the decision-making process, the district court was within its discretion to allow Corps to address those concerns on remand before ordering the relief requested. B ONRC argues that the district court erred in declining to order Corps to prepare a third supplement. The regulations require a supplemental EIS if there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(e)(l)(ii). ONRC argues that since the district court found that the AFS report and the § 7(a) determination “contain significant information that has not adequately been considered” in the NEPA process, it was bound to order supplementation. The court’s finding, however, does not compel this relief. On remand, the Corps will have to take a hard look at the proffered new information; it may find “that the new and accurate information contained in the documents was not significant and that the significant information was not new and accurate.” Marsh IV, 490 U.S. at 385,109 S.Ct. at 1865. That decision, in turn, can be reviewed for whether it was arbitrary and capricious. The court was within its discretion in denying the requested relief. VII We conclude that Corps had no obligation to secure the prior approval of the Secretaries of Interior and Agriculture under § 7(a) of the WSRA before issuing its record of decision, and affirm on this issue. We reverse the district court’s holding that Corps may not proceed with the Elk Creek project until the consent of the administering Secretaries is secured, and therefore vacate that portion of its order; we affirm the district court’s order that the ROD should be withdrawn, but on the ground that the ROD has been rendered inoperative by our opinion today in Marsh VII. In light of these conclusions, ONRC’s appeal of the district court’s dismissal of the actions against Bibles and Lowe and its challenge to the adequacy of the ROD are dismissed as moot. We reverse to the extent that the court did not also require Corps to consider new information having to do with the current need for the dam. We affirm the denial of injunctive relief and the refusal to order preparation of a third supplemental EIS. Each side shall bear its own costs on appeal. APPEAL DISMISSED IN PART; AFFIRMED IN PART; REVERSED IN PART; and VACATED IN PART. .Marsh was filed in 1985 and challenges compliance by the Army Corps of Engineers with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The published history of the Marsh litigation is substantial: In ONRC v. Marsh (Marsh I), 628 F.Supp. 1557 (D.Or.1986), the district court found that Corps complied with all relevant NEPA provisions. We reversed in ONRC v. Marsh (Marsh II), 832 F.2d 1489 (9th Cir.1987). The district court then enjoined further construction while Corps went back to the drawing board in light of Marsh II. ONRC v. Marsh (Marsh III), 677 F.Supp. 1072 (1987). Meanwhile, the Corps petitioned for certiorari on all issues resolved in Marsh II except the inadequacy of its cumulative impacts analysis; the Supreme Court, in turn, reversed Marsh II. Marsh v. ONRC (Marsh IV), 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). After remand, ONRC v. Marsh (Marsh V), 880 F.2d 242 (1989), the district court dismissed the action and denied ONRC’s request to tear down the partially completed dam. This opinion, reported at ONRC v. Marsh (Marsh VI), 845 F.Supp. 758 (D.Or.1994), is the subject of the related appeal in which we affirm in part, reverse, in part, and remand for a determination of attorneys’ fees and further supplementation. The district court’s opinion in Marsh VI treated Harrell as if it were consolidated. We shall therefore continue to refer to that opinion as Marsh VI, even though our disposition of the two appeals is separate. . Other parties collectively referred to as "ONRC” are Oregon Guides and Packers Association, Inc., Rogue Flyfishers, Inc., Waterwatch of Oregon, Inc., and American Rivers, Inc. . The federal parties are jointly represented on the brief. We therefore refer to them collectively as “Corps" when relating their positions on appeal. As Lowe and Bibles are sued only in their official capacity, we refer to their actions as actions by the Secretaries of Interior and Agriculture, which are the departments charged with administering the Wild and Scenic parts of the Rogue River that are at issue in this case. . National Wildlife Federation filed a brief as amicus curiae in support of ONRC's position on the issue of whether the Cotps must secure the consent of the Secretary of Agriculture before issuing a record of decision to construct the Elk Creek Dam. . WSRA § 7(a), 16 U.S.C. § 1278(a), provides in relevant part: ... no department or agency of the United States shall assist by loan, grant, license, or otherwise in the construction of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secretary charged with its administration. Nothing contained in the foregoing sentence, however, shall preclude licensing of, or assistance to, developments below or above a wild, scenic or recreational river area or on any stream tributary thereto which will not invade the area or unreasonably diminish the scenic, recreational, and fish and wildlife values present in the area on the date of designation of a river as a component of the National Wild and Scenic River System. No department or agency of the United States shall recommend authorization of any water resources project that would have a direct and adverse effect on the values for which such river was established, as determined by the Secretary charged with its administration, or request appropriations to begin construction of any such project, whether heretofore or hereafter authorized, without advising the Secretary of the Interior or the Secretary of Agriculture, as the case may be, in writing of its intention so to do at least sixty days in advance, and without specifically reporting to the Congress in writing at the time it makes its recommendation or request in what respect construction of such project would be in conflict with the purposes of this chapter and would affect the component and the values to be protected by it under this chapter.... . The regulations provide that until an agency issues an ROD, no action shall be taken which would have an adverse environmental impact or limit the choice of reasonable alternatives. 40 C.F.R. § 1506.1(a); see 40 C.F.R. § 1505.2. . ONRC requests that we order Corps to prepare a new supplement in response to this new information. Although we decline to do so, we note that supplementation was ordered on other grounds in our opinion today in Marsh VII, 52 F.3d 1485, and Corps may choose to address the new information in that supplement.

Valley Citizens for a Safe Environment v. Aldridge

BREYER, Chief Judge. In Valley Citizens for a Safe Environment v. Aldridge, 886 F.2d 458 (1st Cir.1989), we upheld the legal adequacy of an Environmental Impact Statement (EIS) that the Air Force wrote in 1987 before it decided to transfer 16 C-5A transport airplanes from Dover, Delaware, to an air base in western Massachusetts. The Air Force subsequently transferred the airplanes. Then, in 1991, at the time of Operation Desert Storm, the Air Force decided to increase transport activity at the Massachusetts base. In connection with this increased activity, the Air Force prepared two further studies, an Environmental Assessment (EA) and an Air Installation Compatible Use Zone study (AICUZ). After reading the EA and the AICUZ, the plaintiff in Valley Citizens moved to reopen that case on the ground that the new documents show that the original 1987 EIS was seriously flawed. Fed.R.Civ.P. 60(b)(6) (“court may relieve a party ... from a final judgment” for “any other reason justifying relief”). The district court denied the motion. The plaintiff appeals. A district court will grant a Rule 60(b)(6) motion only if it finds “exceptional” circumstances that justify “extraordinary” relief. United States v. One Urban Lot, 882 F.2d 582, 585 (1st Cir.1989) (“Rule 60(b) contains ‘extraordinary relief which should be granted ‘only in exceptional circumstances’ ”) (quoting Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir.1986)); see Ackermann v. United States, 340 U.S. 193, 202, 71 S.Ct. 209, 213, 95 L.Ed. 207 (1950) (“the circumstances of petitioner ... [are not] so extraordinary as to bring him within ... Rule 60(b)(6).”); see also Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.Cir.1980) (upholding granting of 60(b) motion where “previously undisclosed fact ... central to the litigation” shows “initial judgment to have been manifestly unjust”). The Federal Rules grant broad authority to the district court to determine whether or not those circumstances exist. See Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir.1992) (“[m]otions brought under Civil Rule 60(b) are committed to the district court’s discretion”) (citing cases). Accordingly, we can reverse a decision denying that relief only where we find that the district court acted outside its broad discretion. See United States v. Parcel of Land and Residence at 18 Oakwood Street, 958 F.2d 1, 5 (1st Cir.1992) (“We review a district court’s denial of post-judgment relief under rule 60(b) only for abuse of discretion.”) (citing cases). We can find no such abuse of the district court’s powers here. Plaintiff’s central claim was not actually made in the court below. Normally we would not consider it. Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59, 953 F.2d at 21 (“absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal”) (citing cases). However, in order to avoid significant added expenditure of legal time and effort should plaintiff pursue this argument in further proceedings, and because plaintiff’s claim, even if not waived, would not change the result, we shall briefly explain why we find the claim without merit. Plaintiff’s claim that “exceptional circumstances” justify reconsidering a closed judgment rests upon the Air Force having used, in the later EA and the AI-CUZ, a method for calculating likely “noise disturbance” that differs somewhat from the method used in the earlier EIS. As we understand plaintiff’s argument, in the EA, the Air Force calculated the amount of noise that would occur on a typical day by averaging, roughly speaking, the total amount of C-5A noise emitted in a year over 3.23 X 52, which is the average number of days per week that the planes would fly, multiplied by 52 weeks. The result is the average noise made in a day when C-5A airplanes are likely to fly, assuming they fly 3.23 days per week. In the original EIS, the Air Force had calculated the amount of noise that would occur on a typical day by averaging the total amount of noise in a year over 5 X 52. The result is the average noise made on a day when C-5A planes fly, assuming they fly five days each week. The calculation in the EA (that is, 3.23 X 52) produced a higher average daily noise level. Indeed, plaintiff says, if one applies the EA’s methodology to the period that the 1987 EIS was supposed to cover, one would estimate that the noise would “highly annoy” more than 3000 people. The original EIS predicted the noise would “highly annoy” only about 771 people. The plaintiff adds that both these approaches are wrong. Rather, plaintiff says, the Air Force should have divided the total yearly noise level by the actual number of days in a year, namely 365. And, had the Air Force done so in the initial EIS, it would have produced a number that was so low that everyone could have immediately seen that its entire “noise disturbance” methodology made no sense. The problem with plaintiffs argument is that we did not uphold the EIS the first time on the ground that the Air Force “noise disturbance” methodology was a perfect, or even a very good, method for predicting just how much noise there would be or how many people that noise would annoy. We simply said that, given the host of uncertainties and difficulties surrounding the creation of such a methodology, we could not “say that the Air Force was unreasonable in using the ... methodology” in the EIS. Valley Citizens, 886 F.2d at 469. We stated that, “[although we approve its use here ... we do not imply that it is immune from criticism or legal attack.” Id. And, we went on to note that, “the place to attack standard methodology, at least in the first instance, is before the agency, not before a reviewing court.” Id. We concluded: Given the commentators’ failure to launch any such attack in their comments [on the EIS], the fact that the methodology is well accepted, and at least a very rough fit between methodology and problem, we find its use in the final EIS reasonable. Id. The matters to which the plaintiff points do not show that the Air Force’s use of its initial methodology in the EIS was unreasonable. An obvious explanation for the difference would be that, in 1987, the Air Force thought the C-5As would fly an average of five days per week, while later experience showed they flew, on average, 3.23 days per week. Regardless, we can find nothing in this change so “exceptional” as to require reopening the case to change our previous conclusion. The plaintiff was not (or should not have been) misled by the original EIS. Plaintiff had the relevant numbers and was able to trace the study’s calculations; the EIS stated that the calculations for average noise were “based on 5 days of flying operations per week.” The plaintiff had every opportunity to argue that the Air Force should have used a figure of seven days per week, and that such a figure would have shown an incredibly small number of highly annoyed people. Even if the Air Force has changed its view about how best to measure or state such matters, that change does not show that the initial methodology was so seriously flawed in so hidden a way as to provide adequate grounds for requiring a district court to reconsider a final judgment. We can find nothing else in the plaintiff’s other arguments that comes close to providing grounds for reopening. As plaintiff points out, the Air Force has recently decided to prepare a Supplemental EIS (SEIS). But that fact does not indicate that the original EIS was inadequate. The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4361, does not deal specifically with the requirements for preparation of an SEIS, but regulations of the Council on Environmental Quality explain that an agency shall prepare a supplement to an EIS if (1) “[t]he agency makes substantial [relevant] changes in the proposed action;” or (2) “[t]here are significant new circumstances or information relevant to environmental concerns.” 40 C.F.R. § 1502.9(c)(1). An agency may also prepare an SEIS when it determines “that the purposes of [NEPA] will be furthered by doing so.” 40 C.F.R. § 1502.9(c)(2). See also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989) (standards for preparation of SEIS). Nothing in these regulations suggests that preparation of an SEIS assumes or reflects that an earlier EIS was not adequate. Here, the Air Force decided to prepare the SEIS once it became clear that actual operations differed significantly from those contemplated at the time the EIS was prepared. This is clearly a proper reason under the regulations, irrespective of the adequacy of the original EIS. Cf. Stop H-3 Ass’n v. Dole, 870 F.2d 1419, 1426-27 (9th Cir.1989) (decision to prepare SEIS after EIS approved does not “deprive the ... EIS of its status as a Final EIS”). Similarly, we find nothing of legal significance in the fact that affidavits of those who reside near the air base, as well as the EA, indicate that the EIS significantly underestimated the number of people who would be “highly annoyed” by the G-5A flights. The plaintiff submitted such affidavits the first time. The Air Force readily admits that the frequency of C-5Á missions has varied from those expected at the time the EIS was prepared. (Indeed, it is precisely for this reason that the Air Force decided to prepare an SEIS.) And, nothing before us suggests the Air Force deliberately misestimated the number of days on which missions would be flown. It is settled law that the reasonableness of an agency action is determined in light of the information before the agency at the time of the decision. See Valley Citizens, 886 F.2d at 460 (“The relevant legal question therefore is normally whether the Statement is ‘adequate’ in light of the information and comments before the agency at the time it produced the Statement.”) (citing cases); Wisconsin Elec. Power Co. v. Costle, 715 F.2d 323, 326-27 (7th Cir.1983); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam). We express no view on the adequacy of the SEIS, which the Air Force is preparing and which is not before us. The judgment of the district court is Affirmed.

Coker v. Skidmore

PER CURIAM: Col. Francis R. Skidmore and all other defendants (“Appellants”) appeal from an order of the district court enjoining construction of a levee on the Yazoo River and the condemnation of associated lands until such time as the U.S. Army Corps of Engineers (“Corps”) prepares a supplemental Environmental Impact Statement (“EIS”) covering the levee construction. Coker v. Skidmore, 744 F.Supp. 121, 126 (S.D.Miss.1990). Because we find that the district court failed to apply Council on Environmental Quality (“CEQ”) requirements for preparation of a supplemental EIS, we reverse and vacate the injunction. I Facts and Procedural History The facts are largely undisputed. This case concerns the requirements under the National Environmental Policy Act (“NEPA”) for construction by the Corps of approximately 5.4 miles of levee along the Yazoo River in Mississippi, as part of the Upper Yazoo portion of the Yazoo River Basin Flood Control Project (“Project”). The Project covers 13,400 square miles in northwest Mississippi. In 1975, the Corps prepared a programmatic final EIS for the Project. The Project as a whole consists of three separately authorized components: the Yazoo Backwater Area Project, the Big Sunflower River Basin Project, and the Ya-zoo Headwater Project. The Upper Yazoo Projects (“UYP”) is a subproject of the Yazoo Headwater Project. One component of the UYP is Item 3A-2, which contemplates approximately 7.2 miles of channelization work and 5.4 miles of levee work on a portion of the Yazoo River. The proposed levee would prevent major river overflow at the City of Belzoni, Mississippi. On May 29, 1990, J.C. Coker, III (“Coker”), a private landowner whose property would be condemned for construction of the levee, filed a complaint for declaratory and injunctive relief. Coker’s complaint alleged that the Corps had violated NEPA in failing to issue a supplemental EIS as to Item 3A-2. Prior to trial, on July 24, 1990, the Corps issued a final Environmental Analysis (“EA”) and concluded with a draft Finding of No Significant Impact (“FONSI”) as to the levee portion of Item 3A-2. Prior to that time, the Corps had stated its plans to prepare a supplemental EIS for the channelization portion of Item 3A-2 and also all other uncompleted portions of the Yazoo Headwater Project. The FONSI concluded, as to the levee, that a supplement to the finaí EIS was not required. The parties agreed to forego a hearing-on the plaintiffs’ motion for a preliminary injunction and went to trial on the merits. On September 4, 1990, the district court issued an order enjoining the Corps from constructing the levee and condemning associated lands prior to preparation of a supplemental EIS for the remaining uncompleted portions of the Project, including the levee. The district court found that the Corps had not improperly separated, or segmented, the levee from the channelization because the levee could exist apart from the channelization. The court also determined that while “there is no evidence before the Court of a significant environmental impact from the levee itself,” nevertheless the procedural requirements of NEPA would not be satisfied until a supplemental EIS on the remaining uncompleted portions of the Project and an environmental evaluation of the levee was complete. 744 F.Supp. at 125-26. The district court based this holding on its conclusion that Skidmore had admitted that the original EIS was outdated. The district court enjoined construction of the levee pending preparation of a supplemental EIS. Appellants appeal the injunction issued by the district court. II. Discussion NEPA requires federal agencies proposing major federal acts significantly affecting the quality of the human environment to prepare an EIS. 42 U.S.C. § 4332(2)(C). The Corps prepared an EIS for the Project in 1975. An EIS is a detailed statement by the responsible official concerning, among other things, the environmental impact of the proposed action. Id. The CEQ issues regulations governing compliance with NEPA by federal agencies. 40 C.F.R. § 1500.1 et seq. The CEQ regulations provide that, in deciding whether to prepare an EIS, a federal agency must initially determine whether the proposed action is one that either (1) normally requires the preparation of an EIS or (2) is categorically excluded. 40 C.F.R. § 1501.-4(a). If the proposed action falls into neither category, the agency must prepare an EA to determine whether there is a significant potential impact to the environment which would necessitate the preparation of an EIS. 40 C.F.R. § 1501.4(b). If a significant impact is indicated, an EIS must be prepared. If no significant impact is found, a FONSI is issued by the agency. 40 C.F.R. § 1508.13. When a series of related actions is planned by an agency, the agency may choose one of two alternatives: (1) the preparation of a single programmatic EIS for the entire series of projects, or (2) division of the actions with preparation of a separate EIS, EA, or FONSI for each action. Because some projects are too large to complete at one time and must be divided into parts, an agency can rely upon tiering. Appellants contend that the Corps can rely upon tiering to avoid preparation of an EIS on the levee based upon the original 1975 programmatic EIS and the issuance, pursuant to the EA, of a FONSI regarding the levee. According to the district court, if the Corps has a valid programmatic EIS, it may rely on tiering as to the levee. The district court found, however, that the 1975 EIS was outdated and therefore invalid. The central question before it, determined the district court, was whether an EIS can become so outdated that it can no longer provide the foundation upon which a sub-part, such as the levee, can be tiered. 744 F.Supp. at 125. The district court answered in the affirmative. The issue before this court is not whether an EIS can become outdated, but whether the 1975 EIS in the instant case was insufficient so as to require the preparation of a supplemental EIS before construction of the levee. CEQ regulations state that an agency must supplement an EIS if: i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. § 1502.9(c). Corps regulations provide, in relevant part, that “[a] supplement to the draft or final EIS on file will be prepared whenever significant impacts resulting from changes in the plan or new significant impact information, criteria or circumstances relevant to environmental considerations impact on the ... proposed action.” 33 C.F.R. § 230.11(b). The Corps issued a FONSI based on its EA concluding that the levee would not cause significant environmental impacts and that a supplement for the extant EIS was not required. The district court apparently agreed with the FONSI, holding that “there is no evidence before the Court of the possibility of a significant environmental impact from the levee itself.” 744 F.Supp. at 125-26. A reviewing court will not set aside an agency decision not to supplement an EIS under NEPA unless the decision was “arbitrary and capricious.” See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 1860-61, 104 L.Ed.2d 377 (1989). The district court held that the Corps’ decision “not to supplement the EIS was arbitrary and capricious, given that by Defendants’ own admission substantial portions of the 1975 EIS are outdated.” 744 F.Supp. at 125. This court reviews the district court’s review of the Corps’ decision de novo, inasmuch as it involves the district court’s conclusions of law concerning the sufficiency of the EIS. See In re Fredeman Litigation, 843 F.2d 821, 824 (5th Cir.1988); Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1177 (9th Cir.1990); Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1422 (9th Cir.1989), amended, 899 F.2d 1565 (9th Cir.1990). We find that the district court erred in holding that the Corps’ decision not to supplement the EIS before commencing construction of the levee was arbitrary and capricious. The district court did not make the findings necessary to support an order requiring a supplemental EIS as to the levee under the Corps or CEQ regulations. A court may only order the preparation of a supplemental EIS if “there are significant new circumstances ... relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R:’ § 1502.9(c); cf 33 C.F.R. § 230.11(b). The district court did not make such a finding, and it is not implicit in the court’s opinion. Cf. Fritiofson v. Alexander, 772 F.2d 1225, 1248 (5th Cir.1985). To the contrary, the district court found that there was “no evidence ... of the possibility of a significant environmental impact from the levee itself.” 744 F.Supp. at 125-26. In determining whether the Corps’ decision not to prepare a supplemental EIS was “arbitrary and capricious,” the district court “ ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Marsh, 490 U.S. at 378, 109 S.Ct. at 1861 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971)). Inasmuch as the district court essentially restated the critical assessment of the Corps’ FONSI, the Corps made no clear error of judgment, and the district court erred in subsequently finding the Corps’ decision arbitrary and capricious. The district court held that compliance with NEPA requires the Corps to update the “outdated” EIS. 744 F.Supp. at 126. An EIS need not be supplemented whenever new information concerning a project comes to light. See Marsh, 490 U.S. at 373, 109 S.Ct. at 1859. Nor need the Corps update an EIS when portions of it become out-of-date. Cf. Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011, 1036 (2nd Cir.1983) (“mere passage of time rarely warrants an order to update the information to be considered by the agency”). CEQ regulations only require a supplemental EIS if there are “significant new circumstances” that arise concerning the levee. See 40 C.F.R. § 1502.9(c)(1); cf. 33 C.F.R. § 230.11(b) (“significant impacts”). The district court did not make a finding of “significant new circumstances,” and in fact explicitly found no possibility of a significant environmental impact. 744 F.Supp. at 125-26. Absent the findings required by the CEQ regulations, the district court erred in requiring the preparation of a supplemental EIS. Inasmuch as the district court and the Corps agree on the basic conclusion of the Corps’ FONSI, that the levee presents no possibility of significant environmental impact, issuance of the injunction was improper. Construction of the levee should no longer be delayed. III. Conclusion For the foregoing reasons the district court’s order enjoining construction of the Item 3A-2 levee and condemnation of associated lands is VACATED. The mandate shall issue forthwith. . Appellants are Skidmore, in his official capacity as District Engineer, Vicksburg District, U.S. Army Corps of Engineers; Ltg. Henry J. Hatch, in his official capacity as Chief of Engineers, Dept, of the Army; Roberts W. Page, in his official capacity as Assistant Secretary of the Army, Civil Works; and Michael P.W. Stone, in his official capacity as Secretary of the Army. The district court permitted the intervention of Board of Mississippi Levee Commissioners and Board of Levee Commissioners for the Yazoo Mississippi Delta as defendants. . Suit was brought by Coker and Martha Barn-well, individually and as Conservator of Ida Lena Hearn Kimbrough. The district court permitted the intervention of Mississippi Wildlife Federation as plaintiff. .Coker’s complaint sought the following relief: (1) that the Corps be enjoined from proceeding with Item 3A-2; (2) that the Corps’ attempt to issue an Environmental Analysis on the levee portion of Item 3A-2 be declared unlawful and set aside; (3) that the Corps’ attempt to proceed with Item 3A-2 without preparing an EIS be declared unlawful and set aside; (4) attorney’s fees; and (5) other appropriate relief. Coker also filed a Motion for Preliminary Injunction. . We note that there is no explanation in the record below for the fact that a trial was held in this case, rather than simply a review by the district court of the record of the Corps’ proceedings. Ordinarily review of administrative decisions should be confined to consideration of the decision of and record before the agency. See, e.g., Federal Power Comm'n v. Transcontinental Gas Pipeline Corp., 423 U.S. 326, 331, 96 S.Ct. 579, 582, 46 L.Ed.2d 533 (1976); Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 327 n. 8 (5th Cir.1988); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904-05 (5th Cir.1983). . According to the district court, "the decision of the Corps not to supplement the EIS in the instant case was arbitrary and capricious, given that by Defendants' own admission substantial portions of the 1975 EIS are outdated.” 744 F.Supp. at 125. . The CEQ regulations explain tiering as follows: Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review. 40 C.F.R. § 1508.28. Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action. The subsequent document shall state where the earlier document is available. Tiering may also be appropriate for different stages of actions. 40 C.F.R. § 1502.20. . CEQ regulations define the term "significantly," in relevant part, as follows: "Significantly” as used in NEPA requires considerations of both context and intensity: (a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Signifi-canee varies with the setting of the proposed action.... (b) Intensity. This refers to the severity of impact_ The following should be considered in evaluation of intensity: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial. (2) The degree to which the proposed action affects public health or safety. (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the effects on the quality of the human environment are likely to be highly uncertain or involve unique or unknown risks. (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat.... (10) Whether the action threatens a violation of Federal, State, or local law.... 40 C.F.R. § 1508.27. .An agency "may also prepare supplements when [it] determines that the purposes of [NEPA] will be furthered by doing so.” 40 C.F.R. § 1502.9(c). . “To require otherwise would render agency decisionmaking intractable, always awaiting updated information only to find the new information outdated by the time a decision is made.” Marsh, 490 U.S. at 373, 109 S.Ct. at 1859. . The parties devote considerable space in their briefs to the issue of whether Col. Skid-more’s testimony constituted an admission that the EIS was "outdated.” Because the term "outdated" is not a term of art in the CEQ regulations, and the district court failed to make the required statutory findings on the necessity for supplementing the EIS for the levee, we will not address the issue of whether the district court erred in its assessment of Col. Skidmore’s testimony as an admission.

Forest Guardians v. United States Forest Service

LUCERO, Circuit Judge. Forest Guardians appeal a district court decision finding that the United States Forest Service (“USFS”) complied with the relevant laws in approving the County Line Vegetation Management Project. They argue that USFS: (1) violated the National Forest Management Act (“NFMA”), 16 U.S.C. § 1604(b), by failing to collect actual population data for management indicator species (“MIS”); (2) failed to provide substantial evidence for its conclusion that the relevant soil standard would be met; and (3) violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., by failing to consider the impacts of logging trucks on neighboring landowners. We take the district court’s view of the matter and reject Forest Guardians’ first and third claims on the merits. We further conclude that Forest Guardians did not present their second claim in their administrative appeal and have thus forfeited it. Accordingly, we AFFIRM. I The Rio Grande National Forest covers nearly two million acres in southern Colorado, including the headwaters of the historic Rio Grande. Spanning both sides of the Continental Divide, it encompasses a wide variety of breathtaking landscapes, from alpine desert to the organ pipes of the Wheeler Geologic Area, long silenced after their deafening creation from the volcanic froth of the Creede Caldera. Pursuant to the NFMA, USFS management of the forest is guided by the Rio Grande National Forest Land and Resource Management Plan (the “Forest Plan”), which was comprehensively amended in 1996 to comply with the USFS regulations that were then in effect. See Nat’l Forest Sys. Land and Res. Mgmt. Planning, 47 Fed. Reg. 43,026 (Sept. 30,1982) (formerly codified at 36 C.F.R. § 219) (the “1982 Regulations”). Following an administrative appeal brought by several environmental groups, USFS determined that additional amendments to the Forest Plan were necessary. Under the 1996 plan, USFS failed to designate MIS as was then required by 36 C.F.R. § 219.19(a)(6). MIS, like canaries in coal mines, are used as proxies for environmental health; problems in MIS populations indicate larger ecosystem trouble. In 2003, USFS again amended the Forest Plan to remedy its MIS shortcoming. In the Environmental Assessment accompanying that amendment, USFS stated, “The primary purpose of the MIS amendment is to assure that species viability is measured and monitored as directed in 36 C.F.R. 219.19.” Similarly, in its Decision Notice/Finding of No Significant Impact for the amendment, USFS concluded “MIS selection, monitoring, and assessment need to meet the intent of monitoring and evaluating MIS as described in the 1982 planning regulations (36 C.F.R. 219.19).” Towards that end, USFS selected nine MIS for the Rio Grande National Forest: the brown creeper, the hermit thrush, the pygmy nuthatch, Lincoln’s sparrow, Wilson’s warbler, the vesper sparrow, the mule deer, the Rocky Mountain elk, and the Rio Grande cutthroat trout. Where Rio Grande cutthroat trout are not present, USFS designated several other trout species to be monitored in their stead. The amendment also included a chart establishing monitoring schedules and methods for MIS. Rio Grande cutthroat trout are to be evaluated every five years, using “Stream surveys/DOW surveys.” MIS birds are subject to “[p]oint counts, nest search, presence surveys, [and/or] MCB surveys,” to be conducted “[a]nnually at the state and national forest level.” A footnote to the MIS birds discussion indicates that “[p]roject-speeific monitoring will be incorporated into Forest Plan monitoring as applicable.” Finally, mule deer and Rocky Mountain elk are to be evaluated annually using DOW surveys. The Forest Plan itself does not explicitly incorporate 36 C.F.R. § 219.19. Following adoption of the 2003 amendment, and the discovery of a significant spruce beetle infestation, USFS developed a logging project referred to as the “County Line Vegetation Management Project.” Under that project, USFS authorized the harvest of 24 to 29 million board feet of timber from a 2282 acre area. In the southern section of that area, infested trees will be removed from 841 acres. In the northern section, where infestation is minimal, 715 acres will be thinned. Approximately eighteen miles of roads will be constructed or reconstructed. Two sections of the project area are considered landslide risks and will not be logged. In addition, USFS instituted a 100 foot buffer zone on both sides of any creek. Two waterways fall within the project area-the Rio de los Pinos and Wolf Creek. To assist it in developing an Environmental Impact Statement (“EIS”) for the project, USFS prepared a “Specialist Report for MIS,” which details the agency’s MIS monitoring activities. Two MIS, the pygmy nuthatch and the vesper sparrow, were not analyzed because no suitable habitat for those species exists in the project area. Two others, Wilson’s warbler and Lincoln’s sparrow, were also excluded because the project area included only a very limited amount of habitat for those species. For the final two avian MIS, the brown creeper and the hermit thrush, USFS estimated project-level populations using potential population densities. Project-level point counts confirmed the presence of both species. Because MIS monitoring did not begin until 2004, USFS did not yet have forest-wide trend data. Instead, it utilized trend data from the MCB program, the Colorado Land Bird Conservation Plan, and the Colorado Breeding Bird Atlas project. The specialist report noted that the project could displace up to 311 pairs of brown creeper and 155 pairs of hermit thrush, but that such numbers represented a negligible portion of the forest-level populations of these species. Rocky Mountain elk and mule deer population data were based on Colorado DOW surveys. However, given the range of these animals, it was not feasible to estimate populations for a relatively small 2282 acre site. The report predicted that the project would not significantly impact either species. Rio Grande cutthroat trout forest-level population trend data were based on Colorado DOW surveys. USFS also reported that core trout populations were found in Rio de los Pinos about one half mile upstream from the project, and in Wolf Creek one mile downstream from the project. Both populations are cut off from the project area by the presence of large waterfalls. Population data for these groups were based on 2001 and 2003 survey data. Although it acknowledged the project could adversely impact the downstream population in the short term, USFS concluded that, with mitigation measures, the project would not seriously impact species density. In response to a Forest Plan requirement that USFS “[mjanage land treatments to limit the sum of severely burned and detrimentally compacted, eroded, and displaced land to no more than 15% of any land unit,” USFS reported the following: (1) Existing soil impacts were estimated at less than 5% of the project area, consisting of past logging roads and skid trails; (2) No recent logging projects were conducted in the southern section of the project area; (3) A number of mitigation techniques, including use of existing skid trails and the potential use of a winged subsoiler to till compacted lands, would keep the project within the 15% limit; (4) Based on the Water Erosion Prediction Program (“WEPP”) model, the project would increase erosion rates, but would have little impact on overall erosion; and (5) Continuous inspection by USFS soil experts would ensure project compliance. These statements are supported by five documents in the administrative record. John Rawinski, a forest soil scientist, provided reports for two on-site investigations he conducted. The first discusses soil conditions on and around an existing road that could be used for the project. The second details his inspection of an area excluded from the project due to its landslide potential. The third document is a collection of notes and reports from prior projects discussing soil conditions in the project area. Fourth, a report from geotechnical engineer Michael Burke discusses landslide potential in two areas that were subsequently excluded from the project. Finally, a report also authored by Rawinski provides erosion rate estimates using the WEPP model. Many individuals and groups, including Forest Guardians, submitted comments to USFS with respect to the project. Private abutting landowners K. Randal McKown, and Alice and Gilbert Duran submitted comments about “noise, traffic, and dust” that would be generated by logging trucks. Responding to the private landowners in the final EIS, USFS noted that the project “would have temporary effects to recreation users and private land owners adjacent to the proposed treatment areas, especially during the active timber sales with heavy truck traffic on the roads leading into the sale areas.” On the same day it issued the final EIS, USFS filed its Record of Decision. Several environmental groups, along with a number of private landowners, challenged the project in an administrative appeal. After USFS denied that appeal, Forest Guardians filed a suit in federal district court alleging: (1) USFS violated the NFMA by failing to collect project-level MIS population data; (2) USFS violated the NFMA by failing, to meaningfully analyze whether the project meets the 15% soil productivity standard; (3) USFS violated the NFMA by deficiently analyzing the project’s impact on stream health; and (4) USFS violated NEPA by failing to adequately analyze certain indirect and cumulative effects of the project. Inter-mountain Forest Association, Intermoun-tain Resources, LLC, and Mountain Valley Lumber Co., Inc. intervened on behalf of USFS. On December 6, 2006, the district court issued an order and judgment rejecting Forest Guardians’ claims and denying them relief. Forest Guardians now appeal the district court’s denial of relief on their first, second, and fourth claims. II When, as here, a district court’s decision is based on its review of the administrative record, we conduct our review de novo. Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir.2006) (“UEC III”). Forest Guardians challenge USFS’s approval of the project under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 500 et seq. The APA mandates that agency action be set aside when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We must determine whether the challenged action “was based on consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (quotation omitted). In doing so, we afford “substantial deference” to agencies’ interpretations of their own regulations. UEC III, 443 F.3d at 739. Forest Guardians’ initial claim is that USFS violated the NFMA’s consistency provision by failing to collect actual MIS population data before approving the County Line project. NFMA requires that all “contracts ... for the use and occupancy of National Forest System lands shall be consistent with the land management plans.” 16 U.S.C. § 1604®. In this case, the relevant land management plan is the Rio Grande National Forest Land and Resource Management Plan, including the 2003 amendment. Forest Guardians advance a multi-step argument. First, they contend, the 2003 Forest Plan amendment incorporated the 1982 Regulations, specifically the 1982 version of 36 C.F.R. § 219.19. Second, they cite Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219 (10th Cir.2004), (“UEC I”) for the proposition that the 1982 version of 36 C.F.R. § 219.19 requires USFS to collect actual MIS population data for project-level activities, rather than relying on estimates. See id. at 1227. Thus, they claim that the Forest Plan requires the collection of actual population data prior to a project’s approval. “Forest plans may require particular standards to be followed regardless of later changes in the regulations.” Ecology Ctr., Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1190 (10th Cir.2006). If a forest plan adopts the language of a generally applicable regulation, that language remains binding on USFS regardless of subsequent regulatory amendments, until the forest plan itself is altered. Plaintiffs in both Ecology Ctr. and UEC III advanced claims similar to Forest Guardians’ argument here; however, in both prior cases we determined that the forest plans at issue did not adopt the 1982 Regulations. Id.; UEC III, 443 F.3d at 748. The same is true in this case. Forest Guardians cite several documents that reference the 1982 Regulations: the Environmental Assessment for the 2003 Amendment, the Decision Notice/Finding of No Significant Impact for that amendment, and the Specialist Report for MIS compiled for the County Line project. But the Forest Plan itself does not explicitly incorporate the 1982 Regulations. Nor do the Forest Plan’s MIS-monitoring requirements track the language of the 1982 Regulations. Rather, the Forest Plan mandates forest-wide, periodic monitoring of MIS. Such monitoring may include direct observation, but reliance on DOW or MCB surveys is also permitted. The disconnect between the USFS planning documents, which specifically note that the purpose of the 2003 Amendment was to adopt the 1982 version of 36 C.F.R. § 219.19, and the Forest Plan itself, which does not require actual population data at the project level, is easily explained. In 2003, before we determined that USFS was required to collect actual population data at the project-level, see UEC I, 372 F.3d at 1227, USFS took the position that the 1982 Regulations did not require actual counting. See Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1191 (10th Cir.2006) (“UEC II”) (“Prior to UEC /, the Forest Service contended that it need not conduct ‘head-counts’ of MIS in a planning area because it had discretion to assess a project’s effects on MIS using habitat data, population data, or both.”). At the time it drafted the 2003 Amendment planning documents, USFS believed the MIS monitoring requirements included in the Forest Plan, which do not mandate project-level head counts, complied with the 1982 Regulations. Although we later held that USFS’s position on the 1982 Regulations was incorrect in UEC I, our holding in that case does not control our interpretation of the Forest Plan. Because the Forest Plan does not incorporate the 1982 Regulations, we must look to the plan itself, not the Code of Federal Regulations or our case law, to determine whether USFS complied with its MIS-monitoring duties. Comparing the text of the Forest Plan with USFS’s actions, we conclude that it did. With respect to the Rio Grande cutthroat trout, USFS relied on Colorado DOW surveys for forest-wide trend data, precisely as directed by the Forest Plan. For the trout populations closest to the project area, USFS considered prior survey data from 2001 and 2003, both within the plan’s five-year review cycle. Mule deer and Rocky Mountain elk population data were also based on Colorado DOW surveys, as directed by the Forest Plan. Finally, USFS relied on MCB surveys for forest-level MIS bird data. The Forest Plan includes such surveys in its list of acceptable bird monitoring techniques. Although the plan includes a footnote indicating that project-specific monitoring of MIS birds will be conducted “as applicable,” Forest Guardians do not argue that this notation required project-specific monitoring in this case. Accordingly, USFS complied with the Forest Plan’s MIS-monitoring directives. III Forest Guardians advances a second NFMA consistency claim. They argue USFS failed to provide substantial evidence for its conclusion that the project would comply with the Forest Plan’s soil requirements. Agency decisions must be based on “substantial evidence,” which is evidence sufficient to “justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir.1994) (quotation omitted). Evidence is not substantial if it “constitutes mere conclusion.” Id. at 1581. USFS argues that Forest Guardians have forfeited this claim by failing to adequately present their objection during administrative proceedings. Plaintiffs must exhaust administrative procedures before filing suit against USFS. See 7 U.S.C. § 6912(e). Parties generally must “ ‘structure their participation so that it alerts the agency to the parties’ position and contentions,’ in order to allow the agency to give the issue meaningful consideration.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)) (omission and alteration omitted). Claims not properly raised before an agency are waived, unless the problems underlying the claim are “obvious,” id. at 764-65, 124 S.Ct. 2204, or otherwise brought to the agency’s attention, see Wyo. Lodging & Rest. Ass’n v. U.S. Dep’t of the Interior, 398 F.Supp.2d 1197, 1211 (D.Wyo.2005) (holding that the presence of third party comments addressing an issue put an agency on notice). In order to satisfy exhaustion requirements, a plaintiff must present its claim to USFS in sufficient detail to allow the agency to rectify the alleged violation. See Native Ecosystems Council v. Dombeck, 304 F.3d 886, 899-900 (9th Cir.2002); Kleissler v. U.S. Forest Serv., 183 F.3d 196, 202 (3d Cir.1999). In response to the draft EIS for the County Line project, Forest Guardians submitted a comment listing a number of complaints. With respect to the soil standard, they stated: The [Water Conservation Practices Handbook] further requires that no more than 15% of the soils in any watershed be detrimentally compacted, eroded, or displaced. Yet the [draft EIS] discloses that 21.4% of the 7th level watershed of concern (Rio de los Pinos Tributary) will be affected under [the selected alternative]. Further, the [draft EIS] notes that more than 15% of the total watershed disturbance will occur, flatly violating the [Watershed Conservation Practices Handbook].... The [draft EIS] notably calculates the total equivalent disturbance acreage as 15% of each harvest area. What data or research is this figure based on? It appears that the Forest Service chose to calculate it at 15%, not because there is any data or research that can justify this figure, but because it is the maximum permitted. (citations omitted). USFS included much of this comment in the final EIS, responding that Forest Guardians improperly conflated the soil standard with watershed analysis. Under the soil standard, USFS must “[mjanage land treatments to limit the sum of severely burned and detrimentally compacted, eroded, and displaced land to no more than 15% of any land unit.” In conducting watershed analysis, USFS classifies a watershed as “of concern” if a certain percentage of its land is “disturbed.” As USFS noted in its EIS response to Forest Guardians’ comments, there are several differences between the two standards: (1) Watersheds are typically much larger than the activity areas considered in the soil standard; (2) “Disturbed,” “detrimentally compacted,” “detrimentally eroded,” “detrimentally displaced” and “severely burned” are terms of art with specific definitions — they are not interchangeable; and (3) Projects may exceed the “watershed of concern” threshold, but the soil standard is mandatory. Following USFS’s decision to move forward with the County Line project, Forest Guardians filed an administrative appeal in which they repeat the soil standard allegation included in their prior comment verbatim. Wfliether these statements put USFS on notice of Forest Guardians’ substantial evidence soil standard claim is a close question, and one complicated by Forest Guardians’ apparent confusion of two independent provisions. Much of their argument is simply incorrect. There is no requirement that “no more than 15% of the soils in any watershed be detrimentally compacted, eroded, or displaced”; rather, the soil standard refers to any “land unit.” USFS’s 15% estimate, repeatedly cited by Forest Guardians, refers not to detrimental compaction, erosion, or displacement, but to disturbances — a term used in watershed analysis but not in the soil standard. Ultimately, we conclude that Forest Guardians did not adequately present this issue in its administrative appeal and have thus forfeited it. See Pub. Citizen, 541 U.S. at 764, 124 S.Ct. 2204. The above-quoted language was included in a section of Forest Guardian’s comments (and later, its administrative appeal), entitled “Impacts to Water Quality,” and not in the immediately preceding section entitled “Unstable Soils.” Although they cite the EIS, Forest Guardians refer to USFS’s discussion of watershed analysis, not its statements regarding the soil standard. The sole connection between the soil standard and Forest Guardian’s statements to USFS is their use of the phrase “detrimentally compacted, eroded, or displaced.” Read in context, Forest Guardians’ statements simply cannot be understood as arguing that the record lacked substantial evidence to support USFS’s conclusions regarding the soil standard. Instead, an administrative officer reading the complaint would conclude that Forest Guardians raised a challenge to USFS’s watershed analysis, and simply inserted incorrect language from the soil standard. Forest Guardians argue that their claim was properly presented because the Appeal Reviewing Officer (“ARO”) discusses the soil standard in his recommendation to deny their administrative appeal. Although such evidence is normally considered highly probative, the references to the soil standard in this case do not lend credence to Forest Guardians claim that they properly presented the soil standard issue. The ARO first cites the soil standard in discussing a completely unrelated, now-abandoned claim advanced by Forest Service in its administrative appeal: that USFS violated NEPA by failing to consider alternative road locations. The only other ARO reference to the soil standard simply points out that Forest Guardians are confusing the soil standard with watershed analysis. It is plain that the ARO interpreted this section of Forest Guardians’ appeal as a watershed challenge. Neither ARO comment undermines our conclusion that Forest Guardians failed to adequately present their substantial evidence soil standard claim in their administrative appeal. IV Finally, Forest Guardians claim USFS failed to consider the impact of truck-related dust, noise, and diesel fumes on adjacent lands. NEPA requires the evaluation and disclosure of environmental impacts before undertaking “major Federal actions significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2)(C), including impacts on private lands, see 40 C.F.R. § 1508.14 (noting that the phrase “ ‘[h]uman environment’ shall be interpreted comprehensively to include the natural and physical environment”). NEPA does not require that an agency discuss every impact in great detail; it simply requires a reasoned evaluation of the relevant factors. Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1213 (10th Cir.2002). Moreover, NEPA does not require that an agency give any particular weight to environmental considerations. That is, it “merely prohibits uninformed — rather than unwise — agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). In reviewing the adequacy of an EIS, we determine whether “there is a reasonable, good faith, objective presentation of the topics,” such that it “foster[s] both informed decision-making and informed public participation.” Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1035 (10th Cir.2001) (citations and quotations omitted). Following the draft EIS, adjacent landowner and appellant K Randal McKown submitted a comment to USFS expressing concern over the “noise, traffic and dust that a commercial [logging] operation of this magnitude will generate.” Similarly, appellants Gilbert and Alice Duran commented that the “noise, dust, diesel exhaust and countless trucks will have a negative impact on all of us.” USFS included these comments in the final EIS and, in response, noted that the project “would cause additional noise and activity adjacent to your property during project implementation.” Moreover, in the body of the final EIS, USFS disclosed that the project “would have temporary effects to recreation users and private land owners adjacent to the proposed treatment areas, especially during the active timber sales with heavy truck traffic on the roads leading into the sale areas.” These statements adequately demonstrate that USFS considered the impacts of noise, dust, and fumes on private landowners, which are clearly encompassed by the “temporary effects” of “heavy truck traffic.” NEPA imposes no obligation to use precise phrasing. By including this language in the final EIS, USFS put the public on notice that this project, and its attendant truck traffic, would have negative consequences. This is not a case in which USFS made a finding of no significant impact. Instead, it acknowledged that the project would cause a number of significant environmental problems — including dust, noise, and diesel fumes — but, as noted by USFS, it opted to pursue the project anyway based on other considerations. Idiosyncratically, NEPA does not require more. Robertson, 490 U.S. at 351, 109 S.Ct. 1835. V For the foregoing reasons, the decision of the district court is AFFIRMED. All pending motions are denied. . Plaintiffs in this case include Forest Guardians, Colorado Wild, The Center for Native Ecosystems, Carson Forest Watch, K. Randal McKown, Gilbert Duran, and Alice Duran. We hereinafter use “Forest Guardians” to refer to plaintiffs. . The full text of the amending chart is appended to this opinion. . "DOW” refers to the Colorado Division of Wildlife. ."MCB” refers to the Monitoring Colorado's Birds project, administered by the Rocky Mountain Bird Observatory. . Those groups were: Forest Guardians, Colorado Wild, The Center for Native Ecosystems, The Rocky Mountain Chapter of the Sierra Club, The San Luis Valley Ecosystems Council, The San Juan Citizens Alliance, Carson Forest Watch, and the Wolf Creek Wheel Club. . USFS implementing regulations were replaced first by a transitional rule in 2000, see Natl Forest Sys. Land and Res. Mgmt. Planning, 65 Fed.Reg. 67,514 (Nov. 9, 2000), and then by a final rule in 2005, see Nat'l Forest Sys. Land Mgmt. Planning, 70 Fed.Reg. 1,023 (Jan. 5, 2005). See also UEC III, 443 F.3d at 737 (discussing the history of the regulations). Forest Guardians do not allege that USFS violated the subsequent versions of the rules. . The district court did not rule on the exhaustion issue, and it was apparently not raised below. As a general matter, we do not consider issues that were not raised below. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir.1992). That rule, however, "is not inflexible and the matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229 (10th Cir.1996) (quotations and citations omitted). The general waiver rule does not apply to jurisdictional issues, which may be raised at any time. See Huerta v. Gonzales, 443 F.3d 753, 755 (10th Cir.2006). Thus USFS would be able to raise this claim if § 6912(e) is a jurisdictional statute. Circuits have split on that question. See Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 997-98 (8th Cir.2006) (noting the split and collecting cases). Rather than decide that issue of first impression, we exercise our discretion to hear USFS's argument for the first time on appeal regardless. Such review may be appropriate when, as here, "the proceedings below resulted in a record of amply sufficient detail and depth from which the determination may be made.” United States v. Mendez, 118 F.3d 1426, 1431 n. 2 (10th cir.1997) (quotation omitted). The fact that exhaustion is an issue of law, see Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1138 (10th Cir.2005), also counsels in favor of considering the defense, see Ross v. United States Marshal, 168 F.3d 1190, 1195 n. 5 (10th Cir.1999), as does the fact that the issue presents an alternative basis for affirmance. See Stahmann Farms, Inc. v. United States, 624 F.2d 958, 961 (10th Cir.1980). Notably, although Forest Guardians mention that USFS raised the exhaustion issue for the first time on appeal, they do not argue that the issue has been waived; instead, they proceeded to fully brief it. For these reasons we deem it appropriate to consider administrative exhaustion.

Havasupai Tribe v. Robertson

PER CURIAM: The Havasupai Tribe appeals the district court’s affirmance of the decision of the Forest Service, which approved the development of a uranium mine in the area of the Grand Canyon. The Tribe had opposed the development, arguing that the plot of land involved is an area of religious significance to them, and that the Forest Service did not adequately consider the effect of such a mine on their water supply. In this appeal the Tribe contends that (1) the district court erred by barring discovery and limiting review to the administrative record filed by the Forest Service, (2) the Plan interfered with the Tribe’s aboriginal right of access to the mine site, and (3) the Environmental Impact Statement (EIS) prepared by the Forest Service violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (NEPA). The district court considered the appellants’ challenges in a lengthy and carefully reasoned opinion. Havasupai Tribe v. United States, 752 F.Supp. 1471 (D.Ariz.1990). We agree with the district court’s reasoning, and indeed the appellant itself commendably does not quarrel with most of it. We therefore affirm. Appellants argue strenuously that the district court should not have limited its review to the administrative record compiled by the Forest Service in considering the appellants’ NEPA claims. The Tribe is correct in its argument that discovery beyond the administrative record is permitted where it is clear that the agency considered documents outside of that record in reaching its conclusion. The Tribe’s claim that the agency considered such evidence in this case, however, is purely speculative. Because the Tribe has pointed to nothing in support of its contention that the Chief of the Forest Service acted in bad faith or relied on materials outside the administrative record, the district court did not err by barring discovery. See Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-37 (9th Cir.1988), modified, 867 F.2d 1244 (9th Cir.1989). The Tribe’s most troubling claim is that there was inadequate consideration by the government of the effects of the mining on groundwater which supplies the Tribe’s water. In support of this claim, however, the Tribe relies upon the contentions of Dr. David Kramer, which were made in a letter drafted after the final EIS issued. The Tribe had some obligation to raise these issues during the comment process. Its views were solicited. Absent exceptional circumstances, such belatedly raised issues may not form a basis for reversal of an agency decision. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553-54, 98 S.Ct. 1197, 1216-17, 55 L.Ed.2d 460 (1978). Nevertheless, the district court addressed this claim and determined that the Forest Service had adequately considered the issues that the Tribe was raising. The Service's decision not to supplement the EIS in light of the information brought forth by the Tribe was not unreasonable. The district court concluded that the Tribe was “basing [its] arguments upon disagreements among experts.” 752 F.Supp. at 1502. It then correctly noted that “disagreement among experts does not invalidate an EIS.” Id. See Cady v. Morton, 527 F.2d 786, 796 (9th Cir.1975). Contrary to the Tribe’s contention, the district court was not required to undertake a de novo review of the Forest Service’s plan. See 5 U.S.C. § 706 (court reviews agency action for arbitrariness or abuse of discretion). What the district court did fulfilled its role in reviewing an EIS. The Tribe also claims a right of access, essentially amounting to an easement, to the area that includes the mine site. This claim is based on an argument that until the 1970s, when the Grand Canyon National Park Enlargement Act, 16 U.S.C. § 228i (“GCEA”), was passed, the Tribe retained aboriginal title to that land. The GCEA includes a provision that states that it is not to be construed as depriving the Tribe of access to its religious sites. Since the GCEA is what extinguished aboriginal title, the Tribe claims, this provision works as a condition upon the Tribe’s relinquishment, and pursuant to it the Tribe retained part of the “bundle of rights” — namely, an easement to any religious site included within the land it gave up. If the GCEA were the legislative action through which the Havasupais’ aboriginal title to the area was extinguished, the Tribe’s argument on this issue would have significant merit. Such, however, is not the case. In 1969, the Indian Claims Commission ordered Congress to pay, and Congress did pay, compensation to the Havasu-pai for this land, based on the Commission’s finding that Congress had taken the land in 1880. This finding, in turn, was made after a hearing in which the Havasu-pai presented evidence that such a taking had occurred at that time. Once Congress compensated the Tribe, aboriginal title was extinguished. See United States v. Gemmill, 535 F.2d 1145, 1148-49 (9th Cir.), cert. denied sub nom. Wilson v. United States, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976). For these and the reasons stated by the district court, the judgment is AFFIRMED.

Gulf Restoration Network v. United States Department of Transportation

W. EUGENE DAVIS, Circuit Judge: Petitioners seek review of a decision by the Secretary of the Department of Transportation granting a license for a liquified natural gas (“LNG”) facility in the Gulf of Mexico under the Deepwater Port Act, 33 U.S.C. § 1501 et seq. Petitioners submit two issues for review. First, they contend that the Environmental Impact Statement (“EIS”) prepared by the Secretary as required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., was deficient in that it did not adequately consider the “environmental impacts of the proposed action.” More particularly, Petitioners contend the Secretary acted arbitrarily and capriciously in concluding that the effects of three potential future projects in the Gulf of Mexico were too speculative to consider in evaluating the cumulative impact of the licensing decision under NEPA. Second, Petitioners argue that the Secretary violated the Deepwater Port Act by failing to require that the proposed facility use a closed loop system, which they assert is the “best available technology to prevent or minimize adverse impact on the marine environment.” For the reasons that follow, we conclude that the Secretary did not act arbitrarily or capriciously in concluding that the effects of three potential future projects were speculative in light of the uncertainty regarding whether they would be constructed, and if constructed, whether they would use an “open loop” or “closed loop” system to warm the LNG. We also conclude that the Secretary did not violate the “best available technology” requirement of the Deepwater Port Act. We therefore deny the petition for review. I. Background On November 3, 2003, Gulf Landing LLC filed a complete application with the Secretary of Transportation, pursuant to the Deepwater Port Act, for a license to operate a deepwater port off the coast of Louisiana, 38 miles south of Cameron, described in more detail below. The facility will receive ultra-cooled liquid natural gas, store it, regasify it by heating, and transfer it to existing pipelines for delivery to the Gulf Coast. It will be located in 55 feet of water and will consist of two units fixed to the seabed, including two LNG storage tanks. The LNG will be vaporized using “open rack” vaporizers. This system, known as an “open loop” system, will heat the LNG by pumping warm seawater to the top of each open rack vaporizer and allowing it to flow down panels, in which LNG is flowing through tubes, warming and regasifying the LNG. A “closed loop” system, by contrast, burns natural gas to heat water which is used repeatedly to heat the LNG. Because open loop systems require the uptake and release of a large volume of seawater, they affect the marine environment, primarily by entrapping fish, fish eggs, and larvae in the intake screens, decreasing water temperature, and emitting anti-biofouling agents necessary for production into the water. A closed loop system, while more expensive to run, is friendlier to the environment in most respects. The facility will be located in what the NOAA Fisheries Service has considered the “ ‘fertile fisheries crescent,’ the most biologically productive area in the Gulf of Mexico marine ecosystem.” Accordingly, the facility will affect many types of animals, including fish, turtles, mammals, and birds. Of primary concern is the red drum, a popular sport-fish not commonly fished commercially. According to the Final Environmental Impact Statement (“FEIS”) for the project, the Gulf Landing facility alone could destroy annually a number of red drum equal to 3.8% of Louisiana’s annual red drum fish harvest. Under the Deepwater Port Act, the Secretary has approximately one year after receiving a complete application to issue a decision. 33 U.S.C. § 1504(c)(1), (g), (i)(l),(4). During this time, he must take various steps, including conducting an environmental review and issuing an Environmental Impact Statement (“EIS”) under NEPA and holding a public hearing. Id. As part of this process, the Secretary published notice of availability of the draft EIS in the Federal Register on June 25, 2004, and issued the 297-page FEIS in November 2004. At the time the FEIS was issued, five other applications had been submitted for similar facilities in the Gulf of Mexico. In following NEPA’s mandate that an EIS take into account cumulative effects from “reasonably foreseeable future actions,” the Secretary took into account only two of the five pending applications. The Secretary considered the other three applications too speculative, and two of the other three as too geographically distant from the Gulf Landing project as well. On January 3, 2005, the NOAA Fisheries Service wrote to the Secretary that a license decision without analysis of the cumulative impacts from the other three facilities would not be “adequately evaluated” and that the draft EIS and FEIS should have analyzed the cumulative impact from those facilities. It also stated in a letter that the open loop system was not the “more environmentally responsible action:” “[a]s we have consistently stated in our previous comments on this project, we are convinced that the use of a [closed loop system] would greatly reduce ecological impacts and yield a stronger, more environmentally responsible action.” Louisiana Governor Kathleen Blanco, the Louisiana Department of Wildlife and Fisheries, the Gulf States Marine Fisheries Commission, and the Gulf of Mexico Fishery Management Council expressed the same two concerns in a letter to the Secretary. Despite these concerns, the Secretary approved the Gulf Landing license on February 16, 2005, subject to certain conditions and environmental monitoring requirements. On April 15, the Petitioners filed a petition in this court, pursuant to the Deepwater Port Act, arguing: (1) that the Secretary should have analyzed the cumulative impact from the other three proposed LNG facilities; and (2) that a closed loop system should have been required for the license to issue. II. Standard of Review When reviewing the adequacy of an EIS, we are mindful that NEPA guarantees a process, not a certain result. As such, this court has set forth three considerations: (1) whether the agency in good faith objectively has taken a hard look at the environmental consequences of a proposed action and alternatives; (2) whether the EIS provides detail sufficient to allow those who did not participate in its preparation to understand and consider the pertinent environmental influences involves; and (3) whether the EIS explanation of alternatives is sufficient to permit a reasoned choice among different courses of action. Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir.2000); see id. (Stating that this court “follow[s] a ‘rule of reason’ and ‘a pragmatic standard which requires good faith objectively but avoids “fly specking” ’ ”). “[T]his three-part test is applied under the highly deferential standard of review” set forth in § 706(2)(A) of the APA. Avoyelles Sports men’s League v. Marsh, 715 F.2d 897, 905 (5th Cir.1983). Under that section, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706; Citizens for Mass Transit, Inc. v. Adams, 630 F.2d 309, 313 (5th Cir.1980). “This standard of review is highly deferential,” Avoyelles, 715 F.2d at 904, and we should not substitute our own judgment for the agency’s. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976). “We must look at the decision not as a chemist, biologist, or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our narrowly defined duty of holding agencies to certain minimal standards of rationality.” Avoyelles, 715 F.2d at 905 (internal quotation marks and citation omitted). III. Cumulative Impacts Analysis Under NEPA We first address Petitioners’ contention that the Secretary failed to adequately consider the cumulative impact of the Gulf Landing deepwater port with three other ports for which applications were filed. Under the Deepwater Port Act, organizations wishing to construct the type of facility contemplated here must apply to the Secretary of Transportation for a license. 33 U.S.C. § 1503(a). As part of the approval process, the Act requires the Secretary to prepare an EIS pursuant to NEPA. 33 U.S.C. § 1504(f). In accord with NEPA, the Secretary must include a detailed statement of “the environmental impacts of the proposed actions.” 42 U.S.C. § 4332(2)(C)(i). Impacts include “ecological ... aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.” 40 C.F.R. § 1508.8. Cumulative impact “is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions” and “can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7 (emphasis added). When analyzing cumulative impacts of a proposed action, we have held that an agency should consider: (1) the area in which the effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions — past, proposed, and reasonably foreseeable — that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and; (5) the overall impact that can be expected if the individual impacts are allowed to accumulate. Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir.1985)(citing Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 683-84 (D.C.Cir.1982)), overruled on other grounds, Sabine River Authority v. U.S. Dep’t of Interior, 951 F.2d 669 (5th Cir. 1992). Furthermore, this court has held that “[a]n impact is ‘reasonably foreseeable’ if it is ‘sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision.’ ” City of Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir.2005) (citing Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir.1992)). In issuing the FEIS for the Gulf Landing project, the Secretary limited his analysis of “cumulative impacts” to the two ports for which “an approved public Draft NEPA document [was] available for review at the time of the Draft EIS for Gulf Landing”. The Secretary therefore did not consider the impact of the three facilities for which applications had been filed but the consideration of the application had not progressed to the draft EIS stage. He reasoned that “[i]t would not be reasonable to speculate on the quantitative or qualitative configurations of an application until an approved public draft evaluation was available for review.” He also excluded two of those three ports on the independent rationale that they were too geographically distant from the Gulf Landing port, finding that “[t]he Mississippi River discharge plume is approximately 210 miles east of the [proposed Gulf Landing port] and, in this case, represents a reasonable biological boundary for assessment of cumulative impacts.” The Petitioners argue that the Secretary’s decision to exclude consideration of the three ports for which applications had been filed was arbitrary and capricious. They contend that the effects of the proposed projects are not speculative because the details required in an application give the Secretary ample information to evaluate the effects of the projects. Appellants also argue that the dire need for natural gas, the sums expended by the applicants, the expense entailed in preparing such applications, and the financial stability of the applicants make the projects “sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision.” City of Shoreacres, 420 F.3d at 453. The Secretary argues that he was not arbitrary or capricious in declining to consider the effects of the three projects for which draft EISs were not available. The Secretary acknowledges that absolute certainty that a project will come to fruition is not required in order to include it in the cumulative impact analysis. He argues, however, that a line must be drawn somewhere, and he has drawn the line such that projects without a final license are to be considered, but only after a draft EIS is available. Specifically, the Secretary contends that the Deepwater Port Act requires so many steps after the filing of an application that until a draft EIS is available, there is insufficient certainty about the project’s future construction and environmental consequences to include it in the cumulative impact calculus. He argues that accepting Petitioners’ argument would require the Secretary to engage in four “layers of speculation.” First, the Secretary would have to presume that information provided by the applicant is sufficient for consideration, without the independent analysis by the Secretary mandated by the Act. He points out that this analysis is not superficial or perfunctory; for example the Act requires expertise from a number of different agencies. Second, the Secretary may decide to deny the license or impose conditions on it that alter the project’s environmental effects. He argues that one of the conditions may even be a change from open loop to closed loop technology, or vice-versa, a change with significant environmental effects. Third, the Act imposes requirements beyond the Secretary’s control that may require him to deny or impose conditions on a license. For example, the license cannot issue if the EPA informs the Secretary that the project does not comply with environmental statutes or if the Governor of the adjacent state timely indicates disapproval. 33 U.S.C. § 1503(c)(8). Fourth, even if a license issues, the facility may never be built, because of the cost of the project, a volatile market or because of unanticipated conditions the Secretary imposes on construction. The Secretary argues that while he could have cast his net wider, it was not arbitrary or capricious for him to cast it where he did because of the above uncertainties. Finally, intervenor, ConocoPhillips points to the continued monitoring requirements, imposed by the Secretary requiring the operator to mitigate undue environmental damage. Pointing to the short, 356-day window given to the Secretary to act on an application, it also argues that with these time constraints the Secretary could not have taken into account the three speculative ports, and that the Secretary cannot be expected to consider applications filed up until the date it completes its EIS. We agree that the Secretary did not act arbitrarily or capriciously when he included only two of the five ports for which applications were filed. We recognize the high demand for natural gas and these LNG ports, thereby increasing the possibility that the ports will be built. We also recognize that the companies which have filed the applications certainly have the resources to build the ports. However, the Secretary was entitled to conclude that the occurrence of any one of a number of contingencies could cause the plans to build the ports to be cancelled or drastically altered. For example, one or more of the applicants may decide for a number of reasons to withdraw its application before the Secretary’s approval, such as ExxonMobil did with its application for the Pearl Crossing GBS platform. The Secretary, after receiving input from other agencies, may deny an application or make changes to the application’s construction specifications such as demanding- that the port be closed loop rather than open loop. The technology in this area is also advancing rapidly and may change the effects of the planned ports. Finally, based on public statements and correspondence from Louisiana Governor Kathleen Blanco, the Secretary was aware that she might well decide to veto any open loop port approved by the Secretary. Under the facts presented to us and under the deferential standard which we review the agency’s determination, we find that the Secretary did not abuse his discretion or act arbitrarily or capriciously in concluding that the three ports were not “reasonably foreseeable future actions,” or, as this court has put it, actions that “a person of ordinary prudence would take [ ] into account in reaching a decision.” City of Shoreacres, 420 F.3d at 453. IV. We next address Petitioners’ argument that the Secretary violated the Deepwater Port Act by issuing a license for a facility that does not require the “best available technology, so as to prevent or minimize adverse impact on the marine environment,” as required by the Act. Under § 1503(c) of the Act, the Secretary “may” issue a license if: (2) he determines that the applicant can and will comply with applicable laws, regulations, and license conditions; (3) he determines that the construction and operation of the deepwater port will be in the national interest and consistent with national security and other national policy goals and objectives, including energy sufficiency and environmental quality; (5) he determines, in accordance with the environmental review criteria established pursuant to section 1505 of this title, that the applicant has demonstrated that the deepwater port will be constructed and operated using best available technology, so as to prevent or minimize adverse impact on the marine environment ... 33 U.S.C. § 1503(c)(emphasis added). The implementing regulations also provide that the application must use “the best available technology to prevent or minimize adverse impact on the environment.” 33 C.F.R. § 148.710(a)(2). The regulation further instructs the Secretary to evaluate “a deepwater port proposal and reasonable alternatives ... on the basis of how well they: (a) Reflect the use of best available technology in design, construction procedures, operations, and decommissioning; ... (g) avoid interference with biotic populations, especially breeding habitats or migration routes.” 33 C.F.R. § 148.725. The Petitioners argue that the Secretary violated the plain language of subsection (5) by failing to require a closed loop system, a system which would “prevent or minimize adverse impact on the marine environment.” They point out that the Secretary admitted in the FEIS that the open loop system will have a “higher effect” on the “water quality and marine life” than a closed loop system, a conclusion other agencies agree with. They argue that the FEIS reflects that the Secretary approved open loop technology because of lower operating costs: The Applicant selected [open loop] technology because it is widely used and highly proven technology, is a simple process (highly reliable), and has low fuel-usage requirements and resultant reduced operating costs. The Applicant has also made sound arguments on the basis of safety and availability of means to ensure protection of environment. Thus, appellants argue that because the open loop system is more harmful to the environment than the closed loop system, the Secretary’s approval of a port with an open loop system was “contrary to law” under § 706(2)(A) of the APA. The Secretary argues that the Congressional directive to require the applicant to demonstrate it will construct the port, using the best technology “so as to prevent or minimize adverse impact on the marine environment” is best read to require construction that reasonably minimizes adverse impact to a reasonable degree given all relevant circumstances. He also contends that the Petitioners’ reading ignores the prior clause in subsection (5) — “in accordance with the environmental review criteria established pursuant to 33 U.S.C. § 1505”. The Secretary points out that § 1505 requires the Secretary to consider broad criteria other than marine environment; he argues that the Petitioners would have him ignore these criteria entirely whenever a technology marginally better for the marine environment is worse for the rest of the environment. The Petitioners’ reading of the subsection at issue in isolation cannot be correct. First, under the Petitioners’ reading, the Secretary could not apply the overall environmental criteria of § 1505, which is mandated by subsection (5) itself. Second, under petitioner’s reading, the Secretary could not properly follow NEPA, as mandated by subsection (5) and § 1505, because he would have to ignore NEPA-mandated variables not related to the marine environment. See, e.g., 42 U.S.C.A. § 4331(b)(5) (requiring the federal government to “achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities.”). Third, the Petitioners’ reading would prevent the Secretary from considering the factors in subsection (3): whether the license was in the “national interest” and good for “energy sufficiency and [overall] environmental quality.” 33 U.S.C. § 1503(c)(3). The Secretary’s cost-analysis of the technology also complies with Congress’ intent to “promote the construction and operation of deepwater ports as a safe and effective means of importing oil or natural gas into the United States.” 33 U.S.C. § 1501(a)(5). As the Secretary points out, this goal would be compromised if the “best available technology” requirement demanded the use of the technology that is best for the marine environment, even if the costs were so prohibitive that no applicant could ever construct a port using that technology. For these reasons, we conclude that the Secretary’s issuance of the Gulf Landing license was not contrary to law. Petition for review DENIED. . The Secretary of Transportation has delegated the licensing authority to the Maritime Administrator, 49 C.F.R. § 1.66(aa)(l)-(2), and various license processing tasks to the United States Coast Guard, 33 C.F.R. § 148.3. Because the Secretary remains ultimately responsible under the Deepwater Port Act, the opinion will refer to actions by the Maritime Administrator and the Coast Guard as actions by the Secretary. . The Deepwater Port Act defines deepwater ports as: "any fixed or floating manmade structure other than a vessel, or any group of such structures, that are located beyond the State seaward boundaries and that are used or intended for use as a port or terminal for transportation, storage, or. further handling of oil for transportation, to any State ... and for other uses not inconsistent with the purposes of this chapter, including transportation of oil from the United States outer continental shelf.” 33 U.S.C. § 1502(9)(A). . Apparently, however, open loop systems result in the emission of less air pollution. . As intervenor Gulf Landing points out, this is not to say that 3.8% of the fish will be killed. It also points out that 3.8% is the high end of the estimate, with 0.8% as the average and 0.1% as the low end. .The other applicants included: Port Pelican LLC for a GBS platform; El Paso Energy Bridge Gulf of Mexico LLC for a submerged turret loading system; Freeport McMoRan Energy Main Pass Energy for reuse of an existing structure for storage and regasification and for construction of caverns in an underlying salt dome for storage of regasified natural gas; Conoco Phillips Compass Port for a GBS platform; and Exxon Mobile Pearl Crossing for a GBS platform. . Included in the FEIS were the Port Pelican Deepwater Port and the Energy Bridge Deep-water Port. . The letter stated: "The level of uncertainty in determining the effects of the open rack vaporizer is not acceptable. A comprehensive evaluation incorporating existing data and additional data must be developed. Part of this evaluation should include an assessment of the cumulative impacts of the numerous open rack vaporizers.” . See, e.g., Cal. Save Our Streams Council, Inc. v. Yeutter, 887 F.2d 908, 910-13 (9th Cir.1989)(finding that petitioner's independent NEPA claims were subject to the Federal Power Act jurisdictional provision); City of Tacoma v. Nat'l Marine Fisheries Serv., 383 F.Supp.2d 89, 91-93 (D.D.C,2005)(dismissing for lack of jurisdiction a challenge under the Endangered Species Act as a collateral attack on a Federal Energy Regulatory Commission license); Idaho Rivers United v. Foss, 373 F.Supp.2d 1158, 1160-61 (D.Idaho 2005)(same). . The Gulf Landing FEIS was published on December 3, 2004. The draft EISs for the other three projects were made available on February 11, 2005, April 21, 2005, and June 17, 2005. . The Act requires that applications provide: (D) the proposed location and capacity of the deepwater port, including all components thereof; (E) the type and design of all components of the deepwater port and any storage facilities associated with the deepwater port; (F) with respect to construction in phases, a detailed description of each phase, including anticipated dates of completion for each of the specific components thereof; (G) the location and capacity of existing and proposed storage facilities and pipelines which will store or transport oil transported through the deepwater port, to the extent known by the applicant or any person required to be disclosed ... (K) a description of procedures to be used in constructing, operating, and maintaining the deepwater port, including system of oil spill prevention, containment, and cleanup; and (L) such other information as may be required by the Secretary to determine the environmental impact of the proposed deepwater port. 33 U.S.C. § 1504(c)(2). . The Gulf Landing facility, for example, would cost around $700 million. . He offers an example of the Gulf Landing license itself, where after Gulf Landing submitted its application, the Secretary and the Coast Guard determined that it submitted insufficient environmental data and directed it to submit additional data. He also notes that the EPA and NMFS provided important comments before the Draft EIS issued. . Again, he offers as an example the Gulf Landing license itself, which was granted subject to certain conditions, such as technical monitoring requirements allegedly designed to mitigate environmental impacts. . As the Secretary points out, one of the two already licensed projects included in the Gulf Port FEIS is indefinitely on hold. . See Airport Impact Relief v. Wykle, 192 F.3d 197 (1st Cir.1999)(concluding that an airport expansion was not reasonably foreseeable because it was "contingent on several events that may or may not occur over an eight-year span” including "the acquisition of permits, the arrangement of funding, the drafting of expansion plans, and other contingencies that must occur before even the trilateral land exchange can occur. These contingencies render any possibility of airport expansion speculative and, ... neither imminent nor inevitable.”). Cf. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1215 (9th Cir.l998)(court concluded that a single EIS was required because proposed timber sales were reasonably foreseeable: “they were developed as part of a comprehensive strategy” and they were “disclosed by name to a coalition of logging companies, along with estimated sale quantities and timelines" before the proposed project's environmental assessment was completed). We also acknowledge the Petitioners' argument that some of these events could happen even after a draft EIS is complete. However, we find the Secretary has wide discretion in determining where to draw the line, that the line must be drawn somewhere, and that he acted within his discretion when he included only projects for which draft EISs were available. . See 70 Fed. Reg. 73059 (Nov. 17, 2005). . After oral argument, but before this opinion issued, Governor Blanco did, in fact, exercise her power to veto the Freeport McMoRan Port — one of the three ports excluded from the cumulative impact analysis. . Because we conclude that the Secretary was not arbitrary or capricious when he excluded potential projects without a completed draft EIS from the Gulf Landing EIS, we need not answer the question whether the Secretary’s alternative geographical rationale for excluding two of the ports is valid. . The NMFS stated that it was "convinced that the use of a [closed loop system] would greatly reduce ecological impacts and yield a stronger, more environmentally responsible action.” The Gulf States Marine Fisheries Commission and the Gulf of Mexico Fishery Management Council stated that the open loop system "will have unacceptable negative impacts on fishery stocks” and that "[a closed loop system] should have been fully analyzed.” . See 70 Fed. Reg. 73059 (Nov. 17, 2005). . Section 1505 expressly provides that the Secretary "shall establish ... environmental review criteria consistent with the National Environmental Policy Act” and that "[s]uch criteria shall be used to evaluate a deepwater port as proposed in an application, including”— (1) the effect on the marine environment; (2) the effect on oceanographic currents and wave patterns; (3) the effect on alternate uses of the oceans and navigable waters such as scientific study, fishing, and exploitation of other living and nonliving resources; (4) the potential dangers to a deepwater port from waves, winds, weather, and geological conditions, and the steps which can be taken to protect against or minimize such dangers; (5) effects of land-based developments related to deepwater port development; (6) the effect on human health and welfare; and (7) such other considerations as the Secretary deems necessary or appropriate. 33 U.S.C. § 1505(a)(l)-(7) (emphasis added).

Natural Resources Defense Council v. United States Forest Service

GOULD, Circuit Judge: Plaintiffs-Appellants Natural Resources Defense Council, Southeast Alaska Conservation Council, Sierra Club, National Audubon Society, The Wilderness Society, and Center for Biological Diversity (collectively “NRDC”) appeal the district court’s final judgment in favor of Defendants-Appellees United States Forest Service, United States Department of Agriculture, and certain government employees acting in their official capacity, dismissing administrative and environmental law challenges to the 1997 Revision to the Tongass Land Management Plan (Plan). We must decide the legality of the Plan adopted and the process used by the Forest Service. NRDC claims that a Forest Service error that doubled the projected market demand for Tongass timber rendered the Plan for the Tongass National Forest arbitrary and capricious, in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and rendered arbitrary and capricious the Forest Service’s conclusion that timber goals justified the risk that the Plan may not ensure viable, well-distributed populations of wildlife, as required by former 36 C.F.R. § 219.19 (2000). NRDC also claims that the market-demand error rendered misleading the Plan’s final Environmental Impact Statement (EIS), in violation of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4382. NRDC further challenges the EIS on grounds that the Forest Service did not consider an adequate range of alternatives and failed to consider the cumulative impacts of “highgrading.” The government Appellees argue that under section 335 of the 2003 Omnibus Appropriations Act, we lack jurisdiction to review the Forest Service’s decision to adopt the Plan. Alternatively, they contend that the Plan was not arbitrary because the inflated market demand projections did not influence the Forest Service’s decision to adopt the Plan. The Intervenors argue that, if NRDC prevails on the merits, injunctive relief is inappropriate in this case because NRDC cannot show irreparable harm to its interests, while the interests of the Intervenors will be irreparably harmed if an injunction is in place. We have jurisdiction under 28 U.S.C. § 1291, and we reverse. I Created in 1907 by President Theodore Roosevelt, the Tongass National Forest is an immense forest located in Southeast Alaska comprised of mainland and many islands within the Alexander Archipelago. The Tongass is the nation’s largest national forest, and the largest unspoiled and intact temperate rainforest in the world, containing almost seventeen million acres and occupying about seven percent of Alaska’s area. The National Forest Management Act (NFMA) requires the Forest Service to “develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” 16 U.S.C. § 1604(a). As we have explained, NFMA embraces concepts of “multiple use” and “sustained yield of products and services,” obligating the Forest Service to “balance competing demands on national forests, including timber harvesting, recreational use, and environmental preservation.” Lands Council v. Powell, 379 F.3d 738, 742 n. 2 (9th Cir.2004) (quoting 16 U.S.C. § 1607 and citing 16 U.S.C. §§ 528-31), amended and superseded by 395 F.3d 1019 (9th Cir.2005). The original plan for the Tongass was approved in 1979, and has since been amended twice, once in 1986 and again in 1991. By law, forest plans must be revised at least every fifteen years, or sooner if changed conditions warrant a revision. 16 U.S.C. § 1604(f)(5) (2004). The Record of Decision (ROD) for the revised Plan at issue in this appeal was adopted in May 1997. The initial “paper version” of the Plan’s EIS as released in January 1997. The EIS was updated in May 1997. During the public process of revising the Tongass Plan, Congress passed the Ton-gass Timber Reform Act (TTRA), which imposed additional planning requirements for the Tongass. Among the requirements, Congress imposed a unique duty on the Forest Service to consider the “market demand” for timber: Subject to appropriations, other applicable law, and the requirements of the National Forest Management Act of 1976 (Public Law 94-588), except as provided in subsection (d) of this section, the Secretary shall to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources, seek to provide a supply of timber from the Tongass National Forest which (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle. 16 U.S.C. § 539d(a). The exception in subsection (d) provides that “the Secretary need not consider economic factors in the identification of lands not suited for timber production.” Id. § 539d(d). During the planning process for the 1997 Revision to the Tongass Land Management Plan, the Forest Service used the analysis of economists David Brooks and Richard Haynes to determine the market demand for Tongass timber, and to assess whether the Plan would supply enough timber to meet that demand, in accord with the Forest Service’s statutory obligations. Over an eight-year period, Brooks and Haynes prepared four reports with projections of the market demand for Tongass timber. The updated 1997 Brooks and Haynes report was the most recent demand study available to the Forest Service. The report gives three scenarios — low, medium, and high — to display a range of future average demand for Tongass timber during the upcoming decade. The alternate scenarios are predicated on variations in Alaskan timber’s competitiveness, Alaskan timber’s share of the Japanese market, and Alaskan mills’ share of the U.S. domestic market. The 1997 Brooks and Haynes report projected a low scenario of 68 million board feet per year (MMBF/year), a medium scenario of 110 MMBF/year, and a high scenario of 154 MMBF/year. Prior reports projected nearly double this demand, but were revised downward due to changed circumstances, such as the closing of local pulp mills, a weaker Japanese market, and a decline in Alaska’s competitive position. The Forest Service misinterpreted the 1997 Brooks and Haynes market demand projection within the published ROD and EIS. The Forest Service incorrectly thought that the projection numbers refer only to “sawlogs suitable for producing lumber,” when they actually refer to “total National Forest harvest, including both net sawlog and utility volume.” Because of the Forest Service’s error, the ROD and EIS project an average market demand for Tongass timber nearly double that which Brooks and Haynes projected. The projected demand scenarios used by the ROD and EIS are 130 MMBF/year (low), 212 MMBF/year (medium), and 296 MMBF/year (high). The ROD and EIS examined ten alternatives in detail. The Forest Service adopted Alternative 11 because it “best responds to multiple needs, including ensuring a healthy forest habitat and providing a sustainable supply of goods and services including timber.” Alternative 11 allocates 3.9 million acres to development land use designations (LUDs) that allow logging, and 60% of this allocation (2.4 million acres) is currently roadless area. Alternative 11 also establishes an average “Allowable Sale Quantity” (ASQ) of 267 MMBF/ year for the next decade. Although the ASQ represents a ceiling on allowable timber sales, the ROD states that “the public can expect the amount of timber to be offered annually to vary between 200 MMBF or less and 267 MMBF.” Regulations in force when the Plan was adopted required the Forest Service to “maintain viable populations of existing native and desired non-native vertebrate species in the planning area.” 36 C.F.R. § 219.19 (2000). The Forest Service enlisted panels of specialists to rate the degree of risk to wildlife viability posed by each of the Alternatives assessed by the ROD and EIS. The level of risk was gauged for several species by placement into one of five “Outcome” scenarios. The Forest Service determined that placement of a species into Outcomes I or II would always meet the concept of “viable and well distributed” as required by NFMA regulations, and that placement of a species into Outcome III may, for some species, sometimes meet the regulatory requirement. Thus, the likelihood of maintaining a species’ viability is “expressed as being greater than the sum of likelihood scores for Outcomes I and II, but less than the sum of likelihood scores for Outcomes I, II, and III.” The ROD concluded that the Plan presented an acceptable level of risk to wildlife viability when balanced against other multiple-use goals, such as “providing a sustainable supply of goods and services including timber.” Pursuant to the 1997 Plan, the Forest Service has authorized new timber sale projects that allow logging in roadless areas, and which NRDC challenges in this appeal. NRDC contends that the Forest Service’s admitted error in interpreting the market demand for Tongass timber (1) renders arbitrary and capricious the decision to adopt the Plan, (2) renders arbitrary and capricious the Plan’s conclusion that its risk to wildlife was acceptable, (3) makes the EIS misleading due to exaggerated estimates of the Plan’s economic effects, and (4) makes the range of alternatives considered by the EIS inadequate under NEPA because no alternative reflected the actual market demand. NRDC also argues that the EIS failed to consider the cumulative impacts of State and private logging of high-volume old-growth forest, which NRDC contends is particularly important to certain wildlife. The district court bifurcated the merits of the case from the relief. The district court issued first a tentative decision, and after receiving objections and comment, a final decision in favor of the government Appellees because the district court concluded that the market demand report “was not significant to the planning process” and that “the Forest Service did not rely on the [market demand] report.” The district court also ruled against NRDC’s NEPA claims, stating that “the Government adequately considered the range of alternatives and adequately justified its decisions.” During litigation in district court, the Forest Service announced its intent to begin construction of a road into a roadless area pursuant to one of the Plan’s authorized timber sales. NRDC sought a preliminary injunction and an injunction pending appeal in the district court, which the district court denied. NRDC then sought an injunction pending appeal in the Ninth Circuit, which was granted by a motions panel because “NRDC has shown a likelihood of success on the merits” and because the planned timber sale “will cause irreparable injury.” Order at 2-3 (filed Oct. 18, 2004) (per curiam). II We must first determine whether we have jurisdiction to review the 1997 Revision to the Tongass Land Management Plan. In 2003, Congress passed the Omnibus Appropriations Act, Pub.L. 108-7 (Feb. 20, 2003), stating in part that: The Record of Decision for the 2003 Supplemental Environmental Impact Statement for the 1997 Tongass Land Management Plan shall not be reviewed under any Forest Service administrative appeal process, and its adequacy shall not be subject to judicial review by any court of the United States. 149 Cong. Rec. H707-01, H779 (2003). The 2003 Supplemental Environmental Impact Statement (SEIS) was a response to a court order holding that the 1997 ROD violated NEPA and NFMA because it failed to consider in the EIS alternatives that would have recommended more wilderness areas on the Tongass. Sierra Club v. Rey, J00-009 (D. Alaska, Order of Mar. 30, 2001). After completing the court-ordered SEIS, the Forest Service issued a ROD adopting Alternative 1, the “No-Action Alternative,” which represented “the 1997 Forest Plan Revision land allocations and standards and guidelines.” The 2003 ROD thus recommended the creation of no wilderness areas on the Tongass, other than those already recommended by the 1997 Plan. By its terms, section 335 of the 2003 Appropriations Act precludes judicial review of the 2003 ROD. The government Appellees argue that Congress understood that the 2003 ROD adopted or readopted the entire Tongass Plan, and that Congress intended to insulate the entire 1997 Plan from judicial review. We are not persuaded. The 2003 Appropriations Act does not by its terms clearly preclude judicial review of challenges to the 1997 Plan. See Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 440, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) (“Congress ... may amend a substantive law in an appropriations statute, as long as it does so clearly.”). The 2003 ROD and SEIS were the Forest Service’s response to a court order to reassess only the wilderness component of the 1997 Plan. As the SEIS explains: “The purpose and need for this SEIS is, therefore, narrow in focus and has been developed to specifically respond to the March 2001 Court order.” There is no indication that the Forest Service intended the 2003 court-ordered response to be an entirely new plan, or that it readopted the 1997 Plan; there is, however, unambiguous language indicating that the SEIS was limited in scope: As indicated by the U.S. District Court for Alaska, there is a need to evaluate roadless areas in the Tongass National Forest and consider them for wilderness recommendations; therefore, this SEIS focuses on new wilderness recommendations. The alternatives discussed below reflect this focus. The SEIS does not consider land allocation options, such as changing current non-development LUDs to development LUDs. Also, it does not explore new biodiveristy or conservation biology strategies, nor represent a totally new Forest Plan Revision. We conclude that the 2003 ROD adopted only the 2003 SEIS, and was intended to address only the wilderness element of the 1997 Plan. Because Congress precluded judicial review of only the 2003 ROD reassessing the wilderness recommendations of the 1997 ROD, and not the entire 1997 Plan, and because NRDC challenges the adequacy of the 1997 Plan, we hold that Congress has not stripped us of our jurisdiction under 28 U.S.C. § 1291 to review the final decision and judgment of the district court dismissing NRDC’s claims. Ill Having determined that we have jurisdiction to decide the merits of NRDC’s appeal, we next must determine whether the Forest Service’s admitted misinterpretation of market demand for Tongass timber was a clear error of judgment that renders the 1997 ROD arbitrary and capricious, in violation of the APA. Under the APA, the Forest Service’s decision must be based on “a consideration of relevant factors” and we assess whether there has been “a clear error of judgment.” Gifford Pinchot Task Force v. United States Fish & Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir.2004). A “clear error of judgment” sufficient to be arbitrary and capricious agency action exists when “the agency offer[s] an explanation that runs counter to the evidence before the agency.” Sierra Club v. EPA, 346 F.3d 955, 961 (9th Cir.2003), amended by 352 F.3d 1186. The Forest Service must “state a rational connection between the facts found and the decision made.” Gifford Pinchot Task Force, 378 F.3d at 1065. A Under the TTRA, the Forest Service must “seek to provide a supply of timber from the Tongass National Forest which (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle.” 16 U.S.C. § 539d(a). The Forest Service sought to satisfy its obligations under the TTRA by considering market demand for Tongass timber and by seeking to meet that demand. The Forest Service first used the Brooks and Haynes report to assess market demand. Then, in its list of goals and objectives, the ROD stated that the Forest Service “will seek to provide a timber supply sufficient to meet the annual market demand for Tongass National Forest timber and the market demand for the planning cycle.” The ROD thus preferred alternatives that “have a timber program potential (Allowable Sale Quantity) that allows flexibility to respond to changing needs within the timber industry, as reflected in the most recent demand study (see Final EIS, Appendix M), and are responsive to communities dependent upon timber harvesting.” The three scenarios of average annual demand for Tongass timber for the next decade “reflected in the most recent demand study” were: 68 MMBF/year (low), 110 MMBF/year (medium), and 154 MMBF/year (high). The Forest Service, however, interpreted the Brooks and Haynes report to apply only to sawlogs. Because “[t]he ASQ for the Forest Plan and the annual timber sale program on the Tongass include both sawlogs and other types of wood,” the ROD’s three scenarios for projected average market demand were: 130 MMBF/year, 212 MMBF/year, and 296 MMBF/year. The Forest Service used its doubled market demand figures, instead of the Brooks and Haynes figures, to gauge the relative desirability of each of the proposed Alternatives. Accordingly, the ROD adopted Alternative 11, with its average annual ASQ of 267.2 MMBF/year. The ROD explained: Demand. Research scientists at the Pacific Northwest (PNW) Station have recently completed new projections of demand for timber from the Tongass National Forest. The new projections include a medium projection that averages 110 MMBF per year over the next decade and low and high projections that average 68 and 154 MMBF per year, respectively, over the same time period.... The projected demand is for sawlogs suitable for producing lumber in Southeast Alaska mills. The ASQ for the Forest Plan and the annual timber sale program on the Tongass include both sawlogs and other types of wood. Over the past ten years, about 52 percent of the timber volume harvested on the Tongass has gone to Southeast Alaska sawmills. If this ratio continues into the future, the ASQ needed to satisfy the medium demand projection of demand would be about 212 MMBF per year. Under the same assumption, the ASQ needed to satisfy the low and high projections of demand would be about 130 and 296 MMBF per year respectively. These numbers can be compared with the actual ASQ, which averages 267 MMBF per year over the next decade. The Forest Service concedes that it made a mistake in interpreting the 1997 Brooks and Haynes report, which actually accounted for both sawlogs and other types of wood, and that its mistake doubled the demand projection scenarios. Because the Forest Service linked the selected ASQ to the satisfaction of the projected market demand scenarios, the Forest Service’s explanation “runs counter to the evidence before the agency.” Sierra Club, 346 F.3d at 961. B The Forest Service argues, and the district court held, that the market-demand error was harmless because the projections were not significant to the Regional Forester’s decision choice among the Plan Alternatives. We disagree. The role of harmless error in the context of agency review is constrained. Gifford Pinchot, 378 F.3d at 1071. We have stated that the “doctrine may be employed only when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached.” Id. (internal quotation marks omitted). The Forest Service bears the burden of demonstrating harmlessness. Id. The Forest Service has not met its burden. The ROD is clear: “We will seek to provide a timber supply sufficient to meet the annual market demand for Tongass National Forest timber and the market demand for the planning cycle.” We hold that the market-demand error was not harmless because the TTRA specifically requires the Forest Service to consider market demand for Tongass timber, and because the record shows that the Forest Service did seek to meet the annual market demand and plan-cycle market demand for timber, albeit mistakenly. In other words, we hold that the Forest Service’s mistake had some bearing on the substance of the Forest Service’s decision to adopt Alternative 11, with its ASQ of 267 MMBF/year. We have said that a “[p]roper determination of the ASQ, perhaps more than any other element of forest-wide planning, is critical in providing ‘long-term direction.’ ” Resources Ltd., 35 F.3d at 1305. Here, the Forest Service linked its preferred ASQ to its mistaken view of market demand, stating that a certain ASQ would be “needed to satisfy” the various market demand projection scenarios, and that the market demand projections “can be compared with the actual ASQ, which averages 267 MMBF per year over the next decade.” Common sense, as well as the record, tells us that the Forest Service’s assessment of market demand was important for its determination through the ASQ of how much timber is allowed to be cut. Given the competing goals to be accommodated under NFMA, it is clear that trees are not to be cut nor forests leveled for no purpose. If market demand exists for timber, the need for timber harvest may outweigh the competing goals for environmental preservation and recreational use. But if the demand for timber was mistakenly exaggerated, it follows that the timber harvest goal may have been given precedence over the competing environmental and recreational goals without justification sufficient to support the agency’s balancing of these goals. The ROD noted that a “key factor” in the decision to adopt Alternative 11, as “a matter of finding a balance, within a multiple-use context,” was “not foreclosing options for the future that changes in public needs, economic conditions, or new technologies may bring.” Thus, the ROD rejected Alternatives 4 and 5 because they “do not have a timber program that would be adaptable to changing demands” and preferred Alternatives 2, 3, 6, 10, and 11 because they “have a timber program potential (Allowable Sale Quantity) that allows flexibility to respond to changing needs within the timber industry, as reflected in the most recent demand study (see Final EIS, Appendix M), and are responsive to communities dependent upon timber harvesting.” The ROD’s reasoning suggests to us that the “changing needs within the timber industry” are reflected in the low-to-high market demand scenarios set forth in the Brooks and Haynes report and incorporated by the Forest Service into the ROD and EIS. Accordingly, we hold that the Forest Service’s market-demand error affected the Forest Service’s assessment of alternatives and its decision to choose Alternative 11. The Forest Service argues that the ASQ is a ceiling on allowable timber sales that is unrelated to market demand projections. Although the ASQ represents a ceiling, the ROD’s rationale clearly links the ASQ to the projected market demand. See discussion supra Part III.A.1. Reason and logic also support this linkage. A ceiling too low to satisfy demand could compromise one of NFMA’s multiple-use goals (timber harvest) without justification in this record. Likewise, a ceiling higher than needed to satisfy demand, could compromise another of NFMA’s multiple-use goals (environmental preservation) without justification in this record. Moreover, even if the Forest Service would have adopted an ASQ greater than the high market demand scenario to allow flexibility to respond to changes in market demand, it is impossible to tell how much greater the ASQ would need to be, or to what extent other alternatives might have been considered in detail, in relation to the actual market demand. See Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 730 (“While we cannot predict what impact the elimination of the APC contract will have on the Forest Service’s ultimate land use decisions, clearly it affects the range of alternatives to be considered.”). The government Appellees also argue that the TTRA’s market demand provisions are hortatory and envision “not an inflexible harvest level, but a balancing of the market, the law, and other uses, including preservation.” Alaska Wilderness, 67 F.3d at 731. As our precedent indicates, the TTRA gives flexibility to the Forest Service “to choose among various site-specific plans, provided it follows the procedural requirements of the applicable statutes.” Id. This does not mean, as the Appellees argue, that the responsibility reflected in the TTRA applies only at the project level. To give the TTRA such a meaning would essentially negate that portion of the statute that seeks to meet the market demand for Tongass timber “for each planning cycle.” See 16 U.S.C. § 539d(a)(2). Moreover, even if hortatory, to satisfy the TTRA’s earnest admonishment requires the Forest Service to at least consider market demand and seek to meet market demand. And this the Forest Service attempted to do, using its own economists’ projections of the annual and plan-cycle market demands for Tongass timber for the life of the Plan. Yet in its attempt, the Forest Service committed a clear error of judgment, and the Forest Service has not met its burden to show that its error “clearly had no bearing ... on the substance of the decision reached.” See Gifford Pinchot, 378 F.3d at 1071. C Because the Forest Service’s “explanation [of its market demand projections] runs counter to the evidence before the [A]gency,” we hold that the Plan was based in part on a clear error of judgment. See Sierra Club, 346 F.3d at 961. The Forest Service cannot “state a rational connection between [the proper market demand projection] found and its decision [to select an ASQ of 267 MMBF/year].” See Gifford Pinchot, 378 F.3d at 1065. Because the law requires a market demand assessment for the Tongass Land Management Plan, and the Forest Service tried, but failed, to comply properly with this requirement, we hold that the mistaken interpretation of the Brooks and Haynes projections was not harmless. The Forest Service has not met its burden of showing that its misinterpretation of the 1997 Brooks and Haynes report “clearly had no bearing on the ... substance of the decision” to choose Alternative 11, and so we reverse the district court. See id. at 1071 (emphases omitted). IV We next address the NEPA arguments raised by NRDC challenging the Forest Service’s EIS. Although the Forest Service’s market-demand error requires it to make a new revised forest plan for the Tongass, it does not render moot our consideration of the NEPA issues presented to us, which are integrally intertwined with the error of judgment that rendered the Plan arbitrary and capricious. Our assessment of the NEPA issues presented by NRDC is necessary to ensure that the Forest Service prepares a lawful EIS for the new Tongass Land Management Plan that is required by our decision today. Resolution of the NEPA issues raised by this appeal is also appropriate to clarify the requirements of NEPA that the Forest Service was bound to follow in its prior EIS. Accordingly, we next consider whether the process used by the Forest Service in adopting the Plan complied with NEPA. NEPA requires “that federal agencies carefully weigh environmental considerations and consider potential alternatives to the proposed action before the government launches any major federal action.” Lands Council, 395 F.3d at 1026. NEPA’s procedural requirements require federal agencies to “take a ‘hard look’ at environmental consequences.” Id. at 1027 (quoting Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291, 1300 (9th Cir.2003)). NRDC contends that the EIS is inadequate in three respects: (1) by inflating the market demand for Tongass timber, the EIS presents misleading information on the economic effects of the plan; (2) the EIS examines an inadequate range of alternatives because it fails to examine alternatives that would maximize preservation of currently roadless areas, while having an ASQ adequate to meet projected market demand; and (3) the EIS fails to disclose and consider the cumulative effects of logging of high-volume old growth forest on non-federal lands. We address these contentions in turn. A We first consider whether the inflated assessment of market demand by the Forest Service led it to present misleading information in the EIS. NEPA requires federal agencies to examine the environmental effects of a proposed project and, for those actions that will significantly affect the environment, to inform the public in an EIS of the relevant factors that were considered in the decision-making process. See 42 U.S.C. § 4332(2)(C); Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). NEPA is a procedural statute; NEPA does not force an agency to choose the most environmentally sound alternative, but it does ensure that agency action is “fully informed and well considered.” Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). “Where the information in the initial EIS was so incomplete or misleading that the decisionmaker and the public could not make an informed comparison of the alternatives, revision of an EIS may be necessary to provide a reasonable, good faith, and objective presentation of the subjects required by NEPA.” Animal Def. Council v. Hodel, 840 F.2d 1432, 1439 (9th Cir.1988), amended by 867 F.2d 1244 (9th Cir.1989) (internal quotation marks omitted). NRDC contends that the economic information in the EIS for the Tongass Plan was misleading because it was based on mistaken market demand projections that inflated the economic benefits and discounted the environmental impacts of the Plan. The Fourth Circuit has held that there was a NEPA violation where an EIS inflated the economic benefits of a proposed plan. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446-48 (4th Cir.1996). Inaccurate economic information may defeat the purpose of an EIS by “impairing the agency’s consideration of the adverse environmental effects” and by “skewing the public’s evaluation” of the proposed agency action. Id. at 446; see also Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 235 F.Supp.2d 1143, 1157 (W.D.Wash.2002) (“An EIS that relies upon misleading economic information may violate NEPA if the errors subvert NEPA’s purpose of providing decisionmakers and the public an accurate assessment upon which to evaluate the proposed project.”). We hold that here the market-demand error was sufficiently significant that it subverted NEPA’s purpose of providing decision makers and the public with an accurate assessment of the information relevant to evaluate the Tongass Plan. Throughout the EIS, calculations of the projected employment effects of the Plan are based on the Forest Service’s mistaken interpretation of the Brooks and Haynes report. The EIS states that the “approach used by Brooks and Haynes is representative and is used in this analysis as a baseline projection for use in comparing expected employment levels under different planning alternatives.” The EIS uses the mistaken medium demand scenario of 212 MMBF/year to predict the employment and earnings potential of each considered alternative. Had the decision makers and public known of the accurate demand forecast for Tongass timber, and the concomitant lower employment and earnings potential, the Forest Service may have selected an alternative with less adverse environmental impact, in less environmentally-sensitive areas. Presenting accurate market demand information was necessary to ensure a well-informed and reasoned decision, both of which are procedural requirements under NEPA. See, e.g., Vt. Yankee Nuclear Power Corp., 435 U.S. at 558, 98 S.Ct. 1197. The Forest Service argues that because the final EIS was fully developed and printed before the 1997 Brooks and Haynes report was received, the EIS analysis was complete and gave a basis for an informed comparison. We reject the Forest Service’s argument because it is contrary to the evidence. The updated Brooks and Haynes projection scenarios were incorporated into the final EIS through an “Errata” that identified errors and updated the initial “paper version” of the EIS. The Errata replaces the tables comparing employment and business earnings predictions used in the paper EIS with new tables of economic predictions based upon the Forest Service’s erroneous interpretation of the Brooks and Haynes report. The Forest Service’s final decision was made after it relied upon its incorrect market demand assessment. The Forest Service also contends that it adequately and correctly considered the updated Brooks and Haynes market demand report in Appendix M, which the Forest Service argues reasonably concluded that a supplemental EIS was not required to address the substantial change in market conditions. This contention, however, is unsupported by the record. Appendix M discusses the 1997 Brooks and Haynes report, and gives a correct interpretation of its projected scenarios, but Appendix M fails to mention or correct the error made in the economics section of the EIS. Similarly, Appendix M fails to conduct a new analysis of employment and earnings predictions in light of the updated 1997 Brooks and Haynes report. Appendix M does not cure the misleading economic information presented to decision makers and the public in the EIS. Finally, the Forest Service argues that because Appendix M asserted that “short-term demand information is not significant to the choice of alternatives” the economic information presented in the EIS was not misleading. The Forest Service also suggests in Appendix M that the Brooks and Haynes report was unreliable and insignificant. The Forest Service’s argument does not persuade us. In the EIS, the Forest Service refers to the market demand projections in the 1997 Brooks and Haynes report, which demand was misinterpreted and doubled by the agency, as “the most reliable and defensible estimates” because of the report’s methodology. The EIS presented to decision makers and to the public a comparison of alternatives based on an economic forecast that relies on a flawed view of the market demand for Tongass timber. Thus, we conclude that short-term market demand was significant because the Forest Service presented and relied on the misconstrued demand information to predict the Plan’s economic effects. We conclude that the Forest Service presented misleading economic effects of the Plan significant to its evaluation of alternatives considered by the Plan, and the public was similarly misled in its opportunity for comment. We hold that the Forest Service violated NEPA’s procedural requirement to present complete and accurate information to decision makers and to the public to allow an informed comparison of the alternatives considered in the EIS. See Animal Def. Council, 840 F.2d at 1439; see also Hughes River Watershed Conservancy, 81 F.3d at 446. B We next consider whether the alternatives explored by the Forest Service were inadequate. NEPA requires agencies to “rigorously explore and objectively evaluate all reasonable alternatives” to a proposed plan of action that has significant environmental effects. 40 C.F.R. § 1502.14(a) (2000). This is “the heart” of an EIS. City of Carmel-by-the-Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir.1997). “The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Citizens for a Better Henderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir.1985); see also 36 C.F.R. § 219.12(f)(1) (2000) (“Alternatives shall be distributed between the minimum resource potential and the maximum resource potential to reflect to the extent practicable the full range of major commodity and environmental resource uses and values that could be produced from the forest.”). NRDC contends that the Forest Service failed to consider alternatives that would have a timber program potential sufficient to meet or exceed market demand projections, while protecting more intact habitat, notably habitat in high-volume stands of old growth forest. Many considerations went into the development and evaluation of each alternative, including the level of wildlife habitat protection and the level of contribution to the local and regional economies of southeast Alaska. We have held that where changed circumstances affect the factors relevant to the development and evaluation of alternatives, the Forest Service must account for such change in the alternatives it considers. See Alaska Wilderness, 67 F.3d at 730-31 (“While we cannot predict what impact the elimination of the [long-term] contract will have on the Forest Service’s ultimate land use decisions, clearly it affects the range of alternatives to be considered.”). Here, the Forest Service’s discovery of its error in interpreting the Brooks and Haynes report affected the economic and wildlife factors that the Forest Service used in developing and evaluating the alternatives considered in detail. See discussion supra Parts III.B and IV.A. Specifically, the EIS considered ten alternatives with an ASQ ranging from 0 (Alternative 1, the no logging alternative) to 640 MMBF/year (Alternative 7), and chose Alternative 11, which had an ASQ of 267 MMBF/year. The ASQ for Alternative 11 lies between the medium and high demand scenarios, as incorrectly interpreted by the Forest Service in the ROD and EIS. An analogous ASQ based on the correct market demand projection would be around 139 MMBF/year. Supra note 23. The EIS considered two alternatives (4 and 5) with an ASQ situated between the actual medium and high demand scenarios, but rejected both in part because “Alternatives 4 and 5 (in addition to Alternative 1) do not have a timber program that would be adaptable to changing demands or new technologies and would be more likely to adversely affect communities whose primary employment comes from timber harvesting.” Because the EIS did not examine the viable alternative of setting the ASQ equal to any of the three correct market demand scenarios for Tongass timber, and in light of the TTRA’s requirement to seek to meet market demand and the Forest Service’s awareness of its misinterpretation of the Brooks and Haynes report, we hold that the EIS is inadequate in its consideration of alternatives, violating NEPA. See Alaska Wilderness, 67 F.3d at 730-31. Equally important, each of the ten alternatives considered in the EIS allocate some currently roadless areas to LUDs that allow development. The allocations range from .12 million acres (Alternative 1) to 6.2 million acres (Alternative 7). If the no logging alternative (Alternative 1) were excluded, the range of roadless allocation considered by the alternatives is 2.4 to 6.2 million acres. Alternative 11 allocates 2.4 million acres of roadless area to development. As a percentage of total development LUD acreage, no alternative allocates less than 50% to currently roadless areas. Because the range of alternatives considered by the EIS omits the viable alternative of allocating less unspoiled area to development LUDs, we hold that the EIS is inadequate, in violation of NEPA. See Citizens for a Better Henderson, 768 F.2d at 1057; see also California v. Block, 690 F.2d 753, 767-68 (9th Cir.1982). C We finally consider whether the EIS properly gauged the cumulative effects of logging of high-volume old growth forest on non-federal lands. NEPA requires an agency to consider the environmental impact that “results from the incremental impact of the action when added to other past, present and reasonably foreseeable actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 809 (9th Cir.1999) (per curiam) (quoting 40 C.F.R. § 1508.7). An EIS must include a “useful analysis of the cumulative impacts of past, present and future projects” in sufficient detail to be “useful to the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts.” Id. at 810 (quoting Carmel-by-the-Sea, 123 F.3d at 1160). The Forest Service in the EIS must at a minimum provide a “catalog of past projects” and a “discussion of how those projects (and differences between the projects) have harmed the environment.” Lands Council, 395 F.3d at 1027. NRDC contends that the Forest Service failed to disclose the cumulative impacts of non-federal logging of high-volume stands on the Ton-gass. High-volume old growth forests have a special economic value for the timber industry and a special habitat value for wildlife. According to scientists assembled by the Forest Service to review independently the conservation measures related to wildlife habitat for the Tongass, high-volume stands provide a combination of large living and dead trees, multiple canopy layers, high-nutrient forage on the forest floor, good protection from snowfall, and other important features leading to habitat of high quality for wildlife adapted to Old Growth. At the same time, these high volume classes have been, almost exclusively, the target for past logging in Southeast Alaska. The EIS acknowledges that timber harvest “has been concentrated in the higher volume classes.” The EIS also notes that 5% of the Tongass National Forest (about 1 million acres) is owned by non-federal entities, and that these lands “have been heavily developed which cumulatively impacts oldgrowth forest resources.” However, the EIS does not disclose the effect of continued “highgrading” of Tongass forest. Moreover, the EIS does not give detail on whether or how to lessen the cumulative impact of this practice. See Muckleshoot Indian Tribe, 177 F.3d at 810. We hold that the EIS fails adequately to consider the cumulative effects of disproportionate high-volume logging on non-federal land because “there is no catalog of past projects and no discussion of how those projects (and differences between the projects) have harmed the environment. ... Moreover, there is no discussion of the connection between individual [non-federal, high-volume] harvests and the pri- or environmental harms from those harvests.” See Lands Council, 395. F.3d at 1027. The EIS is also inadequate because it does not assess the potential impacts of reasonably foreseeable, continued “hi-ghgrading” in the future. See Muckleshoot Indian Tribe, 177 F.3d at 811-12. The Forest Service argues that the Plan only establishes guidance for future actions that may have impacts, and that those impacts will be studied in conjunction with impacts from past, present, and future actions on both federal and non-federal land when those future actions are proposed. However, we held in Resources Limited Inc. v. Robertson, 35 F.3d 1300 (9th Cir.1993), that “the Forest Service is required to address cumulative impacts in the EIS,” and “where several foreseeable similar projects in a geographical region have a cumulative impact, they should be evaluated in a single EIS.” Id. at 1305-06. In Thomas v. Peterson, 753 F.2d 754 (9th Cir.1985), we held that “consideration of cumulative impacts after [agency action] has already been approved is insufficient to fulfill the mandate of NEPA.... [NEPA’s] purpose requires that the NEPA process be integrated with agency planning ‘at the earliest possible time,’ and the purpose cannot be fully served if consideration of the cumulative effects of successive, interdependent steps is delayed until the first step has already been taken.” Id. at 760 (quoting 40 C.F.R. § 1501.2). Here, the record shows that under the Plan, “there is a disproportionate amount of harvesting planned within high-volume low-elevation stands-areas that also provide critical wildlife habitat and are the most valuable to several species of con-eern.” Species are not impacted by the federal or non-federal character of the lands over which they are distributed, but the cumulative effect of “highgrading” on each type of land may determine whether species will retain viable, well-distributed populations in the Tongass. Cf. Resources Ltd., 35 F.3d at 1306 (“[O]ne does not need control over private land to be able to assess the impact that activities on private land may have in the Forest.”). At least in the particular circumstances of this case, the cumulative impacts on wildlife viability from continued “highgrading” by non-federal entities, as well as by the Forest Service to the extent permissible under NFMA, ought to be considered in a single, programmatic EIS. See City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312-13 (9th Cir.1990); see also LaFlamme v. Fed. Energy Regulatory Comm., 852 F.2d 389, 401-02 (9th Cir.1988) (holding that a cumulative impacts analysis was insufficient where the agency had examined single projects in isolation because there were several foreseeable similar projects in a geographical region that added to the cumulative impacts). A cumulative effects analysis in a programmatic EIS is necessary here for the Forest Service and public to make a rational evaluation of this proposed federal action balancing the competing goals of timber harvest, environmental preservation, and recreational use in the Tongass. y We hold that the Forest Service has not met its burden of showing that its admitted error in interpreting the market demand report for Tongass timber was harmless, and we reverse the district court’s final decision and judgment. The Forest Service’s reliance on an important mistake in fact seriously impaired the rationality of the Forest Service’s judgment and Plan for the Tongass. The Forest Service’s error in assessing market demand fatally infected its balance of economic and environmental considerations, rendering the Plan for the Tongass arbitrary and capricious in violation of the APA. Moreover, the EIS was misleading because it presented as fact for decision makers and the public twice the market demand, and economic benefit, attendant to the Plan, violating NEPA. The EIS also did not consider an adequate range of alternatives, in light of a correct interpretation of data that the Forest Service had on market demand projections for Tongass timber, again violating NEPA. Finally the Forest Service in the EIS did not consider the cumulative impacts of past and reasonably foreseeable future non-federal logging in high-volume old growth forest of the Tongass, in further violation of NEPA. The law of NFMA requires, and the ROD attempted, a balance among the multiple uses of our national forest lands, including timber harvest and environmental preservation; because a critical part of this balance was interpreted incorrectly by the Forest Service, the district court incorrectly rendered its final decision and final judgment in favor of the government Ap-pellees, dismissing NRDC’s claims. We keep in place the temporary injunction until a permanent injunction is considered on an appropriate record and is entered by the district court, reflecting the requirements imposed by our opinion. We REVERSE and REMAND to the district court for further proceedings consistent with this opinion. REVERSED and REMANDED. . Intervenors-Appellees State of Alaska and Alaska Forest Association (collectively "Inter-venors”) successfully moved to intervene on the issue of remedy if NRDC succeeds on the merits of this appeal. . The Forest Service admitted this error in its briefs and at oral argument. . The regulations in 36 C.F.R., § 219 have since been supplanted. 65 Fed.Reg. 67,514-81 (Nov. 9, 2000). However, the former regulations are applicable here because they were in effect when the plan revisions challenged in this lawsuit were prepared. . "Highgrading” is the practice of logging disproportionately in high-volume old-growth areas. High-volume old growth areas are superior habitat for many wildlife species, including wolves, the American marten, and marbled murrelets. . Known primarily in modern times for his political achievements, President Theodore Roosevelt was also an occasional "man of letters” who wrote essays on varied topics including the need for conservation of wildlife. See, e.g., Theodore Roosevelt, The Conservation of Wildlife, in 12 The Works of Theodore Roosevelt 423, 425-26 (Charles Scribner's Sons 1926) (Jan. 20, 1915). . According to its website, the Forest Service seeks to "balance multiple uses of the forest resources,” which include "healthy fish and wildlife populations, clean water, trees to support local industry, recreation opportunities unique to Alaska, and plenty of unspoiled beauty and solitude.” U.S. Dep't of Ag., Forest Service, at http://www.fs.fed.us/rlO/ton-gass/forest — facts/forest—facts.shtml (last visited May 10, 2005). . This required duty, to assess market demand for timber, can be seen as a refinement of the general requirement under NFMA that the Forest Service consider timber harvest as one of the goals to be balanced with environmental preservation and recreational use. . "Sawlog” is the "portion of a tree that is suitable in size and quality for the production of dimension lumber, collectively known as sawtimber.” "Utility volume” refers to other types of wood. A figure that included only demand for "sawlog” would therefore be significantly less than a figure that included demand for both "sawlog” and "utility volume.” . The ROD originally examined in detail 11 Alternatives, but omitted Alternative 8 from detailed consideration because of its similarity to Alternative 1 in environmental effect. However, the Forest Service retained the same numbering system, hence the tenth alternative considered is called Alternative 11. .The ASQ represents the "upper decadal limit on the amount of timber that may be offered for sale from suitable timberland on the Tongass National Forest as part of the regularly scheduled timber sale program.” The ASQ applies to sawlog and utility log volumes. .The ASQ, the development LUD acreage, and the allocated roadless area acreage for each considered Alternative is as follows: Alternative ASQ Development LUDs Roadless Area 1 0 .24 million acres .12 million acres 2 463 5.3 million acres 3.6 million acres 3 256 4.4 million acres 2.9 million acres 4 130 5.3 million acres 3.6 million acres 5 122 5.0 million acres 3.3 million acres 6 309 5.0 million acres 3.3 million acres 7 640 8.1 million acres 6.2 million acres 9 549 6.3 million acres 4.7 million acres 10 300 4.4 million acres 2.9 million acres 11 267 3.9 million acres 2.4 million acres . Outcome I indicated that habitat would be "of sufficient quality, distribution, and abundance to allow the species to maintain well distributed, breeding populations across the Tongass.” Outcome II indicated a similar result as Outcome I, but with low density populations, and the possibility of temporary gaps occurring. Outcome III indicated that permanent gaps in species distribution were likely. Outcome IV indicated that habitat would allow continued species existence only with strong limitations on interactions among local populations. Outcome V indicated that habitat conditions would result in species extinction. . The Forest Service, and most panels, initially determined that placement of a species only into Outcomes I and II would indicate a "likelihood that viable populations will remain distributed across the Forest.” This conclusion was modified in Appendix N of the EIS, published four months after the "paper version” of the EIS, wherein the Forest Service determined that placement of a species into Outcome III may, for some species, meet the concept of "viable and well distributed” as required by NFMA regulations. NRDC takes issue with the Forest Service's motive for modifying its standard. We do not; we defer to the Forest Service's judgment on the standard used to gauge wildlife viability as it necessarily involves scientific and technical expertise, in the context of predicting how various timber programs would affect the viability and distribution of species populations. See Nat'l Wildlife Fed’n v. United States Army Corps of Eng’rs, 384 F.3d 1163, 1174 (9th Cir.2004) (“Where scientific and technical expertise is necessarily involved in agency decision-making, especially in the context of prediction ..., the Supreme Court has held that a reviewing court must be highly deferential to the judgment of the agency. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983).”). .The panel results included the following viability ranges: Species Alt. 1 Alt. 2 Alt. 5 Alt. 9 Alt. 11 Northern Goshawk 100% >20%, <61% >85%, <100% >10%, <61% >71%, <97% American Marten >93%, <100% >19%, <83% >66%, <95% >13%, <66% >36%, <91% Alexander Archipelago Wolf >94%, <97% >63%, <97% >84%, <97% >48%, <92% >83%, <97% Brown Bear >94%, <100% >49%, <90% >65%, <98% >16%, <74% >68%, <93% Widely Distributed Mammals >69%, <96% >3%, <18% >39%, <92% >0%, <9% >38% <82% Endemic >40%, >0%, Mammals <71% <8% >10%, >0%, >18% <55% <8% <55% . The district court concluded that the "short-term projections were irrelevant to the long-term, programmatic goals of the revised [Tongass Plan]” and that "the uncertainty of the projections” undermined the market demand report's utility. . The motions panel included Judges Klein-feld, Tashima, and Gould. Judge Kleinfeld dissented from the order granting an injunction pending appeal. . We note that NFMA allows only the "approval/' "amendment,” or "revision” of a forest plan, and not the "readoption” of a forest plan. See 16 U.S.C. § 1604(f)(4)-(5). . The legislative history confirms this limited intent: "The conference agreement retains language proposed in section 329 of the Senate bill limiting review of certain elements in the land management plan for the Tongass National Forest.” H.R. Conf. Rep. No. 108-10, at 1032 (2003); 149 Cong. Rec. S340-05, at S588 (daily ed. Jan 15, 2003) (Senate report submitted by Sen. Stevens) ("Limits the review of certain aspects of the Tongass Land Management Plan.”). . Alternatively, even if Congress intended in the 2003 Appropriations Act to preclude judicial review of the entire 1997 Plan, we would retain jurisdiction over NRDC's appeal because appropriations acts are generally only “in force during the fiscal year of the appropriation and do not work a permanent change in the substantive law.” Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 304 (9th Cir.1991) (holding that a rider that limited judicial review of national forest management plans expired at the end of the appropriation year). To rebut this presumption takes a clear statement of “futurity,” such as "hereafter.” See Atl. Fish Spotters Ass’n v. Evans, 321 F.3d 220, 224-25 (1st Cir.2003); Bldg. & Constr. Trades Dep't, AFL-CIO v. Martin, 961 F.2d 269, 273-74 (D.C.Cir.1992). . Our review of agency action is governed by the APA; we will set aside only agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir.1993). Our review is narrow, but searching and careful. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). . In the Plan's Appendix L, containing public comments and Forest Service responses, the Forest Service expressly rejected suggestions for a lower ASQ because they would not enable the Forest Service to "meet the provision in the Tongass Timber Reform Act to seek to supply timber which meets the annual market demand for timber (consistent with providing for the multiple use and sustained yield of all renewable forest resources).” . We do not suggest that an ASQ can never be too low to satisfy market demand, or that the Forest Service must in fact meet demand (as opposed to seek to meet market demand). Here, however, the record shows that the Forest Service preferred the ASQ that it believed best balanced NFMA's three multiple-use goals: recreation, environmental protection, and timber harvest. The Forest Service acted arbitrarily because it fundamentally misunderstood one leg of this tripodal balance, believing its scenarios of projected market demand, pertinent to the timber harvest goal, to be double the actual amount of demand. . As it stands in the ROD, the chosen ASQ of 267 MMBF/year lies between the medium (212) and high (296) market demand scenarios projected by the Forest Service. If this ratio holds, based on the correct market demand projection scenarios, the Forest Service would have had flexibility to respond to changing demand with an ASQ of 139 MMBF/year (situated between the actual medium (110) and high (154) market demand scenarios). . The Forest Service suggests that the TTRA’s qualifying language, stating that the Forest Service must seek to meet market demand only "to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources," 16 U.S.C. § 539d(a), means that its mistake must be harmless because market demand considerations come into play only after NFMA’s mandatory provisions are satisfied. Here, however, the Forest Service considered market demand in balancing NFMA's multiple-use goals and in assessing the various Alternatives, but misinterpreted the relevant data. The Forest Service’s error on demand had a bearing on its analysis, and is not harmless under our precedent. See Gifford Pinchot, 378 F.3d at 1071. . Because we reverse the district court and hold the Plan invalid on the above ground relating to the Forest Service’s error on market demand, we need not address NRDC's further argument that the Forest Service's conclusion that timber goals justified the Plan’s risks to wildlife was arbitrary and capricious. . Although the law requires an EIS for every federal action that has a significant impact on the environment, 42 U.S.C. § 4332(2)(c), NEPA's procedures do not apply to agency actions that "maintain the environmental status quo.” Kootenai Tribe v. Veneman, 313 F.3d 1094, 1114 (9th Cir.2002). After the Forest Service discovered the market demand error, it concluded that a supplemental EIS was not necessary. In 2003, in response to a court order directing the Forest Service to consider recommending more wilderness area in the Tongass Plan, the Forest Service issued the ROD selecting the "No Action” Alternative, which represented the Plan's original land allocations. The 2003 ROD did not require an EIS because it maintained that environmental status quo. Our holdings today make clear that the Forest Service will need to prepare a new EIS because the prior EIS did not satisfy NEPA’s requirements. .We review de novo a district court's legal determinations that an agency complied with NEPA and that the EIS is adequate. See Churchill County v. Morton, 276 F.3d 1060, 1071 (9th Cir.2001), amended by 282 F.3d 1055 (9th Cir.2002). We review NEPA claims under the APA and will set aside agency actions that are adopted "without observance of procedure required by law.” 5 U.S.C. § 706(2)(D); Ctr. for Biological Diversity v. United States Forest Serv., 349 F.3d 1157, 1165 (9th Cir.2003). We apply a "rule of reason” standard when reviewing the adequacy of an agency’s EIS, asking "whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Churchill County, 276 F.3d at 1071. Under this standard, we make "a pragmatic judgment whether the EIS's form, content and preparation foster both informed decision-making and informed public participation.” Id. . The ROD's reliance on the market demand projections is made more clear by the Forest Service's multiple references to the Brooks and Haynes report in responding to public comments in Appendix L. For example, the Forest Service responded to criticism of a "[ljack of ‘genuine’ timber demand study” by noting the several research projects it had undertaken and concluding that "[ajfter review of the findings of each of the[] studies, we have elected to utilize the predictions made by Brooks and Haynes.” Indeed, in previous court documents, the Forest Service argued for the importance of the Brooks and Haynes projection numbers: “A major effort in [seeking to meet market demand] is the preparation of demand reports by economists Haynes and Brooks of the Pacific Northwest Forest and Range Experiment Station.” U.S. Forest Service Opposition to Summary Judgment in Alaska Forest Ass’n v. U.S. Forest Serv., J99-013-CV (JKS) (D.Alaska 2000). . Before a motions panel, NRDC obtained an injunction pending appeal of one of the seven timber sales at issue in this case because the sale would "cause irreparable inju-iy" and because NRDC showed a "likelihood of success on the merits.” Order at 3-4 (filed Oct. 18, 2004). Intervenors argue that we should lift the current injunction and bar the lower court from granting any injunctive relief. In light of our decision, we reject this argument. The appropriateness and scope of an injunction "raise intensely factual issues, and for that reason should be decided in the first instance by the district court.” Alaska Wilderness, 67 F.3d at 732. Here, the district court has not yet conducted the relief portion of the case, and so neither NRDC nor the Forest Service have been able to conduct discovery or submit evidence as to the scope of permanent injunctive relief. Further, NRDC in its briefing urges that we “should not consider permanent relief at this point.” Because the record has not been developed in this respect, we retain the current injunction provisionally and remand to the district court to conduct such further proceedings as are appropriate, and consistent with this opinion, to address the scope of permanent injunctive relief.

Mayo Foundation v. Surface Transportation Board

ARNOLD, Circuit Judge. The petitioners challenge the decision of the Surface Transportation Board, which, after considering the issues that we remanded to it in Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir.2003), and certain other issues, again approved a proposal of the Dakota, Minnesota & Eastern Railroad Corporation (DM & E) to construct approximately 280 miles of new rail line to reach the coal mines of Wyoming’s Powder River Basin (PRB) and to upgrade nearly 600 miles of existing rail line in Minnesota and South Dakota. The petitioners contend that in giving its approval the Board violated 49 U.S.C. § 10901 and the National Environmental Policy Act (NEPA), see 42 U.S.C. §§ 4321-4347. We deny the petition. I. DM & E is required to obtain approval from the Board before constructing the new rail line. See 49 U.S.C. § 10901. Because granting such approval is “a major Federal action[] significantly affecting the quality of the human environment,” NEPA requires the Board to evaluate the environmental impact of the project. 42 U.S.C. § 4332(2)(C). The Board therefore prepared both a draft environmental impact statement (DEIS) and a final environmental impact statement (FEIS) examining the environmental effects of the proposal, and after imposing 147 conditions designed to mitigate the project’s environmentally adverse effects (pursuant to its authority under 49 U.S.C. § 10901(c)), the Board approved the project in 2002. We reversed the Board’s approval of the project for failure to comply with NEPA and remanded the case to the Board. As relevant here, we directed the Board to give further consideration to its decision not to impose mitigating conditions for horn noise (as distinct from wayside noise) and to consider the expected environmental effects of increased coal consumption due to the availability of shorter and cheaper rail routes for PRB coal distribution. Mid States, 345 F.3d at 532, 536, 550. Petitioners do not challenge the Board’s disposition of the other remanded issues. On remand, the Board issued a draft supplemental environmental impact statement (DSEIS), and after receiving comments to the DSEIS, it issued a final supplemental environmental impact statement (FSEIS). The Board thereafter approved the DM & E project based on the analysis in the DSEIS and the FSEIS, specifically addressing the remanded issues as well as additional issues raised during the supplemental environmental review. The Board reimposed the 147 mitigating conditions that it initially imposed in its 2002 approval, modifying one of the conditions to require DM & E community liaisons to assist communities or other entities interested in establishing and funding quiet zones (zones in which horn noise is eliminated). Relatedly, after the Board’s initial approval of the construction project in 2002, it separately approved DM & E’s acquisition of over 1,000 miles of existing rail line in Minnesota, Iowa, Kansas, Missouri, Wisconsin, and Illinois from I & M Rail Link (IMRL), with which DM & E has a connection at Owatonna, Minnesota. As discussed below, petitioners raise this addition to DM & E’s rail lines as an alternative routing to the contested route through Rochester, Minnesota (the Rochester route connects to points east at Winona, on Minnesota’s eastern border). II. The Administrative Procedure Act governs our review of the Board’s compliance with NEPA, and requires us to “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In reviewing the Board’s decision, we keep in mind that NEPA requires the Board to “take a hard look at the environmental consequences” of a major federal action before approving such action. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal quotations marks and citation omitted). As we remarked in Mid States, “[o]ur role in the NEPA process ‘is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.’ ” Mid States, 345 F.3d at 534 (quoting Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. 2246). A. We turn first to the argument raised by the Mayo Foundation, the City of Rochester, and Olmsted County, that DM & E’s acquisition of IMRL constitutes “significant new circumstances” that should give rise to the consideration of this new line as an alternative to routing trains through Rochester, see 40 C.F.R. §§ 1502.9(c)(1)(h), 1502.14. The Board disagreed, stating that “it was not necessary to delay the SEIS to include consideration of the impacts of the IMRL acquisition ... The IMRL acquisition and the DM & E construction project are separate and distinct, and each has its own utility and benefit.” Dakota, Minn. & Eastern R.R. Corp.Constr. into the Powder River Basin, STB Finance Docket No. 33407 at 19, 2006 WL 383507, at * 14 (STB served Feb. 15, 2006) (hereafter STB 2006 Decision). The Board is required to consider all “reasonable” alternatives. See 40 C.F.R. § 1502.14(a). It is not required, however, to consider alternatives that would frustrate the very purpose of the project. As we said in City of Richfield, Minn. v. F.A.A., 152 F.3d 905, 907 (8th Cir.1998), an “alternative is unreasonable if it does not fulfill the purpose of the project.” See also Missouri Mining, Inc. v. I.C. C., 33 F.3d 980, 984 (8th Cir.1994); Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991), cert. denied, 502 U.S. 994, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). Even though the Board’s decision does not explicitly state that it did not consider the IMRL alternative because that route is simply inconsistent with the project’s purposes, we believe that this is implicit in its decision. For one thing, the Board noted that it had “made a preliminary finding in 1998 that there would be transportation and other public benefits from the proposed new line due to improved productivity and efficiency over this shorter route.” STB 2006 Decision at 3, 2006 WL 383507, at *2. Furthermore, in stating that the construction and acquisition projects are “separate and distinct, and each has its own utility and benefit,” we believe that the Board was relying on and implicitly importing into its decision its earlier findings in both the acquisition and construction proceedings. The Board recognized in its 1998 decision that central to the success of DM & E’s proposed construction project would be its ability to have multiple routing options, including routing trains over the lines of other railroad companies. There, the Board stated that “DM & E’s Plan depends on its ability to interchange cars with other railroads,” and noted that DM & E’s “application identifies three primary interchange points with other railroads: (1) UP at Mankato, MN; (2) I & M Rail Link at Owatonna, MN; and (3) UP, CP and I & M at Winona/Minnesota City, MN.” Dakota, Minn. & Eastern R.R. Corp.Constr. into the Powder River Basin, STB Finance Docket No. 33407, 3 S.T.B. 847, 900, 1998 WL 869567, at *31 (Dec. 9, 1998) (emphasis added) (hereafter STB 1998 Decision). Removing the ability to route trains through Rochester, Minnesota, to the connection point at Winona, Minnesota, would therefore frustrate the purpose of the construction project. The Board also discussed at length in its 1998 decision the competitive advantages of a PRB connection added to the DM & E line, primarily focusing on DM & E’s shorter, more direct route as compared to its would-be competitors transporting PRB coal to eastern markets. For example, the Board concluded that “[biased on DM & E’s mileage advantage to the Great Lakes ... we find adequate support in the record ... for DM & E’s claim that it could gain a 62% share of the coal delivered to this market.” STB 1998 Decision at 878, 1998 WL 869567, at * 17. The Board further found that “DM & E’s assertion that it would gain a 61% share of the tonnage of the Upper Midwest Rail market is based on its mileage advantage to plants accounting for a majority of the tonnages in that market ... we think that DM & E’s argument that it would become the dominant rail carrier of coal in the Upper Midwest market is supported on the present record.” Id. at 881, 882, 1998 WL 869567, at * 19, *20. Again, with respect to the Upper Mississippi River market, the Board stated: “Because the plants in this market currently ship one-third of their coal from Wyoming and the DM & E route is at least 140 miles shorter than either BNSF’s or UP’s from Wyoming origins, it appears that DM & E could have the upper hand in this market.” Id. at 882, 1998 WL 869567, at *20. The Board relied on these findings in determining the public benefit and financial soundness of the PRB construction project. And, as the Board points out in its brief in this appeal, the DM & E route through Rochester “would be about 150 miles shorter for movements to certain key plants in Wisconsin than a circuitous DM & E — IMRL route through Owatonna that Petitioners would have the Board force on DM & E.” With respect to the IMRL acquisition, the Board’s 2003 decision in that case points to multiple public-interest justifications for the acquisition that are unrelated to DM & E’s PRB construction. For example, the Board concluded that “[sjhippers on the DM & E/IC & E system will benefit from the better equipment coordination and utilization, improved service patterns, and other operating efficiencies made possible by common control. Common control also will give shippers ... new routing and service options and more efficient and competitive single-system access to significant new markets and gateways. These beneficial effects for shippers provide additional support for approval of the DM & E/IC & E control transaction.” Dakota, Minn. & Eastern R.R. Corp. and Cedar Am. Rail Holdings, Inc. Control Iowa, Chicago & Eastern R.R. Corp., STB Finance Docket No. 34178 at 8, 2003 WL 221559, at *9 (STB served Feb. 3, 2003). Given this record, it is clear that the Board thoroughly examined the purposes of the two projects, and this examination— as illuminated by the Board’s prior decisions — informed its conclusion in its 2006 decision that the IMRL acquisition did not provide a reasonable alternative to DM & E’s route through Rochester (the environmental effects of which have been exhaustively studied). The Board was thus not required to consider the environmental impacts of the IMRL alternative, and its decision not to do so was not arbitrary and capricious or an abuse of discretion. B. We turn next to the arguments advanced by Rochester and Olmsted County that the Board, in considering the horn noise mitigation issue on remand, should have required DM & E to fund measures required for the establishment of quiet zones in Rochester, to build sound walls in Rochester and Chester, and to install noise insulation at sites subjected to adverse levels of horn noise. In Mid States, we held that the Board did not take the requisite “hard look” at horn noise mitigation because it did not “ ‘explain fully its course of inquiry, analysis and reasoning’ ” as to why no mitigation for horn noise was required. Mid States, 345 F.3d at 536 (quoting Minnesota Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1299 (8th Cir.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1340, 51 L.Ed.2d 601 (1977)). Specifically, we noted the disparity between the Board’s imposition of mitigating conditions for receptors of wayside noise of 70 decibels or higher and its failure to impose mitigating conditions for receptors experiencing similar levels of horn noise. Mid States, 345 F.3d at 536. On remand, the Board again decided not to impose horn noise mitigation, other than to require DM & E’s community liaisons to assist in the establishment of quiet zones upon request from communities interested in establishing them. STB 2006 Decision at 10, 2006 WL 383507, at *2. As a preliminary matter, we observe that the Federal Railroad Administration (FRA) recently implemented regulations allowing public authorities to declare quiet zones without formal application to, or approval by, the FRA. 49 C.F.R. § 222.39. To establish a quiet zone without formal application, however, certain safety measures must be installed. The FSEIS estimated that the expense of installing the required safety measures to qualify for quiet zones along the rail line without application would be approximately $2.5 million. FSEIS at 2-16. Rochester and Olmsted County essentially argue that the Board has the authority to require DM & E to pay for these quiet-zone-related measures and that the Board’s decision not to impose this cost on DM & E (as it did with respect to wayside noise mitigation) is' arbitrary and capricious. More precisely, Rochester and Olmsted County argue that the Board overly emphasized the cost of horn noise mitigation in its decision not to impose such conditions, and inappropriately failed to consider the cost of the mitigation measures within the context of the total cost of the project (a project the Board admits is “the largest and most challenging rail construction proposal ever to come before the [Board]”). Dakota, Minn. & Eastern R.R. Corp. Constr. Into the Powder River Basin, STB Finance Docket No. 33407 at 4 (STB served Jan. 28, 2002). Olmsted County points out that if the cost of all horn noise-mitigating measures (i.e., quiet zones, sound walls and sound insulation) were included in the estimated cost of all mitigating conditions, the total mitigation costs, using the most conservative estimates, would be 12.2% of the total cost of the project. This assumes an estimate of total mitigation costs (including these three) of $133.5 to $170.5 million (using the upper end of that range) and a total project estimated cost of $1.4 billion (the estimated cost of the project in 2001). (The total project estimated cost is now $2 billion, increased to reflect the increase in construction costs since 2001; and, as Olmsted County points out, if this higher estimate is used, the total cost for mitigating conditions [including the requested horn noise-mitigating measures] drops to 8.5%.) Olmsted County goes on to argue that the Board admitted in the FSEIS that “ ‘[f]or large capital projects ... it is not unusual for mitigation to total 10 to 20 percent of construction costs,’ ” see FSEIS at 12-24, and therefore that the Board’s failure to impose the requested horn noise-mitigation conditions was arbitrary and capricious. These arguments are initially appealing and certainly beg the question why the Board would not impose such costs when it acknowledges the adverse effects of horn noise on certain affected areas. See, e.g., FSEIS at 2-18, 2-26. And this issue goes to the heart of the ultimate question that Rochester poses, the spirit of which motivated our remand on this issue in Mid States: “Why is it reasonable for the Board to require mitigation for wayside noise, but not for horn noise?” We believe that the Board sufficiently answered this question on remand by pointing out that communities have an option for addressing horn noise concerns (ie., quiet zones) that they did not have with respect to wayside noise. The Board adopts the rationale set forth in the FSEIS, which states that “the commenters [to the DSEIS] have failed to show that DM & E should be required to fund the establishment of a quiet zone just because this project requires a license and a NEPA review from the Board ... [the Section on Environmental Analysis (SEA)] is aware of no instance where a railroad has been required to fund a quiet zone or other horn noise abatement measures, even under traffic increases in excess of those anticipated as a result of this project.” The Board concluded by pointing out that “a variety of Federal, state, and local funding options are available to help communities establish quiet zones. For all of these reasons, [the SEA] does not believe it would be appropriate ... that DM & E be made responsible for establishing or funding ... quiet zones.” FSEIS at 2-20 to 2-21. Not requiring DM & E to provide the funds necessary to implement the needed measures to establish quiet zones, moreover, does not make this option otherwise unavailable to the concerned communities. As further support for its decision not to require DM & E to fund the measures needed to implement quiet zones, the FSEIS states that the Board “consulted informally with FRA to learn how the numerous communities seeking to establish quiet zones under FRA’s Final Rule are planning to fund the necessary grade improvements ... FRA pointed out that for none of the communities seeking quiet zones was a railroad contributing any funding to the effort.” FSEIS at 2-18. The Supreme Court has made clear that a reviewing court cannot substitute its own judgment of reasonableness for that of the agency. In Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), the federal agency argued that the reviewing court need only decide whether the agency’s decision not to prepare a supplemental EIS was “arbitrary and capricious,” whereas those challenging the agency’s action argued “that the reviewing court must make its own determination of reasonableness to ascertain whether the agency action complied with the law.” The Court noted that the agency action required a high level of technical expertise, and concluded that “review of the narrow question” was “controlled by the ‘arbitrary and capricious’ standard of § 706(2)(A).” Marsh, 490 U.S. at 375-76, 109 S.Ct. 1851; see also Vermont Yankee Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Furthermore, it bears repeating that the court’s role “is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. 2246; see also Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir.1999). Given the Board’s consideration of the adverse effects of the expected increase in horn noise and its reasoned conclusions with respect to what mitigating conditions it would ultimately impose (in addition to its consideration of the options independently available to the affected communities), we believe the Board has met this standard. The Board’s conclusion with respect to another proposed mitigating condition for horn noise — the construction of sound walls in Rochester and Chester — is equally supported by the Board’s disclosure of the environmental concerns and its reasons for ultimately deciding not to require their construction. In its brief, Olmsted County argues that in the “course of rejecting the construction of sound walls for larger communities such as Rochester, the [Board] improperly rejected this mitigation measure for all communities, including smaller communities such as Chester. This one-size-fits-all analysis falls short of the hard look required by NEPA.” What Olmsted County does not include in its brief, though, is that the discussion of sound walls encompassed nearly five pages in the FSEIS, and multiple concerns were advanced questioning the advisability of sound walls in general, not just in Rochester. The FSEIS ultimately recommended against sound walls as a mitigating alternative for horn noise “in light of the safety concerns for motorists, train crews, and pedestrians; questions regarding the ultimate effectiveness of sound walls; and significant costs associated with sound wall construction and maintenance.” FSEIS at 2-31. The Board also specifically addressed the issue of sound walls in Chester, stating in the DSEIS that “no sound barriers in Chester, Minnesota warranted consideration due to the minimal length of residential development along the existing line through this community.” DSEIS at 2-12 n. 22. We thus believe the Board’s rejection of the sound wall mitigating condition, see STB 2006 Decision at 9, 2006 WL 383507, at *6, was not arbitrary and capricious, but rather a reasoned consideration of an ultimately unavailing proposition. Petitioners do not argue that the Board’s rejection of sound insulation treatments was arbitrary and capricious other than in relation to their arguments, discussed above, that the cost of all requested horn noise mitigation measures was not appropriately considered within the larger context of the project’s total expected cost. We thus conclude that the Board’s rejection of this mitigation measure was not arbitrary and capricious for the same reasons discussed above. C. We turn finally to petitioner Sierra Club’s argument that the Board did not adequately address what increase in the use of PRB coal — and therefore in certain air polluting emissions — could be expected due to the availability of a shorter, cheaper distribution route from Wyoming’s Powder River Basin. In Mid States, we held that the Board inappropriately approved the DM & E construction project “without first examining the effects that may occur as a result of the reasonably foreseeable increase in coal consumption” expected from the project due to the availability of cheaper and easier distribution of PRB coal. Mid States, 345 F.3d at 550. We rejected in Mid States the Board’s argument that such effects are too speculative by pointing to the CEQ regulations specifically designed for “ ‘evaluating reasonably foreseeable significant adverse effects on the human environment’ ” when “ ‘there is incomplete or unavailable information.’ ” Id. at 549-50 (quoting 40 C.F.R. § 1502.22). We also found fault with the FEIS conclusion that further study of this issue was not warranted because the 1990 Clean Air Act Amendments placed caps on sulfur dioxide emissions. We found the FEIS to be inadequate because it did not also include information on the potential increase in emissions of other pollutants— specifically, nitrous oxide, carbon dioxide, particulates and mercury — none of which was subject to caps. As we noted in Mid States, moreover, computer “programs could be used to forecast the effects of this project on the consumption of coal.” Mid States, 345 F.3d at 548-50. On remand, the Board undertook just such a study using the Energy Information Administration’s (EIA) National Energy Modeling System (NEMS). The Board noted in its decision on remand that it chose this computer program, after considering several others, “because it not only forecasts coal supply and demand but also quantifies environmental impacts.” STB 2006 Decision at 11, 2006 WL 383507, at *7. The Board concluded, in reliance on the study results, that “on both national and regional levels, projected air emissions for sulfur dioxide, nitrogen oxides, carbon dioxide, and mercury associated with the small increase of additional coal usage would be less than 1%” and that “increases for carbon monoxide and particulate matter would also be less than 1%.” Id. at 12, 2006 WL 383507, at *9. The Board also noted that there “were no Federal standards for carbon dioxide or mercury at the time EIA ran the rate sensitivity analysis in this case. However, in March 2005, EPA issued rules to regulate mercury, as well as additional regulations for sulfur dioxide and nitrogen oxides emissions at power plants (the Clean Air Interstate Rule)” that will be applicable to DM & E’s core markets. Id. at 13 n. 35, 2006 WL 383507, at *38 n. 35. The Board admitted that NEMS could not be used to model these impacts at the local level, and thus followed the procedure that the CEQ regulations require when critical information is unavailable or incomplete. These regulations require that the adverse effects be addressed in an environmental impact statement, and, “[i]f the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known,” the agency must include the following information in the environmental impact statement: (1) A statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating [such impacts], and (4) the agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community. 40 C.F.R. § 1502.22(b). The Board explained that NEMS is “essentially a national and regional modeling tool” that could not be used to obtain the same level of predictive information for the local level. The Board stated that such predictive information was relevant since “there could be an increase in certain air emissions because more PRB coal would be consumed as a result of this project.” With respect to existing credible scientific evidence and its potential impacts, the Board explained further that in order “to reasonably foresee the likely impacts of this project on a local level, [it] would need to know not only what existing or new power plants would actually use DM & E’s service, but also whether they would otherwise not burn PRB coal, not burn as much coal, or burn a different mix of coal.” The Board concluded that this could not “be determined in advance here with any degree of confidence.” STB 2006 Decision at 13, 2006 WL 383507, at *9. After noting that “the impacts of this project on coal consumption and resulting air emissions would be small” on a national and regional basis and that any potential local air quality impacts were “speculative” and “ultimately unforeseeable,” the Board concluded that it was not necessary to impose additional mitigating conditions on the project. Id. at 17, 2006 WL 383507, at *12. The Sierra Club is the only petitioner that maintains that the Board’s handling of this issue on remand was inadequate. It argues in its brief that “[ijnstead of conducting the required analysis, the [Board] bolstered the argument that it had unsuccessfully presented to the panel — -that not all of the DM & E-transported coal would represent new combustion, that some would be simply a substitute for existing coal supplies, and that it was not, therefore, required by NEPA to address the consequential air pollution within the FEIS.” The Sierra Club’s argument is meritless. The DSEIS, the FSEIS, and the Board’s decision on remand each extensively discuss the potential impacts on air quality that may result from the implementation of the project. See DSEIS at 4-1 to 4-53; FSEIS at 4-1 to 4-41; STB 2006 Decision at 10-17, 2006 WL 383507, at *7-* 13. We therefore believe that the Board more than adequately considered the “reasonably foreseeable significant adverse effects [of increased coal consumption] on the human environment” on remand. III. For the reasons stated above, we affirm the decision of the STB.

Natural Resources Defense Council, Inc. v. United States Department of Agriculture

JOHN M. WALKER, JR., Circuit Judge: This case concerns our national response to the significant environmental threat presented by plant pests and pathogens introduced into the United States through the importation of solid wood packaging material (“SWPM”)-including pallets, crates, boxes, cases, and skids-used to support, protect, and carry commodities entering the country. Exotic wood-boring insects that accompany SWPM, such as the pine shoot beetle, the Asian longhorned beetle, and the emerald ash borer, undisputedly pose a threat to U.S. agriculture and ecotourism, and to natural, cultivated, and urban forests. While the environmental impact of these destructive insects is real, the United States cannot address this global threat alone, and the U.S. Department of Agriculture, through the Animal and Plant Health Inspection Service (“APHIS”), is required to balance environmental considerations, international guidelines, and global trade concerns in adopting a final rule for the importation of SWPM. Plaintiffs-Appellants Natural Resources Defense Council, Inc. (“NRDC”) and the States of California, Connecticut, and Illinois (collectively, “Plaintiffs”) appeal from a judgment and order of the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge) holding that Defendants-Appellees (“Defendants”) complied with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., and the Plant Protection Act (“PPA”), 7 U.S.C. § 7701 et seq., when they adopted a final rule concerning the treatment of imported SWPM. The final rule required that all SWPM be either heat treated to a minimum wood core temperature of 56°C for a minimum of 30 minutes or fumigated with methyl bromide prior to being used in connection with the importation of goods into the United States. Because we conclude that Defendants considered all reasonable alternatives, and the environmental impact of each, and did not act arbitrarily or capriciously, in adopting the final rule, we affirm. BACKGROUND The facts of this case are largely undisputed and are set forth only as they may be relevant to Plaintiffs’ challenge to this instance of APHIS’s rulemaking. Plaintiffs claim that APHIS violated the NEPA and the PPA by failing to fully consider the reasonable alternative of a phased-in substitute materials requirement before adopting a final rule requiring that all SWPM be either heat treated or fumigated with methyl bromide prior to being used in the transport of goods into the United States. With the growth of international trade and the corresponding increase in the amount of pest-ridden SWPM being imported into the United States, on January 20, 1999, APHIS issued an advance notice of proposed rulemaking (“ANPR”) that solicited public comment on how to strengthen existing restrictions on the importation of SWPM to control the introduction of exotic plant pests into the United States. See Importation of Unmanufactured Wood Articles; Solid Wood Packing Material, 64 Fed.Reg. 3049 (notice published Jan. 20, 2009). APHIS stated that its goal was “to maximize protection of U.S. agriculture and forests against exotic plant pests assodated with SWPM without unduly affecting international trade or the environment.” Id. at 3051. The ANPR set forth several possible options for protecting against SWPM wood-boring insects: for example, the continued use of methyl bromide; the imposition of certain treatment requirements or SWPM bans on a country-by-country basis; a blanket requirement that all SWPM imported into the United States be heat treated, fumigated, or treated with preservatives; and a complete prohibition on the importation of any form of SWPM from any country. As to a complete prohibition on the importation of SWPM, the ANPR stated that the “advantages of this option are that it would provide the greatest protection against pest risk and could eventually result in decreased use of methyl bromide [an ozone-depleting chemical], A disadvantage ... is that it could have an undesirable effect on international trade. This effect could be mitigated by a phase-in period to allow shippers to adjust to the prohibition....” Id. In its ANPR, APHIS specifically solicited public comment regarding the cost-effectiveness and feasibility of, and the length of any necessary phase-in period for, a prohibition on SWPM and a substitute-materials-only requirement. On May 20, 2003, APHIS proposed amending the existing regulations for the importation of SWPM to adopt the recommended guidelines approved in March 2002 by the Interim Commission on Phytosanitary Measures of the International Plant Protection Convention (the “IPPC Guidelines”). See Importation of Solid Wood Packing Material, 68 Fed.Reg. 27,-480 (proposed May 20, 2003). The IPPC Guidelines called for SWPM to be either heat treated or fumigated with methyl bromide, and to be stamped with an internationally recognized mark indicating treatment. APHIS sought to adopt the IPPC Guidelines because of an increase in plant pests found in non-treated SWPM being imported into the United States from locations other than China and Hong Kong, both of which were already subject to an interim treatment rule on the basis of their identified plant pest risk, see Solid Wood Packing Material from China, 63 Fed.Reg. 50,100 (Sept. 18, 1998) (codified at 7 C.F.R. Pts. 319 & 354); Solid Wood Packing Material from China, 63 Fed.Reg. 69,539 (amended Dec. 17, 1998) (codified at 7 C.F.R. Pt. 319) (“China Interim Rule”). APHIS asserted that by adopting the IPPC Guidelines, the United States would be reducing pest risk while furthering its obligations under Article 3 of the World Trade Organization’s Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”), which urges Member States to base their phytosanitary measures on international standards, guidelines, or recommendations, where they exist, thereby harmonizing plant protection standards on as wide a global basis as possible, see SPS Agreement, available at http://www.wto.org/english/docs_e/legaL e/15sps_01_e.htm; see also 19 U.S.C. § 3511(d)(3). Finally, APHIS stated that adopting the IPPC Guidelines would standardize trade requirements, because China, Canada, the European Union, and many other U.S. trading partners were also planning to implement the IPPC Guidelines as their phytosanitary measure for the importation of SWPM. In announcing the proposed rule, APHIS outlined the environmental hazards presented by wood-boring insects, discussed the efficacy of the heat and methyl bromide fumigation treatments in the IPPC Guidelines, and indicated APHIS’s intention to adopt the IPPC Guidelines as its final rule. APHIS acknowledged that the proposed rule would not completely eradicate all plant pest risk, and a corresponding draft environmental impact statement (“Draft EIS”) listed reasonable alternatives to the proposed rule, including, inter alia, taking no additional protective action; extending the China Interim Rule to all countries; instituting a comprehensive risk reduction program that would employ various phytosanitary measures based upon a particular country’s risk of introducing pests to the United States; and prohibiting all importation of SWPM and requiring the use of substitute packing materials only. See APHIS, U.S. Dep’t of Agrie., Importation of Solid Wood Packing Material, Draft Environmental Impact Statement 7, 9-12 (2002). The Draft EIS also noted four non-environmental factors that APHIS would consider before adopting an alternative: “(1) foremost, the efficacy of the alternative in mitigating risk; (2) the relative costs of the alternatives/methods; (3) the differing capabilities of exporting nations to comply with quarantine requirements; and (4) the need for harmonization of regulatory efforts among trading partner nations.” Id. at 2. In discussing the environmental effects of each of the identified alternatives, the Draft EIS noted that the IPPC Guidelines “would result in substantial reduction in risk of introduction of pests and pathogens from SWPM” but “would result in the [second] greatest level of anticipated adverse environmental consequences from component methods because (1) it would require treatments of SWPM from all countries, (2) it would result in substantial use of methyl bromide, and (3) it would continue to increase the demand for forest products.” Id. at 10-11. With respect to a prohibition on SWPM and the use of substitute packing materials, the Draft EIS stated that this alternative “would achieve the greatest possible reduction in risk from the introduction of pests and pathogens associated with SWPM,” “would achieve the greatest reduction of adverse environmental consequences from the use of control methods (chemical and/or physical),” and “would result in diminished use of wood resources, but could result in increased use of other resources (e.g., ores for metal production and petroleum for plastics) and energy for manufacturing processes.” Id. at 12. The Draft EIS further stated, however, that use of substitute packing materials might be limited due to a lack of current industry capability, increased expense associated with the materials, and the need for a phase-in period to allow the industry and developing nations to adapt to a complete prohibition on SWPM. The Draft EIS emphasized that while prohibiting SWPM was likely the most effective means of eliminating pest risk associated with the importation of goods, such a restriction might violate the SPS Agreement’s stipulation that any phytosanitary measures implemented by contracting nations shall be no more trade-restrictive than necessary to achieve the requisite level of plant protection. Subsequent to the announcement of the proposed rule, additional public comment, and three public hearings, APHIS released a final environmental impact statement (“Final EIS”) in August 2003, see APHIS, U.S. Dep’t of Agrie., Importation of Solid Wood Packing Material, Final Environmental Impact Statement (2003), and a final regulatory impact analysis (“Final RIA”) in September 2004, see APHIS, U.S. Dep’t of Agrie., Regulatory Impact Analysis of the Final Rule to Adopt the International Standard on Wood Packing Material in International Trade (2004). In the Final EIS, APHIS again emphasized the effectiveness of the IPPC Guidelines in thwarting the introduction of plant pests into the United States and the IPPC Guidelines’ role in harmonizing international phytosanitary regulations. APHIS also recognized that the greatest level of plant protection would result from a complete prohibition on SWPM, but explained that adopting such a measure presented feasibility issues, economic hurdles, and the potential that the United States would be held in violation of its obligations under international trade agreements. The Final EIS also noted that while the ANPR had specifically sought comments regarding the amount of time the industry would need to adapt to a substitute-materials-only requirement, no substantive information was provided to APHIS that could contribute to establishing a specific phaseout period for SWPM. As to this issue of phase-out timing, APHIS stated as follows: No program decision has been made as to what constitutes an acceptable time period for implementation for a regulatory rule of this magnitude.... It is difficult for APHIS to specify a time period when the present ability of substitute packing manufacturers to supply the market indicates a need for extended growth of the industry. The compliance time is particularly difficult to project when the new regulations are specifically directed to address packing materials from foreign countries whose industries may be less able to adjust readily to proposed changes. Also, any decisions made by APHIS to improve phytosanitary measures against pests in packing materials require, international negotiations with other countries to ensure their ability and concurrence with the measures being considered. Final EIS at A-5. As for the capability of substitute materials to meet market demands, APHIS stated that “current projections indicate that the increase in use of substitute packing materials could constitute no more than 10 to 15 percent of the total market in the next several years.” Id. at 89. In the Final RIA, APHIS estimated that substitute packing materials constituted no more than five percent of the packing market and presented certain logistical and economic limitations that made their widespread acceptance unlikely. See Final RIA at 18, 20-21. On September 16, 2004, APHIS issued a final rule adopting the IPPC Guidelines and mandating either heat treatment or fumigation with methyl bromide for all SWPM used in connection with the importation of goods into the United States, effective September 16, 2005. See Importation of Solid Wood Packaging Material, 69 Fed.Reg. 55,719 (Sept. 16, 2004) (codified at 7 C.F.R. pt. 319). APHIS chose the IPPC Guidelines because “they represent the current international standard determined ... to be necessary and effective for controlling pests in SWPM,” and because adopting them “would simplify and standardize trade requirements.” . Id. at 55,719. In summarizing its response to public comment on the rule, APHIS noted that some commenters urged APHIS to phase out SWPM in favor of substitute packing materials on the basis that this alternative was the least harmful to the environment. APHIS stated that it would continue to work with IPPC members to develop alternative treatments to using ozone-depleting methyl bromide, but that the chosen treatments were currently the most technically and economically feasible methods of responding to the plant pest problem. On September 15, 2005, the NRDC and the Plaintiff-States sued APHIS in separate actions, each asserting violations of section 102 of the NEPA, 42 U.S.C. § 4332, and section 412 of the PPA, 7 U.S.C. § 7712, and seeking judicial relief in accordance with section 10(e) of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), (C), & (D). After the district court consolidated the cases, the parties filed cross-motions for summary judgment, and on June 4, 2007, the district court granted in part and denied in part both Plaintiffs’ and Defendants’ motions. The district court characterized Plaintiffs’ challenge as “the failure of APHIS to properly consider and weigh an unadopted alternative to heat treatment or fumigation with methyl bromide: a phased transition away from raw wood pallets and crates, replacing them with packing materials made of substitute materials, such as processed wood, fiberboard, plywood, and plastics, that are impervious to the insect pests.” Natural Res. Def. Council, Inc. v. U.S. Dep’t of Agrie., Nos. 05 Civ. 8005 & 05 Civ. 8008, 2007 WL 1610420, at *1 (S.D.N.Y. June 4, 2007) (internal quotation marks omitted). The district court noted that Plaintiffs did not seek to have the final rule overturned; rather, they sought to have the district court “order APHIS to reconsider its environmental impact analysis in light of its obvious defects and then to revise the rule as appropriate based on any supplemental findings.” Id. (internal quotation marks omitted). The district court rejected Plaintiffs’ challenge under the NEPA, concluding that APHIS adequately considered the environmental impact of the proposed rule and four alternatives, including a phased-in substitute-materials-only alternative. Id. at *6. The district court also rejected Plaintiffs’ challenge that Defendants violated the PPA by failing to adopt the alternative that would most effectively reduce the introduction of plant pests into the United States. Id. at *4-5. This appeal followed. DISCUSSION We review the district court’s ruling on cross-motions for summary judgment de novo, in each case construing the evidence in the light most favorable to the non-moving party. See Fund for Animals v. Kempthorne, 538 F.3d 124, 131 (2d Cir. 2008). Our review under the APA is limited, however, and we may disturb agency action if, inter alia, it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” in excess of the agency’s statutory jurisdiction or authority, or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), & (D). In reviewing an agency’s rationale for adopting a particular rule, “we must be satisfied that the agency examined the relevant data and established a ‘rational connection between the facts found and the choice made.’ ” Fund for Animals, 538 F.3d at 132 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “ ‘The agency’s action should only be set aside if it relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the products of expertise.’ ” Id. (quoting Cellular Phone Taskforce v. FCC, 205 F.3d 82, 90 (2d Cir.2000) (internal quotation marks and alteration omitted)). I. National Environmental Policy Act A. Overview The NEPA “establishes a ‘national policy [to] encourage productive and enjoyable harmony between man and his environment,’ and was intended to reduce or eliminate environmental damage and to promote ‘the understanding of the ecological systems and natural resources important to’ the United States.” Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42 U.S.C. § 4321). As such, the “NEPA requires a federal agency to prepare an EIS before taking any major action significantly affecting the quality of the human environment.” Coal. on W. Valley Nuclear Wastes v. Chu, 592 F.3d 306, 310 (2d Cir. 2009) (internal quotation marks omitted); see 42 U.S.C. § 4332(2)(C). “The purpose of an EIS is to provide full and fair discussion of significant environmental impacts and to inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” Natural Res. Def. Council, Inc. v. FAA, 564 F.3d 549, 556 (2d Cir. 2009) (internal quotation marks and alteration omitted); see also 42 U.S.C. § 4332(2)(C). Thus, the NEPA does not mandate particular results; it “imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Public Citizen, 541 U.S. at 756-57, 124 S.Ct. 2204 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Our only role in reviewing agency action for compliance with the NEPA “is to insure that the agency has taken a hard look at environmental consequences.’-’ Coal, on W. Valley Nuclear Wastes, 592 F.3d at 310 (internal quotation marks omitted). We cannot “interject [ourselves] within the area of discretion of the executive as to the choice of the action to be taken,” and we cannot “rule an EIS inadequate if the agency has made an adequate compilation of relevant information, has analyzed it reasonably, has not ignored pertinent data, and has made disclosures to the public.” Id. (internal quotation marks omitted). “Significantly, ‘if the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.’ ” Natural Res. Def. Council, Inc. v. FAA, 564 F.3d at 556 (quoting Robertson, 490 U.S. at 350, 109 S.Ct. 1835). B. Discussion Plaintiffs assert that APHIS adopted the final rule in violation of the NEPA because APHIS failed to adequately consider the reasonable alternative of a phased-in substitute-materials-only requirement. Plaintiffs’ challenge is twofold: (1) that APHIS considered only an immediate, and not a phased-in, prohibition on SWPM; and (2) that APHIS unreasonably failed to assess the long-term feasibility of a substitute-materials-only requirement, and more specifically, “how the cost of substitute materials could come down, or how quickly the market share of substitute materials could expand, in response to a regulation requiring a transition to such materials over a reasonable time period.” Appellants’ Br. at 18-19. Both challenges fail for the reasons set forth below. The administrative record with respect to the importation of SWPM reflects several statements that make clear that any substitute-materials-only requirement would perforce be phased in rather than implemented immediately. See Natural Res. Def. Council, Inc. v. U.S. Dep’t of Agric., 2007 WL 1610420, at *6 (noting phase-in language in the ANPR, Draft EIS, and Final EIS). Furthermore, while the Final EIS discusses substitute packing materials as a component of a broader comprehensive risk reduction program as well as a stand-alone alternative to SWPM, it is clear that, under either scenario, APHIS recognized that a phase-in period would be required: The capability of industry to tool up to manufacture and switch to substitute packing materials for such a shipping volume may limit the feasibility or implementation of a switch over. Substitute packing materials are more expensive than SWPM. Although some substitute packing materials show great promise ..., other materials have limitations on their use. Substitute packing materials would require a phase-in period to allow the industry of the regulated countries to adapt these materials to the shipping processes. Compliance with international agreements is expected to increase the costs associated with the use of SWPM and this change may make substitute packing materials more competitive in the packing market and indirectly promote use of these other materials. Final EIS at 41. Plaintiffs’ assertions notwithstanding, it cannot fairly be said that APHIS considered only an immediate ban on SWPM and not a phased-in substitute-materials-only requirement. Plaintiffs’ second challenge concerns the depth of APHIS’s consideration of the substitute-materials-only alternative. As to this argument, we conclude that APHIS adequately evaluated the substitute-materials-only alternative and reasonably explained its decision not to adopt it as the final rule at the present time. “Under [the] NEPA, an agency’s discussion of ‘alternatives to the proposed action,’ 42 U.S.C. § 4332(2)(C)(iii), forms ‘the heart of the environmental impact statement,’ 40 C.F.R. § 1502.14.” Natural Res. Def. Council, Inc. v. FAA, 564 F.3d at 557. However, an agency satisfies its duty under the NEPA where it “[rigorously ex-ploréis] and objectively evaluate^] all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss[es] the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991) (“If ... the consideration of alternatives is to inform both the public and the agency decisionmaker, the discussion must be moored to some notion of feasibility.” (internal quotation marks and footnote omitted)). Under the facts of this case, APHIS reasonably concluded that while a phased-in substitute-materials-only requirement would provide maximum plant protection with minimal adverse environmental consequences, it is not currently a workable alternative to an urgent problem in need of an immediate response. APHIS reached this conclusion because adopting such a rule would require international negotiations to expand the level of plant protection beyond that afforded by the IPPC Guidelines. In the absence of an international consensus, adoption of such a rule by the United States could disrupt international trade and result in a potential violation of U.S. obligations under the SPS Agreement. Moreover, the negotiations would be time-consuming, and their outcome would depend upon a variety of factors, including developing nations’ technical capacities and anticipated economic growth. While Plaintiffs would have liked for APHIS to have more fully examined the likely effects of adopting Plaintiffs’ desired alternative on the global market for substitute materials, the Final EIS complied with the NEPA. It provided sufficient information for the agency and public to take into account the environmental impact of each of the alternatives presented and for APHIS to make a reasoned decision as to how best to proceed with plant protection in light of the competing considerations of pest control and environmental concerns, on the one hand, and, on the other, the harmonization and facilitation of global trade. That numerous forecasts and predictions related to the adoption of a substitute-materials-only requirement were not included in the Final EIS was explained by APHIS at the outset: “The necessity for extensive negotiations with other countries precludes the ability to establish meaningful timetables for any anticipated changes in regulations of packing materials worldwide.” Final EIS at 6. The Final EIS also noted that “[t]he wide differences in perspective among respondents on the draft EIS as to the ability of the packing industry to switch to packing materials other than SWPM provide no clear consensus on the relative ability to implement such an alternative.” Id. at A-4. Importantly, APHIS stated that “[a]ny decision to designate a specific time for completion of actions [will be] made by the decisionmaker after review of an economic assessment, the logistics of implementation of a specific course of action, the potential international negotiations involved, and any trade implications for the United States and other countries.” Id. at A-5. While Plaintiffs fault APHIS for not forecasting how the international market for substitute packing materials might expand over time if a phased-in substitute-materials-only requirement were promulgated by the United States, such forecasts were not necessary for APHIS’s completion of a comprehensive EIS or its compliance with the NEPA. See Natural Res. Def. Council, Inc. v. Callaway, 524 F.2d 79, 90 (2d Cir.1975) (“[The agency] is not required to study and report on the effect of ... a relationship as yet not understood. Nor does it need to consider other projects so far removed in time or distance from its own that the interrelationship, if any, between them is unknown or speculative.”). The Final EIS in this case adequately sets forth the environmental risks and benefits of numerous reasonable alternatives to APHIS’s proposed action of adopting the IPPC Guidelines and explains the agency’s decision not to pursue further a substitute-materials-only alternative because of current global trade considerations; it was not required to speculate on the potential changes to the global cost and availability of substitute materials in the event that APHIS were to adopt a phased-in substitute-materials-only requirement. See Fund for Animals, 538 F.3d at 137 (“Where there is uncertainty regarding the potential effects of an agency action, speculation in an EIS is not precluded, but the agency is not obliged to engage in endless hypothesizing as to remote possibilities.” (internal quotation marks and alterations omitted)). Accordingly, we conclude that the Final EIS complied with the NEPA. II. Plant Protection Act A. Overview The PPA was enacted to detect, eradicate, suppress, and prevent the spread of plant pests and noxious weeds. See 7 U.S.C. § 7701(1). Under the PPA, “it is the responsibility of the Secretary [of Agriculture] to facilitate exports, imports, and interstate commerce in agricultural products and other commodities that pose a risk of harboring plant pests ... in ways that will reduce, to the extent practicable, as determined by the Secretary, the risk of dissemination of plant pests .... ” Id. § 7701(3); see also id. § 7702(16). The PPA vests the Secretary with authority to issue regulations “to prevent the introduction of plant pests into the United States,” id. § 7711(a), and to “prohibit or restrict the importation ... of any ... plant product, ... article, or means of conveyance, if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction [of a plant pest] into the United States,” id. § 7712(a); see also id. § 7754. “The Secretary shall ensure that phytosanitary issues involving imports and exports are addressed based on sound science and consistent with applicable international agreements.” Id. § 7751(e). The Secretary has delegated his authority under the PPA to APHIS. See Monsanto Co. v. GeeHson Seed Farms, — U.S. -, 130 S.Ct. 2743, 2749-50, - L.Ed.2d - (2010) (citing applicable regulations). B. Discussion We agree with the district court that the Defendants did not violate the PPA by failing to elevate environmental concerns over other legitimate factors when formulating the final SWPM rule. See Natural Res. Def. Council, Inc. v. U.S. Dep’t of Agric., 2007 WL 1610420, at *4-5. The Secretary’s decision to require either heat treatment or fumigation with methyl bromide was not an abuse of discretion given his dual responsibility to protect plants by reducing plant pest risk and to facilitate commerce by avoiding unduly burdensome trade restrictions. Because the record is clear that the Secretary considered the relevant environmental and commercial concerns when deciding on a final SWPM rule, the Secretary cannot be said to have abused his discretion in ultimately concluding that adopting the measures specified in the IPPC Guidelines best accomplished these dual objectives. Finally, Plaintiffs’ argument that the Secretary’s decision was arbitrary and capricious because he failed to adequately consider a phased-in substitute-materials-only requirement, and the magnitude of the impact on trade from such a requirement, echoes the argument advanced in Plaintiffs’ NEPA challenge and it fails for the same reasons. CONCLUSION Accordingly, we AFFIRM the district court’s March 9, 2009 judgment and June 4, 2007 memorandum and order. . The State of New York was also a Plaintiff in the underlying action. See Complaint, State of N.Y. v. U.S. Dep’t of Agric., No. 05-cv-8008(LMM), 2007 WL 1610420 (S.D.N.Y. June 4, 2007). However, it did not seek appellate review of the district court’s March 9, 2009 judgment. . The International Plant Protection Convention (“IPPC”) is an international agreement on plant health to which 173 governments, including the United States, are contracting parties. See http://www.ippc.int (last visited July 7, 2010). . The district court granted Plaintiffs' motion only with respect to their challenge that the final EIS underestimated the amount of ozone-depleting methyl bromide that would be released into the atmosphere under the rule. That issue, now resolved, is not a part of this appeal.

Guru Nanak Sikh Society v. County of Sutter

BEA, Circuit Judge: We must decide whether a local government’s denial of a religious group’s application for a conditional use permit to construct a temple on a parcel of land zoned “agricultural” constituted a “substantial burden” under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000ce, et seq., and if we find that the denial was a substantial burden, whether RLUIPA is constitutional. We find that the County imposed a substantial burden on Appellee Guru Nanak Sikh Society of Yuba City’s (“Guru Nanak’s”) religious exercise under RLUI-PA because the stated reasons and history behind the denial at issue, and a previous denial of Guru Nanak’s application to build a temple on a parcel of land zoned “residential,” to a significantly great extent lessened the possibility of Guru Nanak constructing a temple in the future. We also decide that the County did not assert, much less prove, compelling interests for its action; last, we find the relevant portion of RLUIPA is a permissible exercise of Congress’s remedial power under Section Five of the Fourteenth Amendment. Accordingly, we affirm the district court’s order that granted summary judgment for Guru Nanak, invalidated the County’s denial of Guru Nanak’s application to build a new temple, and enjoined the County to approve and grant Guru Nanak’s conditional use permit immediately, subject only to conditions to which Guru Nanak had previously agreed. I. Facts and Background A. Denial of Guru, Nanak’s First CUP Application Guru Nanak is a non-profit organization dedicated to fostering the teachings and practices of the Sikh religion. In 2001, Guru Nanak attempted to obtain a eondi-tional use permit (CUP) for the construction of a Sikh temple — a gurudwara — on its 1.89-acre property on Grove Road in Yuba City (“the Grove Road property”). The proposed use included about 5,000 square feet dedicated to an assembly area and related activities. The proposed temple site would have held religious ceremonies for no more than seventy-five people at a time. The Grove Road property was in an area designated for low-density residential use (R-l), intended mainly for large lot single family residences; churches and temples are only conditionally permitted in R-l districts, through issuance of a CUP. The Sutter County Planning Division, part of the County Community Services Department, issued a report recommending that the Planning Commission grant a CUP for the Grove Road property. The report stated that while the permit presented potential conflicts with established residences in the area, the conflicts could be minimized by specifically recommended conditions that would be consistent with the General Plan of Sutter County. However, at a public meeting, the Planning Commission voted unanimously to deny the CUP. The denial was based on citizens’ voiced fears that the resulting noise and traffic would interfere with the existing neighborhood. Following the Commission’s denial, Guru Nanak began searching for a different parcel of property for the proposed temple. B. Denial of Guru Nanak’s Second CUP Application In 2002, Guru Nanak acquired the property at issue in this case, a 28.79-acre parcel located on George Washington Boulevard in an unincorporated area of the County, to build a temple there. The site is zoned “AG” (general agricultural district) in the Sutter County Zoning Code. As in R-l districts, churches and temples are only conditionally permitted in AG districts, through issuance of a CUP. The parcel includes a walnut orchard and an existing 2,300 square foot single family residence, which Guru Nanak proposed to convert into a Sikh temple by increasing the size of the building by approximately 500 square feet. All of the surrounding properties have identical zoning designations and have orchards. The nearest residence to the property is at least 200 feet north of the parcel’s northern boundary. The residence to be converted into the temple is located 105 feet south of that northern boundary. Another Sikh temple already exists on a ten-acre parcel of land zoned “agricultural” located next to Bogue Road, less than a mile southeast from the proposed temple’s parcel. Within Yuba City’s sphere of influence, the Bogue Road Sikh temple is surrounded by land zoned “agricultural.” Guru Nanak filed an application for a CUP to build a temple limited to approximately 2,850 square feet on the proposed site. The proposed use of the property was for a Sikh temple, assembly hall, worship services, and weddings. As with the Grove Road property, the proposed facility was intended to accommodate religious services of no more than seventy-five people at a time. Various county and state departments reviewed Guru Nanak’s application and added a variety of conditions regarding the environmental impact of the proposed use including a twenty-five foot “no development” buffer along the north side of the property, a requirement that ceremonies remain indoors, and required landscaping. Guru Nanak had to accept these conditions to receive the Planning Division’s recommendation to the Planning Commission. The Planning Division issued a “mitigated negative declaration” (i.e. that the proposed temple would not create a significant environment impact) because “although the proposed [temple] could have a significant impact on the environment^] ... the recommended mitigation measures would reduce the possible impacts to a less-than-significant level.” The Planning Division cited the temple’s maximum attendance of 75 people, minor building conversion, and stipulated mitigation measures as reasons for finding a less-than-significant impact on the environment. The Planning Commission held a public meeting to consider Guru Nanak’s permit application. A member of Guru Nanak testified that while its previous application was for a 1.9-acre lot in a residential area, the subject application pertained to a 28.8-acre lot that did not border anyone’s front or back yard. He also stated that Guru Nanak would accept all the Planning Division’s proposed conditions on the land’s use. Various potential neighbors spoke against the proposed temple, complaining mainly that the temple would increase traffic and noise, interfere with the agricultural use of their land, and lower property values. The Commission approved the application 4-3, subject to the conditions required by the Planning Division and stipulated to by Guru Nanak, with the commissioners echoing the reasoning voiced by both sides. Several neighbors filed timely appeals to the Sutter County Board of Supervisors. The Planning Division filed another report in response to the appeals, addressing the specific complaints of the concerned neighbors and continuing to recommend approval of Guru Nanak’s CUP application. Subject to revised mitigation conditions including an expanded one-hundred foot setback, the Planning Division found that the proposed temple’s effect on neighbors’ pesticide spraying, nearby traffic, and noise levels would be minimal. The Board of Supervisors held a public hearing on the appeals. People attending the hearing reiterated claims regarding effects upon the agricultural use of surrounding land, traffic, and property values. In addition, several people complained that the initial plan for a seventy-five person temple was only a starting point for more ambitious facilities and this piece-meal approval process violated the California Environmental Quality Act (CEQA). The four-member Board of Supervisors unanimously reversed the Planning Commission’s approval and denied Guru Nanak’s application. Supervisor Kroon flatly rejected the project based on the “right to farm”: the property had been agricultural and should remain so. He argued that long-time farmers should not be affected by someone who wishes to change the use of the property. Supervisor Nelson stated that he was concerned that Guru Nanak’s proposed use “was too far away from the city” and would not promote orderly growth. He commented that such development is detrimental to the surrounding agricultural uses and that Guru Nanak should locate its church nearer to his and other existing churches. Supervisors Munger and Silva agreed that the proposed temple site’s separation from existing infrastructure, termed “leapfrog development,” was a poor idea and denied the application on that ground. C. Local Land Use Lato The Sutter County General Plan is a long-term guide for physical development of land within the County. The Plan empowers the County’s Community Services Department to ensure that “new development adjacent to agricultural areas be designed to minimize conflicts with adjacent agricultural uses.” Policy Document, at 16. The Plan disfavors development not contiguous to areas currently designated for urban or suburban uses — leapfrog development — because it “has the potential to create land use conflicts and, in most instances, make[s] the provision of services more difficult.” Id. at 13. The Sutter County Zoning Code designates twenty-two types of districts. Within each of these districts, the Code categorizes uses as “permitted” as a matter of right, uses that require a “zoning clearance,” or uses that require a use permit. Zoning clearance uses need only the review and approval of the Community Services Director. Conditional use permit uses require a more comprehensive review through the Sutter County Planning Commission, and require a public hearing. A church must apply for a CUP to locate within any district available to it. Six of the twenty-two types of districts are made available to churches through the Zoning Code: general agricultural (AG); food processing, agricultural and recreation combining (FPARC); one-family residence (R-1), two-family residence (R-2), neighborhood apartment (R-3), and general apartment (R-4). D. The Decision Below The district court granted summary judgment for Guru Nanak because it concluded the County substantially burdened Guru Nanak’s religious exercise, and that the County did not proffer evidence of compelling interests to justify such burden. Guru Nanak Sikh Soc’y of Yuba City, 326 F.Supp.2d at 1152-54. The district court reasoned that “[t]o meet the ‘substantial burden’ standard, the governmental conduct being challenged must actually inhibit religious activity in a concrete way, and cause more than a mere inconvenience.” Id. at 1152. Applying its definition of the substantial burden standard to the facts, the district court held that “the denial of the use permit, particularly when coupled with the denial of [Guru Nanak’s] previous application, actually inhibits [Guru Nanak’s] religious exercise.” Id. The court also found that Congress did not overstep its constitutional bounds under Section Five of the Fourteenth Amendment when enacting RLUI-PA because the statute targets documented religious discrimination. Id. at 1156— 61. The court rejected the County’s CEQA claim because the County’s Planning Division had already found that the proposed temple, subject to stipulated mitigation measures, would create “a less-than-significant level” of environmental impacts. Id. at 1148-49. Accordingly, the district court invalidated the County’s denial of Guru Nanak’s CUP application and enjoined the County to approve immediately the CUP. Id. at 1161-63. II. Analysis We have jurisdiction under 28 U.S.C. § 1291. This court reviews de novo the district court’s order granting summary judgment. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1029 (9th Cir.2004). In reviewing the district court decision, “we must determine, viewing the evidence in the light most favorable to the nonmoving party, Vhether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.’ ” Id. at 1029-30 (quoting Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002)). We decide that the County made an individualized assessment of Guru Nanak’s CUP, thereby making RLUIPA applicable, and that the County’s denial of Guru Nanak’s CUP application constituted a substantial burden, as that phrase is defined by RLUIPA. Because RLUIPA applies to this case, we address RLUIPA’s constitutionality pursuant to Section Five of the Fourteenth Amendment, and decide that RLUIPA is a congruent and proportional exercise of congressional power pursuant to the Fourteenth Amendment. A. Statutory Claim under RLUIPA RLUIPA is Congress’s latest effort to protect the free exercise of religion guaranteed by the First Amendment from governmental regulation. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 878-82, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court decided that the Free Exercise Clause of the First Amendment “does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct.” Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113, 2118, 161 L.Ed.2d 1020 (2005). In 1993, Congress enacted the Religious Freedom and Restoration Act of (RFRA) in response to the Supreme Court’s decision in Smith. RFRA “prohibited] ‘[government’ from ‘substantially burdening]’ a person’s exercise of religion even if the burden results from a rule of general applicability unless the government [could] demonstrate the burden ‘(1) [was] in furtherance of a compelling governmental interest; and (2)[was] the least restrictive means of furthering that compelling governmental interest.’ ” City of Boerne v. Flores, 521 U.S. 507, 515-16, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (second and third alterations in original) (quoting 42 U.S.C. § 2000bb-l). In City of Boerne, though, the Supreme Court invalidated RFRA, deciding that it was an unconstitutional exercise of congressional power pursuant to Section Five of the Fourteenth Amendment because of a “lack of proportionality or congruence between the means adopted and the legitimate end to be achieved.” Id. at 533, 117 S.Ct. 2157. Congress enacted RLUIPA in response to the constitutional flaws with RFRA identified by City of Boerne. “RLUIPA ‘replaces the void provisions of RFRA[,]’ and prohibits the government from imposing ‘substantial burdens’ on ‘religious exercise’ unless there exists a compelling governmental interest and the burden is the least restrictive means of satisfying the governmental interest.” San Jose Christian, 360 F.3d at 1033-34 (quoting Wyatt v. Terhune, 315 F.3d 1108, 1112(9th Cir.2003) (citation omitted). To avoid RFRA’s fate, Congress wrote that RLUIPA would apply only to regulations regarding land use and prison conditions. See Cutter, 125 S.Ct. at 2118. RLUIPA applies only if one of three conditions obtain: (1) If the state “program or activity receives Federal financial assistance,” 42 U.S.C. § 2000ec(2)(A), implicating congressional authority pursuant to the Spending Clause; (2) if the substantial burden imposed by local law “affects ... [or] would affect, commerce with foreign nations, among the several States, or with Indian tribes,” id. § 2000cc(2)(B), implicating congressional power pursuant to the Commerce Clause; (3) or, as Guru Nanak argues here, if “the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved,” 42 U.S.C. § 2000cc(2)(C) (emphasis added). 1. Individualized Land Use Assessments Before we apply the terms of RLUIPA, of course, we first must determine if RLUIPA even applies, by examining whether the actions of the County are “individualized assessments of the proposed uses for the property involved.” Id. The County argues that its denial of Guru Nanak’s second CUP application falls outside the legislative scope of RLUIPA because its use permit process is a neutral law of general applicability. However, the plain meaning of § 2000cc(2)(C), quoted above, belies this contention. RLUIPA applies when the government may take into account the particular details of an applicant’s proposed use of land when deciding to permit or deny that use. The Sutter County Zoning Code does not permit churches as a matter of right in any of the six types of zoned areas available for church construction. Rather, an entity intending to build a church must first apply for a CUP and be approved by the County. The Zoning Code states, “The County realizes that certain uses ... may have the potential to negatively impact adjoining properties and uses. Such uses therefore require a more comprehensive review and approval procedure in order to evaluate and mitigate any potentially detrimental impacts.” § 1500-8210. The Zoning Code also outlines how the Sutter County Planning Commission, which has original jurisdiction over such use applications, should determine whether to approve or reject an application: The Planning Commission may approve or conditionally approve a use permit if it finds that the establishment, maintenance, or operation of the use or building applied for will or will not, under the circumstances of the particular case, be detrimental to the health, safety, and general welfare of persons residing or working in the neighborhood of such proposed use, or be detrimental or injurious to property and improvement in the neighborhood or to the general welfare of the County. Additionally, the Commission shall find that the use or activity approved by the use permit is consistent with the General Plan [of Sut-ter County]. §§ 1500-8216 (emphasis added). The County Board of Supervisors reviews the Planning Commission’s conditional use decisions “de novo and all applications, papers, maps, exhibits and staff recommendations made or presented to the Planning Commission may be considered.” Id. § 1500-312(f). The Sutter County Zoning Code directs the Planning Commission and the Board of Supervisors to “implement [its] system of land use regulations [by making] individualized assessments of the proposed uses of the land involved.” 42 U.S.C. § 2000cc. By its own terms, it appears that RLUI-PA does not apply directly to land use regulations, such as the Zoning Code here, which typically are written in general and neutral terms. However, when the Zoning Code is applied to grant or deny a certain use to a particular parcel of land, that application is an “implementation” under 42 U.S.C. § 2000cc(2)(C). See Kaahumanu v. County of Maid, 315 F.3d 1215, 1220-23 (9th Cir.2003) (concluding in a RLUIPA case that a similar permit process resulted in an administrative, rather than legislative, action because it “was based on the circumstances of the particular case and did not effectuate policy”); Freedom Baptist Church of Delaware County v. Twp. of Middletown, 204 F.Supp.2d 857, 868-69 (E.D.Pa.2002) (“No one contests that zoning ordinances must by their nature impose individual assessment regimes. That is to say, land use regulations through zoning codes necessarily involve case-by-case evaluations of the propriety of proposed activity against extant land use regulations.”). RLUIPA therefore governs the actions of the County in this case. 2. Substantial Burden Under RLUIPA We next turn to the issue whether the County’s denial of Guru Nanak’s CUP application substantially burdened its religious exercise within the meaning of RLUIPA. The statute states, in relevant part: (a) Substantial burdens (1) General rule No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution— (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000ce (emphasis added). Guru Nanak bears the burden to prove the County’s denial of its application imposed a substantial burden on its religious exercise. Id. § 2000ce-2(b). The Supreme Court’s free exercise jurisprudence is instructive in defining a substantial burden under RLUIPA. The Supreme Court has held that various unemployment compensation regulations imposed a substantial burden on adherents’ religious exercise, and thereby were subject to strict scrutiny, because the regulations withheld benefits based on adherents’ following their religious tenets. See Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963)., This choice between unemployment benefits or religious duties imposed a burden because it exerted “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450-51, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (explaining that to trigger strict scrutiny under the First Amendment a governmental burden must have a “tendency to coerce individuals into acting contrary to their religious beliefs”). These cases demonstrate “that a ‘substantial burden’ must place more than an inconvenience on religious exercise.” See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.2004). Accordingly, interpreting RLUIPA, this court has held: “[F]or a land use regulation to impose a ‘substantial burden,’ it must be ‘oppressive’ to a ‘significantly great’ extent. That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.” San Jose Christian, 360 F.3d at 1034(quoting Merriam-Webster’s Collegiate Dictionary 1170 (10th ed.2002)). Applying San Jose Christian’s definition of a substantial burden to the particular facts here, we find the district court correctly granted summary judgment for Guru Nanak. Most important to us the history behind Guru Nanak’s two CUP application processes, and the reasons given for ultimately denying these applications, to a significantly great extent lessened the possibility that future CUP applications would be successful. See Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 899-900 (7th Cir.2005) (“Saint Constantine ”) (finding that, to prove a substantial burden under RLUIPA, a religious group need not “show that there was no other parcel of land on which it could build its church”). We need not and do not decide that failing to provide a religious institution with a land use entitlement for a new facility for worship necessarily constitutes a substantial burden pursuant to RLUIPA. At the same time, we do decide the County imposed a substantial burden here based on two considerations: (1) that the County’s broad reasons given for its tandem denials could easily apply to all future applications by Guru Nanak; and (2) that Guru Nanak readily agreed to every mitigation measure suggested by the Planning Division, but the County, without explanation, found such cooperation insufficient. The Zoning Code permits churches in six types of districts. Churches must apply for a CUP within any or all of the six available districts. Each of the district classifications available to churches is intended to provide an area for a distinct form of development. The CUP application process is intended to ensure that a religious group’s proposed property use conforms with the type of development that the particular district contemplates. Guru Nanak initially applied for a CUP to construct a Sikh temple on a 1.89-acre property in an R-l (One Family Residence) District. The Sutter County Community Services Department had recommended approval of the proposed use because mitigation measures, agreed to by Guru Nanak, would have minimized conflicts with suirounding land. Nevertheless, the County Planning Commission unanimously rejected the application, citing neighbors’ complaints regarding increased noise and traffic. Guru Nanak predictably responded to these voiced complaints by attempting to locate its temple on property far from residents who would be bothered by noise and traffic. The County’s stated reasons for denying Guru Nanak’s first application implied to Guru Nanak that it should not attempt to locate its temple in higher density districts (two-family residence, neighborhood apartment, general apartment, and the combining district) where nearby neighbors would be similarly bothered. Accordingly, Guru Nanak proposed a smaller temple, with the same seventy-five person capacity, on a much larger parcel of agricultural land. The agricultural parcel left much more space between the temple and adjacent properties; that space mitigated the temple’s noise and traffic impact on surrounding persons. Both the Community Services Department and the Planning Commission approved this second application because the parcel’s size, along with additional setback and use conditions, adequately addressed the noise, traffic, and other complaints related to the temple’s possible impact on surrounding agricultural uses. The County Board of Supervisors’ denial of Guru Nanak’s second application frustrated Guru Nanak’s attempt to comply both with the reasons given for the County’s first denial and the Planning Division’s various requirements for Guru Nanak to locate a temple on land zoned “agricultural.” The Board’s primary reason for denying Guru Nanak’s second application was that the temple would contribute to “leapfrog development.” Although the Zoning Code conditionally permits churches and other non-agricultural activities within agricultural districts, the County could use its concern with leapfrog development effectively to deny churches access to all such land; a great majority of agriculturally zoned land near Yuba City is separated from existing urban development. Moreover, many other churches already exist on agriculturally zoned land, including another Sikh temple located on Bogue Road less than a mile away from the proposed temple. The Bogue Road Sikh temple’s parcel of land, like Guru Nanak’s land, is surrounded by other agricultural parcels of land, to the extent such parcels are within Yuba City’s sphere of influence. Hence, the County inconsistently applied its concern with leapfrog development to Guru Nanak. At the very least, such inconsistent decision-making establishes that any future CUP applications for a temple on land zoned “agricultural” would be fraught with uncertainty. See id. at 901 (finding a substantial burden where a church’s future efforts to locate another parcel of property or file new land use applications would result in “delay, uncertainty, and expense”). In denying the second CUP application, the Board of Supervisors disregarded, without explanation, the Planning Division’s finding that Guru Nanak’s acceptance of various mitigation conditions would make the proposed temple have a less-than-significant impact on .surrounding land uses. We “cannot view [the denial of the second CUP application] ‘in isolation’; [rather, it] ‘must be viewed in the context of [Guru Nanak’s permit process] history.’ ” See Westchester Day Sch. v. Vill. of Mamaroneck, 417 F.Supp.2d 477, 548(S.D.N.Y.2006) (quoting Living Water Church of God v. Charter Twp. of Meridian, 384 F.Supp.2d 1123, 1134 (W.D.Mich.2005)). In Westchester Day School, the district court found a substantial burden where the zoning board denied the religious day school’s land use application despite the day school having “worked for over one-and-a-half years to address the [zoning board’s] concerns and offered to make changes to, inter alia, parking, the size of [the proposed construction,] landscaping, [the] enrollment cap[, and] a bus departure management plan to mitigate the traffic impact.” Id.; see also Living Water, 384 F.Supp.2d. at 1134(finding a substantial burden where the Township denied the church’s land use proposal after the church had “worked diligently and in good faith with the Township to address its concerns before submitting a revised ... proposal”). Similarly, during both of its CUP application processes, Guru Nanak agreed to every mitigation condition the Planning Division found necessary to recommend the land entitlements. Regarding the second application in particular, Guru Nanak agreed to a host of conditions proposed specifically to allay the County’s concerns with leapfrog development — including a one-hundred foot setback to allow for pesticide spraying, and that all its religious ceremonies be held indoors and limited to seventy-five people. Nevertheless, in denying the second application, the Board of Supervisors neither related why any of such mitigation conditions were inadequate nor suggested additional conditions that would render satisfactory Guru Nanak’s application. While the Zoning Code conditionally permits churches in residential and higher density districts, noise and traffic concerns would likely preclude constructing any other proposed temple on a small parcel of land. Likewise, Guru Nanak would understandably be hesitant to propose a temple on another large, agricultural parcel of land for fear that the County would yet again deny that application because of leapfrog development. Even if Guru Nanak were once again to follow the Planning Division’s detailed requirements on mitigating impacts on nearby land, history shows such extensive efforts could very well be in vain. The net effect of the County’s two denials — including their underlying rationales and disregard for Guru Nanak’s accepted mitigation conditions — is to shrink the large amount of land theoretically available to Guru Nanak under the Zoning Code to several scattered parcels that the County may or may not ultimately approve. Because the County’s actions have to a significantly great extent lessened the prospect of Guru Nanak being able to construct a temple in the future, the County has imposed a substantial burden on Guru Nanak’s religious exercise. Our decision contrasts with the facts present in San Jose Christian, where we found the plaintiff had not suffered a substantial burden because the city’s actions had not lessened the possibility that the college could find a suitable property. In San Jose Christian, we considered it centrally important that there was no evidence to suggest that the religious institution desired by San Jose Christian College could not be obtained merely by “submitting] a complete application.” San Jose Christian, 360 F.3d at 1035; see also id. (“Should College comply with this request, it is not at all apparent that its rezoning application will be denied.”). Moreover, we noted that even if its complete application were denied, the college had no reason to believe another application would be rejected. Id. (“[There is] no evidence in the record demonstrating that College was precluded from using other sites within the city.”). See also Henderson v. Kennedy, 253 F.3d 12, 17 (D.C.Cir.2001) (“Because the Park Service’s ban on sales on the Mall is at most a restriction on one of a multitude of means, it is not a substantial burden on their vocation.”) (emphasis added). 3. Compelling Interests The County effectively concedes that it has no compelling interest, much less that the restrictions are narrowly tailored to accomplish such interest. The County presents no such argument in its briefs. Because the County “shall bear the burden of persuasion,” 42 U.S.C. § 2000cc-2(b), to prove narrowly tailored, compelling interests, we hold that the district court properly invalidated the County’s denial of Guru Nanak’s CUP application. B. Constitutionality of RLUIPA’s Individual Land Use Assessments Provision We now turn to the issue of whether RLUIPA as applied to the facts of this case is constitutional. It is axiomatic that “[t]he powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten.” Marbury v. Madison, 1 Cranch 137, 176, 5 U.S. 137, 2 L.Ed. 60 (1803). We must therefore find an affirmative grant of power provided to Congress to enact a law such as RLUIPA. Because RLUIPA applies in this case due to the County’s “individualized assessment” of Guru Nanak’s application, the statute’s constitutionality depends on Congress’s power to “enforce, by appropriate legislation, the provisions of [the Fourteenth Amendment].” U.S. Const, amend. XIV, § 5. RLUIPA will be deemed constitutional only if there is “a congruence and proportionality between the injury to be prevented or remedies and the means adopted to that end.” City of Boerne, 521 U.S. at 520, 117 S.Ct. 2157. We hold that RLUIPA is constitutional because it addresses documented, unconstitutional government actions in a proportional manner. When evaluating whether a statute is a constitutional exercise of Congress’s Enforcement Power pursuant to Section Five of the Fourteenth Amendment, “[t]he first step ... is to identify with some precision the scope of the constitutional right at issue.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). “Preventive measures prohibiting certain types of laws may be appropriate [pursuant to Section Five] when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional.” City of Boerne, 521 U.S. at 532, 117 S.Ct. 2157. Accordingly, a congressional statute targeting local regulations subject to strict scrutiny' — “presumptively invalid” regulations, Smith, 494 U.S. at 888, 110 S.Ct. 1595 — is more likely to be constitutional than a statute targeting regulations subject to more deferential review. See Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). In this case, RLUIPA targets only “individualized governmental assessment[s]” subject to strict scrutiny under the Supreme Court’s free exercise jurisprudence. Congress has power to enforce the Free Exercise Clause, as recognized in Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), because the “fundamental concept of liberty embodied in [the Fourteenth Amendment’s Due Process Clause] embraces the liberties guaranteed by the First Amendment,” id. at 303, 60 S.Ct. 900. The Supreme Court decided in Smith that whereas neutral laws of general applicability do not implicate free exercise-based constitutional concerns, laws “lenfding themselves] to individualized governmental assessment of the reasons for the relevant conduct,” 494 U.S. at 884, 110 S.Ct. 1595 (emphasis added), are subject to higher scrutiny because they may be unevenly applied against actions, premised on religious exercise, see id. (“[A] distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant’s unemployment.”). When such regulations involving individualized assessments impose substantial burdens on religious exercise, they are subject to strict scrutiny to protect and vindicate the right to free exercise of religion from governmental encroachment. See id. As we decided earlier, here the County assessed the particular details behind Guru Nanak’s application and weighed these particular facts against broad criteria. Therefore, because RLUIPA attempts to protect the free exercise of religion by targeting only regulations subject to strict scrutiny, “it [is] easier for Congress to show a pattern of state constitutional violations” sufficient to justify RLUIPA’s enactment. Hibbs, 538 U.S. at 736, 123 S.Ct. 1972. After we identify the precise right— here, the free exercise of religion in the face of individualized governmental assessments subject to strict scrutiny — being protected by congressional legislation, “we examine whether Congress identified a history and pattern of unconstitutional [regulation] by the States against [religious groups].” See Garrett, 531 U.S. at 368, 121 S.Ct. 955. In nine hearings preceding the enactment of RLUIPA, Congress compiled a substantial amount of statistical and anecdotal data demonstrating that governmental entities nationwide purposefully exclude unwanted religious groups by denying them use permits through discretionary and subjective standards and processes. See H.R.Rep. No. 106-219, 18-24 (summarizing the evidence from these hearings). For instance, “[r]e-ligious groups accounting for only 9% of the population account for 50% of the reported litigation involving location of churches, and 34% of the reported litigation involving accessory uses at existing churches.” Id. at 20-21. Congress also heard persuasive anecdotal evidence regarding a trend of denying newcomer religious groups CUPs in buildings that formerly housed non-religious assemblies or which had housed widely accepted religious groups. Id. at 21-22. The nature of the regulatory action RLUIPA targets and the evidence which demonstrated that such regulations often violated the Free Exercise Clause may empower Congress to stem such violations pursuant to its Section Five authority. See City of Boerne, 521 U.S. at 530, 117 S.Ct. 2157(“Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one.”). With that backdrop, we must determine if there is “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” See id. at 520, 117 S.Ct. 2157. We find it central to our decision that “[u]nlike [RFRA] at issue in City of Boerne ... which applied broadly,” Hibbs, 538 U.S. at 738, 123 S.Ct. 1972, RLUIPA applies more narrowly. Unlike RFRA, the predecessor to RLUIPA, RLUIPA applies solely to regulations affecting land use and prison conditions, and therefore does not “displac[e] laws and prohibit[ ] official actions of almost every description and regardless of subject matter .... [nor does it] appl[y] to all federal and state law.” See City of Boerne, 521 U.S. at 532, 117 S.Ct. 2157. RLUIPA has nowhere near the “universal coverage,” id. at 516, 117 S.Ct. 2157, the Supreme Court found unacceptable in City of Boerne. See also Cutter, 125 S.Ct. at 2118(stating that RLUIPA is “[l]ess sweeping than RFRA”). As with the statutes the Supreme Court has found to be valid as constitutional exercises of Congress’s Section Five authority, RLUIPA solely includes “remedies aimed at areas where ... discrimination has been most flagrant.” See South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). RLUIPA is a congruent and proportional response to free exercise violations because it targets only regulations that are susceptible, and have been shown, to violate individuals’ religious exercise. Therefore, Congress constitutionally enacted RLUIPA pursuant to its enforcement power within Section Five of the Fourteenth Amendment. III. CEQA Analysis and Injunctive Relief This court reviews for abuse of discretion a district court’s decision to grant an injunction. Krug v. Lutz, 329 F.3d 692, 695 (9th Cir.2003). The County claims that the district court’s injunction violated the California Environmental Quality Act (CEQA), Cal. Pub. Res.Code § 21000, et seq., when it ordered the County immediately to approve Guru Nanak’s CUP application. The district court did not abuse its discretion, however, because the County has already fully reviewed the environmental impact of the application without stating any deficiency. If residents had not appealed the Planning Commission’s decision, the Commission’s review of the Planning Division’s detailed environmental impact report on Guru Nanak’s application would have been final. In fact, the Planning Division attached thirty-three detailed conditions to its approval of Guru Nanak’s application — all dealing with the environmental impact of the proposed temple. Neither a Commission member nor a Board member ever disagreed with the Planning Division’s conclusion that Guru Nanak’s application, subject to several mitigation measures, complied with CEQA. The County specifically points to Guru Nanak’s future plans of expanding its congregation facilities and membership as a reason why it must further review Guru Nanak’s application for environmental impact. The California Supreme Court in Laurel Heights Improvement Ass’n v. Regents of University of California, 47 Cal.3d 376, 396, 253 Cal.Rptr. 426, 764 P.2d 278 (1988), held that an environmental impact report (EIR) “must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” The County points to Guru Nanak’s statement in its application that this first temple is an interim use and that the group intends to build a larger temple and parking lot in the future — both “reasonably foreseeable consequences of the initial project.” Although Guru Nanak, like many religious congregations, may have tentative plans to expand in the future, the construction of new installations is not a foreseeable result of Guru Nanak’s application. Any later expansion would have to go through a new application process with a new EIR. Lucas Valley Homeowners Ass’n. v. County of Marin, 233 Cal.App.3d 130, 284 Cal.Rptr. 427 (1991), is analogous to the situation here. In Lucas Valley, the court stated that the County of Marin did not need to consider an orthodox Jewish group’s future hopes for expansion when expansion plans were not proposed for approval in the group’s application and would be subject to a future application process. Id. at 161-62, 284 Cal.Rptr. 427. Similarly, Guru Nanak here has agreed to a capacity of seventy-five people in the building it plans to convert into a temple, and future construction would require another application process. IV. Conclusion We AFFIRM the district court’s order granting summary judgment for Guru Nanak and enjoining the County immediately to approve and grant Guru Nanak’s CUP application. AFFIRMED. . This opinion refers to Appellants County of Sutter, Casey Kroon, Dennis Nelson, Larry Munger, and Dan Silva, in their official capacities as County Supervisors, collectively as "the County.” . The facts in this case are not disputed. This summary draws extensively from the district court opinion, Guru Nanak Sikh Soc’y of Yuba City v. County of Sutter, 326 F.Supp.2d 1140 (E.D.Cal.2003). .The details of Guru Nanak's first CUP application were not included in the record on appeal. Therefore, we rely on the district court's summary of the relevant facts, which facts are not disputed by the parties. . The Sutter County Zoning Code describes the purpose of utilizing use permits for certain proposed uses of land: The County realizes that certain uses have operational characteristics that, depending on the locations and design, may have the potential to negatively impact adjoining properties and uses. Such uses therefore require a more comprehensive review and approval procedure in order to evaluate and mitigate any potentially detrimental impacts. Use permits, which may be revocable, conditional or valid for a term period, may be issued by the Planning Commission for any of the uses or purposes for which such permits are required or permitted by the terms of this Chapter. Guarantees to ensure compliance with the terms and conditions may be required by the Commission. Sutter County Zoning Code § 1500-8210 (May 2002). See infra Part I.C. for further discussion of CUPs. . This parcel was within the "sphere of influence” of Yuba City. In other words, it was not officially yet within the City's borders, but the parcel was in a delineated area which will probably become part of the city as the urban center expands and takes over agricultural land. When land is within a city's sphere of influence, "comprehensive land use planning ... [is] conducted by [the applicable] city in cooperation and coordination with the County.” Sutter County General Plan, Policy Document, at v (November 25, 1996). . Because the material facts are undisputed, we are left to decide whether the district court correctly applied RLUIPA to those facts, and whether RLUIPA passes constitutional scrutiny. . The provisions of the First Amendment apply to state and local government regulation. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 8 n. 4, 124 S.Ct 2301, 159 L.Ed.2d 98 (2004). . The Sutter County Zoning Code undeniably is a "system of land use regulations" within the meaning of RLUIPA because it is a system of "zoning law[s] ... that limits or restricts a claimant’s use or development of land....” 42 U.S.C. § 2000cc-5. . While the statutory text is dispositive on this issue, for those who seek to interpret statutes by reference to the legislators’ stated purposes, RLUIPA’s legislative history confirms that the County's procedure for approving a CUP application constitutes an individualized assessment. In explaining the need for RLUI-PA, Senators Hatch and Kennedy, sponsors of the bill, noted, “Churches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. ... [O]ften, discrimination lurks behind such vague and universally applicable reasons as traffic, aesthetics, or not consistent with the city's land use plan.' ” 146 Cong. Rec. S774-01 (daily ed. July 27, 2000) (emphasis added). Sutter County’s Zoning Code implementation process is individualized and discretionary. In fact, the Board of Supervisors in this case summarized the predominant reason for its denial of Guru Nanak's application by concluding that “the proposed uses [are] inconsistent with existing uses within the area”— an echo of the broad and discretionary response that RLUIPA's sponsors cited as a need for the statute. . In Sherbert, the Court held that the Free Exercise Clause protects a jobless individual from losing unemployment compensation because she chooses to obey a central tenet of her faith: not to work on the Sabbath (Saturday). Sherbert, 374 U.S. at 403-09, 83 S.Ct. 1790. . Several of our sister circuit courts began their task of defining substantial burden by referring to these precedents. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1226 (11th Cir.2004) (“We turn ... to other instances in which courts have defined or discussed the term 'substantial burden.' "); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 760 (7th Cir.2003) (“Civil Liberties ”) ("RLUIPA's legislative history indicates that it is to be interpreted by reference to RFRA and First Amendment jurisprudence.’’) (citing 146 Cong. Rec. S774-01 (July 27, 2000)). . The County argues that San Jose Christian instead defined the phrase "substantial burden” by reference to the Seventh Circuit opinion in Civil Liberties that adopted a narrower definition of the phrase. Compare San Jose Christian, 360 F.3d at 1035("Our holding is entirely consistent with the Seventh Circuit’s recent ruling ... [that] the City’s regulations in this case do not render religious exercise effectively impracticable ” (emphasis added)), with Civil Liberties, 342 F.3d at 761 ("We therefore hold that ... a land-use regulation ... imposes a substantial burden on religious exercise [if it] necessarily bears direct, pri-maiy, and fundamental responsibility for rendering religious exercise — including the use of real property for the purpose thereof within the regulated jurisdiction generally — effectively impracticable." (emphasis added)). We disagree with this understanding of San Jose Christian. After announcing its holding which defined the phrase "substantial burden,” San Jose Christian, 360 F.3d at 1034, San Jose Christian referred to Civil Liberties, and then simply to note that San Jose Christian "is entirely consistent [with Civil Liberties]." Id. at 1035. Failure by San Jose Christian College to present a complete land use application can fail the more lenient "oppressive to a significantly great extent” test as well as the "effectively impracticable” test. That is the consistency; it does not mean the former case adopted the latter case's test. . For instance, "the [General Agricultural] District is established to provide areas for general farming, low density uses, open spaces, and by use permit limited retail service uses which in the opinion of the Planning Commission support the local agricultural industry.” Sutter County Zoning Code § 1500-1410. . "This district classification is intended to provide areas for low density residential development within an urban environment that has adequate services and amenities which will support a desirable and stable living environment.” Sutter County Zoning Code § 1500-2210. . Although one could argue that higher density districts — such as apartment and combining districts — are likely still available for Guru Nanak’s temple because apartment dwellers are probably more noise tolerant than neighbors in a low density residential district, the County’s land use law does not allow such a distinction. The Sutter County General Plan states that "[n]ot all land uses are equally affected by noise”; however, "residences of all types " are grouped together as being noise sensitive. Policy Document, at 71 (emphasis added). The Sutter County Zoning code characterizes apartments districts as residential under the General Plan, §§ 1500-2810, 1500-3110, and permits "one-family dwellings ... when occupied or used by ... persons employed on the premises” as of right in combining districts, § 1500-1730. Therefore, neighbors located in either two-family residence, apartment, or combining districts would be equally justified under the General Plan to complain about the noise created by a nearby proposed temple as neighbors located in low density residential districts. A Guru Nanak CUP application for a temple in any of these districts could be denied for the exact same broad reasons as its first CUP application. .During the public hearing at which the Sutter County Planning Commission approved Guru Nanak’s second application. Commissioner Griffin commented, "We turned ... down [Guru Nanak's first application] because the noise impact on the neighbors was going to be severe. And more or less told them that they needed to find more acreage to set up their facility, and they did that.” (Emphasis added.) . At the Planning Commission public hearing, Marie Carney, Guru Nanak’s realtor in acquiring the subject property, stated, “[Tlhere [are] plenty of examples of churches having been built on agricultural] land and they tend to be scattered throughout the community.” Although Ms. Carney was not a neutral participant in this land use proceeding, her statement is nowhere disputed in the record. . Other earlier "leapfrog development” evidence was adduced. During the Planning Commission public hearing, Commissioner Dunn noted, "[Sutter County] just approved a development out on Township Road [in an area not contiguous with Yuba City limits] last year. Big huge development for residential occupation, ... both planning commissions were against it, and still, passed the review to their supervisors.... I’m just pointing out things that I’ve seen that fly in the face of that comment [that the County attempts to avoid leapfrog development.]” . During the Planning Commission public hearing, one complaining neighbor exempli-fled the perspective of many Sutter County residents that converted Guru Nanak’s task of locating suitable property into a predicament: ”[N]o family wants to live near a religious temple with all the excessive crowds, traffic, and noise which will increase with a future temple and [Guru Nanak's] proposal.” . In denying Guru Nanak's second application, the Board of Supervisors assured Guru Nanak that it would support a future application “if it was in the right location ... closer towards Yuba City ... further to the north of this site along with several other churches.” The Board of Supervisors also advised that it would informally cooperate with Guru Nanak to locate a suitable site. Admittedly, the availability of other suitable property weighs against a finding of a substantial burden. See San Jose Christian, 360 F.3d at 1035. However, RLUIPA does not contemplate that local governments can use broad and discretionary-land use rationales as leverage to select the precise parcel of land where a religious group can worship. See Saint Constantine, 396 F.3d at 900(noting that RLUIPA's substantial burden test aims to protect religious groups from “subtle forms of discrimination when, as in the case of the grant or denial of zoning variances, a state delegates essentially stan-dardless discretion to nonprofessionals operating without procedural safeguards”). Moreover, given that Guru Nanak had repeatedly followed the guidance of governmental bodies about how to obtain a land entitlement to no avail, we cannot credit the Board's offer to cooperate as assuring Guru Nanak’s future success. . We do note two potential concerns regarding die scope of RLUIPA. First, City of Boerne noted a concern with the strict scrutiny test created by RFRA. 521 U.S. at 533-34, 117 S.Ct. 2157("The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved.... Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law.”). While RLUIPA may use the same strict scrutiny standard as did RFRA, it applies the standard only to types of regulations subject to strict scrutiny in the past. See supra Part II.B. Second, RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). This definition of "religious exercise” is broader than the definition in RFRA. See Civil Liberties, 342 F.3d at 760. However, RLUI-PA's expanded meaning of "religious exercise” applies, as is relevant here, only to individualized assessments pursuant to land use regulations. As noted above, Congress sufficiently documented how local governments stifle religious groups’ religious exercise by denying such groups the ability to use property for religious purposes. . In Laurel Heights, the UC Regents approved a use permit for a building that was going to be vacant in the near future. 37 Cal.3d at 396-97, 208 Cal.Rptr. 162, 690 P.2d 635. The Regents undoubtedly were going to fill the already standing, vacant building with additional occupants. Id. This situation is distinct from the one at issue here, because Guru Nanak would have to construct a new building if it wanted to expand its operations.

Ecology Center, Inc. v. United States Forest Service

HENRY, Circuit Judge. Plaintiffs Ecology Center and the Aquarius Escalante Foundation (together, “Ecology Center”) filed a complaint in the United States District Court for the District of Utah. Ecology Center sought declaratory and injunctive relief to stop the Griffin Springs Resources Management Project (“the Project”), which would allow logging in the Griffin Springs area. Ecology Center claimed that the Project’s Record of Decision did not comply with the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f; the National Forest Management Act of 1976, 16 U.S.C. § 1600-1614; and the Administrative Procedures Act, 5 U.S.C. §§ 701-706. The district court found the Forest Service’s approval of the Project neither arbitrary nor capricious and dismissed the complaint. Ecology Center timely appealed. For the reasons stated below, we affirm in part, reverse in part, and remand in part. I. BACKGROUND A. Statutory and Regulatory Framework 1. NEPA’s procedural requirements NEPA established a “national policy [to] encourage productive and enjoyable harmony between man and his environment,” and was intended to reduce or eliminate environmental damage and promote “the understanding of the ecological systems and natural resources important to” the United States. 42 U.S.C. § 4321. “NEPA itself does not mandate particular results” in order to accomplish these ends. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Rather, NEPA imposes procedural requirements on federal agencies with a particular focus on requiring agencies to analyze the environmental impact of their proposals and actions. See id. at 349-53, 109 S.Ct. 1835. NEPA requires that federal agencies prepare an environmental impact statement (“EIS”) for certain major federal actions significantly affecting the quality of the human environment. The EIS must include a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2)(C). 2. National Forest Management Act’s requirements The National Forest Management Act of 1976 requires the Secretary of Agriculture to “develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” 16 U.S.C. § 1604(a). The Forest Service, which manages the national forest system, develops land and resource management plans pursuant to the National Forest Management Act. The National Forest Management Act also requires that forest plans “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.” Id. § 1604(g)(3)(B). The Project is located in the Dixie National Forest in Utah. Management activities of the Dixie National Forest are governed by the Dixie National Forest Plan (“the Plan”), adopted in 1986. The Plan includes both a habitat approach (which incorporates habitat management recommendations to preserve and maintain suitable habitat) and a population trend monitoring approach (which includes species population assessments) for insuring the viability of old growth species in compliance with the National Forest Management Act. See 16 U.S.C. § 1604(f)(1). For individual management actions within a forest, all relevant resource plans, contracts, and permits must be consistent with a forest’s overall land management plan. Id. § 1604(f). B. The Dixie National Forest Plan As the Forest Service points out, the Plan imposes several obligations on the forest, with specific instructions for protecting the northern goshawk. It is undisputed that the Forest Service considers the northern goshawk a sensitive species. The duty to ensure viable populations “applies with special force to sensitive species.” Inland Empire Pub. Lands v. U.S. Forest Serv., 88 F.3d 754, 759 (9th Cir.1996) (internal quotation marks omitted). The Plan’s requirements of particular relevance to this appeal are: 1. establishing the northern goshawk as a management indicator species (“MIS”), Aplts’ App. at A-16; 2. imposing forest-wide ongoing monitoring obligations for MIS, including the northern goshawk, id.; 3. requiring annual nest surveys for goshawks, if the population is near the minimum level, and nest surveys every two to five years in project areas, id.; 4. requiring “further evaluation” if there is a ten percent decline in the estimate forest-wide goshawk population size over a three-year period “and for loss of important habitat components,” id.; 5. requiring annual monitoring by means of a “[vjariable strip transect,” which involves the use of a linear transect of a predetermined distance, id.; and 6. incorporating the requirements of the Utah Northern Goshawk Conservation Strategy and Agreement for the Management of [the] Northern Goshawk Habitat in Utah (the “Conservation Strategy”), which also imposes annual population monitoring requirements, id. at A-33 to A-51. The purpose of the Conservation Strategy is to attain the goal of long-term conservation of the northern goshawk, its habitat and associated species throughout Utah through proactive management. Conservation of the Northern goshawk and its habitat will require improving degraded habitat conditions, maintaining and/or expanding populations.... Achievement of the desired habitat conditions contained within the strategy will provide that habitat is available to sustain viable goshawk populations in the State of Utah. Id. at A-49. The Conservation Strategy states, “when developing site specific prescriptions ... the management recommendations for the northern goshawk in the Southwest United States (Reynolds et al.1992) should be used.” Id. at A-35. These recommendations are contained in a 1992 Forest Service report titled “Management Recommendations for the Northern Goshawk in the Southwestern United States” (the “Reynolds Report”). Id. at A-52. The Reynolds Report’s recommendations “represent the best available scientific information for forming the development of site prescriptions and should be considered a component of [the Conservation Strategy].” Id. at A-38 to A-39. The Reynolds Report lists several “management recommendations” for the three types of goshawk habitat: nest areas, post-fledgling family areas, and foraging areas. Should there be logging, the Conservation Strategy recommends the thinning of understory trees rather than thinning from above. Id. at A-58. Specifically, the Plan seeks to maintain “[functioning forested landscapes [to] provide habitat for the northern goshawk and its prey to support a viable population of goshawks in Utah.” Aples’ SuppApp. vol. I, at 8443. The Conservation Strategy acknowledges that “[w]here site specific conditions differ from those described [in the Reynolds Report], the [Forest Service] must interpret and document [its] own specific value based on local data ... using the 1992 habitat evaluation process [set forth in the Reynolds Report].” Aplts’ App. at A-39. In discussing the northern goshawk habitat, the Reynolds Report describes six vegetation structural stages (“VSS”) of southwestern forests. Those structural stages range from VSS 1-in which a forest is dominated by grasses, forbs and shrubs — to VSS 5 (a “mature forest”) and VSS 6 (an “old forest”). Id. at A-59. The report states that desired forest conditions for sustaining northern goshawks and their principal prey species require twenty percent of VSS 6, such as older spruce-firs in the post-fledgling goshawk area and foraging area. In 1982, when the Plan was adopted, the Forest Service estimated that there were 68 pairs of northern goshawks in the Dixie National Forest. The minimum viable population was established at 40 pairs. Id. at A-17. All parties agree that according to the most recent assessment in 2002, the goshawk population hovered at 20-30 pairs. Id. at A-70. C. The Griffin Springs Project During 1994, the Forest Service first reviewed the possibility of implementing the Griffin Springs Project to allow commercial logging in the area. The Project area encompasses 11,835 acres located within the Escalante River and East Fork of the Servier River watershed. Id. at A-18. The Project area’s forest type consists primarily of Englemann spruee/subalpine fir, “with a strong component of aspen. Other vegetation types represented include sagebrush and mixed conifer.” Id. The Forest Service determined that the area at issue contained high stand densities that contribute to declining tree growth and vigor, reduced aspen presence, and bark beetle infestations. Id. at A-22. The Project’s Januáry 2002 EIS studied five alternatives to address these concerns, including a no-action alternative. After the Forest Service completed the EIS, it issued a Life History and Analysis of Endangered, Threatened, Candidate, Sensitive, and Management Indicator Species of Dixie National Forest Report (the “Life History Report”) in September 2002. The Forest Service then determined a Supplemental EIS (“SEIS”) was required to consider the information provided in the Life History Report. On March 27, 2003, the Forest Supervisor selected Alternative 4 and issued a Record of Decision. Alternative 4 outlines the following actions. Within the 669 acres of aspen, 112 acres will be subject to clear-cut logging, taking place in various “patches.” Aples’ SuppApp. vol. Ill, at 848. After the logging, prescribed fire techniques will be applied. Within the 8,030 acres of En-glemann spruce/sub-alpine fir forest, approximately 3,307 acres would be subject to an “intermediate” level of commercial logging. Trees will be individually selected to “reduce stand densities while maintaining a variety of tree sizes.” Id. There will also be clear-cutting in 440 acres of the 3,307 acres of spruce/fir that are “stocked with scattered aspen clones.” Id. In certain areas and for a period as long as seven years, trees that are infested with spruce, beetles or that have been recently killed will be removed. There will be 88 acres of planting of Engelmann spruce seedlings. Finally, approximately seventeen miles of road would undergo reconstruction, and thirty-three miles of road would undergo maintenance. Despite the unchallenged status of the Reynolds Report as the best available science, the Forest Service relied on a study titled “Characteristics of Old-Growth Forests in the Intermountain Region” for certain calculations. According to the Forest Service, the Reynolds Report did not address all of the Project area’s habitat attributes, and the intermountain region report represented better local data. See Aples’ Br. at 26. The Forest Service maintains that the Project will create more goshawk habitat than currently exists. Although some foraging goshawks will be displaced, this displacement is not considered significant, according to the SEIS. Similarly, the Forest Service looked to a study titled “The Northern Goshawk in Utah: Habitat Assessment and Management Recommendations” for its assertions that goshawks can breed successfully in the wake of clear-cutting, rather than following the Reynolds Report’s requirement of twenty percent VSS 6. According to the Forest Service, the Project will actually improve goshawk habitat and viability over time. Aplts’ Supp.App. at 39-44. The Record of Decision concludes that the project “will not negatively effect [sic] any of the MIS species that occur within the [P]roject area.” Aplts’ App. vol. Ill, at 850. Here, Ecology Center filed a complaint seeking review of the Griffin Springs Project, contending that the SEIS does not conform with either NEPA or the National Forest Management Act. Ecology Center maintained first that the Forest Service had not disclosed sufficient data pursuant to NEPA to demonstrate how the Griffin Springs Project was consistent with the Forest Plan. Second, Ecology Center argued that the Forest Service had failed to collect appropriate quantitative data regarding the northern goshawk and old growth species, in violation of the National Forest Management Act, which requires compliance with the Forest Plan. In response, the Forest Service filed a motion to dismiss the complaint, which the district court granted. For the reasons stated below, we affirm the district court’s grant of the Forest Service’s motion to dismiss the NEPA claim. However, we reverse the district court’s dismissal of the National Forest Management Act claim and direct the district court to remand the case to the Forest Service for the limited purpose of allowing the agency to review the Project pursuant to the appropriate rules. II. DISCUSSION A. Standard of Review Under the APA, we will set aside a final agency action “only if it is arbitrary, capricious, otherwise not in accordance with law, or not supported by substantial evidence.” Am. Colloid Co. v. Babbitt, 145 F.3d 1152, 1154 (10th Cir.1998). Our review is “highly deferential.” Valley Cmty. Pres. Comm’n v. Mineta, 373 F.3d 1078, 1084 (10th Cir.2004). Our duty is “to ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made.” Cliffs Synfuel Corp. v. Norton, 291 F.3d 1250, 1257 (10th Cir.2002) (internal quotation marks omitted). We must determine whether the agency’s decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Oreg. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotation marks omitted). While our review is deferential, our inquiry must “be searching and careful.” Id. (internal quotation marks omitted). Courts defer to the evaluations of agencies when the evidence presents legitimately conflicting, qualified views because “an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as.an original matter, a court might find contrary views more persuasive.” Id. However, the agency action may be overturned if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); see Thomas Brooks Chartered v. Burnett, 920 F.2d 634, 644 (10th Cir.1990) (applying this standard of review). B. The NEPA Claim Ecology Center first' contends that the Forest Service failed to take a hard look at many critical issues concerning the potential adverse environmental impacts of the Project. In addition, argues Ecology Center, the Final EIS and SEIS are based on a variety of expert conclusions that lack any credible hard quantitative data necessary to inform the public and the courts of the basis for these conclusions. We disagree with Ecology Center’s assertions. It is useful to recall NEPA’s twin aims: First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process. Congress in enacting NEPA, however, did not require agencies to elevate environmental concerns over other appropriate considerations. Rather, it required only that the agency take a hard look at the environmental consequences before taking a major action. Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (internal quotation marks and citations omitted); see Sierra Club v. Hodel, 848 F.2d 1068, 1088 (10th Cir.1988) (noting these twin aims of NEPA). The Forest Service’s EIS and SEIS satisfy the “hard look” requirement. Citizens’ Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1022 (10th Cir.2002) (“When a government agency prepares to take an action ‘significantly affecting the quality of the human environment,’ this ‘hard look’ at potential environmental impacts is accomplished through an EIS.”) (citing 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.4) (internal quotation marks omitted) (emphasis added). The Forest Service has “discuss[ed] the purpose and need for the proposed action, environmental impacts resulting from the actions, unavoidable adverse environmental impacts, alternatives to the proposed action, the relationship between short-term uses and long-term productivity, and the amount of resources that must be devoted to the proposed action.” Id. (citing 42 U.S.C. § 4332(2)(C)(i)-(v); 40 C.F.R. § 1502.10). There is no suggestion that the Forest Service failed to solicit comments, or failed to consider the other alternatives in the EIS. See 42 U.S.C. § 4332(2)(C)(i)-(v); 40 C.F.R. §§ 1501.7, 1502.10. The Forest Service engaged in the notice and comment process, and, after it prepared the Life History Report, it deemed the EIS incomplete. See 40 C.F.R. § 1502.9(b). It then prepared an SEIS to consider and incorporate the Life History Report’s conclusions. See id. § 1502.9(c)(1). ‘We apply a rule of reason standard (essentially an abuse of discretion standard) in deciding whether claimed deficiencies in a [final] EIS are merely flyspecks, or are significant enough to defeat the goals of informed decision making and informed public comment.” Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1163 (10th Cir.2002). The hard look requirement was satisfied through the EIS and SEIS. Here, Ecology Center un-persuasively attempts to equate the lack of a “hard look” with a lack of “hard data.” Because the Forest Service has conformed with NEPA’s procedural requirements, we “will not second-guess the wisdom of the ultimate decision.” Id. Accordingly, we affirm the district court’s grant of the Forest Service’s motion to dismiss the NEPA claim. C. The National Forest Management Act claim Ecology Center’s more substantive concerns emanate from the National Forest Management Act. Ecology Center identifies a variety of shortcomings in the Record of Decision, and concludes that it failed to comply with the Dixie National Forest Plan. In particular, Ecology Center notes the Forest Service’s failure to maintain the Forest Plan’s recommended requirements for the northern goshawk’s habitat. In addition, according to Ecology Center, the Record of Decision makes no reference to the annual monitoring requirements for the northern goshawk, as required by the Forest Plan. Finally, the Forest Service has not explained why it will not follow the Conservation Strategy’s preferred recommendation to thin the understory trees. Aplts’ App. at A-58. Although the arguments raised by Ecology Center raise concerns, for the reasons explained below, we need not reach them in this opinion. 1. The 2000 Transitional Regulations Apply Forest plans may require particular standards to be followed regardless of later changes in the regulations. But this is not the case here. The Forest Plan “does not explicitly reference or adopt § 219.19 of the 1982 rules, concerning the selection and monitoring of management indicator species.” Utah Envt’l Cong. v. Bosworth, 443 F.3d 732, 748 (10th Cir.2006). Therefore, we cannot read the Forest Plan to adopt the 1982 rules. We thus must determine the standards under the appropriate regulation or transition rule. The 1982 forest planning regulations at 36 C.F.R. Part 219 were superseded in November 2000, when new regulations were promulgated. 65 Fed.Reg. 67,568 (Nov. 9, 2000). Under the transition provision of the 2000 regulations, the Forest Service was required to consider the “best available science” when implementing site-specific projects within a forest plan. 36 C.F.R. § 219.35(a) (2001). The Griffin Springs Project is a site-specific implementation of the Dixie National Forest Plan. See Utah Envt’l Cong. v. Bosworth, 372 F.3d 1219, 1221 (10th Cir.2004) (noting that a Forest Service project must be consistent with the applicable Forest Plan). A 2004 Department of Agriculture interpretive rule explains that, during the transition period from November 2000 until promulgation of a final rule (in January 2005), only the transition provision of the 2000 regulations applied. 69 Fed.Reg. 58,-055, 58,057 (Sept. 29, 2004). Thus, neither the remainder of the 2000 planning regulations nor any of the 1982 regulations were binding on site-specific decisions during this period. Id. (“The 1982 rule is not in effect.... Projects implementing land management plans must comply with the transition provisions of Section 219.35, but not any other provision of the 2000 planning rule.”). The preamble to the transition rule states that “projects proposed during the transition period should be developed considering the best available science.” Id. at 58,056. The preamble also advises that “site-specific decisions entered into during the transition period are not to comply with the substantive provision of the 2000 planning rule.” Id. Given these guidelines, we have determined that the relevant date to consider is the date the final agency decision on the Project was made. Bosworth, 372 F.3d at 1221 n. 1 (applying “[t]he regulations in effect at the time of the disputed Forest Service decision”); see also Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 800 n. 3 (9th Cir.2005) (holding the 1982 regulations “applicable here because they were in effect when the plan revisions challenged in this lawsuit were prepared”); Forest Watch v. U.S. Forest Serv., 410 F.3d 115, 118 (2d Cir.2005) (holding the “relevant date for the purpose of determining which rule applies is the date the final agency decision was made”). Here, the Record of Decision was dated March 27, 2003. Therefore, we agree with the Forest Service that the 2000 transition rule was applicable to the Griffin Springs Project. We next consider how to review the Forest Service’s March 27, 2003 Record of Decision when the agency did not consider or mention the Project’s compliance under the 2000 transition rule. The Second Circuit recently resolved this issue. See Forest Watch, 410 F.3d at 118-19. The court, relying on Bosworth, 372 F.3d at 1221 n. 1, determined that the 2000 transition rule applied to an environmental assessment issued in 2002. There, as here, the Forest Service nowhere considered or mentioned [the 2000 transition rule’s “best available science”] standard during the administrative process. Instead, the Forest Service reviewed the ... Project for compliance only with the 1982 Rules and the [Forest] Plan.... The exclusive application of the 1982 Rules and the failure to consider or mention the “best available science” standard amounted to conduct that is arbitrary and capricious. Forest Watch, 410 F.3d at 119. The court remanded the case to the district court with instructions to enter an order vacating the Forest Service’s approval of the project. Here, at oral argument, the Forest Service acknowledged that it made no mention of the 2000 transition rule’s applicability until this court issued its 2004 decision in Utah Environmental Congress. At that point in time, the Forest Service argued before the district court that the 2000 transition rule applied. The Forest Service points to nothing in the record regarding the district court’s resolution of this issue. At oral argument, the Forest Service maintained that the district court’s application of the 1982 regime was harmless error. According to the Forest Service, it followed the “best available science,” i.e., the Reynolds Report, in a manner consistent with the requirements of the applicable Forest Plan. Therefore, the Forest Service maintains that it necessarily complied with the 2000 transition provision and as such, the Second Circuit’s decision in Forest Watch is inapplicable. However, the Forest Service’s own actions suggest the Reynolds Report was not always treated as the best available science. For example, Ecology Center vigorously disputes that the Forest Service applied the Reynolds Report’s recommendations. It argues that the Griffin Springs Project will result in a percentage of old growth significantly lower than that required by the Conservation Strategy and the Reynolds Report. Similarly, Ecology Center points out that the Forest Service has not complied with the monitoring requirements of the Forest Plan, given the below-minimum-viability population of the northern goshawk. Ecology Center also challenges the Project’s compliance with the Forest Plan and Reynolds Report provisions regarding canopy closure, snags, and decaying logs that provide habitat for the northern goshawk. In addition, the Forest Service presents no long-range scientific evidence supporting its assertion that the Project will actually increase the number of northern goshawk in the Project area. Aplts’ SuppApp. at 39^44. In the same vein, Ecology Center argues, the Forest Service’s contention that there are no nesting goshawks in the Project area seems to contradict this logic. At oral argument, the Forest Service contended that there was no doubt the “best available science” was applied here, suggesting that the Forest Service had discretion to decide what constituted the best available science. The Forest Service insists that a remand would be futile because “it is plain what those findings must be.” Aples’ Br. at 29 n. 5 (internal quotation remarks omitted). The Forest Service argues that “regardless of which regulatory scheme governs [our] review, on remand the Forest Service would be obligated to apply the 2005 regulations to this decision.” Id. at 30 n. 5. We note that the 2005 regulations require the Forest Service to document how the best available science was taken into account in the planning process; evaluate and disclose substantial uncertainties in that science; evaluate and disclose substantial risks associated with plan components based on that science and document that the science was appropriately arrogated and applied. 36 C.F.R. § 291.11(a)(l)-(4) (2005). These requirements underscore that the “best available science” is not just whatever the Forest Service finds on the shelf. The Forest Service may satisfy the 2005 regulations’ requirements through the use of “independent peer review, a science advisory board, or other review methods to evaluate to consideration of science in the planning process.” Id. § 291.11(b). At oral argument the Forest Service maintained that even though it did not argue the best available science standard below, that was harmless error because there is no question that it applied the best available science. It argues that because the plaintiffs have conceded that the Reynolds Report is the best available science, and that, in instances in which it has departed from that report, the agency has made a scientific judgment deserving of deference. On this récord, we must disagree. The Forest Service’s approach is rather circular: while touting the Reynolds Report as the best available science, it is clear that the Forest Service has departed from its recommendations in several areas. It suggests that the Reynolds Report does not speak to aspen forests, yet aspen forests represent only a couple of hundred acres of this very predominantly spruce forest. Moreover, although the Reynolds Report suggests thinning from below, this project focuses on taking out the larger trees. Issues also exist about minimum canopy closures and the width of clearances. Thus, the Forest Service seems to use the Reynolds Report very selectively; when its conclusions differ with the report’s “best available science” it simply argues that we must defer to its expertise. As noted in the Conservation Strategy, “[w]here site specific conditions differ from those described [in the Reynolds Report], the [Forest Service] must interpret and document [its] own specific value based on local data ... using thel992 habitat evaluation process [set forth in the Reynolds Report].” Aplts’ App. at A-39. On this record, we are unable to determine whether the Forest Service’s reliance on other available data satisfies the “best available science” requirements. Rather than resolve these disputes on appeal, we con-elude that a remand is appropriate so that ^he a£ency itself can have the first chance to apply its own standards. The demonstration of compliance with the applicable regulatory regime heightens the transparency and legitimacy of the Forest Service when it dons multiple hats: it is the institution that issues the legal provision, the institution that is subject to the provision, and the institution charged with the power to interpret the provision. For the Forest Service to assume it has satisfied all of its regulatory requirements based on a record that applied a now defunct regulatory regime is at odds with the agency’s commitment to “produce responsible land management” and to attain the goal of sustaining social, economic, and ecological systems. 36 C.F.R. §§ 219.3, 219.10 (2005). Accordingly, we need not decide if Ecology Center’s myriad of pointed arguments regarding Forest Services’s failure to comply with the Forest Plan’s habitat and monitoring requirements demonstrates that the Forest Service engaged in a clear error of judgment when it approved the Griffin Springs Project. We agree with the Second Circuit that we “may not ‘properly affirm an administrative action on grounds different from those considered by the agency.’ ” Forest Watch, 410 F.3d at 119 (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999); and citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). “[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.” Chenery, 332 U.S. at 196, 67 S.Ct. 1575. We hold that the Forest Service’s “exclusive application of the 1982 Rules and the failure to consider or mention the ‘best available science’ standard amounted to conduct that is arbitrary and capricious,” and we must reverse and remand on this limited basis. Forest Watch, 410 F.3d at 119. III. CONCLUSION Accordingly, we AFFIRM the district court’s grant of the Forest Service’s motion to dismiss Ecology Center’s NEPA challenges. However, we REVERSE the district court’s dismissal of Ecology Center’s claims under the National Forest Management Act. We REMAND the case to the district court and instruct it to enter an order vacating the Forest Service’s approval of the Griffin Springs Project. . The National Forest Management Act regulations require the Forest Service to identify management indicator species that will be monitored because the species’ "population changes are believed to indicate the effects of management activities.” 36 C.F.R. § 219.19(a)(1) (2000). "Population trends of the management indicator species will be monitored and relationships to habitat changes determined.” Id. § 219.19(a)(6). . The Department of Agriculture has proposed a variety of new rules for National Forest System planning since the original planning rules were adopted in 1979, and revised in 1982. 36 C.F.R. § 219 (1983). In 1997, the agency appointed a Committee of Scientists to review the land and resource management planning process. In a strategic planning exercise, the agency adopted the following objectives: to (1) ensure sustainable ecosystems, (2) provide multiple benefits for people within the capability of ecosystems, and (3) ensure organizational effectiveness. U.S. Dep't of Agriculture, USDA Forest Service (GPRA) Strategic Plan (Washington, D.C. 1997). See George Hoberg, Science, Politics, and U.S. Forest Service Law: The Battle of the Forest Service Planning Rule, 44 Nat. Resources J. 1, 12-17 (Winter 2004). In October 1999, the Department of Agriculture proposed a new rule for National Forest System planning. 64 Fed.Reg. 54,074 (Oct. 5, 1999). Relying on the 1997 report, and stating that "[t]he goals and principles for planning are those recommended by the Committee of Scientists,” the new rule reiterated the agency’s commitment to ecological sustainability. Id. at 54,080. The final rule, issued in November 2000, included a section that replaced the species viability section of the earlier 1982 rule. 65 Fed.Reg. 67,568 (Nov. 9, 2000). A transition provision in the 2000 regulations initially delayed application of its substantive provisions to project decisions until November 9, 2003. See Bosworth, 443 F.3d at 737; 36 C.F.R. § 219.35(d) (2001); 65 Fed.Reg. at 67,579. “During the transition period,” the Forest Service was required to "consider the best available science in implementing” a forest plan. 36 C.F.R. § 219.35(a) (2001). In 2001, the new presidential administration moved quickly to review the new rules and in May 2001 suspended their application until May 2002. See 66 Fed.Reg. 27,552 (May 17, 2001). On May 20, 2002, the Department of Agriculture again extended the transition date of the 2000 planning regulations. 67 Fed.Reg. 35,431 (May 20, 2002). On December 6, 2002, the Forest Service proposed revisions to the 2000 regulations. 67 Fed.Reg. '72,770 (Dec. 6, 2002). On September 10, 2003, the Forest Service published another "interim final rule,” extending the transition date of the 2000 regulations "until the Department promulgates the final planning regulations published as proposed on December 6, 2002.” 68 Fed.Reg. 53,294, 53,297 (Sept. 10, 2003). Apparently, and unsurprisingly, this series of publications and promulgations created considerable uncertainty regarding the effect of the 2000 planning regulations, particularly the application of the "best available science” standard during the transition period. As a result, on September 29, 2004, the Forest Service issued an "interpretative rule” stating that the agency should use the "best available science” standard during the transition period from November 2000 until promulgation of a final rule. 69 Fed.Reg. 58,055, 58,056 (Sept. 29, 2004). The Forest Service subsequently published its final planning regulations. 70 Fed.Reg. 1022 (Jan. 5, 2005). It is not surprising that "courts have expressed considerable confusion in applying the 2000 transition provisions.” Bosworth, 443 F.3d at 745. . Ecology Center failed to provide the Record of Decision, which is a required portion of the record because it is the decision “from which the appeal is taken.” 10th Cir R. 10.3(C)(5). The Forest Service attempted to rectify this deficiency when it supplied an excerpt of the Record of Decision in its Supplemental Appendix and Supplemental Excerpts. See 10th Cir. R. 30.2(A) (“An appellee who believes that the appellant's appendix omits items that should be included may file a supplemental appendix with its answer brief.”); 10th Cir. R. 10.3(B) ("When the party asserting an issue fails to provide a record sufficient for considering that issue, the court may decline to consider it.”). Neither party has provided a sufficient record or appendix in this case. However, the excerpt of the Record of Decision makes no mention of the applicable rules, and does not even include the phrase "best available science” anywhere in the pages provided. Rather, the Record of Decision appears to have applied the 1982 rules, referencing Management Indicator Species, which are not part of the 2000 transition rule's approach. See Aples' Supp.App. vol. Ill, at 847-53 (pages 1, 3, 5-6, 9, 18-19 of ROD dated March 27, 2003); Aples’ Supp. Excerpts vol. II, at 472-78 (same). Because only an excerpt was provided, we assume that there are no other provisions relevant to the Forest Service's argument. . We note that we have not found, nor have the parties cited, any cases that define “best available science” in today's context. However, the term is used in other statutes that may, along with the regulations cited above, assist the Forest Service on remand. In the context of the Endangered Species Act, 16 U.S.C. §§ 1531-44, the Secretary of the Interior must use "the best scientific and commercial data available.” Id. § 1536(c)(1); see also 50 C.F.R. § 402.14(g)(8) (2005) ("In formulating its biological opinion, any reasonable and prudent alternatives, and any reasonable and prudent measures, the Service will use the best scientific and commercial data available and will give appropriate consideration to any beneficial actions taken by the Federal agency or applicant, including any actions taken pri- or to the initiation of consultation.”). The Eighth Circuit has stated that, in the context of the Endangered Species Act, "[a]ll that is required of the agencies is to seek out and consider all existing scientific evidence relevant to the decision at hand. They cannot ignore existing data.” Heartwood Inc. v. U.S. Forest Serv., 380 F.3d 428, 436 (8th Cir.2004) (citation omitted); see also Kandra v. United States, 145 F.Supp.2d 1192, 1208 (D.Or.2001) (In the context of the Endangered Species Act, "an agency cannot ignore available biological information ... [and] it is presumed that agencies have used the best data available unless those challenging agency actions can identify relevant data not considered by the agency.”) (citations omitted). The proposed Threatened and Endangered Species Recovery Act uses the term "best available scientific data,” which is defined as scientific data, regardless of source, that are available to the Secretary at the time of a decision or action for which such data are required by this Act and that the Secretary determines are the most accurate, reliable, and relevant for use in that decision or action. H.R. 3824, 109th Cong. § 3(a) (Sept. 29, 2005). The Threatened and Endangered Species Recovery Act requires the Secretary to adopt regulations establishing criteria for this standard within one year of enactment, and these regulations must assure compliance with the Information Quality Act and assure that data "consists [sic] of empirical data” and “is [sic] found in sources that have been subject to peer review by qualified individuals recommended by the National Academy of Sciences to serve as independent reviewers for a covered action in a generally acceptable manner.” Id. The Safe Drinking Water Act of 1970, 42 U.S.C. §§ 300f et seq., also refers to the best available science. In 1996, the Safe Drinking Water Act was amended to state that In carrying out this section, and, to the degree that an Agency action is based on science, the Administrator shall use — (i) the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and (ii) data collected by accepted methods or best available methods (if the reliability of the method and the nature of the decision justifies use of the data). 42 U.S.C. § 300g-l(b)(3)(A) (emphasis added); see City of Waukesha v. E.P.A., 320 F.3d 228, 247 (D.C.Cir.2003) (applying § 300g-1(b)(3)(A)). The Magnuson-Stevens Fishery Conservation and Management Act requires the Secretary of Commerce to base his decisions regarding fishery management plans based on the "best scientific information available.” 16 U.S.C. § 1851(a)(2). Under this statute, the best science available consists of the scientific findings available at the time the National Oceanic and Atmospheric Administration, on behalf of the Secretary, considers a problem. An agency is not required to collect additional' evidence under the Magnuson-Ste-vens Fishery Conservation and Management Act. Recreational Fishing Alliance v. Evans, 172 F.Supp.2d 35, 44 (D.D.C.2001). The Ninth Circuit noted that “the best available politics does not equate to the best available science as required by the [Magnuson-Stevens Fishery Act].” Midwater Trawlers Co-op. v. Dep’t of Commerce, 282 F.3d 710, 720 (9th Cir.2002) (emphasis added); see also Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361-1421(h) (2000) (adopting without defining the use of the best available scientific information requirement); Francesca Ortiz, Candidate Consenation Agreements as a Devo- lutionary Response to Extinction, 33 Ga.L.Rev. 413, 442 (1999) (discussing the listing process under the Endangered Species Act and stating: "[T]he best science may raise questions as to its objectivity and reliability. Who collected the data? Who interpreted it? Was there any underlying agenda other than pure science? What assumptions have been made? Have study results been corroborated? Are there conflicting conclusions? The list of questions can go on, but the point is that numerous factors impact all scientific studies; data collected may be incomplete or inaccurate, and, even if accurate, different people can interpret the data in different ways. Furthermore, information that is considered accurate today may prove inaccurate as new information comes to light.”). From these cases and the regulations it is clear that although the Forest Service need not collect new data, it should "seek out and consider all existing scientific evidence relevant to the decision” and it “cannot ignore existing data.” Heartwood, 380 F.3d at 436. The Forest Service must determine which data “are the most accurate, reliable, and relevant,” and that will be reviewed deferentially, but it still must be good science — that is reliable, peer-reviewed, or otherwise complying with valid scientific methods.

Northwest Environmental Advocates v. National Marine Fisheries Service

SILVERMAN, Circuit Judge: Northwest Environmental Advocates (“NWEA”) challenges the adequacy of a 2003 Final Supplemental Integrated Feasibility Report and Environmental Impact Statement prepared by the United States Army Corps of Engineers in connection with a project to deepen the Columbia River navigation channel and to propose new sites for disposal of dredged materials. NWEA argues that the Corps violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., because, it claims, the Final Supplemental Integrated Feasibility Report and Environmental Impact Statement fails to take a “hard look” at the channel deepening project’s various impacts. The district court saw otherwise, and held that the Corps had taken the requisite “hard look” at the particular environmental and economic factors at issue. Based on the Corps’ extensive examination of the project’s cumulative, direct, and economic impacts, we agree with the district court that the Corps has taken the required hard look. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. Factual Background A. The Channel Deepening and Dredged Material Disposal Project The Columbia River represents a major cargo gateway to the Pacific Northwest. The current depth of the Columbia River navigation channel is 40 feet. Over the past twenty years, larger vessels with “design drafts” exceeding this 40-foot channel depth have carried an increasing share of Columbia River cargo tonnage. Because of the constraints of channel depth, these vessels must arrive “light-loaded.” According to the Corps, the current 40-foot channel constrains 70 percent of vessels involved in the transpacific container trade while a 43-foot depth would constrain only 30 percent. In 1989, Congress directed the Corps to assess the feasibility of deepening the Columbia River’s 40-foot navigation channel to a maximum of 43 feet in order to enhance shipping capacity. The current channel deepening project involves deepening the channel from Columbia River Mile 3 to Mile 106.5. The project also includes various ecosystem restoration actions. The “channel deepening project” also proposes three disposal sites to accommodate dredged material from both channel deepening and the Mouth of the Columbia River project, an independent dredging project. The first two areas are so-called Ocean Dredged Material Disposal Sites and include the Shallow Water Site, a dispersive site located within the littoral cell, and a Deep Water Site. The third area is the North Jetty Site, which is also dispersive and located within the littoral cell. Material dumped at the Shallow Water Site and the North Jetty Site stays in the littoral system, where it can accrete on coastlines to counteract erosion. Sediment placed at the Deep Water Site is considered “inert” because it is effectively removed from the sediment transport system. In August 1999, the Corps released a Final Integrated Feasibility Report and Environmental Impact Statement for the Columbia River Channel Improvement Project. This several-hundred-page document contains numerous analyses of the proposed project and its alternatives, affected environment, environmental impact, and implementation. It also includes plans to dispose of dredged material from the Mouth of the Columbia River project and from channel deepening in the North Jetty Site, Site E, and the Deep Water Site. The U.S. Fish and Wildlife Service issued a “No Jeopardy” Biological Opinion on the project’s potential impact on certain Endangered Species Act-listed wildlife and plant species. After initially finding that the project would not jeopardize salmonids protected under the Endangered Species Act, NOAA fisheries withdrew its favorable Biological Opinion, citing new information on the project’s potential impact on bathymetry, river flow, and resuspension of toxins. Following this withdrawal, the States of Washington and Oregon denied certification of the project under Section 401 of the Clean Water Act, 33 U.S.C. § 1341, and the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. They expressed concern over the project’s effects on sediment transport and Dungeness crab as well as its consistency with existing coastal programs. Consultations with state agencies followed, and the Corps began preparing a supplemental environmental impact statement to address those concerns. As part of that process, in February 2001, the Corps, NOAA Fisheries, and the U.S. Fish and Wildlife Service hired the non-profit Sustainable Ecosystems Institute to review the channel deepening project’s potential environmental impacts. The SEI process involved project reviews by SEI staff members as well as by an independent panel of seven scientific experts. Throughout 2002, the Corps received and responded to numerous comments on the draft supplemental environmental impact statement, including comments from NWEA. Also in 2001, the Corps issued a Biological Assessment of fish and wildlife, which the subsequent Final Supplemental Integrated Feasibility Report and Environmental Impact Statement incorporates as Exhibit H. Based on the Corps’ new studies, NOAA Fisheries changed its assessment of the project. In May 2002, it and the U.S. Fish and Wildlife Service issued final Biological Opinions concluding that the channel deepening project would not adversely affect Endangered Species Act-protected species. In January 2003, the Corps issued its Final Supplemental Integrated Feasibility Report and Environmental Impact Statement (“FSEIS”). The document spans several hundred pages and supplements, updates, and incorporates through reference the 1999 Final Integrated Feasibility Report and Environmental Impact Statement. Among numerous additional studies, the 2003 FSEIS includes' Exhibit J, which directly responds to Oregon and Washington’s concerns by analyzing the impact of channel deepening on sediment transport in the Columbia River. Based qn the revised and expanded analyses, Washington and Oregon withdrew their objections and certified the project. On January 9, 2004, the Corps issued its Record of Decision approving the channel deepening project. B. The Channel Maintenance Project Independently of the proposed channel deepening project, the Corps operates an ongoing dredging project to maintain the current depth of the Columbia River navigation channel at 40 feet. As part of that project, the Corps released a Dredged Material Management Plan and Supplemental Impact Statement in June 1998. The purpose of the Dredged Material Management Plan and Supplemental Impact Statement is to create a 20-year disposal plan for dredged sediments and evaluate proposed changes in dredging and disposal, including shifting current disposal of dredged material to other sites. As described in the 2003 FSEIS for channel deepening, the channel maintenance project represents the “No Action Alternative” to channel deepening. C. The Columbia River Littoral Cell and Other Ongoing Projects A central concern of this appeal is the potential for various Corps projects to exacerbate coastal erosion. Historically, the Columbia River has drawn sand from inland areas and deposited it in the estuary, which in turn provided sediment to 100 miles of shoreline from Tillamook Head, Oregon to Point Grenville, Washington. This area is known as the Columbia River littoral cell. Over the past 120 years, various natural and human activities have reduced the amount of sand deposited in and throughout the littoral cell, contributing to erosion of the Oregon and Washington coasts. In addition to the projects described above, the Corps and other agencies currently operate several other projects in and around the Columbia River. Most relevant to this appeal is the Mouth of the Columbia River (“MCR”) project, which the Corps has operated since 1983. The MCR area is a 0.5-mile-wide navigation channel that runs for six miles through the entrance between the Pacific Ocean and the Columbia River. As part of the MCR project, the Corps maintains a channel depth of 55 feet by removing approximately 4.5 million cubic yards of sediment every year. The Corps has placed material dredged from the MCR in four ocean disposal sites (referred to as Sites A, B, E, and F), which the EPA designated in 1977. To accommodate more material, Sites A, B, and F were expanded in 1993, and Site E was expanded in 1997. Recent analyses reveal that the disposal sites for material dredged from the MCR project have or will soon reach capacity. As mentioned, the channel deepening project includes a proposal for three new sites — the North Jetty Site, Shallow Water Site, and Deep Water Site — to accommodate material dredged from the MCR project, as well as from the navigation channel itself. In addition to the MCR project, the Corps has constructed several jetties at the entrance of the MCR. Furthermore, the Corps and the Bureau of Reclamation operate a system of dams along the Columbia River known collectively as the Federal Columbia River Power System. II. Procedural History NWEA filed suit in district court alleging that NOAA Fisheries had violated the Endangered Species Act by failing to study adequately the impact of the Corps’ dredging activities on protected salmon. Shortly thereafter, NWEA filed a first amended complaint arguing that the Corps’ 2003 FSEIS and 1998 Dredged Material Management Plan and Supplemental Impact Statement did not sufficiently analyze the impacts of the deepening and maintenance projects as required by NEPA. NWEA subsequently amended its complaint two more times, arguing that the Corps was required to prepare a supplemental environmental impact statement under NEPA and challenging NOAA Fisheries’ revised Biological Opinion. Because of their significant interest in the navigation channel and their role as local sponsors of the channel deepening project, the Ports of Vancouver, Woodland, Kalama, Longview, Portland, and St. Helens sought and were granted intervenor status. Presented with cross-motions for summary, judgment, the district court granted summary judgment to NOAA Fisheries, the Corps, and the Sponsor Ports, and denied summary judgment to NWEA. Regarding the alleged NEPA violations, the district court ruled that the Corps took the requisite “hard look” at the direct and indirect effects of the channel deepening project on sediment budget, river toxicity, and salinity. See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir.2004). The court also ruled that the channel deepening and Mouth of the Columbia River projects are not “connected actions” under 40 C.F.R. § 1508.25(a)(1) and that the environmental impact statement for the former need only consider the latter in the context of “cumulative impact.” The court struck and declined to consider the extra-record declaration of economist Ernest Niemi submitted by NWEA relating to the Corps’ economic analysis. The stated purpose of Niemi’s declaration was to “determine whether or not the FSEIS provides a misleading description of the Project’s potential impacts.” The court ruled that use of this declaration would be improper under Asurco, Inc. v. EPA, which held that a court may not consider extra-record evidence “to determine the correctness or wisdom of the agency’s decision.” 616 F.2d 1153, 1160 (9th Cir.1980). Noting the approval of independent expert reviewers, the court upheld as proper the Corps’ economic analysis. Regarding the alleged Endangered Species Act violations, the court ruled that NOAA Fisheries could justify its No Jeopardy determination concerning salmonids because the project would improve the estuary’s environmental baseline and have minimal impact on Endangered Species Act-listed species. The court further held that NOAA Fisheries’ baseline analysis was not arbitrary and capricious because the agency “fully evaluated the environmental baseline and the effects of the action when added to that baseline.” The rulings on the Endangered Species Act claims are not challenged on appeal. III. Standard of Review We review de novo a district court’s grant or denial of summary judgment. Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of Navy, 383 F.3d 1082, 1086 (9th Cir.2004). De novo review of the district court judgment means that we must “ ‘view the case from the same position as the district court.’ ” Ka Makani O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 959 (9th Cir.2002) (quoting Sierra Club v. Babbitt, 65 F.3d 1502, 1507 (9th Cir.1995)). Pursuant to the Administrative Procedure Act, a court may set aside the decision of an administrative agency such as the Corps only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see Nat’l Wildlife Fed’n v. Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir.2004). We previously have held: Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005) (internal citations omitted). We review an environmental impact statement “to determine whether it contains ‘a reasonably thorough discussion of the significant aspects of the probable environmental consequences’ ” of a particular project. City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1150 (9th Cir.1997) (quoting Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992)). Alternatively phrased, we review agency decisions to ensure that “the agency has taken a ‘hard look’ at the potential environmental consequences of the proposed action.” Klamath-Siskiyou, 387 F.3d at 993(quoting Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir.2001)). In so doing, while we carefully scrutinize an agency’s actions under NEPA, we must “be mindful to defer to agency expertise, particularly with respect to scientific matters within the purview of the agency.” Klamath-Siskiyou, 387 F.3d at 993; see Anderson v. Evans, 371 F.3d 475, 489 (9th Cir.2004). An agency’s action is arbitrary and capricious if the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency’s decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, or if the agency’s decision is contrary to the governing law. We review a district court’s decision to exclude extra-record evidence for abuse of discretion. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447(9th Cir.1996). IV. Analysis A. Waiver As a preliminary matter, we reject the Corps’ and the Sponsor Ports’ arguments that NWEA somehow waived its challenge to the Dredged Material Management Plan and Supplemental Impact Statement or that it is moot. The district court addressed the Dredged Material Management Plan and Supplemental Impact Statement in its summary judgment order and NWEA refers to this document throughout its brief. Furthermore, the channel deepening project does not necessarily supersede the channel maintenance project or render challenge to it moot; if the Corps does not pursue channel deepening, it is presently slated to pursue channel maintenance as the “No Action Alternative.” Likewise, the record clearly indicates that NWEA raised the issue of deep water disposal in the context of cumulative impact both in the administrative proceedings and the district court. Therefore, NWEA has not waived these objections and we review them on the merits. B. Cumulative Impact on Coastal Erosion We reject NWEA’s principal claim that the Corps violated NEPA by failing to take a hard look at the cumulative impact on coastal erosion of removing significant amounts of sand from the littoral region. The Corps conducted numerous analyses spanning two environmental impact statements to address the problem of coastal erosion. The Corps responded to concerns from interested parties with additional studies and with those concerns in mind structured its disposal plan to minimize coastal erosion. The Corps took the requisite hard look at this issue. As we have repeatedly held, NEPA imposes procedural requirements on agencies and does not mandate substantive outcomes. Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 811 (9th Cir.2005); see Klamath-Siskiyou, 387 F.3d at 993; Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). For “major Federal actions significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(C), NEPA requires an agency to prepare an environmental impact statement. Klamath-Siskiyou, 387 F.3d at 993. An environmental impact statement “shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. Pursuant to 40 C.F.R. § 1508.25(c)(3), an environmental impact statement must consider a proposed project’s “cumulative impact,” which 40 C.F.R. § 1508.7 defines as: the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. We have held that an environmental impact statement must “catalogue adequately past projects in the area” and provide a “useful analysis of the cumulative impact of past, present, and future projects.” City of Carmel-By-The-Sea, 123 F.3d at 1160; see Lands Council, 395 F.3d at 1027. Given this framework, we agree with the district court that the Corps’ cumulative impact analysis satisfied NEPA’s “hard look” requirement. NWEA’s main concern is that the cumulative impact of the channel deepening and Mouth of the Columbia River projects, including the former’s plans for disposal of dredged sediment at the Deep Water Site, will remove a significant amount of sand from the littoral system. This in turn will exacerbate the estuary’s function as a “sand sink” that draws sand away from shorelines, thus accelerating coastal erosion. Within this model, the Corps adequately addressed the two mechanisms that could potentially lead to sediment loss. First, the Corps considered direct sediment loss from disposing of sand in the Deep Water Site, which lies outside of the littoral system. The Corps recognized that unfettered use of the Deep Water Site would have adverse environmental consequences, and structured its plans to minimize disposal there. Second, the Corps examined whether deepening the navigation channel may change river hydraulics, thus altering the rate of sediment flow within the river and to the estuary. The Corps concluded that channel deepening would not have this effect. Consistent with 40 C.F.R. § 1508.7, the Corps’ analyses considered not just the channel deepening project, but also its relationship with other projects. The FSEIS states: Although the Congress has authorized the channel improvement project and the MCR project as two separate projects, the Corps and ... [the Environmental Protection Agency] have, where appropriate, coordinated the review of relevant impacts. For example, the 1999 IFR/EIS reviews the long-term disposal plan and its impacts for both the channel improvement and MCR. i. Potential Direct Sediment Loss from Deepwater Disposal of Dredged Material a. Potential Direct Sediment Loss from the MCR Project In challenging the Corps’ actions, NWEA misplaces its focus on the 2004 FSEIS and fails to consider the Corps’ extensive treatment of deepwater disposal in the 1999 Final Integrated Feasibility Report and Environmental Impact Statement. As the 1999 document demonstrates, the Corps was clearly aware of the environmental ramifications of disposing of all of the dredged sediment from the MCR project in the Deep Water Site. That document states: If the deepwater site is used as intended (4.5 mcy [million cubic yards] of MCR sand placed per year for 50 yrs), the implications on the littoral sediment budget at MCR and adjacent coastal areas could be profound. The removal of 225 mcy of sand from MCR (via dredging) and subsequent placement at the “deepwater” site would be equivalent to removing the above and below portions of Peacock spit. The result of such a mass removal of littoral sand would likely be adverse: Local and possible regional coastal erosion may result. The stability of MCR jetties may be reduced due to increased toe scour, resulting from such a littoral sediment deficit. As this statement reveals, the Corps was fully aware of the potential erosion effects entailed by deepwater disposal. Acting upon this knowledge, the Corps evaluated potential sites and structured its plans to minimize such disposal. In weighing numerous options for ocean disposal of dredged material, the Corps consistently considered the potential for coastal erosion due to sediment loss. In evaluating ten candidate sites for ocean disposal, the Corps gave “great weight” to the assumption that “[njearshore sites have the greatest potential to keep material in the littoral zone.” Based on its analysis, the Corps ultimately recommended Site E, the North Site, and the South Site (these latter two sites ultimately became the Deep Water Site) for EPA designation as Ocean Dredged Material Disposal Sites. The Corps further proposed disposing of material at the North Jetty Site, a non-ocean site which lies within the littoral region. Recognizing that the “quantity of dredged material that will be placed in proposed Site E and the North Jetty Site is uncertain due to the dynamics of the sites,” the Corps proposed a Deep Water Site that could accommodate excess dredge spoils. The Corps conducted a “conflict matrix” analysis comparing disposal at Site E and the Deep Water Site. Ultimately, it concluded that the benefits of limited dumping at Site E, which would preserve that site’s dispersive nature and prevent wave amplification due to mounding, outweighed the costs of placing some amount of sediment at the Deep Water Site. As we have held before, our role is not to substitute our “judgment for that of the agency concerning the wisdom or prudence of a proposed action. Once satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, the review is at an end.” State of Cal. v. Block, 690 F.2d 753, 761 (9th Cir.1982). Here, it is not our province to assess the wisdom of placing some amount of sediment in the Deep Water Site. Our role is simply to ensure that the Corps considered all relevant factors — including the potential for such disposal to exacerbate erosion' — in arriving at its decision. The Corps clearly did so. The Corps not only considered sediment loss, it conscientiously structured its disposal plan to minimize it as much as possible. Exhibit H to Appendix H of the 1999 Final Integrated Feasibility Report and Environmental Impact Statement presents a Management and Monitoring Plan which identifies five objectives, one of which emphasizes keeping sand within the littoral system and counteracting erosion. Consistent with the Corps’ finding that placing dredged material at water depths shallower than 60 feet maximizes its dispersion back into the littoral environment, the Plan requires disposal of dredged material at Site E and the North Jetty Site first, with the Deep Water Site representing a non-preferred last option. While the Final Integrated Feasibility Report and Environmental Impact Statement states elsewhere that the “intended” use of the Deep Water Site is to accommodate all 225 million cubic yards (“mcy”) of dredged material, that term is a misnomer. As the Management and Monitoring Plan reveals, the Corps must first exhaust the dynamic capacity of Site E and the North Jetty Site before placing any sediment in the Deep Water Site, which will ultimately contain far less than 225 mcy of sediment. Accordingly, in denigrating the Corps’ analyses, NWEA exaggerates the maximum amount of sediment that the Corps will place in the Deep Water Site. The most conservative estimate of the long-term dispersive capacity of Site E and the North Jetty Site is 2 mcy per year, meaning that the Corps will only have to place 2.5 mcy per year in the Deep Water Site. Other estimates of the dispersive capacity of Site E and the North Jetty Site are much higher, and the Final Integrated Feasibility Report and Environmental Impact Statement states that “it is possible that the majority (and perhaps all) of the average annual volume of material could be placed in the North Jetty Site and Site E.” It is illustrative in this regard that between 1973 and 1997, continual use of Site E had not resulted in any persistent mounding. While the Final Integrated Feasibility Report and Environmental Impact Statement as well as the FSEIS propose authorization to dispose of all of the MCR dredged material at the Deep Water Site, the Corps clearly presents this option only for “contingency planning purposes” and as representing a “worst ease” scenario. The Corps has never planned to place all of the material from the MCR project in the Deep Water Site. Because of how the Corps has structured its disposal plans, it is not reasonably probable that it will use the entire capacity of the Deep Water Site. This calls into question whether NEPA even requires the Corps to analyze the environmental effects of placing all 225 mcy of sediment in the Deep Water Site. See California v. Block, 690 F.2d 753, 761(9th Cir.1982) (holding that an environmental impact statement must contain “a reasonably thorough discussion of the significant aspects of the probable environmental consequences” of a proposed action) (quoting Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974)) (emphasis added). Nevertheless, as discussed above, the Corps did take a hard look at this remote possibility, and recognized the “profound” implications of using the entire authorized capacity of the Deep Water Site. Consequently, the Corps took the additional step of acting upon this knowledge to ensure that it will dispose of an amount nowhere near 225 mcy at that site. Strict regulations governing ocean disposal ensure that the Corps will not dispose of all 225 mcy of sediment in the Deep Water Site. The 1999 Final Integrated Feasibility Report and Environmental Impact Statement proposes designating two Ocean Dredged Material Disposal Sites, Site E(later, the Shallow Water Site) and the Deep Water Site. However, the EPA maintains final authority to designate these sites for ocean dumping. See 33 U.S.C. § 1412. As part of this process, sites must have a management and monitoring plan which defines and limits dumping practices allowed there. See 40 C.F.R. § 228.3. As discussed, the Management and Monitoring Plan for the channel deepening project, which is part of the 1999 Final Integrated Feasibility Report and Environmental Impact Statement, clearly establishes that the Corps will dispose of dredged material in the littoral sites first, reserving the Deep Water Site only for excess spoils. Here, the Corps’ “preference” for disposing in the littoral system is much more than that term implies. Because the Management and Monitoring Plan establishes that the Corps will dispose of material in the littoral system first, deviation from that practice may lead to de-designation of the Deep Water Site. Furthermore, the Plan itself outlines several options for potentially altering disposal practices based upon an ongoing review of environmental impact: operational changes, changes in site location, and discontinuing disposal at a particular site. Thus, in addition to establishing a plan to minimize sediment loss, the Final Integrated Feasibility Report and Environmental Impact Statement proposes a plan to monitor, alter, and perhaps even terminate dumping at the Deep Water Site in order to minimize negative environmental impacts. Further demonstrating the Corps’ hard look, in addition to present and future plans to mitigate sediment loss, the Corps has changed past disposal practices to maintain the maximum amount of sediment within the littoral cell. In 1997, the Corps temporarily expanded Site E because of its “high dispersion rate” and the potential for dredged material placed there to be “re-introduced into the littoral environment of the Washington coast.” This move arose in part from a request by the Washington Department of Ecology in order to retard erosion of coastal beaches. The record clearly reveals that the Corps considered the potential for coastal erosion due to sediment loss. The Corps even structured disposal plans to minimize this possibility as much as possible. We thus hold that the Corps took a hard look at the effects of removing MCR sediment from the littoral system. b. Potential Direct Sediment Loss from the Channel Deepening Project Similarly, the 2003 FSEIS took a hard look at the effects of removing sediment from channel deepening, and concluded that such practice would not diminish sediment availability in the littoral cell. Further undermining NWEA’s concerns, between the 1999 Final Integrated Feasibility Report and Environmental Impact Statement and the 2003 FSEIS, the Corps altered the proposed project, reducing both the volume of proposed dredging as well as the amount of material from channel deepening slated for ocean disposal. As reflected in the 2003 FSEIS, the Corps concluded that, as altered, the channel deepening project simply would not remove enough sediment to make an-environmental difference. Construction and 20 years of maintenance of the proposed 43-foot navigation channel would remove an estimated 70 mcy of sand from the Columbia River and place it in upland disposal sites. Approximately 40 mcy of dredged sand would be disposed of back along the navigation channel or in ecosystem restoration sites in the estuary. Critically, the analysis reveals that the volume of sand removed by dredging would not reduce the available sand supply in the riverbed. The FSEIS concludes: [T]he removal of sand from the river will not alter sediment transport to the estuary (Exhibit J). The volume to be dredged over the life of the project is only a tiny fraction of the total volume of sand in the riverbed. In addition, transport potential, rather than sand supply, is the limiting factor in sediment supply to the estuary. SER 295. Ultimately, by considering the disposal of material dredged from both the MCR and the navigation channel, the Corps took a hard look at the effects of directly removing sediment from the littoral cell through operation of the channel deepening project. ii. Potential Sediment Loss from Changes in River Hydraulics and Sediment Transport Rates The Corps also took a hard look at the second mechanism by which channel deepening could potentially reduce sediment availability in the estuary: changes to river hydraulics and sediment transport rates. Exhibit J to the 2003 FSEIS thoroughly analyzes this dynamic and concludes that channel deepening will have no appreciable impact on sediment transport. The Corps prepared Exhibit J in direct response to concerns from Washington and Oregon in 2000 regarding sediment transport. Thus throughout numerous years of study, the Corps did not simply stake out a position and attempt to defend it; consistent with the dictates of a “hard look,”' the Corps remained open to input from stakeholders and conducted new analyses to address their concerns. See Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 995 (9th Cir.1993). As a threshold matter, Exhibit J scrupulously considers the cumulative impact of the channel deepening project on sediment availability in conjunction with other projects, including the MCR project, jetties, and the Federal Columbia River Power System. The FSEIS reveals that river flow rate mediated by the Federal Columbia River Power System dams — not any past or future dredging in the navigation channel — is the overwhelming driver of changes to sediment availability in the estuary: “The reduction in the Columbia River’s net sand discharge to the MCR since the early 1900’s is related to lower Columbia River flood discharges and not the navigation channel or the MCR jetties.” Regarding the MCR jetties, the FSEIS notes that they have had some impact on sediment availability, by reducing sand movement from the MCR into Baker Bay and across Clatsop Spit into the south channel and by causing a large discharge of sand from the MCR to the ocean. However, Exhibit J repeatedly underscores the reality that “[djeepening will not reduce the available sand supply and the expected hydraulic changes [from channel deepening] are too small to measurably alter sand transport or erosion/ accretion in the river or estuary.” Ultimately, “deepening the navigation channel in the river and estuary will not alter the sand transport through the MCR nor the sediment budget of the littoral cell.” The independent Sustainable Ecosystems Institute expert panel subsequently affirmed the Corps’ extensive sedimentation analy-ses. As a further indication of the comprehensiveness of the Corps’ studies, Washington and Oregon withdrew then-objections and certified the project upon considering the new analyses. * * * NWEA cites Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir.2004), to support its contention that the Corps’ cumulative impact analyses are deficient. That case, however, is clearly distinguishable. In Klamath-Siskiyou, the Bureau of Land Management had divided an original timber-sale project into four component timber sales, preparing environmental assessments for two of them. 387 F.3d at 991—92. Upon challenge, we held that the two environmental assessments were “legally insufficient” because they “do not sufficiently identify or discuss the incremental impact that can be expected from each successive timber sale, or how those individual impacts might combine or synergistically interact with each other to affect the ... environment.” 387 F.3d at 997. Klamath-Siskiyou involved one integrated project that was divided into four sub-projects, each of which the BLM independently analyzed, thus obscuring the cumulative impact of successive, related actions. Our situation is quite different. Here, the 1999 Final Integrated Feasibility Report and Environmental Impact Statement and the 2003 FSEIS take a “hard look” at the cumulative impact of the channel deepening and dredged material disposal project over an extended period of time and in conjunction with the Mouth of the Columbia River, Federal Columbia River Power System, and other related projects along the Columbia River. As noted, the 1999 Final Integrated Feasibility Report and Environmental Impact Statement demonstrates the Corps’ awareness of the “profound” implications of disposing of all 225 mcy of material dredged from the MCR at the Deep Water Site. The Corps’ hard look at the problem of coastal erosion is further evidenced by its decision to act upon that knowledge and structure its plan to minimize deepwater disposal. In conducting and refining these analy-ses, the Corps has not acted alone. While not dispositive, we have found it “significant” when other governmental agencies responsible for environmental protection have sanctioned a particular project’s environmental analyses. See Friends of the Payette, 988 F.2d at 995. Here, the Environmental Protection Agency acted as a Cooperating Agency on both environmental impact statements and validated their findings. As mentioned, the Corps responded to the concerns of Washington and Oregon by providing additional analy-ses, and they have both certified the project. NEPA requires not that an agency engage in the most exhaustive environmental analysis theoretically possible, but that it take a “hard look” at relevant factors. The Corps has done so, and even took the additional step of altering disposal plans to minimize sediment loss. Through study, restudy, submission to review by independent experts, and modification of plans, the Corps has taken a hard look at the cumulative impact of the channel deepening project, including disposal of dredged material, on sediment availability and coastal erosion. C. Cumulative Impact Along with Past and Future Actions We also reject NWEA’s contention that the Corps failed to evaluate the cumulative impact of the channel deepening project in light of past and future actions. See Lands Council, 395 F.3d at 1027(“Cumulative effects analysis requires the Final Environmental Impact Statement to analyze the impact of a proposed project in light of that project’s interaction with the effects of past, current, and reasonably foreseeable future projects.”). i. Cumulative Impact, Along with Past Actions, On Salinity NWEA argues that the FSEIS does not adequately analyze the cumulative effects of salinity increases from past projects, notably the MCR project. We disagree. Because the FSEIS concludes that the channel deepening project will have virtually no effect on salinity, detailed catalogu-ing of past projects’ impact on salinity would not have “informed analysis about alternatives presented for the current project,” and was unnecessary. Id. Contrary to NWEA’s assessment, the Corps’ extensive analyses of the channel deepening project’s impact on salinity did indeed include data encompassing past projects. See infra, Part IV.D.ii. The Corps’ analyses included historical data regarding salinity intrusion dating back to the 1980s. The FSEIS references the salinity analysis in the 1983 environmental impact statement for the MCR project, which anticipated that the MCR project would yield minor salinity increases in the estuary. The Corps also stated during the comment period prior to issuing the FSEIS that the “description of existing conditions includes the cumulative impact of historic actions.” The Sustainable Ecosystems Institute panel agreed, stating that “the baseline for evaluating information should be the current conditions or state of the physical and biological components and relationships of the lower Columbia River ecosystems.” Critically, numerous present-day studies cited in the FSEIS reveal that the channel deepening project will have little or no impact on salinity intrusion. NWEA relies on Lands Council, which states that “the Environmental Impact Statement must give a sufficiently detailed catalogue of past, present, and future projects, and provide adequate analysis about how these projects, and differences between the projects, are thought to have impacted the environment.” 395 F.3d at 1028. Lands Council held as insufficient an environmental impact statement that had “no discussion of the environmental impact from past[timber harvesting] projects on an individual basis, which might have informed analysis about alternatives presented for the current project.” Id. at 1027 (emphasis added). Cataloguing past logging projects’ environmental impact would serve the purpose of promoting “an informed assessment of environmental considerations and policy choices by the public and agency personnel upon review of the Final Environmental Impact Statement.” Id. at 1028. Here, however, numerous studies in the FSEIS demonstrate that the channel deepening project would have virtually no effect on salinity. Therefore, in this case, cataloguing past projects’ effects on salinity would not have informed assessments about the project and its alternatives, and the FSEIS’ analysis of this topic was sufficient. ii. Cumulative Impact, Along with MCR Jetties and Upstream Dams, on Sediment Transport We reject NWEA’s argument that the Corps did not adequately consider the channel deepening project’s cumulative effect on sediment transport in light of existing MCR jetties and upstream dams. One of the explicit objectives of Exhibit J was to address “the impact of jetty construction and flow regulation on sediment transport.” In cataloguing the effects of MCR jetties, the Corps recognizes that [t]he MCR jetties reduced the sand transport from the MCR into Baker Bay and across Clatsop Spit into the south channel caused by ocean waves. However, the jetties caused a large discharge from the MCR and vicinity, to the ocean. The sand eroded from the inlet and south flank of the inlet following jetty construction has deposited in the outer delta, on Peacock Spit, and the shorelines along Long Beach, Washington, and Clatsop Plains, Oregon. Furthermore, the Corps explains that the MCR jetties have “caused a large amount of sediment to accrete in the littoral zone north and south of the entrance” to the Columbia River. Regarding upstream dams, the Corps emphasizes that their control over flood discharges has significantly impacted sediment flow. Flood discharges, caused by dams, directly affect transport capacity and account for the vast bulk of historical changes in sediment budget. Upon extensively cataloguing these past effects, the FSEIS concludes that the channel deepening project’s incremental contribution to altering sediment flow would be negligible. As Exhibit J states, “[T]he reduction in the Columbia River’s net sand discharge to the MCR since the early 1900’s is related to lower Columbia River flood discharges and not the navigation channel or the MCR jetties.” The Corps thus concludes that, after completion of the channel deepening project, “there is not likely to be a detectable change in the sediment budget or sand transport within the Columbia River.” We thus hold that the Corps properly considered the cumulative impact of the proposed project with MCR jetties and upstream dams. iii. Cumulative Impact Along with Future Actions Contrary to NWEA’s assertion, the Corps adequately addressed foreseeable future impacts, particularly from ongoing operation of the MCR project. Regarding such future impacts, this court has held that “[gjeneral statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.” Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380(9th Cir.1998) (citation omitted). As discussed above, it is precisely because the Corps was aware of the negative implications of disposing of 20 years’ worth of MCR dredgings at the Deep Water Site that it developed a Management and Monitoring Plan to prioritize disposal of dredged sediment at the Shallow Water Site and North Jetty Site. Furthermore, the MCR project has operated consistently since 1983 and “[tjhere is no plan to deepen or otherwise change the ... MCR project at this time.” The Corps took a hard look at the anticipated disposal of 4.5 mcy of dredged sediment per year from the MCR project and planned appropriately to minimize coastal erosion. D. Direct Impacts i. Direct Impact on River Toxicity We further reject NWEA’s argument that the Corps’ analysis of the effects of channel deepening on toxicity is deficient because it failed to test areas outside the navigation channel for toxins. As a preliminary matter, the Corps’ 2001 Biological Assessment contradicts the premise underlying NWEA’s criticism, for it finds that “[n]earshore sediments are expected to be unaffected by dredging activities associated with this project.” Evaluating nearshore sediments would thus have little bearing on the channel deepening project’s impact on river toxicity, since dredging is not expected to disturb these sediments. The Corps did acknowledge that a limited amount of side-slope adjustment would occur over the course of five to ten years in five discrete locations along the river because these areas have received previously dredged material. Because dredged material is clean sand, however, contaminant sampling in these areas was unnecessary because this sediment would not have contributed to river toxicity. Nevertheless, as explained in response to NWEA’s comments on the draft FSEIS, the Corps did test for toxins outside of the navigation channel. Specifically, tests conducted pursuant to the Dredge Material Evaluation Framework concluded that “[n]o established level of concern was exceeded in any of the 23 samples tested” for metals, polycyclic aromatic hydrocarbons, and pestieide/polychlorinated biphe-nyls, including two samples from outside the navigation channel. The Biological Assessment notes that risks from shoreline sediments were higher than that of channel sediments, and were higher upstream than in the lower Columbia River. However, it concludes that “[t]he potential for cumulative risks appears negligible because all contaminants posed negligible risks.” The FSEIS ultimately concludes that “while historic actions have resulted in localized sediment contamination in some parts of the larger project area (i.e., outside of the areas to be dredged), the channel improvement project is not expected to make an incremental contribution to sediment quality degradation.” It is significant to note that the independent Sustainable Ecosystems Institute panel validated these analyses by concluding that “contamination was essentially a non-issue, even if suspended on fine sediments, and especially with regard to channel deepening where the sediments are known to be relatively clean.” ii. Direct Impact on Salinity NWEA fails in its argument that the Corps did not take a hard look at the channel deepening project’s direct effects on estuary salinity because it did not employ appropriate analytic tools. For the 1999 Final Integrated Feasibility Report and Environmental Impact Statement, the Corps analyzed salinity by utilizing the so-called WES RMA-10 methodology. While NWEA argues that this model is outdated, it offers no evidence that the passage of time has decreased its effectiveness; this model has been “successfully applied” to study estuaries in Cape Fear River, NC; San Francisco Bay; and Galveston, TX. The Corps’ analysis concluded that “[n]o significant biological impact would result from salinity changes predicted for the proposed channel deepening.” A second study prompted by the Sustainable Ecosystems Institute panel updated the first model to accommodate concerns about low flow conditions and again concluded that “the channel deepening actions will have little to no impact on salinity intrusions.” In a third study, commissioned for the 2003 FSEIS, the Oregon Health and Sciences University/Oregon Graduate Institute employed a different modeling technology and again concluded that channel deepening would produce insignificant changes in salinity intrusion. As with the previous WES RMA-10 study, the Sustainable Ecosystems Institute panel reviewed the OHSU/ OGI study and confirmed the results. While NWEA challenges the validity of the new OHSU/OGI model, it provides no cogent challenge to the validity of the WES RMA-10 model, which led to similar findings and has been effectively applied in a multitude of contexts. As a final attack on the salinity analysis, NWEA argues that the Corps used outdated bathymetric data in its model, thus falling below NEPA standards. See Lands Council, 395 F.3d at 1031(holding that outdated data may render an analysis inadequate under NEPA). NWEA contends that bank-to-bank bathymetric surveys are necessary to produce the requisite data, and that the Corps last conducted one in 1958. However, NWEA does not demonstrate why bank-to-bank surveys are necessary. Furthermore, the Corps has conducted annual cross-line surveys over the entire length of the project area and surveyed most of the shallow-water areas of the estuary more recently around 1980. E. Economic Impacts We also reject NWEA’s challenge to the Corps’ economic analysis. We have recognized that “[ijnaecurate economic information may defeat the purpose of an ... [environmental impact statement] by ‘impairing the agency’s consideration of the adverse environmental effects’ and by ‘skewing the public’s evaluation’ of the proposed agency action.” Natural Res. Def. Council, 421 F.3d at 801 (quoting Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446-48 (4th Cir.1996)). However, the Corps’ extensive economic analyses in both the 1999 Final Integrated Feasibility Report and Environmental Impact Statement and the 2003 FSEIS satisfy NEPA’s requirements. NWEA first argues that the Corps violated NEPA because “[t]he Corps’ refusal to consider the cumulative connected, direct impacts of all related dredging and disposal projects and to assess the full impacts of the deepening project ... caused the agency to ignore substantial project costs and ways of avoiding those costs.” These allegations merely represent an attempt to refashion substantive criticisms of the Corps’ considerations of cumulative impacts into arguments about faulty cost analysis. Given that the Corps took a hard look at these substantive issues, these challenges have already been addressed. We reject the contention that the Corps failed to adequately consider costs associated with jetty deterioration and coastal erosion. Since the Corps’ analyses reasonably concluded that the channel deepening project would not exacerbate jetty deterioration or coastal erosion, excluding these items from the anticipated costs of the project was appropriate. The Corps adequately considered potential declines in shipping traffic. For example, Exhibit M of the FSEIS assumes that “the Columbia River loses containerized cargo market share to Puget Sound ports.” The 2003 FSEIS presents a much more conservative market capture rate for the Port of Portland than had the 1999 Final Integrated Feasibility Report and Environmental Impact Statement. Furthermore, an independent technical review of the benefits and costs analysis in the draft FSEIS stated that the assumptions and overall conclusions of the benefits analysis were “reasonable” and that “data were generally used properly in the overall analysis.” NWEA does not provide any clear authority for its argument that the Corps is required to categorize benefits as accruing to domestic or foreign entities. See 33 U.S.C. § 2282(a) (requiring merely that an agency “describe, with reasonable certainty, the economic, environmental, and social benefits and detriments” of a proposed plan). Indeed, agency guidelines cited by both the Corps and NWEA state that calculations of national economic development should include shipments involving foreign origins and destinations. See Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies, Mar. 10, 1983, at 62, available at http:// www.iwr.usace.army. mil/iwr/pdf/p & g.pdf (last visited Feb. 23, 2006) (“Guidelines”). These guidelines require the Corps to include benefits accruing to foreign flag vessels and do not require segregation of foreign and domestic benefits in analyses of national economic development. We reject NWEA’s argument that the Corps should have engaged in a multiport analysis to assess whether any gains from the channel deepening project would come at the expense of other domestic ports. An Economic Technical Review panel, convened by the Corps, examined the Corps’ economic analysis and concluded that “the results of a ‘multi-port analysis' would be unlikely to tip the cost-benefit scales.” (emphasis in original). In any event, the Corps’ statement that a multiport analysis would likely result in higher projected benefits appears reasonable. When defining the “economic study area” for a proposed navigation improvement project, an agency should, when appropriate, include nearby, existing harbors which may experience a decrease in traffic after the proposed improvement. Guidelines 62. However, in calculating the economic benefits of the proposed project, the agency should consider the aggregate reduction in shipping costs across the entire economic study area. Thus, the fact that an efficiency-enhancing improvement may> draw traffic away from less efficient harbors actually contributes to, rather than subtracts from, the anticipated benefits of that improvement. Accordingly, “Cost reduction benefits sufficient to divert traffic from established distribution patterns and trade routes are navigation project benefits.” Guidelines 62 (emphasis added). Ultimately, NWEA has not demonstrated that the absence of a multi-port analysis renders the Corps’ analysis arbitrary and capricious. The Corps hired two independent panels of experts to review, respectively, the costs and benefits contained in its economic analyses. Both panels concluded that the Corps’ analyses were reasonable. Based on our independent examination of the record, we likewise find that the Corps’ economic analyses satisfied NEPA’s requirements. F. Exclusion of the Niemi Declaration Finally, we hold that the district court did not abuse its discretion by striking the declaration of economist Ernest Niemi. Niemi stated in his declaration that he prepared it at NWEA’s request to “determine whether or not the FSEIS provides a misleading description of the Project’s potential economic impacts.” Quoting Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980), the district court struck the declaration because “consideration of extra-record evidence ‘to determine the correctness ... [or] wisdom of the agency’s decision is not permitted.’ ” The district court acted well within its discretion to do so. We have held that review of agency action under NEPA is limited to the administrative record and may only be expanded beyond the record to explain agency decisions. Friends of the Payette, 988 F.2d at 997; see Love v. Thomas, 858 F.2d 1347, 1356 (9th Cir.1988). Accordingly, administrative review disfavors consideration of extra-record evidence. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (“ ‘[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.’ ”) (iquoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)). Here, the administrative record is adequate to explain the Corps’ decisions and reveals that the agency has taken a hard look at all pertinent factors. We have previously carved out a discrete set of narrow exceptions to the general rule against extra-record evidence, none of which are applicable in this case. As we held in Lands Council: In limited circumstances, district courts are permitted to admit extra-record evidence: (1) if admission is necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) if “the agency has relied on documents not in the record,” (3) “when supplementing the record is necessary to explain technical terms or complex subject matter,” or (4) “when plaintiffs make a showing of agency bad faith.” Lands Council, 395 F.3d at 1030(quoting Sw. Ctr. for Biological Diversity, 100 F.3d at 1450). Here, as mentioned, the record reveals that the Corps considered all relevant factors and provides an adequate basis for explaining the Corps’ decisions. NWEA has not demonstrated that the Niemi declaration was the sole source of any vital information without which judicial review was “straitjacketed.” See Asarco, 616 F.2d at 1160. Furthermore, NWEA does not allege that the Corps relied on documents outside the record or that it acted in bad faith. Finally, the Niemi declaration and its attachments address fairly straightforward economic aspects of the Corps’ analysis, not technical and scientific analyses that might require further explanation. Given the failure of NWEA to establish any exception to the general rule against allowing extra-record evidence, it was not an abuse of discretion for the district court to strike Niemi’s declaration. See Sw. Ctr. for Biological Diversity, 100 F.3d at 1447. V. Conclusion It is not the office of this court to pass upon the wisdom of an agency action or to require an agency to study a proposed action ad infinitum. Our role is simply to assure that the agency has taken a hard look at the proposed action. In this case, the Corps has demonstrated the hard look by performing exhaustive studies over numerous years, soliciting and accommodating input from stakeholders, and thoroughly re-analyzing areas of particular concern. The Corps considered deepwater disposal of sediment and modified its plans in order to minimize sediment loss. It studied potential changes to river hydraulics and concluded that there would be none. It analyzed salinity effects on three separate occasions using current data. It examined toxicity, both within and without the navigation channel. It assessed economic impacts using realistic measurements of the project’s costs and benefits. The Corps did not simply consider the channel deepening project in isolation, but analyzed its cumulative impact in conjunction with the MCR and other projects. The Corps responded to concerns from Oregon and Washington about sediment availability and provided additional analyses that led the states to certify the project. The Corps subjected its analyses to review by independent scientists who subsequently verified the Corps’ findings. In light of all of the above, we agree with the district court that the Corps took the required hard look. The judgment of the district court is AFFIRMED. . NWEA also challenges a 1998 Dredged Material and Management Plan and Supplemental Environmental Impact Statement completed for an alternative project to maintain the current channel depth. Because we hold that the 2003 Final Supplemental Integrated Feasibility Report and Environmental Impact Statement for the channel deepening project satisfied the National Environmental Policy Act, we do not reach the issue of the 1998 Dredged Material and Management Plan and Supplemental Environmental Impact Statement. . The 2003 Final Supplemental Integrated Feasibility Report and Environmental Impact Statement includes a plan to use dredged material from channel deepening in restorative actions in the estuary. However, if the restoration features are not fully implemented, then the Corps will dispose of material in the ocean as described in the 1999 Final Integrated Feasibility Report and Environmental Impact Statement. . The Shallow Water Site occupies an extended area that includes the former expanded Site E. The 1999 Final Integrated Feasibility Report and Environmental Impact Statement refers to the older area, Site E. However, the Environmental Protection Agency had initiated preliminary rulemaking processes to replace Site E with the Shallow Water Site at the time the Corps issued the 2003 Final Supplemental Integrated Feasibility Report and Environmental Impact Statement, and that document thus refers to the Shallow Water Site. Because these sites are materially different, this opinion will refer to either "Site E” or to the “Shallow Water Site” as appropriate. . Some amount of sediment placed at dispersive sites naturally migrates out of the site and settles elsewhere, thus increasing these sites' dynamic capacity. . While the Corps is the Lead Agency responsible for issuing the Final Integrated Feasibility Report and Environmental Impact Statement, the United States Environmental Protection Agency is listed as a Cooperating Agency. . Because the parties refer to this document as “FSEIS,” we do as well. As with the 1999 Final Environmental Impact Statement, the 2003 FSEIS lists the Corps as the Lead Agency and the Environmental Protection Agency as a Cooperating Agency. . Because the MCR project involves a significantly greater volume of dredged material potentially available for ocean disposal than channel deepening and maintenance (225 million cubic yards versus 37 million cubic yards), Appendix H focuses on the ramifications of deepwater disposal of material from the MCR project. The Corps later modified the channel deepening project to reduce overall dredging as well as the amount of channel deepening sediment to be placed in ocean sites. The 2003 FSEIS, and in particular Exhibit J, extensively examines the impact of removing material from channel deepening and maintenance from the littoral cell, and concludes that it is negligible. . This figure appears in the 1999 Final Integrated Feasibility Report and Environmental Impact Statement and includes the dispersive capacity of Site E. Presumably, the dispersive capacity of the Shallow Water Site is even greater than that of Site E because of the Shallow Water Site’s larger area. . NWEA also argues that the Corps should have considered the channel deepening and MCR projects as "connected actions,” and thus jointly evaluated both in the FSEIS. See 40 C.F.R. § 1508.25(a)(l)(stating that connected actions fall within the required scope of an environmental impact statement). In its summary judgment order, the district court ruled that the channel deepening and MCR projects are not connected actions, and that joint evaluation of the two was only required to the extent that they had a cumulative impact on the environment. NWEA does not appeal the district court's ruling that the two projects are not connected actions, and instead focuses its arguments on the FSEIS' cumulative impact analysis. . The 2001 Biological Assessment appears in Exhibit H of the 2003 FSEIS.

Northwest Environmental Advocates v. National Marine Fisheries Service

B. FLETCHER, Circuit Judge, dissenting: The Columbia River stretches more than 1,200 miles from its headwaters in Canada to the Pacific Ocean. It drains an enormous swath of the northwestern United States (258,000 square miles). This great river empties more water into the Pacific Ocean than any other river in North or South America. Description: Columbia River Basin, United States Geological Survey at http://www.vulcan.wr.usgs.gov/Vol-eanoes/ Washington/ColumbiaRiver/de-scription_cohimbiamdver.html (last visited June 26, 2006). Shipping and trade are just one dimension of the Columbia River’s importance to the Northwest. The Columbia River is central to the life of man, beast, and fish in the Northwest; it is a complex system defined by interdependen-cies. Perhaps the most iconic of these inter-dependencies is that among the river, salmon, and fishermen. A healthy river is vital to endangered salmon and steelhead trout and to the fishermen who rely on these fish. Virtual World, Columbia River, The National Geographic Society at http://www.national geographic.com/earth-pulse/columbia/index_flash.html (last visited June 26, 2006). Salmon and steelhead are anadromous — they spend the first two years of their lives in fresh water, like the cool waters of the upper reaches of the Columbia. These fish then swim to sea, resting and adjusting in the critical estuary at the conjunction of fresh and salt water. After a few years in the ocean, the adult salmon and steelhead return to the fresh waters of the Columbia to reproduce, swimming upstream to the places where they were hatched. The Columbia River is vital salmon and steelhead habitat and was once teeming with these fish. Sadly, salmon and steelhead are in serious decline, decimated by obstruction of passage because of dams and destruction of habitat. In fact, this year sport-fishing on the Columbia was closed until very recently because the numbers of returning fish are perilously low. Salmon Fishing Halted on Columbia River: Concern About a Ten-fold Decrease in Chinook Populations Spurs Action, Jeff Barnard, Associated Press (Apr. 22, 2006). Major efforts to reverse their decline by easing the passage through dams and other measures are ongoing. The Army Corps of Engineers proposes deepening the shipping channel that runs from the mouth of the river to its ports, including particularly Portland, from forty-feet to forty-three-feet deep. We are presented with Northwest Environmental Advocates’ challenge to the Army Corps’ compliance with National Environmental Policy Act (NEPA). Northwest Environmental Advocates (NWEA) argues, and I agree, that the Army Corps has failed to satisfy its obligations under NEPA to adequately study either the direct, the indirect, or the cumulative effects of channel deepening, particularly the impacts of dredging upon coastal erosion, release of toxicity, and estuary salinity, that affect both humans and salmon. In addition, the Corps’ economic analysis is deeply flawed — adopting a methodology for measuring the costs and benefits associated with channel deepening that enables it to avoid consideration of economic reality and to present a far rosier picture of the economics of channel deepening than is realistic. The Corps has certainly produced an enormous record during this NEPA process; however, simply producing a record of the size presented to us in this case does not mean that the agency has answered the correct questions, undertaken relevant studies, or adopted appropriate methodologies. The Army Corps has not met its obligations to take a “hard look” at the direct, indirect, and cumulative impacts of deepening the Columbia River channel, and its economic analysis is obviously flawed. A serious look at the economics of the project suggests that it is like Kodiak’s proposed bridge to nowhere. My concerns in this important case are heightened by the enormity of the consequences of a wrong decision. Adequate fact-finding and thorough analysis, which are at the core of NEPA, are all-important to make sure that the Army Corps’ decision in the end is the right one. The Columbia River is too important a resource for all of us to allow its misuse. I, therefore, respectfully dissent. In light of these serious problems, we should reverse and remand for the agency to undertake a more thorough study of the impacts of channel deepening and the associated ocean disposal site on coastal erosion; a scientifically-sound analysis of changes to toxicity and salinity in the river and estuary; and a more rigorous look at the economics of the proposed project. Too much is at stake to permit the Corps to move forward with such incomplete and inadequate information. NEPA forbids it. I. THE CORPS’ ECONOMIC ANALYSIS I have much to criticize about the Corps’ failure to consider adequately the environmental consequences of its proposed action. I will get to that. But I choose to first talk about its disgraceful attempt to justify the dollars and cents of its proposed project. This should not come as a surprise to any of us. The Corps is wont to undervalue costs and overvalue benefits so that it can get on with its mission— constructing water projects. Here, instead of objectively looking at whether the proposed project is a net economic benefit to the American economy, it has chosen a method of analysis that reaches its desired result — admitted even by it as perhaps not the best methodology — but a methodology that justifies the project. It ignores salient facts: Northwest ports (Puget Sound and Grays Harbor) can handle the freight and offer safer shorter transit — the river trip is longer (one-hundred miles from the bar to Portland) and fraught with hazards (the shifting bar at the mouth and shifting sand bars up river). Two-thirds of the container ship business has already left the river. The Portland Port that is up the Willamette River cannot be deepened because of pollution. No wonder the Corps declined to consider displacement of traffic from one American port to another. It insisted on including supposed benefit to foreign ships as part of the benefit. Should American taxpayers take comfort that foreign bottoms are the principal beneficiaries of any economies in the project? What about the cost side? No analysis is made of the costs of potential devastating erosion that may result to the Washington and Oregon coastlines and the jetties. The gravamen of Appellant’s claims, with which I agree, is that the Army Corp’s benefit-cost ratio of $1.66 to $1 is inaccurate because the agency has failed to consider several factors, resulting in an overstatement of the project’s economic benefits and the understatement of its costs. Appellant argues: (1) that the agency understated the costs associated with the project by failing to consider environmental externalities associated with channel deepening and disposal of dredged material and (2) that the agency overstated the benefits associated with channel deepening by not distinguishing benefits to the U.S. economy from those to foreign parties, not considering declining container-ship traffic into the Columbia River, and not undertaking a multi-port analysis. The majority agrees that “[ijnaecurate economic information may defeat the purpose of an EIS by ‘impairing the agency’s consideration of the adverse environmental effects’ and by ‘skewing the public’s evaluation’ of the proposed agency action.” Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 811 (9th Cir.2005) (quoting Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 446(4th Cir.1996)). In Natural Resources Defense Council, we held that the Forest Service’s inflated assessment of market demand for timber from the Tongass National Forest “subverted NEPA’s purpose of providing decision makers and the public with an accurate assessment of the information relevant to evaluate” the agency’s proposed action. Id. at 812. A similar finding is required here: the agency’s economic analysis does not provide an accurate assessment of the costs and benefits of the planned channel-deepening project because of its failure to undertake analysis that could decrease the benefit-cost ratio. A. Costs of Deep-Water Disposal, Coastal Erosion & Mouth of the Columbia River Jetty Erosion It is apparent that the agency’s analysis of the economic costs associated with this project was insufficient. First off, because the agency did not consider the impacts from coastal erosion resulting from removing sand from the littoral system and the impacts of channel deepening on the MCR jetties, it follows that the economic analysis is similarly incomplete for failing to consider the potential costs associated with jetty and coastal erosion. In this regard, the agency’s analysis of costs suffers from the same incompleteness as its analysis of the cumulative effects of deep-water disposal. The majority notes that the FSEIS nowhere finds that the jetties at the Mouth of the Columbia River will be undermined and will require repair as a result of the channel-deepening project. That’s because it did not consider the probability of erosion that would result from disposal outside the littoral system. This is the very type of issue for which Niemi’s declaration should have been admitted since it pointed out factors which the agency did not consider but should have. The Corps, without analysis of facts, says that channel deepening will not undermine the jetties, but Niemi presents credible evidence to the contrary, evidence that the Corps should have considered. The correct path is to remand to the agency for a complete examination of these potential costs. As the majority concedes, the erosion damage from the Corps’ past practices has been considerable. The Corps tells us it has changed its ways to minimize erosion from the MCR dredging and the construction of the jetties. But it tells us nowhere what steps it would take to control devastating erosion that would occur if considerable dredge material is put in the deep-sea site it has prepared to receive it. Nor has it suggested the costs that would be involved. B. Benefits to U.S. Economy and Lack of Multi-Port Analysis In addition to the fact that the Corps has understated costs associated with the channel deepening project, the Corps appears to have overstated the economic benefits of the channel deepening by (a) failing to adequately account for displacement of shipping and trade from one American port to another; (b) failing to consider what if any of the benefits associated with channel deepening would accrue to the U.S. economy; and (c) failing to undertake a multi-port analysis that might well show no net benefit to the U.S. economy from the channel deepening. The Corps’ analysis of the economic benefits of the project, Exhibit M, explains the shipping of various commodities (wheat, corn, barley, and soybeans) from various Columbia River ports as well as the containerized shipping trade. Appellant’s claim that the Corps has overstated these benefits, requires us to look closely at the Corps’ analysis — are there economic factors that the Corps should have considered under NEPA? The record indicates that the answer to this question is “yes.” The Corps neglected important economic realities that undermine the benefit-cost ratio it presents. While the majority opinion is correct that Exhibit M of the FSEIS has assumed some loss of containerized trade to the ports of Puget Sound, Maj. Op. at 1143, there is evidence that this loss may be far greater than the FSEIS estimated. The Corps estimates that the channel deepening project will generate benefits of $18.8 million annually. Two-thirds of this total, $11.7 million, comes from the Corps’ estimate of gain from the containerized shipping trade. However, two of the three shipping lines that carry containerized cargo to the Port of Portland have decided that they will no longer come to Portland, reducing by 2/3 the amount of containerized cargo coming through Portland. Consideration of this displacement of shipping from one American port to another is missing in the agency’s analysis and would decrease the net benefits associated with the channel deepening. In response, Federal Appellees respond that the FSEIS’ economic analysis, Exhibit M, assumed a loss of market share to Puget Sound and therefore that this issue has been accounted for. Contrary to the finding of the majority opinion, the Corps’ failure to measure the net benefit to the U.S. economy from the project is wrong. The Corps asserts that it is not required to separate the benefits to foreign vessels from those to the domestic economy. However, the Guidelines, that are mandatory on the Corps, provide that “the procedure for measuring the beneficial contributions to national economic development (NED) associated with the deep draft navigation features of water resources plans and projects.” Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies, March 10, 1983, available at http;// www.iwr.usace.army.mil/iwr/pdf/p & g.pdf (last visited April 13, 2006) at 58 (emphasis added). Appellees’ argument that such an analysis is not required is inconsistent with the language of these Guidelines and with the purposes of NEPA. Appellant also argues that the Corps should have undertaken a multi-port analysis as part of its economic analysis. Such an analysis would provide insight into whether the ships that the channel-deepening project is intended to bring into Columbia River ports are already docking in another American port. If this is the case, bringing those ships to the Columbia provides no net benefit to the national economy. Such a conclusion would undermine the Corps’ stated benefit-cost ratio of $1.66 benefit for each dollar spent. The NED Guidelines discussed above indicate that the agency should, as a first step, “determine the economic study area.” This includes consideration of “diversion from or to adjacent competitive harbors as well as distribution via competing modes of transport .... there should be adequate discussion of the trade area relative to adjacent ports and any commonality that might exist.” Id. at 62. The Army Corps argues that its choice of methodology was a reasoned one, that choosing a methodology that did not employ a multi-port analysis did not change the outcome of the economic analysis, and therefore that not doing one cannot be arbitrary and capricious. See Comments on FSEIS from Colonel Richard Hober-nicht, Commander, Army Corps; Robert E. Willis, Army Corps; and Judy Grigg, Port of Longview at 23 (Feb. 28, 2003) (responding to criticism that the agency did not measure whether there was a benefit passed through to the U.S. economy and did not do a multi-port analysis), id. at 34-35(explaining its choice of methodology: “The Corps selected an analytical methodology that did not include a multi-port analysis because (1) it was not required by the Principles and Guidelines; (2) the Corps concluded that such an analysis would likely result in higher project benefits than the method selected and, as a result, the substantial expense of a multi-port analysis was not fiscally justifiable; and (3) conducting such an analysis would require assumptions likely to render the outcome overly speculative.”). These assertions are unsupported anywhere in the record. Although the Corps’ Review Panel recommended that a multi-port analysis would have been better methodology, the Panel found that such an analysis would “be unlikely to tip the cost-benefit scales.” Original Review Comments and Benefit Review Team Opinions on Responses at 1 (Jan. 10, 2003). That Review Panel endorsed the Corps’ economic analysis without the multi-port analysis. The Corps insists that the court must defer to such a methodological choice. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1359 (9th Cir.1994). This argument for deference would allow the agency to end-run NEPA’s obligations to do an accurate economic analysis by allowing the agency to choose a methodology that is clearly not the more appropriate and then to hide behind that choice of methodology by calling for deference to agency decision-making. This is not what NEPA envisioned. While we certainly must respect the agency’s technical decisions, where those decisions enable the agency to ignore reality, we need not acquiesce. C. Failure to Consider Niemi Declaration Further, the district court erred in not fully informing itself as to what critical information the Corps did not consider. The district court abused its discretion in striking Ernest Niemi’s declaration as impermissible extra-record material. Only by considering it could it know what the Corps omitted. The majority, as did the district court, relies on Asarco, Inc. v. U.S. Envt’l. Protection Agency, 616 F.2d 1153 (9th Cir.1980), as the basis for its rejection. Both used the “rule” of Asarco as far too blunt an instrument. The rule expressed in Asarco and subsequent cases is much more nuanced. The Asarco court considered and weighed the several rules that govern the “judicial review of agency action.” 616 F.2d at 1159. “[Ajgency action must be examined by scrutinizing the administrative record at the time the agency made its decision.” Id. However, the court recognized that: [I]t is both unrealistic and unwise to straitjacket the reviewing court with the administrative record. It will often be impossible, especially when highly technical matters are involved, for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not. The court cannot adequately discharge its duty to engage in a substantial inquiry if it is required to take the agency’s word that it considered all relevant matters. Id. (internal quotation marks omitted). To reconcile these tensions, the court held the following: If the reviewing court finds it necessary to go outside the administrative record, it should consider evidence relevant to the substantive merits of the agency'action only for background information ... or for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision.... Consideration of the evidence to determine the correctness or wisdom of the agency’s decision is not permitted, even if the court has also examined the administrative record. If the court determines that the agency’s course of inquiry was insufficient or inadequate, it should remand the matter to the agency for further consideration and not compensate for the agency’s dereliction by undertaking its own inquiry into the merits. Id. (emphasis added). Reaffirming Asarco in Love v. Thomas, 858 F.2d 1347(9th Cir.1988), we stated: “The court may find it necessary to review additional material to explain the basis of the agency’s action and the factors the agency considered,” and “the court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency’s action where such evidence is necessary as background to determine the sufficiency of the agency’s consideration.” Love, 858 F.2d at 1356. In this case where our task is to determine whether the agency undertook adequate fact-finding and analysis that should have been part of its NEPA compliance, the question is whether Niemi’s declaration constitutes either (a) background, explanatory information or (b) substantive evidence needed to “determine the sufficiency of the agency’s consideration.” Id. If it falls into either or both of these categories, it should have been considered. Given the concern that the agency did not undertake analysis of relevant considerations, the information provided in Niemi’s declaration fits quite cleanly into the second category. It is substantive evidence that demonstrates the inadequacy of the agency’s inquiry, pointing out factors that the agency should have considered and did not. Had these factors been considered, substantial revisions to the agency’s benefit-cost ratio of $1.66 in benefit to $1 cost well could be in order. As long as it is not employed to substitute the court’s substantive determination for that of the agency, the Niemi declaration is exceedingly useful to a thorough review of the agency’s economic analysis. In a highly technical area, it sheds light on the sufficiency of the analysis undertaken by the agency. The district court appropriately cited to the Asarco rule but decided that the declaration had been offered to “determine whether or not the FSEIS provides a misleading description of the project’s potential impacts,” citing Mr. Niemi for that impermissible purpose. Northwest Environmental Advocates v. Nat’l Marine Fisheries Serv., No. C04-0666RSM, at 11-12, 2005 WL 1427696 (June 15, 2005). What matters in applying Asarco’s rule is not how the declarant views his extra-record testimony, but rather, for what purpose the court should make use of it. The district court was obligated to undertake a detailed review of the agency’s analysis. Where the concern is whether the agency considered all relevant factors in its NEPA analysis, the failure to look outside of the record to Niemi’s declaration in my view was a failure by the district court to engage in the detailed inquiry required by the Administrative Procedure Act and therefore was an abuse of discretion. We should admit Niemi’s declaration to the extent it contains evidence of the omissions and inaccuracies in the agency’s analysis and find that the agency’s failure to consider likely costs and its probable overstatement of the project’s benefits constitutes “[ijnaccurate economic information” within the meaning of Natural Resources Defense Council. 421 F.3d at 811. II. CUMULATIVE EFFECTS ON COASTAL EROSION OF DEEP-WATER DISPOSAL OF SPOILS FROM THE MOUTH OF THE COLUMBIA RIVER DREDGING A. The Majority’s Flawed Analysis of Cumulative Impacts The majority concludes that the Corps has adequately considered the cumulative impacts on coastal erosion of deep-water disposal of sediment dredged as part of both the Mouth of the Columbia River (MCR) Project and the channel-deepening project at issue here. It bases its determination on (1) the Corps’ assurance that it has considered those cumulative impacts; (2) the Corps’ treatment of deep-water disposal as allowable, although the least preferred option; (3) changes made to disposal practices for the Mouth of the Columbia River Project to maximize the amount of sediment retained in the littoral cell; and (4) plans to monitor and manage sediment disposal in the future to prevent coastal erosion. Maj. Op. at 1135-1138. The documents cited by the majority reveal that the Corps has proposed a deep-water disposal site large enough to receive all of the dredged material from both projects although the Corps alleges it would prefer to keep material in the littoral cell; that the agency plans not to employ the deep-water disposal site for a large volume of dredge disposal unless necessary. As the majority tells us, the record explains the volume the Corps expects to dispose in deep water by reference to the expected capacity of Site E and the North Jetty Site, both disposal sites within the littoral system, and the dispersion of material from those two sites. That is, the volume of dredged material that the Corps plans to place in deep-water disposal depends upon how much Site E and the North Jetty Site can accommodate in any given year. If Site E and the North Jetty Site do not disperse sediment as quickly as anticipated, a clear possibility that the Corps acknowledges, the volume of material that would be disposed in the deep-water site would increase accordingly. This demonstrates that the volume of material to be disposed in the deep-water site is uncertain, dependent upon several variables. Despite this uncertainty and the probability that the deep-water disposal scenario will not play out as it hopes, the Corps has failed to undertake broader cumulative-effects analysis that would result from dumping significant volumes of sand into a deep-water site outside the littoral cell. The majority attempts to distinguish this case from our decision in Klamath-Siskiyou Wildlands Center. v. Bureau of Land Management, 387 F.3d 989 (9th Cir.2004) that the Bureau of Land Management did not sufficiently consider the cumulative impacts of several timber sales. The majority finds central to the holding in that case the fact that a single project was subdivided and those sub-parts were analyzed separately from one another. Maj. Op. at 1138-1139. In focusing on this factor, the majority overlooks an important commonality between Klamath-Siskiyou and this case: the Forest Service’s cumulative effects analysis looked only at the effects of the particular project at issue, failing to account for the “combined effects that can be expected as a result of undertaking [multiple timber sales] and other foreseeable projects, in addition to [the project at issue.]” Klamath-Siskiyou, 387 F.3d at 996. Although the majority opinion finds that the Corps’ analysis did look at the cumulative impacts of deep-sea disposal of all material dredged from the Mouth of the Columbia River Project, what it concluded was that it would be as devastating as indeed it would. What it doesn’t do is detail what the erosion would cause. Apparently, it thinks nothing could mitigate it because the record is devoid of any such analysis. B. The Army Corps’ Analysis and Appellant’s Concerns The Dredged Material Management Plan/Supplemental Environmental Impact Statement (DMMP/SEIS), which constitutes the no-action alternative in the Final Supplemental Environmental Impact Statement (“FSEIS” or “Final Environmental Impact Statement”), called for establishing a small deep-water disposal site for 7.7 mcy (million cubic yards) over 20 years. This plan was “intended to reduce rehandling of material that currently erodes back into the navigation channel.” Columbia River Dredged Material Management Plan and Supplemental Environmental Impact Statement at 32 (June 1998). Deep-water disposal would occur outside the zone where currents would bring dredged material back into the navigation channels from whence it would ultimately have to be dredged once again. The 1999 Final Environmental Impact Statement expanded the DMMP/SEIS proposal for deep-water disposal of dredge spoils with the continued dredging associated with the Mouth of the Columbia River Project in mind. “Continued maintenance of the MCR project is a necessary component for the viability of not only the existing 40-foot navigation channel but also to any proposed channel improvements.” Vol. I: Main Report and Exhibits, Integrated Feasibility Report for Channel Improvements and Environmental Impact Statement (FEIS) at 1-2 (Aug.1999). The four existing ocean disposal sites for the Mouth of the Columbia River Project were determined to have “inadequate capacity.” Id. “The timing of this long-term site selection process [for new ocean disposal sites] and the need to identify suitable ocean disposal sites for construction and long-term maintenance of proposed channel improvements further established the need to address the combined ocean disposal requirements in this document [the FSEIS].” Id. This language in the Final Environmental Impact Statement indicates that ocean disposal will be necessary for both the disposal of materials dredged for the Mouth of the Columbia River Project and either the maintenance of the 40-foot depth of the channel or the deepening of the channel to 43 feet “as existing estuarine disposal sites reach capacity.” FEIS, Exh. H at H-3. To deepen the channel to 43 feet, over the next thirty years, “total Project dredging quantity” -will be “about 190 mcy [million cubic yards] for the Project.” Biological Opinion at 12 (May 20, 2002). Without the deepening, simply maintaining the channel at 40 feet (the no-action alternative spelled out in the DMMP/SEIS) over the same time period, approximately 160 mcy would have to be dredged. Id. In its proposal for additional ocean disposal sites, the Corps estimated volumes of ocean disposal for both the Mouth of the Columbia River Project and the channel-deepening or channel-maintenance dredging. MCR O & M Annual 50 Years 4.5 mcy 225 mcy 40-foot O & M Total 40-foot Channel 1-20 Years 21-50 Years 8 mey 12 mcy 20 mey Construction 43-foot O & M Total 43-foot 1-20 Years 21-50 Years Channel 7 mey_9 mcy_21 mcy_37 mey Although deep-water disposal, according to the Corps, is not the first or most preferable option, see FSEIS, Exh. H at H-6 (“Dredged material placed at [disposal sites closer to shore] is expected to move out of the site and feed the littoral system.”), these ocean disposal sites were selected because the mouth of the Columbia River is “so dynamic.” Id. The Corps’ preferred outcome is dependent (1) upon dredge volumes to maintain both the Mouth of the Columbia River Project and the channel deepening not exceeding expectations in any given year and (2) the dredged materials put into near-shore sites eroding at the rate anticipated. If either of these expectations plays out at a different rate, there will be no room for new dredge spoils to be dumped in littoral sites, id., and deep-water disposal would be necessary. Another way of making this point is that, in any given year, the agency’s preferred outcome, littoral disposal of dredge spoils, is dependent upon at least two factors, the uncertainty as to both of which is acknowledged by the Corps. A “single Deep Water Site was located and sized to accommodate almost a 5-year disposal capacity (225 mcy).” Id. at H-7. The Army Corps simply has failed to consider cumulative impacts of the permanent removal of sand from the littoral system from both the Mouth of the Columbia River and channel-deepening or maintenance that is inevitable if there is deep-water disposal. The agency should have considered the cumulative impacts of removing at least 262 mcy (the total amount of material to be dredged from both channel deepening and ongoing MCR dredging) to the deep-water site, not just 70 mcy of sediment from channel deepening. The Corps insists that it has considered the cumulative impacts on coastal erosion of disposing of dredged material from both the Mouth of the Columbia River Project and the channel-deepening project. In evaluating the Corps’ contention, the majority focuses on two dynamics that potentially drive coastal erosion: (1) the impacts associated with disposal of sediment dredged from the MCR Project and the channel-deepening project and (2) the potential changes in sediment transport and river hydraulics caused by these two projects. The Corps and majority opinion focus on Exhibit J to the FSEIS and the 2003 FSEIS, as well as Exhibit H to the FEIS. Neither addresses NWEA’s concern that the specific impacts on coastal erosion of disposing of dredged material from both the Mouth of the Columbia River Project and channel deepening in the deep-water disposal site remain unquantified and essentially unknown. Exhibit J is the agencies’ supplemental analysis in response to Oregon and Washington’s initial refusal to certify the channel deepening project over concerns about sediment transport and coastal erosion. Exhibit J is simply not adequate. The Corps’ analysis in Exhibit J proceeds as follows. First, the Corps considered “historic trends and changes in sediment transport in the Columbia River System” and attributed decreased sediment transport down the Columbia River to the dams upstream. This analysis appears to be sound. It is what follows that is questionable. Next, the Corps “examined whether the channel deepening project itself would affect sediment transport.” Fed.App. Br. at 25. The Corps determined, first, that dredging the channel will not reduce the sand available for transport because the surface area to be dredged is a relatively small percentage of the entire riverbed (3.5%) and, second, that because the riverbed has sand 100-400 feet deep, the amount being dredged also represents an insignificant percentage. Then the Corps determined that the channel-deepening project’s impacts on the Columbia River’s hydraulics are “too small to measurably alter sand transport or erosion/accretion in the river or estuary.” FSEIS, Exh. J at 2-3. The Corps’ conclusion: “Because the Project will neither reduce the sand available for transport nor alter the river’s capacity to move sand, the Project will in turn have no impact on the erosion or accretion of coastal beaches.” Fed.App. Br. at 27. Lastly, the Corps weighed whether consideration of other actions’ impacts would alter its analysis of the impacts of the channel deepening Project. This is the crucial part of the analysis. In its consideration of the cumulative impacts associated with the Mouth of the Columbia River Project’s ongoing dredging, the FSEIS relies on Exhibit J’s finding that “the reduction in the Columbia River’s net sand discharge to the MCR since the early 1900s is related to lower Columbia River flood discharges and not the navigation channel or the MCR jetties.” FSEIS at 6-72. The FSEIS finds that reduced accretion of sand in the estuary is the result of the decreased sand flow from the River, the result of upstream dams and concludes that “[ejxcluding the historic effect of the MCR jetties, navigation channel development and maintenance, including maintenance of the MCR project, has not altered the estuary’s overall accretion/erosion or bedload transport patterns.” Id. at 6-73. So far, so good. The agency’s analysis might be fine, except that its consideration of coastal erosion and sediment transport issues stops here. Appellees point out that Exhibit J explains how the Columbia River and the currents at its mouth historically moved sand downstream and distributed that sand along Washington and Oregon’s coastlines. It also describes the give-and-take of sand between the estuary and the mouth of the Columbia River. It analyzes how the construction of dams upstream, jetties downstream, and dredging the Columbia River changed these patterns. This may all be true and important to the analysis as a whole, but it does not answer the critical question. The difference between the analysis the Corps is obligated to provide and that provided in Exhibit J is as follows: As Exhibit J explains, historically, for the most part, disposal of dredged sand largely occurred within the littoral system. Although transport patterns were being altered, that is, the way in which the sand was being moved around was changing, and although less sand was being sent downstream because of dams, once downstream the amount of sand in the system remained fixed. By contrast, the record indicates that near-shore and beach disposal are not a permanent solution and that ocean disposal (outside of the littoral system) will increasingly be employed. Increased ocean disposal means that, unlike in the past, the amount of sand being moved around near the mouth of the river will not remain fixed. Over 50 years, 262 mcy may be removed from the littoral system. This permanent removal of material from the littoral system is not the same as moving sand from one part of the littoral system to another. Exhibit J does not address the effect of the removal of sand from the littoral system. The agency nowhere analyzes what happens when 262 mcy is removed from the littoral system entirely, despite the fact that this is an anticipated possibility, verging on a probability. The majority opinion accuses NWEA of relying on the 2003 FSEIS to establish its argument, when it is the 1999 FEIS that contains the relevant analysis of cumulative impacts. According to the majority, the FEIS, particularly Exhibit H, demonstrates that the Corps was “aware of’ the serious impacts on coastal erosion of disposing of large quantities or all material dredged from both the Mouth of the Columbia River Project and the channel-deepening project in the planned ocean disposal site. Maj. Op. at 1134 -1135. To establish this, the majority references an alarming statement from the 1999 FEIS: If the deepwater site is used as intended (4.5 mcy of MCR sand placed per year for 50 years), the implications on the littoral sediment budget at MCR and adjacent coastal areas could be profound .... The result of such a mass removal of littoral sand would likely be adverse: Local and possible regional coastal erosion may result. The stability of MCR jetties may be reduced.... (emphasis added). The majority is correct — this statement does show that the Corps “was fully aware of the potential erosion effects entailed by deepwater disposal.” Maj. Op. at 1135. The agency’s response, or lack thereof, to this possibility is very troubling. The majority insists that Exhibit H contains a detailed analysis of these potentially “profound” and “adverse” effects. Not so. Exhibit H provides a recital of the process that the Corps went through with other groups to narrow the list of potential deep-water disposal sites and to select one that the Corps would use. The majority finds that the lists of possible conflicts (harms) associated with each potential deep-water site (which the Army Corps calls “conflict matrices”) provide thorough analyses of the advantages and disadvantages of each potential site. In fact, they are no more than tables and checklists. Undertaken for each of the ten potential deep-water sites, each matrix, such as it is, notes whether there is a conflict, potential conflict, no conflict, or a beneficial use for 27 specific characteristics of a site based on eleven specific factors for ocean disposal site selection specified in 40 C.F.R. § 228.6 and five general criteria for the selection of ocean disposal sites from 40 C.F.R. § 228.5. FEIS, Exh. H at H-45-55. Among the specific site characteristics being evaluated are unusual topography, physical sediment compatibility, commercial fisheries, critical habitat of threatened or endangered species, and cumulative effects. For example, the matrix for the proposed deep-water disposal site notes a potential conflict with “potential for cumulative effects,” with a check in the “potential conflict” box; a note in the “comments” column indicates that use of this site could have a “[potential affect from crab and other fishing as well as disposal;” and a note as to the relevant regulatory factors (4 and 7 of the eleven factors and c and d of the five general criteria). That’s it. Exhibit H does not dig deeper to quantify or elaborate these effects as to any of the 27 characteristics, including “potential for cumulative effects.” This is the extent of Exhibit H’s analysis of the cumulative impacts on coastal erosion of disposing of large quantities or all dredged material from the Mouth of the Columbia River Project and the channel-deepening project in this deep-water site: “[potential affect from crab and other fishing as well as disposal." We have rejected this kind of underwhelming specificity before. In Klamath-Siskiyou, we held that tables that did not “provide object quantification of the impacts” where the tables noted only whether a certain factor would be “unchanged,” “improved,” or “degraded,” were inadequate under NEPA. 387 F.3d at 994. Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir.2006), draws on Kla-mathr-Siskiyou. In that case, the Bureau of Land Management’s (BLM or Bureau) environmental impact statement, noted, in a statement reminiscent of the Corps’ statements, that “[t]here is a potential for cumulative effects from hazardous air pollutants including compounds of arsenic, hydrogen cyanide, manganese, propylene, and acid aerosols.... ” The extent of the Bureau’s analysis was a “generic map” and “three tables that list existing and reasonably foreseeable mines.” We held that the Bureau’s “somewhat alarming statement was nowhere ... supported by data broken down by mine, or even by cumulative data.” Great Basin, 456 F.3d at 973. The same could be said here of the Corps, which has told us that the “intended” use of the deep-water disposal site could result in “profound” or “adverse” coastal erosion impacts and then provides us only with checklists of factors and no data. Exhibit H does not adequately address the cumulative impacts of coastal erosion, despite the Corps’ and the majority’s efforts to argue that it does. Bottom line: the majority finds that the “hard look” standard has been satisfied by the Corps’ assurance that, although the FEIS and FSEIS both propose authorizing the deep-water site for disposal of all MCR dredge, the Corps “presents this option only for ‘contingency planning purposes’ and as representing a ‘worst-case’ scenario.” Maj. Op. at 1136 (quoting FSEIS, App. H at H-6). I strongly disagree with the majority’s conclusion that the Corps discharged its obligations under NEPA by expressing its preference to dispose of dredged material at Site E and at the North Jetty Site, rather than at the deep-water site, even though substantial evidence suggests that those sites lack the required capacity. In so doing, the majority has held that, because the deep-water disposal of all materials dredged from the MCR project is a “worst-case” scenario and because the agency has revised its disposal plans and developed a management plan to minimize deep-water disposal, the agency need not detail the impacts of that scenario. By admitting it is a “worst-case” outcome, the Corps admits it is a bad solution, but nowhere tells us just how bad or if anything in the way of mitigation is possible. C. Flaws in the Corps’ Compliance and the Majority Analysis The majority’s reasoning is inconsistent with the requirements placed on agencies by NEPA and by our case law interpreting NEPA. The “hard look” standard requires, not just that the Corps express its preference not to reach a situation in which all MCR dredge is disposed of in deep water, and develop a management and monitoring plan intended to accomplish this preference, but that the Corps analyze the impacts of such a potential outcome, even if the Corps hopes to avoid it. Lands Council instructs that cumulative-effects analysis under NEPA “requires the Final Environmental Impact Statement to analyze the impact of a proposed project in light of that project’s interaction with the effects of past, current, and reasonably foreseeable future projects.” Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir.2005) (emphasis added) (citing 40 C.F.R. § 1508.7). It is not “appropriate to defer consideration of cumulative impacts to a future date. NEPA requires consideration of the potential impact of an action before the action takes place.” Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1380 (9th Cir.1998) (emphasis in original) (internal quotation marks and citation omitted). That the Army Corps has provided for deep-water disposal of all dredged material from the Mouth of the Columbia River Project (even as a “worst-case” scenario) and has sought authorization of a site with sufficient capacity for this potential outcome demonstrates that such an outcome is “reasonably foreseeable.” The impacts of disposal of all dredged materials from the MCR Project and channel-deepening into the deep-water site should, therefore, have been analyzed under NEPA. The majority’s assertion that because the Corps was aware of potentially adverse impacts and tried to avoid them, it need not study or quantify those impacts, is simply inconsistent with this standard. The EIS must “include a useful analysis of the cumulative impacts of past, present and future projects. This means a discussion and an analysis in sufficient, depth and detail to assist the decisionmaker in deciding whether, or how, to alter the program to lessen cumulative impacts.” Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d 800, 809-10(9th Cir.1999) (internal quotation marks and citations omitted). In Muckleshoot, this court found that the agency’s cumulative effects analysis “f[e]Il short” of the required “useful analysis” where the agency “merely indicated] the amount of land to be exchanged, for example, and whether the land would be subject to commercial harvest, followed by an optimistic conclusion.” Churchill County v. Norton, 276 F.3d 1060, 1080 (9th Cir.2001) (citing Muckle-shoot, 177 F.3d at 811). The Army Corps’ analysis of the cumulative effects of deep-water disposal of MCR Project and channel-deepening dredged material is analogous to the analysis rejected by this court in Muckleshoot. The Corps’ statement of a preference against deep-water disposal is analogous to providing this court with an “optimistic conclusion.” This does not constitute a “useful analysis.” Although the majority asserts correctly that an agency need not “engage in the most exhaustive environmental analysis theoretically possible”; it just has to take a “hard look.” Maj. Op. at 1139. Nonetheless, what is required to satisfy that standard must be applied in a manner consistent with the purpose of NEPA. Klamath-Siskiyou, 387 F.3d at 993(citing Churchill County, 276 F.3d at 1072). First off, it is important to identify at what the agency must take a hard look. The Army Corps asks us to find that the agency’s dismissal of a highly likely consequence of its proposed project, without any assessment of its consequences, satisfies the “hard look” standard. This is inconsistent with the mandate of NEPA, a statute that requires agencies “to put on the table, for the deciding agency’s and for the public’s view, a sufficiently detailed statement of environmental impacts and alternatives so as to permit informed decision making.” Id. at 1072. Here, the Corps tells us that there won’t be a problem. Although the agency admits the adverse consequences will be profound, it hasn’t studied what will happen if the “worst-case” scenario comes to pass, the Corps asks us to trust it. That is not the standard. The Army Corps has failed to take the required “hard look” at the cumulative impacts on coastal erosion of dumping large quantities of the dredged materials from the Mouth of the Columbia River and those from channel deepening into the proposed deep-water disposal site. NEPA analysis must include an answer to the question posed by Appellant: "What would be the impact on coastal erosion if all or substantial quantities of the material dredged from the Mouth of the Columbia River Project and the channel-deepening project were disposed of in the deep-water site? NEPA requires the Corps to answer this question because it is a “reasonably foreseeable” outcome. Talking around that possible outcome, explaining why that is not the preferred outcome, planning to minimize this outcome, all the while taking steps that would bring this possibility to fruition, make clear that the Corps has not met its obligations under NEPA. We should remand for the agency to undertake further study. Instead, the majority allows channel deepening and authorization of the deep-water disposal site to proceed, even without an understanding of the cumulative effects on coastal erosion of a “reasonably foreseeable” future project. III. OTHER SIGNIFICANT IMPACTS OF CHANNEL DEEPENING: TOXICITY AND SALINITY NEPA requires the Army Corps to evaluate the direct and indirect impacts of channel deepening and disposal of the dredged material, considering all “relevant factors.” 40 C.F.R. §§ 1502.16, 1508.8; Rybachek v. U.S. Envtl. Prot. Agency, 904 F.2d 1276, 1284 (9th Cir.1990). A. Toxicity Northwest Environmental Advocates challenges the sufficiency of the Army Corps’ analysis of the effects of channel deepening on the river’s toxicity. NWEA asserts that, in its analysis of the impact of channel deepening on levels of toxins in the Columbia River, the Corps failed to draw adequate samples from the sides of the riverbed, which as the channel is deepened may erode into the deepening channel, mobilizing whatever toxins they contain. The majority holds that there is no need to test sediments from the channel sides for two reasons: (1) because they will not be affected by dredging, and (2) because any material vulnerable to side-slope adjustment is previously-dredged material which must be toxin free. The record refutes this. In its Biological Opinion, National Oceanic and Atmospheric Administration (NOAA) Fisheries identified the Columbia River’s toxicity to be “among the highest levels measured in estuarine sites in Washington and Oregon.” Biological Opinion at 36. These high levels of toxicity, just short of lethal, pose a serious threat to juvenile salmonids dependent upon the estuary, not to mention the potential adverse effects on humans and other species. The Army Corps explained the problem of “side-slope adjustment” noting that After the initial deepening the riverbed would begin to adjust to the new channel depth. Riverbeds adjacent to the deeper dredge cuts will degrade as bedload is deflected down the cut slope and into the navigation channel. This process will continue for 5-10 years before the side-slopes reach equilibrium with the channel hydraulics. Sand eroded from these sides will become part of the active bedload transport on the riverbed. FSEIS, Exh. J at 9. By this process, channel deepening may re-suspend contaminants that had been isolated in the side slopes of the river-bed. Despite this concern, the Army Corps failed to test the toxicity of a sufficient number of sediment samples taken from outside the navigation channel, analyzing primarily samples collected within the channel. The Corps, therefore, has almost no data from which to analyze the impacts of side-slope adjustment on the overall toxicity of the river during and after channel deepening; without that data, the Corps cannot effectively analyze the impact of channel deepening not only on juvenile salmonids dependent upon the estuary, but other users of the river. The Corps claims a database of 4,000 sediment samples from the Columbia River system. However, there are several problems with this database from the standpoint of an adequate NEPA analysis. First, only 586 of the 4000 samples have been tested for toxicity. Second, the sample set is very old. Many samples predate the 40-foot channel depth. Only 40 samples, taken from just 4 sites, were taken later than 2000, and none of these are from side-slope areas. Salmon runs are at perilously low levels. The last thing that salmon need is another ladder to climb, so to speak. The Corps’ failure to thoroughly analyze toxicity in the side-slope sediment renders its NEPA analysis incomplete — the agency has not considered all “relevant factors” associated with the direct and indirect impacts of channel deepening on river toxicity. B. Salinity Appellant also points to the Army Corps’ inadequate analysis of the impacts of channel deepening on the salinity of the Columbia River estuary. Salinity has a tremendous impact on the estuary’s health. Like levels of toxins in the river, the salinity of the estuary is a matter of vital importance to the juvenile salmon which must rest and readjust in the estuary before transitioning from fresh water to salt water in the ocean. The administrative record documents that deepening the Columbia River channel over the past century and other changes to the structure of the river have “likely caused the largest changes in salinity intrusion and density stratification” in the estuary. Salmon at River’s End: The Role of the Estuary in the Decline and Recovery of Columbia River Salmon, NMFS Technical Memorandum at 99 (2001). At issue is the accuracy of the Army Corps’ models for measuring impacts of channel deepening on salinity. Contrary to the majority’s assertion, NWEA does present a “cogent challenge” to the old model, the WES model, a challenge supported by the record. NOAA Fisheries warned the Corps not to use its older salinity model because of the imprecision of its measurements of salinity in the shallow areas that are favored by salmonids: The WES model used to evaluate change in salinity intrusion was not validated nor designed to assess impacts in the shallow, side channel habitat used by salmon. In other words, an analysis is needed of whether the model would predict current conditions to determine credibility of its ability to predict future conditions. WES was not asked to conduct such an assessment, and commented that — if such validation were needed — a new model would have to be developed. Notes from NOAA Fisheries meeting to “Clarify Science Issues for Columbia River Channel Deepening Project,” (Oct. 6, 2000). Heeding this admonition, the Corps developed a new model for measuring salinity, the Oregon Health and Sciences University/Oregon Graduate Institute (OHSH/OGI) model. NWEA argues that the Corps rushed development of this new salinity model and used it only to evaluate the accuracy of the older model. Furthermore, the Corps appears to have employed the new salinity model too hastily, before its accuracy had been verified. The developers of the model expressed concern about-reliance on its results given the uncertainty surrounding them. However, the Corps relied on the findings based on this highly uncertain new model to conclude that salinity would increase in the shallows by less than .5 ppt (parts per thousand) and that this would have no impact. The district court apparently relied, not on evidence within the record, but upon its own Google search about the Corps’ salinity model. The Corps relied upon a model admittedly fraught with uncertainty to reach its conclusion that the channel deepening would produce no adverse impact on the salmonids from salinity in the estuaries. I suggest that studies employing an older, inadequate model followed by complete reliance on an untested model does not constitute the “hard look” required by NEPA. IV. CONCLUSION Fundamentally, the majority' takes an ostrich’s head-in-the-sand approach to reviewing the agency’s analysis, settling for the Corps’ explanation without undertaking the required review of its decision making. It is true, we are not permitted to substitute our judgment for the reasoned decision of the agency. Neither, however, are we permitted to rubber-stamp the agency’s decision of what factors must be considered and what factors need not be considered without taking a detailed look at whether the agency’s reasoning is sound. Here, it is not. The “hard look” here went awry. The Corps, as it must, acknowledged profound consequences from erosion if large quantities of sand are removed from the littoral system. Anyone familiar with the Washington coastline has seen the devastation from past erosion (consequences the Corps admits were caused by its own past bad practices). The Corps acknowledges that it has designated a deep-water disposal site to hold huge quantities of dredge spoils, but has no plan of mitigation if that site is used for its intended purpose. Nor does the Corps analyze when and how much erosion is likely to occur — only that it will be profound and devastating. Its analysis of increased toxicity that may result from dredging is completely inadequate, as is its analysis of possible changes in salinity. Last, but certainly not least, the economic analysis is highly suspect. My bottom line is that the Corps has substantially more work to do. Hence my dissent. . Cf. Felicity Barringer, Senate Backs New Controls for Projects by Engineers, N.Y. TIMES, July 20, 2006, at A18 (detailing a Senate bill requiring independent panels of scientific and economic experts to evaluate potential Corps water projects); Editorial, A Chance to Reform the Corps, N.Y. TIMES, July 19, 2006, at A20 (praising the Senate bill and noting several studies finding that the Corps regularly inflated economic benefits and understated potential environmental costs). . The Port at Grays Harbor has recently expanded the rail loop at its grain terminal, allowing for more efficient unloading of grain. In addition, AGP, a midwestern soybean exporter, built a new terminal at the port. The economic analysis undertaken by the Corps did not consider this expansion which may cut traffic to both lower-Columbia and Puget Sound ports. Port of Grays Harbor Grain Terminal Loop Track at http:// www.wsdot.wa. gov/Projects/Rail/grays — harbor/ (last visited June 26, 2006); see also http://www.portofgraysharbor.com/ (last visited June 26, 2006). The Port of Grays Harbor has the advantage of cutting short the many miles' travel in Puget Sound to the Ports of Seattle and Tacoma and the even longer journey to the ports of the Columbia (Portland, Vancouver, and Kelama). I wonder what to make of the fact that the proposal to dredge Portland’s port on the Willamette River, where its docks are located, has been postponed indefinitely because of the toxicity of the Willamette. For the foreseeable future, large ships cannot go into Portland, except lightly loaded, whether or not the Columbia is dredged. I suggest this should also be part of the economic analysis of container ship traffic. . FEIS, Exh. H at H-6. . "[T]he quantity of dredged material that will be placed in proposed Site E and the North Jetty Site is uncertain due to the dynamics of the sites. Some quantity of dredged material will likely have to be placed in the proposed Deep Water Site each year; this will result in some material being permanently lost from the littoral zone.” FEIS, Exh. H at H-68. . The majority calls use of this term a "misnomer.” Maj. Op. at 1136. The majority's breezy dismissal of the Corps' use of "intended” epitomizes the problems with the majority's analysis: on the one hand the Corps tells us that extensive use of the deepwater disposal site is a "worst-case” scenario; on the other, it tells us that the "intended” use of the site will lead to “adverse” effects. Which is it? The Corps' inconsistency and the ambiguity of its plans are at the heart of what troubles me so deeply about this case, and the majority's ready dismissal of those inconsistencies is inconsistent with NEPA. . Factor 4 is "types and quantities of waste proposed to be disposed and proposed methods of release, including methods of packaging the waste, if any.” Factor 7 is "existence and effects of present or previous discharges and dumping in the area (including cumulative effects).” FEIS, Exh. H at H-55. . Criteria c states that "[i]f at any time during or after disposal site evaluation studies, it is determined that existing disposal sites presently approved on an interim basis for ocean dumping do not meet criteria for site selection set forth in Sections 228.5-228.ó, the use of such sites will be terminated as soon as suitable alternative disposal sites can be designated.” Criteria d states that "[t]he sizes of ocean disposal sites will be limited in order to localize, for identification and control, any immediate adverse impacts and to permit the implementation of effective monitoring and surveillance programs to prevent adverse, long-range impacts. The size, configuration, and location of any disposal site will be determined as part of the disposal site evaluation or designation study.” FEIS, Exh. H at HISS. . The toxicity of the Columbia River is much in the news. The federal government recently reached a limited agreement with a Canadian mining company, Teck Comineo, that is believed to be responsible for a century's worth of pollution of the stretch of the Columbia between the Canadian border and the Grand Coulee Dam. Although the agreement requires Teck Comineo to fund a short-term study of human health and the environment of Lake Roosevelt, tribal stakeholders and the State of Washington are expressing reservations and concern that the agreement will allow Teck Comineo to walk away from what they believe is the company’s obligation to pay for its pollution of the Columbia. Pollution Study Ordered: Teck Comineo Pact Targets Fouling of Columbia, Karen Dorn Steele, The Spokesman Review (June 3, 2006). In fact, this court just held that a law-suit seeking to hold Teck Comineo liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) could proceed because, although Teck Comineo is a Canadian company, it released hazardous substances into the United States. Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9th Cir.2006). . Following its assertion that side-slope sediment need not be tested, the majority holds, in the alternative, that the Corp has in fact tested side-slope sediments. It bases this holding on a pathetic sample size- — two samples from outside the navigation channel. To hold that two samples from outside the navigation channel, when dredging is planned for more than one hundred miles of the Columbia, satisfies NEPA standards borders on the absurd. . Uncertainty as to the accuracy and adequacy of the model is compounded by the impacts of climate change on the Pacific Ocean and Columbia River — how will now-certain rising of sea level impact salinity of the estuarine lower Columbia River? We don't know because the Corps has not considered this significant factor.

Alaska Center for the Environment v. Armbrister

DAVID R. THOMPSON, Circuit Judge. OVERVIEW Alaska Center for the Environment and several other organizations (referred to collectively as “ACE”) challenge the decision to construct and fund a road from Portage to Whittier, Alaska. Pursuant to a joint state-federal transportation project, the Federal Highway Administration (FHWA) approved the construction of the road and agreed to provide funding for the construction. ACE contends that, in reaching this decision, the FHWA violated section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303(c), 23 U.S.C. § 138; and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370d. The district court granted the FHWA’s summary judgment motion. ACE now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. FACTS Whittier has a population of approximately 250 full-time residents. There is currently no road access into Whittier. Whittier is separated from the state highway system and the community of Portage by approximately twelve miles of undeveloped land. The Alaska Railroad provides the only ground transportation to Whittier. All parties agree the current rail system is inadequate to satisfy the demand for access into Whittier. Since 1946, various entities have studied the need for improved access into Whittier. These studies eventually led to the Whittier Access Project. This project is an endeavor of the Alaska Department of Transportation (ADOT), undertaken with the support of the FHWA. The FHWA approved the Whittier Access Project and agreed to provide funding for the Project. In 1995, the ADOT and the FHWA published their combined final environmental impact statement (EIS) and draft section 4(f) evaluation for the Whittier Access Project. The final EIS considered four alternatives for improving access into Whittier. Alternative 1 is a no action alternative. Alternative 2 proposed improving the existing rail service from Portage to Whittier by increasing the number of trains and building a parallel section of track to allow two trains to operate simultaneously. Alternative 3 proposed building a new two-lane road from Portage to Whittier and using an existing rail service tunnel, for a portion of the new road, as a one-way road. Under this alternative, rail service would continue only for freight. The fourth alternative proposed building the same road as identified in alternative 3 but with a wider shoulder through the existing tunnel, allowing ears to travel in both directions. The final EIS identified alternative 3 as the preferred alternative. In 1996, the Director of the Office of Planning and Program Development for Region 10 of the FHWA signed, the Record of Decision (ROD), selecting alternative 3 for implementation. The ROD discussed the various alternatives and concluded that “only Alternatives 3 and 4, the road options, adequately meet the purposes of and the need for the project.” ACE then brought this action, challenging the decision to build and fund the road. The district court denied ACE’s request for a preliminary injunction and granted the FHWA’s summary judgment motion. We granted an injunction pending appeal and ordered expedited briefing on the merits. After oral argument, we issued an order dissolving the injunction. We now affirm the district court’s grant of summary judgment. DISCUSSION ACE contends the decision to construct and fund the road violates section 4(f) because improving the existing rail system is a feasible and prudent alternative to constructing the road. ACE also contends the EIS violated the NEPA because it did not adequately discuss the safety hazards inherent in the use of a road for access into Whittier. A. Section 4(f) Construction of the road will use 5.7 acres of the 1,790 acres of the Portage Glacier Recreation Area (approximately 0.3% of the area) and 29.4 acres of the 720 acres of the Portage Lake Recreation Area (approximately 3.3% of the area). These Recreation Areas are federal recreation areas protected under Section 4(f) of the Department of Transportation Act. Section 4(f) prohibits “the use of publicly owned land of a public park [or] recreation area” unless the FHWA determines “there is no prudent and feasible alternative to using that land_” 49 U.S.C. § 303(c); see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 405, 91 S.Ct. 814, 817-18, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The FHWA determined the improved rail system is not a prudent alternative because that alternative would not meet the stated purpose and need for the Whittier Access Project. We may set aside this decision only if the decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Arizona Past and Future Found., Inc. v. Lewis, 722 F.2d 1423, 1425 (9th Cir.1983). The administrative record indicates the purpose of the Whittier Access Project is to meet the following goals: provide acceptable access for Whittier residents and business people, contribute to the state economy, provide transportation costs that are comparable with other nearby Alaska communities ..., and provide better access for emergency services. The State of Alaska emphasizes that the “essence” of the project is to meet the projected demand for access into Whittier. The FHWA concluded that, while enough rail capacity could be provided to meet the total demand, the trains would actually cany relatively few passengers due to the lesser demand for access by rail. The FHWA relied on several studies in support of this conclusion. One study states that, in 1997, the rail service can provide access to Whittier for 615 people per hour, but, assuming a road were available, the demand for access would be 1,310 people per hour. On an annual basis, the demand for rail service is 91,000, but the demand for access by road is 897,000. The study further states that, in the year 2015, the corridor demand of persons per hour will be 2,083 people, but the capacity of the improved rail service alternative would be 580 people or possibly 1,048 people if people are allowed to ride in cars attached to flatcars. Beyond the inability to meet the demand for access, the FHWA provided information demonstrating the rail system will not provide improved access for emergency services. Also, the FHWA determined there were significant-safety concerns with providing an improved rail shuttle service. The record demonstrates that the current track and tunnel configuration allows unsafe ice buildup, compromised track structure, and dangerous rock instability. The northwest entrance to one of the tunnels is prone to avalanches and the FHWA concluded this safety risk would be increased under the improved rail service alternative because of the increased frequency of service and greater train length. The FHWA thoroughly considered the relevant factors and alternatives and reasonably determined the improved rail system is not a prudent alternative. See Arizona Past and Future, 722 F.2d at 1429. “Alternatives that do not accomplish the purposes of the project may properly be rejected as imprudent.” Id. at 1428. Although ACE strenuously sets forth its belief that an improved rail system is a preferable and more prudent alternative, we may not substitute our judgment for that of the FHWA. Id. ACE, however, further argues that to comply with section 4(f), the FHWA must identify “unique problems or truly unusual factors” relating to the rejected rail alternative. For this argument, ACE relies on our decision in Stop H-3 Ass’n v. Dole, 740 F.2d 1442 (9th Cir.1984). ACE’s reliance on Stop H-3 is misplaced. In Stop H-3, we assumed the rejected alternatives met the stated purpose of the project. Consistent with Overton Park, we concluded that, if a rejected alternative would satisfy the purpose of the project without using land covered by section 4(f), an agency cannot reject those alternatives based on increased costs or community disruption unless the costs and disruption are of “extraordinary magnitudes.” Stop H-3, 740 F.2d at 1449-55. In the present case, the FHWA rejected the rail system alternative because it did not satisfy the purpose of the project — to meet the demand for access into Whittier. In this circumstance, the FHWA is not required to make a further showing of “unique problems” or “truly unusual factors” associated with the rail alternative. Arizona Past and Future, 722 F.2d at 1428. The FHWA did not act arbitrarily, capriciously, or abuse its discretion by rejecting an alternative which would not satisfy the purpose of the project. See id. at 1428-29. B. NEPA ACE next argues the final EIS violated the NEPA because it failed to adequately discuss the safety concerns associated with the road and rail system alternatives. An EIS must “reasonably set forth sufficient information to enable the decisionmaker to consider the environmental factors and make a reasoned decision.” Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 498 (9th Cir.1987) (quotations and citations omitted). The record does not support ACE’s argument. The final EIS thoroughly examined the relative safety risks associated with the road and rail system alternatives. The final EIS also specified the measures that will be taken to lessen the safety risks associated with the road. The final EIS did not fail to provide sufficient data regarding safety concerns. ACE also argues the FHWA violated the NEPA because the FHWA defined the purpose of the project too narrowly. Contrary to ACE’s argument, the purpose of the project is not defined so narrowly as to disqualify all alternatives except the road alternatives. The purpose of the project is to meet the demand for access into Whittier. This is a reasonable purpose. See City of Carmel-by-the-Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1155-57 (9th Cir.1997); Citizens Against Burlington v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991). The FHWA also thoroughly considered the improved rail system alternative, but determined the rail system would not meet the total demand for access. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992) (“Once satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, the review is at an end.”). The FHWA’s definition of the project’s purpose and analysis of the alternatives did not violate the NEPA. See City of Carmel, 123 F.3d at 1155-57. AFFIRMED.

Mahler v. United States Forest Service

RIPPLE, Circuit Judge. In these consolidated appeals, Andy Mahler seeks review of two separate decisions of the United States District Court for the Southern District of Indiana. In each ruling, the district court upheld a twenty-day public notice and comment period concerning environmental assessments prepared on salvage sales conducted pursuant to the Rescissions Act. For the reasons set forth in the following opinion, we affirm the decisions of the district court. I ' BACKGROUND The forest salvage operations at issue involve the Pleasant Run Unit of the Hoosier National Forest, about 500 acres of which were heavily damaged by a severe storm and tornado that swept across portions of that unit on April 19, 1996. According to the scoping letter sent to solicit public comment by Forest Supervisor Kenneth G. Day on May 16, 1996, the storm’s effects were compounded by damage from heavy snows and winds earlier in the year. R.14, Al at 1. The letter detailed the damage caused by the storm and the hazards created by the downed trees. A map of the damaged area and photographs of felled trees in the area were enclosed. Id. at 2-3. The letter stated that “[s]alvage of this material should begin as soon as possible if salvaged material is to be usable.” Id. at 1. The Forest Supervisor sought comments by June 17, 1996 (32 days from the date of the letter), on his proposal for emergency salvage of the damaged trees on the Pleasant Run Unit. Id. Affcer the first public comment period, the Forest Service prepared an “environmental assessment” (“EA”) for each Pleasant Run Timber Salvage Project, which was located in the northern portion of the Brownstown Ranger District, between State Highway 446 and Highway 135 in Lawrence and Jackson Counties, Indiana. One EA assessed the advisability of harvesting 162 acres of storm-damaged pine from that area. R.14, A3 at 48. The other EA reviewed the reasons for removing storm-damaged hardwood timber from 55 stands in that sector of the forest. Forest Supervisor Day recommended harvesting 3,138 thousand board feet of hardwoods on 752 acres. Id. at 47. He explained that taking no action would be unwise, for it would not “meet the need to reduce fire hazard, reduce risk to nearby healthy hardwood trees from insects, reduce the safety hazard from weakened trees, or improve access to National Forest System land.” Id. The two projects are appropriately named the Pleasant Run Emergency Pine Salvage Project and the Pleasant Run Emergency Hardwood Salvage Project. For each project, the Forest Service provided a twenty-day period for public comment. In determining that a twenty-day period of comment was appropriate, the Forest Service relied upon a Memorandum of Agreement (“MOA”) entered into by the Departments of Agriculture, the Interior, and Commerce with the Environmental Protection Agency. This interdepartmental MOA, dated August 9, 1995, provided for a twenty-day public comment period on environmental assessments prepared under the Rescissions Act. Mr. Mahler challenged this twenty-day period. He contended that the interdepartmental. MOA was contrary to the Public Participation Law, 16 U.S.C. § 1612 Note. The district court, each ease being decided by a different judge of that court, determined that the Secretary of Agriculture, acting through the Chief of the Forest Service, had acted within his statutory authority. II DISCUSSION A. Statutory and Regulatory Framework At the outset of our analysis, we turn to a discussion of the statutory and regulatory framework that must govern our review. 1. The Rescissions Act. Signed into law on July 27, 1995, this Act was designed to provide a statutory matrix for the government’s salvage timber sales on national forest lands. The statute provides for the expeditious removal of dead and dying trees from the national forests. The Act addresses, among many other matters, the obligation of the Secretary to develop a document that combines an environmental assessment under the National Environmental Policy Act and a biological evaluation under the Endangered Species Act. The statute gives significant discretion to the Secretary on the contents of this document. This statute contains no specific provision requiring public comment on the combined environmental and biological statement. Likewise, it, provides for extremely limited judicial review of the decision of the Secretary: Unless the court determines that the decision of the Secretary is “arbitrary and capricious or otherwise not in accordance with applicable law,” the decision of the Secretary must be sustained. See § 2001(f)(4) of the Act. Notably, this statute also addresses the relationship of this regulatory scheme to environmental laws of more general applicability. It specifically provides that the documents and procedures prepared in accordance with the Rescissions Act shall be deemed to satisfy the requirements of the Forest and Rangeland Renewable Resources Planning Act of 1974 (“the Forest Act”) as well as all other applicable federal and natural resources laws. 2. The Public Participation Law. This statute, 16 U.S.C. § 1612 Note, establishes a rule of general applicability for notice and public comment of actions contemplated by the Secretary of Agriculture and the Forest Service with respect to national forest land. It provides for a public comment period of thirty days. 3. The Interdepartmental MOA of August 9, 1995. This agreement, which we already have noted was formed pursuant to a Presidential direction, permitted the secretaries to determine that the combined environmental and biological assessment document prepared in salvage timber sales might be circulated for only twenty days. B. Analysis We believe that Chief Judge Barker provided the correct analysis in determining that the interdepartmental MOA’s allowance of a twenty-day public comment period is within the statutory authority of the signatory departments. Like our colleague in the district court, we start our analysis with the terms of the Rescissions Act. It provides that sales made under its terms “shall be deemed to satisfy the requirements” of the Forest Act and the regulations implementing that legislation. The Public Participation Law establishes a notice and comment period for actions taken under the Forest Act and therefore ought to be ■ considered, for purposes of determining the scope of the exception carved out by the Rescissions Act, an addition to the Forest Act. We think that it is clear that, in enacting the Rescissions Act, Congress intended to provide an expedited procedure for the removal of damaged and diseased timber from the national forests and, to achieve that end, intended that the cognizant department have discretion to adopt more abbreviated procedures than those usually employed when intrusions into the ecology of the national forests are contemplated. Specifically, by mandating that compliance with the terms of the Rescissions Act would constitute compliance with the Forest Act, Congress also abrogated the requirements of the Public Participation Law which can only be viewed, realistically, as part of the Forest Act. We also believe that the district court was on solid ground in determining, in the alternative, that the Rescissions Act abrogated the pertinent notice provisions of the Public Participation Law. The Rescissions Act provides that any timber sale conducted in accordance with its provisions “shall be deemed to satisfy the requirements of all other applicable Federal environmental and natural resource laws” and their regulations. The Public Participation Law is clearly an “applicable Federal environmental and natural resource law”; its terms govern the notice and public comment period for projects that implement “land and resource management plans.” We therefore conclude that the Interdepartmental Memorandum of Agreement complies with the terms of the Rescissions Act. The Act requires the Secretary to prepare a document that combines an environmental assessment and a biological evaluation. That assessment must consider the environmental effects of the timber sale “at the sole discretion of the Secretary concerned and to the extent that the Secretary concerned considers appropriate and feasible.” We believe this language clearly authorizes the Secretary to permit a shorter period for public comment than that usually required under the Public Participation Law. Conclusion The judgments of the district courts are affirmed. AFFIRMED . The letter seeking comments on the EA for the Pine Salvage project was dated August 15, 1996. It announced that the legal notice concerning the project would be published in the Bloomington Herald-Times newspaper on Sunday, August 18, 1996, and that comments must be postmarked or received within 20 days of that date. The letter seeking comments on the EA for the Hardwood Salvage project was dated September 6, 1996. It announced the publication of a legal notice on September 8, 1996, and required comment (by postmark or receipt) within 20 days of that date. R.14, A.3 at 47, 48. . This interdepartmental MOA was established at the direction of President Clinton (R.17, Attach.C) "to reaffirm the commitment of the signatory parties to continue their compliance with the requirements of existing environmental law while carrying out the objectives of the timber salvage related activities authorized by Public Law 10419,” the Rescissions Act. R.17, Attach. B at 26. The signatories are the Under Secretary for Natural Resources and Environment in the Department of Agriculture and the Chief of the Department of Agriculture’s Forest Service; the Department of Commerce’s Assistant Secretary for Oceans and Atmosphere and its Director of the National Marine Fisheries Service; and the Department of the Interior’s Assistant Secretary for Fish and Wildlife and Parks, its Assistant Secretary for Land and Minerals Management, its Director of Fish and Wildlife, and its Director of the Bureau of Land Management. The parties set forth, in this MOA, methods for implementing the salvage sales "with the same substantive environmental protection as provided by otherwise applicable environmental laws.” Id. at 27. Among the management procedures agreed to is the twenty-day notice and comment period. The interdepartmental MOA states that the parties [a]gree to conduct project analyses and inter-agency coordination. ... in a combined joint environmental assessment (EA) and biological evaluation (BE) called for in Public Law 104-19, except where it is more timely to use existing documents.... For sales that the Secretary determines, in his discretion, ordinarily should require an EA under the land management agencies’ NEPA procedures, agencies will prepare the combined EA/BE ... and circulate the analysis for 20 days of public review and comment. Id. at-2 8. . Public lands are administered by the U.S. Forest Service (an agency of the Department of Agriculture) and by the Bureau of Land Management, National Park Service, and Fish and Wildlife Service (three agencies within the Department of the Interior). See Sandra Beth Zellmer, Sacrificing Legislative Integrity at the Alter [sic] of Appropriations Riders: A Constitutional Crisis, 21 Harv. Envtl. L.Rev. 457, 457 n. 1 (1997). The federal forest reserves were transferred from the Department of the Interior to the Department of Agriculture in 1905. See 16 U.S.C.A. §§ 472, 559 note. . The full title for the Rescissions Act is The Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for.Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act of 1995, Pub.L. No. 104-19, § 2001, 109 Stat. 194, 240-47. The salvage timber sale provisions of the Rescissions Act expired on December 31, 1996. § 2001 (j). Nevertheless, the terms and conditions of that section continue in effect until the completion of performance of the salvage timber sale contracts offered under § 2001(b). Id. . The Act emphasizes that the Secretary concerned with administering the nation's forests, the Secretary of Agriculture, has complete discretion in the preparation of the document assessing the environmental and biological effects. Section 2001(c) of the Act describes the dotument in this way: A document embodying decisions relating to salvage timber sales proposed under authority of this section shall, at the.sole discretion of the Secretary concerned and to the extent the Secretary concerned considers appropriate and feasible, consider the environmental effects of the salvage sale and the effect, if any, on threatened or endangered species, and to the extent the Secretary concerned, at his sole discretion, considers appropriate and feasible, be consistent with any standards and guidelines from the management plans applicable to the National Forest or Bureau of Land Management District on which the salvage timber sale occurs. Section 2001(c)(1)(A) (emphasis added). The Act also mandates: The scope and content of the documentation and information prepared, considered, and relied on under this paragraph is at the sole discretion of the Secretary concerned. Section 2001(c)(1)(C) (emphasis added). . The statute requires the Secretary of Agriculture, acting through the Chief of the Forest Service, to establish a procedure for notice and comment concerning the Forest Service’s proposed activities under the Forest Act. The Secrelary must give notice of the proposed action and must "accept comments on the proposed action within 30 days after publication of the notice.” 16 U.S.C. § 1612 Note (b)(2). . The House Conference Report 104-124, emphasizing the emergency nature of the forest health situation, states: Much of this salvage volume must be removed within one year or less for the timber of [sic] retain maximum economic value, and to prevent future disasters from fire that can permanently damage forest land, eradicate wildlife, and ruin aquatic habitat. Therefore, the managers have included bill language to provide all necessary tools to expedite environmental processes, streamline, administrative procedures, expedite judicial review, and give maximum flexibility to the Secretary concerned in order to provide salvage timber for jobs, to improve forest health, and prevent future forest fires. Id. at 24. The expedited procedures set forth in § 2001(c) and throughout the statute reflect that concern. The Salvage Act itself emphasizes the expeditious nature of "the removal of disease- or insect-infested trees” and streamlined procedures for selling off the salvage timber. In fact, the Act refers to “emergency salvage timber sales.” § 2001(c). Under the reporting requirements of § 2001(c)(2), the Secretary is to report to Congress, by August 30, 1995, the salvage sales completed, and to submit reports every six months thereafter "until completion of all salvage timber sales conducted under subsection (b).”

Northwoods Wilderness Recovery, Inc. v. United States Forest Service

OPINION MERRITT, Circuit Judge. This case concerns a decision by the United States Forest Service to approve the Rolling Thunder timber project in the Ottawa National Forest on Michigan’s Upper Peninsula. Plaintiffs Northwoods Wilderness Recovery, Inc., Douglas R. Cor-nett, and Frank J. Verito argue that the approval of the timber project was in violation of the National Environmental Policy Act, the National Forest Management Act, and the Administrative Procedure Act. The basic question before us is whether the Forest Service acted arbitrarily when it approved selection cutting of hardwood timber acreage greatly exceeding the acreage projected in its Forest Plan and its Environmental Impact Statement. On cross motions for summary judgment, the district court ruled in favor of the Forest Service on all counts. Because we conclude that approval of the Rolling Thunder project without adherence to the statutorily-mandated environmental analysis was arbitrary and capricious, we REVERSE the judgment of the district court and REMAND with instructions to enter summary judgment for the plaintiffs. I. Background The National Forest Management Act of 1976 mandates that every national forest have a programmatic document called a forest plan to “guide all natural resource management activities,” including use of the land for “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e)(1). The forest plan identifies the resource management practices, the projected levels of production of goods and services, and the location where various types of resource management may occur. Implementation of the forest plan is achieved through individual site-specific projects, and all projects must be consistent with the forest plan. See 16 U.S.C. § 1604(i); 36 C.F.R. § 219.10. To ensure that forest plans remain in compliance with the Forest Act, the Forest Service must establish a monitoring strategy. See 36 C.F.R. § 219.11. Furthermore, the statute requires the Forest Service to “revise” the plan “when the Secretary finds conditions in a [Forest] have significantly changed.” 16 U.S.C. § 1604(f). Forest plans, as well as site-specific proposals, must be prepared in compliance with National Environmental Policy Act, 42 U.S.C. § 4321, and the regulations contemplate the preparation of an appropriate Environmental Impact Statement as directed by the Policy Act as part of an integrated process. 16 U.S.C. § 1604(g)(1); 36 C.F.R. § 219.6(b). Federal regulations permit an agency that is planning a major federal action to conduct a less exhaustive Environmental Assessment to determine whether the proposed action will “significantly affect” the environment and thus whether an Environmental Impact Statement is required. 40 C.F.R. §§ 1501.4(b), 1508.9 (2001). If the Environmental Assessment reveals that the proposed action will significantly affect the environment, the agency must prepare an Environmental Impact Statement. See id. Conversely, if the agency makes a Finding of No Significant Impact, 40 C.F.R. § 1501.4(e), then it is not required to prepare an Environmental Impact Statement. The Ottawa National Forest is located on Michigan’s Upper Peninsula. In 1986, the Forest Service issued its Forest Plan and accompanying Environmental Impact Statement for the Ottawa National Forest. The Plan divides the Forest into sixteen management areas. The Rolling Thunder project, the subject of this litigation, is located within Area 2.1. The Plan states that the desired future condition of the land in Area 2.1 is a continuous canopy of northern hardwoods with occasional permanent upland openings, and the Plan contemplates logging in Area 2.1 with an emphasis on “uneven-aged management.” The Plan envisions an average annual harvest within Area 2.1 of 1,440 acres by clear-cutting and 2,800 acres by selection cutting. Selection cutting involves removing individual trees in a scattered pattern from a large area, while maintaining the forest’s canopy. Selection cutting fosters a forest of trees that differ markedly in age and/or size. By contrast, clear-cutting involves removing all commercial-sized trees from an area in one harvest. On December 8, 1997, the Forest Service issued a Scoping Letter wherein it proposed the Rolling Thunder timber sale. The letter proposed additional clear-cutting on 176 acres of aspen stands and selection cutting on 1,391 acres of mixed northern hardwoods in Area 2.1. The Forest Service then undertook an Environmental Assessment that evaluated the effects of the proposed alternatives on numerous resources. In May, 1998, the Forest Service issued the draft Environmental Assessment to the public for comment. Plaintiffs objected to the proposed project because the selection cutting within Area 2.1 already averaged more than 4,800 acres annually while the Plan envisioned only 2,800 acres. After considering and responding to the public comments, District Ranger Jeff Larsen issued a Decision Notice and a Finding of No Significant Impact. Among other things, the Decision Notice specifically authorized 1,055 acres of individual tree selection cutting of northern hardwood trees, as well as 95 acres of clear-cutting to regenerate soon-to-be-overmature aspen trees which were becoming susceptible to insects and disease. Plaintiffs filed a timely administrative appeal of the Rolling Thunder decision pursuant to 36 C.F.R. § 215. On May 19, 1999, the Appeal Deciding Officer upheld Larsen’s decision on Rolling Thunder. On January 26, 2000, the plaintiffs filed a complaint in federal court challenging the Forest Service’s decision to permit the Rolling Thunder project. Thereafter, the Forest Service withdrew two of the timber sales originally involved in the project. On May 12, 2000, the plaintiffs filed an amended complaint challenging the remaining two timber sales. In the amended complaint, the plaintiffs alleged that the Rolling Thunder Decision Notice and the Finding of No Significant Impact are inconsistent with the Plan, and therefore in violation of the Forest Act and the Policy Act. On cross-motions for summary judgment, the district court ruled in favor of the Forest Service on all counts. The district court gave a broad interpretation to language in the general section of the Plan on vegetation management. For sugar maples, the language provides that “[f]or stands managed uneven-aged, there is no restriction on acreage of selection cuts within any one 10-year period.” The district court interpreted this language as exempting selection cutting of sugar maples from any acreage limitation. Therefore, the court concluded that it need not decide whether the acreage projections in the Plan set limits on the annual harvesting by selection cutting. Relying on the maxim of interpretation that specific language within a document should control over general language, the court concluded that the acreage average for selection cutting in Area 2.1 was general language about the harvesting of all trees and the Plan’s statement about uneven-aged management of sugar maples is specific language about a particular kind of tree. The district court concluded, “[i]f the 2800-acre average controlled, then it would make no sense to state that unlimited selection cutting of sugar maples could occur.” To avoid such an inconsistency, the district court reasoned that the Plan’s language about uneven-aged management of sugar maples was an exception to any acreage limitation in Area 2.1. Because the court found that the plaintiffs had not demonstrated that the additional selection cutting in Area 2.1 involved trees other than sugar maples, the court concluded that the plaintiffs had not shown that the selection cutting in the Forest violated the terms of the Forest Plan. The plaintiffs then filed this timely appeal. On appeal, we may “set aside the agency determination only if it is arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with the law.” Sierra Club v. Slater, 120 F.3d 623, 632 (6th Cir.1997) (citing 5 U.S.C. § 706). II. Discussion Plaintiffs’ arguments can be summarized as follows: (1) the acreage projections contained in the Forest Plan should be construed as a limitation on logging in the Forest; and (2) the sentence in the Forest Plan which states that there is no limitation on the acres where sugar maples can be harvested, which was the basis of the district court’s grant of summary judgment to the defendants, was improperly included in the Plan because it was never subjected to Policy Act, analysis. We will address the plaintiffs’ contentions in turn. Plaintiffs assert that the approval of the Rolling Thunder project violates the Forest Act because the Forest Service is already permitting selection logging in Area 2.1 at a rate almost twice as great as, and inconsistent with, the rate projected in the Plan. Any additional harvest can serve only to exacerbate the excessive number of acres harvested by selection cutting. The Forest Service counters that its approval of the Rolling Thunder project was proper and that timber harvesting within the Forest is not exceeding the amount foreseen in the Forest Plan. The Forest Plan set the Allowable Sale Quantity for the Forest at 780 million board feet per ten-year period. The parties agree that the timber harvest within the Forest stayed well within the Allowable Sale Quantity, with an average annual harvest volume of 694 million board feet. The Forest Service acknowledges that, since the adoption of the Plan in 1986, in response to public concern, it has reduced the number of acres harvested by even-aged methods (clear-cutting) in favor of expanded use of uneven-aged management, specifically selection cutting. The Forest Service argues that the corresponding increase in the number of harvested acres over the projections contained in Table 2.1b is irrelevant to the determination of whether the Rolling Thunder sale violates the Plan. Instead, “Table 2.1b is a 1986 projection of the number of acres likely to be touched by logging in order to generate the ASQ for the Forest; it is not a fixed limit on acreage, but rather a projection based upon 1986 methods.” In 1986, the Forest Service asserts, the shift away from clear-cutting toward selection cutting was not anticipated. Plaintiffs reply that the Forest Service correctly identifies the Allowable Sale Quantity as the ceiling for timber production in the Forest, but incorrectly relies on the Allowable Sale Quantity as the only limit. Plaintiffs emphasize the distinction between timber production and the act of logging. Timber production is one of the multiple uses provided by a national forest, whereas logging is the method of achieving that use. While Allowable Sale Quantity is a limit on timber production, the acreage figures provide protection from logging activity for resources other than timber. In our view, the Allowable Sale Quantity was not meant to be the only limitation on timber production in the Forest. Allowable Sale Quantity does not measure the impacts of logging on wildlife, vegetation, soils, and water quality, as required by the Forest Act. See 16 U.S.C. § 1604(e)(1). Before adopting the Plan, the Forest Service considered eight alternatives, along with the environmental impacts of each alternative. The alternatives ranged from lesser to greater quantities of timber production while utilizing different methods of logging. The Forest Service selected one alternative to implement because it concluded that the alternative provided the appropriate combination of improved wildlife habitat, vegetative conditions, and recreation opportunities, as well as the preferred mix of even- and uneven-aged logging. The Forest Service’s current position that the board-feet maximum is the only limitation on the timber harvest contradicts statements included in the Environmental Impact Statement. For example, the Forest Service noted that “[t]he mix of even-aged and uneven-aged management will also have an impact on other outputs and effects such as vegetative diversity, wildlife habitat, recreation opportunities, visual quality, viable populations of wildlife, hardwood sawtimber production ... and hardwood pulpwood production.” As the district judge recognized at the hearing below, The reason that [the Allowable Sale Quantity as the limit on logging] doesn’t make very much intuitive sense to me is that this plan does not have as its objective simply producing a number of board feet of wood for sawmills. It also has as its objective protecting the water quality, the soil quality, the vegetation, the birds, the fish, the deer, whatever else is in there, so to simply say we can go in and do whatever we want as long as we don’t exceed a certain number of board feet would seem to me to make 90 percent of all of the analysis in the verbiage in the plan unnecessary surplusage. In its Record of Decision, the Forest Service noted that “[t]he mix of uneven-aged and even-aged management in the Forest Plan will result in multiple use benefits including a variety of wildlife habitats and visual resources and will create a more diverse forest while providing for higher quantity and quality of hardwood timber in the future.” Because the Plan and the Environmental Impact Statement considered not only the total amount of timber to be harvested, but the locations and methods of that harvest, changing the mix of harvest methods entails a deviation from the Plan. Finally, the inclusion of the sugar maple sentence itself indicates that the acreage projections should be construed as limitations. If the acreage figure does not serve as a limitation, then there would be no need to include a statement that there is no restriction on acreage for selection cutting of sugar maples. As evidenced by the monitoring and evaluation report, the number of acres harvested by selection cutting has greatly exceeded that amount envisioned in the Plan and its Environmental Impact Statement. Because site-specific timber sales must promote the desired future condition of the land and be consistent with the objectives of the management areas, the approval of the harvest of the additional acres included in the Rolling Thunder project is not consistent with the acreage projections in the Plan. Having concluded that the approval of the Rolling Thunder project is inconsistent with the acreage estimates in the Plan, we turn now to the Forest Service’s contention the sugar maple sentence exempts selection cutting of sugar maples from any such acreage limitation. The Forest Service argues that the sugar maple sentence trumps any limits placed on selection logging contained within the management area prescriptions. As noted earlier, in the general discussion of uneven-aged management of sugar maple stands, the Plan provides that “[f]or stands managed uneven-aged, there is no restriction on acreage of selection cuts within any one 10-year period.” The plaintiffs assert that the Forest Service has never conducted Policy Act analysis on the unlimited acreage of selection harvest of sugar maples. They contend that the Environmental Impact Statement only considered the environmental effects of each of the eight alternatives, none of which proposed unlimited sugar maple selection harvest. If the district court opinion is allowed to stand, the plaintiffs argue, then the Forest Service can permit every sugar maple to be cut, regardless of the management area, or the impact to wildlife, soils, vegetation, or water resources. The Forest Service counters that the Policy Act-based arguments fail because the sugar maple sentence was included in the Forest Plan, which was the product of the administrative process. We agree that if this aspect of the Plan was properly adopted, then the Forest Service may rely on the Plan to overcome any challenge based on the Forest Act. However, the mere fact of the inclusion of the sugar maple provision does not shield the Forest Service from a challenge based upon the Policy Act. The Forest Service never demonstrated, by citing to either the Plan or the Environmental Impact Statement, that the environmental impacts of the current level of selection logging ever was analyzed, much less unlimited selection cutting of sugar maples. No meaningful consideration was given to unlimited cutting of this species of hardwood, and it is unclear how, by whom, or for what reason the sentence was inserted. Because the Policy Act promotes its sweeping commitment to “prevent or eliminate damage to the environment and biosphere” by focusing Government and public attention on the environmental effects of proposed agency action, 42 U.S.C. § 4321; Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), meaningful analysis and public comment were required prior to the approval of additional selection logging. We conclude that approval of the Rolling Thunder project without adherence to the statutorily-mandated environmental analysis was arbitrary and capricious. Having concluded that the excessive cutting of hardwood timber acreage violates the National Environmental Policy Act, we need not examine the consequences of the Forest Service’s failure to revise the Forest Plan at issue within fifteen years as required by 16 U.S.C. § 1604(f). We note, however, that on December 6, 2002, the Department of Agriculture proposed a modification to the forest plan development process. See National Forest System Land and Resource Management Planning, 67 Fed.Reg. 72770 (proposed Dec. 6, 2002) (to be codified at 36 C.F.R. pt. 219). The Forest Service observed that it has seldom been able to revise plans prior to the Forest Act’s 15-year deadline. The primary reason for the delay is the excessive length of time needed to prepare a plan under the current rules. To speed the process, the Forest Service intends to recognize that plans themselves do not dictate site-specific actions; therefore, they are not actions that significantly affect the quality of the human environment. As such, forest plans would not be required to include Environmental Impact Statements prepared in accordance with the National Environmental Policy Act. The subsequent site-specific projects must be proposed and developed within the constraints of the Plan, and would be subject to the Policy Act and other applicable laws and regulations. III. Conclusion For projects to be properly approved under the National Environmental Policy Act, they must be preceded by or accompanied by an Environmental Impact Statement that analyzes the impacts of the action on various resources within the forest. In this case, there was no scientific or other assessment under either the National Forest Management Act or the National Environmental Policy Act of permitting selection logging at the current levels, much less the additional acreage approved in the Rolling Thunder project. In the absence of the appropriate statutorily-mandated analysis, the approval of the Rolling Thunder project was arbitrary and capricious. The decision of the district court is REVERSED and the case is REMANDED with directions to enter summary judgment for the plaintiffs. . Uneven-aged management encompasses both single tree selection and group selection and results in stands containing trees of different ages. Group selection involves cutting small patches of trees, while single tree selection involves selecting particular trees for cutting. See Sierra Club v. Peterson, 185 F.3d 349, 354 (5th Cir.1999) (citing 36 C.F.R. § 219.3 (1999)). . According to the Forest Service, the project will involve only the clear-cutting of 95 acres and selection cutting of approximately 615 acres. . The parties both refer to this sentence as the "sugar maple sentence.” . Allowable Sale Quantity is the "ceiling on the total amount of wood that can be cut.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 729, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). .The regulations specify that monitoring information is to be used to determine, among other things, if key assumptions identified for monitoring in the Plan remain valid and the Plan or site-specific decisions need to be modified. See 36 C.F.R. § 219.11(d). By the Forest Service’s admission, it has responded to public concern about clear-cutting by reducing reliance on that method of harvest. The Service has therefore revised a key assumption underlying the Plan. The regulations suggest that the Service should, at a minimum, consider whether the Plan or its site-specific decisions need to be modified. See id. . This overstates the situation because, as the Forest Service points out, the total timber harvest must remain within the ceiling of the Allowable Sale Quantity. . We need not reach the issue whether the Plan was properly adopted because we conclude that the inadequate environmental analysis under the National Environmental Policy Act dictates the outcome in this case.

Gros Ventre Tribe v. United States

TALLMAN, Circuit Judge: Appellants Gros Ventre Tribe, Assini-boine Tribe, and the Fort Belknap Indian Community Council (collectively “the Tribes”) appeal the district court’s order granting summary judgment for the United States. The Tribes filed suit in the District of Montana against the United States, its Bureau of Land Management (“BLM”), the Bureau of Indian Affairs, and the Indian Health Service (collectively “the government”), alleging that the government had violated specific and general trust obligations to protect tribal trust resources (primarily water rights) by authorizing and planning to expand two cyanide heap-leach gold mines located upriver from the Tribes’ reservation. We affirm. The Tribes urge a theory of liability conflating general trust law principles with an attack on agency inaction under the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(1). But none of the treaties cited by the Tribes impose a specific duty on the United States to regulate third parties or non-tribal resources for the benefit of the Tribes. Because the government’s general trust obligations must be analyzed within the confines of generally applicable statutes and regulations, we reject the suggestion to create by judicial fiat a right of action Congress has not recognized by treaty or statute. Therefore, because the Tribes do not have a cognizable non-APA claim, we agree with the district court that the Tribes are required to comply with the APA’s “final agency action” requirement. See id. § 704. We also hold that after bifurcating the trial into a liability and remedy phase, the district court did not abuse its discretion by granting the government’s motion for summary judgment upon conclusion of the liability phase. I A The Gros Ventre and Assiniboine Tribes reside on the Fort Belknap Indian Reservation (“Reservation”) located in north-central Montana. Pertinent to this appeal is the fact that in 1851 seven different Indian nations, including the two Tribes, signed the Treaty of Fort Laramie. The Indian nations had “assembled for the purpose of establishing and confirming peaceful relations amongst themselves,” and, by signing the treaty, they “agree[d] to abstain in future from all hostilities whatever against each other, to maintain good faith and friendship in all their mutual intercourse, and to make an effective and lasting peace.” Treaty of Fort Laramie art. 1, Sept. 17, 1851, 11 Stat. 749. The Tribes also formally recognized “the right of the United States Government to establish roads, military and other posts, within their respective territories.” Id. at art. 2. In return, the United States agreed to “protect the ... Indian nations against the commission of all depredations by the people of the said United States.” Id. at art. 3. The Treaty of Fort Laramie did not convey any land to the Indians “but instead chiefly represented a covenant among several tribes which recognized specific boundaries for their respective territories.” Montana v. United States, 450 U.S. 544, 553, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). The United States made a similar promise to protect the Tribes and their territory in the 1856 Treaty with the Blackfeet. The Tribes “agree[d] that citizens of the United States may live in and pass unmolested through the countries respectively occupied and claimed by them.” Treaty with the Blackfeet art. 7, Oct. 17, 1855, 11 Stat. 657. The United States agreed to be “bound to protect said Indians against depredations and other unlawful acts which white men residing in or passing through their country may commit.” Id. In 1888, Congress ratified an agreement to reduce the territory of the Gros Ventre, Piegan, Blood, Blackfeet, and River Crow Indian Tribes. See An Act to Ratify and Confirm an Agreement with the Gros Ventre, ch. 213, May 1, 1888, 25 Stat. 113. In return, Congress created the original Fort Belknap Indian Reservation, an area of land specifically set aside for the use and enjoyment of the Indian tribes. Although a reduction of their former territory, the original Fort Belknap Indian Reservation included the Little Rocky Mountains of Montana, a location long used by the Tribes for subsistence, social, and religious purposes. In the early 1880s, prior to the formation of the original Fort Belknap Indian Reservation, gold was discovered on the southern slopes of the Little Rocky Mountains. Congress soon realized that the larger part of the mineral-bearing country was located within the boundaries of the newly delineated Fort Belknap Indian Reservation. In 1896, Congress ratified what later became known as the “Grinnell Agreement,” wherein the Tribes agreed to relinquish all right, title, and interest to the mineral-bearing portion of the Little Rocky Mountains in return for certain monetary considerations. Agreement with the Indians of the Fort Belknap Indian Reservation in Montana, ch. 398, 29 Stat. 350 (1895). While not articulated in the agreement ratified by Congress, it was reported to the Senate that the commission authorized to negotiate with the Fort Belknap Indian tribes had assured the tribes that they “would not be giving up any of their timber or grasslands ... and that they would have ample water for all their needs.” S. Doc. No. 54-117, at 3-4 (1896). Within the next ten years, the Little Rocky Mountains mining district became Montana’s largest gold producer. The advent of cyanide heap-leach technology, in conjunction with a sharp rise in gold prices, prompted the development of open pit mining operations beginning in the late 1970s. In 1979, the Montana Department of State Lands issued permits to Zortman Mining, Inc. (“ZMI”), a wholly owned subsidiary of Pegasus Gold, Inc. (“Pegasus”), authorizing the Zortman and Landusky cyanide heap-leach mines. Both mines are located near the southern boundary of the Reservation. The BLM did not establish federal regulations controlling the operation of mines on public lands until 1981. At that time, the BLM approved the Zortman and Landusky mines as pre-existing authorizations under its newly promulgated regulations. The BLM issued a Plan of Operation for each mine, and both plans were amended numerous times between 1979 and 1991. In 1992, ZMI proposed to expand the Zortman mine. In the course of reviewing the proposed Zortman expansion, the BLM and the Montana Department of State Lands determined that acid rock drainage (“ARD”) had become a widespread problem at both the Zortman and Landusky mines. Despite these findings, in 1996, the BLM and the Montana Department of Environmental Quality issued an Environmental Impact Statement (“EIS”) and Record of Decision (“ROD”) approving a proposed expansion of mining operations at both locations. In late 1996, the Tribes appealed that decision to the Interior Board of Land Appeals (“IBLA”). In 1998, before the IBLA issued a decision on the merits, Pegasus and ZMI filed for bankruptcy. Consequently, the companies abandoned their plans to expand and announced that they would reclaim and close the mines. Ultimately, the IBLA found that the 1996 ROD did not comply with the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), or the government’s trust obligations to the Tribes. See Island Mountain Protectors, 144 IBLA 168 (May 29, 1998). On June 1, 1998, the BLM issued a second ROD requiring reclamation of existing disturbances using agency-developed mitigation tactics. In doing so, it rescinded the 1996 ROD authorizing mine expansion. Because the BLM relied on the 1996 EIS in preparing the 1998 ROD, the IBLA denied the BLM’s motion for reconsideration and vacated the 1998 ROD on the same grounds it had cited to vacate the earlier decisions. In response to the IBLA’s decision, the BLM and the State of Montana engaged in consultation with the Tribes. The agency issued a Final Supplemental Environmental Impact Statement (“SEIS”) in 2001 and signed a new ROD in May 2002. B In April 2000, the Tribes filed suit claiming that the government breached its trust responsibility to the Tribes by approving, permitting, and failing to reclaim the Zort-man and Landusky mines, the operation of which had diminished and continues to diminish the quality and quantity of water resources available to the Tribes. The Tribes further alleged that the government failed to consult with the Tribes, and consider their spiritual, cultural, and religious interests in the Little Rocky Mountains. According to the Tribes, the government breached its common law trust obligations by failing to take action that it was legally required to take, or by acting in a fashion that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See 5 U.S.C. § 706. The Tribes filed an equitable action, asking the district court to (1) declare that the government violated its fiduciary duty to protect tribal trust resources, (2) find that the government’s failure to comply with the NEPA and other statutory mandates constituted an unnecessary and undue degradation in violation of the FLPMA, (3) issue a writ of mandamus compelling the government to comply with its trust responsibilities, and (4) enjoin the government from further destruction of tribal trust resources. On January 29, 2001, the district court denied the government’s motion to dismiss for lack of subject matter jurisdiction or failure to state a claim. The government had argued that the Tribes’ claims were subject to all of the requirements of the APA. Consequently, the government asserted that the district court lacked jurisdiction to consider any claim that did not involve a “final agency action” and that the “final agency actions” that had occurred prior to 1994 were barred by the six-year statute of limitation. The Tribes countered by arguing that the APA’s waiver of sovereign immunity applies to non-APA claims, as well as APA claims. They contended that their common law trust claim could be raised independent of the APA and other statutes and, therefore, they were not limited to challenging only final agency actions. The district court initially agreed with the Tribes and denied the government’s motion to dismiss. Reading the complaint in the light most favorable to the Tribes, the district court found that the Tribes’ common law claims were more like private nuisance claims — rather than an action stemming directly from administrative proceedings — and it agreed that “the trust relationship between the Tribes and the federal government provide[d an] independent basis to proceed.” Therefore, because the district court concluded that the APA’s waiver of sovereign immunity applied to non-APA claims, as well as APA claims, the Tribes were not constrained by the final agency action requirement. On November 30, 2001, the district court issued an order bifurcating the trial into a liability phase and a remedy phase. In December 2002, the parties filed cross-motions for summary judgment, and upon the district court’s order they renewed those motions in 2003. On June 28, 2004, the district court granted the government’s motion for summary judgment. Recognizing that “[t]he Tribes are not challenging the 2002[sic] SEIS and ROD,” the district court determined that the Tribes failed to challenge any “final agency action” as required by the APA. Moreover, it reasoned that “although damages have been bifurcated from liability, the lack of an effective remedy for any wrongs committed on the Tribes rendered] the exercise of judicial power superfluous, and the case moot.” The BLM withdrew the plan to expand the mines, and, therefore “the actions of which the Tribes complain either cannot be undone or have already been undone.” Consequently, “the [district court] siting in equity ha[d] little to offer the Tribes until and unless they seek judicial review of the 2002[sic] SEIS and ROD.” Subsequently, the Tribes filed a Motion to Amend Judgment. On October 22, 2004, the district court denied the Tribes’ motion in a published order but clarified its reasoning. See Gros Ventre Tribe v. United States, 344 F.Supp.2d 1221 (D.Mont.2004). The district court stated that it had reconsidered its prior order denying the government’s motion to dismiss sua sponte. Id. at 1223. It now believed that the Tribes’ claims were subject to all APA provisions, including the “final agency action” requirement. Id. at 1226. Moreover, as an alternative holding, the district court concluded that the Tribes’ common law claims must fail because the Tribes could not state a cognizable claim that the government had failed to satisfy any other statutory obligations, whether directed at protecting the Tribes or the environment in general. As the district court stated, “In the absence of a specific duty, or specific control over tribal property, the government fulfills its obligations as a trustee for the Tribes if it complies with applicable statutes.” Id. “[T]he trust obligation is not elevated to an independent source of law,” and, because it determined that the Tribes’ failure to act claims under FLPMA were not renewable, the district court concluded that the Tribes’ common law rights were not independently enforceable under the APA. Id. at 1227. Consequently, because the statute of limitation for any civil claim against the government is six years, the Tribes’ claims were limited to final agency actions taken after April 12, 1994. Id. at 1229. Although the 1996 ROD was a “final agency action” and occurred within the six-year statute of limitation, that ROD was later superseded by another “final agency action,” which the Tribes did not challenge. Id. Therefore, the district court concluded that because the Tribes “[l]ack[ed] an injury flowing from the 1996 decision, [they did] not have standing to challenge the 1996 decision.” Id. The district court went on to hold that the controversy over the BLM’s approval of the entire mine operation is now moot because the mines have closed, and there is no indication that they will reopen. Id. at 1230. The Tribes timely appealed. II A district court’s decision to grant summary judgment is reviewed de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). Its decision regarding the management of litigation is reviewed for an abuse of discretion. Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1358 (9th Cir.1998). III A The parties go to great pains to argue the issue whether the APA’s waiver of sovereign immunity under 5 U.S.C. § 702 for non-monetary actions against the government is conditioned upon the parties challenging a “final agency action” as set forth in 5 U.S.C. § 704. We now recognize that there is a conflict in our caselaw regarding this issue; however, we need not resolve it as we affirm the district court on its alternative holding. The government argues that this case is controlled by the Ninth Circuit’s decision in Gallo Cattle Co. v. U.S. Department of Agriculture, 159 F.3d 1194 (9th Cir.1998). There, we specifically stated that “the APA’s waiver of sovereign immunity contains several limitations,” including § 704’s “final agency action” requirement. Id. at 1198. Because the appellants in Gallo Cattle failed to challenge a “final agency action,” the express waiver of sovereign immunity did not apply, and 28 U.S.C. § 1331 could not vest the district court with jurisdiction. Id. at 1199. The Tribes attempt to distinguish Gallo Cattle on the ground that it involved a request for judicial review of agency action and not common law claims seeking equitable relief for agency violations of common law duties. They argue that § 702 waives sovereign immunity in non-statutory review actions for non-monetary relief brought under 28 U.S.C. § 1331. See Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 793 (9th Cir.1986) (“This Court has held that section 702 does waive sovereign immunity in non-statutory review actions for non-monetary relief brought under 28 U.S.C. § 1331.”). Therefore, they contend that § 702’s waiver applies to more than “just judicial review cases under the APA” and that there is “no common law ‘final agency action’ requirement.” The Tribes’ position is supported by The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir.1989), where we rejected the Immigration & Naturalization Service’s (“INS”) argument that § 702’s waiver of sovereign immunity is limited to only “agency actions” as defined by the APA. Id. at 526. In The Presbyterian Church, “[t]he INS’[s] argument [wa]s premised on the first sentence of § 702, enacted in 1946, which reads: A person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.’ ” Id. at 524-25 (quoting 5 U.S.C. § 702). Therefore, because it believed that the challenged actions in The Presbyterian Church were not “agency actions,” the INS argued that § 702’s waiver of sovereign immunity did not apply. Id. at 525. We see no way to distinguish The Presbyterian Church from Gallo Cattle. Under The Presbyterian Church, § 702’s waiver is not conditioned on the APA’s “agency action” requirement. Therefore, it follows that § 702’s waiver cannot then be conditioned on the APA’s “final agency action” requirement. See Reno v. Am-Arab Anti-Discrimination Comm., 525 U.S. 471, 510 n. 4, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (Souter, J., dissenting) (“[The waiver of sovereign immunity found in 5 U.S.C. § 702] is not restricted by the requirement of final agency action that applies to suits under the [APA].” (citing The Presbyterian Church, 870 F.2d at 523-26)). But that is directly contrary to the holding in Gallo Cattle where we stated that “the APA’s waiver of sovereign immunity contains several limitations,” including § 704’s final agency action requirement. 159 F.3d at 1198. Nevertheless, we need not make a sua sponte en banc call to resolve this conflict because, as we discuss below, the Tribes do not have a common law cause of action for breach of trust. Cf. United States v. Torres-Hernandez, 447 F.3d 699, 704 (9th Cir.2006) (declining to make a sua sponte en banc call to address an intra-circuit conflict when the court could affirm under either standard). Therefore, because the statutes that the Tribes cite authorize no private right of action, the Tribes must state their claims within the confines of the APA. B The Tribes argue that the APA’s “final agency action” requirement is inapplicable because they have presented the court with simple common law trust claims based upon clearly identified and ongoing injuries. Even if the Tribes were correct about whether the “final agency action” requirement applies to non-APA claims relying on § 702’s waiver of sovereign immunity, the Tribes cannot allege a common law cause of action for breach of trust that is wholly separate from any statutorily granted right. See Cobell v. Babbitt, 91 F.Supp.2d 1, 28 (D.D.C.1999) (“[The tribes] cannot state common-law claims for breach of trust against these federal officials in the context of financial mismanagement of the [Individual Indian Money] trust. ‘There is no such thing as a common law judicial review in the federal courts.’ ” (quoting Stark v. Wickard, 321 U.S. 288, 312, 64 S.Ct. 559, 88 L.Ed. 733 (1994) (Frankfurter, J., dissenting))). We recognize that there is a “distinctive obligation of trust incumbent upon the Government in its dealings with [Indian tribes].” United States v. Mitchell (Mitchell II), 463 U.S. 206, 225, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (quoting Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942)). That alone, however, does not impose a duty on the government to take action beyond complying with generally applicable statutes and regulations. Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1482 (D.C.Cir.1995) (“[A]n Indian tribe cannot force the government to take a specific action unless a treaty, statute or agreement imposes, expressly or by implication, that duty.”); Vigil v. Andrus, 667 F.2d 931, 934 (10th Cir.1982) (“[T]he federal government generally is not obligated to provide particular services or benefits in the absence of a specific provision in a treaty, agreement, executive order, or statute.”); Miccosukee Tribe of Indians of Fla. v. United States, 980 F.Supp. 448, 461 (S.D.Fla.1997) (“[T]he government assumes no specific duties to Indian tribes beyond those found in applicable statutes, regulations, treaties or other agreements.”). Although the Tribes may disagree with the current state of Ninth Circuit caselaw, as it now stands, “unless there is a specific duty that has been placed on the government with respect to Indians, [the government’s general trust obligation] is discharged by [the government’s] compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.” Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 574 (9th Cir.1998); see also Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 479 (9th Cir.2000), Skokomish Indian Tribe v. FERC, 121 F.3d 1303, 1308-09 (9th Cir.1997), Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199, 203 (9th Cir.1995). In Vigil, the Tenth Circuit declined to find that, within the federal government’s broad fiduciary obligations to Indian tribes, there lies a specific duty to provide free lunches to all Indian children. 667 F.2d at 934. Stating that “the federal government generally is not obligated to provide particular services or benefits in the absence of a specific provision in a treaty, agreement, executive order, or statute,” the court concluded that language in treaties referring to the government’s obligation to support and educate Indians was too broad and did not expressly impose a duty on the government to provide free lunches to all Indians. Id. Similarly, in Shoshone-Bannock Tribes, the D.C. Circuit held that a provision in the Treaty of Fort Bridger of July 3, 1868, 15 Stat. 673, giving the tribes a right to hunt on “the unoccupied lands of the United States so long as game may be found thereon” did not impose a duty on the United States to litigate water-rights claims on the tribes’ behalf. 56 F.3d at 1478, 1482 (internal quotation marks omitted). The court concluded that the broad provision within the Treaty “d[id] not suggest in the slightest that upon the Tribes’ request, the United States is bound to file and defend meritless claims to water rights,” and, “[wjithout an unambiguous provision by Congress that clearly outlines a federal trust responsibility, courts must appreciate that whatever fiduciary obligation otherwise exists[ ] it is a limited one only.” Id. at 1482 (internal quotation marks omitted); see also Miccosukee Tribe of Indians of Florida, 980 F.Supp. at 456, 461, 463 (rejecting the tribes argument that the federal government had a fiduciary obligation to accede to its request to take certain actions to alleviate flooding on tribal land caused by Tropical Storm Gordon because “[t]he Tribe ha[d] not introduced evidence that the Federal Defendants assumed a duty under any of these statutes and agreements to provide the Tribe with the flood relief it has requested”). In this case, the Tribes argue that the government has failed to properly consider tribal interests in the approval and permitting of the Zortman and Landusky mining operations. Moreover, they argue that the BLM’s failure to fully reclaim the mines and restore the quantity and quality of the Tribes’ water resources constitutes an ongoing breach of the government’s trust obligations. But their claim is no different from that which might be brought under the generally applicable environmental laws available to any other affected landowner, subject to the same statutory limitations. We also think this situation is unique from other cases where courts have required the United States to comply with a specific fiduciary obligation; here, the Tribes seek to impose a duty, not found in any treaty or statute, to manage non-tribal property for the benefit of the tribes. Cf. United States v. Mitchell (Mitchell I), 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (holding that the United States does not have a specific fiduciary obligation to manage timber resources on allotted lands, held in trust for Indian-allotees); United States v. Mason, 412 U.S. 391, 393, 398, 400, 93 S.Ct. 2202, 37 L.Ed.2d 22 (1973) (finding that the United States had not breached its trust responsibility in the management of allotted land held in trust for a member of the Osage Tribe); Seminole Nation, 316 U.S. at 296-300, 62 S.Ct. 1049 (recognizing that the United States may have breached its fiduciary duty in its management of Indian annuities); Minnesota v. United States, 305 U.S. 382, 386, 59 S.Ct. 292, 83 L.Ed. 235 (1939) (stating that “the owner of the fee of the Indian allotted lands holds the same in trust for the allottees”). In Mitchell I, the seminal case dealing with the fiduciary trust obligations owed by the government to federally recognized Indian tribes, the Supreme Court declined to find that the United States had a specific fiduciary obligation to manage timber resources on the allotted lands for the benefit of Indian-allottees, even when there was statutory language expressly recognizing that the United States held these lands in trust. 445 U.S. at 541-42, 100 S.Ct. 1349; see also Marceau v. Blackfeet Housing Auth., 455 F.3d 974, 983 (9th Cir.2006) (“In Mitchell I ... the Supreme Court found that the General Allotment Act, under which tribal land was taken into trust, created only a limited trust relationship between the United States and the tribal member as it related to timber management.”)- The Court noted that the General Allotment Act did not “unambiguously provide that the United States has undertaken full fiduciary responsibilities as to the management of allotted lands.” Mitchell I, 445 U.S. at 542, 100 S.Ct. 1349 (emphasis added). Furthermore, neither its legislative history nor any of the events surrounding the Act’s passage gave any indication that Congress intended “the Government to manage timber resources for the benefit of Indian allottees.” Id. at 545, 100 S.Ct. 1349. The Tribes argue that Mitchell I and Mitchell II apply only to claims for monetary damages. In other words, the Tribes contend that, when a party seeks monetary relief, Mitchell I and Mitchell II require a substantive source of law that establishes a specific fiduciary duty that can be fairly interpreted as mandating compensation for damages sustained as a result of a breach of the duty imposed. However, the Tribes contend that the government still maintains a general trust responsibility towards them and this responsibility exists for any federal action that relates to Indian tribes. Therefore, in their view — despite Ninth Circuit caselaw to the contrary — this general trust obligation cannot be satisfied simply through facial compliance with statutory and regulatory requirements. And, for § 702 claims for non-monetary damages, the general trust obligation imposes duties on the federal government even in the absence of a specific treaty, agreement, executive order, or statute. However, we are not in a position to overrule prior precedent. In Morongo Band of Mission Indians, 161 F.3d 569, the Mor-ongo Band of Mission Indians sought non-monetary relief under the APA. Id. at 573. Although we recognized that “the United States does owe a general trust responsibility to Indian tribes,” we stated that “unless there is a specific duty that has been placed on the government with respect to Indians, this responsibility is discharged by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes.” Id. at 574; see also N. Slope Borough v. Andrus, 642 F.2d 589, 612 (D.C.Cir.1980) (“Without an unambiguous provision by Congress that clearly outlines a federal trust responsibility, courts must appreciate that whatever fiduciary obligation otherwise exists, it is a limited one only.”). This is the law of the circuit, and this is the law we must follow. Here, the Tribes cite the Treaty of Fort Laramie, the Treaty with the Blackfeet, and the Grinnell Agreement as instances where the government has committed itself to specific fiduciary obligations in the management of water resources existing off of the Reservation. However, nowhere do we find the government “unambiguously agreeing” to manage off-Reservation resources for the benefit of the Tribes. See Mitchell I, 445 U.S. at 542, 100 S.Ct. 1349. Rather, at most, the treaties merely recognize a general or limited trust obligation to protect the Indians against depredations on Reservation lands: an obligation for which we have no way of measuring whether the government is in compliance, unless we look to other generally applicable statutes or regulations. Moreover, unlike Mitchell I and Mitchell II, where the tribes sought to impose a specific fiduciary obligation on the United States to manage timber located on tribal land, the Tribes here seek to impose a duty on the government to manage resources that exist off of the Reservation. Essentially, this amounts to a duty to regulate third-party use of non-Indian resources for the benefit of the Tribes. We are not aware of any circuit or Supreme Court authority that extends a specific Mitchell-like duty to non-tribal resources. Indeed, as we recently stated in Marcean, the government does not bear complete fiduciary responsibility unless it has “take[n] full control of a tribally-owned resource and managefd] it to the exclusion of the tribe.” 455 F.3d at 984 (emphasis added); see also id. at 984 (“[Fiduciary duties arise under Mitchell only where the federal government pervasively regulates a tribally-owned resource.”); Inter Tribal Council of Arizona, Inc., 51 F.3d at 203 (finding no Mitchell-like trust duty because “[t]he off-reservation school was not part of Indian lands, but was merely allocated by the BIA for use by the Tribes”). Therefore, because the tribes in Marceau failed to show how funding from the Department of Housing and Urban Development could be a tribal resource, the court held that no Mitchell fiduciary duty existed. Nothing in the treaties or the Grinnell Agreement gives any indication that Congress intended to impose such a duty on the government. For instance, in the Treaty with the Blackfeet, the United States agreed to “protect said Indians against depredations and other unlawful acts which white men residing in or passing through their country may commit.” Treaty with the Blackfeet, art. 7. This provision obligates the government to protect only against those depredations that occur on Indian land. While we recognize that the area of concern in this case was actually considered to be a part of the Tribes’ territory at the time the Treaty with the Blackfeet was ratified, it cannot be said that the United States agreed to manage that land for the benefit of the Tribes in perpetuity, even after the Tribes later relinquished their ownership in that land. Whatever duty exists at law today must be expressly set forth in statutes or treaties. Moreover, we believe that this language gives some indication as to what Congress intended when it ratified the Treaty of Fort Laramie. In article 2 of that treaty, the Indian nations “recognize[d] the right of the United States Government to establish roads, military and other posts, within their respective territories.” In article 3 of the treaty — upon which the Tribes rely — it reads: “In consideration of the rights and privileges acknowledged in the preceding article, the United States bind themselves to protect the aforesaid Indian nations against the commission of all depredations by the people of the said United States, after the ratification of this treaty.” Treaty of Fort Laramie, art. 3. When we read these two articles together it is clear that — as in the Treaty with the Blackfeet — the United States agreed to protect the Tribes from depredations that occurred only on tribal land. Although we recognize that activities occurring off of the Reservation may impact resources on the Reservation, the language in these treaties simply cannot be read to impose a specific fiduciary obligation on the government to manage non-tribal resources, such as the clean-up of nearby gold mine tailings, for the benefit of the Tribes. As the Supreme Court has stated, the purposes of this treaty were to “assure safe passage for settlers across the lands of various Indian Tribes; to compensate the Tribes for the loss of buffalo, other game animals, timber, and forage; to delineate tribal boundaries; to promote in-tertribal peace; and to establish a way of identifying Indians who committed depredations against non-Indians.” Montana, 450 U.S. at 557-58, 101 S.Ct. 1245; see also id. at 553, 101 S.Ct. 1245 (stating that the Treaty of Fort Laramie “chiefly represented a covenant among several tribes which recognized specific boundaries for their respective territories”). C Because we conclude that the Tribes cannot allege an independent common law cause of action for breach of trust, we turn now to their statutory claim. In addition to its breach of trust claim, the Tribes also sought summary judgment against the government for allegedly failing to prevent unnecessary and undue degradation of public lands in violation of FLPMA. The FLPMA is primarily procedural in nature, and it does not provide a private right of action. Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1111 (9th Cir.2005). Therefore, the Tribes sought relief under § 706(1) of the APA for failure to act. In Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), the Supreme Court stated that “[a failure to act claim] under [5 U.S.C.] § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Id. at 64, 124 S.Ct. 2373. As such, courts do not have the authority to “enter general orders compelling compliance with broad statutory mandates.” Id. at 66, 124 S.Ct. 2373. Even assuming that the government has a common law trust obligation that can be tied to its statutorily mandated duties under FLPMA, the Tribes have no basis for arguing that these obligations require the government to take discrete nondiscretionary actions. Therefore, the district court properly dismissed the Tribes’ “failure to act” claim for lack of jurisdiction. In so far as the Tribes relied on the APA to assert a claim for relief based on alleged violations of NHPA or NEPA, the district court correctly determined that it lacked jurisdiction. Neither statute provides a private right of action; therefore, the Tribes must rely on the APA to state a claim. See San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1098-99 (9th Cir.2005) (concluding that § 106 of the NHPA does not contain an implied right of action); Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 438 F.3d 937, 942 (9th Cir.2006) (recognizing that NEPA does not provide a private right of action). The only “final agency action” that occurred within the six-year statute of limitation period is the now-vacated 1996 ROD. The district court properly concluded that because the Tribes could not allege an injury based on the 1996 ROD, they do not have standing to challenge that decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (stating that standing — at a minimum— requires (1) injury in fact, (2) a causal connection between the injury alleged and the challenged action, and (3) a likelihood that the injury will be redressed by a favorable decision). Therefore, the district court did not have jurisdiction over these APA claims. TV Finally, the Tribes argue that the district court abused its discretion by granting the government’s motion for summary judgment based on a finding that remedies were not available at the conclusion of the liability phase and before the Tribes had an opportunity to present evidence pertaining to possible remedies. In its original order, the district court did state that “although damages have been bifurcated from liability, the lack of an effective remedy for any wrongs committed on the Tribes renders the exercise of judicial power superfluous, and the case moot.” However, in its subsequent order, the district court clarified its reasoning. It explained that it chose to reconsider its prior ruling regarding jurisdiction sua sponte, and, because the Tribes did not have standing to challenge the only “final agency action” that had occurred within the applicable statute of limitation, it lacked jurisdiction to consider the Tribes’ claims. It is now apparent that the district court did not grant the government’s motion for summary judgment based on a lack of any effective remedy. Rather, the district court granted the government’s motion because the Tribes’ claims were either barred by the statute of limitation, not based on a “final agency action,” or did not involve a controversy for which the Tribes had standing to pursue. A court has an obligation to consider its jurisdiction at every stage of the proceedings. See Scholastic Entm’t, Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 985 (9th Cir.2003). The parties had thoroughly briefed these issues when the district court initially considered the government’s motion to dismiss. Cf. id. (stating that the district court’s sua sponte dismissal for lack of jurisdiction did not deprive the appellant of due process because the parties had previously briefed the issue). Therefore, the district court did not abuse its discretion by reconsidering its jurisdiction at the conclusion of the liability phase. V Nothing within any of the statutes or treaties cited by the Tribes imposes a specific duty on the government to manage non-tribal resources for the benefit of the Tribes. Because the Tribes do not have a common law claim for breach of trust — i.e., one that can be raised independently of any applicable statutes or regulations — the Tribes are forced to rely on the APA for a private right of action. In applying the APA to the Tribes’ claims, the district court properly concluded that the Tribes did not have standing to challenge the vacated 1996 EIS or ROD. Moreover, the Tribes did not have a cognizable failure to act claim because the Tribes could not assert that the government has failed to take a discrete agency action that it is legally required to take. Therefore, the district court correctly dismissed the Tribes’ claims for lack of jurisdiction. AFFIRMED. .Cyanide heap leaching is a process used to recover microscopic gold particles typically found in low-grade ore deposits. The process includes drilling, blasting and crushing low-grade ore. The ore is then transferred to a leach pad, a carefully constructed series of flat-topped heaps that is lined with plastic and/or clay to try and prevent the loss of solution. The leach pad is also constructed in lifts, which are sequentially sprayed with a cyanide solution. Once processed, a “pregnant solution” containing the gold particles is collected, processed in tanks or treatment cells, and heated in a furnace to form impure gold/silver ore bars for further refinement. U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT. & MONT. DEP’T OF ENVTL QUALITY, FINAL ENVTL. IMPACT STATEMENT, ZORTMAN AND LANDUSKY MINES, RECLAMATION PLAN MODIFICATIONS AND MINE LIFE EXTENSIONS 1-10 (1996) [hereinafter 1996 FEIS]. . ARD occurs when rock containing sulfides is exposed to air and water during mining operations. The water becomes acidic, sometimes containing metals such as lead, arsenic, zinc, copper, and silver. Bacteria present in mine water can accelerate the rate of acid generation because of their ability to oxidize sulfide-bearing materials. 1996 FEIS, 1-9. . The Montana Department of Environmental Quality is the successor agency to the Montana Department of State Lands. . While this appeal was pending, the IBLA dismissed the Tribes' challenge to the 2001 SEIS and 2002 ROD as moot. . Specifically, the district court stated the following: [B]ecause the APA waives the government’s sovereign immunity, the APA establishes the necessary prerequisites to the court’s jurisdiction. ''[T]he terms of [the government's] consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Judicial review under § 702 is expressly conditioned, under § 704, on the existence of a 'final' agency action. Gros Ventre Tribe, 344 F.Supp.2d at 1226 (second and third alterations in original). .The government raised the statute of limitation defense in its original motion to dismiss. . Although we refer to this as an "alternative holding" we do not agree with the parties that this was dicta by the district court. The court was troubled by whether the Tribes-independent of any applicable statute — had a substantive right to enforce. See Gros Ventre Tribe, 344 F.Supp.2d at 1227 ("Nowhere do I find judicial support for the notion that the trust obligation can be enforced independently of some other source of law.”); id. ("Even if the Court assumes the truth of Plaintiffs’ allegation that those non-reservation activities have affected tribal property, the trust obligation is not elevated to an independent source of law.”). Because the trust obligation cannot be independently enforced, the Tribes need to rely on statutes as the source of their substantive rights. In this case, their statutorily based claims can only be brought under the APA, as the statutes contain no private right of action. See infra § III.C. . The out-of-circuit cases cited by the Tribes do not lend support to their argument that the "APA provisions have no relevance to non-statutory common law claims.” In Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C.Cir.1996), although the appellants argued that § 702 applied to their non-APA cause of action, the court never reached that issue. Instead, citing the ultra vires doctrine set out by the Supreme Court in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), the D.C. Circuit held that "there [wa]s no sovereign immunity to waive [because] it never attached in the first place.” Reich, 74 F.3d at 1329. The court reached a similar holding in Clark v. Library of Congress, 750 F.2d 89, 102 (D.C.Cir.1984) (determining that § 702 did not apply because the Library of Congress is not an "agency” as defined by the APA but nonetheless concluding that sovereign immunity did not bar the suit because “the challenged actions of the officials [we]re alleged to be unconstitutional or beyond statutory authority”). But see Cobell v. Babbitt, 30 F.Supp.2d 24, 33-35 (D.D.C.1998) (rejecting the argument that the plaintiffs must state a "final agency action” as defined by § 704 in order for the waiver of sovereign immunity under § 702 to apply). . Because it concluded that § 702's waiver of sovereign immunity is not conditioned on challenging an "agency action,” the court never reached the issue of whether the challenged actions were "agency actions” within the meaning of 5 U.S.C. § 551(13). The Presbyterian Church, 870 F.2d at 525 n. 8. . We are leaving open the question of whether the United States is required to take special consideration of tribal interests when complying with applicable statutes and regulations and when such an obligation may or may not arise. See Island Mountain Protectors, 144 IBLA at 185 (stating that, because the Tribes had treaties, "[the] BLM was required to consult with the Tribes and to identify, protect, and conserve trust resources, trust assets, and Tribal health and safety” in its administration of the NEPA and other environmental laws). . Specifically, the Tribes alleged that the government's failure to comply with NEPA, 42 U.S.C. §§ 4321-4347, and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470-470x-6, constituted unnecessary and undue degradation. . The "general six-year statute of limitations for civil actions brought against the United states, see 28 U.S.C. § 2401(a), applies to actions for judicial review brought pursuant to the [APA].'' Wind River Mining Corp. v. United States, 946 F.2d 710, 712-13 (9th Cir.1991). .The Tribes do not challenge the 2001 SEIS or 2002 ROD.

Town of Portsmouth v. Lewis

HOWARD, Chief Judge. The Town of Portsmouth, Rhode Island challenges a district court order dismissing its claims against federal and state transportation agencies and officers for collecting tolls on the Sakonnet River Bridge in violation of the anti-tolling provision of the Federal-Aid Highway Act (FAHA), 23 U.S.C. § 301, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. After the Town filed this suit in federal court, the Rhode Island legislature repealed the tolls. Consequently, the district court denied on mootness grounds the Town’s requests for injunction, declaratory judgment, and monetary relief, and dismissed the Town’s complaint. We agree with the district court that this legislative repeal rendered moot the Town’s claims for injunctive and declaratory relief. We also conclude that the Town did not sufficiently allege or preserve a restitution claim. Even were we to excuse this insufficiency, however, the restitution claim would still fail because the Town lacks a right of action. Accordingly, we affirm the district court’s dismissal of the complaint. I. Background Since 1956, the Sakonnet River Bridge has spanned the Sakonnet River, connecting the communities of Portsmouth and Tiverton, Rhode Island. In 1999, the Rhode Island Department of Transportation (the state DOT) and the Federal Highway Administration (the FHWA) considered options for restoring or replacing the aging bridge. In light of opposition to bridge tolls by the public and Rhode Island’s governor, the state DOT did not include tolls as a means of financing the bridge in its Final Environmental Impact Statement, and the FHWA affirmatively stated in its Record of Decision that tolls were not being considered. Eventually, federal funds were approved, and a new toll-free bridge opened in September 2012. Later that year, however, the Rhode Island General Assembly enacted legislation allowing the Rhode Island Turnpike and Bridge Authority (the Authority) to impose tolls on the bridge. The following year, the state DOT issued a reevaluation of its earlier Environmental Impact Statement to account for the new tolls. The FHWA also issued a Revised Record of Decision approving the tolls. In April 2013, the Town filed a two-count complaint against the state and federal agencies (the state DOT, the Authority, and the FHWA) in federal district court, seeking injunctive and declaratory relief, attorney fees, and unspecified general relief. One count alleged that the tolls violated the anti-tolling provision of the Federal-Aid Highway Act, 23 U.S.C. § 301, which generally prohibits tolls on federally funded bridges. The other count claimed that the defendants had failed to comply with NEPA’s procedures in evaluating the impact of the tolls. In June 2013, the district court heard and denied the Town’s motion for a preliminary injunction. In August, the Authority began to collect tolls on the bridge. In November, the Town filed a motion for summary judgment on its anti-tolling claim. Before the court decided the motion, however, the Rhode Island General Assembly enacted a prohibition on toll collection after June 2014. In July 2014, the Town filed a motion seeking restitution of previously collected tolls. In its motion, the Town stated that its restitution claim was contingent upon the district court granting its earlier summary judgment motion. The defendants successfully moved to dismiss all claims as having been rendered moot by the new statute. See Town of Portsmouth v. Lewis, 62 F.Supp.3d 233 (D.R.I.2014). This timely appeal followed. II. Mootness Because resolution of the mootness issue may affect our jurisdiction, we decide it before reaching the merits. Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops (ACLUM), 705 F.3d 44, 52 (1st Cir.2013). “[A]n actual controversy must exist at all stages of the review, not merely at the time the complaint is filed.” Id. “[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Another way of putting this is that a case is moot when the court cannot give any effectual relief to the potentially prevailing party.” Id. (internal quotation marks and citations omitted). Absent factual findings that bear on the issue, we review the district court’s dismissal for mootness de novo. See id. A. Declaratory and Injunctive Relief Inescapably, the Town’s claim for injunctive relief is moot because the state has repealed the tolls, so there is no ongoing conduct to enjoin. The Town tries to avoid this conclusion by arguing that what it seeks to enjoin is possible future tolling pursuant to the FHWA’s approval of tolling in its 2013 Revised Record of Decision. But we generally consider the law as it exists at the time of our review, see Shee-han v. City of Gloucester, 321 F.3d 21, 24 (1st Cir.2003) (quoting Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711-12, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)), not as it might speculatively exist in the future. Thus, even if we were permitted to issue an advisory opinion on hypothetical conduct, which we are not, we would decline to do so. Nothing prevents the Town from seeking an injunction if and when the state should begin to collect tolls anew. The Town’s claim for declaratory relief fails for similar reasons. In order for a claim for declaratory relief to survive a mootness challenge, the Town must “show that there is a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” ACLUM, 705 F.3d at 54 (internal formatting omitted). Because the state legislature has prohibited toll collection, “[t]he controversy here is at this point neither immediate nor real.” Id. As with the claim for injunctive relief, we decline to issue a declaration about the legality of hypothetical tolls. In an attempt to revive these moot claims, the Town relies on the “voluntary cessation” exception. This exception can apply when a “defendant voluntarily] ceases the challenged practice” in order to moot the plaintiffs case, id., and there exists “a reasonable expectation that the challenged conduct will be repeated following dismissal of the case,” id. at 56. The exception’s purpose is to deter a “manipulative litigant [from] immunizing itself from suit indefinitely, altering its behavior long enough to secure a dismissal and then reinstating it immediately after.” Id. at 54-55. In light of this purpose, the exception ordinarily does not apply where the voluntary cessation occurred for reasons unrelated to the litigation. See id. at 55. Here, there is no basis upon which to conclude that the state legislature repealed the tolls in order to make the present litigation moot, so the exception does not apply. Generally, we presume that a state legislature enacts laws in good faith, see, e.g., Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995), not with the improper motive of mooting pending litigation. See Lamar Adver. of Penn, LLC v. Town of Orchard Park, N.Y., 356 F.3d 365, 376 (2d Cir.2004); 13C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3533.6 n.41 (3d ed.2008 & Supp.2015) (collecting cases). Indeed, we note that although the Supreme Court has not hesitated to invoke the voluntary cessation exception when considering the conduct of private, municipal, and administrative defendants, it has not applied the exception to state legislatures. Rather, it has consistently and summarily held that a new state statute moots a case, without engaging in further inquiry. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 582-84, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989); Kremens v. Bartley, 431 U.S. 119, 129, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977); Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969); Berry v. Davis, 242 U.S. 468, 470, 37 S.Ct. 208, 61 L.Ed. 441 (1917). Undaunted, the Town argues that the exception applies here because the state’s governor has proposed new tolls and the state senate passed a bill reauthorizing tolls, S. 997 Substitute A, 2015 Reg. Sess. (R.I. 2015). This argument also fails, however, because even were it theoretically possible to overcome the presumption that the legislature acted in good faith, a proposition that we doubt, the factual record is insufficient to that task. In the first place, the fact that the senate and governor have already acted in favor of new tolls — prior to the resolution of this appeal — suggests that their actions are motivated by something other than this litigation. Moreover, the capital infrastructure for collecting the tolls has been dismantled, hardly the behavior of a defendant that intended to return to its old ways upon dismissal of a case. In short, we have little cause to believe that the legislature repealed the tolls in order to immunize its actions from judicial review, and the voluntary cessation exception does not apply to save the mooted claims. B. Restitution Strictly speaking, the Town’s restitution claim may not be moot, unlike its claims for injunctive or declaratory relief. It is settled law that a claim for monetary relief, including restitution, may survive events that moot injunctive or declaratory relief. See N.L.R.B. v. Me. Caterers, Inc., 732 F.2d 689, 691 (1st Cir.1984) (holding that claim for cost reimbursement and making employees whole is not moot, despite the defendant having ceased the challenged practice); see also Demelo v. U.S. Bank Nat’l Ass’n, 727 F.3d 117, 124-25 (1st Cir.2013) (claim for money damages survives despite mootness of other relief)Here, notwithstanding the statute repealing toll collection, the Town seemingly retains a cognizable interest in a refund of the tolls that it alleges were illegally collected. The district court has the power to order a refund, and the restitution claim would therefore appear to remain viable for purposes of Article III jurisdiction. The defendants suggest that the restitution claim is nevertheless moot because, to the extent that the claim was adequately alleged, the Town explicitly acknowledged in the district court that restitution was dependent on the viability of the injunctive and declaratory claims. As we have stated, however, for jurisdictional purposes, the Town would seem to have a sufficiently continuing interest in the restitution of the illegally collected tolls. A defect in pleading does not necessarily affect our power to hear the case. Federal courts have jurisdiction so long as a party is arguably entitled to relief, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), and a party’s error in requesting that relief does not affect a court’s jurisdiction, Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists & Aerospace Workers, 390 U.S. 557, 561, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968). More generally, a slim chance of success on the merits does not deprive a court of its jurisdiction unless the party’s claim is “wholly insubstantial and frivolous.” Shapiro v. McManus, — U.S. —, 136 S.Ct. 450, 455, 193 L.Ed.2d 279 (2015). And a federal court possessing jurisdiction has a “virtually unflagging obligation” to exercise it to reach the merits. Mata v. Lynch, — U.S.—, 135 S.Ct. 2150, 2156, 192 L.Ed.2d 225 (2015). III. Merits While an adequately pled claim for restitution would not be moot, here the restitution claim nevertheless fails because the Town did not sufficiently allege the claim in the district court. And, even were the Town to have done so, the claim would fail because the Town lacks a right of action. A. Sufficiency of the Town’s Allegations The defendants argue that the restitution claim is barred either because the Town failed to specifically seek restitution in its complaint, or because the Town conditioned its motion for restitution on the moot claims for injunctive and declaratory relief. Regardless of the merit of the defendants’ first argument, we agree with their second. A plaintiffs failure to seek a remedy in its complaint does not necessarily forgo that remedy. Under Federal Rule of Civil Procedure 54(c), every non-default judgment “should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.” Pursuant to this Rule, a district court may grant relief not sought in the complaint. See, e.g., House of Flavors, Inc. v. TFG Mich., L.P., 643 F.3d 35, 39 (1st Cir.2011). Likewise, a district court need not dismiss a cause of action upon which relief is plausible, even if that relief was not sought in the complaint. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978); Bontkowski v. Smith, 305 F.3d 757, 762 (7th Cir.2002) (Posner, J.); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1255 n.7 (3d ed.2004 & Supp.2015). That does not of course mean that there are no limits to the liberality of Rule 54(c). There are. For example, a district court need not consider remedies based on a cause of action not pled in the complaint. See Governor Wentwotth Reg'l Sch. Dist. v. Hendrickson, 201 Fed.Appx. 7, 9 (1st Cir.2006) (per curiam). A court may also find that a party’s failure to request relief so prejudiced the other party that granting relief would be unjust. See United States v. Marin, 651 F.2d 24, 31 (1st Cir.1981). And we need not consider a remedy first raised on appeal. See Thomas R.W. v. Mass. Dep’t of Educ., 130 F.3d 477, 480 (1st Cir.1997). Here, Rule 54(c) could apply. Although the Town did not specifically seek the remedy of restitution in its complaint, there is no evidence that this prejudiced the defendants. In addition, the Town made a general prayer for relief and moved for restitution in the district court based on the causes of action in its complaint. That being said, the Town nevertheless has foregone any entitlement to restitution because it conditioned the restitution claim on the now moot claims for injunctive and declaratory relief. Even in its principal brief on appeal, the Town suggests that the restitution claim stands or falls with the injunctive and declaratory claims. See Town’s Br. at 23. As we have explained, however, the district court correctly ruled that it no longer had jurisdiction over those claims. The Town reverses course in its reply brief, arguing for the first time that its belated request for restitution breathes life into its otherwise moribund declaratory claim. The Town asserts that a declaration (that the tolls were illegally collected) acts as a “predicate” to restitution and that therefore both claims remain alive. Whatever merit this argument may have in the abstract, see Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir.2011); Nelson v. Miller, 570 F.3d 868, 883 (7th Cir.2009), we do not ordinarily consider arguments raised for the first time in an appellant’s reply brief, Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir.1992). The Town has thus waived this argument, and its restitution claim is accordingly foreclosed. B. Private Right of Action In any event, even were we to excuse the Town’s waiver, we would deny relief for lack of a private right of action. The Town argues that it may proceed under either NEPA or the anti-tolling provision, 23 U.S.C. § 301, but neither of these statutes provide it with a right of action. We need not linger over the argument based on NEPA. We have expressly held that NEPA provides no private right of action at all. Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv., 674 F.3d 97, 102 (1st Cir.2012). A majority of the other circuits that have decided this issue agree. See, e.g., Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 72 (D.C.Cir.2011); Sw. Williamson Cty. Cmty. Ass’n, Inc. v. Slater, 173 F.3d 1033, 1035 (6th Cir.1999). But see S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 331 (4th Cir.2008). Turning to the anti-tolling provision, that statute does not explicitly provide for a private right of action. We think that it does not imply a right of action either. Whether a statute implies a right of action is a question of statutory interpretation, and our review is de novo. Bonano v. E. Caribbean Airline Corp., 365 F.3d 81, 83 (1st Cir.2004). In determining whether a federal funding statute creates a right of action, the key inquiry is whether the statute is “phrased in terms of the persons benefited” “with an unmistakable focus on the benefited class.” Gonzaga Univ. v. Doe, 536 U.S. 273, 284, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). In other words, “for a statute to create private rights of action, ‘its text must be phrased’ in terms of the class protected.” Bonano, 365 F.3d at 85 (quoting Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268). We also consider whether the statute is worded in terms of government policy and practice or individual entitlements, and whether Congress provided alternate mechanisms for enforcing the statute. See Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 73 (1st Cir.2005) (citing Gonzaga, 536 U.S. at 287-90,122 S.Ct. 2268). All of these factors weigh against finding an implied right of action here. The anti-tolling provision provides that [e]xcept as provided in section 129 of this title with respect to certain toll bridges and toll tunnels, all highways constructed under the provisions of this title shall be free from tolls of all kinds. 28 U.S.C. § 301. Beginning with the first factor, the statute is phrased in terms of government activities, not protections accorded to a benefited class. That is, it does not say (for example) that “no tolls shall be collected from any motorist who uses highways constructed under the provisions of this title,” but rather requires the government to ensure that the highways that it constructs are toll-free. See, e.g., Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268 (comparing “individually focused terminology of Titles VI and IX (‘No person ... shall ... be subjected to discrimination’)” with the lack of rights-creating language in the statute at bar, which directed that “ ‘[n]o funds shall be made available’ to any ‘educational agency or institution’ which has a prohibited ‘policy or practice’ ”). Similarly, the statute is worded in the language of government highway policy and practice, not the entitlements of motorists who use toll bridges. It sets forth a policy that federally funded highways must, with some exceptions, be toll-free highways. That policy has an “aggregate focus” that benefits the highway-using public at large. Id. at 288, 122 S.Ct. 2268 (internal quotation marks omitted). It does not express “concern[ ] with whether the needs of any particular person have been satisfied.” Id. (internal quotation marks omitted). Finally, the Act grants the FHWA enforcement authority through its discretion to approve federal funds. See, e.g., 23 U.S.C. §§ 105(a), 106(a), 109, 116(d); see also e.g., City of Cleveland v. Ohio, 508 F.3d 827, 842 (6th Cir.2007) (FHWA has discretion to withhold federal funds where construction contract does not comply with its standards). FHWA’s ample authority to enforce the Act “plainly exhibits Congress’s preference for public enforcement.” Bonano, 365 F.3d at 85. Thus the anti-tolling provision does not provide the Town with a private right of action. In so concluding, we join other circuits that have construed various provisions of the Federal-Aid Highway Act not to imply a private right of action. See Endsley v. City of Chi., 230 F.3d 276, 279 (7th Cir.2000) (23 U.S.C. § 129(a)(3)); Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186 (4th Cir.1999) (23 U.S.C. § 128); Allandale Neighborhood Ass’n v. Austin Transp. Study Policy Advisory Comm., 840 F.2d 258, 267 (5th Cir.1988) (23 U.S.C. § 134). In fact, we are not aware of any court that has found an implied right of action in the Act. See KM Enters., Inc. v. McDonald, No. 11-CV-5098, 2012 WL 4472010, at *17 (E.D.N.Y. Sept. 25, 2012), aff'd, 518 Fed. Appx. 12 (2d Cir.2013) (collecting cases). We address one additional loose end. To the extent that the Town seeks review in this litigation of its NEPA and anti-tolling claims through the federal Administrative Procedure Act (APA), 5 U.S.C. § 702, this course is unavailable for two reasons. First, the Town’s complaint did not plead an APA claim in a separate count or as a cause of action, but only asserted jurisdiction under the APA. Even where the APA applies, however, it does not confer jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Second, even assuming that the Town properly pled an APA action, the APA only provides for review of federal agency action (and then only under some circumstances). See 5 U.S.C. § 701. It does not provide a right of action against a state agency. See Johnson v. Rodriguez, 943 F.2d 104, 109 n. 5 (1st Cir.1991). But the Town’s claim for restitution lies solely against the defendant that collected the tolls: the Authority. The Authority is a state agency, so the APA does not provide a right of action against it. IV. Conclusion For the foregoing reasons, the judgment of the district court is AFFIRMED. . Moreover, it is not obvious to us that the legislative repeal can be attributed to the defendants’ voluntary actions at all. As we have stated in an analogous context, "new legislation is generally considered an intervening, independent event and not voluntary action, particularly when the governmental entity taking the appeal, as here, is not part of the legislative branch.” Diffenderfer v. Gomez-Colon, 587 F.3d 445, 452 (1st Cir.2009) (holding that vacatur of district court decision was not proper where case was mooted by intervening legislative act). . We note, moreover, that this proposed legislation does not specifically grant authority to collect tolls on the Sakonnet River Bridge. Rather, it reflects an initiative by the governor to secure generalized authority for the imposition of truck tolls on various highways within the state (none of which are specified in the legislation). In all events, the bill failed to secure passage in the House, and the legislative session expired. . The parties dispute whether the court can order the Authority to refund all of the tolls that it collected, or only those that it collected from the Town itself. We do not reach this issue, because the Town has sufficiently shown that it has paid for at least one toll, and that payment, however small, is sufficient to avoid mootness. See Chafin v. Chafin,-U.S.-, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013). . The Town’s request for attorney fees is dependent on its other claims, so it fails as well. . The Town also suggests that a right of action lies under 42 U.S.C. § 1983, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), or nonstatutory review, see R.I. Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31, 41-42 (1st Cir.2002). But these avenues involve remedies, not rights, and they depend upon the existence of an enforceable federal right in the first instance, which does not exist here. . The Ninth Circuit held that § 301 is enforceable through 42 U.S.C. § 1983, although it did not reach the question of whether § 301 implies a right of action. Clallam Cty. v. Dep’t of Transp., 849 F.2d 424, 427-29 (9th Cir.1988). In any event, this holding appears to have been abrogated by the Supreme Court’s decision in Gonzaga. Clallam had held that § 1983 created an express right of action to enforce § 301, see 849 F.2d at 427-29, but Gonzaga held that § 1983 can only provide a remedy, not a right, see 536 U.S. at 283, 122 S.Ct. 2268.

NL Industries, Inc. v. Kaplan

WALLACE, Circuit Judge: NL Industries, Inc. (NL Industries) appeals from the district court’s denial of its motion to dismiss Kaplan’s action for failure to state a claim upon which relief can be granted. This appeal concerns the pleading requirements of a private cause of action under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCHA), 42 U.S.C. § 9607(a). We have jurisdiction under 28 U.S.C. § 1292(b), and we affirm. I Kaplan’s complaint alleges that Kaplan is the court-appointed receiver for 2222 Ltd. (the partnership), a California limited partnership that owns a parcel of real property in San Francisco (the parcel). The partnership acquired the parcel in February 1980 for the purpose of developing a condominium project. It later learned that the parcel was severely contaminated with deposits of various hazardous substances. State and local officials, acting pursuant to California hazardous waste control and water quality laws and other state and local statutes, regulations, and ordinances, have required Kaplan, as receiver for the partnership, to expend approximately $1,200,-000 in detecting, identifying, controlling, and disposing of these hazardous substances. From approximately 1933 to 1971, NL Industries owned the parcel and operated on it facilities for the production of paint, varnish, shellac, lacquer, and related products. From before 1900 until 1933, two corporations owned, controlled, and directed by NL Industries owned the parcel and conducted similar production operations. During these two periods, NL Industries and the two corporations owned by it deposited the hazardous substances that contaminate the parcel. Kaplan sued NL Industries in district court under CERCLA § 107(a), 42 U.S.C. § 9607(a), to recover the partnership’s costs of responding to the hazardous substances. The district court issued an order denying NL Industries’ motion to dismiss for failure to state a claim upon which relief could be granted. The district court certified its order for immediate appeal, and we granted permission to appeal. See 28 U.S.C. § 1292(b). II We review de novo the district court’s denial of NL Industries’ motion to dismiss for failure to state a claim upon which relief can be granted. See Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir.1984). We must accept all material allegations in the complaint as true and construe them in the light most favorable to Kaplan. North Star International v. Arizona Corporation Commission, 720 F.2d 578, 580 (9th Cir.1983). Dismissal is warranted only if it appears to a certainty that Kaplan would be entitled to no relief under any state of facts that could be proved. Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982). Section 107(a) of CERCLA states in part: Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, ... shall be liable for— (A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan; [and] (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan____ 42 U.S.C. § 9607(a)(2)(A), (B). Section 107(a)(2)(B) expressly creates a private cause of action for damages. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 890 (9th Cir.1986) (Wickland). Pursuant to this section, Kaplan has alleged that NL Industries owned the parcel at the time that hazardous substances were deposited on it, and that Kaplan has incurred “necessary costs of response ... consistent with the national contingency plan.” NL Industries offers three arguments in support of its motion to dismiss. First, it contends that a private party cannot incur response costs in a manner “consistent with the national contingency plan” unless it acts pursuant to a cleanup program approved by a “lead agency,” as defined in 40 C.F.R. § 300.6 (1985). We agree with NL Industries that we should look to the national contingency plan that was in effect at the time that Kaplan allegedly incurred response costs, see 40 C.F.R. §§ 300.1-.86 (1985), rather than to the current version, see 50 Fed.Reg. 47,950-79 (1985). We have, however, already addressed and rejected the precise argument that NL Industries makes, see Wickland, 792 F.2d at 891-92, and need not consider it further. Second, NL Industries argues that Kaplan’s response costs cannot be deemed “necessary” since no lead agency approved the cleanup. NL Industries roots this argument entirely in provisions of the national contingency plan. See, e.g., 40 C.F.R. § 300.64(a), (c) (1985). It therefore is simply a relabeling of NL Industries’ first argument, and we reject it on the same basis. Kaplan has alleged that he was required by state and local agencies to incur the response costs that he seeks to recover from NL Industries. We find this allegation sufficient to support a claim that the incurrence of response costs was “necessary” under section 107(a)(2)(B) of CERCLA. We express no view as to whether response costs not required by state and local agencies may also be “necessary.” Third, NL Industries contends that Kaplan did not incur response costs “consistent with the national contingency plan” since it failed to report promptly the existence of a release of hazardous substances to the National Response Center, as required by 40 C.F.R. § 300.63(b) (1985). We have held, however, that consistency with the national contingency plan does not necessitate strict compliance with its provisions. Wickland, 792 F.2d at 891-92. The apparent purpose of the requirement that releases be reported promptly to the National Response Center is to facilitate the development by a lead agency of a coordinated governmental response. Since we have held in Wickland that private parties may incur costs consistent with the national contingency plan without acting pursuant to a cleanup program approved by a lead agency, it would make little sense for us to bar private party recovery under section 107(a) of CERCLA on the basis of failure to comply with 40 C.F.R. § 300.68(b) (1985). Therefore, we hold that noncompliance with this section does not alone render the incurrence of response costs inconsistent with the national contingency plan. AFFIRMED.

J.V. Peters & Co. v. Administrator, Environmental Protection Agency

BOYCE F. MARTIN, Jr., Circuit Judge. This case presents the question whether there is a private cause of action to challenge governmental action taken under section 104(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (the Superfund legislation), 42 U.S.C. § 9604(a), prior to a governmental suit for liability under section 107(a) of the Act, 42 U.S.C. § 9607(a). The district court held that there was such a cause of action, but that plaintiffs’ conclusory allegations failed to state a cognizable claim. J.V. Peters & Co. v. Ruckelshaus, 584 F.Supp. 1005 (N.D.Ohio 1984). We affirm the judgment but not the reasoning of the district court. J.V. Peters and Company, Inc., was an Ohio corporation engaged in the business of storing and recycling industrial waste products at a site in Middlefield Township, Geauga County, Ohio. The site contained, among other things, acetone, ketones, toluene, and benzene, all inflammable, carcinogenic, or both, and, as plaintiffs concede, all are hazardous substances as defined in section 101(14) of the Act, 42 U.S.C. § 9601(14). The chemicals were stored in some 800 metal drums, many of them leaking, some inside an unsecured building and others outside. Cattle grazed within a few feet of the east side of the site, and corn was grown immediately to the west of the property line; children walked past the site on their way to a school less than IV2 miles away. After the Ohio Environmental Protection Agency found that state court proceedings were unsuccessful in getting the site cleaned up, it contacted the United States Environmental Protection Agency (EPA). The EPA was unable to negotiate an acceptable cleanup plan with J.V. Peters and determined to take action under section-104(a)(1) of the Act, 42 U.S.C. § 9604(a)(1). J.V. Peters and related parties then brought this action to prevent the EPA from taking action, claiming that they would automatically be made liable for cleanup costs under section 107(a) of the Act, 42 U.S.C. § 9607(a), without a hearing and without an adequate remedy at law. The district court dismissed the case from the bench on November 18, 1983, and the EPA immediately took removal and remedial action to clean up the site. The court issued a written opinion on February 17,1984, and plaintiffs appealed. If plaintiffs have a cognizable claim at this point, it must be under the Administrative Procedures Act, which states that “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. The agency determination to take response action under section 104(a) of the Act, 42 U.S.C. § 9604(a), is not explicitly made reviewable by statute, nor do we believe that such a cause of action should be inferred from the Act. To the contrary, explicit causes of action are allowed in sections 106 and 107, 42 U.S.C. §§ 9606, 9607, but none is provided for in section 104. Because the Act’s primary purpose is “the prompt cleanup of hazardous waste sites,” Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985), allowance of a cause of action prior to a response action would debilitate the central function of the Act. Lone Pine Steering Committee v. EPA, 600 F.Supp. 1487, 1495 (D.N.J.1985); accord Aminoil, Inc. v. EPA, 599 F.Supp. 69, 71 (C.D.Cal.1984). Additionally, Congress is now considering legislation to provide explicitly that judicial review of response actions is unavailable, S. 51, 99th Cong., 1st Sess. (1985), and the Senate Report indicates this as a clarification of existing law: Pre-enforcement review Response actions or orders under section 104 and orders under section 106 may be subject to judicial review at the time the government seeks cost recovery or acts to enforce the order and collect penalties for noncompliance. This amendment clarifies and confirms that response actions and orders are not subject to judicial review prior to that time. As several courts have noted, the scheme and purposes of CERCLA would be disrupted by affording judicial review of orders or response actions prior to commencement of a government enforcement or cost recovery action. See, e.g., Lone Pine Steering Committee v. EPA, 600 F.Supp. 1487 (D.N.J.1985). These cases correctly interpret CERCLA with regard to the unavailability of pre-enforcement review. This amendment is to expressly recognize that pre-enforcement review would be a significant obstacle to the implementation of response actions and the use of administrative orders. Pre-enforcement review would lead to considerable delay in providing cleanups, would increase response costs, and would discourage settlements and voluntary cleanups. S.Rep. No. 11, 99th Cong., 1st Sess. 58 (1985). Nor do we believe that a response action is final agency action for which there is no other adequate remedy in a court. In general, agency action is final for purposes of review if it is a definitive ruling or regulation, it has legal force or practical effect upon the plaintiff’s daily business, or immediate judicial review would serve either efficiency or enforcement of the statute. Federal Trade Commission v. Standard Oil Co., 449 U.S. 232, 239-43, 101 S.Ct. 488, 493-95, 66 L.Ed.2d 416 (1980). Plaintiffs do not argue that immediate judicial review would serve either efficiency or enforcement of the Act, but they do argue that the strict liability provisions of section 107(a) of the Act make a response action a definitive ruling with legal force. Section 107(a) provides: (a) Covered persons; scope Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (1) the owner and operator of a vessel (otherwise subject to the jurisdiction of the United States) or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for— (A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such .injury, destruction, or loss resulting from such a release. 42 U.S.C. § 9607(a). Subsection (b) sets forth the defenses of acts of God, acts of war, and acts or omissions of third parties. It is true that section 107 imposes a form of strict liability. Bulk Distribution Centers v. Monsanto Co., 589 F.Supp. 1437, 1443 n. 15 (S.D.Fla.1984); United States v. Northeastern Pharmaceutical & Chemical Co., 579 F.Supp. 823, 843-44 (W.D.Mo.1984); United States v. Chem-Dyne Corp., 572 F.Supp. 802, 805 (S.D.Ohio 1983); United States v. Price, 577 F.Supp. 1103, 1113-14 (D.N.J.1983); City of Philadelphia v. Stepan Chemical Co., 544 F.Supp. 1135, 1140 n. 4 (E.D.Pa.1982). The government’s right to recover, however, will be limited by the requirement that costs be “not inconsistent with the national contingency plan.” Cf. Bulk Distribution Centers, 589 F.Supp. at 1444 (holding that private claimants must meet “more rigorous evidentiary burdens” of 42 U.S.C. § 9607(a)(4)(B) before recovery of costs). The national contingency plan is prescribed in section 105 of the Act, 42 U.S.C. § 9605, and set out at 40 C.F.R. pt. 300. The plan meets the plaintiffs’ major concerns by requiring that remedial action measures be cost-effective, Act § 105(7), 42 U.S.C. § 9605(7), and precluding response action if a responsible party will take proper removal and remedial action, Act § 104(a)(1)(A), 42 U.S.C. § 9604(a)(1)(A); 40 C.F.R. § 300.-61(b). As defendants concede, when EPA files an action to recover cleanup costs, the defendant may contest whether EPA acted inconsistently with the NCP. J.V. Peters will be able to assert such a claim, as well as contest liability, if EPA sues the company under Section 107. The possibility of failing to recoup expenditures in a cost-recovery action operates as an effective constraint upon EPA's decision to itself undertake a cleanup under Section 104____ Brief for Appellees at 25; see also Industrial Park Development Co. v. EPA, 604 F.Supp. 1136, 1144 (E.D.Pa.1985) (holding that EPA will not be allowed to impose unjustified costs in recovery action). The section 107 action will thus form an adequate remedy in a court, so the EPA decision to take a response action cannot be challenged under 5 U.S.C. § 704. United States v. United Nuclear Corp., 610 F.Supp. 527 (D.N.M. 1985); Lone Pine Steering Committee, 600 F.Supp. at 1499 n. 2. Plaintiffs also argue that the requirements of due process compel a judicial determination of propriety prior to a response action. They can suffer no deprivation until the adjudication of the section 107 litigation, however, and they will have full opportunity to argue liability at that time. In view of this resolution it is unnecessary to consider whether the doctrines of ripeness and standing prevent plaintiffs’ cause of action. The judgment dismissing the action is affirmed.

Lyondell Chemical Co. v. Occidental Chemical Corp.

PATRICK E. HIGGINBOTHAM, Circuit Judge: Both sides to this appeal concede liability for environmental cleanup at a hazardous waste dump near the Houston Ship Channel but fault the district court’s equitable allocation of the associated costs. More specifically, this appeal concerns the reliability of expert witness testimony under Daubert, the admission of alleged settlement communications into evidence, the district court’s choice of methodologies in allocating costs, and some of the court’s factual findings. We find error in the admission of settlement communications only and remand to the district court for further proceedings. I During the late 1960s and early 1970s, a disposal company named French Limited hauled hazardous waste from petrochemical facilities on the Houston Ship Channel. It transported this waste to a dumping site along U.S. Route 90 (“Highway 90”). Because that site was occasionally busy or otherwise unavailable, French Limited also took some waste to a second location known as Turtle Bayou. In the early 1980s, the EPA and the State of Texas began an investigation into contamination at Turtle Bayou. The investigation centered on waste generated by several French Limited customers, including Lyondell Chemical Co. and the two remaining parties to this appeal, El Paso Tennessee Pipeline Co. and Occidental Chemical Co. A The EPA eventually issued an administrative order, demanding that one group of French Limited customers — including El Paso and Lyondell,—remediate contamination found at Turtle Bayou. Several of these customers signaled that they would comply with the order and began meeting regularly to fairly divide responsibility for the waste and associated cleanup costs. The group dissolved before finalizing a plan. The United States responded by suing Lyondell in 1994, seeking to compel the company to clean up Turtle Bayou and to reimburse the government for its investigation and response costs under sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). CERCLA is Congress’s answer to the “serious environmental and health risks posed by industrial pollution” and “was designed to promote the ‘timely cleanup of hazardous waste sites’ and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” CERCLA imposes strict liability for environmental contamination upon four broad classes of potentially responsible parties, one of which includes entities that “arrange! ] for disposal of ... hazardous substances.” “Once an entity is identified as a [potentially responsible party], it may be compelled to clean up a contaminated area or reimburse the Government for its past and future response costs.” Joint and several liability may be imposed, unless a party can prove that the harm it caused is divisible from the harm others caused. Lyondell entered into a consent decree with the United States in 1998, requiring it “to address the contamination and perform all requested response actions at four areas of the Site.” Although the “Site” was “originally defined to encompass approximately 500 acres,” it was “redefined” by reference to the scope of contamination. It now “includes the areal extent of contamination and all suitable property in very close proximity to the contamination necessary for the implementation of [Lyondell’s remediation plan].” That property was “designated” as the four areas to be remediated by Lyondell (the West Road area, the Main Waste area, the Office Trailer area, and the Power Easement area — collectively, the “Lyondell Remediation Areas”), and two other plots: the “Bayou Disposal Area” and “Country Road 126 (formerly Frontier Park Road).” Country Road 126 is an east-west road running through (or next to) the five other areas. In exchange for cleaning up the Lyon-dell Remediation Areas, Lyondell received three guarantees: First, the United States agreed to forego claims against Lyondell for investigation and remediation costs it had already incurred at the Site. Second, the United States agreed that (subject to certain exceptions) it would not pursue future claims against Lyondell for “matters addressed in the settlement,” including “the entire Site and matters related to the Site.” And third, because it had settled with the government, Lyondell would not have to contribute to any subsequent remediation at the Site paid for by private parties. B During the course of its remediation efforts, Lyondell discovered additional contamination at Turtle Bayou 1,800 feet west of Lyondell’s West Road Area. This plot of newly-discovered contamination became aptly known as the Far West Road Area. The United States filed a second CERCLA action in 2002, this time against El Paso. It sought to place the costs of remediation onto El Paso for two distinct areas: the Far West Road Area and a second area previously known to the government — the Bayou Disposal Area — for which Lyondell enjoyed contribution protection. Together, we will refer to these two plots as the “El Paso Remediation Areas.” The government also sought to hold the company accountable for certain costs associated with both the Lyondell Remediation Areas and the El Paso Remediation Areas, specifically investigation and remediation costs already incurred by the United States, and any such costs incurred in the future, plus interest. C The district court consolidated the Lyondell and El Paso CERCLA actions. Following Lyondell’s lead, El Paso eventually settled with the United States, agreeing to remediate the El Paso Remediation Areas and to reimburse the United States for much of its past costs. To avoid paying for all remediation costs, however, both Lyondell and El Paso sued other parties they believed shared responsibility for cleanup of their respective remediation areas, including Occidental. They brought “apportionment” actions under CERCLA section 107 and “contribution” actions under CERCLA section 113. In an apportionment action, liability is still contested and parties “may avoid joint and several liability by establishing a fixed amount of damage for which they are liable.” On the other hand, once liability is established in a contribution action, “jointly and severally liable [parties may] recover from each other on the basis of equitable considerations.” Contribution actions are “thus intended to provide a liable party under CERCLA with a cause of action to ‘mitigate the harsh effects of joint and several liability.’ ” Lyondell brought apportionment and contribution actions against El Paso, too. In response, El Paso counterclaimed pursuant to CERCLA section 113, seeking to offset any of its responsibility for the Lyondell Remediation Areas with Lyon-dell’s share of responsibility for the El Paso Remediation Areas. Because of Lyondell’s settlement with the United States, however, El Paso could not seek contribution for any costs associated with “matters addressed in [that] settlement.” El Paso and Lyondell settled these claims in 2004 and turned their attention to Occidental and other potentially responsible parties. The district court dismissed the section 107 apportionment claims and conducted a two-phase bench trial of the remaining contribution claims under section 113. In the first phase, the district court found Lyondell and El Paso had established the liability of several other parties, including Occidental. It then went about allocating response costs among those liable parties. Because the evidence did not allow the damages to be divided along geographic boundaries, the court considered all Lyon-dell and El Paso Remediation Areas as an indivisible whole. Under section 113, the court allocated a percentage of investigation and remediation costs of that whole to each liable party based on “equitable” culpability. D To assist in allocating cleanup costs among the liable parties, the district court appointed an expert in environmental engineering, Dr. Charles Newell. Among other things, the district court tasked Dr. Newell with running a statistical analysis to determine disposal volumes for each liable company. The disposal volumes, together with chemical analyses of those volumes, would then enable to the court to allocate remediation costs. Although Dr. .Newell ran the actual calculations, the court determined the inputs he would use. To calculate the amount of Occidental’s waste dumped at Turtle Bayou, for example, the court instructed Dr. Newell to use three input values: a minimum, an intermediate estimate, and a maximum. These inputs are at the center of the parties’ dispute on appeal. Pegging Occidental’s minimum responsibility was straightforward. ,The court heard from Ken Kimmons, a French Limited truck driver, who testified that he transported two truck loads of Occidental waste to Turtle Bayou. With one truck load equaling 2,100 gallons of waste, the court set its minimum estimate at 4,200. In contrast, crafting the intermediate and maximum inputs required' more effort because much of the available documentary evidence concerned waste disposal intended for French Limited’s primary disposal site along Highway 90 — not its auxiliary disposal site at Turtle Bayou. Nonetheless, the court found the documentary evidence useful after listening to the testimony of Kimmons and another French Limited truck driver, Charles Thomas. From their testimony, the court found that approximately 25% of waste intended for Highway 90 actually ended up at Turtle Bayou, and adopted this finding for purposes of allocating costs. The litigants began referring to the estimate as the “25% Rule.” The other drivers who testified did not posit — or reject— any particular percentage, but agreed that Turtle Bayou was used for overflow when Highway 90 could not receive waste. Able to roughly quantify a link between the waste intended for Highway 90 and the waste actually disposed of at Turtle Bayou, the court set about calculating the two remaining Occidental waste volume values based on documentary evidence of disposal at Highway 90. To calculate the intermediate value, the district court looked to the “Smythe Reports,” which Occidental had created in 1987 and which detail the amounts of waste Occidental shipped off-site for disposal at Highway 90. For the relevant time period, they indicate French Limited hauled 297,400 gallons of Occidental waste bound for Highway 90. Following the 25% Rule, the district court divided this figure by four to arrive at an intermediate estimate of 74,350 gallons. In calculating Occidental’s maximum possible responsibility, the court looked to a ledger that French Limited had used to track hauls for each of its customers. The “French Ledger” provides details such as customer name, disposal fee, and intended disposal destination. After some extrapolation, the court found the French Ledger reflected 508,704 gallons of Occidental waste meant for disposal at Highway 90. Again, based on the 25% Rule, the court determined that one-fourth of that waste— 127,176 gallons — was actually disposed of at Turtle Bayou. As discussed below, Dr. Newell used the court’s three input values to calculate the volume of Occidental waste disposed of at Turtle Bayou. Looking to that calculation, the district court assigned 15.96% of El Paso’s response costs to Occidental. Although both Occidental and El Paso contest this allocation, neither denies liability altogether. All other litigants, including Lyondell, are no longer parties to this appeal. II We begin with Occidental’s challenge to Dr. Newell’s expert testimony, specifically his use of the Monte Carlo statistical methodology to calculate the volume of Occidental’s waste dumped at Turtle Bayou. Occidental tepidly contends the methodology fails Daubert. We review a district court’s admission of an expert’s testimony for abuse of discretion. Monte Carlo measures the probability of various outcomes, within the bounds of input variables; to calculate Occidental’s waste volume, for example, Dr. Newell used the district court’s three volume estimates as inputs. Instead of simply averaging the input values, Monte Carlo analysis uses randomly-generated data points to increase accuracy, and then looks to the results that those data points generate. The methodology is particularly useful when reaching an exact numerical result is impossible or infeasible and the data provide a known range — a minimum and a maximum, for example — but leave the exact answer uncertain. Seventy years after its discovery by physicists involved with nuclear weapons research, Monte Carlo analysis is now at home not only in the physical sciences but in a wide variety of fields including, for instance, the world of high finance. Occidental’s Daubert challenge relies on five arguments: that the Monte Carlo method used by Dr. Newell (1) has not been peer-reviewed as applied to CERCLA allocations; (2) is not generally accepted for use in CERCLA allocations; (3) was developed specifically for use in this litigation; (4) has not been tested as applied to CERCLA allocations and has a rate of error that cannot be evaluated; and (5) is not relevant because it is “equivocal.” In arguments one and two, Occidental concedes Monte Carlo analysis is reliable in general, but challenges its application to CERCLA cost allocation. This incorrectly assumes that the use of Monte Carlo analysis in this case differs meaningfully from any other Monte Carlo application; once we remove the irrelevant label of “waste volume,” the court’s chosen inputs serve as any other three numbers would. At any rate, the EPA itself has endorsed the use of Monte Carlo analysis in very similar applications — environmental risk assessments — explaining in a 1997 guidance document that “probabilistic analysis techniques [such] as Monte Carlo analysis, given adequate supporting data and credible assumptions, can be viable statistical tools for analyzing variability and uncertainty in risk assessments.” Occidental’s third criticism is similarly meritless. It is true that Dr. Newell tailored Monte Carlo algorithms to meet the specific needs of this case, but the same effort is required of virtually all experts in environmental litigation. And, while made-for-litigation expert testimony is indeed cause for concern in some situations, Occidental gives us no reason to believe Dr. Newell’s testimony was biased, particularly since a court — and not a litigant— engaged him as an expert. As for the testability and potential rate of error prongs of Daubert — the basis for Occidental’s fourth argument — the cited cases at most stand for the proposition that Monte Carlo analysis is unreliable when injected with faulty inputs, but nothing more. Monte Carlo simulation is not inherently untestable: courts routinely admit statistical evidence, and we can gauge reliability by examining input values and requiring transparency from testifying experts. Similarly, just because a Monte Carlo simulation produces a range of outcomes, rather than one single numerical value, does not mean it is speculative. If anything, Monte Carlo analysis provides greater certainty than the basic alternatives: using one of the three data points or using the arithmetic average of all three. Nor is Dr. Newell’s Monte Carlo analysis irrelevant because, as Occidental argues, it is “equivocal” or “statistical,” or because it does not make any fact regarding allocation more likely than not. The Monte Carlo analysis — though it produced a statistical range of likely outcomes and not one determinative answer — supports choosing one result over another, and certainly assisted the district court in its decisionmaking. Ill Occidental next objects to the district court’s admission of the Smythe Reports, which the district court used to develop the “intermediate” estimate of Occidental’s Turtle Bayou waste. Occidental asserts that the reports are settlement communications inadmissible under Federal Rule of Evidence 408. That rule excludes from admission certain evidence “offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount,” including “conduct or statements made in compromise negotiations regarding the claim.” These exclusionary powers are grounded in two rationales. First, the relevancy of settlement communications is thought to be suspect because they may have been an attempt to purchase peace rather than an admission of liability. Second, and perhaps “most importantly,” the rule’s exclusion of settlement evidence furthers public policy by promoting the voluntary settlement of disputes, which would be discouraged if evidence of compromise were later used in court. The need for voluntary settlement is especially critical in CERCLA litigation, with the statute’s emphasis — and dependency — on the willingness of potentially liable parties to negotiate with the government and with each other. We review evidentiary challenges for abuse of discretion. As the party objecting to the admission of such a communication, Occidental has the “burden of proving the preliminary facts required to show the inadmissibility of [the] compromise.” An error in the admission of evidence is reversible when it affects a party’s substantial rights — that is, when it constitutes harmful error. A By its terms, Rule 408 protects only “conduct or statements made in compromise negotiations” regarding “a claim that was disputed as to validity or amount.” This protection extends to legal conclusions, factual statements, internal memoranda, and the work of non-lawyers and lawyers alike so long as the communications were “intended to be part of ... negotiations toward compromise.” Litigation need not have commenced for Rule 408 to apply. Occidental concedes the Smythe Reports were not part of negotiations directly arising out of the contamination at Turtle Bayou. They are instead the product of an earlier dispute over contamination at French Limited’s primary disposal location, Highway 90. Before discovering contamination at Turtle Bayou, the EPA had threatened to pursue CERCLA litigation related to Highway 90 in the mid-eighties, targeting several French Limited customers. Many of these customers — including El Paso and Occidental — formed the “French Limited Task Group” in an attempt to avoid litigation, and to allocate and settle their potential liability. Occidental assigned an employee, Gary Smythe, as its representative to the group, but by the time Smythe joined the discussions, the task group had already decided on a higher allocation for Occidental than the company thought fair. In an effort to convince the other companies that Occidental should carry a lesser burden, Smythe, along with other Occidental employees and an outside consulting firm, created two reports purporting to account for all of Occidental’s waste dumped at Highway 90. These “Smythe Reports” attempted to “narrow th[e] gap” between what the task group had proposed and what Occidental believed to be a fairer assessment of its waste disposal at Highway 90. The district court was right, then, in concluding that the reports were “made during settlement negotiations” as “an effort to resolve issues of relative responsibility for ... Highway 90.” Although El Paso characterizes the reports as part of a “congenial effort by group members to fairly and cooperatively assess the contamination” unentitled to Rule 408 protection, we cannot agree. It is undisputed that the EPA threatened litigation against Occidental and other members of the task group. This threat raised not only the prospect of liability to the government but liability to other members of the task group because CERCLA imposes joint and several liability on each responsible party, and grants the right to sue confederates for contribution. The task force’s members made conflicting demands as a result: for its part, Occidental plainly offered the Smythe Reports in hopes of paying less than what the task force had already allocated to the company. The work of the task force was anything but business as usual and its discussions — including the Smythe Reports — went well beyond mere “business communications.” B Despite having concluded that the Smythe Reports were “made during settlement negotiations,” the district court admitted the reports into evidence. El Paso asserts this ruling was correct because Occidental created the Smythe Reports to settle legal issues unrelated to the subject of the present litigation. Quoting Wright and Graham’s treatise, El Paso contends “Rule 408 only bars the use of compromise evidence to prove the validity or invalidity of the claim that was the subject of the compromise, not some other claim.’ Because Occidental created the Smythe Reports in response to legal issues surrounding Highway 90, El Paso argues they are admissible in this action, which concerns contamination at Turtle Bayou. El Paso’s argument hinges in part on the scope of the word “claim.” Courts vary widely in their understanding of the term, and thus in their understanding of when evidence is introduced to prove liability for, invalidity of, or the amount of the claim subject to compromise. Most do agree that “claim” does not mean “legal claim” and that, as a result, “[t]he dispute being settled need not be the one being tried in the case where the settlement is being offered in order for Rule 408 to bar its admission.” Weinstein’s Evidence would nonetheless require that these different disputes arise out of the “same transaction” in order to trigger Rule 408. Caselaw, too, can be organized around a loose “transactional” test. Four circuits — including this one — have applied Rule 408 to distinct legal claims arising out of a common event. Other circuits have gone further, applying the rule to distinct legal claims arising, for example, out of the same failed business relationship, to legal claims brought by seven different plaintiffs that arose during the same fifteenth-month uranium exploration project, and to legal claims brought by the government against two different taxpayers, even though the claims did not stem from the same factual nexus. On the other hand, settlement evidence is not inadmissible merely because it relates to circumstances that are “similar” to those being litigated. The Seventh Circuit eschews any strict “transaction” test, but looks to “the spirit and purpose of the rule and decide[s] whether the need for the settlement evidence outweighs the potentially chilling effect on future settlement negotiations.” That balance is said to more likely “tip in favor of admitting evidence when the settlement communications at issue arise out of a dispute distinct from the one for which the evidence is being offered.” Wright and Graham would take a similar approach: [I] t seems preferable to make the meaning of “claim” turn on whether the result of the interpretation is likely to discourage parties from entering into compromise negotiations and whether the exclusion of the evidence of compromise would be fair in the case before the court. [I]t We too decline to adopt any rigid definition of “claim.” Our application of Rule 408 has been and remains fact-specific, and tethered to the rationales underlying the rule. And here, we have no trouble concluding the Smythe Reports were created for use in negotiations regarding the “claim” now being litigated. Though separated by time and location, the disputes associated with the Highway 90 and Turtle Bay sites arise out of the same events: the repeated dumping of hazardous waste intended for Highway 90. The disputes involve the same relevant parties, the same waste-generating facilities, the same basic time frame, the same waste hauler, and the same intended disposal site. More to the point, it involves the same primary liability question: What chemicals did each facility ship offsite and in what quantity? And because waste disposal at both sites is inextricably linked, the scope of a party’s liability for the Highway 90 Site bears directly on the extent of its liability for Turtle Bayou. The Highway 90 negotiations did not involve circumstances that were merely “similar” to the current dispute over Turtle Bayou. Even El Paso’s counsel prudently conceded at oral argument that liability for one site is “germane” to liability for the other. Even assuming the disputes over Highway 90 and Turtle Bayou represent two distinct “claims” for purposes of Rule 408, the Smythe Reports are only relevant insofar as they enable El Paso to prove liability for and the amount of contamination at Highway 90. Only after resolving the question of liability for this antecedent “first claim” could El Paso make its case for costs arising out of contamination at Turtle Bayou — i.e., through the court’s estimate that 25% of waste intended for Highway 90 was disposed of at Turtle Bayou. Viewed through either lense, the offering of settlement evidence arising out of a shared factual nexus and bearing directly on present issues of liability between many of the same parties falls within Rule 408’s prohibition. Effective dispute resolution requires frank and full discussion of relevant evidence. Making the content of such a discussion available for use in related litigation would invite the very situation that Rule 408 is designed to avoid, and worse, in CERCLA litigation, reduce the likelihood that responsible parties would volunteer to right their environmental wrongs. CERCLA only works when that likelihood is high — after all, the entire statutory regime is predicated on the fact that the government has limited resources to find potential polluters, to dictate remedial measures to those polluters it does find, and to pay for those it does not. CERCLA itself protects parties who enter into consent decrees with the government, stating that participation in that process “shall not be considered an admission of liability for any purpose, and the fact of such participation shall not be admissible in any judicial or administrative proceeding.” Determining when one CERCLA claim ends and another begins is particularly difficult, too, because environmental damage does not always respect lines drawn on a settlement map. Efforts to detect hazardous substances can prove inconclusive and the substances, once found, often remain a moving target. The signing of a settlement will not, as a result, always end the chapter for potentially responsible parties, as this case amply demonstrates. We are mindful that Rule 408 should not exclude more than required to effectuate its goals, which, after all, run counter to the overarching policy favoring the admission of all relevant evidence. But we have no difficulty concluding that exclusion of the Smythe Reports fits comfortably within the rule’s limitations. The tension between Rule 408 and the policy favoring the admission of relevant evidence is mitigated in the present case: from the general public’s standpoint, the need for evidence in a CERCLA contribution case is simply less critical than in a situation in which liability is contested. Here, we know that El Paso and Occidental are responsible for remediating Turtle Bayou; what remains to be determined is how much each private entity will pay. The district court’s admission of the Smythe Reports, then, was an abuse of discretion. And this error was harmful. The Smythe Reports support at least a few of the district court’s conclusions, most notably its “intermediate” calculation of Occidental’s waste volume. El Paso urges that Dr. Newell was entitled to rely on the report as an expert, but fails to explain how an expert’s use of settlement evidence would not effectively vitiate Rule 408’s protections altogether. Even if an expert could use evidence otherwise inadmissible under the rule, it was the district court that calculated the intermediate volume input, not Dr. Newell. Rather, Dr. Newell relied on all three volume inputs at the court’s direction. Given that the district court’s intermediate waste estimate for Occidental is now without key evidentiary support, we decline to simply average the remaining minimum and maximum values and leave, on remand, the reallocation of costs to the district court in the first instance. IV Occidental also faults the district court’s choice of equitable factors used in allocating response costs for Turtle Bayou among the liable parties. In making such a tally, a court may use “such equitable factors as the court determines are appropriate.” Here, the district court chose to base its allocation on the total volume of waste produced at each facility, weighting those volumes according to chemical composition. Occidental essentially argues that instead of calculating waste by facility, the court should have aggregated total waste by company. Occidental would have fared better had the court done so, particularly when compared to Lyondell. Occidental fails to demonstrate that the district court’s result is unfair. On the contrary, the district court considered the total volumes of waste streams for each Lyondell facility, just as it considered the total volumes for the Occidental facility. By uniformly applying the same facility-level approach, the court employed the most specific evidence available for all parties; in an equitable calculus that cannot be error. V Occidental also sees error in a handful of the district court’s factual findings, which we review for clear error. “A finding of fact is not clearly erroneous ‘if it is plausible in the light of the record read as a whole.’ ” CERCLA contemplates flexibility so that “[t]he parties actually performing the cleanup can look for reimbursement from other potentially responsible parties without fear that their contribution actions will be bogged down by the impossibility of making meticulous factual determinations as to the causal contribution of each party.” A Occidental quarrels with the maximum waste volume value used in Dr. Newell’s Monte Carlo analysis — a value the district court derived from the French Ledger. Although the ledger did not list any offsite disposal charges for Occidental in 1969, the court concluded that Occidental had trucked away hazardous waste during that year, citing other evidence including the now-inadmissible Smythe Reports. With that conclusion in hand, the court determined Occidental’s average monthly disposal charges for 1970 using the French Ledger. It then assumed this monthly average held true for July 1969 through December 1969, an assumption that increased Occidental’s maximum estimated responsibility by about 60%. Having determined that the Smythe Reports were admitted in error, we leave it to the district court on remand to decide whether the record without the reports remains sufficient to uphold this extrapolation. B Occidental also contests the district court’s finding that one-fourth of the waste intended for the Highway 90 Site actually ended up at Turtle Bayou. Occidental says this 25% Rule is speculative as to Occidental because it is supported by only two of French Limited’s forty drivers — one who recalled no loads from Occidental and one who remembered only two. We disagree. The district court found the drivers’ testimony credible and no credible witness claimed otherwise. The district court did not treat the “rule” as a “definitive measure of the proportion of French [Limited] hauls that were dumped at the Turtle Bayou site,” but considered it “an appropriate fallback option where better evidence of disposal rates is not available.” Left with significant evidence of disposal at Highway 90 and credible evidence of a link between that disposal and the waste at Turtle Bayou, the district court did not clearly err in applying the “rule” absent countervailing evidence. Even if the court’s factual finding was not in error, Occidental contends the court applied the 25% Rule unfairly. It notes that the French Ledger listed several companies who are not parties to this lawsuit and argues the district court should have used the rule to assign responsibility to these non-parties as well— decreasing the relative responsibility of Occidental. We again disagree. The district court concluded it could not impose liability on a French Limited customer— and therefore could not assign a waste volume to that customer — without an independent link between that customer and Turtle Bayou. Occidental’s liability, not contested here, was established by evidence apart from blind application of the 25% Rule; for one, Kimmons testimony specifically links Occidental waste to disposal at Turtle Bayou. The court applied the 25% Rule to all French Limited customers found liable during the first phase of trial, treating each liable party fairly. No such evidence connected the non-parties. C Although Occidental concedes that it is, along with El Paso and others, liable for past costs incurred by the United States at Turtle Bayou, it disclaims responsibility for El Paso’s cleanup of the El Paso Remediation Areas. Occidental argues that there is insufficient evidence that French Limited dumped Occidental waste in those particular locations. Occidental points to the testimony of Kimmons, the lone truck driver who attested to delivering Occidental waste to Turtle Bayou. Kimmons testified that he dumped Occidental waste at the Main Waste pit, which falls within the Lyondell Remediation Areas, but made no mention of dumping waste specifically at the El Paso Remediation Areas. The district court, however, found that “Kimmons ... was not the only French driver to handle Occidental’s wastes” and that French Limited plainly had trucked significant amounts of Occidental waste bound for Highway 90. “Given the scope of hauling,” the court concluded “it is probable that at least one load of ... Occidental’s waste[ ] was disposed of in an area remediated by El Paso.” These findings are consistent with the district court’s treatment of the other parties. The court held that “the evidence is not sufficiently conclusive for the court to isolate a particular company’s waste to a specific portion of [Turtle Bayou].” No expert could tie the waste of any company to distinct geographic areas within Turtle Bayou, either. It was enough that the district court could determine that some of Occidental’s waste intended for Highway 90 was dumped somewhere at Turtle Bayou. Occidental does not dispute this core liability finding. Our review of the record as a whole indicates that the district court’s findings are plausible and evince no clear error. VI The district court assigned more than half of El Paso’s response costs to Lyon-dell, but that share was “uncollectible”— meaning El Paso could not collect any further sums from the company. From the district court’s point of view, the share was only uncollectible because El Paso had chosen to settle with Lyondell. On that basis, the court meted out responsibility for Lyondell’s share to El Paso instead of distributing Lyondell’s share proportionally among all liable parties: If El Paso believes that the settlement agreement does not adequately reflect its proportionate share of liability vis-avis [Lyondell], then El Paso should have refrained from entering into the agreement and taken its chances at trial. In its cross-appeal, El Paso contends the court erred in its assessment because, at the time of settlement, Lyondell had already resolved all of its liability regarding Turtle Bayou. So, as far as Lyondell was concerned, its consent decree with the government granted protection from El Paso’s contribution claim. According to El Paso, then, its settlement with Lyondell could only resolve El Paso’s liability to Lyon-dell — not liability the other way around— because the earlier consent decree barred El Paso from recovering against Lyondell altogether. El Paso urges this created an uncollectible “orphan” share that should have been distributed proportionally among all liable parties. As defined by some courts, an “orphan share” is the liability attributable to a party who is insolvent, cannot be located, or cannot be identified. Under this doctrine, a court may choose to allocate a proportional fraction of an orphan share to all available, solvent, and responsible parties. The doctrine is an equitable one, vesting courts with the discretion both to determine whether a share is an orphan, and whether to allocate that orphan share to all available responsible parties. Lyondell’s share is not a traditional “orphan,” but we assume without deciding that a solvent and identified party’s share of CERCLA costs can qualify as an “orphan share” and thus that Lyondell percentage of responsibility was theoretically distributable among other liable parties. As “[a] person who has resolved its liability to the United States,” Lyondell was not liable for any claims for contribution brought by El Paso for “matters addressed” in its 1998 consent decree. By the decree’s terms, those “matters addressed” in Lyondell’s settlement included the “Site” and matters “related ... to the Site.” The “Site” encompassed “only that property which includes the areal extent of contamination and all suitable property in very close proximity to the contamination necessary for the implementation of the [Lyondell remediation plan].” The decree specifically “designated” this property as “the West Road Area, the Main Waste Area, the Office Trailer Area, the Easement Area, the Bayou Disposal Area, and Country Road 126 (formerly Frontier Park Road).” The decree’s text plainly does not incorporate all of Turtle Bayou — it lists discrete areas. Of those six areas, four — West Road, Main Waste, Office Trailer, and Easement — are within the Lyondell Remediation Areas. The fifth, the Bayou Disposal Area, is an El Paso Remediation Area. That potentially leaves one remediation plot — the Far West Road Area— outside Lyondell’s contribution protection and subject to legal action by El Paso. El Paso claims the decree’s inclusion of “Country Road 126” was a reference to the Far West Road Area, or, at the very least, that its cleanup work in the Far West Road Area is “related to” Country Road 126 because that work “centered directly under the road itself.” At most, these arguments demonstrate that the scope of Lyondell’s contribution protection was a matter subject to adversarial dispute and judicial determination. For one, the Far West Road Area was not known to be contaminated at all when Lyondell settled its liability for the Lyon-dell Remediation Areas. Nor is the area in “very close proximity” to known contamination in 1998 — it is more than a quarter-mile away from the closest remediation area at the time, the West Road Area. And while it is true that the tract of land known as Far West Road Area was also referred to as the “Country Road 126 West Area,” the consent decree plainly refers to the road that traverses Turtle Bayou from east to west, going well beyond any one tract. Rather than litigate these questions, El Paso dropped its contribution action against Lyondell under CERCLA section 113 by entering into a settlement. Among other terms, the settlement provided that El Paso would receive all of Occidental’s eventual contribution, that the first $3 million received from other settlements would go to Lyondell, and that most other proceeds would be shared so that Lyondell received 67% and El Paso received 33%. Nothing precluded El Paso from negotiating a higher percentage if it believed Lyondell’s share of costs to be greater. El Paso also agreed that it would not oppose an interpretation of Lyondell’s 1998 consent decree that would absolve it of any future liability at Turtle Bayou altogether — indicating that both parties considered Lyondell’s contribution protection a matter amenable to genuine dispute. This conclusion is confirmed by El Paso’s earlier suggestion to the district court that it define “orphan share” as “those shares of the waste responsibility which are attributable to [potentially responsible parties] who either are insolvent or cannot be located or identified” — a definition that does not, on its face, include Lyondell’s uncollectible responsibility. VII In sum, because admission of the Smythe Reports was harmful error, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion. . A second hazardous waste hauler, Joiner, transported waste for companies no longer involved in this dispute. . Successor-in-interest to Tenneco Polymers. . Successor-in-interest to ARCO and various ARCO subsidiaries. . 42 U.S.C. §§ 9601-75. . Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. -, 129 S.Ct. 1870, 1874, 173 L.Ed.2d 812 (2009). . Id. (quoting Consol. Edison Co. of N.Y. v. UGI Util., Inc., 423 F.3d 90, 94 (2d Cir.2005)). . Id. at 1878 (quoting 42 U.S.C. § 9607(a)(3)) (quotation marks omitted). . Id. (citing Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004)). . Id. at 1881 (citing United States v. Chem-Dyne Corp., 572 F.Supp. 802, 810 (S.D.Ohio 1983)); see also O'Neil v. Picillo, 883 F.2d 176, 178 (1st Cir.1989). . The consent decree provision reads in relevant part: Notwithstanding any other provision of this Consent Decree, the United States reserves, and this Consent Decree is without prejudice to, the right to institute proceedings ... to reimburse the United States for additional costs of response if ... conditions at the Site, previously unknown to the EPA, are discovered. . El Paso incurred $150,000 in connection with an initial investigation, $3,701,043 in connection with remediation efforts prior to August 31, 2006, and approximately $6.9 million plus interest in reimbursement costs to the United States for its past cleanup efforts with respect to the Lyondell and El Paso Remediation Area — an amount that El Paso has paid. . Successor-in-interest to Diamond Shamrock Chemical Corporation. . See 42 U.S.C. § 9607. . See id. § 9613(f)(1) ("Any person may seek contribution from any other person who is liable or potentially liable under 107(a) [of CERCLA].”). . Burlington, 129 S.Ct. at 1882 n. 9 (quoting United States v. Burlington N. & Santa Fe Ry. Co., 520 F.3d 918, 939-40 (9th Cir.2008)) (internal quotation marks omitted). . Id. . Elementis Chromium L.P. v. Coastal States Petroleum Co., 450 F.3d 607, 612 (5th Cir.2006) (quoting OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1582 (5th Cir.1997)). . 42 U.S.C. §§ 9613(f)(2), 9622(h)(4). . The Supreme Court has expressly declined to answer whether potentially responsible parties who "sustain expenses pursuant to a consent decree”—like Lyondell and El Paso—may recover these compelled costs "under § 113(f), § 107(a), or both.” United States v. Atlantic Research Corp., 551 U.S. 128, 139 n. 6, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). The district court, in dismissing the claims under § 107 but allowing Lyondell and El Paso to recover their compelled costs anyway, implicitly held that compelled costs may be recovered under § 113(f). Neither party challenges that holding on appeal and we do not address it. . On this point, Occidental relies on the briefs of Lubrizol Corporation, a former litigant. . Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). . Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th Cir.2002). El Paso contends that Occidental did not preserve this Daubert objection and that plain error review should thus apply. Although El Paso points to one objection that did not address the Monte Carlo method, Occidental made another — an oral objection to Dr. Newell's reports "because they fail to meet the standards of federal rule of evidence 702 and the standards announced by Daubert." Though this is not specifically addressed to Dr. Newell’s use of the' Monte Carlo method, Lubrizol included arguments related to this methodology in its Proposed Findings of Fact and Conclusions of Law. This gave the district court an opportunity to rule on the contention. See Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329 (5th Cir.2008). . Occidental also argues that the Monte Carlo analysis is unreliable because its three inputs are unreliable or inadmissible. We address these arguments below. . U.S. EPA, Guiding Principles for Monte Carlo Analysis, EPA/630/R-97/001 (1997). . See In re Application of Erie Blvd. Hydro-power L.P. v. Town of Ephratah Bd. of Assessors, No. 17-1-2000-0331, 2003 WL 21172636, at *4 (N.Y.Sup.Ct. Apr. 11, 2003) ("[A]ll you are doing in a Monte Carlo simulation is coming back to your own assumptions, so whatever went in comes out. Stated differently, if you make bad assumptions, you obtain bad output.”). . See, e.g., Turpin v. Merrell Dow Pharms., 959 F.2d 1349, 1353, 1357 (6th Cir.1992). . See Fed.R.Evid. 401 (explaining that "relevant evidence” is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”). . Fed.R.Evid. 408. . Fed.R.Evid. 408 advisory committee's note para. 1. . Michael H. Graham, Handbook of Federal Evidence § 408:1 (6th ed.2009). . Fed.R.Evid. 408 advisory committee's note para. 1. See also Graham, Handbook of Federal Evidence § 408:1 (describing the public policy rationale as “more consistently impressive'' than the relevancy rationale). . See Burlington N., 129 S.Ct. at 1870. . Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 515 (5th Cir.1993). . 23 Charles Alan Wright & Kenneth W. Graham, Jr, Federal Practice & Procedure § 5315 (Supp.2010). . See Fed.R.Civ.P. 61. . Fed.R.Evid. 408. . See Ramada Dev. Co. v. Rauch, 644 F.2d 1097, 1106-07 (5th Cir.1981) (quoting 2 J. Weinstein & M. Berger, Weinstein's Evidence 408(03), at 408-20 to -21 (1980)) (internal quotation marks omitted) (upholding the district court's exclusion under Rule 408 of internal memoranda from an architect "made in the course of an effort to compromise”); see also Affiliated Mfrs., Inc. v. Aluminum Co. of Am., 56 F.3d 521, 529-30 (3d Cir.1995) (upholding the district court's exclusion under Rule 408 of internal memoranda never disclosed to the opposing party). El Paso points out that the reports were not the work product of an attorney and nowhere indicated that they were settlement-related. El Paso, however, provides no caselaw support for this implicit assertion that Rule 408 protects only communications that are made in formal legal proceedings or that come from an attorney. . See Ramada, 644 F.2d at 1106-07 (excluding under Rule 408 an analysis of construction defects that had been generated prior to any lawsuit); see also Affiliated Mfrs., Inc., 56 F.3d at 526-28 (holding that Rule 408 applies “where an actual dispute or a difference of opinion exists, rather than when discussions crystallize to the point of threatened litigation”); Mundy v. Household Fin. Corp., 885 F.2d 542, 546-47 (9th Cir.1989) (excluding proof, in a discrimination suit, that defendant offered money for outplacement services three weeks after termination when plaintiff had received severance pay and other benefits, and hired counsel but not filed claims). . See Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365, 1368, 1372-73 (10th Cir.1977) (determining that communications between the parties prior to litigation did not fall within Rule 408 as the calls were merely "business communications" because the discussions at issue "had not crystallized to the point of threatened litigation"). . See 23 Wright & Graham, Federal Practice & Procedure § 5314 (Supp.2010); accord Armstrong v. HRB Royalty, Inc., 392 F.Supp.2d 1302, 1304 (S.D.Ala.2005) ("By its terms, Rule 408 precludes the admission of evidence concerning an offer to compromise 'a claim’ for the purpose of proving (or disproving) the fact or amount of 'the claim’ .... [t]he definite article 'the' limits 'the claim' as to which evidence may not be admitted to the claim previously referenced, i.e., the claim which was the subject of a settlement offer."). . See Fed.R.Evid. 408. . Wright & Graham, Federal Practice & Procedure § 5306 (Supp.2010) (citing Tucker v. Westlake, 136 N.C.App. 162, 523 S.E.2d 139, 143 (1999)). . Jack B. Weinstein, Margaret A. Berger & Joseph M. McLaughlin, 2 Weinstein's Evidence ¶ 408[04], at 408-30 (1996). This is because "[sjettlements have always been looked on with favor, and courts have deemed it against public policy to subject a person who has compromised a claim to the hazard of having a settlement proved in a subsequent lawsuit by another person asserting a cause of action arising out of the same transaction.'' Id. . Branch v. Fid. & Cas. Co. of N.Y., 783 F.2d 1289, 1294 (5th Cir.1986) (preventing the use of evidence from the plaintiff's previous settlement with one defendant in subsequent litigation with a second defendant when both actions arose out of same accident); Lampliter Dinner Theater, Inc. v. Liberty Mut. Ins. Co., 792 F.2d 1036, 1042 (11th Cir.1986) (holding that plaintiff could not introduce evidence of third-party plaintiff's settlement with insurance company defendant when both plaintiffs’ claims arose out of the same sale of alcohol to minors); McInnis v. A.M.F., Inc., 765 F.2d 240, 248 (1st Cir.1985) (holding inadmissible evidence of the plaintiff’s previous settlement with one defendant in an action against a second defendant when the suit arose out of the same accident); McHann v. Firestone Tire & Rubber Co., 713 F.2d 161, 166 (5th Cir.1983) (same); United States v. Contra Costa County Water Dist., 678 F.2d 90, 92 (9th Cir.1982) (barring evidence related to the government's settlement with one defendant in its suit against a second defendant when both actions arose out of damage to the same canal system). In Branch, we explained that "[t]he spectre of a subsequent use to prejudice a separate and discrete claim is a disincentive which Rule 408 seeks to prevent.” 783 F.2d at 1294. Despite this sweeping language, our decision only considered Rule 408’s application to different "legal claims” arising out of the same accident. . Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652, 655 (4th Cir.1988) (barring evidence from the settlement of previous legal claims in subsequent litigation when each dispute arose out of the same failed business relationship). . Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1363 (10th Cir.1987) (rejecting, in dicta, evidence of seven prior claims that arose during the same uranium exploration project over the course of fifteen months because the "claims are related inasmuch as they arose in the course of the same large scale uranium exploration project operated by [the contractor], and because they are similar enough to the claim sued upon in this case to be relevant”). . Hudspeth v. Comm’r, 914 F.2d 1207, 1213 & n. 8 (9th Cir.1990); see also Williams v. Fermenta Animal Health Co., 984 F.2d 261, 264 (8th Cir.1993) (excluding, under Rule 408, evidence regarding the settlement of a prior, unrelated discrimination lawsuit against the defendant's predecessor corporation). . Cf. Broadcort Capital Corp. v. Summa Med. Corp., 972 F.2d 1183, 1194 (10th Cir.1992) (stating in dicta that Rule 408 did not bar evidence of a previous settlement of a dispute related to a prior and distinct transaction involving the defendant but not the plaintiff); Dallis v. Aetna Life Ins. Co., 768 F.2d 1303, 1306-07 (11th Cir.1985); Armstrong, 392 F.Supp.2d at 1308 (quoting id.); . Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 689 (7th Cir.2005); see also Bankcard Am., Inc. v. Universal Bancard Sys., Inc., 203 F.3d 477, 484 (7th Cir.2000) ("The need for Universal to explain it thought a settlement had been reached allowing it to roll over accounts — without allowing any details about the settlement talks or even use of the word 'settlement'—outweighed any potential for discouraging future settlements and did nothing to undermine the purpose and spirit of Rule 408.”). . Zurich, 417 F.3d at 689. . 23 Wright & Graham, Federal Practice & Procedure § 5306 (Supp.2010). . Cf. Dallis, 768 F.2d 1303, 1306-07 & n. 2 (11th Cir.1985) ("We do not reach the question of whether Rule 408 bars evidence of a settlement between one of the parties and a third party when such settlement involves similar circumstances to, but does not arise out of, the transaction with which the litigation is concerned.”). . See Uforma/Shelby Bus. Forms, Inc. v. NLRB, 111 F.3d 1284, 1294 (6th Cir.1997) (holding that "Rule 408 does not exclude evidence of alleged threats to retaliate for protected activity when the statements occurred during negotiations focused on the protected activity and the evidence serves to prove liability either for making, or later acting upon, the threats” because the evidence was not introduced in order to prove the validity of the grievance which served as the subject of the negotiations); Vulcan Hart Corp. v. NLRB, 718 F.2d 269, 277 (8th Cir.1983) (Rule 408 did not bar evidence of demand during negotiations to settle grievance that employee resign his union office when general counsel did not seek to prove validity of grievance). But see Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 770 (10th Cir.1997) (holding that Rule 408 did not bar evidence of defendants' previous settlement with a third-party regarding a separate action arising out of the same facts because the evidence was offered "to show [the plaintiff] was not at fault for any delay and to show [the defendants] acted in bad faith”). . 42 U.S.C. § 9622(d)(1)(B); see N.J. Turnpike Auth. v. PPG Indus., Inc., 16 F.Supp.2d 460, 473 (D.N.J.1998) (recognizing parallels between this provision of CERCLA and Rule 408). . See Fed.R.Evid. 402. . See Fed.R.Evid. 703 (explaining that an expert is not barred from using inadmissible evidence to form his opinion). . Critically, our holding does not prevent the admission of the raw data and information used to generate the Smythe Reports, if that data and information is otherwise admissible. See Fed.R.Evid. 408 advisory committee's note para. 24 ("[T]he Rule cannot be read to protect pre-existing information simply because it was presented to the adversary in compromise negotiations.”). Rule 408's exclusionary reach is limited to documents or statements, like the Smythe Reports, that "would not have existed but for the negotiations” and to situations where "the negotiations are not being used as a device to thwart discovery by making existing documents unreachable.” Ramada, 644 F.2d at 1107. In much the same way that turning documents over to one's lawyer does not automatically cloak those documents in attorney-client privilege, a party cannot protect otherwise admissible information just by synthesizing it in a report used to settle a dispute. See, e.g., United States v. Robinson, 121 F.3d 971, 975 (5th Cir.1997) ("It goes without saying that documents do not become cloaked with the lawyer-client privilege merely by the fact of their being passed from client to lawyer .... In the case of pre-existing documents, if they 'could have been obtained by court process from the client when he was in possession!, they] may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice.’ " (quoting Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)) (alteration in Robinson)). . 42 U.S.C. § 9613(f); see Am. Cyanamid Co. v. Capuano, 381 F.3d 6, 19 (1st Cir.2004); United States v. Consolidation Coal Co., 345 F.3d 409, 413-14 (6th Cir.2003) ("[A] court may consider any factors appropriate to balance the equities in the totality of the circumstances.”); United States v. Colo. & E.R.R., 50 F.3d 1530, 1536 & n. 5 (10th Cir.1995). . Occidental also claims the district court should have calculated volume by individual waste stream. The court found the evidence insufficient to do so. Although it may have been possible to delineate Occidental's waste by chemical components because the Smythe Reports provide some waste chemistry data, that capability is erased without those reports. . Elementis Chromium L.P. v. Coastal States Petroleum Co., 450 F.3d 607, 613 (5th Cir.2006) (reviewing a district court's allocation of response costs for clear error under CERCLA). . Id. (quoting Baker Hughes Oilfield Operations, Inc. v. Cage (In re Ramba), 416 F.3d 394, 402 (5th Cir.2005)). . United States v. R.W. Meyer, Inc., 932 F.2d 568, 573-74 (6th Cir.1991). . Occidental itself argued that mere customer status was not enough to establish liability. . In its pleading, El Paso defined the term "Plaintiffs” as the "Lyondell Plaintiffs and the Government, collectively.” It then pleaded its claims against Lyondell: El Paso denies that the Lyondell Plaintiffs are entitled to judgment. If El Paso is judged liable to the Plaintiffs, then El Paso claims that the Lyondell Plaintiffs are liable for contribution pursuant to Section 113(f) of CERCLA, 42 U.S.C. § 9613, federal common law and state law for any relief entered against El Paso in excess of the equitable, proportionate share of El Paso's liability. . See, e.g., Action Mfg. Co., Inc. v. Simon Wrecking Co., 428 F.Supp.2d 288, 328 (E.D.Pa.2006) (noting that all of the federal courts of appeals to consider the issue "have concluded or assumed that the orphan shares should be allocated equitably among plaintiff and defendant [potentially responsible parties]”). . Id. . Occidental argues that a party, like Lyon-dell, who settles its CERCLA liability with the government has been held accountable and its share cannot qualify as an orphan to be distributed among other responsible parties. In support, it reminds that CERCLA provides that a "settlement reduces the potential liability of the others by the amount of the settlement” — it is not distributed to other responsible parties, in the form of an "orphan share” or otherwise. 42 U.S.C. § 9613(f)(2). We see Occidental’s point, but note that if a party settles for less than its fair share of liability as later determined by a court, that remaining liability will arguably be unassigned. We decide El Paso’s cross-appeal on other grounds so need not answer the question here. . Id. . Even the broadest possible contribution protection would have only prevented the district court from affirmatively ordering Lyon-dell to pay contribution; the district court could still have barred Lyondell from recovering any contribution from El Paso in excess of El Paso's equitable share.

United States v. Aerojet General Corp.

WILLIAM A. FLETCHER, Circuit Judge: The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (“CERCLA”), requires certain polluters to pay for cleaning up contaminated sites. After identifying a contaminated site, the federal Environmental Protection Agency (“EPA”) and state environmental agencies typically negotiate with potentially responsible parties (“PRPs”) over their shares of comparative responsibility for cleanup (“response”) costs. CERCLA allows PRPs to seek contribution from one another in order to apportion response costs equitably. But CERCLA bars contribution claims against PRPs that have obtained administratively or judicially approved settlements with the government. CERCLA thus provides an incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs. We consider a question that has split the federal courts: May a non-settling PRP intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP? We join the Eighth and Tenth Circuits in holding that the answer is “yes.” I. Background A. Investigation and Negotiation The San Gabriel Basin is a groundwater reservoir in eastern Los Angeles County that serves as a source of drinking water for more than one million people. In 1979, the EPA discovered groundwater contamination in the basin. In 1984, it designated much of the basin as a site on the CERCLA National Prioiities List for investigation and cleanup. The EPA divided the site into eight “Operable Units.” The South El Monte Operable Unit (“SEM-OU”) covers approximately eight square miles in the south central portion of the San Gabriel Basin. The EPA’s initial investigation determined that SEMOU groundwater contained volatile organic compounds (“VOCs”) that required containment and remediation. Throughout the 1990s, the EPA sent Notice of Liability Letters to PRPs, requesting that they participate in a Remedial Investigation and Feasibility Study (“RI/FS”). Thirty-three PRPs participated in the RI/FS process. By 1999, the EPA had completed the RI/FS and had identified numerous industrial facilities in the SEMOU that were potential sources of the VOCs. In September 2000, the EPA issued an Interim Record of Decision (“IROD”) based on the RI/FS. The IROD prescribed a 30-year remedial plan to clean contaminants from the groundwater and stop their spread. As part of the plan, local water providers (“Water Entities”) would pump the contaminated water, clean the water, and then sell the treated water to their customers. The EPA projected the estimated cost of VOC cleanup at $14 million, plus an additional $14 million for costs incurred by the state and federal governments. In March 2002, the EPA sent Special Notice Letters pursuant to § 122(e) of CERCLA, 42 U.S.C. § 9622(e), to 67 PRPs it had identified as current or former owners or operators of facilities in the basin that had used hazardous substances. The letters asked the PRPs to present good faith offers to comply with the IROD remedial plan and to pay the EPA’s past costs in the SEMOU. In the meantime, the Water Entities sought to require the PRPs to pay for the water treatment response costs. After lengthy negotiations, in July 2002 the Water Entities and thirteen PRPs (“Group of 13”) entered into an agreement (“G13 Agreement”). The G13 Agreement provided that the Group of 13 would pay $4.7 million to fund VOC cleanup in exchange for a standstill agreement under which the Water Entities would agree not to bring suit against the group during the period that the funds were being used. The Water Entities also agreed to “use good faith efforts” to support efforts of the Group of 13 to obtain an approved settlement that would bar contribution claims by other PRPs against Group of 13 members. On August 28, 2003, the EPA issued a unilateral administrative order to 41 PRPs that had not yet entered into agreements or made good faith offers, requiring each of them to take remedial action. The remedial plan contained in the 2000 IROD addressed only VOC contamination. Soon after the issuance of the IROD, the EPA detected perchlorate in SEMOU groundwater at concentrations higher than the state’s drinking water advisory levels. In 2005, the EPA issued an Explanation of Significant Differences (“ESD”) to update the IROD remedial plan to address perchlorate contamination. By 2007, estimated response costs had increased substantially. The EPA’s VOC response cost estimate had increased from $14 million to $26 million. The ESD estimated an additional $46 million for perchlorate remediation. The estimated costs incurred by the state and federal governments had also increased from $14 million to $15 million. The total cost to clean up VOC and perchlorate contamination in the SEMOU groundwater was now estimated at $87 million. B. Suits by the Water Entities (SEMOU Cases) While they were negotiating the agreement with the Group of 13, the Water Entities filed four suits in the Central District of California against other PRPs (the SEMOU Cases). On March 31, 2003, the district court consolidated the four cases. Under the terms of the G13 Agreement, the Water Entities could not sue the Group of 13. However, the PRP defendants in the SEMOU Cases were not so bound. The defendants filed third-party complaints against the Group of 13, as well as against other PRPs not sued by the Water Entities. Their third-party complaints sought contribution from the Group of 13 and the other PRPs. The defendants also filed counterclaims against the Water Entities. The district court appointed a Special Master to facilitate settlement. In October 2004, the district court stayed discovery while the parties focused on settlement discussions. C. Agreement among the EPA, the Water Entities, and the Group of 10 In March 2007, ten PRPs from the Group of 13 (“Group of 10”) entered into an agreement with the Water Entities, the EPA, and the state (“G10 Agreement”). The Group of 13 had become the Group of 10 when two members applied successfully for “ability to pay” status, see CERCLA § 122(g)(7), 42 U.S.C. § 9622(g)(7), and a third member declined to participate. The Group of 10 agreed to provide an additional $3.4 million to pay for cleanup of perchlorate contaminants in the SEMOU. D. Appeal in This Case In October 2007, the EPA filed a suit in the Central District of California against the Group of 10, lodging a proposed consent decree incorporating both the G13 Agreement of 2002 and the G10 Agreement of 2007. The consent decree, if approved by the court, would protect the Group of 10 from contribution claims by non-settling PRPs. The PRP defendants in the SEMOU Cases were not parties to the EPA’s suit. The Department of Justice published notice of the proposed consent decree in the Federal Register on November 8, 2007 and provided a thirty-day public comment period. See Notice of Lodging of Two Consent Decrees, 72 Fed.Reg. 63,185 (Nov. 8, 2007). A group of PRPs, including most of the defendants in the SEMOU Cases, submitted comments objecting to the proposed consent decree. We will call this group “Applicants.” Applicants did not include any of the Group of 13 or the Group of 10. Applicants complained that the EPA had not provided sufficient information about the proposed consent decree’s allocation of cleanup costs. Applicants further complained that they were “unaware as to whether [a Non-Binding Preliminary Allocation of Responsibility] has been prepared by EPA.” In December 2007, Applicants submitted Freedom of Information Act requests to the EPA. They received some information in response on February 19, 2008. In March 2008, Applicants moved to intervene as of right in the EPA’s suit against the Group of 10 under Federal Rule of Civil Procedure 24(a)(2) and § 113© of CERCLA, 42 U.S.C. § 9613®. The district court denied intervention and entered the consent decree the next day. The Applicants timely appealed, contending that the district court erred in denying their motion to intervene as of right under Rule 24(a)(2) and § 113®. That appeal is before us in this case. E. Appeal in the SEMOU Cases In the SEMOU Cases, plaintiff Water Entities and third-party defendants Group of 10 requested a judicial order in May 2008 approving a proposed settlement between plaintiffs and third-party defendants that mirrored the proposed consent decree in the EPA’s suit against the Group of 10. Defendants in the SEMOU Cases included the Applicants who had sought to intervene to oppose the proposed consent decree in the suit brought by the EPA against the Group of 10. The district court in the SEMOU Cases entered judgment approving the settlement, dismissing with prejudice all claims against the Group of 10, and barring any claims for contribution by non-settling PRPs. Five of the defendants (all of whom are Applicants for intervention in the suit brought by the EPA) appealed. That appeal is before us in a separate case. By separate order filed today, we vacate the district court’s judgment in the SEMOU Cases and remand for further proceedings consistent with this opinion. See San Gabriel Basin Water Quality Auth. v. Linderman, No. 08-56589. II. Standard of Review We review de novo a district court’s denial of a motion to intervene as of right, except for the court’s determination of timeliness, which we review for abuse of discretion. United States v. Alisal Water Corp., 370 F.3d 915, 918-19 (9th Cir.2004); Calif. Dep’t of Toxic Substances Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1118-19 (9th Cir.2002). III. Discussion The Applicants seek to intervene as of right under both Federal Rule of Civil Procedure 24(a)(2) and § 113® of CERCLA. We require applicants for intervention as of right pursuant to Rule 24(a)(2) to meet a four-part test: (1) the motion must be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action. California ex rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir.2006) (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir.1993)). “In determining whether intervention is appropriate, courts are guided primarily by practical and equitable considerations, and the requirements for intervention are broadly interpreted in favor of intervention.” Alisal, 370 F.3d at 919. Section 113(i) of CERCLA provides a right to intervene in almost identical terms to Rule 24(a)(2): In any action commenced under this chapter or under the Solid Waste Disposal Act in a court of the United States, any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person’s ability to protect that interest, unless the President or the State shows that the person’s interest is adequately represented by existing parties. 42 U.S.C. § 9613(i). The two provisions differ only in providing a different burden of proof for the fourth part of the test. Under Rule 24(a)(2), the burden of showing inadequate representation is on the applicant; under § 113(i), to avoid intervention, the government must show that the applicant’s interests are adequately represented. Commercial Realty Projects, 309 F.3d at 1118-19. We consider the four parts in turn. 1. Timeliness The parties do not dispute the timeliness of the Applicants’ motion to intervene. Applicants acted promptly after learning of the proposed consent decree. They submitted comments, filed Freedom of Information Act requests, and ultimately moved to intervene, all within a span of four months. 2. Significantly Protectable Interest An applicant for intervention must have a “significantly protectable interest,” meaning that “(1) it asserts an interest that is protected under some law, and (2) there is a ‘relationship’ between its legally protected interest and the plaintiffs claims.” Lockyer, 450 F.3d at 440-41 (citation and internal quotation marks omitted). Applicants here seek to intervene to protect their rights to contribution under CERCLA, and to ensure that the consent decree embodies a fair and reasonable allocation of liability. By its plain language, CERCLA provides to a nonsettling PRP a statutory right to contribution from other PRPs. Section 113(f)(1) provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title.” 42 U.S.C. § 9613(f)(1). Courts are instructed to resolve contribution claims by allocating “response costs among liable parties using such equitable factors as the court determines are appropriate.” Id. Section 113(f)(2), however, makes the right of contribution unavailable against any PRP that enters into an approved settlement with “the United States or a State”: A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement. 42 U.S.C. § 9613(f)(2). Only two circuits, the Eighth and the Tenth, have considered whether non-settling PRPs may intervene in litigation that threatens to cut off their rights to contribution under § 113(f). Both circuits have held that such PRPs have interests sufficient to support intervention as of right. See United States v. Albert Inv. Co., Inc., 585 F.3d 1386 (10th Cir.2009); United States v. Union Elec. Co., 64 F.3d 1152 (8th Cir.1995). District courts have split on the question. Compare United States v. Acorn Eng’g Co., 221 F.R.D. 530, 534-39 (C.D.Cal.2004) (holding interest not legally sufficient to support intervention as of right), United States v. ABC Indus., 153 F.R.D. 603, 607-08 (W.D.Mich.1993) (same), and Arizona v. Motorola, Inc., 139 F.R.D. 141, 145-46 (D.Ariz.1991) (same), with United States v. Exxonmobil Corp., 264 F.R.D. 242, 246-48 (N.D.W.Va.2010) (holding interest legally sufficient); United States v. Acton Corp., 131 F.R.D. 431, 433-34 (D.N.J.1990) (same). We join the Eighth and Tenth Circuits in holding that non-settling PRPs have a significant protectable interest in litigation between the government and would-be settling PRPs. As non-settling PRPs, Applicants in this case are potentially liable for response costs under § 107(a) of CERCLA, 42 U.S.C. § 9607(a). Section 113(f)(2) provides that approval of a consent decree will cut off their contribution rights under § 113(f)(1). The proposed consent decree in the EPA’s suit against the Group of 10 will therefore directly affect Applicants’ interest in maintaining their right to contribution. See Union Elec., 64 F.3d at 1166-67. Further, because non-settling PRPs may be held liable for the entire amount of response costs minus the amount paid in a settlement, Applicants have an obvious interest in the amount of any judicially-approved settlement. See CERCLA § 107(a), 42 U.S.C. § 9607(a); CERCLA § 122(h)(4), 42 U.S.C. § 9622(h)(4). The larger the settlement amount, the smaller the remaining amount for which the non-settling PRPs may be liable. Appellees contend that § 113(f)(1) creates only a contingent or speculative interest in non-settling PRPs, and that Applicants’ interest is therefore not significantly protectable. Some district courts have agreed. For example, the district court in United States v. Vasi determined that: Beazer’s [the applicant’s] potential right to contribution does not constitute a direct, substantial, legally protectable interest in the Vasi case. If anything, Beazer has a remote economic interest. ... Beazer’s right to contribution is at present a contingency, and not something which it owns. Beazer has not been declared a responsible party, nor have the Vasi defendants been found responsible parties. Beazer cannot demonstrate that a substantial interest will be impaired by the Vasi proceedings. Nos. 5:90-cv-1167, 5:90-cv-1168, 1991 WL 557609, at *5 (N.D.Ohio Mar. 6, 1991); see also Motorola, 139 F.R.D. at 146 (offering similar reasoning). We disagree. Although only parties found liable can be made to pay a contribution claim, the statute explicitly provides an interest in such a claim to any “liable or potentially liable” person. CERCLA § 113(f)(1). Moreover, the statute provides that the interest arises during or following a civil action under §§ 106 or 107 of CERCLA. Therefore, under the statute, a non-settling PRP need not have first been found liable in order for the contribution interest to arise. See Union Elec., 64 F.3d at 1167 (“[N]o finding of liability is required, nor assessment of excessive liability, before the contribution interest arises.”). These interests are sufficient to satisfy the requirements of Rule 24(a)(2) and § 113(i) that the interest be “significantly protectable.” CERCLA provides a contribution right and requires that consent decrees be substantively fair. See CERCLA § 113(f)(1); United States v. Montrose Chem. Corp. of Cal., 50 F.3d 741, 743 (9th Cir.1995) (noting proposed consent decrees must be “fair, reasonable and consistent with the objectives of CERCLA”). Thus, Applicants’ interests in contribution and in a fair and reasonable allocation of liability are “protected under some law.” Lockyer, 450 F.3d at 440-41. There is a “relationship” between Applicants’ “legally protected interest and the plaintiffs claims,” id., because the resolution of appellees’ claims will have a direct effect on Applicants. See Donnelly v. Glickman, 159 F.3d 405, 410 (9th Cir.1998). Appellees would have us rely on arguments based on policy and legislative intent as a justification for concluding that non-settling PRPs’ interests are not sufficient to support intervention. Some district courts have been persuaded by policy arguments against intervention, based upon the desirability of giving the EPA leverage to encourage early settlement. These arguments include the desire “to ensure rapid and thorough cleanup of toxic waste sites,” Acorn, 221 F.R.D. at 536; to avoid “the expenditure of limited resources on protracted litigation,” id. at 537; and “to encourage early settlement by parties potentially responsible for cleanup costs,” Motorola, 139 F.R.D. at 145. These courts believe that allowing intervention would be inconsistent with “CERCLA’s joint and several liability scheme and its policy favoring early settlements.” Id. A non-settling PRP “could refuse to engage in meaningful settlement negotiations” until other parties reached a settlement, and only then seek to intervene, which could “cause delays in implementation of the clean up ... and effectively thwart the settlement process.” Vasi, 1991 WL 557609, at *4. There are, however, countervailing policy arguments in favor of treating all PRPs fairly, an interest that is itself embodied in the statutory scheme. Section 113(f)(1) confers a right to contribution on a non-settling PRP. Allowing non-settling PRPs to intervene in CERCLA litigation to represent their own interests helps “ensure that the costs of [hazardous waste site] cleanup efforts [are] borne by those responsible for the contamination.” Burlington N. & Santa Fe Ry. Co. v. United States, — U.S. -, 129 S.Ct. 1870, 1874, 173 L.Ed.2d 812 (2009). Further, even if intervention is allowed, the approval of a settlement will still cut off the non-settling PRPs contribution interest, thus keeping intact “the intent of § 113(f)(2) to induce prompt settlement.” Union Elec., 64 F.3d at 1166. But we do not rely on arguments based on policy. We agree with the Eighth and Tenth Circuits that § 113(f) and 113(i) of CERCLA are unambiguous. See Albert, 585 F.3d at 1394-96; Union Elec., 64 F.3d at 1158 & n. 1, 1165-66 (citing Hazardous Waste Treatment Council v. South Carolina (In re Sierra Club), 945 F.2d 776, 779 (4th Cir.1991)). Section 113(f) confers a right of contribution. Like Rule 24(a)(2), § 113(i) confers a right to intervene on “any person” who “claims an interest” in the litigation, should the disposition of the action “impair or impede” that interest. Section 113(i) contains no restriction on intervention by non-settling PRPs. See Union Elec., 64 F.3d at 1165. Nor does the right of intervention in § 113(i) need to be restricted in order to give effect to the contribution provisions of § 113(f). Indeed, precisely because § 113(f)(2) cuts off the contribution right of non-settling PRPs, § 113(i) gives them the right to intervene upon timely application. We therefore hold that Applicants have significant protectable interests that support intervention as of right. 3. Impairment of Interests Under Rule 24(a)(2) and § 113(i), an applicant must be situated such that the disposition of the action may, as a practical matter, impair or impede its ability to protect its interests. This requirement need not detain us long. It follows from our discussion of Applicants’ significant protectable interests that disposition of this action may impair or impede those interests. It is undisputed that “[disposition of the present litigation could bar or reduce the monetary value of the contribution claims of the prospective intervenors against the settling PRPs.” Union Elec., 64 F.3d at 1167. Non-settling PRPs may be held jointly and severally liable for the entire amount of response costs minus the amount of the settlement. CERCLA §§ 107(a) & 122(h)(4). Thus, as a practical matter, it is highly likely that the amount that the Group of 10 pays in settlement will affect the amount the non-settling PRPs ultimately have to pay, either in settlement or after trial, to satisfy their own liability for response costs. Proposed intervenors’ interests “might not be impaired if they have ‘other means’ to protect them,” even if the lawsuit would affect those interests. Lockyer, 450 F.3d at 442 (quoting Alisal, 370 F.3d at 921) (emphasis in original). But Applicants have no such “other means” in this case. Appellees contend that Applicants have already protected them interests through participation in the SEMOU Cases, and that intervention here would replicate the process already made available in those cases. Participation in the SEMOU Cases, however, has not provided Applicants with a direct opportunity to challenge the fairness of the settlements prior to their entry as a consent decree. Appellees also contend that CERCLA’s notice and comment procedure provided Applicants with an “other means” by which to protect their interests. Notice and comment procedures do provide non-settling PRPs some degree of protection against an unfair consent decree. Some district courts have relied on the existence of these procedures to buttress a determination that intervention as of right is not available. See, e.g., Acorn, 221 F.R.D. at 538-39; United States v. Mid-State Disposal, Inc., 131 F.R.D. 573, 577 (W.D.Wis.1990). We disagree with those courts. Once a consent decree has been negotiated and agreed upon, the interests of the government and would-be settling PRPs are essentially aligned and are adverse to those of non-settling PRPs who oppose entry of the decree. In the case now before us, Applicants had been involved in the settlement process and had made their views known to the government. The EPA and the Group of 10 had already agreed to the terms of the proposed consent decree, despite Applicants’ opposition, before comments were sought. It is unrealistic to expect the government to abandon or substantially modify the proposed consent decree in response to Applicants’ comments at this late stage of the process. The statutory scheme reflects a Congressional intent that the interests of entities other than the government and settling PRPs be considered as part of the settlement process. When a settlement is submitted for judicial approval, a court is required to evaluate whether a proposed consent decree is “fair, reasonable and consistent with the objectives of CERCLA” before approving it. Montrose, 50 F.3d at 743. A court must consider the substantive fairness of the consent decree to non-settling PRPs by assessing whether liability has been roughly apportioned based upon “some acceptable measure of comparative fault.” United States v. Cannons Eng’g Corp., 899 F.2d 79, 87 (1st Cir.1990); see Montrose, 50 F.3d at 746. Applicants have the right to participate in this process and to have their interests considered by the court. We conclude that the notice and comment procedure does not provide Applicants with sufficient “other means” by which to protect their interests, see Lockyer, 450 F.3d at 442, and that those interests will be impaired if Applicants are not afforded the right of intervention. 4. Adequacy of Representation “This Court considers three factors in determining the adequacy of representation: (1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.2003). The parties to this appeal do not contend that the existing parties adequately represent Applicants’ interests. Indeed, the would-be settling PRPs’ interests are directly opposed to those of the Applicants. The would-be settling PRPs wish to limit their share of liability and to bar the non-settling PRPs from obtaining contribution. The EPA, having invested substantially in the settlement negotiations, has an interest in securing approval of the decree. These interests are directly opposed to those of the non-settling PRPs, who seek to challenge the proposed decree. “Because of this difference in interest, the EPA can hardly be expected to litigate with the interests of the non-settling PRPs uppermost in its mind.” Union Elec., 64 F.3d at 1170. Under Rule 24(a)(2), Applicants bear the burden of showing that their interests are not adequately represented by the existing parties. Under § 113(i), the government bears the burden of showing the non-settling PRPs’ interests are adequately represented. Under either standard, we conclude that the interests of the non-settling PRPs are not adequately represented by the existing parties. Conclusion For the foregoing reasons, we hold that Applicants have a right to intervene under Rule 24(a)(2) and § 113© of CERCLA to protect their interests in contribution and in the fairness of the proposed consent decree. We therefore reverse and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. . The SEMOU Cases are: San Gabriel Basin Water Quality Authority v. Aerojet-General Corp., No. CV 02-4565; San Gabriel Valley Water Co. v. Aerojet-General Corp., No. CV 02-6346; Southern California Water Co. v. Aerojet-General Corp., No. CV 02-6340; City of Monterey Park v. Aerojet-General Corp., No. CV 02-5909.

Friedland v. TIC-THE Industrial Co.

TACHA, Circuit Judge. Plaintiff-appellant Robert M. Friedland filed this contribution action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) § 113(f), 42 U.S.C. § 9613(f), against defendants-appellees The Industrial Company (“TIC”) and GeoSyntec Consultants Inc. (“GeoSyntec”). The district court entered summary judgment in favor of the defendants-appellees based on its determination that Mr. Friedland has already recouped all of his recoverable costs from other entities and therefore has no damages to recover in this case. Mr. Friedland appeals. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM. I. BACKGROUND Mr. Friedland is a former director and president of Summitville Consolidated Mining Company, Inc. (“SCMCI”). From about 1984 to 1992, SCMCI operated a large gold mine facility in the Summitville Mining District near Del Norte, Colorado (“the Summitville mine”). TIC helped construct the Summitville mine. GeoSyntec provided quality assurance regarding the mine’s heap leaching system, a process in which a cyanide solution is sprayed on gold-bearing ore to precipitate the gold. In December 1992, SCMCI declared bankruptcy and abandoned the mine. That same month, the United States Environmental Protection Agency (“EPA”) took over management of the Summitville mine and instituted response actions to address actual or threatened releases of contaminated water from the mine into the environment. In 1996, after an investigation of numerous potentially responsible parties (“PRPs”), the United States and the State of Colorado sued Mr. Friedland under CERCLA § 107, 42 U.S.C. § 9607, to recover their response costs. As part of that lawsuit (“the cost-recovery action”), Mr. Friedland filed a third-party contribution complaint under CERCLA § 113, 42 U.S.C. § 9613, against twelve separate PRPs, including an entity called Industrial Constructors Corp. (“ICC”). He did not name TIC or GeoSyntec in that complaint. In December 2000, Mr. Friedland settled the claims brought against him by the United States and Colorado for $20,723,181. Mr. Friedland spent approximately $28 million on legal fees in the cost-recovery action. Prior to that settlement, Mr. Friedland initiated at least two lawsuits relevant to this appeal. In 1999, he sued ICC and United States Fidelity & Guaranty Company (“USF & G”) in Montana state court. ICC had performed work on the Summit-ville mine from 1987-1990 and was contractually bound to indemnify SCMCI against losses caused by ICC, and to reimburse SCMCI for settlements it had to pay as a result of those losses. USF & G had issued insurance policies covering Mr. Friedland and ICC for the contractual liabilities undertaken by ICC. In his complaint, Mr. Friedland contended that ICC was obligated to pay all of his costs of defense, investigation, and legal liabilities, including all sums spent in settlement, in connection with the cost-recovery action. He further claimed that USF & G was obligated under the insurance policies it had issued to provide a defense and indemnification for the claims raised in the cost-recovery action. Approximately nine months after Mr. Friedland, the United States, and Colorado reached the $20,723,181 settlement agreement in the cost-recovery action, Mr. Friedland and ICC entered into a confidential settlement agreement as to Mr. Friedland’s third-party CERCLA contribution claim and to the claims he raised in the Montana state proceeding. ICC agreed to pay a certain sum to Mr. Fried-land and further agreed (because ICC had filed for bankruptcy) to assign him the rights to all insurance claims ICC might have against USF & G. With all claims against ICC resolved, Mr. Friedland amended his Montana state complaint to name only USF & G as a defendant. USF & G subsequently settled that suit for a specific dollar amount in December 2002. In the second lawsuit relevant to this appeal, in June 2002 Mr. Friedland sued The Travelers Indemnity Company (“Travelers”) in Colorado state court for “a declaration that Travelers is fully obligated to pay the costs of investigation, defense, and liability that Mr. Friedland has incurred in connection with the legal actions brought against him claiming or asserting property damage and other alleged injuries at the Summitville Mine Site.” Mr. Friedland alleged that he was a named insured under a Travelers liability policy covering sums he was legally obligated to pay because of property damage, as well as costs he incurred to defend himself. Mr. Friedland and Travelers settled the suit in October 2005. Mr. Friedland initiated this CERCLA contribution action against TIC and GeoSyntec in June 2004. In response to an interrogatory during discovery, Mr. Fried-land stated that he sought contribution for the $20,723,181 he agreed to pay to settle the cost-recovery action brought against him by the United States and Colorado. He also stated that he had already recovered more than that amount from other sources, including the USF & G and Travelers settlements. As a result of this disclosure, the defendants moved for summary judgment, arguing that because Mr. Friedland had already recovered from others amounts exceeding the payment he made to the United States and Colorado, he has no damages and no right to contribution under CERCLA § 113(f) as a matter of law. Mr. Friedland advanced two theories in response. He contended that the collateral source rule prohibits crediting the defendants in the amount of the settlement money he received from USF & G and Travelers. Alternatively, he urged the district court to allocate the settlement money to his $28 million defense costs, rather than the $20,723,181 settlement amount. In this way, Mr. Friedland argued that he still has recoverable damages. The district court rejected both arguments and granted the motion. Mr. Friedland maintains the same two positions on appeal. II. DISCUSSION A. The Collateral Source Rule Derived from the common law, the collateral source rule posits that “[p]ayments made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.” Restatement (Second) of Torts § 920A(2) & cmt. d (1979). The rule thus permits an injured plaintiff to recover more than the damages he has suffered as the result of an injury: the common law did not require setoffs against damage awards. Rather, plaintiffs were allowed to recover the full damages awarded against defendants even though the plaintiffs also received compensation from collateral sources. This principle of double recovery, known as the collateral source rule, provided that compensation or indemnity received by an injured party from a collateral source, wholly independent of the wrongdoer and to which he has not contributed, will not dimmish the damages otherwise recoverable from the wrongdoer. ... Subject to ... limited exceptions, courts would not reduce a judgment because the plaintiff had received compensation from a collateral source even if the result was that the plaintiff recovered twice for a single loss. The purpose of the collateral source rule was to prevent the defendant from receiving credit for such compensation and thereby reduce the amount payable as damages to the injured party. To the extent that either party received a windfall, it was considered more just that the benefit be realized by the plaintiff in the form of double recovery rather than by the tortfeasor in the form of reduced liability. Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1074 (Colo.1992) (quotations and citations omitted). See also Green v. Denver & Rio Grande W. R.R. Co., 59 F.3d 1029, 1032 (10th Cir.1995) (“The rationale for the rule is [that] ... public policy favors giving the plaintiff a double recovery rather than allowing a wrongdoer to enjoy reduced liability simply because the plaintiff received compensation from an independent source.”). Thus, courts have applied the rule when the injured plaintiff has been compensated by, for example, social security disability payments or unemployment compensation, see id., or by the plaintiffs insurance. See Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1341 (10th Cir.1998). Turning to the case before us, it is far from clear that this common-law tort principle applies to claims brought pursuant to CERCLA, a comprehensive federal statute that addresses liability for environmental cleanup costs. Indeed, the section of CERCLA that governs contribution actions clarifies that “[s]uch claims [for contribution] ... shall be governed by Federal law.” CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1). But even assuming that CERCLA generally contemplates application of the collateral source rule, it is clearly inapplicable in the specific context of a § 113(f) contribution action by a PRP such as Mr. Friedland. CERCLA provides for two types of actions to recoup environmental cleanup costs: cost-recovery actions under § 107(a), 42 U.S.C. § 9607(a), and contribution actions under § 133(f), 42 U.S.C. § 9613(f). Young v. United States, 394 F.3d 858, 862 (10th Cir.2005). In a contribution action, a person who has settled a cost-recovery claim with the government (as Mr. Friedland has) may seek contributions from other PRPs. Sun Co., Inc. v. Browning-Ferris, Inc., 124 F.3d 1187, 1194 (10th Cir.1997); CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1). We have explained that a claim for contribution is a claim “by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make....” Sun Co., Inc., 124 F.3d at 1190 (quotations omitted). Thus, a CERCLA contribution action is not a personal injury-action by an innocent plaintiff. Instead, it is a claim between two or more culpable tortfeasors, and the policy underlying the collateral source rule — to provide the innocent party with the benefit of any windfall — is simply not advanced in such cases. At least one other federal court has reached the same conclusion on materially indistinguishable facts. In Basic Management Inc. v. United States, 569 F.Supp.2d 1106 (D.Nev.2008), the plaintiffs filed a CERCLA contribution claim after they agreed to pay $22 million in cleanup costs to the state of Nevada. The plaintiffs’ insurance policies, however, covered nearly all of those costs, leaving the plaintiffs with only a relatively small amount of out-of-pocket expenses. Id. at 1112. Nonetheless, the plaintiffs argued that the collateral source rule precluded the defendants from offsetting their CERCLA liability in the amount of the insurance proceeds. Id. at 1123. The court disagreed. Distinguishing tort cases in which the collateral source rule applies, the court explained that “CERCLA contribution actions are not injury actions in which the injured party is seeking compensation for damages to be made whole again.” Id. at 1123-24. The court went on: In other words, Plaintiffs have not been damaged and are not “entitled” to money as a damaged party; but rather, Plaintiffs can only receive reimbursement for the costs they expended beyond their share of actual responsibility for the environmental damage. There is an actual dollar amount associated with those costs, and in this case, almost all of those costs have been paid directly by Plaintiffs’ insurers, and without further right of subrogation in the insurers. In other words, no party or potential party here has incurred a cost as a PRP for which they could seek “contribution” from another PRP. Allowing Plaintiffs to recover those costs “again” from Defendants would in essence allow Plaintiffs to profit from their own and prior contamination of the site simply because they are in the subsequent chain of title. The purpose of the Contribution element of CERCLA was to reallocate the remedial cost to those who were ultimately responsible for the pollution, not to provide a windfall recovery for parties who happen to be in the chain of title. Id. at 1124. Thus, the court refused to apply the collateral source rule. Id. at 1125. Moreover, permitting a CERCLA contribution-action plaintiff to recoup more than the response costs he paid out of pocket flies in the face of CERCLA’s mandate to apportion those costs equitably among liable parties. See CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1) (“In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.”). Every federal court that has addressed the issue has reached the same conclusion, either with or without reference to the collateral source rule. See, e.g., K.C. 1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1018 (8th Cir.2007) (“Because the settlement credits [from other PRPs to the plaintiff] present a significant allocation factor [under § 9613(f)(1)] ... the district court should have exercised its discretion to consider them when calculating the amount of the judgment.”); Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1189 (9th Cir.2000) (“[0]ne equitable factor is preventing someone from recovering for the same harm twice.”); Basic Mgmt. Inc., 569 F.Supp.2d at 1125 (refusing to apply the collateral source rule because “[e]quity and common sense ... dictate that Plaintiffs cannot recover the remediation costs paid for by their insurance policies.”); Vine St., LLC v. Keeling, 460 F.Supp.2d 728, 765 (E.D.Tex.2006) (refusing to apply the collateral source rule, reasoning that because “the Court has a broad duty to consider facts bearing on the proper equitable allocation of response costs, the monies [the plaintiff] has already recovered are relevant.”); United States v. Davis, 31 F.Supp.2d 45, 64 (D.R.I.1998) (“There is nothing ‘equitable’ about [the] kind of an allocation” that permits the plaintiff “to recover a portion of the costs for which it already has been or will be compensated.”); Raytheon Aircraft Co. v. United States, 2007 WL 4300221, at *3 (D.Kan. Dec.8, 2007) (following K.C. 1986, Boeing, Davis, and Vine Street and refusing to apply the collateral source rule). The two primary cases Mr. Friedland cites in support of his argument do not undermine this conclusion. In Louisiana Department of Transportation v. Kansas City Southern Railway, 846 So.2d 734 (La.2003), the Louisiana Department of Transportation and Development (“DOTD”) cleaned up a site that had been polluted by Kansas City Southern Railway. The federal government reimbursed the DOTD for approximately 90% of the remediation costs it incurred cleaning the site. Id. at 736. Thereafter, DOTD sued Kansas City Southern Railway under the Louisiana Environmental Quality Act (“LEQA”) to recover the entire cleanup cost. Id. Emphasizing the policy behind the collateral source rule, id. at 740-44, the Louisiana Supreme Court held that the rule permitted DOTD to seek the entire cleanup cost from Kansas City Southern Railway rather than only the 10% it had not recouped from the federal government: “We ... hold that the collateral source rule applies in cases arising under the LEQA, at least where a damaged party is seeking reimbursement only for remediation expenses.” Id. at 740 (emphasis added). Similarly, in Town of East Troy v. Soo Line Railroad, 653 F.2d 1123 (7th Cir. 1980), the town of East Troy cleaned up ground water that had been polluted by Soo Line Railroad Company. The town paid for the cleanup costs with federal grant money. Id. at 1126. Thereafter, the town sued Soo Line under a Wisconsin nuisance statute to recover the full amount of the town’s cleanup costs. Id. The Seventh Circuit affirmed the district court’s conclusion that under Wisconsin law, the collateral source rule permitted the town to seek the entire amount of the cleanup. Id. at 1132. Louisiana Department of Transportation and Town of East Troy are distinguishable in at least two significant respects. First, the plaintiffs in those cases were innocent parties, not PRPs seeking contribution from other PRPs. Indeed, the court in Louisiana Department of Transportation specifically limited its holding to cases in which the plaintiff is the injured party seeking reimbursement for remediation costs. Second, the causes of action in both cases arose under state law, not CERCLA. As we explained, CERCLA contribution actions are governed by federal law and permit the district court to consider equitable factors in allocating response costs. Those factors include a pri- or payment to the contribution plaintiff. Thus, we disagree with Mr. Friedland that these cases have any bearing on the issue before us and hold that the district court did not err in refusing to apply the collateral source rule in this CERCLA contribution action. B. Common Damages and Settlement Allocation Relying on Hess Oil Virgin Islands Corp. v. UOP, Inc., 861 F.2d 1197 (10th Cir.1988) and United States v. Burlington Northern Railroad, 200 F.3d 679 (10th Cir.1999), Mr. Friedland argues that the district court erred in reducing his damages by the full amount of the USF & G and Travelers settlements because those settlements do not represent damages in common with the ones at issue in this case. We disagree. In Hess Oil, Hess Oil sued UOP and other defendants after a fire caused several million dollars in damage to one of Hess Oil’s refineries. 861 F.2d at 1199. Defendants other than UOP settled with Hess Oil for $1.5 million. Id. at 1207. After a jury verdict against UOP, the district court credited it with the $1.5 million settlement and required it to pay only the remaining balance on Hess Oil’s damages. Id. at 1199, 1206-07. We rejected Hess Oil’s argument on appeal that UOP was not entitled to a credit. Id. at 1209. We reasoned that under the “one satisfaction rule,” when the conduct of multiple defendants results in a single injury with common damages, and one of the defendants settles with the plaintiff, the amount of the settlement is credited against the amount that may be recovered from the non-settling defendants. Id. at 1208. We found a single injury and common damages in that case because the settlement agreement referred to all damages and all causes of action; it did not expressly apportion damages to specific claims. Id. We reinforced this proposition in Burlington Northern. The United States sued a wood treatment facility, BIC, to recover cleanup costs on a 64-acre tract of land. Burlington Northern, 200 F.3d at 681, 683. During the suit, the United States learned that another company, a predecessor of Burlington Northern Railroad, had owned 17.5 acres of the tract during the time of the polluting activities. Id. at 687. Thus, the United States added Burlington as a defendant. Id. Thereafter, the court entered summary judgment against the first defendant, BIC, concluding that it was liable for all response costs for the entire 64-acre tract. Id. After a bench trial on Burlington’s liability, the court found Burlington liable only for the costs to clean up the 17.5-acre portion of the tract. Id. at 687-88, 695-96. It reasoned that there were two separate and distinct areas of contamination in the tract, and that Burlington only owned one of those areas. After the judgment, BIC settled with the United States for $10.7 million. Id. at 696. Although the settlement agreement did not allocate cleanup costs between the two distinct polluted areas, the district court ruled that the harm was divisible (that is, not common to both defendants) and thus Hess Oil was distinguishable. Id. at 698. The court accordingly credited Burlington’s liability with only a portion — rather then the full amount — of the $10.7 million that the United States had received from BIC. Thus, under Hess Oil and Burlington Northern, if Mr. Friedland’s injury and the damages he alleges in this lawsuit are the same as those addressed by the USF & G and Travelers settlements, then the defendants are entitled to a full credit in the amount of the settlements. We agree with the district court that this is the case. Mr. Friedland admitted as much in his responses to the defendants’ interrogatories. When asked to “[i]dentify Your costs, damages, injuries or expenses arising from or caused by the Cost Recovery Action for which You seek contribution in the lawsuit,” Mr. Friedland responded: The “costs, damages, injuries or expenses caused by the Cost Recovery Action” for which Plaintiff seeks contribution in this lawsuit are the amounts he paid to settle the CERCLA claims against him by the State of Colorado and the United States, ie., $20,288,081, and the additional response costs Plaintiff incurred when he paid $435,100 for the Conceptual Remediation Plan [for a total of $20,723,181]. And when the defendants asked Mr. Friedland to identify all payments he had received related to his “costs, damages, injuries or expenses arising from or caused by the Cost Recovery Action for which You seek contribution in the lawsuit,”— costs which Mr. Friedland himself had admitted extended only to the $20,723,181 settlement amount — he disclosed that he had received the USF & G and Travelers settlements. He further characterized those settlements as resolving his “claims for damages he sustained in the Cost Recovery Action,” which we interpret as referencing the $20,723,181 settlement figure. (Emphasis added.) Thus, by Mr. Fried-land’s own admissions, the USF & G and Travelers settlements remedied the $20,723,181 he incurred in settling the cost-recovery action with the United States and Colorado, and this contribution action reasserts the same injury and resultant damages. In an apparent attempt to create divisible harm where it otherwise does not exist, Mr. Friedland also contended in his interrogatory responses that a substantial portion of the amounts recovered in the USF & G and Travelers settlements were attributable to his $28 million in defense costs and not to the $20,723,181 settlement amount. The USF & G and Travelers settlement agreements, however, do not expressly or impliedly allocate the settlement money toward amounts Mr. Fried-land paid in settling the underlying litigation on the one hand and for legal defense costs on the other. In Hess Oil, we held that the plaintiffs failure to allocate costs in this manner was fatal to its contention that the defendant was not entitled to a credit in the settlement amount. Hess Oil, 861 F.2d at 1209 (“If [Hess Oil] wanted to have any particular application of its settlement with the settling defendants [allocated] towards UOP’s liability, it should have specifically stipulated in the settlement documents what allocations of damages were applicable to each cause of action.”). In the district court, Mr. Friedland’s expert witness submitted an opinion concerning which portions of the USF & G and Travelers settlements were paid to indemnify him and which portions were paid for defense costs. Mr. Friedland argues that the court rejected that testimony without first performing the “gatekeeping” function required by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir.2000) (“[The] gatekeeper function requires the judge to assess the reasoning and methodology underlying the expert’s opinion, and determine whether it is scientifically valid and applicable to a particular set of facts.” (citing Daubert, 509 U.S. at 592, 113 S.Ct. 2786)). We disagree. It is apparent from the district court’s order that it did not refuse to consider the expert opinion based on deficiencies in the expert’s qualifications or methodology. Rather, the court simply explained that “[g]iven the silence of the settlement agreements regarding allocation, this testimony is far too speculative to be admissible and consequently, does not create a genuine issue of material fact for trial.” Friedland v. The Indus. Co., 2008 WL 185693, at *2 n. 4 (D.Colo. Jan.18, 2008). This was not an abuse of discretion. See Eastridge Dev. Co. v. Halpert Assocs., Inc., 853 F.2d 772, 782-83 (10th Cir.1988) (trial court did not abuse its discretion in excluding expert testimony regarding the allocation of settlement money to particular claims when the settlement agreement did not contain an express allocation; proposed testimony was “tentative and speculative”). Finally, Mr. Friedland suggests that the district court’s conclusion rested on the erroneous view that USF & G and Travelers are joint tortfeasors. The district court pointed out that attorneys’ fees are not recoverable in CERCLA contribution actions, see 42 U.S.C. § 9607(a)(4); Key Tronic Corp. v. United States, 511 U.S. 809, 817-19, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994), and that settling parties should therefore make any variance from the statute absolutely clear. We agree that this statement is misplaced, as Mr. Friedland did not sue USF & G and Travelers under CERCLA. A review of the entire order, however, clarifies that this lone misstatement was harmless. The district court had already determined that Mr. Fried-land’s “claims are not divisible, and the general rule of [Hess Oil ], permitting defendants full credit for the amount of any settlement, applies in the absence of an express allocation in the settlement agreements themselves.” Friedland, 2008 WL 185693, at *2. As we explained, that conclusion is correct, and any further commentary was simply superfluous. III. CONCLUSION The district court correctly concluded that the collateral source rule does not apply in this CERCLA contribution action. The court also properly determined that the alleged injury and damages in this lawsuit are the same as those addressed in the USF & G and Travelers settlements. We therefore AFFIRM the entry of summary judgment against Mr. Friedland. We GRANT the appellees’ motion to file their response brief under seal and Mr. Friedland’s motion to file his reply brief under seal. . The amount of this sum is subject to a confidentiality agreement and was filed under seal with this court. . As with the ICC settlement, the amount of the USF & G settlement is subject to a confidentiality agreement and was filed under seal with this court. . We are unaware of any court that has applied the collateral source rule to a claim for contribution, even outside the CERCLA context. . Mr. Friedland argues that Raytheon Aircraft and Vine Street fail to distinguish between payments from insurance policies and private settlements from other PRPs. Although Mr. Friedland is correct that the source of the payment is relevant to whether the collateral source rule applies, the source of the payment is not relevant in the context of § 9613(f)(l)'s instruction to allocate response costs equitably. What matters is that the contribution plaintiff has recovered some or all of its response costs; the identity of the entity providing the recovery is irrelevant. . We recognize that Hess Oil and Burlington present a different procedural posture than the one we face in this appeal. Those cases involved a single lawsuit against multiple defendants, whereas Mr. Friedland recovered in two previous suits against two different defendants and now seeks contribution against other defendants. We consider this distinction immaterial. Hess Oil and Burlington Northern center on the plaintiffs right to recover only to the extent of his damages, which is the sole issue in this appeal and which can arise in a variety of procedural circumstances.

Burlington Northern & Santa Fe Railway Co. v. United States

Justice Stevens delivered the opinion of the Court. In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Act), 94 Stat. 2767, as amended, 42 U. S. C. §§9601-9675, in response to the serious environmental and health risks posed by industrial pollution. See United States v. Bestfoods, 524 U. S. 51, 55 (1998). The Act was designed to promote the “‘timely cleanup of hazardous waste sites’ ” and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination. Consolidated Edison Co. of N. Y. v. UGI Util., Inc., 423 F. 3d 90, 94 (CA2 2005); see also Meghrig v. KFC Western, Inc., 516 U. S. 479, 483 (1996); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F. 2d 1074, 1081 (CA1 1986). These cases raise the questions whether and to what extent a party associated with a contaminated site may be held responsible for the full costs of remediation. I In 1960, Brown & Bryant, Inc. (B&B), began operating an agricultural chemical distribution business, purchasing pesticides and other chemical products from suppliers such as Shell Oil Company (Shell). Using its own equipment, B&B applied its products to customers’ farms. B&B opened its business on a 3.8-acre parcel of former farmland in Arvin, California, and in 1975, expanded operations onto an adjacent 0.9-acre parcel of land owned jointly by the Atchison, Topeka & Santa Fe Railway Company and the Southern Pacific Transportation Company (now known respectively as the Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company) (Railroads). Both parcels of the Arvin facility were graded toward a sump and drainage pond located on the southeast corner of the primary parcel. See Appendix, infra. Neither the sump nor the drainage pond was lined until 1979, allowing waste water and chemical runoff from the facility to seep into the ground water below. During its years of operation, B&B stored and distributed various hazardous chemicals on its property. Among these were the herbicide dinoseb, sold by Dow Chemicals, and the pesticides D-D and Nemagon, both sold by Shell. Dinoseb was stored in 55-gallon drums and 5-gallon containers on a concrete slab outside B&B’s warehouse. Nemagon was stored in 30-gallon drums and 5-gallon containers inside the warehouse. Originally, B&B purchased D-D in 55-gallon drums; beginning in the mid-1960’s, however, Shell began requiring its distributors to maintain bulk storage facilities for D-D. From that time onward, B&B purchased D-D in bulk. When B&B purchased D-D, Shell would arrange for delivery by common carrier, f.o.b. destination. When the product arrived, it was transferred from tanker trucks to a bulk storage tank located on B&B’s primary parcel. From there, the chemical was transferred to bobtail trucks, nurse tanks, and pull rigs: During each of these transfers leaks and spills could — and often did — occur. Although the common carrier and B&B used buckets to catch spills from hoses and gaskets connecting the tanker trucks to its bulk storage tank, the buckets sometimes overflowed or were knocked over, causing D-D to spill onto the ground during the transfer process. Aware that spills of D-D were commonplace among its distributors, in the late 1970’s Shell took several steps to encourage the safe handling of its products. Shell provided distributors with detailed safety manuals and instituted a voluntary discount program for distributors that made improvements in their bulk handling and safety facilities. Later, Shell revised its program to require distributors to obtain an inspection by a qualified engineer and provide self-certification of compliance with applicable laws and regulations. B&B’s Arvin facility was inspected twice, and in 1981, B&B certified to Shell that it had made a number of recommended improvements to its facilities. Despite these improvements, B&B remainéd a “ ‘[s]loppy’ [ojperator.” App. to Pet. for Cert, in No. 07-1601, p. 130a, ¶ 186(Y). Over the course of B&B’s 28 years of operation, delivery spills, equipment failures, and the rinsing of tanks and trucks allowed Nemagon, D-D, and dinoseb to seep into the soil and upper levels of ground water of the Arvin facility. In 1983, the California Department of Toxic Substances Control (DTSC) began investigating B&B’s violation of hazardous waste laws, and the United States Environmental Protection Agency (EPA) soon followed suit, discovering significant contamination of soil and ground water. Of particular concern was a plume of contaminated ground water located under the facility that threatened to leach into an adjacent supply of potential drinking water. Although B&B undertook some efforts at remediation, by 1989 it had become insolvent and ceased all operations. That same year, the Arvin facility was added to the National Priority List, see 54 Fed. Reg. 41027, and subsequently, DTSC and EPA (Governments) exercised their authority under 42 U. S. C. § 9604 to undertake cleanup efforts at the site. By 1998, the Governments had spent more than $8 million responding to the site contamination; their costs have continued to accrue. In 1991, EPA issued an administrative order to the Railroads directing them, as owners of a portion of the property on which the Arvin facility was located, to perform certain remedial tasks in connection with the site. The Railroads did so, incurring expenses of more than $3 million in the process. Seeking to recover at least a portion of their response costs, in 1992 the Railroads brought suit against B&B in the United States District Court for the Eastern District of California. In 1996, that lawsuit was consolidated with two recovery actions brought by DTSC and EPA against Shell and the Railroads. The District Court conducted a 6-week bench trial in 1999 and four years later entered a judgment in favor of the Governments. In a lengthy order supported by 507 separate findings of fact and conclusions of law, the court held that both the Railroads and Shell were potentially responsible parties (PRPs) under CERCLA — the Railroads because they were owners of a portion of the facility, see 42 U. S. C. §§9607(a)(l)-(2), and Shell because it had “arranged for” the disposal of hazardous substances through its sale and delivery of D-D, see § 9607(a)(3). Although the court found the parties liable, it did not impose joint and several liability on Shell and the Railroads for the entire response cost incurred by the Governments. The court found that the site contamination created a single harm but concluded that the harm was divisible and therefore capable of apportionment. Based on three figures — the percentage of the total area of the facility that was owned by the Railroads, the duration of B&B’s business divided by the term of the Railroads’ lease, and the Court's determination that only two of three polluting chemicals spilled on the leased parcel required remediation and that those two chemicals were responsible for roughly two-thirds of the overall site contamination requiring remediation — the court apportioned the Railroads’ liability as 9% of the Governments’ total response cost. Based on estimations of chemical spills of Shell products, the court held Shell liable for 6% of the total site response cost. The Governments appealed the District Court’s apportionment, and Shell cross-appealed the court’s finding of liability. The Court of Appeals acknowledged that Shell did not qualify as a “traditional” arranger under § 9607(a)(3), insofar as it had not contracted with B&B to directly dispose of a hazardous waste product. 520 F. 3d 918, 948 (CA9 2008). Nevertheless, the court stated that Shell could still be held liable under a “ ‘broader’ category of arranger liability” if the “disposal of hazardous wastes [wa]s a foreseeable byproduct of, but not the purpose of, the transaction giving rise to” arranger liability. Ibid. Relying on CERCLA’s definition of “disposal,” which covers acts such as “leaking” and “spilling,” 42 U. S. C. §6903(3), the Ninth Circuit concluded that an entity could arrange for “disposal” “even if it did not intend to dispose” of a hazardous substance. 520 F. 3d, at 949. Applying that theory of arranger liability to the District Court’s findings of fact, the Ninth Circuit held that Shell arranged for the disposal of a hazardous substance through its sale and delivery of D-D: “Shell arranged for delivery of the substances to the site by its subcontractors; was aware of, and to some degree dictated, the transfer arrangements; knew that some leakage was likely in the transfer process; and provided advice and supervision concerning safe transfer and storage. Disposal of a hazardous substance was thus a necessary part of the sale and delivery process.” Id., at 950. Under such circumstances, the court concluded, arranger liability was not precluded by the fact that the purpose of Shell’s action had been to transport a useful and previously unused product to B&B for sale. On the subject of apportionment, the Court of Appeals found “no dispute” on the question whether the harm caused by Shell and the Railroads was capable of apportionment. Id., at 942. The court observed that a portion of the site contamination occurred before the Railroad parcel became part of the facility, only some of the hazardous substances were stored on the Railroad parcel, and “only some of the water on the facility washed over the Railroads’ site.” Ibid. With respect to Shell, the court noted that not all of the hazardous substances spilled on the facility had been sold by Shell. Given those facts, the court readily concluded that “the contamination traceable to the Railroads and Shell, with adequate information, would be allocable, as would be the cost of cleaning up that contamination.” Ibid. Nevertheless, the Court of Appeals held that the District Court erred in finding that the record established a reasonable basis for apportionment. Because the burden of proof on the question of apportionment rested with Shell and the Railroads, the Court of Appeals reversed the District Court’s apportionment of liability and held Shell and the Railroads jointly and severally liable for the Governments’ cost of responding to the contamination of the Arvin facility. The Railroads and Shell moved for rehearing en banc, which the Court of Appeals denied over the dissent of eight judges. See id., at 952 (Bea, J., dissenting). We granted certiorari to determine whether Shell was properly held liable as an entity that had “arranged for disposal” of hazardous substances within the meaning of § 9607(a)(3), and whether Shell and the Railroads were properly held liable for all response costs incurred by EPA and the State of California. See 554 U. S. 945 (2008). Finding error on both points, we now reverse. II CERCLA imposes strict liability for environmental contamination upon four broad classes of PRPs: “(1) the owner and operator of a vessel or a facility, “(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, “(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and “(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance ...42 U. S. C. § 9607(a). Once an entity is identified as a PEP, it may be compelled to clean up a contaminated area or reimburse the Government for its past and future response costs. See Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004). In these cases, it is undisputed that the Railroads qualify as PRPs under both §§ 9607(a)(1) and 9607(a)(2) because they owned the land leased by B&B at the time of the contamination and continue to own it now. The more difficult question is whether Shell also qualifies as a PRP under § 9607(a)(3) by virtue of the circumstances surrounding its sales to B&B. To determine whether Shell may be held liable as an arranger, we begin with the language of the statute. As relevant here, § 9607(a)(3) applies to an entity that “arrange[sj for disposal... of hazardous substances.” It is plain from the language of the statute that CERCLA liability would attach under § 9607(a)(3) if an entity were to enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous substance. It is similarly clear that an entity could not be held liable as an arranger merely for selling a new and useful product if the purchaser of that product later, and unbeknownst to the seller, disposed of the product in a way that led to contamination. See Freeman v. Glaxo Wellcome, Inc., 189 F. 3d 160, 164 (CA2 1999); Florida Power & Light Co. v. Allis Chalmers Corp., 893 F. 2d 1313, 1318 (CA11 1990). Less clear is the liability attaching to the many permutations of “arrangements” that fall between these two extremes — cases in which the seller has some knowledge of the buyers’ planned disposal or whose motives for the “sale” of a hazardous substance are less than clear. In such cases, courts have concluded that the determination whether an entity is an arranger requires a fact-intensive inquiry that looks beyond the parties’ characterization of the transaction as a “disposal” or a “sale” and seeks to discern whether the arrangement was one Congress intended to fall within the scope of CERCLA’s strict-liability provisions. See Freeman, 189 F. 3d, at 164; Pneumo Abex Corp. v. High Point, Thomasville & Denton R. Co., 142 F. 3d 769, 775 (CA4 1998) (“ ‘[T]here is no bright line between a sale and a disposal under CERCLA. A party’s responsibility ... must by necessity turn on a fact-specific inquiry into the nature of the transaction’ ” (quoting United States v. Petersen Sand & Gravel, 806 F. Supp. 1346, 1354 (ND Ill. 1992))); Florida Power & Light Co., 893 F. 2d, at 1318. Although we agree that the question whether § 9607(a)(3) liability attaches is fact intensive and case specific, such liability may not extend beyond the limits of the statute itself. Because CERCLA does not specifically define what it means to “arrangfe] for” disposal of a hazardous substance, see, e. g., United States v. Cello-Foil Prods., Inc., 100 F. 3d 1227, 1231 (CA6 1996); Amcast Indus. Corp. v. Detrex Corp., 2 F. 3d 746, 751 (CA7 1993); Florida Power & Light Co., 893 F. 2d, at 1317, we give the phrase its ordinary meaning. Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. 271, 276 (2009); Perrin v. United States, 444 U. S. 37, 42 (1979). In common parlance, the word “arrange” implies action directed to a specific purpose. See Merriam-Webster’s Collegiate Dictionary 64 (10th ed. 1993) (defining “arrange” as “to make preparations for: plan[;] ... to bring about an agreement or understanding concerning”); see also Amcast Indus. Corp., 2 F. 3d, at 751 (words “‘arranged for’... imply intentional action”). Consequently, under the plain language of the statute, an entity may qualify as an arranger under § 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance. See Cello-Foil Prods., Inc., 100 F. 3d, at 1231 (“[I]t would be error for us not to recognize the indispensable role that state of mind must play in determining whether a party has ‘otherwise arranged for disposal... of hazardous substances’ ”). The Governments do not deny that the statute requires an entity to “arrang[e] for” disposal; however, they interpret that phrase by reference to the statutory term “disposal,” which the Act broadly defines as “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water.” 42 U. S. C. § 6903(3); see also § 9601(29) (adopting the definition of “disposal” contained in the Solid Waste Disposal Act). The Governments assert that by including unintentional acts such as “spilling” and “leaking” in the definition of disposal, Congress intended to impose liability on entities not only when they directly dispose of waste products but also when they engage in legitimate sales of hazardous substances knowing that some disposal may occur as a collateral consequence of the sale itself. Applying that reading of the statute, the Governments contend that Shell arranged for the disposal of D-D within the meaning of § 9607(a)(3) by shipping D-D to B&B under conditions it knew would result in the spilling of a portion of the hazardous substance by the purchaser or common carrier. See Brief for United States 24 (“Although the delivery of a useful product was the ultimate purpose of the arrangement, Shell’s continued participation in the delivery, with knowledge that spills and leaks would result, was sufficient to establish Shell’s intent to dispose of hazardous substances”). Because these spills resulted in wasted D-D, a result Shell anticipated, the Governments insist that Shell was properly found to have arranged for the disposal of D-D. While it is true that in some instances an entity’s knowledge that its product will be leaked, spilled, dumped, or otherwise discarded may provide evidence of the entity’s intent to dispose of its hazardous wastes, knowledge alone is insufficient to prove that an entity “planned for” the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product. In order to qualify as an arranger, Shell must have entered into the sale of D-D with the intention that at least a portion of the product be disposed of during the transfer process by one or more of the methods described in § 6903(3). Here, the facts found by the District Court do not support such a conclusion. Although the evidence adduced at trial showed that Shell was aware that minor, accidental spills occurred during the transfer of D-D from the common carrier to B&B’s bulk storage tanks after the product had arrived at the Arvin facility and had come under B&B’s stewardship, the evidence does not support an inference that Shell intended such spills to occur. To the contrary, the evidence revealed that Shell took numerous steps to encourage its distributors to reduce the likelihood of such spills, providing them with detailed safety manuals, requiring them to maintain adequate storage facilities, and providing discounts for those that took safety precautions. Although Shell’s efforts were less than wholly successful, given these facts, Shell’s mere knowledge that spills and leaks continued to occur is insufficient grounds for concluding that Shell “arranged for” the disposal of D-D within the meaning of § 9607(a)(3). Accordingly, we conclude that Shell was not liable as an arranger for the contamination that occurred at B&B’s Arvin facility. Ill Having concluded that Shell is not liable as an arranger, we need not decide whether the Court of Appeals erred in reversing the District Court’s apportionment of Shell’s liability for the cost of remediation. We must, however, determine whether the Railroads were properly held jointly and severally liable for the foil cost of the Governments’ response efforts. The seminal opinion on the subject of apportionment in CERCLA actions was written in 1983 by Chief Judge Carl Rubin of the United States District Court for the Southern District of Ohio. United States v. Chem-Dyne Corp., 572 F. Supp. 802. After reviewing CERCLA’s history, Chief Judge Rubin concluded that although the Act imposed a “strict liability standard,” id., at 805, it did not mandate “joint and several” liability in every case, see id., at 807. Rather, Congress intended the scope of liability to “be determined from traditional and evolving principles of common law.” Id., at 808. The Chem-Dyne approach has been folly embraced by the Courts of Appeals. See, e. g., In re Bell Petroleum Servs., Inc., 3 F. 3d 889, 901-902 (CA5 1993); United States v. Alcan Aluminum Corp., 964 F. 2d 252, 268 (CA3 1992); O’Neil v. Picillo, 883 F. 2d 176, 178 (CA1 1989); United States v. Monsanto Co., 858 F. 2d 160, 171-173 (CA4 1988). Following Chem-Dyne, the Courts of Appeals have acknowledged that “[t]he universal starting point for divisibility of harm analyses in CERCLA cases” is §433A of the Restatement (Second) of Torts. United States v. Hercules, Inc., 247 F. 3d 706, 717 (CA8 2001); Chem-Nuclear Systems, Inc. v. Bush, 292 F. 3d 254, 259 (CADC 2002); United States v. R. W. Meyer, Inc., 889 F. 2d 1497, 1507 (CA6 1989). Under the Restatement, “when two or more persons acting independently eaus[e] a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused. Restatement (Second) of Torts, §§ 433A, 881 (1976); Prosser, Law of Torts (4th ed. 1971), pp. 313-314____ But where two or more persons cause a single and indivisible harm, each is subject to liability for the entire harm. Restatement (Second) of Torts, §875; Prosser at 315-316.” Chem-Dyne Corp., 572 F. Supp., at 810. In other words, apportionment is proper when “there is a reasonable basis for determining the contribution of each cause to a single harm.” Restatement (Second) of Torts §433A(l)(b), p. 434 (1963-1964) (hereinafter Restatement). Not all harms are capable of apportionment, however, and CERCLA defendants seeking to avoid joint and several liability bear the burden of proving that a reasonable basis for apportionment exists. See Chem-Dyne Corp., 572 F. Supp., at 810 (citing Restatement § 433B (1976)) (placing burden of proof on party seeking apportionment). When two or more causes produce a single, indivisible harm, “courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.” Id., §433A, Comment i, at 440 (1963-1964). Neither the parties nor the lower courts dispute the principles that govern apportionment in CERCLA cases, and both the District Court and Court of Appeals agreed that the harm created by the contamination of the Arvin site, although singular, was theoretically capable of apportionment. The question then is whether the record provided a reasonable basis for the District Court’s conclusion that the Railroads were liable for only 9% of the harm caused by contamination at the Arvin facility. The District Court criticized the Railroads for taking a “‘scorched earth,’ all-or-nothing approach to liability,” failing to acknowledge any responsibility for the release of hazardous substances that occurred on their parcel throughout the 13-year period of B&B’s lease. According to the District Court, the Railroads’ position on liability, combined with the Governments’ refusal to acknowledge the potential divisibility of the harm, complicated the apportioning of liability. See App. to Pet. for Cert, in No. 07-1601, at 236a-237a, ¶ 455 (“All parties ... effectively abdicated providing any helpful arguments to the court and have left the court to independently perform the equitable apportionment analysis demanded by the circumstances of the case”). Yet despite the parties’ failure to assist the court in linking the evidence supporting apportionment to the proper allocation of liability, the District Court ultimately concluded that this was “a classic ‘divisible in terms of degree’ case, both as to the time period in which defendants’ conduct occurred, and ownership existed, and as to the estimated maximum contribution of each party’s activities that released hazardous substances that caused Site contamination.” Id., at 239a, ¶462. Consequently, the District Court apportioned liability, assigning the Railroads 9% of the total remediation costs. The District Court calculated the Railroads’ liability based on three figures. First, the court noted that the Railroad parcel constituted only 19% of the surface area of the Arvin site. Second, the court observed that the Railroads had leased their parcel to B&B for 13 years, which was only 45% of the time B&B operated the Arvin facility. Finally, the court found that the volume of hazardous-substance-releasing activities on the B&B property was at least 10 times greater than the releases that occurred on the Railroad parcel, and it concluded that only spills of two chemicals, Nemagon and dinoseb (not D-D), substantially contributed to the contamination that had originated on the Railroad parcel and that those two chemicals had contributed to two-thirds of the overall site contamination requiring remediation. The court then multiplied .19 by .45 by .66 (two-thirds) and rounded up to determine that the Railroads were responsible for approximately 6% of the remediation costs. “Allowing for calculation errors up to 50%,” the court con-eluded that the Railroads could be held responsible for 9% of the total CERCLA response cost for the Arvin site. Id., at 252a, ¶ 489. The Court of Appeals criticized the evidence on which the District Court’s conclusions rested, finding a lack of sufficient data to establish the precise proportion of contamination that occurred on the relative portions of the Arvin facility and the rate of contamination in the years prior to B&B’s addition of the Railroad parcel. The court noted that neither the duration of the lease nor the size of the leased area alone was a reliable measure of the harm caused by activities on the property owned by the Railroads, and — as the court’s upward adjustment confirmed — the court had relied on estimates rather than specific and detailed records as a basis for its conclusions. Despite these criticisms, we conclude that the facts contained in the record reasonably supported the apportionment of liability. The District Court’s detailed findings make it abundantly clear that the primary pollution at the Arvin facility was contained in an unlined sump and an unlined pond in the southeastern portion of the facility most distant from the Railroads’ parcel and that the spills of hazardous chemicals that occurred on the Railroad parcel contributed to no more than 10% of the total site contamination, see id., at 247a-248a, some of which did not require remediation. With those background facts in mind, we are persuaded that it was reasonable for the court to use the size of the leased parcel and the duration of the lease as the starting point for its analysis. Although the Court of Appeals faulted the District Court for relying on the “simplest of considerations: percentages of land area, time of ownership, and types of hazardous products,” 520 F. 3d, at 943, these were the same factors the court had earlier acknowledged were relevant to the apportionment analysis, see id., at 936, n. 18 (“We of course agree with our sister circuits that, if adequate information is available, divisibility may be established by ‘volumetric, chronological, or other types of evidence,’ including appropriate geographic considerations” (citations omitted)). The Court of Appeals also criticized the District Court’s assumption that spills of Nemagon and dinoseb were responsible for only two-thirds of the chemical spills requiring remediation, observing that each PRP’s share of the total harm was not necessarily equal to the quantity of pollutants that were deposited on its portion of the total facility. Although the evidence adduced by the parties did not allow the court to calculate precisely the amount of hazardous chemicals contributed by the Railroad parcel to the total site contamination or the exact percentage of harm caused by each chemical, the evidence did show that fewer spills occurred on the Railroad parcel and that of those spills that occurred, not all were carried across the Railroad parcel to the B&B sump and pond from which most of the contamination originated. The fact that no D-D spills on the Railroad parcel required remediation lends strength to the District Court’s conclusion that the Railroad parcel contributed only Nemagon and dinoseb in quantities requiring remediation. The District Court’s conclusion that those two chemicals accounted for only two-thirds of the contamination requiring remediation finds less support in the record; however, any miscalculation on that point is harmless in light of the District Court’s ultimate allocation of liability, which included a 50% margin of error equal to the 3% reduction in liability the District Court provided based on its assessment of the effect of the Nemagon and dinoseb spills. Had the District Court limited its apportionment calculations to the amount of time the Railroad parcel was in use and the percentage of the facility located on that parcel, it would have assigned the Railroads 9% of the response cost. By including a two-thirds reduction in liability for the Nemagon and dinoseb with a 50% “margin of error,” the District Court reached the same result. Because the District Court’s ultimate allocation of liability is supported by the evidence and comports with the apportionment principles outlined above, we reverse the Court of Appeals’ conclusion that the Railroads are subject to joint and several liability for all response costs arising out of the contamination of the Arvin facility. IV For the foregoing reasons, we conclude that the Court of Appeals erred by holding Shell liable as an arranger under CERCLA for the costs of remediating environmental contamination at the Arvin, California, facility. Furthermore, we conclude that the District Court reasonably apportioned the Railroads’ share of the site remediation costs at 9%. The judgment is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. APPENDIX Because D-D is corrosive, bulk storage of the chemical led to numerous tank failures and spills as the chemical rusted tanks and eroded valves. F.o.b. destination means “the seller must at his own expense and risk transport the goods to [the destination] and there tender delivery of them....” U. C. C. §2-319(l)(b) (2001). The District Court found that B&B assumed “stewardship” over the D-D as soon as the common carrier entered the Arvin facility. App. to Pet. for Cert. in No. 07-1601, p. 124a, ¶ 160. The ground water at the Arvin site is divided into three zones. The A-zone is located 60-80 feet below the ground. It has been tested and found to have high levels of contamination. The B-zone is located 150 feet below ground. Although the B-zone is not currently used as a source of drinking water, it has the potential to serve as such a source. No contamination has yet been found in that zone. The C-zone is an aquifer located 200 feet below ground. It is the sole current source of drinking water and, thus far, has suffered no contamination from the Arvin site. Although the Railroads did not produce precise figures regarding the exact quantity of chemical spills on each parcel in each year of the facility’s operation, the District Court found it “indisputable that the overwhelming majority of hazardous substances were released from the B&B parcel.” Id., at 248a, ¶ 477. The court explained that “the predominant activities conducted on the Railroad parcel through the years were storage and some washing and rinsing of tanks, other receptades, and chemical application vehicles. Mixing, formulating, loading, and unloading of ag-chemieal hazardous substances, which contributed most of the liability causing releases, were predominantly carried out by B&B on the B&B parcel.” Id., at 247a-248a, ¶476. 5 For purposes of the statute, a “person” is defined as “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” 42 U. S. C. §9601(21). Under CERCLA, PRPs are liable for: “(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; “(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; “(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and “(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.” § 9607(a)(4). “Hazardous waste” is defined as “a solid waste, or combination of solid wastes, which . . . may . . . pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.” § 6903(5)(B); §9601(29). CERCLA defines “hazardous substance” to include a variety of chemicals and toxins including those designated by EPA as air pollutants, water pollutants, and solid wastes. §9601(14). As the Governments point out, insofar as the District Court made reference to equitable considerations favoring apportionment, it erred. Equitable considerations play no role in the apportionment analysis; rather, apportionment is proper only when the evidence supports the divisibility of the damages jointly caused by the PRPs. See generally United States v. Hercules, Inc., 247 F. 3d 706, 718-719 (CA8 2001); United States v. Brighton, 153 F. 3d 307, 318-319 (CA6 1998); Redwing Carriers, Inc. v. Saraland Apartments, 94 F. 3d 1489, 1513 (CA11 1996). As the Court of Appeals explained, “[a]pportionment... looks to whether defendants may avoid joint and several liability by establishing a fixed amount of damage for which they are liable,” while contribution actions allow jointly and severally liable PRPs to recover from each other on the basis of equitable considerations. 520 F. 3d 918, 939-940 (CA9 2008); see also 42 U. S. C. § 9613(f)(1) (providing that, “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate”). The error is of no consequence, however, because despite the District Court’s reference to equity, its actual apportionment decision was properly rooted in evidence that provided a reasonable basis for identifying the portion of the harm attributable to the Railroads.

Burlington Northern & Santa Fe Railway Co. v. United States

Justice Ginsburg, dissenting. Although the question is close, I would uphold the determinations of the courts below that Shell qualifies as an arranger within the compass of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). See 42 U.S.C. §9607(a)(3). As the facts found by the District Court bear out, App. to Pet. for Cert, in No. 07-1601, pp. 113a-129a, 208a-213a, Shell “arranged for disposal... of hazardous substances” owned by Shell when the arrangements were made. In the 1950’s and early 1960’s, Shell shipped most of its products to Brown and Bryant (B&B) in 55-gallon drums, thereby ensuring against spillage or leakage during delivery and transfer. Id., at 89a, 115a. Later, Shell found it economically advantageous, in lieu of shipping in drums, to require B&B to maintain bulk storage facilities for receipt of the chemicals B&B purchased from Shell. Id., at 115a. By the mid-1960’s, Shell was delivering its chemical to B&B in bulk tank truckloads. Id., at 89a, 115a. As the Court recognizes, “bulk storage of the chemical led to numerous tank failures and spills as the chemical rusted tanks and eroded valves.” Ante, at 603, n. 1. Shell furthermore specified the equipment to be used in transferring the chemicals from the delivery truck to B&B’s storage tanks. App. to Pet. for Cert, in No. 07-1601, pp. 120a-122a, 124a. In the process, spills and leaks were inevitable; indeed spills occurred every time deliveries were made. 520 F. 3d 918, 950-951 (CA9 2008). See also App. to Pet. for Cert, in No. 07-1601, pp. 119a-122a, ¶ 142 (“It is undisputed that spills were inherent in the delivery process that Shell arranged .. ..”). That Shell sold B&B useful products, the Ninth Circuit observed, did not exonerate Shell from CERCLA liability, for the sales “necessarily and immediately resulted] in the leakage of hazardous substances.” 520 F. 3d, at 950. The deliveries, Shell was well aware, directly and routinely resulted in disposals of hazardous substances (through spills and leaks) for more than 20 years. “[M]ere knowledge” may not be enough, ante, at 613, but Shell did not simply know of the spills and leaks without contributing to them. Given the control rein held by Shell over the mode of delivery and transfer, 520 F. 3d, at 950-951, the lower courts held and I agree, Shell was properly ranked an arranger. Relieving Shell of any obligation to pay for the cleanup undertaken by the United States and California is hardly commanded by CERCLA’s text, and is surely at odds with CERCLA’s objective — to place the cost of remediation on persons whose activities contributed to the contamination rather than on the taxpaying public. As to apportioning costs, the District Court undertook a heroic labor. The Railroads and Shell, the court noted, had pursued a “ ‘scorched earth,’ all-or-nothing approach to liability. Neither acknowledged an iota of responsibility .... Neither party offered helpful arguments to apportion liability.” App. to Pet. for Cert, in No. 07-1601, p. 236a, ¶ 455. Consequently, the court strived “independently [to] perform [an] equitable apportionment analysis.” Id., at 237a, ¶455. Given the party presentation principle basic to our procedural system, Greenlaw v. United States, 554 U. S. 237, 243-244 (2008), it is questionable whether the court should have pursued the matter sua sponte. See Castro v. United States, 540 U. S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment) (“Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.”). Cf. Kaplan, von Mehren, & Schaefer, Phases of German Civil Procedure I, 71 Harv. L. Rev. 1193,1224 (1958) (describing court’s obligation, under Germany’s Code of Civil Procedure, to see to it that the case is fully developed). The trial court’s mode of procedure, the United States urged before this Court, “deprived the government of a fair opportunity to respond to the court’s theories of apportionment and to rebut their factual underpinnings — an opportunity the governmen[t] would have had if those theories had been advanced by petitioners themselves.” Brief for United States 41. I would return these cases to the District Court to give all parties a fair opportunity to address that court’s endeavor to allocate costs. Because the Court’s disposition precludes that opportunity, I dissent from the Court’s judgment. “Disposal” is defined in 42 U.S.C. §6903(3) to include “spilling [or] leaking” of “any . . . hazardous waste into or on any land or water so that [the] . . . hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters.” Shell shipped the chemicals to B&B “F.O.B. Destination.” At oral argument, the Court asked Shell’s counsel: Suppose there had been “no transfer of ownership until the delivery [was] complete?” In that event, counsel responded, “Shell would have been the owner of the waste.” Tr. of Oral Arg. 8. The Court credits the fact that at the time of the spills, the chemicals, having been shipped “F.O.B. Destination,” “had come under B&B’s stewardship.” Ante, at 612. In my view, CERCLA liability, or the absence thereof, should not turn, in any part, on such an eminently shipper-fixable specification as “F.O.B. Destination.” For example, on brief, the United States observed: “[P]etitioners identify no record support for the district court’s assumption that each party’s contribution to the overall harm is proportional to the relative volume of hazardous substances attributable to it.” Brief for United States 45. And at oral argument, counsel for the United States stressed that the District Court “framed the relevant inquiry as what percentage of the contamination was attributable to the railroad parcel, to the Shell-controlled deliveries, and to the B&B parcel. But it made no finding . .. as to what the cost of [remediation] would have been ... if the only source of contamination had been the railroad parcel.” Tr. of Oral Arg. 52. See also id., at 56 (“[T]he crucial question is what response costs the government would have been required to bear ... if only the railroad parcel’s contamination had been at issue ....”).

Beazer East, Inc. v. Mead Corp.

OPINION WEIS, Circuit Judge. This is the third appeal in this long-running contribution claim under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), Pub.L. No. 96-510, 94 Stat. 2767. After the second appeal was decided, defendant Mead moved for judgment for failure to state a claim or for lack of subject-matter jurisdiction. The District Court denied the motions, but certified a controlling question of law under 28 U.S.C. § 1292(b) raising the issue of whether the effect of Cooper Indus, v. Aviall Servs., Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), is to deny subject-matter jurisdiction over plaintiff Beazer’s contribution claims under § 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1). Also implicated is the denial of Mead’s motion to dismiss for failure to state a claim under § 113(f)(1). We conclude that the District Court has subject-matter jurisdiction. We will also affirm the denial of the motion for judgment on the pleadings and will remand for further proceedings. I. We will summarize the progress of this litigation to the extent that it is pertinent to the pending appeal. Beazer’s predecessor in title purchased property previously owned by Mead. After federal and state investigations revealed the existence of hazardous wastes at the site, Beazer entered into a 1991 Administrative Order on Consent with the United States Environmental Protection Agency under the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. § 6901 et seq. After Mead declined to participate in the investigation and cleanup of the site, Beazer began a lengthy and continuing remediation process. In early 1991, Beazer filed a complaint against Mead seeking contribution for investigation and cleanup costs under §§ 107(a) and 113(f)(1) of CERCLA, 42 U.S.C. §§ 9607(a), 9613(f)(1), as well as asserting various state and common law claims. Mead counterclaimed based on an indemnity provision in the original purchase agreement. The District Court granted summary judgment to Mead, but on appeal we reversed, holding that the purchase agreement did not require indemnification. Beazer East, Inc. v. Mead Corp., 34 F.3d 206, 208 (3d Cir.1994) (Beazer I). The case was remanded so that the District Court could “consider both parties’ contribution claims, and determine the proper apportionment of CERCLA liability.” Id. at 209. On remand, Mead argued, inter alia, that Beazer could not recover most of its costs under § 113(f)(1) because they were incurred under the RCRA rather than CERCLA. Moreover, the costs could not be obtained under § 107(a) because they were not voluntarily incurred. In 1996, the District Court determined that Beazer’s §§ 107 and 113(f) claims were duplicative. It dismissed the § 107 claim, stating, “Beazer has failed to identify any additional bases for recovery or damages under a § 9706 [§ 107] claim which would not be included in a final allocation of the parties’ contribution claims under § 9613(f) [§ 113(f) ].” The District Court also concluded, “[t]o the extent that the motion seeks to preclude Beazer from advancing its § [113(f) ] action on the bases that Beazer’s response costs were incurred on a voluntary nature or were incurred under the Resource Conservation Recovery Act, 42 U.S.C. § 6901 et seq., the motion is likewise denied.” The Court then referred the case to a magistrate judge to allocate costs between Mead and Beazer. At that time, neither of the parties sought reconsideration of the District Court’s rulings on the viability of the § 107 and § 113(f)(1) claims. After conclusion of the magistrate’s allocation proceedings, the district judge modified the magistrate’s recommendations and, following a bench trial, assessed Mead with 67.5% and Beazer with 32.5% liability. In August 2002, the Court entered judgment against Mead in the amount of $3,243,467.80 plus interest. The Court also entered a declaratory judgment in October 2002 requiring Mead to pay 67.5% of Beazer’s continuing costs. Mead appealed, contending that in the absence of its consent the magistrate judge lacked authority to conduct a fact-finding trial. Mead did not challenge its liability for contribution under § 113(f)(1), nor did Beazer discuss whether it had a claim for contribution under § 107. In June 2005, this Court decided that the magistrate judge lacked authority to conduct the allocation proceeding. Beazer East, Inc. v. Mead Corp., 412 F.3d 429, 432 (3d Cir.2005) (Beazer II). We remanded “for a new equitable allocation proceeding before the District Judge,” id., and commented on factors to be considered in the apportionment, but made no ruling on the liability of the parties. Id. at 445-49. In December 2004, after Beazer II was argued, the Supreme Court decided Cooper. Essentially, that case held that a party “who has not been sued under § 106 or § 107(a) ... [cannot] obtain contribution under § 113(f)(1) from other liable parties.” 543 U.S. at 161, 125 S.Ct. 577. In June 2005, we filed the opinion in Beazer II and returned the case to the District Court. Six months later, in January 2006, Mead filed a motion for judgment on the pleadings, asserting that Beazer could not maintain its claim for contribution pursuant to § 113(f)(1) because of the Cooper decision. In a later filing, Mead argued that Cooper deprived the District Court of subject-matter jurisdiction because Beazer had not been sued under § 106 or § 107. The District Court denied the motion, ruling that the requirement for a suit under § 106 or § 107 was an element of a claim for relief under § 113(f)(1) and not a jurisdictional threshold. The Court also noted that Mead had waived its non-jurisdictional defense to the § 113(f)(1) claim by failing to raise the issue on its appeal in Beazer II. Mead then filed this interlocutory appeal. After it was docketed and the briefs were filed, but before oral argument, the Supreme Court decided United States v. Atlantic Research Corp.,—U.S.-, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007), holding that a “potentially responsible party” (PRP) may recover against another PRP for cleanup costs under § 107(a). Id. at 2334. II. CERCLA is a strict liability statute granting the President broad authority to compel private parties and governmental bodies to clean up contaminated sites and to require “everyone who is potentially responsible for hazardous-waste contamination ... [to] contribute to the costs of cleanup.” United States v. Bestfoods, 524 U.S. 51, 56 n. 1, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) (emphasis and quotation omitted). As originally enacted, the statute provided for recovery under § 107, which listed four categories of parties, including current and past owners of a facility, who were potentially responsible for cleanup costs. See 42 U.S.C. § 9607(a). Section 107 provided that PRPs were liable for costs incurred by the federal and state governments, 42 U.S.C. § 9607(a)(4)(A), as well as for “any other necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). Section 107, however, proved to be an inadequate means for allocating cleanup costs among the various PRPs. Disputes arose over whether a private party that voluntarily incurred cleanup expenses or had been sued by other PRPs could recover from other PRPs. Litigation about the scope of § 107 ultimately led Congress to amend CERCLA by adding § 113(f) to provide a right to contribution. See Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613. Under § 113(f)(1), “[a]ny person may seek contribution from any other person who is liable or potentially liable under section 107(a), during or following any civil actions under section 106 of this title or under section 107(a).” 42 U.S.C. § 9613(f)(1). Further, “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” Id. Section 113, however, raised questions over the interplay between § 113(f) and § 107(a). See, e.g., Atlantic Research, 127 5.Ct. at 2334. Courts struggled to determine whether § 113(f)(1) allowed a PRP to seek contribution from other PRPs for voluntary cleanup costs and whether it could maintain a cost-recovery action under § 107 for joint and several liability against other PRPs. See E.I. DuPont de Nemours & Co. v. United States, 508 F.3d 126, 132-33 (3d Cir.2007). In 2004, the Supreme Court held that “a private party who has not been sued under § 106 or § 107(a) may [not] ... obtain contribution under § 113(f)(1) from other liable parties.” Cooper, 543 U.S. at 161, 125 S.Ct. 577. The Court, however, did not decide whether a PRP may “pursue a § 107(a) action against other PRPs for joint and several liability,” id. at 169, 125 S.Ct. 577, and whether a PRP has an “implied right to contribution under § 107.” Id. at 170, 125 S.Ct. 577. Atlantic Research answered the question left open by Cooper, holding that “the plain language of [§ 107(a)(4)] subpara-graph (B) authorizes cost-recovery actions by any private party, including PRPs.” 127 S.Ct. at 2336. The Court described the interplay between § 107(a) and § 113(f)(1) as follows: “Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under § 106 or § 107(a). And § 107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs.” Id. at 2338. III. Mead contends that because the § 107 claim was dismissed in 1996 by the District Court, Beazer’s only remaining means of recovery is under § 113(f)(1), a claim that is fatally flawed in light of Cooper. Mead argues that because Beazer has not “been sued under § 106 or § 107(a) ... [it may not] obtain contribution under § 113(f)(1) from other liable parties.” Cooper, 543 U.S. at 161, 125 S.Ct. 577. According to Mead, the failure to meet the “civil action” requirement deprives the District Court of subject-matter jurisdiction. Disagreeing, the District Court described the “civil action” requirement as “an element of a claim for relief under § 113(f)(1), not a jurisdictional threshold.” Mead contends on appeal that the requirement is jurisdictional because it constitutes the primary foundation for all § 113(f)(1) contribution claims. Further, Mead argues that, even if the District Court was correct, Cooper destroyed jurisdiction because the claim is now so “completely devoid of merit as not to involve a federal controversy.” Kulick v. Pocono Downs Racing Ass’n, 816 F.2d 895, 899 (3d Cir.1987) (quotation omitted). A. We turn first to the contention that the “civil action” requirement in § 113(f)(1) is jurisdictional. Mead’s approach is an example of the loose use of the term “jurisdiction,” an error that has frequently been present in judicial opinions. See Arbaugh v. Y & H Corp., 546 U.S. 500, 511, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The terminology has been often used incorrectly when litigation has been dismissed on the merits in situations where the courts clearly had the power to adjudicate the disputes. Id. Arbaugh discussed the confusion caused by the profligate use of “jurisdiction,” id. at 510-11, 126 S.Ct. 1235, observing that “jurisdiction” is a word of “many, too many meanings.” Id. at 510, 126 S.Ct. 1235 (quotation omitted). Characterizing some dispositions as “drive-by jurisdictional rulings,” id. at 511, 126 S.Ct. 1235 (internal quotation marks omitted), the Court cautioned that they “should be accorded ‘no precedential effect’ ” on a court’s authority. Id. (citation omitted). Arbaugh held that the employee-numer-osity prerequisite for Title VII discrimination proceedings was an element of the claim and not a test for subject matter-jurisdiction because the requirement related to “the substantive adequacy” of the claim. Id. at 504, 126 S.Ct. 1235. In reaching its conclusion, the Court set out a “readily administrable bright line” test for determining if a statutory limitation is jurisdictional: “If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Id. at 515-16, 126 S.Ct. 1235 (internal citation omitted). Applying the Arbaugh standard in the case before us demonstrates that the requirement that a § 113(f)(1) plaintiff must have been sued under § 106 or § 107(a) is an element of the claim. Failure to meet that requirement does not deprive the court of jurisdiction to decide the validity of the § 113(f)(1) claim. Mead has not pointed to any language in § 113(f)(1) to show that Congress clearly stated that the requirement should “count as jurisdictional.” If Congress intended that result, it could have explicitly said so. See Arbaugh, 546 U.S. at 515, 126 S.Ct. 1235. We are persuaded that the “civil action” requirement in § 113(f) is an element of the claim. See GenCorp, Inc. v. Olin Corp., 477 F.3d 368, 376 (6th Cir.2007) (The “civil action” requirement is not jurisdictional because there is “no indication that Congress perceived this requirement as jurisdictional in nature.”). B. Mead also argues that the District Court lacks subject matter jurisdiction because Beazer’s § 113(f)(1) claim has been made insubstantial by the Cooper decision. The “legal insufficiency of a federal claim generally does not eliminate the subject matter jurisdiction of a federal court.” Growth Horizons, Inc. v. Delaware County, 983 F.2d 1277, 1280 (3d Cir.1993). In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), however, the Supreme Court observed that the rule did not apply “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.” Id. at 682-83, 66 S.Ct. 773; see also Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (Dismissal for lack of subject-matter jurisdiction is appropriate if a claim is “so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.”). Mead’s argument rests on the assumption that Beazer’s § 113(f)(1) claim cannot possibly satisfy the “civil action” requirement. However, the Supreme Court apparently left open the question of whether a CERCLA administrative order can qualify as a “civil action” when it stated in Cooper that “we need not decide whether ... [an administrative order under § 106] would qualify as a ‘civil action.’ ” 543 U.S. at 168 n. 5, 125 S.Ct. 577. Beazer argues that the RCRA order is the functional equivalent of one under CERC-LA and would qualify as a “civil action.” We need not address the merits of Beazer’s argument, but observe that its § 113(f)(1) claim does not enter the realm of the “wholly insubstantial and frivolous.” In answer to the certified question of law, we hold that the District Court retained its original jurisdiction to adjudicate the issues in this case. IV. Although the certified question is a narrow one, we may address other issues that are fairly set forth in the record and which ultimately affect the outcome of the litigation. Ferrostaal, Inc. v. M/V Sea Phoenix, 447 F.3d 212, 216 (3d Cir.2006) (a certified order under 28 U.S.C. § 1292(b) extends to all issues fairly included in the underlying order); NVE Inc. v. Dep’t of Health & Human Servs., 436 F.3d 182, 196 (3d Cir.2006). It would be a waste of judicial resources to delay resolution of the pertinent issues in this already lengthy litigation. We will therefore address the contention that the District Court erred in denying dismissal for failure to state a claim. Mead argues that Beazer’s § 113(f)(1) claim fails because it does not meet the requisite “during or following any civil action” requirement discussed in Cooper. The District Court concluded that Mead waived this objection by failing to raise it during its second appeal in Beazer II. Mead now contends that it did not waive its objection because the District Court did not finally rule on that point in the July 1996 order prior to Beazer II and, therefore, the objection is still pending. In its memorandum in support of its motion for partial summary judgment, Mead had argued that “[n]othing in section 113(f) authorizes Beazer to seek contribution for costs incurred under other statutory schemes, such as RCRA. On the contrary, section 113(f) only covers persons facing liability under sections 106 or 107.” The District Court rejected that argument, stating that “[t]o the extent that the motion seeks to preclude Beazer from advancing its § 9613(f) action on the bases that Beazer’s response costs were incurred on a voluntary nature or were incurred under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the motion is likewise denied.” The District Court’s order was explicit, but not immediately appealable because it was a denial of a motion for summary judgment. Boeing Co. v. Int’l Union, United Auto., Aerospace, & Agric. Implement Workers, 370 F.2d 969, 970 (3d Cir.1967). The 1996 denial of Mead’s motion based on the “civil action” prerequisite became final and appealable in 2002 when the District Court ordered judgments in Beazer’s favor for $3,243,467.80 and continuing costs. In the opinion accompanying the August 2002 order, the District Court stated that the relevant issue was “which of Beazer’s specifically claimed environmental costs ... are recoverable in a contribution action under 42 U.S.C. § 9613(f) [§ 113(f) ].” In October 2002, the District Court issued an order incorporating its prior rulings and declared that Mead was “liable to plaintiff ... for 67.5% of all of Beazer’s necessary response costs.” The 2002 judgments were based on a finding that Mead was liable under § 113(f)(1). Mead’s current objections to the § 113(f)(1) claim had been rejected at that point and should have been presented in its direct appeal in Beazer II. See United States v. Pulirme, 241 F.3d 306, 307 (3d Cir.2001) (holding that a defendant could not challenge his conviction in a second direct appeal after a remand for re-sentencing when he failed to raise the issue in the first direct appeal); United States v. Husband, 312 F.3d 247, 250 (7th Cir.2002) (“any issue that could have been but was not raised on appeal is waived and thus not remanded”); Omni Outdoor Adver., Inc. v. Columbia Outdoor Adver., Inc., 974 F.2d 502, 505 (4th Cir.1992) (same); Nw. Ind. Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989) (“It is elementary that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.”). The brief filed by Mead in Beazer II clearly indicates the limited scope of the issues raised in that appeal. Mead cannot now, after a remand on an unrelated issue, raise objections that it previously waived. An exception to normal law of the case and waiver rules is recognized when an intervening decision from a superior court changes the controlling law. See Zichy v. City of Philadelphia, 590 F.2d 503, 508 (3d Cir.1979); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 170 (3d Cir.1982). We have invoked that theory to allow a party to raise an issue for the first time on direct review where a Supreme Court decision intervened between a district court ruling and our appeal. See, e.g., E.I. DuPont de Nemours & Co., 508 F.3d at 136 n. 6 (considering plaintiffs claims despite an earlier voluntary dismissal because they had taken on new importance after the intervening decision in Cooper); see also Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 85 L.Ed. 327 (1941). We have also applied this rule where a controlling Supreme Court decision intervened between two appeals. See, e.g., Zichy, 590 F.2d at 508. Those situations are not present here. Cooper was issued about six months before our decision in Beazer II. Aware of the Cooper opinion, Mead made no effort to bring it to this Court’s attention before the filing of Beazer II. Mead now seeks to excuse its inaction by arguing that it was not permitted or required under Fed. R.App. P. 28(j) to notify the Court because Cooper did not affect an issue raised in its Beazer II brief. It is true that “absent extraordinary circumstances, briefs must contain statements of all issues presented for appeal, together with supporting arguments and citations.” Simmons v. City of Philadelphia, 947 F.2d 1042, 1065 (3d Cir.1991) (Becker, J., announcing judgment of the court) (referring to Fed. R.App. P. 28(a)(l)-(3)). Parties cannot normally use Rule 28(j) letters to present additional arguments. See United States v. Khorozian, 333 F.3d 498, 506 n. 7 (3d Cir.2003) (Rule 28(j) letter cannot be used to raise supplemental argument); Valdez v. Mercy Hosp., 961 F.2d 1401, 1404 (8th Cir.1992) (Rule 28(j) letter cannot be used to raise a new issue that should have been raised earlier). Here, however, the intervening Cooper decision was the kind of extraordinary circumstance where knowledge of that opinion would be of substantial assistance to this Court’s deliberations. Beazer II involved a determination of the proper method of carrying out an allocation proceeding that rested on the conclusion that a § 113(f)(1) action was permissible. Cooper was clearly relevant to that decision. Mead cites no case in this Court adopting an unduly narrow construction of Rule 28(j) or a rigid limitation on our discretion to consider relevant new law. In any event, Mead could have requested an opportunity to submit additional briefing based on Cooper. See United States v. Vazquez-Rivera, 407 F.3d 476, 487 (1st Cir.2005) (intervening change in law is an exceptional circumstance under which a party may submit supplemental briefing on an issue that was not raised in its opening brief); DSC Commc’ns Corp. v. Next Level Commc’ns, 107 F.3d 322, 326 n. 2 (5th Cir.1997) (party that waived an issue by failing to include it in its opening brief could raise the issue in a supplemental brief based on an intervening change of law). The combination of the initial failure to raise the “civil action” objection in the briefs and subsequent failure to advise this Court of the Cooper opinion before Beazer II was decided precludes Mead from invoking the intervening law exception. We do not lightly invoke waiver, but as the Supreme Court has cautioned, “[tjhere must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.” Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 95 L.Ed. 207 (1950). This case has been ongoing since 1991. Mead’s liability under § 113(f)(1) was established by the time of the District Court’s orders in 2002 — well before this Court’s June 23, 2005, opinion in Beazer II. Allowing Mead to renew its argument at this late point in the litigation would seriously impair the finality of the rulings of this Court and the District Court. Mead must live by its long-standing and considered decision not to pursue its § 113(f) objection. We agree with the District Court that Mead waived its challenge to the applicability of § 113(f)(1) and the Court has subject-matter jurisdiction. Accordingly, we again remand this case to the District Court to hold an equitable allocation proceeding in accordance with Beazer II. . In general, § 113(f)(1) permits contribution from others who are responsible under CERCLA for cleanup of contaminated sites. That section is discussed in more detail infra. . In broad terms, § 107 provides for recovery from responsible parties for expenses incurred in cleaning up contaminated sites. It is discussed infra. . The 1991 Administrative Order on Consent was entered into under § 3008(h) of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6928(h). . The reference to § 9706 is apparently a typographical error. Section 107 of CERCLA is codified at 42 U.S.C. § 9607. . We use "the term 'potentially responsible party' or 'PRP' to refer to those parties that potentially bear some liability for contaminating a site” under CERCLA. E.I. DuPont de Nemours & Co. v. United States, 508 F.3d 126, 128 n. 2 (3d Cir.2007). . The statute of limitations under § 107 differs from that under § 113, but that factor is not material in this case. See 42 U.S.C. § 9613(g). . The Supreme Court noted that the distinction was important because mislabeling a requirement as jurisdictional had serious consequences. Arbaugh v. Y & H Corp., 546 U.S. 500, 513-14, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Unlike an element of a claim, subject-matter jurisdiction "can never be forfeited or waived” and courts have a continuing "independent obligation to determine whether subject-matter jurisdiction exists.” Id. at 514, 126 S.Ct. 1235 (quotation omitted). Also, trial judges may evaluate evidence relating to subject-matter jurisdiction, but only a jury can assess facts relating to an element of a claim. Id. Finally, a lack of subject-matter jurisdiction means that the entire complaint must be dismissed, whereas "when a court grants a motion to dismiss for failure to state a federal claim, the court generally retains discretion to exercise supplemental jurisdiction ... over pendent state-law claims." Id. . The absence of a reference to § 113(f) in § 113(b), 42 U.S.C. § 9613(b), CERCLA’s jurisdictional provision, is notable because that provision expressly subjects its grant of jurisdiction to subsections (a) and (h) of § 113. 42 U.S.C. § 9613(b) [§ 113(b)] reads, "Except as provided in subsections (a) and (h) of this section, the United Stales district courts shall have exclusive original jurisdiction over all controversies arising under this Act, without regard to the citizenship of the parties or the amount in controversy." . Mead cites two Federal Circuit cases that found that statutes of limitations were jurisdictional in cases against the United States Government. See John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1351 (Fed. Cir.2006), aff'd,-U.S.-, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008); Fed. Nat'l Mortg. Ass’n v. United States, 469 F.3d 968, 972 (Fed.Cir.2006). Those two opinions are inap-posite because they relied on the unique nature of suits against the United States and concluded that the statutes were conditions on the United States' consent to suit. . In its brief on appeal in Beazer II, Mead listed the issues as: "1. Whether the district court, in the absence of consent of a party, has the authority to delegate jurisdiction to a Magistrate to conduct an evidentiary, fact-finding trial and issue preliminary factual findings and conclusions of law on the issue of the allocation of liability among the parties in a CERCLA contribution action.... 2. Whether the district court erroneously equated CERCLA's 'polluter pays’ principle with a Congressional mandate to consider 'volume of wastes’ as the primary equitable allocation factor.... 3. Whether the district court erroneously failed to give appropriate weight in allocating liability between Beazer and Mead to its finding that the parties intended the 1974 Purchase Agreement to shift to Beazer all of the environmental liability at the Site.... 4. Whether the district court erred in finding Mead responsible for 'approximately 90% of the waste on the site' when the facts indicate this conclusion was based on inaccurate and inconsistent information and assumptions .... 5. Whether the Court erred in entering a declaratory judgment which fixes Mead’s allocation of liability into the future and provides no mechanism for challenges to that allocation based on changed facts or circumstances...." . After the appeal was filed in Beazer II, the case was entered into the Court's Appellate Mediation Program. One of the issues before the Beazer II panel was the validity of an oral settlement allegedly reached during the mediation. . Moreover, Mead did not attempt to file a Motion for Summary Action. See Third Cir-curt Local Appellate Rule 27.4; Third Circuit Internal Operating Procedure 10.6 ("The court ... upon motion by a party, may take summary action ... if it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.”).

Atlanta Gas Light Co. v. UGI Utilities, Inc.

ANDERSON, Circuit Judge: This case involves an attempt to seek contribution for environmental clean-up costs from the parent corporations of previous owners of a pollution-causing facility. There is an additional attempt to prove coverage under three insurance policies. I. FACTS AND PROCEDURAL BACKGROUND The City of St. Augustine discovered the environmental contamination at issue when it, the current owner, sought to redevelop the site into a mixed use and marina complex. The EPA identified Atlanta Gas Light Company (“AGLC”) and the City as “responsible parties” under CERCLA. 42 U.S.C. § 9601 et seq. Both parties negotiated with the EPA and entered into orders to investigate and then to clean up the site. AGLC now brings this suit seeking contribution from the defendants. AGLC was the most recent previous owner of the St. Augustine manufactured gas plant (“MGP”) that was formerly located on the site. This MGP began operation in 1886, using a new technology that involved superheating raw materials, such as coal, oil or pine knots, to produce a combustible gas. During this process, the MGP produced several by-products, such as coal tar, which in recent times have been recognized as containing toxic materials. AGLC argues that these by-products were released into the ground throughout the operating history of the plant. When the MGP was shut down, the below-grade structures were simply buried and the property was converted to other uses. The St. Augustine Gas and Electric Light Company (“St. Augustine Gas”) was incorporated in 1887. AGLC argues that defendant UGI Utilities’ predecessor directed operations from then until 1928. UGI was a minority shareholder in St. Augustine Gas during this period, but nominated most of the local superintendents for the MGP and provided services to St. Augustine Gas, its subsidiary (as described more fully below). Senior UGI executives occupied several board and officer slots for St. Augustine Gas. In 1928, defendant CenterPoint Energy-Resources Corporation’s predecessor acquired the stock of St. Augustine Gas. It replaced all of the board of directors with senior CenterPoint executives. Two years later, it entered into “management” and engineering contracts with St. Augustine Gas (discussed more fully below). In 1935, CenterPoint assigned its contracts to a newly formed, mutual management corporation owned by CenterPoint subsidiaries. CenterPoint continued to indirectly own 100% of St. Augustine Gas stock but because the management clearly was out of CenterPoint’s hands, AGLC does not contend that CenterPoint is responsible after 1935. From 1940 to 1947, defendant Century Indemnity Company’s predecessor provided three liability insurance policies to St. Augustine Gas. The insurance policies covered accidents, and AGLC contends that there were daily leaks and spills that would constitute accidents. After AGLC entered into the settlement with the EPA, it sent demand letters to UGI and CenterPoint, the alleged former operators of the site. Both refused to participate in either the investigation or clean-up. After most of the clean-up was completed, AGLC sued UGI, CenterPoint and Century Insurance under CERCLA, seeking contribution. The Defendants moved for summary judgment, which the district court granted. The district court reasoned that AGLC sought to impose liability on the utility defendants only on the basis of their operation of the facility (not on the basis of ownership), but had not put forth enough evidence for a jury conclude that either UGI or CenterPoint had operated the plant. After an examination of the record evidence, the district court determined that neither of the utility defendants’ relationships with the plant fell within the test outlined by the Supreme Court in United States v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). Turning to the claims against Century, the court first held that Century was not liable under the first two insurance policies because they were issued to AGLC’s predecessor and because they contained no-assignment clauses which blocked coverage for AGLC. The third policy, however, covered a later period and AGLC acquired ownership of this policy via a statutory merger. Order at 36. That policy covered the period from February 1, 1946 to February 1, 1947. The court held that even assuming a leak could be an accident, AGLC did not adduce enough evidence to establish a question of material fact that a leak occurred during that period. Id. at 37. AGLC’s expert had testified that leaks likely occurred during the operation of the plant; UGI’s expert characterized AGLC’s expert’s method as “far too speculative” and as having “no firm grounding in science.” Id. The court agreed, holding that to find that leaks occurred during that particular year would require naked guesses. Id. at 37-38. II. DISCUSSION A. Jurisdiction Before we address the merits of this case, we must address UGI’s argument that we lack jurisdiction over this case under CERCLA. UGI cites Cooper Industries v. Aviall Services, 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), where the Court held that companies could not bring actions for contribution under § 113(f)(1)' unless they had been sued under § 107 or § 106 themselves. However, as the Second Circuit in a post-Cooper case noted, it was possible for a party that settled to bring an action under § 113(f)(3)(B) if the settlement covered CERCLA claims. Consolidated Edison Co. of N.Y. v. UGI Util, 423 F.3d 90, 95 (2d Cir.2005). See also Cooper, 543 U.S. at 167, 125 S.Ct. at 584 (indicating in dicta that § 113(f)(3)(B) provides an avenue for contribution “after an administrative or judicially approved settlement that resolves liability to the United States or a state.”). Here, AGLC settled and the settlement covered CERCLA claims. We note incidentally that AGLC did not specify in its complaint a particular subsection of § 113 under which it was bringing its claims. Thus, we readily conclude that we have jurisdiction under § 113(f)(3)(B). B. The Bestfoods Standard. In United States v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998), the Supreme Court recognized that liability for environmental clean-up can be imposed either on an “owner” or on an “operator.” In a situation involving an attempt to impose liability on a parent because its subsidiary owns a pollution-causing facility, the parent can be subjeet-ed to liability as an owner if the corporate veil can be pierced. AGLC does not argue in this case that either UGI or Center-Point are liable as an owner, and does not seek to pierce the corporate veil. Rather, AGLC seeks to impose liability on these defendants as “operators.” In discussing the operations sufficient to constitute direct “operation” by a parent of its subsidiary’s facility, and thus impose liability upon the parent, the Court was sensitive to avoid a fusion of direct liability as an “operator” and the indirect liability of an “owner.” Thus, the test of parental operation turns upon “whether it operates the facility, and that operation is evidenced by participation in the activities of the facility, not the subsidiary.” Id. at 68, 118 S.Ct. at 1887. In evaluating a parent’s activities with respect to its subsidiary, it is relevant whether or not corporate norms are observed. Id. at 71, 118 S.Ct. at 1889. For example, the Court expressly held that overlapping officers and directors is not sufficient to expose a parent to liability for its subsidiary’s actions. Id. at 69, 118 S.Ct. at 1888. Indeed, the Court established a presumption that the “officers and directors [of the subsidiary] were acting in their capacities as ... officers and directors [of the subsidiary],” and not of the parent. Id. at 70, 118 S.Ct. at 1888. The Court ultimately articulated the following test: To impose liability upon a parent as an “operator” under CERCLA with respect to a pollution-causing facility owned by a subsidiary, a plaintiff must prove that the parent as operator must have “manage[d], directed], or conducted] operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.” Id. at 66-67, 118 S.Ct. at 1887. C. The Claims Against UGI To make its case against UGI, AGLC points to UGI’s supervision of the plant through its centralized committees, the UGI management contracts with St. Augustine Gas, and the fact that UGI personnel occupied the majority of the director and officer positions at St. Augustine Gas. It also points out that UGI nominated substantially all of the local superintendents and regularly approved them salaries. Finally, AGLC notes that UGI received a fee for providing the services described in the contract and pursuant to the practices preceding the contract. The Court in Bestfoods instructed that activities of a parent with respect to its subsidiary consistent with corporate norms should not give rise to liability under CERCLA. Here, there is nothing unusual about the existence of overlapping officers and directors. Indeed, Bestfoods expressly holds that this is not sufficient to impose liability on a parent. Id. at 71-72, 118 S.Ct. at 1889. Similarly, it is not abnormal in the corporate world for a parent to receive a fee of the kind involved here, or to approve key salaries of a subsidiary. Our review of the record persuades us that the “management” contract between the two entities (which apparently was executed in the later years of the relationship) reflects the nature of the relationship all along. The contract explains the relationship between the two entities as being based on St. Augustine’s ability to tap into UGI’s vast knowledge and resources. There is nothing in the contract that suggests that UGI was contracting to actively manage the St. Augustine facility itself; rather, the contract allows St. Augustine to receive advice from UGI’s various skilled personnel, to have access to UGI’s network of professionals, and in general to benefit from access to UGI’s vast experience. For example, in Article I, St. Augustine Gas retained UGI “as its general operating, construction and financial advisor.” Throughout the contract, its contemplation was that UGI would provide recommendations to St. Augustine Gas. The only exception was that UGI would actually serve as St. Augustine’s purchasing agent for significant purchases requested by St. Augustine. Most significant for this case, there is nothing in the contract that suggests that UGI’s consultation work involved leakage or disposal of hazardous waste, much less any suggestion that UGI would be actually involved in operations involving leakage or disposal of hazardous waste. In other words, in the language of Bestfoods, nothing in the contract suggests that UGI was to “manage, direct or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Id. at 66-67, 118 S.Ct. at 1887. Similarly, there is nothing in the record suggesting that, prior to the time of such a contract between the two entities, UGI was engaged in such activities. To the contrary, the record suggests a similar advisory role. Finally, to the extent that Kingsley Patterson, who apparently was normally an UGI employee, managed the plant for a short while, he was appointed acting superintendent during that period, and thus is presumed to have been working on behalf of St. Augustine Gas, not UGI. Id. at 69-70, 118 S.Ct. at 1888. His testimony that he “practically rebuilt the plant in 1926” refers to that period during which he replaced an ill superintendent; he is presumed to have been working on behalf of St. Augustine Gas. In sum, AGLC had pointed to nothing in the record that would support a finding that UGI operated the St. Augustine plant, let alone operated the pollution-causing sources. For the foregoing reasons, we agree with the district court and conclude that a reasonable jury could not find from this record that UGI managed, directed or conducted operations of the St. Augustine facility specifically related to pollution, leakage, or disposal of hazardous waste. Accordingly, the judgment of the district court with respect to UGI is due to be affirmed. D. The Claims Against CenterPoint Turning to the claims against Center-Point, AGLC argues that CenterPoint assumed the same relationship with St. Augustine Gas when it acquired all of the company’s stock in 1928. In support of its claim against CenterPoint, AGLC argues that CenterPoint replaced the St. Augustine Gas officers and directors with Cen-terPoint senior executives and entered into a contract to “manage” St. Augustine Gas; AGLC also points to testimony from Cen-terPoint employees Alver Traver and Kingsley Patterson. Looking at the facts through the prism of corporate norms, as required by Best- foods, it is clear that AGLC has not adduced enough evidence of CenterPoint’s management of the plant to hold it liable for clean-up costs under CERCLA. As mentioned in the context of UGI, the existence of overlapping officers and directors is not inconsistent with corporate norms. Turning to CenterPoint’s two contracts, it is clear that the services they contemplate are not in the nature of operating the plant itself and its polluting capacity. The first contract covers engineering which in turn is divided into consulting engineering and designing/supervising engineering. The descriptions of the engineering work to be done contemplates general engineering advice and assistance on proposed additions, extensions and alterations, and design, supervision and construction on substantial additions, extensions and alterations. It does not contemplate operation of the plant. Additionally, the contract reads: “The services above described are intended to cover work as listed which can be handled most efficiently and economically by engineers, leaving to local operating forces such work as they are qualified to do.” While the contract does include a heading entitled “Miscellaneous Engineering,” that is defined as any engineering services not mentioned in the delineated engineering descriptions. At least in the absence of any evidence that CenterPoint’s engineering activities actually involved operating activities related to leakage or disposal of hazardous waste, this is- not enough upon which to base a holding that CenterPoint managed or directed “operations specifically related to ... leakage or disposal of hazardous waste.” Bestfoods, 524 U.S. at 66-67, 118 S.Ct. at 1887. Athough the other CenterPoint contract is labeled a “management” contract, the details of the contract reveal that it contemplates a relationship very similar to UGI’s relationships with its numerous subsidiaries (as AGLC itself acknowledges). The details of the CenterPoint contract reveal that it contemplates activities in the nature of advice and consultation. For example, the contract indicates that Cen-terPoint will nominate directors or officers at the request of the company. However, the contract contemplates that the local officers, and not CenterPoint, .will operate the plant: “These officers ... will supervise and direct the management of the operations of the company.” As noted above, it is presumed that such local office holders are acting on behalf of the subsidiary, and not the parent. Athough purchasing, preparation of tax returns and a few other administrative matters were to be centralized, the bulk of the “management” services contemplated by the contract consisted of advice and assistance. For example, with respect to technical services, the contract contemplated “general engineering advice and assistance on special technical problems.” The advisory and consultative nature of CenterPoint’s services was also indicated by the testimony of Traver, apparently an officer of Cen-terPoint and/or one or more of its subsidiaries. Traver testified that he was the “sponsor” and “engineer” for the St. Augustine Gas plant during the relevant time. Traver was living and working in Jacksonville and serving as general. manager of CenterPoint’s Jacksonville plant, which paid at least part of his salary. However, in addition to his Jacksonville job, he indicated that he simultaneously served Cen-terPoint, acting as “sponsor” and engineer for 40 other subsidiaries of CenterPoint, including St. Augustine. He described his role in a manner consistent with the above description of the contracts. With respect to his duties for St. Augustine, he testified that he consulted by telephone with the local management in St. Augustine, sometimes twice a day, sometimes once a week, or about an average of 3-4 times per week. He testified that he made an on-site visit to the St. Augustine plant approximately 6-7 times a year, or perhaps a few more. It is clear from his testimony, and from the totality of the evidence in this record, that CenterPoint did not operate the St. Augustine facility itself, and certainly did not “manage, direct or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste.” Best-foods, 524 U.S. at 66-67, 118 S.Ct. at 1887. For the foregoing reasons, we agree with the district court and conclude that a reasonable jury could not find from this record that CenterPoint managed, directed or conducted operations of the St. Augustine facility specifically related to pollution, leakage or disposal of hazardous waste. Accordingly, the judgment of the district court with respect to CenterPoint is due to be affirmed. E. Claims Against Century At issue in the claim against Century is coverage under three insurance policies issues by Century covering the periods 1940-43, 1943-44, and 1946-47 (i.e., a total of five years). To prove coverage under the policies, AGLC has to prove injury to property “caused by accident.” The term “accident” is not further defined in the policy. Before exploring the scope of such accident coverage, we review the evidence adduced by AGLC. In this regard, we note that the district court held, at least with respect to the 1946-47 policy period, that the record shows no specific instances of contamination during that period. We agree, and we believe that the same absence of evidence is true with respect to the entire five-year time span encompassed by the three policies. During that entire five-year period, AGLC has pointed to no evidence indicating a spill or disposal of hazardous materials, or any other specific instance of a release of contaminants. Nor has AGLC pointed to any specific instance during that time frame of a replacement, alteration, or even maintenance of equipment (which might have been an occasion during which discharges or spillage of contaminants from such machines might have occurred). We need not decide whether any of the foregoing might constitute “accidents” under the insurance policies, because there is simply no evidence of such spills or discharges. Indeed, AGLC does not assert that there is any evidence of any of the foregoing. Rather AGLC relies upon the report and testimony of its expert, Dr. Shifrin, to the effect that leakages from equipment typically used at MCP plants must necessarily have occurred during a time span as long as the five years at issue here. Dr. Shifrin expressed the opinion that such leakages were routine for equipment of that type, and were an unavoidable reality. The district court held that such testimony left the jury with no way to know at what time the equipment began leaking, how iong it leaked, or at what rate. The district court held that such evidence was far too speculative upon which to base a jury verdict. We need not decide whether the district court is correct in this regard, because we conclude that any such routine leakage would not constitute an event “caused by accident,” and thus would not be covered under the insurance policies. We accept the definition of “accident” which was proposed by AGLC in the district court — an unintentional and unexpected event. See State Farm, Fire & Casualty Co. v. CTC Development Corp., 720 So.2d 1072, 1076 (Fla.1998) (establishing the meaning of the term “accident” when the term is not defined in the insurance policy, and holding that the term means not only “accidental events,” but also injuries neither expected nor intended from the standpoint of the insured). We cannot conclude that AGLC has proved that the routine leakages referred to in Dr. Shif-rin’s testimony were either unintended or unexpected. With respect to the former, experts called by the defense testified without contradiction that the industry was aware of this leakage problem well before the time span at issue here. For example, there was wide discussion of the leakage problem in the industry literature. In addition, nuisance lawsuits had brought the matter to the attention of the industry. Moreover, there was uncontradicted evidence that the industry was aware of the problem, because the byproducts — which are in modern times deemed to contain hazardous contaminants — were that at that time valuable byproducts which could be reused by the facility or sold for a profit. In other words, there was ample incentive on the part of the industry to detect, minimize and prevent such leakages in order to profit from the recovered byproducts. In the face of this evidence indicating that the owners of St. Augustine Gas would have been aware of such leakage problems, AGLC has pointed to no evidence that the owners of the St. Augustine facility were unaware of the leakage problem during the early 1940s. We also conclude that AGLC has clearly failed to prove that such leakages were unexpected. Indeed, the only evidence of any leakages at all during the relevant five years, is AGLC’s evidence that such leakages are to be expected when equipment of this general type is used. Our conclusion that such routine and unavoidable leakages are not accidents under insurance policies such as the ones at issue here finds support in Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700 (Fla.1993). That case involved an insurance policy providing liability coverage for damage to property caused by an occurrence, defined as an accident including continuous or repeated exposure to conditions, but excluding pollution injuries unless the discharge is sudden and accidental. Id. at 702. With respect to the meaning of accidental, the court held it is generally understood to mean unexpected and unintended. In this regard, the court quoted and approved of another court’s holding that spills and leaks cannot be classified as unexpected or accidental when they are commonplace events occurring in the course of daily business. Id. at 705. For the foregoing reasons, we conclude that the district court did not err in granting summary judgment in favor of Century. III. CONCLUSION In summary, we conclude for the reasons above set out that the district court properly entered summary judgment for all three defendants. AFFIRMED. . UGI is the successor of United Gas Improvement Company and The United Gas Improvement Company, all of which are referred to herein as UGI. . CenterPoint is the successor to American Gas & Power Company, both of which are referred to herein as CenterPoint. . Century Indemnity Company is the successor to Indemnity Insurance Company of North America Philadelphia. . Section 113(f)(1) provides: Contribution Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall dimmish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title. . Section 113(f)(3)(B) provides: (C) In any action under this paragraph, the rights of any person who has resolved its liability to the United States or a State shall be subordinate to the rights of the United States or the State. Any contribution action brought under this paragraph shall be governed by Federal law. . The Court set forth three "routes” of potential liability of a parent as an operator: first "when the parent operates the facility instead of its subsidiary or alongside the subsidiary in some sort of joint venture,” id. at 71, 118 S.Ct. at 1889; second, "a dual officer or director might depart so far from the norms of parental influence exercised through dual office holding as to serve the parent, even when ostensibly acting on behalf of the subsidiary in operating the facility,” id.; and third, "an agent of the parent with no hat to wear but the parent's hat might manage or direct activities at the facility,” id. In this case, AGLC purports to proceed primarily under the first route. We agree that no liability could be imposed under either of the other two routes. There is no evidence of the required departure from corporate norms. Similarly, there is insufficient evidence under the third route. AGLC’s reliance upon the activities of Patterson is without merit. His service as general manager of the St. Augustine Gas facility in 1926 was clearly as an employee of the subsidiary, and not on behalf of UGI. There is very little evidence of activity of either UGI or CenterPoint employees (having no position with the subsidiary), and no evidence of such persons acting so as to manage, direct or conduct operations specifically related to leakage or disposal of hazardous waste. . The fee to be paid to UGI for such advice was (in the year 1927) $4,000, plus the actual cost of special or extraordinary services, plus ten percent of increased earnings. . AGLC's argument that UGI's centralized committees actually operated the facility is simply not supported in the record. The committee personnel were located in Philadelphia, and the record suggests that their activities were in the nature of rendering advice and consultation primarily from that distance, with more occasional on-site visits. The record also indicates that the committees provided such advice to numerous similar facilities in which UGI had a similar equity interest. Significantly, AGLC has pointed to no evidence indicating that even such advice and consultation involved operations specifically related to leakage or disposal of hazardous waste. Id. AGLC makes much of the word "order” used in committee minutes. However, such use was in the context of approving substantial expenditures. The supervision of a subsidiary’s capital expenditures falls within corporate norms. Id. at 72, 118 S.Ct. at 1889. .Patterson, who had previously been employed by UGI, apparently began a similar association with CenterPoint. Patterson and Traver both testified in 1942 before the Securities and Exchange Commission. AGLC points to excerpts from that testimony in support of its claims against both utility defendants. . Our conclusion is consistent with the conclusions of the court in Consolidated Edison Co. v. UGI Utilities, 310 F.Supp.2d 592 (S.D.N.Y.2004), aff'd, 153 Fed.Appx. 749 (2d Cir.2005). Our previous opinion in Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489 (11th Cir.1996), does not indicate a different result with respect to either UGI or CenterPoint. In that case, this court did conclude that the activities of Marcrum Management Company in managing the apartment complex were sufficient to impose CERCLA liability upon it as an "operator.” However, in so holding we found that Marc-rum Management Company was "responsible for the daily management of the [apartment] complex.” Id. at 1509. For example, it received complaints from tenants and controlled the content and method of the response, id. at 1509-10, and had "been partly responsible for remedying tar seeps [the contaminant at issue],” id. at 1510. The court characterized these and other activities of Marcrum Management Company as “having a hand in ... routine operations of the complex.” Id. In other words, Redwing is readily distinguished from this case. Unlike either UGI or CenterPoint, Marcrum Management Company was engaged in the day-to-day operations of the apartment complex and actually handled activities specifically related to disposal of hazardous waste. We note that Redwing predated Bestfoods. Because Red-wing is distinguishable from the instant case, we need not decide whether its analysis is consistent with the now-controlling analysis set forth in Bestfoods. . Neither the district court nor this court has an obligation to parse a summary judgment record to search out facts or evidence not brought to the court's attention. Notwithstanding this, we have reviewed sufficient portions of the record to give us comfort that able counsel have not overlooked significant evidence in their briefs to the district court and this court. . Because the policies at issue insure only injuries to properly "caused by accident," the burden of proof is on the insured. In other words, the issue in this case does not turn on proof with respect to an exclusion from coverage. . Although Dr. Shifrin testified that some operators of similar equipment may not have been aware that the equipment was leaking (because some of it was underground), that does not constitute evidence that the owners of St. Augustine Gas were unaware. Indeed, there was evidence that the owners received inspection reports at about this time frame, revealing observable evidence of past leakages. The only sense in which it might be considered unintended is that such leakages might have been unavoidable at reasonable costs. .In addition to this common sense logic, we discussed immediately above the ample evidence in the record that the industry was well aware of the fact of such leakages, and thus would have expected such injuries to the real property. Although the CERCLA liability was probably unexpected during the early 1940s, the alleged injury to this real property — i.e., the alleged routine leakage of coal tar into the ground — was not unexpected, as demonstrated above. . The Supreme Court of Florida, both in State Fann v. CTC Development and Dimmitt, explained the evolution of the language in comprehensive liability insurance policies, and how the more recent "occurrence” language broadened coverage as compared to the older "caused by accident” policies, although that broadening effect was still later modified somewhat by the addition of a pollution exclusion unless the discharge is sudden and accidental. As indicated in the text, Dim-mitt involved the newer "occurrence” language with the partial pollution exclusion. It is unclear how much broader (if any) the coverage provided by such later Dimmitt-like policies is as compared to the old "caused by accident” policies; however, it is clear that a "caused by accident” policy, as in this case, provides coverage at least as narrow as a Dimmitt-like policy. Thus, if routine or commonplace events occurring in the course of daily business are not unexpected and accidental under a Dimmitt-\\ke policy, then such events are a fortiori not unexpected and not accidental under the "caused by accident” policies in this case.

Elementis Chromium L.P. v. Coastal States Petroleum Co.

EDITH H. JONES, Chief Judge: All sides appeal the district court’s judgment apportioning liability in a CERCLA cleanup case. Magellan Terminals Holdings L.P. (“Magellan”) and Amerada Hess Corp. (“Hess”) appeal the district court’s imposition of joint and several liability upon them. El Paso Merchant Energy-Petroleum Co. (“El Paso”) appeals the district court’s allocation of liability for future cleanup costs. Finding that Magellan preserved its objection to joint and several liability, and that liability in contribution actions brought under § 113(f) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675, is several only, we VACATE and REMAND for allocation of liability between Magellan and Hess. With respect to the district court’s allocation of liability to El Paso, we AFFIRM. I. Background Elementis Chromium L.P. and Elemen-tis Chromium, Inc. (collectively “Elemen-tis”) own a manufacturing plant in Corpus Christi that became contaminated with hydrocarbons as a result of operations at one or more nearby properties: (1) a facility owned by El Paso, located to the southwest of the Elementis property; and (2) a facility formerly owned by Hess and purchased by Magellan in 1999; this property is located to the south of the Elementis property. Elementis sued El Paso for recovery and/or contribution of response costs to clean up the hydrocarbon contamination on its property. Elementis and El Paso ultimately settled their case, but El Paso then brought a third-party action against Hess and Magellan, seeking contribution for response costs at the Elementis site. The case went to a bench trial in the Southern District of Texas, where Magellan and Hess were represented by the same counsel. In its findings of fact, the district court concluded that El Paso was 89.95% responsible for the contamination at the Elementis property, and that Magellan and Hess were 10.05% responsible. Treating Magellan and Hess as a collective entity for the purposes of allocating responsibility, the district court imposed joint and several liability upon the two companies for their share of the cleanup costs. Magellan timely brought a Motion to Amend Findings and Judgment in an effort to receive a specific allocation of responsibility. The district court declined to decide the issue whether liability under CERCLA § 113(f) was several only, and instead denied the motion on the grounds that Magellan and Hess had waived their argument by not presenting evidence or arguments at trial. Magellan timely appealed both the Amended Final Judgment and the district court’s denial of its Motion to Amend Findings and Judgment. El Paso cross-appealed the Amended Final Judgment and the Findings of Fact and Conclusions of Law. II. Discussion A. Waiver/Judicial Estoppel Before addressing whether the imposition of joint and several liability is proper for contribution actions brought under CERCLA § 113(f), this court must first determine whether Magellan waived its objection on this issue. This court generally reviews a decision on a motion to alter or amend a judgment for abuse of discretion. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.2005). “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003). To the extent the ruling reconsidered a question of law, however, the standard of review is de novo. Ross, 426 F.3d at 763. Motions to alter or amend judgments “cannot be used to raise arguments which could, and should, have been made before the judgment issued” and “cannot be used to argue a case under a new legal theory.” Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990). El Paso contends, and the district court agreed, that Magellan and Hess waived their objections to the imposition of joint and several liability. The alleged waiver took place during a discussion between the district court and counsel for Magellan/Hess over whether Williams Terminals Holdings and its related entities (“Williams”) were proper defendants in the CERCLA action: THE COURT: Just a minute. Who is the responsible party? I mean, does it vary over time? Is that the problem? [counsel for Magellan/Hess] MR. WILKINSON: Well, the responsible parties would be Hess for a time period and then the current owner is actually Magellan Terminal Holdings, L.P., are the two parties that really belong in this suit. Of course, they all deny liability— THE COURT: What’s the — if I enter judgment for a percentage of the cleanup costs, will you be able to allocate it among them? Do you represent both— MR. WILKINSON: I represent both of them. There’s an indemnity agreement — there’s a defense and indemnity agreement between Hess and Williams following the sale of the terminal. So Hess is providing a defense and indemnity, Your Honor. THE COURT: So what difference does it make? MR. WILKINSON: We have two other entities that really aren’t owners/operators of the terminal. In the understandable ways that lawyers work, you just get all of the entities when you don’t understand— THE COURT: I’ll let you-all work that out over the noon hour. R23:609 (emphasis added). In its later findings of fact, the court imposed joint and several liability on Magellan and Hess, prompting Magellan’s motion to alter or amend. The district court, in its oral decision on the motion, stated that it was troubled by the lateness of this motion. I did the best I could to fairly allocate the response costs between El Paso and Hess. Nobody ever mentioned except me what the allocation between Mr. Wilkinson’s client[s] should be. And the only response I got was that there’s a defense and indemnity agreement. If you all had raised this, Mr. Wilkinson, at trial, we could have stopped, conducted, extended the time for evidence, -reviewed the exhibits, asked meaningful questions to some of the witnesses, and I would be in a position to make an informed choice. So, assuming, without deciding that liability under Section 113 is only [several], not joint and several, an issue that the Fifth Circuit has not yet definitively decided, I conclude that Magellan has waived this argument by not presenting evidence or arguments at trial. So, I am going to deny the motion for that reason. R28:6-7. The existence of an indemnity agreement weighed heavily in the district court’s conclusion that Magellan had waived its objection to the imposition of joint and several liability. El Paso thus argues that the district court was “entitled to rely on statements made by counsel in open court,” and that the doctrines of either judicial estoppel or waiver bar Magellan’s claim. Ergo Sci., Inc. v. Martin, 78 F.3d 595, 600 (5th Cir.1996). However, it is well established that a “party has presented an issue in the trial court if that party has raised it in either the pleadings or the pretrial order, or if the parties have tried the issue by consent.” Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir.1997)(quoting Portis v. First Nat’l Bank, 34 F.3d 325, 331 (5th Cir.1994)). In the instant case, there is no dispute that Magellan included its objection to the imposition of joint and several liability in the pretrial order; indeed, the district court acknowledged as much in its ruling on Magellan’s motion to amend the judgment. An issue included in the pretrial order may be waived where a litigant makes a “specific concession” as to that issue at a later date. See Indus. Magromer Cueros y Pieles S.A. v. La. Bayou Furs, Inc., 293 F.3d 912, 919 (5th Cir.2002). Here, however, the exchange between Magellan/Hess’s counsel and the district court is at best ambiguous and appears to be an example of two parties talking past each other, not a specific concession by counsel on the issue of joint and several liability. Magellan should not be deprived of its right to argue an issue properly included in the pretrial order on the basis of a single passing reference to an indemnity agreement. Nor will this court deem Magellan’s objections waived due to its failure to present evidence. The district court expressed frustration with the fact that Magellan did not prominently argue the issue of joint and several liability at trial, but the company’s failure to do so is understandable, given that its position at trial was that it was not liable for any of the contamination at the Elementis site. It is El Paso, as the party bringing an action for contribution, that bore “the burden of proving the defendant is a responsible party under § 107(a) of CERCLA and also the burden of proving the defendant’s equitable share of costs.” Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 348 (6th Cir.1998); see also Minyard Enters., Inc. v. Se. Chem. & Solv. Co., 184 F.3d 373, 385 (4th Cir.1999)(same). El Paso argues that it does not have to prove liability as to individual defendants in a CERCLA contribution action, but it cites no case law in support of this proposition. This court therefore declines to relieve El Paso of its burden of proof. Magellan cannot be faulted for inadequate presentation of evidence as to the proper allocation of costs when it never bore the burden of proof in the first place. As such, we find that the district court abused its discretion in its determination that Magellan waived its objections to the imposition of joint and several liability against it, and we proceed to the merits of Magellan’s and Hess’s claim. B. Joint and Several Liability The standard of review “for a bench trial is well established: findings of fact are reviewed for clear error and legal issues are reviewed de novo.” In re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir.2005). The district court’s imposition of joint and several liability is a matter of law, which we review de novo. With respect to contribution actions, CERCLA § 113(f)(1), 42 U.S.C. § 9613(f)(1), provides that “any person may seek contribution from any other person who is liable or potentially liable under [CERCLA] § 107(a).... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” Section § 113(f) is thus intended to provide a liable party under CERCLA with a cause of action to “mitigate the harsh effects of joint and several liability” imposed under § 107(a). OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1582 (5th Cir.1997). The two parties disagree over whether liability is joint and several, or several only, in § 113(f) contribution actions. Although this issue is one of first impression in this circuit, the overwhelming majority of our sister circuits have concluded that liability is merely several under § 113(f). See, e.g., United States v. Davis, 261 F.3d 1, 29 (1st Cir.2001); Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 653 (6th Cir.2000); Minyard, 184 F.3d at 385; Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301 (9th Cir.1997); Sun Co., Inc. v. Browning-Ferris, Inc., 124 F.3d 1187, 1193 (10th Cir.1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1514 (11th Cir.1996). As the Ninth Circuit noted in Pinal Creek, a “contrary [i.e., joint and several] approach is not supported by CERCLA’s text, is inconsistent with the traditional doctrine of contribution, and runs the risk of creating procedural chaos.” Pinal Creek, 118 F.3d at 1303. We agree: “[W]hen one liable party sues another liable party under CERC-LA, the action is not a cost recovery action under § 107(a),” and the imposition of joint and several liability is inappropriate. Redwing Carriers, 94 F.3d at 1513. The plain language of § 113(f)(1) directs the courts to “allocate response costs among liable parties” in an equitable manner, 42 U.S.C. § 9613(f)(1), and it is clear that under the principle of contribution, a liable party is entitled to recover only “proportional shares of judgment from other tort-feasors whose negligence contributed to the injury and who were also liable to the plaintiff.” OHM, 116 F.3d at 1582. Finally, to allow for the imposition of joint and several liability in contribution actions under CERCLA is to invite “inefficiency, potential duplication, and prolongation of the litigation process.” Pinal Creek, 118 F.3d at 1303. As liability is several only in CERCLA contribution actions, the district court erred in imposing joint and several liability upon Hess and Magellan. Therefore, the judgment of the district court must be vacated and remanded to determine the proper division of liability between Magellan and Hess. C. Allocation of Liability Finally, El Paso argues that the district court erred in allocating only 10.05% of future response costs to Hess and Magellan. We review the district court’s findings of fact only for clear error. A finding of fact is not clearly erroneous “if it is plausible in the light of the record read as a whole.” Baker Hughes Oilfield Operations, Inc. v. Cage (In re Ramba), 416 F.3d 394, 402 (5th Cir.2005). As Magellan and Hess correctly argue, there is a great deal of evidence on the record regarding the age and type of contamination found on the Elementis property that directly implicates El Paso. We find no evidence sufficient to produce “the definite and firm conviction that a mistake has been committed” by the district court, and as such, the court did not clearly err in its allocation of response costs to El Paso. United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). III. Conclusion Magellan did not waive its objection to the imposition of joint and several liability against it; we REVERSE the district court’s holding to the contrary. Because liability under CERCLA § 113(f) is several only, the decision of the district court is VACATED and REMANDED. As we AFFIRM the district court’s allocation of future response costs to El Paso, on remand, the district court need only determine the proper allocation of Magellan and Hess’s 10.05% share of response costs. REVERSED, VACATED and REMANDED IN PART; and AFFIRMED IN PART. . Later that day, counsel for Magellan/Hess stipulated that Magellan "is the entity with legal responsibility for what we have referred to as the Hess Terminal since the terminal was sold by Hess in 1999 and that [the Williams companies] ... are not proper parties, necessary parties.” R23:645. The district court then agreed to dismiss Williams from the suit without prejudice. . This court will focus its attention upon whether Magellan can be said to have waived its objection to the implementation of joint and several liability, as the district court viewed Magellan's argument as having been waived. However, to the extent that El Paso raises Ergo Science to argue in favor of the application of judicial estoppel, such an argument must be rejected. In Ergo Science, counsel unequivocally renounced his client's claim to certain funds in a pretrial hearing, and then sought to challenge a ruling of the district court based on that waiver through a post-trial motion. Because the district court accepted counsel’s original position, counsel was estopped from asserting a clearly inconsistent position at a later time. Ergo Science, 73 F.3d at 598. In the instant case, Magellan's alleged renunciation is far from unequivocal, and the company never took the contrary position that joint and several liability was appropriate. See Ahrens v. Perot Sys. Corp., 205 F.3d 831, 833 (5th Cir.2000). Thus, Magellan cannot be judicially estopped from asserting its objection here. . Because El Paso offered no evidence against Magellan, Magellan requested as a finding of fact that ''[t]he [Hess] terminal did not handle benzene at any time it was owned by [Magellan].” R7:1260. . It should be noted that such burden shifting would be contrary to our holding, infra, that liability under CERCLA § 113(f) is several only. .The imposition of joint and several liability in the instant case would also be inconsistent with the earlier decisions of the district court. On October 15, 2003, the district court granted El Paso’s motions for partial summary judgment as to Hess’s and Williams's claims under § 107(a). R6:1217. In arguing that Hess and Williams, as potentially responsible persons under CERCLA, could not maintain § 107(a) actions against it, El Paso stated the proper claim against it was under § 113(f), and that it could not be held "jointly and severally liable as a matter of law." R6:1014. The district court accepted this argument and granted El Paso’s motions for partial summary judgment. Moreover, all parties were in agreement on liability under § 113(f), as Hess and Williams concurred in El Paso's analysis of CERCLA, noting that the same reasoning was applicable to El Paso's claims against them. R6:1045, 1060. . El Paso relies upon Browning-Ferns Industries of Illinois, Inc. v. Ter Maat, 195 F.3d 953 (7th Cir.1999) for the proposition that the imposition of joint and several liability is within the equitable powers of the district court under § 113(f). The actual holding in Ter Maat was, inter alia, that a district court erred in believing that it was "constrained to allocate liability equally among joint polluters." Ter Maat 195 F.3d at 957. To the extent that Ter Maat also suggested that § 113(f) did not contain a bright line prohibition against the imposition of joint liability, such a position is at odds with the overwhelming majority of circuit courts that have addressed the issue of liability under § 113(f). Moreover, none of the hypothetical concerns over several liability raised in Ter Maat (e.g., one responsible party is insolvent, rendering the others responsible for a larger share of cleanup costs than is equitable) is present in the instant case. See id. . The district court has an adequate factual basis in the record to properly allocate responsibility between Magellan and Hess. For example, it may allocate responsibility based upon years of ownership. Alternatively, it may simply conclude, based upon evidence in the record that the hydrocarbon contamination of the Elementis property took place in the 1970s and 80s, decades prior to Magellan's purchase of the Hess property in 1999, that Hess should be held responsible for all 10.05% of the remaining CERCLA liability.

Beazer East, Inc. v. Mead Corp.

OPINION ROTH, Circuit Judge. The Mead Corporation appeals several orders of the United States District Court for the Western District of Pennsylvania in a CERCLA contribution action brought by Beazer East, Inc. The main issue presented in these appeals is whether the District Court, over Mead’s objection, properly referred part of Beazer’s action- — ■ the equitable allocation proceeding — to the Magistrate Judge. In conducting this proceeding, the Magistrate Judge resolved factual disputes going to one of the ultimate issues in the case — what share of Beazer’s response costs should be borne by each of the responsible parties — and, in doing so, essentially tried part of the case. Magistrate judges may not, however, try cases without the parties’ consent. Because we conclude that the District Court’s referral was an improper delegation of its traditional adjudicatory function, this case must be remanded for a new equitable allocation proceeding before the District Judge. II. Factual Background and Procedural History This is the second time this CERCLA contribution action has been before us. See Beazer East, Inc. v. The Mead Corp., 34 F.3d 206 (3d Cir.1994) (“Beazer I ”). In 1991, Beazer East, Inc., signed an Administrative Order on Consent (AOC) developed by the United States Environmental Protection Agency. The AOC required Beazer to investigate and cleanup the Woodward Facility Coke Plant, an industrial site in Alabama formerly owned and operated by Beazer. Beazer’s predecessor, Koppers Company, Inc (KCI), bought the site from The Mead Corporation in 1974. Beazer sought contribution for its investigation and cleanup costs from Mead under CERCLA, 42 U.S.C. §§ 9607(a) & 9613(f). Mead filed a counterclaim for indemnity based on certain provisions of the 1974 purchase agreement. The District Court granted summary judgment to Mead on this basis, but we reversed in Beazer I. We held that the key environmental indemnification provision failed the basic rule of Alabama contract law that promises to indemnify must be plain and unambiguous. Beazer I at 216-19. Accordingly, we remanded the case to the District Court for further proceedings on Beazer’s contribution claim. Id. at 219 & n. 10. The chief tasks on remand were to determine which of Beazer’s response costs were necessary and consistent with the National Contingency Plan (NCP), 42 U.S.C. 9607(a)(4)(B), and what percentage of those costs should be born by each of the responsible parties: Beazer, Mead, and Koppers Industries, Inc. (KII). 42 U.S.C. § 9613(f)(1) (“In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate”). In July 1996, the District Court referred this second question to the Magistrate Judge, ordering the Magistrate Judge to issue a report, “after a hearing if necessary,” identifying the appropriate equitable factors and setting forth an allocation of Beazer’s clean-up costs among the parties. Mead objected, arguing that the Magistrate Judge did not have authority under the Magistrates Act to decide the equitable allocation issue in the first instance without the parties’ consent. The District Court rejected this argument, reasoning that equitable allocation was “essentially ... a pretrial matter” which can be referred to a magistrate judge without the parties’ consent per 28 U.S.C. § 636(b)(1), and that any concerns over the Magistrate Judge’s authority were allayed by the District Court’s retention of de novo review over the Magistrate Judge’s Report and Recommendation. The Magistrate Judge conducted a lengthy hearing on the equitable allocation issue in May 1997 and ultimately issued a Report and Recommendation in November 1999. Starting from the premise that responsible parties should pay according to their relative fault, the Magistrate Judge found that Mead was responsible for disposing of approximately 90% of the waste on the site, while Beazer and KII together were responsible for disposing of approximately 10% of the waste. However, the Magistrate Judge adjusted this initial allocation to account for his proposed finding that the parties to the 1974 purchase agreement “intended that Mead be able to ‘walk away” from the site, i.e., that Mead would not indemnify [KCI] for any future costs at the site for any reason, including environmental response costs.” The Magistrate Judge proposed that Mead’s share of Beazer’s response costs be reduced and Beazer’s share increased by 15% of the total costs. The Magistrate Judge also found that KII should bear a minor share of the response costs because, as the current owner, it would benefit from the environmental remediation of the site. The Magistrate Judge proposed that KII’s share of Beazer’s response costs should be 2.5%, that Mead’s share should be 73.75% (90% of the waste minus 15% shifted to Beazer minus 1.25%, half of KII’s share), and that Beazer’s share should be 23.75% (10% of the waste plus 15% shifted from Mead minus 1.25%). Following Mead’s objections, in March 2000, the District Court adopted the Magistrate Judge’s report with the following minor modifications: 1) 20% of the total costs — -rather than 15% — would be shifted to Beazer based on the text, parole evidence, and legal context of the 1974 purchase agreement; and 2) KII’s share would be subtracted entirely from Mead’s share and added to Beazer’s share because Beazer did not bring a contribution claim against KII. Accordingly, Mead’s share was reduced to 67.5% (90% minus 20% minus 2.5%), and Beazer’s increased to 32.5% (10% plus 20% plus 2.5%). In February 2002, the District Court conducted a three-day trial to determine which of Beazer’s actual costs incurred through December 31, 1999, were recoverable CERCLA response costs. In August 2002 the District Court issued a thorough opinion largely rejecting Mead’s challenges to Beazer’s costs. The court determined that Beazer had incurred recoverable response costs of $4,805,137.60 through the end of 1999 and entered judgment against Mead for 67.5% of this amount, or $3,243,467.80. Pursuant to the parties’ stipulation, in September 2002, the Court further ordered Mead to pay pre-judgment interest in the amount of $1,538,164.03. Finally, in October 2002, the District Court entered a declaratory judgment requiring Mead to pay 67.5% of Beazer’s ongoing response costs associated with implementing the AOC. The order also provided a framework for resolution of disputes over the necessity and NCP-consistency of such costs. Mead timely appealed these orders. In December 2002, we assigned the case for mediation pursuant to the Third Circuit’s Appellate Mediation Program, L.A.R. 33.0. The parties strenuously dispute what transpired at the February 26, 2003, mediation session. Beazer claims that the parties reached an oral agreement while Mead claims that the tentative agreement reached at mediation was conditioned on further management approval which was ultimately denied. In May 2003, Beazer moved this Court to enforce the alleged oral settlement and dismiss Mead’s appeal with prejudice. The motion was referred to this panel and we decide it here along with Mead’s appeals. III. Jurisdiction The District Court had jurisdiction over this case under 42 U.S.C. § 9613(b), which vests exclusive jurisdiction of CERCLA claims in the federal courts, as well as under 28 U.S.C. §§ 1331 and 1332. Horsehead Industries, Inc. v. Paramount Communications, Inc., 258 F.3d 132, 140 (3d Cir.2001); Beazer I, 34 F.3d at 210. We have appellate jurisdiction over the appeal from the District Court’s final orders described above pursuant to 28 U.S.C. § 1291. Horsehead Industries, 258 F.3d at 140. Finally, we have original jurisdiction over Beazer’s motion to enforce the alleged settlement agreement. See Fed. R.App. Pro. 33 (“The court may, as a result of the [mediation], enter an order controlling the course of the proceedings or implementing any settlement agreement.”). See also Herrnreiter v. Chicago Housing Auth., 281 F.3d 634, 637 (7th Cir.2002). Y. Discussion A. Enforcement of the alleged oral settlement. Beazer’s motion to specifically enforce the alleged oral settlement reached at the appellate mediation and to dismiss this appeal with prejudice must be rejected. Both Local Appellate Rule (LAR) 33.5 and sound judicial policy compel the conclusion that parties to an appellate mediation session are not bound by anything short of a written settlement. Any other rule would seriously undermine the efficacy of the Appellate Mediation Program by compromising the confidentiality of settlement negotiations. Beazer requests enforcement of the alleged oral settlement but admits that there are genuine factual disputes regarding whether the parties actually reached an agreement. Mead correctly argues that we cannot resolve these disputes without violating the confidentiality rule, LAR 33.5(c). With exceptions not relevant here, Rule 33.5(c) provides that no one at the mediation session — neither mediator, counsel, nor party — may disclose “statements made or information developed during the mediation process.” The provision further provides that “the parties are prohibited from using any information obtained as a result of the mediation process as a basis for any motion or argument to any court.” LAR 33.5(c) (emphases added). Beazer cannot prove the existence or terms of the disputed oral settlement without violating tfris provision’s broadly stated prohibitions. Beazer argues that the rule is not so sweeping. Beazer concedes that it may not use information obtained at the conference in any argument going to the merits of the appeal, but contends that it must be able to use that information for the limited purposes of proving the existence and terms of a settlement. This argument is unpersuasive. First, the rule is stated in the broadest possible language and does not contemplate any such exception. Second, Beazer’s proposed exception would effectively undermine the rule and would compromise the effectiveness of the Appellate Mediation Program. A confidentiality provision “permits and encourages counsel to discuss matters in an uninhibited fashion often leading to settlement.” Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928, 929 (2d Cir.1979). If counsel know beforehand that the proceedings may be laid bare on the claim that an oral settlement occurred at the conference, they will “of necessity ... feel constrained to conduct themselves in a cautious, tight-lipped, non-committal manner more suitable to poker players in a high-stakes game than to adversaries attempting to arrive at a just resolution of a civil dispute.” Id.; see also Herrnreiter, 281 F.3d at 637 (“A motion to implement a conference settlement easily could be a strategy to pierce the confidentiality of the negotiations and inform the judges of the parties’ position, rather than to carry out an agreement actually reached.”). Third, Beazer’s proposed exception would require appellate courts to receive evidence and resolve factual disputes, tasks more properly suited to the district courts. See Herrnreiter, 281 F.3d at 637. We must also consider LAR 33.5(d), which provides that “[n]o party shall be bound by statements or actions at a mediation session unless a settlement is reached.” The rule further provides that “if a settlement is reached, the agreement shall be reduced to writing and shall be binding upon all parties to the agreement.” Mead argues that the most “straightforward” reading of this rule is that no agreement is binding until it is written. Mead’s reading is serial: 1) if the parties reach an agreement, 2) then that agreement shall be written down, and 3) then, and only then, the agreement shall be binding. However, the grammatical structure of the rule is consistent with a parallel construction: 1) if the parties reach an agreement, 2)a) then it shall be reduced to writing, and, 2)b) then it shall be binding. Under this reading, the agreement is binding because it has been reached, not because it has been written down. The “parallel” construction of Rule 33.5(d) — which would make oral settlement agreements binding on the parties — -is irreconcilable with Rule 33.5(c), because, as described above, there is no way to prove the existence or terms of a disputed oral settlement without violating the confidentiality provision. Therefore, we adopt Mead’s “serial” reading of Rule 33.5(d), according to which an agreement is not binding unless it is reduced to writing. We note that the Ninth Circuit adopted a serial interpretation of similar language in Barnett v. Sea Land Serv., Inc., 875 F.2d 741, 743-44 (9th Cir.1989). Further, Judge Easterbrook’s opinion in Hermreiter provides persuasive policy justifications for requiring written settlements. In Hermreiter the parties admitted that they had reached an oral settlement at a voluntary appellate mediation session but they did not agree on the terms. Id. at 636. The court denied the defendant’s motion to implement the oral settlement. Id. at 637. The court noted that there is no transcript of appellate mediation sessions and that settlement conference attorneys presiding over such sessions promise both sides that nothing that transpires at the conference will be revealed to the judges; the court finally observed that appellate courts are not well-positioned to conduct fact-finding missions. Id. Accordingly, the court concluded that nothing short of a mutually satisfactory written settlement agreement could terminate an appeal. Id. “Any other approach would compromise the confidentiality of the negotiations, require the settlement attorneys to become witnesses in appellate factfinding proceedings, and substantially complicate the disposition of litigation.” Id. All of these concerns are equally present in this case. In fact, the argument for preserving confidentiality of proceedings is even stronger in this case, where participation in the appellate mediation program is mandatory and the mediation is directed by a court-employed mediator or a judicial officer. See In re Anonymous, 283 F.3d 627, 636-37 (4th Cir.2002) (citation omitted). Beazer complains that if Mead’s interpretation of Rules 33.5(c) and (d) is accepted then parties will be able to enter into oral agreements at settlement conferences and simply back out on a whim, significantly deterring the federal policy of encouraging settlements. See D.R. v. East Brunswick Bd. of Educ., 109 F.3d 896, 901 (3d Cir.1997). Beazer also relies on our oft-repeated position that a written agreement is not necessary to render a settlement enforceable. See, e.g., Green v. John H. Lewis & Co., 436 F.2d 389, 390 (3d Cir. 1970) (citations omitted). Mead’s first argument is simply incorrect: if parties know beforehand that only a written settlement agreement is binding, they will be sure to memorialize their agreement in writing at the end of the mediation session. Its second argument is based on basic common law contract principles, see Main Line Theatres, Inc. v. Paramount Film Distributing Corp., 298 F.2d 801, 803 (3d Cir.1962), and has no application where specific court rules provide otherwise. For all these reasons, Beazer’s motion to enforce the alleged oral settlement agreement and dismiss the appeal is denied. B. The District Court’s Referral to the Magistrate Judge. Mead argues that the Magistrates Act, 28 U.S.C. § 636, does not authorize the District Court’s referral to the Magistrate Judge, over Mead’s objection, of the equitable allocation issue. Mead contends that, for that reason, the Magistrate Judge lacked jurisdiction to conduct a hearing or issue a Report and Recommendation. Mead further asserts that, because the Magistrate Judge lacked jurisdiction, .the District Court’s putative de novo review did not rectify the improper referral. We agree with Mead on both points. The jurisdiction of magistrate judges is limited by statute and may not be augmented by the federal courts. See Thomas v. Whitworth, 136 F.3d 756, 758 (11th Cir.1998) (citing NLRB v. A-Plus Roofing, Inc., 39 F.3d 1410, 1415 (9th Cir.1994)). The District Court did not rely on any specific provision of the Magistrates Act in its order of referral or its order rejecting Mead’s objections to the referral, but it is clear from the context that the court considered the equitable allocation issue a “pretrial matter” under § 636(b)(1). Beazer argues in the alternative that the referral could be re-characterized as a designation of the Magistrate Judge to serve as a special master under § 636(b)(2) and Federal Rule of Civil Procedure 53(b). Beazer also argues that the referral was permissible under § 636(b)(3), which authorizes magistrate judges to undertake “such additional duties as are not inconsistent with the Constitution and laws of the United States.” We conclude that the referral was not proper under any provision of the Magistrates Act. 1. Equitable allocation is not a “pretrial matter.” We first consider whether the equitable allocation proceeding referred to the Magistrate Judge is correctly characterized as a “pretrial matter.” The Magistrates Act authorizes district courts to appoint magistrate judges to consider pretrial matters without regard to the parties’ consent. 28 U.S.C. § 636(b)(1). The District Court considered the equitable allocation proceeding a pretrial matter because it constituted a “significant step” in resolving the case: First, the identification of the equitable factors that will be relevant in an ultimate disposition of this case essentially is a pretrial matter and constitutes a significant step in resolving the parties’ current dispute. In addition, submitting briefs in support of an allocation of Beazer’s clean-up costs among the parties likewise is a pretrial undertaking which is necessary to narrow the issues for trial. The District Court’s reasoning is misleading and without supporting authority. First, the District Court significantly understates the significance and scope of the referral. The parties did not simply “submit briefs” in support of the equitable allocation issue&emdash;they presented extensive testimonial and documentary evidence over the course of a 12-day hearing. At the conclusion of this hearing the Magistrate Judge not only identified equitable factors but also applied those factors to make a recommendation as to the allocation of liability among the parties. Second, by the District Court’s reasoning, any issue in the case could be could be considered by a magistrate judge in a “pretrial” proceeding so long as the Court later conducted a “trial” on at least one issue. Whether a given issue is a “pretrial matter,” however, turns on the nature of the issue itself, not on the position in which it falls in the sequence of decision. A CERCLA contribution action consists of determining which parties are liable under CERCLA and apportioning the liable parties’ shares in an equitable manner. See 42 U.S.C. §§ 9607(a) & 9613(f)(1); New Jersey Turnpike Authority v. PPG Industries, Inc., 197 F.3d 96, 104 & n. 7 (3d Cir.1999); Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 656-57 (6th Cir.2000). Here, the first phase was uneontested: Mead, Beazer, and KII are each liable as current or former owners and operators of the Woodward Coke Plant. See 42 U.S.C. § 9607(a)(1). The equitable apportionment phase was divided into two proceedings: a proceeding (conducted by the Magistrate Judge) to determine the parties’ equitable shares of response costs on a percentage basis, see 42 U.S.C. § 9613(f)(1), and a separate proceeding (conducted by the District Court) to determine which of Beazer’s actual costs qualify as recoverable response costs, see 42 U.S.C. § 9607(a)(4)(B). Contrary to the District Court’s assertions, then, the issue referred to the Magistrate Judge was not a precursor to resolution of the ultimate issue&emdash;it was one of the ultimate issues to be tried. In fact, it was the only issue in the case unique to contribution claims. Whether a party is hable and which costs are recoverable are questions governed by CERCLA’s liability provision, 42 U.S.C. § 9607. The contribution provision, section 9613(f)(1), provides that “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” This was the very task referred to the Magistrate Further, this task required the Magistrate Judge to resolve factual disputes going to the merits of the case. In Banks v. United States, 614 F.2d 95 (6th Cir.1980), the court reasoned that section 636(b)(1) was carefully drafted to avoid granting magistrate judges the authority to perform fact-finding on the merits of case because that function is the essence of a trial, and magistrate judges cannot conduct trials without the parties’ consent: The statute clearly contemplates that a magistrate be allowed to help a district judge with a variety of pre-trial motions. However, absent consent, the magistrate cannot conduct a trial itself. Under our system of law, when there are factual controversies, there must be a trial. Only when a party is entitled to judgment as a matter of law may a trial be aborted. See e.cj. Fed R. Civ. P. 12, 56. Congress was careful to recognize this distinction when it amended the Federal Magistrate’s Act. The Act permits a magistrate to prepare proposed findings on a variety of “case dispositive” motions such as summary judgment. Except for prisoner’s cases, the act does not permit the magistrate to perform fact-finding on the merits of a case. That is the exclusive function of a district judge. Indeed, the magistrate judge’s role is to free the judge from pre-trial wrangling so that he can try cases. Id. at 97. In this case the Magistrate Judge did not facilitate the District Court’s ultimate adjudicatory function — he assumed that function. In the course of making his Report and Recommendation, the Magistrate Judge resolved two critical factual disputes. First, the he determined that Mead was responsible for approximately 90% of the waste at the Woodward Coke Plant. Second, he found that the parties to the 1974 purchase agreement intended that Mead would not be responsible for any environmental liabilities at the Plant. By making these findings, he tried part of the case and usurped the role of the District Judge. Accordingly, the equitable allocation proceeding conducted by the Magistrate Judge is not a “pretrial matter” under 28 U.S.C. § 636(b)(1). One further argument warrants mention. Beazer and the District Court imply that the equitable allocation proceeding conducted by the Magistrate Judge was a “pretrial matter” simply because it preceded the recoverable costs proceeding conducted by the District Court. This is mere happenstance. The proceedings could have been held in the reverse order or held together. As discussed above, the important issue is not the order of decision but the nature of decision — both the equitable allocation proceeding and the recoverable costs proceeding required the deci-sionmaker to resolve factual disputes going to the ultimate issues in the case. 2. Equitable allocation cannot be referred to a special master without the parties’ consent. Beazer argues that, even if the referral is not authorized by § 636(b)(1), we should recharacterize the referral as a designation of the Magistrate Judge to serve as a special master under § 636(b)(2). We need not reach the issue of whether an appellate court can save a flawed referral in this manner because we hold that the designation of a Magistrate Judge to conduct an equitable allocation without the parties’ consent would constitute an abuse of discretion. See Sierra Club v. Clifford, 257 F.3d 444, 446 (9th Cir.2001) (designation of special master is reviewed for abuse of discretion); American Cyanamid Co. v. Ellis-Foster Co., 298 F.2d 244, 247 (3d Cir.1962) (same). Section 636(b)(2) provides in pertinent part that a judge “may designate a magistrate judge to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure” without the parties’ consent. The applicable Federal Rule is Rule 53(b), which provides for references to special masters: A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it. The non-jury standard of review applies here. Thus, unless the proceeding referred to the Magistrate Judge in this case is characterized as part of a “difficult computation of damages,” the reference can only be justified upon a showing that some “exceptional condition” required it. Beazer makes no argument that any “exceptional condition” exists in this case, nor does Beazer argue that the Magistrate Judge performed any difficult computations. Rather, Beazer contends that the referral was proper because the equitable allocation proceeding conducted by the Magistrate Judge was a “predicate” to a “difficult computation of damages” performed by the District Court. Beazer’s expansive reading of Rule 53(b) is at odds with the Supreme Court’s restrictive interpretation. In La Buy v. Howes Leather Co., 352 U.S. 249, 256, 259, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the Court affirmed the appellate court’s issuance of a writ of mandamus compelling the District Court to vacate its order referring essentially the entirety of two complex antitrust cases to a special master. The Court noted that while masters could “aid judges” in the performance of specific duties, they could not be permitted to “displace the court.” Id. at 256, 77 S.Ct. 309; see also Prudential Ins. Co. v. United States Gypsum Co., 991 F.2d 1080, 1086 (3d Cir.1993) (“A district court has no discretion to delegate its adjudicatory responsibility in favor of a decision maker who has not been appointed by the President and confirmed by the Senate!”) (citing La Buy); In re Bituminous Coal Operators’ Ass’n, Inc. 949 F.2d 1165, 1168 (D.C.Cir.1991) (“Rule 53 ... authorizes the appointment of special masters to assist, not to replace, the adjudicator, whether judge or jury, constitutionally indicated for federal court litigation”). The Court found that the references at issue “amounted to little less than an abdication of the judicial function depriving the parties of a trial before the court on the basic issues involved in the litigation.” La Buy, 352 U.S. at 256, 77 S.Ct. 309. The Court acknowledged, however, that difficult damages computations could sometimes be referred to a master without the parties’ consent. “The detailed accounting required to determine the damages suffered by each plaintiff might be referred to a master after the court has determined the over-all liability of defendants, provided the circumstances indicate that the use of the court’s time is not warranted in receiving the proof and making the tabulation.” Id. at 259, 77 S.Ct. 309. Accountings and other damages computations may be referred without the parties’ consent because they generally do not call for any peculiar judicial talent or insight. See 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2605 at 655-66 (2d ed.1994). Equitable apportionment, on the other hand, is a quintessentially judicial endeav- or. CERCLA’s contribution provision authorizes the court ‘to “allocate response costs among liable parties using Such equitable factors as the court determines aré appropriate.” 42 U.S.C. § 9613(f)(1). In a given case, “a court may consider several factors or a few, depending on the totality of the circumstances and equitable considerations.” New Jersey Turnpike Authority v. PPG Industries, Inc., 197 F.3d 96, 104 (3d Cir.1999) (citation omitted). This flexible inquiry involves discretion, judgment, and legal reasoning that simply is not connoted by the phrase “difficult computation of damages.” ' This case provides a good illustration of this point. The Magistrate Judge’s proposed allocation turned chiefly on three factors: 1) volume of waste should be the pre-eminent equitable factor given CERCLA’s over7 arching “polluter-pays” principle; 2) Mead was responsible for approximately 90% of the waste; and 3) Mead was nonetheless entitled to a reduction in its share based on the parties’ intent that Mead would not be responsible for future environmental liabilities. In weighing these factors, only the second is reasonably related to a “computation of damages.” The other two turn on questions of law, policy, equity, and contractual intent. Further, even with respect to weighing the second factor, the computations performed by the Magistrate Judge were not “difficult” — they entailed elementary subtraction and addition of percentages. The Magistrate Judge did not crunch any numbers to determine that Mead was responsible for 90% of the waste on the site; rather, he decided which expert’s percentage estimates were more convincing. In fact, even this decision largely turned on a legal question: should Beazer be able to recover all of its response costs based on an AOC ordered under the Resource Conservation and Recovery Act that required investigation and monitoring of the entire industrial site, or should it be limited, as Mead’s chief expert contended, to costs that would have been assessed under a more modest hypothetical AOC issued pursuant to CERCLA? Thus, the issues referred to the Magistrate Judge here were not akin to a complicated accounting or difficult damages calculation. Rather, they were foremost among the “basic issues” to be tried, and the District Court’s referral of those issues without the parties’ consent was “an abdication of the judicial function.” La Buy, 352 U.S. at 256, 77 S.Ct. 309. Beazer also argues that our opinion in Beazer I ended the “liability phase” of this case, that everything that occurred on remand constituted the “damages phase,” and therefore everything on remand could have been properly referred to a master. This formalistic argument is inconsistent with La Buy’s reasoning. In United States v. Microsoft Corp., 147 F.3d 935, 954-55 (D.C.Cir.1998), the D.C. Circuit Court of Appeals vacated a reference to a special master to determine the parties’ rights under a complex consent decree. Seeking to uphold the reference, the Department of Justice invoked the “well-established tradition” allowing special. masters to oversee compliance during the remedial phase of litigation, arguing that the reference to oversee implementation of the consent decree fell squarely within that tradition. Id. at 954. (citations omitted). The court rejected this position, holding that “[t]he matters referred to the master are no more “remedial” than would be those of any total referral of a contract case. The concern about nonconsensual references turns on the determination of rights, not on a formalistic division of the juridical universe into pretrial, trial and post-trial. It is for this reason that special masters may not decide dispositive pretrial motions.” Id. (citation omitted). Similarly, the reference here involved a complex and delicate determination of equities. We note, however,that there is some support for Beazer’s position. In United States v. Conservation Chemical Co., 106 F.R.D. 210, 216 (W.D.Mo.1985), the District Court referred all pretrial and discovery matters as well as the trial on the merits to a special master without the parties’ consent. The reference included “the authority to hold hearings and issue recommendations on the claims for ... apportionment of costs.” Id. Predictably, the Eighth Circuit Court of Appeals held that no “exceptional condition” justified the District Court’s sweeping reference. In re Armco, 770 F.2d 103, 105 (8th Cir. 1985). But then, without explaining its reasoning, the court affirmed all aspects of the reference except for the trial on the liability issues. Thus, the court affirmed reference of all post-liability damages proceedings. Id. Although not explicitly stated, this reference necessarily covered any equitable allocation proceedings that might be necessary to resolve contribution claims brought by any of the liable parties. The Armco Court’s unexplained decision to uphold the reference of dispositive matters without any showing of exceptional conditions has been met with perplexity by two other circuit courts. Stauble v. Warrob, Inc., 977 F.2d 690, 696 (1st Cir.1992) (noting that the court was “baffled” by the Armco Court’s decision to authorize reference of dispositive pre-trial motions); In re United States, 816 F.2d 1083, 1091 (6th Cir.1987) (noting the court’s inability “to follow the [Armco ] Court’s reasoning” on this issue). We also do not consider Arm-co to be persuasive authority. It is possible that the Armco Court was overly solicitous towards the District Court’s Rule 53(b) reference because it perceived that the District Court required an extraordinary degree of flexibility to handle an enormous CERCLA case involving more than 250 parties. See 9A Wright & Miller, Federal Practice and Procedure § 2605, at 666 (“Despite the restrictive standard set out in the La Buy case, the actual utilization of masters under Rule 53(b) in the past two decades has been quite lively[,] undoubtedly [in response to] the rapid growth of complex litigation in the federal courts, particularly in cases requiring significant scientific and technical knowledge, [and] management skills”). In contrast, this case does not present similar administrative challenges — there are only three parties, and one, KII, has played only a minor role in the proceedings. Accordingly, we reject Beazer’s contention that the District Court could have designated the Magistrate Judge to hear the equitable allocation issue as a special master without Mead’s consent. 3. Equitable allocation cannot be referred under the “additional duties” clause. Finally, we reject Beazer’s suggestion that the referral was proper under the “additional duties” clause. 28 U.S.C. § 636(b)(3). This clause covers only subsidiary matters in the absence of the parties’ consent, and equitable allocation is central, rather than subsidiary, to a CERCLA contribution action. The parties’ consent or lack thereof is a key factor in deciding whether a referral is authorized under the “additional duties” clause. In Gomez v. United States, 490 U.S. 858, 876, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Court held that this clause did not authorize magistrate judges to supervise voir dire proceedings in a criminal case over a defendant’s objection. However, in Peretz v. United States, 501 U.S. 923, 932-36, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), the Court held that the “additional duties” clause did authorize the reference of voir dire in a criminal case where the defendant consented to the reference. The Court reasoned that the scope of the clause varied significantly according to whether the parties’ consented to the reference. See Peretz, 501 U.S. at 931-33, 111 S.Ct. 2661; Gomez, 490 U.S. at 870-71, 109 S.Ct. 2237. As the Court explained in Gomez and reiterated in Peretz, the scope of § 636(b)(3)’s residuary clause had to be interpreted in light of the duties specifically authorized in the other sections of the Act. Peretz, 501 U.S. at 930-31, 111 S.Ct. 2661 (citing Gomez, 490 U.S. at 864, 109 S.Ct. 2237). The Court explained that “the duties that a magistrate judge may perform over the parties’ objections are generally subsidiary matters not comparable to supervision of jury selection. However, with the parties’ consent, a district judge may delegate to a magistrate judge supervision of entire civil and misdemean- or trials. These duties are comparable in responsibility and importance to presiding over voir dire at a felony trial.” Peretz, 501 U.S. at 932, 111 S.Ct. 2661. Thus, in the absence of Mead’s consent, the referral would only be authorized under § 636(b)(3) if we characterized the equitable allocation proceeding as a “subsidiary matter.” See 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 3068.1 at 329 (2d ed.1997). As explained in the previous two sections, equitable allocation is central to Beazer’s CERCLA action, not subsidiary thereto. Accordingly, the referral could not be authorized under the “additional duties” clause over Mead’s objection. This conclusion is consistent with Congressional intent. As the Court in Peretz explained, “[t]he Act is designed to relieve the district courts of certain subordinate duties that often distract the courts from more important matters.” 501 U.S. at 934, 111 S.Ct. 2661. In support of this assessment, the Court cited several statements from the legislative history of the Act and its various amendments. See, e.g., H.R. Rep. no. 94-1609, p. 7 (1976), U.S.Code & Cong. & Admin.News 1976, pp. 6162, 6167 (stating that a magistrate judge is to “assist the district judge in a variety of pretrial and preliminary matters thereby facilitating the ultimate and final exercise of the adjudicatory function at the trial of the case”). Equitable allocation is at the very core of a CERCLA contribution action and is not a preliminary or subordinate matter. 4. Remand is required notwithstanding the District Court’s purported de novo review. Beazer contends, and the District Court reasoned, that any flaw in the referral is corrected by the District Court’s purported de novo review of the Magistrate Judge’s proposed equitable allocation. This argument is unavailing. First, as noted above, a magistrate judge’s authority is jurisdictional. Without the parties’ consent, a magistrate judge cannot conduct a trial or any part thereof, see 28 U.S.C. § 636(c)(1) (“[u]pon the consent of the parties, a ... magistrate judge ... may conduct any or all proceedings in a jury or nonjury civil matter”), and “[t]he mere existence of a recommendation [and accompanying de novo review] will not change a full trial [or any part thereof] into a pre-trial motion.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 n. 17 (11th Cir.1990) (citing Hall v. Sharpe, 812 F.2d 644, 647 (11th Cir.1987)). Second, § 636(b)(1)(B) provides that certain dispositive pre-trial motions may be referred to a magistrate judge, but the magistrate judge’s proposal must be reviewed de novo by the court. Mead correctly argues that this provision would be meaningless if no specific statutory delegation were necessary so long as the District Court conducted a de novo review. Third, the District Court’s error cannot be considered harmless no matter how admirable the Magistrate Judge’s efforts may have been. See United States v. Ruiz-Rodriguez, 277 F.3d 1281, 1293 n. 17 (11th Cir.2002) (“[HJarmless error analysis does not apply when a magistrate judge lacks the power to act.”). Since the Magistrate Judge lacked the power to conduct the equitable allocation proceeding in this case, there was nothing for the District Court to review. Although the issue of appropriate remedy is less settled where the flawed referral is to a special master (or a magistrate judge acting as a special master) rather than to a magistrate judge qua magistrate judge, remand for a new trial is the proper remedy even if the District Court’s referral could be re-characterized as a designation of the Magistrate Judge to serve as a special master. First, while at least two courts of appeals have suggested that a remand for a new trial may not be required where the district court reviews the master’s report de novo, Sierra Club v. Clifford, 257 F.3d 444, 447 (9th Cir.2001) (vacating reference but declining to decide whether de novo review by the district judge could save a flawed reference), Stauble, 977 F.2d at 698 n. 12 (same), we rejected a similar argument in Prudential. The District Court in Prudential had stated that the reference was limited to pretrial motions, and that it would review every conclusion of law proposed by the special master de novo. 991 F.2d at 1086 n. 11. We reasoned, however, that de novo review of legal matters could not save an improper referral because such review was always available regardless of whether the referral violated Rule 53(b). Id. That is, if de novo review of legal issues cured referrals made in violation of Rule 53(b), that provision would be meaningless. Furthermore, the referral in this case encompassed questions of fact as well as questions of law, and Rule 53(e)(2) provides that in non-jury trials the district court “shall accept the master’s findings of fact unless clearly erroneous.” Fed. R. Civ. Pro. 53(e)(2) (emphasis added); Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d 1089, 1097 (3d Cir.1987) (noting that review of master’s legal conclusions is plenary, but that district court must accept master’s factual findings unless clearly erroneous). Relying on this provision, the court in Microsoft rejected the argument that de novo review can save an improper referral because the master’s factual conclusions cannot be reviewed de novo under Rule 53(e)(2). 147 F.3d at 955; see also Sierra Club, 257 F.3d at 448 (suggesting but not reaching same conclusion). In this case the District Court claims that it reviewed both the Magistrate Judge’s factual findings and its legal conclusions de novo. This is inconsistent with Rule 53(e)(2), and a district court cannot cure one violation of Rule 53 by committing another. Finally, it would be inappropriate to re-eharacterize the referral as a flawed designation of a special master solely to avoid the remand required by case law construing other provisions of the Magistrates Act. Accordingly, this case must be remanded for a new equitable allocation proceeding before the District Court. We note that Beazer’s contribution action is now in its fourteenth year and will likely enjoy several more birthdays, partly because our reversal today will require the parties to retread well-worn ground. In an attempt to avoid further duplicative litigation and speed this case towards its conclusion, we take this opportunity to resolve two other issues raised by the parties on appeal. C. The District Court’s Equitable Allocation Was Erroneous. First, we agree with Mead that the District Court committed legal error, and therefore abused its discretion, in prioritizing the parties’ respective contributions of waste at the Woodward Coke Plant in determining the appropriate allocation of Beazer’s response costs. The District Court found that the parties to the 1974 sale intended that Mead would not bear any environmental liability following the 1974 sale, but reduced Mead’s equitable share by only 20% in recognition of this and related findings that we refer to here as the “purchase agreement factors,” all of which favor Mead. The District Court’s decision to prioritize the volume of waste over the purchase agreement factors appears to follow two related rationales explicitly developed in the Magistrate Judge’s Report and Recommendation. The Magistrate Judge concluded that “CERCLA is premised upon the policy that the ‘polluter pays.’ ” Thus, the Magistrate Judge began from the premise that each party’s equitable share should be driven by its respective contribution of waste. The Magistrate Judge deviated only slightly from this premise to account for the equitable factors surrounding the 1974 sale. The Magistrate Judge also concluded that it would be inconsistent with our decision in Beazer I to allocate “all or even most” of the response costs to Mead. The District Court somewhat ambiguously adopted each rationale. However, neither Beazer I, nor CERCLA itself, requires that the parties’ intent to shift environmental risk be subordinated to the “polluter pays” principle — as long as someone pays. Therefore, the District Court’s allocation, which was based in part on its agreement with the Magistrate Judge’s flawed reasoning, was an abuse of discretion. First, the Magistrate Judge’s and District Court’s prioritization of the “polluter pays” principle in equitable allocation proceedings is inconsistent with CERCLA’s contribution provision. That provision authorizes the district 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). Courts examining this language and its history have concluded that Congress intended to grant the district courts significant flexibility in determining equitable allocations of response costs, without requiring the courts to prioritize, much less consider, any specific factor. In a leading case, the Seventh Circuit Court of Appeals explained that “the language of section 9613(f) clearly indicates Congress’s intent to allow courts to determine what factors should be considered in their own discretion without requiring a court to consider any particular list of factors.” Environmental Transportation Systems, Inc. v. ENSCO, 969 F.2d 503, 508 (7th Cir.1992); see also United States v. R.W. Meyer, Inc., 932 F.2d 568, 576-77 (6th Cir.1991) (reasoning that section 9613(f)(l)’s language “confirms the legislative intent to grant courts flexibility in exercising their discretion”) (citations to legislative history omitted). As we have held, “a court may consider several factors or a few, depending on the totality of the circumstances.” New Jersey Turnpike Authority v. PPG Industries, Inc., 197 F.3d 96, 104 (3d Cir.1999) (citation omitted). Accordingly, the “polluter pays” principle has no canonical or transcendent importance under § 9613(f)(1); it is certainly not the “primary policy” of contribution claims, as implied by the District Court. It is simply one of many factors that may or may not bear on a given equitable allocation determination. See Kerr-McGee, 14 F.3d at 326 (listing possible factors). Specifically, there is no basis in CERCLA’s text or history for prioritizing a priori the parties’ relative contributions of waste over their contractual intent to allocate environmental liability among themselves. To the contrary, CERCLA expressly authorizes private indemnity agreements, see 42 U.S.C. § 9607(e)(1); Fisher Development Co. v. Boise Cascade Corp., 37 F.3d 104, 110 (3d Cir.1994) (finding in § 107(e)(1) “a policy favoring private ordering of ultimate risk distribution”), and the District Court’s insistence on elevating relative waste contribution is fundamentally inconsistent with CERC-LA’s policy of favoring private indemnity agreements. Second, Beazer I dealt with the legal interpretation of Paragraph 4(c). As a matter of equity, however, the intent of the parties, which is manifested by their actions and in the written agreement, can be taken into account — no matter what our legal conclusion was in Beazer I. Beazer I does not tip the equitable scales one way or another. In Beazer I, we determined that the 1974 agreement was governed by Alabama law, 34 F.3d at 211-15, and that indemnification agreements are enforceable under Alabama law only if they contain “a plain and unambiguous expression of intent to cover the cost of the liability in question.” Id. at 216. Applying this standard, we concluded that “nothing in this agreement demonstrates a clear and unambiguous intent to transfer all CERCLA liability to [KCI].” Id. at 219. The Magistrate Judge correctly reasoned that Beazer I reached no conclusion regarding the parties’ actual intent; only that, as a matter of Alabama law, the contract did not contain a sufficiently clear expression that KCI would indemnify Mead against all environmental liability associated with the site. See id. Thus, the Magistrate Judge concluded that “there is no inherent inconsistency in the ruling made on appeal and a decision by this court that, as a matter of equity, the parties’ intentions concerning indemnity, to the extent they can be divined from both the document and any other evidence offered by the parties, should be considered in equitable allocation.” However, the Magistrate Judge further reasoned that shifting all or most of the response costs to Beazer based on the purchase agreement factors “would give the agreement, found legally insufficient under Alabama law, the force of law, and would place [the District] Court’s decision at odds with the ruling made by the Court of Appeals.” This conclusion does not follow from Beazer I. The District Court, however, rejected Mead’s contention that the Magistrate Judge had misinterpreted Beazer I. The court quoted from its penultimate paragraph, seemingly for the proposition that Mead’s “fair share” of Beazer’s response costs should be greatly influenced, if not largely determined, by Mead’s relative contributions of hazardous waste to the site. The penultimate paragraph provides: Our refusal to construe Paragraph 4(c) as a clear promise by Beazer to indemnify Mead against CERCLA response costs leaves both Beazer and Mead responsible for their fair share of the cleanup costs associated with the Coke Plant. That result reinforces CERCLA policy. “Congress enacted CERCLA, a complex piece of legislation ... to force polluters to pay for costs associated with remedying their pollution.” United States v. Alcan Aluminum Corp. 964 F.2d 252, 258 (3d Cir.1992). 34 F.3d at 219. Apparently, the District Court considered this quotation from Al-can Aluminum to support (or perhaps require) elevating the “polluter pays” principle above all other equitable factors. The quoted paragraph does not warrant such significance. The first two sentences uncontroversially state that holding Mead and Beazer responsible for their fair share of cleanup costs reinforces CERCLA policy. Id. at 219. The next sentence, the quotation from Alcan Aluminum, is to the effect that Congress intended that polluters pay for the costs of remedying their pollution. Id. (quoting Alcan, 964 F.2d at 258). The District Court apparently inferred from the juxtaposition of these statements that each party’s “fair share” must be more or less rigidly tied to its share of pollution at the site. Such an interpretation is, however, fundamentally at odds with CERCLA’s contribution provision as well as with CERCLA’s policy of favoring private indemnity agreements. We note, moreover, that in the footnote at the end of the penultimate paragraph, the Beazer I Court quoted the “equitable factors” language of section 9607(a) and went on to note that on remand, “the trial court will have to revisit the parties’ contribution claims and correspondingly apportion liability for attendant CERCLA response costs.” This direction is significantly broader than a direction that liability should be apportioned to reflect each party’s share of pollution at the site— which the Beazer I Court could easily have stated if that were its intent. It is clear, then, that the District Court erred in eliminating significant consideration of the parties’ intent in its equitable allocation. See Kerr-McGee, 14 F.3d 321, 326 (“Although contractual arrangements between parties are not necessarily determinative of statutory liability, Lefton’s intent to indemnify Kerr-McGee should be considered in the allocation of cleanup costs.”). Moreover, to the extent that the court felt itself bound by the “polluter pays” principle or by our oblique reference to that principle in Beazer I, that conclusion was unwarranted. Because we conclude that the District Court’s ultimate allocation of Beazer’s costs was predicated in large part on this error, that conclusion was an abuse of discretion. Mead would have us go further and prescribe that the purchase agreement factors must be prioritized on remand, but we think this is inappropriate. CERCLA places both the selection and weighing of equitable factors in the sound discretion of the district court, not the appellate court. Accordingly, we leave these matters for the District Court to decide on its own on remand, unfettered by the legal errors discussed above. D. Any Declaratory Judgment Should Contain a Contingency Provision. Finally, we are sympathetic with Mead’s contention that the District Court’s declaratory judgment fixing the parties’ equitable shares of future response costs should contain a provision authorizing the parties to re-litigate the District Court’s equitable allocation if new facts or future events render the current division inequitable. For example, Mead argues that once the investigatory phase of the case concludes and the remedial phase ensues, the District Court’s equitable allocation would no longer be fair if any required remediation is “primarily or exclusively directed to those areas of the Site where Beazer is responsible for the majority of the contamination.” Because the equitable allocation proceeding in this case must be conducted again on remand by the District Court, the declaratory judgment already entered in this case is null and void. If and when the District Court enters a new declaratory judgment covering future costs, however, we agree with Mead that the judgment should contain some kind of provision authorizing the parties to re-litigate the allocation of those costs for good cause shown in response to new events or new evidence that would reasonably bear upon the equity of the allocation. Such contingency provisions are generally favored in CERCLA contribution actions, see United States v. Davis, 261 F.3d 1, 45 (1st Cir.2001) (quoting contingency provision imposed by district court); Acushnet Co. v. Coaters, Inc., 972 F.Supp. 41, 69 (D.Mass.1997); Boeing Co. v. Cascade Corp., 920 F.Supp. 1121, 1142 (D.Or.1996), and we agree with the wisdom of those cases. We leave the specific design of the provision to the discretion of the District Court, with the help of the parties. We recognize Beazer’s concern that Mead might use such a provision to re-litigate issues that will have already been decided in the equitable allocation proceeding to be conducted on remand, but we think this concern can be adequately addressed by application of the ‘law of the case’ doctrine. VI. Conclusion For the reasons stated above, we will reverse the judgments of the District Court and remand this action for further proceedings consistent with this opinion. . Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C.A. §§ 9601-9675. . On remand Mead filed a third-party complaint against KII, the current owner of much of the site. KII was formed in a 1988 leveraged buy-out led by former KCI managers following Beazer's acquisition of KCI. Beazer sold the operational portion of the site to KII in 1988, agreeing to indemnify KII for environmental liabilities arising from pre-1988 activities. KII continued to operate the site until 1998 and demolished all site structures in 1999. There is no dispute that Beazer, Mead, and KII are each responsible parties as defined by CERCLA, 42 U.S.C. § 9607(a). Each entity has owned and operated the Woodward Facility, and hazardous substances were disposed of at the facility during each ownership period. See id. at § 9607(a)(2). . This finding was based on the Magistrate Judge's interpretation of the indemnification clause in the 1974 purchase agreement discussed in Beazer I, the "as is, where is” clause in the same agreement, and the law of caveat emptor in Alabama at the time of the agreement. The Magistrate Judge further found that KCI performed a full inspection of the site prior to purchase, and was "well aware of the environmental condition of the site.” . Federal Rule of Appellate Procedure 33 gives appellate courts the power to order settlement conferences and to "implement[] any settlement agreement” reached as a result of such conferences. Fed. R.App. P. 33. The Third Circuit has established an Appellate Mediation Program to implement this general directive. Local Appellate Rule 33.0. The program is subject to the rules and procedures provided in the Local Appellate Rules. Id. . Beazer asserts that the parties reached an oral agreement at the mediation conference but that Mead's management ultimately reneged on the agreement while it was being reduced to writing over the course of the following weeks. Mead contends that the parties only reached "a tentative resolution of some of the financial terms.” According to Mead, this resolution was non-binding because it exceeded Mead's representatives' settlement authority. According to Beazer, Mead’s representatives never indicated that the agreement reached at the mediation session was conditioned on subsequent approval by Mead’s management. . It is true that the rule also provides that "[n]otwithstanding the foregoing, the bare fact that a settlement has been reached as a result of mediation shall not be considered confidential.” LAR 33.5(c). However, this exception is unavailing. Beazer may assert the "bare fact” that a settlement was reached but may not offer any evidence supporting this assertion. Since Mead asserts that no settlement was reached, there is no way for us to resolve the dispute. . As in this case, the parties in Barnett entered into mediation, but one of the parties refused to sign a settlement agreement prepared by another party after the mediation took place and argued that no settlement had been reached. Id. Relying on Local Rule 39.1, a confidentiality provision governing mediation proceedings in the Western District of Washington, the District Court prohibited the party seeking to enforce the alleged agreement from eliciting testimony from the mediator about whether a settlement had been reached. Id. Local Rule 39.1 is very similar to the Third Circuit's LAR 33.5(c) & (d). After providing that mediation proceedings and statements are privileged, the rule states that "[n]o party shall be bound by anything done or said at the conference unless a settlement is reached, in which event the agreement upon a settlement shall be reduced to writing and shall be binding upon all the parties to that agreement.” Id. The Ninth Circuit interpreted this language to mean that "until a settlement is reduced to writing, it is not binding upon the parties.” Id. at 744. . If there are analogous local rules governing the Seventh Circuit's appellate mediation program the Court in Hermreiter did not address them. Rather, it interpreted the text of Fed. R.App. Pro. 33, which does not contain a confidentiality provision, and the practice of the Seventh Circuit's Settlement Conference Office. 281 F.3d at 637-38. . The scope of a magistrate judge's authority is a question of law over which this Court exercises plenary review. Bowers v. National Collegiate Athletic Ass'n, 346 F.3d 402, 410 (3d Cir.2003). . We agree with the Fifth Circuit that “Iglood practice would indicate that court orders of designation or reference state plainly under what statutory provision the court is proceeding.” Archie v. Christian, 808 F.2d 1132, 1137 (5th Cir.1987) (en banc); see also Silberstein v. Silberstein, 859 F.2d 40, 42 (7th Cir.1988). . The District Court also held that Mead's objections to the referral were untimely because Mead did not immediately object but waited until the Magistrate Judge had issued a scheduling order contemplating implementation of the referral. Mead correctly argues that objections to a magistrate judge's authority are jurisdictional and may be raised at any time. Government of Virgin Islands v. Williams, 892 F.2d 305, 309 (3d Cir.1989). Further, for reasons provided in the next section of this opinion we conclude that the Magistrate Judge essentially held a trial on the equitable allocation issue, and trials may not be conducted by a magistrate judge without the parties’ consent. 28 U.S.C. § 636(c)(1). Even if this consent requirement could be waived, a question we need not reach here, we agree with Mead that the brief lapse following the District Court's order of referral cannot be construed as a waiver. Mead objected to the Magistrate Judge's authority to consider the equitable allocation issue just after the Magistrate Judge entered its scheduling order and long before the Magistrate Judge had begun to consider the merits of this issue, much less receive the parties’ submissions or hold a hearing. We note that Beazer has failed on appeal to respond to any of Mead’s arguments on this point. Of course, an appellee does not concede that a judgment should be reversed by failing to respond to an appellant's argument in favor of reversal. See Singletary v. Conti nental Illinois Nat'l Bank, 9 F.3d 1236, 1240 (7th Cir.1993). However, the appellee "waives, as a practical matter anyway, any objections not obvious to the court to specific points urged by the [appellant].” Hardy v. City Optical Inc., 39 F.3d 765, 771 (7th Cir.1994) (citations omitted). . The magistrate judge may hear and decide non-dispositive pretrial matters but may only issue a report and recommendation on dis-positive pre-trial matters. Compare 28 U.S.C. § 636(b)(1)(A) with id. at § 636(b)(1)(B); see also Fed.R.Civ.P. 72; United States v. Polishan, 336 F.3d 234, 239 (3d Cir.2003); NLRB v. Frazier, 966 F.2d 812, 816 (3d Cir.1992). . This interpretation is supported by the legislative history of the Magistrate’s Act and its amendments. See, e.g., H.R.Rep. No. 94-1609, at 7 (1976), U.S.Code & Cong. & Admin.News 1976, pp. 6162, 6167 (explaining that the magistrate judge is to "assist the district judge in a variety of pretrial and preliminary matters thereby facilitating the ultimate and final exercise of the adjudicatory function at the trial of the case.”); see also Gomez v. United States, 490 U.S. 858, 872 & n. 23, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (collecting legislative history for the proposition that “magistrates should handle subsidiary matters to enable district judges to concentrate on trying cases”). . At least one circuit court has suggested in dictum that an improper referral under § 636(b)(1) could be re-characterized as a designation of a magistrate judge to serve as a special master per § 636(b)(2) and Rule 53(b). In Callier v. Gray, 167 F.3d 977, 983 (6th Cir.1999), the court upheld an ambiguous referral to a magistrate judge of a damages issue under the "additional duties” provision, § 636(b)(3). The court noted that Rule 53(b) might have served as an "additional basis for jurisdiction of the magistrate judge on the damages dispute,” but concluded that it did not need to reach the issue. Id. at 983 n. 10. The court entertained this idea even though the referral in that case was made specifically under § 636(b)(1)(B), not § 636(b)(2). We take no position on this issue. . Both § 636(b)(2) and Rule 53(b) provide that a magistrate judge may be designated as a special master without regard to Rule 53(b)’s limitations upon consent of the parties. Because Mead did not consent, this exception is inapplicable. . The Court also rejected the judge's claim that docket congestion, complexity, and length of time necessary for trial constituted “exceptional circumstances” justifying the reference. Id. at 258-29, 77 S.Ct. 309; see also Charles Alan Wright & Arthur R. Miller, 9A Federal Practice and Procedure § 2605, at 662 (2d ed.1994) (noting that the Court rejected "the three most obvious matters” that might be thought to constitute "exceptional conditions”); In re Armco, Inc., 770 F.2d 103, 105 (8th Cir.1985) ("Beyond matters of account, difficult computation of damages, and Unusual discovery, it is difficult to conceive of a reference of a nonjury case that will meet the rigid standards of the La Buy decision.”) (internal quotations omitted). . Because we conclude that the District Court could not save the flawed referral no matter what level of review it conducted, we need not consider whether it actually performed a de novo review of the Magistrate Judge’s report and recommendation. . A district court’s allocation of CERCLA response costs in a contribution action is reviewed for abuse of discretion. See, e.g., Kalamazoo River Study Group v. Rockwell Intern. Corp., 274 F.3d 1043, 1047 (6th Cir.2001). An abuse of discretion occurs when "the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” International Union v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.1987). . The District Court found that the parties to the 1974 agreement "intended that Mead be able to 'walk away’ from the site, i.e., that Mead would not indemnify [KCI, Beazer's predecessor] for any future costs at the site for any reason, including environmental response costs.” The District Court also found that KCI purchased the property pursuant to the doctrine of caveat emptor, that the purchase agreement contained an "as is” clause, that KCI was "well aware of the environmental condition of the site” after performing a full inspection prior to purchase, and that "reasonable parties negotiating the sale of an industrial site in Alabama in 1974 would expect that the seller would not be held liable for any future environmental costs.” . The Magistrate Judge properly cited Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321 (7th Cir.1994) in support of this distinction between legal and equitable rulings. In that case, the District Court concluded that the relevant indemnification provision was insufficiently clear as a matter of Illinois law, id. at 327, and consequently "ignored the [provision] when allocating responsibility for cleanup costs.” Id. at 326. In dictum, the Seventh Circuit concluded that this was error, reasoning that "[although contractual arrangements between parties are not necessarily determinative of statutory liability, Lefton's intent to indemnify Kerr-McGee should be considered in the allocation of cleanup costs." Id. The court further explained that the fact that “Lefton — with knowledge of the creosote on the site — agreed that it took the property "as is” and would assume future liabilities resulting from that pollution is certainly a significant circumstance.” Id. The court noted that "[t]he fact that Kerr-McGee’s predecessor Moss-American was the source of most of the pollution at the site may also weigh in the Court's analysis; this however is not reason to ignore other relevant considerations.” Id. The issue of the appropriate weight to be accorded to each factor was not before the court, and the court had no occasion to suggest an answer to this question since it ultimately concluded that the indemnification provision did cover CERCLA liability, so no equitable allocation proceeding was required. Id. at 327-28. . Alcan Aluminum had nothing to do with contribution actions under § 113(f); the issues considered in Alcan Aluminum bore on Alcan's initial liability under CERCLA and to what degree it was required to reimburse the government for clean-up costs. See 964 F.2d at 259, 267-71. . Finally, contrary to Beazer’s suggestion, Federal Rule of Civil Procedure 60(b) is insufficient to protect Mead’s rights if new events render the initial allocation inequitable because motions based on new evidence brought under that rule must be made "not more than one year” after the judgment was entered.

Cooper Industries, Inc. v. Aviall Services, Inc.

Justice Thomas delivered the opinion of the Court. Section 113(f)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) allows persons who have undertaken efforts to clean up properties contaminated by hazardous substances to seek contribution from other parties liable under CERCLA. Section 113(f)(1) specifies that a party may obtain contribution “during or following any civil action” under CERCLA §106 or § 107(a). The issue we must decide is whether a private party who has not been sued under § 106 or § 107(a) may nevertheless obtain contribution under § 113(f)(1) from other liable parties. We hold that it may not. I Under CERCLA, 94 Stat. 2767, the Federal Government may clean up a contaminated area itself, see § 104, or it may compel responsible parties to perform the cleanup, see § 106(a). See Key Tronic Corp. v. United States, 511 U. S. 809, 814 (1994). In either case, the Government may re-* cover its response costs under § 107, 42 U. S. C. § 9607 (2000 ed. and Supp. I), the “cost recovery” section of CERCLA. Section 107(a) lists four classes of potentially responsible persons (PRPs) and provides that they “shall be liable” for, among other things, “all costs of removal or remedial action incurred by the United States Government... not inconsistent with the national contingency plan.” § 107(a)(4)(A). Section 107(a) further provides that PRPs shall be liable for “any other necessary costs of response incurred by any other person consistent with the national contingency plan.” § 107(a)(4)(B). After CERCLA’s enactment in 1980, litigation arose over whether § 107, in addition to allowing the Government and certain private parties to recover costs from PRPs, also allowed a PRP that had incurred response costs to recover costs from other PRPs. More specifically, the question was whether a private party that had incurred response costs, but that had done so voluntarily and was not itself subject to suit, had a cause of action for cost recovery against other PRPs. Various courts held that § 107(a)(4)(B) and its predecessors authorized such a cause of action. See, e. g., Wickland Oil Terminals v. Asarco, Inc., 792 F. 2d 887, 890-892 (CA9 1986); Walls v. Waste Resource Corp., 761 F. 2d 311, 317-318 (CA6 1985); Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1140-1143 (ED Pa. 1982). After CERCLA’s passage, litigation also ensued over the separate question whether a private entity that had been sued in a cost recovery action (by the Government or by another PRP) could obtain contribution from other PRPs. As originally enacted in 1980, CERCLA contained no provision expressly providing for a right of action for contribution. A number of District Courts nonetheless held that, although CERCLA did not mention the word “contribution,” such a right arose either impliedly from provisions of the statute, or as a matter of federal common law. See, e. g., United States v. New Castle County, 642 F. Supp. 1258, 1263-1269 (Del. 1986) (contribution right arises under federal common law); Colorado v. ASARCO, Inc., 608 F. Supp. 1484, 1486-1493 (Colo. 1985) (same); Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27, 31 (ED Mo. 1985) (contribution right is implied from § 107(e)(2)). That conclusion was debatable in light of two decisions of this Court that refused to recognize implied or common-law rights to contribution in other federal statutes. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 638-647 (1981) (refusing to recognize implied or common-law right to contribution in the Sherman Act or the Clayton Act); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 90-99 (1981) (refusing to recognize implied or common-law right to contribution in the Equal Pay Act of 1963 or Title VII of the Civil Rights Act of 1964). Congress subsequently amended CERCLA in the Superfund Amendments and Reauthorization Act of 1986 (SARA), 100 Stat. 1613, to provide an express cause of action for contribution, codified as CERCLA § 113(f)(1): “Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.” Id., at 1647, as codified in 42 U. S. C. § 9613(f)(1). SARA also created a separate express right of contribution, § 113(f)(3)(B), for “[a] person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement.” In short, after SARA, CERCLA provided for a right to cost recovery in certain circumstances, § 107(a), and separate rights to contribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B). II This case concerns four contaminated aircraft engine maintenance sites in Texas. Cooper Industries, Inc., owned and operated those sites until 1981, when it sold them to Aviail Services, Inc. Aviall operated the four sites for a number of years. Ultimately, Aviall discovered that both it and Cooper had contaminated the facilities when petroleum and other hazardous substances leaked into the ground and ground water through underground storage tanks and spills. Aviall notified the Texas Natural Resource Conservation Commission (Commission) of the contamination. The Commission informed Aviall that it was violating state environmental laws, directed Aviall to clean up the site, and threatened to pursue an enforcement action if Aviall failed to undertake remediation. Neither the Commission nor the EPA, however, took judicial or administrative measures to compel cleanup. Aviall cleaned up the properties under the State’s supervision, beginning in 1984. Aviall sold the properties to a third party in 1995 and 1996, but remains contractually responsible for the cleanup. Aviall has incurred approximately $5 million in cleanup costs; the total costs may be even greater. In August 1997, Aviall filed this action against Cooper in the United States District Court for the Northern District of Texas, seeking to recover cleanup costs. The original complaint asserted a claim for cost recovery under CERCLA § 107(a), a separate claim for contribution under CERCLA § 113(f)(1), and state-law claims. Aviall later amended the complaint, combining its two CERCLA claims into a single, joint CERCLA claim. That claim alleged that, pursuant to § 113(f)(1), Aviall was entitled to seek contribution from Cooper, as a PRP under § 107(a), for response costs and other liability Aviall incurred in connection with the Texas facilities. Aviall continued to assert state-law claims as well. Both parties moved for summary judgment, and the District Court granted Cooper’s motion. The court held that Aviall, having abandoned its § 107 claim, sought contribution only under § 113(f)(1). The court held that § 113(f)(1) relief was unavailable to Aviall because it had not been sued under CERCLA § 106 or § 107. Having dismissed Aviall’s federal claim, the court declined to exercise jurisdiction over the state-law claims. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. 263 F. 3d 134 (2001). The majority, relying principally on the “during or. following” language in the first sentence of § 113(f)(1), held that “a PRP seeking contribution from other PRPs under § 113(f)(1) must have a pending or adjudged § 106 administrative order or § 107(a) cost recovery action against it.” Id., at 145. The dissent reasoned that the final sentence of § 113(f)(1), the saving clause, clarified that the federal common-law right to contribution survived the enactment of § 113(f)(1), even absent a §106 or § 107(a) civil action. Id., at 148-150 (opinion of Wiener, J.). On rehearing en banc, the Fifth Circuit reversed by a divided vote, holding that § 113(f)(1) allows a PRP to obtain contribution from other PRPs regardless of whether the PRP has been sued under §106 or §107. 312 F. 3d 677 (2002). The court held that “[sjection 113(f)(1) authorizes suits against PRPs in both its first and last sentence^] which states without qualification that ‘nothing’ in the section shall ‘diminish’ any person’s right to bring a contribution action in the absence of a section 106 or section 107(a) action.” Id., at 681. The court reasoned in part that “may” in § 113(f)(1) did not mean “may only.” Id., at 686-687. Three members of the en banc court dissented for essentially the reasons given by the panel majority. Id., at 691-693 (opinion of Garza, J.). We granted certiorari, 540 U. S. 1099 (2004), and now reverse. Ill A Section 113(f)(1) does not authorize Aviall’s suit. The first sentence, the enabling clause that establishes the right of contribution, provides: “Any person may seek contribution . . . during or following any civil action under section 9606 of this title or under section 9607(a) of this title,” 42 U. S. C. § 9613(f)(1) (emphasis added). The natural meaning of this sentence is that contribution may only be sought subject to the specified conditions, namely, “during or following” a specified civil action. Aviall answers that “may” should be read permissively, such that “during or following” a civil action is one, but not the exclusive, instance in which a person may seek contribution. We disagree. First, as just noted, the natural meaning of “may” in the context of the enabling clause is that it authorizes certain contribution actions — ones that satisfy the subsequent specified condition — and no others. Second, and relatedly, if § 113(f)(1) were read to authorize contribution actions at any time, regardless of the existence of a § 106 or § 107(a) civil action, then Congress need not have included the explicit “during or following” condition. In other words, Aviall’s reading would render part of the statute entirely superfluous, something we are loath to do. See, e. g., Hibbs v. Winn, 542 U. S. 88, 101 (2004). Likewise, if § 113(f)(1) authorizes contribution actions at any time, § 113(f)(3)(B), which permits contribution actions after settlement, is equally superfluous. There is no reason why Congress would bother to specify conditions under which a person may bring a contribution claim, and at the same time allow contribution actions absent those conditions. The last sentence of § 113(f)(1), the saving clause, does not change our conclusion. That sentence provides: “Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.” 42 U. S. C. § 9613(f)(1). The sole function of the sentence is to clarify that § 113(f)(1) does nothing to “diminish” any cause(s) of action for contribution that may exist independently of § 113(f)(1). In other words, the sentence rebuts any presumption that the express right of contribution provided by the enabling clause is the exclusive cause of action for contribution available to a PRP. The sentence, however, does not itself establish a cause of action; nor does it expand § 113(f)(1) to authorize contribution actions not brought “during or following” a § 106 or § 107(a) civil action; nor does it specify what causes of action for contribution, if any, exist outside § 113(f)(1). Reading the saving clause to authorize § 113(f)(1) contribution actions not just “during or following” a civil action, but also before such an action, would again violate the settled rule that we must, if possible, construe a statute to give every word some operative effect. See United States v. Nordic Village, Inc., 503 U. S. 30, 35-36 (1992). Our conclusion follows not simply from § 113(f)(1) itself, but also from the whole of § 113. As noted above, § 113 provides two express avenues for contribution: § 113(f)(1) (“during or following” specified civil actions) and § 113(f)(3)(B) (after an administrative or judicially approved settlement that resolves liability to the United States or a State). Section 113(g)(3) then provides two corresponding 3-year limitations periods for contribution actions, one beginning at the date of judgment, § 113(g)(3)(A), and one beginning at the date of settlement, § 113(g)(3)(B). Notably absent from § 113(g)(3) is any provision for starting the limitations period if a judgment or settlement never occurs, as is the case with a purely voluntary cleanup. The lack of such a provision supports the conclusion that, to assert a contribution claim under § 113(f), a party must satisfy the conditions of either § 113(f)(1) or § 113(f)(3)(B). Each side insists that the purpose of CERCLA bolsters its reading of § 113(f)(1). Given the clear meaning of the text, there is no need to resolve this dispute or to consult the purpose of CERCLA at all. As we have said: “[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” On- cale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998). Section 113(f)(1), 100 Stat. 1647, authorizes contribution claims only “during or following” a civil action under § 106 or § 107(a), and it is undisputed that Aviall has never been subject to such an action. Aviall therefore has no § 113(f)(1) claim. B Aviall and amicus Lockheed Martin contend that, in the alternative to an action for contribution under § 113(f)(1), Aviall may recover costs under § 107(a)(4)(B) even though it is a PRP. The dissent would have us so hold. We decline to address the issue. Neither the District Court, nor the Fifth Circuit panel, nor the Fifth Circuit sitting en banc considered AvialPs § 107 claim. In fact, as noted above, Aviall included separate § 107 and § 113 claims in its original complaint, but then asserted a “combined” § 107/§ 113 claim in its amended complaint. The District Court took this consolidated claim to mean that Aviall was relying on § 107 “not as an independent cause of action,” but only “to the extent necessary to maintain a viable § 113(f)(1) contribution claim.” Civ. Action No. 3:97-CV-1926-D (ND Tex., Jan. 13, 2000), App. to Pet. for Cert. 94a, n. 2. Consequently the court saw no need to address any freestanding § 107 claim. The Fifth Circuit panel likewise concluded that Aviall no longer advanced a stand-alone §107 claim. 263 F. 3d, at 137, n. 2. The en banc court found it unnecessary to decide whether Aviall had waived the § 107 claim, because it held that Aviall could rely instead on § 113. 312 F. 3d, at 685, n. 15. Thus, the court did not address the waiver issue, let alone the merits of the § 107 claim. “We ordinarily do not decide in the first instance issues not decided below.” Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 109 (2001) (per curiam) (internal quotation marks omitted). Although we have deviated from this rule in exceptional circumstances, United States v. Mendenhall, 446 U. S. 544, 551-552, n. 5 (1980), the circumstances here cut against resolving the §107 claim. Both the question whether Aviall has waived this claim and the underlying § 107 question (if it is not waived) may depend in part on the relationship between §§ 107 and 113. That relationship is a significant issue in its own right. It is also well beyond the scope of the briefing and, indeed, the question presented, which asks simply whether a private party “may bring an action seeking contribution pursuant to CERCLA Section 113(f)(1).” Pet. for Cert. i. The § 107 claim and the preliminary waiver question merit full consideration by the courts below. Furthermore, the parties cite numerous decisions of the Courts of Appeals as holding that a private party that is itself a PRP may not pursue a § 107(a) action against other PRPs for joint and several liability. See, e. g., Bedford Affiliates v. Sills, 156 F. 3d 416, 423-424 (CA2 1998); Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F. 3d 344, 349-356 (CA6 1998); Pneumo Abex Corp. v. High Point, T. & D. R. Co., 142 F. 3d 769, 776 (CA4 1998); Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d 1298, 1301-1306 (CA9 1997); New Castle County v. Halliburton NUS Corp., 111 F. 3d 1116, 1120-1124 (CA3 1997); Redwing Carriers, Inc. v. Saraland Apartments, 94 F. 3d 1489, 1496, and n. 7 (CA11 1996); United States v. Colorado & E. R. Co., 50 F. 3d 1530, 1534-1536 (CA10 1995); United Technologies Corp. v. Browning-Ferris Industries, 33 F. 3d 96, 98-103 (CA1 1994). To hold here that Aviall may pursue a § 107 action, we would have to consider whether these decisions are correct, an issue that Aviall has flagged but not briefed. And we might have to consider other issues, also not briefed, such as whether Aviall, which seeks to recover the share of its cleanup costs fairly chargeable to Cooper, may pursue a § 107 cost recovery action for some form of liability other than joint and several. We think it more prudent to withhold judgment on these matters. In view of the importance of the § 107 issue and the absence of briefing and decisions by the courts below, we are not prepared — as the dissent would have it — to resolve the § 107 question solely on the basis of dictum in Key Tronic. We held there that certain attorney’s fees were not “ ‘necessary costs of response’ ” within the meaning of § 107(a)(4)(B). 511 U. S., at 818-821. But we did not address, the relevance, if any, of Key Tronic’s status as a PRP or confront the relationship between §§ 107 and 113. In discussing § 107, we did not even classify it precisely as a right of cost recovery or a right of contribution, as the dissent’s descriptions of the decision reveal. Post, at 172 (opinion of Ginsburg, J.) (describing Key Tronic as recognizing a right to “ ‘seek recovery of cleanup costs’” (quoting 511 U. S., at 818), but in the following paragraph saying that Key Tronic identified a “right to contribution”). “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U. S. 507, 511 (1925). Aviall itself recognizes the need for fuller examination of the § 107 claim; it has simply requested that we remand for consideration of that claim, not that we resolve the claim in the first instance. C In addition to leaving open whether Aviall may seek cost recovery under § 107, Part III-B, supra, we decline to decide whether Aviall has an implied right to contribution under § 107. Portions of the Fifth Circuit’s opinion below might be taken to endorse the latter cause of action, 312 F. 3d, at 687; others appear to reserve the question whether such a cause of action exists, id., at 685, n. 15. To the extent that Aviall chooses to frame its § 107 claim on remand as an implied right of contribution (as opposed to a right of cost recovery), we note that this Court has visited the subject of implied rights of contribution before. See Texas Industries, 451 U. S., at 638-647; Northwest Airlines, 451 U. S., at 90-99. We also note that, in enacting § 113(f)(1), Congress explicitly recognized a particular set (claims “during or following” the specified civil actions) of the contribution rights previously implied by courts from provisions of CERCLA and the common law. Cf. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 19 (1979). Nonetheless, we need not and do not decide today whether any judicially implied right of contribution survived the passage of SARA. * * * We hold only that § 113(f)(1) does not support Aviall’s suit. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Section 113(f)(1) is codified at 42 U. S. C. § 9613(f)(1). We refer throughout, for the most part, to sections of CERCLA rather than the U. S. Code. The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency (EPA) pursuant to CERCLA § 105, 42 U. S. C. § 9605 (2000 ed. and Supp. I). The plan is codified at 40 CFR pt. 300 (2004). In Key Tronic Corp. v. United States, 511 U. S. 809 (1994), we observed that §§ 107 and 113 created “similar and somewhat overlapping” remedies. Id., at 816. The cost recovery remedy of § 107(a)(4)(B) and the contribution remedy of § 113(f)(1) are similar at a general level in that they both allow private parties to recoup costs from other private parties. But the two remedies are clearly distinct. Aviall asserts that it framed its claim in the manner compelled by Fifth Circuit precedent holding that a §113 claim is a type of §107 claim. Geraghty & Miller, Inc. v. Conoco Inc., 234 F. 3d 917, 924 (2000); see also, e. g., Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F. 3d 344, 349-353 (CA6 1998); Sun Co., Inc. v. Browning-Ferris, Inc., 124 F. 3d 1187, 1191 (CA10 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d 1298, 1301-1302 (CA9 1997). Neither has Aviall been subject to an administrative order under § 106; thus, we need not decide whether such an order would qualify as a “civil action under section 9606 ... or under section 9607(a)” of CERCLA. 42 U. S. C. § 9613(f)(1). As noted above, we do not address whether a § 107 cost recovery action by Aviall (if not waived) may seek some form of liability other than joint and several.

Cooper Industries, Inc. v. Aviall Services, Inc.

Justice Ginsburg, with whom Justice Stevens joins, dissenting. Aviall Services, Inc., purchased from Cooper Industries, Inc., property that was contaminated with hazardous substances. Shortly after the purchase, the Texas Natural Resource Conservation Commission notified Aviall that it would institute enforcement action if Aviall failed to remediate the property. Aviall promptly cleaned up the site and now seeks reimbursement from Cooper. In my view, the Court unnecessarily defers decision on Aviall’s entitlement to recover cleanup costs from Cooper. In Key Tronic Corp. v. United States, 511 U. S. 809, 818 (1994), all Members of this Court agreed that § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U. S. C. §9607, “unquestionably provides a cause of action for [potentially responsible persons (PRPs)] to seek recovery of cleanup costs.” The Court rested that determination squarely ¿nd solely on § 107(a)(4)(B), which allows any person who has incurred costs for cleaning up a hazardous waste site to recover all or a portion of those costs from any other person liable under CERCLA. The Key Tronic Court divided, however, on the question whether the right to contribution is implicit in § 107(a)’s text, as the majority determined, or whether § 107(a) expressly confers the right, as the dissenters urged. The majority stated: Section 107 “implies — but does not expressly command — that [a PRP] may have a claim for contribution against those treated as joint tortfeasors.” 511 U. S., at 818, and n. 11 (emphasis added). The dissent maintained: “Section 107(a)(4)(B) states, as clearly as can be, that ‘[c]overed persons ... shall be liable for... necessary costs of response incurred by any other person.’ Surely to say that A shall be liable to B is the express creation of a right of action.” Id., at 822. But no Justice expressed the slightest doubt that § 107 indeed did enable a PRP to sue other covered persons for reimbursement, in whole or part* of cleanup costs the PRP legitimately incurred. In its original complaint, Aviall identified §107 as the federal-law basis for an independent cost-recovery claim against Cooper, and §113 as the basis for a contribution claim. App. 8A, 16A-17A. In amended pleadings, Aviall alleged both §§ 107 and 113 as the federal underpinning for its contribution claim. Id., at 27A, 48A. Aviall’s use of §§113 and 107 in tandem to assert a contribution claim conformed its pleading to then-governing Fifth Circuit precedent, which held that a CERCLA contribution action arises through the joint operation of §§ 107(a) and 113(f)(1). See Geraghty & Miller, Inc. v. Conoco Inc., 234 F. 3d 917, 924 (2000) (“[Wjhile section 113(f) is the vehicle for bringing a contribution action, it does not create a new cause of action or create any new liabilities. Rather, it is a mechanism for apportioning costs that are recoverable under section 107.” (footnote omitted)). A party obliged by circuit precedent to plead in a certain way can hardly be deemed to have waived a plea the party could have maintained had the law of the circuit permitted him to do so. But cf. ante, at 168-169. In the Fifth Circuit’s view, § 107 supplied the right of action for Aviall’s claim, and § 113(f)(1) prescribed the procedural framework. 312 F. 3d 677, 683, and n. 10 (2002) (en banc) (stating that § 107 “impliedly authorizes a cause of action for contribution” and § 113(f) “govern[s] and regulate[s]” the action (citing Geraghty & Miller, 234 F. 3d, at 924; internal quotation marks omitted)); see § 113(f)(1) (calling for the governance of “Federal law” and the application of “the Federal Rules of Civil Procedure,” arid specifying that “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate”). Notably, Aviall expressly urged in the Court of Appeals that, were the court to conclude that §113(f)(l)’s “during or following” language excluded application of that section to this case, Aviall’s suit should be adjudicated independently under § 107(a). See Response of Appellant Aviall Services, Inc., to the Amicus Curiae Brief for United States in No. 00-10197 (CA5), p. 24 (“[PJarties who are excluded from seeking contribution under section 113(f)(1) must therefore have available to them the broader right of cost recovery [covering both full recovery and contribution] under section 107(a).”); cf. Key Tronic, 511 U. S., at 816 (“[T]he statute now expressly authorizes a cause of action for contribution in § 113 and impliedly authorizes a similar and somewhat overlapping remedy in § 107.”). I see no cause for protracting this litigation by requiring the Fifth Circuit to revisit a determination it has essentially made already: Federal courts, prior to the enactment of § 113(f)(1), had correctly held that PRPs could “recover [under § 107] a proportionate share of their costs in actions for contribution against other PRPs,” 312 F. 3d, at 687; nothing in §113 retracts that right, ibid, (noting that § 113(f)’s saving clause preserves all preexisting state and federal rights of action for contribution, including the § 107 implied right this Court recognized in Key Tronic, 511 U. S., at 816). Accordingly, I would not defer a definitive ruling by this Court on the question whether Aviall may pursue a § 107 claim for relief against Cooper. Key Tronic, a PRP, asserted a cost-recovery claim under § 107(a) to recoup approximately $1.2 million in costs that it allegedly incurred cleaning up its site “at its own initiative.” Key Tronic Corp. v. United States, 984 F. 2d 1025, 1026 (CA9 1993). Although Key Tronic settled a portion of its liability with the Environmental Protection Agency (EPA), the claim advanced in Key Tronic’s § 107(a) suit rested on remedial action taken before the EPA’s involvement, remediation that did not figure in the settlement. Id., at 1026-1027; Key Tronic Corp. v. United States, 511 U. S. 809, 811-812 (1994). The cases to which the Court refers, ante, at 171, Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981), and Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 (1981), do not address the implication of a right of action for contribution under CERCLA. Texas Industries concerned the Sherman and Clayton Acts, 451 U. S., at 639-646; Northwest Airlines, the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, 451 U. S., at 90-99. A determination suitable in one statutory context does not necessarily carry over to a different statutory setting.

E.I. Du Pont de Nemours & Co. v. United States

MICHEL, Circuit Judge. E.I. DuPont de Nemours & Co., Inc. (“DuPont”) instituted this Contract Disputes Act action to recover costs it incurred pursuant to the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) for an ordnance plant it built and operated for the government during World War II. On the parties’ cross-motions for summary judgment, the United States Court of Federal Claims entered judgment for the government. E.I. Dupont De Nemours & Co. v. United States, 54 Fed. Cl. 361 (2002). The trial court correctly held that the government had agreed to indemnify DuPont for the costs at issue. Id. at 369. It erred, however, in concluding that a predecessor to the Anti-Deficiency Act, current version at 31 U.S.C. § 1341 (2000), bars DuPont’s recovery. Id. at 372. Accordingly, we reverse the judgment in favor of the government and remand for a determination of damages and entry of judgment in favor of DuPont. BACKGROUND In 1940, the government commissioned DuPont to construct and operate a plant in Morgantown, West Virginia, to produce chemicals for the government’s use in producing munitions for World War II. The contract at issue, Contract No. W-ORD-490, entered into on November 28, 1940 (the “MOW Contract”), provided that DuPont would acquire the site for the plant and design, construct, and operate it in exchange for reimbursement of its costs plus a fixed fee. The government would own the plant and all of its production. The cost reimbursement provision of the MOW Contract (“Reimbursement Clause”) provided as follows: 1. The Contractor shall be reimbursed in the manner hereinafter described for such of its actual expenditures in the performance of the work under this contract, heretofore or hereafter incurred, as may be approved or ratified by the Contracting Officer and as are included in the following items: k. Losses, expenses, and damages, not compensated by insurance or otherwise (including settlements made with the written consent of the Contracting Officer), actually sustained by the Contractor in connection with the work and found and certified by the Contracting Officer as not having resulted from personal failure on the part of the corporate officers of the Contractor or of other representatives of the Contractor having supervision and direction of the operation of the plant as a whole, to exercise good faith or that degree of care which they normally exercise in the conduct of the Contractor’s business. MOW Contract, Article IV-A(l)(k). The MOW Contract also included the following indemnification provision (“Indemnification Clause”): 8. It is the understanding of the parties hereto, and the intention of this contract, that all work under this Title III is to be performed at the expense of the Government and that the Government shall hold [DuPont] harmless against any loss, expense (including expense of litigation), or damage (including damage to third persons because of death, bodily injury or property injury or destruction or otherwise) of any kind whatsoever arising out of or in connection with the performance of the work under this Title III, except to the extent that such loss, expense, damage or liability is due to the personal failure on the part of the corporate officers of [DuPont], or of other representatives of [DuPont] having supervision or direction of the operation of the plant as a whole, to exercise good faith or that degree of care which they normally exercise in the conduct of [DuPont’s] business. MOW Contract, Article III-A(8). In 1946, the government terminated the MOW Contract and entered into a supplemental agreement with DuPont (the “Termination Supplement”). Neither DuPont nor the government was able to locate a copy of the Termination Supplement, but the trial court credited DuPont’s evidence that the Termination Supplement included the following provisions: (c) Upon payment of said sum of $ [_] as aforesaid, all rights and liabilities of the parties under the Contract and under the Act, insofar as it pertains to the Contract, shall cease and be forever released except: (3) Claims by [DuPont] against the Government which are based upon responsibility of [DuPont] to third parties and which involve costs reimbursable under the contract, but which are not now known to [DuPont]. (7) All rights and liabilities of the parties under the contract articles, if any, applicable to options (except options to continue or increase the work under the Contract), covenants not to compete, covenants of indemnity, and agreements with respect to the future care and disposition by [DuPont] of Government-owned facilities remaining in his custody. Termination Supplement, Articles 4(c)(3) (the “Unknown Claims Clause”) & 4(c)(7) (the “Preservation of Indemnity Clause”), respectively. The government does not challenge the trial court’s finding that the Termination Supplement included these provisions. The United States Environmental Protection Agency (“EPA”) notified DuPont in 1984 that it was proposing to list the MOW site on the National Priorities List for clean-up pursuant to CERCLA. Ultimately, on April 20, 1990, DuPont (and several other potentially responsible parties) agreed, pursuant to a consent order with EPA, to conduct a remedial investigation and feasibility study regarding the site. DuPont incurred $1,322,334.88 in attorney and consulting fees as a result. After DuPont received no response to the claim it filed pursuant to the Contract Disputes Act, 41 U.S.C. §§ 601-613 (2000), with the Contracting Officer for the Army Corps of Engineers to recover its CERC-LA-related costs in 1993, and after its subsequent negotiations with the government failed, DuPont filed the present action. On cross-motions for summary judgment on the- issue of liability, the trial court found, as noted above, that the Termination Supplement included the above-quoted Unknown Claims and Preservation of Indemnity Clauses. DuPont, 54 Fed. Cl. at 365, 367. It held, further, that both the Indemnification and Reimbursement Clauses in the MOW Contract “were drafted broadly enough to be properly interpreted to place the risk of unknown liabilities on the government, including liability for costs incurred pursuant to CERCLA.” Id. at 369. The trial court concluded, nonetheless, that recovery was barred by the Anti-Deficiency Act, 31 U.S.C. § 1341, and its predecessors (“ADA”), stating: [T]he Anti-Deficiency Act and its predecessors prohibit the inclusion of open-ended indemnification clauses in government contracts without specific appropriation or statutory authority. Even though the Indemnification .Clause was included in this contract and it is quite reasonable to assume that both the contracting officer and the contractor believed this Clause to place the risk of virtually all liabilities on the government rather than the contractor, the state of the law compels .us to hold this clause to be void and unenforceable. DuPont, 54 Fed. Cl. at 370. The court rejected DuPont’s argument that the Act of July 2, 1940, Pub.L. No. 76-703, 54 Stat. 712, specifically, its authorization of the government’s use of cost-plus-fixed-fee contracts, exempted the MOW Contract from the reach of the ADA. DuPont, 54 Fed. Cl. at 373. It did not address, either in granting the government’s summary-judgment motion or in denying DuPont’s motion for reconsideration, DuPont’s argument that it is entitled to recovery because another statute, the Contract Settlement Act of 1944, exempted the Termination Supplement from the ADA. DuPont appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION We review conclusions of law of the Court of Federal Claims, including as to the interpretation of contracts, without deference, and its findings of fact for clear error. Scott Timber Co. v. United States, 333 F.3d 1358, 1365-66 (Fed.Cir.2003). We review de novo a grant of summary judgment by the Court of Federal Claims, drawing all justifiable inferences of fact in favor of the party opposing summary judgment. Id. at 1366 (citing Winstar Corp. v. United States, 64 F.3d 1531, 1539 (Fed.Cir.1995) (en banc)). I. Contract Interpretation As noted above, the trial court read both the Reimbursement Clause and the Indemnification Clause as obligating the government to reimburse DuPont for the costs it incurred pursuant to CERCLA. Regardless of whether that conclusion was correct as to the Reimbursement Clause, we agree that the Indemnification Clause is properly construed to include DuPont’s CERCLA-related costs. The Indemnification Clause recites the government’s express agreement “to hold [DuPont] harmless against any loss, expense (including expense of litigation), or damage (including damage to third persons because of death, bodily injury or property injury or destruction or otherwise) of any kind lohatsoever ” as long as (1) the loss, expense, or damage “aris[es] out of or in connection with the performance of the work under this Title III”— namely, the production of anhydrous ammonia at the MOW facility — and (2): such loss, expense, damages or liability is [not] due to the personal failure on the part of the corporate officers of [DuPont], or of other representatives of [DuPont] having supervision or direction of the operation of the plant as a whole, to exercise good faith or that degree of care which they normally exercise in the conduct of the Contractor’s business. MOW Contract, Article III-A(8) (emphases added). The indemnity language of this provision (“any ... expense., of any kind whatsoever”) is clearly sufficiently broad on its face to include DuPont’s CERCLA-related liability, and the government does not assert that either of the subsequently recited limiting conditions nullifies any government indemnification obligation. Instead, the government urges that “contract terms allegedly promising indemnification for costs of complying with environmental laws be strictly construed.” It acknowledges, though, the absence of federal authority for its position in this regard, and further admits that “the rule of -strict construction in these circumstances is not universally followed.” In any event, no rule of “construction” — strict or otherwise — can justify interpreting a provision that on its face promises indemnification for “any ... expense ... of any kind whatsoever” to exclude DuPont’s CERCLA costs. See Elf Atochem N. Am. v. United States, 866 F.Supp. 868, 870 (E.D.Pa.1994) (“In order for a pre-CERCLA indemnification clause to cover CERCLA liability, courts have uniformly held that the clause must be either ‘[1] specific enough to include CERCLA liability or [2] general enough to include any and all environmental liability which would, naturally, include subsequent CERCLA claims.’ ” (quoting Beazer E., Inc. v. Mead Corp., 34 F.3d 206, 210 (3d Cir.1994))). As the court in Elf Atochem explained, where the clause in question contains no limiting language, and “shows an intent to allocate all possible liabilities among the parties, ... ‘CERCLA liability must be included among the future unknown liabilities which the parties allocated between themselves.’ ” Id. at 870-71 (quoting SmithKline Beecham Corp. v. Rohm Haas Co., 864 F.Supp. 1201, 1208 (E.D.Pa.1994), and citing Olin Corp. v. Consol. Aluminum Corp., 807 F.Supp. 1133, 1143 (S.D.N.Y.1992), aff'd, 5 F.3d 10 (2d Cir.1993) (concluding that a provision stating that Conalco “releases and settles all claims of any nature which Conalco now has or hereafter could have against Olin” included CERCLA liability)). Thus we reject the government’s theory that the parties’ inability, as of the time they entered into the MOW Contract or the Termination Supplement, to conceive of CERCLA justifies reading the Indemnification Clause to exclude CERCLA costs. The government identifies no basis in the law for reading a limitation of foreseeability into that provision, the language of which (“any loss, expense ... or damage ... of any kind whatsoever”) evidences contemplation of just the opposite — that indemnification was available for all claims, foreseeable or not. Besides, while the parties could not have anticipated the precise contours of CERCLA liability, CERCLA evolved from the doctrine of common law nuisance. See Senate Comm, on Environment Public Works, Environmental Emergency Response Act, S.Rep. No. 96-848, at 14 (1980) (“Another source of legal precedent for strict liability for hazardous substance disposal sites or contaminated areas is nuisance theory.”). Suppose operations at the MOW facility during the 1940-1946 period had resulted in the contamination of the groundwater of nearby parcels, and DuPont had been sued under the extant nuisance law in the years following termination of the MOW Contract by the surrounding landowners for resultant injuries to themselves and their livestock. The government cannot in good faith contend that such claims would have been exempt from reimbursement under the terms of the Indemnification Clause, and it conceded as much at oral argument. Further, we agree with the trial court that the language of the MOW Contract “ ‘shows an intent to allocate all possible liabilities among the parties.’ ” DuPont, 54 Fed. Cl. at 369 (quoting Elf Atochem, 866 F.Supp. at 870). As between DuPont and the government, then, the Indemnification Clause must be read as allocating the burden of the liability in question to the government. As noted above, the MOW Contract is no longer in effect, having been supplanted by the Termination Supplement the parties executed in 1946. However, the Termination Supplement, which apparently included no termination or expiration date, specifically exempted “[a]ll rights and liabilities of the parties under the [MOW Contract] articles ... applicable to ... covenants of indemnity” from the release of the rights and obligations it otherwise effected. Termination Supplement, Article 4(c)(7). Accordingly, the governments obligation to indemnify DuPont for liabilities “arising out of or in connection with the performance of the work” it undertook pursuant to the MOW Contract, which we regard as including DuPont’s CERCLA-related costs, remains in effect. 11. The Anti-Deficiency Act The predecessor to the ADA in effect at the time the parties entered into both the MOW Contract and the Termination Supplement provided, in relevant part: No executive department or other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless such contract or obligation is authorized by law. 31 U.S.C. § 665 (1940) (current version at 31 U.S.C. § 1341). As discussed above, the trial court accepted the government’s argument that the Indemnification Clause, as construed (and, it follows, the Preservation of Indemnity Clause in the Termination Supplement), is unenforceable because it violates the ADA. The enforceability of what the trial court termed an “open-ended” indemnification clause in the face of the ADA had not previously been decided. The trial court found guidance, however, in decisions interpreting the ADA as a bar to inferring open-ended indemnification clauses in government contracts. DuPont, 54 Fed. Cl. at 370-71. For example, in refusing to permit former government contractors to recover the expenses they incurred in defending and settling third-party tort claims arising out of their production of Agent Orange for the governments use in the Vietnam War, the Supreme Court stated: There is also reason to think that a contracting officer would not agree to the open-ended indemnification alleged here. The Anti-Deficiency Act bars a federal employee or agency from entering into a contract for future payment of money in advance of, or in excess of, an existing appropriation. Hercules, Inc. v. United States, 516 U.S. 417, 426, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996). And in Johns-Manville Corp. v. United States, 12 Cl.Ct. 1, 33-34 (1987), the United States Claims Court held that the ADA defeated claims for implied indemnification brought by asbestos manufacturers who had paid damages to World War II-era ship-yard workers with asbestos-related diseases. Thus, concluded the trial court in the present case, the ADA also bars the enforcement of express open-ended indemnification clauses. We do not question the trial court’s reasoning, but we need not further consider its conclusion in this regard. In its appeal, DuPont does not take issue with the trial court’s interpretation or application of the ADA’s apparent general prohibition of open-ended contractual commitments. It relies, instead, on the exception the statute recites: “unless such contract or obligation is authorized by law.” Specifically, contends DuPont, the Contract Settlement Act of 1944 is the “authoriz[ation] by law” that exempts the Preservation of Indemnity Clause (and, therefore, the Indemnification Clause) from the reach of the ADA. III. Contract Settlement Act The Contract Settlement Act of 1944 (“CSA”), 41 U.S.C. §§ 101 et seq. (2000), expressly declares its “objectives,” which include “assuring] to prime contractors and subcontractors, small and large, speedy and equitable final settlement of claims under terminated war contracts.” Id. § 101. According to DuPont, section 20 of the CSA authorized the government contracting, agency (then, the War Department) to give the indemnification at issue. In relevant part, that section provides: Each contracting agency shall have authority, notiuithstanding any provisions of law other than contained in this chapter, (1) to make any contract necessary and appropriate to carry out the provisions of this chapter; (2) to amend by agreement any existing contract, either before or after notice of its termination, on such terms and to such extent as it deems necessary and appropriate to carry out the provisions of this chapter; and (3) in settling any termination claim, to agree to assume, or indemnify the war contractor against, any claims by any person in connection with such termination claims or settlement. Id. § 120(a) (emphases added). The government does not dispute that the CSA exempts certain contracts from the operation of the ADA, nor could it, given the bestowal of contracting authority “notwithstanding any provisions of law other than contained in this chapter” (emphasis added). As DuPont points out, other similarly worded (in relevant respect) statutes have been construed to confer indemnification authority. See Hercules, 116 S.Ct. at 988 (citing 50 U.S.C. § 1431, pursuant to which “[t]he President may authorize any department or agency ... to enter into contracts or into amendments or modifications of contracts heretofore or hereafter made and to make advance payments thereon, without regard to other provisions of law relating to the making, performance, amendment, or modification of contracts”); Johns-Manville, 12 Cl.Ct. at 23-24 (acknowledging that the First War Powers Act, Pub.L. No. 77-354, 55 Stat. 838 (1941), which granted the President the power to allow departments or agencies involved in World War II “to enter into contracts and into amendments or modifications of contracts ... without regard to the provisions of law relating to the making, performance, amendment, or modification of contracts,” “can be construed as granting the President the authority to delegate to departments and agencies contracting power virtually unfettered by contract law, including the ADA”). The parties differ, however, as to whether the CSA exempted the indemnification provision at issue from the ADA. As noted above, that provision is the Preservation of Indemnity Clause in the Termination Supplement, the latter having terminated the MOW Contract. Preliminarily, we note that the Termination Supplement was signed by the parties in 1946, two years after the CSA was enacted. -Accordingly, the Preservation of Indemnity Clause (and the other provisions of the Termination Supplement) enjoys the benefit of whatever ADA dispensation the CSA conferred. The government did not originate an indemnification commitment in the Termination Supplement. Rather, it agreed to uphold the indemnification commitment it made in the MOW Contract — before the CSA was enacted. See Preservation of Indemnity Clause (“all rights and liabilities of the parties under the [MOW] Contract ... shall cease and be forever released except ... [a]ll rights and liabilities of the parties under the contract articles ... applicable to ... covenants of indemnity”). The government does not challenge the enforceability of the Preservation of Indemnity Clause on the theory that it merely preserved an indemnification promise made without authority in 1940. However, to the extent the enforceability of the Preservation of Indemnity Clause is subject to question on that ground, we agree with DuPont that, by expressly exempting “covenants of indemnity” from the “rights and liabilities of the parties” released by the Termination Supplement, the government ratified its earlier promise. To conclude otherwise would render illusory the government’s agreement to retain those “rights and liabilities” recited in the Preservation of Indemnity Clause. We further agree that the CSA authorized such ratification in stating: Whenever any formal or technical defect or omission in any prime contract, or in any grant of authority to an officer or agent of a contracting agency who ordered any materials, services, and facilities might invalidate the contract or commitment, the contracting agency (1) shall not take advantage of such defect or omission; (2) shall amend, confirm, or ratify such contract or commitment without consideration in order to cure such defect or omission.... 41 U.S.C. § 117 (emphases added). Thus, even if the government lacked authority, by virtue of the ADA or otherwise, to make the indemnification commitment it made in the 1940 MOW Contract, its express agreement in the 1946 Termination Supplement to maintain its indemnification obligation was authorized to the extent the CSA precludes application of the ADA. The government notes that the express indemnification authority provided by section 20(a)(3) is limited to the resolution of “termination claims.” Relying, then, on the CSA’s definition of “termination claim” (“any claim or demand by a war contractor for fair compensation for the termination of any war contract and any other claim under.a terminated war contract, which regulations prescribed under this chapter authorize to be asserted and settled in connection with any termination settlement,” id. § 103(h)), the government argues that its indemnification authority is limited to “providfing] suitable compensation for work performed under a terminated contract,” and cites, as an example, “indemnifying the contractor against ... claims by direct employees or vendors.” The government’s focus on section 20(a)(3) and its acknowledgement that it possessed some indemnification authority at the time it signed the Termination Supplement leads us to conclude that it concedes that the War Department was “settling [a] termination claim” (pursuant to section 20(a)(3)) when it made the agreement the Termination Supplement memorializes. The government disputes only the breadth of that authority, contending that the indemnification authority conferred by section 20(a)(3) does not ex-. tend to an indemnification commitment broad enough to encompass DuPont’s CERCLA liability. There are several problems with this position. First, the express authorization that section 20(a)(3) provides for indemnification agreements authorizes indemnification “against ... any claims by any person in connection with such termination claims or settlement.” Id. § 120(a)(3) (emphasis added). This indemnification authority thus cannot be read as limited to claims by a limited class of third parties, for example, employees or vendors of the contractor. And although the authority conferred by section 20(a)(3) is apparently limited to “claims” that aré themselves “in connection with ... termination claims or settlement,” we cannot ignore the phrase “or settlement” at the end of the sentence. The CSA does not define “settlement” or “termination settlement.” However, by distinguishing between “termination claims,” on the one hand, and a “settlement,” on the other, the language of the statute makes clear that Congress intended to provide contracting agencies the flexibility to negotiate concerning two classes of third-party claims that might concern war contractors being terminated. To the extent a contractor came into termination negotiations having already had one or more third-party claims asserted against it, the contracting agency had the authority to “agree to assume” those existing “termination claims.” The language of section 20(a)(3) indicates that Congress was- cognizant, however, that contractors undergoing termination would also be concerned about potential future (i.e., unknown, unasserted) third-party claims they might face. Accordingly, Congress gave contracting agencies the power to resolve, as between the government and the contractor, those unknown, unasserted future third-party claims as well, by agreeing to “indemnify the war contractor against ... any claims by any person in connection with such ... settlement.” Thus we construe section 20(a)(3) as having conferred the authority to deal with both categories of third-party claims and, in particular, to have authorized the War Department to confirm, in the “settlement” represented by the Termination Supplement, the broad indemnification commitment it first made in the MOW Contract. That this interpretation is appropriate is evident when subsection (3) is read in its statutory context. Section 20(a) begins by dispensing with any limitations on contracting authority found anywhere other than in the CSA. Id. § 120. Next, subsections (1) and (2) of section 20(a) are grants of contracting authority separate from and in addition to those found in section 20(a)(3) — i.e., “to make any contract necessary and appropriate to carry out the provisions of this chapter” and “to amend by agreement any existing contract, either before or after notice of its termination, on such terms and to such extent as [the contracting agency] deems necessary and appropriate to carry out the provisions of this chapter,” respectively. Id. § 120(a)(1), (a)(2). By their own terms, these grants are unfettered save for the requirement of fidelity to the purposes of the CSA. The expansive language of section 20, we believe, evinces Congress’s resolve to facilitate the termination of war contracts so as to, inter alia, “expedite reconversion from war production to civilian production as war conditions permit; [and] assure to prime contractors ... speedy and equitable final settlement of claims under terminated war contracts.” Id. § 101(a), (b). Although we believe the statute definitively provided authority for the ratification of the broad indemnification at issue in this case, we note that the agency responsible for its administration as to the MOW Contract also contemporaneously interpreted the statute to confer the requisite authority. On November 1, 1944, the War Department promulgated a Joint Termination Regulation (“Procurement Regulations Revision No. 42”) that included a standardized form settlement agreement for cost-plus-fixed-fee contracts. 10 C.F.R. § 849-983.1 (1945 Supp.). Article 4(c)(7) of that form agreement provides: Upon payment of said sum of $.(a). .... as aforesaid, all rights and liabilities of the parties under the Contract and under the Act shall cease forthwith and be forever released except: (7) All rights and liabilities of the parties under the articles, if any, in the Contract applicable to ... covenants of indemnity.... Thus, the War Department interpreted the CSA as authorizing the inclusion, in termination settlement contracts, of the indemnification commitments contained in all of its then-existing war contracts, at least some of which, like DuPont’s, were unrestricted. Thus, while we believe the statute addressed the issue of authority for that commitment, we note, alternatively, that the War Department’s contemporaneous interpretation of the statute as implying that authority may be entitled to deference. See Brownlee v. DynCorp, 349 F.3d 1343, 1354 (Fed.Cir.2003) (“In Chevron, the Court held that courts reviewing agency interpretations of statutes must answer two questions: (1) ‘whether Congress has directly spoken to the precise question at issue,’ and if not, (2) ‘whether the agency’s answer is based on a permissible construction of the statute.’ ” (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984))). Accordingly, we decline the government’s invitation to construe section 20 as insufficient to support the broad indemnity the government ratified in the Termination Supplement. All that is left to argue, then, is that DuPont’s CERCLA liability is not “in connection with” that settlement. But (1) the government does not so contend, and (2) by ratifying the indemnification granted in the MOW Contract, which, as discussed above, allocated all potential liabilities between the government and DuPont, the Termination Supplement concomitantly divided those liabilities. Any liability DuPont incurred, then, that “ar[ose] out of or in connection with” DuPont’s production of anhydrous ammonia at the MOW facility and did not result from the failure of DuPont officers or representatives to exercise good faith or due care is “in connection with” the section 20(a)(3) settlement DuPont reached with the government. Contamination at the MOW site that resulted in CERCLA liability clearly is in connection with non-negligent production at the facility. The government contends, though, that any indemnification authority conferred by section 20 is limited by the terms of another CSA provision, section 22. The latter provides, in part: Any contracting agency is authorized' — • (a) to use for interim financing, the payment of claims, and for any other purposes authorized in this chapter any funds which have heretofore been appropriated or allocated or which may hereafter be appropriated or allocated to it, or which are or may become available to it, for such purposes or for the purposes of war production or war procurement; (b) to use any such funds appropriated, allocated, or available to it for expenditures for or in behalf of any other contracting agency for the purposes authorized in this chapter.... 41 U.S.C. § 122. Section 20, as noted above, confers contracting authority “notwithstanding any provisions of law other than contained in this chapter,” clearly contemplating that heed be paid to provisions in the CSA. Accordingly, we agree that section 22 limits the authority conferred by section 20. We do not, however, share the government’s expansive view of those limits. The government, with apparent reference to section 22(b), notes that “for example, in paying a termination claim involving two or more agencies, one agency could use funds appropriated to another agency for one of the enumerated purposes.” But section 22(a) makes clear that the government’s funding flexibility for CSA purposes was not so limited. That section authorizes a contracting agency to “use for ... the payment of claims and for any other purposes authorized” in the CSA “any funds which ... may hereafter be appropriated or allocated to it, or which are or may become available to it, for such purposes or for the purposes of war production or ivar procurement.” Id. § 122(a) (emphasis added). Thus, to the extent appropriations for Contract Settlement Act purposes or “war production or war procurement purposes” continue to “hereafter be appropriated” to the contracting agency — now the Department of Defense (“DOD”) — that agency has the authority to “pay[ ] claims” for CSA purposes and, therefore, to have made the commitment to pay those claims in the first place. The government does not assert that the appropriations legislation governing the period in 1998 in which DuPont filed its claim with the Army Corp of Engineers Contracting Officer omitted appropriations to DOD for contract settlement purposes and “for war production or war procurement purposes.” And although the government contends that “war” in section 22(a) means only “World War II,” the statute does not so state or indicate. If anything, the phrase “for the purposes of war production or war procurement” belies an intent to limit indemnification authorization to claims paid from funds allocated for the prosecution of World War II, since other provisions of the CSA refer to “the war.” See, e.g., id. §§ 101(a), 103(a). We conclude, therefore, that section 22 did not limit the contracting authority conferred by section 20 so as to deny the government the authority to make or ratify the indemnification commitment at issue. CONCLUSION The CSA authorized the government to include the Preservation of Indemnity Clause in the Termination Supplement it entered into with DuPont in 1946, and that Clause ratified and preserved the broad and indefinitely enduring indemnity the government granted DuPont in 1940 — an indemnity broad enough to include DuPont’s CERCLA liability. Accordingly, we reverse the judgment of the Court of Federal Claims, and remand for a determination of damages and entry of judgment in DuPont’s favor. REVERSED AND REMANDED. COSTS No costs. . The facility was known as the Morgantown Ordnance Works ("MOW”). . We adopt the trial court’s designations for the contract provisions at issue. . According to the trial court, this evidence included: (1) a form to be used for drafting termination supplements for several of DuPont's ordnance contracts, including the contract at issue, which was approved by the DuPont Legal Department and Executive Committee; (2) the termination supplement form contained in the Joint Termination Regulations used by the War and Navy Departments as of November 1, 1944; (3) executed termination supplements for three other DuPont ordnance contracts, including the supplement for one of the contracts (the Gopher Ordnance Works contract) mentioned in addition to the MOW Contract in a memo from DuPont's Executive Committee noting approval of the supplement for use in termination settlements; and (4) executed termination supplements of ordnance contracts between the government and three other contractors. DuPont, 54 Fed.Cl. at 366. . As discussed below, DuPont’s appeal is premised on its position that the "Act” referenced here is the Contract Settlement Act of 1944. . DuPont was potentially liable by virtue of its operation of the MOW facility. See 42 U.S.C. § 9607(a) (1988). . After terminating the Contract with DuPont, the government leased the former MOW site to various other manufacturers. . The government conceded that the Termination Supplement included the Unknown Claims Clause. DuPont, 54 Fed Cl. at 365. . The Anti-Deficiency Act and its predecessors do not differ in respects material to the present appeal. Accordingly, except where otherwise noted, we do not distinguish between the statutory versions. .In relevant part, the Act' of July 2, 1940 provided "[T]he cost-plus-a-percentage-of-cost system of contracting shall not be used under this section; but this proviso shall not be construed to prohibit the use of the cost-plus-a-fixed-fee form of contract when such use is deemed necessary by the Secretary of War.” 54 Stat. at 713. . Courts have generally interpreted CERC-LA’s provision relating to indemnification, 42 U.S.C. § 9607(e)(1) (2000), as not rendering unenforceable indemnification agreements between private parties. See Interstate Power Co. v. Kan. City Power & Light Co., 909 F.Supp. 1241, 1264 (N.D.Iowa 1993) (citing cases from various circuits that have adopted this interpretation). As the law generally applicable to contracts between private parties also governs the rights and duties of the United States when it enters into contracts, United States v. Winstar Corp., 518 U.S. 839, 895, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996), we conclude that CERCLA (to the extent it applies to pre-CERCLA contracts) is no bar to enforcement of the government’s indemnification obligation to DuPont. The government has not asserted otherwise. . As the trial court observed, “there is no allegation that the events causing [DuPont’s] environmental liability occurred as a result of activities conducted at any time other than during the operation of the plant on behalf of the government,” and "[t]here has been no allegation or suggestion of bad faith or lack of diligence on the part of [DuPont].” DuPont, 54 Fed. Cl. at 369 n. 13, 370. . DuPont does not challenge the trial court’s conclusion that neither the First War Powers Act, Pub.L. No. 77-354, 55 Stat. 838 (1941), nor the Act of July 2, 1940, Pub.L. No. 76-703, 54 Stat. 712, provided the requisite authority. The court concluded that to the extent the First War Powers Act (enacted December 18, 1941) made ADA prohibitions as to open-ended indemnification clauses irrelevant to wartime contracts (i.e., by authorizing the President to permit agencies involved in the war to make "contracts and ... amendments or modifications of contracts ... without regard to the provisions of law relating to the making, performance, amendment, or modification of contracts,” 55 Stat. at 839), the President re-imposed those ADA limits in his December 27, 1941 Executive Order limiting the exercise of the First War Powers Act contracting authority he delegated to "the limits of the amounts appropriated therefor. ...” DuPont, 54 Fed. Cl. at 370-71 (citing Executive Order No. 9,001, 6 Fed.Reg. 6787 (Dec. 27, 1941), and Johns-Manville Corp., 12 Cl.Ct. 1). With respect to the Act of July 2, 1940, the trial court rejected DuPont’s argument that the Act’s specific approval of the cost-plus-fixed-fee method of contracting gave the government whatever authority it needed to make an open-ended indemnification commitment. Id. at 372. . In whole, this provision provides: The Congress declares that the objectives of this chapter are— (a) to facilitate maximum war production during the war, and to expedite reconversion from war production to civilian production as war conditions permit; (b) to assure to prime contractors and subcontractors, small and large, speedy and equitable final settlement of claims under terminated war contracts, and adequate interim financing until such final settlement; (c) to assure uniformity among Government agencies in basic policies and administration with respect to such termination settlements and interim financing; (d) to facilitate the efficient use of materials, manpower, and facilities for war and civilian purposes by providing prime contractors and subcontractors with notice of termination of their war contracts as far in advance of the cessation of work thereunder as is feasible and consistent with the national security; (e) to assure the expeditious removal from the plants of prime contractors and subcontractors of termination inventory not to be retained or sold by the contractor; (f) to use all practicable methods compatible with the foregoing objectives to prevent improper payments and to detect and prosecute fraud. 41 U.S.C. § 101. . DuPont contends that, as compared with 50 U.S.C. § 1431 and the First War Powers Act, the CSA is both “less constrained” (as "it is not subject to the limitations imposed by any other law”) and "more express” (because it "specifically authorizes agencies to provide indemnities against any and all third-party claims”). . The First War Powers Act, having been enacted in December 1941, could not have authorized an open-ended indemnification clause in a 1940 contract, and we agree that the Act of July 2, 1940 did not provide such authority, having limited the authority of the Secretary of War to enter into cost-plus-fixed-fee contracts to “the moneys appropriated for the War Department for national-defense purposes for the fiscal year ending June 30, 1941.’’ 54 Stat. 712. . The statute is not a model of clarity. It may alternatively be read to authorize "agree[ments] to ... indemnify!)]” unlimited in scope (i.e., “against ... any claims by any person”), if those agreements are made "in connection with [a] termination claim[ ] or settlement.” 41 U.S.C. § 120(a)(3). This interpretation, however, is undermined by the language introducing this subsection (a)(3), which itself ties the indemnification authority granted therein to the "settl[ement of] any termination claim.” . Nowhere, by the way, does the government contend that these provisions are inapplicable or insufficient to support the requisite authority. . In its report recommending that the House of Representatives pass the legislation that, with amendments not pertinent hereto, was enacted as the CSA, the House Committee on the Judiciary expressly noted that "[p]resent procedures for the settlement of contracts now being terminated are not adequate” and cited the need "to take care of ... the authority to make negotiated settlements” as one justification for passage. H.R.Rep. No. 78-1590, at 19 (1944). .This provision is substantially the same as the Preservation of Indemnity Clause in the Termination Supplement.

Cadillac Fairview/California, Inc. v. Dow Chemical Co.

OPINION KLEINFELD, Circuit Judge. This is a CERCLA dispute about whether the federal government can make a company that discharged pollutants into the soil at the government’s direction and under its control during World War II, in a war production plant, pay part of the cost of cleaning them up. Facts In 1942, the Japanese had conquered almost all of the world’s major natural rubber-producing areas in Southeast Asia. The Germans had perfected a synthetic rubber substitute, Buna-S, which they were manufacturing as quickly as possible at several plants, including the I.G. Farben plant in Auschwitz that used Jewish slaves. American manufacture had been retarded by the Depression, which reduced demand for rubber, and, by a cooperative research agreement Standard Oil had made with I.G. Farben in 1927, during the Weimar period. As a result of the rubber shortage, tirés had to be strictly rationed in the United States to preserve rubber for such myriad military uses as truck and aircraft tires and-tubes, tank treads, equipment hoses and belts, footwear, medical supplies, life rafts, flotation equipment, barrage balloons, waterproof equipment, landing boats, gas masks and wire insulation. The war was not going well in 1942, until the Battle of Midway in June. Germany had conquered continental Europe, and Japan had conquered much of the Pacific. Japan invaded and occupied part of the United States, the Attu and Kiska islands in Alaska, from June of 1942 until the terrible Battle of Attu in May of 1943, which took a commitment of 100,000 men and cost 3,829 casualties just in the landing force. Then-Senator Truman chaired hearings oh why our country was unprepared to meet its critical need for rubber. President Roosevelt established a committee of three, Bernard Baruch as chairman, along with the presidents of Harvard and M.I.T., to investigate and “recommend such action as will produce the rubber necessary for our total war effort.” The Baruch Committee reported that 90% of our prewar sources of natural rubber had been lost to Japan, and we had no substantial synthetic rubber industry. “Of all critical and strategic materials, rubber is the one which presents the greatest threat to the safety of our nation and the success of the Allied cause.... [I]f we fail to secure quickly a large new rubber supply our war effort and our domestic economy both will collapse.” Baruch told industry representatives that the rubber program would be their job, and that “the bottleneck of the whole program would certainly be buta-diene.” Pursuant to this need for synthetic rubber, the government took steps to create, overnight, an industry to produce it. Acting through a series of agencies (referred to here as the “Rubber Reserve”), the government entered into agreements to finance and retain ownership of manufacturing facilities, which private companies would lease from the government and operate in exchange for management fees and royalties. The Rubber Reserve would pay all operating expenses. The companies would provide knowledge, management and use of their patents. The planning emphasized production of Buna-S synthetic rubber. Buna-S was made by attaching (or “polymerizing”) molecules of butadiene (made from grain alcohol or petroleum) and styrene (made from ethylene and benzene). Dow Chemical was especially important to the war effort, as it was the only commercial producer of styrene, and therefore the only company able to provide practical experience with styrene production. This case arises out of a facility in Torrance, California, one of the most important synthetic rubber facilities at the time. Constructed in 1942, the 280-acre facility contained two rubber copolymerization plants (operated by Goodyear and the U.S. Rubber Co. (now Uniroyal), the “Rubber Companies”), a butadiene plant operated by Shell Oil., and a styrene plant operated by Dow Chemical. In the terminology then used, the Torrance styrene plant was an “agent plant” — not a “contract plant.” This meant that Dow agreed to operate the government-owned styrene plant as the “agent” of the United States and “at the expense and risk” of the United States. Dow built the facility, but the Rubber Reserve coordinated all phases of construction and made, approved, or ratified all significant operating decisions. The government owned the land; the government owned the plant; the government owned the raw materials; the government owned the byproducts and wastes; and the government owned the rubber. All activities at the site were subject to unrestricted control by the Rubber Reserve. Dow, as the company with the most expertise managing the facility, was required by its contract with the government to “carry out the orders, instructions, and specifications of Rubber Reserve.” The government required monthly reports from Dow that included the volume of residues dumped. Under its contract with the government, Dow was entitled to reimbursement for the expense of waste disposal, so it had no financial incentive to use a cheap but dirty method rather than a clean but expensive method. The production of rubber created toxic waste. Dow built evaporation ponds for aqueous wastes, such as aluminum chloride sludge, and dug pits for other wastes, such as sulfur and aluminum chloride tars. The government and Dow knew they were polluting the soil and, on account of runoff, the water, but the government made a policy decision not to divert scarce resources from the war effort to stop the pollution. As one government consultant reported: During this period, it was recognized that some raw and partially processed materials were lost into waste waters leaving the plants, and that some of these substances were causing a stream pollution problem. However, personnel could not be diverted from more pressing objectives to study the complex problems related to waste prevention or treatment — nor could construction materials be secured for such purposes. Dow subsequently developed better ways to dispose of the waste and closed the disposal pits in 1947. As part of the operating agreement entered into in 1942, the government signed a broad “hold harmless” agreement, protecting Dow Chemical from any liability to anyone for any damages to property: It is understood that in the performance of [these] contract[s,J [Dow] shall in no event be liable for, but shall be held harmless by [the United States] against, any damage to or loss or destruction of property (whether owned by [the United States] or others) or any injury to or death of persons, in any manner, arising out of or in connection with the work hereunder.... After the war, in 1948, the operating agreement, with this broad hold harmless clause, was renewed. The Rubber Reserve interpreted this hold harmless agreement in its manual to indemnify Dow for any losses for which the United States would not reimburse Dow for the cost of insurance coverage. During the War, the Rubber Reserve paid a claim for deaths and illnesses of numerous cows from pollution from the plant, based on its interpretation of its obligation to pay pollution damages under its contract with Dow. The government participated in the decision about how to dispose of the sulfur tars, the byproduct of Buna-S production, and, with unrestricted control over what was done, decided that disposal in pits was the best way to do it. Government inspectors and consultants studied Dow’s sulfur sludge pits at the Torrance plant and approved them. Dow operated the facility until 1955, when the Rubber Reserve sold the Torrance facility to Shell Oil. Shell made synthetic rubber there until 1972, when it sold the site. Eventually ownership passed to a developer, Cadillac Fairview/ California, Inc. Most of the plants were demolished, and the site is currently occupied by commercial and industrial facilities. In 1980, 35 years after the war ended and eight years after rubber production ended, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERC-LA). Under CERCLA, the Environmental Protection Agency (EPA) has broad authority to provide for remediation of sites contaminated by hazardous waste by conducting the cleanup itself or requiring liable parties to do so. Regardless of who performs the cleanup, financial liability lies with the parties responsible for the contamination. CERCLA allows any responsible party to seek contribution from other responsible parties and allows the district court to equitably apportion cleanup costs among liable parties. In 1983, Cadillac Fairview/California, the developer that bought the site at issue here, sued Dow Chemical, the United States, Shell Oil, and several rubber companies for damages to cover the expenses of investigating the soil pollution, and for an injunction and declaratory judgment. The United States crossclaimed against Dow and the other companies. Dow counterclaimed for indemnity and contribution under CERCLA. The United States settled with the mesne owners after it sold the property and before Cadillac Fairview bought it. This complex litigation has come before us twice before. We held, in 1988, that Cadillac Fairview did indeed state a claim upon which damages and injunctive relief could be granted, against an argument from the defendants that government action had to precede a private action, though we rejected the owner’s claim to injunctive relief. In 1994, the litigation came before us again. Dow Chemical crossclaimed for contribution against the Rubber Companies that made the rubber at the site and pumped contaminated styrene to Dow for distilling to separate out the reusable chemicals from the waste that Dow dumped into the pits. The Rubber Companies had won summary judgment on the ground that they could not be liable for having “arranged for ... treatment” under CERCLA, because they neither owned nor controlled the contaminated styrene— the government did. We held that the statute provided for “arranger” liability independently of ownership and that we had upheld liability against an arranger that did not control the process leading to the pollution, so a trier of fact could conclude that the Rubber Companies were “arrangers,” and remanded. On remand, the district court granted partial summary judgment against Dow on the theory that it was an “operator” that could be liable for contribution under CERCLA. It then tried the issue of whether the United States, as well as the Rubber Companies, was also hable under CERCLA and how remedial costs should be allocated under section 113(f) of CERC-LA among Dow, the Rubber Companies, and the United States. The trial resulted in findings of fact and conclusions of law, and a judgment that the United States should bear 100% of the remediation expense. The district court found that “[t]he United States was informed and approved” of dumping the toxic tars into the pits and that its engineers “reviewed and approved” the dumping of the aqueous wastes into the sludge ponds, having been “fully informed during plant operations.” The court found that because of the emergency conditions imposed by the War, the Rubber Reserve “made, approved or ratified all significant operating decisions.” It obtained monthly reports on residues dumped, “directed and coordinated the operations of the plants,” and “set policy on questions of trade waste disposal.” Production (and consequent waste) was “in quantities directed by the Rubber Reserve.” The Rubber Reserve in some respects (although not with regard to waste disposal) ordered changes in production techniques over Dow’s recommendations to the contrary. The Executive Vice President of the Rubber Reserve had visited the Torrance plant and recommended disposing of wastes by getting them under the ground. “The United States was the ultimate authority over plant operations and was aware of, and acquiesced or actively participated in, the decisions concerning waste systems, including operation of the Pits and Ponds.” Rubber Reserve officials had full and extensive knowledge of the waste pits and ponds, because they repeatedly inspected them and hired technical experts to advise the government on them. The waste disposal methods were “consistent with the state of knowledge and accepted industry practices of the time,” and the only alternative at the time, burning the waste, was both impractical and more polluting. During and immediately after the War, when the pits were used for disposal, the government’s contract with Dow prohibited Dow even from withdrawing from its arrangement with the government. The district court held that the United States was liable for contribution as an owner, operator and arranger, and the Rubber Companies, Uniroyal and Goodyear, as arrangers. Although it did not enforce the government’s hold harmless agreement as such, out of concern that under the Tucker Act only the Claims Court had jurisdiction to do so, it took the contract into account as an equitable factor under the CERCLA § 113 requirement that it “allocate response costs using such equitable factors as the court determines are appropriate.” The court took into account that Dow and the Rubber Companies acted pursuant to agreements that made them “agents” of the United States acting at the “risk and account” of the Rubber Reserve. Their handling of the wastes as “agents” whose acts were subject to the control of and were ratified by the United States would, as a matter of agency law, also entitle them to indemnity. The district court rejected the government’s argument that it should consider the benefits to the Rubber Companies of their participation, because the evidence was weak and such benefits as they might have obtained were overwhelmed by the benefits to the United States. And it rejected the government’s proposed conclusion suggesting an equal division of responsibility with Dow. The district court concluded that “equity requires that 100% of the recoverable remedial costs incurred or to be incurred with respect to the Del Amo Pit Site by the United States, Dow and the Rubber Companies should be paid by the United States.” The United States appeals this allocation. Analysis Under section 113 of CERCLA, the district court “may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” Thus, CERCLA “gives district courts discretion to decide what factors ought to be considered, as well as the duty to allocate costs according to those factors. We reverse only for an abuse of the discretion to select factors, or for clear error in the allocation according to those factors.” In this case, after close scrutiny of the record, we conclude that there was no such abuse of discretion or clear error, and we affirm. A. Direct responsibility. The government’s first argument is that because Dow actually dug the pits after deciding where to dig them, transported the waste to the pits, deposited the waste in the pits, and maintained security at the pits, all without any direct federal orders or supervision telling Dow to do so, it should have been held liable for at least some portion of the cleanup costs. Of course the government is correct that Dow actually disposed of the waste and exercised some discretion in how it did so. Its management expertise was the reason why the government used Dow to operate the plant instead of operating it itself. But, as the district court found, the government owned the site, the pits, the plant, and all materials including the wastes, knew just what Dow was doing, had unfettered control over it, approved of it, had an agency relationship with Dow that would ordinarily require it to indemnify Dow for what it did, and had made an express written promise to hold Dow harmless for whatever it did. On these facts (and allocation cases generally turn on their facts), there was no inequity in allocating 100% of the costs to the government. Indeed, where the government promises to hold a firm harmless for what it did, and then seeks to impose harm on the firm, highly unusual facts would be required to justify what would ordinarily be a gross inequity. In another war pollution case, United States v. Shell Oil Co., we affirmed a 100% allocation upon the United States for cleanup costs of wastes where private firms actually created the wastes and deposited them in the ground. To the extent that the case at bar is factually distinguishable, the distinctions make it an even more compelling one for such a 100% allocation. B. Benefits to Dow. The government next argues that the district court abused its discretion by deciding to give no weight to the benefits to Dow from its operation of the plant. The benefits to which the government points are reimbursement of expenses, management fees, and acquisition of knowledge and experience useful in subsequent endeavors, particularly Dow’s post-war expansion into the plastics industry. Dow correctly points out that the evidence showed it shared its patents for amounts well below market rates, accepted a far below market management fee, and lost much of the benefit it might have realized when the government sold the plant to Shell Oil instead of Dow after the war. Reimbursement is, of course, no benefit at all, merely a squaring up. For example, it is not a benefit or additional compensation when the government reimburses the government’s attorneys for their expense in traveling to court to argue this case. The district court considered whether to weigh benefit to Dow as a factor and articulated a reasoned basis for disregarding it: “First, the evidence proffered by the United States to support this argument was in the main speculative, and, second, in the context of this case, the benefits to the United States clearly overwhelmed in magnitude those to Dow and the Rubber Companies.” We could not substitute our judgment, even if it were different, because our review is limited to considering whether the district court abused its discretion, and in light of the reasons given, and the other reasons for the 100% allocation, it plainly did not. C. The Findings. The government argues that the district court clearly erred in finding the government control was as great as the findings of fact say. It characterizes its role as indirect, mostly involving setting production quotas and quality standards while letting Dow run the plant on a day to day basis, and it compares itself to a landlord whose tenant pollutes the leased property. We have carefully reviewed the record and cannot agree factually with that characterization. The government wanted Dow’s management expertise as part of the deal, and it used it, but it retained full authority to control whatever it wished, and carefully and repeatedly reviewed how Dow disposed of the wastes with full authority to direct whatever different methods it might choose. In other matters, it did order Dow to deviate from the course of action Dow thought better, and Dow followed government orders. As for whatever details the government might not have known, that was only on account of its decision to use Dow’s expertise and not spend government inspectors’ and consultants’ time finding out what Dow already knew. Dow’s role was more nearly analogous to a soldier’s than to a commercial tenant’s. We have carefully examined the record, and ascertained that the district court did not err in any of its factual findings regarding the government’s knowledge and control. D. The Indemnity Agreement. Although the government had promised to hold Dow harmless, the government argues that its promise ought to have been disregarded by the district court in making the allocation. The hold harmless agreement said that Dow would in no event be liable for, but shall be held harmless by [the United States] against, any damage to or loss or destruction of property ... or any injury to or death of persons, in any manner, arising out of or in connection with the work hereunder.... 1. Jurisdiction. The government’s first argument is that the district court lacked jurisdiction to consider the indemnity agreement, because, under the Tucker Act, only the Court of Federal Claims can entertain contract claims for over $10,000 against the United States. The government is correct that the district court lacked jurisdiction to enforce the contract against the United States. But that is immaterial. The district court didn’t award relief on a contract claim. As the district court’s findings and conclusions explain, the district court considered the contract in the course of performing its statutory duty, within its discretion, to decide what factors ought to be considered and to allocate costs according to those factors. Section 113(f) and 120(a) of CERCLA waive the United States’s sovereign immunity and permit awards of financial liability against the United States based on “appropriate” “equitable factors.” The question is not whether the district court acted outside its jurisdiction by enforcing the indemnity agreement, because it didn’t enforce the indemnity agreement. Rather, the question is whether the district court abused its discretion by considering the indemnity agreement as a factor bearing on the equitable allocation of costs. In Boeing, we noted that section 113 of CERCLA gives district courts “discretion to decide what [equitable] factors ought to be considered, as well as the duty to allocate costs according to those factors.” The district court did not abuse its discretion in deciding to consider this as a factor. Had the government recovered a money judgment against Dow, Dow would have had to pay the judgment and then sue the government in the Claims Court. That did not occur. Instead the district court considered the inequity of allowing the government to impose part of the harm for the pollution when it had promised not to do so. The court was well within its discretion in considering that promise as a factor in equitable allocation. It is hard to see how it could be equitable to disregard it. The Tucker Act assigns contract cases against the government to the Claims Court but does not erect a rule of evidence that government contracts be excluded or disregarded in other courts. Since a district court may, under CERCLA, consider parties’ contracts and indemnification agreements as factors affecting the equitable allocation of response costs, we see no reason why contracts entered into by the government should not be considered. 2. Scope. The government also argues that the indemnity agreement did not cover CERC-LA costs, because, despite its broad language, the parties could not have contemplated that it would cover CERCLA costs, and the “damage to property” clause was not so broad as “any liability whatsoever” language would have been. Because the district court did not grant judgment on a contract claim, we need not decide whether, had it done so, the contract would have embraced the damages for which it granted judgment. Obviously, the parties could not have contemplated, when they entered into the operating agreement, that decades later Congress would pass a law like CERCLA. Equally obviously, had CERCLA already been in effect, lawyers for such sophisticated corporations as those the government recruited for this war work would have recommended that their clients obtain language protecting them from CERCLA liability. But none of this speculation matters, because the contract was considered as an equitable factor, and the sole basis for the judgment was allocation under section 113(f) of CERCLA. There was no recovery on the contract, so its precise scope is immaterial. The district court did not abuse its discretion by considering the contract as evidence of the parties’ mutual intent that the work done on the government’s property, with government materials, producing rubber that the government at all times owned, and waste that at all times the government owned, which was disposed of in ways the government approved, subject to the unlimited control of the government and regular review and supervision of the government, as an agent for the government, be done entirely at the government’s expense and risk. 3. Ultra Vires. The government’s next argument is that the Rubber Reserve acted ultra vires, because under the Anti-Deficiency Act, it lacked authority to commit the government to holding Dow harmless. That statute prohibits government officials from obligating the government “on any contract’ for the payment of money before an appropriation is made unless[the contract is] authorized by law.” This argument is without force, because the agreement with Dow, including the hold harmless language, was authorized by law, namely the emergency powers Congress gave the President, and the regulations issued by the executive branch, for the prosecution of the war. The War Powers Act authorized the President to authorize agencies to make contracts “without regard to the provisions of law” such as the Anti-Deficiency Act, “whenever he deem[ed] such action would facilitate the prosecution of the war.” The president exercised this authority in an executive order particularly directed to the Rubber Reserve. What’s more, this is a red herring. Even if there were a serious question about whether the Rubber Reserve acted ultra vires in making the contract with Dow, it would make no difference, because in this case the contract was not enforced. It was merely considered as a factor in the equitable allocation of response costs. Conclusion This is a shocking case. The government is trying to take money from firms it conscripted for a critical part of a great war effort. The government’s arguments are strikingly weak. The pollution occurred almost six decades ago. The polluting conduct was completely under the direction of the government, it was legal at the time, and the government promised to hold the polluters, who acted as government agents, harmless. The government decided at the time that polluting the land and water this way was preferable to diverting resources from the war effort to do anything about it. Now the government wants its servants to pay for what it told them to do and promised them they could do with no fear of liability. This is the third World War II case of which we are aware, in the Circuit Courts, in which the government has lost its claim against its servants in the war effort. The Third Circuit said in FMC Corp. v. U.S. Dep’t of Commerce that placing “a cost of war on the United States, and thus on society as a whole, [constitutes] a result which is neither untoward nor inconsistent with the policy underlying CERCLA.” In Shell, we said that “the cleanup costs are properly seen as part of the war effort for which the American public as a whole should pay.” During oral argument we posed a hypothetical question to government counsel: Why wouldn’t your argument require that the soldiers who fought the Japanese in the Aleutians be hable to pay part, of the cleanup costs for the lead from their bullets that pollutes the ground on those islands? The government knew the question was coming, because the same hypothetical case was mentioned in the dissent in our 1998 decision. The government’s response was that, “as a theoretical matter, they could be liable” for the lead pollution, but that the district court would not be likely to allocate costs to them because of the equities. Indeed not. Yet the government challenges such an allocation here and, evidently, would leave the soldiers to prosecutorial discretion. Reliance on prosecutorial discretion seems like an undue risk to those aged Aleutian campaign veterans and their widows and estates. It would be obscene to hold a soldier who fought to regain American soil in the Battle of Attu liable for polluting the ground with his lead bullets. That they would be liable “as a theoretical matter” shows that the government’s theory is mistaken. We have no difficulty affirming the district court’s exercise of discretion not to impose liability in the too-analogous circumstances of this case. We would only have difficulty in a case that went the other way. The judgment of the district court is AFFIRMED. . David Pryce-Jones, Where there was no why, Spectator, Sept. 1998, at 452. . John Morton Blum, V Was for Victory 132 (1976). See generally Frank A. Howard, Buna Rubber — The Birth of an Industry' (1947). . Brian Garfield, The Thousand Mile-War, 333-37 (1969); Claus M. Naske and Herman E. Slotnick, Alaska: A History of the 49th State, 129-30 (2d ed.1987). . Howard, supra note 2, at 213. . Id. at 216. . Id. at 215. . Id. at 221. . 42 U.S.C. § 9601 et seq.; see also Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1455 (9th Cir.1986). . See 42 U.S.C. § 9613(f)(l)("Any person may seek contribution [of cleanup, or 'response,' costs] from any other person [including the United States] who is liable or potentially liable under section [9607].”). . See id. . Cadillac Fairview/Cal., Inc. v. Dow Chem. Co., 840 F.2d 691 (9th Cir.1988). . Cadillac Fairview/Cal., Inc. v. United States, 41 F.3d 562, 564 (9th Cir.1994) (per curiam) (quoting 42 U.S.C. § 9607(a)(3)). . Id. at 565-66. . 42 U.S.C. § 9613(f)(1). . 42 U.S.C. § 9613(f)(1) (2002). .Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1187 (9th Cir.2000) (footnotes omitted). . 294 F.3d 1045, 1048 (9th Cir.2002). . 28 U.S.C. § 1346(a)(2) (2002). . Id. . 42 U.S.C. § 9613(0(1); see id. § 9620(a)(1). . Boeing, 207 F.3d at 1187. . Olin Corp. v. Yeargin Inc., 146 F.3d 398, 407 (6th Cir.1998); Dent v. Beazer Materials & Servs., Inc., 156 F.3d 523, 534 (4th Cir.1998); Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 326 (7th Cir.1994). . Presently codified, as amended, at 31 U.S.C. § 1341 (2002). .Id. § 1341(a)(1)(B); see Act of Mar. 3, 1905, ch. 1484, § 4 (1st par.), 33 Stat. 1214, 1257; Act of Feb. 27, 1906, ch. 510, § 3, 34 Stat. 27, 48. . First War Powers Act of 1941, ch. 593, 53 Stat. 838. . Id. § 201, 55 Stat. at 839, repealed by Act of Sept. 6, 1966, Pub.L. No. 89-551, § 8(a), 80 Stat. 378, 651. . Exec. Order No. 9246, 7 Fed.Reg. 7379 (Sept. 17, 1942); see also Exec. Order No. 9001, 6 Fed.Reg. 6787 (Dec. 27, 1941). . 29 F.3d 833 (3d Cir.1994). . Id. at 846. . 294 F.3d at 1060. . Cadillac Fairview, 41 F.3d at 567 (Kleinfeld, J., dissenting).

United States v. Southeastern Pennsylvania Transportation Authority

OPINION OF THE COURT GIBSON, Circuit Judge: American Premier Underwriters, Inc. appeals the entry of a consent decree that resolves the liability of Consolidated Rail Corporation (Conrail), National Railroad Passenger Corporation (Amtrak), and Southeastern Pennsylvania Transportation Authority (SEPTA) for environmental contamination at the Paoli Rail Yard Site in Paoli, Pennsylvania. American Premier, a non-settling defendant, argues that the decree unfairly allocates responsibility for cleanup at the Site and that the contribution protection it provides to the settling parties is not permitted under the relevant statute. We affirm. Operations that involved the service, repair, and storage of rail cars were conducted at Paoli Rail Yard from 1915 until the beginning of 1995. In the 1950s, electric rail cars that used dielectric fluid to cool their transformers were first stored and maintained at the yard. Dielectric fluid contains polychlorinated biphenyls (PCBs). PCBs, which pose substantial risks to human health and the environment, are released during the servicing of train transformers and volatilize if overheated during train operation. Operations at the yard allegedly caused PCB contamination throughout the rail yard property. The contamination eventually spread to other nearby properties through erosion. From 1915 until 1976, American Premier and its predecessors owned and operated the rail yard. Pursuant to the Regional Rail Reorganization Act of 1973, American Premier conveyed the yard to Conrail on April 1, 1976. That same day, Conrail conveyed the yard to Amtrak. Amtrak still owns the property. Conrail operated the yard from April 1,1976 until the end of 1982. SEPTA then took over the yard’s operation, using it to maintain commuter trains from 1983 until January 1995, when it moved its maintenance operations to a different location. SEPTA gradually phased out the use of dielectric fluid that contained PCBs, ending its use in 1986. In 1985, EPA representatives observed that access to the rail yard was unrestricted and that people walked through and children played in areas at and near the rail yard. They also saw signs of erosion indicating water runoff from the yard into nearby residential areas. Sampling revealed PCB contamination in the rail yard and residential soils and in the fish in nearby creeks. The following year, the United States brought this action against SEPTA, Conrail, and Amtrak (collectively, the rail companies) pursuant to, inter alia, sections 104, 106(a), and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9604, 9606(a), and 9607. The government sought injunctive relief and reimbursement of response costs in connection with the release of PCBs at the Site. The Commonwealth of Pennsylvania intervened as a plaintiff later that year. In June 1986, the United States, Conrail, and SEPTA petitioned the district court that had overseen American Premier’s bankruptcy reorganization to establish their right to proceed against American Premier. See In re Penn Cent. Transp. Co., 944 F.2d 164, 166 (3d Cir.1991). American Premier’s argument that the earlier reorganization discharged the CERCLA claims was ultimately unsuccessful. See id. at 168. In 1992, the United States filed a separate action against American Premier, and the rail companies brought American Premier into this action as a third-party defendant. American Premier then sought a declaratory judgment that the government’s claims were barred by a 1980 settlement agreement that resolved claims between American Premier and the United States arising from the valuation of American Premier’s rail assets conveyed pursuant to the Regional Rail Reorganization Act. See Penn Cent. Corp. v. United States, 862 F.Supp. 437, 448-58 (Sp.Ct.R.R.R.A.1994). The court granted summary judgment to the government on this issue. See id. at 458. Since the government initiated this action, it has entered into five partial preliminary consent decrees with the rail companies under which they agreed to perform a variety of remedies at the Site. In 1986, SEPTA agreed to construct a combination fence that restricted access to the rail yard and limited further PCB migration into the area surrounding the yard. Later that year, all three rail companies agreed to conduct an engineering study addressing erosion and PCB migration from the rail yard and identifying possible remedies to limit the spread of PCBs. A dispute arose between the United States and the rail companies over the work necessary to implement the study, and EPA ended up constructing sedimentation basins and erosion control systems and removing and disposing of contaminated soil from several residential properties. Under the third partial preliminary consent decree, the rail companies conducted a remedial investigation to determine the extent of PCB contamination at the Site and a feasibility study of various remedial alternatives. As part of this decree, SEPTA entered into a stipulation that addressed worker protection at the rail yard and decontamination of the car shop, a building in which rail cars had been repaired since 1915. Under the fourth partial preliminary consent decree, the rail companies agreed to conduct a soil sampling program to determine the extent of PCB contamination in the residential areas and the surface water channels north of the rail yard. Finally, under the last partial decree, the rail companies excavated approximately 3500 cubic yards of contaminated soils from the residential area north of the yard. All told, the rail companies spent approximately $12 million on remedial action related to the Site before entering into the consent decree that is the subject of this appeal. EPA placed the Paoli Rail Yard Site on the National Priorities List in 1990. In July 1992, EPA issued a Record of Decision that reviewed remedial alter natives and their projected costs and selected remedies for the Site. As modified, the Record of Decision requires: (1) excavation and on-site treatment of contaminated rail yard soils (estimated cost: $19,507,375), (2) groundwater treatment and fuel oil recovery (estimated cost: $1,131,120), (3) decontamination and demolition of rail yard buildings and structures (estimated cost: $1,471,905), (4) excavation of contaminated residential soils (estimated cost: $1,196,-000), and (5) excavation of contaminated stream sediments (estimated cost: $5,701,-720). In 1995, EPA proposed a consent decree that would require all four defendants to clean up the rail yard by carrying out the first three remedies from the Record of Decision, while leaving American Premier responsible for cleaning up the watershed by carrying out the last two remedies. In February 1996, American Premier offered to pay 20% of past and future remediation costs at the Site as part of a global settlement. American Premier told the rail companies not to view the proposal as a typical “opening bid,” thus intimating that it would not be willing to increase its settlement offer. The rail companies responded that they were disappointed with the offer and that they believed that American Premier had “sorely misjudged” the probable outcome if the parties were to litigate. The United States was similarly unsatisfied with the offer. On September 30, 1996, EPA issued a unilateral administrative order requiring American Premier to implement the remedies from the Record of Decision related to the watershed portion of the Site. Under this order, American Premier is responsible for the excavation of residential soils and stream sediments. Together, these remedies are estimated to cost $6,897,720. On July 28, 1997, the United States filed a Praecipe to Lodge Consent Decree, with the proposed decree resolving the rail companies’ liability to the United States and the Commonwealth for contamination at the Site. The consent decree contends “that the degree of involvement by American Premier ... in the disposal of hazardous substances and the operation at the Site is at least equal to or maybe greater than the degree of involvement by all the Settling parties combined.” It requires the rail companies to excavate and contain the rail yard soils, perform the groundwater treatment and fuel oil recovery, and decontaminate and demolish rail yard buildings and structures. Together, these remedies are estimated to cost $22,110,400. The decree also requires several payments by the rail companies: $500,000 to the EPA Hazardous Substance Superfund to reimburse past response costs, $100,000 to the Commonwealth to reimburse past response costs, and $850,000 for natural resource damages. The decree gives contribution protection to the rail companies for the past, interim, and future response costs of the United States and the Commonwealth and for natural resource damages. It also gives them protection for all remedial actions they have performed or will perform at the Site, as well as for the work that American Premier is to perform under the administrative order. American Premier objected to the proposed settlement by submitting comments both to EPA and to the Commonwealth. On July 30, 1998, the United States moved for entry of the consent decree. American Premier opposed the motion. The district court granted the motion after finding the consent decree procedurally and substantively fair, reasonable, and consistent with CERCLA’s goals. This appeal followed. American Premier challenges the entry of the consent decree on two related grounds. First, it argues that CERCLA does not authorize the contribution protection provided to the rail companies by the decree. Second, it argues that the district court erred by approving the consent decree because the decree is substantively unfair. I. We review a district court’s decision to grant a motion for entry of a consent decree for abuse of discretion. See, e.g., United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir.1990); United States v. Montrose Chem. Corp., 50 F.3d 741, 746 (9th Cir.1995). “We approach our task mindful that, on appeal, a district court’s approval of a consent decree in CERCLA litigation is encased in a double layer of swaddling.” Cannons, 899 F.2d at 84. The first layer is the deference the district court owes to EPA’s expertise and to the law’s policy of encouraging settlement; the second layer is the deference we owe to the district court’s discretion. See id. Thus, American Premier is faced with a “heavy burden” in its attempt to persuade us that the district court abused its discretion by approving the consent decree. See id. American Premier’s argument that CERCLA does not authorize the type of contribution protection granted by the consent decree raises an issue of law, and we exercise plenary review of the district court’s decision on this issue. See New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1120 (3d Cir.1997). II. The district court held that the contribution protection provided by the consent decree is permissible under CERCLA. Under 42 U.S.C. § 9613(f)(2), “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” Here, the consent decree defines “matters addressed” as all claims asserted by the United States and the Commonwealth in their respective complaints and all claims of the United States and the Commonwealth against the Settling Defendants for recovery of “Past Response Costs”, “Interim Response Costs”, “Future Response Costs,” and “Natural Resource Damages” as those terms are defined in this Consent Decree, and all claims of the United States and the Commonwealth for all the costs of all past response actions performed by the Settling Defendants, the costs of, or performance of, the “Work” as that term is defined in this Consent Decree, and the cost or performance of all Work to implement that portion of the ROD [Record of Decision] which Settling Defendants are not being required to implement under this Consent Decree excluding those items covered under the reservation of rights and reopener provisions of Section XXII. American Premier claims that CERCLA does not authorize the contribution protection provided by the decree. The problem, according to American Premier, is that the decree gives the rail companies contribution protection for the remedies that they will perform under the decree (which are matters addressed in the settlement) and for the remedies that American Premier will perform under the administrative order (which are not matters addressed in the settlement). In its view, this is a partial settlement, and the rail companies are only entitled to contribution protection for the remedies they are undertaking under the consent decree. We reject American Premier’s view. While legislative history indicates that “Congress contemplated that there would be partial settlements which would leave settling parties liable for matters not addressed in the agreement,” United States v. Charter Int’l Oil Co., 83 F.3d 510, 515 (1st Cir.1996), this is not a partial settlement. The Paoli Site does contain two distinct areas: the rail yard and the watershed. Under the settlement, the rail companies are responsible for cleaning up the rail yard. CERCLA does not require, however, that the matters addressed in the decree be limited to the rail yard. The decree states that the United States and the rail companies “wish to finally conclude ... all claims and causes of action set forth” in this litigation. This litigation relates to contamination of the entire Paoli Site. The rail companies agreed to take on the remedies necessary to clean up the rail yard in order to resolve their liability for contamination throughout the Site. Reading this settlement as a whole, it would be reasonable to conclude that the matters it addresses are matters related to the entire Site, even without an explicit definition of matters addressed. See John M. Hyson, CERCLA Settlements, Contribution Protection and Fairness to Non-Settling Responsible Parties, 10 Vill. Envtl. L.J. 277, 320 (1999) (“[I]n light of Congress’s intent to induce settlements, all settlements] should be presumed to afford to the settlors protection against claims for contribution regarding an entire site, unless there is an explicit provision to the contrary.”); see also Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 771-74 (7th Cir.1994) (Easterbrook, J., dissenting). Furthermore, including a definition of matters addressed in the decree will foreclose future arguments over the scope of the contribution protection. See Charter Int’l, 83 F.3d at 517 n. 9; Akzo Coatings, 30 F.3d at 768 & n. 14. The definition of matters addressed in this decree clarifies the extent of the contribution protection that the rail companies are receiving in exchange for their agreement to clean up the rail yard property, reimburse the United States and the Commonwealth for part of their response costs, and pay for a portion of natural resource damages. The district court did not err by holding the contribution protection provided by the decree permissible under CERCLA. III. American Premier’s second argument is that the district court should not have granted the motion to enter the consent decree because the decree is substantively unfair. A court should approve a proposed consent decree if it is fair, reasonable, and consistent with CERCLA’s goals. See United States v. Cannons Eng’g Corp., 899 F.2d 79, 85 (1st Cir.1990). The terms of a decree are substantively fair if they are based on comparative fault and if liability is apportioned according to rational estimates of the harm each party has caused. See id. at 87. According to American Premier, the court erred in three different ways: (1) by adopting a method of allocating responsibility based on years of ownership and operation, (2) by approving a decree that sets a minimum amount of liability for American Premier while setting a maximum amount of liability for the rail companies, prior to an allocation proceeding, and (3) by approving a decree that immunizes the rail companies from sharing liability for uncertain future costs. A. As long as the measure of comparative fault on which the settlement terms are based is not “arbitrary, capricious, and devoid of a rational basis,” the district court should uphold it. Cannons, 899 F.2d at 87. According to the decree, American Premier’s responsibility for contamination at the Site is at least equal to and possibly greater than the responsibility of the rail companies combined. The district court accepted as fair the decree’s apportionment of liability based on years of ownership of the Paoli Rail Yard and the likelihood of contamination during those years. PCBs were -used at the rail yard for at least twenty-five years while American Premier owned and operated the yard. Amtrak owned the yard for ten years while PCBs were used. During that ten-year period, first Conrail and then SEPTA operated the yard. Therefore, American Premier owned and operated the rail yard more than 70% of the time while PCBs were used. American Premier argues that the district court “wholly disregarded” its settlement proposal, which was based on factors other than years of ownership, to assume 20% of the past and future costs of remédiation at the Site. But the district court was not required to accept American Premier’s methodology for apportioning liability. Once it found that the decree was based on a rational determination of comparative fault, its task was complete, whether or not it would have employed the same method of apportionment. See id. at 88. The district court did not abuse its discretion by accepting years of ownership and operation as a plausible method on which to judge the fairness of the consent decree. B. American Premier contends that the decree is unfair because it sets a minimum level of responsibility for American Premier by foreclosing it from receiving contribution from the rail companies for its costs, while setting a maximum level of responsibility for the rail companies by leaving them free to bring a contribution action against American Premier. This disparity does not establish that the decree is substantively unfair or that the district court abused its discretion by entering it. Taking into account American Premier’s share of Site remediation and assuming that it will have to reimburse the United States and the Commonwealth for the remainder of their past response costs and pay natural resource damages, American Premier will be responsible for costs that exceed $17 million. Eventually, the total amount expended on Site remediation and damages, including the $12 million already spent by the rail companies, will likely exceed $53 million. Because of the contribution protection provided to the rail companies, American Premier’s minimum share of these costs is 33%. Its share may increase if the rail companies bring a successful contribution action against it. American Premier’s offer to assume responsibility for 20% of the costs was unacceptable to EPA and the rail companies, so they chose to settle without American Premier. The settlement reduces the rail companies’ maximum share of liability from 100% to 67% in exchange for their agreement to clean up the rail yard and pay part of past response costs and natural resource damages: United States v. DiBiase, 45 F.3d 541, 546 (1st Cir.1995). The rail companies’ share of liability may decrease if they bring a successful contribution action against American Premier. In most instances, settlement requires compromise. Thus, it makes sense for the government, when negotiating, to give a PRP [potentially responsible party] a discount on its maximum potential liability as an incentive to settle. Indeed, the statutory scheme contemplates that those who are slow to settle ought to bear the risk of paying more.... We recently pointed out that the “intended effect” of protecting settling parties from contribution claims “is that ‘non-settling defendants may bear disproportionate liability for their acts.’” United States v. Occidental Chem. Corp., 200 F.3d 143, 150 n. 8 (3d Cir.1999) (quoting B.F. Goodrich v. Betkoski, 99 F.3d 505, 527 (2d Cir.1996)). In Occidental Chemical, EPA had already settled with one potentially responsible party when it issued an administrative order to Occidental, requiring it to participate in the cleanup. See id. at 145. Occidental pointed out that, .because the other party obtained contribution protection for matters addressed in the settlement, Occidental could end up paying more than its fair share. See id. at 150 n. 8. We responded, ‘While this is true, it is the result of a deliberate policy choice made by Congress in order to encourage settlements.” Id. It is highly unlikely that this consent decree will result in a final allocation of responsibility for contamination at the Paoli Site. The rail companies will be able to bring a contribution action against American Premier and will be able to offer more specific evidence regarding the relative fault of the parties. The district court will then be able to determine whether American Premier is liable for a portion of the rail companies’ costs. If the court chooses to do so, it will be able to take into account the costs incurred by American Premier which are not recoverable through contribution. See 42 U.S.C. § 9613(f)(1) (in a contribution action, “the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate”). This consent decree does set a floor for American Premier’s liability while setting a ceiling for the rail companies’ liability. That is part of the scheme enacted by Congress, and the district court did not abuse its discretion by rejecting the argument that this result made the decree unfair. C. Finally, American Premier argues that the consent decree is unfair because it alone will be responsible for “highly speculative” future costs: those related to its share of Site remediation, natural resource damages, and future response costs of the United States and the Commonwealth. This, too, is an argument based on the contribution protection provided to the rail companies. In every case where remedial measures have yet to be performed, the future costs are uncertain. But that uncertainty should not be used to hinder settlement. EPA used standard methodologies to estimate the costs of cleaning up the Site, and neither we nor the district court are in a position to second-guess these estimates. See Cannons, 899 F.2d at 90 (“If the figures relied upon derive in a sensible way from a plausible interpretation of the record, the court should normally defer to the agency’s expertise.”). The natural resource damages estimate was based on detailed assessments, and if these damages turn out to be “significantly greater” than the $5.3 million estimate, the consent decree does not prevent EPA from pursuing the rail companies for the excess. Finally, we doubt that the United States and the Commonwealth will- incur much in the way of future response costs since the consent decree, along with the administrative order, will result in a complete remedy at the Paoli Rail Yard Site. Whenever a non-settling party is barred from bringing a contribution action and work remains to be done, its future liability may exceed present estimates. The district court determined that this possibility did not render the consent decree unfair, and we see no abuse of discretion in that determination. We affirm the entry of the consent decree. . American Premier Underwriters, Inc. was previously called The Penn Central Corporation. The Penn Central Corporation arose out of the reorganization of Penn Central Transportation Company. For convenience, we will refer to all three entities as American Premier. . The Site includes the 28-acre rail yard property and the surrounding 400-acre watershed. . In 1979, Pennsylvania’s Department of Environmental Resources determined that portions of the Site were contaminated. The Commonwealth issued an administrative order to the rail companies, requiring them to implement immediate stop-gap measures, assess the contamination, and begin cleanup. The rail companies appealed this order to the Pennsylvania Environmental Hearing Board. The appeal was stayed and eventually transferred to the district court (via a 1990 stipulation) as part of this litigation. . While it is possible that the breadth of a matters addressed provision could render a consent decree unfair, that is not this case. See infra, Section III.

Fina, Inc. v. Arco

WIENER, Circuit Judge: In this case arising under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq., Plaintiff-Appellant Fina, Inc. (“Fina”) appeals the district court’s grant of summary judgment in favor of Defendants-Appellees BP Oil Company (“BP”) and Atlantic Richfield Company (“ARCO”). Fina contends that the district court improperly applied Delaware law in holding that cross-indemnities running between the parties bar Fina’s CERCLA claims against BP and ARCO. We hold that the indemnities are unenforceable with respect to the CERCLA liability in question, and accordingly reverse and remand for proceedings consistent with this opinion. I. Facts and Proceedings BP acquired a refinery located in Port Arthur, Texas from ARCO in 1969. BP subsequently sold the refinery to Fina in 1973. The ARCO/BP and BP/Fina agreements of sale contain cross-indemnities that apportion responsibility between the contracting parties for liabilities arising from the operation of the refinery. The ARCO/BP agreement provides in relevant part that: BP shall indemnify, defend, and hold harmless ARCO ... against all claims, actions, demands, losses or liabilities arising from the ownership or the operation of the Assets ... and accruing from and after Closing ... except to the extent that any such claim, action, demand, loss or liability shall arise from the gross negligence of ARCO. The BP/Fina agreement provides in relevant part that: Fina shall indemnify, defend and hold harmless BP ... against all claims, actions, demands, losses or liabilities arising from the use or the operation of the Assets ... and accruing from and after closing. In 1989, Fina conducted an environmental investigation covering all areas of the refinery. It found seven areas of the refinery contaminated with solid and hazardous wastes. Investigating the origins of the contamination, Fina unearthed evidence that the pollution was at least in part attributable to the activities of BP and ARCO. Fina reported its discovery to the State of Texas. The Texas Natural Resource Conservation Commission ordered Fina to conduct several further investigations. Those investigations are still ongoing. Fina has already incurred over $14 million in investigatory and remedial response costs. In 1996, Fina sued BP and ARCO seeking contribution and cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607 and 9613(f). BP filed a declaratory judgment counterclaim against Fina, arguing that Fina’s claims are covered by the indemnity provision in the BP/Fina agreement of sale. ARCO filed a similar declaratory judgment cross-claim against BP. All parties moved for summary judgment. The district court granted the motions of BP and ARCO, ruling that (1) Fina’s claims against BP are covered by the BP/Fina indemnity provision, (2) Fina’s claims against ARCO are covered by the ARCO/BP indemnity provision, and (3) because ARCO is indemnified by BP which in turn is indemnified by Fina, a “circuitous indemnity obligation” is owed by Fina to ARCO, which obligation covers Fina’s claims against ARCO. II. Analysis A. Standard of Review The proper interpretation of a contract is a question of law subject to de novo review. B. Issues We are called on to interpret and determine the enforceability of two related yet distinctly different indemnity provisions. The BP/Fina and ARCO/BP indemnity provisions both allocate responsibility between the contracting parties for liabilities arising from the ownership or operation of the refinery. The two provisions differ, however, in two significant respects. First, whereas the BP/Fina agreement of sale includes a choice of law provision designating Delaware law as the governing law, the ARCO/BP agreement of sale does not contain a choice of law provision. Second, the ARCO/BP indemnity provision, unlike its BP/Fina counterpart, states that it covers all claims “except to the extent that any such claim ... shall arise from the gross negligence of ARCO.” We must therefore analyze the two indemnity provisions separately. 1. The BP/Fina Indemnity Provision Fina contends that the BP/Fina indemnity provision does not indemnify BP for retroactive CERCLA liability. Under the indemnity provision, Fina’s obligations to BP extend only to those liabilities that accrue after the closing date of the BP/ Fina agreement of sale. Fina contends that, although CERCLA was not enacted until 1980, the CERCLA liability “accrued” at the time that BP and ARCO polluted the refinery grounds — well before the closing date of the BP/Fina agreement of sale. Fina argues in the alternative that, even if the BP/Fina indemnity provision does purport within its broad terms to cover the CERCLA liability in question, the provision is unenforceable with respect to that liability because governing Delaware law requires that, to indemnify a party for prospective strict liability claims, an indemnity provision must “clearly and unequivocally” state that it covers such claims. As we conclude that the indemnity provision is unenforceable under Delaware law with respect to the CERCLA liability at issue here, we need not reach the question whether the liability “accrued” prior to closing, within the meaning of the agreement. a. Choice ofLaiv In assessing the enforceability of the BP/Fina indemnity provision, we must first determine which state’s choice-of-law provisions govern. “A federal court must follow the choice-of-law rules of the state in which it sits.” The instant case was filed in the United States District Court for the Eastern District of Texas. We will therefore follow Texas choice-of-law rules in determining the governing state law. The BP/Fina agreement of sale specifies that it is governed by Delaware law. Texas honors contractual choice-of-law provisions unless the designated law is contrary to a “fundamental policy” of Texas. The relevant principle of Delaware law holds that “in order for a party to be entitled to indemnification for the results of its own negligence the contract must be crystal clear or sufficiently unequivocal to show that the contracting party intended to indemnify the indemnitee for the indemnitee’s own negligence.” Prior to 1987, Texas followed an identical rule. In 1987, however, the Texas Supreme Court .adopted the stricter “express negligence” standard. This standard holds that “parties seeking to indemnify the indemnitee from the consequences of its own negligence must express that intent in specific terms.” Although the Texas and Delaware rules do differ, it can hardly be said that Delaware’s “clear and unequivocal” test violates a fundamental policy of Texas. “[T]he focus is on whether the law in question is part of state policy so fundamental that the courts of the state will refuse to enforce an agreement contrary to that law, despite the parties’ original intentions.” Texas does not, as a matter of public policy, refuse to enforce all indemnity provisions that purport to cover the indemnitee’s own negligence. Texas merely requires that, to merit enforcement as to such claims, an indemnity provision must expressly state that its coverage extends to the negligence of the indemnitee. The “clear and unequivocal” test is not inconsistent with a fundamental policy of Texas. Delaware law will therefore be applied in interpreting and assessing the enforceability of the BP/ Fina indemnity provision. b. Application of Delaware law Fina has indemnified BP for “all claims, actions, demands, losses or liabilities arising from the use or operation of the Assets ... and accruing from and after Closing.” Assuming, without deciding, that the CERCLA liability at issue “accrued” after the closing date of the BP/Fina agreement of sale, the indemnity provision clearly purports to cover CERCLA liability within its broad terms: The phrase “all claims” certainly encompasses claims arising under CERCLA. The analysis, however, does not stop there. Under Delaware law, contracts to indemnify a party against the consequences of its own negligence are strictly construed against the indemnitee. The purpose of this rule is to ensure that the indemnitor is fully cognizant of the extraordinary risk that it is assuming. The rule functions as a “penalty default”; any entity that wishes to contract away liability for the consequences of its own negligence is put on notice by the rule that, to be enforceable, any indemnity provision that it signs must state with specificity the types of risks that it is transferring to the indemnitor. If an indemnity provision is not sufficiently specific, Delaware courts simply will refuse to enforce the risk transfer. Delaware law thus requires that, to be enforceable, “the intent to indemnify must be clear and unequivocal” on the face of an indemnity provision. “To be enforceable, the provision must specifically focus attention on the fact that by the agreement the indemnitor was assuming liability for [the] indemnitee’s own negligence.” The Delaware courts have often stated that there are no particular words that must be used to render an indemnity provision enforceable. But “[n]o Delaware case has allowed indemnification of a party for its own negligence without making specific reference to negligence of the indemnified party.” Moreover, Delaware courts have consistently refused to enforce indemnity provisions that use broad, catch-all language but fail to make a specific reference to claims arising from the indemnitee’s own negligence. Thus, to merit enforcement under Delaware law, an indemnity provision must at a minimum demonstrate on its face “that the subject of negligence of the indemnitee was expressly considered” by the parties in the drafting of the agreement. The BP/Fina indemnity provision gives no indication that the parties considered the issue of indemnifying BP for the consequences of its own negligence: There is no reference in the indemnity to BP’s own negligence, and its use of the phrase “all claims, actions, demands, losses or liabilities” is insufficient as a matter of Delaware law to satisfy the clear and unequivocal test. Thus, the BP/Fina indemnity provision is unenforceable as applied to the prospective CERCLA liability at issue in this case. BP attempts to avoid this result on two grounds. BP first argues that the clear and unequivocal rule is inapplicable here because it only applies to claims based on negligence, whereas CERCLA claims are based on strict liability. No Delaware case has addressed the applicability of the clear and unequivocal test to claims based on strict liability. Several other jurisdictions, however, have held that the clear and unequivocal test is fully applicable to claims based on strict liability. The transfer of liability for any prospective legal claim, whether based on negligence or on strict liability, involves an extraordinary shifting of risk. We perceive no reason why Delaware would choose to differentiate between the two types of claims for purposes of this rule. We therefore hold that Delaware’s clear and unequivocal rule is equally applicable to indemnification for strict liability claims. Second, BP argues that the clear and unequivocal test is applicable only to indemnification for that subset of prospective liabilities that is given rise to by future acts of the indemnitee. All of Fina’s claims against BP are predicated on actions taken by BP prior to the signing of the BP/Fina indemnity provision. Thus, if BP’s argument were correct, the BP/Fina indemnity provision should be interpreted according to normal contract interpretation principles — rather than the “clear and unequivocal” rule — and would preclude Fina’s recovery against BP. No Delaware case has directly addressed the applicability of the clear and unequivocal test to indemnification for pri- or acts giving rise to potential future liability (with “past” and “future” being determined by reference to the time at which the indemnity provision was signed). Indeed, it does not appear that any Delaware case has ever distinguished between past and future conduct or past and future liability in applying the clear and unequivocal test to an indemnification provision. BP’s argument appears to be predicated on Texas law, which specifies that “[the express negligence test] is explicitly limited to releases and indemnity clauses in which one party exculpates itself from its own future negligence.” BP relies on this and other similar statements in Texas cases in concluding that, under Texas law, at least, the express negligence test is inapplicable to indemnification for past conduct giving rise to potential future liability. Even as to Texas law, it is not at all clear that BP’s conclusion is correct. The language used by the Texas courts is ambiguous: “Future negligence” might refer to future negligent conduct, but it also might refer to future claims based on negligence. True, the Texas rule does clearly distinguish between (1) indemnification for past conduct for which claims have already been filed at the time the indemnity provision is signed and (2) indemnification for future conduct for which claims could not possibly have been filed at the time the indemnity provision was signed. Still, no Texas case has addressed the applicability of the rule to the rare situation in which a party attempts to invoke the protection of an indemnity against a claim filed after the indemnity was signed but arising from conduct that occurred prior to the signing of the indemnity. The purpose of Delaware’s clear and unequivocal test is to ensure that indemnitors are fully cognizant of the extraordinary risks that they are assuming. This rationale is consistent with distinguishing between those claims that have been filed at the time that an indemnity is signed and those that are merely prospective: Claims that have already been filed are not an extraordinary risk, as they are a known and calculable quantity. The rationale behind the Delaware rule is not consistent, however, with distinguishing between prospective claims that are based on past conduct and prospective claims that are based on future conduct. Both types of prospective claims constitute unknown quantities. Virtually all prospective claims are in fact unknowable quantities to an indemnitor unless the indemnitee brings the prospective claims to the indemnitor’s attention: An indemnitor can always determine whether claims have already been filed against an indemnitee, but it is nearly impossible for an indemnitor to determine whether an indemnitee has engaged in conduct that is likely to give rise to claims in the future. It is consistent with the “penalty default” nature of the Delaware rule to place the burden on an indemnitee both to inform potential indemnitors that it has engaged in conduct that may give rise to future liability and to ensure that any indemnity provision that is signed clearly states that the indemnification extends to such future claims. Only by applying the “clear and unequivocal” rule to indemnification for all claims that were merely prospective at the time that an indemnity provision was signed can the courts be sure that the indemnitor was fully cognizant of the extraordinary risk that it was assuming. We are convinced that the Delaware courts would apply the clear and unequivocal rule to BP’s claim for indemnification by Fina. We hold, therefore, that (1) the BP/Fina indemnity provision is subject to the clear and unequivocal test under Delaware law as applied to Fina’s CERCLA claims against BP; (2) the BP/Fina indemnity provision fails to satisfy the clear and unequivocal test; and (3) the indemnity provision consequently does not bar Fina’s claims against BP. 2. Fina’s “circuitous indemnity obligation” to ARCO The district court held that because ARCO is indemnified by BP which in turn is indemnified by Fina, a “circuitous indemnity obligation” is owed by Fina to ARCO. As we hold that Fina does not owe an indemnity obligation to BP with respect to the CERCLA liability in question, Fina necessarily does not owe a “circuitous indemnity obligation” to ARCO. Consequently, Fina is not barred by the indemnity provisions in question from pursuing its claims against ARCO. 3. The ARCO/BP indemnity provision The ARCO/BP agreement of sale ¿oes not contain a choice-of-law provision. ARCO and BP agree, however, that the contract is governed by Texas law. Since 1987, Texas has applied the “express negligence” test in lieu of the “clear and unequivocal” test. The “express negligence” test holds that “parties seeking to indemnify the indemnitee from the consequences of its own negligence must express that intent in specific terms.” This rule is applicable to claims based on strict liability. And, because the rationale behind the Texas rule is the same as the rationale behind the Delaware rule, we are satisfied that Texas would apply the “express negligence” test to all claims that were merely prospective at the time the indemnity provision was signed. The ARCO/BP provision indemnifies ARCO for “all claims ... arising from the ownership or the operation of the Assets ... and accruing from and after Closing ... except to the extent that any such claim ... shall arise from the gross negligence of ARCO.” It makes no mention of claims based on BP’s own negligence or on strict liability. The Texas Supreme Court has held that an indemnification provision is not enforceable as applied to claims based on strict liability unless that provision expressly states the indemnitor’s intent to cover such claims. Even if the exclusion of gross negligence from the indemnity’s coverage is interpreted as indicating that BP intended to indemnify ARCO for ordinary negligence, claims based on strict liability are of quite a different nature. Texas law requires that each type of claim be separately referenced by an indemnity provision: “Indemnification against strict liability is an exception to usual business practices in the same manner as indemnifying against someone else’s negligence.... [F]airness dictates against imposing liability on an indemnitor unless the agreement clearly and specifically expresses the intent to encompass strict liability claims.” Thus, the ARCO/BP indemnity provision is not enforceable under Texas law as applied to claims based on strict liability. Consequently, ARCO may not seek indemnification from BP for any amounts recovered against it by Fina based on strict liability. III. Conclusion For the reasons discussed above, the district court’s grant of summary judgment is reversed and the case is remanded for further proceedings consistent with this opinion. REVERSED and REMANDED. . Fina has also made claims under the Resource Conservation Recovery Act, 42 U.S.C, §§ 6901 et seq., and Section 361.344 of the Texas Solid Waste Disposal Act. Although we follow the lead of the district court and the parties to the case in addressing our opinion solely to Fina's CERCLA claims, we discern no reason why our holding should not be equally applicable to these other claims as well. . See, e.g., Bolding v. C.I.R., 117 F.3d 270, 273 (5th Cir.1997). . St. Paid Mercury Ins. Co. v. Lexington Ins. Co., 78 F.3d 202, 205 (5th Cir.1996). . DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 677-78 (Tex. 1990). . Sweetman v. Strescon Industries, Inc., 389 A.2d 1319, 1321 (Del.Super.1978). . See Dorchester v. American Petrofina, Inc., 710 S.W.2d 541, 543 (Tex. 1986). . See Ethyl Corp. v. Daniel Const. Co., 725 S.W.2d 705 (Tex. 1987). . Id. at 708. . DeSantis, 793 S.W.2d at 680. . We do not decide whether a reasonable interpretation of the phrase "all claims” would include claims that were merely prospective at the time the indemnity provision was signed. . See Powell v. Interstate Vendaway, Inc., 300 A.2d 241, 243 (Del.Super. 1972); Laws v. Ayre Leasing, No. 92C-07-254, 1995 WL 465334, at *2 (Del.Super. July 31, 1995). . See Laws, 1995 WL 465334, at *2; Clark C. Johnson, Note, Collapsing the Legal Impediments to Indemnification, 69 Ind. LJ. 867, 878 (1994). . Cumberbatch v. Bd. of Trustees of Del. Tech. & Community College, 382 A.2d 1383, 1386 (Del.Super. 1978). See also Blum v. Kauffman, 297 A.2d 48, 49 (Del. 1972); All-State Investigation and Security Agency v. Turner Constr. Co., 301 A.2d 273, 274-75 (Del. 1972). . James v. Getty Oil Co., 472 A.2d 33, 36 (Del.Super. 1983) (citing Sweetman, 389 A.2d 1319). The sophistication of the contracting parties is irrelevant; the vast majority of the cases in which Delaware courts have applied the clear and unequivocal test have involved contracts between large, sophisticated entities. See, for example, Powell, 300 A.2d 241 (contract between Interstate Vendaway, Inc. and Chrysler Corp.); Paoli v. Dave Hall, Inc., 462 A.2d 1094 (Del.Super. 1983) (contract between a construction contractor and a subcontractor); James v. Getty Oil Co., 472 A.2d 33 (Del.Super. 1983) (contract between Getty Oil Co. and Catalytic, Inc.). . See James, 472 A.2d at 37; Laws, 1995 WL 465334, at *2 (citing Rock v. Delaware Elec. Coop., Inc., 328 A.2d 449 (Del.Super.1974)). . See Jordan v. E.I. duPont de Nemours and Co., 1986 WL 11553, at *3 (Del.Super.Aug.8, 1986); Paoli v. Dave Hall, Inc., 462 A.2d 1094, 1098 (Del.Super. 1983). For examples of indemnity provisions that have been upheld as applied to claims arising from the indemnitee's own negligence, see All-State, 301 A.2d at 274 (enforcing a provision indemnifying for "any claims ... whether or not such claims are based on Turner’s alleged active or passive negligence”); Warburton v. Phoenix Steel Corp., 321 A.2d 345, 346 (Del.Super.1974) (enforcing a provision indemnifying for "all claims ... whether or not such injury is due to or chargeable to any negligence of the Contractor”); Cumberbatch, 382 A.2d at 1385 (enforcing a provision indemnifying for "all claims ... regardless of whether or not it is caused in part by a party indemnified hereunder”); Fountain v. Colonial Chevrolet Co., 1988 WL 40019 (Del.Super.Apr.13, 1988) (enforcing a provision indemnifying for "all loss or damages ... even if said losses arise out of the negligence of Company”). . See Marshall v. Maryland, D. & V. Ry. Co., 112 A. 526 (Del.Super.1921) (refusing to enforce as applied to a claim arising from the indemnitee’s own negligence an indemnity covering "damages of whatsoever kind of nature arising in any manner or under any circumstances”); Paoli, 462 A.2d at 1098 (refusing to enforce as applied to the indemnitee's own negligence an indemnity covering "all suits”); Hitchens v. Cannon & Cannon, 1987 WL 17440 (Del.Super.Sept.16, 1987) (refusing to enforce as applied to a claim arising from the indemnitee’s own negligence an indemnity covering "all ... claims ... howsoever arising or incurred"); Kreider v. F. Schumacher & Co., 816 F.Supp. 957, 962 (D.Del.1993) (stating that "the ‘all claims' phrase is modified by Delaware case law to exclude from indemnification claims which arise from [the indemnitee's] own negligence”); Blum v. Kauffman, 297 A.2d 48 (Del. 1972). . Rizzo v. John E. Healy and Sons, Inc., 1990 WL 18378, at *2 (Del.Super.Feb.16, 1990). . See, e.g, Purolator Products Corp. v. Allied-Signal, Inc., 772 F.Supp. 124, 131 n. 3 (W.D.N.Y.1991) ("While CERCLA liability is strict, and is not based on negligence, I believe that the policy behind the rule regarding negligence is also applicable here”); Houston Lighting & Power Co. v. Atchison, Topeka & Santa Fe Ry., 890 S.W.2d 455, 458 (Tex. 1994). . Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 386-87 (Tex. 1997). . Two Texas courts — neither of which appears to have been aware of the unusual posture of the case before it — have decided cases involving such a fact pattern. One court held that the express negligence rule was applicable, but the case is distinguishable because it involved not only an indemnity but also a warranty. See Dorchester Gas Corp. v. American Petrofina, Inc., 710 S.W.2d 541 (Tex. 1986), overruled on other grounds, Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705 (Tex.1987). The other court held that the express negligence rule was inapplicable, but that case is also distinguishable because the court found that, although the claim was not filed until after the signing of the indemnity, the dispute that gave rise to the claim arose before the signing of the indemnity and was within the contemplation of the parties when they signed it. Lexington Insurance Co. v. The W.M. Kellogg Co., 976 S.W.2d 807 (Tex.App. 1 Dist.1998). In conclusion, Texas law concerning indemnification for past acts giving rise to potential future liability is at best unclear. . Ethyl Corp., 725 S.W.2d at 708. . Houston Lighting & Power Co., 890 S.W.2d at 459. . See id. . Houston Lighting & Power Co., 890 S.W.2d at 458-59. . See Rizzo, 1990 WL 18378, at *2; Laws, 1995 WL 465334, at *2-*3. . Houston Lighting & Power Co., 890 S.W.2d at 458 (refusing to enforce as applied to a strict liability claim an indemnity provision that expressly covered ordinary negligence claims).

Akzo Nobel Coatings, Inc. v. Aigner Corp.

EASTERBROOK, Circuit Judge. Five years ago we held that a settlement with the epa did not foreclose claims for contribution among firms that sent solvents for reprocessing to Fisher-Calo Chemicals, which handled them poorly. Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761 (7th Cir.1994). Fisher-Calo went out of business, leaving its former customers to bear the burden of cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (cercla). After the epa put the Fisher-Calo site on the National Priorities List, Akzo performed some cleanup work in a portion of the site that it concedes received waste for which it is responsible. Aigner did (and continues to do) the bulk of the work at Fisher-Calo’s premises as a whole. (“Akzo” is shorthand for Akzo and O’Brien, the plaintiffs; “Aigner” stands in for approximately 50 additional firms.) Akzo demanded that Aigner contribute to the cost of cleanup in Akzo’s portion of the site; Aigner made the same demand of Akzo. Akzo’s principal argument is that its responsibility is limited to a small portion of the site, so that it need not bear any cleanup costs for the rest. But the district court rejected this position—initially on summary judgment, ruling that Fisher-Calo’s business premises are a single site for cercla purposes, see 960 F.Supp. 1354 (N.D.Ind.1996), then, after a bench trial, finding that it is not possible to trace pollutants from different sources to their destinations within the Fisher-Calo complex. The judge ordered Akzo to reimburse Aigner for 12.56% of the total costs that Aigner will incur in performing cleanup work, plus a cash award of about $1.5 million, equal to that portion of costs incurred by the time of trial less what Akzo had spent already. Akzo asks us to hold that it owes nothing, and that if it must pay anything its liability is limited to 9% of costs, because it sent only 9% of the total volume of solvents that Fisher-Calo processed. Akzo’s principal argument for “nothing” is that wastes from its solvents were deposited at discrete locations within the Fisher-Calo site, that it is therefore possible to ascertain the precise injury inflicted by these wastes. Akzo directs most of its fire to the district court’s conclusion on summary judgment that the Fisher-Calo business premises must be deemed a single site (as the epa has treated it), making a search for distinct harms within that site unnecessary. But that was not the end of the matter; after a trial the judge concluded that it is not possible to identify distinct harms, and this factual conclusion makes it unnecessary (and inappropriate) for us to inquire what the judge should have done at an earlier stage of the case, when the record contained less information. See Watson v. Amedeo Steel, Inc., 29 F.3d 274 (7th Cir.1994). Although Akzo contests the district judge’s conclusion that pollutants derived from Akzo’s solvents were scattered throughout the Fisher-Calo site, the judge’s findings are not clearly erroneous. Even if none of Akzo’s wastes can be traced to one of the many parcels within the Fisher-Calo site (the parcel known as Space Leasing), it does not follow that the judge was obliged to carve that parcel out when calculating cleanup costs and responsibility. Section 113(f)(1) of cercla, 42 U.S.C. § 9613(f)(1), says that “[i]n resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” Allocation of shares thus is not a mechanical process. Doubtless liability for distinct or divisible harms should be kept separate when possible, see Restatement (2d) of Torts §§ 433A, 881, but the district judge held that at the Fisher-Calo site a reliable division is just not possible. Fisher-Calo’s records are so sparse and uninformative, and the costs of matching inputs to outputs so high, that compiling a comprehensive inventory would not be sensible, the judge concluded. Akzo loses to the extent it must contribute toward the costs of cleaning up the Space Leasing parcel, but the same inability to trace contributions means that Akzo gains to the extent that other firms must contribute toward the costs of cleaning up the parcels that contain waste attributable to Akzo. How the balance of advantage comes out is impossible to say for the Fisher-Calo site as a whole, the district judge found, and this assessment does not represent an abuse of discretion. Neither did the district judge err in handling Akzo’s contention that the residue of its solvents is less toxic than the residue of Aigner’s solvents. Akzo wanted the district judge to apportion costs according to a toxicity index. The volume of solvents each party shipped to Fisher-Calo would be multiplied by a factor reflecting the toxicity of the ensuing wastes and liability apportioned according to the result. For example, if Aigner shipped 100,000 gallons of wastes with a toxicity factor of 2, and Akzo shipped 100,000 gallons with a toxicity factor of 1, then Aigner would pay two-thirds of the total cleanup cost. Because § 113(f)(1) tells the court to use “equitable factors,” it is possible that toxicity could play a role in the allocation if it is connected to cost — whether the financial cost of the particular cleanup or the total social cost of the pollution. Suppose that Aigner’s wastes were twice as toxic as Akzo’s but equally costly (pound for pound or gallon for gallon) to remove from the ground, and no more dangerous to strangers after the cleanup had been completed. Then there would be no sound reason to measure contribution by toxicity rather than by the expense of doing the work. Even the word “toxic” may mislead; sometimes that word means deadly (cyanide is more toxic than polychlorinated biphenyls in this sense), but sometimes it means “hard to purge from other substances” (pcbs are more toxic than cyanide in this sense). Substances that are very poisonous may be simple to eliminate or dilute to a harmless level; substances that cling tenaciously to dirt, water, and living tissues may be very costly to clean up, not only because it is hard to get rid of them but because their toxicity leads to buildup over the years in exposed humans, so that the environmentally safe level is lower than that for acutely poisonous substances. Akzo has not disentangled these different meanings of toxic or demonstrated that the residuals in its solvents are less costly to clean up. Actually, even proof that its solvents are easier and cheaper to deal with on then-own is not enough. A court must ask how each party’s wastes affected the total cost of cleanup. Suppose that Akzo and Aigner dumped 100 gallons of solvents in the same pit, that Aigner’s chemicals (alone) would have cost $500 to clean up, that Akzo’s (alone) would have cost $400, and that the two together cost $600. The marginal cost of Akzo’s solvents then is $100, and the marginal cost of Aigner’s $200; each party must pay at least that much. But had Aigner sent no solvents to this pit, Akzo would have had to pay $400 in cleanup costs. All an appellate court could say is that Akzo’s share in contribution must be between $100 and $400, while Aigner’s must be between $200 and $500; any allocation that adds to $600 and respects these constraints cannot be condemned. Broim-ing-Fertis Industries of Illinois, Inc. v. Ter Maat, 195 F.3d 953, 956-59 (7th Cir. 1999), explains this at greater length. In particular, for this example, requiring each responsible party to contribute according to the number of gallons it shipped to the site would not violate the constraint that neither party pay less than the increase in marginal cost, nor more than the total cost it would have borne had it been the only polluter. Akzo does not contend that its contribution share exceeds the cost that would have been necessary to clean up the pollutants attributable to its solvents if it had been Fisher-Calo’s sole customer. The district court’s decision to give every gallon the same weight therefore was within its discretion, even on the assumption that Aigner’s wastes were more toxic per gallon than Akzo’s. Having decided that all gallons of solvents shipped to Fisher-Calo count equally, the court then ordered Akzo to pay approximately one third more than equal-weighting implies. Akzo generated approximately 9% by volume of all solvents that Fisher-Calo processed, but the court ordered Akzo to reimburse Aigner for approximately 13% of the costs that Aigner has incurred or will expend in completing the cleanup. Aigner and the other firms in its consortium sent about 71% of the total volume of solvents to the Fisher-Calo site, so Akzo’s shipments are approximately 13% of the Akzo + Aigner total; other shipments and shippers were ignored because they are not parties to this suit. According to the district court, this outcome is required by the Uniform Comparative Fault Act. The district court read § 2 and § 6 of the ucfa to provide that the responsibility of non-parties must be disregarded, even if they are financially able to pay (indeed, even if they already have paid) their share of the cleanup. To take a simple example, suppose Firm A is responsible for 40% of the pollutants, Firm B for 10%, and Firm C for 50%. Firm A agrees with the era to perform the cleanup and sues B for contribution. On the district court’s reading of the ucfa, B must pay 20% of the total cleanup costs, because B sent 20% of the pollutants that A and B generated jointly. That C is able to pay its 50% share — indeed, that C has already paid 50%, and that the outcome of the suit between A and B will leave A bearing only 30% of the total costs — is irrelevant on the district court’s (and Aigner’s) understanding of the ucfa. A polluter that agreed to clean up a Superfund site could turn a tidy profit if this were so. Suppose that ten firms, A through J, sent 10% each, and that A, having agreed to do the cleanup work, sues B for contribution. Firms A and B are responsible for equal volumes of wastes, so the court would order B to pay 50% of the total cleanup costs. Next A sues C and recovers another 50%. If all of Firms B through J were good for the judgments, then A would recover 450% of its total outlay for pollution control. Even if the court set a cap of 100%, to prevent A from making a profit, the upshot would be that of ten equally responsible polluters, B and C would pay 50% each, and the other eight would pay nothing. That is not a sensible outcome of a process that is supposed to yield an “equitable” allocation of expenses. Akzo contends that the ucfa requires the district court to undertake a global assessment of responsibility, so that Akzo cannot be required to pay anything until every shipper’s share has been determined. That might take years of trial time. Akzo would be happy to skip the trial and chip in 9%, but that would leave Aigner holding the bag if the other shippers were unable to pay their shares. Agner, for its part, contends that the ucfa requires courts to ignore non-parties just as the district court concluded. None of these approaches is sound. Akzo’s would either complicate an already difficult allocation process or saddle firms such as Agner with excess costs. The Supreme Court has cautioned against the adoption of any contribution rule that would complicate litigation. McDermott, Inc. v. Am-Clyde, 511 U.S. 202, 211-14, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). Agner’s approach would lead to disproportionate liability, with contribution shares turning not on actual responsibility (or on the actual collections of the party performing the cleanup) but on litigation strategy. It is of course possible that both sides are wrong, and that the ucfa requires the inclusion of either pollution shares of, or the actual recoveries from, the additional parties with which Agner has reached settlements. But we resist all temptation to give the ucfa a close reading — and this despite the fact that Akzo and Agner agreed in the district court that it supplies the rule of decision. Section 113(f)(1) provides otherwise: “Such claims [for contribution] shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law.” The ucfa is not a federal law, and we are not bound by the parties’ agreement to an inapplicable body of legal rules. Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991); United States National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439, 445-48, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). Athough federal law governs, it is possible and often desirable to borrow a rule from state law, when the alternative is judicial invention. United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979); Atherton v. FDIC, 519 U.S. 213, 117 S.Ct. 666, 136 L.Ed.2d 656 (1997); but see Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 754-55, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The reference to “Federal law” in § 113(f)(1) implies that the law should be nationally uniform, rather than varying according to each state’s idea of appropriate contribution. Yet the ucfa would not be an attractive national rule. Unlike the Uniform Commercial Code, to which the Court turned in Kimbell Foods, the ucfa has not been adopted throughout the United States. Only two states (Iowa and Washington) have enacted the ucfa; eleven have adopted the Uniform Contribution Among Tortfeasors Act, which supplies a different approach to contribution; the rest resolve contribution issues through the common law or non-uniform statutes. When one of the litigants has settled with a third party, the ucfa reduces other shares by the percentage of total fault of the person released in the settlement (ucfa § 2); this is the source of Akzo’s contention that the district court must hold a comprehensive trial to determine every shipper’s share of liability. The ucata, by contrast, reduces liability only by the dollar amount of third-party settlements (uca-ta § 4). These competing approaches can produce substantial differences in incentives to settle and in the complexity of litigation. See McDermott, 511 U.S. at 214-17, 114 S.Ct. 1461; In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1314-18 (7th Cir.1992); Steven Shavell, Economic Analysis of Accident Law 164-67 (1987); Lewis A. Kornhauser & Richard L. Revesz, Sharing Damages Among Multiple Tortfeasors, 98 Yale L.J. 831 (1989). To the extent language in § 113 speaks to the issue, it prefers the approach of the ucata: A settlement with the United States or a state “does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement.” Section 113(f)(2), 42 U.S.C. § .9613(f)(2). Adopting the ucfa as a federal rule would undermine that decision. As a proposition of federal law, the district court’s approach has nothing to recommend it, for it produces disparities in liability when third parties have settled. We assume, with the district court, that the proportionate share of the parties is a good starting point. Suppose that Akzo and Aigner were the only two financially sound parties responsible for the pollution. Then the final contribution shares properly would reflect only their relative responsibility, and the 13% share for Akzo would stand. But they are not. Aigner has settled with some other firms that sent solvents to Fisher-Calo and with some past owner-operators of portions of the site. It has claims pending against still more potentially responsible parties. It is very unlikely that 13% is an accurate estimate of Akzo’s share among the financially sound firms that will eventually chip in. McDermott considered at length the proper treatment of settling parties under a body of federal law that includes contribution — the law of admiralty. The Court deemed two approaches “closely matched” (511 U.S. at 217, 114 S.Ct. 1461): claim reduction (also known as “proportionate share”), see Restatement (2d) of Torts § 886A Comment m(3), and reduction pro tanto by the actual amounts recovered in settlements, see Restatement § 886A Comment m(2). The claim-reduction approach requires the court to determine the responsibility of all firms that have settled, as well as those still involved in the litigation, and to ignore any firms that have not settled. To return to the ten-firm hypothetical above, if Firm A had settled with C and D, then their shares of responsibility (and the corresponding cleanup costs) would be excluded from the calculation. In a contribution suit between A and B, Firm B would be ordered to pay 50% of the costs after excluding C and D, or 40% of the total costs of restoring the site. It would not matter how much A actually had recovered from C and D. By contrast, under the pro tanto approach, anything A recovered from C and D in settlement would be deducted from the total cleanup costs, and the court would order A and B to bear the remaining costs equally. In McDermott the Court adopted claim reduction, deeming it most compatible with the way related issues in admiralty have been handled. If as McDermott explained the choice between the pro tanto approach and claim reduction is a tossup, 511 U.S. at 217, 114 S.Ct. 1461, then it is best to match the handling of settlements with the way intersecting principles of law work. For admiralty that meant claim reduction. For cercla the most closely related rule of law is § 113(f)(2), which reduces third-party claims by the actual cash value of settlements reached with governmental bodies. Extending the pro tanto approach of § 113(f)(2) to claims under § 113(f)(1) enables the district court to avoid what could be a complex and unproductive inquiry into the responsibility of missing parties. The extended litigation between Akzo and Aigner well illustrates the difficulties of fixing responsibility for wastes sent years (if not decades) ago to a firm that did not keep good records and contaminated a wide area. Excluding only actual collections from third parties enables the court to conserve its resources. On remand, the district court should determine how much Aigner has collected from third parties in settlement, then require Akzo to pay 12.56% of the costs net of those recoveries, rather than of Aigner’s total outlay. The total must be reduced not only by collections Aigner has realized to date, but also by future third-party payments. Phrasing Akzo’s liability as “12.56% of the cleanup cost net of third-party collections” or some similar formula will avoid any need to reopen the judgment under Fed.R.C,iv.P. 60(b)(5) to account for the outcome of litigation now pending or to be filed in the future. If some of Aigner’s settlements provide for percentage-of-cost payments rather than cash payments, then the district court should exclude that percentage from the pool. (To this extent the pro tanto approach works like claim reduction, but without the need for the court to determine the responsibility of the settling parties.) Even if, as Akzo believes, Aigner settled for too little with any of these third parties, it is not free to bring its own contribution actions against them. McDermott labeled “clearly inferior” the possibility of collecting more from parties who reached private settlements in good faith. 511 U.S. at 211, 114 S.Ct. 1461. A potentially responsible party (prp in cerc-la jargon) that wants to guard against inadequate collections from third parties must either intervene in the suits against them or challenge the bona fides of the settlements immediately after they are reached. Id. at 212-14, 114 S.Ct. 1461. The judgment is affirmed to the extent it holds Akzo responsible for contribution toward the cleanup costs of the Fisher-Calo site as a whole, and to the extent it adopts an approach treating each gallon of solvents as equally responsible for cleanup costs. The judgment is vacated to the extent it quantifies Akzo’s contribution liability, and the case is remanded for further proceedings consistent with this opinion.

Burnette v. Carothers

WINTER, Chief Judge: This is an appeal from the dismissal of a citizen enforcement action brought pursuant to the citizen suit provisions of the Clean Water Act (“CWA”), 33 U.S.C. § 1365, the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972, and the Comprehensive Environmental Response, Compensation and Liabihty Act (“CERCLA”), 42 U.S.C. § 9659, as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613 (1986). Because we agree with the district court that the Eleventh Amendment bars the relief sought by the citizen suit and the action for recovery of response costs, we affirm. Appellants, Marie G. Burnette and Ralph G. Burnette, Jr., appearing pro se, are homeowners in the Rye Hill section of Somers, Connecticut. They filed this action against various state officers in their official capacities, claiming that hazardous substances had emanated, and continued to emanate, from the Connecticut Correctional Institute (“CCI”), a prison located north of Rye Hill and operated by the Connecticut Department of Corrections. Appellants alleged that these toxic substances had polluted and were continuing to pollute their on-site water wells. They sought injunctive and monetary relief. In addition, they sought reimbursement from defendants for response costs which were alleged to have been incurred as a result of “a release or threatened release of hazardous substances” from CCI. See 42 U.S.C. § 9607(a)(4)(B). The complaint also included claims under CERCLA for a declaratory judgment, future response costs, and contribution, pursuant to 42 U.S.C. § 9613(f)(1). Arguing that the case was barred by the Eleventh Amendment, appellees moved to dismiss for lack of subject matter jurisdiction. They also moved for summary judgment on the claim for response costs, arguing that the Eleventh Amendment prohibited recovery of monetary damages. The district court dismissed all claims, holding that the State and its agents were immune from suit under the Eleventh Amendment. In addition, the court granted appellees’ motion for summary judgment, holding that appellants were not entitled to response costs from the State or to potential contribution costs because such recovery would violate the State’s sovereign immunity. This appeal followed. DISCUSSION a) Citizen Suit We review de novo a dismissal pursuant to Fed.R.Civ.P. 12(c). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. See id. We may dismiss the complaint only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In dismissing the action, the district court held that Congress did not, by authorizing environmental citizen suits, intend to abrogate the states’ sovereign immunity. It also concluded that the State of Connecticut did not waive its sovereign immunity as to plaintiffs’ CWA, RCRA, and CERCLA claims. We agree. The Eleventh Amendment provides that: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. “While the Amendment by its terms does not bar suits against a State by its own citizens, [the Supreme] Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). State immunity extends to state agencies and to state officers who act on behalf of the state. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-47, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Thus, when the state is the real party in interest, the Eleventh Amendment generally bars federal court jurisdiction over an action against a state official acting in his or her official capacity. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). In certain circumstances, however, Congress may abrogate the states’ constitutionally secured immunity from suit in federal court. To do so, Congress must make “ ‘its intention unmistakably clear in the language of the statute.’ ” Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). “A general authorization for suit in federal court is not the kind of unequivocal statutory language sufficient to abrogate the Eleventh Amendment. When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.” Atascadero, 473 U.S. at 246, 105 S.Ct. 3142. The CWA, RCRA, and CERCLA contain substantially identical provisions permitting citizens to sue as private attorneys general in circumstances where government authorities have, after notice, failed to take steps to remedy particular environmental harms. These provisions state that “any citizen may commence a civil action on his own behalf — (1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of [the Act].” 33 U.S.C. § 1365(a)(1) (emphasis added); see also 42 U.S.C. § 6972; 42 U.S.C. § 9659. These provisions do not unequivocally express Congress’s intent to abrogate sovereign immunity and subject states to suit. Far from evidencing a Congressional intent to do away with sovereign immunity, these provisions are expressly limited by the Eleventh Amendment. See Natural Resources Defense Council v. California Dep’t of Transp., 96 F.3d 420, 423 (9th Cir.1996) (district court properly dismissed all claims under CWA against state agency on Eleventh Amendment immunity ground); Froebel v. Meyer, 13 F.Supp.2d 843, 849-50 (E.D.Wis.1998) (“[T]he plainest meaning” of language in CWA is that “the Eleventh Amendment retains some presumptive force.... ”); Rowlands v. Pointe Mouillee Shooting Club, 959 F.Supp. 422, 426 (E.D.Mich.1997) (RCRA citizen suit provision operates within the Eleventh Amendment), aff'd, 182 F.3d 918 (6th Cir.1999). The district court was, therefore, correct in holding that these citizen suit provisions do not abrogate Connecticut’s sovereign immunity and that the state defendants are therefore entitled to immunity from suit in federal court. Appellants assert, however, that even if a citizen suit would ordinarily be barred under the Eleventh Amendment, immunity does not apply here because the complaint is in the nature of a qui tarn action and the United States is the real party in interest. We disagree. In Con necticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir.1972), we held that “there is no common law right to maintain a qui tarn action; authority must always be found in legislation.... [T]he terms and structure of the particular statute are decisive.” Id. at 84. The statutes at issue do not grant citizens the right to sue on behalf of the United States nor do they establish a formula for recovering civil penalties. To the contrary, the citizen suit provisions authorize “any citizen [to] commence a civil action on his own behalf.” 33 U.S.C. § 1365(a) (emphasis added); see also 42 U.S.C. § 6972; 42 U.S.C. § 9659. The United States is not, therefore, the real party in interest here. Appellants suggest on appeal that some of their claims remain viable because they fit within the exception to Eleventh Amendment immunity established by Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (holding that suits against state officers, rather than against State itself, are permitted when seeking prospective relief). See Note 3, swpra. However, appellants failed to raise this issue in the district court, even though they were then represented by counsel. Perceiving that no miscarriage of justice will result, we hold that their claim under Ex Parte Young has been waived. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (noting that federal appellate courts may resolve issues not passed on below where injustice might otherwise result). b) Recovery of Response Costs Appellants next claim that they incurred costs in responding to the release of hazardous wastes from CCI and are therefore entitled to reimbursement from the State pursuant to 42 U.S.C. § 9607(a). Appellants also seek a declaratory judgment for future response costs and contribution pursuant to 42 U.S.C. § 9613(f)(1). We review the district court’s grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In doing so, we construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998). As an initial matter, claims made pursuant to CERCLA Section 113(f), 42 U.S.C. § 9613(f), are available only to a potentially responsible party seeking to recover from another potentially responsible party. See Bedford Affiliates v. Sills, 156 F.3d 416, 423-25 (2d Cir.1998) (discussing differences between claims for recovery under 42 U.S.C. § 9607(a) and claims for contribution under 42 U.S.C. § 9613(f) and holding that a Section 9607(a) suit is not available to potentially responsible parties); H.R.Rep. No. 99-253(1), at 79 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2861 (principal goal in passing CERCLA Section 113 was to “clarif[y] and confirm!'] the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances”). Because appellants do not claim to be a potentially responsible party, recovery under Section 113(f) is not available to them. We turn therefore to their remaining claim for response costs under CERCLA Section 107(a), 42 U.S.C. § 9607(a). In Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court held that Congress may abrogate the states’ sovereign immunity if two conditions are met: (i) Congress “unequivocally expresse[d] its intent to abrogate the immunity” and (ii) Congress acted “pursuant to a valid exercise of power.” (alteration in original) (internal quotation marks omitted). In the instant case, the first requirement has been satisfied. In Pennsylvania v. Union Gas Co., the Supreme Court held that the provisions of CERCLA unmistakably express Congress’s intent to divest the states of their Eleventh Amendment immunity. See Union Gas, 491 U.S. 1, 8, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), overruled on other grounds by Seminole, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252. The sole remaining question is, therefore, whether Congress enacted CERCLA pursuant to a constitutional provision granting Congress the power to abrogate. We hold that it did not. The Supreme Court in Seminole held that Congress could abrogate the states’ Eleventh Amendment immunity only when acting under the power vested in it by Section 5 of the Fourteenth Amendment. See 517 U.S. at 59, 65-66, 116 S.Ct. 1114. CERCLA, however, was enacted pursuant to the Commerce Clause, and any provision in it that makes a state liable to private parties is accordingly unenforceable. See Seminole, 517 U.S. at 62, 116 S.Ct. 1114 (implicitly recognizing that CERCLA was enacted pursuant to Commerce Clause); Union Gas, 491 U.S. at 19-23, 109 S.Ct. 2273 (CERCLA enacted pursuant to Commerce Clause); Ninth Avenue Remedial Group v. Allis-Chalmers Corp., 962 F.Supp. 131, 135 (N.D.Ind.1997) (holding that because Congress did not have power to abrogate immunity under Commerce Clause, unconsenting states are not liable to private parties under CERCLA); United States v. Iron Mountain Mines, Inc., 952 F.Supp. 673, 675 (E.D.Cal.1996) (CERCLA passed pursuant to Commerce Clause and thus Congress lacked power to abrogate immunity); Prisco v. New York, No. 91 Civ. 3990, 1996 WL 596546, at *12-*14 (S.D.N.Y. Oct.16, 1996) (CERCLA claims dismissed because sovereign immunity could not be abrogated without action pursuant to Fourteenth Amendment or state waiver and neither was present). Appellants contend that CERCLA was also enacted pursuant to Congress’s spending power under Article I, Section 8, Clause 1. Even if this were the case, however, Congress would still lack the power to abrogate the states’ immunity. “[A]fter Seminole, Congress cannot abrogate the States’ Eleventh Amendment sovereign immunity pursuant to any Article I power.” Close v. New York, 125 F.3d 31, 38 (2d Cir.1997); see also Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, — U.S. —, —, 119 S.Ct. 2199, 2205, 144 L.Ed.2d 575 (1999) ("Seminole Tribe makes clear that Congress may not abrogate state sovereign immunity pursuant to its Article I powers ....”); cf. Alden, — U.S. at -, 119 S.Ct. at 2246 (holding that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts”). “[T]he only source of congressional abrogation stems from the Fourteenth amendment.” Close, 125 F.3d at 38; see also College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., — U.S. —, —, 119 S.Ct. 2219, 2224, 144 L.Ed.2d 605 (1999) (noting that Court has recognized individual suits against unconsenting states only when authorized by Congress’s valid exercise of its Fourteenth Amendment enforcement power). Alternatively, appellants maintain that by creating a claim for recovery of response costs, CERCLA created a property right and was therefore enacted pursuant to Congress’s power under Section 5 of the Fourteenth Amendment. However, Congress’s creation of a private claim for damages does not, without more, give rise to a legitimate claim of entitlement. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (finding that to have property interest, person “must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”). To hold otherwise would eviscerate Seminole. Because we find that Congress’s creation of CERCLA response-cost claims, standing alone, is insufficient to establish a cognizable property-interest under the Fourteenth Amendment, we need not address “whether the prophylactic measure taken under purported authority of § 5 ... was genuinely necessary to prevent violation of the Fourteenth Amendment.” College Savings Bank, — U.S. at —, 119 S.Ct. at 2225; see generally City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Appellants also claim that although Connecticut did not expressly waive its Eleventh Amendment sovereign immunity, its actions may be construed as a constructive waiver. Relying on Parden v. Terminal Ry., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), they contend that Connecticut consented to suit in federal court under CERCLA by engaging in an activity regulated by Congress, namely the operation of a prison from which toxic chemicals were released. Parden, however, has now been expressly overruled. See College Savings Bank, — U.S. at —, 119 S.Ct. at 2228. Because the law is now clear that a state cannot “constructively waived” its sovereign immunity in the manner alleged, id., appellants’ argument on this point fails. Appellants finally argue that _ Connecticut consented to suit under CERCLA through the acceptance of federal monies. However, “the mere receipt of federal funds cannot establish that a State has consented to suit in federal court.” Atascadero, 473 U.S. at 246-47, 105 S.Ct. 3142. Here, Congress did not manifest a clear intention to condition the receipt of federal funds under CERCLA on a state’s waiver of Eleventh Amendment immunity. The district court was, therefore, correct in finding that Connecticut did not consent to suit in federal court. CONCLUSION We therefore affirm. . Throughout this opinion we refer to “Eleventh Amendment” state sovereign immunity. However, we recognize that this "phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment.” Alien v. Maine, -U.S. -, -, 119 S.Ct. 2240, 2246, 144 L.Ed.2d 636 (1999). . Sometime in 1993, water samples from wells in the Rye Hill area were found to contain certain chemicals in excess of standards for safe drinking water set by the State of Connecticut and the United States. The hazardous substances were found to be flowing from CCI, apparently as a result of previous disposal practices. Upon discovering the contamination, Connecticut officials immediately caused special filters to be installed in homes with high levels of the chemicals. The Department of Environmental Protection also began providing bottled water to the affected residents. A public water system was subsequently extended into the Rye Hill area, although not all of the homeowners chose to connect to it. The Department of Corrections, pursuant to a consent decree it entered into with the Department of Environmental Protection, ceased maintaining the filters after the public water system became operational. . An important exception to this general rule is set forth in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which holds that the Eleventh Amendment does not bur suits seeking prospective relief against state officials acting in violation of federal law because such action is not considered an action of the state.

White Consolidated Industries, Inc. v. Westinghouse Electric Corp.

CLAY, Circuit Judge. Plaintiff-Appellant, White Consolidated Industries, Inc. (“WCI”), appeals from the order entered by the district court granting summary judgment in favor of Defendant-Appellee, Westinghouse Electric Corporation (“Westinghouse”), and denying WCI’s cross-motion for partial summary judgment, in this action for indemnity and contribution for remediation costs incurred in relation to the cleanup of a contaminated site in Edison, New Jersey. WCI brought suit against Westinghouse for indemnity under an Agreement of Purchase and Sale (“Purchase Agreement”), and contribution under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9607-9675 (1994), the New Jersey Spill Compensation and Control Act of 1977, N.J. Stat. Ann. § 58:10-23 (1993), and pendent state common law claims. WCI alleges that the district court erred when it determined (i) that WCI impliedly assumed future arising environmental liabilities, including CERCLA liability, under the Purchase Agreement; (ii) that Westinghouse did not breach a warranty in the Purchase Agreement, as Westinghouse did not know about any contamination or liability; (iii) that WCI cannot prevail against Westinghouse for fraudulent concealment because Westinghouse was not aware of any “defect” at the time of contracting; and (iv) that summary judgment was appropriate with respect to WCI’s claims of misrepresentation, public nuisance, and strict liability for abnormally dangerous activities, although discovery had not been conducted on these issues. For the reasons set forth below, we AFFIRM the decision of the district court. I. The facts of this case are undisputed. Westinghouse, a corporation duly organized under the laws of Pennsylvania, owned and operated a facility in Edison, New Jersey (“Edison facility”) from at least 1951 through 1974. Westinghouse manufactured radios and televisions at the Edison facility until 1969 or 1970, when Westinghouse converted the facility for the manufacture of dehumidifiers and air conditioners. While manufacturing dehumidifiers and air conditioners, Westinghouse used trichloroethylene (“TCE”), a hazardous solvent, as a degreaser and/or cleaning agent. In 1970, TCE spilled from a ruptured 2000-gallon tank, and forced the evacuation of at least a portion of the Edison facility. Westinghouse dealt with the spill by closing off the affected areas, opening windows, and running fans, thus allowing the material to evaporate. By the next day, no contamination was observable. WCI, a Delaware corporation with its principal office in Cleveland, Ohio, purchased Westinghouse’s major appliance manufacturing business, including the Edison facility, in 1975. The terms of the sale were set forth in the Purchase Agreement, dated December 31, 1974, and amended January 10 and February 28, 1975. In the Purchase Agreement, Westinghouse represented that “to the best of [its] knowledge and belief,” there were no “existing facts or conditions which might give rise to any claim, litigation, proceeding or investigation” and that “none of the operations conducted on the Real Properties ... presently violate any applicable [] antipollution ... requirement (under interpretations currently in effect).” (J.A. at 131, 132). Westinghouse agreed to indemnify WCI for “any and all damages and liabilities whatsoever resulting from any misrepresentation of Westinghouse.” (J.A. at 154). However, Westinghouse did not disclose to WCI the fact that there occurred a spill of TCE at the Edison Facility in 1970. Approximately fifteen years after WCI purchased Westinghouse’s business, WCI discovered evidence of TCE contamination at the Edison facility. WCI submitted these results to the New Jersey Department of Environmental Protection (“NJDEP”) on October 10, 1991, and later entered into a Memorandum of Agreement with the NJDEP, wherein WCI agreed to implement a remedial action work plan to clean up the contaminated soil and groundwater at the Edison facility. WCI determined, through witnesses and environmental studies, that the likely source of the TCE contamination was the 1970 TCE spill that occurred when Westinghouse owned and operated the Edison facility. Consequently, WCI sent Westinghouse a letter, dated March 17, 1993, advising and demanding that Westinghouse assume liability and contribute response costs for the environmental contamination that resulted from the spill. Although Westinghouse acknowledged the occurrence of the TCE spill, Westinghouse denied that it was liable for remediation costs of the contaminated site. WCI filed suit against Westinghouse in federal court on October 4, 1993, seeking recovery of response costs incurred in regards to the environmental cleanup at the Edison site. WCI sought declaratory, in-junctive, and compensatory relief pursuant to (i) CERCLA, 42 U.S.C. §§ 9607-9675 (1994); (ii) the Spill Act, N.J. Stat. Ann. § 58:10-23.11 (1993); (iii) breach of contract; (iv) misrepresentation; (v) negligence; (vi) public nuisance; and (vii) strict liability for abnormally dangerous activity. Westinghouse answered the complaint and filed a counterclaim for contribution against WCI. On September 22, 1994, WCI filed a motion for partial summary judgment based on CERCLA, the Spill Act, and breach of contract. In response, Westinghouse moved for summary judgment in its favor on all of WCI’s claims the following day. On March 19, 1998, the district court granted summary judgment to Westinghouse on WCI’s claims and denied WCI’s motion for partial summary judgment. The district court determined, in relevant part, that Westinghouse could not have known in 1975 that the TCE spill that occurred when it owned the Edison facility could give rise to liability for environmental remediation because the laws that created such potential liability, namely CERCLA and the Spill Act, did not exist at the time and were not enacted until years later. The district court further concluded that Westinghouse was entitled to rely on the unambiguous language in the assumption of liability provision, which states that WCI assumes responsibility for future liabilities. As for WCI’s breach of contract and fraudulent concealment claims, the district court determined that Westinghouse did not breach a warranty in the agreement, or fraudulently conceal a “defect,” because Westinghouse did not know about any contamination or existing environmental liabilities. WCI filed a timely notice of appeal to this Court on April 17,1998. II. This Court reviews de novo a district court’s grant of summary judgment. See EEOC v. Prevo’s Family Mkt., 135 F.3d 1089, 1093 (6th Cir.1998). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Put differently, this Court must determine whether “the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The evidence, all facts, and any reasonable inferences from the facts must be viewed in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). III. On appeal, WCI challenges the district court’s determination that the assumption and indemnification clauses in the Purchase Agreement place the liability for the cleanup of the Edison Facility on WCI. WCI does not contest the district court’s grant of summary judgment on its claims under CERCLA, the Spill Act, or negligence, and thus has waived its right to appellate review of these claims. See Bickel v. Korean Air Lines Co., 96 F.3d 151, 153 (6th Cir.1996) (recognizing that arguments not briefed on appeal are waived). Hence, the primary legal question confronting this Court is whether the terms of the Purchase Agreement address the allocation of future environmental liabilities associated with the Edison facility, and if so, whether WCI expressly or impliedly assumed responsibility for future remediation costs. A. Breach of Contract In its first assignment of error, WCI asserts that Westinghouse’s failure to disclose that there was a TCE spill at the Edison facility constitutes a material breach of the Purchase Agreement, thereby obligating Westinghouse to indemnify WCI for the environmental cleanup. WCI contends that Westinghouse breached § 9.2.1 of the Purchase Agreement because Westinghouse had knowledge of the 1970 spill and knew of the hazards associated with TCE, yet misrepresented to WCI at the time of purchase that there was not a fact or condition that might give rise to a future claim that would adversely affect the business. WCI maintains that Westinghouse knew that the TCE spill created liability at the time of closing, as evidenced by a plethora of state and local laws regulating TCE at the time of the spill, and therefore is liable for remediation costs incurred at the Edison facility. Westinghouse agreed in § 9.2.1 to “indemnify and save WCI harmless from ... any misrepresentation of Westinghouse contained herein or in any agreement ... from any breach of warranty or covenant or obligation of Westinghouse.” (J.A. at 154). The relevant warranties given by Westinghouse stated: 4.1.5 Litigation and Related Matters. (a) Except as identified and described in Part I of the Schedule, there is not any claim, litigation, proceeding or governmental investigation pending, or, to the best of its knowledge and belief, threatened against Westinghouse, nor to the best of Westinghouse’s knowledge and belief are there any existing facts or conditions which might give rise to any claim, litigation, proceeding or investigation, which might adversely affect the Business or the assets of the Business or the transactions contemplated by this Agreement or by the Other Agreements. 4.1.6 Properties. (e) Except as otherwise described in part G of the Schedule, to the best of the knowledge of Westinghouse, none of the operations conducted on the Real Properties of the Leaseholds presently violate any applicable zoning, anti-pollution or other governmental requirement (under interpretations currently in effect) relating to particular Real Property or Leasehold or to such operations (and such operations are not dependent on so-called non-conforming use exceptions). (J.A. at 131,132). Upon review of WCI’s breach of contract. claim, we find that Westinghouse did not breach any warranties it gave WCI, as the environmental liability relating to such a spill did not exist on the date of sale. Indeed, Westinghouse could not have known in 1975 that a prior spill of TCE could give rise to environmental remediation because the laws that created such potential liability, namely CERCLA and the Spill Act, did not exist at the time. WCI’s citation of four anti-pollution state and township statutes in effect at the time of the Purchase Agreement, as well as the common law doctrine of nuisance, is unavailing, as none of the cited statutes indicate that TCE is a regulated substance, or that a spill of TCE could constitute a violation of any such statutes. We similarly reject WCI’s claim that § 9.2.1 of the Purchase Agreement imposes a “constructive knowledge” standard upon Westinghouse, in that Westinghouse should have known that the TCE spill was a fact or condition that would give rise to liability at the time of contracting, as WCI’s claim ignores the clear and unambiguous language of the Purchase Agreement. See Shifrin v. Forest City Enters., Inc., 64 Ohio St.3d 635, 597 N.E.2d 499, 501 (1992) (citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146, 150 (1978)) (stating that “[w]hen the terms in a contract are unambiguous, courts will not in effect create a new contract by finding an intent not expressed in the clear language employed by the parties”). Here, the language that Westinghouse represents “to the best of [its] knowledge and belief [there are no] existing facts or conditions which might give rise to any claim, litigation, [etc.],” requires more than a mere showing that Westinghouse should have known by virtue of the spill alone that liability might result from the spill. (J.A. at 131). Absent proof that Westinghouse knew of any contamination or knew that the spill itself could give rise to any existing environmental liabilities that might harm the business, Westinghouse did not breach the Purchase Agreement. WCI has not presented evidence that Westinghouse had any knowledge of the soil and groundwater contamination at the Edison facility, or proof that the TCE spill violated anti-pollution re-' quirements that were in effect at the time of the spill. Therefore, WCI has not made the requisite showing. B. Assumption of Liabilities Alternatively, WCI claims that the district court erroneously determined that the assumption of liabilities provision in the Purchase Agreement is sufficiently broad to transfer to WCI all environmental liability. WCI asserts, contrary to the district court’s conclusion, that the one-year grace period for which the parties contracted does not indicate that WCI and Westinghouse foresaw that liabilities arising after the grace period would remain with WCI. We disagree. The district court did not commit reversible error in concluding that WCI assumed liability for subsequently arising environmental liabilities. The Purchase Agreement’s assumption and liabilities provision, which addresses the allocation of potential future liabilities associated with the business, provides in pertinent part: 9.1 Assumption of Liabilities: Subject to Section 9.2 hereof, WCI hereby assumes, effective as of the Closing, the following liabilities and obligations of Westinghouse ... 9.1.5 All obligations and liabilities of the Business, contingent, or otherwise, which are not disclosed or known to Westinghouse on the Closing Date and are not discovered by WCI within a period of one year from the Closing Date. (J.A. at 153,154). Generally, parties may contract to shift CERCLA and other environmental liabilities by means of an assumption or indemnification agreement. See Olin Corp. v. Yeargin, Inc., 146 F.3d 398, 407 (6th Cir.1998) (citations omitted). This Court has recognized that a provision in an assumption agreement, “which contains broad language sufficient to indicate that the parties intended to include all liabilities, will include environmental liabilities as well even without specific reference to an environmental statute such as CERC-LA.” Id. A broad assumption of liabilities provision therefore transfers CERCLA liability to the purchaser of a business who agrees to the broad assumption. See id. We apply state law to determine whether a particular contract provision allocates responsibility for subsequently arising environmental liabilities. See id. (citing SmithKline Beecham Corp. v. Rohm & Haas Co., 89 F.3d 154, 157 (3rd Cir.1996)). While Ohio law dictates that anticipatory releases are neither unusual nor per se void as a matter of public policy, American Druggists’ Ins. Co. v. Equifax, Inc., 505 F.Supp. 66, 68 (S.D.Ohio 1980), Ohio courts have not addressed whether a pre-CERCLA assumption agreement can transfer CERCLA liability to the purchaser of a business. However, other courts confronted with the issue have determined that an agreement entered into prior to the passage of CERCLA can allocate CERCLA liabilities. For example, in Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10 (2d Cir.1993), the Second Circuit determined that a purchaser who agreed to “assume and ... indemnify [the seller] against all liabilities, obligations and indebtedness of [seller] related to the Aluminum Assets ... as they exist on the Closing Date or arise thereafter with respect to actions or failures to act occurring prior to the Closing Date” did in fact assume responsibility for all future arising environmental liabilities. Id. at 12. Moreover, the Third Circuit in Rohm & Haas, relying upon the Second Circuit’s decision in Consolidated Aluminum, determined that an indemnity provision which provided that the purchaser assume “all losses, liabilities and deficiencies” manifested the parties’ intent to allocate all present and future environmental liabilities to the purchaser. Rohm & Haas, 89 F.3d at 159-60. Similarly, the Third Circuit has concluded that where the purchaser of a business agreed to “assume all of the liabilities and obligations ... of whatsoever nature,” the contract language was sufficiently broad to encompass CERCLA liability, thereby allocating to the purchaser the responsibility for the cleanup of the contaminated site. See ALCOA v. Beazer East, Inc., 124 F.3d 551, 556 (3rd Cir.1997). Hence, when determining whether a pre-CERCLA assumption provision transfers responsibility for response costs to a purchaser, courts have found that the provision covers response costs if it is either specific enough to include CERCLA liability or general enough to include any and all environmental liability. See Rohm & Haas, 89 F.3d at 159; Consolidated Aluminum, 5 F.3d at 15-16. WCI’s argument that the assumption language in the Purchase Agreement did not transfer the environmental cleanup liability at the Edison facility to WCI is unpersuasive. By contract, WCI assumed “[a]ll obligations and liabilities of the Business, contingent, or otherwise, which are not disclosed or known to Westinghouse on the Closing Date and are not discovered by WCI within a period of one year from the Closing Date.” (J.A. at 154). By assuming “[a]ll obligations and liabilities of the Business, contingent, or otherwise,” WCI agreed to assume all potential unknown liabilities related to the business. (J.A. at 154). Thus, absent proof that Westinghouse had knowledge of the contamination or existing environmental liabilities, WCI is solely responsible for future liabilities that arise after the one-year grace period. In accordance with the district court’s decision, we find that the Purchase Agreement allocated to WCI the risk of CERCLA losses after the expiration of the one-year indemnification period. See Keywell Corp. v. Weinstein, 33 F.3d 159, 165-66 (2nd Cir.1994) (discussing liabilities under CERCLA after the expiration of a two-year grace period). Finally, WCI claims that the district court’s conclusion contradicts tenets of contract interpretation since indemnification agreements must be strictly construed against the indemnitee, particularly where the indemnitee’s mistakes cause the underlying liability. We disagree, as we must rely upon the unambiguous language in the Purchase Agreement which indicates that WCI agreed to assume these unknown environmental liabilities when it purchased Westinghouse’s business operations. Moreover, where, as here, the Purchase Agreement was entered into by sophisticated companies after arduous negotiations, we will give effect to the parties’ freely negotiated terms. See City of Toledo v. Beazer East, Inc., 103 F.3d 128, 1996 WL 683505, at *1 n. 5 (6th Cir.1996) (unpublished table decision) (citing Glaspell v. Ohio Edison Co., 29 Ohio St.3d 44, 505 N.E.2d 264, 265, 266 (1987)) (stating that the “general rule that clauses limiting liability of drafter are to be strictly construed need not apply when parties are sophisticated entities”); Consolidated Aluminum, 5 F.3d at 16 (noting that the court is not willing to ignore the broad inclusive language of agreements freely entered into by two sophisticated parties). C. Fraudulent Concealment As for WCI’s fraudulent concealment claim, WCI argues that there are genuine issues of material fact as to the existence of a “defect” and the “materiality” of the TCE spill that preclude the grant of summary judgment to Westinghouse. To prove fraudulent concealment in a real estate transaction, a purchaser must show detrimental reliance upon a material fact or defect not readily observable to the purchaser, which was deliberately concealed by the seller. See Black v. Cosentino, 117 Ohio App.3d 40, 689 N.E.2d 1001, 1002 (1996); Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68, 74 (1974). Contrary to WCI’s contention, we find that for nondisclosure to be deliberate, the seller clearly must have knowledge of the defect, that is, liability or contamination in this case. As stated previously, however, Westinghouse had no knowledge at the time of contracting that the Edison facility was contaminated as a result of the TCE spill, or that the TCE spill would subject the business to liability. Accordingly, the district court’s conclusions are not erroneous. IV. The final issue presented for review is whether the district court prematurely granted summary judgment to Westinghouse on WCI’s claims of misrepresentation, public nuisance, and strict liability for abnormally dangerous activity, without affording WCI opportunity to conduct necessary discovery. WCI claims that the district court’s Case Management Order expressly limited discovery to the primary liability issues, namely CERCLA, the Spill Act, and breach of contract, and expressly stayed discovery on its state common law claims until after resolution of the threshold liability issues. While WCI raises a colorable claim, we nonetheless decline review of this issue, as WCI’s claim is raised for the first time on appeal and is not preserved for appellate review. See Plott v. General Motors Corp., 71 F.3d 1190, 1195 (6th Cir.1995) (stating that this Court generally will not review a post-judgment claim asserting a need for discovery where the non-movant failed to advance such claim before the district court); see also Vance ex rel. v. United States, 90 F.3d 1145, 1149 (6th Cir.1996) (recognizing that while “summary judgment is improper if the non-movant is not afforded a sufficient opportunity for discovery,” it is the non-movant’s responsibility to inform the district court of the need for discovery, by filing an affidavit pursuant to Rule 56(f) of the Federal Rules of Civil Procedure or filing a motion requesting additional discovery). WCI’s failure to file a Rule 56(f) affidavit or motion for discovery in the district court, and failure to specify how additional time for discovery would have precluded the grant of summary judgment in favor of Westinghouse, is fatal to its claim for relief. See Klepper v. First Am. Bank, 916 F.2d 337, 343 (6th Cir.1990) (affirming grant of summary judgment despite insufficient discovery opportunity where non-movant never filed Rule 56(f) affidavit). Although the court stayed discovery on the common law claims, we observe that Westinghouse’s motion for summary judgment was filed after entry of the Case Management Order. Therefore, if WCI recognized that it could not oppose the motion for summary judgment without further discovery, then it should have notified the district court of its need for discovery. By opposing Westinghouse’s motion for sum-' mary judgment by briefing the merits of the claims while not filing a Rule 56(f) affidavit or motion for discovery in the district court, WCI evidenced its belief that further discovery was unnecessary to address the claims at issue. We therefore find unpersuasive WCI’s purported need for additional discovery now that the district court has granted summary judgment to Westinghouse, and in any event, this claim is not preserved for appellate review. V. We conclude that WCI assumed responsibility for subsequently arising environmental liabilities pursuant to the broad assumption of liabilities provision in the Purchase Agreement, and Westinghouse’s failure to disclose the TCE spill did not constitute a breach of contract or concealment of a material fact or defect. Further, we reject WCI’s contention that it was denied sufficient time for discovery on its claims of misrepresentation, public nuisance, and strict liability for abnormally dangerous activity, as this issue was not properly preserved for appeal. We therefore AFFIRM the district court’s decision. . CERCLA makes liable, among others, "any person who at the time of disposal of any hazardous substances owned or operated any facility at which hazardous substances were disposed of.” 42 U.S.C. § 9607(a)(2) (1994). . "The New Jersey Spill Act is the state's analog to CERCLA.... [T]he law under the Spill Act has developed along parallel lines to that of CERCLA." Stearns & Foster Bedding Co. v. Franklin Holding Corp., 947 F.Supp. 790, 810 (D.N.J.1996). . The choice of law provision in the Purchase Agreement provides that the Purchase Agreement is to be governed by Ohio law. . The Case Management Order, entered on September 1, 1994, provides, in pertinent part: 1. All discovery related to issues of Westinghouse’s alleged liability under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA”), 42 U.S.C. 9601 et seq., and the New Jersey Spill Act ("NJSA”), N.J. Slat. Ann. 58:10-23.11 et seq., and all discovery related to issues of either party’s alleged liability under the written Agreement, as defined in paragraph 20 of the Complaint, shall be completed by September 2, 1994. Notwithstanding the foregoing sentence, all other discovery, including discovery regarding allocation of liability under CERCLA and the NJSA, is hereby stayed pending the Court's ruling on the motion(s) for summary judgment filed pursuant to Paragraph 2 of this Stipulation and Order and stayed pending any settlement negotiations pursuant to Paragraph 7 of this Stipulation and Order. (J.A. at 100).

Olin Corp. v. Yeargin Inc.

KENNEDY, J., delivered the opinion of the court, in which MOORE, J., joined. CONTIE, J. (pp. 409-410), delivered a separate opinion concurring in part and dissenting in part. OPINION KENNEDY, Circuit Judge. Plaintiff, Olin Corporation, appeals from the District Court’s order granting partial summary judgment on behalf of the defendant, Yeargin Incorporated, in this action seeking indemnity and contribution for expenses and damages incurred by Olin Corporation following the exposure of Yeargin Incorporated employees to mercury, a hazardous substance. For the reasons set forth below, we AFFIRM, in part, and REVERSE, in part, the judgment of the District Court. I. Olin Corporation (“Olin”) owns and operates a facility in Charleston, Tennessee which produces chlorine utilizing the mercury-cell electrochemical process. On July 27, 1988, Olin contracted with Yeargin Corporation (‘Yeargin”) to conduct certain on-site construction and maintenance services. Among the projects to be completed by Yeargin on August 22-23,1988, was the replacement of a dilute caustic header pipe. During the replacement of the pipe on August 22, an undetermined amount of caustic soda and toxic mercury spilled onto the floor and onto the clothes and skin of the Yeargin employees when they applied an acetylene cutting torch to the header pipe. In addition, as a result of the heat of the torch and surrounding atmosphere, a mercury vapor developed which was inhaled by Yeargin employees. Upon leaving the premises on August 22, the Yeargin employees who were exposed to the mercury did not clean or decontaminate their bodies, clothes, tools or equipment. The workers therefore contaminated their motor vehicles and their homes and exposed their spouses to the mercury. As a result of their exposure to mercury, the Yeargin employees and their spouses filed several lawsuits against Olin seeking compensatory and punitive damages in the United States District Court for the Eastern District of Tennessee. The suits were consolidated and will be collectively referred to as the "Rayburn cases.” The Rayburn plaintiffs alleged they became physically ill due to their exposure to mercury and suffered such ailments as severe headaches, dizziness, nausea, cramps, urinary tract problems, pain in body joints, and memory loss; they sought recovery under such theories as negligence, assault and battery, strict liability, trespass and nuisance to real property, and loss of consortium. The Rayburn plaintiffs also alleged that, once they began to show symptoms of mercury poisoning, Olin intentionally mislead the Yeargin employees into believing they suffered merely from the flu. According to the Rayburn plaintiffs, Olin further attempted to . conceal its misconduct by falsely reporting to them that testing of their homes revealed they were free from mercury toxins. To recover for Olin’s alleged misrepresentations, the Rayburn plaintiffs asserted theories of negligent misrepresentation, fraudulent misrepresentation, intentional infliction of emotional distress, and outrageous conduct. The District Court entered orders on August 6, 1990, and December 16, 1992, granting partial summary judgment on behalf of Olin. In the August 6 order, the court held that Olin was the statutory employer of the Yeargin construction workers and therefore the plaintiffs’ tort claims against Olin were barred by the exclusive remedy provision of the Tennessee Workers’ Compensation Act, Tenn.Code Ann. § 50-6-108. In the December 16 order, the court dismissed the plaintiffs’ fraudulent misrepresentation claims, which were based on Olin’s conduct before and during the August project, because the plaintiffs had not brought forth sufficient probative evidence to support their claims. Once the two orders were entered, three sets of claims remained: (1) claims by the Year-gin employees and their wives for trespass and nuisance to real property; (2) claims of fraudulent misrepresentation concerning Olin’s conduct subsequent to the completion of the project; and (3) claims by the spouses for personal injuries they suffered as a result of their exposure to mercury in their homes. Prior to trial, Olin settled all of these claims. In addition to the sum paid as a result of the settlement with the Rayburn plaintiffs, Olin incurred costs in relation to three other legal matters. First, Olin paid various fines, attorney’s fees and expenses following the resolution of a complaint filed by the Commissioner of the Tennessee Department of Labor with the State of Tennessee Occupational Safety and Health Review Commission alleging violations of the Occupational Safety and Health Act, Tenn.Code. Ann. § 50-3-101 et seq. Second, Olin settled a claim with the United States Government in the amount of $1,000,000 following the government’s institution of a suit against Olin alleging violations of the Clean Air Act, 42 U.S.C. §§ 7401— 7479, and the National Emission Standards for Hazardous Air Pollutants, 40 C.F.R. Part 61, Subparts A and E. Lastly, Olin incurred additional attorney’s fees, fines, civil penalties and costs relating to an administrative order entered by the Environmental Protection Agency requiring Olin to reimburse government costs and to clean-up contaminated areas as a result of its violations of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-9615. To recover the costs it incurred, Olin filed the instant action against Yeargin seeking indemnity under its contract with Yeargin, contribution under CERCLA, 42 U.S.C. §§ 9607(e) and 9613(f), and contribution under the Tennessee Uniform Contribution Among Tortfeasors Act, Tenn.Code Ann. §§ 29-11-101. On May 28, 1993, Yeargin filed a motion for summary judgment and on March 14, 1994, Olin filed a motion seeking partial summary judgment on the ground that their contract required Yeargin to indemnify Olin for all costs it incurred in relation to the construction project so long as Yeargin was at least negligent in part and its negligence contributed to the damages caused by the mercury spill. On September 26, 1995, the District Court entered an order which granted in part and denied in part Yeargin’s motion for summary judgment and denied Olin’s motion for partial summary judgment. The court dismissed Olin’s contractual indemnity claim seeking reimbursement for the amount paid in settlement with the Rayburn plaintiffs and for its CERCLA and Occupational Safety and Health Act costs. The court also dismissed Olin’s claim for contribution under the Tennessee Uniform Contribution Among Tortfeasors Act, Tenn.Code Ann. §§ 29-11-101, and one of its claims for contribution under CERCLA; the court dismissed the claim under CERCLA seeking reimbursement for the Yeargin employees’ transport of mercury to their homes. Regarding Olin’s second theory for reimbursement under CERCLA, the court denied Yeargin’s motion for summary judgment on Olin’s claim that Yeargin was a transporter pursuant to CERCLA when its employees moved the header pipe from the cell room where it was removed to another location in Olin’s plant. The court also denied Yeargin’s motion for summary judgment on Olin’s breach of contract claim. The court’s rulings thus left two claims for adjudication. Thereafter, Olin filed a motion for interlocutory appeal and a motion to stay the proceedings. On the same date, Olin filed a motion to reconsider and a motion to certify several issues to the Tennessee Supreme Court. In the alternative, Olin sought dismissal of its remaining claims without prejudice in order to file an appeal as of right. In a detailed opinion, the District Court, on February 11, 1997, denied all of Olin’s motions. In order to pursue immediate appellate review, Olin voluntarily dismissed with prejudice the claims that remained viable following the District Court’s rulings. Olin is now before this Court seeking reversal of the District Court’s order granting partial summary judgment to Yeargin. II. Our standard of review of a grant of summary judgment is de novo; we use the same test used by the district court. See Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). We view the evidence in the light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment is proper if the evidence “ ‘show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to [a] judgment as a matter of law.”’ See Fed. R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988)(quoting Fed.R.Civ.P. 56(c)). III. A. Contractual Indemnity 1. Indemnity for Olin’s Negligence Olin’s contract with Yeargin contains an indemnification clause upon which Olin relies to recover from Yeargin the costs it incurred in connection with the suit brought by the Rayburn plaintiffs following the mercury spill. Article XXII of the contract reads as follows: (a) Contractor agrees to protect, indemnify and hold Owner harmless from any and all loss, damage, liability, claims, demands, costs, or suits ' of any nature whatsoever asserted by employees of Contractor or any third persons (including employees of Owner) for property damage, personal injury or death, or otherwise in each case arising out of, in connection with or incidental to Work performed under this Contract. This indemnity shall include, without limitation, costs, expenses, and attorneys’ fees occasioned by said loss, damage, liability, claims, demands or suits, as well as the full amount of any judgment rendered or compromise settlement made, plus court costs and interest. (b) This indemnity shall apply to the extent that said loss, damage, liability, claims, demands, costs, or suits are occasioned, brought about or caused, in whole or in part, by negligence of Contractor, its agent, directors, officers, employees or servants and regardless of whether such negligence be active or passive, primary or secondary. J.A. 236-37 (emphasis added). While both parties agree that subsection (a) requires Yeargin to indemnify Olin for all loss, damage, liability, claims, demands, costs, or suits of any nature whatsoever arising out of, in connection with or incidental to the work performed under the contract, Olin and Year-gin differ in the manner they construe the wording of subsection (b). Olin contends that subsection (b), read in combination with the “without limitation” language of the last sentence of subsection (a), conveys the parties’ intention that Yeargin would bear the costs of all losses even where the parties’ concurrent negligence caused the injury. In contrast, Yeargin contends that the phrase “to the extent” in subsection (b) limits the scope of Yeargin’s indemnity obligation. Olin, Yeargin argues, is entitled to indemnification only as to those costs incurred as a result of Yeargin’s fault. Olin counters that the phrase “to the extent,” read in conjunction with the “without limitation” language of subsection (a) and the phrase “in whole or in part” of subsection (b), simply limits the application of the indemnity agreement to those instances where Yeargin was at least concurrently negligent. In other words, Olin argues that the indemnity agreement requires Yeargin to indemnify Olin even for costs which are attributable to the fault of Olin. The purpose of subsection (b), Olin contends, is only to excuse Yeargin from indemnification in instances where Olin is the sole negligent party. The parties’ dispute over the manner in which to interpret the contract language is a question of law which we review de novo. See Blue Cross & Blue Shield Mut. v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.1997); First American Nat’l Bank v. Fidelity & Deposit Co., 5 F.3d 982, 984 (6th Cir.1993). Because the contract instructs that it will be interpreted in accordance with the “law of the place of the building”, we look to Tennessee caselaw to assist us in our interpretation of the indemnity agreement. Tennessee law permits a party to be contractually indemnified for its own negligence, see Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620, 625 (1964)(applying rule from Buckeye Cotton Oil Co. v. Louisville & N.R. Co., 24 F.2d 347, 348 (6th Cir.1928)); however, as we explained in Amerco Marketing Co. v. Myers, 494 F.2d 904 (6th Cir.1974), “[ujnder the law of Tennessee an indemnity agreement does not indemnify the indemnitee’s own negligence unless it is clear and unambiguous from the language of the contract that this was the intention of the parties.” Id. at 913 (citing Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (1964) and Brogdon v. Southern Ry. Co., 384 F.2d 220 (6th Cir.1967)); see also Eades v. Union Ry. Co., 396 F.2d 798, 799 (6th Cir.1968). Tennessee recognizes the “near[ ] ... universal rule that there can be no recovery where there was concurrent negligence of both indemnitor and indemnitee unless the indemnity contract .provides for indemnification in such case by ‘clear and unequivocal terms.’ ” Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620, 626 (1964); see also Kellogg Co. v. Sanitors, Inc., 496 S.W.2d 472, 473 (Tenn.1973); Elliott Crane Serv. Inc. v. H.G. Hill Stores, Inc., 840 S.W.2d 376, 380 (Tenn.Ct.App.1992); Summers Hardware and Supply Co. v. Steele, 794 S.W.2d 358, 361 (Tenn.Ct.App.1990), Based on this standard, we cannot ascribe to the indemnity agreement the meaning Olin proposes unless subsections (a) and (b) contain clear and unequivocal language supporting Olin’s interpretation. The District Court concluded that, under these strict rules of contract construction, Yeargin and Olin’s contract did not clearly and unequivocally express an intent to indemnify Olin for its own negligence. Quite to the contrary, the court held that the plain language of the indemnity agreement, specifically subsection (b), expressed the parties’ agreement that Olin would be entitled to indemnity only “to the extent” Olin incurred losses and damages attributable to Yeargin’s fault. While we arrive at the same conclu: sion as the District Court, we do so in a somewhat different manner. While we might be persuaded that the contractual language reflects a particular intent of the parties, we are certain that the contractual language less than clearly and unequivocally requires Yeargin to indemnify Olin for Olin’s negligence. We, therefore, are prohibited from assigning the meaning Olin suggests. The contract does not contain any express reference to Yeargin’s responsibilities in the event Olin’s negligence causes losses to Olin. The phrase “to the extent” could be interpreted to impose a percentage limitation on Yeargin’s duty to indemnify. Or, “to the extent,” read with the phrase “in whole or in part,” could be construed to mean that Yeargin’s duty is triggered only if it is at least partly at fault. Because the terms are not clear and unequivocal, we are not free to impose upon the parties our opinion as to the proper interpretation of the indemnity agreement. Had the parties intended that Yeargin would indemnify Olin for its own negligence, they could have so provided in a manner sufficient under Tennessee law. “As other courts have noted, if negligent acts of the indemnitee are intended to be included in the coverage, it would only take a few seconds for the attorneys [or parties] to use appropriate express language such as ‘including indemnitees’ acts of negligence.’ ” Wajtasiak v. Morgan County, 633 S.W.2d 488, 490 (Tenn.Ct.App.1982). Thus, because the language is susceptible to more than one interpretation, it is too equivocal to impose a duty of indemnification upon Yeargin for Olin’s negligence. 2. Rayburn Settlement The question to which we now turn is whether Olin, when it arrived at a settlement with the Rayburn plaintiffs, included within the agreement a payment for Yeargin’s negligence. If so, Olin would be entitled to indemnification in the amount it paid to cover Yeargin’s portion of fault. As aforementioned, Olin settled three claims with the Rayburn plaintiffs: (1) claims by the Yeargin employees and their wives for trespass and nuisance to real property; (2) claims of fraudulent misrepresentation concerning Olin’s conduct subsequent to the completion of the project; and (3) claims by the spouses for personal injuries they suffered as a result of their exposure to mercury in their homes. The District Court properly concluded that Olin may not be indemnified for its own fraudulent conduct. Regardless of any public policy reason for prohibiting indemnification for intentional conduct, it is clear that the alleged fraudulent conduct was committed by Olin, not Yeargin. Under our resolution of the indemnity agreement, Olin would, therefore, not be entitled to reimbursement on the fraudulent misrepresentation claim. Regarding the remaining two claims, personal injuries of the spouses and trespass/nuisanee, based on our interpretation of the indemnity agreement, Olin is not entitled to indemnity for any settlement monies paid to the Rayburn plaintiffs to the extent Olin’s loss was caused by Olin’s concurrent negligence. Instead, Yeargin is contractually obligated to indemnify Olin only in proportion to the percentage of negligence attributable to Yeargin. Olin submits that its settlement agreement with the Rayburn plaintiffs intended to cover Yeargin’s negligence and Olin should be accordingly reimbursed for amounts paid to settle the plaintiffs’ claims against Yeargin. We agree with the District Court’s resolution of this issue and hold that Yeargin does not owe any payments to Olin in connection with the settlement agreement. In addition, at the time Olin negotiated and paid the monetary settlements on the tort claims for property damage and personal injuries to the spouses to the Rayburn plaintiffs, Tennessee had abolished joint and several liability and adopted the doctrine of comparative negligence in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Thus, had the Rayburn plaintiffs proceeded to trial on the remaining claims, Olin could have raised Yeargin’s fault as an affirmative defense. Alternatively, Olin could have asserted a third-party complaint against Yeargin. In either case, the jury would have apportioned fault to Yeargin at trial because plaintiffs’ claims against Yeargin were not barred by workers’ compensation. See Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79 (Tenn.1996); see also Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252 (Tenn.1997). Instead, Olin reached a settlement with the Rayburn plaintiffs prior to trial. Because McIntyre adopted comparative negligence before Olin negotiated a settlement, Olin was only responsible for settling its portion of liability, just as a jury at trial would have assigned legal fault only in proportion to the percentage of fault attributable to Olin. Thus, any payment Olin made on behalf of Yeargin would have been voluntary and Yeargin is not obligated to indemnify Olin for a voluntary payment unless the payment was made with Yeargin’s knowledge and approval. See Feld Truck Leasing v. ABC Transnational Transp. Co., 681 S.W.2d 554, 555-56 (Tenn.Ct.App.1984). As Yeargin expressed no such knowledge or approval, Olin is not entitled to reimbursement. B. Tennessee Uniform Contribution Among Tortfeasors Act As an alternative to its contractual indemnity claim, Olin seeks a statutory contribution remedy for the settlement payments made to the Rayburn plaintiffs under the Tennessee Uniform Contribution Among Tortfeasors Act, §§ 29-11-101 to 29-11-106 (“UCATA”). Section 29-ll-102(b) of UCA-TA provides as follows: The right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tort-feasor is compelled to make contribution beyond his own pro rata share of the entire liability. Tenn.Code Ann. § 29-ll-102(b)i The Supreme Court of Tennessee in Bervoets v. Horde Ralls Pontiac-Olds, Inc., 891 S.W.2d 905 (Tenn.1994), explained that while the “pro rata” share approach of the UCATA was irreconcilable with the principle of comparative fault, McIntyre did not abolish the remedy of contribution. Id. at 907. Ber-voets clarified that, after McIntyre, actions for contribution under the UCATA are permissible but they will be tried “in accordance with the principles of comparative fault.” Id. at 908. In accordance with Bervoets, Olin seeks to recover the amount it paid in settlement that was in excess of Olin’s proportional share of fault. For the same reasons we rejected Olin’s claim for reimbursement under the indemnity agreement, Olin’s claim for contribution under the UCATA is equally unavailing. The right of contribution under UCA-TA only “exists in favor of a tort-feasor who has paid more than his [proportional share] of ... liability.” Tenn.Code Ann. § 29-11-102(b). Under the McIntyre decision, applicable at the time of settlement, Olin was only responsible for resolving claims attributable to its own fault. And, as noted by the District Court, there is no record evidence suggesting that the settlement agreement resolved both the plaintiffs’ claims against Olin and against Yeargin. As mandated by § 29-ll-102(d) of the Tennessee Code: A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable. Tenn.Code Ann. § 29-ll-102(d)(emphasis added). Olin contends that record evidence of a settlement extinguishing the claims against Yeargin is not required' because the statute of limitations had ran against any claims the Rayburn plaintiffs could have asserted against Yeargin. The plain language of § 29-ll-102(d) clearly rebuts Olin’s reading of the word “extinguished.” The statute requires that the claims be “extinguished by the settlement.” Tenn.Code Ann. § 29-11-102(d)(emphasis added). It is thus irrelevant whether the claims were “extinguished” because the statute of limitations expired by the time the plaintiffs elected to settle instead of pursue legal proceedings against Yeargin. Security Fire Protection Co., Inc. v. City of Ripley, 608 S.W.2d 874 (Tenn.Ct.App.1980) and City of Kingsport v. SCM Corp., 429 F.Supp. 96 (E.D.Tenn.1976), the two cases upon which Olin relies, do not suggest otherwise. Most notably, these two cases were decided before McIntyre and at the time joint and several liability governed in Tennessee. With this in mind, a close reading of these two cases simply reveals that, under the doctrine of joint and several liability, a defendant may seek contribution from a joint tortfeasor even though the plaintiff may not bring an action against the joint tortfeasor because the statute of limitations has expired. See, e.g., Security Fire Protection Co., 608 S.W.2d at 876-77; City of Kingsport, 429 F.Supp. at 99. These eases simply do not apply to post-McIntyre eases which cannot rely on the doctrine of joint and, several liability to recover from a joint tort-feasor. Therefore, the District Court properly dismissed Olin’s claim for contribution under the UCATA. C. Indemnity for Environmental Costs, Fines and Penalties In addition to seeking reimbursement for the monies paid through settlement with the Rayburn plaintiffs, Olin seeks contractual indemnification for the various costs, fines, and penalties it incurred in connection with its violations of federal and state environmental statutes such as CERCLA, the Clean Air Act, the National Emission Standards for Hazardous Air Pollutants, and OSHA In asserting this claim, Olin relies on the following provision of the indemnity agreement: (a) Contractor agrees to protect, indemnify and hold Owner harmless from any and all loss, damage, liability, claims, demands, costs, or suits of any nature whatsoever asserted by employees of Contractor or any third persons (including employees of Owner) for property damage, personal injury or death, or otherwise in each case arising out of, in connection with or incidental to Work performed under this Contract ... J.A. 236 (emphasis added). The emphasized language lists the types of losses for which Yeargin is contractually obligated to indemnify Olin and Olin maintains that the word “otherwise” is sufficiently broad to include losses under environmental statutes. The District Court disagreed because, in its view, the language was not sufficiently broad and all inclusive to cover environmental costs. Further, employing ejusdem generis, a tool of statutory and contractual construction, the court concluded that “or otherwise” was limited to torts of a similar kind and character to property damage, personal injury, and wrongful death. We begin our resolution of this issue with, the basic principle that parties may shift CERCLA and other environmental liabilities by means of an indemnity agreement. See 42 U.S.C. § 9607(e)(1); Niecko v. Emro Mktg. Co., 973 F.2d 1296, 1300-01 (6th Cir.1992). However, whether a particular agreement has shifted such liabilities is a question of state law. See SmithKline Beecham Corp. v. Rohm and Haas Co., 89 F.3d 154, 157 (3rd Cir.1996). Without Tennessee easelaw op point, we turn to a review of decisions of other courts to assist us. Generally, courts agree that a provision in an indemnity agreement, which contains broad language sufficient to indicate that the parties intended to include all liabilities, will include environmental liabilities as well even without specific reference to an environmental statute such as CERCLA. If an indemnity agreement does not include broad language but rather limits indemnity to specific types of claims, environmental costs will be excluded unless the agreement contains a clear and unambiguous reference to such costs. As noted by one court, this generally accepted rale is derived from the widely accepted principle that indemnity agreements which purport to indemnify the indemnitee for its own fault are to be strictly construed. See Purolator Prods. Corp. v. Allied-Signal, Inc., 772 F.Supp. 124, 131 (W.D.N.Y.1991). To illustrate, in Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10 (2nd Cir.1993), the United States Court of Appeals for the Second Circuit held that a provision obliging the indemnitor to indemnify the indemnitee for “all liabilities, obligations and indebtedness of Olin related to [its aluminum business] ... as they exist on the Closing Date or arise thereafter” was “sufficiently broad to encompass CERCLA liability.” Id. at 15-16. Similarly, the Fifth Circuit in Joslyn Manufacturing Co. v. Koppers Co., Inc., 40 F.3d 750 (5th Cir.1995), held that two leases were sufficiently broad so as to require indemnification where the leases read as follows: “Lessee forever shall., indemnify ... Carrier ... for ... any and all liability, judgment, outlays and expenses” and “[l]essee agrees to indemnity the Railway Company and save it harmless from any and all claims and expenses that may arise or that may be made for death, injury, loss or damage ...” Id. at 754. Lastly, in SmithKline Beecham Corp. v. Rohm and Haas Co., 89 F.3d 154 (3rd Cir.1996), the Third Circuit, citing to the Second Circuit’s decision in Olin, held that an indemnification clause requiring indemnification for “all losses, liabilities, damages or deficiencies “was sufficiently broad to express “the parties’ intent to allocate all present and future liabilities” including CERCLA response costs. Id. at 159-60; see also Purolator Prods. Corp. v. Allied-Signal, Inc., 772 F.Supp. 124, 131 (W.D.N.Y.1991)(“all liabilities and' obligations ... relating to or arising out of the Assets” sufficiently broad to include CERCLA indemnification); Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 624 N.E.2d 959, 966 (1993)(a promise to indemnify the indemnitee for “all liability” arising from the indemnitor’s services “broad enough to encompass liability under CERCLA”). Utilizing the principle that environmental costs will be read into the indemnity agreement if a reference is expressly made to such costs, the Eighth Circuit in Lion Oil Co., Inc. v. Tosco Corp., 90 F.3d 268 (8th Cir.1996), imposed an indemnification obligation on Tosco Corporation for environmental cleanup costs because the indemnity agreement specifically provided for costs relating to environmental harms in the following passage: Tosco hereby agrees to indemnify and hold harmless [Lion Oil] ... for any and all .’.. (3) response, remedial and clean-up costs, and (4) other costs or liabilities arising from any sudden or non-sudden harm to the environment or public health resulting from the actions of Tosco ... Id. at 269. The Seventh Circuit in Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321 (7th Cir.1994), similarly read into an agreement an indemnification obligation where the agreement specifically referred to “the maintenance of any action, claim or order concerning pollution or nuisance.” Id. at 327. Applying these rules to the indemnification agreement in the instant case, we find that, while there is no specific reference in the agreement to environmental liability, the language is sufficiently broad to encompass the environmental liabilities suffered here. In the contract, Yeargin agrees to “indemnify and hold Owner harmless from any and all loss, damage, liability, claims, demands, costs, or suits of any nature whatsoever asserted by employees of Contractor- or any third persons (including employees of Owner) for property damage, personal injury or death, or otherwise.” The various costs, fines, and penalties Olin- incurred in connection with its violations of federal and state environmental statutes such as CERCLA, the Clean Air Act, the National Emission Standards for Hazardous Air Pollutants, and OSHA arose because a hazardous substance caused damage to property and personal injuries to the Yeargin workers and their spouses. Thus, we need not resolve the parties’ dispute over whether the phrase “or otherwise” incorporates losses incurred under environmental statutes and regulations; because the violations of the environmental statues and regulations caused property damage and personal injuries, we find that the terms “property damage” and “personal injury” extend, as specified by the indemnity provision, to “all loss, damage, liability, claims, demands, costs, or suits of any nature whatsoever” which occur as a result of the project, including losses resulting from the release of hazardous substances. IV. For the foregoing reasons, the judgment of the District Court is AFFIRMED in all respects except for Olin’s claim for contractual indemnification for the various fines, costs and penalties it incurred in connection with its violation of various state and federal environmental statutes. The District Court’s order granting Yeargin’s motion for summary judgment on this claim is REVERSED and the action is remanded to the District Court for further proceedings in accordance with this opinion. . The employees were not wearing respirators. . The plaintiffs also alleged that Olin engaged in fraudulent conduct before and during the project. In these claims, the plaintiffs generally alleged Olin was aware that, if acetylene and propane torches were used to cut the mercury contaminate pipes, Yeargin workers would have to wear special air line respirators to prevent inhalation of mercury vapor. In light of this knowledge, plaintiffs alleged Olin made three fraudulent misrepresentations to Yeargin workers. First, the hot work permit issued by an Olin employee stated that respirators were not necessary. Second, the line breaking permit prepared by an Olin employee stated that a hot work permit was necessary but that breathing air was not required. Lastly, plaintiffs alleged that Olin's safety and supervisory employees, who were present when the pipes were cut, remained silent and conducted themselves in a manner that fraudulently induced the Yeargin workers into falsely believing the environmental conditions were safe for work without respirators and protective suits. . Olin also included a count for breach of contract alleging that it suffered damages as a result of Yeargin’s failure to. comply with certain federal and state regulations. . In response to the parties' joint motion for clarification, the District Court, on November 11, 1995, issued a ruling stating that, in litigating its remaining breach of contract claim, Olin could not circumvent the court's interpretation of the indemnity contract and recover damages from Yeargin for the money Olin paid in settlement to the Rayburn plaintiffs. . See Article XXXII, subsection (b) of the Contract. J.A. 240. . We thus also decline, as Olin urges, to rely on the insurance clause of the contract which requires Yeargin to maintain, at its expense, comprehensive general liability insurance. See Article XVIII of the Contract. Olin contends that Yeargin’s duty to obtain insurance suggests Year-gin must indemnify Olin for Olin's negligence. Because this insurance clause, like the indemnification clause, does not contain any express reference to such a duty, we reject Olin’s interpretation of this provision. Similarly, although in Exhibit B-II of the Contract, Olin agrees to reimburse Yeargin on a percentage basis for the costs of the workers’ compensation, unemployment and general umbrella liability insurance obtained, the clause imposes no duly upon Yeargin to reimburse Olin for Olin’s negligence. . We do not address Olin's assignment of error regarding the District Court’s refusal to consider extrinsic evidence in the form of Mr. J.K. Scog-gins's affidavit. In order to address this assignment of error, we would have to determine whether the contract language, regarding the extent of Yeargin’s duty to indemnify, is ambiguous. If it is ambiguous, we must conclude that the contract does not extend to Olin’s negligence under Tennessee caselaw, a conclusion which We have already reached. . As explained in the District Court’s order denying Olin's motion for reconsideration, Tennessee’s abolition of joint and several liability and adoption of comparative negligence in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992), does not dictate that Yeargin must indemnify Olin for its percentage of negligence. Rather, the failure to include unequivocal language in the indemnity agreement imposes the percentage method of indemnification. . We reject Olin’s claim that this is a "transitional case” such that the comparative negligence principles of McIntyre should not apply. A transitional case is one where the cause of action accrued or where a suit was commenced prior to May 4, 1992, the date of the McIntyre decision. See Owens v. Truckstops of America, 915 S.W.2d 420, 422 (Tenn.1996). While McIntyre instructed that comparative negligence would be applied to all cases tried or retried after May 4, 1992 and "all cases on appeal in which the comparative fault issue has been raised at an appropriate • stage in the litigation,” McIntyre, 833 S.W.2d at 58, Tennessee courts will not apply McIntyre to a transitional case if application of comparative negligence will "impose upon any party a substantial injustice.” Ridings, 914 S.W.2d at 80; see also Owens, 915 S.W.2d at 424. We conclude that this is not á transitional case because a cause of action for indemnity arises when the party seeking indemnification first suffers the loss for which he claims indemnity, not when the underlying tort, upon which the indemnity claim is based, occurs. See Kane v. Magna Mixer Co., 71 F.3d 555, 561 n. 1 (6th Cir.1995), cert. denied, 517 U.S. 1220, 116 S.Ct. 1848, 134 L.Ed. 2d 949 (1996); Security Fire Protection Co. v. City of Ripley, 608 S.W.2d 874, 877 (Tenn.Ct.App.1980)(" 'statute of limitations for an action for indemnity or contribution does not commence to run until there has been a payment or some loss suffered by a party seeking indemnification or contribution’ ”); Stiver Marketing, Inc. v. Performance Bus. Forms, Inc., No. 01-A-019108CH00276, 1991 WL 254564, at *4 (Tenn. Ct.App. Dec. 4, 1991)(unpublished disposition)("the right to sue for indemnity ... accrues only when payment has been legally made by the indemnitee. Thus, the right does not arise until the indemnitee has actually sustained or suffered loss; either through payment, settlement, or through the injured party's obtaining an enforceable judgment”). . In its final argument, Olin submits that the District Court erred in granting summary judgment to Yeargin on its claim for contribution under CERCLA based on Yeargin's liability as a. "transporter" pursuant to section 107(a)(4) of CERCLA, 42 U.S.C. § 9607(a)(4). Due to our conclusion that the indemnity agreement includes costs, fines, and penalties associated with environmental liability, we need not address Olin's alternative claim for contribution under CERCLA.

Olin Corp. v. Yeargin Inc.

CONTIE, Circuit Judge, concurring in part and dissenting in part. I concur in Parts I, II, III-A, and B of the majority opinion. I dissent from Part III-C for the following reasons: The district court concluded that the language of the contract was not sufficiently broad and all inclusive to cover CERCLA liability or damages for violating federal and state environmental and safety statutes because the plain language used by the parties for the scope of indemnification restricted claims asserted by Yeargin employees to “property damage, personal injury or death, or otherwise.” The district court noted that this language is “stereotypical of the kind of language normally used to indemnify against tort claims.” I agree with the district court. Although the phrase “or otherwise” is arguably ambiguous, the doctrine of ejusdem generis provides that where general words follow an enumeration of particular kinds or classes of persons or things, the general words refer to the same general nature or class as enumerated in the preceding specific words. See Asplundh Tree Expert Co. v. Bates, 71 F.3d 592, 598 (6th Cir.1995). In the present case, the indemnity clause contains the particular words “property damage, personal injury, or death,” which are torts, Thus, use of the general phrase, “or otherwise,” refers to other tort damages or claims for tort injuries similar to those listed before it. The majority chose to read the indemnification agreement broadly to include CERC-LA and other environmental liability because the violation of the environmental and safety statutes caused damage to property and personal injury to the Yeargin workers and their spouses. I disagree with this analysis. The indemnity agreement does not agree to indemnify the Owner for all claims or loss resulting from or caused by property damage, personal injury, or death, but instead for claims for property damage, personal injury or death, ie. for tort claims which are different from claims for violations of environmental statutes. Although the violation of the environmental statutes allegedly created property damage and personal injury, such a violation is not a claim for “property damage, personal injury, or death.” Because none of Olin’s claims arising from statutory liability were of the same class as the tort injuries specifically listed in the indemnification agreement, I believe the district court properly concluded that Yeargin’s indemnification obligation did not extend to these types of liabilities. Beazer East, Inc. v. The Mead Corp., 34 F.3d 206 (3rd Cir.1994) (parties failed to express the intent to indemnify for CERCLA liability with requisite clarity), cert. denied, 514 U.S. 1065, 115 S.Ct. 1696, 131 L.Ed.2d 559 (1995). See also Elf Atochem N. Am. v. United States, 866 F.Supp. 868 (E.D.Pa.1994); Mobay Corp. v. Allied-Signal, Inc., 761 F.Supp. 345, 358 (D.N.J.1991). Moreover, any ambiguity in the contract1 must be construed against the drafter, and indemnity agreements which purport to indemnify the indemnitee for its own fault must be strictly construed. See Purolator Products Corp. v. Allied-Signal, Inc., 772 F.Supp. 124, 131 (W.D.N.Y.1991). In the present case, the indemnity agreement significantly does not agree to indemnity for all claims or loss that “arise out of' or “are caused by” personal injury, property damage, or death, which is the way the majority is construing the agreement. I believe that rather than construing the agreement strictly, the majority’s interpretation broadens the agreement to impose environmental liability without the requisite clarity. For this reason, I would AFFIRM the district court in regard to indemnity for environmental costs, fines, and penalties, and would grant summary judgment to defendant Yeargin.

United States v. Bestfoods

Justice Souter delivered the opinion of the Court. The United States brought this action for the costs of cleaning up industrial waste generated by a chemical plant. The issue before us, under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as amended, 42 U. S. C. §9601 et seq., is whether a parent corporation that actively participated in, and exercised control over, the operations of a subsidiary may, without more, be held liable as an operator of a polluting facility owned or operated by the subsidiary. We answer no, unless the corporate veil may be pierced. But a corporate parent that actively participated in, and exercised control over, the operations of the facility itself may be held directly liable in its own right as an operator of the facility. I In 1980, CERCLA was enacted in response to the serious environmental and health risks posed by industrial pollution. See Exxon Corp. v. Hunt, 475 U. S. 355, 358-359 (1986). “As its name implies, CERCLA is a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites.” Key Tronic Corp. v. United States, 511 U. S. 809, 814 (1994). If it satisfies certain statutory conditions, the United States may, for instance, use the “Hazardous Substance Superfimd” to finance cleanup efforts, see 42 U. S. C. §§ 9601(11), 9604; 26 U. S. C. § 9507, which it may then replenish by suits brought under § 107 of the Act against, among others, “any person who at the time of disposal of any hazardous substance owned or operated any facility.” 42 U. S. C. § 9607(a)(2). So, those actually “responsible for any damage, environmental harm, or injury from chemical poisons [may be tagged with] the cost of their actions,” S. Rep. No. 96-848, p. 13 (1980). The term “person” is defined in CERCLA to include corporations and other business organizations, see 42 U. S. C. § 9601(21), and the term “facility” enjoys a broad and detailed definition as well, see §9601(9). The phrase “owner or operator” is defined only by tautology, however, as “any person owning or operating” a facility, § 9601(20)(A)(ii), and it is this bit of circularity that prompts our review. Cf. Exxon Corp. v. Hunt, supra, at 363 (CERCLA, “unfortunately, is not a model of legislative draftsmanship”). II In 1957, Ott Chemical Co. (Ott I) began manufacturing chemicals at a plant near Muskegon, Michigan, and its intentional and unintentional dumping of hazardous substances significantly polluted the soil and ground water at the site. In 1965, respondent CPC International Inc. incorporated a wholly owned subsidiary to buy Ott I’s assets in exchange for CPC stock. The new company, also dubbed Ott Chemical Co. (Ott II), continued chemical manufacturing at the site, and continued to pollute its surroundings. CPC kept the managers of Ott I, including its founder, president, and principal shareholder, Arnold Ott, on board as officers of Ott II. Arnold Ott and several other Ott II officers and directors were also given positions at CPC, and they performed duties for both corporations. In 1972, CPC sold Ott II to Story Chemical Company, which operated the Muskegon plant until its bankruptcy in 1977. Shortly thereafter, when respondent Michigan Department of Natural Resources (MDNR) examined the site for environmental damage, it found the land littered with thousands of leaking and even exploding drums of waste, and the soil and water saturated with noxious chemicals. MDNR sought a buyer for the property who would be willing to contribute toward its cleanup, and after extensive negotiations, respondent Aerojet-General Corp. arranged for transfer of the site from the Story bankruptcy trustee in 1977. Aerojet created a wholly owned California subsidiary, Cordova Chemical Company (Cordova/California), to purchase the property, and Cordova/California in turn created a wholly owned Michigan subsidiary, Cordova Chemical Company of Michigan (Cordova/Michigan), which manufactured chemicals at the site until 1986. By 1981, the federal Environmental Protection Agency had undertaken to see the site cleaned up, and its long-term remedial plan called for expenditures well into the tens of millions of dollars. To recover some of that money, the United States filed this action under §107 in 1989, naming five defendants as responsible parties: CPC, Aerojet, Cordova/California, Cordova/Miehigan, and Arnold Ott. (By that time, Ott I and Ott II were defunct.) After the parties (and MDNR) had launched a flurry of contribution claims, counterclaims, and cross-claims, the District Court consolidated the eases for trial in three phases: liability, remedy, and insurance coverage. So far, only the first phase has been completed; in 1991, the District Court held a 15-day bench trial on the issue of liability. Because the parties stipulated that the Muskegon plant was a “facility” within the meaning of 42 U. S. C. § 9601(9), that hazardous substances had been released at the facility, and that the United States had incurred reimbursable response costs to clean up the site, the trial focused on the issues of whether CPC and Aerojet, as the parent corporations of Ott II and the Cordova companies, had “owned or operated” the facility within the meaning of § 107(a)(2). The District Court said that operator liability may attach to a parent corporation both directly, when the parent itself operates the facility, and indirectly, when the corporate veil can be pierced under state law. See CPC Int’l, Inc. v. Aerojet-General Corp., 777 F. Supp. 549, 572 (WD Mich. 1991). The court explained that, while CERCLA imposes direct liability in situations in which the corporate veil cannot be pierced under traditional concepts of corporate law, “the statute and its legislative history do not suggest that CERCLA rejects entirely the crucial limits to liability that are inherent to corporate law.” Id., at 573. As the District Court put it: “a parent corporation is directly liable under section 107(a)(2) as an operator only when it has exerted power or influence over its subsidiary by actively participating in and exercising control over the subsidiary’s business during a period of disposal of hazardous waste. A parent’s actual participation in and control over a subsidiary’s functions and decision-making creates ‘operator’ liability under CERCLA; a parent’s mere oversight of a subsidiary’s business in a manner appropriate and consistent with the investment relationship between a parent and its wholly owned subsidiary does not.” Ibid. Applying that test to the facts of this ease, the District Court held both CPC and Aerojet liable under § 107(a)(2) as operators. As to CPC, the court found it particularly telling that CPC selected Ott IPs board of directors and populated its executive ranks with CPC officials, and that a CPC official, G. R. D. Williams, played a significant role in shaping Ott II’s environmental compliance policy. After a divided panel of the Court of Appeals for the Sixth Circuit reversed in part, United States v. Cordova/Michigan, 59 F. 3d 584, that court granted rehearing en banc and vacated the panel decision, 67 F. 3d 586 (1995). This time, 7 judges to 6, the court again reversed the District Court in part. 113 F. 3d 572 (1997). The majority remarked on the possibility that a parent company might be held directly liable as an operator of a facility owned by its subsidiary: “At least conceivably, a parent might independently operate the facility in the stead of its subsidiary; or, as a sort of joint venturer, actually operate the facility alongside its subsidiary.” Id., at 579. But the court refused to go any further and rejected the District Court’s analysis with the explanation: “[Wjhere a parent corporation is sought to be held fia-ble as an operator pursuant to 42 U. S. C. § 9607(a)(2) based upon the extent of its control of its subsidiary which owns the facility, the parent will be liable only when the requirements necessary to pierce the corporate veil [under state law] are met. In other words,... whether the parent will be liable as an operator depends upon whether the degree to which it controls its subsidiary and the extent and manner of its involvement with the facility, amount to the abuse of the corporate form that will warrant piercing the corporate veil and disregarding the separate corporate entities of .the parent and subsidiary.” Id., at 580. Applying Michigan veil-piercing law, the Court of Appeals decided that neither CPC nor Aerojet was liable for controlling the actions of its subsidiaries, since the parent and subsidiary corporations maintained separate personalities and the parents did not utilize the subsidiary corporate form to perpetrate fraud or subvert justice. We granted certiorari, 522 U. S. 1024 (1997), to resolve a conflict among the Circuits over the extent to which parent corporations may be held liable under CERCLA for operating facilities ostensibly under the control of their subsidiaries. We now vacate and remand. J — { H-1 H It is a general principle of corporate law deeply “ingrained in our economic and legal systems” that a parent corporation (so-called because of control through ownership of another corporation’s stock) is not liable for the acts of its subsidiaries. Douglas & Shanks, Insulation from Liability Through Subsidiary Corporations, 39 Yale L. J. 193 (1929) (hereinafter Douglas); see also, e. g., Buechner v. Farbenfabriken Bayer Aktiengesellschaft, 38 Del. Ch. 490, 494, 154 A. 2d 684, 687 (1959); Berkey v. Third Ave. R. Co., 244 N. Y. 84, 85, 155 N. E. 58 (1926) (Cardozo, J.); 1 W. Fletcher, Cyclopedia of Law of Private Corporations §33, p. 568 (rev. ed. 1990) (“Neither does the mere fact that there exists a parent-subsidiary relationship between two corporations make the one liable for the torts of its affiliate”); Horton, Liability of Corporation for Torts of Subsidiary, 7 A. L. R. 3d 1343, 1349 (1966) (“Ordinarily, a corporation which chooses to facilitate the operation of its business by employment of another corporation as a subsidiary will not be penalized by a judicial determination of liability for the legal obligations of the subsidiary”); cf. Anderson v. Abbott, 321 U. S. 349, 362 (1944) (“Limited liability is the rule, not the exception”); Burnet v. Clark, 287 U. S. 410, 415 (1932) (“A corporation and its stockholders are generally to be treated as separate entities”). Thus it is horn-book law that “the exercise of the ‘control’ which stock ownership gives to the stockholders ... will not create liability beyond the assets of the subsidiary. That ‘control’ includes the election of directors, the making of by-laws ... and the doing of all other acts incident to the legal status of stockholders. Nor will a duplication of some or all of the directors or executive officers be fatal.” Douglas 196 (footnotes omitted). Although this respect for corporate distinctions when the subsidiary is a polluter has been severely criticized in the literature, see, e. g., Note, Liability of Parent Corporations for Hazardous Waste Cleanup and Damages, 99 Harv. L. Rev. 986 (1986), nothing in CERCLA purports to reject this bedrock principle, and against this venerable common-law backdrop, the congressional silence is audible. Cf. Edmonds v. Compagnie Generale Transatlantique, 448 U. S. 256, 266-267 (1979) (“[Sjilenee is most eloquent, for sueh reticence while contemplating an important and controversial change in existing law is unlikely”). The Government has indeed made no claim that a corporate parent is liable as an owner or an operator under § 107 simply because its subsidiary is subject to liability for owning or operating a polluting facility. But there is an equally fundamental principle of corporate law, applicable to the parent-subsidiary relationship as well as generally, that the corporate veil may be pierced and the shareholder held liable for the corporation’s conduct when, inter alia, the corporate form would otherwise be misused to accomplish certain wrongful purposes, most notably fraud, on the shareholder’s behalf. See, e. g., Anderson v. Abbott, supra, at 362 (“[Tjhere are occasions when the limited liability sought to be obtained through the corporation will be qualified or denied”); Chicago, M. & St. P. R. Co. v. Minneapolis Civic and Commerce Assn., 247 U. S. 490, 501 (1918) (principles of corporate separateness “have been plainly and repeatedly held not applicable where stock ownership has been resorted to, not for the purpose of participating in the affairs of a corporation in the normal and usual manner, but for the purpose ... of controlling a subsidiary company so that it may be used as a mere agency or instrumentality of the owning company"); P. Blumberg, Law of Corporate Groups: Tort, Contract, and Other Common Law Problems in the Substantive Law of Parent and Subsidiary Corporations §§6.01-6.06 (1987 and 1996 Supp.) (discussing the law of veil piercing in the parent-subsidiary context). Nothing in CERCLA purports to rewrite this well-settled rule, either. CERCLA is thus like many another congressional enactment in giving no indication that “the entire corpus of state corporation law is to be replaced simply because a plaintiff’s cause of action is based upon a federal statute,” Burks v. Lasker, 441 U. S. 471, 478 (1979), and the failure of the statute to speak to a matter as fundamental as the liability implications of corporate ownership demands application of the rule that “[i]n order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law,” United States v. Texas, 507 U. S. 529, 534 (1993) (internal quotation marks omitted). The Court of Appeals was accordingly correct in holding that when (but only when) the corporate veil may be pierced, may a parent corporation foe charged with derivative CERCLA liability for its subsidiary’s actions. IV A If the Act rested liability entirely on ownership of a polluting facility, this opinion might end here; but CERCLA liability may turn on operation as well as ownership, and nothing in the statute’s terms bars a parent corporation from direct liability for its own actions in operating a facility owned by its subsidiary. As Justice (then-Professor) Douglas noted almost 70 years ago, derivative liability cases are to be distinguished from those in which “the alleged wrong can seemingly be traced to the parent through the conduit of its own personnel and management” and “the parent is directly a participant in the wrong complained of.” Douglas 207,208. In such instances, the parent is directly liable for its own actions. See H. Henn & J. Alexander, Laws of Corporations 347 (3d ed. 1983) (hereinafter Henn & Alexander) (“Apart from corporation law principles, a shareholder, whether a natural person or a corporation, may be liable on the ground that such shareholder’s activity resulted in the liability”). The fact that a corporate subsidiary happens to own a polluting facility operated by its parent does nothing, then, to displace the rule that the parent “corporation is [itself] responsible for the wrongs committed by its agents in the course of its business,” Mine Workers v. Coronado Coal Co., 259 U. S. 344, 395 (1922), and whereas the rules of veil piercing limit derivative liability for the actions of another corporation, CERCLA’s “operator” provision is concerned primarily with direct liability for one’s own actions. See, e.g., Sidney S. Arst Co. v. Pipefitters Welfare Ed. Fund, 25 F. 3d 417, 420 (CA7 1994) (“[T]he direct, personal liability provided by CERCLA is distinct from the derivative liability that results from piercing the corporate veil” (internal quotation marks omitted)). It is this direct liability that is properly seen as being at issue here. Under the plain language of the statute, any person who operates a polluting facility is directly liable for the costs of cleaning up the pollution. See 42 U. S. C. § 9607(a)(2). This is so regardless of whether that person is the facility’s owner, the owner’s parent corporation or business partner, or even a saboteur who sneaks into the facility at night to discharge its poisons out of malice. If any such act of operating a corporate subsidiary’s facility is done on behalf of a parent corporation, the existence of the parent-subsidiary relationship under state corporate law is simply irrelevant to the issue of direct liability. See Riverside Market Dev. Corp. v. International Bldg. Prods., Inc., 931 F. 2d 327, 330 (CA5) (“CERCLA prevents individuals from hiding behind the corporate shield when, as ‘operators,’ they themselves actually participate in the wrongful conduct prohibited by the Act”), cert. denied, 502 U. S. 1004 (1991); United States v. Kayser-Roth Corp., 910 F. 2d 24, 26 (CA1 1990) (“[A] person who is an operator of a facility is not protected from liability by the legal structure of ownership”). This much is easy to say: the difficulty comes in defining actions sufficient to constitute direct parental “operation.” Here of course we may again rue the uselessness of CERCLA’s definition of a facility’s “operator” as “any person ... operating” the facility, 42 U. S. C. § 9601(20)(A)(ii), which leaves us to do the best we can to give the term its “ordinary or natural meaning.” Bailey v. United States, 516 U. S. 137, 145 (1995) (internal quotation marks omitted). In a mechanical sense, to “operate” ordinarily means “[t]o control the functioning of; run: operate a sewing machine.” American Heritage Dictionary 1268 (3d ed. 1992); see also Webster’s New International Dictionary 1707 (2d ed. 1958) (“to work; as, to operate a machine”). And in the organizational sense more obviously intended by CERCLA, the word ordinarily means “[t]o conduct the affairs of; manage: operate a business.” American Heritage Dictionary, supra, at 1268; see also Webster’s New International Dictionary, supra, at 1707 (“to manage”). So, -under CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility. To sharpen the definition for purposes of CERCLA’s concern with environmental contamination, an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations. B With this understanding, we are satisfied that the Court of Appeals correctly rejected the District Court’s analysis of direct liability. But we also think that the appeals court erred in limiting direct liability under the statute to a parent’s sole or joint venture operation, so as to eliminate any possible finding that CPC is hable as an operator on the facts of this case. 1 By emphasizing that “CPC is directly hable under section 107(a)(2) as an operator because CPC actively participated in and exerted significant control over Ott II’s business and decision-making,” 777 F. Supp., at 574, the District Court apphed the “actual control” test of whether the parent “actually operated the business of its subsidiary,” id., at 573, as several Circuits have employed it, see, e. g., United States v. Kayser-Roth Corp., supra, at 27 (operator liability “requires active involvement in the affairs of the subsidiary”); Jacksonville Elec. Auth. v. Bernuth Corp., 996 F. 2d 1107, 1110 (CA11 1993) (parent is hable if it “actually exercised control over, or was otherwise intimately involved in the operations of, the [subsidiary] corporation immediately responsible for the operation of the faeihty” (internal quotation marks omitted)). The well-taken objection to the actual control test, however, is its fusion of direct and indirect habihty; the test is administered by asking a question about the relationship between the two corporations (an issue going to indirect liability) instead of a question about the parent’s interaction with the subsidiary’s faeihty (the source of any direct habihty). If, however, direct habihty for the parent’s operation of the faeihty is to be kept distinct from derivative habihty for the subsidiary’s own operation, the focus of the enquiry must necessarily be different under the two tests. “The question is not whether the parent operates the subsidiary, but rather whether it operates the facility, and that operation is evidenced by participation in the activities of the facility, not the subsidiary. Control of the subsidiary, if extensive enough, gives rise to indirect liability under piercing doctrine, not direct liability under the statutory language.” Oswald 269; see also Schiavone v. Pearce, 79 F. 3d 248, 254 (CA2 1996) (“Any liabilities [the parent] may have as an operator, then, stem directly from its control over the plant”). The District Court was therefore mistaken to rest its analysis on CPC’s relationship with Ott II, premising liability on little more than “CPC’s 100-percent ownership of Ott II” and “CPC’s active participation in, and at times majority control over, Ott II’s board of directors.” 777 F. Supp., at 575. The analysis should instead have rested on the relationship between CPC and the Muskegon facility itself. In addition to (and perhaps as a reflection of) the erroneous focus on the relationship between CPC and Ott II, even those findings of the District Court that might be taken to speak to the extent of CPC’s activity at the facility itself are flawed, for the District Court wrongly assumed that the actions of the joint officers and directors are necessarily attributable to CPC. The District Court emphasized the facts that CPC placed its own high-level officials on Ott II’s board of directors and in key management positions at Ott II, and that those individuals made major policy decisions and conducted day-to-day operations at the facility: “Although Ott II corporate officers set the day-to-day operating policies for the company without any need to obtain formal approval from CPC, CPC actively participated in this decision-making because high-ranking CPC officers served in Ott II management positions.” Id., at 559; see also id., at 575 (relying on “CPC’s involvement in major decision-making and day-today operations through CPC officials who served within Ott II management, including the positions of president and chief executive officer,” and on “the conduct of CPC officials with respect to Ott II affairs, particularly Arnold Ott”); id., at 558 (“CPC actively participated in, and at times controlled, the policy-making decisions of its subsidiary through its representation on the Ott II board of directors”); id., at 559 (“CPC also actively participated in and exerted control over day-to-day decision-making at Ott II through representation in the highest levels of the subsidiary’s management”). In imposing direct liability on these grounds, the District Court failed to recognize that “it is entirely appropriate for directors of a parent corporation to serve as directors of its subsidiary, and that fact alone may not serve to expose the parent corporation to liability for its subsidiary’s acts.” American Protein Corp. v. AB Volvo, 844 F. 2d 56, 57 (CA2), cert. denied, 488 U. S. 852 (1988); see also Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 31 F. 2d 265, 267 (CA2 1929) (L. Hand, J.) (“Control through the ownership of shares does not fuse the corporations, even when the directors are common to each”); Henn & Alexander 355 (noting that it is “normal” for a parent and subsidiary to “have identical directors and officers”). This recognition that the corporate personalities remain distinct has its corollary in the “well established principle [of corporate law] that directors and officers holding positions with a parent and its subsidiary can and do ‘change hats’ to represent the two corporations separately, despite their common ownership.” Lusk v. Foxmeyer Health Corp., 129 F. 3d 773, 779 (CA5 1997); see also Fisser v. International Bank, 282 F. 2d 231, 238 (CA2 1960). Since courts generally presume “that the directors are wearing their ‘subsidiary hats’ and'not their ‘parent hats’ when acting for the subsidiary,” P. Blumberg, Law of Corporate Groups: Procedural Problems in the Law of Parent and Subsidiary Corporations § 1.02.1, p. 12 (1983); see, e. g., United States v. Jon-T Chemicals, Inc., 768 F. 2d 686, 691 (CA5 1985), cert. denied, 475 U. S. 1014 (1986), it cannot be enough to establish liability here that dual officers and directors made policy decisions and supervised activities at the facility. The Government would have to show that, despite the general presumption to the contrary, the officers and directors were acting in their capacities as CPC officers and directors, and not as Ott II officers and directors, when they committed those acts. The District Court made no such enquiry here, however, disregarding entirely this time-honored common-law rule. In sum, the District Court’s focus on the relationship between parent and subsidiary (rather than parent and facility), combined with its automatic attribution of the actions of dual officers and directors to the corporate parent, erroneously, even if unintentionally, treated CERCLA as though it displaced or fundamentally altered common-law standards of limited liability. Indeed, if the evidence of common corporate personnel acting at management and directorial levels were enough to support a finding of a parent corporation’s direct operator liability under CERCLA, then the possibility of resort to veil piercing to establish indirect, derivative liability for the subsidiary’s violations would be academic. There would in essence be a relaxed, CERCLA-speeifie rule of derivative liability that would banish traditional standards and expectations from the law of CERCLA liability. But, as we have said, such a rule does not arise from congressional silence, and CERCLA’s silence is dispositive. 2 We accordingly agree with the Court of Appeals that a partieipation-and-control test looking to the parent’s supervision over the subsidiary, especially one that assumes that dual officers always act on behalf of the parent, cannot be used to identify operation of a facility resulting in direct parental liability. Nonetheless, a return to the ordinary meaning of the word “operate” in the organizational sense will indicate why we think that the Sixth Circuit stopped short when it confined its examples of direct parental operation to exclusive or joint ventures, and declined to find at least the possibility of direct operation by CPC in this case. In our enquiry into the meaning Congress presumably had in mind when it used the verb “to operate,” we recognized that the statute obviously meant something more than mere mechanical activation of pumps and valves, and must be read to contemplate “operation” as including the exercise of direction over the facility’s activities. See supra, at 66-67. The Court of Appeals recognized this by indicating that a parent can be held directly liable when the parent operates the facility in the stead of its subsidiary or alongside the subsidiary in some sort of a joint venture. See 113 F. 3d, at 579. We anticipated a further possibility above, however, when we observed that a dual officer or director might depart so far from the norms of parental influence exercised through dual offieeholding as to serve the parent, even when ostensibly acting on behalf of the subsidiary in operating the facility. See n. 13, supra. Yet another possibility, suggested by the facts of this case, is that an agent of the parent with no hat to wear but the parent’s hat might manage or direct activities at the facility. Identifying such an occurrence calls for line-drawing yet again, since the acts of direct operation that give rise to parental liability must necessarily be distinguished from the interference that stems from the normal relationship between parent and subsidiary. Again norms of corporate behavior (undisturbed by any CERCLA provision) are crucial reference points. Just as we may look to such norms in identifying the limits of the presumption that a dual officeholder acts in his ostensible capacity, so here we may refer to them in distinguishing a parental officer’s oversight of a subsidiary from such an officer’s control over the operation of the subsidiary’s facility, “[Ajctivities that involve the facility but which are consistent with the parent’s investor status, such as monitoring of the subsidiary’s performance, supervision of the subsidiary’s finance and capital budget decisions, and articulation of general policies and procedures, should not give rise to direct liability.” Oswald 282. The critical question is whether, in degree and detail, actions directed to the facility by an agent of the parent alone are eccentric under accepted norms of parental oversight of a subsidiary’s facility. There is, in fact, some evidence that CPC engaged in just this type and degree of activity at the Muskegon plant. The District Court’s opinion speaks of an agent of CPC alone who played a conspicuous part in dealing with the toxic risks emanating from the operation of the plant. G. R. D. Williams worked only for CPC; he was not an employee, officer, or director of Ott II, see Tr. of Oral Arg. 7, and thus, his actions were of necessity taken only on behalf of CPC. The District Court found that “CPC became directly involved in environmental and regulatory matters through the work of... Williams, CPC’s governmental and environmental affairs director. Williams ... became heavily involved in environmental issues at Ott II.” 777 F. Supp., at 561. He “actively participated in and exerted control over a variety of Ott II environmental matters,” ibid., and he “issued directives regarding Ott II’s responses to regulatory inquiries,” id., at 575. We think that these findings are enough to raise an issue of CPC’s operation of the facility through Williams’s actions, though we would draw no ultimate conclusion from these findings at this point. Not only would we be deciding in the first instance an issue on which the trial and appellate courts did not focus, but the very fact that the District Court did not see the ease as we do suggests that there may be still more to be known about Williams’s activities. Indeed, evén as the factual findings stand, the trial court offered little in the way of concrete detail for its conclusions about Williams’s role in Ott II’s environmental affairs, and the parties vigorously dispute the extent of Williams’s involvement. Prudence thus counsels us to remand, on the theory of direct operation set out here, for reevaluation of Williams’s role, and of the role of any other CPC agent who might be said to have had a part in operating the Muskegon facility. V The judgment of the Court of Appeals for the Sixth Circuit is vacated, and the ease is remanded with instructions to return it to the District Court for further proceedings consistent with this opinion. It is so ordered. “CERCLA . . . imposes the costs of the cleanup on those responsible for the contamination.” Pennsylvania v. Union Gas Co., 491 U. S. 1, 7 (1989). “The remedy that Congress felt it needed in CERCLA is sweeping; everyone who is potentially responsible for hazardous-waste contamination may be forced to contribute to the costs of cleanup.” Id., at 21 (plurality opinion of Brennan, J.). “The term ‘facility’ means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.” CPC has recently changed its name to Bestfoods. Consistently with the briefs and the opinions below, we use the name CPC herein. The powers and responsibilities of MDNR have since been transferred to the Michigan Department of Environmental Quality. Cordova/California and MDNR entered into a contract under which Cordova/California agreed to undertake certain cleanup actions, and MDNR agreed to share in the funding of those actions and to indemnify Cordova/California for various expenses. The Michigan Court of Appeals has held that this agreement requires MDNR to indemnify Aerojet and its Cordova subsidiaries for any GERCLA liability that they may incur in connection with their activities at the Muskegon facility. See Cordova Chemical Co. v. MDNR, 212 Mich. App. 144, 536 N. W. 2d 860 (1995), leave to appeal denied, 453 Mich. 901, 554 N. W. 2d 319 (1996). Arnold Ott settled out of court with the Government on the eve of trial. Unlike CPC, Aerojet does not base its defense in this Court on a claim that, absent unusual circumstances, a parent company can be held liable as an operator of a facility only by piercing the corporate veil. Rather, Aerojet denies liability by claiming that (I) neither it nor its subsidiaries disposed of hazardous substances during their operation of the facility, see Brief for Respondents Aerojet-General Corp. et al. 27-36, and (2) it is entitled to a third-party defense under § 107(b)(8) of CERCLA, 42 U. S. C. § 9607(b)(3), see Brief for Respondents Aerojet-General Corp. et al. 38-46. The Court of Appeals expressed some measure of agreement with Aerojet on these points and instructed the District Court to consider them on remand. See 113 F. 3d, at 577, 583. These issues are not before this Court. Compare United States v. Cordova/Michigan, 113 F. 3d 572, 580 (CA6 1997) (case below) (parent may be held liable for controlling affairs of subsidiary only when the corporate veil can be pierced), and Joslyn Mfg. Co. v. T. L. James & Co., 893 F. 2d 80, 82-83 (CA5 1990) (same), cert. denied, 498 U. S. 1108 (1991) (but cf. Riverside Market Dev. Corp. v. International Bldg. Prods., Inc., 931 F. 2d 327, 330 (CA5) (parent companies that actually participate in the wrongful conduct cannot hide behind the corporate veil, and can be held directly liable without veil piercing), cert. denied, 502 U. S. 1004 (1991)), with United States v. Kayser-Roth Corp., 910 F. 2d 24, 27 (CA1 1990) (parent actively involved in the affairs of its subsidiary may be held directly liable as an operator of the facility, regardless of whether the corporate veil can be pierced), cert. denied, 498 U.S. 1084 (1991), Schiavone v. Pearce, 79 F. 3d 248, 254-255 (CA2 1996) (same), Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F. 3d 1209, 1220-1225 (CA3 1993) (same), Jacksonville Elec. Auth. v. Bernuth Corp., 996 F. 2d 1107, 1110 (CA11 1993) (same), and Nurad, Inc. v. William E. Hooper & Sons Co., 966 F. 2d 837, 842 (CA4) (parent having authority to control subsidiary is liable as an operator, even if it did not exercise that authority), cert. denied, 506 U. S. 940 (1992). There is significant disagreement among courts and commentators over whether, in enforcing CERCLA’s indirect liability, courts should borrow state law, or instead apply a federal common law of veil piercing. Compare, e. g., 118 F. 3d, at 584-685 (Merritt, J., concurring in part and dissenting in part) (arguing that federal common law should apply), Lansford-Coaldale Joint Water Auth. v. Tonolli Gorp., 4 F. 3d, at 1225 (“[Given the federal interest in uniformity in the application of CERCLA, it is federal common law, and not state law, which governs when corporate veil-pierdng is justified under CERCLA”), and Aronovsky & Fuller, Liability of Parent Corporations for Hazardous Substance Releases under CERCLA, 24 U. S. F. L. Rev. 421, 455 (1990) (“CERCLA enforcement should not be hampered by subordination of its goals to varying state law rules of alter ego theory”), with, e. g., 113 F. 3d, at 580 (“Whether the circumstances in this case warrant a piercing of the corporate veil will be determined by state law”), and Dennis, Liability of Officers, Directors and Stockholders under CERCLA: The Case for Adopting State Law, 36 Will. L. Rev. 1367 (1991) (arguing that state law should apply). Cf. In re Acushnet River & New Bedford Harbor Proceedings, 675 F. Supp. 22, 33 (Mass. 1987) (noting that, since “federal common law draws upon state iaw for guidance,... the choice between state and federal [veil-piercing law] may in many cases present questions of academic interest, but little practical significance”). But c£ Note, Piercing the Corporate Law Veil: The Alter Ego Doctrine Under Federal Common Law, 95 Harv. L. Rev. 858 (1982) (arguing that federal common law need not mirror state law, because “federal common law should look to federal statutory policy rather than to state corporate law when deciding whether to pierce the corporate veil”). Since none of the parties challenges the Sixth Circuit’s holding that CPC and Aerojet incurred no derivative liability, the question is not presented in this case, and we do not address it further. Some courts and commentators have suggested that this indirect, veil-piercing approach can subject a parent corporation to liability only as an owner, and not as an operator. See, e.g., Lansford-Coaldale Joint Water Auth. v. Tonolli Corp., supra, at 1220; Oswald, Bifurcation of the Owner and Operator Analysis under CERCLA, 72 Wash. U. L. Q. 223,281-282 (1994) (hereinafter Oswald). We think it is otherwise, however. If a subsidiary that operates, but does not own, a facility is so pervasively controlled by its parent for a sufficiently improper purpose to warrant veil piercing, the parent may be held derivatively liable for the subsidiary’s acts as an operator. While this article was written together with Professor Shanks, the passages quoted in this opinion were written solely by Justice Douglas. See Douglas 193, n. *. See Oswald 257 (“There are . . . instances ... in which the parent has not sufficiently overstepped the bounds of corporate separateness to warrant piercing, yet is involved enough in the facility’s activities that it should be held liable as an operator. Imagine, for example, a parent who strictly observed corporate formalities, avoided intertwining officers and directors, and adequately capitalized its subsidiary, yet provided active, daily supervision and control over hazardous waste disposal activities of the subsidiary. Such a parent should not escape liability just because its activities do not justify a piercing of the subsidiary’s veü”). We do not attempt to recite the ways in which the Government could show that dual officers or directors were in fact acting on behalf of the parent. Here, it is prudent to say only that the presumption that an act is taken on behalf of the corporation for whom the officer claims to act is strongest when the act is perfectly consistent with the norms of corporate behavior, but wanes as the distance from those accepted norms approaches the point of action by a dual officer plainly contrary to the interests of the subsidiary yet nonetheless advantageous to the parent. There are some passages in the District Court's opinion that might suggest that, without reference to Williams, some of Ott IFs actions in operating the facility were in fact dictated by, and thus taken on behalf of, CPC. See, e. g., 777 F. Supp., at 561 (“CPC officials engaged in . . . missions to Ott II in which Ott II officials received instructions on how to improve and change”); id, at 559 (“CPC executives who were not Ott II board members also occasionally attended Ott II board meetings”). But nothing in the District Court’s findings of fact, as written, even comes dose to overcoming the presumption that Ott II offidals made their ded-sions and performed their acts as agents of Ott II. Indeed, the finding that "Ott II corporate officers set the day-to-day operating polides for the company without any need to obtain formal approval from CPC,” ibid., indicates just the opposite. Still, the Government is, of course, free on remand to point to any additional evidence, not dted by the District Court, that would tend to establish that Ott II’s decisionmakers acted on specific orders from CPC.

Truck Components Inc. v. Beatrice Co.

. EASTERBROOK, Circuit Judge. In 1983 Beatrice Company turned Brillion Iron Works, until then a division, into a wholly-owed subsidiary. In 1984 Beatrice spun off the subsidiary, selling the stock to a small group of investors, who in 1988 resold the stock to Truck Components Inc. (TCI). Brillion and TCI now demand that their predecessors in interest bear’ the costs of environmental cleanup at and near Brillion’s works in Wisconsin. They invoke § 107 of CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9607), § 7002 of RCRA (the Resource Conservation Recovery Act of 1976, 42 U.S.C. § 6972), and the common law of Wisconsin. Brillion has not incurred significant cleanup costs but sees them looming and wants someone else to foot the bill. The district court granted summary judgment for the defendants. To keep this opinion manageable, we omit the plenitudi-nous details that do not affect the analysis. Brillion believes that Beatrice must reimburse it for the costs of cleaning up emissions that preceded Brillion’s incorporation in January 1983, if not all that preceded the stock sale of December 31, 1984. Section 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2), imposes liability on “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of’. Beatrice fits that bill as the “owner” of the iron works until January 1983, and we shall assume without deciding that as a corporate parent it “operated” the facility until the end of 1984. (Whether the assumption is correct is the question before the Supreme Court in United States v. Bestfoods, No. 97-454, argued Mar. 24, 1998.) But Bullion is not a victim of Beatrice’s pollution; Brillion is the polluter. How can it recover for its own emissions? “Brillion” is just a name. The contracts that make up its business—and corporations are nothing but webs of contracts and related property rights—set the limits of its entitlements. When BeatUce incorporated Brillion in 1983, it contributed both the assets used to run a business and the accumulated liabilities of that business. The new corporation agreed to assume all of Bea-tUce’s obligations. That is to say, at its birth Brillion promised to be satisfied with the assets Beatrice placed in corporate solution, and not to seek anything more from Beatrice later. Alternatively one can understand the transaction as an obligation to indemnify Beatrice for any outlay BeatUce is called on to make, so the money comes full circle and can stay in Beatrice’s pocket rather thán take a pointless journey. Nothing in CERCLA, RCRA, or Wisconsin law says that corporations may disavow such promises. A corporation has no right against its incorporators to be constituted differently than it was, and the liability of equity investors (which Bea-tUce became in 1983) is limited to what they promise to contribute to the venture. Only real people have rights: thus the investors who bought Bullion’s stock from BeatUce may be able to show that the environmental liabilities were misrepresented, and strangers injured by emissions from Brillion’s land may be able to claim compensation from prior owners such as Beatrice, to overcome the possibility that a firm will try to dump environmental liability into an undercapital-ized offshoot. See In re CMC Heartland Partners, 966 F.2d 1143 (7th Cir.1992). A third party required to clean up Brillion’s site may be able to recover from BeatUce, for § 107(e)(1) of CERCLA, 42 U.S.C. § 9607(e)(1), forbids any contractual attempt by an owner or operator to assign its liability. But it adds that “[njothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this subsection.” In other words, Beatrice and Brillion could not agree that Bullion alone would be liable to third parties, but they could agree that Brillion will bear the full cost as between them. See also § 107(e)(2) and § 113(f), 42 U.S.C. §§ 9607(e)(2), 9613(f). Bullion must accept, the liabilities'that came with its assets and, unlike Frankenstein’s monster, may not turn on its creator. GNB Battery Technologies, Inc. v. Gould, Inc., 65 F.3d 615 (7th Cir.1995). Likewise with the investors who bought the stock from BeatUce. Suppose Beatrice contributed to Brillion $75 million in assets, encumbered by $50 million in anticipated liabilities. The initial investors would have paid $25 million - (the net value) for the stock. They could not turn around and sue Beatrice for $50 million to fund the cleanup; the price for the stock compensated them in advance for that obligation. If the law were clear that Beatrice had to pay, then perhaps it could have sold the stock for $75 million and written a check for $50 million to the investors later, but such a roundabout trans- ■ action would recreate the world in which the investors’ up-front outlay was $25 million, and they paid for the cleanup when the time came. No law of which we are aware prevents people from reaching that result directly, by a combination of a lower price for the stock and a transfer of pollution liabilities to the newly created corporation. Suppose the first generation of investors had a claim under the 1984 contract of sale. Claims related to a sale of stock ordinarily belong to the investors, not to the corporation, and therefore would have been passed on to TCI. But by one of those quirks that makes law interesting for some and a maze of paradoxes for others, Brillion turns out to own the claims of the first generation of investors. They organized a shell company to purchase the stock from Beatrice, and later merged Brillion (a Massachusetts corporation) into the shell (a Delaware corporation). The shell was the technical buyer of the stock from Beatrice; the investors owned the stock of the shell. Because the shell was the surviving corporation in the merger (the point of which was to change Brillion’s state of incorporation), Brillion itself owns the claims of the first generation of investors. To promote clarity, however, we treat these claims as owned by the investors personally, and therefore today owned by TCI. We shall return to a claim that Brillion may have in its own right against Karl F. Gabler, one of its managers. What rights, then, does the first group of investors have? They agreed with Beatrice that any claims arising out of the sale would be brought within one or two years (depending on the kind of claim). Contractual provisions of this kind are common and enforceable. See Taylor v. Western & Southern Life Insurance Co., 966 F.2d 1188, 1203-04 (7th Cir.1992); Cange v. Stotler & Co., 826 F.2d 581 (7th Cir.1987). This suit, which got under way in 1994, is eight (or nine) years too late. Courts sometimes refuse to enforce contractual periods so short that they would be equivalent to eliminating the right to sue for breach of contract, but Cange holds that a one-year period cannot be so classified. The statute of limitations applicable under the federal securities laws is one year (with a three-year statute of repose), see Lampf Plena Lipkind Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), so enforcement of a one-year contractual period is raightforward. A sidelong glance at the merits shows that delay is only one of many obstacles to Aintiffs’ success. The 1984 contract con-jffeis a promise by Beatrice to indemnify the new stockholders for any liability resulting from “loss of life, bodily injury or property damage which arise out of accidents or injury-causing incidents occurring prior to the Closing Date” (§ ll.l(b)(ii)). According to the investors, emissions during Brillion’s entire history before the closing date come within this language as “property damage”. Like the district court, we think it implausible to read this provision as overriding the 1983 contract by which Brillion agreed to assume all liabilities then .existing, or the other portions of the 1984 contract in which the new investors agreed to the sale on an as-is basis. This language in context seems designed to handle accidents that occurred between the date the contract was signed (and the price set) and the closing date, to allow an adjustment so that the effective price reflected the value of the firm when the stock changed hands. Cf. LHLC Corp. n. Cluett, Peabody & Co., 842 F.2d 928 (7th Cir.1988). That is why it refers to “accidents or injury-causing incidents”—sudden and abnormal events. Slow seepage into the ground, or employees’ exposure to airborn dust over the course of decades, cannot sensibly be called “accidents or injury-causing incidents occurring prior to the Closing Date”. Plaintiffs, do not identify any spill or other deviation from Brillion’s normal business operations between the date the contract was signed and the closing. We see no need to explore the many ways in which the words “accident” and “incident” may be understood in insurance law. In this contract, they serve the function of permitting a price adjustment as of the closing date. Plaintiffs want to use them for quite a different purpose, one wholly inappropriate to their context. What is more, the district court held that plaintiffs had not adequately developed contentions based on § ll.l(b)(ii), so forfeiture must be added to the list of shortcomings. (Forfeiture is a problem throughout. Plaintiffs’ appellate brief presents 14 issues, with up to 8 subsidiary issues per principal issue. Such a scattergun approach ensures that none of the arguments is properly developed.) Claims by TCI against the first group of investors founder for similar reasons. The 1988 contract set one year as the outer limit for suit, save for wilful breaches of any warranties or representations. A wilful breach, according to the contract, is “a claim based on a representation or warranty actually known by the Indemnifying Shareholder to be untrue and materially misleading”. The environmental warranties and representations, which appear in schedule 3.2(s) of the 1988 contract, are limited to events after 1984 (that is, to events that took place while the initial investors controlled Brillion), and the district court concluded that there had been no wilful misrepresentations relating to post-1984 events. TCI carefully investigated the state of the business as of 1988 and knew exactly what it was buying. Nothing else need be added to the district court’s treatment of TCI’s claims against the first group of investors. Karl F. Gabler, the president of Bril-lion from January 1977 until his retirement in 1991, and one of its shareholders between 1985 and 1988, is potentially responsible under CERCLA as an “operator” of the Iron Works and a person who “arranged” for the disposal of its wastes. 42 U.S.C. § 9607(a)(1), (3). Gabler does not have 'the benefit of the contract allocating Beatrice’s liabilities to Brillion, for he may have liabilities independently of Beatrice. Like the district court, however, we need not decide whether Gabler is actually liable to Brillion or TCI, because he is the beneficiary of indemhity agreements that would make an award circular. In August 1987 Gabler agreed to stay on as president and a director, in exchange for which Brillion promised to indemnify Ga-bler for damages arising out of any acts that he took, or was. alleged to have taken, as officer or employee of the firm. Brillion undertook to advance the cost of defending against such a suit. When TCI bought the stock in 1988, it must have paid less on account of this indemnity agreement, which extinguished any potential claim against Ga-bler. But through this suit Brillion and TCI have tried to gain a right for Which they did not pay, by refusing to respect the agreement. Gabler asked for an advance of legal expenses, and Brillion refused, stating that Gabler engaged in misconduct by making a profit when he sold his shares to TCI in 1988, and that the claims made in the suit related to Gabler’s role as a shareholder rather than his .roles as employee and director. The former reason has nothing to do with the agreement, and the latter entitles Gabler to victory for the reasons we have already given. It is only by pursuing Gabler as an officer of Brillion that plaintiffs had any hope of success on the merits. So Brillion’s admission that it sued Gabler as a shareholder entitles him to victory on the merits and recovery of expenses under the corporate articles and bylaws, which provide for indemnification to the maximum extent allowed by state law — in this case, 8 Del. Stat. § 145, because Brillion is a Delaware corporation. See Nagy v. Riblet Products Corp., 79 F.3d 572, 576-77 (7th Cir.1996). Under § 145 an officer or director sued unsuccessfully by the firm recovers defense expenses as of course. Gabler meets the statutory description even though Brillion maintains that it sued him qua investor rather than qua director. According to the plaintiffs, the federal courts lack jurisdiction to enforce the 1987 agreement and the corporate bylaws. A 1994 amendment to 8 Del. Stat. § 145(k) provides that “[t]he Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.” Now § 145(k) is irrelevant on its own terms: this “action” was brought by Brillion under CERCLA and is squarely within federal jurisdiction; indemnity came into the picture only as a defense and counterclaim. There is a deeper problem, too. No state may prevent a federal court from exercising jurisdiction created by Congress. Beach v. Owens-Corning Fiberglas Corp., 728 F.2d 407, 409 (7th Cir.1984); Markham v. Newport News, 292 F.2d 711 (4th Cir.1961). Cf. General Atomic Co. v. Fetter, 434 U.S. 12, 98 S.Ct. 76, 54 L.Ed.2d 199 (1977); M’Kim v. Voorhies, 11 U.S. (7 Crunch) 279, 3 L.Ed. 342 (1812). Whether east as a defense or as a compulsory counterclaim, arguments based on the 1987 agreement and corporate bylaws are within the subject-matter jurisdiction of the federal courts. Nor do we suppose for one second that Delaware set out to contract the scope of federal jurisdiction. Section 145(k) allocates jurisdiction among Delaware courts. Delaware maintains separate systems of courts in law and equity. Claims based on corporate arrangements go to the Court of Chancery rather than to the law courts, where other contracts are litigated. Such an intra-state allocation has no effect on federal litigation, which merged law and equity long ago. See NBD Bank, N.A. v. Bennett, 67 F.3d 629, 634 (7th Cir.1995). This “jurisdictional” argument occupies less than one page of plaintiffs’ brief, and plaintiffs cite nary a case (from either Delaware or the federal courts) for the proposition that a state may, or that § 145(k) tries to, prevent a federal court from exercising the jurisdiction created by Congress. It is an example of the blunderbuss approach to appellate advocacy on which we have already remarked, and we cover this point only because federal courts have a special responsibility to respect the limits of their jurisdiction. None of appellants’ remaining contentions (many raised for the first time on appeal, and hence forfeited) requires discussion. Affirmed

AL Tech Specialty Steel Corp. v. Allegheny International Credit Corp.

OPINION OF THE COURT ALITO, Circuit Judge: This is an appeal from a district court order affirming the bankruptcy court’s disal-lowance of AL Tech Specialty Steel Corporation’s (“AL Tech”) claim against Allegheny International, Inc. (“Allegheny International”) in Allegheny International’s Chapter 11 proceeding. AL Tech’s claim was based on certain environmental liabilities, under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and the New York Oil Spill Act, at two steel plants that it purchased from Allegheny International’s corporate predecessor in 1976. The bankruptcy court held that AL Tech’s claim was not barred by either § 502(c) or § 502(e)(1)(B) of the Bankruptcy Code, 11 U.S.C. §§ 502(c), (e)(1)(B), and it estimated the total remediation cost at the two plants for which Allegheny International might share responsibility at $12,792,-000. The bankruptcy court also ruled that Allegheny International’s equitable share of AL Tech’s federal liabilities was zero, primarily because of a dollar-for-dollar discount taken off the purchase price by the current owner of AL Tech’s stock in 1989. It further held that the New York statute created a private right of action but that any action that AL Tech could bring against Allegheny International under the New York statute was time-barred. The district court affirmed the bankruptcy court’s order in all respects. We conclude that there' was insufficient evidence before the bankruptcy court to support the finding of a dollar-for-dollar discount in the 1989 purchase of AL Tech by its current corporate parent and that any discount that may have been given accrued to the benefit of AL Tech’s parent and not to AL Tech. We therefore reverse the order of the district court as it relates to Allegheny International’s equitable share of AL Tech’s federal environmental liabilities. We also conclude that the bankruptcy court applied the wrong limitations period in assessing the portion of AL Tech’s claim that relied on the New York statute. However, in light of a 1995 decision by the New York Court of Appeals on the availability of a private right of action under the New York statute, we remand that issue for application of the holding of that decision to the present case. We affirm the order of the district court as it relates to §§ 502(c) and 502(e)(1)(B) and the bankruptcy court’s estimation of remediation costs to be allocated between AL Tech and Allegheny International. I. . The factual and procedural history of this case may be summarized as follows. AL Tech bought two steel plants'in Dunkirk and Watervliet, New York, from Allegheny International’s predecessor, Allegheny Ludlum Industries (“Allegheny Ludlum”), in 1976. (Allegheny Ludlum had owned and operated the plants since 1937.) Since then, AL Tech’s stock has been sold three times: in 1981, to GATX' Corporation; in 1986, to Rio Algom, Inc. and Rio Algom Limited (collectively “Rio Algom”); and most- recently (in 1989) to Sammi Steel Company, Limited (“Sammi”). Environmental assessments of the two plants performed in the mid- and late 1980s revealed numerous areas of contamination with oil, polychlorinated biphenyls (“PCBs”), and other hazardous substances that' would require costly remediation in order to come into compliance with applicable environmental statutes and regulations. After Allegheny International filed a bankruptcy petition in 1988, AL Tech filed a timely proof of claim, alleging that Allegheny International was liable for a share of the incurred, contingent, and unliquidated response costs required to remediate the contamination at the two plants. The bankruptcy court initially denied the claim, but its decision was reversed by the district court, In re Allegheny Int'l, Inc., 126 B.R. 919 (W.D.Pa.1991), and a panel of this court affirmed by judgment order, Allegheny Int'l, Inc. v. AL Tech Specialty Steel Corp., 950 F.2d 721 (3d Cir.1991) (table). The case was remanded to the bankruptcy court for a trial to allow for estimation and allocation of AL Tech’s claim. On the basis of evidence presented at that 1992 trial, the bankruptcy court (1) estimated the allowable liabilities at $12,792,000, (2) found that Sammi had received a $22 million discount (3) held, primarily for that reason, that Allegheny International’s equitable share of the cleanup costs was zero, and (4) held that AL Tech’s Oil Spill Act claim was time-barred by the applicable limitations period. In re Allegheny Int'l, Inc., 158 B.R. 361 (Bankr.W.D.Pa.1993). The district court affirmed the bankruptcy court’s order in its entirety. AL Tech Specialty Steel Corp. v. Allegheny Int'l, Inc., No. 93-1445 (W.D. Pa. June 27, 1995). This appeal followed. On appeal, AL Tech argues that there was no discount; that if there was one, it was received by Sammi, not AL Tech; that the bankruptcy court abused its discretion in focusing on only one equitable factor when it concluded that Allegheny International’s equitable share was zero; that the bankruptcy court erred in finding that AL Tech failed to prove that Allegheny International was responsible for any of the PCB contamination at-one of the contaminated sites, Willowbrook Pond; that the-bankruptcy court underestimated response costs at Willowbrook Pond (at $1.3 million, versus AL Tech’s estimate of approximately $14 million); and that the bankruptcy court applied the wrong limitations period and used the wrong triggering event in holding AL Tech’s Oil Spill Act claim to be time-barred. Allegheny International disagrees on every point and raises two independent grounds for affirming the district court: first, that AL Tech’s claim is barred by Bankruptcy Code § 502(e)(1)(B) because it is a contingent co-liability to the government, rather than a direct claim against Allegheny International; and second, that it should be disallowed pursuant to Bankruptcy Code § 502(c) because AL Tech has not taken sufficient steps to remove the contingencies (i.e., has not done enough to assess and clean up the contamination since 1976). We address Allegheny International’s arguments first and then turn to AL Tech’s arguments. II. Section 502(e)(1)(B) of the Bankruptcy Code provides: (e)(1) ... [T]he court shall disallow any claim for reimbursement or contribution of an entity that is liable with the debtor on or has secured, the claim of a creditor, to the extent that— (B) such claim for reimbursement or contribution is contingent as of the time of allowance or disallowance of such claim for reimbursement or contribution. 11 U.S.C. §§ 502(e)(1), (e)(1)(B). Allegheny International argues that § 502(e)(1)(B) bars AL Tech’s claim. The bankruptcy court originally agreed with Allegheny International, but in its 1991 decision, the district court held that this section barred only contingent claims on which the claimant and the debtor are co-liable to a third party and that to the extent that AL Tech’s claim against Allegheny International was based on CERCLA, 42 U.S.C. §§ 9601 et seq., it was not excluded because it was a direct claim against Allegheny International. 126 B.R. at 923-24. This court affirmed the district court’s order by judgment order. 950 F.2d 721 (3d Cir.1991) (table). On remand, the bankruptcy court considered itself bound by the district court’s 1991 decision under the “law of the case” doctrine, and it thus declined Allegheny International’s invitation to revisit the issue in light of two 1992 bankruptcy court decisions, In re Cottonwood Canyon Land Co., 146 B.R. 992 (Bankr.D.Colo.1992), and In re Eagle-Picher Indus., Inc., 144 B.R. 765 (Bankr.S.D.Ohio 1992), aff'd, 164 B.R. 265 (S.D.Ohio 1994). 158 B.R. at 367. In this appeal, Allegheny International urges us to reexamine the question whether AL Tech’s claim is barred by § 502(e)(1)(B), but under the law of the case doctrine, we believe that it would be inappropriate for us to do so. Under the law of the case doctrine, an appellate court should generally decline to reconsider a question that was decided in a prior appeal. See 18 Charles A. Wright, et al., Federal Practice and Procedure § 4478, at 788 (1981 & 1996 Supp.). “The doctrine is not a jurisdictional limitation; rather, it ‘merely expresses the practice of courts generally to refuse to reopen what has been decided.’” Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131, 1134 (D.C.Cir.1994) (quoting Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)). Accordingly, it is appropriate.for an appellate court to reconsider a decision made in an earlier appeal in exceptional circumstances, such as where there has been an intervening change in the law, where new evidence has become available, or where reconsideration is necessary to prevent clear error or a manifest injustice. 18 Charles A. Wright, et al., supra, § 4478, at 790. In this case, the panel that heard the prior appeal necessarily decided that AL Tech’s claim was not barred by § 502(e)(1)(B). The law of the case doctrine applies to this decision even though it was rendered by judgment order because that doctrine “applies both to issues expressly decided by a court in prior rulings and to issues decided by necessary implication.” Bolden v. SEPTA, 21 F.3d 29, 31 (3d Cir.1994); see also United States v. Local 560 (I.B.T.), 974 F.2d 315, 329-30 (3d Cir.1992) (applying doctrine to judgment order). Moreover, we do not believe that there are exceptional circumstances here that make it appropriate to reconsider the prior panel’s decision. While Allegheny International points to two intervening bankruptcy court decisions that disagree with the district court’s decision in this case, those decisions do not represent the type of authority necessary to invoke the exception that applies when there has been an intervening change in the law. Nor do those decisions convince us that a refusal to reconsider the issue would amount to clear error or a manifest injustice. We likewise reject Allegheny International’s argument that this court’s opinion in In re Penn Cent. Transp. Co., 944 F.2d 164 (3d Cir.1991), cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992), represents an intervening change in the law sufficient to relax the usual strictures of the law of the case doctrine. There are two problems with Allegheny International’s argument. First, while the decision in Penn Central came after the district court’s 1991 decision, it was handed down more than two months before the filing of judgment order by which this court affirmed the district court’s order. Second, the Penn Central decision did not directly address the issue at hand but rather concerned the government’s ability to assert CERCLA claims against a reorganized debtor where the consummation order, which protected the reorganized debt- or against lawsuits based on the debtor’s activities, predated the enactment of CERC-LA. Accordingly, we believe that it is inappropriate in this case to reconsider the merits of Allegheny International’s § 502(e)(1)(B) argument. Allegheny International also argues that § 502(c) of the Bankruptcy Code precludes estimation of AL Tech’s claim because AL Tech has not- taken sufficient steps to remove the contingencies in its claim, i.e., has not done enough to assess and remediate the various contamination problems at its plants. We agree with the district court that this argument must fail. The cases that Allegheny International cités do not support its position. All three cases, Kessler v. Jefferson Storage Corp., 125 F.2d 108 (6th Cir.1941), In re Hot Springs Broadcasting, Inc., 210 F.Supp. 533 (W.D.Ark.1962), and In re KDI Corp., 119 B.R. 594 (Bankr.S.D.Ohio 1990), concern § 57(d) of the Bankruptcy Act of 1898, which provided that unliquidated claims were not to be allowed where liquidation would unduly delay the administration of the estate. Thus, a claimant had the burden of liquidating its claim as a condition precedent to its allowance. By contrast, § 502(c) of the Bankruptcy Code specifically provides for estimation, for purposes of allowance, of such unliquidated claims. The three cases are also factually distinguishable from the present ease; for instance, the claimant in KDI Corp. was denied permission to amend a claim filed 12 years earlier, after it had waited eight years before even seeking permission to amend. As the bankruptcy court noted, the law does not require that all contingencies be removed, and AL Tech has taken some steps to remove the contingencies in its claim. III. AL Tech’s principal arguments on appeal concern the bankruptcy court’s determination of Allegheny International’s equitable share of AL Tech’s allowable CERCLA liabilities. After estimating AL Tech’s response costs to total $12,792,000, the bankruptcy court proceeded to determine Allegheny International’s equitable share of those costs pursuant to § 113(f) of CERCLA, which authorizes a court to allocate response costs among responsible parties “using such equitable factors as [it] determines are appropriate.” 42 U.S.C. § 9613(f). The court considered a number of factors, but its ultimate conclusion — that Allegheny International’s equitable share was zero — was based on its findings that Sammi was fully aware of AL Tech’s future environmental liabilities and that, as a result, Sammi “discounted the purchase price dollar for dollar until the total purchase price was $1.00” and thus “held no real expectation that [Allegheny International] would pay for any portion of the remediation costs.” 158 B.R. at 383. AL Tech argues that there is no record evidence, let alone sufficient evidence, to support such findings and that, even if there were such a discount, the beneficiary of that discount was not AL Tech, the claimant in this case, but Sammi. With respect to this issue, the following facts are undisputed or at least beyond dispute under a clearly erroneous standard. Sammi was aware of $22 million in environmental liabilities on the part of AL Tech when it purchased AL Tech’s stock in 1989. An agreement among Rio Algom, Sammi, and AL Tech provided for an adjustment to the purchase price in the event of changes in AL Tech’s net worth. At the time of the sale, AL Tech and Sammi “accrued” $22 million m expenses to cover future environmental liabilities; these were , charged against sales during the first seven months of 1989. This substantially reduced the net worth of AL Tech, and after litigation and arbitration over the propriety of this accounting procedure, Rio Algom was required to pay Sammi in excess of $5 million to assume ownership of AL Tech.- Of this amount, $2.4 million was awarded to Sammi to account for the increased environmental liabilities. AL Tech argues that there was insufficient evidence to show that Sammi reduced the sale price dollar for dollar to account for the $22 million in liabilities of which it was aware at the time of the transaction. Allegheny International relies on the testimony of two officers of AL Tech: Ronald Hansen, the chief financial officer, and James Mintun, the chief executive officer. Both Hansen and Mintun testified that the environmental liabilities reduced AL Tech’s value and reduced the purchase price, A. 301, 303, 325-27, and Hansen testified that these liabilities brought the purchase price down “[a]pproximately dollar for dollar.” A. 327. However, Hansen also testified that he had “absolutely no id.ea whatsoever how [the purchase price] was arrived at,” A. 335, and had not come to know the reason for the one dollar purchase price, A. 322, and Mintun likewise testified that, he had -no knowledge of how the price was arrived at. A .398. Mintun also testified that neither he nor Hansen participated in any of the discussions concerning the price to be paid for AL Tech, A 398-99, and Hansen testified that he had no involvement in determining what the purchase price would be. A. 323; see also A. 335 (Hansen testifying that he “[did] not know specifically what Sammi paid in fact for AL Tech or what was going through their mind and how they arrived at that”). Aso of some relevance is the fact that the agreement for the sale of AL Tech to Sammi makes reference to the proof of claim that AL Tech had filed against Allegheny International. A. 1415. Allegheny International points out that this claim was not identified as an asset on AL Tech’s balance sheets. In addition, the schedule of the sale agreement in which it appears seems designed to disclose pending or threatened litigation that might result in judgments against AL Tech. See A. 1331. Still, on the basis of the sale agreement, it is clear that Sammi was aware of the existence of AL Tech’s claim against Allegheny International. A reduction in the purchase price of a facility is certainly a valid factor to be considered in allocating CERCLA response costs among responsible parties, see, e.g., Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 90 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 837, 102 L.Ed.2d 969 (1989), and the amount of the discount is, of course, important, id. On the record before the bankruptcy court, however, we do not thmk that there was sufficient evidence to support a finding that the discount received by Sammi equalled $22 million. The testimony of Hansen and Mintun reflects, at best, informed speculation as to the existence and magnitude of any discount in the price paid by Sammi for AL Tech’s stock. An even more fundamental issue raised by AL Tech is whether any discount received by Sammi in its purchase of AL Tech from Rio Agom should be reflected in a dispute that involves neither Sammi nor Rio Agom, but rather AL Tech and Allegheny International. AL Tech point out that Smith Land and all of the other cases cited by Allegheny International and the bankruptcy court—Amoco Oil Co., v. Borden, Inc., 889 F.2d 664 (5th Cir.1989); BTR Dunlop, Inc. v. Rockwell Int’l Corp., 1992 WL 159203 (N.D.Ill. June 29, 1992); South Fla. Water Management Dist. v. Montalvo, 1989 WL 260215 (S.D.Fla. Feb.15, 1989); and Southland Corp. v. Ashland Oil, Inc., 696 F.Supp. 994 (D.N.J.), modified on reconsideration, 1988 WL 125855 (D.N.J. Nov.23, 1988)—involved allocation between the seller and the purchaser of the subject property (or their successors, see Smith Land, 851 F.2d at 88). Here, the seller (Rio Algom) is not in the picture; Allegheny International’s predecessor received full value for the plants when it sold them to AL Tech in 1976 for $23.5 million in cash and stock. A. 647-702 (purchase agreement). In addition, AL Tech, not Sammi, is the claimant here, and under traditional corporate law principles the two companies are considered separate entities. Thus, even if it is assumed that there was a discount in the 1986 sale, this discount would work against Sammi and in favor of Rio Algom, but it does not necessarily work against AL Tech and in favor of Allegheny International. Allegheny International’s counterargument is that the bankruptcy court properly disregarded corporate forms in light of AL Tech’s status as a wholly-owned subsidiary of Sam-mi. Allegheny International cites several eases describing bankruptcy courts as courts of equity that will disregard legal fictions when justice requires. The problem here is that the bankruptcy court did not find that justice required that it regard Sammi and AL Tech as a single entity. In the absence of such a finding, it was error to assume, as the bankruptcy court appears to have done, that any windfall reaped by Sammi should be imputed to AL Tech. Nor do we believe, on the record before us, that such a finding would be warranted. Allegheny International has pointed to no facts that would allow the piercing of the corporate veil. Without sufficient facts of record to warrant veil-piercing, i.e., facts of sufficient dominance of the affairs of the subsidiary by the parent corporation, AL Tech and Sammi must be considered separate entities. See In re Cohn, 54 F.3d 1108, 1116-17 (3d Cir.1995); see also Mellon Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635, 643 (3d Cir.1991) (“[T]here is a presumption that a corporation, even when it is a wholly owned subsidiary of another, is a separate entity.”), cert. denied, 503 U.S. 937, 112 S.Ct. 1476, 117 L.Ed.2d 620 (1992). AL Tech also argues that the bankruptcy court abused its discretion in relying exclusively on a single equitable factor — the discount received by Sammi — in deciding that Allegheny International’s equitable share of the cleanup cost was zero. It is within the court’s discretion to rely on a single factor, see Environmental Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 509 (7th Cir.1992), but here the court also considered several other factors, e.g., actual years of ownership and operation of the two plants, 158 B.R. at 383, Allegheny Ludlum’s compliance with federal environmental laws that were in effect before it sold the plants to AL Tech, id. at 384, and AL Tech’s less-than-enthusiastic cleanup efforts since the sale, id. However, it is clear to us that the bankruptcy court’s ultimate conclusion can be justified only on the basis of the discount, as the bankruptcy court itself seemed to recognize. See id. at 383 (“[T]his court considers the discounted purchase price for the AL Tech steel plants to be the most compelling and dispositive allocation factor in this case.”). Other factors may weigh in Allegheny International’s favor, but they are insufficient to drive Allegheny International’s equitable share down to zero. In other words, it was inconsistent with the sound exercise of its discretion for the bankruptcy court to rely, not simply on a single factor, but on a single factor where the factual finding underlying the factor was clearly erroneous. AL Tech raises two arguments with respect to Willowbrook Pond, a cooling pond at the Dunkirk plant that is. contaminated with PCBs. First, AL Tech argues that the bankruptcy court erred in concluding that it failed to prove, by a preponderance of the evidence, that Allegheny International (as successor to Allegheny Ludlum) is responsible for any of the PCB contamination. Second, AL Tech argues that the bankruptcy court committed reversible error in choosing Allegheny International’s estimate of the response costs at Willowbrook Pond ($1.3 million) instead of AL Tech’s estimate (approximately $14 million). We find no fault in the bankruptcy court’s determination on the liability question here. AL Tech presented no reports, analyses, or other documentation of the use of PCB-containing materials at the plants during the period when the plants were owned by Allegheny Ludlum. AL Tech’s evidence consisted of the testimony of Edwin Diehl and Morton Parker, neither of whom could establish that the materials used by Allegheny International before the purchase of the plants by AL Tech contained PCBs. Mr. Diehl, AL Tech’s Director of Engineering (and previously its Director of Environmental Affairs), pointed to a hydraulic fluid, first used in new rolling mill machinery in 1970, as the source of the PCBs in Willowbrook Pond. A. 437-40, 454, 457. He had no personal knowledge, however, as to whether the fluid contained PCBs. Mr. Parker visited the Dunkirk plant in the mid-1970s to determine whether oils and greases that Allegheny Ludlum had collected from Willowbrook Pond were suitable for reclamation by his employer, Wallover Oil Company. A. 465-69. He testified that Allegheny Ludlum had recently switched to a new hydraulic fluid that did not contain PCBs, that the fluid previously used sank because it was heavier than water, and that fluids that contained PCBs also were heavier than water and sank. A. 467-69. Mr. Parker also testified that his company rejected Allegheny Ludlum’s oils and greases for reclamation and that, while PCB contamination was the reason for most such rejections, he did not recall the reason for rejecting Allegheny Ludlum’s materials. A. 470-72. Mr. Parker also could not recall the results of any chemical analyses done on the materials from Willowbrook Pond. A. 470. Nor could he recall the year in which he visited the plant or the name of anyone whom he met there. A 466. Like Mr. Diehl, then, Mr. Parker could provide no specific information as to whether any materials used by Allegheny Ludlum before the 1976 sale of the plants to AL Tech contained PCBs. It may well be that Allegheny Ludlum used PCB-containing materials during the relevant period, and it may be that the only reasonable explanation for the presence of PCBs in the pond sediments, based on the evidence adduced, is that Allegheny Ludlum dumped them there. But that is different from proving, by a preponderance of the evidence, that Allegheny International is responsible for at least some of the contamination. This AL Tech failed to do. In light of this conclusion, it is not necessary to reach AL Tech’s second argument regarding Wil-lowbrook Pond. IV. We deal last with two related questions concerning AL Tech’s claim under the New York Oil Spill Act, N.Y. Nav. Law §§ 171-197 (McKinney 1989 & Supp.1996). First, may AL Tech bring an action against Allegheny International under the Oil Spill Act? Second, is any such action time-barred? Because our decision concerning these questions of New York law is unlikely to have much precedential significance, we will deal with them in an abbreviated fashion. A Under White v. Long, 85 N.Y.2d 564, 626 N.Y.S.2d 989, 650 N.E.2d 836 (1995), a case not considered by either the bankruptcy court or the district court, it is clear that a property owner may under certain conditions sue a prior owner to recover cleanup costs. The claim in White was asserted under § 181(5), which provides as follows: Any claim by any injured person for the costs of cleanup and removal and direct and indirect damages based on the strict liability imposed by this section may be brought directly against the person who has discharged the petroleum, provided, however, that damages recoverable by any injured person in such a direct claim based on the strict liability imposed by this section shall be limited to the damages authorized by this section. N.Y. Nav. Law § 181(5) (McKinney Supp. 1996). Another provision of the Act defines a “claim” as .“any claim by an injured person, who is not responsible for the discharge.” N.Y. Nav. Law § 172(3) (McKinney Supp. 1996) (emphasis added). Noting this definition, the New York Court of Appeals wrote in White: Although even faultless owners of contaminated lands have been deemed “dischar-gers” for purposes of their own section 181(1) liability,[] where they have not caused or contributed to (and thus are not “responsible for”) the discharge, they should not be precluded from suing those who have actually caused or contributed to such damage. To preclude reimbursement in that situation would significantly diminish the reach of section 181(5). 626 N.Y.S.2d at 991, 650 N.E.2d at 838 (footnote added). Since neither the bankruptcy court nor the district court has applied White to the facts of this case, we remand AL Tech’s Oil Spill Act claim so that this can be done. B. On the issue of the statute of limitations, under the New York Court of Appeals’ decision in State v. Stewart’s Ice Cream, Inc., 64 N.Y.2d 83, 484 N.Y.S.2d, 810, 473 N.E.2d 1184 (1984), it appears that AL Tech’s claim is governed by the six-year limitations period for actions on express or implied contracts, N.Y. Civ. Prac. L. & R. § 213(2) (McKinney 1990). In Stewart’s Ice Cream, the state paid for the. cleanup and removal of discharged petroleum and then sought to recover its expenses from the party that caused the discharge. The New York Court of Appeals concluded that the state’s claim was one for indemnity and that liability on an indemnity claim “theoretically springs from an implied contract.” Id. 484 N.Y.S.2d at 812, 473 N.E.2d at 1186. The court further held that the state’s claim was not covered by the three-year limitations period for actions to recover on a liability created or imposed by a statute, N.Y. Civ. Prac. L. & R. § 214(2) (McKinney 1990), because that provision applies only to liability not recognized ■ in the common or decisional law and because it could not be said that the state’s claim “would not exist but for the statute.” Stewart’s Ice Cream, 484 N.Y.S.2d 810, 473 N.E.2d at 1187. In this ease, AL Tech’s claim appears to be in the nature of a claim for indemnity. Stewart’s Ice Cream is arguably distinguishable on the ground that there the court held that the Oil Spill Act did not “expressly provide for an indemnity action such as [the one brought by the state],” 484 N.Y.S.2d at 812, 473 N.E.2d 1186, whereas here § 181(5) does expressly provide for AL Tech’s claim. However, Stewart’s Ice Cream made this point to refute the argument that N.Y. Civ. Prac. L. & R. § 214(2) furnished the applicable statute of limitations. Since Allegheny International does not contend this provision applies here, this arguable distinction need not concern us. Thus, we hold that Stewart’s Ice Cream, governs here. See 145 Kisco Ave. Corp. v. Dufner Enters., Inc., 198 A.D.2d 482, 604 N.Y.S.2d 963 (1993). We reject Allegheny International’s argument that AL Tech’s claim is subject to the three-year statute of limitations for actions to recover for damages or injuries to property. See N.Y. Civ. Prac. L. & R. § 214(4) (McKinney 1990). The cases upon which Allegheny International- principally relies —State v. King Serv., Inc., 167 A.D.2d 777, 563 N.Y.S.2d 331 (1990), and Town of Guilderland v. Texaco Ref. & Mktg., Inc., 159 A.D.2d 829, 552 N.Y.S.2d 704 (1990)-involved claims that differ from those asserted by AL Tech. The claim in Town of Guilderland was explicitly for property damage, viz., damage to the town’s sewer system that resulted from an explosion of fumes from gasoline that had leaked into the sewers, rather than one for reimbursement of cleanup costs. The claim at issue in King Service was also one for direct damages under § 190 of the Act, which covers actions against insurers. See N.Y. Nav. Law § 190 (McKinney 1989). On balance, we believe that Stewart’s Ice Cream is a closer fit in this case than the decisions on which Allegheny International relies. We thus hold that the statute of limitation for AL Tech’s Oil Spill Act claim is six years. Furthermore, it is settled law in New York that an action for indemnity or contribution does not generally accrue until the payment is made by the party seeking recovery. Bay Ridge Air Rights, Inc. v. State, 44 N.Y.2d 49, 404 N.Y.S.2d 73, 375 N.E.2d 29 (1978). AL Tech may thus seek to recover cleanup costs under the Oil Spill Act that it incurred within six years prior to its filing of its proof of claim against Allegheny International. To the extent that AL Tech is seeking to recover for future remediation costs, the limitations period has not yet begun. Y. For the reasons stated above, we reverse the order of the district court as it relates to the bankruptcy court’s finding of a discount in the price paid by Sammi in 1989 and as it relates to the bankruptcy court’s determination of Allegheny International’s equitable share of AL Tech’s allowable response costs, and we remand for reconsideration of equitable allocation without the discount. We reverse the order of the district court as it relates to the limitations period applicable to AL Tech’s claim under the New York Oil Spill Act, and we remand for application of the standard set out in the New York Court of Appeals’ decision in White v. Long to the facts of this case. We affirm the order of the district court as it relates to the bankruptcy court’s determination that Bankruptcy Code §§ 502(c) and 502(e)(1)(B) do not bar AL Tech’s claim and as it relates to the bankruptcy court’s determination that AL Tech failed to prove that Allegheny International was responsible for any of the cleanup costs at Willowbrook Pond. . The parties did not brief the applicability of § 502(e)(1)(B) to AL Tech's Oil Spill Act claim in the earlier appeal to the district court. In the present appeal, Allegheny International has again focused its arguments on the applicability of § 502(e)(1)(B) to CERCLA claims, leaving the Oil Spill Act claim virtually unaddressed. We thus read Allegheny International’s argument as limited to AL Tech’s CERCLA claim. . AL Tech points out that the net worth of its stock on the date of purchase was approximately negative $16 million. A. 1515. Thus, it argues, even considering the subsequent adjustment in the purchase price, Sammi overpaid for AL Tech’s stock by some $ 11 million. . The parties cite a figure of $5.3 million, while the bankruptcy court quoted the figure of $6.5 million. . In a reference to possible recoupment from GATX, the notes accompanying AL Tech's financial statements also refer to its management’s belief that: part of [the $22 million] environmental liability-may be recovered through negotiations or litigation with certain of the Company's previous owners. Because of the uncertainty, no recognition has been given to a recovery of these liabilities in the accompanying financial statements. A. 1582. . The sediments in the pond also contain high levels of nickel, but the dispute here concerns responsibility for, and remediation of, the PCB problem. . This provision states in pertinent part that "[a]ny person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and ah direct and indirect damages, no matter by whom sustained, as defined in this section.” N.Y. Nav. Law § 181(1)(McKinney Supp.1996). . AL Tech originally argued that its claim arose under N.Y. Nav. Law § 176(8), which provides: Notwithstanding any other provision to the contrary ... every person providing cleanup, removal of discharge of petroleum or relocation of persons pursuant to this section shall be entitled to contribution from any other responsible party. AL Tech now argues that its claim arises "under both Section 176(8) and Section 181(5),” see Appellant's Br. at 46 n.22, and that White v. Long, supra, which was based on § 181(5), "settled definitively” its right to bring a private action. Appellant's Br. at 44 n.20. AL Tech does not argue that there is any difference between the right of action created by § 181(5) and the right of action that it has asserted under § 176(8). We therefore do not decide whether there is an independent private right of action under § 176(8) or whether any such action differs in scope from the right of action under § 181(5). On remand, the bankruptcy and district courts need only apply White to the facts of this case. .Moreover, while § 181(5) expressly authorizes A1 Tech's claim, the right of indemnity also has roots in common law, although it is also sometimes imposed by statute. See 23 N.Y. Jur.2d Contribution, Indemnity, and Subrogation § 2 (1982). The conclusions reached above also follow if AL Tech's claim is characterized as one for contribution rather than indemnity. It appears well settled under New York law that contribution, like indemnity, is based on an implied contract. Hard v. Mingle, 206 N.Y. 179, 99 N.E. 542, 544 (1912); Blum v. Good Humor Corp., 57 A.D.2d 911, 394 N.Y.S.2d 894, 896 (1977). Furthermore, contribution existed at common law. Mingle, 206 N.Y. 179, 99 N.E. 542. Consequently, the six-year limitations period for actions on contracts would apply. Blum, 394 N.Y.S.2d at 896; Liberty Mut. Ins. Co. v. Societe Coiffure, Inc., 50 N.Y.S.2d 40, 41 (Sup.Ct.N.Y.Cty.1944). .Allegheny also cites two additional cases that are of limited relevance to the present appeal: Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275 (1975), which applied the three-year limitations periods for actions for property damage and personal injury to cases based on strict product liability; and P.B.N. Assocs. v. Xerox Corp., 141 A.D.2d 807, 529 N.Y.S.2d 877 (1988), order modified on reargument, 176 A.D.2d 861, 575 N.Y.S.2d 451 (1991), which applied the three-year limitations period for actions for property damage to an action for waste stemming from an oil spill. Neither case involved the Oil Spill Act or an action for indemnity or contribution. . The bankruptcy court appears to have allowed only those costs related to future remediation efforts. . The bankruptcy, court disallowed as time-barred only AL Tech's claim related to the Oil Contamination Area. 158 B.R. at 377-78. However, AL Tech’s claims related to three other areas — the Pump House and Aboveground Fuel Tank, the Underground Fuel Tanks, and the Kromma Kill — are also based on petroleum contamination. 158 B.R. at 368. Given CERCLA’s petroleum exclusion, see 42 U.S.C. § 9601(14), the Oil Spill Act may be the only basis for liability at those locations. We thus point out that our conclusion concerning the applicable limitations period applies to any of AL Tech’s claims involving petroleum contamination.

Lion Oil Co. v. Tosco Corp.

WOLLMAN, Circuit Judge. Lion Oil Company (Lion Oil) appeals the district court’s grant of judgment on the pleadings to Tosco Corporation (Tosco) denying Lion Oil’s claim that Tosco indemnify it for costs associated with the cleanup of property located on an oil refinery site pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA). We affirm. I. Tosco operated an oil refinery located on approximately 385 acres near El Dorado, Arkansas, from 1972 to 1985. To handle hazardous materials generated during this period, Tosco constructed two hazardous waste management units (HWMUs) regulated pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., and several solid waste management units (SWMUs). On March 22, 1985, Lion Oil purchased the refinery from Tosco. Section 2.8(d) of the Asset Purchase and Sale Agreement (the Agreement) entered into by the parties on that same date specifically provided that: Tosco hereby agrees to indemnify and hold harmless [Lion Oil] ... for any and all (1) civil, legal and administrative costs; (2) fines and penalties; (3) response, remedial and clean-up costs, and (4) other costs or liability arising from any sudden or non-sudden harm to the environment or public health resulting from actions of Tosco pri- or to the Closing Date.... Costs which result from harm inflicted or discovered after the Closing Date, but which are the consequence of actions taken by Tosco pri- or to this date, shall be indemnified by Tosco. The clean-up costs which Tosco agrees to indemnify include, but are not limited to, all studies, site assessments, and any and all other efforts taken to determine the extent of harm to public health or the environment and/or to identify possible remedial alternatives that could ameliorate such harm. Clean-up costs include costs incurred directly by [Lion Oil] or by employees, agents, or contractors hired by [Lion Oil]. Under this clause, [Lion Oil] shall be indemnified for all liability and costs incurred under common law (federal or state) or existing local, state or federal statutes that protect public health and/or the environment, including but not limited to, the following federal statutes: the Comprehensive Environmental Response, Compensation and Liability Act of 1980 42 U.S.C. Sec. 9601-9657[ ].... The liability of Tosco pursuant to this Section 2.8(d) shall expire at the end of four (4) years after Date of Closing and shall not exceed a total of $1,000,000 in the aggregate.... In August 1986, the parties executed an Amendment and Release (the Release). In exchange for Tosco’s agreement to accept at a discount prepayment by Lion Oil of Lion Oil’s remaining note obligation for the purchase price, the Release provided that: Lion [Oil] hereby extinguishes, discharges, releases and abandons any and all rights and claims against Tosco which it has or may have pursuant to the provisions of subsection 2.8(d) of the March 22 Agreement, or to the extent any such claims would be covered by the provisions of said subsection 2.8(d) even though also potentially covered within the general indemnification provisions of subsection 2.8(a), ... whether now existing or arising in the future, at common law, or in equity, or created by any rule of law, regulatory order, statute or otherwise, and whether known or unknown. In November 1988, Lion Oil decided to close the two HWMUs and filed for a RCRA post closure permit. The permit, which was approved in September 1990, required Lion Oil to conduct post-closure maintenance and monitoring of the HWMUs. In addition, the permit required Lion Oil to investigate and correct any potential leakage of hazardous materials from the SWMUs, in violation of CERCLA. A preliminary investigation disclosed potential releases of hazardous waste from approximately eighteen SWMUs, some of which had been constructed by Tosco. Lion Oil estimates that it may cost as much as $30,000,000 to bring the SWMUs into compliance with CERCLA. In April 1994, Lion Oil brought suit against Tosco, seeking contribution under CERCLA for the clean-up costs of the property. In May 1995, Tosco filed a motion for judgment on the pleadings, which the district court granted. II. Lion Oil contends that the district court erred in concluding that the Agreement and the Release combined to constitute a general release of Tosco’s CERCLA liability. Lion Oil alleges that the district court should have allowed the admission of extrinsic evidence to demonstrate the parties’ actual intent in drafting the documents. We review de novo the district court’s grant of a motion for judgment on the pleadings. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). Judgment on the pleadings is appropriate if the moving party clearly establishes that there are no material issues of fact and that he is entitled to judgment as a matter of law. National Car Rental v. Computer Associates, 991 F.2d 426, 428 (8th Cir.), cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993). Under this strict standard, we accept as true all facts pled by the non-moving party and draw all reasonable inferences from the pleadings in his favor. Id. CERCLA provides that a former owner or operator of a facility is jointly and severally liable for cleanup associated with hazardous waste sites. 42 U.S.C. § 9607(a). CERCLA does, however, permit one party to insure, hold harmless, or indemnify another party for liability under the statute. § 9607(e); see also Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d 104, 107 (3d Cir.1994) (parties may allocate among themselves financial burden for cleaning up hazardous waste site under CERCLA). Courts will enforce a contract allocating CERCLA liability when “the provisions [of the contract] evince a clear and unmistakable intent of the parties to do so.” Keywell Corp. v. Weinstein, 33 F.3d 159, 165 (2d Cir.1994). Lion Oil contends that the contracts are ambiguous and that extrinsic evidence should therefore have been admitted to show the true intention of the parties. Specifically, Lion Oil seeks to offer evidence to show that Section 2.8(d) was meant to cover only the two HWMUs and was not a general limitation on potential CERCLA liability for the SWMUs. Under Arkansas law, which the parties agree governs the contracts, the language contained in the contract is the best evidence of the parties’ intentions. First Nat’l Bank v. Griffin, 310 Ark. 164, 832 S.W.2d 816, 818-19 (1992), cert. denied, 507 U.S. 919, 113 S.Ct. 1280, 122 L.Ed.2d 673 (1993). Thus, we first look to the contract itself to determine if it is ambiguous — not to extrinsic evidence offered to contradict the plain meaning of the contract. Id. The district court found that “[t]he Purchase Agreement and the Release are clear, unequivocal and unambiguous in their allocation of Tosco’s liability and its release therefrom.” We agree that the plain language contained in the contracts compels such a result. The Agreement contained a broad indemnity provision that encompassed environmental harm caused by Tosco. Indeed, Section 2.8(d) specifically referred to CERCLA. The Release absolves Tosco from all obligations under Section 2.8(d). In these circumstances, the Agreement and Release unequivocally combine to allocate to Lion Oil any potential liability arising under CERC-LA. The parol evidence rule prohibits the admission of extrinsic evidence to alter these otherwise unambiguous contracts. Griffin, 832 S.W.2d at 818-20; see also Rainey v. Travis, 312 Ark. 460, 850 S.W.2d 839, 840 (1993) (extrinsic evidence not admissible when agreement is unambiguous on its face). We note that this is not a case in which an unsophisticated party hastily entered into a contract. It is clear that Lion Oil was aware that the purchase of an oil refinery involved a risk of significant potential environmental liability, as exhibited in the detailed provisions of the Agreement. As the district court recognized, “The fact that hindsight may have proven the Agreement to be a bad business decision for Lion Oil does not negate its validity.” The judgment is affirmed. . The Honorable Harry F. Barnes, United States District Judge for the Western District of Arkansas. . Lion Oil was known as XYZ Inc. at the time of the transaction. '

Taracorp, Inc. v. NL Industries, Inc.

FLAUM, Circuit Judge. Taracorp, Inc. (“Taracorp”) sued NL Industries, Inc. (“NL”) for indemnification of certain environmental clean-up liabilities under their March 4, 1985 Agreement. Exercising its diversity jurisdiction, the district court granted summary judgment for NL. The district court found that the language of the Agreement unambiguously excluded the type of claim Taracorp was making and noted that the extrinsic evidence offered confirmed this conclusion. We reverse. . I. Taracorp, a Georgia corporation with its principal place of business in Atlanta, Georgia, owns and operates scrap metal and metal fabricating businesses throughout the country. NL, a New Jersey corporation with its principal place of business in Houston, Texas, formerly owned substantial assets in the metal industry, including several lead smelting facilities. In 1979 Taracorp purchased three lead smelting plants from NL, which were located in Granite City, Illinois; McCook, Illinois; and St. Louis Park, Minnesota. The disputed liability in this case involves the St. Louis Park facility. From 1979 to 1982, Taracorp operated the St. Louis Park plant in the same manner as NL had been operating the plant. In fact, Taracorp assumed NL’s role in a Battery Processing Agreement (dated August 18, 1978) with Union Scrap Iron & Metal (“Union Scrap”). Under the Battery Processing Agreement, Taracorp (and previously NL) would purchase spent batteries and then have them shipped directly to one of Union Scrap’s three locations, all located within five miles of the St. Louis Park facility. Union Scrap would then break apart the batteries and send the lead plates to Taracorp for smelting. The Battery Processing Agreement clearly states that the batteries and the battery plates remain at all times “the sole and exclusive property of [Taracorp]” (originally NL). This relationship with Union Scrap continued until 1982, when Taracorp shut down the St. Louis Park plant. In the early 1980’s, the United States Environmental Protection Agency (“EPA”) asserted several environmental claims against NL and Taracorp regarding the St. Louis Park facility. In October of 1981, the EPA placed the St. Louis Park site on the National Priorities list for Superfund ranking. In 1983 the EPA expanded the boundaries of the listed St. Louis Park site to include an adjoining auto scrap yard site, the “Golden Property.” By 1984 the EPA and the Illinois Environmental Protection Agency (“IEPA”) were also investigating environmental contamination at Taracorp’s Granite City, Illinois lead smelting facility. Taracorp filed a Chapter 11 bankruptcy petition in 1982. As part of Taracorp’s Plan of Reorganization, Taracorp entered into an Agreement on March 4, 1985 (the “Agreement”) with NL and the IEPA regarding responsibility for the environmental hazards at the Granite City and St. Louis Park sites. The IEPA was involved only in the Granite City negotiations (since St. Louis Park is in Minnesota). The parties agree that the interpretation of this Agreement determines the result in this ease; hence the relevant provisions of the Agreement will be quoted here at some length. The first section of the Agreement, which appears to function as a kind of preamble, states as follows: The parties hereto are desirous of effecting a means for allocating costs and responsibility with respect to certain environmental claims by IEPA and others against [Tara-corp] and NL, all relating to facilities sold by NL to [Taracorp] pursuant to Agreement dated August 22, 1979. NL has agreed with all parties hereto to assume certain responsibilities regarding the investigative and remedial costs relating to these matters and [Taracorp] has agreed to provide consideration to or for the benefit of IEPA and NL in conjunction therewith. Twelve of the Agreement’s twenty-four sections exclusively address the Granite City facility. Only one section is exclusively addressed to the St. Louis Park plant. The Granite City sections establish that Taracorp is to set up a subsidiary corporation, the “New Corporation,” to which all the assets of the Granite City plant are to be transferred. The New Corporation is then to “assume exclusive responsibility and be solely liable for all of [Taracorp’s] liability for payment of all investigative and remedial clean-up costs relating to contamination located at, on, or near [Taracorp’s] Granite City, Illinois Facility....” The Agreement limits the Granite City environmental liability of the New Corporation/Taracorp to $500,000, not including ground water contamination claims and costs relating to current or future operations of the Granite City facility, which would remain the sole responsibility of the New Corporation. The Agreement consistently (five times) designates the environmental pollution connected with the Granite City plant as “contamination located at, on, or near [Tara-corp’s] Granite City Facility.” Three of the references further note that the contamination referred to is that which “originated from” the Granite City facility. The Granite City provisions conclude by establishing NL’s obligation to indemnify and hold harmless Taracorp and the New Corporation for all federal environmental liabilities “with respect to alleged environmental hazards located at, on or near the Granite City Facility.” Only section eight of the Agreement deals exclusively with the St. Louis Park facility. The parties agree that the IEPA played no role in the drafting of this section. The section provides that, upon the fulfillment of two specific pre-conditions, Taracorp “will, on the Effective Date of the Plan of Reorganization, transfer to NL by deed ... all of [Taracorp’s] assets at the St. Louis Park Facility, said transfer being limited to the form of ownership interest received by [Ta-racorp] from NL on August 22, 1979....” Agreement section 8(c) establishes NL’s indemnification responsibilities with respect to the St. Louis Park plant and is the provision upon which Taracorp bases this lawsuit. It reads as follows: Upon conveyance of [the St. Louis Park Facility to NL], NL shall bear the responsibility for all investigative and remedial clean-up costs associated with said Facility and shall indemnify [Taracorp] for all obligations, responsibilities and liabilities, costs and expenses asserted against it related to environmental hazards associated with said Facility, excluding, however, any costs and expenses relating to (i) damages claimed or incurred by private parties arising out of air emissions which may have occurred as a result of [Taracorp’s] operation of such Facility after August 22, 1979, (ii) actions arising from activities of [Tara-corp] which activities were unrelated to the regular conduct of the business at the St. Louis Park Facility.... Taraeorp was discharged from bankruptcy on June 27, 1985. In 1990, however, the EPA notified Taraeorp that it was considered to be a “potentially responsible party” (“PRP”) under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) for environmental contamination caused by Union Scrap’s battery-breaking activities at its Washington Avenue North location (“Union Scrap I”). The EPA claimed that Taraeorp had “arranger” liability under § 107(a)(3) of CERCLA (42 U.S.C. § 9607(a)(3)) for clean-up of environmental contamination at the site, which had resulted (in part) from the breaking up of Taracorp’s batteries for its St. Louis Park plant. The EPA sued Taraeorp and many others on this theory later that year. In 1993, the EPA notified Taraeorp that it was also considered a PRP for the cost of remediation at Union Scrap’s 15th Avenue North site (“Union Scrap III”). And in 1994, the Minnesota Pollution Control Authority (“MPCA”) notified Taraeorp that it was liable to reimburse the State of Minnesota for environmental response costs at Union Scrap’s Plymouth Avenue location (“Union Scrap II”). Taraeorp sought dismissal from the Union Scrap I case, claiming that the CERCLA claim was barred by its 1985 discharge in bankruptcy. The bankruptcy court had set a July 5, 1983 deadline for the filing of claims against Taraeorp. Taraeorp argued that since the St. Louis Park facility had been shut down since 1982, no new claims could have arisen since 1982. Taraeorp also argued that because the EPA had not filed a claim or even a “contingent claim” in Tara-corp’s bankruptcy proceedings, the CERCLA arranger liability claim was barred. The bankruptcy court handling the Union Scrap I case saw things differently and held that the CERCLA claim was not barred, since the CERCLA claim did not “arise” until after the confirmation of Taracorp’s Plan of Reorganization. United States v. Union Scrap Iron & Metal, 123 B.R. 831, 838 (D.Minn.1990). NL, who was also facing possible CERCLA arranger liability in the litigation, supported the EPA’s position regarding Ta-racorp (i.e., the position ultimately taken by the court) and further argued that even if Taraeorp dropped out of that case, NL’s own contribution and indemnity claims against Taraeorp should survive. Id. at 834-35. Ta-racorp did not appeal the decision, and the litigation eventually settled. Taraeorp paid $100,000 as its share of the settlement. Regarding the Union Scrap II litigation, Taraeorp has paid $60,050 as its share of a proposed settlement. The amount of Tara-corp’s liability and its defense costs for the MPCA’s 1994 claim regarding Union Scrap II are not yet established. Taraeorp has sued NL for indemnification, under the Agreement, for its liability and expenses for these Union Scrap claims. The district court, after comparing the Granite City indemnity provision with the St. Louis Park indemnity provision, found that the Agreement clearly established that NL was not obligated to indemnify Taraeorp for its St. Louis Park/Union Scrap environmental liability, since the contamination at the Union Scrap sites was not “at, on, or near” the St. Louis Park site. The court concluded: “While the phrase ‘associated with’ may not be as precise as the phrase ‘at, on, or near’, the entire context of the agreement supports reading ‘associated with’ to mean ‘at, on, or near’ the St. Louis Park Facility.” While the court found no need to resort to extrinsic evidence, as the Agreement was unambiguous, it also determined that “the extrinsic evidence supports a narrow reading of the [St. Louis Park] indemnification clause.” The court declared that the Agreement was designed to address problems of contamination “originating at” the two lead smelting facilities. Consequently, the court granted NL’s motion for summary judgment and denied Taracorp’s motion for summary judgment. II. We review the district court’s grant of summary judgment de novo. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.1995). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party, here NL, is entitled to judgment as a matter of law. Fed.R.CivP. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The parties agree that Illinois law governs our interpretation of the Agreement and its indemnity provisions. Summary judgment in a diversity contract ease such as this one should be considered as follows: First, it is necessary to look to the plain language of the provision at issue. Reviewing Illinois law, this Court has noted that “[t]he starting point must be the contract itself. If the language of the contract unambiguously provides an answer to the question at hand, the inquiry is over.” .... If the plain language of the contract is ambiguous, then “the court must go on to declare [the contract’s] meaning.” _ If the court finds that a contract is ambiguous and that extrinsic evidence is undisputed, then the interpretation of the contract remains a question of law for the court to decide_ However, if the parties dispute the extrinsic evidence on an ambiguous contract, then a fact-finder must be called upon to determine the intent of the parties. Lumpkin v. Envirodyne Indus., 933 F.2d 449, 456 (7th Cir.) (internal citations omitted), cert. denied, 502 U.S. 939, 112 S.Ct. 373, 116 L.Ed.2d 324 (1991); see also LaSalle Natl Bank v. Service Merchandise Co., 827 F.2d 74, 78 (7th Cir.1987) (interpreting Illinois contract law as providing that “[i]f the language of the contract unambiguously provides an answer to the question at hand, the inquiry is over”); City of Clinton v. Moffitt, 812 F.2d 341, 344 (7th Cir.1987). Illinois interprets indemnity agreements according to its general principles of contract law. Charter Bank v. Eckert, 223 Ill.App.3d 918, 166 Ill.Dec. 282, 288, 585 N.E.2d 1304, 1310 (1992) (“An indemnity agreement is to be construed as any other contract, and under the rules of contract construction, the intention of the parties is the paramount concern.”); Higgins v. Kleronomos, 121 Ill.App.3d 316, 76 Ill.Dec. 913, 916, 459 N.E.2d 1048, 1051 (1982). Yet Illinois law also provides that indemnity agreements must be set forth in clear and explicit language, so that the indemnitor’s obligations are manifest. Charter Bank, 166 Ill.Dec. at 288, 585 N.E.2d at 1310. Moreover, since indemnity agreements are not favored in Illinois, they must be strictly construed against the indemnitee. Id. Fidelity and Deposit Co. v. Rosenmutter, 614 F.Supp. 348, 351 (N.D.Ill.1985). The March 4, 1985 Agreement establishes the boundaries of NL’s obligation to indemnify Taracorp for environmental liabilities associated with two different facilities: the Granite City facility and the St. Louis Park facility. The language describing NL’s indemnification duties for the two plants, however, is quite different. With regard to the Granite City facility, NL agreed to indemnify Taracorp for environmental hazards or contamination “located at, on, or near” the Granite City facility. This “located at, on, or near” language appears repeatedly in the Agreement sections describing NL’s indemnification responsibilities with regard to Granite City environmental liability. The Agreement further notes that the Granite City environmental contamination contemplated is that which “originated from” the Granite City plant. When it comes to the single section on the St. Louis Park plant, on the other hand, the Agreement contains much broader language. NL agreed to indemnify Taracorp “for all obligations, responsibilities and liabilities, costs and expenses asserted against [Taracorp] related to environmental hazards associated with the [St. Louis Park] Facility” (emphasis added). The St. Louis Park provision contains no “located at, on, or near” language and no mention of pollution having “originated from” that facility. While the language of the Granite City provision is locational, the language of the St. Louis Park provision is relational. And when parties to the same contract use such different language to address parallel issues (i.e., indemnification obligations regarding two different facilities), it is reasonable to infer that they intend this language to mean different things. Cf. Thompson v. Amoco Oil Co., 903 F.2d 1118, 1121 (7th Cir.1990) (“Unless a contrary intent is evident, words used in one sense in one part of a contract are deemed of like significance in another part.”) (quoting Cedar Park Cemetery Ass’n v. Village of Calumet Park, 398 Ill. 324, 75 N.E.2d 874, 880 (1947)). Thus we reject the district court’s conclusion that the St. Louis Park “associated with” language can reasonably be understood to mean the same thing as the Granite City “located at, on, or near” language. This principle of contract interpretation parallels the principle that we use when interpreting statutes to determine the intent of legislatures: we assume that the same words mean have the same meaning in a given act and that the choice of substantially different words to address analogous issues signifies a different approach. See Trustees of Iron Workers Local f73 Pension Trust v. Allied Products Corp., 872 F.2d 208, 213 (7th Cir.) (comparing statutory use of unqualified “all” with use of “substantially all” and “virtually all” and concluding that unqualified “all” means 100 percent), cert. denied, 493 U.S. 847, 110 S.Ct. 143, 107 L.Ed.2d 102 (1989); cf. BFP v. Resolution Trust Corp., — U.S. -, -, 114 S.Ct. 1757, 1761, 128 L.Ed.2d 556 (1994) (presumption that Congress acts intentionally when particular language included in one section but omitted in another); United States Nat’l Bank of Or. v. Independent Ins. Agents of America, Inc., 508 U.S. 439, -, 113 S.Ct. 2173, 2185, 124 L.Ed.2d 402 (1993) (“Presumptively, ‘identical words used in different parts of the same act are intended to have the same meaning.’ ”) (internal citations omitted); Kinney v. International Union of Operating Eng’rs, Local 150, 994 F.2d 1271, 1276 (7th Cir.1993). This approach also accords with the basic contract principle that the meaning of separate contract provisions should be considered in light of one another and the context of the entire agreement. Medcom Holding Co. v. Baxter Travenol Lab., Inc., 984 F.2d 223, 226 (7th Cir.1993) (“[T]he intent of the parties to a contract must be determined with reference to the contract as a whole, not merely by reference to particular words or isolated phrases, but by viewing each part in light of the others.”) (citations omitted); Delta Mining Corp. v. Big Rivers Electric Corp., 18 F.3d 1398, 1403 (7th Cir.1994) (“[I]n construing the meaning of a contractual term we must be mindful of the context in which the word is used_”). Thus while the indemnification obligation for the Granite City plant is limited to environmental pollution that is spatially connected to the plant (“located at, on, or near”), the St. Louis Park obligation extends to all environmental contamination liability that is “associated with” or “related to” that facility. Since the Agreement developed under the shadow of potential CERCLA liability (the St. Louis Park site was already on the EPA’s National Priorities list), such broad language appears to intend coverage for the full range of CERCLA liability. See Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 327 (7th Cir.1994) (finding that broad pollution indemnity provision included CERCLA liability even though CERCLA not enacted at time of property transfer); Harley-Davidson, Inc. v. Minstar, Inc., 41 F.3d 341, 344 (7th Cir.1994) (finding that general indemnity provision for liabilities “relating to” specific division included CERCLA claims), cert. denied, — U.S. -, 115 S.Ct. 1401, 131 L.Ed.2d 289 (1995). The district court, however, looked to other provisions of the Agreement in concluding that indemnification for St. Louis Park environmental liability was limited to contamination at, on, or near that site, and NL urges us to do the same. Since we are obliged to read contracts as a coherent whole, at least where doing so is possible, Riney v. Weiss & Neuman Shoe Co., 217 Ill.App.3d 435, 160 Ill.Dec. 375, 379, 577 N.E.2d 505, 509 (1991); Medcom, 984 F.2d at 226 (interpreting Illinois contract law); Air Line Stewards and Stewardesses Ass’n, Local 550 v. Trans World Airlines, Inc., 713 F.2d 319, 321 (7th Cir.1983), it is appropriate to consider other contract language that may undercut our initial determination that the two indemnity provisions have different scopes. NL directs us to look to section one of the Agreement, which begins by noting that “[t]he parties hereto are desirous of effecting a means for allocating costs and responsibility with respect to certain environmental claims by IEPA and others against [Taracorp] and NL.” NL maintains that this language indicates that the parties intended only to address particular, then-existing environmental claims. This preamble-like language cannot reasonably be read in such a broad manner. Even standing alone the provision does not specifically limit the scope of the Agreement to then-existing environmental claims, and NL fails to produce other contract language that would support such a reading. Furthermore, the fact that specific environmental claims provide the occasion for entering into an indemnity agreement, by itself, implies little about the prospective scope of that agreement. The opening provision goes more to the “why?” question, than the “how much?” question. Even if there were a conflict between the general section-one language and the St. Louis Park section-eight language, the specific St. Louis Park indemnity language would prevail over the general introductory language of the first section. Brzozowski v. Northern Trust Co., 248 Ill.App.3d 95, 187 Ill.Dec. 814, 818, 618 N.E.2d 405, 409 (1993); Medcom, 984 F.2d at 227. NL also argues that the Agreement’s references to environmental pollution associated with the St. Louis Park facility, rather than to the business or business operations there, demonstrate that the indemnity provisions were intended to apply only to environmental contamination actually on that property. The Agreement defines “St. Louis Park Facility” according to Taracorp’s Plan of Reorganization, which in turn defines the facility as being “located at 3645 Hampshire Avenue South, Minneapolis, Minnesota.” Thus NL concludes that its St. Louis Park indemnity obligation includes only environmental contamination at that address. This property-specific approach cannot be reconciled with one of the Agreement’s two cited exceptions to the St. Louis Park indemnity provision. These exceptions exclude coverage for 1) “damages claimed or incurred by private parties arising out of air emissions which may have occurred as a result of [Ta-racorp’s] operation of [the Facility] after August 22, 1979,” and 2) “actions arising from activities of [Taracorp] which activities were unrelated to the regular conduct of the business at the St. Louis Park Facility.” NL’s property-based approach would render the first exception superfluous, a result that fundamental principles of contract law caution us to avoid. See Thompson, 903 F.2d at 1121 (“we try not to interpret contracts in a manner that would render specific contractual language mere surplusage”); Dribeck Importers, Inc. v. G. Heileman Brewing Co., Inc., 883 F.2d 569, 573 (7th Cir.1989) (same for Illinois contract law). Damage to private parties from air emissions does not qualify as environmental contamination of the St. Louis Park property, so there would have been no reason to specifically exclude it under NL’s interpretation of the Agreement. Our decision in the factually similar case of GNB Battery Technologies, Inc. v. Gould, Inc., 65 F.3d 615, 623 (7th Cir.1995), likewise recognized the importance of heeding the language of specific liability exemptions to avoid rendering them superfluous — thereby effectuating the contractual intent of parties. Although the second exemption could be consistent with either Taracorp’s or NL’s understanding of the Agreement, the intention expressed by this “non-regular” activities language accords with finding a duty to indemnify for the Union Scrap claims. While NL did not want to assume environmental liability for unanticipated activities at the site (just in case Taracorp had been involved in more than lead smelting), the battery-breaking activities at the Union Scrap locations were well within the scope of Taracorp’s St. Louis Park business. NL can hardly claim surprise at this activity, since it negotiated the Union Scrap contracts in the first place. If NL had wanted to limit its St. Louis Park obligation to real property contamination, it knew perfectly well how to do so. Rather than merely using the word “facility” (in conjunction with the broad “related to” and “associated with” language), NL could have insisted upon the language of “located at, on, or near” (and thrown in the part about contamination “originating from” the plant), which it used so consistently in connection with the Granite City site. Instead, NL agreed to a broad indemnity provision, and it is stuck with that provision. Since we find that the Agreement unambiguously establishes NL’s obligation to indemnify Taracorp for its St. Louis Park environmental liability, which includes CERCLA liability for battery-breaking activities at the Union Scrap sites, we do not address the extrinsic evidence presented by the parties. III. We conclude that the March 4, 1985 Agreement between Taracorp and NL obligates NL to indemnify Taracorp for all of Taraeorp’s St. Louis Park CERCLA liability, including the CERCLA liability for the Union Scrap sites. We REVERSE the decision of the district court and Remand with directions that NL be ordered to indemnify Taracorp for this liability and for expenses already incurred and for any future liability and expenses. . The EPA maintained that Taracorp and NL had "arranged for” the disposal or treatment of hazardous substances under 42 U.S.C. § 9607(a)(3), and were therefore liable to reimburse the government for its response costs. . The express exceptions to this indemnity obligation, which are listed in the Agreement, are not relevant to this case. . The two pre-conditions are as follows: 1) that a claim for environmental damage, filed by the Minnesota Pollution Control Agency in Tara-corp's Chapter 11 proceedings, wiE either have been withdrawn or dismissed, and 2) that a security interest in the St. Louis Park facility, held by Citizens and Southern National Bank, wiH either have been canceled or conveyed to Taracorp. Since the transfer to NL occurred, and neither party has informed us of any continuing legal issue with respect to these claims, we assume these matters have been resolved. . By 1988 NL had completed cleaning up the St. Louis Park site, as well as the adjacent Golden Property. . The court rested its analysis on the finding that liability for CERCLA clean-up costs is not "incurred” until after the EPA actually begins spending money. Hence the EPA does not have the kind of claim that could be asserted in a bankruptcy proceeding until after it undertakes actual clean-up efforts or at least recognizes the need for such efforts (allowing it to assert a contingent claim). Union Scrap, 123 B.R. at 835-36. The court's analysis focussed on the goals of CERCLA and the impracticality of requiring the EPA to anticipate future environmental contamination discoveries (with corresponding clean-up costs) and file prospective claims in every bankruptcy proceeding involving an individual or organization that may eventually be found to be a responsible party under CERCLA. Id. at 837-38. While the court noted that “[t]he parties see a fundamental conflict between the goals of the Bankruptcy Act and the CERCLA/Su-perfund legislation,” id. at 835, the court never actually considered the goals of the Bankruptcy Act or offered any reason for finding that the goals of CERCLA (including broad-based liability and efficient administration) trump the goals of the Bankruptcy Act (which presumptively include finality and the minimization of new claims post-confirmation of a reorganization plan). . It is a puzzlement why Taraeorp did not simply appeal the decision of the bankruptcy court. In a totally separate case, we have since criticized the Minnesota bankruptcy court's decision and rejected the "necromantic definition of ‘incurred’ " upon which it was based. GNB Battery Technologies, Inc. v. Gould, Inc., 65 F.3d 615, 623 (7th Cir.1995). Hence we believe that Taraeorp should have appealed the bankruptcy court’s decision at that time and avoided this suit altogether (and the need for NL to indemnify anything). On the other hand, there is no injustice in now holding NL to its obligation to indemnify Taraeorp for this same CERCLA liability, since NL contracted to undertake this obligation and argued against Taracorp’s position in the bankruptcy proceeding. . Taraeorp expended $150,107.32 defending the case. . Taraeorp asserts that it has paid $60,500 in the settlement and that it has thus far expended $5,823.33 in defending the claim. . There are two specific exceptions to this broad liability, which will be discussed further below. . Taracorp maintains that the explanation behind the differing scope of the two indemnity provisions lies in the fact that the St. Louis Park facility had been closed since 1982, while at the time of the Agreement, Taracorp intended to continue operating the Granite City facility (making it more important for NL to cabin its liability there). .It appears that the district court assumed, and that NL concedes, that unless the "associated with”/“related to” language is understood as meaning "located at, on, or near,” the Agreement’s indemnity provision does cover CERCLA "arranger” liability. NL does not argue that the plain meaning of the St. Louis Park indemnity provision excludes CERCLA arranger liability. . NL attempts to avoid our comparison of the two indemnity provisions by suggesting that "the Agreement is essentially two contracts in one” and thus that "it cannot be argued that one provision influences the other.” Yet NL provides neither factual nor legal support for this proposition. The seventeen-page document possesses all the outward aspects of a single contract. The fact that the IEPA participated in the Granite City, but not the St. Louis Park, negotiations does not alter the conclusion that the contract is unitary. The fact that IEPA involvement may have garnered a more circumscribed Granite City indemnity obligation gives us no reason to step in and retroactively limit NL’s St. Louis Park indemnity obligation.

Hatco Corp. v. W.R. Grace & Co.-Conn.

OPINION OF THE COURT WEIS, Circuit Judge. In this case, the buyer of a chemical plant has sued the seller under state law and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-9675, for costs incurred in abating contamination at the site. The district court, applying federal common law, held that the sale agreement between the parties did not clearly reheve the seller from a duty to contribute and, after a trial, entered judgment for the buyer. We conclude that state law governs the interpretation of the contract and requires consideration of extrinsic evidence to resolve ambiguities. We agree with the district court that the parties are not entitled to a jury trial under CERCLA. Accordingly, we will vacate the judgment in favor of the buyer and remand for a hearing on the contractual issues. In 1959, W.R. Grace & Co. — Conn, acquired a chemical manufacturing business in Fords, New Jersey. Grace owned and operated the plant until 1978 when it sold the operation to the straw-parties that, in turn, transferred the business to Hateo Corporation, whose sole shareholder was and is Alex Kaufman. Kaufman had worked at the Fords site for over twenty years and served as the president of Grace’s chemical division there from 1962 until the sale in 1978. At the time of the sale, the site was polluted by the manufacturing operations that had been carried on over the years. Additional contamination occurred during the subsequent years when Hateo owned the facility. Under pressure from state authorities, Hateo undertook cleanup operations at the site and then sued for reimbursement of sums expended, alleging liability against Grace under CERCLA and the New Jersey Spill Compensation and Control Act (“Spill Act”), N.J.Stat.Ann. §§ 58:10-23.11 to -23.24. Contending that Hateo had assumed responsibility for cleanup in the 1978 agreement of sale, Grace moved for summary judgment. Hateo filed a cross-motion on the same issue. The district court denied Grace’s motion on that issue and granted Hatco’s, concluding that the agreement, as a matter of law, did not unambiguously shield Grace from Hatco’s claim for reimbursement. In a nonjury trial, the district court found both Grace and Hateo responsible under the New Jersey Spill Act and CERCLA. The court apportioned the cleanup costs between the two companies based on a number of factors and entered judgment in favor of Hateo and against Grace in the amount of $9,269,892.41, plus prejudgment interest of $2,919,885.75, for a total of $12,189,778.16. The proceedings before the district court have been chronicled in a series of published opinions. Although unresolved claims between the parties remain (including potential insurance coverage), the court entered final judgment pursuant to Fed.R.Civ.P. 54(b). Grace has appealed, raising a number of issues, one of which we find is dispositive of this appeal. I. Under CERCLA, 42 U.S.C. § 9607(e), “agreements to indemnify or hold harmless are enforceable between [private] parties but not against the government.” Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 89 (3d Cir.1988); accord Beazer East, Inc. v. Mead Corp., 34 F.3d 206, 211 (3d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1696, 131 L.Ed.2d 559 (1995). Although these private agreements cannot nullify a party’s underlying CERCLA liability, they are effective to shift the ultimate financial loss. Beazer, 34 F.3d at 211; Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1459 (9th Cir.1986). Grace contends that it is not required to reimburse Hateo for cleaning up the Fords site because in the agreement of sale between the parties, Hateo assumed the obligation of satisfying any environmental obligations. Following its earlier opinion in Mobay Corp. v. Allied-Signal, Inc., 761 F.Supp. 345 (D.N.J.1991), the district court held that in order to create a duty to indemnify under federal common law, “an unmistakable intent to do so must be expressed in unambiguous terms or be clearly implied.” Hatco Corp. v. W.R. Grace & Co.-Conn., 801 F.Supp. 1309, 1318 (D.N.J.1992). However, some months after this appeal was taken, we held that agreements among private parties inter se addressing the allocation of responsibility for CERCLA claims are to be interpreted by incorporating state, not federal, law. Fisher Dev. Co. v. Boise Cascade Corp., 37 F.3d 104, 109 (3d Cir.1994); Tippins Inc. v. USX Corp., 37 F.3d 87, 91 n. 4 (3d Cir.1994); Beazer, 34 F.3d at 215. We have also decided that, given appropriate language, a pre-CERCLA agreement can be effective for claims arising after the statute became effective. Fisher, 37 F.3d at 110; Beazer, 34 F.3d at 211. The sale agreement before us provides that its terms are to be interpreted by the laws of New York. Under that state’s law, the assignment of the burden of proof depends upon whether the agreement in question is characterized as a “release” or as an “indemnity” contract. Compare, e.g., Structural Painting Corp. v. Travelers Indemnity Co., 88 A.D.2d 743, 451 N.Y.S.2d 875, 876 (1982) (burden of establishing intent of parties is assigned to releasor) with Walsh v. Morse Diesel, Inc., 143 A.D.2d 653, 533 N.Y.S.2d 80, 83 (1988) (burden of establishing intent of parties is assigned to indemnitee). In the case before us, the district court and the parties on appeal have used the terms “release” and “indemnity” interchangeably. Under the Mdbay standard, perhaps that made no difference, but it is otherwise under Beazer. As we remarked in a CERCLA context, the effect of a release is to shield the beneficiary of that agreement from liability rather than to shift its responsibility to another as is the case of a contract to indemnify. Fisher, 37 F.3d at 112. New York law specifies that an indemnity agreement be strictly construed and that a clear and unmistakable intent to indemnify be manifested in the contract. Heimbach v. Metropolitan Transp. Auth., 75 N.Y.2d 392-93, 657, 553 N.Y.S.2d 653, 657, 553 N.E.2d 242, 246 (1990). If the parties’ intent is not clear from the writing, the court must consider extrinsic evidence. Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir.1993) (applying New York law); Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 430 (2d Cir.1992) (applying New York law); General Mills, Inc. v. Filmtel Int’l Corp., 195 A.D.2d 251, 599 N.Y.S.2d 820, 822 (1993). However, under state law, the agreement here may be more accurately characterized as a release. “To constitute a release, a writing must contain an expression of a present intention to renounce a claim.” Carpenter v. Machold, 86 A.D.2d 727, 447 N.Y.S.2d 46, 46-47 (1982) (citation omitted). “No particular form need be used in drafting a release____” Pratt Plumbing & Heating, Inc. v. Mastropole, 68 A.D.2d 973, 414 N.Y.S.2d 783, 784 (1979). Indeed, “[a]ny words may be used, as long as they manifest the releasor’s intent to discharge. The parties’ intent will determine the scope of a release.” Bank of Am. Nat'l Trust & Sav. Ass’n v. Gillaizeau, 766 F.2d 709, 713 (2d Cir.1985) (applying New York law) (citations omitted). Releases are governed by principles of contract law. Mangini v. McClurg, 24 N.Y.2d 556, 301 N.Y.S.2d 508, 511-13, 249 N.E.2d 386, 389 (1969). Whether an agreement is ambiguous is a question of law for the court, W.W.W. Assocs., Inc. v. Giancontieri, 11 N.Y.2d 157, 565 N.Y.S.2d 440, 443, 566 N.E.2d 639, 642 (1990), to be determined by looking to the document as a whole rather than to sentences or clauses in isolation. Williams Press, Inc. v. State, 37 N.Y.2d 434, 373 N.Y.S.2d 72, 76-77, 335 N.E.2d 299, 302 (1975). If an ambiguity in the document prevents a firm conclusion that an agreement is a release, extrinsic evidence may be introduced to resolve that question of fact. Gillaizeau, 766 F.2d at 713-15; see also Green v. Lake Placid 1980 Olympic Games, Inc., 147 A.D.2d 860, 538 N.Y.S.2d 82, 84 (1989) (circumstances sufficient to raise issue of fact as to parties’ intent permit extrinsic evidence as aid to interpretation of a release). A factor to be considered in determining whether an agreement is a “release” or an “indemnity” is the type of claim asserted in the litigation. “An action for the breach of an indemnity agreement does not arise until [a party] has suffered damage by reason of the breach.” Eliseo v. Stan Margolin Assocs., Inc., 175 A.D.2d 682, 572 N.Y.S.2d 831, 831-32 (1991) (citation omitted). In Bouton v. Litton Indus., Inc., 423 F.2d 643 (3d Cir.1970), we interpreted New York law in construing a contract for the sale of a business and distinguished between agreements of indemnity and those of assumption. We held that the language of the contract was “that of assumption not of indemnification” and that “one who assumes a liability, as distinguished from one who agrees to indemnify against it, takes the obligation of the transferor unto himself....” Id. at 651. Although various canons may dictate that an ambiguous agreement is to be construed against one of the parties, such rules are of little consequence when the agreement in question has been “negotiated at arm’s length between the representatives of two sophisticated business entities.” Hogeland v. Sibley, Lindsay & Curr Co., 42 N.Y.2d 153, 397 N.Y.S.2d 602, 605, 366 N.E.2d 263, 266 (1977). The burden of proof rests on the releasor to establish that general language in the document was meant to be limited “or otherwise does not represent the intent of the parties.” Mangini, 301 N.Y.S.2d at 514, 249 N.E.2d at 390; see also Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 16 n. 4 (2d Cir.1993) (applying New York law); Mardan, 804 F.2d at 1462 (applying New York law). “[T]he burden of proof is not a necessary concomitant of the burden of pleading” an affirmative defense. Hill v. St. Clare’s Hosp., 67 N.Y.2d 72, 499 N.Y.S.2d 904, 911, 490 N.E.2d 823, 830 (N.Y.1986) (citations omitted). “Thus the burden of proof as to the validity of a release is on the defendant who pleads it, but a releasor who seeks to limit the effect of a release because of a claimed mutual mistake has the burden of proof on that issue.” Id. (citations omitted). II. With this survey of New York law, we now turn our attention to the dispute at hand. The relevant language in the agreement is: “[Hateo] hereby assumes and agrees to ... discharge” certain obligations of Grace. The agreement has been invoked by Grace, which has not expended any sums for cleanup and makes no claim for them. Hence, Grace has no basis for indemnity at this point, but in reality is seeking to shield itself from Hatco’s claim for reimbursement. Hateo is attempting to recover sums it spent to meet Grace’s asserted liability. However, if the agreement is enforceable, it acts to relieve Grace from payment for matters that Hatco had taken over itself when the parties executed the assumption agreement in 1978. Indeed, as the district court pointed out, to the extent a document of that nature “prevents a purchaser from asserting a CERCLA claim against the seller, the agreement can be viewed as a ‘release.’” Hatco, 801 F.Supp. at 1317. We are in accord with this comment of the district court, and we shall treat the agreement as a release. In diversity cases, the burden of proof is a matter of substantive law, Blair v. Manhattan Life Ins. Co., 692 F.2d 296, 299 (3d Cir.1982), and is not controlled by Fed.R.Civ.P. 8(c), which governs releases pled as affirmative defenses. See Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 482, 87 L.Ed. 645 (1943). We recognize that the present dispute is not a diversity case, but because the parties here have chosen to have their agreement interpreted in accordance with New York law, we will apply that state’s substantive law on the burden of proof. See Olin, 5 F.3d at 16 n. 4; Mardan, 804 F.2d at 1462. Because it contends that the terms of the agreement are unclear, we conclude that the proper course is to require Grace to bear the burden of producing evidence bearing on ambiguity. Hateo, though, as the releasor seeking to limit the effect of the release, bears the burden of persuasion on the effect of that agreement. In reviewing the agreement, the district court used a very strict criterion articulated as simply, “No clear expression, no indemnity.” Hatco, 801 F.Supp. at 1321. In other words, the district court opined that matters extrinsic to the agreement are irrelevant to the indemnity inquiry. However, when a writing is ambiguous, New York cases require the admission of extrinsic evidence to establish or disprove the intent of the parties. The assumption agreement that Hateo executed specifically incorporated the sale agreement and read in pertinent part: “1. [Hateo] hereby assumes and agrees to pay and discharge in due course all liabilities of [Grace] attributable to the Chemical Business listed in Exhibit A to this instrument, and [Hateo] hereby assumes and agrees to perform and fulfill all obligations of [Grace] attributable to the Chemical Business____ 2. [Hateo also] agrees to indemnify [Grace] and to save and hold [Grace] harmless from and against any and all damage, liability, [or] loss ... arising out of or resulting from any failure by [Hateo] duly to perform or fulfill any agreement set forth in this instrument.” Liabilities and obligations of Grace attributable to the chemical business and assumed by Hateo were defined in relevant part as follows: “(b) [Hateo assumes] the following obligations and liabilities existing on the date of the Closing, or in the ease of those described in clause (iv), arising thereafter (i) obligations with respect to sales orders accepted by the Chemical Business, other than Excluded Liabilities; (ü) obligations for goods and services ordered by the Chemical Business, other than Excluded Liabilities; (in) liabilities and obligations with respect to capital expenditures described in any Request for Capital Appropriation approved in accordance with [Grace’s] customary procedures by the management of the Chemical Business, or any management group of [Grace] senior thereto; (iv) other obligations and liabilities arising in the ordinary course of the Chemical Business, whether prior to or after the date of the Closing, other than Excluded Liabilities; (v) other liabilities and obligations of which Alex Kaufman or David G. Sea-brook has actual present personal knowledge and awareness at the date of the Sale Agreement, other than Excluded Liabilities; (vi) other liabilities and obligations which do not exceed $5,000 per item and $50,000 in the aggregate, other than Excluded Liabilities.” (emphasis added). The “Excluded Liabilities” that Hatco did not assume were listed in specific detail and fell into a number of categories, including two pending law suits, a potential personal injury claim, and the “[alleged pollution of Sling Tail Brook on or about May 31, 1977.” “Chemical business” was defined as “that business presently conducted by [Grace] comprising the manufacture and sale of plasticisers and synthetic lubricants ... at Fords, New Jersey.” The sale agreement tracked the language and specifications set out in the assumption agreement. A. Grace contends that the pollution at the Fords site is included within the phrase “other obligations and liabilities arising in the ordinary course of the Chemical Business” and thus is within the scope of clause (iv). The district court rejected that argument and relied on Haynes v. Kleinewefers & Lembo Corp., 921 F.2d 453 (2d Cir.1990) for support. In that case, the Court of Appeals for the Second Circuit found that contractual provisions — identical in some respects to those of the case at hand but in an indemnity setting — were unambiguous. In Haynes, the purchaser of a business sought to recover amounts it had paid to settle the personal injury claim of its employee who was injured by a defective machine previously owned by the seller. The Court held that the purchaser was entitled to indemnity because the injury did not occur “in the ordinary course of business,” a factor that the contractual language required as a prerequisite to absolving the seller. The Haynes court, relying on the general rule of construction, ejusdem generis, concluded that “[following an enumeration of particular classes ‘other’ must be read as ‘other such like,’ and includes only others of like kind and character.” Id. at 457 (quoting Black’s Law Dictionary 992 (5th ed.1979)). The court thus construed the phrase “other obligations and liabilities arising in the ordinary course of business” as including matters similar to those previously enumerated in the same paragraph — such as orders for sales that had been accepted by the seller, orders for goods or services, and capital expenditures. Id. at 458. Because those categories were quite dissimilar to an incident resulting in personal injury, the court held that the employee’s claim was not included among the obligations that the buyer had undertaken. The language of the agreement “fail[ed] to establish clearly an unmistakable intent to assume an obligation to indemnify.” Id. Even assuming that personal injury to an employee does not arise in the ordinary course of business, we nevertheless differ with the district court’s view that Haynes governs the case at hand. There are two crucial factors that set the present dispute apart from that in Haynes. First, disposal of waste in the operation of a chemical plant is very much a function of the day-to-day operation of the business. Second, unlike the lack of a relevant intimation of personal injury claims in the Haynes agreement, in the one at hand, there is a specific and important reference to at least one environmental claim — the Sling Tail Brook pollution incident. If one Substitutes the phrase “Alleged pollution of Sling Tail Brook on or about May 31, 1977” for the term “Excluded Liabilities” in every instance where that term appears in paragraph (b), the facially appealing argument that clause (iv) relates only to “accepted sales orders, ordered goods and services, and capital expenditures” falls apart. We conclude that the phrase “ordinary course of the Chemical Business,” together with the reference to an environmental claim in the excluded liabilities section, creates an ambiguity as to the scope of the assumption agreement. Consequently, extrinsic evidence must be admitted to properly discern the intent of the parties. To bolster its argument, Grace sought to show that during the negotiations for sale, Hateo attempted to include in the agreement express language excluding environmental liability, but that Grace refused to do so. Although the district court held that extrinsic evidence was not permissible, it nevertheless did review Grace’s contention and reasoned that it “improperly [sought] to reverse the burden of expression of intent.” Hateo, 801 F.Supp. at 1321. The court concluded that the burden of manifesting a clear expression of intent must fall on Grace. Id. However, as we have set out in our discussion of New York law, the burden of demonstrating the intent of the parties falls on Hateo because it is the releasor attempting to limit the effect of the release. B. The district court also reviewed Hat-co’s contention that the agreement’s definition of “Chemical Business,” in referring to “business presently conducted,” would not include claims arising from manufacturing operations that had been discontinued some time before the sale. The court remarked that although it agreed with Hatco’s position on the point, “Grace’s arguments at best lead to the conclusion that the meaning of ‘Chemical Business’ is ambiguous____” Id. We agree that an ambiguity exists, and on this point also, extrinsic evidence should have been admitted. C. Clause (v) provides that Hateo would assume “other liabilities and obligations of which Alex Kaufman or David G. Seabrook has actual present personal knowledge and awareness at the date of the Sale Agreement.” The extent of those individuals’ actual knowledge is disputed, but there seems to be little doubt that they were both aware of actual or potential environmental problems in 1978. As noted earlier, Hateo unsuccessfully sought to insert in the agreement specific disclaimers of liability for such risks. The district court concluded that CERCLA liabilities did not exist at the time of the sale and, therefore, clause (v) did not establish that Hateo had assumed them. As the court viewed the situation, “liability” necessarily indicated “a legal relationship between the liable party and the party to whom it is liable.” Id. at 1322. According to the court, “No such legal relationship existed ... until [the] enactment of CERCLA.” Id. Thus, the existence of facts necessary for CERCLA liability in the court’s view was not “sufficient to constitute knowledge of ‘liabilities.’ ” Id. This reasoning is not consistent with the court’s earlier pronouncement that a broad assumption of environmental liability predating CERCLA would be effective for postCERCLA claims. Id. at 1317-18. That conclusion was clearly correct. See Fisher, 37 F.3d at 110-11 n. 1; Beazer, 34 F.3d at 211; Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 309-10 (3d Cir.1985). In those cases, as well as in the one here, “[n]o such legal relationship existed ... until [the] enactment of CERCLA,” but despite that chronology, pre-CERCLA agreements were held effective. The district court also commented that “Grace seems to forget that the CERCLA liabilities in issue were its liabilities to begin with.” Hateo, 801 F.Supp. at 1321. Although these environmental liabilities were obviously attributable to Grace before the sale in 1978, we find the court’s statement to be irreconcilable with its later conclusion that these identical liabilities were not “existing” on the closing date. See id. at 1322. Indeed, the first step in determining whether Hateo assumed Grace’s liabilities is whether Grace had any liabilities to be assumed. The court similarly remarked that “[without a statutory or common law basis to impose responsibility, ... it is too far of a stretch to characterize the existence of the facts as a ‘liability.’” Id. But Grace had already incurred potential environmental liabilities under state and federal law before the closing date of the 1978 assumption agreement. Grace was responsible under state common-law and statutory provisions for the abatement of the environmental harm to the Fords site resulting from past hazardous waste disposal practices. In State, Dep’t of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 468 A.2d 150, 163 (1983), the Supreme Court of New Jersey pointed out that “the Spill Act [did] not so much change substantive liability as it established] new remedies for activities recognized as tortious both under prior statutes and the common law.” See also Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 101 & n. 8 (3d Cir.1994) (citing T & E Indus., Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249 (1991)); Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 624 N.E.2d 959, 965-67 (1993) (applying New Jersey law). Because the waste disposal practices at the Fords site threatened the public health and the environment by leaching chemicals into potential sources of drinking water, corresponding responsibility for cleanup existed on the date of closing under federal theories as well. See, e.g., United States v. Price, 688 F.2d 204, 214 (3d Cir.1982); United States v. Solvents Recovery Serv. of New England, 496 F.Supp. 1127 (D.Conn.1980). The Mardan court’s view of New York law is also pertinent: “[I]f the injury is known, and the mistake [of the parties] is merely as to the consequence, future course, or sequelae of a known injury, then the release will stand.” Mardan, 804 F.2d at 1463 (internal quotation omitted) (applying New York law); see also Purolator Prods. Corp. v. Allied-Signal, Inc., 772 F.Supp. 124, 137 (W.D.N.Y.1991) (applying New York law). In the circumstances here, it is of no practical importance whether Grace’s obligation to clean up the site would be imposed by CERCLA, another federal statute, the common law, or a New Jersey statute. In any event, the process would require the expenditure of substantial sums of money, and it is that reimbursement which Hateo seeks here. We, therefore, do not accept the district court’s restrictive view of the term “liabilities” as found in paragraph (b) of Exhibit A to the assumption agreement. The circumstances of the sale from Grace to Hateo are unique in that Kaufman, the owner of Hateo, had been in charge of Grace’s activities at the Fords facility for many years before the transfer of ownership. It may be an exaggeration, but it makes the point to say that the buyer knew more about the plant and its operations than did the seller. Kaufman’s knowledge as of the closing date was discussed at length by the district court in its findings of fact after the trial. The court found that Kaufman had been highly regarded by Grace as an organic chemist. Hatco v. W.R. Grace & Co.—Conn., 836 F.Supp. 1049, 1077 (D.N.J.1993). He had been employed by Grace’s predecessor in a number of capacities and, at one point, had been in the research and development laboratory that was responsible for product developments and improvements in the manufacturing processes. He became plant manager and acquired familiarity with waste disposal practices at the facility. In 1960, at his request, an engineering expert submitted a report on the waste water disposal practices at Fords. In 1962, Kaufman became president of the division that operated the facility and began to spend more of his time acquiring new business, rather than taking a particularly active part in running the day-to-day operation of the Fords plant. Id. at 1078. However, he was regularly informed of any contacts with governmental agencies on environmental matters, other environmental problems at the facility, and the plant’s pollution control expenditures. Id. at 1079. He received monthly reports on whether the Grace chemical division had been involved in any government proceedings pertaining to enforcement of environmental laws. As of 1978 at the latest, Kaufman was aware of the increasing activity of governmental agencies in coping with the environmental consequences of past and present chemical manufacturing activities. He was kept advised of impending legislation, including such federal statutes as the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629, and understood that those involved in the chemical business had to be concerned about environmental regulations. These findings offer compelling reasons for determining the extent of Kaufman’s knowledge at the time of the closing. Seabrook also had worked for some time at the plant before its sale to Hateo, and his knowledge, too, is a crucial issue. Without further proceedings to adequately develop those facts, the court will be unable to decide the meaning of clause (v). D. To resolve the ambiguities that we have discussed, it will be necessary that the matter be remanded to the district court so that it may conduct a hearing at which extrinsic evidence may be produced in order to determine the full scope and effect of the assumption agreement. However, before concluding, we must determine whether this case must be tried to a jury. III. Grace contends that it was entitled to a jury trial on its CERCLA claims. The procedural aspects of the jury trial issue in this record are somewhat blurred. Rather than exploring the complexities, we shall assume that Grace was entitled to rely on the jury trial demand originally made by Hateo on the CERCLA claims. The district court denied Grace’s requests, concluding that cost-recovery actions and claims for contribution under CERCLA, 42 U.S.C. §§ 9607(a)(4) and 9613, are equitable in nature. Hatco v. W.R. Grace & Co.-Conn., 859 F.Supp. 769, 774 (D.N.J.1994). The district court ruled that cost-recovery suits are actions for restitution and are not triable to a jury. 42 U.S.C. § 9607(a)(4)(B) provides that the owner or operator of a facility is liable for “necessary costs of response incurred by any other person consistent with the national contingency plan.” Judicial construction of this section originally created an implied right of contribution. See Key Tronic Corp. v. United States, — U.S. -, -, 114 S.Ct. 1960, 1965, 128 L.Ed.2d 797 (1994). However, a subsequent amendment to CERCLA (SARA), 42 U.S.C. § 9613(f)(1) provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) ... during or following any civil action under [that section].” The court is permitted to allocate response costs under section 9613(f)(1) “using such equitable factors as the court determines are appropriate.” As the Supreme Court said, sections 9607 and 9613 provide “similar and somewhat overlapping remedies].” Key Tronic, — U.S. at -, 114 S.Ct. at 1966. In United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir.1992), we determined that under section 9607, an alleged responsible party is entitled to prove that the environmental harm is divisible and thus is reflected in the degree of liability. On the other hand, section 9613(f)(1) allows more discretion to the court in allocating response costs, and factors other than liability may enter into apportionment. Id. at 270 n. 29; see also United States v. Colorado & E. R.R., 50 F.3d 1530, 1534-38 (10th Cir.1995) (§ 9607 establishes joint and several responsibility on a strict liability basis; § 9613 allocates amounts due on equitable considerations). Both sections are intertwined, and there are practical difficulties with making a distinction between them that would justify differing rulings on the availability of a jury trial. As a general rule, the right to a jury trial is protected by the Seventh Amendment when the claim is a legal one, but not if it is equitable. In establishing new statutory remedies, Congress may provide for jury trials in addition to those required by the Constitution. Tull v. United States, 481 U.S. 412, 417 n. 3, 107 S.Ct. 1831, 1835 n. 3, 95 L.Ed.2d 365 (1987); Curtis v. Loether, 415 U.S. 189, 191-92, 94 S.Ct. 1005, 1006-07, 39 L.Ed.2d 260 (1974). The determination of which form of trial is applicable to a specific claim, however, is not always a simple one, particularly when the remedy is statutory and Congress has not stated its intention. See the discussion in Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 744-49 (D.C.Cir.1995). A. The only appellate court ruling on the right to a jury trial in CERCLA cases is United States v. Northeastern Pharmaceuti cal & Chem. Co., 810 F.2d 726 (8th Cir.1987). There, the Court of Appeals determined that a jury trial was not permitted in an action brought under section 9607 by the government against several individuals, alleging them to be jointly and severally liable for response costs. Id. at 749. The Court observed that the government was asking for restitution of amounts that it had expended and as such was seeking a form of equitable relief. Restitution is based on substantive liability having its origins in unjust enrichment or the restoration to a party in kind of his lost property or its proceeds. Crocker, 49 F.3d at 747; see also Porter v. Warner Holding Co., 328 U.S. 395, 402, 66 S.Ct. 1086, 1091, 90 L.Ed. 1332 (1946) (restitution is within the traditional equitable powers of the court); Restatement of Restitution § 115. Northeastern Pharmaceutical’s holding has been widely accepted, and Grace does not take issue with it on this appeal. We are in agreement that a jury trial is not available in a claim brought under section 9607. B. Whether a right to a jury trial exists in a claim grounded in section 9613(f)(1) has not been decided by any appellate court, but the district courts have reached conflicting results on the issue. The statute contains no references to the right to juries. One district court, after performing an exhaustive search, found no specific comments in the legislative history. See American Cyanamid Co. v. King Indus., Inc., 814 F.Supp. 209, 212-13 (D.R.I.1993). We note that one statement in the Report of the House Committee on the Judiciary accompanying SARA tends to disclaim any congressional intent to have juries decide § 9613 matters. “New subsection [9613(f)(1) ] of CERCHA ... ratifies current judicial decisions that the courts may use their equitable powers to apportion the costs of clean-up among the various responsible parties involved with the site. Courts are to resolve claims for apportionment on a case-by-case basis pursuant to Federal common law, taking relevant equitable considerations into account. Thus, after questions of liability and remedy have been resolved, courts may consider any criteria relevant to determining whether there should be an apportionment.” 131 Cong.Rec. 34,645 (1985); see also H.R. 253(III), 99th Cong., 2d Sess. 19 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 3038, 3041-42. Finding no clear indication of congressional intent to grant a jury trial in either the statute or the legislative history, we must therefore look to the constitutional guarantee in the Seventh Amendment. The Supreme Court has supplied the formula for this largely historical review, acknowledging its difficulty. “ ‘First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.’ ” Wood-dell v. International Bhd. of Electrical Workers, Local 71, 502 U.S. 93, 97, 112 S.Ct. 494, 497, 116 L.Ed.2d 419 (1991) (quoting Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 565, 110 S.Ct. 1339, 1345, 108 L.Ed.2d 519 (1990)). In In re Japanese Elec. Prods. Antitrust Litig., 631 F.2d 1069 (3d Cir.1980), we were favored with an elaborate historical presentation by the parties. After considering the various arguments, we concluded that courts determine “the legal or equitable nature of a suit by comparing it with suits actually tried in courts of common law or equity.” Id. at 1083. The parties here have not briefed the historical phase of the inquiry, and we disclaim an exhaustive survey of our own on whether contribution in the 18th century was an equitable or legal remedy. Our research, however, indicates that during the relevant period, contribution was an equitable remedy. In reviewing various texts, we have found Joseph Story’s Commentaries on Equity Juris prudence (2d ed. 1839) to be the most persuasive. Conceding that, in a few cases, a common-law remedy of contribution existed, the author states that the “more beneficial exercise of Equity Jurisdiction, in cases of apportionment and contribution, is in cases, where ... charges on real estate ... are actually paid off by some of the parties in interest____ In most cases of this sort there is no remedy at law, from the extreme uncertainty of ascertaining the relative proportions, which different persons, having interests of a very different nature, quality, and duration, in the subject-matter, ought to pay.” Id. § 483, at 461 (footnote omitted). That comment is particularly applicable in CERCLA claims. Justice Story also referred to opinions written by the highly regarded authority on equity, Chancellor Kent of New York. Id. § 469, at 449 n. 2. In Cheesebrough v. Millard, 1 Johns. Ch. 409, 415 (N.Y. Ch. 1815), Kent wrote that “[t]he object of the principle of contribution is equality in the support of a common burden____” Similarly, in Campbell v. Mesier & Dunstan, 4 Johns. Ch. 334, 338 (N.Y. Ch. 1820), he observed that “[t]he doctrine of contribution is founded, not on contract, but on the principle, that equality of burden, as to a common right, is equity....” Chancellor Kent cited Lord Chief Baron Eyre’s opinion in Dering v. Earl of Winchelsea, 1 Cox’s Ch. Cas. 318, 321, 29 Eng.Rep. 1184, 1185, 2 Bos. & Pull. 270 (Ex. 1787), where it is said, “we shall find that contribution is bottomed and fixed on general principles of justice, and does not spring from contract.... [T]he doctrine of equality operates more effectually in this Court, than in a Court of law.” See also Stevens v. Cooper, 1 Johns. Ch. 425, 430 (N.Y. Ch. 1815) (“It is a doctrine well established, that when land is charged with a burden, the charge ought to be equal, and one part ought not to bear more than its due proportion; and equity will preserve this equality by compelling the owner of each part to a just contribution.”) (citing Harbert’s Case, 3 Coke’s Rep. 14, 76 Eng.Rep. 647 (Ex. 1584); Harris v. Ingledew, 3 P.Wms. 91, 24 Eng.Rep. 981 (M.R. 1730)); John Adams, The Doctrine of Equity 219-25 (1st ed. 1850). Although John N. Pomeroy’s Treatise on Equity Jurisprudence § 1418, at 468 n. 1 (1st ed. 1883) states that “jurisdiction at law has become well settled which is sufficient in all ordinary eases of suretyship or joint liability,” he acknowledges that “[t]he equitable jurisdiction still remains and has some most important advantages.” That commentary, however, was written several decades after that of Justice Story. As George E. Palmer explains in his work The Law of Restitution § 1.5, at 31 (1978), enforcement of contribution claims by suits at law did not appear until early in the nineteenth century. The nature of CERCLA claims has been noted by us in passing, “The contribution proceeding is an equitable one in which a court is permitted to allocate response costs based on factors it deems appropriate.” Alcan, 964 F.2d at 270 n. 29. In another context we remarked, “[T]he right of contribution from others is grounded in equity.” Pacific Indem. Co. v. Linn, 766 F.2d 754, 769 (3d Cir.1985). After our review of the more important authorities, we are of the belief that a claim for contribution of the nature presented in the case before us would have been entertained by a chancellor in equity in 1791, but not by a court at law. That determination is not dispositive in and of itself because the claims here are brought pursuant to the terms of a statute. As the Supreme Court has observed, where Congress provides for enforcement of statutory rights in a civil suit, “a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law.” Curtis, 415 U.S. at 195, 94 S.Ct. at 1009. But certainly the fact that the remedy was one typically granted only in equity argues against a statutory remedy being considered as one at law. In Rex v. Cia Peruana de Vapores, S.A., 660 F.2d 61, 65 (3d Cir.1981), we observed that the Seventh Amendment issue presented in a case must be considered in the context of the congressional schema in which it arises. As noted earlier, CERCLA’s language and legislative history lack any evidence of intent to have the claims determined by a jury. To the contrary, references to equity and equitable factors do appear, and we may assume that Congress was well aware that juries are not a feature of equitable trials. It is entirely reasonable, therefore, to believe that Congress intended to design a remedy that would track traditional equity practice. Cf. Cox v. Keystone Carbon Co., 861 F.2d 390, 393 (3d Cir.1988) (ERISA case) (“[W]e can infer that Congress knew the significance of the term equitable and intended that no jury be available on demand.”); see also Pane v. RCA Corp., 868 F.2d 631, 637 (3d Cir.1989) (ERISA case). In the case at hand, the district court reasoned that because the precipitating claims under section 9607 are primarily equitable in nature, a claim for contribution under section 9613(f)(1) is also essentially equitable. Hatco, 859 F.Supp. at 775. The court further relied on the fact that section 9613(f)(1) requires a court to apportion the costs between the parties “using such equitable factors as the court determines are appropriate.” Id. at 775 n. 3. We concur with the district court’s reasoning. Particularly, we are impressed with the references in section 9613(f)(1) to “equitable” factors. This is an indication that the statutory action for contribution is to be a flexible remedy that may be based on circumstances not cognizable in nor readily adaptable to an action at law. In sum, we are persuaded that an action for contribution under section 9613(f)(1) is essentially equitable. Accord United States v. R.W. Meyer, Inc., 932 F.2d 568, 572 (6th Cir.1991). Accordingly, we hold that in suits brought under 42 U.S.C. §§ 9607 or 9613(f)(1), the parties are not entitled to a jury trial. IV. The parties have raised a number of other issues not related to the 1978 assumption agreement. We decline to address them at this juncture because the ultimate resolution of the assumption question could be outcome-determinative and our opinion on those other issues would be merely advisory. Accordingly, we will vacate the judgment of the district court and will remand for further proceedings consistent with this opinion. Each party to bear its own costs. ADDENDUM The assumption agreement between Grace and Hateo read as follows: “ HATCO CHEMICAL BUYER’S ASSUMPTION AGREEMENT ... [Pjursuant to the Sale Agreement and for valuable consideration, the receipt of which is hereby acknowledged, 1. [Hateo] hereby assumes and agrees to pay and discharge in due course all liabilities of [Grace] attributable to the Chemical Business listed in Exhibit A to this instrument, and [Hateo] hereby assumes and agrees to perform and fulfill all obligations of [Grace] attributable to the Chemical Business listed in Exhibit A to this instrument. As used in this instrument, ‘Chemical Business’ means that business presently conducted by the Chemical Division of the Hateo Group of [Grace] comprising the manufacture and sale of plasticisers and synthetic lubricants at a principal manufacturing location at Fords, New Jersey. For purposes of this instrument, ‘Chemical Business’ does not include the business of purchase and resale of oxoalcohols conducted by such Chemical Division, or any interest of [Grace] in Grace Petro-chemicals, Inc. or its undivided one-half interest in Oxochem Enterprise. 2. [Hateo] hereby agrees to indemnify [Grace] and to save and hold [Grace] harmless from and against any and all damage, liability, loss, edst or deficiency (including, but not limited to, reasonable attorneys’ fees and other costs and expenses incident to proceedings or investigations of the defense of any claim) arising out of or resulting from any failure by [Hateo] duly to perform or fullfill any agreement set forth in this instrument.” Exhibit A of the assumption agreement provided the following: “Assumed Liabilities and Obligations [By Hateo] The following liabilities and obligations of [Grace] attributable to the Chemical Business: (a) liabilities of the Hateo Chemical Division of [Grace] reflected in, reserved against or noted on the Closing Net Statement, other than Excluded Liabilities; and (b) the following obligations and liabilities existing on the date of the Closing, or in the case of those described in clause (iv), arising thereafter, whether or not they are reflected in, reserved against or noted on the Closing Net Statement: (i) obligations with respect to sales orders accepted by the Chemical Business, other than Excluded Liabilities; (ii) obligations for goods and services ordered by the Chemical Business, other than Excluded Liabilities; (in) liabilities and obligations with respect to capital expenditures described in any Request for Capital Appropriation approved in accordance with [Grace’s] customary procedures by the management of the Chemical Business, or any management group of [Grace] senior thereto; (iv) other obligations and liabilities arising in the ordinary course of the Chemical Business, whether prior to or after the date of the Closing, other than Excluded Liabilities; (v) other liabilities and obligations of which Alex Kaufman or David G. Seabrook has actual present personal knowledge and awareness at the date of the Sale Agreement, other than Excluded Liabilities; (vi) other liabilities and obligations which do not exceed $5,000 per item and $50,000 in the aggregate, other than Excluded Liabilities. All terms defined in the Sale Agreement have the same meaning in this agreement. The following are the Excluded Liabilities, as defined in the Sale Agreement: ‘Excluded Liabilities’ means the following liabilities and obligations of [Grace] attributable to the Chemical Business for all periods ending on or prior to the date of the Closing: (a) all liabilities for taxes, including without limitation income taxes, (except federal, state and local payroll and withholding taxes for the pay period which includes the date of the Closing, to the extent not paid by [Grace], provided an accrual in such amount shall be made in the Closing Net Amount) (b) notes and accounts payable to other groups, divisions or other units or subsidiaries or affiliates of [Grace], other than trade accounts payable arising from the purchase of goods, (c) liabilities against which [Grace] is effectively insured, without regard to any applicable deductible amounts, (d) product liabilities, including without limitation liabilities for personal injury, with respect to merchandise sold or shipped prior to the date of the Closing, (e) liabilities and obligations arising from claims asserted by any employee or former employee with respect to injury, sickness, disease or death or under any disability of workmen’s compensation laws, (f) liabilities for which the corresponding assets are prepaid expenses and deferred charges, the benefit of which cannot be effectively transferred to [Hateo], (g) liabilities and obligations arising from claims asserted by any of the former owners or managers of any predecessor company, any portion of the business or assets of which is included in the Chemical Business or the Chemical Assets, and (h) the liabilities specifically described in the schedule to this Exhibit.” The schedule to Exhibit A of the assumption agreement provided the following: “Excluded Liabilities [i.e., Those Retained By Grace] 1. Alleged pollution of Sling Tail Brook on or about May 31, 1977. 2. Canton v. Buffalo Tank, et al., Superi- or Court of New Jersey, Middlesex County, Docket L-4354-77. 3. Potential claim by Norman Bresee for personal injury incurred at the Chemical plant in 1976. 4. Liloia v. E.I. duPont de Nemours & Co., Inc., et al., Superior Court of New Jersey, Essex County, Docket L-44267-76.” . The parties have made no distinction between Hateo and its corporate predecessors to whom Grace had originally sold the plant. We will therefore treat Hateo as if it were the original purchaser. . Hatco Corp. v. W.R. Grace & Co.-Conn., 859 F.Supp. 769 (D.N.J.1994); Hatco Corp. v. W.R. Grace & Co.-Conn., 849 F.Supp. 987 (D.N.J. 1994); Hatco Corp. v. W.R. Grace & Co.-Conn., 849 F.Supp. 931 (D.N.J.1994); Hatco Corp. v. W.R. Grace & Co.-Conn., 836 F.Supp. 1049 (D.N.J.1993), modified, 849 F.Supp. 987 (D.N.J.1994); Hatco Corp. v. W.R. Grace & Co.-Conn., 801 F.Supp. 1334 (D.N.J.1992); Hatco Corp. v. W.R. Grace & Co.-Conn., 801 F.Supp. 1309 (D.N.J.1992). . Although a claim for indemnity does not arise until the prime obligation to pay has been established, some third-party actions may be commenced in the interest of judicial economy before they are technically ripe. Mars Assocs., Inc. v. New York City Educ. Constr. Fund, 126 A.D.2d 178, 513 N.Y.S.2d 125, 133, appeal dism'd as interlocutory, 70 N.Y.2d 747, 519 N.Y.S.2d 1033, 514 N.E.2d 391 (1987). . For example, in New York, an ambiguous contract usually is construed most strongly against the drafter when the other party has had no voice in the preparation. Jacobson v. Sassower, 66 N.Y.2d 991, 499 N.Y.S.2d 381, 382, 489 N.E.2d 1283, 1284 (1985). By contrast, a release is construed most strongly against the releasor. Mt. Read Terminal, Inc. v. LeChase Constr. Corp., 58 A.D.2d 1034, 396 N.Y.S.2d 959, 960 (1977). 5. Seabrook served as a financial analyst at the Fords plant at one time and as one of the principal negotiators for Hateo in its purchase of the facility in 1978. . See also Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 754-55 (5th Cir.1994) (two leases dated 1942 and 1949 were sufficiently broad so as to transfer responsibility for cleanup costs, "even though environmental liability ... was not specifically contemplated at the time of contracting") (applying Louisiana law); Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 326-27 (7th Cir.1994) (1972 agreement was sufficiently broad so as to transfer responsibility for cleanup costs, agreement covered claims of "pollution or nuisance,” and state environmental statute was enacted two years before the parties contracted) (applying Illinois law); Olin, 5 F.3d at 15-16 (1974 agreement was sufficiently broad so as to transfer responsibility for cleanup costs "even to future unknown liabilities") (applying New York law); John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401, 407 (1st Cir.1993) (1959 agreement was narrow so as to preclude transfer of responsibility for cleanup costs because agreement only related to "existing” liabilities, but apparently made no mention of environmental liabilities) (applying Massachusetts law); United States v. Hardage, 985 F.2d 1427, 1435 (10th Cir.1993) (1972 and 1977 agreements to transport hazardous waste were sufficiently broad so as to transfer responsibility for cleanup costs, and yet sufficiently narrow so as to preclude cross-indemnification) (applying Oklahoma law); AM Int’l, Inc. v. International Forging Equip. Corp., 982 F.2d 989, 997 (6th Cir.1993) (1979 agreement, but remand was necessary to determine whether parties contemplated environmental liabilities despite the fact that the agreement apparently made no mention of environmental liabilities) (applying Ohio law); Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 624 N.E.2d 959, 966 (1993) (1976 agreement was sufficiently broad so as to transfer responsibility for cleanup costs, and "the parties were aware of changing [environmental] regulations and strict liability was a tenable claim") (applying New Jersey law). . The parties both limit their discussion of environmental liabilities to those arising under New Jersey as well as federal law. . It is questionable whether Grace's demand for a jury trial on its "counterclaim” was appropriate. The assumption agreement is properly characterized as a release that should have been pleaded as an affirmative defense. It is not a separate claim. See Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185 (3d Cir.1979). See also Fed.R.Civ.P. 8(c) (a defense improperly pleaded as a counterclaim may be treated by the court "as if there had been a proper designation”). . Compare American Cyanamid Co. v. King Indus., Inc., 814 F.Supp. 209, 213-15 (D.R.I.1993); Wehner v. Syntex Corp., 682 F.Supp. 39, 39-40 (N.D.Cal.1987) with United States v. Shaner, No. 85-1372, 1992 WL 154618, at **2-4 (E.D.Pa. June 15, 1992) (unpublished opinion). . As the Supreme Court noted in Northwest Airlines, Inc. v. Transport Workers Union of Am., AFL-CIO, 451 U.S. 77, 86 n. 16, 101 S.Ct. 1571, 1578 n. 16, 67 L.Ed.2d 750 (1981), the non-contribution rule of the common law is generally traced to Merryweather v. Nixan, 8 Term.Rep. 186, 101 Eng.Rep. 1337 (K.B.1799). Because most American courts understood that case as a general proscription of contribution, the early common law in this country prohibited contribution among joint tortfeasors. . Lord Devlin argues that the test should be whether a chancellor in 1791 would have exercised the power of equity to hear the case, not the more narrow inquiry of whether precedent demonstrated that such suits had actually been heard. See Patrick Devlin, Equity, Due Process and the Seventh Amendment: A Commentary on the Zenith Case, 81 Mich.L.Rev. 1571 (1983). It would seem that Lord Devlin's approach, unfortunately, would lead to even more uncertainty in determining the bounds of the Seventh Amendment.

Hatco Corp. v. W.R. Grace & Co.-Conn.

HUTCHINSON, Circuit Judge, Concurring and Dissenting. I concur in the decision to vacate the district court’s judgment in favor of Hateo on its claim for contribution from Grace. I agree that the district court incorrectly applied federal rather than New York law to interpret the meaning of the ambiguous provisions in the sales agreement governing Hatco’s responsibility for liabilities arising out of Grace’s prior operation of its “chemical business” on the real property Hatco purchased. See Beazer East, Inc. v. Mead Corp., 34 F.3d 206 (3d Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1696, 131 L.Ed.2d 559 (1995). I respectfully disagree, however, with the Court’s conclusion that New York law requires the applicable provisions of the sales agreement to be construed as a release rather than a promise to indemnify. I believe that these provisions are also ambiguous as to whether the parties intended to release or indemnify Grace against such liabilities. Indeed, Hateo’s release is Grace’s indemnity. Thus, I believe their characterization as a release or an indemnity is a question of fact that should be decided by the district court in the first instance. New York law is not a model of clarity in distinguishing releases from agreements to indemnify. Compare Structural Painting Corp. v. Travelers Indem. Co., 88 A.D.2d 743, 451 N.Y.S.2d 875, 876 (1982) with Walsh v. Morse Diesel, Inc., 143 A.D.2d 653, 533 N.Y.S.2d 80, 83 (1988). In New York, as elsewhere, a polluter seeking indemnity against the cost of abating its pollution must establish an unmistakable intent to indemnify as well as the extent of the indemnification by clear evidence. Heimbach v. Metropolitan Transp. Auth., 75 N.Y.2d 387, 553 N.Y.S.2d 653, 657, 553 N.E.2d 242, 246 (N.Y.1990) (citations omitted). New York law, on the other hand, allows a releasee to establish intent to release by a mere “expression of a present intention to renounce a claim.” Carpenter v. Machold, 86 A.D.2d 727, 447 N.Y.S.2d 46, 47 (1982) (citation omitted). Moreover, once a document construed as a release is held to be ambiguous, the burden of proving the kinds of harm that are not subject to the release shifts to the releasor. Structural Painting, 451 N.Y.S.2d at 876. Unfortunately, the uncertainty that arises in applying these distinctions to disputes among two or more polluters of a single site over payment of the cost of abating contamination each has contributed to seems to me likely to increase the already staggering transactional costs of CERCLA litigation. I am especially reluctant to hold, as a matter of law, that New York would construe an agreement like the one before us as a release if, as the Court indicates, it introduces the factor of who acts first into the process of distinguishing agreements of release from promises to indemnify. See Majority Op. at 406-07. This could import into CERCLA litigation an incentive for a polluter to delay the start of clean up lest this publicly responsible act may prove privately costly. Thus, I believe CERCLA’s goal of expeditious environmental cleanup will be better served by interpreting provisions in ambiguous agreements for allocation of the cost of abating pollution among polluters as agreements of indemnity rather than agreements of release, when applicable local law makes that possible. Accordingly, though I concur in the Court’s mandate remanding this case to the district court for reconsideration of Hatco’s claim for contribution under New York rather than federal common law, I would also leave the district court free to decide, in the first instance, whether the parties intended an agreement of release or one of indemnity. Present: BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ROTH, LEWIS, MCKEE, SAROKIN and WEIS, Circuit Judges. SUR PETITION FOR REHEARING Aug. 8, 1995 The petition for rehearing filed by appellee in the above entitled ease having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judge Hutchinson would have granted rehearing. . I agree with the Court that additional evidence may be needed on remand concerning Kaufman's and Seabrook's knowledge of the extent to which the site was polluted before the sale. In addition, I note my full agreement with the scholarly analysis the Court adduces to support its rejection of Grace’s contention that it has a Seventh Amendment constitutional right to a jury trial on its CERCLA claims.

Farmland Industries, Inc. v. Morrison-Quirk Grain Corp.

BEAM, Circuit Judge. Disappointed with the results obtained in two previous trials, Morrison Enterprises and Farmland Industries each ask this court for a third chance to obtain favorable verdicts. The parties appeal jury verdicts which deny them recovery for response costs incurred under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. (CERCLA). We affirm. 1. BACKGROUND Morrison Enterprises (“Morrison”) operated a grain storage and handling business at the FAR-MAR-CO subsite, which it owned, from 1954 to 1975. In connection with the grain storage business, Morrison stored liquid grain fumigants, including Max-Kill 10, in a 3000- to 4000-gallon tank on top of one of the grain elevators. Max-Kill 10 contains two hazardous substances, carbon tetrachloride and ethylene dibromide. See 42 U.S.C. § 9601(14). A grain dust explosion in 1959 dislodged the Max-Kill storage tank from its position on top of the grain elevator. Insurance claims filed at that time indicated that 940 gallons of Max-Kill 10 were lost due to the explosion. In 1975, Farmland Industries (“Farmland”) purchased the subsite, including the storage tank containing Max-Kill 10, from Morrison. The storage tank contained approximately 2500 gallons of Max-Kill 10 when Farmland purchased it. Sometime between 1982 and 1983, Farmland discovered that the Max-Kill storage tank was empty. In 1986, the large amount of soil and ground contamination discovered at and around the FAR-MAR-CO subsite prompted the Environmental Protection Agency (EPA) to designate it as a “Superfund” site. In 1988, the United States brought a CERCLA action against Morrison to recover past and future response costs. The district court granted the United States partial summary judgment on its claims. Morrison entered into a consent decree with the government resolving its liability in late 1992. Shortly after the government filed suit against Morrison in 1988, Farmland filed a declaratory judgment action against Morrison. Farmland sought a determination that Morrison was responsible for any response costs incurred by Farmland to clean up the FAR-MAR-CO site. Morrison filed a coun-terelaim against Farmland seeking recovery for its past and future costs. After hearing all of the evidence, the jury returned a verdict for Morrison on Farmland’s claim, and a verdict for Farmland on Morrison’s counterclaim. The district court denied the parties’ post-trial motions and entered judgment according to the jury verdicts. The parties appealed to this court. We found the jury instructions given in the first trial deficient, and we remanded the case for a new trial. Farmland Indus., Inc. v. Morrison-Quirk Grain Corp., 987 F.2d 1335 (8th Cir.1993) (Farmland I). The second trial produced the same results as the first trial. The parties now return to this court, contending that the district court inadequately resolved certain aspects of the second trial. II. ANALYSIS A. Morrison’s Appeal Morrison makes numerous arguments on appeal. It contends that the district court erred by 1) failing to dismiss Farmland’s contribution claim because Farmland did not properly plead its cause of action, 2) failing to find that CERCLA’s contribution protection provision barred Farmland’s contribution claim, 3) erroneously permitting an expert witness to testify about matters not specified in the pre-trial order, and 4) failing to grant certain of Morrison’s motions. We will address each of these arguments in turn. 1. Proper Pleading Despite the two full trials and one previous appeal, Morrison contends that Farmland’s action should be dismissed because Farmland did not properly plead that it was seeking response costs consistent with the National Contingency Plan (NCP). NCP compliance is a prerequisite for recovery of response costs under CERCLA. See 42 U.S.C. § 9607(a)(4)(B). Admittedly, Farmland’s complaint does not state that it was seeking response costs consistent with the NCP. Such an omission, however, is not automatic cause for dismissal of Farmland’s claim. NCP compliance was clearly in issue at the second trial. Morrison raised compliance with the NCP as an affirmative defense to Farmland’s complaint. The parties discussed the NCP at the second pre-trial conference, and the resulting pretrial order lists NCP compliance as a controverted issue. Both parties presented evidence on the matter at trial. When issues missing from a complaint are tried by express or implied consent of the parties, “this consent acts to permit what is in effect a constructive amendment of the pleadings to include those issues.” Walton v. Jennings Comm. Hosp., Inc., 875 F.2d 1317, 1321 n. 3 (7th Cir.1989). See Fed.R.Civ.P. 15(b). Permitting this constructive amendment conserves judicial resources and is consistent with our liberal system of pleading. Karlen v. Ray E. Friedman & Co. Commodities, 688 F.2d 1193, 1197 n. 3 (8th Cir.1982). We conclude that constructive amendment cures any ills in Farmland’s complaint. .Additionally, because the pre-trial order supersedes the allegations in the eom- . plaint, at least in part, it amends the pleadings to include the NCP issue. 2. Contribution Protection As indicated, Morrison entered into a consent decree with the United States government in which Morrison agreed to compensate the government for past and future response costs related to the FAR-MAR-CO subsite. Morrison argues. that under a CERCLA contribution provision, this consent decree bars Farmland from obtaining contribution. ■ CERCLA provides contribution protection for matters addressed in a consent decree. 42 U.S.C. § 9613(f)(2). This contribution protection applies in suits by private parties against a party that has settled with the government. See, e.g., United States v. Cobrado & E. R.R., 50 F.3d 1530, 1535-38 (10th Cir.1995); Dravo Corp. v. Zuber, 13 F.3d 1222, 1226 (8th Cir.1994) (construing 42 U.S.C. § 9622(g)(5), an analogous CERCLA contribution protection provision). Assuming that the matters addressed in Morrison’s consent decree include the type of response costs Farmland is seeking, the district court may have erred in permitting some or all of Farmland’s contribution claim to proceed. See Colorado & E. R.R., 50 F.3d at 1536-38. We need not reach this issue, however, because, in any event, a new trial is not required. Morrison has not alleged any cognizable harm due to the jury’s consideration of Farmland’s claim. Morrison was not held liable in Farmland’s contribution action. Nonetheless, Morrison argues that it was prejudiced by the jury’s consideration of Farmland’s contribution claim because Farmland was permitted to present causation evidence that should have been kept out. We disagree. ' Farmland was free to introduce the allegedly prejudicial causation evidence, regardless of whether it could proceed on its own contribution claim, when defending itself on Morrison’s contribution action. 3. Expert Testimony During the limited discovery before the second trial, the parties designated their expert witnesses, and, pursuant to Rule 26 of the Federal Rules of Civil Procedure, stated the substance of those witnesses’ testimony. Farmland designated Dr. Jury, who had testified at the previous trial, as an expert witness. However, Farmland did not state that Dr. Jury would testify as to the causal connection between the specific release events and the present day contamination. Apparently uncertain of the scope of Dr. Jury’s testimony, Morrison asked to take his deposition again. At that time, Dr. Jury gave his opinion about the cause of the present day contamination. Morrison made a motion in limine to prevent Dr. Jury from testifying about causation, contending that permitting Dr. Jury to testify on previously undesignated issues would violate Rule 26(e) and be manifestly unjust and prejudicial. The district court refused to grant that motion. Morrison raises the same fairness concerns here. As with all discovery matters, the district court maintains broad control over Rule 26(e) issues regarding the disclosure of the substance of an expert’s testimony. We will not reverse a district court’s decision in this area “absent a ‘gross abuse of discretion resulting in fundamental unfairness in the trial of the case.’ ” SDI Operating Partnership, L.P. v. Neuwirth, 973 F.2d 652, 655 (8th Cir.1992) (quoting Wilson v. Beloit Corp., 921 F.2d 765, 768-69 (8th Cir.1990)). We do not find such an abuse of discretion here. Morrison was extremely familiar with Dr. Jury and his testimony. Dr. Jury testified at the first trial that he believed that the 1959 explosion was the only possible source of chemical introduction into the ground. When Morrison first realized that Dr. Jury would discuss causation at the second trial, Morrison took Dr. Jury’s deposition and further explored his testimony. This additional deposition provided Morrison with adequate information to cure any deficiencies in Farmland’s designation. Accordingly, the district court found that Morrison was neither surprised nor confused at the substance of Dr. Jury’s testimony. This lack of surprise prevented prejudice from occurring. The district court did not err in permitting Dr. Jury to testify regarding present day contamination. 4. Catch-All Objections Finally, Morrison’s brief contains a number of catch-all objections which purportedly demonstrate error. Morrison argues that the district court erred in: 1) submitting Farmland’s claims to the jury; 2) failing to enter judgment in Morrison’s favor on Morrison’s claims; and 3) refusing to grant Morrison’s motion for renewed judgment as a matter of law, or alternatively, Morrison’s motion for a new trial. These objections all stem from Morrison’s contention that Farmland did not present any evidence of present day contamination. Because demonstrating present day contamination is a requirement for recovery, Morrison reasons that this case is fatally flawed. Without fully reaching Morrison’s underlying contention, we find each of Morrison’s arguments lacking. First, Morrison contends that the court’s submission of Farmland’s claim to the jury was prejudicial error. As previously indicated, however, the jmy did not return a verdict for Farmland on Farmland’s claim. We will not overturn a ruling or decision if we find that any error that existed was harmless. See Fed.R.Civ.P. 61. Because the jury did not hold Morrison liable for contribution to Farmland, we find that the error, if any, was harmless. Next, Morrison contends that the district court improperly refused to enter judgment as a matter of law in Morrison’s favor on Morrison’s claim for contribution. However, Morrison did not move for judgment on its claim at either the close of its own case-in-chief or at the close of all the evidence. Absent a proper motion, a district court is not compelled to rule. This same procedural default renders Morrison’s post-trial “renewed motion for judgment as a matter of law” improper. A post-verdict motion is not valid unless it has been preceded by a motion for judgment as a matter of law made at the close of all the evidence. Smith v. Ferrel, 852 F.2d 1074, 1075 (8th Cir.1988); Fed.R.Civ.P. 50(b). As Morrison did not make a motion on its claim at the close of all the evidence, its post-trial motion was procedurally infirm and we will not review it. Alternatively, Morrison contends that the district court erred in faffing to grant its motion for a new trial. Morrison claims that the district court should have granted Morrison a new trial on its claim against Farmland “because the verdict of the jury that neither party solely caused the contamination was patently inconsistent with the only causation evidence of present day contamination presented at trial.” Appellants’ Brief at 32. We apply a deferential standard in reviewing a district court’s decision to deny a new trial motion, generally not reversing unless the court’s decision represents a clear abuse of discretion or a new trial is necessary to avoid a miscarriage of justice. Smith v. World Ins. Co., 38 F.3d 1456, 1460 (8th Cir.1994). Under this standard, reversal is not warranted. Morrison’s testimony about present day contamination was not, as it claims, entirely unimpeached, and the jury could certainly refuse to find that testimony credible. More significantly, both Morrison and Farmland argued that the other party solely caused the contamination of the FAR-MAR-CO site. As such, “[i]t was certainly possible for a rational jury to conclude that neither party carried its burden of proof that the other party solely caused the contamination at the sub-site. That is a risk inherent in an all or nothing argument.” Farmland I, 987 F.2d at 1344. Given these possible scenarios, the district court’s denial of Morrison’s new trial motion is not an abuse of discretion. B. Farmland’s Appeal Farmland filed its appeal as a conditional cross-appeal, which requires discussion only if we reverse on any of Morrison’s grounds. Trudeau v. Wyrick, 713 F.2d 1360, 1369 (8th Cir.1983). Because we affirm, we will not address the conditional cross-appeal. III. CONCLUSION The judgment below is affirmed. . "Morrison Enterprises is the successor to Morrison-Quirk Grain Corporation. Farmland Industries is the successor to FAR-MAR-CO Inc. For the purposes of this litigation, the parties have stipulated that as successor corporations they are responsible for the CERCLA liability of their predecessors.” Farmland Indus., Inc. v. Morrison-Quirk Grain Corp., 987 F.2d 1335, 1337 n. 1 (8th Cir.1993) (Farmland I). . The facts of this case are hotly contested. For background information, we rely heavily on the statement of uncontroverted facts in our previous case. Farmland I. . As we explained in our previous opinion, classifying the parties’ claims as "contribution" actions is technically improper because each parly seeks to hold the other fully responsible. Farmland I, 987 F.2d at 1338 n. 3. However, for the sake of simplicity we will use the term "contribution" because the parties are proceeding under CERCLA's contribution provisions. . Although the parties probably considered NCP issues at the first trial (NCP compliance was Morrison’s affirmative defense), we are relying solely on the use of NCP issues at the second trial. . As a preliminary matter, we reject Farmland’s assertion that this issue is not properly preserved for review. Before Dr. Jury testified at the second trial, Morrison renewed its objection to his testimony regarding causation. This is a sufficient objection. . Morrison did, however, move for judgment in its favor on Farmland's claim. The district court's decision to deny that motion is not at issue here.

City Management Corp. v. U.S. Chemical Co.

MILBURN, Circuit Judge. In this CERCLA action, defendants appeal the district court’s grant of summary judgment to plaintiff City Environmental, Inc. in a dispute over environmental obligations arising from the disposal of hazardous waste at landfills in Michigan. On appeal, the issues are (1) whether the district court erred in holding that even though plaintiff substantially continued the business of U.S. Chemical (“USC”), plaintiff was not liable as a successor for USC’s off-site CERCLA liabilities because there was no nexus between plaintiff and USC’s off-site liabilities; (2) whether the district court erred in concluding as a matter of law that the transfer in question was not fraudulent under Michigan’s Fraudulent Conveyance Act; and (3) whether the district court erred in failing to consider defendant’s argument that plaintiff impliedly assumed responsibility for USC’s off-site liabilities. For the reasons that follow, we affirm. I. A. Defendant USC was incorporated in Michigan in 1962. It is wholly-owned by the two individual defendants, William P. Greenway and Leonard F. Coraci, who are the corporation’s sole shareholders, officers, and directors. From 1965 until 1990, USC was engaged in the business of solvent reclamation, which involved the treatment, recycling, storage, and disposal of waste-contaminated solvents of its customers, at its facility on Calahan Street in Roseville, Michigan (the “Calahan Property”). As part of these operations, USC would store some its customers’ waste-contaminated solvents on the Calahan Property pursuant to its site-specific permit under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (the “RCRA”). Some of the solvents were transported to various off-site landfills, including the Metamora Landfill in Lapeer County, Michigan. Plaintiff City Environmental, Inc. is ■ an environmental-services company that was incorporated in Michigan in 1982. Since 1985, it has been in the business of treating and processing the industrial waste of its customers at its two facilities in Detroit. Prior to October 12, 1990, plaintiff did not perform solvent-recycling services and it did not have an RCRA permit for waste storage at either of its two facilities. In 1984, Greenway and Coraci decided to sell either USC or its assets. They decided to sell because (1) Coraci had decided to retire; (2) the market for USC’s services was declining; (3) USC’s equipment was becoming outdated; (4) they believed that a costly corrective environmental cleanup of the Cala-han Property would be required to renew its RCRA permit; and (5) to compete successfully and to meet environmental regulations, USC would have to invest in a substantial marketing effort to become a regional, not just a local company. For five years, Green-way and Coraci unsuccessfully discussed the sale of USC’s business with a number of waste-management companies. In mid-1989, USC first contacted plaintiff to inquire whether plaintiff was interested in acquiring USC. Plaintiff expressed an interest in acquiring USC because the acquisition would allow plaintiff to provide its customers additional services under the RCRA permit. Negotiations between the parties ensued in July 1989. During the course of the negotiations, in March 1990, plaintiff retained the services of Teehna Corporation to perform an environmental site investigation of the Calahan Property. The investigation, which included oil and groundwater analysis, revealed a significant risk that the Calahan Property was environmentally contaminated. Applied Science, Inc., a second environmental consultant, found significant contamination and recommended further investigation. A third consulting firm, ECT Consultants, was retained by plaintiff in September 1990 to review the Teehna report. ECT confirmed the earlier findings of serious contamination on the Calahan Property. Although none of the firms defined the scope and extent of the on-site contamination or estimated what the possible remediation costs would be, plaintiff estimated the costs to be in the range of $1 million to $5 million. Plaintiff also made preliminary investigations of USC’s potential off-site CERCLA exposures, but such exposures were not assumed or considered in arriving at a purchase price. While the negotiations were taking place, USC was notified by the United States Environmental Protection Agency (the “EPA”) by certified letter in November 1989 that USC was a potentially responsible party (“PRP”) with respect to CERCLA liabilities arising as a result of its dumping of hazardous waste at the Metamora Landfill. The letter stated that the government had already incurred approximately $44 million in response costs at the site and expected to incur additional costs in the future. The letter explained that as a PRP, USC could be held liable for the entire amount of response costs, and advised USC to participate in a voluntary settlement with the other PRPs. Despite the ongoing negotiations with plaintiff, USC never disclosed its EPA notification of Metamora PRP status to plaintiff, even after plaintiffs request in January 1990 that USC provide plaintiff with all the information USC had relative to USC’s involvement at any Superfund Sites. On January'24, 1990, Greenway attended on behalf of USC a Metamora PRP meeting, which was held to provide PRPs with information regarding the Metamora Landfill Site and to address the possibility of an allocation of costs among the PRPs. In his deposition, Greenway admitted that USC was likely to be “one of the bigger parties” involved in the allocation process. J.A. 182. The district court concluded that Greenway was hopeful that he could negotiate an “ability to pay” settlement of USC’s allocated share of the Metamora Landfill Site costs; however, no such settlement was ever worked out. On October 12,1990, after exchanging several proposed agreements, which contemplated that plaintiff would be buying an ongoing business, plaintiff and USC executed the Asset Purchase and Sale Agreement at issue in this case (the “Agreement”). The Agreement provided that plaintiff would purchase “all right, title and interest to all of the tangible and intangible assets which comprise [USC’s] Business operations; excluding only cash on hand and in banks, trade and employee receivables, the Company name, officer life insurance policies, and the real estate located in St. Clair County or the proceeds therefrom.” J.A. 539. Plaintiff gave consideration of $720,000, payable over fifteen years, plus the assumption of hazardous waste contamination cleanup liability on the Calahan Property. The Agreement expressly provided that plaintiff’s assumption of hazardous waste contamination liabilities was limited to those connected with the Cala-han Property. The closing was placed in escrow, subject to a transfer to plaintiff of USC’s RCRA permit for the Calahan facility. On the same date the Agreement was executed, plaintiff submitted to the EPA a revised RCRA permit application, to notify the EPA of the change in ownership and operational control of the Calahan facility and to obtain a transfer of USC’s RCRA permit. The EPA approved the transfer on November 7, 1990. In March 1991, following the execution of the Agreement, representatives of some of the Metamora PRPs contacted plaintiff and informed it that because of plaintiff’s purchase of USC, the Metamora PRPs would be looking to plaintiff to pay USC’s exposure at the Metamora Landfill Site. On April 17, 1991, an Allocation Consultant retained by the Metamora PRP group submitted to it an Allocation Report, which allocated a percentage of waste and dollar value to each of the PRPs at the Metamora Landfill Site. The Allocation Report allocated USC a minimum share of the Metamora cleanup costs in the amount of $5.3 million, based upon 100% PRP participation. It is the liability for this $5.3 million that a group of defendants referred to as the Metamora Settling Defendants sought to impose on plaintiff. , By letter dated April 10, 1991, plaintiff notified USC of its intent to rescind the Agreement. The letter stated as follows: The legal basis for rescission includes, but is not limited to, a mutual mistake between the parties relating to City Environmental being pursued for successor liability. As you know, it was the express intent of the parties that City Environmental not assume the liabilities of U.S. Chemical. The transaction between the two companies was mutually structured as a limited asset purchase agreement, to achieve that intent. Each party understood and believed that any environmental liability such as Meta-mora, would remain with U.S. Chemical. J.A. 615. USC rejected plaintiffs rescission on May 6, 1991. On June 7, 1991, plaintiff and USC entered into an Escrow Agreement under which all monies due under the Agreement would be paid into escrow pending resolution of the successor liability issue. From October 12, 1990, until June 30, 1992, plaintiff continuously operated the Ca-lahan facility. Although plaintiff did not acquire USC’s name, plaintiff sent out a letter in November 1990 advising USC’s former customers that plaintiff had acquired “substantially all of the assets” of USC, and that USC’s business “will continue to operate at 29163 Calahan, Roseville, MI 48066 under the name of City Environmental, Inc. — Cala-han Facility.” J.A. 613. Plaintiff continued to service USC’s former customers without interruption. All but one of USC’s non-management employees were rehired under plaintiffs existing job classifications and pay scales. However, there was no commonality of management between USC and plaintiff. Neither of USC’s key managers, Greenway and Coraei, was retained as an employee of plaintiff, although Greenway provided consulting services for a 60-day period. Further, none of USC’s shareholders, officers, or directors have ever been shareholders, officers, or directors of plaintiff; nor have any of the shareholders, officers, or directors of plaintiff ever been shareholders, officers, or directors of USC. On June 30, 1992, plaintiff suspended operations at the Calahan facility so that it could develop a coherent plan to deal with the environmental cleanup on the Calahan property and upgrade equipment to bring the facility into compliance with the law and to meet the needs of the marketplace. USC did not liquidate or dissolve following the execution of the Agreement on October 12, 1990. It has not conducted any kind of business other than collecting accounts re-eeivable and defending claims against it. Greenway stated in his deposition that USC has formulated a liquidation plan, pursuant to which USC’s remaining assets will be distributed to creditors in satisfaction of any and all existing liabilities. USC presently has assets worth approximately $1.1 million, but it no longer has any employees, machinery, equipment, or customers. B. On September 18,1991, plaintiff City Environmental, Inc. instituted this action against 21 corporations, including USC, as well as USC’s sole shareholders, Greenway and Co-rad. In Count I of plaintiffs four-count amended complaint, plaintiff sought a declaratory judgment that plaintiff, as the purchaser of the assets of USC, was not liable as a successor corporation to USC for any of USC’s CERCLA or other off-site environmental liabilities arising from USC’s pre-sale disposal of hazardous waste at several landfills. In Count II, plaintiff alternatively sought a declaratory judgment that if the district court determined that plaintiff was the successor corporation to USC, its liability would be limited to the value of the assets actually received from USC. Counts III and IV of plaintiffs amended complaint are not involved in this appeal. The Metamora Settling Defendants filed a counterclaim seeking a declaratory judgment that plaintiff is fully and completely liable as a successor corporation to USC for USC’s potential CERCLA liability relating to the Metamora Landfill Site. After extensive discovery, plaintiff and three groups of corporate defendants, namely, the Metamora Settling Defendants, the Navistar Defendants, and the Peripheral Defendants, simultaneously filed motions for summary judgment on the issue of whether plaintiff had successor liability for USC’s environmental obligations. Following oral argument on January 21, 1993, the district court granted plaintiffs motion and denied the motions filed by the three groups of defendants. In its February 5, 1993 opinion and order, the district court held that plaintiff did not have successor liability for USC’s environmental obligations under any exception to the general rule that a corporate purchaser of another corporation’s assets does not become liable for the selling corporation’s liabilities. 814 F.Supp. 624. This timely appeal by the Metamora Settling Defendants and the Peripheral Defendants followed. II. A. Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper “if the pleadings, deposition, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). This court reviews a district court’s grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). On appeal, we must consider all facts and inferences drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); 60 Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987). We are guided by this court’s decision in Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989). With these general principles in mind, we now turn to the substantive law governing plaintiffs claims. Defendants argue that the district court erred in determining that plaintiff is not liable as a successor for USC’s CERCLA liabilities. CERCLA § 107(a) imposes liability for response costs arising from actual or threatened releases of hazardous substances upon four classes of “covered persons:” (1) current owners or operators of a facility at which hazardous substances were disposed; (2) any person who owned or operated a facility at the time of disposal of a hazardous substance; (3) any person who arranged for disposal, or arranged for transport for disposal, of a hazardous substance at a facility, also known as “generators;” and (4) any person who accepted hazardous substances for transport for disposal at a facility, also known as “transporters.” See 42 U.S.C. § 9607(a)(l)-(4). This court has held that the term “person,” within the meaning of CERC-LA § 107(a), includes successor corporations. Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1247 (6th Cir.1991). As the district court held and all parties to this appeal acknowledge, the liability of a successor corporation for CERCLA obligations is determined by reference to state corporation law, rather than federal common law. See Anspec, 922 F.2d at 1247. In Anspec, we held that a state’s law on corporations, including that state’s law on mergers and successor liability, applied in determining whether a successor corporation would be liable under CERCLA for cleanup costs. Id. at 1246. In this case, because both plaintiff and USC were incorporated under Michigan law, Michigan corporation law governs in determining whether successor liability exists. Defendants do not challenge the district court’s conclusion that under Michigan law, a purchaser of substantially all of a corporation’s assets, which then operates the seller’s business as a continuing enterprise, may be liable as a successor for the seller’s CERC-LA liabilities. However, they assert that the district court erred by including in the continuing enterprise test the requirement that there be a nexus between the purchaser and the activity giving rise to the CERCLA liabilities. Defendants contend that the district court’s additional requirement is not a prerequisite to successor liability under controlling case law, and that such a requirement would defeat the broad remedial purposes of CERCLA. We review the district court’s determination of issues of state law de novo. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). Because we review the grant of summary judgment de novo and because we may affirm on any grounds supported by the record, even though they may be different from the grounds relied on by the district court, Hilliard v. United States Postal Service, 814 F.2d 325, 326 (6th Cir.1987), we shall first consider under what circumstances a purchasing corporation which operates as a continuing enterprise may be liable for the selling corporation’s liabilities. Michigan follows the universally-accepted general rule that a corporation that purchases the assets of another corporation does not, simply by virtue of the asset purchase transaction, become liable for the obligations of the seller. Turner v. Bituminous Casualty Co., 397 Mich. 406, 244 N.W.2d 873, 878 n. 3 (1976); Pele v. Bendix Mach. Tool Corp., 111 Mich.App. 343, 314 N.W.2d 614, 617-18 (1981). However, the general rule is subject to four exceptions where successor liability may attach: (1) where the purchasing corporation expressly or impliedly agrees to assume the selling corporation’s liabilities; (2) where the transaction amounts to a consolidation or merger of the two corporations; (3) where the purchasing corporation is a mere continuation of the selling corporation; and (4) where the transaction is entered into fraudulently, in order to escape liability for the obligations of the selling corporation. Turner, 244 N.W.2d at 886 (citing 19 Am. Jur.2d Corporations § 1546); Antiphon, Inc. v. LEP Transp., Inc., 183 Mich.App. 377, 454 N.W.2d 222, 224-25 (1990). The traditional “mere continuation” exception to the general rule of purchaser nonliability “eneompass[es] the situation where one corporation sells its assets to another corporation with the same people owning both corporations.” Turner, 244 N.W.2d at 892. However, in Turner, a products liability case that arose subsequent to the sale of corporate assets for cash, the Michigan Supreme Court expanded the mere continuation exception to situations where there was no common identity of ownership. Id. at 879. Turner involved an injury that was allegedly caused by a negligently designed power press manufactured by T.W. & C.B. Sheridan Company (“Old Sheridan”). Id. at 875. Prior to the plaintiffs injury, Old Sheridan had sold its entire business, goodwill, name, and assets to Harris-Intertype Corporation (“Harris”), which expressly assumed all known liabilities of Old Sheridan. Old Sheridan changed its name to Nadirehs (Sheridan spelled backwards) and was then dissolved with the proceeds of the sale being distributed to its shareholders. Harris transferred the assets acquired to its newly created subsidiary named T.W. & C.B. Sheridan Company (“New Sheridan”), which subsequently merged into, and became the Sheridan Division of Harris. The plaintiff sued Harris and New Sheridan, alleging successor liability for the negligence of Old Sheridan. The defendants admitted that the transfer was intended to ensure “continuity in the eyes of the public” between Old Sheridan and New Sheridan. Id. at 877. However, the defendants argued that they were not hable for the plaintiffs injury because they were not involved in the manufacture, sale, or distribution of the machine that caused the plaintiffs injuries and because the transaction was structured as a sale rather than a merger. The Michigan Supreme Court, reversing a summary judgment for the defendants, acknowledged the general rule of nonliability under corporation law but emphasized that “[t]his case is a products liability case first and foremost.” Id. at 877. “[C]ase law that developed to protect the rights of creditors and minority shareholder[s], in all probability is not applicable to meeting the substantially different problems associated with products liability torts.” Id. at 878. The court held that the problem must be “decided on prod-uets liability principles rather than simply by reexamining and adjusting corporate law principles” because, in a products liability case, there is no reason to treat a purchase of assets for cash any different from a de facto merger. Id. at 879-80. Accordingly, the court refused to draw such distinctions out of a concern for providing the injured person in a products liability case some “place to turn for relief,” id. at 878, and stated that manufacturers rather than the consumer should bear the brunt of the burden for defective products, id. at 881. It concluded that in a products liability case, the absence of common identity of ownership should not be conclusive against a finding of successor liability. Id. at 880. The court went on to hold that even where there is not a common identity of ownership, successor liability may attach where there is sufficient continuity of the enterprise between the two corporations. Id. at 883. The following factors must be considered as guidelines in determining whether there is such continuity: (1) whether there is a continuation of the enterprise of the selling corporation, including a continuity of management, personnel, physical location, assets, and general business operations; (2) whether the selling corporation ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; and (3) whether the purchasing corporation assumes those liabilities and obligations of the selling corporation ordinarily necessary for the uninterrupted continuation of the normal business operations of the seller. Id. at 879, 883. This expanded rule is commonly referred to as the “substantial continuation” or “continuity of the enterprise” rule. In sum, in a products liability case, the Michigan Supreme Court expanded the mere continuation exception to the general rule of nonliability to include cases where there is a continuity of the enterprise. However, it seems clear from the reasoning, as well as the language and architecture of the court’s opinion that the expanded Turner exception is limited to products liability cases. Id. passim. Although Michigan’s lower courts have applied the continuing enterprise exception in a number of other cases, they have never applied the doctrine in a case where the underlying action was not grounded in products liability. Because we conclude that the Michigan Supreme Court intended that the continuing enterprise exception be limited to products liability cases, Turner is inapplicable to this case. Accordingly, we hold that it was error for the district court to apply Michigan’s continuing enterprise exception in this case, and therefore we need not address defendants’ argument that the district court erroneously grafted a nexus requirement to that exception. However, we hold that, because the continuing enterprise exception does not apply in this CERCLA case, the district court’s grant of summary judgment was proper. Defendants argue that the district court misread Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973), which the district court credited as being the source of the continuing enterprise rule. Although that case may have been the genesis of the continuity of the enterprise doctrine, the district court’s reliance on Golden State was misplaced. In Golden State, the issue was “whether the bona fide purchaser of a business, who acquires and continues the business with knowledge that his predecessor has committed an unfair labor practice in the discharge of an employee, may be ordered by the National Labor Relations Board to reinstate the employee with backpay.” Id. at 170, 94 S.Ct. at 418. The Court was not attempting to define or create a continuity of the enterprise rule; rather, it was determining whether the issuance of a reinstatement and backpay order against a bona fide successor exceeded the National Labor Relations Board’s (“NLRB”) remedial power under § 10(c) of the National Labor Relations Act, which authorized the NLRB to take affirmative action in response to unfair labor practices. Id. at 175, 94 S.Ct. at 420-21. Thus, Golden State was decided based on an interpretation of federal law, and the Court did not, as we must do in this CERCLA action, look to the state’s corporation law for a resolution of a successor liability issue. Furthermore, the Michigan Supreme Court did not rely in any way on Golden State in crafting Michigan’s continuing enterprise exception to the general rule of nonliability of successor corporations. See Turner, 244 N.W.2d at 881-82. Defendants also contend that the district court misapplied United States v. Mexico Feed and Seed Co., 980 F.2d 478 (8th Cir.1992). In Mexico Feed, the Eighth Circuit determined that the continuity of the enterprise test applied in that circuit in determining successor liability in CERCLA actions. However, in Mexico Feed, the court stated: The issue of whether federal or state law should be used in analyzing successor liability was not raised by the parties and we do not decide it. However, considering the national application of CERCLA and fairness to similarly situated parties, the district court was probably correct in applying federal law. Mexico Feed, 980 F.2d at 487 n. 9. Accordingly, as Mexico Feed was decided by applying federal law rather than state law, it is clearly inapplicable to this case. As earlier stated, we have determined that in this circuit state law governs in determining successor liability in CERCLA actions. See Anspec, 922 F.2d at 1247. B. The Metamora Settling Defendants argue that the district court erred in concluding as a matter of law that the transfer in question was not fraudulent under Michigan’s Fraudulent Conveyance Act. As an initial matter, the Metamora Settling Defendants assert that, because plaintiff pled that it did not engage in a fraudulent transfer as part of its declaratory judgment claim, the district court erred in concluding that the Metamora Settling Defendants had the burden of proving that the transaction was fraudulent. Under Michigan’s Fraudulent Conveyance Act, the party alleging fraud must prove the existence- of fraud by clear and convincing evidence. United States v. Rode, 749 F.Supp. 1483, 1493 (W.D.Mich.1990), aff'd, 943 F.2d 53 (6th Cir.1991); see also Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989) (stating that if a party’s case requires proof of an element by clear and convincing evidence, then that burden must be met by that party at the summary judgment stage to avoid dismissal). However, to avoid dismissal, the party alleging fraud need only show that the consideration given was inadequate. Mason v. Mason, 296 Mich. 622, 296 N.W. 703, 705 (1941). Accordingly, the district court properly placed on the Metamora Settling Defendants the burden of showing that the conveyance was made without fair consideration. The Metamora Settling Defendants assert that the transfer of assets from USC to plaintiff was fraudulent under the constructive fraud provisions of Michigan’s Fraudulent Conveyance Act. See M.C.L. §§ 566.15, 566.16. Both of the constructive fraud provisions require that the party claiming fraud show that the conveyance was made “without fair consideration.” Id. at §§ 566.15, 566.16; Otte v. handy, 143 F.Supp. 893, 898 (E.D.Mich.1956), aff'd, 256 F.2d 112 (6th Cir.1958). Michigan’s Fraudulent Conveyance Act, which is taken from the Uniform Fraudulent Conveyance Act, provides, “Fair consideration is given for property ... [w]hen in exchange for such property, ... as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied.” M.C.L. § 566.13(a). Under this provision of the uniform law, “fair equivalent” does not mean exact equivalent in terms of nominal value. John Ownbey Co. v. Commissioner, 645 F.2d 540, 545 (6th Cir.1981). Instead, courts look “at all the surrounding circumstances to determine whether the transaction was fair.” Id. In this case, the district court found that fair consideration was paid, and thus, the transaction was not a fraudulent conveyance. In the words of the district court, there is “voluminous” evidence of record supporting the conclusion that fair consideration was paid. J.A. 167. Plaintiff valued the assets at no more than $1 million at the time it actually entered into the Agreement. In exchange for these assets, plaintiff agreed to pay $720,-000 over fifteen years and fully assume all liability for hazardous waste contamination cleanup on the Calahan Property. Plaintiff did not know exactly what that liability would be, but it estimated the liability at $1 million to $5 million based on preliminary findings from its environmental consultants. Furthermore, there is no indication that USC’s remaining assets are less than what the company was worth at the time of the sale. Based on this evidence and the surrounding circumstances, we agree with the district court’s conclusion that plaintiff gave fair consideration. The Metamora Settling Defendants also assert that the district court improperly decided genuine issues of material fact, including the reason for the lower purchase price, in considering the summary judgment motions. The role of the judge at the summary judgment stage is not to weigh the evidence, but to determine whether there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). “[TJhere is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. at 2511 (citations omitted). The Metamora Settling Defendants point to the fact that plaintiff initially valued USC’s assets at over $3 million, yet the final purchase price was only $720,000. They focus their argument on “the reason for the continually decreasing purchase price,” Appellant’s Brief at 40, and argue that there was a genuine issue as to whether the transaction was fraudulent as a result of plaintiffs desire to adjust the price to take into account the substantial off-site liabilities. There is no evidence, other than the Metamora Settling Defendants’ bare contentions, that the adjustment of the purchase price was made for off-site CERCLA liabilities. In addition, where the claim is based on constructive, rather than actual fraud, the proper inquiry is whether the price actually paid was fair consideration in light of all the facts and circumstances, not whether there is sufficient evidence to support a finding of actual fraud. The fact that negotiations took place to arrive at a fairer valuation is not significantly probative on the issue of whether the actual price paid was fair consideration. Accordingly, we hold that the district court did not err in granting summary judgment for plaintiff on the fraudulent conveyance claim because there was no genuine issue of material fact as to whether the consideration was fair. C. Finally, the Metamora Settling Defendants argue that the district court erred in failing to consider defendant’s argument that plaintiff impliedly assumed responsibility for USC’s off-site liabilities. The district court refused to consider this argument because it concluded the argument was not briefed. As a general rule, this court declines to consider in the first instance arguments not raised in the district court. E.g., Taft Broadcasting Co. v. United States, 929 F.2d 240, 243 (6th Cir.1991). However, this court has, in limited circumstances, considered issues not passed on below where injustice might otherwise result, Meador v. Cabinet for Human Resources, 902 F.2d 474, 477 (6th Cir.), cert. denied, 498 U.S. 867, 111 S.Ct. 182, 112 L.Ed.2d 145 (1990), or where the issue presents only a question of law, Black Motor Co. v. Commissioner, 125 F.2d 977, 980 (6th Cir.1942). Because it appears that the implied assumption argument was actually raised below, even though it was not pressed at trial, and the issue presents only a question of law, we shall consider the issue here. First, the Metamora Settling Defendants argue that plaintiffs express disclaimer of liability for USC’s off-site CERCLA liabilities is unenforceable as a matter of law as against the Metamora Settling Defendants. They contend that CERCLA § 107 precludes persons liable under CERCLA from contractually relieving themselves of liability with respect to third parties. CERCLA § 107 provides in relevant part: No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section. 42 U.S.C. § 9607(e)(1) (emphasis added). In Niecko v. Emro Marketing Co., 973 F.2d 1296 (6th Cir.1992), this court analyzed CERCLA § 107: “[T]he first sentence provides that all parties involved are to be jointly and severally liable to the claimant under the statute. Where the claimant is the government, liability may not be transferred. However, as between the parties allegedly responsible ... liability may indeed be transferred.” Niecko, 973 F.2d at 1300-01. Such an interpretation is not inconsistent with the underlying purpose of CERCLA § 107, which “is to ensure that responsible parties will pay for the cleanup and that they may not avoid liability to the government by transferring this liability to another.” AM Int'l, Inc. v. International Forging Equip. Corp., 982 F.2d 989, 994 (6th Cir.1993) (citing Niecko, 973 F.2d at 1300-01). However, as the underlined language in the statute indicates, CERCLA § 107’s prohibition on the transfer of liability presupposes that the purported transferor of responsibility already bears responsibility for the liability. Thus, CERCLA § 107 only applies to prevent one who is already a responsible party from avoiding liability altogether; it does not make one a responsible party. Accordingly, we conclude that CERCLA § 107 is inapplicable in this case because there is no independent basis on which plaintiff is responsible under CERCLA for USC’s CERCLA obligations. Second, the Metamora Settling Defendants argue that, regardless of the express disclaimer in the Agreement, plaintiff impliedly assumed USC’s CERCLA obligations because plaintiff requested information from USC about such liability. Under Michigan law, one corporation does not impliedly assume liabilities of another corporation merely because the corporation has acquired the assets of that corporation. Oak Distributing Co. v. Miller Brewing Co., 370 F.Supp. 889, 903-04 (E.D.Mich.1973) (citing Clark v. Detroit Curling Club, 298 Mich. 339, 299 N.W. 99, 100 (1941)). Instead, there must be an intent of the parties that liabilities be assumed. See id.; John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401, 406-07 (1st Cir.1993) (holding that to transfer CERCLA liability, an agreement must contain language broad enough that it evidences an intent to transfer environmental liability). In this case, the Agreement expressly provided that plaintiffs assumption of hazardous waste contamination liabilities was limited to those connected with the Calahan Property. In the face of contractual language that expressly disclaims liability, we cannot find that there was an implied assumption of liability, and we need not consider the argument that plaintiffs conduct manifested an intent to assume such liability. III. For the reasons stated, the district court’s grant of summary judgment is AFFIRMED. . "CERCLA” refers to The Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601-9675. . The original plaintiff, City Environmental, Inc., merged into City Management Corporation on July 1, 1992. Pursuant to the district court’s order. City Management Corporation was substituted as the plaintiff in the case on October 23, 1992. Hereinafter, both City Management Corporation and City Environmental, Inc. are interchangeably referred to as "plaintiff.” . Section 3 of the Agreement provided as follows: 3. Liabilities A. Assumed Liabilities. The only liabilities assumed by Buyer are as follows: i. Any contamination cleanup liability relating to or resulting from the Real Property [i.e., the Calahan Property] acquired by Buyer.... B. Liabilities Not Assumed. Buyer shall not assume any liability other than those liabilities specifically described above in this Paragraph 3. Without limiting the generality of the foregoing statement and limitation, Buyer shall not assume, and Company shall retain and be responsible for, the following liabilities and obligations of Company: ... (13) any CERCLA or other environmental liabilities of any nature with respect to the cleanup of any real property, sites or other facilities to which the Company transported hazardous or other waste at any time prior to the Closing, or with which the Company was otherwise involved at any time for any reason, except only for the Real Property as provided above. J.A. 544-46. . The Metamora Settling Defendants include General Motors Corporation; Sea Ray Boats, Incorporated; Chrysler Corporation; Ford Motor Company; BASF Corporation (Inmont); Reichhold Chemicals, Inc.; Acme Quality Paints Company; Foamseal, Incorporated; Hoover Universal, Incorporated; and Allied-Signal Incorporated. . See supra note 4 for a list of the parties comprising the Metamora Settling Defendants. . The Navistar Defendants include Navistar International Transportation Corporation; Eaton Corporation; Wacker Silicones Corporation; and Dana Corporation. .The Peripheral Defendants include Dow Coming Corporation; The Upjohn Company; and Grimes Aerospace Company, as successor-in-interest to Midland-Ross Corporation. . The Metamora Settling Defendants and the Peripheral Defendants originally filed separate appeals, designated as Case Nos. 93-1348 and 93-1396, respectively. Although the appeals were not consolidated for purposes of briefing, they were consolidated for purposes of submission pursuant to this Court’s order of July 30, 1993. . Hereinafter, when referring to parties to this appeal, “defendants” shall refer to both the Me-tamora Settling Defendants and the Peripheral Defendants. . This is consistent with the social and economic concerns behind strict products liability under the Restatement (Second) of Torts § 402A, which are "to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.” Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 701, 377 P.2d 897, 901 (1963). . See Langley v. Harris Corp., 413 Mich. 592, 321 N.W.2d 662, 668 (1982) (holding that the corporate successor of the manufacturer of a defective product was not entitled to indemnity by an employer for injuries sustained by the plaintiff in a work-related accident); Fenton Area Public Schools v. Sorensen-Gross Const. Co., 124 Mich.App. 631, 335 N.W.2d 221, 226 (1983) (determining that a successor corporation was liable for damages caused by a defective product because there was continuity of the enterprise); Liberty Mut. Ins. Co. v. Curtis Noll Corp., 112 Mich.App. 182, 315 N.W.2d 890, 893-94 (1982) (concluding that the insurer of the designer of a defective product was not entitled to indemnity by the designer's prior owner because there is no right to indemnity between successor owners); Pelc v. Bendix Mach. Tool Corp., 111 Mich.App. 343, 314 N.W.2d 614, 619 (1981) (determining that a successor corporation was not liable for damages resulting from the operation of a defective product where the totality of the transaction did not demonstrate a continuity of the enterprise); Lemire v. Garrard Drugs, 95 Mich.App. 520, 291 N.W.2d 103, 105 (1980) (concluding that a drug store and its proprietors cannot be liable as a continuing enterprise because the doctrine deals only with corporate enterprises); Powers v. Baker-Perkins, Inc., 92 Mich.App. 645, 285 N.W.2d 402, 413 (1979) (holding a successor corporation liable for damages resulting from the failure to give a warning because there was a continuity of the enterprise); Haney v. Bendix Corp., 88 Mich.App. 747, 279 N.W.2d 544, 546 (1979) (holding transferee corporation liable for defective product because there was sufficient continuity of the enterprise). .Two district courts in this circuit have erroneously applied the continuing enterprise theory in a CERCLA context. See Charter Township of Oshtemo v. American Cyanamid Co., No. 1:92:CV:843, 1994 U.S. Dist. LEXIS 2158 (W.D.Mich. Jan. 12, 1994) (applying the continuity of the enterprise theory to determine successor liability in a CERCLA case); United States v. Distler, 741 F.Supp. 637, 643 (W.D.Ky.1990) (concluding that the "reasons supporting [the continuing enterprise] theory's application in products liability cases are equally applicable in the current [CERCLA] context.”). Neither of these decisions is applicable here. Charter Township relied exclusively on the authority of City Envtl., Inc. v. U.S. Chemical Co., 814 F.Supp. 624, 638 (E.D.Mich.1993), which we now determine was incorrectly decided. Distler, which was attempting to create a uniform federal rule, was decided the year before this court ruled that state corporation law governs in determining successor liability under CERCLA. See Anspec, 922 F.2d at 1246-47; see also Grand Labs., Inc. v. Midcon Labs of Iowa, 32 F.3d 1277, 1283 (8th Cir.1994) (refusing to apply the “continuity of enterprise exception” and stating that in those jurisdictions where the exception is recognized, it "applies only in the products liability context”); B.F. Goodrich Co. v. Murtha, 840 F.Supp. 180, 185 (D.Conn.1993) (refusing to impose successor liability in a CERCLA case based on the authority of Turner); Sylvester Bros. Dev. Co. v. Burlington N. R.R., 772 F.Supp. 443, 449 (D. Minn.1990) (declining to adopt the continuing enterprise theory in a CERCLA case). . The Metamora Settling Defendants have not asserted a claim based on actual fraud. See M.C.L. § 566.17.

Fisher Development Co. v. Boise Cascade Corp.

OPINION OF THE COURT STAPLETON, Circuit Judge: Fisher Development Company (“Fisher”) sued Boise Cascade Corp. (“Boise”) to recover response costs it incurred in voluntarily remediating a hazardous waste site it owned. Fisher claimed that Boise, the sublessee of the site from 1974 to 1977, was a responsible party pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERC-LA”), 42 U.S.C. § 9607(a). In granting Boise’s motion for summary judgment, the district court found that a release, previously executed in favor of Boise in connection with the settlement of a landlord-tenant dispute, extinguished all claims against it, including any claim for environmental clean-up costs. Fisher appeals. We will affirm. I. Fisher owned property located at 875 Sherman Avenue, Pennsauken, New Jersey (“the premises”). Fisher agreed to lease the premises to Chesapeake Industries, Inc. (“Chesapeake”) from March 1, 1967, to February 28, 1982. Fisher soon assigned its interest in the lease to Route 73 Industrial Development Corporation (“Route 73”), whose vice president, Daniel Fisher, was also a general partner of Fisher. In February, 1980, Route 73 reassigned its interest in the lease back to Fisher. Keystone Millwork Company (“Keystone”), a subsidiary of Chesapeake, produced plywood panels and doors at the premises from 1967 until 1973 or early 1974. At that point, Chesapeake assigned the lease to Boise, which agreed to assume all liabilities of Chesapeake under its lease with Fisher. Boise manufactured plywood panels on the premises from April 1974 until August 1976. In September 1977, Boise, with Route 73’s consent, entered into a sub-sublease with Winner Sales and Services Company, Inc. (‘Winner Sales”), which thereafter used the premises as a warehouse. While Winner Sales was occupying the premises, Boise and Route 73 had a disagreement regarding responsibility for repairs and maintenance at the premises. Boise sued Route 73 in the Superior Court of New Jersey, Chancery Division, in October 1978 to enforce covenants in the original lease between Fisher and Chesapeake. Subsequently, Winner Sales filed for bankruptcy protection, thereby making the controversy between Boise and Route 73 the subject of an adversary proceeding in the United States Bankruptcy Court for the District of New Jersey. Boise, Route 73, and Fisher ultimately entered into an agreement settling the suit. Part of this agreement called for the parties to exchange reciprocal releases. The release in favor of Boise, which was executed on April 16,1981, was prepared on a pre-printed form labeled “N.J. Release, General” and consisted of two parts. The first part, which included the pre-printed terms, provided that Route 73 and Fisher: [Rjemised, released and forever discharged, and by these Presents do [ ] remise, release, and forever discharge [Boise] of and from all debts, obligations, reckonings, promises, covenants, agreements, contracts, endorsements, bonds, specialties, controversies, suits, actions, causes of actions, trespasses, variances, judgments, extents, executions, damages, claims or demands, in law or in equity, which against [Boise], [Route 73 or Fisher] ever had, now has or hereafter can, shall, or may have, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day and date of these Presents. The parties then typed in additional language following the pre-printed phrase “[m]ore particularly.” This language provided for the release of: [A]ny and all claims arising from or related to certain suits now pending in the Superior Court in New Jersey, Chancery Division, Camden County, Docket No. C-660-78 in which Boise Cascade Corporation is the plaintiff and Route 73 Industrial Development Corporation is the defendant; and, in the United States District Court for the District of New Jersey, Bankruptcy No. 80-03165, Adversary Nos. 80-0270 and 0271. Together with any and all claims arising out of or related to a certain Lease Agreement pursuant to which Boise Cascade Corporation sublets certain premises known as 875 Sherman Avenue, Pennsauken, New Jersey, Route 73 Industrial Development Corporation being the successor to Fisher Development Co., original lessor of the subject premises, together with any subsequent Lease Agreements, Modifications or Amendments thereto; and/or any claims arising from or related to Boise Cascade Corporation’s occupation of the subject premises, or any tenant or party occupying the subject premises under Boise Cascade Corporation. Boise paid Fisher $2,000.00 as a part of the settlement agreement. According to Fisher, in 1989, eight years after the execution of the releases, it discovered that a cistern on the premises contained volatile organic compounds, which were migrating into the surrounding subsoils and the groundwater. Fisher voluntarily remediated the hazardous substances at the premises at a cost exceeding $860,000.00. An investigation by Fisher traced the pollution to Boise, Chesapeake, and Keystone. Fisher initiated this action against Boise, Chesapeake, and Keystone under § 107(a) of CERCLA, seeking to recover costs associated with cleaning up the cistern. Fisher also included a New Jersey common law negligence claim. Boise filed a motion for summary judgment, asserting that all claims against it were extinguished by the release it had obtained from Fisher. The district court granted Boise’s motion, holding that the release barred Fisher’s claims. The district court then entered an order under Fed. R.Civ.P. 54(b), stating that there was no just reason for delay, and directing that its order granting summary judgment in favor of defendant Boise be deemed a final judgment as to all claims and parties. Fisher appealed. The district court had jurisdiction pursuant to 28 U.S.C. § 1381 and 42 U.S.C. § 9613(b). Our jurisdiction over this appeal rests on 28 U.S.C. § 1291. We exercise plenary review over the district court’s grant of Boise’s motion for summary judgment. Public Interest Research of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 76 (3d Cir.1990), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). The district court’s decision to grant Boise’s motion was proper only if “there [was] no genuine issue as to any material fact and ... [Boise was] entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Moreover, all inferences and facts must be viewed in a light most favorable to Fisher as the non-moving party. Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 202-03 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). II. Fisher seeks to recover from Boise the response costs that it incurred in connection with the cistern. Fisher’s claim is based on § 107(a) of CERCLA, which authorizes both governmental and private entities to sue statutorily defined responsible parties to recover costs incurred in cleaning up hazardous waste disposal sites. Fisher correctly points out that Boise is a responsible person under § 107(a)(2), which imposes liability on “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” Boise insists, however, that Fisher has released it from this liability, pointing to the general release it received at the time of the settlement agreement and to § 107(e)(1) of CERCLA, which Boise reads as expressly authorizing agreements between private parties to allocate the risk of CERC-LA liability between themselves. Section 107(e)(1) provides: No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section. Six courts of appeals, including our own, have been called upon to interpret the seemingly inconsistent text of § 107(e)(1). They have uniformly reconciled the first and second sentences by holding that responsible parties cannot contract away their liability under CERCLA for cleaning up a release, but that they may allocate the ultimate financial burden of that clean-up by agreements among themselves. Beazer East Inc. v. The Mead Corporation, 34 F.3d 206 (3d Cir.1994); Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 14 (2d Cir.1993) (“private parties may contract with respect to indemnification and contribution” but “all responsible parties remain fully liable to the government”); John S. Boyd Co., Inc. v. Boston Gas Co., 992 F.2d 401, 405 (1st Cir.1993) (“a party cannot escape liability by means of a contract with another party” but parties “can allocate responsibility among themselves by contract”); United States v. Hardage, 985 F.2d 1427, 1433 (10th Cir.1993) (“although responsible parties may not altogether transfer their CERCLA liability, they have the right to obtain indemnification for that liability”) AM Int'l, Inc. v. International Forging Equipment Corp., 982 F.2d 989, 993-95 (6th Cir.1993) (“a release can be effective to allocate among responsible parties the financial burden of CERCLA cleanup liability”); Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1461 (9th Cir.1986) (enforcing release of CERCLA liability). Fisher does not contend that risk allocation agreements between responsible parties are impermissible under CERCLA. It does maintain that, for a number of reasons, the release it signed was ineffective to relieve Boise of liability on Fisher’s § 107(a) claim. Before turning to Fisher’s arguments concerning the release it gave Boise, we will examine the literal scope of that release and resolve a threshold ehoiee-of-law issue. The releases that Fisher and Boise exchanged at the time of their settlement were general releases of the kind regularly utilized in New Jersey. See, e.g., Joseph Pierce Lodge, New Jersey Practice: Legal Business Forms, § 3642; C. Zachary Seltzer, New Jersey Law with Forms, 4-479. On its face, the release that Fisher executed was not limited to specifically described claims. Its language evidences an intent on the part of Fisher to release all claims based on events occurring from “the beginning of the world” to the date of the execution of the release. The language includes not only all such claims that Fisher “ever had” or “now has,” but also any such claim that it “hereafter can, shall, or may have.” Given the limitation to claims based on events occurring before the date of the release, we can only take the phrase “hereafter may have” to mean that the parties wished to release not only those claims of which they were currently aware, but also those they might subsequently discover based on their relationship prior to the execution of the release. To read the language following the phrase “more particularly” as establishing the outer perimeters of the release, as Fisher suggests we do, would require us to disregard the entire first paragraph of the release and attribute no significance whatever to the fact that the parties chose to execute general releases. Moreover, even under Fisher’s suggested approach, the language chosen, on its face, releases “any claims arising from or related to Boise Cascade Corporation’s occupation of’ 875 Sherman Avenue. It thus seems clear to us that the claim Fisher now seeks to assert against Boise comes within the literal scope of Fisher’s release. Accordingly, Fisher can prevail only if it can point to a reason its release should not be enforced as written. Fisher maintains there are five such reasons: (1) extrinsic evidence demonstrates that the parties intended to release only the claims that were being settled and not environmental claims; (2) a release is not effective to release liability under CERCLA unless specific reference is made to that liability; (3) the release was obtained by fraud; (4) the parties to the settlement agreement were acting under a mutual mistake of fact; and (5) enforcement of the release would violate public policy. Before addressing the sufficiency of each of these reasons in turn, we must first ascertain what law is applicable to the issues raised by Fisher’s contentions. It is, of course, well settled that federal law governs issues relating to the validity of a release of a federal cause of action. Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952). Giving content to that federal law, however, can be accomplished in two different ways: courts can look to state law and incorporate it into the federal law, or they can fashion federal common law. Where Congress has made the choice between the two, its decision governs. United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979). Where, as here, no congressional intent is reflected in the statute or its legislative history, courts must make the choice between incorporating state law or fashioning federal common law after considering three factors: (1) whether the issue requires “a nationally uniform body of law”; (2) “whether application of state law would frustrate specific objectives of the federal programs”; and, (3) whether “application of a federal rule would disrupt commercial relationships predicated- on state law.” Id. at 728-29, 99 S.Ct. at 1458-59. Five courts of appeals, including our own, have addressed this issue. All have chosen to apply state rules of release and contract law. Beazer East Inc. v. The Mead Corporation, 34 F.3d 206 (3d Cir.1994); Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 14-15 (2d Cir.1993); John S. Boyd Co., Inc. v. Boston Gas Co., 992 F.2d 401, 406 (1st Cir.1993); United States v. Hardage, 985 F.2d 1427, 1433 n. 2 (10th Cir.1993); Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1464, 1457-60 (9th Cir.1986). Each court has perceived no imperative for a nationally uniform law of CERCLA releases. While recognizing that there may be an occasional state rule that will conflict with the objectives of CERCLA and should not be applied, each has found no conflict between those objectives and making state contract and release law the generally applicable rules. Finally, each of the courts to examine the issue has concluded that the application of federal rules could be expected to seriously disrupt commercial relationships. We will thus apply New Jersey release and contract law unless we are persuaded that the application of a particular rule relied upon by one of the parties would conflict with CERCLA or the attainment of its objectives. III. Fisher insists that the release is ambiguous in the context of its CERCLA claim and, accordingly, that extrinsic evidence is admissible to clarify its meaning in this context. The release is ambiguous, according to Fisher, because it fails to refer to “future unknown liabilities” and because the phrase “more particularly” is inconsistent with the broader language of the release. The extrinsic evidence it urges us to consider consists of: (1) letters sent from Boise to Fisher, the most significant of which said: “Boise will pay your client the sum of $2,000.00 in full settlement of any and all claims relating to the above matter [i.e. the landlord/tenant dispute];” (2) the fact that the release was signed in settlement of a landlord/tenant dispute, with no mention of environmental liabilities at the time of signing; and, (3) the fact that Boise paid only $2,000 in cash in connection with the settlement. As we have earlier indicated, we find no ambiguity in the release as applied to the situation before us. While it does not use the words “future unknown liability,” future unknown liabilities based on events occurring before the release are clearly covered. We do not read the “more particularly” clause as eliminating the preceding paragraph and, even if we did, the intent to release all claims arising from Boise’s occupation of the premises is clear. Accordingly, we decline to consider extrinsic evidence which is allegedly in conflict with the express terms of the release. See, Filmlife, Inc. v. Mal “Z” Ena, Inc., 251 N.J.Super. 570, 598 A.2d 1234, 1235 (App.Div.1991). Moreover, even if we were permitted to consider extrinsic evidence, the evidence tendered by Fisher would not alter our conclusion regarding the scope of the release. That evidence tends only to establish the undisputed proposition that the parties intended to settle the claims then in litigation; it lacks probative value on the issue of whether the parties also intended to settle all potential claims against each other by exchanging reciprocal, general releases. IV. Fisher urges us to hold that a party may not release a CERCLA claim without executing a document that makes specific reference to CERCLA liability. A necessary corollary of such a holding would be that a general release, no matter how clearly it evidences an intent to wipe the slate clean between the parties, cannot release a CERCLA-based claim. In First Jersey Nat’l Bank v. Dome Petroleum Ltd., 723 F.2d 335 (3d Cir.1983), while reviewing New Jersey law on risk allocation agreements, we observed: Under a clear line of contemporary New Jersey cases, parties to a commercial transaction have great latitude in their preferred allocation of risks of loss.... Furthermore, under New Jersey law a broadly worded indemnification clause need not also recite the specific sorts of loss within its coverage. Id. at 339-40 (citations omitted). Our review of the New Jersey case law subsequent to First Jersey reveals nothing contrary to our observation there, and we find nothing suggesting that New Jersey courts decline to enforce general releases as applied to particular types of claims. Apparently, Fisher also has failed to find New Jersey authority for the proposition that it urges. Under these circumstances, Fisher’s argument must be that we should find in CERCLA an implied limitation on the authority conferred in § 107(e)(1) for private risk allocation and that any state law rule inconsistent with that implied limitation should be disregarded. Fisher is not precise about what it is in CERCLA that supports such a limitation. We infer, however, that Fisher believes CERCLA’s statutory scheme requires special protection against inadvertent waivers of CERCLA claims. We find no such implicit mandate in CERCLA. To the contrary, we find in § 107(e)(1) a policy favoring private ordering of ultimate risk distribution and we believe that policy counsels in favor of courts enforcing the intention of the parties as evidenced by the terms of a release. Given the context in which this kind of risk allocation agreement is negotiated and the character of the parties to those agreements, we believe Fisher’s rule would lead to more incidents of frustration of the parties’ intent than a rule requiring enforcement of clear general releases in accordance with their terms. That is, we believe that most parties who execute general releases in a commercial context intend to wipe the slate clean and that Fisher’s rule of law would create a trap for the unwary. In short, while there will be some instances in which CERC-LA claims are inadvertently released if general releases are enforced as written, we think there would be far more instances, if Fisher’s rule were adopted, in which parties inadvertently fail to release their CERCLA claims when they intend to do so. V. Fisher next urges that the release is unenforceable because Boise knew of the condition of the cistern prior to the exchange of releases and failed to inform Fisher of that condition. Fisher does not maintain that Boise misrepresented the condition of the cistern or took affirmative steps to conceal its condition from Fisher. Fisher’s claim is rather that Boise had a duty to disclose and remained silent in breach of that duty. Boise denies that it had greater knowledge of the condition of the cistern than Fisher. Under New Jersey law, there are only three categories of relationships that give rise to an affirmative duty to disclose. The first category “includes definite fiduciary relationships, such as principal and agent.” Berman v. Gurwicz, 189 N.J.Super. 89, 458 A.2d 1311, 1313 (Ch.Div.1981), aff'd, 189 N.J.Super. 49, 458 A.2d 1289 (App.Div.1983), certification denied, 94 N.J. 549, 468 A.2d 197 (1983). The second class: [E]mbraees those instances in which there is no existing special fiduciary relation between the parties, and the transaction is not in its essential nature fiduciary, but it appears that either one or each of the parties, in entering into the contract or other transaction, expressly reposes a trust and confidence in the other; or else from the circumstances of the case, the nature of their dealings, or their position towards each other, such a trust and confidence in the particular case is necessarily implied. The nature of the transaction is not the test in this class. Id. 458 A.2d at 1313-14 (emphasis in original). Finally: The third class includes those instances where there is no existing fiduciary relationship between the parties, and no special confidence reposed is expressed by their words or implied from their acts, but the very contract or other transaction itself, in its essential nature, is intrinsically fiduciary, and necessarily calls for perfect good faith and full disclosure, without regard to any particular intention of the parties. The contract of insurance is a familiar example. Id. at 1314. The relationship between a landlord and tenant is not a “definite fiduciary relationship” and Boise and Fisher dealt at arm’s length. Nothing in the record suggests that they expressly, or impliedly by their conduct, reposed trust and confidence in one another. Nor is there anything about the transaction between them or the circumstance under which it was negotiated that “necessarily calls for perfect good faith and full disclosure.” Like the district court, we perceive no rationale under which we think the Supreme Court of New Jersey might impose an affirmative disclosure duty on Boise under the circumstances of this case. In this regard, we think it significant that, at the time of the settlement agreement, Fisher, and only Fisher, had access to the property. Boise was no longer a tenant and had not been one for four years. VI. Alternatively, Fisher argues that the case should be remanded and the district court be required to determine whether Fisher and Boise, when they exchanged their releases, were laboring under a mutual mistake of fact. “A mutual mistake occurs when both parties are under substantially the same erroneous belief as to the facts.” 2 E. Allen Farnsworth, Farnsworth on Contracts, § 9.3. Under New Jersey law: Where a mistake of both parties at the time a contract was made as to a basic assumption on which the contract was made has a material effect on the agreed exchange of performances, the contract is voidable by the adversely affected party. A compromise which is the result of a mutual mistake is not binding and consent to a settlement agreement is not considered freely given when it is obtained as the result of a mistake. Lampley v. Davis Mach. Corp., 219 N.J.Super. 540, 530 A.2d 1254, 1259-60 (App.Div.1987) (citations omitted). Fisher has failed to raise a genuine issue of material fact regarding its claim of mutual mistake. In response to Boise’s motion for summary judgment, Fisher tendered no evidence tending to show that it or Boise entered their settlement agreement and exchanged their general releases based on an affirmative understanding that there were no environmental problems on the premises. Indeed, Fisher insists in connection with its fraud argument that Boise was fully aware that there was a problem. Moreover, we know that when the parties exchanged their releases they did so premised on an understanding inconsistent with the alleged affirmative understanding that there were no problems on the premises. The parties exchanged general, rather than limited, releases because they understood that all facts concerning the leasehold and their prior relationship were not necessarily known and that currently unknown facts could later give rise to liabilities. Thus, the possibility of problems on the premises was a basic assumption of the parties when they decided to wipe the slate clean between themselves. VII. Finally, Fisher makes a two-pronged public policy argument against enforcement of the release. First, Fisher contends that it would be bad public policy to allow a release obtained for $2,000 to extinguish over $860,-000 in CERCLA liability. We find this contention both factually and legally flawed. This is not a case in which a party paid $2,000 for a release. This is a case in which two parties that had terminated a commercial relationship decided they wished to walk away, without leaving any loose ends. In order to accomplish this, one paid the other $2,000 and they executed reciprocal, general releases. The consideration for Fisher’s release thus was not simply a $2,000 payment. More importantly, where, as here, parties may legally allocate risks between themselves, courts, in the absence of special circumstances, do not as a prerequisite to enforcement retroactively assess whether the original bargain was fair. Moreover, even if we were willing to undertake such an assessment, we could not appropriately do so simply by comparing the financial burden of a realized loss with the original consideration for the risk allocation agreement. Employing such an approach would frequently result in insurance policies not being enforced because the amount of covered loss far exceeded the premiums paid. Second, Fisher urges that extinguishing Boise’s liability based on the release would run counter to CERCLA’s goal of encouraging voluntary cleanup efforts. Specifically, Fisher argues that, if releases of CERCLA liability are enforceable, an entity that has granted a responsible party a release from liability will be better off waiting for the government to initiate cleanup procedures rather than initiating them itself. If the entity initiates remedial action, it will be foreclosed by its release from recovering from the released party its proportionate share. If the government proceeds first and incurs the expense of that action, it can recover those expenses from the released party, thereby decreasing the releasor’s share of the costs. See CERCLA §§ 107(a) and 113(f)(1). Because the effect of a release is solely to shield the recipient from liability rather than to shift its liability to another (as in the case with an agreement to indemnify, for example), it is true that a releasor of CERCLA liability will normally have a disincentive to initiate remedial action. It is Congress, however, that makes the public policy which is relevant here, and Congress has established that policy in § 107(e) of CERCLA. As we have indicated, Congress there authorized private risk allocation. Moreover, this authorization was clearly intended to include both risk-shielding as well as risk-shifting agreements. While releases are not specifically mentioned, hold-harmless agreements, a traditional form of risk-shielding agreement, are expressly included. VIII. The judgment of the district court will be affirmed.. . A number of courts have applied the law of states other than New Jersey and come to the conclusion that broad release provisions include CERCLA liability, even when that liability is not specifically mentioned. In Beazer East Inc. v. The Mead Corporation, 34 F.3d 206 (3d Cir.1994) this court applied Alabama law in the context of an agreement to indemnify against certain environmental liabilities. We agreed with the legal standard applied by the district court: ... “pre-CERCLA [indemnification] agreements may cover CERCLA liability if such agreements are 'worded broadly enough to encompass any and all liabilities, or if environmental liability is clearly referred to in the agreement.' " Id. at 212 (emphasis added). While we ultimately declined to order indemnification, we did so because the indemnification clause did not encompass "any and all liabilities” and was ambiguous as applied to the circumstances of the case. The Court of Appeals for the First Circuit, applying Massachusetts law, recently held that, "[t]o transfer CERCLA liability, the agreement must contain language broad enough to allow us to say that the parties intended to transfer either contingent environmental liability, or all liability.” John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401, 406-07 (1st Cir.1993). Applying Oklahoma law, the Court of Appeals for the Tenth Circuit found that, "[a]lthough an indemnification agreement must clearly and unequivocally express an intent to exculpate the indemnitee for its own acts, it need not specifically refer to those acts in order to achieve that result. Rather, such an intent may be found where the language of the indemnification is so broad and all-inclusive that it necessarily sweeps all events — including those occurring because of the indemnitee’s actions — into its coverage.” United States v. Hardage, 985 F.2d 1427, 1434-35 (10th Cir.1993) (citation omitted). The Court of Appeals for the Ninth Circuit, applying New York law, held that a broad but unspecific release included CERCLA liabilities and therefore barred extrinsic evidence of intent to the contrary. Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1462 (9th Cir.1986). As a final example, in Purolator Products Corp. v. Allied-Signal, Inc., 772 F.Supp. 124 (W.D.N.Y.1991), the court, applying New York law, stated that: The case law on this subject, though not completely uniform, indicates that a settlement agreement which shows that the parties intended to resolve all their disputes involving any type of claim includes CERCLA claims, even if the agreement is framed in general terms and does not specifically refer to CERC-LA or to environmental liability. However, if the agreement appears to be limited to specific disputes or particular types of liabilüy, CERC-LA liability will be excluded unless the agreement contains a clear, unambiguous reference to such liability. Id. at 131 (citations omitted). Therefore, because the indemnily agreement signed by the parties was broad, the court held that it included CERCLA liabilities, even though it did not expressly refer to environmental claims. Fisher attempts to distinguish these cases on the grounds that in each of them the releasor, unlike Fisher, either had prior knowledge of the hazardous waste problem or had caused or contributed to the problem itself. Even if this assertion is true, it does limit the applicability of the holdings in the above cases to the case at bar. In those cases, the courts all stated that the basis for their holding was the breadth of the release provision rather than the releasor’s knowledge or contributory actions. The release executed in favor of Boise is similarly broad. . This goal is evidenced by the fact that CERCLA provides a private right of action and a right of contribution from other responsible parties to persons that incur response costs themselves. See CERCLA §§ 107(a) & 113(f)(1), 42 U.S.C. § 9613(f)(1) (1988). . In a hold-harmless agreement, one party agrees "to hold the other without responsibility for ... liability arising out of the transaction involved.” Black’s Law Dictionary 731 (6th Ed. 1990). See Thaddeus Bereday, Note, Contractual Transfers of Liability Under CERCLA Section 107(E)(1): For Enforcement of Private -Risk Allocation in Real Property Transactions, 43 Case W.Res.L.Rev. 161 (1992) (text associated with footnotes 7, 9, 149-63).

Beazer East, Inc. v. Mead Corp.

OPINION OF THE COURT HUTCHINSON, Circuit Judge. Appellant, Beazer East, Inc. (“Beazer”), appeals an order of the United States District Court for the Western District of Pennsylvania dismissing Beazer’s claims for indemnity and contribution. Beazer claimed appellee, The Mead Corporation (“Mead”), was bound by a promise to pay Beazer all or part of Beazer’s response costs on a Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C.A. §§ 9601-9675 (West 1983 & Supp.1994) (“CERCLA”), cleanup of a site Beazer’s predecessor had acquired from Mead’s predecessor. Instead, the district court granted summary judgment to Mead on Mead’s counterclaim for indemnity from Beazer against Mead’s response costs. In doing so, the district court adopted a United States Magistrate Judge’s report and recommendation (“Magistrate Judge’s Report”). The magistrate judge had concluded that Mead was a responsible party for purposes of CERCLA but that the asset purchase agreement (“Agreement”) under which Beazer had acquired the site of the contaminated facility, the Woodward Facility Coke Plant (the “Woodward Facility” or “Coke Plant”), required Beazer to indemnify Mead against CERCLA liability. The magistrate judge reasoned that a provision for indemnification in a contract that predates CERCLA’s enactment will govern the responsibility of the contracting parties inter se for payment of CERCLA cleanup costs if the indemnification or release provision is a general release from all liability arising out of a particular transfer or contains an unambiguous promise to indemnify against all liabilities that environmental law, present or future, may impose because of pollutants on the property transferred. The magistrate judge then concluded that the asset purchase agreement between Mead’s predecessor, the seller, and Beazer’s predecessor, the buyer of the contaminated site, unambiguously required Beazer to indemnify Mead against any liability for injury to the environment from substances on the property, including cleanup under CERCLA, no matter who polluted the site. The paragraph in question, Paragraph 4(c) of the agreement, required the buyer and its successors to assume and perform “Obligations of the Coke Plant to comply from and after the Closing Date with all of the terms and conditions of any ... solid waste disposal permit, license or order, hereafter issued by the United States Environmental Protection Agency ... in accordance with applications now pending and listed in Exhibit F hereto.” Appellant’s Appendix (“App.”) at 23. On appeal Beazer argues that the district court erred in concluding this indemnity provision was unambiguously broad enough to impose on it a general duty to indemnify Mead against all environmental liability under either state or federal common law concerning the construction of such contracts of indemnity. We agree with the magistrate judge and the district court concerning the substance if not the source of the standard that must be used in determining the effect of an indemnity clause on a party’s liability under laws subsequently enacted to protect the environment. We part ways with the magistrate judge and the district court, however, in the application of this standard to the provision at hand. We agree with Beazer that Paragraph 4(e) of this agreement does not plainly and unambiguously require it to indemnify Mead for cleanup costs at the Coke Plant, and therefore reverse the order of the district court granting Mead summary judgment, vacate the order which dismisses Beazer’s claim for contribution and remand for further proceedings consistent with this opinion. On remand the district court will have to consider both parties’ contribution claims, and determine the proper apportionment of CERCLA liability. I. Factual & Procedural History Mead’s predecessor, the Woodward Corporation, operated the Woodward Facility as a coke and eoke-by products manufacturing facility from 1905 until 1968. In 1968, the Woodward Iron Company merged with Mead. Mead, in turn, operated the Coke Plant until 1974, when it sold the facility and surrounding land to Beazer’s predecessor, Koppers Company, Inc. (“KCI”). KCI purchased the Coke Plant under the Agreement in question. Paragraph 4 of the Agreement provides that KCI, as buyer, or its successors, will assume certain agreements and liabilities. It reads: As of the Closing Date, Buyer shall assume and agree to perform: a. ... all other commitments, liabilities and obligations expressly assumed by Buyer pursuant to this Purchase Agreement. c. Obligations of the Coke Plant to comply from and after the Closing Date with all of the terms and conditions of any NPDES permit issued by the United States Environmental Protection Agency or the then permitting authority, any permit or order issued by the Alabama Water Improvement Commission and the Alabama Air Pollution Control Commission of the State of Alabama or any successor authority, any license, permit or order issued by the Jefferson County Department of Health, and of any other wastewater or runoff water discharge permit, license or order, air pollution permit, license or order, solid waste disposal permit, license or order, hereafter issued by the United States Environmental Protection Agency and/or by the State of Alabama and/or any of its political subdivisions, all in accordance with applications now pending and listed on Exhibit F hereto. App. at 22-23. Exhibit F contains a “List of Environmental Applications and Permits.” It is divided into two parts, one for permits related to air and one for permits related to water. Exhibit F lists no permits related to solid waste. All the listed permits refer to their date of issuance and the issuing authority. Paragraph 8(a) of the Agreement requires Mead, the seller, to indemnify Beazer, the buyer, against certain other liabilities. It provides: a. Indemnity Against Unassumed Liabilities. Mead hereby indemnifies Buyer against and hereby agrees to hold Buyer harmless from and to reimburse Buyer for any and all liabilities, losses, damages, costs of settlement and expenses ... which may be imposed upon or incurred by Buyer in connection with any liabilities or obligations of Mead other than those expressly assumed by Buyer. App. at 29. Paragraph 8(b), on the other hand, requires Beazer, as the buyer’s successor, to indemnify Mead, as seller’s successor, against other liabilities, including whatever liabilities paragraph 4(c) imposes on the buyer. It reads: b. Indemnity Against Assumed Liabilities. Buyer hereby indemnifies Mead against and hereby agrees to hold Mead harmless from and to reimburse Mead for any and all liabilities, losses, damages, costs of settlement and expenses ... which may be imposed upon or incurred by Mead in connection with any liabilities or obligations of Mead and/or the Coke Plant assumed by Buyer under this Purchase Agreement. App. at 30. In 1977, KCI transferred the Coke Plant and surrounding land to the Industrial Development Board of the City of Fairfield, Alabama (“IDB”). In turn, IDB leased the premises back to KCI. KCI continued to operate the facility. In 1988, Beazer acquired KCI and transferred the lease to a newly created corporation, Koppers Industries, Inc. (“KII”). At about this same time IDB transferred its ownership interest in the Coke Plant and the surrounding land back to KII. In 1981, the United States Environmental Protection Agency (“EPA”) and the Alabama Department of Environmental Management began to investigate the Coke Plant site for toxic substances. As a result, EPA asked Beazer to sign an Administrative Order on Consent (the “Order”) that would require Beazer to do a site-wide environmental investigation and eventually cleanup the site. On June 21, 1991, Beazer signed the Order. Issued pursuant to the Solid Waste Disposal Act, it identifies thirty-nine problem areas at the Coke Plant. The Order calls each of them a “solid waste management unit.” Beazer agreed to test each of these units for the presence of toxic wastes and then clean them up as necessary. On March 6, 1991, Beazer filed this action. The complaint, following amendment and dismissal of several counts, claimed contribution from Mead against any response costs Beazer incurred under CERCLA, 42 U.S.C.A. §§ 9607(a), 9613(f), or indemnification from Mead based on Paragraph 8(a) of the Agreement. Under the Agreement’s indemnification provisions, Beazer claimed that the expense of investigating the toxicity of these areas and cleaning them up was ultimately Mead’s responsibility. Beazer also alleged that many of the solid waste management units it agreed to - cleanup are parts of the site that Mead had dedicated to waste management but Beazer had never utilized while it was operating the facility. Mead denied any obligation either to indemnify Beazer against these costs or to contribute to the cost of testing, investigating or cleaning up the site. It also asserted a counterclaim under Paragraph 4(c) of the Agreement demanding that KCI and Beazer, as KCI’s successor in interest, indemnify Mead, hold it harmless and reimburse it for all response costs that investigation and cleanup of toxic wastes deposited on or in the Coke Plant or its environs may require. In another counterclaim, Mead asserted, in the alternative, a right to contribution from Beazer for any CERCLA costs Mead might be required to pay. Beazer filed a motion for a partial summary judgment seeking a declaration that Mead was a responsible operator under sections 107(a) and 113(f) of CERCLA, and that Paragraph 8(a) of the Agreement required Mead to indemnify Beazer against liability for all response costs. Mead filed a cross-motion for summary judgment asserting that Paragraph 4(c) of the Agreement relieved it of any obligation to indemnify Beazer or contribute to any cleanup costs Beazer might incur, and that Paragraphs 4(c) and 8(b) combined to obligate Beazer to indemnify Mead against any CERCLA response costs Mead might incur. The magistrate judge to whom the district court had referred these motions issued a report recommending that Mead be held liable as a “responsible party” for any government paid response costs, that Mead’s cross-motion for summary judgment against Beazer be granted and that Beazer’s action be dismissed in its entirety. Beazer filed timely objections, but the district court adopted the Magistrate’s Report as its opinion, granted Mead’s cross-motion for summary judgment and dismissed all of Beazer’s claims. Beazer filed this timely appeal. II. Jurisdiction & Standard of Review The district court had subject matter jurisdiction over this case under 28 U.S.C.A. §§ 1331, 1332, 1367 (West 1993) and 42 U.S.C.A. § 9613(b) (West Supp.1993). We have appellate jurisdiction over the district court’s final order dismissing Beazer’s claims and granting Mead’s counterclaim under 28 U.S.C.A. § 1291 (West 1993). We exercise plenary review over a district court’s grant of summary judgment. Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there remain any genuine issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. See Bank of Nova Scotia v. Equitable Fin. Management, Inc., 882 F.2d 81, 83 (3d Cir.1989). III. Analysis Section 9607(e)(1) of CERCLA provides: No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section. 42 U.S.C.A. § 9607(e)(1) (West 1983). On first reading, this appears internally inconsistent. We have reconciled its two sentences by construing them to mean “agreements to indemnify or hold harmless are enforceable between the parties but not against the government.” Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 89 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 837, 102 L.Ed.2d 969 (1989); see also United States v. Hardage, 985 F.2d 1427, 1433 (10th Cir.1993) (Under section 9607(e)(1) “responsible parties may not altogether transfer their CERCLA liability, [but] they have the right to obtain indemnification for that liability.”) (citations omitted) (emphasis in original). As the district court recognized in Hatco Corp. v. W.R. Grace & Co. — Conn., 801 F.Supp. 1309 (D.N.J.1992): Because § 9607(e)(1) renders ineffective any attempt to completely “transfer” liability, the most a party can do to limit its liability under CERCLA is to obtain from another an agreement “to insure, hold harmless, or indemnify” it from any liabilities established against it. Id. at 1317 (quoting 42 U.S.C.A. § 9607(e)(1)). Thus, Beazer could have lawfully agreed to indemnify Mead for its CERCLA liability or, conversely, Mead could have lawfully agreed to indemnify Beazer. The issue is whether either did so. The Agreement the parties rely on was executed before CERCLA was enacted. Therefore, we must, at the outset, resolve the preliminary issue of whether a contract of indemnity that predates CERCLA can be construed to include indemnity against CERCLA liability. This is a question of first impression in this Court. Other courts that have analyzed pre-CERCLA indemnity provisions have uniformly held that a pre-CERCLA agreement can require one party to indemnify another against CERCLA liability. See, e.g., Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 327 (7th Cir.1994); Hatco Corp., 801 F.Supp. at 1317-18; Purolator Prods. Corp. v. Allied-Signal, Inc., 772 F.Supp. 124, 132 (W.D.N.Y.1991); Mobay Corp. v. Allied-Signal, Inc., 761 F.Supp. 345, 356-58 (D.N.J.1991). We find the reasoning of these courts persuasive. Accordingly, we hold that a pre-CERCLA agreement can require an indemnitor to hold the indemnitee harmless from CERCLA liability. Nevertheless, not all pre-CERCLA promises to indemnify cover CERCLA liability. We must look to see whether an indemnification provision is either specific enough to include CERCLA liability or general enough to include any and all environmental liability which would, naturally, include subsequent CERCLA claims. The first step in this inquiry is to determine what law applies to the construction or interpretation of contractual provisions that affect responsibilities Congress has imposed on us in statutes enacted to enforce this nation’s strong commitment to a clean, safe and attractive environment. We now turn to this issue, also one of first impression in this Court. A. In deciding what law to apply to determine whether Paragraphs 4(c) and 8(a) establish an obligation for Beazer to indemnify Mead against CERCLA liability or Mead to indemnify Beazer, the magistrate judge looked first to the law the parties chose in Paragraph 13(k)(l) of the Agreement. It provides that Alabama law "will govern. Seeing “no reason to frustrate the obvious and expressed intent of the parties,” the magistrate judge said he would apply Alabama law to decide whether the Agreement’s indemnity provisions were clear enough to require Beazer to hold Mead harmless against CERCLA liability at the site. Magistrate Judge’s Report at 9. Finding no Alabama law directly on point, the magistrate judge took a cue from the holdings of the United States District Court for the District of New Jersey that pre-CERCLA agreements may cover CERCLA liability if such agreements are “worded broadly enough to encompass any and all liabilities, or if environmental liability is clearly referred to in the agreement.” Id. at 9-10 (citing Hatco Corp., 801 F.Supp. at 1318; Purolator Prods. Corp., 772 F.Supp. at 132; Mobay Corp., 761 F.Supp. at 356; Southland Corp. v. Ashland Oil Inc., 696 F.Supp. 994 (D.N.J.1988)). After concluding that Alabama law on the meaning of contracts was not inconsistent with this developing standard of federal common law, the magistrate judge saw no impediment to interpreting the Agreement under Alabama contract law. Nevertheless, he pointed out that construction or interpretation of a pre-CERCLA indemnity clause’s effect on CERCLA liability might “be an issue best determined by a uniform federal rule ... and that the federal case law establishing the standard under CERCLA may override any inconsistent state law in this respect.” Id. at 10 n. 2. The first question that we should ask is whether the national interest in uniform application of federal statutory law requires federal courts to develop a federal common law to preclude willy-nilly use of various state law principles in interpreting or construing indemnification provisions that affect liabilities under CERCLA. Cf. O’Melveny & Myers v. Federal Deposit Insurance Corp., — U.S. -,-, 114 S.Ct. 2048, 2052-55, 129 L.Ed.2d 67 (1994). Generally, federal law governs the validity of an agreement releasing a cause of action arising under federal law; see Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 96 L.Ed. 398 (1952), but the construction or interpretation of a private contract is generally thought to be a question of state law. Accordingly, most courts have recognized that imposition of CERCLA liability on a successor corporation is a question of federal law. See, e.g., John S. Boyd, Co. v. Boston Gas. Co., 992 F.2d 401, 406 (1st Cir.1993); Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1457 (9th Cir.1986); HRW Sys., Inc. v. Washington Gas Light Co., 823 F.Supp. 318, 326-28 (D.Md.1993); Chesapeake & Potomac Tel. Co. v. Peck Iron & Metal Co., 814 F.Supp. 1266, 1267-68 (E.D.Va.1992). Nevertheless, all of the courts of appeals that have considered developing a federal rule of decision appear to have decided it is better to look to state law in interpreting or construing a contract’s indemnification provisions vis-a-vis CERCLA. In John S. Boyd Co., the United States Court of Appeals for the First Circuit looked to the Massachusetts law of contracts to apportion CERCLA liability among contracting parties inter se. In construing the parties’ written agreement, it said, “state contract law ... provide[s] the substantive rule, so long as it is not hostile to the federal interests animating CERCLA.” John S. Boyd Co., 992 F.2d at 406 (citations omitted); Hardage, 985 F.2d at 1433 n. 2 (“Because the government’s interests are unaffected by the allocation of liability between jointly and severally liable parties, we easily conclude that a uniform federal rule is unnecessary and that state law will govern the indemnification clauses.”); see also O’Melveny, — U.S. at -, 114 S.Ct. at 2055 (“Our eases uniformly require the existence of [a significant conflict between some federal policy or interest and the use of state law] as a precondition for recognition of a federal rule of decision.”). The United States Court of Appeals for the Ninth Circuit has analyzed the issue of choosing state or federal common law to determine whether private indemnification agreements cover CERCLA liability in depth. See Mardan Corp., 804 F.2d at 1458-60. In Mardan Corp., the government, in an amicus brief, argued for state law to provide the substance of the decision rule. It said that “whether and when agreements between private ‘responsible parties’ can settle disputes over contribution rights under [CERC-LA]” did not require the development of a uniform federal rule. Id. at 1458. The court of appeals stated: [S]ection [9607(e)(1)] expressly preserves agreements to insure, to hold harmless, or to indemnify a party held liable under [CERCLA], Absent CERCLA, these contracts would be interpreted' under state law. By preserving such agreements, Congress seems to have expressed an intent to preserve the associated body of state law under which agreements between private parties would normally be interpreted. Certainly federal courts need not fashion federal common law to interpret every settlement of liability that arises under federal statutes. Id. Because Congress’ intent to require a federal rule of decision was “not entirely clear,” the court of appeals considered whether the policies Congress sought to advance by enacting CERCLA required a uniform federal standard for the interpretation and construction of indemnity clauses. For guidance it looked to the Supreme Court’s opinion in United States v. Kimbell Foods, Inc., 440 U.S. 715, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979). Id. Kimbell Foods set out the factors courts should use to determine when a uniform federal rule is needed to decide federal claims based on federal statutes when Congress has not made clear its intent on what law should supply a rule of decision. See Kimbell Foods, 440 U.S. at 728-29, 99 S.Ct. at 1458-59. They are: (1) whether the issue requires “a nationally uniform body of law”; (2) “whether application of state law would frustrate specific objectives of the federal programs”; and (3) whether “application of a federal rule would disrupt commercial relationships predicated on state law.” Mardan Corp., 804 F.2d at 1458 (citing Kimbell Foods, 440 U.S. at 728-29, 99 S.Ct. at 1458-59). The court of appeals in Mardan Corp. applied Kimbell Foods and concluded there was no need for a federal common law standard. It stated: First, we find no reason to think that the issue requires a uniform body of law. Commercial enterprises selling their assets or insuring themselves will normally look to state law to interpret their indemnification provisions, which will generally indemnify the enterprises against a whole host of possible liabilities. Disuniformity does not seem to impose any particular burden.... Second, the application of state law to interpret such releases will not frustrate the objectives of CERCLA. Contractual arrangements apportioning CERCLA liabilities between private “responsible parties” are essentially tangential to the enforcement of CERCLA’s liability provisions. Such agreements cannot alter or excuse the underlying liability, but can only change who ultimately pays that liability. ... ‡ ‡ ‡ ‡ * Finally, we are convinced that application of a federal rule ... would disrupt commercial relationships predicated on state law.... Creating a federal rule to govern CERCLA releases would introduce confusion and uncertainty into these commercial relationships in two respects. One, buyers and sellers would face greater confusion about which body of law to turn to. Two, the creation of a federal rule, as opposed to incorporating a ready-made and fully fleshed out body of state law, would, during the development of that federal rule, leave parties very uncertain about what rule governed CERCLA releases .... Id. at 1458-60. Judge Reinhardt, in a dissent in Mardan Corp., thought that a uniform federal rule should be applied to determine whether any particular agreement indemnified against CERCLA liability. Mardan Corp., 804 F.2d at 1463 (Reinhardt, J., dissenting). Citing cases that adopted uniform federal rules to determine liability under section 9607 and the legislative history of that section stressing the need for “ ‘a uniform rule of law ... to discourage businesses] dealing in hazardous substances from locating primarily in states with more lenient laws,’ ” Judge Reinhardt reasoned that “a uniform federal rule regarding releases from CERCLA liability serves Congress’ goals in the same manner that a uniform rule regarding liability does.” Id. at 1464 (citing 5 U.S.C.C.A.N. 6119, 6119-20, 6132 (1980) and quoting 126 Cong.Rec. H11787 (daily ed. Dec. 3, 1980) (statement of Representative Florio, CERCLA House sponsor) (alteration in original)). But see id. at 1459-60 (majority opinion) (arguing that parties are still fully liable to the government regardless of applicable law and concluding that adoption of state law does not conflict with congressional purpose underlying CERCLA). Though this Court has yet to consider what law should govern the construction or interpretation of any particular indemnity provision on the apportionment of CERCLA liability among contracting parties, we have adopted a federal common law standard in other environmental contexts. In Smith Land & Improvement Corp. v. Celotex Corp., we stressed the need for uniform standards if CERCLA is to be effective and indicated that a district court considering successor liability under CERCLA should look to “[t]he general doctrine of successor liability in operation in most states ... rather than the excessively narrow statutes which might apply in only a few states.” Smith Land & Improvement Corp., 851 F.2d at 92. We reasoned if we refused to apply uniform federal standards to regulate CERCLA liability, “CERCLA aims may be evaded easily by a responsible party’s choice to arrange a merger or consolidation under the laws of particular states which unduly restrict successor liability.” Id. In Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209 (3d Cir.1993), we also expressed a preference for uniform federal standards to govern CERCLA liability. We held that “given the federal interest in uniformity in the application of CERCLA, it is federal common law, and not state law, which governs when corporate veil-piercing is justified under CERC-LA.” Id. at 1225 (citations omitted). None of our cases, however, deal with the need for a federal standard in interpreting or construing contracts to indemnify and our sister courts of appeals have uniformly selected state law. See supra note 2. Fortunately we see no need to create a circuit conflict and will join the other courts of appeals that look to the law of a particular state concerning the construction or interpretation of contracts of indemnity to determine whether a particular indemnification provision covers CERCLA liability. We thus endorse the majority’s reasoning and application of the Kimbell Foods test in Mardan Corp. Moreover, we see support for this principle in the Supreme Court’s recent decision in O’Melveny & Myers. It teaches us that special federal rules are justified only in “situations where there is a ‘significant conflict between some federal policy or interest and the use of state law.’ ” O’Melveny & Myers, — U.S. at-, 114 S.Ct. at 2055 (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)). In O’Melveny & Myers, the Supreme Court considered whether federal or state decisional law should govern the question of imputation of knowledge in a suit where the FDIC sued in its capacity as receiver for a federally insured bank that had failed. The FDIC argued that Kimbell Foods required the district court to apply a uniform federal rule of decision to determine FDIC’s rights because “federal law governs questions involving the rights of the United States under nationwide federal programs.” O’Melveny & Myers, — U.S. at-, 114 S.Ct. at 2058 (quoting Kimbell Foods, 440 U.S. at 726, 99 S.Ct. at 1457). The Supreme Court first stated, “[T]he FDIC is not the United States, and even if it were we would be begging the question to assume that it was asserting its own rights rather than, as receiver, the rights of [the failed bank.]” Id. (emphasis added). It went on to note, “The rules of decision at issue here do not govern the primary conduct of the United States or any of its agents or contractors, but affect only the FDIC’s rights and liabilities, as receiver, with respect to primary conduct on the part of private actors that has already occurred.” Id. at -, 114 S.Ct. at 2055 (emphasis added). The Supreme Court then held that the issue of imputed knowledge in bank receivership eases “is not one of those extraordinary cases in which the judicial creation of a federal rule of decision is warranted.” Id. at-, 114 S.Ct. at 2056. How Beazer and Mead apportion their CERCLA liability among themselves does not affect the primary duty they owe the United States to clean up the poisons left to befoul the site both used. Whether one must indemnify the other concerns instead the liability of private actors for acts already done, just as the liability of the alleged tortfeasor in O’Melveny involved the FDIC’s right, as successor to the private right of an injured party, to recover for the injuries its predecessor had suffered as a result of past acts. How much Beazer or Mead pay each other seems to us to have even less effect on the United States than did the ability of FDIC to recover for tort injuries suffered by the failed bank it took over. The interpretation and construction of Paragraph 4(c) has no impact on either party’s liability to the government. See Smith Land & Improvement Corp., 851 F.2d at 89. On reason as well as authority, we therefore hold that state law should determine whether any particular contract of indemnity provision can be construed generally or broadly enough to cover one responsible party’s liability to another. B. Having determined that state law on the interpretation and construction of indemnification agreements applies to this case, we turn to the question of what state law should be applied. On that issue, we can quickly agree with the district court and apply Alabama law. We look to decisions of the Alabama courts and especially those of the Supreme Court of Alabama. Its most recent decision concerning the interpretation or construction of indemnification provisions is Nationwide Mutual Insurance Co. v. Hall, 643 So.2d 551 (Ala.1994). There, it held that indemnification agreements are enforceable in Alabama if “ ‘the parties knowingly, evenhandedly, and for valid consideration, intelligently enter into an agreement whereby one party agrees to indemnify against the indemnitee’s own wrongs, [and if that agreement is] expressed in clear and unequivocal language.’” Nationwide Mut. Ins. Co., 643 So.2d at 555-56 (quoting Industrial Tile, Inc. v. Stewart, 388 So.2d 171, 175-76 (Ala.1980), cert. denied, 449 U.S. 1081, 101 S.Ct. 864, 66 L.Ed.2d 805 (1981) (alteration in original)). In Nationwide, Alabama’s supreme court recognized that indemnity agreements covered only those incidents within their plain meaning and the court expressed a strong preference for this limitation. Id. (quoting Craig Constr. Co. v. Hendrix, 568 So.2d 752, 757 (Ala.1990); Industrial Tile, Inc., 388 So.2d at 176). The supreme court then stated that “an indemnity contract purporting to indemnify for the consequences of the indemnitee’s own negligence is unambiguous, and therefore, enforceable when its language specifically refers to the negligence of the indemni-tee_ [but that] such ‘talismanic’ or thau-maturgic language is not necessary if the requisite intent is otherwise clear.” Id. (citations omitted). We conclude that Alabama law requires a plain and unambiguous expression of intent to cover the cost of the liability in question. Using this standard, we now consider whether Paragraph 4(c) unambiguously expresses Beazer’s intent to indemnify Mead against CERCLA liability. C. The crux of the parties’ argument concerns the district court’s conclusion that Beazer expressly and unambiguously agreed to indemnify Mead for its CERCLA liability. They disagree as to whether the magistrate judge correctly applied Alabama’s limiting standard to the Agreement. Paragraph 4(c) reads: 4. Assumption of Agreements and Liabilities As of the Closing Date, Buyer [Beazer] shall assume and agree to perform: ^ sjt c. Obligations of the Coke Plant to comply from and after the Closing Date with all of the terms and conditions of ... any solid waste disposal permit, license or order, hereafter issued by the United States Environmental Protection Agency ... all in accordance with applications now pending and listed on Exhibit F hereto. App. at 23. Exhibit F is divided into two parts. Beazer argues that Paragraph 4(c) limits its agreement to assume Mead’s environmental liabilities to the permits mentioned in Exhibit F’s “List of Environmental Applications and Permits.” Because neither part of Exhibit F mentions any solid waste permit, Beazer contends that Paragraph 4(c)’s promise to indemnify does not unambiguously cover CERCLA response costs incurred in removing any toxic wastes found in or around the Coke Plant. After concluding that Paragraph 4(c) did not unambiguously rule out a promise to indemnify Mead against CERCLA liability, the magistrate judge went on to consider whether it unambiguously required Beazer to indemnify Mead for CERCLA liability under the federal standard announced in Mobay Corp. He acknowledged that Paragraph 4(c) was not a broad, general promise to indemnify Mead against all liability. Nevertheless, he concluded that the text of the paragraph clearly implies that, as between Beazer and Mead, Beazer would be responsible for any environmental liability arising from the Woodward Facility after the date of the sale. Even more than this implication regarding all environmental liability, the provision expressly provides that Beazer will be responsible for complying with orders issued by the EPA regarding solid waste. Magistrate Judge’s Report at 15. The magistrate judge construed Paragraph 4(c) as a promise by the buyer and its successors to indemnify the seller and its successors against all environmental liabilities associated with the Coke Plant. In doing so, the magistrate judge decided that Paragraph 4(c)’s textual reference to future “orders” issued by state, local, and federal agencies contradicted the more restrictive interpretation of Paragraph 4(e) which Beazer would have us infer from the specific list of permits mentioned in Exhibit F Paragraph 4(e). If Paragraph 4(c) were confined to the permits listed in Exhibit F, the magistrate judge reasoned that Paragraph 4(c)’s reference to permits, licenses, and orders “hereafter issued” would be meaningless. Thus, he concluded that Paragraph 4(c) did include all subsequent orders, permits, and licenses relating to environmental liability including those required or issued under CERCLA. Accordingly, the magistrate judge made the recommendation the district court accepted in granting summary judgment to Mead and dismissing Beazer’s claim for contribution under CERCLA. Paragraph 4(e) does expressly make Beazer responsible for “solid waste ... permits issued by [EPA],” but it has as additional limiting language; “all in accordance with applications now pending and listed on Exhibit F hereto.” Therefore, Beazer contends that the magistrate judge erred when he concluded that Paragraph 4(c) clearly and unambiguously transferred Mead’s CERCLA liability to Beazer. Beazer first argues that Paragraph 4(e) is no more than a “window” provision, common in commercial agreements for the sale of assets, which gives a seller interim protection against a buyer’s failure to comply with the conditions of any existing environmental permits that are specifically listed, as they are here in Exhibit F. Thus, Beazer argues that the magistrate judge erred when he failed to consider the parties’ basic decision to structure the sale as a purchase of assets. Beazer would have us infer that the decision to buy and sell assets was mutually agreed on for the express purpose of limiting the purchaser’s liability. We think Beazer’s argument that purchasers under asset purchase agreements normally assume only those debts, obligations, and liabilities of the seller that are expressly identified in the agreement is plausible and that the district court’s holding that Beazer must indemnify Mead would be inconsistent with that purpose. Nevertheless, we have been unable to find any evidence in this record that would unambiguously confirm that interpretation, and the text of Paragraph 4(c) is at least arguably to the contrary. Cf. Watts v. TI, Inc., 561 So.2d 1057, 1059-60 (Ala.1990). Therefore, we conclude that Beazer’s argument about the nature and purpose of framing a transfer of a business enterprise as a sale of assets begs the question on Paragraph 4(c)’s meaning. Beazer’s argument that the language of Paragraph 4(c) is not clear enough to transfer Mead’s CERCLA liability to Beazer under Alabama law is more telling. We conclude Paragraph 4(c) is ambiguous under the principles of Alabama law that guides determinations of contracts. See Reeves Cedarhurst Dev. Corp. v. First Amfed Corp., 607 So.2d 184, 186 (Ala.1992) (“An instrument is unambiguous if only one reasonable meaning clearly emerges.”) (quoting Vainrib v. Downey, 565 So.2d 647, 648 (Ala.Civ.App.1990). The provision is subject to more than one reasonable interpretation, and it is not plain enough to be construed as an unambiguous promise by Beazer to indemnify Mead against all environmental liability associated with the site of the Coke Plant, including liability without fault under laws like CERC-LA, yet to be passed. Therefore, it does not square with the principle of Alabama law that promises to indemnify are limited to subjects plainly expressed. Moreover, cases outside Alabama which have held a release or indemnification provision covers CERCLA liability have all involved indemnity clauses with much broader and more inclusive language than here. See, e.g., Kerr-McGee Chem. Corp., 14 F.3d at 326-27; Olin Corp., 5 F.3d at 12-13; Hardage, 985 F.2d at 1434; Niecko v. Emro Mktg. Co., 973 F.2d 1296, 1300 (6th Cir.1992); Mardan Corp., 804 F.2d at 1461-62. The Olin Corp. case provides one recent example. The court of appeals held that this provision evidenced a “clear and unmistakable intent” to transfer the seller’s environmental liability to the buyer, even future and unknown liability. Olin Corp., 5 F.3d at 15-16. The court of appeals held: In no uncertain terms, [the purchaser] agreed to assume the liability for losses resulting from “the maintenance of any ... claim ... concerning pollution or nui-sance_” The indemnity provision covers all pollution and nuisance claims without limitation_[and makes the purchaser] responsible for any liability imposed ... under CERCLA. Id. at 327 (footnote omitted). The contradictory terms and references of this Agreement leave us with no firm conclusion as to the clear and unmistakable intent of the parties. Under applicable principles of Alabama law, the parties failed to express the intent to indemnify with the requisite clarity. We hold, therefore, that Paragraph 4(c) is not specific enough to impose on Beazer a duty to indemnify Mead for their CERCLA response costs. D. Because Paragraphs 4(c) and 8 refer circuitously to each other, it follows therefore that neither Paragraph 4(c) nor Paragraph 8 expressly require either party to indemnify the other. Accordingly, our earlier analysis requires us to reject Beazer’s argument that Paragraph 4(c) was intended to limit Beazer’s assumption of liabilities to those expressly listed in Exhibit F, and that therefore because CERCLA is not a listed obligation Mead must indemnify Beazer under Paragraph 8(a). Beazer relies on the grammatical rule of the last antecedent to assert that the language “all in accordance with ... Exhibit F” is a limitation on the preceding reference to “solid waste disposal ... order” in support of its argument that the magistrate judge’s construction of Paragraph 4(c)’s phrase “all in accordance with” Exhibit F to mean “which includes” Exhibit F must fail. The phrase “all in accordance with” can be interpreted as Beazer would have it, but it does not compel that construction. Beazer’s contention that the magistrate judge erred when he concluded the limitation of Paragraph 4(c) to the permits expressly listed in Exhibit F would leave the words “hereafter issued” without meaning does not persuade us. As we have already explained, its argument that these words merely reflect an intent to protect the seller during a transition period immediately following the transfer of assets to the buyer fails to shine through the murky text of Paragraph 4(c). Beazer’s suggested interpretation of the words “hereafter issued” as limited to permits or licenses that might result from the pending applications is again plausible, but not so plain as to justify its construction under the Alabama rule that indemnity provisions must be strictly construed and limited to their plain meaning. E. Paragraph 4(c) does not clearly state that Beazer has agreed to assume all liability for toxic wastes under present or future laws protecting the environment. Though the phrase in Paragraph 4(e), “hereafter issued,” appears to look to the future, the phrase “all in accordance with” appears to limit the buyer’s environmental liability to orders, permits and licenses that are listed in the exhibit referenced. Accordingly, nothing in this agreement demonstrates a clear and unambiguous intent to transfer all CERCLA liability to Beazer. Our refusal to construe Paragraph 4(c) as a clear promise by Beazer to indemnify Mead against CERCLA response costs leaves both Beazer and Mead responsible for their fair share of the cleanup costs associated with the Coke Plant. That result reinforces CERC-LA policy. “Congress enacted CERCLA, a complex piece of legislation ... to force polluters to pay for costs associated with remedying their pollution.” United States v. Alcan Aluminum Corp., 964 F.2d 252, 258 (3d Cir.1992). Thus, we will reverse the district court’s entry of summary judgment in favor of Mead and remand this case for further proceedings on Beazer’s contribution claim. IV. CONCLUSION The order of the district court granting summary judgment on Mead’s counterclaim and the order dismissing Beazer’s claim for contribution will be reversed and the case will be remanded to the district court for further proceedings consistent with this opinion. . The paragraph states, "Each of the parties elects that this Purchase Agreement shall be governed, construed and enforced in accordance with the laws of the State of Alabama.” App. at 44-45. . See John S. Boyd Co., 992 F.2d at 406 (incorporating state law into federal law to construe an agreement pertaining to CERCLA liability); Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 15 (2d Cir.1993) (state law supplies the principles that govern the construction or interpretation of indemnification clause applicable to CERCLA liability); Hardage, 985 F.2d at 1433 & n. 2; Mardan Corp., 804 F.2d at 1458, 1460 (holding that federal courts should look to applicable state law to decide the validity of releases of claims under CERCLA); see also City of Phoenix, Az. v. Garbage Servs. Co., 827 F.Supp. 600, 602-03 (D.Ariz.1993) ("When developing federal common law, the court must decide whether to fashion a nationally uniform federal rule, or incorporate state law as the federal rule of decision .... The Ninth Circuit Court of Appeals has taken both approaches when filling in the gaps left by CERCLA, depending on the context.") (citations omitted); cf. HRW Sys. Inc., 823 F.Supp. at 328 (adopting federal “continuity of enterprise test" endorsed by Fourth Circuit rather than state law to determination of corporate successor liability); Chesapeake & Potomac Tel., 814 F.Supp. at 1268 (same). . It is perhaps material to note that these standards do not spring full formed and grown from the heads of federal judges as Athena did from Zeus nor does any Delphic oracle whisper uniformly in each judge's ear. See Manfred Lurker, Dictionary of Gods & Goddesses, Devils & Demons 44-45 (1987). . We again note the magistrate judge, despite his summary conclusion that Alabama law controls, seems to have applied the standard adopted by the United States District Court for the District of New Jersey. That court has used a federal standard to conclude that an indemnification or release provision which affects a party's CERCLA liability must be: (1) a broad waiver of "all liabilities of any type whatsoever” ... which would clearly evince the parties' broad intent to finally settle all present and future liability issues arising from the sale,; or (2) at a minimum, “must at least mention that one party is assuming [all] environmental-type liabilities" ... which would clearly evince the parties’ intent to settle all issues related to present and future environmental liabilities. Hatco Corp., 801 F.Supp. at 1317-18 (quoting and citing Mobay Corp., 761 F.Supp. at 358 & n. 15) (emphasis in original). The magistrate judge states, however, that he used this standard because it is consistent with Alabama law. . We do not think Alabama would apply a different rule in deciding whether an indemnity clause covers strict liability under environmental law. . Whether an agreement is unambiguous is a question of law. McDonald v. U.S. Die Casting & Dev. Corp., 585 So.2d 853, 855 (Ala.1991). . Beazer's duty to indemnify is controlled by Paragraph 8(b) of the Agreement which provides: Buyer [Beazer] hereby indemnifies Mead against and hereby agrees to hold Mead harmless from and to reimburse Mead for any and all liabilities, losses, damages, costs of settlement and expenses ... which may be imposed upon or incurred by Mead in connection with any liabilities or obligations of Mead and/or the Coke Plant assumed by Buyer under this Purchase Agreement. App. at 30. The obligations imposed by Paragraph 4 constitute “liabilities or obligations ... assumed by Buyer [Beazer] under this Purchase Agreement.” Id. Thus, if Paragraph 4 encompasses CERCLA liability, Beazer would be required to indemnify Mead under Paragraph 8(b) of the Agreement. . The sale agreement in Olin Corp. originally provided: [The buyer] hereby assumes and agrees to be responsible for and to pay, perform, discharge and indemnify [the seller] against, all liabilities (absolute or contingent), obligations and indebtedness of [the seller] related to the Aluminum Assets ... as they exist on the Effective Time or arise thereafter with respect to actions or failures to act occurring prior to the Effective Time. Olin Corp., 5 F.3d at 12-13. A later agreement in Olin Corp. stated: In consideration of the payment on this date by [the seller] to [the buyer] of $3,700,000 ... [the buyer] hereby releases and settles all claims of any nature which [it] now has or hereafter could have against [the seller] ... whether or not previously asserted, under or arising out of the Purchase Agreement ..., or the transactions contemplated thereby. Id. at 13 (footnote omitted). In the Kerr-McGee case the indemnification clause read: [The purchaser] expressly agrees to indemnify and to defend and hold [plaintiff's predecessor Moss-American], its officers, employees, and agents, free and harmless from and against any and all claims, damages, judgments, fines, penalties, assessments, losses, expenses, including interest, court costs and attorney fees, however the same may be caused, arising out of or resulting from, directly or indirectly, the following: (a) the purchase, dismantling or sale of the personal property and real property by [the purchaser]; (b) the maintenance of any action, claim or order concerning pollution or nuisance; and (c) the use by [the purchaser] or its employees or agents of the personal property and real property. Kerr-McGee Chem. Corp., 14 F.3d at 326-27 (emphasis added) (footnote omitted). See also John S. Boyd Co., 992 F.2d at 403-04 (construing a provision stating that "[the successor corporation] agreed to assume 'all the duties and liabilities of [its predecessor] related to [the] gas business' " and that "[the successor corporation] agreed to 'indemnify and save harmless [the predecessor corporation] from any duty or liability with respect to the gas business.’"). . Mead's duty to indemnify Beazer is set forth in Paragraph 8(a) of the Agreement. It is quoted in full supra, Part I, typescript at 5. It requires Mead, the seller, to indemnify Beazer, the buyer, against all liabilities other than those "expressly assumed by the Buyer.” Paragraph 8(b), quoted supra in note 7, is its mirror image. It requires Beazer, the buyer, to indemnify Mead, the seller, against all liabilities "assumed by Buyer.” . Section 9613(f) provides, in relevant part: Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title.... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. ‡ if! SfC S(S if: A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement. ... 42 U.S.C.A. § 9613(f)(1), (3)(B) (West Supp. 1994). The magistrate judge determined that Mead was a "responsible party" for purposes of CERCLA liability. It declined, however, to apportion the response costs or reach Mead’s or Beazer's contribution claims under section 9613(f) because it found that Beazer had agreed to indemnify Mead for all CERCLA liability under Paragraph 4(c) of the Agreement. On remand, the trial court will have to revisit the parties' contribution claims and correspondingly apportion liability for the attendant CERCLA response costs.

Akzo Coatings, Inc. v. Aigner Corp.

ILANA DIAMOND ROVNER, Circuit Judge. After completing the emergency clean-up work they were ordered to perform at a hazardous waste site in Indiana, Akzo Coatings, Incorporated and The O’Brien Corporation (collectively, “Akzo”) brought suit for contribution against Aigner Corporation and a number of other companies (collectively, “Aigner”) that allegedly had generated wastes which had been treated or disposed of at that site. The district court granted summary judgment in favor of Aigner, finding that Akzo’s work was a “matter addressed” by the consent decree that Aigner had entered into with the government. See 42 U.S.C. § 9613(f)(2). Because we conclude that Akzo’s work was for the most part not a “matter addressed” by the consent decree, we reverse the district court’s judgment in part. I. FACTS Between 1972 and 1985, more than 200 firms generated hazardous wastes that were sent to various facilities within the Kingsbury Industrial Park in Kingsbury, Indiana comprising what we refer to as the “Fisher-Calo” site. Among these facilities was the “Two-Line Road” facility, where Fisher-Calo Chemicals and Solvents, Incorporated and its predecessor corporations had conducted solvent recycling operations from 1981 until 1985. In 1988, the federal Environmental Protection Agency (“EPA”) concluded that the wastes stored at the Two-Line Road facility posed an imminent danger of release into the surrounding environment. Exercising the authority granted under section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9606, the EPA issued a unilateral administrative order requiring Akzo and some twenty other companies that qualified as “liable persons” under CERCLA to conduct certain “emergency removal activities” at the Two-Line Road facility. Among the tasks required were: (1) fencing off and otherwise securing the facility; (2) securing and removing all drums, tanks, and other containers of hazardous waste from the premises, including buried containers; and (3) determining the extent to which the soil was contaminated and removing any soil that was visibly polluted. Akzo complied with the EPA’s order, incurring costs in excess of $1.2 million. The work specified by the EPA’s 1988 order has largely been completed. In May 1990, approximately thirty-five companies that had generated wastes disposed of at the Fisher-Calo site and were thus “potentially responsible parties” (“PRPs”) under CERCLA (see n. 1, supra) initiated efforts to quantify the nature and extent of the liability of any and all PRPs for clean-up of the site and to evaluate the types of work that the EPA and Indiana might order them to perform. Akzo was among the firms that engaged in' this effort, and it incurred further costs in doing so. However, Akzo withdrew from the group in February 1991 after concluding that it was not liable for any contamination of the Fisher-Calo site beyond the Two-Line Road facility. In August 1990, the EPA published a Record of Decision (“ROD”) outlining the work it believed necessary to accomplish a complete decontamination of the site. With respect to the work mandated by the 1988 Order, the ROD stated: A removal action at the north end of the Two-Line facility is being conducted under a Unilateral Removal Order issued by U.S. EPA. The removal action is being carried out in two phases: Phase I involves the staging of drums for removal during Phase II. Phase II includes the excavation of the contaminated soils and buried tanks and drums located on the north end of the Two-Line Road property. The visibly contaminated soils, tanks and drums will be removed from the north end of the Two-Line Road facility and transported to an appropriate disposal facility. A further removal action is being scoped for the south end of the Two-Line facility. For the purposes of this Record of Decision, it is assumed that all drums, tanks, and containers on the Two-Line Road property requiring remedial action are being addressed by these actions. ROD Summary at 5 (emphasis supplied). The EPA began to negotiate with the PRPs to implement the clean-up outlined in the ROD, and by the end of the following year, it had finalized an agreement with more than 200 PRPs. The EPA filed suit against these PRPs in late December 1991 and asked the court to approve the proposed consent decree it filed contemporaneously with its complaint. United States v. Accurate Partitions Corp., Civ. No. S91-00646 M (N.D.Ind.). Pursuant to the decree, the settling PRPs agreed to undertake the actions specified by the 1990 ROD and to compensate the EPA for some of the costs it had incurred to date. In late February 1992, following the requisite notice period, see 42 U.S.C. § 9622(d)(2), the district court approved the consent decree. Aigner was a party to this decree; Akzo was not. In 1991, Akzo brought suit against Aigner seeking, inter alia, contribution under CERCLA for the initial clean-up work it had performed at the behest of the EPA as well as the voluntary costs it had incurred in studying the long term clean-up of the site with other PRPs. Aigner moved to dismiss the complaint, arguing that the work for which Akzo sought contribution was a “matter addressed” by the Accurate Partitions consent decree and thus Akzo’s claim was barred by the statute. The district court converted the motion into one for summary judgment in accordance with Fed.R.Civ.P. 12(b) and ruled in Aigner’s favor, agreeing that Akzo sought contribution for a “matter addressed” by the consent decree. Akzo Coatings, Inc. v. Aigner Corp., 803 F.Supp. 1380 (N.D.Ind.1992). Although the court’s ruling did not dispose of all of Akzo’s claims, the court certified its ruling for immediate appeal under Fed.R.Civ.P. 54(b). II. ANALYSIS Section 113(f) of CERCLA, added to the statute in 1986, authorizes claims for contribution, subject to the limitation set forth in paragraph (2): (1) Contribution Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title_ In resolving contribution claims, the court may allocate response costs among hable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall dimmish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 or section 9607 of this title. (2) Settlement A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be hable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially hable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement. 42 U.S.C. § 9613(f). The district court concluded that Akzo is seeking contribution under section 113(f)(1) and that Aigner is not liable because the clean-up of the entire Fisher-Calo site is a “matter addressed in the settlement.” Akzo disagrees with both conclusions: it contends that it is not seeking “contribution” at all and that the work the EPA ordered it to perform at the Two-Line Road facility was not a “matter addressed” in the consent decree. The United States, offering its opinion as amicus curiae, suggests that Akzo is wrong on the first argument but right on the second. We agree. That Akzo’s claim is one for contribution we have no doubt. Akzo argues that its suit is really a direct cost recovery action brought under section 107(a) rather than a suit for contribution under section 113(f)(1); and it is true that section 107(a) permits any “person” — not just the federal or state governments — to seek recovery of appropriate costs incurred in cleaning up a hazardous waste site. 42 U.S.C. § 9607(a), subpart (B). Yet, Akzo has experienced no injury of the kind that would typically give rise to a direct claim under section 107(a) — it is not, for example, a landowner forced to clean up hazardous materials that a third party spilled onto its property or that migrated there from adjacent lands. Instead, Akzo itself is a party liable in some measure for the contamination at the Fisher-Calo site, and the gist of Akzo’s claim is that the costs it has incurred should be apportioned equitably amongst itself and the others responsible. Complaint ¶¶ 10, 11. That is a quintessential claim for contribution. See Restatement (Second) of Torts § 886A (1979); see also Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989); In re Dant & Russell, Inc., 951 F.2d 246, 249 (9th Cir.1991). Section 113(f)(1) confirms as much by permitting a firm to seek contribution from “any other ” party liable under sections 106 or 107. Whatever label Akzo may wish to use, its claim remains one by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make. Akzo’s suit accordingly is governed by section 113(f). Accord Transtech Indus., Inc. v. A& Z Septic Clean, 798 F.Supp. 1079, 1085-87 (D.N.J.1992), appeal dismissed, 5 F.3d 51 (3d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2692, 129 L.Ed.2d 823 (1994). To the extent cases such Burlington N. R.R. Co. v. Time Oil Co., 738 F.Supp. 1339, 1342-43 (W.D.Wash.1990), and Key Tronic Corp. v. United States, No. C-89-694-JLQ, Order at 15 (E.D.Wash. Aug. 9, 1990), judgment rev’d on other grounds, 984 F.2d 1015 (9th Cir.1993), aff'd in part, rev’d in part, and remanded, — U.S. -, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994), have suggested otherwise, we decline to follow them. Akzo suggests that whether its claim is one for contribution may depend on whether the harm done to the Fisher-Calo site is divisible. If, for example, all of Akzo’s solvents were deposited at Two-Line Road while Aigner’s were deposited at a different facility, Akzo’s claim for cleaning up the Two-Line Road site looks less like one for contribution and more like a section 107 cost recovery action. But the basis for holding Aigner hable in that scenario escapes us. Only the hypothesis that the whole Fisher-Calo site is the proper unit of analysis, or that both Akzo and Aigner sent solvents to Two-Line Road, would give Akzo a legitimate claim against Aigner. Either way, Akzo is seeking to apportion liability for an injury to which it contributed. Our attention thus turns to whether the contribution that Akzo seeks is for “matters addressed” by the consent decree that Aigner signed. The statute itself does not specify how we are to determine what particular “matters” a consent decree addresses. Section 113(f)(1) does direct us, however to “use[] such equitable factors as the court determines are appropriate” in resolving contribution claims. 42 U.S.C. § 9613(f)(1). Thus, rather than adopting any bright lines, Congress quite clearly envisioned a flexible approach to contribution issues. See Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 326 (7th Cir.1994) (“In determining the relative contribution of the parties, courts must look to the ‘totality of the circumstances.’ ”) (quoting Environmental Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 603, 509 (7th Cir.1992)); EMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 846-47 (10th Cir.1993) (collecting cases). Our starting point, naturally, is the consent decree itself. The decree is expansive, not just in terms of its length (sixty-four pages, exclusive of its appendices) but its scope as well. It addresses the Fisher-Calo site as a whole, defining the relevant “Facility” as “the location where treatment, storage, disposal or other placement of hazardous substances was conducted by Fisher-Calo Chemical Company, and those areas where such substances have come to be located.” Consent Decree at 7, ¶'4. It also incorporates wholesale the far-ranging remedial plan set forth in the EPA’s 1990 ROD (id. at 6, ¶ 1; 11, ¶ 5), a plan which, barring unforeseen problems, would accomplish a complete clean-up of the site at an anticipated cost of more than $30 million. The decree also requires the settling defendants to pay the EPA and the. State of Indiana nearly $3.1 million for their costs to date. Id. at 38-39, ¶ 49. Finally, and most significantly from Aigner’s perspective, the decree includes a covenant not to sue the settling defendants for “covered matters,” which include “any and all claims available to the United States under Sections 106 and 107 of CERCLA ... relating to the Facility, and any and all claims relating to the Facility available to the State under Indiana Code 13-7-8.7 and common law nuisance.” Id. at 46, ¶ 66. Consequently, with certain specific exceptions that are immaterial here (id. at 46 — 49, ¶¶ 67-71), Aigner has been released of any liability to either Indiana or the United States. But the fact that the decree bestows comprehensive immunity from claims by the state and federal governments does not necessarily mean that Aigner enjoys the same immunity from claims brought by a party in Akzo’s position. Whatever light the government’s covenant not to sue may shed on the intended scope of the decree, it should not be treated as dispositive of the contribution protection the settling PRPs are afforded under section 113(f)(2). The government’s agreement to seek nothing more from the parties to the decree does not signal an intent to preclude non-settling parties from seeking contribution. See Transtech, 798 F.Supp. at 1088-89. As the United States observes: If the covenant not to sue alone were held to be determinative of the scope of contribution protection, the United States would not be free to release settling parties from further litigation with the United States, without unavoidably cutting off all private party claims for response costs. Amicus Br. at 19. Surely this is not what Congress intended. Rather than give undue weight to a provision of the decree having nothing on its face to do with the claims of non-settling parties, we must look to the decree as a whole to decide whether its provisions encompass the type of activity for which Akzo seeks contribution. Other courts have suggested that the “matters addressed” by a consent decree be determined with reference to the particular location, time frame, hazardous substances, and clean-up costs covered by the agreement. United States v. Union Gas Co., 743 F.Supp. 1144, 1154 (E.D.Pa.1990); accord Akzo Coatings of America, Inc. v. American Renovating, 842 F.Supp. 267, 271 (E.D.Mich.1993); United States v. Colorado & E. R.R., 832 F.Supp. 304, 307 (D.Colo.1993); United States v. Pretty Products, Inc., 780 F.Supp. 1488, 1494-95 n. 4 (S.D.Ohio 1991). See also Akzo Coatings, Inc. v. Aigner Corp., 803 F.Supp. at 1384. The United States correctly observes that this should not be treated as an exhaustive list of appropriate considerations, for the relevance of each factor will vary with the facts of the case. Amicus Br. at 17 n. 15. Ultimately, the “matters addressed” by a consent decree must be assessed in a manner consistent with both the reasonable expectations of the signatories and the equitable apportionment of costs that Congress has envisioned. See Transtech, 798 F.Supp. at 1088. Because Akzo’s work stands apart in kind, context, and time from the work envisioned by the consent decree, we conclude that it is not a “matter addressed” by the decree. Akzo was required to engage in “removal” work (42 U.S.C. § 9601(23)) — that is, a short-term, limited effort to abate any immediate threat posed by the wastes present at the site. See Schalk v. Reilly, 900 F.2d 1091, 1092-93 n. 1 (7th Cir.), cert. denied, 498 U.S. 981, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990). The consent decree, on the other hand, provides for the kind of long-term, “remedial” work (42 U.S.C. § 9601(24)) necessary to accomplish a complete clean-up of the site. See Schalk at 1092-93 n. 1. This distinction is reflected in the two different orders implementing the work. The 1988 order unilaterally directed Akzo to undertake certain “emergency removal activities,” including the extraction and disposal of leaking drums and other hazards from the Two-Line Road facility. In contrast, the 1992 consent decree embodies a negotiated settlement designed to implement a long-range remedial plan for the entire site, as outlined in the EPA’s 1990 Record of Decision (“ROD”). Neither the decree nor the ROD purports to incorporate the 1988 order; on the contrary, the ROD explicitly assumes “that all drums, tanks, and containers on the Two-Line Road property requiring remedial action are being addressed” by that order. ROD Summary at 5. Indeed, by the time Aigner entered into the consent decree, Akzo’s removal work had already been completed. Consequently, it comes as no surprise that this work was not addressed in the consent decree: Settlement negotiations are presumably conducted with affected parties able to participate and work toward a joint cleanup goal. Previous cleanup activities already conducted and paid for by private parties are not likely to be addressed by the government in negotiations of this sort. Burlington N. R.R. Co., 738 F.Supp. at 1342. Because Akzo’s preliminary clean-up work is thus so clearly distinct from the long-range remedial matters addressed by the decree, Akzo is entitled to seek contribution from the settling PRPs under section 113(f)(1). Our conclusion is different with respect to the voluntary costs that Akzo incurred in conjunction with other PRPs in attempting to anticipate the claims that might be asserted against them by the EPA. In contrast to the limited nature of the initial removal work required by the EPA’s 1988 order, the focus of these efforts was on the long-term remedial action necessary to effect a permanent clean-up of the site. In essence, Akzo and its fellow PRPs were attempting to predict, and perhaps shape, the provisions of the consent decree. In that sense, these efforts were necessarily “matters addressed” by the decree, and in the absence of some indication that they accomplished tasks distinct from what the consent decree called for, claims for contribution based on these efforts are barred by section 113(f)(2). The flexible, fact-based approach we have used to determine what matters are addressed by the consent decree may not offer settling parties the same degree of repose as one based solely on the facial breadth of the decree. Yet, we perceive no unfairness to Aigner in the result here. Akzo’s work was over and done with by the time Aigner signed the consent decree. Acknowledging a right to contribution in this particular circumstance does not subject a settling PRP like Aigner to open-ended liability for contribution claims based on future, unanticipated remedial work. The extent and cost of Akzo’s work were obviously known to (or at least ascertainable by) the parties to the consent decree, and had they wished to make that work a “matter addressed,” presumably they could have done so. The fact is they did not, and permitting Akzo to pursue its contribution claim in this context works no undue hardship on Aigner. Our dissenting colleague takes a different tack, implying that because it lies within the EPA’s power to draft the release language more narrowly, we should simply take the language in this settlement on its face and construe it broadly to include the clean-up work for which Akzo seeks contribution. Post at 774. There is some allure in that argument, and had Akzo itself been a party to the agreement, we might find it persuasive. But whatever opportunity Akzo may have enjoyed to comment on the consent decree, it had no control over the language ultimately adopted; indeed, neither the EPA, nor Aigner, certainly, had any incentive to take care with Akzo’s contribution rights. Given the sweeping power Congress has given the EPA to extinguish the contribution rights third parties would otherwise enjoy under section 113(f)(2), we believe it prudent to require the settling parties to be more explicit when they intend to bar contribution for work such as Akzo’s which, factually speaking (see post at 771-72), is not clearly a “matter addressed” by the agreement. Indeed, we are convinced that a contrary outcome would leave firms like Akzo in an untenable position. A party served with a unilateral order under section 106 has little choice but to comply; the statute places strict limits on prior judicial review of such orders and authorizes fines of up to $25,000 per day for a party who refuses to obey. 42 U.S.C. §§ 9606(b)(1), 9613(h); see In re CMC Heartland Partners, 966 F.2d 1143, 1148 (7th Cir.1992). To subsequently preclude a compliant party from seeking contribution for the sums it has expended simply because it had the misfortune to be drafted by the EPA before a remedial plan could be prepared and a settlement negotiated will not expedite cooperative environmental remediation. If defendants were permitted to settle with the government for part of the clean-up costs of a site, and then become immune from suit for contribution by private entities who paid for other cleanup costs, it would defeat the policy of CERCLA. Settling PRPs should not be made to pay twice for the same clean-ups, but they also should not get a windfall because they settled. Akzo Coatings of America, 842 F.Supp. at 271 (emphasis in original). The dissent suggests that our rationale is at odds with the Supreme Court’s recent opinion in McDermott, Inc. v. AmClyde, — U.S. -, 114 S.Ct. 1461, 128 L.Ed.2d 148 (1994). Post at 773. We disagree. As the dissent points out, McDermott disavows a rule of liability allocation in admiralty cases that would permit nonsettling parties to seek contribution from parties that have settled. Id. at-, 114 S.Ct. at 1467. We do not begin with the blank slate that the Supreme Court confronted in McDermott, however. See id. at-, 114 S.Ct. at 1464-65. Here, Congress has spoken directly to the question of contribution and permitted non-settling parties to seek contribution for any matter not addressed in the settlement. § 9613(f)(2). Consequently, the ease before us is first and foremost one of contractual interpretation, and on that subject, McDer-mott is not controlling. Of course, policy considerations of the kind discussed in McDermott to some extent have informed our decision on how broadly to construe the “matters addressed” by the consent decree. Thus, the dissent urges that the decree be accorded a generous sweep that shields Aigner from contribution claims and makes settlement more attractive, while we have construed the decree more narrowly based on the underlying circumstances and avoided the potentially inequitable result that might otherwise befall Akzo. As we see it, McDermott's careful balancing of these competing interests lends as much support to our approach as it does to the dissent’s. In McDermott, the Court was called upon to decide how settlement with some defendants affects the liability of other defendants who take their chances and proceed to trial. In deciding which of three rules to adopt, the Court was motivated in part by a desire to protect settling parties from further liability and thus to foster settlement, — U.S. at -, 114 S.Ct. at 1466-67, but in equal measure by a concern that nonsettling parties not be made to pay damages that exceed their equitable portion of the blame for the injury, id. at-, 114 S.Ct. at 1467-68. In adopting what is referred to as the “proportionate share” rule, the Court served both interests: although the nonset-tling party is barred from seeking contribution against a settling party, the nonsettling party’s liability for damages is limited to its equitable share of the judgment as determined at trial. Id. at-, 114 S.Ct. at 1468-70. Here, we do not have the option of capping Akzo’s liability in this way. Akzo is not in the position of a party that opts not to settle and instead to take its chances at trial; it was forced to pay out long before settlement was even on the table. Having concluded that the work the EPA ordered Akzo to perform was not a “matter addressed” by the subsequent consent decree, we do not find it inequitable to permit Akzo to seek contribution from Aigner in this situation. The dissent postulates that the real solution to Akzo’s dilemma lies in a suit against the government for any mistake it may have made in ordering Akzo to conduct the emergency clean-up work, an option which, in the dissent’s view, obviates any need for contribution. Post at 773-74. That avenue of relief may be a dead end for Akzo, however. Section 106(b)(2) of CERCLA does permit a person ordered to perform removal work under section 106(a) to petition the government for reimbursement of its costs and to file suit if the request is refused, but in order to recover, the petitioner must show either that it is not liable for response costs under section 107(a) or that the order compelling the work was arbitrary and capricious or otherwise not in accordance with law. 42 U.S.C. §§ 9606(b)(2)(A)-(D), 9613(j)(3); see Kelley v. EPA 15 F.3d 1100, 1103 (D.C.Cir.1994). Akzo cannot make the first showing, because it sent wastes to the Fisher-Calo site and is therefore liable for response costs under section 107(a). 42 U.S.C. § 9607(a)(3). See Complaint ¶ 10. Moreover, nothing in the record before us suggests that the EPA’s 1988 order was arbitrary and capricious or otherwise unlawful, either in the designation of the work to be performed or in the selection of the parties who were to perform it. Thus, even if the sums Akzo spent in complying with the section 106 order were disproportionate to its measure of culpability for the contamination of the site, the statute does not necessarily permit Akzo to recover the excess from the government. Only a suit for contribution against other PRPs offers the concrete prospect of making Akzo whole in this regard. For that reason, we suspect that if we were to bar Akzo from pursuing contribution, parties who found themselves in a similar position in the future would simply exercise the intervention right granted them by section 113(i) and oppose the approval of any consent decree that might be construed to foreclose their right to contribution. See 42 U.S.C. § 9613(i); United States v. Acton Corp., 131 F.R.D. 431 (D.N.J.1990); but see Arizona v. Motorola, Inc., 139 F.R.D. 141, 144-46 (D.Ariz.1991). Thus, we might accomplish no more than to shift the battle to a different venue. We have no “disdain” for the contribution protection Congress has bestowed on settling parties in section 113(f)(2). See post at 774. We do, however, think it inconsistent with the legislature’s intent to give “matters addressed” the broad sweep that the dissent proposes. Even the EPA, which stands to gain from any precedent that makes settlements more attractive, does not embrace that approach. The language of the statute, after all, does not create a blanket prohibition against all suits for contribution; the bar extends only so far as the “matters addressed” by the settlement. When the parties to the settlement have not themselves defined those matters explicitly, we believe it in keeping with congressional intent to do so with an eye to the practicalities of the situation underlying the settlement and the reasonable expectations of the settling parties. III. CONCLUSION Based on the totality of the circumstances surrounding the work for which Akzo seeks contribution and the subsequent consent decree between the government and Aigner, we conclude that initial removal work that Akzo was compelled to perform was not a “matter addressed” by the consent decree but that Akzo’s voluntary efforts toward long-term clean-up were. Akzo is thus entitled to seek contribution from Aigner for the former, but not the latter. The district court’s judgment against Akzo and in favor of Aigner is therefore AFFIRMED IN PART and REVERSED IN Past, and the case is REMANDED for farther proceedings consistent with this opinion. . Section 107(a) of the statute deems liable for cleanup costs anyone who (1) presently owns a hazardous waste site; (2) owned the site when hazardous materials were disposed'of there; (3) arranged for the disposal of wastes at the site, or for transportation of wastes to the site for disposal; or (4) accepted wastes for transportation to the site for disposal. 42 U.S.C. § 9607(a). Among the companies cited in the EPA’s 1998 order were Fisher-Calo Chemical Corporation, the present owner and operator of the Fisher-Calo site, along with other companies that, like Akzo, had generated hazardous wastes and arranged for the disposal or the transport for disposal of the wastes at the Fisher-Calo site. 1988 Order at 4, ¶ 3. . Because the claims we address here were disposed of largely on the pleadings, we have assumed as true the facts as Akzo has alleged them. On remand, of course, it will be Akzo’s burden to establish its entitlement to contribution from the defendants within the parameters of our opinion. . The briefs reveal a bit of a skirmish on this point, which we conclude is immaterial. See n. 9, infra. .Aigner Corporation and three of the other defendants who signed the consent decree had, like Akzo, been named in the EPA’s 1988 Order and performed initial cleanup work in response to that order. Akzo makes no claims against these four defendants for costs it incurred in response to the 1988 Order; however Akzo does seek compensation from these defendants for some of the other costs it has incurred voluntarily. Having made this clarification, we will for convenience continue to refer to the defendants collectively as “Aigner”. . Our disagreement with Burlington N. R.R. Co. is limited to that court's conclusion that claims among PRPs are not governed by section 113(f)(2). See infra at 767. . Akzo reminds us that in Count Four of its complaint, it seeks total recovery of the voluntary costs it incurred in conjunction with the other PRPs who sought to study and delineate their potential liability for further action at the Fisher-Calo site. Akzo bears none of the responsibility for these costs, it argues, and therefore its claim is necessarily not one for contribution. Even if that rationale does render Count Four something other than a claim for contribution (an issue we need not decide), it does not necessarily clear a path to recovery. See United States v. Hardage, 982 F.2d 1436, 1448 (10th Cir.1992) (costs borne by private party in investigating and developing remedial alternatives for purposes of defending against government’s suit are not necessary to containment and cleanup of polluted site and thus are not “necessary" response costs recoverable under section 107(a)(4)(B)), cert. denied, - U.S. -, 114 S.Ct. 300, 126 L.Ed.2d 248 (1993); see also Key Tronic v. United States, - U.S. -, -, 114 S.Ct. 1960, 1968, 128 L.Ed.2d 797 (1994). In any event, because Akzo’s voluntary response costs were aimed at a permanent clean-up of the site, we believe them barred as "matters addressed” by the Accurate Partitions consent decree. See infra at 767. . Put another way, because the decree defines "covered matters" only in terms of claims available to the United States and the State of Indiana, claims that Akzo might have based on its own work would seem by definition excluded. For that reason, we do not find it particularly significant that the response costs for which the settling defendants are obligated to reimburse the EPA under the decree may include costs related to the 1988 order. Those costs are obviously separate from the costs that Akzo incurred in complying with that order. See Transtech, 798 F.Supp. at 1089-90; accord Akzo Coatings of America, Inc. v. American Renovating, 842 F.Supp. 267, 272-73 (E.D.Mich.1993); United States v. Colorado & E. R.R., 832 F.Supp. 304, 307 (D.Colo.1993); Boeing Co. v. Northwest Steel, No. C89-214M, 1991 WL 549404, at *1, 1991 U.S.Dist. LEXIS 14786, at *1 (W.D.Wash. July 24, 1991). We note that the decree contains a separate provision (¶ 89) acknowledging the settling defendants’ entitlement to contribution protection for "matters addressed in this Consent Decree.” However, this provision, like its statutory counterpart, supplies no definition of the "matters addressed.” . We therefore agree with the dissent that a pro/ecf-specific interpretation per se will not always be appropriate, because the parties might well include in their agreement provisions that are unrelated to the particular work underlying the settlement but nonetheless relevant to the extent of contribution protection provided. See post at 771-72. For example, as the dissent points out, the agreement might bestow contribution protection on non-settling PRPs. See 42 U.S.C. § 9613(f)(2). The parties might also include a provision protecting the settling PRPs from contrihution for work that is otherwise beyond the scope of the decree. See n. 14, infra. But such terms do not foreclose the kind of fact-specific evaluation of the "matters addressed" we have employed here; they are simply among the circumstances that the court ought to consider. Thus, if the parties have included terms explicitly describing the “matters addressed" by their settlement, then those terms will be highly relevant to, and perhaps even dispositive of, the scope of contribution protection; and no woe of the kind the dissent envisions need befall the parties. See post at 772. If, on the other hand, the parties have omitted such terms as they did here (see n. 7, supra), or if the terms are ambiguous, then it will he appropriate to consider other factors, such as the scope of the work called for in the agreement, the harms addressed, time frame, and so on. . The parties do not fully agree whether all work specified by the EPA's 1988 order was completed. Although in its answer Aigner admits that Akzo “ha[s] fully complied with the USEPA's administrative order dated December 15, 1988” (Answer at 9, ¶ 17), Aigner cites an affidavit in the record indicating that some tasks called for by the order remain outstanding and "are to be addressed pursuant to an agreement between the United States Environmental Protection Agency and the [settling defendants] under the terms and conditions of the Consent Decree.” Paulen Affi II 6, Supp.App. 77. Perhaps all this means is that although Akzo and the other parties subject to the 1988 order completed what work the EPA required of them, a few tasks were by agreement left for another day. In any case, the fact that some portion of the work originally envisioned by the 1988 order has been handled within the framework of the consent decree only confirms that the remainder was not a "matter addressed" by the decree. . To the extent that Akzo seeks contribution for any of the attorneys' fees it has incurred, the Supreme Court's recent decision in Key Tronic Corp. v. United States, supra n. 6, is controlling. That decision leaves the door open to the recoupment of fees for "lawyers' work that is closely tied to the actual cleanup” of a site, - U.S. at -, 114 S.Ct. at 1967, but precludes the recovery of fees incurred in connection with bringing a cost recovery or contribution suit against other PRPs or in defending the plaintiff's interests in settlement negotiations or other proceedings establishing the extent of its liability, id. at-, -, 114 S.Ct. at 1967, 1968. . The district court's opinion in Key Tronic Corp. v. United States, supra at 764, suggests-that it might constitute a denial of due process to foreclose non-parties to a consent decree from seeking contribution without some type of hearing. Order at 14-15; see also General Time Corp. v. Bulk Materials, Inc., 826 F.Supp. 471, 476-77 (M.D.Ga.1993); but see United States v. Cannons Eng’g Corp., 899 F.2d 79, 93 (1st Cir.1990); United States v. Serafini, 781 F.Supp. 336, 339 (M.D.Pa.1992). We need not address that question, as Akzo has not argued that section 113(f)(2) is unconstitutional either on its face or as Aigner would have it applied here. . At the same time, because Akzo’s claim was choate before the decree was signed, Aigner had the ability to evaluate its exposure and decide whether or not the settlement was still in its best interest absent contribution protection that included Akzo’s claim. . A recurrent theme in Aigner’s brief is that Akzo has only itself to blame for its predicament because it refused to enter into the consent decree. E.g., Aigner Br. at 23. We are nonplussed by that view. If we assume, as Akzo alleges, that the EPA’s 1988 order forced it to spend sums disproportionate to its culpability, it is not difficult to understand why Akzo was reluctant to contribute anything more for the privilege of signing the consent decree. The most Akzo stood to gain from entering the settlement was protection from further liability, not reimbursement for what it had already spent on the initial clean-up of the Fisher-Calo site. .Naturally, a consent decree that offered Aig-ner contribution protection from Akzo was worth more than one that did not, and our analysis places the decree Aigner signed in the latter category. Nonetheless, the approach we have articulated does not necessarily mean that parties in Aigner’s position will either contribute less to the settlement or walk away from the bargaining table entirely. In this respect, we find the dissent’s discussion of the Recycling Industries hypothetical (post at 772) unconvincing. If PRP # 2 balks at the $10 million proposal to clean up the West plant, fearing that it will also be on the hook for a share of PRP # l's $10 million cleanup of the East plant, we take it the EPA will do one of two things in order to secure PRP # 2's cooperation: (1) add a proviso to the settlement with PRP # 2 granting it explicit contribution protection vis á vis the East plant as well as the West, or (2) negotiate a global settlement encompassing both the East and West plants. We need not assume, therefore, that a fact-specific interpretation of the “matters addressed" by a consent decree will impede settlement. Nothing prevents the parties from either defining the "project" addressed by the settlement in an all-encompassing fashion such that the contribution protection afforded by the settlement agreement is correspondingly unlimited, or in the alternative drafting explicit contribution provisions that obviate any need to consider the breadth of the underlying project. . The dissent observes: "Akzo thinks that it has paid more than its share; for all we can tell, the Aigner parties have paid too much and Akzo too litde.” Post at 773. Quite so. But that is something to be sorted out in addressing the merits of Akzo's contribution claim. Given the procedural posture of the case, we are required to take the facts as Akzo has alleged them. See n. 2, supra. . A district court in this circuit has suggested that the statute does permit recovery in this situation, reasoning that if the EPA has required a PRP to complete work that exceeds its potential liability, then it has acted arbitrarily or capriciously. Employers Ins. of Wausau v. Clinton, 848 F.Supp. 1359, at 1367-68 & n. 13 (N.D.Ill. 1994); see also Employers Ins. of Wausau v. Browner, 848 F.Supp. 1369, at 1377 n. 13 (N.D.Ill. 1994). Obviously, that issue is not before us now, and we do not undertake to resolve it. But this is certainly a matter on which courts might differ. See North Shore Gas Co. v. EPA, 930 F.2d 1239, 1245 (7th Cir.1991). In any case, the possibility of relief by this route should not foreclose recovery by way of contribution, so long as the requirements of section 113(f) are satisfied.

Akzo Coatings, Inc. v. Aigner Corp.

EASTERBROOK, Circuit Judge, concurring in part and dissenting in part. The district judge who approved the consent decree concluded that this settlement resolved Aigner’s liability for the entire Fisher-Calo site, activating the rule in § 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2), protecting settling parties from claims for contribution. I do not believe that the judge misunderstood his own decree and therefore would affirm across the board. Section 113(f)(2) provides: A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the settlement. If the subjects for which Akzo claims contribution are among the “matters addressed in the settlement,” then § 113(f)(2) bars the demand. Akzo performed its work on a portion of the Fisher-Calo facility known as Two-Line Road. My colleagues concede that the consent decree covers the whole site, including Two-Line Road. The covenant not to sue contained in the decree makes this doubly clear. The United States and Indiana pledge not to sue the settling defendants for “covered matters,” which include “any and all claims available to the United States under Sections 106 and 107 of CERCLA ... relating to the [Fisher-Calo] Facility, and any and all claims relating to the Facility available to the State under Indiana Code 13-7-8.7 and common law nuisance.” How then can it be that Akzo’s claims are not “matters addressed in the settlement”? The majority answers: everything is subject to “equitable” adjustments. It plucks some language from § 113(f)(1) and uses this language as a warrant to disregard the scope of the settlement. Section 113(f)(1) gives a court leeway in fixing the amount of contribution; this task is unrelated to the scope of protection offered by the next subsection. Section 113(f)(2) serves a valuable purpose in promoting settlements. Risk that in the name of “equity” a court will disregard the actual language of the parties’ bargain (on which see opinion at 766 n. 8) will lead potentially responsible parties to fight harder to avoid liability (and to pay less in settlements, reserving the residue to meet contribution claims), undermining the function of § 113(f)(2). There is a second element to the majority’s argument. The consent decree and the covenant not to sue regulate only the settling parties’ liability to the United States and to Indiana. How, my colleagues ask, can language so limited extinguish claims by strangers? The answer is: Because § 113(f)(2) says so. “A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” Nothing here about resolving liability to private parties; nothing here implying that the consent decree must contain a separate provision blotting out claims by private actors. Aigner fully resolved its liability to the United States. By “resolv[ing] its liability to the United States” Aigner thereby obtained protection from private parties’ claims for contribution. Dravo Corp. v. Zuber, 13 F.3d 1222 (8th Cir.1994). Finally, the majority observes that “Akzo’s work stands apart in kind, context, and time from the work envisioned by the consent decree”. Opinion at 767. True enough as a factual matter; the decree does not require duplicative work. Akzo performed some tasks; Aigner agreed to perform additional tasks. But why should this matter? Unless the first attempt at a cure failed, the settlement always will require work distinct from what has gone before. A project-by-project approach drains most meaning from § 113(f)(2). An agreement to carry out a discrete project typically comes with its own provisions for contribution and indemnity. For example, the 20 firms (including Akzo) that agreed to complete the work specified by the 1988 order also agreed to forego any contribution among themselves. The firms that signed the consent decree of 1992 similarly abandoned claims among themselves, while preserving claims against any other firms that had not promised to pitch in. The statutory provision, then, must be designed to address contribution for projects outside the scope of the settlement — to block claims by non-parties that, as here, took part in a different project at the same site but reached a settlement covering the whole site. Section 113(f)(2) permits the EPA to negotiate global settlements — to promise that if certain firms perform projects A and B, they will not be hable for the costs of projects C and D, which other persons have undertaken. The EPA’s ability to make such promises gives it a valuable bargaining chip. The agency may demand that polluters do more as a condition of discharging their full responsibility. Freedom from contribution may be the key to a settlement. Consider a simple illustration. Recycling Industries has two plants, East and West. Toxic substances seep from both plants. The EPA identifies two firms that sent toxic substances to Recycling Industries. PRP # 1 spends $10 million to clean up the East plant. The EPA approaches PRP # 2 with a proposal that it spend $10 million to clean up the West plant. If the “matters addressed” under § 113(f)(2) are project-specific, PRP # 2 would be a fool to agree. For it would spend $10 million to clean up the West plant and then be directed to pay $5 million in contribution to PRP # 1 for cleaning up the East plant. Final position: PRP # 1 pays $5 million, PRP # 2 pays $15 million. (One cannot reply that the $5/ $15 million division in this hypothetical is not “equitable” under § 113(f)(1) without abandoning the project-specific approach that the majority embraces.) To avoid this, PRP # 2 will litigate to the gills and sue PRP # 1 for contribution as well. Each PRP, however, will be willing to do its share, and with less litigation, if the EPA can divide the tasks, assigning one plant to each firm and using § 113(f)(2) to preclude contribution. The majority replies that its interpretation permits this happy outcome; all the parties have to do is “negotiate a global settlement encompassing both East and West plants.” Opinion at 768 n. 14. But that is exactly what these parties did! Aigner and the EPA negotiated a “global settlement” covering the entire Fisher-Calo facility, and the majority says this is not enough. To drive the point home, my colleagues add that even the most explicit language is just a “factor” that does “not foreclose the fact-specific evaluation” it prefers. Opinion at 766 n. 8. Woe unto the drafters, who think their agreement counts. In Key Tronic Corp. v. United States, — U.S. -, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994), a PRP deemed language equivalent to the release here, see id. at- n. 1, 114 S.Ct. at 1963 n. 1, so clear that it threw in the towel, withdrawing its claim for contribution. By the majority’s lights, it made a big mistake. Consider, too, the second sentence of § 113(f)(2): “Such settlement does not discharge any other potentially liable persons unless its terms so provide”. This sentence must mean that a settlement may extinguish the liability for contribution even of non-parties, firms that did not agree to do anything. Measuring the scope of immunity by the precise project undertaken does not look at all attractive once we recognize that Congress permitted a settlement to block contribution rights against non-parties that did not take part in any project. The “de minimis defendants” identified in the 1992 consent decree obtained exactly this protection: they chipped in a total of $11 million in exchange for protection against further claims. None of the de minimis defendants performed any work under the 1988 order. I take it as given that Akzo may not pursue them for contribution. Dravo, 13 F.3d at 1225-26. Yet by the majority’s rationale even the de minimis defendants may be liable to Akzo. Their bargain with the EPA has been rendered illusory. If § 113(f)(2) were nothing but a sop to a powerful interest group, then it might make sense to give it a narrow reading. The majority treats the prospect of disproportionate liability as proof that § 113(f)(2) is undesirable. When contribution is unavailable, some firms’ final accounts may be disproportionate to the wrong. Yet this hardly shows a problem in the statute. The norm in federal litigation is no contribution at all. The common law rule of joint and several liability permits victims to collect their whole loss from the wrongdoer of their choice, or in such proportions as they please from multiple offenders. The Supreme Court has been reluctant to create rights of contribution that permit these wrongdoers to collect, in turn, from other persons. See Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). Firms that have incurred legal liability thus have no general right to a fair distribution of expenses. Akzo thinks that it has paid more than its share; for all we can tell, the Aigner parties have paid too much and Akzo too little. Finding out who is “really” responsible for how much of the pollution, in order to know who should pay what to whom, could require exhaustive litigation. Section 113(f)(2) enables everyone to avoid such questions. Indeed, the main function of § 113(f)(2) is precisely that private parties’ desire to avoid disproportionately large liability will lead them to settle more quickly and for larger sums. “Congress explicitly created a statutory framework that left nonsettlors at risk of bearing a disproportionate amount of lia-bility_ Disproportionate liability, a technique which promotes early settlements and deters litigation for litigation’s sake, is an integral part of the statutory plan.” United States v. Cannons Engineering Corp., 899 F.2d 79, 91-92 (1st Cir.1990). A general rule of no contribution increases the sums wrongdoers (and potential wrongdoers) will pay to resolve their liability, because a settlement buys peace. When contribution is available, in contrast, settlement is harder to achieve (and the settling parties pay less) because the resolution leaves the party exposed to further liability. See William M. Landes & Richard A. Posner, The Economic Structure of Tort Law 201-15 (1987); Steven Shavell, Economic Analysis of Accident Law 164-67 (1987); Lewis A. Kornhauser & Richard L. Revesz, Sharing Damages Among Multiple Tortfeasors, 98 Yale L.J. 831 (1989). See also In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1314-18 (7th Cir.1992). Statutes that create rights of contribution generally come with limitations, of which § 113(f)(2) is a good example. Section 113(f)(2) is a variant of the settlement-bar rule that many states have adopted by statute because of its potential to promote peaceful resolution of disputes. Uniform Contribution Among Tortfeasors Act § 4(b) (1955 rev.). Admiralty law permits contribution— but not from defendants that have settled. [A] right of contribution against the settling defendant is clearly inferior to [other options], because it discourages settlement and leads to unnecessary ancillary litigation. It discourages settlement, because settlement can only disadvantage the settling defendant. If a defendant makes a favorable settlement, in which it pays less than the amount a court later determines is its share of liability, the other defendant (or defendants) can sue the settling defendant for contribution. The settling defendant thereby loses the benefit of its favorable settlement. In addition, the claim for contribution burdens the courts with additional litigation. The plaintiff can mitigate the adverse effect on settlement by promising to indemnify the settling defendant against contribution,.... This indemnity, while removing the disincentive to settlement, adds yet another potential burden on the courts, an indemnity action between the settling defendant and plaintiff. McDermott, Inc. v. AmClyde, — U.S. -, -, 114 S.Ct. 1461, 1467, 128 L.Ed.2d 148 (1994) (footnote omitted). Notwithstanding the Supreme Court’s conclusion that contribution actions against parties that have settled are undesirable, the majority today goes out of its way to authorize this device. It evidently disagrees with McDermott’s view of the effect of requiring settling parties to pay more money in contribution — a position evident not only from the use of the “equity” language in § 113(f)(1) to modify § 113(f)(2), which lacks such language, but also from the conclusion that cutting off rights of contribution is just plain bad policy. The majority believes that enforcing the statute as written “would leave firms like Akzo in an untenable position.” Opinion at 768-69. This is not a good reason to bend the language of a law; it also happens to be wrong. The statute putting Akzo under pressure is not § 113(f)(2) but § 106(b)(2), which postpones judicial review until after completion of the work the EPA has directed the party to undertake. If the EPA has made a mistake, the affected firm may recover from the United States, 42 U.S.C. § 9613(j)(3); it does not need a right of contribution. Indeed, if the order is mistaken, a right of contribution would do it no good. The EPA’s improper order that Firm A undertake some project offers no warrant for shifting the costs to Firm B, which is equally innocent. Improper or excessively costly orders under § 106 therefore do not give rise to claims for contribution and are unaffected by § 113(f)(2). If the EPA shares the majority’s disdain for § 113(f)(2) — if like my colleagues it fears that permitting settling parties to cap their liability at the amounts they agree to pay will lead to more litigation by the first party the Agency pursues — it may adopt a policy of defining “matters addressed in the settlement” narrowly. Each settlement specifies the “matters addressed.” It would have been simple to say in this settlement, for example, that work done at Two-Line Road under the 1988 order is not “addressed” by the 1992 settlement. But had the EPA demanded such a limitation, Aigner might have put up more defense or reduced the amount it was willing to pay. Perhaps the EPA wants an option to adopt a Janus-faced position, conveying to PRPs the impression that the settlement is comprehensive and then telling the court something different. Such a trick works only once. Having persuaded us to depart from the language of its settlement with Aigner, because formal agreements are just “circumstances” to be weighed on some conceptual scale (opinion at 766 n. 8), the EPA will have a hard time persuading other PRPs that its promises are credible — and a correspondingly hard time obtaining the maximum value in settlement. McDermott shows that if Congress had not enacted § 113(f)(2), Aigner would not be liable to Akzo — for federal common law does not permit one joint tortfeasor to obtain contribution from another that has settled. I do not see how the existence of § 113(f)(2), which is designed to protect settling parties’ interest in peace, can make them worse off. Yet this is what the majority concludes. Firms such as Akzo may find their solace in the last part of § 113(f)(2): a settlement that extinguishes rights of contribution “reduces the potential liability of the others by the amount of the settlement.” They may pursue, as well, other PRPs that have not signed a settlement addressing the entire site. Whát Akzo may not do is wring more money from firms that have definitively settled their liability.

United States v. Alcan Aluminum, Inc.

OPINION OF THE COURT SCIRICA, Circuit Judge. In this appeal we must decide whether a party who has entered into a consent decree with the Environmental Protection Agency for the cleanup of a superfund site may intervene in subsequent litigation over the same site. We believe that, provided it can demonstrate it has a protectable interest, an early settlor may intervene in the later litigation as of right. On these facts, however, the right to 'intervene hinges on whether the applicant had a protectable interest at risk. Because it is unclear from the record whether the intervenor’s interest was affected by the subsequent consent decree, we will vacate the district court’s orders denying the motion to intervene and approving the subsequent consent decree, and remand for a determination of whether the second consent decree affected the intervenor’s rights under the first decree. I. FACTS & PROCEDURE This appeal arises out of the cleanup of the McAdoo site, a parcel of land in Schuylkill County, Pennsylvania. Once used for strip mining, the McAdoo site was used for waste incineration and recycling from 1975 until it closed in 1979. At that time there were approximately 6,800 storage drums and several 10,000 and 15,000 gallon storage tanks of hazardous waste at the site. The Air Products Litigation In 1987 the United States began proceedings over the release and threatened release of hazardous material at the McAdoo site. On June 3, 1988, the government entered into a consent decree with 65 Potentially Responsible Parties (PRPs), the “Air Products defendants,” who agreed to reimburse the government for approximately $790,000 of past costs and to undertake a remedial program to prevent any future release of hazardous substances. They also agreed to pay all of the long-term operations and maintenance costs. In exchange, the government agreed not to seek reimbursement for any of its past remedial costs and to allow the Air Products defendants to seek reimbursement for as much as 25% of their cleanup costs, provided the government could successfully recover those costs from other non-settling PRPs. The agreement contained two other notable provisions. First, it contained a provision reserving the Air Products defendants’ right to sue all non-settling parties for contribution. Second, it contained a provision stating the government’s “present intent” not to in-elude in any future settlement over the McA-doo site a covenant not to sue that was broader than the one contained in the Air Products consent decree. The Alcan Litigation On June 23, 1988 the government began proceedings against another group of PRPs, the “Alcan defendants.” In this action, the government sought reimbursement for costs it had previously incurred and a declaration that the Alcan defendants were liable for future response costs. The Alcan defendants and the government reached an agreement in January, 1992. The resultant consent decree was filed in the district court on August 10, 1992, and notice was published in the Federal Register on August 19, 1992. 57 Fed.Reg. 37,556 (1992). Under the terms of the consent decree the Alcan defendants agreed to reimburse approximately $2 million of the government’s response costs. In exchange, the government agreed not to sue the Alcan defendants for: (1) any work covered in the Air Products consent decree, (2) any of the government’s oversight costs, (3) response costs incurred before June, 1990, and (4) the government’s enforcement costs. As required by CERCLA, the district court reserved approval of the consent decree to allow for public comment. 42 U.S.C. § 9622(d)(2) (1988). On September 16, 1992, the Trustees of the McAdoo site, on behalf of the Air Products defendants, objected to the consent decree on the grounds that it would extinguish their right to sue the Alcan defendants for contribution. They also argued the covenant not to sue First Valley Bank over surface or ground water contamination violated a provision in the Air Products consent decree where the government stated its intention not to give any other PRP a covenant not to sue broader than the one contained in the Air Products consent decree. The Trustees also moved to intervene in the government’s suit against the Alcan defendants under CERCLA § 113(i), 42 U.S.C. § 9613® (1988), and Federal Rule of CM Procedure 24(a). On November 24, 1992, the district court denied the Trustees’ motion, holding that § 113® was inapplicable, and that the Rule 24 application was untimely and did not reflect “a substantial and direct protectable interest in the litigation.” This timely appeal followed. The district court had jurisdiction under 42 U.S.C. §§ 9607 and 9613(b). We have jurisdiction under 28 U.S.C. § 1291 (1988) because the denial of a motion to intervene is a final, appealable order. See McKay v. Heyison, 614 F.2d 899, 903 (3d Cir.1980); Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied, sub nom. Fire Officers Union v. Pennsylvania, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976). We review the denial of a motion to intervene as of right for abuse of discretion. However, our review “is ‘more stringent’ than the abuse of discretion review we apply to a denial of a motion for permissive intervention.” Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir.1992) (quoting Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir.) (internal citation and quotation omitted), cert. denied, sub nom. Castille v. Harris, 484 U.S. 947, 108 S.Ct. 336, 98 L.Ed.2d 363 (1987)). We will reverse only if we find the district court “has applied an improper legal standard or reached a decision we are confident is incorrect.” Id. (quoting Harris, 820 F.2d at 597). .11. DISCUSSION In 1986 Congress passed the Superfund Amendment and Reauthorization Act (“SARA”), Pub.L. 99-499; 100 Stat. 1613 (codified in scattered sections of 42 U.S.C.), which amended CERCLA, 42 U.S.C. §§ 6911, 6911a, 9601-75. Congress’ intent in passing SARA was to ensure rapid and thorough cleanup of toxic waste sites. See H.R.Rep. No. 253, 99th Cong., 2d Sess. 55 reprinted in 1986 U.S.C.C.A.N. 2835, 2837. Because Congress believed it could never provide EPA with adequate money or manpower, the new law triéd to maximize the participation of responsible parties in the cleanup. Id. A. Claims under § 113(i). Among the sections added to CERCLA in 1986 was § 113(i), which permits interested parties to intervene as of right in actions under CERCLA or the Solid Waste Disposal Act. 42 U.S.C. § 9613(i). The government challenges the Trustees’ ability to intervene in its suit against the Alcan defendants arguing that, under § 113(i), intervention is restricted to persons who wish to raise health or environmental concerns. Agreeing with the government, the district court held the Trustees could only challenge the consent decree through CERCLA’s public comment provision, § 122(d)(2). See United States v. Alcan Aluminum, Inc., No. 88-4970, at 2 n. 1 (E.D.Pa. Dec. 1, 1992) (order denying motion to intervene). When interpreting a statute we look first to the language itself. See Reves v. Ernst & Young, - U.S. -, -, 113 5.Ct. 1163, 1169, 122 L.Ed.2d 525 (1993). Section 113(i) states, without qualification, that “any person” who meets § 113(i)’s four requirements can intervene as of right in “any action” commenced under CERCLA. We do not believe Congress would have used the phrase “any person may intervene” or “any action under this chapter” if it had intended to restrict intervention to only those persons raising a particular, but unidentified, claim. Moreover, § 113’s language mirrors the language in Federal Rule of Civil Procedure 24(a). That language was added to the rule in 1966 to relax the interest requirement and “to foster more flexible, pragmatic judicial treatment of intervention as of right.” Carl Tobias, Standing to Intervene, 1991 Wis. L.Rev. 415, 430 (1991); see James W. Moore, 3B Moore’s Federal Practice, ¶ 24.09-l[2], at 24-301 (“The liberalization of Rule 24(a) was not aimed at revising the nature of the applicant’s interest, but was focused mainly on relaxing the requirement that the applicant would be bound ...). Thus, the same language the government here claims restricts intervention was added to Rule 24 to facilitate intervention. See Fed.R.Civ.P. 24, Notes of Advisory Committee on Rules 1966 Amendment at 100-01 (West 1993); New Orleans Public Serv. Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.) (en banc), cert. denied, sub nom. Mortal v. United Gas Pipe Line Co., 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984). We do not believe Congress would have used the same language in § 113(i) as was used in Rule 24(a) if it had intended to reach such a different result. Pointing to the legislative history, the government asks us to find a more limited meaning behind the statute’s broad language. “But we do not resort to legislative history to cloud a statutory text that is clear.” Ratzlaf v. United States, - U.S. -, -, 114 S.Ct. 655, 662, 126 L.Ed.2d 615 (1994); see also Negonsott v. Samuels, - U.S. -, - - -, 113 S.Ct. 1119, 1122-23, 122 L.Ed.2d 457 (1993) (“[W]here [Congress’s] will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive.”) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). Thus, although we recognize a House report suggests a more limited construction, we cannot ignore the clarity of § 113’s language. Consequently, we believe that any interested party can intervene under § 113(i). B. Intervention under Rule 21(a) and § llS(i). Because of their similarity, courts apply essentially the same test when determining whether to grant an application for intervention under both Rule 24(a) and § 113(i). See, e.g., Utah v. Kennecott Corp., 801 F.Supp. 553, 571-72 (D.Utah 1992); Arizona v. Motorola, Inc., 139 F.R.D. 141, 144 (D.Ariz.1991); United States v. Acton Corp., 131 F.R.D. 431, 433 (D.N.J.1990). As we explained in Brody and Harris, cases under Rule 24(a), an applicant can intervene as of right where: (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation. Brody, 957 F.2d at 1115; Harris, 820 F.2d at 596. The district court denied the Trustees’ motion to intervene because it found their motion was untimely, and it believed the Trustees did not have a protected interest at stake in the litigation. The Trustees claim their application was timely because it was filed less than two months after they learned the consent decree might jeopardize their right to sue for contribution, and because the government persuaded them to refrain from intervening earlier by giving them false assurances that the Alcan consent decree would not compromise their rights. They also claim their right to seek contribution is a legally protectable interest which the consent decree, if approved, would extinguish. 1. Timeliness The Alcan litigation began on June 23, 1988. The consent decree was filed on August 9, 1992 and the Trustees moved to intervene on September 22, 1992. Arguing the Trustees waited more than four years before moving to intervene, the government claimed the Trustees’ motion was untimely. The district court also believed the Trustees’ motion was untimely, stating, “upon consideration of the current status of the litigation and the knowledge of the Trustees regarding the discussions leading up to the current consent decree, the motion is untimely.” We disagree. The government misconstrues the timeliness requirement. As used here, timeliness is not just a function of counting days; it is determined by the totality of the circumstances. See NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). See generally, James W. Moore, 3B Moore’s Federal Practice § 24.13 (timeliness is not merely a function of when the motion was filed relative to the filing of the action). Although the point to which the litigation has progressed is one factor to consider, it is not dispositive. NAACP, 413 U.S. at 366, 93 S.Ct. at 2603; National Wildlife Fed’n v. Burford, 878 F.2d 422, 433 (D.C.Cir.1989), rev’d. on other grounds, sub nom. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Moreover, the timeliness requirement is “ ‘an elemental form of latches or estoppel.’ ” Stallworth v. Monsanto, 558 F.2d 257, 266 (5th Cir.1977) (citation omitted). As such, timeliness should not prevent intervention where an existing party induces the applicant to refrain from intervening. Cf. id. at 267 (“Since the plaintiffs urged the district court to make it more difficult for the appellants to acquire information about the suit early on, we do not think they should now be heard to complain that the appellants should have ... appreciated its significance sooner.”). Consequently, where a party takes reasonable steps to protect its interest, its application should not fail on timeliness grounds. Cf. NAACP, 413 U.S. at 367, 93 S.Ct. at 2603. This occurred here. The record demonstrates that the Trustees were aware of the Alcan litigation, and kept in touch with the government’s counsel in order to protect their rights. On November 18, 1991, the Trustees’ counsel wrote a letter to the government attorney handling the ease, confirming the content of their November 1, 1991 telephone conversation. That letter indicates that when, during the course of their conversation, the Trustees’ counsel voiced concerns about the possibility of the Alcan consent decree destroying the Trustees’ contribution right, the government’s attorney assured him that the consent decree would not compromise the Trustees’ claim. That letter, which the government does not challenge, demonstrates the Trustees’ intent to contest any consent decree that compromised their right to contribution and that the Trustees refrained from taking earlier action, in part, because of assurances given by the government. Under these circumstances, the Trustees had no reason to believe they should try to intervene because the government led them to believe their interests were not at stake in the litigation. Since the government induced the Trustees to refrain from intervening earlier, and the Trustees reasonably relied on that representation, the government cannot credibly complain the motion was untimely. Stallworth, 558 F.2d at 267. We also believe that, to the extent there is a temporal component to the timeliness inquiry, it should be measured from the point which an applicant knows, or should know, its rights are directly affected by the litigation, not, as the government contends, from the time the applicant learns of the litigation. In so holding, we are breaking no new ground. The Court of Appeals for the District of Columbia Circuit came to the same conclusion in National Wildlife Federation v. Burford, 878 F.2d 422 (D.C.Cir.1989), rev’d. on other grounds, sub nom. Lujan v. National Wildlife Fed’n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). There, ASARCO, a company that had staked mining claims on lands affected by a Bureau of Land Management policy, sought to intervene in litigation challenging the implementation of that policy. ASARCO’s motion was filed 3 years after the litigation began, but, due to a change in the way the agency construed its policy, only 73 days after ASARCO learned its interests were directly affected. Id. at 433-34. After the district court denied AS-ARCO’s motion to intervene on timeliness grounds, the District of Columbia Circuit reversed stating: the salient factor is not when ASARCO’s motion to intervene was filed with respect to the filing of NWF’s original suit.... Rather, the relevant time from which to assess ASARCO’s right of intervention is when ASARCO knew or should have known that any of its rights would be directly affected by this litigation. Id. at 433-34. The Court of Appeals for the Fifth Circuit came to the same conclusion in Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977). There, a group of black employees sued Monsanto over civil rights violations resulting from Monsanto’s seniority system. When the two sides began settlement negotiations Monsanto sought court approval to alert its white employees to the possible impact the proposed settlement would have on them. The plaintiffs opposed Monsanto’s motion and the court agreed. Id. at 260-61. When a group of white employees eventually sought to intervene under Rule 24(a) the plaintiffs opposed arguing the motion was untimely. Id. at 262, 267. When the district court denied the motion to intervene, the Fifth Circuit reversed. Holding that timeliness should be measured from the point an applicant knows, or should know, of the risk to its rights, the court explained: [A] rule making knowledge of the pen-dency of the litigation the critical event would be unsound because it would induce both too much and too little intervention. It would encourage individuals to seek intervention at a time when they ordinarily can possess only a small amount of information concerning the character and potential ramifications of the lawsuit, and when the probability that they will misjudge the need for intervention is correspondingly high. Often the protective step of seeking intervention will later prove to have been unnecessary, and the result will be needless prejudice to the existing parties and the would-be intervenor if his motion is granted, and purposeless appeals if his motion is denied. In either event, scarce judicial resources would be squandered, and the litigation costs of the parties would be increased. 558 F.2d at 264-65. We agree. To the extent the length of time an applicant waits before applying for intervention is a factor in determining timeliness, it should be measured from the point at which the applicant knew, or should have known, of the risk to its rights. The point at which the applicant should have known its rights were at risk is usually a factual determination. Nonetheless, where a party induces an applicant to refrain from intervening and there is reasonable reliance, the applicant’s motion should not fail on timeliness grounds. Here, the Trustees moved to intervene 43 days after notice of the lodging of the consent decree, the point at which they became aware of the potential risk to their contribution claim. On these facts we believe their application was timely. 2. Air Products Defendants’ Interest in the Litigation. We next address whether the Air Products defendants had a sufficient interest in the litigation, the second prong of the intervention test. The district court held “[the Trustees] do not have a substantial and direct protectable interest in this litigation since the Trustees’ claim to contribution is not involved.” The Trustees contend they have a statutory right to sue for contribution which approval of the consent decree would extinguish. The government claims the district court was correct because the right to contribution is not a substantive legal right, but instead is merely a contingency. a. Sufficient legal interest. Section 113(f)(1) gives early settling parties a right to sue other PRPs for contribution. The Trustees contend their contribution right is sufficient to support a motion to intervene. In response, the government points to several cases in which courts have found the right to sue for contribution to be merely a contingency rather than a substantive legal right. See, e.g., Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 638-41 (1st Cir.1989); Arizona v. Motorola, Inc., 139 F.R.D. 141; United States v. Vasi, 22 Chem. Waste Litig.Rep. 218, 1991 WL 557609 (N.D.Ohio 1991); United States v. Browning-Ferris Industries, 19 Chem. Waste Litig.Rep. 436 (M.D.La.1989); United States v. Wheeling Disposal Serv., Inc., No. 92-0132-CV-W-1, slip. op. (W.D.Mo. Oct. 1, 1992). But see United States v. Acton Corp., 131 F.R.D. 431, 433-34 (D.N.J.1990) (“[T]he ... defendants are not asserting only an economic interest; they seek to protect a statutory right that later may be extinguished.”). With the exception of United States v. Browning-Ferris Industries, 19 Chem. Waste Litig.Rep. 436 (discussed infra at note 14), however, none of the cases cited by the government is analogous because they involve either non-settling parties attempting to intervene in the consent decree of parties who are settling, see Acton, 131 F.R.D. at 432-33; Vasi, 22 Chem. Waste Litig.Rep. at 219; Wheeling Disposal, No. 92-0132-CV-W-1, Slip Op. at 1-3, or non-interested inter-venors asserting the rights of third parties, see New Orleans Public Service Inc. v. United Gas Pipe Line Co. (“NOPSI”), 732 F.2d 452, 466 (5th Cir.) (en banc) (city asserting the rights of its power supplier), cert. denied, sub nom. Morial v. United Gas Pipe Line Co., 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984); Dingwell, 884 F.2d at 638-41 (insurer asserting the rights of its insured). Where the proposed intervenor has not yet settled with the government, it is unclear what, if any, liability it will have. Thus, any contribution right it might have depends on the outcome of some future dispute in which the applicant may, or may not, be assigned a portion of liability. In that situation, courts have properly found the interest of non-set-tlor applicants to be merely contingent. Here, the applicants have already settled with the government. When a PRP settles with the government it accepts a specific liability. Unlike the interest of an applicant who has not yet settled, which is contingent in the sense that it may never ripen, the interest of an applicant who has already settled is contingent only in the sense that it cannot be valued. However, the fact that the interest cannot be valued does not mean it does not exist. The act of settling transforms a PRP’s contribution right from a contingency to a mature, legally protectable interest. Our conclusion is in line with the policies behind the SARA amendments. Congress amended CERCLA because it wanted to encourage early settlement. See United States v. Cannons Engineering Corp., 720 F.Supp. 1027, 1048 (D.Mass.1989), aff'd, 899 F.2d 79 (1st Cir.1990); Motorola, 139 F.R.D. at 148 (“Congress created CERC-LA to encourage settlement, thereby reducing ‘the time and expense of enforcement litigation that necessarily diverts time and money from cleanup and restoration.’ ”) (citation omitted). SARA, therefore, gives preference to early settlors by exposing a non-settling PRP to liability for the rest of the cleanup cost even if that exposure exceeds the amount the non-settlor’s actions added to the overall cost of the cleanup. Cannons Engineering, 720 F.Supp. at 1040 (the statutory scheme is designed to discourage ‘free riders’ by imposing a greater share of cleanup costs on those who delay agreeing to contribute to remedial action.); see also, Daniel R. Avery, Enforcing Environmental Indemnification Against A Settling Party Under CERCLA, 23 Seton Hall L.Rev. 872, 886 (1993) (“The shifting of responsibility for settlement shortfall to not-settling PRPs therefore provides a real and meaningful incentive for PRPs to settle, and creates ‘a corresponding detriment to their more recalcitrant counterparts.’ ”). Permitting intervention should encourage settlements. A PRP, when deciding whether or not to settle, knows the settlement will cap its liability. See 42 U.S.C. § 9613(f)(2); Motorola, 139 F.R.D. at 145. It also knows it may be able to reduce its liability by suing a non-settling PRP for contribution. See 42 U.S.C. § 9613(f)(1). Given Congress’ intent in amending CERCLA, and the development of the interest requirement under Rule 24(a), we believe early settlors have a sufficiently protectable interest in the litigation to permit their intervention. The government also contends the Trustees’ interest is merely economic and is insufficient to support a motion to intervene. Some courts have stated a purely economic interest is insufficient to support a motion to intervene. See NOPSI, 732 F.2d at 464 (“It is plain that something more than an economic interest is necessary”); Motorola, 139 F.R.D. at 146 (remote economic interest is not enough to support intervention). But the Air Products defendants have more than just an economic interest. For example, in NOPSI the Court of Appeals for the Fifth Circuit rejected the City of New Orleans’ application to intervene in a settlement between its power supplier, NOPSI, and one of NOPSI’s suppliers, United Gas Pipe Line Co. Id. at 455. The Fifth Circuit found the city’s interest in the litigation was only economic because the City’s only concern in the litigation was to ensure its power costs would not be increased by an adverse decision against NOPSI. Id. at 464-66. By way of explanation, the court described the type of interest that would support a motion to intervene, stating: What is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant. This is reflected by the requirement that the claim the applicant seeks intervention in order to assert be a claim as to which the applicant is the real party in interest. The real party in interest requirement ... ‘applies to intervenors as well as plaintiffs’ as does also the rule that ‘a party has no standing to assert a right if it is not his own.’ Id. at 464 (quoting United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir.1969)). The same is true' of Arizona v. Motorola, Inc., 139 F.R.D. 141. There, the U.S. District Court for the District of Arizona denied the application of Motorola, a defendant in a suit brought by the State of Arizona and the City of Phoenix, when it moved to intervene in a second lawsuit brought by the State of Arizona against the City of Phoenix. Citing the Fifth Circuit’s analysis in NOPSI, the court held Motorola’s interest was only contingent because Motorola was not the real party in interest. Id. at 144-46. The rule that emerges from these eases is that a party has more than an economic interest where it is the real party in interest and where the applicant would have standing to raise the claim. NOPSI, 732 F.2d at 464. This rationale favors intervention here because the Trustees are the true party in interest with respect to the right to sue non-settlors for contribution.. Because we believe the right to seek contribution under § 113(f)(3)(B) is a legally cognizable interest we must next determine whether that interest is involved in this litigation. b. Interest in this litigation. Under CERCLA, one of the benefits of settling with the government is that a party becomes immune from contribution claims “regarding matters addressed in the settlement.” 42 U.S.C. § 9613(f)(2) (1988). It appears the statute allows the government to immunize a late settlor from an early settlor’s contribution suit by settling with the government. Id. It would appear that if the Alcan consent decree covered the operations and maintenance which the Air Products defendants agreed to pay, the Air Products defendants could not sue for contribution. See supra note 15. Thus, whether the Air Products defendants have an interest at stake in this litigation depends on whether the Alcan consent decree addresses operations'and maintenance. The district court did not expressly determine whether operations and maintenance was addressed in the Alcan consent decree. Instead, it stated, “the Trustees may not intervene as of right under [Rule] 24(a) since they do not have a substantial and direct protectable interest in this litigation since the Trustees’ claim to contribution is not involved.” Order at 2 n. 1. The district court’s statement could be interpreted as an implicit declaration that operations and maintenance is not covered by the Alcan consent decree, ie., the Trustees’ contribution claim is not involved in the Alcan litigation because operations and maintenance is not a part of the consent decree. We are hesitant to impose this interpretation, however, because neither party who negotiated the Alcan consent decree supports it. The Alcan defendants vigorously challenge this interpretation. They claim operations and maintenance is a matter addressed in the consent decree, and approval of the decree will immunize them from any future contribution claim regarding operations and maintenance. Under their reading of the district court’s order, the Air Products defendants have an interest in the litigation, it is simply not a legally protectable interest. The government, both in its brief and at oral argument, was unwilling to give an opinion on the issue. On these facts, the right to intervene hinges on whether operations and maintenance is addressed in the Alcan consent decree. But on the record before us we are unable to make this determination. Moreover, we are uncertain whether the district court’s decision to deny intervention was based on a belief that the Trustees’ interest was not at stake or that the Trustees’ interest, while at stake, was not sufficiently protectable to warrant intervention. Therefore, we will remand the case to the district court for the purpose of determining whether operations and maintenance is an issue addressed in the Alcan consent decree. If on remand the district court determines operations and maintenance is covered in the Alcan consent decree, we believe the Air Products defendants have a sufficient interest in the Alcan litigation to warrant intervention. On the other hand, if the district court finds operations and maintenance is not covered in the Alcan consent decree we do not believe the Air Products defendants would have the right to intervene since their interest would not be at issue in the Alcan litigation. We express no opinion on their right to seek contribution in a later action. III. Conclusion For the foregoing reasons, we will vacate the district court orders denying intervention and approving the Alcan consent decree. We will also remand the case for the district court to determine whether operations and maintenance, as covered in the Air Products consent decree, is addressed by the Alcan consent decree. . Pennsylvania’s Department of Environmental Resources later intervened as a plaintiff. . The Air Products defendants’ consent decree did not address surface or ground water contamination at the McAdoo Site. EPA has notified the parties that future litigation may be necessary to address this problem. .The Air Products defendants agreed not to seek reimbursement from the government for any part of the costs of operations and maintenance. . In addition, the government agreed not to sue First Valley Bank in connection with either surface or ground water contamination because it believed First Valley's only ownership interest in the site was as a secured creditor and secured creditors are exempt from liability. See 42 U.S.C. § 9607(a)(1) (1988) (imposing liability on a facility's owners), and 42 U.S.C. § 9601(20)(A) (1988) (exempting secured creditors from the definition of owner). . The Trustees also sought permissive intervention trader Federal Rule of Civil Procedure 24(b). Because we are unable to determine whether the Trustees’ interest is at stake in the Alcan litigation we do not reach this issue. . Section 113(i) provides: In any action commenced under this chapter or under the Solid Waste Disposal Act in a court of the United States, any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition of the action may, as a practical matter, impair or impede the person’s ability to protect that interest, unless the President or the State shows that the person’s interest is adequately represented by existing parties. 42 U.S.C. § 9613(i) (1988). . Federal Rule of Civil Procedure 24(a) provides in part: Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Fed.R.Civ.P. 24(a) (West 1993). .The House Judiciary Committee report, states: Finally, the Committee amendment adds a new subsection 113[i] to CERCLA to provide that any person may intervene as a matter of right when that person claims a direct public health or environmental interest in the subject of a judicial action allowed under this section, and when the disposition of the action may impair or impede the person's ability to protect that interest. H.R.Rep. No. 253, 99th Cong., 1st Sess., pt. 3, at 24 (1985) reprinted in 1986 U.S.C.C.A.N. at 2835, 3047. . Although inapplicable in this case, there is one difference between the two tests. Under Rule 24 the burden of proving all four parts of the test falls on the applicant. Under § 113(i) the existing parties must show the applicant's interest is being adequately represented in order to prevent intervention. United States v. Pitney Bowes, Inc., 25 F.3d 66, 69 (2d Cir.1994); Motorola, 139 F.R.D. at 144. . The letter states in part: In addition, as we have discussed, the settlement of the Non-Settlors' Litigation which the United State[s] currently contemplates will not protect any of the Non-Settlors from claims for contribution for costs related to the Operation and Maintenance ("0 & M") of the Site remedy. In short, 0 & M will not be a covered matter in any such settlement.... If the United States should change its position with respect to any Non-Settlor and that Non-Settler’s liability for O & M, please let me know promptly. In the meantime, I look forward to hearing from you once any Consent Decree between the Non-Settlors and the United States is ready to be executed by the parties to it. Letter from Robert Frank to Arnold Rosenthal (Nov. 18, 1991). . Because the Trustees demonstrated their intent to challenge the consent decree if the decree jeopardized their contribution right and the government does not dispute that the letter accurately reflects the assurances it gave to the Trustees, this case is distinguishable from NAACP, 413 U.S. at 367-68, 93 S.Ct. at 2603-04, where the Court held it was not an abuse of discretion to deny a motion to intervene where the applicant had failed to take steps to protect its interest after it became aware of the litigation. Id. . 42 U.S.C. § 9613(f)(1) provides in part: Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any action under section 9606 of this title or under section 9607(a) of this title.... . For its part, an applicant who raises the rights of a third party has no interest at all. . In United States v. Browning-Ferris Industries, 19 Chem. Waste Litig.Rep. 436 (M.D.La.1989), the only other court to rule on a similar set of facts came to a different conclusion. There, as here, the applicant had previously signed a consent decree with the government and maintained that a subsequent consent decree, if approved, would cut off its right to sue non-settling PRPs for contribution. Id. at 437. The court held the applicant had no interest in the litigation because § 113(f)(3)(C) subordinates the rights of all others to the rights of the government. Id. at 439. We agree that § 113(f)(3)(C) subordinates a settlor's contribution right to the government's right to recover response costs, but we disagree with the decision in BPI. Section 113(f)(3)(C) makes the settlors' claim subject to the government's claim, but it does not affect either the creation or extinction of the settlors' right to sue for contribution. Therefore, § 113(f)(3)(C) is not helpful in determining whether an interest exists. . In order to prove an interest is impeded, the third part of the intervention test, the applicant must demonstrate "a tangible threat to [its] legal interest.” Brody, 957 F.2d at 1123 (internal quotation marks and citation omitted). We believe that if, on remand, the district court determines the operations and maintenance which the Air Products defendants agreed to pay is addressed in the Alcan consent decree, the Air Products defendants will have met this burden because § 113(f)(2) makes a party that settles with the government immune from any future contribution action "regarding matters addressed in the settlement.” 42 U.S.C. § 9613(f)(2) (1988). Since, under those circumstances, approval of the consent decree might extinguish the Trustees' right to sue for contribution, this constitutes a sufficient threat to their interest to permit intervention. Similarly, we believe the Air Products defendants’ interests are not being adequately represented in this litigation, the fourth part of the intervention test. An applicant’s rights are not adequately represented where: (1) the interest of the applicant so diverges from those of the representative party that the representative party cannot devote proper attention to the applicant's interest; (2) there is collusion between the existing parties; or (3) the representative party is not diligently prosecuting the suit. Brody, 957 F.2d at 1123. We believe that where, as here, neither party represents the applicant's interests and the existing parties contest intervention it cannot be said the applicant's interests are being diligently prosecuted. . 42 U.S.C. § 9613(f)(2) provides: A person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. Such settlement does not discharge any of the other potentially liable persons unless its terms so provide, but it reduces the potential liability of the others by the amount of the setdement. . There is some indication in the legislative history that Congress intended § 113(f) to protect settlors from contribution claims by non-setdors, see H.R.Rep. No. 253, 99th Cong., 1st Sess., pt. 3, at 19, reprinted in 1986 U.S.C.C.A.N. at 3042 (settlement under § 113(f)(2) “gives the settling party protection from the contribution claims of other potentially liable parties....”), while retaining settiors' right to sue for contribution. It is possible that Congress never considered the prospect of a late settlor asserting § 113(f)(2)'s protection against an earlier settlor, but the parties have not pointed to any authority or legislative history on this point. In view of the clear and unambiguous language of § 113(f)(2), however, the statute's plain language must be considered conclusive. Reves, - U.S. at -, 113 S.Ct. at 1169. If early settlors have no real opportunity to protect their contribution right, i.e., no opportunity to intervene, we expect that PRPs may discount the right to sue for contribution under § 113(f)(1). This may have the unfortunate effect of removing an incentive to settle early. Although this result may prove unsatisfactory, we cannot ignore the clear and unambiguous language of § 113(f)(2). Any change in the statutory scheme must come from Congress. We do not believe § 122(d) — CERCLA's public comment provision — adequately protects an early settlor’s contribution right. The right to intervene gives parties, among other things, the right to participate in discovery, see Fed.R.Civ.P. 26(b)(1), and the right to appeal an adverse judgment, see Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1307 (3d Cir.1993) ("Generally, 'only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.'" (quoting Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 588, 98 L.Ed.2d 629 (1988) (per cu-riam)), neither of which accompanies the ability to comment. . The Alcan consent decree does not expressly address operations and maintenance. Rather, its covenant not to sue makes references to section V of the Air Products consent decree, the section which requires the Air Products defendants to pay operations and maintenance. On remand the district court may wish to open the record to new evidence. That decision, however, is within the discretion of the district judge, and we express no opinion on it. . Although we believe the Air Products defendants' interest would be protectable for intervention purposes, we do not rule out the possibility that § 113(f)(2) could extinguish their contribution right if the Alcan consent decree is approved as written.

Olin Corp. v. Consolidated Aluminum Corp.

MESKILL, Circuit Judge: This is an appeal from an amended judgment entered on December 17, 1992 in the United States District Court for the Southern District of New'York, Edelstein, J. The district court granted Olin Corp.’s (Olin) motion for partial summary judgment, denied Consolidated Aluminum. Corp.’s (Conaleo) motion for partial summary judgment and dismissed with prejudice'Conalco’s first claim for relief in its counterclaim which was based on the Comprehensive Environmental Response, Compensation, and Liability Act' of 1980, 42 U.S.C. § 9601 et seq. (CERCLA). The decision is reported at 807 F.Supp. 1133 (S.D.N.Y.1992). We affirm in part, vacate in part and remand for further proceedings.’ At issue in this appeal is the proper interpretation of indemnity and release provisions contained in certain agreements entered into by Conalco and Olin. Conalco contends that these contractual provisions, which predated the enactment of CERCLA, are insufficient to relieve Olin of its liability under CERCLA for its pre-CERCLA activities at certain -sites because the provisions contain no clear, unequivocal and express transfer of CERC-LA liability. We hold that as to the site in Hannibal, Ohio these provisions are broad enough to require Conalco to indemnify Olin for CERCLA liability. However, as to environmental claims that might arise against Olin in the future based on its activities at sites owned by' third parties (third-party sites), the district court was not presented with a case or controversy. Therefore, we remand this matter to the district court to amend the amended judgment to indicate that the claims in Conalco’s CERCLA counterclaim as they pertain to third-party sites are dismissed without prejudice. On remand, the district court also should make findings and rule on Conalco’s CERCLA counterclaim as to the Pennsylvania site. BACKGROUND The facts are fully set forth in Judge E del-stein’s opinion and order dated December 1, 1992. Olin Corp. v. Consolidated Aluminum Corp., 807 F.Supp. 1133, 1135-36 (S.D.N.Y.1992). We summarize only those facts necessary for an understanding of our disposition of the issues in this appeal. Olin operated an aluminum plant in Ohio (the Hannibal site) from 1955 until December 1973. As part of its aluminum operations, Olin maintained processing equipment utilizing hydraulic fluid (Pydraul) manufactured by Monsanto Industrial Chemicals Company (Monsanto). The Pydraul contained poly-chlorinated biphenyls (PCBs) which CERC-LA defines as a hazardous substance. See 42 U.S.C. § 9601(14)(A); 33 U.S.C. § 1321(b)(2)(A); 40 C.F.R. § 116.4 (1992). The district court found that until 1972 Olin was unaware that Pydraul contained PCBs and was toxic. Olin disposed of the Pydraul and many of its industrial byproducts by depositing them in an impoundment pool on the Hannibal site. Olin periodically set the contents of the pool afire and then drained what remained into a-swale. ■ In 1972, Monsanto sent Olin a letter advising that PCBs were present in Pydraul and that certain prophylactic measures, such as high-heat incineration, were necessary to assure safe disposal. Oliri responded by discontinuing use of the impoundment pool; it constructed a liquid waste incinerator to dispose properly of its Pydraul and other hazardous liquids. The district court found, however, that Olin took no action to eliminate contaminants from the impoundment pool or to clean up the surrounding soil. After deciding to divest itself of all assets and liabilities of its aluminum business, Olin, in 1973, engaged in successful negotiations with Conalco for the sale of Olin’s aluminum operations, including the Hannibal site. The parties signed several agreements to effectuate the sale, each of which contained very broad language which required Conalco to indemnify Olin for all post-divestment liabilities associated with Olin’s ownership of the Hannibal site and the aluminum operations.. However, none of these agreements specifically addressed allocation of environmental liabilities between the parties. The Purchase Agreement, dated September 21, 1973, provides in pertinent part: Conalco will ... deliver to Olin an instrument or instruments ... whereby Conalco shall assume and agree to be responsible for and to pay, perform, discharge and indemnify Olin against, all liabilities, obligations and indebtedness of Olin related to the Aluminum Assets or the Aluminum Affiliates or the Aluminum Subsidiaries as they exist on the Closing Date or arise thereafter with respect to actions or failures to act occurring prior to the Closing Date. At the closing on January 1,1974, the parties executed the Assignment and Assumption Agreement (Assumption Agreement) which provides in pertinent part: Conalco hereby assumes and agrees to be responsible for and to pay, perform, discharge and indemnify Olin against, all liabilities (absolute or contingent), obligations and indebtedness of Olin related to the Aluminum Assets or the Aluminum Affiliates or the Aluminum Subsidiaries as they exist on the Effective Time or arise thereafter with respect to actions or failures to act occurring prior to the Effective Time. On May 10, 1974, the parties entered into an agreement (Release) which provides in pertinent part: In consideration of the payment on this date by Olin to Conalco of $3,700,000 ... Conalco hereby releases and settles all claims of any nature which Conalco' now has or hereafter could have against Olin ... whether or not previously asserted, under or arising out of the Purchase Agreement ..., or the transactions contemplated thereby. We will refer to, the Purchase Agreement, the Assumption Agreement and the Release collectively as the “Agreements.” - Conalco has owned and operated the aluminum facility located at the Hannibal site since January 1, 1974. In 1986, the Ohio Environmental Protection Agency (Ohio EPA) concluded that the pool, as well as the soil adjacent and subjacent to the pool, was contaminated with PCBs and ordered remediation of this hazard. Conalco complied with this remediation order, incurring substantial cleanup costs. Conalco believed that Olin’s disposal practices created the PCB contamination and sought voluntary contribution from Olin. Olin refused to contribute to the cleanup costs and filed this declaratory judgment action seeking, inter alia, a determination that defendants Conalco and Swiss Aluminum, Ltd. (Alusuisse) are “hable to Olin for the costs of defending against, and for all losses in connection with, all claims against, and liabilities of, Olin arising out of its former aluminum business.” Conalco filed a counterclaim. Its first claim for relief was pursuant to CERCLA and sought (1) reimbursement for the $991,-359.91 it allegedly spent cleaning up the Hannibal site, and (2) a declaratory judgment “declaring Olin liable for claims related in any way to the ... disposal of PCBs or any other hazardous substances or chemicals, including but not limited to the present and future clean-up costs at the Hannibal, Ohio plant property and the site of Eastern Diversified Metals in Hometown, Pennsylvania.” At the close of discovery, the parties filed cross-motions for. partial summary judgment. Olin sought a partial summary judgment declaring Conalco contractually obligated to indemnify Olin for the alleged Hannibal site environmental liability and sought dismissal of Conalco’s counterclaim. Conalco sought partial summary judgment that (1) Olin was liable to it for initial investigatory and monitoring costs of the environmental cleanup at the Hannibal site, (2) Olin was a “responsible party” under CERCLA and the Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613 et seq. (1986) (SARA), and thus was liable to it for contribution for any and all costs incurred as a result of Olin’s disposal of hazardous wastes and contaminants on properties later sold to Conalco, (3) Olin was not relieved of its CERCLA and SARA liabilities as a result of the Agreements, and (4) Conalco was not liable to Olin under the Agreements for the costs of the cleanup of hazardous waste deposited by Olin. Judge Edelstein first determined that CERCLA permits private parties to contract with respect to indemnification and contribution for environmental liability although each party remains fully liable to the government. 807 F.Supp. at 1137-39. He then discussed the proper interpretation of the Agreements at issue in this case. Id. at 1139-41. The judge decided that it was unnecessary to draft a uniform federal standard because state law should serve as the federal rule of decision when interpreting a contractual provision that purports to allocate CERCLA liability. Judge Edelstein concluded that, under New York law, the indemnification agreements entered into by Olin and Conalco were valid and enforceable. He reasoned that these Agreements were clear on their face and that their provisions shielded Olin from liability to Conalco. Because the judge determined that no ambiguity existed as to the proper interpretation of the indemnity clauses contained in the Agreements he denied Conalco’s motion for partial summary judgment and granted Olin partial summary judgment, dismissing with prejudice Conal-co’s CERCLA counterclaim. Id. at 1142-43. After making the requisite findings pursuant to Fed.R.Civ.P. 54(b), the district court entered final judgment on the claims disposed of by the partial summary judgment. This appeal followed. DISCUSSION I. Standard of Review We review de novo an appeal from summary judgment, viewing the record in the light most favorable to Conalco, the nonmoving party. See, e.g., Dube v. State University of New York, 900 F.2d 587, 597 (2d Cir.1990) (citations omitted), cert. denied sub nom. Wharton v. Dube, — U.S. —, 111 S.Ct. 2814, 115 L.Ed.2d 986 (1991). When there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. See, e.g., Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir.1992). II. The Hannibal Site The primary question we address in this appeal is whether the Agreements at issue, which predate the enactment of CERCLA and which make no mention of environmental liabilities, allocate to Conalco, the buyer, the subsequently created CERCLA obligation to clean up the Hannibal site, which Conalco claims was contaminated by Olin, the seller. Section 107(e)(1) of CERCLA deals with the contractual allocation of CERCLA liability and contains two seemingly contradictory statements concerning whether a private party can enter into an indemnity agreement absolving itself of CERCLA liability. This section states as follows: No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the Lability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section. 42 U.S.C. § 9607(e)(1). The district court interpreted this section to mean that under CERCLA private parties may contract with respect to indemnification and contribution but that, notwithstanding such contracts, all responsible parties remain fully liable to the government. Conalco does not dispute this holding on appeal. Rather, its main argument is that in order to transfer CERCLA liabilities an agreement must include a clear, express and unequivocal waiver of CERCLA rights. Conalco argues that the Agreements at issue here do not apply to CERCLA liability because they were entered into before CERCLA was enacted and do not contain a specific reference to environmental Labilities. We first must consider whether federal common law or state law should apply in interpreting contractual provisions that purport to indemnify one against, or release one from, CERCLA Lability. The district court decided that federal courts should incorporate state law when interpreting contractual agreements allocating CERCLA liabihty and applied New York law. The parties do not dispute this decision on appeal; both agree that application of either New York or federal common law would produce the same result in this ease. We nevertheless pause to clarify our holding in a recent case that impLeitly resolves this issue. Subsequent to the fiLng of the main briefs in this appeal but prior to oral argument we decided Commander Oil Corp. v. Advance Food Serv. Equip., 991 F.2d 49 (2d Cir.1993). In that ease,- a seller of a business brought a third-party suit seeking indemnification for environmental liability from the purchaser pursuant to certain sale and lease agreements entered into by the parties. On appeal, we addressed the question whether the district court had correctly interpreted the indemnification language contained in the agreements to .exclude indemnification for CERCLA liability. Id. at 51. While it is clear that federal law governs the validity of releases of federal causes of action, see, e.g., Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314, 96 L.Ed. 398 (1952); Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1457 (9th Cir.1986), we concluded without discussion that we would look to state law to provide the content of federal law. Commander Oil, 991 F.2d at 51. Therefore, the issue is settled in this Circuit. Because the district court correctly anticipated this holding and thoroughly explained its underlying rationale, we see no reason to expand on Judge Edelstein’s well-reasoned analysis. See 807 F.Supp. at 1139-41; see also Mardan Corp., 804 F.2d at 1457-60 (also containing a detailed and well reasoned discussion of why state law should provide the general content of federal law on the interpretation of contractual releases from CERCLA liability). The parties agree that New York state law is to be applied in interpreting these Agreements. We stated in Commander Oil: “Under New York law ... it is our function to ‘discern the intent of the parties to the extent their intent is evidenced by their written agreement.’ ” 991 F.2d at 51 (quoting Int'l Klafter Co. v. Continental Casualty Co., 869 F.2d 96, 99 (2d Cir.1989) (citing Slatt v. Slatt, 64 N.Y.2d 966, 967, 488 N.Y.S.2d 645, 646, 477 N.E.2d 1099, 1100 (1985))). “Where the' intention of the parties is clearly and unambiguously set forth, effect must be given to the intent as indicated by the language used.” Slatt, 64 N.Y.2d at 967, 488 N.Y.S.2d at 646, 477 N.E.2d at 1100. However, as we also noted in Commander Oil, “in New York indemnification agreements are strictly construed; a court cannot find a duty to indemnify absent manifestation of a ‘clear and unmistakable intent’ to indemnify.” 991 F.2d at 51 (citing Heimbach v. Metropolitan Transp. Authority, 75 N.Y.2d 387, 392, 553 N.Y.S.2d 653, 657, 553 N.E.2d 242, 246 (1990)). With these principles of New York law in mind, we now turn to our task of interpreting the indemnity provisions in question. These Agreements contain extremely broad language. As Judge Edelstein stated: “One would be hard pressed to draft' broader or more inclusive , indemnification provisions than those entered into by Conalco and Olin.” 807 F.Supp. at 1142. Indeed, we noted at oral argument that it seemed to us that the contractual language, at issue was virtually airtight. Conalco cites a New York case, Huskission v. Sentry Ins., 123 A.D.2d 832, 833, 507 N.Y.S.2d 447, 449 (2d Dep’t 1986), for the proposition that the parties had the relevant existing law in mind when they contracted and the contract should not be interpreted to include later statutory enactments that changed the obligations of the parties “absent a clear expression in the contract that such is the parties’ intention.’’ We agree. These Agreements, however, do contain such a clear expression of the parties’ intent. The Purchase Agreément requires Conalco to indemnify Olin against “all liabilities, obligations and indebtedness of Olin related to [its aluminum business] ... as they exist on the Closing Date or arise thereafter.” (emphasis added). In the Assumption Agreement executed at the closing, Conalco agreed to “indemnify Olin against, all liabilities (absolute or contingent), obligations and indebtedness of Olin related to [the aluminum business] ... as they exist on the Effective Time or arise thereafter with respect to actions or failures to act occurring prior to the Effective Time.” (emphasis added). Finally, the Release provides that Conalco “releases and settles all claims of any nature which Conal-co now has or hereafter could have against Olin ... whether or not previously asserted.” (emphasis added). Notwithstanding the fact that CERCLA did not exist at the time these contracts were executed, we hold that as to the Hannibal site, these contractual provisions are sufficiently broad to encompass CERCLA liability. The language evidences the parties’ “clear and unmistakable intent” that Conalco indemnify Olin for all liabilities related to the Hannibal site, even future unknown liabilities. We are not convinced, therefore, by Conalco’s argument that “in order to release CERCLA liability, the agreement must include a clear, express and unequivocal waiver of CERCLA rights.” Nevertheless, Conalco presents a very strong equitable argument. Conalco contends that CERCLA, which imposes strict liability and casts a broad liability net, was a previously unimaginable scheme. The district court’s decision forces Conalco, an apparently innocent purchaser of land, to assume a liability that did not exist at the time of contract for conditions that it did not create. However, Olin’s argument is also not without strong equities in its .favor. As to the Hannibal site, Olin contracted to release itself from all liability arising from its previous ownership of its aluminum business. Clearly the inclusion of the broadly worded contractual provisions affected the selling price Olin received. This was a contract between two large, sophisticated companies who hammered out an agreement and expected to be able to rely on its terms. In resolving a dispute where there are equities in favor of each side, we must respect the unambiguous contractual language. We agree with Olin that this language is broad enough to require Conalco to indemnify Olin for CERCLA liability. We acknowledge that this is a seemingly harsh result for a company that must pay for the cleanup of contamination that it apparently did not cause. However, we are unwilling to ignore the broad inclusive language of agreements freely entered into by two sophisticated parties. Parties should be able to rely on the terms of an agreement arrived at after arduous negotiations. III. Third-Party Sites At oral argument Conalco asserted that Olin contends, and the district court’s holding requires, that Conalco must indemnify Olin not only for any environmental liability to which Olin might be subject due to its activities at the Hannibal site but also for any environmental claims involving third-party sites that might arise against Olin that are in any way related to Olin’s former aluminum operations. When we asked Olin’s counsel if he agreed that this was the import of the district court’s holding, he responded that this appeal involved the Hannibal site. He did agree, however, that the district court’s opinion was applicable to how the Agreements should be read generally. He explained that there were other sites that Co-nalco does not own to which Olin had previously sent waste from its aluminum operations. Olin’s position appears to be that the Agreements are broad enough to require Co-nalco to indemnify Olin if in the future Olin is held liable for environmental problems at any of these unnamed sites. The district court’s opinion focused on the Hannibal site and dismissed the first claim for relief of Conalco’s counterclaim. Conalco contends, in essence, that the district court’s decision allows Olin to treat Conalco as an insurance company as to Olin’s former aluminum operations even as to potential liability resulting from Olin’s dumping of hazardous substances at third-party sites. To determine whether Conalco is correct that the district court’s ruling means that Conalco must indemnify Olin for CERCLA liability as to other sites, we must examine the pleadings. In its counterclaim Conalco alleged that “[ujpon information and belief, Olin disposed or caused to be disposed Pydraul containing PCBs which may have contaminated certain unknown pieces of property which may require cleanup.” (emphasis added). In its first claim for relief Conalco sought, inter alia, a judgment declaring Olin liable for environmental claims “inclüding but not limited to the present and future clean-up costs at the Hannibal, Ohio plant property and the site of Eastern Diversified Metals in Hometown, Pennsylvania.” (emphasis added). In its amended complaint, Olin sought, inter alia, a declaratory judgment that “defendants [are] hable to Olin for the costs of defending against, and for all losses in connection with, all claims against, and liabilities of, Olin arising out of its former aluminum business.” The district court made no mention of any third-party sites. Conalco is correct, however, that in dismissing with prejudice Conal-co’s CERCLA counterclaim the district court’s ruling arguably forecloses Conalco from bringing an action in the future to determine the respective liabilities of the parties if a cleanup of one of these third-party sites is ordered. Therefore, we must decide if the district court’s dismissal with prejudice of Conalco’s CERCLA counterclaim was proper. Article III of the Constitution limits the jurisdiction of the federal courts to actual cases and controversies, as distinguished from “advisory opinions.” F.X. Maltz, Ltd. v. Morgenthau, 556 F.2d 123, 125 (2d Cir.1977). On this record, we do not' believe an actual controversy exists between Olin and Conalco as to sites other than Hannibal and the Pennsylvania site. Under the Federal Declaratory Judgments Act, Congress has authorized declaratory judgments only “[i]n ... case[s] of actual controversy.” 28 U.S.C. § 2201. The Supreme Court has noted that the question we must ask is “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941) (emphasis added); see Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 562 (2d Cir.), cert. denied, — U.S. —, 111 S.Ct. 2829, 115 L.Ed.2d 998 (1991). The controversy must be “real and substantial ... admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617, reh’g denied, 300 U.S. 687, 57 S.Ct. 667, 81 L.Ed. 889 (1937). “Whether a real and immediate controversy exists in a particular case is a matter of degree and must be determined on a case-by-case basis.” Kidder, Peabody & Co., 925 F.2d at 562. Whether Olin someday will be held subject to environmental liability at some unknown third-party site is speculative. Therefore, whether Conalco should be required to indemnify Olin for such liability should it ever arise is not a question of “sufficient immediacy and reality” to warrant the issuance at this time of a declaratory judgment. Other than the controversy over the Pennsylvania site, we can find no mention of any pending environmental claim as to any third-party site in the pleadings or record. To allow the district court’s ruling to stand, with its implication for these third-party sites, would not only be advisory it would also be imprudent. The record fails to indicate the location of these sites, and we do not even know the types of claims that might be asserted in the future. We cannot allow the declaratory judgment procedure to be used as a “medium for securing an advisory opinion in a controversy which has not arisen.” Coffman v. Breeze Corps., 323 U.S. 316, 324, 65 S.Ct. 298, 302, 89 L.Ed. 264 (1945). Because there was no actual controversy before the district court as to these third-party sites we vacate the district court’s holding insofar as it dismissed with prejudice claims pertaining to these sites. The district court should amend the amended judgment to provide that the claims in Conalco’s CERCLA counterclaim dealing with third-party sites, other than the Pennsylvania site, are dismissed without prejudice. IV. The Pennsylvania Site As we noted above, Conalco’s .CERCLA counterclaim also sought a judgment declaring Olin liable for environmental claims related to the Pennsylvania site. In its complaint, Olin mentioned this site as well, stating: Olin has demanded, pursuant to the aluminum agreements, that Conalco engage in discussions with the United States Environmental Protection Agency respecting Olin’s potential responsibility under federal environmental laws to participate in or to pay for clean-up of alleged contamination of the site of Eastern Diversified Metals, in Hometown, Pennsylvania, and that Co-naleo indemnify Olin in respect of that matter. Conalco has refused to do so. We have found very little else in the record pertaining to the Pennsylvania site. Indeed, we are not even certain who currently owns this site nor do we know the exact status or nature of the alleged claims that have been asserted against Olin pertaining to it. We did find in the record an Olin interoffice memorandum that states that Olin is listed as a potentially responsible party as to this site because it “used the facility for the recovery of aluminum from a small amount of insulated wire in 1973.” The district court, however, made no findings as to the Pennsylvania site. In fact, the district court did not even mention it in its opinion. However, it stated: “This Court finds that the indemnity provisions contained in the [Agreements] are sufficiently broad to indemnify Olin against liability to Conalco pursuant to CERC-LA. ... [T]hus, partial summary judgment in favor of Olin is appropriate.” 807 F.Supp. at 1142-43 (footnote omitted). Given that Conalco raised the issue of the Pennsylvania site in its counterclaim, this holding arguably resolves the issue of CERCLA liability as to the Pennsylvania site. “As an appellate court ... we cannot make findings of fact.” Julie Research Laboratories v. Select Photographic Engr’g, 998 F.2d 65, 67 (2d Cir.1993). Therefore, “[without guidance from the district court, we are in no position to review the district court’s [implicit] rejection of [Conaleo’s] claim [as to the Pennsylvania site].” Id. at 67 (citing Fed.R.Civ.P. 52). For these reasons, we ask the district court on remand to make findings and then rule on Conalco’s CERCLA claim in its counterclaim insofar as it pertains to this site. CONCLUSION We affirm the amended judgment of the district court as to the Hannibal site. We vacate the amended judgment insofar as it applies to the third-party sites and remand to the district court to amend the amended judgment to indicate that the claims in Co-nalco’s CERCLA counterclaim dealing with third-party sites, other than the Pennsylvania site, are dismissed without prejudice. We also direct the district court on remand to make findings and explicitly rule on Conal-co’s CERCLA counterclaim as it pertains to the Pennsylvania site. . The parties dispute the nature of the $3.7 million payment. Conalco claims that this money was paid as an adjustment in the purchase price to reflect variations in the December balance sheet. Olin argues that the money was consideration for the release it ■ obtained. We find it unnecessary to resolve this dispute because the language in the Release is clear. Furthermore, although we analyze all three agreements, the language in the Purchase Agreement and Assumption Agreement is sufficient to support our holding. . At the time of the sale, Alusuisse owned 60 percent of the voting stock of Conalco. Alusuisse is not a party to this appeal. . Conalco argues that under New York law, the burden of proof is on Olin which is seeking to enforce the terms of the contract and that Olin has failed to meet it. This argument fails because it is Conalco, "the releasor[, which] ... must sustain the burden of persuasion if [it] is to establish that the general language of the release, valid on its face and properly executed, is to be limited because ... [it] does not represent the intent of the parties." See Mangini v. McClurg, 24 N.Y.2d 556, 563, 301 N.Y.S.2d 508, 513-14, 249 N.E.2d 386, 390 (1969); see also Mardan, 804 F.2d at 1462. . At oral argument, Conalco stated that it-did not know where all of these third-party - sites are located and that perhaps some are even located 1 outside of the United States.

Dant & Russell, Inc. v. Burlington Northern Railroad

GOODWIN, Circuit Judge: This appeal arises out of the negative land value caused by industrial pollution of land leased from a railroad. Burlington Northern (“BN”) filed a claim against the bankruptcy estate of Dant & Russell (“D & R”), seeking reimbursement for incurred and expected cleanup costs of a site owned by BN and leased to D & R. The bankruptcy court awarded BN approximately $7 million of the $14 million requested. Tenants other than D & R had also contributed contaminants to the site during more than fifty years of use. Both parties appealed. We affirm the bankruptcy court’s division of liability between the parties. We reverse the award to BN of cleanup costs not yet incurred. We remand for further accounting of costs incurred. Since 1958, BN has owned an industrial site in Oregon which it has leased to various tenants, all of whom used the site for chemically treating wood. Earlier owners of the site had also leased the land to similar users. D & R, a tenant of BN, conducted its wood treatment operations between 1971 and 1983. In November, 1982, D & R filed for bankruptcy under Chapter 11 of the Bankruptcy Code. In 1985, the Environmental Protection Agency (“EPA”) ordered BN to conduct “Immediate Removal and Stabilization Activities” at the site. BN spent approximately $1 million in complying with the order. While the EPA reserved the right to take additional action against BN, it has not to date required BN to take actions other than those demanded by the order. In 1985, BN filed a proof of claim in D & R’s bankruptcy case, requesting reimbursement from D & R for the funds it had spent on complying with the EPA order, as well as funds for future cleanup. BN’s claim is under § 9607(a)(4)(B) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq. (1988). In total, BN is seeking $14,235,700 from D & R: approximately $1 million for incurred cleanup costs and the remainder for future cleanup. The bankruptcy court found that BN’s CERCLA claim was not barred by 11 U.S.C. § 502(e)(1)(B). However, the court found that BN was not entitled to recover from the bankrupt the entire $14 million plus it was seeking. Apportioning liability for the cleanup costs, the court declared D & R liable for $7,402,564 of the total amount and ordered D & R to pay BN this amount. On appeal, D & R admits substantial liability under CERCLA. Moreover, D & R does not contest “approximately $780,000” of the bankruptcy court’s award. D & R concedes that BN actually incurred this amount in conducting the initial cleanup. D & R’s argument on appeal concerns the bankruptcy court’s award of future cleanup costs. D & R argues that because BN has not yet incurred these costs, the court should have disallowed BN’s claim for $14 million plus under § 502(e)(1)(B). BN argues that under its CERCLA claim, the bankruptcy court was not permitted to apportion liability. BN further argues that even if division of liability was permissible, the one chosen by the bankruptcy court was incorrect. Finally, BN claims that it is entitled to administrative priority for cleanup costs associated with contamination deposited by D & R after D & R filed for bankruptcy in 1982. Both parties were asserting claims that were too broad. I. Disallowance Under § 502(e)(1)(B) Section 502(e)(1)(B) of the Bankruptcy Code provides that: [T]he court shall disallow any claim for reimbursement or contribution of an entity that is liable with the debtor on or has secured the claim of a creditor, to the extent that ... such claim for reimbursement or contribution is contingent as of the time of allowance or disallowance of such claim for reimbursement or contribution. A claim will be disallowed under § 502(e)(1)(B) only if (1) the claim is for reimbursement or contribution; (2) the party asserting the claim is liable with the debtor on the claim of a creditor; and (3) the claim is contingent at the time of allowance or disallowance. See, e.g., In re Provincetown-Boston Airlines, Inc., 72 B.R. 307, 309 (Bankr.M.D.Fla.1987). Finding that BN’s CERCLA claim was non-contingent, the bankruptcy court allowed the claim. Because we find that BN’s claim fails to satisfy the co-liability requirement, we need not reach the question of contingency. The co-liability requirement — that the claimant be “liable with” the debtor on the claim of a third party “creditor” — illuminates the central purpose of § 502(e)(1)(B). The contingency requirement does not explain the purpose of this section. Section 502(c) permits the estimation of contingent or unliquidated claims so that delay in the administration of the estate may be avoided. Accordingly, § 502(e)(1)(B) was drafted to “preven[t] competition between a creditor and his guarantor for the limited proceeds in the estate.” S.Rep. No. 95-989, 95th Cong., 2nd Sess. 65 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5851. See also 3 Collier on Bankruptcy ¶ 502.05 (15th ed. 1990) (explaining that § 502(e)(1)(B) applies to claims of secondarily liable entities whereas § 502(c) applies to claims of the debtor’s creditors). The concerns addressed by § 502(e)(1)(B) are not implicated in this case because third parties are not competing over D & R’s funds for cleanup. BN’s claim against these funds arises from no external legal compulsion — there is no third party creditor here. This fact is evident from the nature of BN’s CERCLA claim. Section 9607(a) of CERCLA provides, in relevant part: [T]he owner and operator of a ... facility, [and] any person who at the time of disposal owned or operated any facility at which ... hazardous substances were disposed of ... shall be liable for (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe ...; [and] (B) any other necessary costs of response incurred by any other person. ... Section 9607(a) allows the state to recover from a responsible party costs it incurs in cleaning up a hazardous site. See, e.g., United States v. Wade, 577 F.Supp. 1326 (E.D.Pa.1983); Ohio ex rel. Brown v. Georgeoff, 562 F.Supp. 1300 (N.D.Ohio 1983). It is also well-settled that § 9607(a)(l-4)(B) permits a private party to recover from a responsible party response costs it incurs itself in conducting cleanup pursuant to CERCLA — even absent intervention by the state. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir.1986). The CERCLA private right of action encourages voluntary private action to remedy environmental hazards. In this way, it furthers CERCLA’s goal of responding to hazardous situations quickly. EPA arm-twisting is not a prerequisite for filing a § 9607(a)(4)(B) claim. See id. In this case, BN is seeking to recover the cost of future cleanup. Having complied with the original EPA order to conduct specified cleanup tasks, at a cost of less than $1 million, BN now seeks funding to perform further cleanup operations to finish the job. This latter cleanup has not been ordered by the EPA. When and if it is accomplished, it very well might be at the instigation of BN. Thus, with respect to it’s § 9607(a)(4)(B) claim, there is no third party to whom BN is “liable with” D & R. The cases cited by D & R in arguing this point do not support its position. Each case involved an underlying claim by a third party against the party who was in BN’s position in this case. See In the Matter of Baldwin-United Corp., 55 B.R. 885 (Bankr.S.D.Ohio 1985) (brokers who filed proofs of claim against debtor were seeking contribution and indemnity in light of annuity holders’ claims against them); In re Wedtech Corp., 87 B.R. 279 (Bankr.S.D.N.Y.1988) (former officers and directors who were suing debtor were seeking reimbursement for losses arising from claims against them by third parties); Provincetown, 72 B.R. at 307 (underwriter was seeking indemnification or contribution by debtor-corporation with respect to shareholder claims against the underwriter). Accordingly, § 502(e)(1)(B) does not bar BN’s § 9607(a)(4)(B) CERCLA claim against D & R. But this does not end the inquiry. II. The CERCLA Claim A. Allocation of the Liability Between BN and D & R BN argues that once the bankruptcy court upheld its CERCLA claim against D & R’s § 502(e)(1)(B) challenge, the court had no choice but to ascribe to D & R full liability for BN’s claim. This assertion reaches too far. Section 9613(f)(1) of CERCLA provides: Any person may seek contribution from any other person who is liable or potentially liable under section [9607(a)], during ... any civil action under ... section [9607(a)].... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. This section applies in this case for at least three reasons: (1) BN has admitted CERC-LA liability; (2) this is a civil action under § 9607(a); and (3) D & R is arguing that BN should contribute to the cleanup operations. The bankruptcy court determined D & R’s proportionate liability for the total cleanup costs by converting to percentage the number of years D & R operated the site out of the total number of years all tenants of BN had operated the site. Because D & R had conducted its operations for 12 of the 23 years, and because estimated cleanup costs were agreed to be about $14,235,700, the court found D & R liable for $7,402,564. For the reasons cited by the district court, we hold that the bankruptcy court did not abuse its discretion in this equitable apportionment of liability. See In re Dant & Russell, Inc., No. CV 89-24, slip op. at 11-14 (Bankr.D.Or. May 8, 1989). B. The Award of Future Costs to BN On appeal, D & R argues that the bankruptcy court erred in awarding $7,402,564 to BN for cleanup costs most of which, as yet, have not been incurred. In making this argument, D & R cites § 502(e)(1)(B). As indicated above, its reliance on this section to bar the claim is misplaced. However, support for D & R’s argument is found in CERCLA itself. Under CERCLA’s scheme for private action, response costs may not be recovered when there has been no commitment of resources for meeting these costs. Section 9607(a)(4)(B) permits an action for response costs “incurred”—not “to be incurred.” Moreover, CERCLA expressly provides for declaratory actions for determining liability as to future response costs. Section 9613(g)(2) provides that in actions under § 9607, “the court shall enter a declaratory judgment on liability for response costs ... that will be binding on any subsequent action or actions to recover further response costs.... ” These sections envision that, before suing, CERCLA plaintiffs will spend some money responding to an environmental hazard. They can then go to court and obtain reimbursement for their initial outlays, as well as a declaration that the responsible party will have continuing liability for the cost of finishing the job. This system strikes a balance between a number of considerations. By requiring a plaintiff to take some positive action before coming to court, CERCLA ensures that the dispute will be ripe for judicial review. See, e.g., Thompson v. Anderson Window Corp., No. 4-88-229, 1989 WL 2330, at *4, 1989 U.S.Dist.LEXIS 871, at *12 (D.Minn. Jan. 27, 1989). On the other hand, by not requiring plaintiffs to perform full cleanup before coming to court, and by expressly providing for declaratory judgments, CERCLA substantially reduces the risk involved in performing the cleanup. This encourages private response. See, e.g., Jones v. Inmont Corp., 584 F.Supp. 1425, 1430 (S.D.Ohio 1984); Wade, 577 F.Supp. at 1335. Similarly, actual cleanup is encouraged by requiring plaintiffs to incur response costs before they can recover them. Since CERCLA places no strings on the award of response costs, allowing recovery for future costs absent any binding commitment to incur these costs would leave no incentive to complete the cleanup. This case provides no occasion for defining what “incurred” means — only what it does not mean. Here, we are presented with nothing but bare assertions by BN that BN will perform future cleanup. These assertions do not amount to response costs “incurred” under § 9607(a)(4)(B). Accordingly, the bankruptcy court erred in awarding to BN a liquidated sum for costs “incurred” beyond the costs actually incurred. We do not hold that the bankruptcy court could not enter a declaratory decree apportioning liability for costs when and if incurred. But the court could not enter a judgment for $7,402,564.00 under § 9607(a) for “incurred” costs when such costs have not been incurred. III. Administrative Priority BN argues that the bankruptcy court erred in failing to grant BN administrative priority for contamination caused by D & R after it filed for Bankruptcy in November 1982. The parties disagree over whether the bankruptcy court erred in finding “insufficient evidence establishing that Dant & Russell added any significant contamination to the site after the filing of Chapter 11.” In considering this issue, the district court noted: The record of the portion of this case now under review shows that D & R made improvements in its waste containment system in 1979, that D & R did not operate its plant during most of the post-petition period, and that its post-petition operations were limited to processing and disposing of inventory. Slip op. at 15. Reviewing the record of this case, we agree with the district court that the bankruptcy court’s findings were not clearly erroneous. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). IV. Conclusion We affirm the decision of the bankruptcy court so far as it held that § 502(e)(1)(B) does not bar BN’s CERCLA claim, that D & R was responsible for 52% of the liability for cleanup operations, and that BN’s claim was not entitled to administrative priority. We reverse the court’s award to BN of $7,402,564.00 for response costs BN has not yet incurred. Noting that D & R does not contest “approximately $780,000” of the award, we remand this case for a factual determination of BN’s actual incurred cleanup costs to date. To the extent that actual costs incurred may exceed the amount D & R agrees should be awarded to BN, the court should determine the current apportionment of such costs. With regard to the cost of future cleanup, CERCLA authorizes award of these funds to BN after they are incurred. This holding does not interfere with the powers of the bankruptcy court as a court of equity to establish a trust fund if the estate has assets, or to make provision for other forms of relief “necessary or appropriate to carry out the provisions of the bankruptcy code.” 11 U.S.C. § 105(a). We express no opinion on the extent of the court’s discretionary powers. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Smith Land & Improvement Corp. v. Celotex Corp.

OPINION OF THE COURT WEIS, Circuit Judge. This is a suit by a purchaser of land seeking contribution toward expenses incurred in the clean-up of a hazardous waste site. The defendant invoked and the district court accepted the defense of caveat emptor. A review of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-75, convinces us that caveat emptor, though it may affect the amount of an award, is not a permissible defense to liability. We also conclude that the general doctrine of corporate successor liability is appropriate in CERCLA contribution claims. Accordingly, we will vacate the judgment entered in favor of defendants and remand for further proceedings. Plaintiff owns a tract of land in Plymouth Township, Pennsylvania, on which is deposited a large pile of manufacturing waste containing asbestos. In July 1984, the Environmental Protection Agency informed plaintiff that unless it took steps to alleviate the asbestos hazard the federal government would perform the work and then pursue reimbursement. Plaintiff proceeded to correct the condition to EPA’s satisfaction, allegedly incurring costs of $218,945.44. Before reaching a settlement with the EPA, plaintiff notified defendants of its intention to seek indemnification. Plaintiff asserts that defendants are corporate successors to the Philip Carey Company (Carey), which had created the large waste pile in the course of manufacturing asbestos products. Carey sold the land to the plaintiff's predecessor in 1963. When defendants failed to accept responsibility for clean-up, plaintiff filed suit alleging causes of action under CERCLA and various state law theories including nuisance, unjust enrichment, and common law indemnity. Relying on Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303 (3d Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 384, 88 L.Ed.2d 337 (1985), the district court, holding that caveat emptor applied, entered summary judgment for defendants. The plaintiffs predecessor, wrote the court, “bought the land in an open, arm’s-length” transaction, without concealment. “In the eyes of the law, the plaintiff calculated or must be held to have calculated the risk of future clean-up costs into the amount it was willing to pay for the land.” That Hercules was precipitated by a state agency acting under state law, from the court’s standpoint, did not suffice to distinguish the case from the CERCLA claim at hand. The court noted that the plaintiff’s predecessor was a sophisticated company which had inspected the land on five occasions, known of its past use, and admitted that the pile of waste was a “negative” factor in the decision to purchase the land. Despite the plaintiff’s assertion that it lacked knowledge about the hazards of asbestos, the court concluded that the “price plaintiff paid for the land reflected the possibility of environmental risks.” Plaintiff does not now challenge the rulings on the state claims, but appeals only the judgment entered on the federal claim. Plaintiff argues that CERCLA permits only limited and specific defenses and that “caveat emptor” is not among them. Defendants respond that they never owned or conducted any operation on the property and hence cannot be liable. In the alternative, defendants argue that if found responsible on a theory of successor liability, then they may assert the caveat emptor defense against this experienced purchaser. I. A number of CERCLA’s provisions are pertinent here. Section 9607(a) provides that: “Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (1) the owner and operator of a ... facility, [and] (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of ... shall be liable for— (A) all costs of ... remedial action incurred by the United States Government or a State ... (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan....” 42 U.S.C. § 9607(a). Subsection (b) lists available defenses as an act of God, an act of war, or an act or omission of a third party (other than employees or agents of the defendants or in certain contractual relationships with them). Id. § 9607(b). Section 9613(f)(1) provides that “[a]ny person may seek contribution from any other person who is liable ... under section 9607(a).” Such claims “shall be governed by Federal law.” In resolving contribution claims, “the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” Id. Furthermore, a person “who has resolved its liability to the United States ... for some or all of a response action ... in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement.” Id. § 9613(f)(3)(A). In short, the current owner of a facility as well as the entity that owned the facility at the time the hazardous substance was deposited are liable under CERCLA for the expense of rectifying the condition. The statute does not list caveat emptor as a defense against initial liability. Contribution may be enforced against one who is liable under the Act, but a court may utilize equitable factors in determining the amount allocated. Setting aside complicating factors for the moment, if defendants had deposited hazardous substances on the land after passage of CERCLA and thereafter sold the tract, then plaintiff could recover an amount deemed equitable for proper expenses in abating the hazardous situation. On this premise, we review the facts and holding in Hercules. In that case, the state required the landowner to stop the leaching of polluting chemicals from its property in violation of the Pennsylvania Clean Streams Law, Pa. StatAnn. tit. 35, § 691 (Purdon 1977 & 1988 Supp.). Having expended substantial sums to comply with state law, the current owner sought indemnification from the successor corporation of the entity that had deposited the offending substances. We proceeded on the assumption that the parties to the suit acted in the capacity of vendor and vendee of land. We held that under Pennsylvania law the plaintiff had no standing to sue for public nuisance, that caveat emptor barred recovery on a private nuisance theory, and that “essentially the same policy considerations that counsel adherence to the rule of caveat emptor in this situation militate against shifting the loss to [the defendants] on an indemnity theory.” Hercules, 762 F.2d at 316, 318. The record there showed that the plaintiff had carefully inspected the land before purchase and had inquired into its past use. We found it “inconceivable that the price it offered ... did not reflect the possibility of environmental risks.” Id. at 314. “Where, as here, the rule of caveat emptor applies, allowing a vendee a cause of action for private nuisance for conditions existing on the land transferred — where there has been no fraudulent concealment — would in effect negate the market’s allocations of resources and risks, and subject vendors who may have originally sold their land at appropriately discounted prices to unbargained-for liability to remote vendees.” Id. at 314-15. The ruling in Hercules is distinguishable in several significant aspects. Defenses available under state common law are not necessarily allowed by the federal statute. As noted above, CERCLA provides explicitly that contribution claims shall be governed by federal law. The decisions we reached in Hercules sitting in diversity, therefore, cannot be transplanted to a CERCLA claim as a matter of course. The defenses enumerated in section 9607(b) are not exclusive in suits for contribution. Other sections suggest additional defenses in a broad sense; for example, the Act limits to three years the period in which an action may be brought, 42 U.S.C. A. § 9613(g) (1983 & 1988 West Supp.). A party which has resolved its liability to the government is not liable for contribution; the settlement may reduce the claim pro tanto. See id. § 9613(f)(2). In addition, agreements to indemnify or hold harmless are enforceable between the parties but not against the government. See id. § 9607(e). Moreover, the defenses in section 9607(b) coexist with equitable considerations that may mitigate damages. See H.R.Rep. No. 253(1), 99th Cong., 1st Sess. 1, 80 (1985), reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2862. See generally Belth-off, Private Cost Recovery Actions Under Section 107 of CERCLA, 11 ColumJ.Envtl. L. 141,183 (1986). Although not a defense to a government suit for clean-up costs, caveat emptor if applied between private parties arguably would not contradict the statutory text. Several considerations, however, lead us to conclude that this venerable doctrine is not in keeping with the policies underlying CERCLA. First, caveat emptor completely bars recovery by a purchaser regardless of other equities affecting the parties. That result frustrates Congress’ desire to encourage clean-up by any responsible party. If fair apportionment of the expense is not assured, it is unlikely that one party will undertake remedial actions promptly when it could simply delay, awaiting a legal ruling on the contribution liability of other responsible parties. Second, CERCLA authorizes the government to seek reimbursement of response costs from any of the responsible parties, leaving them to share the expense equitably. As the House report recognizes, choosing one defendant from among several can cause ill will between the government and the unlucky party selected. See H.R.Rep. No. 253(1), supra, at 80, reprinted in 1986 U.S.Code Cong. & Admin.News 2862. Recognizing that case law had established a right of contribution, the House Report stated: “This section [9607] clarifies and confirms the right of a person held jointly and severally liable under CERCLA to seek contribution from other potentially liable parties, when the person believes that it has assumed a share of the cleanup or cost that may be greater than its equitable share under the circumstances. * * * Although the only defenses to liability remain those set forth in Section [9607(b) ], courts are to resolve such claims on a case-by-case basis, taking into account relevant equitable considerations.” Id. at 2861-62. Doctrines such as caveat emptor and “clean hands,” which in some cases could bar relief regardless of the degree of culpability of the parties, do not comport with congressional objectives. In the words of one district judge, “the ‘unclean hands’ doctrine espoused in Mardan Corp. v. C.G.C. Music, Ltd., 600 F.Supp. 1049, 1057 (D.Ariz.1984), aff'd, 804 F.2d 1454 (9th Cir. 1986), has no place in CERCLA actions.” Chemical Waste Management v. Armstrong World Indus., 669 F.Supp. 1285, 1291 n. 7 (E.D.Pa.1987). CERCLA expressly conditions the amount of contribution on the application of equitable considerations. As Hercules explained, if the tract’s price is reduced to allow for future environmental clean-up claims, the purchaser should not be entitled to double compensation. Nonetheless, the amount of the discount, if any, the cost of response, and other considerations may enter into the allocation of contribution by the district court in its exercise of discretion. We conclude, therefore, that under CERCLA the doctrine of caveat emptor is not a defense to liability for contribution but may only be considered in mitigation of amount due. II. The elimination of the caveat emptor defense does not resolve all the issues on this appeal. Other factors complicate the ultimate result. This is not a straightforward suit between vendor and vendee. As defendants point out, they never owned or operated the facility. We assume at this juncture— but absent findings do not determine — that Carey previously owned the land and produced the asbestos scrap pile which precipitated the EPA action. Through a series of transactions beginning in 1967, the interest of Carey apparently settled in the hands of defendants Celotex and Rapid-American. The parties do not dispute these facts in the current procedural posture of the case; however, plaintiff argues that defendants are responsible for Carey’s derelictions on a theory of corporate successor liability. Other corporate reorganizations during the relevant period have not been fully explored in the record. Nevertheless, the factual picture of these transformations that has emerged is clear enough to discuss the general concept of successor liability as it may apply in CERCLA actions. Corporate successor liability is neither completely novel nor of recent vintage. Blackstone described the continuing vitality of a corporation. “[A]ll the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies; in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant.” 1 W. Blackstone, Commentaries *467-69, quoted in Polius v. Clark Equip. Co., 802 F.2d 75, 77 (3d Cir.1986). Changes in ownership of a corporation’s stock will not affect the rights and obligations of the company itself. The corporation survives as an entity separate and distinct from its shareholders even if all the stock is purchased by another corporation. In general, when two corporations merge pursuant to statutory provisions, liabilities become the responsibility of the surviving company. “In case of merger of one corporation into another, where one of the corporations ceases to exist and the other corporation continues in existence, the latter corporation is liable for the debts, contracts and torts of the former, at least to the extent of the property and assets received, and this liability is often expressly imposed by statute.” 15 W. Fletcher, Cyclopedia of the Law of Private Corporations § 7121, at 185 (rev. perm. ed. 1983). Similarly, where a new corporation is created by consolidation, unless otherwise provided by statute, the new company assumes the debts and liabilities of the constituent companies and “is entitled to avail itself of the same defenses as were available to the old companies.” See id. § 7117, at 178. When no statutory merger or consolidation occurs, but one corporation buys all of the assets of another, the successor will not be saddled with the seller’s liability except under certain conditions. See Poli-us, 802 F.2d at 77; Hercules, 762 F.2d at 308. The record here indicates that nothing other than statutory mergers or consolidations occurred; therefore, the sale of assets or the de facto merger doctrines do not appear pertinent. It is not surprising that, as a hastily conceived and briefly debated piece of legislation, CERCLA failed to address many important issues, including corporate successor liability. The meager legislative history available indicates that Congress expected the courts to develop a federal common law to supplement the statute. See United States v. Bliss, 667 F.Supp. 1298, 1308 n. 8 (E.D.Mo.1987); United States v. Chem-Dyne Corp., 572 F.Supp. 802, 808 (S.D.Ohio 1983). The concerns that have led to a corporation’s common law liability of a corporation for the torts of its predecessor are equally applicable to the assessment of responsibility for clean-up costs under CERCLA. The Act views response liability as a remedial, rather than a punitive, measure whose primary aim is to correct the hazardous condition. Just as there is liability for ordinary torts or contractual claims, the obligation to take necessary steps to protect the public should be imposed on a successor corporation. The costs associated with clean-up must be absorbed somewhere. Congress has emphasized funding by responsible parties, but if they cannot be ascertained or cannot pay the sums necessary, federal monies may be used. Expenses can be borne by two sources: the entities which had a specific role in the production or continuation of the hazardous condition, or the taxpayers through federal funds. CERCLA leaves no doubt that Congress intended the burden to fall on the latter only when the responsible parties lacked the wherewithal to meet their obligations. Congressional intent supports the conclusion that, when choosing between the taxpayers or a successor corporation, the successor should bear the cost. Benefits from use of the pollutant as well as savings resulting from the failure to use non-hazardous disposal methods inured to the original corporation, its successors, and their respective stockholders and accrued only indirectly, if at all, to the general public. We believe it in line with the thrust of the legislation to permit — if not require — successor liability under traditional concepts. See Oner II, Inc. v. E.P.A., 597 F.2d 184 (9th Cir.1979). As recounted above, because the district court in this case held that the caveat emptor doctrine precluded the plaintiffs recovery, it had no occasion to consider the question of successor liability. Consequently, the record contains no factual findings or rulings on the legal effect of the various statutes which might affect the liability passed on through merger or consolidation. In resolving the successor liability issues here, the district court must consider national uniformity; otherwise, CERCLA aims may be evaded easily by a responsible party’s choice to arrange a merger or consolidation under the laws of particular states which unduly restrict successor liability. Cf. United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726 (8th Cir.1986), cert. denied, — U.S. —, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987). The general doctrine of successor liability in operation in most states should guide the court’s decision rather than the excessively narrow statutes which might apply in only a few states. To summarize, our study of CERCLA persuades us that Congress intended to impose successor liability on corporations which either have merged with or have consolidated with a corporation that is a responsible party as defined in the Act. We will remand to the district court for further proceedings to fully explore that issue in light of the circumstances. III. The parties have not briefed nor raised the question of retroactivity as it pertains to the liability of a party for actions which occurred before enactment of CERCLA in 1980, or before passage of the amendments establishing contribution in 1986. Consequently, we do not rule on that issue but commend it to the district court for review and resolution. See Northeastern Pharmaceutical & Chem. Co., 810 F.2d at 732; United States v. Rohm & Haas Co., 669 F.Supp. 672, 676-77 (D.N.J.1987); Mayor of Boonton v. Drew Chemical Corp., 621 F.Supp. 663, 668 (D.N.J.1985); United States v. Tyson, 25 Env.Rep.Cas. (BNA) 1897, 1908-09 (E.D.Pa.1986) [available on WESTLAW, 1986 WL 9250]; United States v. Price, 523 F.Supp. 1055, 1071-72 (D.N.J.1981), aff'd, 688 F.2d 204 (3d Cir. 1982). For commentary and a collection of related cases see Blaymore, Retroactive Application of Superfund: Can Old Dogs Be Taught New Tricks?, 12 B.C.Envtl.Aff. L.Rev. 1 (1985); Freeman, Inappropriate and Unconstitutional Retroactive Application of Superfund Liability, 42 Bus. Law. 215 (1986); Developments, Toxic Waste Litigation, 99 Harv.L.Rev. 1458, 1539, 1555 (1986). The judgment of the district court will be vacated and the case will be remanded for further proceedings consistent with this opinion. At the time of oral argument on this case, the Honorable Joseph F. Weis, Jr., was an active circuit judge. Since that time, Judge Weis has assumed senior status. . The duty of inspection implicit in caveat emptor has not been ignored in CERCLA. Congress, however, approached that obligation from a different perspective and imposed stringent limitations. The Act relieves a landowner from initial liability on proof that after "all appropriate inquiry ... consistent with good commercial or customary practice" the owner had no reason to know of the presence of a hazardous substance. 42 U.S.C. § 9601(35)(B). Nothing in the statute, however, proscribes contribution from a previous owner that has been unable to establish the defense or is otherwise found liable. . For commentary on this aspect of successor liability, see Barnard, EPA’s Policy of Corporate Successor Liability Under CERCLA, 6 Stan.Envtl. LJ. 78 (1986-87); Note, Successor Corporate Liability for Improper Disposal of Hazardous Waste, 7 W.New Eng.L.Rev. 909 (1985). The EPA in a 1984 memorandum of its counsel has taken the position that a successor corporation is liable for the acts of its predecessor under a "continuity of business operation approach." EPA Memorandum, “Liability of Corporate Shareholders and Successor Corporations for Abandoned Sites under CERCLA,” Courtney M. Price, Assistant Admin. for Enforcement and Compliance Monitoring (June 13, 1984).

Caldwell v. Gurley Refining Co.

LIMBAUGH, District Judge. On July 15, 1970, R.A. Caldwell leased certain land to Gurley Refining Company to be used by Gurley as a waste material dumping site. Thereafter, Gurley dumped oil sludge and waste materials from its West Memphis plant into a pit on the leased ground. Although the lease was to run ten years, Gurley terminated it in 1976 representing to Caldwell that the pit had been properly sealed. The pit had not been sealed adequately as hazardous substances leaked from the pit into the St. Francois and Mississippi Rivers. The Environmental Protection Agency (EPA), the United States Coast Guard and certain Arkansas state agencies informed both Caldwell and Gurley that they would be held responsible for all costs incurred in cleaning the spill. This action was brought by Caldwell against Gurley Refining Company invoking the provisions of the Declaratory Judgment Act, 28 U.S.C. § 2201. Caldwell requested the District Court to determine his rights and obligations and those of Gurley under the lease and in particular Caldwell’s right of indemnity against Gurley, if any, resulting from liability to the EPA for cleanup operations. At trial, Caldwell claimed that as the result of Gurley’s operations under the lease and in violation of its terms, widespread pollution of the navigable streams of the United States and the State of Arkansas had occurred and that he is subjected to the claims of E.P.A. for past and future cleanup operations of the lease site. Gurley contended that the lease was terminated by mutual agreement on February 12, 1976 and the storage pit area became Caldwell’s responsibility after that date. The matter was tried to a jury with interrogatories as to the factual issues being submitted to which the jury answered. On the basis of the jury findings, the court entered a declaratory judgment in favor of Caldwell holding that the lease of July 14, 1970 remained in effect for its full term of ten years and that Gurley is responsible during that term for all pollution occurring to the navigable waterways of the United States and the State of Arkansas and their tributaries from operations of Gurley at the lease site. The court ruled further that if Caldwell “is required to pay any claim or judgment to the state or federal agencies for pollution occurring at the site during the ten year period of the lease”, Caldwell is entitled to full indemnity from Gurley. We affirm the judgment of the trial court. On this appeal, Gurley suggests there are four areas in which the trial court erred. The first is that the court had no jurisdiction for purposes of declaratory relief with regard to the oil removal since no “actual controversy” existed at the time of the court’s action. The second is that Gur-ley should not be responsible for any cleanup operations as there is no residual liability of a lessee after the lease has terminated. In the third instance, Gurley asserts the credible evidence is that the lease terminated in 1976 and the court could not assess responsibility to it after that date. Finally, Gurley maintains the court erred in giving jury instructions six, seven and eight and interrogatories one through five. I. Jurisdiction Gurley maintains that as neither federal nor state authorities have asserted a claim for recovery of the waste cleanup costs against either party, there is no “actual controversy” between the parties. If no actual controversy exists, the court has no jurisdiction to order declaratory relief. (The jurisdictional issue was raised for the first time in post-trial motions). The law provides that: “In a case of actual controversy within its jurisdiction ... any court of the United States ... may declare the rights and other legal relations of any interested party seeking such declaration ... ”. 28 U.S.C. § 2201. The right to a jury trial in declaratory judgment actions is authorized by Rule 57, Federal Rules of Civil Procedure. The rule also provides that “the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.” The jury found from a preponderance of the evidence that Gurley discharged oil or a hazardous substance into the navigable waters of the United States in violation of state and federal statutes as the result of its operations on land leased from Caldwell on July 14, 1970, (the lease was to begin July 15, 1970); that Gurley breached the lease with Caldwell by failing to comply with conditions imposed by the Arkansas Department of Pollution Control and Ecology in its letter of July 17, 1970; that the lease was terminated by agreement of the parties on February 12, 1976, but that at such time Gurley misrepresented to Caldwell it had satisfied the Arkansas Pollution Control Commission as to measures it had taken to prevent pollution and Caldwell relied on this misrepresentation in agreeing to terminate the lease in 1976. There was ample evidence to support these findings and the trial court’s subsequent judgment that if Caldwell is required to pay any claim or judgment to the state or federal agencies for pollution occurring at the site during the ten-year period of the lease, Caldwell is entitled to full indemnity from Gurley. The evidence reveals that in 1969, Gurley had been seeking ways in which it might dispose of its refinery waste matter. Conferences were had with the Arkansas Pollution Control Commission which led to the issuance of a Commission order on February 1, 1970 prohibiting Gurley from discharging its waste on the banks of the Mississippi River or into any of the waters of the State or in any other location where the wastes are likely to cause pollution. Gurley was further ordered to submit an application to the Commission for a permit for a system adequate to dispose of its wastes. On July 15, 1970, Gurley entered into a ten-year lease with Caldwell to use Caldwell’s land as a dumping pit for Gurley’s waste. Thereafter, Gurley’s waste, which was toxic, was dumped in a pit on Caldwell’s land. The Arkansas Commission issued Gurley a permit on September 25, 1970 to operate the waste disposal system at the Caldwell location. After usage for almost five years, Gur-ley sought to curtail its operation of the Caldwell land and notified the Arkansas Pollution Control Board that it would cease dumping there on or before September 30 1975. At this stage Gurley had engineered a disposal system for its waste at an on-plant site m West Memphis, Arkansas. Authority to cease usage of the Caldwell land for disposal purposes was given Gur-ley on December 31, 1975, provided he follow certain procedures designed by Irby Seay, Gurley’s consulting engineer. This approval admonished Gurley that it did not relieve it “of responsibility in the event that pollution problems occur from these pits in the future.” Gurley did eliminate its dumping on Caldwell’s land and paid him an agreed sum of $4,000 as a balance due on the lease. Gur-ley told Caldwell all requirements of the state and federal environmental protection agencies had been met which induced Caldwell to accept the final payment. Actually, Gurley did not fulfill these requirements and a discharge occurred in 1978 and 1979. EPA engineers had determined by May 30, 1978 that the pit, seven to ten acres in size, had overflowed into a 15-mile bayou and “that the pit will be a real problem for many years to come if it is allowed to remain as it is now.” On July 12, 1978 the EPA notified Caldwell and Gurley by telegram, which was followed later by letter, that an oil pollution incident had occurred at the abandoned Caldwell pit for which each party was considered responsible, The parties were admonished that if they did not remove the pollutant by July 17, 1978, the government would, and “you (Caldwell and Gurley) will then be held responsible for any actual costs incurred by the federal government under limitation set forth in Sec. 311(c) of the Clean Water Act.” Thereafter, Gurley attempted unsuccessfully to remedy the problem and Caldwell was notified by EPA on July 19, 1978 that Gurley’s efforts were unsatisfactory and the government would remove the pollutants. 0n DeCember 6, 1982, the United States Coagt Guard notified Caldwen that harmful oil from the pit wag discharged from May ^ 1978 to April 4 1979 and a hearing was to be hdd ag to „civi] penalty proceedings.” A preliminary determination was made by ^ Coagt Guard that Caldweirs penalt would fce $5000; howevei. atthe time of trial final assessments had not been made, The Coast Guard told Caldwell that when fjnai penalties were determined, “recovery of these costs will be the subject of a separate action.” „ ,, Caldwe11 ^ed this declaratory judgment actl0n m 1979 but the ease was not tried untl1 0ctober 3- 1983' The Court finds that this brief recitation of the facts gives rise to proper jurisdiction under the Declaratory Judgment Act. 28 U.S.C. § 2201, In determining whether there is an “actual controverSy” between Caldwell and Gurley within the meaning of 28 U.S.C. § 2201, the test is whether “there is a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941); Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972). The controversy must be definite and concrete touching the legal relations of parties having adverse legal interests. The questions presenting a controversy must not be abstract but must define issues which are concrete and specific. Cass Cty. v. United States, 570 F.2d 737, 740 (8th Cir.1978). A live dispute must exist between the parties at the time of the court’s hearing. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). In the instant case, there was a live dispute between Caldwell and Gurley at the time of filing suit in 1979 which blossomed by the time of trial on October 3, 1983. EPA had notified both parties in the summer of 1978 that there was an oil spill which one or both would be accountable for. The government cleaned up the spill after having told the parties they would be responsible for the costs incurred. Prior to this time, Caldwell had agreed to an early termination of its lease with Gurley on the misrepresentation that the pit had been properly sealed by Gurley in compliance with state and federal standards. After suit was filed, and before trial, the Coast Guard notified the parties it would hold a hearing to determine the actual penalties or costs involved in the clean-up and these would be assessed against one or both parties. The estimated penalty was $5,000 and the hearing was not completed at the time of this trial. An analogous situation is presented in those cases where government representatives are threatening enforcement of their rules and challenges are made as to the government’s authority. In such cases, a plaintiff need not always await the actual commencement of enforcement proceedings to challenge the authority under which those proceedings would be brought. However, for such an action to present a justiciable controversy, the threat of enforcement must have immediate coercive consequences of some sort upon the plaintiff. Nuclear Engineering Co. v. Scott, 660 F.2d 241, 252 (7th Cir.1981); Lake Carriers’ Assn. v. MacMullan, supra. In Lake Carriers, plaintiffs sought a declaration that a Michigan statute regulating sewage discharge impinged on their federal rights. At the time the action was commenced, the state officials had yet to seek compliance with the statute by way of an enforcement proceeding. As state officials were actively employing the threat of future enforcement to obtain current compliance with certain provisions of the statute, the court found the controversy to be sufficiently real and immediate. Id. 406 U.S. at 507-08, 92 S.Ct. at 1755-56. Here, EPA notified the parties that either or both would be required to pay the government for its cost in clearing up a spill occasioned by the use by Gurley of Caldwell’s land. Later, the Coast Guard notified them that the preliminary estimate of a penalty would be $5,000.00 and at the time of trial, hearings were in progress to determine the actual penalty. These events certainly created an actual controversy between the parties which was real and immediate. Gurley maintains, nevertheless, that jurisdiction still is not present as the federal government is barred by limitation from bringing any action against the parties to assess or collect the clean-up costs as a penalty. If the government has no legal standing to maintain suit against both parties, obviously, there could be no controversy. The government has two distinct causes of action against Caldwell and Gurley under the Clean -Water Act. The first is to recover removal costs pursuant to 33 U.S.C. § 1321(f)(2). The second is to assess a civil penalty pursuant to 33 U.S.C. § 1321(b)(6)(B). An exception to the concept of sovereign immunity being vested in the United States is 28 U.S.C. § 2415. Subsection (a) of § 2415 sets a six-year limitation period for the government to claim money damages by suit when the claim is founded “upon any contract express or implied in law or fact.” Subsection (b) sets a three-year limitation period when the government’s claim is founded in tort. Gurley maintains that any action the government would have against it or Caldwell is founded in tort, i.e., the wrongful discharge into the inland waterway sys-terns. The government’s cause of action accrues on completion of the oil removal operation. United States v. Barge Shamrock, 635 F.2d 1108, 1111 (4th Cir.1980). The record reveals that clean-up operations began on July 19, 1978 but is silent as to when the operations were completed. We assume soon after July 19, 1978. Thus, as to that spill, if the three-year statute of limitations applies suit would need to have been instituted by the United States against Gurley of Caldwell no later than July 19, 1981 or shortly thereafter. At trial on October 3, 1983, no evidence was introduced to show the United States had brought any action against Gurley or Caldwell. Gurley reasons therefore, that as the government is precluded from recovery, the Court has no jurisdiction to determine that Gurley must pay Caldwell any sum he is obligated to pay the United States arising from the spill. Caldwell counters by maintaining that any action the government has against him or Gurley is quasi-contractual as the cleanup benefits the parties and the public. Thus, the six-year limitation period would govern and end on or about July 19, 1984 after the case was tried and the record made. Caldwell also suggests the time could be extended further as the evidence showed the spills occurred up to April 4, 1979. There is no evidence in the record to show the government eradicated any spills occurring up to April 4, 1979 except the clean-up which began July 19, 1978. Only two cases are reported which consider whether government removal cost suits are founded in tort or contract. In United States v. C & R Trucking Co., 537 F.Supp. 1080 (N.D.Va.1982), the Court held the contract theory controlled and applied the six-year limitation period. A tort theory was found appropriate in United States v. P/B STCO 213, 569 F.Supp. 743 (S.D. Tex.1983) and the three-year limitation period was used. The additional claim, which the government may assert against Gurley and Caldwell is for a civil penalty. An action, suit or proceeding for the enforcement of a civil penalty must be commenced within five years from the date when the claim first accrued or it is barred. 28 U.S.C. § 2462, United States v. C & R Trucking Co., supra. On December 6, 1982, Caldwell was notified by the Coast Guard of the hearing to determine penalties that might be assessed resulting from the clean-up operations which began on July 19, 1978. These Coast Guard proceedings were ongoing at the time of trial of the instant case. It is not the function of the Court on this appeal to determine if the United States will prevail in a suit against either or both of the parties in collecting clean-up costs or assessing a civil penalty. Rather, it is sufficient to outline the niceties of the facts to establish that the United States might prevail in either of their claims against the parties here. On suit by the government, a trial court may determine either the tort or the contract theory applies. The fact that a trial court could apply the contract rationale in a clean-up cost suit against Caldwell and Gurley brings the six-year limitation period into play. Such a suit would not have been barred until well after this case was tried. And, too, a trial court could find that the Coast Guard “proceedings” had already commenced substantially within the five-year limitation period which was applicable to a civil penalty determination. Accordingly, we hold that limitation periods applicable to government claims for cleanup costs and civil penalties did not divest the trial court of jurisdiction in this case. II. Residual liability of a lessee after a lease has terminated Gurley next contends it should not have been required to indemnify Caldwell for sums he must pay to the government occasioned by pollution occurring at the lease site. The first reason for the assertion of Gurley as a former lessee is that it is not residually liable for a dangerous condition existing at the time the property was surrendered to Caldwell when the lease terminated. The exception to this rule is that liability continues after the lease terminates if the dangerous condition was created by the former lessee and the lease was prematurely terminated on the premise that the dangerous condition had been rendered safe. There was ample evidence on which the jury could have based its finding that Gurley misrepresented to Caldwell that it had taken approved measures to prevent pollutants escaping from the leased land. Even so, Gurley maintains that the Superfund Act, 42 U.S.C. § 9601 et seq., which governs liability for pollution cleanup cannot be applied retroactively. The Superfund Act became effective in December of 1980, five months after the lease expired by its own terms. Yet the trial courts judgment is not retroactive in fact. A retroactive statute is one which “creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Sturges v. Carter, 114 U.S. 511, 519, 5 S.Ct. 1014, 1018, 29 L.Ed. 240 (1885); United States v. Solvents Recovery Serv., etc., 496 F.Supp. 1127, 1141 (D.Conn.1980). Although the Superfund Act, as one of its purposes, authorizes the government to collect pollution clean-up costs from the pollutees and a landowner, it does not impose new obligations on a landowner and former tenant. If the government or any other person or entity is damaged by Gurley’s wrongdoings while a tenant of Caldwell, the latter is not devoid of a remedy against Gurley. The Superfund Act therefore, is not utilized in the retroactive context as set out in the judgment below. There is no need to remand the case for further proceedings as to the degree of responsibility of Gurley and Caldwell as urged by Gurley. As previously detailed, the jury had sufficient evidence on which to base its finding that Gurley was entirely responsible for the pollution. III. Extent of the lease term The lease between Caldwell and Gurley began July 15, 1970 and was to end ten years later. It was terminated, in fact, on or about February 12, 1976. Gurley insists, therefore, the lower court erred in requiring it to indemnify Caldwell for pollution occurring through July 15, 1980. The jury found that when the lease was surrendered on February 12, 1976, Gurley misrepresented to Caldwell it had satisfied the Arkansas Pollution Control Commission as to measures it had taken to prevent pollution and that Caldwell relied on this misrepresentation in agreeing to terminate the lease. In effect, the jury concluded that but for the misrepresentation, Caldwell would not have terminated the lease. As there was substantial evidence to support this finding and the court’s judgment thereon, it will not be overturned. Alabama Great Southern R. Co. v. Chicago and N.W. Ry. Co., 493 F.2d 979, 983 (8th Cir.1974); Leathers v. United States, 471 F.2d 856, 858 (8th Cir.1972), certiorari denied 93 S.Ct. 2754, 412 U.S. 932, 37 L.Ed.2d 161. IV. Instructions Gurley argues finally that the trial court erred in the giving of Instructions, six, seven and eight and in the submission to the jury of interrogatories one through five. Instruction six states that every person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will obey the law. Instruction seven quotes 33 U.S.C. § 1321(b)(3) “the discharge of oil or hazardous substances into or upon the navigable waters of the United States is prohibited.” Whether the evidence has proven that the parties have violated this provision of the Act is for you to determine. Instruction eight is similar to instruction seven except it quotes the provisions of Section 47-801(J), Ark.Stat. Annotated, which also states it is unlawful to pollute waters in Arkansas. The Court has examined all instructions given to the jury including the ones complained of and finds that they correctly stated the law, were fair and that no prejudicial error resulted in their submission. Leathers v. United States, supra at 863. There was also no prejudicial error in the giving of interrogatories one through five. Much of Gurley’s complaints about the interrogatories have been discussed in the previous assignments of error. There was substantial evidence to support the interrogatories and they were properly submitted to and answered by the jury. Leathers v. United States, supra at 863. Having considered all assignments of error raised by Gurley, we conclude the judgment should be affirmed.

Medical Waste Associates Ltd. Partnership v. Mayor of Baltimore

OPINION MacKENZIE, Senior District Judge: This is an appeal from an Order of the district court granting appellee’s Motion for Summary Judgment and denying appellant’s Motion for Summary Judgment. BACKGROUND In 1988, appellant, Medical Waste Associates Limited Partnership (“Medical Waste”), initiated a plan to build a medical waste incinerator in the Baltimore area. As required by the city code, Medical Waste sought and received on June 26, 1989, from the Mayor and City Council of Baltimore a zoning approval for the conditional use for building and operating an incinerator in the city. This zoning ordinance, Ordinance 323, provides in part: SECTION 1. BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF BALTIMORE, that permission is hereby granted to Medical Waste Associates, a Maryland Limited Partnership, for the construction and operation of an incinerator for the disposal of special medical waste, ... and subject to final licensure by the State Department of the Environment. Sec. 2. AND BE IT FURTHER ORDAINED, that use of the incinerator will be restricted to facilities located within the following political subdivisions participating in the Northeast Maryland Waste Disposal Authority: Baltimore City, Baltimore County, Anne Arundel County, and Harford County. Also inclüded in the ordinance are several paragraphs explaining that the ordinance was being passed so that the city’s system of medical waste disposal would comply with emergency regulations of the Maryland Department of Health and Mental Hygiene and the Maryland Department of the Environment. Medical Waste now argues that section 2 of the ordinance violates the Commerce Clause of the United States Constitution. A dispute over the geographical restrictions in section 2 arose when Medical Waste contended that it had to import waste from areas not allowed by the section in order for it to adequately test its 150 ton incinerator. Medical Waste first raised this issue in a letter from its president, William Boucher, III, to the Mayor of Baltimore, dated April 24, 1990. In the letter, Mr. Boucher reported that the construction program was over “fifty percent complete” and argued that while Ordinance 323 would limit the source of waste once the facility was in operation, this limitation ought not apply during the testing phase. Indeed, Mr. Boucher assured the Mayor in his final sentence: “Obviously, when we are in use we will be limited as anticipated by all relevant regulations.” The Mayor responded in a letter dated April 30, 1990, that he “do[es] not and will not support any proposal that would allow non-Baltimore area medical waste to be dispqsed of at the [Medical Waste] facility.” The Mayor also explicitly raised the question of whether the facility needed this outside waste for a successful test. In a short, direct response to this question, Mr. Boucher replied on May 3,. 1990: The community leaders of Brooklyn are not right regarding the claim that the facility needs waste from outside the Baltimore area. We will be successful when we operate. Our problem is only in pre-operating testing. After this initial volley, the issue apparently did not come to the forefront again until late April of 1991 when Medical Waste formally applied for its Final Use and Occupancy Permit. It was not until then, after completion of the facility and almost two years after the passage of Ordinance 323, that Medical Waste first contested the constitutionality of section 2. See Complaint for Declaratory Relief at 6 (Joint Appendix at 18). In other words, as late as February of 1991,. Medical Waste expressed itself as completely in accord with the ordinance, but once the facility was complete and ready to become operational, Medical Waste wanted the section 2 limitations declared unconstitutional. Because of this refusal to abide by section 2, the City, on May 29, 1991, formally denied Medical Waste’s application for a Final Use and Occupancy Permit. In early June, Medical Waste brought the Declaratory Judgment action currently before the Court. STANDARD OF REVIEW An appellate court reviews a grant of summary judgment de novo, applying the same standard as that applied by the district court. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127 (4th Cir. 1987). The applicable standard is that “summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law.” Miller v. Leathers, 913 F.2d 1085 (4th Cir. 1990) (en banc), cert. denied, - U.S.-, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). As stated earlier, because the district court found that Ordinance 323 did not violate the Commerce Clause, the court granted appellee’s Motion for Summary Judgment, and denied appellant’s same motion. See Medical Waste Assoc. Ltd. Partnership v. Mayor of Baltimore, Civ. No. S 91-1547 (D.Md. Aug. 29, 1991). It is from this decision that Medical Waste has appealed. Commerce Clause The Commerce Clause limits the extent to which states may seal off their borders from the flow of interstate commerce. Indeed, the Supreme Court in City of Philadelphia v. State of New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978), held that a state may not close off its boundaries to an article of commerce regardless of the nature of that commerce. In that case, the Court struck down a New Jersey statute which prevented all out-of-state trash from being accepted by landfills within the State of New Jersey. In so doing, the Court set out a two tier test for analyzing statutes which impact interstate commerce: The opinions of the Court through the years have reflected an alertness to the evils of “economic isolation” and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation, a virtual per se rule of invalidity has been erected (citation omitted). The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders (citations omitted). But, where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). City of Philadelphia v. State of New Jersey, 437 U.S. 617, 623-24, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978). In Pike the Court set out a less restrictive test commonly referred to as the Pike balancing test. Under that test, “[wjhere [a] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) (citation omitted.) Therefore, when a statute does not fall within the per se rule of City of Philadelphia, the Pike test will apply to determine whether the statute passes muster under the Commerce Clause. We believe that the per se rule of City of Philadelphia does not apply to the case at bar for several reasons. First, and most importantly, Ordinance 323 on its face does not discriminate against out-of-state waste being brought into the City of Baltimore. Unlike the statute in City of Philadelphia, which banned all out-of-state trash from entering the entire State of New Jersey, the statute in question here bans medical waste from only one facility within a city. We believe that to fall within the purview of the per se rule enunciated in City of Philadelphia, a statute must, either on its face or in its practical effect, discriminate against waste entering a political subdivision such as a city, county or state. Merely excluding out-of-state waste from one facility within a region will not result in a per se violation unless the exclusion has the practical effect of restricting waste from entering the political subdivision involved. Second, under the “market participant” exception, as enunciated in Hughes v. Alexander Scrap Corp., 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed.2d 220 (1976), and Reeves, Inc. v. Stake, 447 U.S. 429, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980), the City of Baltimore could have built and operated the medical waste facility itself and reserved the entire capacity of the facility for its residents. We believe that by adopting a rule incorporating a “single facility” exception to the per se rule of City of Philadelphia, we reconcile the “market participant” rule with the practical way that cities and counties solve regional waste problems. Specifically, by adopting a rule which allows a city to restrict a single facility’s use to its residents, we allow a city to use private capital to solve a regional problem which might otherwise be too costly as a credit impairment for the city to undertake on its own. Indeed, forcing a city to choose between building a waste facility itself, or allowing waste from outside the region to overwhelm a privately built facility, could result in regional waste problems remaining unsolved. The Ninth Circuit, confronted with a situation almost parallel to this case, also concluded that the per se rule did not apply when the restriction against out-of-state waste involved a single facility. See Evergreen Waste Systems, Inc. v. Metropolitan Serv. Dist., 820 F.2d 1482 (9th Cir.1987). In Evergreen, the Metropolitan Service District, a municipal entity which operated a single landfill, adopted an ordinance barring from that landfill waste from outside its three county district. Id. at 1483. In upholding the ordinance, the Evergreen court reached the Pike balancing test because: Unlike New Jersey’s total ban on out-of-state waste, Metro’s ordinance applies to only one of Oregon’s many landfills and bars waste from most Oregon counties as well as out-of-state waste. [The ban] therefore does not fit the Court’s paradigm of a per se violation: “a law that overtly blocks the flow of interstate commerce at a State’s borders.” Id. at 1484; see also BFI Medical Waste Sys., Inc. v. Whatcom County, 756 F.Supp. 480, 484 (W.D.Wash.1991) (following City of Philadelphia instead of Evergreen because ordinance was not limited to a single facility). In conclusion, we agree with the district court that the case before us is “remarkably similar” to Evergreen and agree with that court that a “single facility” exception to the broad per se rule of City of Philadelphia is appropriate. Having found that the statute is not a per se violation of the Commerce Clause, we now analyze Ordinance 323 under the Pike balancing test. Accordingly, we turn to whether the ordinance (1) effectuates a legitimate local public interest, (2) has only an incidental effect on interstate commerce, and (3) does not impose a burden on commerce that is clearly excessive in relation to the putative local benefits. See Pike, 397 U.S. at 142, 90 S.Ct. at 847. Without pause, we agree with the district court that the ordinance satisfies these criteria and, therefore, is constitutional. Certainly, the purpose of the ordinance, which was to meet emergency regulations and to prevent medical waste from polluting Chesapeake Bay and the landfills of Baltimore, “effectuates a legitimate local public interest.” Creating a regional facility limited to a specific geographical area ensures that all of the waste from that area will be properly disposed of. Any burden on interstate commerce that might exist, of which plaintiff has offered no evidence, is only of an incidental nature and is not “clearly excessive” in light of the proper disposal of a whole region’s infectious and noninfectious medical waste. Moreover, as previously noted, Ordinance 323 involves only one facility in one city in Maryland. If demand so requires, Ordinance 323 does not prohibit another incinerator from being built nor preclude the City Council from allowing a second facility in Baltimore to expand. This Court concludes that Ordinance 323 satisfies the Pike balancing test and, that the ordinance is constitutional. Constitutional Estoppel Probably unnecessary for decision since we conclude that Ordinance 323 does not violate the Commerce Clause, we are nevertheless troubled by Medical Waste’s conduct during negotiations with the City of Baltimore following the passage of the ordinance. The United States Supreme Court in various contexts has repeatedly held that “[i]t is an elementary rule of constitutional law that one may not ‘retain the benefits of the Act while attacking the constitutionality of one of its important conditions.’ ” Fahey v. Mallonee, 332 U.S. 245, 255, 67 S.Ct. 1552, 1557, 91 L.Ed. 2030 (1947) (citing United States v. City & County of San Francisco, 310 U.S. 16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 1050 (1940)); see also Arnett v. Kennedy, 416 U.S. 134, 152-53, 94 S.Ct. 1633, 1643-44, 40 L.Ed.2d 15 (1974). The ideas expressed in the Fahey and Arnett opinions cast considerable doubt on appellant’s challenge to Ordinance 323. First, in Fahey v. Mallonee, the Supreme Court found that shareholders of a savings and loan association created under an act of Congress were estopped from challenging in a derivative action the very Act under which it was created. Fahey, 332 U.S. at 255-56, 67 S.Ct. at 1557. The Court wrote: “It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions.” Id. at 256, 67 S.Ct. at 1557. More recently, the Court addressed a challenge that the procedures for removal of nonprobationary federal employees under the Lloyd-La Follette Act were unconstitutional. See Arnett v. Kennedy, supra. Justice Rehnquist, writing for a plurality, stated: We believe at the very least [constitutional estoppel] gives added weight to our conclusion that where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet. Arnett, 416 U.S. at 154, 94 S.Ct. at 1644. Justice Rehnquist went on to express his concern that the Court would be interfering with a legislative compromise [emphasis added] with the result that the Court would be “holding that federal employees had been granted ... not merely that which Congress had given them in the first part of a sentence, but that which Congress had expressly withheld from them in the latter part of the same sentence.” Id. Like the bank in Fahey, this medical waste incinerator would not exist in Baltimore today if it were not for the passage of Ordinance 323 which Medical Waste very actively pursued. Furthermore, the record indicates that the passage of Ordinance 323, which allowed the construction of the incinerator, was a politically explosive issue. Section 2 was the compromise that allowed the ordinance to pass. Certainly, the affidavits of four members of City Council would indicate this to be so. Consequently, like Justice Rehnquist in Ar-nett, this Court is inclined to find that Medical Waste must “take the bitter with the sweet.” That Medical Waste was under no pressure to enter the project supports this position. Medical Waste knew of and completely acquiesced to the limitations imposed by section 2 before construction of the incinerator ever began. As the correspondence between the parties shows, for two and one-half years after the passage of Ordinance 323, Medical Waste assured the City Council and Mayor of Baltimore that it would comply with the geographical limitations. Not until very late in the process, after the incinerator was ready to become operational, did Medical Waste raise the specter of a constitutional violation. Medical Waste argues that cases such as Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), demonstrate that a party may accept the benefit of certain programs without losing the right to challenge their constitutionality. A case the appellants failed to raise, but which clearly presents their argument, is Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). The Kadrmas Court addressed a scenario where a student challenged a North Dakota statute which permitted some school districts to charge a user fee for bus service. Before challenging the statute on constitutional grounds, the student partially paid the fee and regularly took the bus to school. The defendants argued that this acceptance of the benefit of bus service estopped the student from challenging the statute’s constitutionality. Id. at 456, 108 5.Ct. at 2486. Rejecting this argument, the Court distinguished the Fahey decision because the students did not owe their existence to a statute. Id. The Court continued, “and we doubt that plaintiffs are generally forbidden to challenge a statute simply because they are deriving some benefit from it.” Id. at 456-57, 108 S.Ct. at 2486. Nevertheless, by distinguishing Fahey the Court indicated that the doctrine of estop-pel still applied where a plaintiff wasn’t gaining simply any benefit from the statute, but instead owed its very existence to the statute, which is the case here. This Court refuses to interpret one sentence as destroying a constitutional doctrine that the Court at one time referred to as “an elementary rule of constitutional law.” Fahey, 332 U.S. at 255, 67 S.Ct. at 1557. In this case Medical Waste is a commercial entity that made a business decision to build an incinerator. We do not have before us individuals that blindly benefitted from statutes of questionable constitutionality as are involved in the cases appellant raises. At the least, and at the outset, the doctrine of constitutional estoppel makes this Court skeptical of appellant’s claim. CONCLUSION Because we conclude that Ordinance 323 does not violate the Commerce Clause, we affirm the district court’s grant of summary judgment in favor of Appellee and its denial of the summary judgment to the Appellant. AFFIRMED. . To obtain a final operating permit, the Medical Waste incinerator must test at full capacity, which would be at 150 tons. . Mr. Boucher supported this argument with a legal memorandum from Neil Ruther, counsel for Medical Waste. At no point in the seven page memorandum did counsel argue that section 2 was unconstitutional. See Joint Appendix at 52-59. .The record contains a letter dated February 6, 1991, from Consumat Systems, Inc., the company apparently responsible for the testing of the facility, to the Maryland Department of the Environment. The letter reiterates the position that outside waste was needed for testing only and that once the facility was operational, the acceptance of this outside waste would cease. See Joint Appendix at 65. . Appellant vehemently asserted at oral argument that it has contractually agreed to satisfy in full the demands for disposal of medical waste in the area and, therefore, there is no need to limit the source of waste for the incinerator. Nevertheless, contracts can be breached and new hospitals or medical facilities can be built. Thus it is quite proper for the city to want to guarantee the full, capacity of the incinerator for regional use. . Although appellant argues that the city's refusal to allow a second facility to expand indicates a closing off of interstate commerce, correspondence in the record indicates that it was Medical Waste which opposed the allowing of individual hospitals to renovate their on-site incinerators. See Joint Appendix at 49. . See Joint Appendix at 85-97 (stating that without section 2 they would not have voted for Ordinance 323). The final vote on the ordinance was 10 for and 7 against with 2 absent. See id. at 76.

Chevron Chemical Co. v. Costle

OPINION OF THE COURT GIBBONS, Circuit Judge. Chevron Chemical Company (Chevron) appeals from an order of the district court denying its motion for a preliminary injunction and granting the motion of the defendant, Douglas M. Costle, Administrator of the United States Environmental Protection Agency (EPA). Chevron’s amended complaint alleges that EPA possesses test data submitted by it in order to obtain registration for sale in interstate commerce of the pesticide naled and fungicide paraquat, and seeks preliminary injunctions prohibiting that agency from using such data submitted by Chevron “before, on, or after January 1, 1970” in ruling on applications for registrations for sale of chemically identical pesticides made by other manufacturers. The district court concluded that EPA was entitled to judgment as a matter of law. We affirm, although on grounds somewhat different from those the district court relied on, 499 F.Supp. 732. I. More than nineteen years ago Chevron obtained patents on a pesticide, naled, and a fungicide, paraquat. Both are chemical compounds effective in controlling fungus and insect damage in agricultural products. Those patents expired in February, 1978, and thus the right to make, use and sell naled and paraquat became a part of the public domain. When the compounds were patented, however, the issuance of patents did not confer on Chevron the right to sell those compounds in interstate commerce for agricultural use. Federal law has regulated the sale in interstate commerce of agricultural fungicides and pesticides since the passage of the Insecticide Act of April 26, 1910, c. 191, 36 Stat. 335. In 1947 more stringent regulations were adopted, requiring registration of such compounds prior to sale in interstate commerce, and requiring, as a condition to registration, that the applicant submit test data to demonstrate to a federal regulatory agency the product’s safety and efficacy. Federal Insecticide, Fungicide and Rodenticide Act of June 25, 1947, c. 125 §§ 2-13, 61 Stat. 163-72; 7 U.S.C. § 135 et seq., superceded by 7 U.S.C. § 136 et seq. Originally the registration function was housed in the Department of Agriculture, and later in the Food and Drug Administration, but in 1970 that function was transferred to EPA, 35 Fed.Reg. 15623 (1970). Beginning in 1955 and continuing to 1979, Chevron submitted to EPA and its predecessor agencies test data supporting its applications for registration of naled. Beginning in 1966 and continuing through 1980, Chevron submitted to those agencies test data supporting its application for registration of paraquat. Both were approved as safe and effective, and have been sold by Chevron and its licensees in interstate commerce in substantial quantities. The test data submitted to the federal agencies involving the results of metabolism, toxicity, efficency, and tolerance testing on plants and animals, required expenditures by Chevron in excess of $1 million, and all of it, except to the extent it was submitted to those agencies, has been maintained in confidence. Indeed, according to Chevron, development of the information required to demonstrate safety and efficacy may be more costly than the research leading to development of the patented chemical compounds. Thus, as between it and its competitors, Chevron takes steps to treat the test data as trade secrets. Prior to October 21,1972, the only federal statute governing treatment of submissions of confidential information to the federal government pursuant to federal regulatory schemes was the Trade Secret Act, 18 U.S.C. § 1905, which provides: Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operation, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment. Thus it can fairly be said that when, prior to October 21, 1972 Chevron submitted data in support of its naled and paraquat registrations, it did so in the expectation that its trade secrets would not be published, divulged, or disclosed. Section 1905 does not, however, deal with agency use of submitted data for its own purposes. The question of agency use did not arise with respect to the naled and paraquat data prior to 1972, however, because Chevron held patents prohibiting others from making, using or selling the compounds as agricultural fungicides or pesticides. In 1972 Congress enacted the Federal Environmental Pesticide Control Act of 1972. Pub.L. 92-516, 86 Stat. 973. This legislation reenacted the registration requirements of the 1947 law and its subsequent amendments, but in the interest of environmental protection provided more stringent test data submission requirements. The lobbying battle over this legislation was intense, and among the features which aroused perhaps the most serious controversy was that embodied in section 3(c)(1)(D): ... If requested by the Administrator, a full description of the tests made and the results thereof upon which the claims are based, except that data submitted in support of an application shall not, without permission of the applicant, be considered by the Administrator in support of any other application for registration unless such other applicant shall have first offered to pay reasonable compensation for producing the test data to be relied upon and such data is not protected from disclosure by section 10(b). If the parties cannot agree on the amount and method of payment, the Administrator shall make such determination and may fix such other terms and conditions as may be reasonable under the circumstances. The Administrator’s determination shall be made on the record after notice and opportunity for hearing. If the owner of the test data does not agree with said determination, he may, within thirty days, take an appeal to the federal district court for the district in which he resides with respect to either the amount of the payment or the terms of payment, or both. In no event shall the amount of payment determined by the court be less than that determined by the Administrator; .. . This section did not authorize disclosure of registrant submissions, but for the first time required that if the agency were to consider the contents of its own files in support of another manufacturer’s application for registration, it must make the new applicant pay “reasonable compensation” to the earlier applicant, whether or not the compound in question was protected by a patent. Section 3(c)(1)(D) of the 1972 Act must be read with section 10(a) of the same act, which allows an applicant to mark which part of the submitted data it considered trade secrets, and with section 10(b) which prohibits EPA from disclosing such trade secrets except as necessary to carry out its statutory duties. See 7 U.S.C. § 136h. The 1972 version of section 3(c)(1)(D) excludes from the use and compensation provisions all section 10(b) data. Section 3(c)(1)(D) of the 1972 Act represents a compromise of what was originally enacted by the House of Representatives. As there proposed, the bill provided that ... if requested by the Administrator, a full description of the tests made and the results thereof [shall be supplied to the EPA], except that data submitted in support of an application shall not, without the permission of the applicant be considered by the Administrator in support of any other application for registration. H.R. 10729 § 3(c)(1)(D). H.Rep.No.92-511, 92d Cong. 1st Sess. at 17 (1971). The effect of the 1972 House Bill was to permit an initial applicant to determine on its own what it considered to be trade secrets, and to require that the Administrator abide by that determination. Thus the Administrator would have been obliged to ignore the contents of the agency files establishing that a new entrant’s compound was both safe and efficacious unless the new entrant duplicated those contents or obtained consent from the old registrant. This would have been true not only of compounds developed by the original applicant, but even of common chemicals in the public domain. The House provision received severe criticism by some members of the House Agriculture Committee, who pointed out that it would give initial applicants a quasi-patent of indefinite duration, would present a substantial bar to entry upon the expiration of patents, and was anticompetitive. Efforts to delete the exclusive use provision by amendment on the House floor were offered and defeated. 117 Cong.Rec.H. 10677-78 (Nov. 8, 1971); H. 10733-40 (Nov. 9, 1971). In the Senate the Agriculture and Forestry Committee supported the House bill’s exclusive use provision, while the Commerce Committee opposed it vigorously, proposing an amendment to strike it. The latter Committee invited comments from the Department of Justice, and from academic antitrust scholars. Acting Attorney General Kleindienst opposed the exclusive use provision as anticompetitive, as did a number of law professors. EPA also criticized the exclusive use provision. Responding to the criticism from the Commerce Committee and elsewhere, the Agriculture and Forestry Committee, relying heavily on a statement by the National Agricultural Chemical Association, defended the exclusive use provision as an encouragement to research toward the development of better and safer pesticides. Eventually the Senate Agriculture and Forestry and Senate Commerce Committees reached the compromise reflected in section 3(c)(1)(D) quoted above. As explained in the Senate report, ... it was decided that fairness and equity required a sharing of the governmentally required cost of producing the test data used in support of an application by an applicant other than the originator of such data. This compromise version survived conference committee action on the bill. The 1972 enactment did not define trade secrets. A trade secret was under section 10(a) anything an applicant wanted so to designate, unless the EPA could obtain a judgment overturning the designation. Material so designated was excepted from agency use pursuant to section 3(c)(1)(D). But absent such a designation, EPA was free to use the contents of its own files (without disclosure) in support of an application by another applicant so long as it required that applicant to pay “reasonable compensation.” Prior to 1972, only 18 U.S.C. § 1905 afforded federal statutory protection for the test data, and that protection was against disclosure outside the agency. Moreover, prior to 1972, the EPA was using the contents of its files, without disclosure, in the approval of me-too applications for registration. In opposing enactment of section 3(c)(1)(D) after the deletion of the exclusive use provision, EPA took the position that it did not need an affirmative grant of authority to continue that practice. Thus prior to 1972, neither as a matter of federal statutory law nor as a matter of agency practice was any proprietary right recognized against the government in the contents of agency files. The compromise in the 1972 Act was, therefore, a victory for the National Agricultural Chemical Association, for its effect was to prohibit agency use in approving registrations of anything designated as a trade secret, and to require payment of compensation for test data which was neither protected by a patent nor designated a trade secret. Moreover, the 1972 Act provided for judicial review of the amount of compensation only at the behest of the original submitter, not the new applicant. The 1972 Act left major retroactivity questions unanswered: (1) whether firms which had submitted data prior to the effective date of the 1972 Act could retroactively designate that data as trade secrets; (2) whether they were entitled to compensation for such previously submitted data; and (3) whether section 3(e)(1)(D) applied to new applications filed before its effective date. Additionally, there was an ambiguity with respect to the effective date. Nor did the 1972 Act specifically address the contention that Chevron advances in this case, that it always had a common law property right in the test data in agency files no matter when submitted, which the government could make no use of without paying compensation. We consider that contention in Part II hereafter. These ambiguities in the 1972 legislation prompted Congress to revisit section 3(c)(1)(D) in 1975. As in 1972, there were major differences of opinion among both legislators and competing lobbyists. In section 12 of the Insecticide, Fungicide, and Rodenticide Act of 1975, Pub.L. 94-140, 89 Stat. 751, the controversial section was amended to read: . .. that data submitted on or after January 1, 1970, in support of an application shall not, without permission of the applicant, be considered by the Administrator in support of any other application for registration unless such other applicant shall have first offered to pay reasonable compensation for producing the test data to be relied upon and such data is not protected from disclosure by section 10(b). This provision with regard to compensation for producing the test data to be relied upon shall apply with respect to all applications for registration or reregistration submitted on or after October 21, 1972. If the parties cannot agree on the amount and method of payment, the Administrator shall make such determination and may fix such other terms and conditions as may be reasonable under the circumstances. The Administrator’s determination shall be made on the record after notice and opportunity for hearing. If either party does not agree with said determination, he may, within thirty days, take an appeal to the Federal district court of the district in which he resides with respect to either the amount of the payment or the terms of payment, or both. Registration shall not be delayed pending the determination of reasonable compensation between the applicants, by the Administrator or by the court. The conference committee report describes the intended effect of the amended language to be (1) to reject a House Committee’s intent that compensation be paid for data regardless of when supplied to the agency; (2) to provide for compensation only for data received after January 1, 1970, and (3) to require compensation only from new applicants filing for registration after October 21, 1972. The 1975 version thus dealt rather comprehensively with the open question of retroactivity, and made access to judicial review of compensation determinations available to both sides. And while the 1975 version does not say so explicitly, at least implicitly it rejects Chevron’s position that there is a common law property right of exclusive use, absent compensation, for materials in the government’s files prior to January 1, 1970. That intention is confirmed by the conference committee report quoted in note 14. In Mobay Chemical Corp. v. Costle, 447 F.Supp. 811 (N.D.Mo.1978), appeal dismissed for lack of jurisdiction, 439 U.S. 320, 99 S.Ct. 644, 58 L.Ed.2d 549 (1979), Mobay, which had submitted registration data prior to January 1, 1970, challenged the statute on the ground that as amended in 1975, section 3(c)(1)(D) authorized use by the EPA of such data without compensation, in violation of the taking clause of the fifth amendment. The three judge court dismissed the complaint and Mobay appealed directly to the Supreme Court pursuant to 28 U.S.C. § 1253. That Court dismissed the appeal, reasoning that since section 3(c)(1)(D) did not expressly authorize use of pre-1970 data, the challenge was to a longstanding agency practice, which Congress chose not to prohibit, rather than to the constitutionality of a statute. Thus, the Court held, the matter was not one within the jurisdiction of a three judge district court. The Mobay case, therefore, tells us no more than that, in the Supreme Court’s view, Congress has neither endorsed nor rejected the EPA practice of making use of its pre-January 1, 1970 files in deciding applications for new registrations. The combination, in the 1975 version of section 3(c)(1)(D), of the cross reference to section 10(b) trade secrets, and of EPA determination of the amount of compensation subject to judicial review, produced an administrative nightmare in which the process of registering new pesticides simply ground to a halt. The result was, for all practical purposes, as complete a bar to new market entrants as if the old registrants held strong patents. Neither EPA nor the Department of Justice was happy with that situation. On the other hand, the National Agricultural Chemical Association still sought exclusive use protection. As a result of mutual government-industry dissatisfaction, in 1977 both the Senate and the House began reconsideration of section 3(c)(1)(D). EPA’s principal objection to the 1975 version was the cross reference to section 10(b). Administrator Douglas M. Costle explained to the Senate Agriculture and Forestry Committee: By enacting the section 3(c)(1)(D) compensation mechanism, Congress wisely provided data developers the ability to recover reasonable compensation from subsequent data users. But the major pesticide developers have claimed they are also entitled to determine which applicants shall be allowed to use this data, and thus to set their own price for its use or refuse access to it altogether. Congress rejected the “exclusive use of data” concept in 1972 but the major firms have found that they can obtain “exclusive use” for some period of time simply by making very broad trade secrecy claims and engaging EPA in prolonged litigation. If Congress desires EPA to implement a truly mandatory data licensing program through the section 3(c)(1)(D) mechanism, and desires to encourage competition and access to the marketplace for registrants who do not develop their own data, the reference to section 10 should be stricken from section 3(c)(1)(D). The result will be that all data can be licensed whether or not it is trade secret. Statement of April 27, 1977, in S.Rep. No. 95-334, accompanying S. 1678, 95th Cong., 1st Sess., at 70-71 (1977). The Justice Department strongly supported the EPA evaluation of the anti-competitive impacts of the cross reference to section 10(b). As spokesman for the pesticide manufacturers, the National Agricultural Chemical Association not only opposed the EPA proposal, but sought an amendment granting, for all registration data produced by a registrant, trade secret or otherwise, a ten year exclusive use protection. The Senate passed a version of an amended section 3(c)(1)(D) which for the most part adopted the position of the government agencies. That version omitted the trade secret reference, rejected the exclusive use provision, and limited compensation to a period of seven years after registration. The seven year period made it unlikely that protection of test data would outlast patent protection, although it still conferred a boon on registrants of unpatentable compounds. In the House, the National Agricultural Chemical Association was more successful than EPA and the Department of Justice. Despite EPA opposition, the House Agriculture Committee proposed H.R. No. 8681, which would have granted a five year exclusive right, followed by a five year compensation right, with compensation to be determined by binding arbitration. The House passed H.R. No. 8681 in October 1977, 123 Cong.Rec.H. 11864 (Oct. 31,1977), and the following September a compromise on the competing bills emerged from a Conference Committee, which agreed on the current version of section 3(c)(1)(D), quoted in the margin. The conference report summarizes the substitute provision: (1) all test data submitted after December 31, 1969, will be compensable for a period of 15 years from the date the data are submitted; (2) in the case of pesticides registered after the date of enactment of this provision, there will be a period of exclusive use for data submitted in support of the registration of a product containing a new active ingredient running for 10 years from the date the product is registered, except that there will be no exclusive use for defensive data; and (3) there will be a period of exclusive use for data submitted in support of the new use registration of a product equal to the time of exclusivity remaining under any 10-year exclusive use period of the product. House Conf.Rep. No. 95-1560, 95th Cong., 2d Sess. 30 (1978), U.S.Code Cong. & Ad. News 1978 at 2046. The 1978 version retained the Senate proposal for the exclusive remedy of determination of compensation by binding arbitration, as well as the Senate proposal to eliminate the cross reference to section 10(b), which had permitted the initial registrant to exclude materials from agency use merely by calling them trade secrets. And in the end, Congress retained the January 1,1970 cut-off date for statutory protection, leaving pre-1970 data in exactly the same posture as when in Mobay Chemical Company v. Costle, 439 U.S. 320, 99 S.Ct. 644, 58 L.Ed.2d 549 (1979), the Supreme Court considered the 1975 version of.section 3(c)(1)(D); that is, subject to the agency practice of consulting its files when passing on new applications for registration. Moreover, as with the 1975 law, the refusal of Congress in 1978 to extend the compensation provisions of section 3(c)(1)(D) to pre-1970 file data is at least an implicit rejection of the industry’s position that it has a proprietary interest in that data for which compensation ought to be paid. II. Chevron challenges the constitutionality both of the agency practice of making internal agency use of pre-January 1, 1970 data and of the use and compensation scheme set forth in the 1978 version of section 3(c)(1)(D). It urges that agency use of its pre-1970 data is an uncompensated taking in violation of the taking clause of the fifth amendment. As to the post-1970 data, it contends: 1. that agency use of the data in order to permit registrations by third parties is a taking for private rather than public purposes in violation of due process. See Thompson v. Consolidated Gas & Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510 (1937); 2. that even if the taking is authorized, the binding arbitration provision in the 1978 version, an exclusive remedy, deprives it of any opportunity for a judicial determination of just compensation. Appellant’s Brief at 24-33. The district court rejected these contentions, and we reject them as well, although for reasons differing somewhat from those relied upon by that court. A. Fundamental to all of Chevron’s contentions is its assertion of a property right in the contents of the EPA files insofar as those files contain test data submitted by Chevron in its applications for registration. Before we undertake to explore the intriguing constitutional law issues Chevron tenders, it is appropriate to examine the threshold question whether there is such a property right. In its absence there is no need for a constitutional inquiry. Cf. Hagans v. Lavine, 415 U.S. 528, 543-5, 94 S.Ct. 1372, 1382-1383, 39 L.Ed.2d 577 (1974); Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 53 L.Ed. 753, 455 (1909). In several recent cases, the Supreme Court has said that in determining whether federal due process protections apply, we must first find an entitlement created by some law. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montayne v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). Both here and in the district court Chevron has assumed more than it has explained the source of the property right it claims. It does rely on the “common law of trade secrets,” but if we may borrow Justice Holmes’ often misused aphorism, “[t]he common law is not a brooding omnipresence in the sky but the articulable voice of some sovereign or quasi-sovereign that can be identified....” Federal protection of intellectual property is statutory, although not necessarily preemptive of state law. See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977); Kewanee Oil Co. v. Bicron, 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). Those recent authorities, recognizing a common law of intellectual property not preempted by federal statutes, all are consistent with the Court’s analysis in Paul v. Davis, Meachum v. Fano and Montayne v. Haymes, supra, in looking to the law of some state for the property interest in question. Since 1972, section 3(c)(1)(D) has in one form or another conferred a federal expectation — a property right — in some data submitted to EPA. But prior to the enactment of Pub.L. 92-516, the only federal statute to which we have been referred that appears at all relevant is 18 U.S.C. § 1905. That statute does not confer a private cause of action, although it may provide a standard by which to judge the legality of proposed agency disclosures. Chrysler Corp. v. Brown, 441 U.S. 281, 316-17, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). At best it can be construed to create a federal law right of nondisclosure, not of non-use by the agency. Aside from section 3(c)(1)(D), Chevron has shown us no federal statute preventing internal agency use of the contents of files compiled in the performance of the agency’s statutory functions.- Absent a federal law property interest, then, two questions remain. The first is whether the law of any state having any interest in Chevron purports to confer on it a state law property interest in materials Chevron has voluntarily turned over to a federal regulatory agency in order to obtain a license to sell a product in interstate commerce. The second is whether, assuming a state law purports to do so, such a law is valid when asserted against the federal agency. As to the first question, we note that neither in Chevron’s initial brief nor in its reply brief is any state law referred to. The initial brief does rely on Restatement, Torts (1939) § 757, which we may safely assume reflects the law of some relevant state. But that statement of the law affords no help since it deals with liability for disclosure of trade secrets without a privilege to do so. EPA does not propose disclosure. Nor did EPA or its predecessor agencies obtain the material in its files by any improper means, or for the purpose of advancing the business of Chevron’s competitors. Compare Restatement, Torts (1939) § 759. It is true that the material was submitted to the federal government with some expectation of confidentiality. Prior to 1972, however, 18 U.S.C. § 1905 and agency practice defined the scope of that expectation, and since 1972 the several versions of section 3(c)(1)(D) have done so. None of those statutes could reasonably have been the source of an expectation of general agency non-use. Cf. Mobay Chemical Corp. v. Costle, 439 U.S. 320, 99 S.Ct. 644, 58 L.Ed.2d 549 (1979). Thus we find nothing in the Restatement of Torts provisions on trade secrets from which, against EPA’s internal use, Chevron can take comfort. Moreover, our own researches have produced no state law suggesting a continuing property interest, beyond that provided by federal law, applicable to material furnished to a federal agency as a precondition to selling a product in interstate commerce. That is not to say that Chevron’s test data, while it remained exclusively in Chevron’s hands, was not protected by state law. Obviously it was, and obviously Chevron was perfectly free to keep it in that state. But it could not do so and at the same time market naled and paraquat in interstate commerce. We think, moreover, that the recognition of a role for state law in defining the degree of confidentiality in which federal agencies must keep information submitted to them in connection with the discharge of their federal regulatory responsibilities presents the possibility of conflicting state laws imposing conflicting agency responsibilities in different parts of the country. Thus even if there were any state law purporting to protect the confidentiality of data voluntarily submitted to a federal regulator, there is some doubt that it would survive supremacy clause scrutiny. This second question need not, however, be decided, because we find no such state law. B. The district court assumed, at least arguendo, that Chevron had a property interest in its submitted data. On that assumption the court went on to reject Chevron’s constitutional challenges. The court, noting that important benefits derive to the public from me-too registrations, held that there was no merit to the contention that use of the file data to dispose of me-too registrations was a taking of private property for private rather than public purposes. These benefits include administrative cost savings, time saving in the registration process, and competitive benefits in the marketplace from the encouragement of entry by newer and smaller producers. Those factual determinations are not disputed. They, together with our legal conclusion in Part II A. above, make it unnecessary for us to consider whether, as EPA contends, the authority of Thompson v. Consolidated Gas & Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510 (1937), has been undermined by subsequent cases such as Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368 (1940), and Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71 S.Ct. 215, 95 L.Ed. 190 (1950). The district court also rejected the contention that the compulsory arbitration provision in section 3(c)(1)(D) deprives Chevron of the opportunity for a judicial determination of just compensation. In support of this ruling the court relied on the Regional Rail Reorganization Cases, 419 U.S. 102, 126 (1974), holding that for any taking, a Tucker Act remedy remains available unless by legislation Congress has explicitly withdrawn it. While we express no disagreement with the court’s interpretation of the Regional Rail Reorganization Cases, we need not decide whether a Tucker Act remedy would in other circumstances be available for agency use of the contents of agency files. In this instance, since we find no protected property interest beyond that conferred in 18 U.S.C. § 1905 and in section 3(c)(1)(D) of the Pesticide Act, there has been no taking for which such a remedy is needed. III. The order denying a preliminary injunction and dismissing the complaint will be affirmed. . Conceivably there are registrations of common unpatentable chemicals or chemical compounds whose registrations were supported by the submission of confidential test data, but this record does not present such a case. . See remarks of Congressman Foley, H.Rep. No.92-511, 92d Cong., 1st Sess. at 69 (1971); remarks of Congressman Dow, id. at 72. . The amendment of the Committee on Commerce strikes [the exclusive use] language, and allows the use of such data. Without the proposed amendment, the committee feels that barriers to entry in the pesticides industry would result which go far beyond that envisioned by our patent system. In effect, whether or not a pesticide has patent protection, a manufacturer wishing to register a pesticide previously registered would have to duplicate the required test data. As patent protection is granted to a substantial number of pesticides, this provision of the bill imposes requirements on subsequent producers beyond the licensing fees that a patent holder may receive. In the extreme, a monopoly in the production of a pesticide could ensue if competitors are unable to afford the sometimes costly safety and efficacy tests. The prime reason stated for this provision in the Agriculture Committee bill is that without it the pesticides industry will lack incentives to develop new pesticides. Yet, by requiring manufacturers to duplicate test results, portions of the money now spent on developing new pesticides will undoubtedly be diverted to perform such duplicative testing. Consequently, this provision could stifle the very incentives it seeks to achieve. S.Rep.No.92-970, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.Code Cong. & Ad.News 3993, 4096. . The Acting Attorney General wrote: In economic terms, requiring the submittal of test data imposes an expense on the first applicant to enable him to enter a given market. For others trying to enter the same market, repetition of the same tests imposes a similar entry fee. Such an entry fee, moreover, acts regressively, for it is more of a burden to the small manufacturer. Duplication of such tests is a waste to the economy and a needless and undesirable burden on any subsequent applicant. S.Rep.No.92-970, supra, 1972 U.S.Code Cong. & Ad.News at 4097. . See the criticisms on economic grounds of Professor John Stedman, S.Rep.No.92-970, supra, 1972 U.S.Code Cong. & Ad.News at 4098-99, and Professor John J. Flynn, S.Rep.No.92-970, supra, 1972 U.S.Code Cong. & Ad.News at 4101. . EPA noted: The effect of this provision is to afford additional economic protection, foster monopoly, and it may tend to restrict pesticide business to large manufacturers. In addition, it would increase not only federal administrative costs, but those of the manufacturer as well, aside from unnecessarily increasing the application time. S.Rep.No.92-970, supra, 1972 U.S.Code Cong. & Ad.News at 4043. . Report of the Committee on Agriculture & Forestry responding to Commerce Committee’s proposed amendments to H.R. 10729, S.Rep.No. 92-838, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.Code Cong. & Ad.News 4023, 4024-25, 4040. . S.Rep.No.92-838, supra, 1972 U.S.Code Cong. & Ad.News at 4092. . Conf.Rep.No.92-1540, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.Code Cong. & Ad.News, 3993, 4132. . See the study by the EPA Office of Pesticide Programs. FIFRA: Impact on the Industry, reprinted in S.Rep.95-334, 95th Cong., 1st Sess. 34 (1977). . S.Rep.No.92-838, supra, 1972 U.S.Code Cong. & Ad.News at 4043. . The retroactivity issue not surprisingly spawned litigation. See e. g., Amchem Corp. v. GAF, 391 F.Supp. 124 (N.D.Ga.1975) (EPA may rely on test data submitted before 1972 in approving competitor’s application for registration), vacated and remanded for reconsideration in light of 1975 amendments, 529 F.2d 1297 (5th Cir. 1976), reinstated on rehearing, 422 F.Supp. 340 (N.D.Ga.1976), aff'd in part, rev’d in part on other grounds, 594 F.2d 470 (5th Cir. 1979). . EPA in an Interim Policy Statement took the position that section 3(c)(1)(D) applied to applications submitted after November 19, 1973, 38 Fed. Reg. 31862 (Nov. 19, 1973). . New section 12 added by the Senate amended section 3(c)(1)(D) of FIFRA which requires that an applicant for registration of a pesticide pay reasonable compensation if he relies on the test data submitted by another applicant. The amendment provides that only data submitted on or after October 21, 1972, is compensable; the data compensation provision applies to all applications for registration submitted on or after October 21, 1972; both parties to a dispute on compensation of data are given the same rights in the courts; and registration of a pesticide is not to be delayed pending the determination of a dispute on reasonable compensation. The House bill had no specific language amending section 3(c)(1)(D). However, in the discussion of the bill on the House Floor, it was stated that it was the Committee’s intent that on new registrations, the reasonable compensation data provision be applied regardless of when the data relied on was originally received by EPA. If, however, a reregistration is made of a pesticide registered originally prior to October 21, 1972, and data to support the reregistration was in the files of EPA prior to such date, no compensation would be required at the time of reregistration. The Conference substitute adopts the Senate amendment with a modification which (a) provides that all data submitted in support of an application on or after January 1, 1970 (in lieu of October 21, 1972, as provided in the Senate amendment), is compensable, and (b) makes clear that the provision with regard to compensation for producing test data to be relied upon shall apply with respect to all applications for both registration and reregistration submitted on or after October 21, 1972. House Conf.Rep.No.94-668, 94th Cong., 2d Sess. (1975), reprinted in 1975 U.S.Code Cong. & Ad.News, 1359, 1380-81. . Justice Blackmun dissented, urging that a three judge court question was presented because the 1975 version of section 3(c)(1)(D) ratified agency practice. 439 U.S. at 321. . See Letter of Administrator Douglas M. Costle to Rep. Foley, Chairman, House Agriculture Committee, reprinted in H.R.Rep.No.95-663, 95th Cong., 1st Sess. 53 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News at 1966, 2026; Remarks of Rep. Fithian, 123 Cong.Rec.H. 11864 (Oct. 31, 1977); Remarks of Sen. Leahy, Chairman, Senate Agriculture, Nutrition and Forestry Committee, 124 Cong.Rec.S. 15303 (Sept. 18, 1978). . See similarly, Statement of Hon. Douglas Costle before Senate Subcommittee on Agricultural Research and General Legislation, Jan. 9, 1977 in S.Rep. No. 95-334, accompanying S. 1678, 95th Cong., 1st Sess., at 80 (1977). For a more detailed explanation of the EPA views, see EPA Study, Economic Impacts of Proposed Amendments to FIFRA, in S.Rep. No. 95-334, supra, at 59-64. . Assistant Attorney General Patricia Wald wrote: The Department of Justice supports the EPA’s evaluation and conclusions with respect to the direct and indirect anticompetitive effects of the trade secret provisions of Section 10 of FIFRA. We concur with EPA that some expression of Congressional intent would be desirable to support the Agency’s position on the issues relating to competition in the pesticide industry. It should be noted that the EPA raises two separate issues: (1) the access to or reliance upon safety efficacy, and environmental chemistry data (“test data”), without actual disclosure, which has been furnished to EPA by developers, and (2) the public disclosure of such data. The Department believes that the competitive issues hinge principally on the ability of applicants to use such test data to satisfy registration requirements.... The Antitrust Division’s letter to Mr. Johnson delineates its views concerning sections 3(c)(1)(D) and 10. The Division’s letter concludes that the scope of the trade secret provisions of FIFRA may have been improperly extended in denying potential competitors access to test data prepared by developers. We agree with the position of EPA that “trade secret status should be routinely extended only to truly secret information concerning manufacturing processes.” ... S.Rep.No. 95-334, supra, at 89-90. . S.Rep.No. 95-334, supra, at 95. . The text of the Senate version is in S.Rep.No. 95-334, supra, at 129-30. The EPA position was set forth not only in the EPA study referred to in note 17, supra, but in a letter from Administrator Costle to the Chairman of the House Agriculture Committee. See H.R.Rep.No. 95-663, 95th Cong., 1st Sess. at 53-54 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News, 1966, 2026-27. . See H.R.Rep. No. 95-663, supra, at 18-19, 1978 U.S.Code Cong. & Ad.News at 1991. . As finally enacted, section 3(c)(1)(D) of 1978 provides: (D) except as otherwise provided in subsection (c)(2)(D) of this section, if requested by the Administrator, a full description of the tests made and the results thereof upon which the claims are based, or alternatively a citation to data that appear in the public literature or that previously had been submitted to the Administrator and that the Administrator may consider in accordance with the following provisions: (i) With respect to pesticides containing active ingredients that are initially registered under this Act after the date of enactment of the Federal Pesticide Act of 1978, data submitted to support the application for the original registration of the pesticide, or an application for an amendment adding any new use to the registration and that pertains solely to such new use, shall not, without the written permission of the original data submitter, be considered by the Administrator to support an application by another person during a period of ten years following the date the Administrator first registers the pesticide: Provided, That such permission shall not be required in the case of defensive data; ■ (ii) Except as otherwise provided in sub-paragraph (D)(i) of this paragraph, with respect to data submitted after December 31, 1969, by an applicant or registrant to support an application for registration, experimental use permit, or amendment adding a new use to an existing registration, to support or maintain in effect an existing registration, or for reregistration, the Administrator may, without the permission of the original data submitter, consider any such item of data in support of an application by any other person (hereinafter in this subparagraph referred to as the ‘applicant’) within the fifteen-year period following the date the data were originally submitted only if the applicant has made an offer to the Administrator accompanied by evidence of delivery to the original data submitter of the offer. The terms and amount of compensation may be fixed by agreement between the original data submitter and the applicant, or, failing such agreement, binding arbitration under this subparagraph. If, at the end of ninety days after the date of delivery to the original data submitter of the offer to compensate, the original data submitter and the applicant have neither agreed on the amount and terms of compensation, nor on a procedure for reaching an agreement on the amount and terms of compensation, either person may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service. The procedure and rules of the Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings, and the findings and determination of the arbitrator shall be final and conclusive, and no official or court of the United States shall have power or jurisdiction to review any such findings and determination, except for fraud, misrepresentation, or other misconduct by one of the parties to the arbitration or the arbitrator where there is a verified complaint with supporting affidavits attesting to specific instances of such fraud, misrepresentation, or other misconduct. The parties to the arbitration shall share equally in the payment of the fee and expense of the arbitrator. If the Administrator determines that an original data submitter has failed to participate in a procedure for reaching an agreement or in an arbitration proceeding as required by this subparagraph, or failed to comply with the terms of an agreement or arbitration decision concerning compensation under this subparagraph, the original data submitter shall forfeit the right to compensation for the use of the data in support of the application. Notwithstanding any other provision of this Act, if the Administrator determines that an applicant has failed to participate in a procedure for reaching an agreement or in an arbitration proceeding as required by this subparagraph, or failed to comply with the terms of an agreement or arbitration decision concerning compensation under this subparagraph, the Administrator shall deny the application or cancel the registration of the pesticide in support of which the data were used without further hearing. Before the Administrator takes action under either of the preceding two sentences, the Administrator shall furnish to the affected person, by certified mail, notice of intent to take action and allow fifteen days from the date of delivery of the notice for the affected person to respond. If a registration is denied or canceled under this subparagraph, the Administrator may make such order as the Administrator deems appropriate concerning the continued sale and use of existing stocks of such pesticide. Registration action by the Administrator shall not be delayed pending the fixing of compensation; (iii) After expiration of any period of exclusive use and any period for which compensation is required for the use of an item of data under subparagraphs (D)(i) and (D)(ii) of this paragraph, the Administrator may consider such item of data in support of an application by any other applicant without the permission of the original data submitter and without an offer having been received to compensate the original data submitter for the use of such item of data: . .. 7 U.S.C.A. § 136a(c)(l)(D) (1978). . The complaint was filed after the effective date of section 7 of Pub.L. 94-381, amending 28 U.S.C. § 2284. Thus both the challenge to EPA practice and the challenge to the constitutionality of section 3(c)(1)(D) were properly heard by a single district judge. . But see Meachum v. Fano, 427 U.S. 215, 229-35, 96 S.Ct. 2532, 2540-2543, 49 L.Ed.2d 451 (1976) (Stevens, J., dissenting). . Southern Pacific Co. v. Jensen, 244 U.S. 205, 222, 37 S.Ct. 524, 531, 61 L.Ed. 1086 (1917), (Holmes, J., dissenting). The aphorism is more appropriate to this case than to that federal admiralty case. See Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). . Cf. 21 C.F.R. § 314.1(b) (1980) prohibiting FDA use of agency files to register new drug compounds without original registrant’s permission. . Section 10 of the Act, 7 U.S.C.A. § 136h(d) (1978) now authorizes EPA disclosure in certain instances, and to that extent pro tanto limits the applicability of 18 U.S.C. § 1905. Chevron does not in this action directly challenge the authorized disclosure provisions of section 10. . Indeed, the only relevant decision our researches have uncovered supports our analysis. In Earthline Corp. v. Mauzy, Acting Director, Illinois Environmental Protection Agency, 68 Ill.App.3d 304, 24 Ill.Dec. 787, 385 N.E.2d 928 (1979), a unanimous Illinois appellate court held state trade secret law did not prevent the state EPA Director from disclosing to the state attorney general trade secrets voluntarily submitted under the state EPA’s licensing requirements, when disclosure was necessary to enforce environmental protection laws. The Illinois court further observed that the Illinois Environmental Protection Act, Ill.Rev.Stat.1977 Ch. 111 l/2, Par. 1007(b)(ii), “states that information submitted concerning persons subject to certain Federal regulatory permit requirements ‘may be disclosed or transmitted to other officers, employees or authorized representatives of this state or of the United States concerned with or for the purpose of carrying out this Act.’ ” 69 Ill.App.3d at 308, 385 N.E.2d at 930. The court found that because “the business in question is, in effect, licensed and the documents sought to be disclosed [to the attorney general] are permits containing information voluntarily given in order to obtain the permit,” 69 Ill.App.3d at 309, 385 N.E.2d at 931, and because the attorney general was acting at the EPA’s behest, trade secret protection must yield to the effectuation of environmental laws. . Moreover, although Chevron has had, since 1975, a property right in data submitted after December 31, 1969, our determination that no property right subsisted before the 1972 and subsequent amendments to the Pesticide Act, also leads us to conclude that Congress, having conferred a property right to which the chemical companies had no prior claim, may condition that right to accommodate agency practice. Cf. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).

Pax Co. of Utah v. United States

WILLIAM E. DOYLE, Circuit Judge. This appeal on behalf of the government questions the validity of an injunction decree entered in the district court, 324 F.Supp. 1335, enjoining it from carrying out administrative proceedings which could cancel and bar the registration of certain weed and pest killers manufactured by appellee PAX. The government proceedings were taken pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 135 et seq. Cancellation of the PAX registration would result in removal of their products from the domestic market which would be a very serious consequence. On the other hand, both before and since the injunction the company continues to manufacture and market these products and so the administrative process was not interfering, directly at least, with their business. The products in question contain between 25 and 47 percent arsenic trioxide, and the government has determined that all products having a concentration in excess of 1.5 percent arsenic trioxide should not be available for sale on the home market. It started July 10, 1967, when PAX applied for renewal of registration for two of its products. Next, on July 18, 1969, two years later, the government notified PAX that Interpretation 25 (Note 2, supra) was to become effective and that this would result in denial of its application and would also result in denial of registration for three other PAX products. PAX proceeded to exercise its rights granted by statute, 7 U. S.C. § 135b(c). On August 18, 1969, it requested that the matter be referred to an advisory committee of experts selected by the National Academy of Sciences. Such a request under the appropriate regulations operates to suspend the date of cancellation until all proceedings are completed. PAX was informed on July 17, 1970, that the advisory committee had been formed on April 9, 1970, to review the issues. This committee was scheduled to begin meeting August 18, 1970. However, the district court issued its temporary restraining order August 17 and this brought the administrative proceedings to a halt. The extensive administrative procedure is set forth in 7 U.S.C. § 135b(c) which in essence gives to the aggrieved party the right to ask for referral to an advisory committee or a public hearing or a submission to an advisory committee followed by a public hearing. At last, the aggrieved party may go to the Court of Appeals for the District of Columbia or the circuit wherein he resides or has his business. The record before the Department is then certified to the appellate court. As is already apparent, the prescribed procedure is lengthy and complex. Moreover, the proceedings taken to date on the part of the government have been unimpressively slow, deliberate and inconclusive. Over four years have passed since their inception. Considering then the failure of the government to move with dispatch in the light of the legal machinery provided, it is understandable that PAX sought injunctive relief, discovering as it did that the procedure was somewhat of an attrition mill. Nevertheless, we are not convinced that judicial intervention was justified since PAX was not injured, had not yet had an administrative hearing and thus might never have been hurt; further, if it had been hurt relief could have been sought in court. Moreover, the merits should be tried on the basis of the expertise prescribed by Congress. The decision as to when, if at all, courts should interfere in the administrative process is itself a difficult one. A leading treatise on this subject has said that sometimes exhaustion of administrative proceedings is necessary and sometimes it is not. The Supreme Court has held that exhaustion is essential, but has not always required it. It certainly is to be gleaned from the decisions, however, that courts ought not ordinarily to interfere with the administrative process in the absence of the most compelling reasons, and here there is no assurance from the proceedings taken and from those to be taken pursuant to the law that PAX will ultimately fail or that there will be a failure of justice. The Act after all provides for ultimate and orderly judicial review. Furthermore, § 10(c) of the Administrative Procedure Act establishes a well defined procedure for judicial scrutiny of administrative proceedings which are not final when taken, and, as previously noted, the statute in question is careful, deliberate and protracted so that no product is can-celled unless there has been abundant and extensive due process. Also, while the administrative remedies are being pursued no action is taken which affects the product apart from the presence of the threat. Thus, while PAX initially maintained that the government intended to force its product off the market before the conclusion of administrative proceedings, counsel for the government now expressly disavow this intent and in their brief concede (as they must) that the statute forbids any such action. The case at bar is different from the situation which obtained in Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), wherein the proposed standards promulgated by the F.C.C. were held to have had immediate detrimental effect on C.B.S. notwithstanding that they were not pressed into operation: it was shown that stations affiliated with the network withdrew in anticipation that the F.C.C. would not renew their licenses once the standards became effective. It was this extensive and actual harm that caused the judicial intervention in that case. The Supreme Court in the C.B.S. case said: The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control. (316 U.S. at 425, 62 S.Ct. at 1204). A comparison of the conditions present in the C.B.S. case with the case at bar serves to point up that the problems which necessitated the injunction in the C.B.S. ease are not suffered by PAX. After all, PAX continues to sell its product and the administrative proceedings have been so slow that proof of irreparable injury appears inconceivable. The Secretary took more drastic action in Nor-Am Agricultural Products, Inc. v. Hardin, 435 F.2d 1151 (7th Cir. en banc, 1970). There the order of the Secretary was for suspension of registration of certain fungicides. Suspension of registration is an emergency procedure, employed by the Secretary when he determines that continued use of the questioned product (in Nor-Am certain mercury-containing compounds) would pose an imminent threat to health. After suspension the producers are entitled to go through the same procedures as are available to one whose registration is cancelled through the usual process, only on an “expedited” basis. The injunction was granted and was upheld by a panel of the 7th Circuit, but was finally denied by the Circuit en banc. The en banc court ruled that the emergency suspension was not final and that the damage suffered by Nor-Am did not justify the extraordinary remedy granted: If this preliminary injunction were approved, other litigants could obtain district court threshold review by parroting plaintiffs’ claim that the Secretary had acted arbitrarily and capriciously in suspending their registrations, even though Sections 4(c) and 4(d) specify that review shall only be in the courts of appeals after action by the advisory committee and then by the Secretary. We should not countenance such an evasion of the review procedure provided by Congress in this statute. (435 F.2d at 1161). Inasmuch as the completion of the administrative cycle in the present case could result in PAX’s suffering no harm whatsoever, the reasons for refusing to short circuit the administrative process are the more compelling. PAX finally argues that the process of having an advisory committee effectively finalizes the entire issue. We disagree with this contention and hold that the rules are not invalid on their face with one exception. The regulations, at 7 C.F.R. 2764.11(e), authorize the assessment of costs of the advisory committee against a registrant requesting submission of the issues to the committee unless the committee rules in favor of the registrant. The statute specifically allows such a course: Members of an advisory committee shall receive as compensation for their services a reasonable per diem, which the Secretary shall by rules and regulations prescribe, for time actually spent in the work of the committee, and shall in addition be reimbursed for their necessary travelling and subsistence expenses while so serving away from their places of residence, all of which costs may be assessed against the petitioner, unless the committee shall recommend in favor of the petitioner .... (7 U.S.C. § 135b(c). PAX objects to being required to pay the members’ per diem allowances as well as the other expenses, but it is our feeling that a reading of the statute clearly authorizes this imposition, an interpretation upheld by the legislative history of the provision. See U.S.Code Cong. & Adm.News, 88th Cong., 2d Session, 1964, p. 2169. PAX also objects to subpart (3) of the above regulation, which reads: An advance deposit shall be made in the amount of $2,500 to cover the costs. Further advance deposits of $2,500 each shall be made upon request of the Administrator when necessary to prevent arrears in the payment of such costs. Any deposits in excess of actual expenses will be refunded to the depositor. There is no statutory authorization for the advance imposition of costs. The statute merely provides that the respondent may be required to pay the costs. We do not question that the administrative body may implement statutes by reasonable regulations designed to carry out purposes of the Act, but the requirement of advance payment carries a connotation of presumption of guilt which we cannot approve, and undoubtedly PAX feels that it is being required to pay its funeral bill, so to speak, in advance of its death. Its apprehension is understandable. Some of the other provisions of the regulation are not designed to quiet apprehensions. We cannot, however, see that they are likely to cause immediate harm; thus, after the administrative process has been completed, if the determination is adverse to PAX, and a full record has been developed so that the matter can be thoroughly and carefully reviewed on its merits, these provisions can more meaningfully be evaluated. The other complaint is that the procedure is so interminable, but it would seem that it should now be carried out with some degree of celerity and precision. In sum then we do not find that the challenged regulations are void on their face with the single exception noted. Accordingly, the judgment of the district court is reversed, and the cause is remanded with instructions to vacate the injunction and to dismiss the action, whereby the administrative process may proceed with dispatch. . The original action against the company was undertaken while the enforcement of the FIFRA was entrusted to the Department of Agriculture; such responsibility has since been transferred to the Administrator of the Environmental Protection Agency. See Reorg.Plan No. 3 of 1970, s. 2(a) (8) (i), U.S.Code Cong. & Adm.News, pp. 6322, 6324, 91st Cong., 2d Sess. (1970). . The policy involved is contained in Interpretation 25 which is reported in 7 C.F.R. 2762.123 first proposed November 25, 1967. It was promulgated as official policy on July 25, 1968, effective 90 days thereafter. This interpretation reads as follows: § 2762.123. Interpretation with respect to labeling of sodium arsenite or arsenic trioxide products. (a) Home use Unacceptable. Labeling for economic poisons submitted in connection with registration under the Act bearing directions for use of products containing more than 2 percent sodium arsenite or more than 1.5 percent arsenic trioxide in or around the home is not acceptable. (b) Required warning against home use. In addition to other warning and caution statements required by the regulations and interpretations under the Act, labels for such products with acceptable directions for agricultural, commercial, or industrial use must bear, in a prominent position, the warning statement (s) as indicated below: (1) All products: “Do Not Use or Store in or Around the Home.” (2) Products intended for area treatments such as herbicide use: “Do Not Allow Domestic Animals to Graze Treated Areas.” 34 F.R. 12081, July 18, 1969. Redesignated, 35 F.R. 19169, Dee. 18, 1970. . The various steps in the administrative procedure prescribed by 7 U.S.C. § 135b (c) are summarized as follows : (1) A notification by letter to the applicant of failure to comply with the requirements of the Act. (2) The applicant may make changes in the product so as to bring it within the Act’s requirements; if he fails, the Secretary (now the EPA) refuses registration or cancels registration. He does so by (3) Sending a letter notifying the applicant of the refusal or cancellation. The applicant has 30 days before cancellation becomes effective, in which time he may (a) make the required changes (b) request referral to an advisory committee (PAX’s course) (c) request a public hearing. If he takes step (a), all is ended and the product will be registered. If he takes steps (b) or (c), cancellation is suspended until such time as the steps below are completed; in other words, the product remains on the market. If he takes step (b), the Secretary submits to the advisory committee “forthwith” all relevant data before him, including the application for registration. (4) Within 60 days after such submission to it, unless such period is extended by the Secretary for an additional 60 days, the committee submits a report and recommendation to the Secretary as to the registration of the article, together with reasons for its actions and the underlying data. (5) Within 90 days after receipt of this report, the Secretary must make an order granting or denying registration, giving findings of fact. (6) Within 60 days following the Secretary’s order, the applicant may object and request a public hearing. This the Secretary must hold following due notice. The advisory committee report, recommendations and underlying data is made a part of the record of the public hearing. (7) Within 90 days from the completion of the public hearing, the Secretary must again determine whether to register the product or not, and such determination must be based on substantial evidence of record at the hearing, and must include detailed findings of fact. (8) Provision for judicial review of the administrative findings is set forth in section (d) of 7 U.S.C. § 135b; an aggrieved party may go to the Court of Appeals for the D.C. Circuit or the Circuit wherein he resides or has his principal place of business. The Secretary must file therein the record of the proceedings on which he based his order, including the report and recommendations of the advisory committee. The Secretary’s order is upheld if it is supported by substantial evidence when considered on the record as whole. The Court of Appeals may order the Secretary to take additional evidence, may order a stay of the order pending its action, and is to expedite the disposition of all causes filed with it under the FIFRA. . 3 Davis, Administrative Daw Treatise, o. 20 (1958). . See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938) : “So to hold would ... in effect substitute the District Court for the Board as the tribunal to hear and determine what Congress declared the Board exclusively should hear and determine in the first instance. The contention is at war with the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” (Emphasis added.) The court went on to note in a footnote that “The rule has been most frequently applied in equity where relief by injunction was sought.” (Id., n. 9). But see Allen v. Grand Central Aircraft Co., 347 U.S. 535, 74 S.Ct. 745, 98 L.Ed. 933 (1954) ; Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ; Toilet Goods Association v. Gardner, 360 F.2d 677 (2d Cir. 1966), aff’d, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). . 7 U.S.C. § 135b(d).

Physicians Committee for Responsible Medicine v. Johnson

WESLEY, Circuit Judge. Appellants, Physicians Committee for Responsible Medicine, et al., appeal from a judgment of the United States District Court for the Southern District of New York (Swain, J.) granting appellee’s motion for summary judgment and denying appellants’ cross-motion for summary judgment. Appellants sued the Administrator of the United States Environmental Protection Agency (the “Agency”) under the citizen suit provision of the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629 (“TSCA”), which gives any person the right to compel the Agency to perform any duty that is nondiscretionary under TSCA. See id. § 2619(a)(2). Appellants seek (1) to compel the Agency to issue a rule establishing a mandatory testing program for high production volume (“HPV”) chemicals and (2) to terminate the Agency’s current voluntary testing program. I A Congress enacted TSCA in 1976 with the express purpose of limiting the public health and environmental risks associated with exposure to and release of toxic chemical substances and mixtures. See 15 U.S.C. § 2601. Shortly after TSCA was enacted, the Office of Pollution Prevention and Toxics (“OPPT”) was created and charged with implementation of TSCA. In general, OPPT tracks more than 80,000 chemicals that have been available for sale or use in the United States since 1979. See EPA Office of Pollution Prevention and Toxics, Overview: Office of Pollution Prevention and Toxics Programs, at 2 (December 2003) (“OPPT Program Overview”), available at http:// www.epa.gov/oppt/opptl01c2.pdf. Pursuant to TSCA’s mandate, OPPT has established programs for gathering information on and identifying risks of new and existing chemicals in or entering the United States. Id. at 2-3. In addition to risk control regulations that may be promulgated under TSCA, see 15 U.S.C. § 2605, the Act’s “information collection/dissemination actions [also] serve to facilitate implementation of media-specific statutes, like the Clean Air Act.” OPPT Program Overview, at 3. HPV chemicals, which are the focus of this appeal, comprise one particular subgroup of the chemicals under the watch of OPPT. Section 2603(a)(1)(B) requires the Administrator to initiate a rulemaking if the Administrator finds that there is or will be substantial production of a chemical, and that either the chemical may be subject to substantial release into the environment or there is or may be significant exposure of the chemical to human beings. These findings — referred to as “B Findings”, a term of art used in reference to section 2603(a)(1)(B) — must accompany an additional finding that there is insufficient data and experience to determine or predict the effects of the chemical on humans or the environment and that testing is necessary to develop such data. See id. at § 2603(a)(l)(B)(ii) & (iii). Under TSCA, once the Agency makes these findings, the Administrator has a nondiscretionary duty to propose a rule for testing of the chemical. Id. at § 2603(a) (flush language). In the usual case, the mandatory rule-making duty will be triggered by formal Agency findings. ' In 1993, the Agency promulgated a policy for evaluating whether or not a chemical, HPV or otherwise, satisfies the requirements for B Findings. See Criteria for Evaluating Substantial Production, Substantial Release, and Substantial or Significant Human Exposure, 58 Fed Reg. 28,736 (May 14, 1993) (final statement of policy). That policy sets guidelines for evaluating what level of release or exposure is “substantial.” Id. at 28,746. The Agency claims that the policy also has a procedural component that it committed to follow when making findings. To date, the Agency has never made a rule regarding HPV chemicals because, as the Agency contends, it has never made the requisite B Findings. However, the Agency may be required to propose a test rule regarding certain chemicals for which, although the agency has made no formal findings, it has made the “functional equivalent” of formal findings. See Physicians Comm. for Responsible Med. v. Leavitt, 331 F.Supp.2d 204, 207 (S.D.N.Y.2004) (“Leavitt”) (quoting Natural Res. Def. Council, Inc. v. Thomas, 689 F.Supp. 246, 254 (S.D.N.Y.1988) (“Thomas ”), aff'd, 885 F.2d 1067 (2d Cir.1989)); Natural Res. Def. Council, Inc. v. EPA, 595 F.Supp. 1255, 1260-61 (S.D.N.Y.1984) (“NRDC”). When the Agency has made “de facto findings” on certain chemicals, it would subvert the statutory scheme to allow the agency to excuse itself from the statute’s rulemaking mandate through its failure to make formal findings. See NRDC, 595 F.Supp. at 1260-61. B In 1997, the Environmental Defense Fund (“EDF”) published a report, “Toxic Ignorance,” which brought various health and environmental risks from HPV chemicals to national attention. In addition, EDF began a nationwide advertising campaign, calling on the chemical industry and the federal government to increase testing of HPV chemicals. In response to this pressure, on April 21, 1998, then-Vice President Gore announced the “Chemical Right-to-Know Initiative” (“ChemRTK”), which included the “HPV Challenge Program.” Under that program, which was developed to increase toxicity data for HPV chemicals, chemical companies were exhorted to “sponsor” chemicals by submitting to the Agency new or existing data on a variety of toxicity factors. The Agency also indicated that unsponsored chemicals may be subject to test rules promulgated under TSCA. See Data Collection and Development on High Production Volume (HPV) Chemicals, 65 Fed.Reg. 81,686 (Dec. 26, 2000) (notice). Participation in the HPV Challenge Program requires sponsors to submit “robust summaries” of current toxicity data for chemicals that they produce or import, as well as a plan to demonstrate where further testing is needed to fill in the data gaps. Id. at 81,688, 81,694. The Agency then scrutinizes the reports and responds by either recommending further testing or approving or not otherwise objecting to the submitted testing programs. The Agency’s review of the robust summaries and its responses to the submissions form the basis of appellants’ claim that the Agency has completed the necessary review to make B Findings. Appellants also point to certain public statements related to the HPV Challenge Program as clear evidence of de facto B Findings. In particular, they point to the notice published in the Federal Register, see Appellants Br. 35, as well as testimony and letter submissions by Agency representatives to a House of Representatives Subcommittee, see Appellants Br. 36-39. They argue that these statements show that the Agency has gathered and analyzed sufficient data to make B Findings for HPV chemicals. C Appellants commenced this action in the Southern District of New York on September 5, 2002, seeking to compel the Agency to propose a rule for the testing of HPV chemicals and to prevent the Agency from conducting the HPV Challenge Program. On October 8, 2003, the district court granted partial summary judgment in favor of the Agency, finding that TSCA’s citizen suit provision did not permit a determination of whether the HPV Challenge Program is ultra vires and that the Agency’s administration of the program does not violate the Federal Advisory Committee Act. See Physicians Comm. for Responsible Med. v. Horinko, 285 F.Supp.2d 430, 442-43, 447 (S.D.N.Y.2003). The district court explicitly reserved judgment on the issue of whether or not the Agency had made de facto B Findings and could be compelled to initiate a rulemaking. See id. at 441. Following further discovery, the parties renewed their motions for summary judgment. For the purposes of the renewed motion, the Agency conceded findings of “substantial production” and “data insufficiency and necessity of testing.” See Leavitt, 331 F.Supp.2d at 205. Thus, the only issue before the district court was whether the Agency made findings as to either “substantial release” or “substantial exposure.” Id. The district court granted summary judgment in favor of the Agency on August 20, 2004. In denying appellants’ claim of de facto B Findings, the district court found that appellants’ argument was defeated by its own logic. See id. at 207. The court noted that while appellants’ claim of de facto Agency findings was based on broad public statements about HPV chemicals in general, appellants had admitted in their submissions to the court that those statements were not applicable to a subgroup of HPV chemicals called “closed system intermediates” (“CSIs”). Thus, the district court found that, because those statements did not apply to all HPV chemicals, they could not constitute de fac-to findings. Id. The district court also noted that, while the “absence of formal findings is not determinative of a claim of de facto findings,” the procedure the Agency employs in making findings is relevant in determining whether the Agency merely skipped formalizing the findings it has already made. See id. The court found that appellants offered no evidence to prove that the general statements made by the Agency “were the product of an analysis that in any way approximates, or can be substituted for, the type of analysis that would be required for a formal finding of substantial release and/or substantial exposure.” Id. 207. The district court primarily relied on Thomas. Thomas was brought under a similar citizen suit provision of the Clean Air Act, which provides that the Administrator may be compelled to establish emissions standards for any substance that has been added to the Agency’s list of “hazardous air pollutants.” See Thomas, 689 F.Supp. at 248. The court in Thomas rejected a contention, similar to appellants’ argument here, that certain statements published in the Federal Register were the functional equivalent of an Agency finding that the chemicals in question should be included on the pollutant list. See id. at 255. In dismissing that argument, the court found that the Agency’s decision not to list the chemicals fell within the range of discretion conferred by the statute. See id. at 258-59. The district court in this case also noted that under TSCA’s citizen suit provision the court only has jurisdiction to compel the Agency to perform certain nondiscre-tionary functions. See Leavitt, 331 F.Supp.2d at 208. Without the Agency having made the requisite findings, the court could not compel a rulemaking. In addition, the court found that it had no authority to enjoin the Agency from running the HPV Challenge Program, as that program is discretionary. Appellants raise two issues on appeal. First, they claim that the district court erred in finding that the Agency had not made de facto findings as to “substantial release” and/or “substantial exposure.” Second, they argue that the district court erred in its holding that it lacked authority to issue injunctions both compelling the Agency to initiate a rulemaking and prohibiting the Agency from conducting the HPV Challenge Program. II A This court reviews the grant of summary judgment de novo, affirming only if the movant demonstrated that there was no genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005); Fed. R. Civ. P. 56(c). While we must ensure that the district court correctly applied the substantive law, see Capital Imaging Assocs. v. Mohawk Valley Med. Assocs., 996 F.2d 537, 542 (2d Cir.1993), where TSCA is silent or ambiguous as to a legal standard, we must also give deference to the Agency’s interpretation of its Congressional mandate. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 5.Ct. 2778, 81 L.Ed.2d 694 (1984); Chem. Mfrs. Ass’n v. EPA, 859 F.2d 977, 984 (D.C.Cir.1988). B On appeal, appellants argue that the district court incorrectly found that the Agency’s activities in connection with the HPV Challenge Program, along with certain public statements, do not amount to de facto findings. Their main argument rehashes their position before the district court, i.e., public statements made by the Agency and Agency officials show that various officials within the Agency regard HPV chemicals as posing a health and environmental threat because of the possibility of substantial release or exposure. We find, however, that these statements fall far short of constituting de facto findings. Appellants do not point to a connection between the statements and any specific supporting data in the Agency’s possession. We are reluctant to hold that the Agency has made critical, science-based conclusions where there is no obvious connection between the proffered statements and hard data before the Agency. Furthermore, the statements themselves do not reflect the Administrator’s view that the potential for exposure or release rises to the level of substantiality necessary to trigger the TSCA rule-making duty. While appellants claim that the statements are evidence of potential for release and exposure, they cannot prove that the substantiality of that risk rises to the level that would be necessary for the Agency to make B Findings. Appellants offer a novel, but unconvincing, alternate argument. They contend that, because “only CSIs qualify for reduced testing based upon the presumption of reduced exposure,” the Agency, “ipso facto, found that all non-CSIs would be subject to substantial release and exposure.” The latter, however, does not follow from the former: While CSIs may be subject to insubstantial risk of release or exposure, the risk of release or exposure for the non-CSI HPV chemicals does not necessarily rise to the level of substantiality required to compel a rulemaking. Appellants also attempt to distinguish Thomas. They contend that, while the Agency in Thomas had expressly declined to add a chemical to the pollutant list because the Agency did not want to set emissions standards, in the present case the Agency did not rule out the findings but, instead, merely gathered the necessary test data without formalizing the findings. Appellants never really say why this distinction should win the day, but instead, merely offer a (supposedly) rhetorical question: “[QJuery, why [would the] EPA ... devote valuable Agency time and resources, and why [would] chemical companies ... squander substantial sums to test chemicals which TSCA did not require to be tested?” Appellants Br. 41-42. We can think of several reasons why the Agency would choose to run such a program and why the companies would choose to participate — e.g., public opinion, political pressure, a sincere desire to protect public health, potential tort liability — but speculation is not the task at hand. It is enough to note that appellants fail to distinguish Thomas in any meaningful way. In response to these arguments, the Agency asserts that the undisputed evidence in the record shows that the Agency did not make the factual findings — de facto or otherwise — necessary to trigger its non-discretionary rulemaking duty. First, the record shows that the officials with authority for making such determinations regarding substantial release and substantial exposure have not made them for all HPV chemicals. Second, the Agency points out that it has not gone through its regular analytical process for gathering and assessing data to make the necessary determinations for all HPV chemicals. Third, the Agency lacks the data to make a determination whether all HPV chemicals satisfy substantial exposure and release criteria. Fourth, there is neither evidence that the Agency has used its own procedures for making the B Findings nor that it wishes to abandon those procedures. In the Agency’s view, the district court correctly refused to construe general statements made by the Agency as de facto findings because those statements were not scientific or accurate as to all such chemicals. The Agency also notes that appellants’ claim contravenes the holding of Chem. Mfrs. Assoc. v. EPA, 899 F.2d 344 (5th Cir.1990) (“CMA ”). CMA held that “substantiality” must be based on specific, articulable findings, not simply generalized findings about categories of chemicals. Id. at 357. Finally, the Agency points out that findings made under section 2603(a)(1)(A), called “A Findings,” must be supported by specific findings based on strong evidence. See Chem. Mfrs. Ass’n, 859 F.2d. at 985-86. The Agency contends that “rulemaking based on ... general statements is flatly inconsistent with Congress’ intent that judicial review of test rules promulgated by [the Agency] under Section 4 be more searching than the judicial review undertaken in most administrative rulemaking cases.” Appellee Br. 41 (citing 15 U.S.C. § 2618(a)(1)(B)). While the decision in NRDC illustrates the authority of the courts to recognize de facto B Findings, the district court below was correct in declining to do so on this record. In our view, this area of the law requires careful attention to the facts and statutory framework in play in each case. In NRDC, certain chemicals had been recommended for further study by the Inter-agency Testing Committee (“ITC”), which is “directed to select and recommend to [the Agency] a list of those chemicals whose potential risks to health and the environment ... [require] ‘priority consideration by the agency for the promulgation of a rule.’ ” NRDC, 595 F.Supp. at 1258 (quoting 15 U.S.C. § 2603(e)(1)(A)). Under TSCA, the ITC must consider a number of specific factors, including the production level, release potential, and health risks associated with a chemical. See 15 U.S.C. § 2603(e)(1)(A)(i)-(viii). That is, the ITC is specifically charged with analyzing data about chemicals covered under the TSCA and deciding whether or not the certain risks associated with the chemical warrant regulation by the Agency. Thus, in NRDC, the recommendation by the ITC presumptively satisfied the substantive requirements for findings, and the recommendation was a reasonable proxy by which the court could assess the existence of the “functional equivalent” of formal findings. Moreover, the EPA had a statutory obligation, within a certain period of time, to either formally adopt such recommendations by beginning a rulemaking or formally reject them in the Federal Register. It did neither, instead entering into “voluntary” testing arrangements with the companies involved. Id. at 1258-59. On these facts, the agency’s actions indicated that it had made the functional equivalent of formal findings. By contrast, in the case before us, nothing obligates the agency to make findings one way or the other with respect to the chemicals at issue. Nor has the agency taken any specific action that suggests it has made the necessary findings but has not formalized them. Instead, plaintiffs’ case looks much like that of the plaintiffs in Thomas, who argued that notices published in the Federal Register showed that the Administrator had determined that certain substances were “hazardous,” thus triggering the Agency’s duty under the Clean Air Act (similar to the one allegedly triggered in this case) to set emissions standards for those potential pollutants. See Thomas, 689 F.Supp. at 254. Thomas rejected that contention, finding that, while the notices may have indicated that the Agency considered the substances “hazardous” in the ordinary sense of the word, there was no evidence that the Agency had made the specific findings it believed necessary to satisfy the statute’s definition of “hazardous.” Id. To the extent that plaintiffs argued that the Agency should have made such formal findings based on the evidence before it and the plaintiffs’ differing interpretation of the statute, Thomas continued, them claim should be brought under the Administrative Procedure Act rather than this citizen-suit provision. Id. at 255-56. In our view, the district court acted appropriately in requiring the plaintiff to come forward with evidence from which it can be inferred that the Agency has actually made the discretionary findings that trigger its rulemaking duty, rather than simply evidence that the Agency has some inclination to do so or that not doing so was an abuse of the Agency’s discretion. Although we agree with appellants that the Agency should not be allowed to subvert the mandate of TSCA by mere bureaucratic finagling, we see no evidence that the Agency has attempted to do so here. In reaching this conclusion, we emphasize the exceedingly narrow scope of our review under the citizen-suit provision. C Appellants also ask this Court to decide what relief is available under TSCA. They contend that they are entitled under section 2619(a)(2) to injunctive relief compelling the Agency to initiate a rulemaking. They further argue that under section 2619(a)(1) they are entitled to a declaratory judgment that the HPV Challenge Program violates TSCA and to an injunction barring the further conduct of the program. Section 2619(a)(2) allows any aggrieved person to sue the Agency to compel the performance of any duty that is nondiscre-tionary under TSCA. Appellants essentially reiterate their argument that the EPA made de facto findings, and thus, the court has jurisdiction under section 2619(a)(2) to compel the EPA to conduct a rulemaking to formulate HPV testing rules. The district court declined to exercise such jurisdiction because it found that the Agency had not made the requisite findings. We affirm the district court’s decision on this issue for substantially the same reasons. Appellants fail in their second contention as well. Section 2619(a)(1) permits suit against a “person” who violates TSCA or the rules promulgated under TSCA. That is, whereas subsection (a)(2) permits citizen suits against the Agency in its capacity as a regulator, subsection (a)(1) permits citizen suits against regulated parties, including governmental entities to the extent they are subject to TSCA. Subsection (a)(1) does not provide an alternative avenue for challenging the Agency’s actions as a regulator, as plaintiffs suggest. Such an interpretation is unreasonable, as it would both render the narrower subsection (a)(2) completely superfluous and nullify subsection (a)(2)’s limitation to suits compelling the Agency to perform a non-discretionary duty. Cf. Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Accordingly, we decline to exercise jurisdiction under subsection (a)(1). Ill We hold that the district court was correct in finding that the Agency had not made de facto findings, and consequently, that the court did not have jurisdiction to either compel the Agency to propose a testing rule or to enjoin the HPV Challenge Program. Accordingly, the district court’s judgment of August 23, 2004, in favor of defendant-appellee is hereby Affirmed. . The Agency defines "HPV chemicals” as chemicals that "[t]he U.S. produces or imports ... (excluding polymers and inorganic chemicals) at over 1 million pounds per year.” EPA Office of Pollution Prevention and Toxics, Chemical Hazard Data Availability Study, at 2 (April 1998), available at http://www.epa.gov/chemrtk/hazchem.pdf. . Hereafter, "chemical substances and mixtures” will be referred to simply as "chemicals.” . Appellants represent the HPV Challenge Program as a mock-voluntary system. They say that the companies are presented with a Hobson's choice: either voluntarily submit to testing or endure legally mandated testing. Appellants argue that the companies are, of course, going to voluntarily sign up and that this compels the conclusion that the Agency’s purpose in running the voluntary program is to circumvent the regulatory mandate of TSCA. But we do not see how the Agency's encouragement of voluntary submission to testing compels that conclusion. A voluntary system may be a more efficient alternative means of regulating the chemical industry. Companies may voluntarily submit to testing because of public pressure and not because of an alleged regulatory threat. Furthermore, appellants do not claim that a mandatory system would be more effective than the voluntary system. . "Closed system intermediates” are chemicals that are "specifically insulated from release into the environment.” See Leavitt, 331 F.Supp.2d at 207. . The district court declined to address appellants' argument (apparently raised on supplemental briefing) that section 2619(a)(1) permits a court to enjoin the HPV Challenge Program. Id. at 208 n. 4. . Appellants argue in their reply brief that a report published by the Agency, which discusses HPV chemicals in relation to worker safety data gathered in the National Occupational Exposure Survey, shows that the Agency has made the finding of “substantial exposure” that is necessary to trigger the mandatory rulemaking duty. See Reply Br. 2-5. While we find this argument more compelling than those raised by appellants in the district court and in their main brief, we need not decide whether the report operates as de facto findings because "[arguments raised for the first time in an appellate reply brief are not properly before the court.” D’Alessio v. SEC, 380 F.3d 112, 120 n. 11 (2d Cir.2004) (quoting United States v. Hernandez-Fundora, 58 F.3d 802, 810 n. 3 (2d Cir.1995)). Thus, the pending motion to supplement the record with this document is moot. . Appellants argue that the district court incorrectly disregarded the public statements because they do not pertain to CSIs. They argue that there is evidence that CSIs pose some risk of exposure, and thus, might be covered by the general statements. As a threshold matter, it is unclear whether or not appellants raised this argument before the district court, and thus, it is unclear whether it is properly before us. Nevertheless, even if the statements did apply to all HPV chemicals, we find that they would not constitute de facto findings. .We also note the somewhat disingenuous nature of this argument, given appellants’ attempt to convince this Court that the Agency’s statements about risk of release and exposure may apply to CSIs. See supra note 7. . The Agency contends that this process is crucial to its findings — both scientifically and from a policy perspective. . The Agency also points out that the appellants have not proved that HPV chemicals are a "category” under section 2625(c)(2)(A). The Agency argues that it has made no findings as to any subset of HPV chemicals for which they have recommended or accepted testing because the "robust summaries” have not been subjected to the same kind of scrutiny and analysis that would ordinarily go into making findings. . The Agency claims that it was in response to this decision that it developed its protocol for making findings in 1993. . Section 2619, which governs civil suits under TSCA reads: (a) In general Except as provided in subsection (b) of this section, any person may commence a civil action - (1) against any person (including (A) the United States, and (B) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of this chapter or any rule promulgated under section 2603, 2604, or 2605 of this title, or subchapter II or IV of this chapter, or order issued under section 2604 of this title or sub-chapter II or IV of this chapter to restrain such violation, or (2) against the Administrator to compel the Administrator to perform any act or duty under this chapter which is not discretionary. 15 U.S.C. § 2619(a)(1), (2).

United States v. Magnesium Corp.

GORSUCH, Circuit Judge. As its name advertises, U.S. Magnesium produces magnesium, though in doing so it also generates various waste byproducts. This lawsuit concerns five of those wastes. The government says that U.S. Magnesium’s handling of the wastes must but hasn’t complied with regulations promulgated under Subtitle C of the Resource Conservation and Recovery Act of 1976 (“RCRA”). For its part, U.S. Magnesium challenges the premise of the government’s suit, arguing that the Environmental Protection Agency (“EPA” or the “Agency”) exempted the five wastes from Subtitle C’s strictures in a prior interpretation of its own regulation. And, U.S. Magnesium says, the Agency cannot change that interpretation now, at least not without first complying with the notice and comment procedures of the Administrative Procedure Act (“APA”). At summary judgment, the district court agreed with U.S. Magnesium and entered judgment in its favor. We must vacate that judgment. Even if we assume with U.S. Magnesium that a definitive regulatory interpretation prohibits an agency from later changing course and issuing a new interpretation without first undergoing notice and comment, that’s simply not our case. The only prior EPA interpretation U.S. Magnesium can point to is, at best, a tentative one. Because EPA never previously adopted a definitive interpretation, it remained free, even under the legal precedents on which U.S. Magnesium seeks to rely, to change its mind and issue a new interpretation of its own regulations without assuming notice and comment obligations. I U.S. Magnesium mines and processes magnesium at its plant in Rowley, Utah, on the western shore of the Great Salt Lake. The Rowley facility, as it’s known, extracts primary magnesium using what U.S. Magnesium refers to as the “anhydrous” process. That process — intricate, sophisticated, and well known to the parties — yields a variety of dangerous waste products. To make those waste products less dangerous, the facility uses a number of pollution-control measures. And many of these measures in turn generate other wastes, some of which are dangerous in their own right. This case concerns the interaction between five such “pollution-control wastes” and RCRA. By way of background, we first outline the relevant RCRA regulatory history (Section I.A) and the history of this lawsuit (Section I.B), before turning to our analysis of the appeal now before us (Section II). A In Subtitle C of RCRA, Congress required EPA to promulgate regulations establishing a comprehensive regulatory scheme for the transportation, treatment, and disposal of hazardous wastes. See 42 U.S.C. §§ 6921-6939f. Meanwhile, Subtitle D of the statute addressed the regulation of nonhazardous solid wastes and authorized EPA to prepare regulations subjecting these wastes to less rigorous requirements. See id. §§ 6941-6949a. After RCRA’s enactment, EPA in 1978 proposed regulations implementing Subtitle C for notice and comment. Under that proposal, wastes related to the processing of ores or minerals generally were to be subject to Subtitle C, rather than Subtitle D. At the same time, mineral processing wastes produced in “very large volumes” but that were believed to pose “relatively low” health risks — a category apparently anticipated to include at least some of the wastes produced at Rowley — were to benefit from less stringent Subtitle C regulations than other hazardous wastes. See 43 Fed.Reg. 58,946, at 58,991-92 (1978). After proposing its rule and receiving public comment, however, EPA changed its mind on this particular point, and the final Subtitle C regulations the Agency issued in 1980 treated large volume, low risk mineral processing wastes as hazardous wastes subject to the same stringent Subtitle C requirements as other such wastes. See 45 Fed.Reg. 33,154, at 33,173-75 (1980). Just before EPA’s final Subtitle C regulations were to take effect, however, Congress reentered the picture. Apparently unsatisfied with the Agency’s final decision to subject all hazardous mineral processing wastes to more stringent Subtitle C regulations, Congress enacted the so-called Bevill Amendment, named for its principal legislative sponsor. See Pub.L. No. 96-482, 94 Stat. 2334, codified at 42 U.S.C. § 6921(b)(3)(A)(ii). The Bevill Amendment essentially sent EPA back to the drawing board when it came to wastes generated in connection with the processing of ores and minerals. Congress required the Agency to conduct a “comprehensive study on the adverse effects on human health and the environment, if any, of the disposal and utilization of solid waste from the extraction, beneficiation, and processing of ores and minerals,” and to produce in three years time a report for Congress’s consideration. 42 U.S.C. § 6982(p); see also id. § 6982(f). To forestall any interstitial regulation, the Amendment required EPA to postpone the application of Subtitle C regulations to all mineral processing wastes until at least six months after the submission of the congressional report. Id. § 6921(b)(3)(A). In addition, Congress required EPA to determine' — or redetermine, on the basis of “information developed or accumulated pursuant to such study, public hearings, and comment” — whether it should regulate ore and mineral processing wastes under Subtitle C or under a less stringent regime, such as Subtitle D. Id. § 6921(b)(3)(C). See generally Envt’l Def. Fund v. EPA, 852 F.2d 1316, 1318-20 (D.C.Cir.1988). So it is that EPA set out to determine the proper scope of the ■ so-called Bevill exemption from RCRA Subtitle C. Eventually, the Agency published a proposed rule laying out various criteria to identify which mineral processing wastes should be held exempt from Subtitle C in light of the Bevill Amendment and subject instead to less onerous regulations, the exact details of which the Agency had yet to specify. 53 Fed.Reg. 41,288 (1988). In response to EPA’s call for comments, the then-owner of the Rowley facility nominated various of the wastes it produced for exemption under these criteria. Aple. Supp.App. at 11, 15. After various regulatory investigations and following more notice and comment, EPA issued a new rule in September 1989. 54 Fed.Reg. 36,592 (1989). This rule finalized the criteria a waste must meet to qualify for exemption from Subtitle C. Among other things, the criteria required a candidate waste to be “uniquely associated with mineral industry operations” and produced in “high volumes” and with “low hazard” levels — thus closely tracking and elaborating EPA’s initial proposal from back in 1978. See id. at 36,628-31. Applying the criteria it had announced, EPA proceeded to opine that several wastes, including “[p]rocess wastewater from primary magnesium production by the anhydrous process” — the category of wastes at issue in this case — were likely candidates for exemption, subject to further data collection and study, the required report to Congress, and a final Agency determination. See id. at 36,631 & 36,642. See generally Solite Corp. v. EPA, 952 F.2d 473, 480-82 (D.C.Cir.1991) (per curiam). In July 1990, EPA submitted its Report to Congress on Special Wastes from Mineral Processing. See 55 Fed.Reg. 32,135 (1990) (announcing availability of report). The Report contained a detailed study of each of the various wastes previously proposed for exemption and recommended the exemption of many, including “[pjrocess wastewater from primary magnesium processing by the anhydrous process,” id. at 32,136, though in doing so the Agency repeatedly noted that its “findings” on this score remained “tentative,” id. at 32,135. Accordingly, EPA encouraged interested parties to review the Report and offer comments, which the Agency said it would use “in conjunction with the Report ... to make the final regulatory determination.” Id. After publishing its Report to Congress and considering the public comments it had invited, EPA promulgated a “[f]inal regulatory determination and final rule” in June 1991. This rule sought to apply the criteria for exemption announced in the Agency’s 1989 rule to certain candidate wastes. 56 Fed.Reg. 27,300, at 27,300 (1991). In so doing, EPA confirmed that “[pjrocess wastewater from primary magnesium processing by the anhydrous process,” among many other candidate wastes, now definitively qualified for exemption from Subtitle C and should be subject to less onerous regulatory terms, mostly under Subtitle D. Id. at 27,307. In this final rule, however, EPA did not purport to interpret the phrase “[pjrocess wastewater from primary magnesium processing by the anhydrous process.” Id. at 27,306-07. Beginning in 1991, EPA, the operators of the Rowley facility, and the State of Utah engaged in a series of discussions, wrote letters, and debated what this phrase encompasses and what it does not. Ultimately, the parties reached loggerheads. U.S. Magnesium took the view that the 1991 final rule exempted from Subtitle C all of the Rowley facility’s pollution-control wastes. The Agency disagreed, arguing that its rule only exempted some such wastes and that others remained subject to Subtitle C disposal requirements. This lawsuit followed in 2001. B In its 2001 complaint, the government sought injunctive relief and civil penalties for various alleged violations of RCRA and its implementing regulations. In 2005, the government filed an additional, related complaint — eventually consolidated with its RCRA complaint — alleging violations of a different statute, the Toxic Substances Control Act (“TSCA”). See U.SApp. Vol. I at 145-46. But the heart of the lawsuit always was and remains the status of five wastes, appropriately dubbed “the Complaint wastes.” Before the district court, the government argued that these wastes don’t qualify for exemption from Subtitle C because they’re not “[p]rocess wastewater from primary magnesium processing by the anhydrous process,” as required by EPA’s 1991 rule. See Second Am. Compl. ¶ 62, U.S.App. Vol. I at 109. This argument splits into two parts: according to EPA, most of the Complaint wastes aren’t — in the words of the rule — “from primary magnesium processing,” while the final remaining Complaint waste doesn’t qualify as a “wastewater.” Some explanation is in order. The company’s magnesium production process generates large amounts of chlorine gas, which the company then processes to produce hydrochloric acid and chlorine for its own use and for sale. And the company’s hydrochloric acid and chlorine production processes themselves yield various wastes. The government argued to the district court that these wastes — four of the five Complaint wastes — don’t qualify for exemption because they’re not “process wastewater from primary magnesium processing.” 56 Fed.Reg. at 27,807 (emphasis added). Rather, they’re process wastewaters from the processing of something else. See, e.g., United States’ Combined Summary Judgment Memorandum at 41 (“The wastewaters that are the subject of the Complaint are wastewaters from the processing of chlorine and hydrogen chloride gasses [sic], not from the processing of the mineral magnesium.”). Likewise, EPA took the position that, even if the fifth Complaint waste — dry anode dust — is the direct result of magnesium processing, it still isn’t a “wastewater” within the meaning of the 1991 rule, but rather a non-exempt waste solid. See id. at 38. Thus, to the Agency’s view, none of the five Complaint wastes fits under the umbrella of wastes exempted from regulation under Subtitle C. In reply, U.S. Magnesium rested heavily on EPA’s 1990 Report to Congress. In the company’s view, certain language and a diagram in the Report suggested strongly that EPA had, at least then, interpreted the phrase “[p]roeess wastewater from primary magnesium processing by the anhydrous process” to mean that all pollution-control wastes produced at the Rowley facility, including each of the five Complaint wastes, were exempt from regulation under Subtitle C. In the company’s view, EPA’s lawsuit now sought to enforce a different, narrower interpretation of the term “[p]rocess wastewater from primary magnesium processing by anhydrous process.” And under principles of administrative law, U.S. Magnesium submitted, this EPA could not do. U.S. Magnesium submitted that an agency may not interpret its own regulations in a way that conflicts with its own prior interpretation — at least not without first engaging in notice and comment, a process EPA admittedly had not undertaken. Following extensive proceedings over several years that culminated in briefing at summary judgment, the district court eventually agreed with U.S. Magnesium. The court seemed to consider EPA’s current interpretation of its 1991 rule — that the five Complaint wastes are not “[p]rocess wastewater from primary magnesium processing by the anhydrous process” — to be “plausible” as an initial matter. See D. Ct. Op. at 25 (holding that “each of the parties’ interpretations of the exemption for primary magnesium processing waste-waters,” the language used in the 1991 final rule, “[is] plausible”). But, the court held, the Agency’s current interpretation was different from the interpretation it previously adopted in its 1990 Report to Congress and elsewhere. And, the court seemed to believe, EPA could not now change its interpretation of its own 1991 rule without first providing an opportunity for notice and comment. See Answer Br. at 29 (U.S. Magnesium characterizing the district court opinion as having “rejected the government’s current interpretation because it was inconsistent with the original interpretation”). Given all this, the district court held that partial summary judgment for U.S. Magnesium on the Complaint waste claims was required as a matter of law. Of course, a partial summary judgment does not a final judgment make, and the jurisdiction of the federal circuit courts ordinarily extends only to the final judgments of the federal district courts. See, e.g., Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (citing 28 U.S.C. § 1291). As a result, and to manufacture a final judgment out of the district court’s partial summary judgment for U.S. Magnesium, the parties stipulated to the dismissal with prejudice of “[a]ll remaining claims pending in this action.” Final Judgment, U.S.App. Vol. I at 89. The district court granted the motion, thus making the “summary judgment ruling ... a final and appealable judgment.” Id. It is this judgment EPA now appeals to us. II We review appeals from a district court’s decision to grant summary judgment de novo, and will affirm only if, viewing the facts in the light most favorable to the non-movant, we discern no genuine dispute of material fact in need of resolution by a factfinder and conclude that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). As it happens, this case presents a pure question about the legal consequences of undisputed facts. The precise contours of that question, though, require some explanation. That is where we begin (Section II.A) before turning to the parties’ arguments about that question (Section II.B) and finally our disposition of it (Section II.C). A In identifying what is in dispute in this case, it is important to start by delineating what isn’t. While it appears much may have once been disputed in the district court, see supra notes 5 & 6, the case as it has been briefed to us has narrowed considerably. Before us, the parties don’t dispute that EPA’s 1991 final rule is “ambiguous.” See Answer Br. at 34. As U.S. Magnesium argues and EPA doesn’t contest, the 1991 rule — exempting from regulation under Subtitle C “process wastewater from primary magnesium processing by the anhydrous process” — is anything but self-defining. See id. Next, the parties also agree that the Agency’s current interpretation of that language — an interpretation that excludes all of the five Complaint wastes — is, as the district court noted, a “plausible” one. See id. at 32. Finally, the parties all acknowledge that, usually at least, an agency’s interpretation of its own ambiguous regulation is entitled to deference from the courts under Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). See Answer Br. at 30 (“Nor do the parties dispute that where a regulation is ambiguous, an agency’s interpretation of its own regulation must be given substantial deference.”). With all this agreed, or at least not disputed, we are in the end asked to decide just one question of law: whether EPA is precluded from pursuing its current and concededly plausible interpretation of its ambiguous 1991 regulation, under which the five Complaint wastes do not qualify as “process wastewater from primary magnesium processing by the anhydrous process,” because the Agency previously — especially in its 1990 Report to Congress— offered a different and inconsistent interpretation of that language. As U.S. Magnesium puts it, “[t]he sole issue presented in this appeal is whether EPA is bound by its original, contemporaneous interpretation of an ambiguous regulation”. Stated otherwise, can EPA change its original interpretation of the regulation without following the [notice and comment] procedural requirements of the Administrative Procedure! ] Act (“APA”)”? Answer Br. at 2. U.S. Magnesium’s brief sometimes hints that EPA’s current interpretation of the language in its 1991 final rule might be challenged as arbitrary and capricious or otherwise unlawful in its own right, apart from any purported inconsistency with EPA’s own prior interpretation of the rule’s terms. See, e.g., Answer Br. at 55-60; see also Opening Br. at 27-31, 37-42 (defending reasonableness of Agency’s current view). But the company doesn’t develop any such argument before us. So, for example, U.S. Magnesium’s appellate brief never cites § 706 of the APA or any other legal authority necessary to advance an argument of that sort. Instead, each time the company might be perceived as raising some other complaint, it recurs to the theme that the real problem is the inconsistency between the Agency’s current interpretation of the language in its 1991 rule and the prior interpretation EPA gave that same language, especially in its Report to Congress. See, e.g., Answer Br. at 2 (telling us this inconsistency is the “sole issue” in this case); id. at 30 (“The dispute centers on whether any deference must be given to an agency’s later reinterpretation of a regulation that substantially changes its original interpretation.”); id. at 33 (“[T]he only remaining issue is whether EPA’s contemporaneous interpretation of the Bevill Amendment exemptions is inconsistent with EPA’s current interpretation.”). And all of the case law the company cites to us concerns only whether and under what circumstances an agency may amend or abandon its interpretation of a previously adopted substantive (or legislative) rule. See Answer Br. at 30-33. B Having isolated the sole issue presented for our decision, what do the parties have to say about it? According to U.S. Magnesium, EPA first interpreted the ambiguous language of its 1991 rule in its 1990 Report to Congress. Of course, that leads one to wonder how an agency might in 1990 interpret a rule that didn’t come into existence until 1991. But to this the company has a ready reply. The 1991 regulation used the same ambiguous language as the 1989 rule: “[pjrocess wastewater from primary magnesium processing by the anhydrous process.” 56 Fed.Reg. at 27,307. And the 1990 Report to Congress interpreted this language. So, as a practical matter, U.S. Magnesium says, EPA’s Report to Congress discussing this language from the 1989 rule also amounts to an interpretation of the 1991 rule. See U.S. Magnesium’s Memorandum in Support of Partial Summary Judgment at 48. And in the 1990 Report, the company adds, EPA effectively took the view that all of the Rowley facility’s pollution-control wastes, including the five Complaint wastes, were exempt from the strictures of Subtitle C. Having espoused this interpretation of its own regulation, U.S. Magnesium argues, the Agency must abide it unless and until it adopts a new interpretation through notice and comment rulemaking. As the company sees it, EPA’s current enforcement action represents the Agency’s impermissible attempt to short-circuit that required procedure. In response, the Agency doesn’t seem to dispute that its 1990 Report effectively interpreted its later 1991 rule by offering a view about the meaning of the phrase “process wastewater from primary magnesium processing by the anhydrous process.” So, for purposes of this appeal, we will assume without deciding that to be the ease. Instead, EPA focuses its fire on the argument that the initial interpretation it offered in the 1990 Report to Congress was a tentative one, and an agency, EPA says, need not undertake the rigors of notice and comment to change a merely tentative interpretation of its own rules. C On this score, we must agree with EPA. Even assuming the rule of administrative law that U.S. Magnesium urges us to adopt — that an agency may not interpret a substantive (or legislative) regulation one way and then later adopt a competing interpretation without undergoing notice and comment rulemaking — the initial interpretation is only binding if it is definitive. And, as we will explain, nothing in EPA’s Report to Congress, or in its other communications or actions, qualifies as that. So, even if we accept the company’s premise that EPA previously adopted an interpretation of its 1991 final rule, and that EPA now seeks to modify that interpretation, U.S. Magnesium’s argument still suffers a fundamental flaw. It is on this flaw that we focus our attention. 1 In support of its claim that an agency may not abandon a prior interpretation of its own ambiguous regulation without first going through notice and comment, U.S. Magnesium directs our attention to certain cases from the D.C. Circuit, beginning with Alaska Professional Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C.Cir.1999). In that case, plaintiffs who worked as fishing and hunting guides in Alaska challenged a Federal Aviation Administration (“FAA”) notice that required the guides to comply with commercial airline regulations. The notice broke dramatically with the practice of the FAA’s Alaskan Region, which for decades had advised guides that they were exempt from restrictions on commercial pilots. The court of appeals declared the new notice invalid, holding that the agency couldn’t “significantly revise[]” its previous “definitive interpretation” of its own regulations without first engaging in “notice and comment.” Id. at 1034. In reaching that holding, Alaska Hunters relied almost exclusively on dicta from an earlier D.C. Circuit case suggesting that “[o]nce an agency gives its regulation an interpretation, it can only change that interpretation as it would formally modify the regulation itself: through the process of notice and comment rulemaking.” Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579, 586 (D.C.Cir.1997). And to reach that conclusion, Paralyzed Veterans in turn started with the well-known premise that the APA generally requires an agency to allow for notice and comment before it issues any new rules. See 5 U.S.C. § 553. Of course, § 553 specifically exempts interpretive rules from its notice and comment requirements, see 5 U.S.C. § 553(b)(A), but this exemption, Paralyzed, Veterans suggested, doesn’t apply when an agency amends a previous interpretative rule. This is so, the court said, because a different provision of the APA defines the term “rule making” to include the “agency process for ... amending ... a rule,” id. § 551(5), so, ipso facto, amending a rule requires notice and comment. See Paralyzed Veterans, 117 F.3d at 586. The implicit reasoning appears to be this: if an agency amends its interpretation of a rule, it is effectively “amending ... [the] rule” itself, 5 U.S.C. § 551(5), and the APA by its own terms defines this amendment as a kind of rule-making, something the agency may not accomplish without notice and comment procedures. “To allow an agency to make a fundamental change in its interpretation of a substantive regulation without notice and comment,” the court explained, would “undermine” the notice and comment provisions of the APA. Paralyzed Veterans, 117 F.3d at 586. Paralyzed Veterans and Alaska Hunters have generated considerable debate. As the government points out, the issue whether an agency may alter its interpretation of its own regulation without notice and comment is the subject of a circuit split, with the Third, Fifth, and Sixth Circuits apparently adopting the D.C. Circuit’s view and the First and Ninth Circuits seemingly taking the contrary position. Our circuit, as far as we can tell, hasn’t yet had an opportunity to weigh in. Commentators, however, have joined the fray. As a matter of statutory construction, some critics suggest, the text of the APA can’t bear the weight foisted upon it by Alaska Hunters. The D.C. Circuit relied primarily on APA § 551(5) for its holding, but that section, these scholars observe, merely offers a definition of rule-making. For a prescription of how to conduct rulemaking, we must look instead at § 553, which makes perfectly clear that the notice and comment procedures required for substantive (or legislative) rules just don’t apply to “interpretative rules.” 5 U.S.C. § 553(b)(A) (“Except when notice or hearing is required by statute, this subsection [requiring notice and comment] does not apply ... to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”). And so it doesn’t matter whether an interpretive rule is the first or second or seventeenth in a series: on this view, none has to undergo notice and comment before taking effect. The Alaska Hunters regime misses this point, the argument goes, and in so doing flouts the APA’s clear distinction between interpretive and substantive rules. See, e.g., Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 Admin. L.Rev. 547, 567 (2000); Jon Connolly, Note, Alaska Hunters and the D.C. Circuit: A Defense of Flexible Interpretive Rulemaking, 101 Colum. L.Rev. 155,172-73 (2001). Other scholars take a different view. One possible way to defend the Alaska Hunters doctrine, they suggest, may be that an interpretation of a substantive (or legislative) regulation essentially becomes part of that regulation itself. On this logic, a superseding interpretation would necessarily amend the substantive regulation and thus require notice and comment. See Richard W. Murphy, Hunters for Administrative Common Law, 58 Admin. L.Rev. 917, 923 (2006). 2 Though U.S. Magnesium spends considerable energy encouraging us to join the circuits that have adopted Alaska Hunters, and invites us to conclude that those circuits have the better view of administrative law, we have no need to wade into such deep waters to decide the appeal before us. This is because, even if we assume without deciding that Alaska Hunters’s reading of the APA is the correct one (as U.S. Magnesium argues), the company still cannot prevail. By its terms, the Alaska Hunters doctrine applies only to definitive regulatory interpretations; even under Alaska Hunters, an agency remains free to disavow and amend a tentative interpretation of one of its rules without notice and comment. And the only prior interpretation U.S. Magnesium has identified in this case can fairly be characterized as no more than that — tentative. Under the Alaska Hunters line of cases on which U.S. Magnesium relies, an agency commits itself to a particular interpretation of its own regulation only when it adopts that interpretation definitively, and “conditional or qualified statements, including statements that something ‘may be’ permitted, do not establish definitive and authoritative interpretations.” Met-West Inc. v. Sec’y of Labor, 560 F.3d 506, 509-10 (D.C.Cir.2009); see also Devon Energy Corp. v. Kempthorne, 551 F.3d 1030, 1041 (D.C.Cir.2008) (holding that “guidance documents [that] were far from conclusive in what they said” were insufficient to bind agency’s future interpretation of regulation); Darrell Andrews Trucking, Inc. v. Fed. Motor Carrier Safety Admin., 296 F.3d 1120, 1126 (D.C.Cir.2002) (holding that agency’s “ambiguous” regulatory guidance did not “mark a definitive interpretation” and thus did not constrain its subsequent discretion); Ass’n of Am. R.R. v. Dep’t of Transp., 198 F.3d 944, 948-50 (D.C.Cir.1999) (holding agency “never adopted a definitive interpretation of [the regulation] that it could change only through notice and comment rulemaking” because “none of th[e] documents [cited by the regulated party] even comes close to the express, direct, and uniform interpretation” necessary to constrain agency’s interpretive discretion); cf. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 516, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (rejecting university’s argument that agency had adopted inconsistent interpretive positions because agency’s initial “intermediary letter did not purport to be a comprehensive review of all conditions” that the ambiguous regulation might impose). Even under the Alaska Hunters doctrine, then, before an agency adopts a definitive interpretation of its own rule it remains free to hear new arguments, make adjustments, and change directions, all without having to undergo notice and comment. The prior interpretation on which U.S. Magnesium most prominently hangs its hat is the Report to Congress. The company argues strenuously and at length that EPA’s current interpretation of its ambiguous 1991 final rule is inconsistent with the interpretation the Agency previously offered in its 1990 Report. And in that Report, the company says, “EPA interpreted its regulation ... as covering the aggregated wastestreams from all of the [Rowley facility’s] pollution-control operations.” Answer Br. at 24 (emphasis added). But even assuming (again without deciding) that the Report did suggest that all of the Rowley facility’s pollution-control wastes qualify as “process wastewater from primary magnesium processing by the anhydrous process,” and so are exempt from Subtitle C, U.S. Magnesium offers us no reason to think that this constituted anything more than a tentative view. To start, the Report itself repeatedly describes its conclusions as “tentative.” And when it issued the Report, EPA expressly solicited public comments, which it said it planned to use “in conjunction with the Report to Congress to make the final regulatory determination[s]” that it would enshrine in what was, ultimately, the final 1991 regulation. See 55 Fed.Reg. at 32,-135. More process was thus expressly contemplated and actually undertaken. It may be that an agency can offer a definitive interpretation of its own regulations in a variety of forms, perhaps even in a congressional report. And no doubt a report to Congress is a solemn thing. But U.S. Magnesium hasn’t given us any reason to conclude that the Report at issue in this case was anything other than tentative. To this, U.S. Magnesium replies that there’s more than just the Report to Congress to suggest that EPA previously adopted an interpretation of its 1991 rule that is at odds with its current interpretation. The company also points to certain of EPA’s actions and communications. By way of example, U.S. Magnesium highlights the fact that the Agency, in June 1989, tested an aggregated wastestream at the Rowley facility, rather than individual wastes from the facility’s different pollution-control devices. This action, the company says, confirms that in its 1990 Report to Congress EPA intended to treat all of the facility’s pollution-control wastes as a unified whole for purposes of any exemption from Subtitle C, rather than distinguish between different wastes as it seeks to do now. See Answer Br. at 37-39. This allegation has sparked an extended dispute between the parties about what exactly transpired during the site visit. EPA’s site visit director, Robert Hall, has offered a declaration explaining that his sampling team wanted to test “numerous wastestreams discharging into ditches from the ends of unmarked pipes,” but that their access was “impeded” by steep embankments and piles of refuse and debris. Declaration of Robert Hall, U.S.App. Vol. III at 581. U.S. Magnesium, for its part, challenges Mr. Hall’s account, arguing EPA could have safely tested individual wastestreams if it had really wished to do so. But all this tussling over the facts overlooks the salient legal point. Even if the 1989 site visit evinced EPA’s contemporaneous intention to aggregate all of the Rowley facility’s pollution-control wastes for purposes of an exemption from Subtitle C, it still doesn’t tell us whether EPA’s commitment to that view of its regulations in its 1990 Report was definitive. We’ve operated in this opinion on the assumption that the 1990 Report itself demonstrated an intent to treat all of the Rowley facility’s pollution-control wastes as a unified whole for purposes of the Subtitle C analysis; at best, the 1989 site visit seems to tell us no more than what we’ve already assumed. However viewed, the site visit simply offers no insight into whether the 1990 Report was itself a definitive or tentative interpretation. Beyond the site visit, U.S. Magnesium directs us to certain correspondence as evidence of EPA’s alleged prior inconsistent interpretation. And the company also points to the fact that, under EPA’s current view disfavoring the aggregation of individual wastestreams, none of the waste from the Rowley facility would meet the high volume criteria set forth in the final 1989 rule for exemption from regulation under Subtitle C. See Answer Br. at 51-55; see also 54 Fed.Reg. at 36,629-31. These arguments once again lead the parties into thickly factual disputes. EPA responds, for example, that U.S. Magnesium has misread the parties’ correspondence. It argues that any previous Agency error concerning the volume of the various pollution-control wastes was the result of bad information provided by the facility’s then-owner. And it adds that any inaccuracy in its previous measurement of the wastes produced at Rowley doesn’t make a difference anyway because it isn’t seeking to hold U.S. Magnesium to Subtitle C’s terms for any wastes other than the five Complaint wastes. But once again, none of this matters to the resolution of this appeal. What does matter is that none of these arguments — no more than those analyzed above — establishes that EPA in its Report to Congress, or elsewhere, adopted a definitive, rather than a tentative, interpretation that the five Complaint wastes were “process wastewater from primary magnesium processing by the anhydrous method.” 3 Having held that EPA was in this case free under Alaska Hunters doctrine to change its interpretation of its 1991 rule without undertaking notice and comment, one might worry that administrative law has simply abandoned regulated parties to the whims of an agency’s arbitrary interpretive reversals. What about the reasonable and settled expectations of the regulated public? As it happens, however, there is no reason for undue alarm; at least two other layers of protection exist, even without the added aegis of Alaska Hunters. First, the APA itself empowers courts to review “agency action, findings, and conclusions” if they are “arbitrary and capricious, an abuse of direction, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This requirement means, among other things, that an agency “must cogently explain why it has exercised its discretion in a given manner.” Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983); see also Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077, 1089 (D.C.Cir.2007). It is hard to see how this obligation could be any less salient when an agency seeks to abandon a prior interpretation in favor of a new one. See Manning, supra, at 936. Second, even if Congress repealed the APA tomorrow, the Due Process Clauses of the Fifth and Fourteenth Amendments would still prohibit the imposition of penalties without fair notice. See U.S. Const. amend. V; id. amend. XIV, § 1. Due process, after all, requires at the least that “laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). This principle applies to civil as well as criminal penalties, albeit in slightly different form. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). And it pertains when an agency advances a novel interpretation of its own regulation in the course of a civil enforcement action. See Walker Stone Co. v. Sec’y of Labor, 156 F.3d 1076, 1083-84 (10th Cir.1998) (“In order to satisfy constitutional due process requirements, regulations must be sufficiently specific to give regulated parties adequate notice of the conduct they require or prohibit.” (quoting Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362 (D.C.Cir.1997))); see also General Elec. Co. v. EPA, 53 F.3d 1324, 1328-34 (D.C.Cir.1995); cf. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170-71, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (“[I]nterpretive changes [to regulations must] create no unfair surprise.”). If an agency could punish a regulated party for following the agency’s own interpretation of its own ambiguous regulations, after all, “the practice of administrative law would come to resemble ‘Russian Roulette.’ ” Satellite Broad. Co. v. FCC, 824 F.2d 1, 4 (D.C.Cir.1987). One might wonder about the potential application of these doctrines to U.S. Magnesium’s cause. Interesting as these questions may be, though, they are not ones that we have to or may answer in this case. At no point in the proceedings before this court has the company raised any argument or sought decision of any issue arising under either § 706(2)(A) of the APA or the Due Process Clause. Accordingly, these arguments are waived. See Rollins Envtl. Servs. (NJ) Inc. v. EPA 937 F.2d 649, 652 n. 2 (D.C.Cir.1991) (finding waiver of due process notice argument in agency enforcement action involving novel interpretation of ambiguous regulation); see also Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1172 n. 17 (10th Cir.2007). For purposes of summary, we hold that EPA hasn’t previously adopted a definitive interpretation of its 1991 rule. Even under the case law U.S. Magnesium asks us to follow, the Agency is at liberty to adopt without notice and comment a reasonable interpretation of that ambiguous regulation. At least before us, U.S. Magnesium does not dispute that EPA has done so with this litigation. For this reason, we vacate the entry of summary judgment in U.S. Magnesium’s favor and remand this matter to the district court. We do not prejudge what, if any, further proceedings may be appropriate in that court in light of and consistent with this opinion. . U.S. Magnesium is just the latest owner of this facility. From 1980 to 1989, it was owned by Amax Inc. Amax sold the facility in 1989 to Magnesium Corporation of America ("MagCorp”), which in turn sold all of its assets to U.S. Magnesium in 2002. Both MagCorp and U.S. Magnesium, however, are owned and controlled by the same corporate parent, The Renco Group, which in turn is managed by private trusts created for the benefit of Ira Rennert and his family. See Second Am. Compl., U.S.App. Vol. I at 96-98; Answer Br., Corporate Disclosure Statement; Opening Br. at 6 & n. 3. The government thus brought its lawsuit against not just U.S. Magnesium, but also against the various so-called “Renco parties”: Renco Metals, Inc., Renco Group, the Ira Rennert Revocable Trust, and Ira Rennert himself. See Opening Br. at 6 & n. 3; Second Am. Compl., U.S.App. Vol. I. at 110-13. (Other parties named in the original complaint were later dismissed by operation of superseding complaints. See U.S.App. Vol. I. at 6-7.) For ease of reference and except as otherwise noted, we refer to the appellees here collectively as "U.S. Magnesium.” . A brief vocabulary primer may be in order. The parties agree that "primary magnesium processing” refers to the extraction of magnesium directly from ore or mineral deposits, as opposed to the reprocessing of scrap metal. See Answer Br. at 4. “Anhydrous” literally means "without water,” and U.S. Magnesium apparently uses the term to indicate the fact that many of the key chemical reactions in the facility’s magnesium production process do not require the use of any water. See Opening Br. at 5; see also U.S. Magnesium’s Memorandum in Support of Motion for Partial Summary Judgment (6/26/06), at 5 n. 6. . A January 1990 rule later removed some wastes from the conditionally-retained category and disqualified them from receiving any exemption, though the rule didn’t alter the conditional status of magnesium processing wastes. See 55 Fed.Reg. 2322 (1990). . Accord 55 Fed.Reg. at 32,137 (“[T]he Agency developed two approaches for tentatively determining whether regulation under RCRA subtitle C is warranted ....") (emphasis added); id. (repeatedly describing what EPA "might find” in the future); see also Report to Congress, U.S.App. Vol. I at 184-85 (listing "[plrocess wastewater from primary magnesium processing by the anhydrous process” among "Wastes EPA Might Tentatively Recommend to Remain Under RCRA Subtitle D”); id. at 201 ("tentatively concluded"); id. at 202 (same). . While the district court did focus on the question when an agency may amend its interpretation of its own rule, the court also appears to have cast its legal gaze more broadly. At points, its summary judgment opinion seems to suggest that the court felt a de novo duty to "decide what constitutes 'process wastewater from primary magnesium processing by the anhydrous process.' ” D. Ct. Op. at 21-22. That view is incorrect. When regulatory language is "ambiguous,” as the district court acknowledged the language of the 1991 rule is, id. at 22, and an agency has offered a "plausible” interpretation of that language, as the district court seemed to agree EPA has in this case, id. at 25, the agency’s interpretation usually merits substantial deference, see Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). The district court, however, did not appear to grapple with this rule of administrative law. And perhaps as a result, U.S. Magnesium seeks to defend the district court's ruling on appeal by focusing on the court's extended discussion about asserted differences between EPA’s current interpretation of the language in its 1991 rule and prior interpretations the Agency had given the same language in the past. . As an initial matter, we must determine which claims of the operative complaint are at issue in this appeal. Essentially, the government’s lawsuit alleged three categories of violations: (1) the unlawful disposal of the five Complaint wastes, in violation of the RCRA Subtitle C regulations, (2) other violations of RCRA unrelated to the treatment of the five Complaint wastes, and (3) violations of TSCA. It is undisputed that this appeal involves only the first category of claims and that the second and third categories were dismissed by the stipulation of the parties. The government has indicated — and none of the defendants seems to dispute, despite opportunity to do so — that this first category includes claims 1, 4-7, and 9-15 of the second amended complaint. See Opposition to Renco Parties’ Motion to be Dismissed from Appeal, at 5. Our own examination of the operative complaint confirms the government's view. With respect to these remaining claims, the "Renco parties,” see supra note 1, have moved to be dismissed from this appeal on the basis that they are no longer parties to the dispute. The district court, they submit, only granted partial summary judgment on claims involving U.S. Magnesium, and the court's subsequent dismissal with prejudice of “all remaining claims pending in this action” included all of the government's claims against the Renco parties. This argument is incorrect. The claims at issue in the district court's partial summary judgment ruling, and alive before us in this appeal, named the Renco parties as defendants. Nothing in the district court’s subsequent dismissal with prejudice of other claims alters this fact. The Renco parties thus remain parties to this appeal and to EPA's RCRA claims involving the five Complaint wastes, and we deny their motion to be dismissed from this appeal. . Likewise, U.S. Magnesium doesn't develop an argument that EPA isn’t currently offering a plausible interpretation of the language of its 1991 rule but is instead covertly attempting to apply the criteria announced in its 1989 rule in an entirely new and different way, thus amending its 1991 substantive rule. And neither does the company complain that EPA is barred from consulting the criteria in its 1989 rule to inform its current interpretation of the terms of its 1991 rule. To be sure, the company hints at the former argument, primarily in its "Summary of Argument." See Answer Br. at 26 ("The government now wants to apply a different reading of the [1989 rule] criteria that conflicts with the way EPA applied those criteria and then explained its application to Congress.”). But this assertion never receives the sort of full exposition and joinder of issue necessary to enable our review. See Murrell v. Shalala, 43 F.3d 1388, 1389 n. 2 (10th Cir.1994) ("[I]ssues adverted to" but "unaccompanied by some effort at developed argumentation, are deemed waived.” (quotation marks omitted)); see also Bronson v. Swensen, 500 F.3d 1099, 1105 (10th Cir.2007) (“[Cjursory statements, without supporting analysis and case law, fail to constitute the kind of briefing that is necessary to avoid application of the forfeiture doctrine.”). The company doesn't, for example, cite any statutory authority or relevant case law necessary to support such an argument. To the contrary, and again, U.S. Magnesium directs us to case law regarding when an agency may alter its interpretation of a substantive rule; the company repeatedly treats EPA’s current view as an interpretation of the 1991 rule's ambiguous language; and the company engages the Agency’s use of the 1989 rule's criteria on its own terms, arguing that they hurt rather than help EPA's interpretation of the 1991 rule. . Section 553’s notice and comment rulemaking procedures generally control but are distinct from formal (or on the record) rulemaking procedures governed by § 556. . Compare SBC Inc. v. FCC, 414 F.3d 486, 498 (3d Cir.2005) ("[I]f an agency’s present interpretation of a regulation is a fundamental modification of a previous interpretation, the modification can only be made in accordance with the notice and comment requirements of the APA.”), Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 629 (5th Cir.2001) (“[TJhe APA requires an agency to provide an opportunity for notice and comment before substantially altering a well established regulatory interpretation.”), and Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 682 (6th Cir.2005) ("It is true that once an agency gives a regulation an interpretation, notice and comment will often be required before the interpretation of that regulation can be changed.” (emphasis omitted)), with Warder v. Shalala, 149 F.3d 73, 81-82 (1st Cir.1998), and Erringer v. Thompson, 371 F.3d 625, 632 (9th Cir.2004) (“[N]o notice and comment rulemaking is required to amend a previous interpretive rule.” (emphasis omitted)). Notably, neither Warder nor Erringer explicitly analyzes, or even discusses, Paralyzed Veterans or Alaska Professional Hunters. . U.S. Magnesium quotes Mission Group Kansas, Inc. v. Riley, 146 F.3d 775, 782 (10th Cir.1998), in an effort to show that this court has adopted the Alaska Hunters rule. See Answer Br. at 31. But the quoted material merely restates the hornbook maxim that substantive (or legislative) rules stake out new territory and thus require notice and comment, while interpretive rules merely explain existing legislative rules and thus do not. See 5 U.S.C. § 553; see also Richard J. Pierce, Jr., 1 Administrative Law Treatise § 6.4 (4th ed.2002). We have suggested, albeit in a general way, that agencies must provide some notice when they change the law, see Bartlett Mem'l Med. Ctr. v. Thompson, 347 F.3d 828, 846-47 (10th Cir.2003) (Briscoe, J., concurring and dissenting) (citing cases), but that doesn’t seem to us to answer the question that is the subject of the circuit split. . Some critics have also argued that Alaska Hunters defies the dictates of the Supreme Court. So, for example, they suggest that, by imposing more administrative procedure than the APA requires, Alaska Hunters might contravene the Court’s admonitions against that practice in Vermont Yankee. See William Funk, A Primer on Legislative Rules, 53 Admin. L.Rev. 1321, 1329-30 (2001); see also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). And Alaska Hunters sits in tension, they say, with the Court's view that “consistency with earlier and later pronouncements” is just one factor that bears upon judicial review of an agency’s interpretation, rather than an outcome-determinative test. See Pierce, supra, at 572-73 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)); see also id. at 572 n. 165 (citing Supreme Court cases). . The academic debate also proceeds beyond the legal realm we inhabit to the policy realm usually reserved for others, contending variously that Alaska Hunters does and does not promote sound policy. Some worry that its rule diminishes agency flexibility, discourages informal agency guidance, and deters agencies from interpreting their regulations. See Connolly, supra, at 169-72; see also Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring Proper Respect for an Essential Element, 53 Admin. L.Rev. 803, 847 (2001). Others reply that agency interpretations encourage and create settled public expectations that equity suggests shouldn't be lightly disturbed. See, e.g., Ryan DeMotte, Note, Interpretive Rulemaking and the Alaska Hunters Doctrine: A Necessary Limitation on Agency Discretion, 66 U. Pitt. L.Rev. 357, 370-76 (2004). . See Report to Congress, U.S.App. Vol. I at 184-85 (listing "[p]rocess wastewater from primary magnesium processing by the anhydrous process” among "[w]astes EPA [m]ight [tentatively [r]ecommend to [r]emain [u]nder RCRA Subtitle D” (emphasis added)); id. at 201 ("tentatively concluded”); id. at 202 (same). EPA’s Federal Register notice of the publication of the Report includes the same description of its conclusions. See 55 Fed. Reg. at 32,135 ("The report also presents two alternative decision-making approaches and tentative findings under each approach ....” (emphasis added)); id. at 32,137 ("[T]he Agency developed two approaches for tentatively determining whether regulation under RCRA subtitle C is warranted ....” (emphasis added)); see also id. (repeatedly describing what EPA "might find” in the future). . To be sure, an agency cannot sidestep the rule of Alaska Hunters merely by tacking the word "tentative” onto its every proclamation. It’s not enough for an agency just to say that its policy is tentative; to avoid the necessity of notice and comment, the policy must actually be tentative. Cf. Columbia Broad. Sys. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942) ("The particular label placed upon [the order] by the [agency] is not necessarily conclusive, for it is the substance of what the [agency] has purported to do and has done which is decisive.”). Trying to decide whether an interpretation is, in substance, definitive or tentative may in some cases prove challenging, much like the challenge that differentiating between substantive and interpretive rules has posed to courts for decades. See Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C.Cir.1987) (per curiam) (describing distinction between substantive and interpretive rules "as ‘tenuous,’ ‘fuzzy,’ 'blurred,' and, perhaps most picturesquely, 'enshrouded in considerable smog.' ” (citations omitted)). See generally John F. Manning, Nonlegislative Rules, 72 Geo. Wash. L.Rev. 893 (2004). In this case, however, U.S. Magnesium offers no persuasive reason why EPA's Report to Congress expresses, in its substance as well as semantics, anything other than a "tentative” interpretation, under any reasonable understanding of the term. . To avoid this result, one might seek to argue that the site visit and the testing of this-rather-than-that waste stream itself constituted a definitive regulatory interpretation, not just further evidence about the meaning of EPA's Report to Congress. But U.S. Magnesium doesn’t pursue this line of reasoning. See Answer Br. at 37-39 (arguing that EPA's conduct amounts to evidence of the Agency’s future intended interpretation in the Report). And we would in any event be hard pressed to credit it, given that, among other things, the June 1989 site visit came almost three months before the publication of EPA’s final rule on the Subtitle C exemption criteria in September 1989. . One might reply to all this by suggesting that courts shouldn't recognize a distinction between an agency’s tentative and definitive interpretations of its own regulations. After all, under Alaska Hunters, adopting a tentative interpretation seems like the best of all possible worlds for the agency: the agency can tell regulated parties what it wants them to do, and yet it's still free to embrace some new (assuredly tentative) interpretation whenever it wants. What's to motivate the agency, then, ever to make an interpretation definitive if it can just add "tentative” to its all proclamations as a magic word, a sort of abracadabra of administrative decisionmaking that frees it to change direction whenever it likes? Given these concerns, one might suggest that, rather than going too far, Alaska Hunters doesn’t go far enough: not only should the revision of definitive interpretations require notice and comment, but the reversal of tentative interpretations should, too. Whatever the merits of this hypothesis, though, it is not one that U.S. Magnesium has asked us to consider. As we’ve explained, U.S. Magnesium only urges us to follow Alaska Hunters as it currently stands, not to extend or adorn its teachings in novel ways, and the company has offered no reason why that doctrine required EPA to follow notice and comment in this case. . At oral argument, U.S. Magnesium did characterize its argument as one of “fundamental fairness” — a phrase evocative of the Constitution’s due process guarantee. But that argument appears nowhere in the company’s brief. We generally will not pass upon issues raised for the first time at oral argument on appeal, see Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir.1998), and we see no reason to deviate from that practice here.

Harmon Industries, Inc. v. Browner

HANSEN, Circuit Judge. Harmon Industries, Inc., (Harmon) filed this action pursuant to the Administrative Procedure Act, 5 U.S.C. § 706 (1994), seeking judicial review of a final decision of the United States Environmental Protection Agency (EPA). The district court granted summary judgment in favor of Harmon and reversed the decision of the EPA. The EPA appeals. We affirm. I. FACTS AND PROCEDURAL BACKGROUND Harmon Industries operates a plant in Grain Valley, Missouri, which it utilizes to assemble circuit boards for railroad control and safety equipment. In November 1987, Harmon’s personnel manager discovered that maintenance workers at Harmon routinely discarded volatile solvent residue behind Harmon’s Grain Valley plant. This practice apparently began in 1973 and continued until November 1987. Harmon’s management was unaware of its employees’ practices until the personnel manager filed his report in November 1987. Following the report, Harmon ceased its disposal activities and voluntarily contacted the Missouri Department of Natural Resources (MDNR). The MDNR investigated and concluded that Harmon’s past disposal practices did not pose a threat to either human health or the environment. The MDNR and Harmon created a plan whereby Harmon would clean up the disposal area. Harmon implemented the clean up plan. While Harmon was cooperating with the MDNR, the EPA initiated an administrative enforcement action against Harmon in which the federal agency sought $2,343,706 in penalties. Meanwhile, Harmon and the MDNR continued to establish a voluntary compliance plan. In harmonizing the details of the plan, Harmon asked the MDNR not to impose civil penalties. Harmon based its request in part on the fact that it voluntarily self-reported the environmental violations and cooperated fully with the MDNR. On March 5, 1993, while the EPA’s administrative enforcement action was pending, a Missouri state court judge approved a consent decree entered into by the MDNR and Harmon. In the decree, MDNR acknowledged full accord and satisfaction and released Harmon from any claim for monetary penalties. MDNR based' its decision to release Harmon on the fact that the company promptly self-reported its violation and cooperated in all aspects of the investigation. After the filing of the consent decree, Harmon litigated the EPA claim before an administrative law judge (ALJ). The ALJ found that a civil penalty against Harmon was appropriate in this case. The ALJ rejected the EPA’s request for a penalty in excess of $2 million but the ALJ did impose a civil fine of $586,716 against Harmon. A three-person Environmental Appeals Board panel affirmed the ALJ’s monetary penalty. Harmon filed a complaint challenging the EPA’s decision in federal district court on June 6, 1997. In its August 25, 1998, summary judgment order, the district court found that the EPA’s decision to impose civil penalties violated the Resource Conservation and Recovery Act and contravened principles of res judicata. See Harmon Indus., Inc. v. Browner, 19 F.Supp.2d 988 (W.D.Mo.1998). The EPA appeals to this court. II. DISCUSSION A. The Permissibility of Overfiling When reviewing a federal agency’s interpretation of a federal statute, a federal court must defer to the agency’s interpretation only if it finds that the agency’s interpretation is consistent with the plain language of the statute or represents a reasonable interpretation of an ambiguous statute. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We review de novo a district court’s findings and conclusions regarding the correctness of an agency’s statutory interpretations. See Moore v. Custis, 736 F.2d 1260, 1262 (8th Cir.1984). The Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901-6992K (1994), permits states to apply to the EPA for authorization to administer and enforce a hazardous waste program. See 42 U.S.C. § 6926(b). If authorization is granted, the state’s program then operates “in lieu of’ the federal government’s hazardous waste program. Id. The EPA authorization also allows states to issue and enforce permits for the treatment, storage, and disposal of hazardous wastes. Id. “Any action taken by a State under a hazardous waste program authorized under [the RCRA] [has] the same force and effect as action taken by the [EPA] under this subchapter.” 42 U.S.C. § 6926(d). Once authorization is granted by the EPA, it cannot be rescinded unless the EPA finds that (1) the state program is not equivalent to the federal program, (2) the state program is not consistent with federal or state programs in other states, or (3) the state program is failing to provide adequate enforcement of compliance in accordance with the requirements of federal law. See 42 U.S.C. § 6926(b). Before withdrawing a state’s authorization to administer a hazardous waste program, the EPA must hold a public hearing and allow the state a reasonable period of time to correct the perceived deficiency. See 42 U.S.C. § 6926(e). Missouri, like many other states, is authorized to administer and enforce a hazardous waste program pursuant to the RCRA. Despite having authorized a state to act, the EPA frequently files its own enforcement actions against suspected environmental violators even after the commencement of a state-initiated enforcement action. See Bryan S. Miller, Harmonizing RCRA’s Enforcement Provisions: RCRA Overfiling in Light of Harmon Industries v. Browner, 5 Environmental Law. 585 (1999). The EPA’s process of duplicating enforcement actions is known as overfiling. See id. The permissibility of overfiling apparently is a question of first impression in the federal circuit courts. See Harmon, 19 F.Supp.2d at 995. After examining this apparent issue of first impression, the district court concluded that the plain language of section 6926(b) dictates that the state program operate “in lieu” of the federal program and with the “same force and effect” as EPA action. Accordingly, the district court found that, in this case, the RCRA precludes the EPA from assessing its own penalty against Harmon. See id. The EPA contends that the district court’s interpretation runs contrary to the plain language of the RCRA. Specifically, the EPA cites section 6928 of the RCRA, which states that: (1) Except as provided in paragraph (2), whenever on the basis of any information the [EPA] determines that any person has violated or is in violation of any requirement of this subchapter, the [EPA] may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the [EPA] may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction. (2) In the case of a violation of any requirement of [the RCRA] where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 6926 of this title, the [EPA] shall give notice to the State in which such violation has occurred pri- or to issuing an order or commencing a civil action under this section. 42 U.S.C. § 6928(a)(1) and (2). The EPA argues that the plain language of section 6928 allows the federal agency to initiate an enforcement action against an environmental violator even in states that have received authorization pursuant to the RCRA. The EPA contends that Harmon and the district court misinterpreted the phrases “in lieu of’ and “same force and effect” as contained in the RCRA. According to the EPA, the phrase “in lieu of’ refers to which regulations are to be enforced in an authorized state rather than who is responsible for enforcing the regulations. The EPA argues that the phrase “same force and effect” refers only to the effect of state issued permits. The EPA contends that the RCRA, taken as a whole, authorizes either the state or the EPA to enforce the state’s regulations, which are in compliance with the regulations of the EPA. The only requirement, according to the EPA, is that the EPA notify the state in writing if it intends to initiate an enforcement action against an alleged violator. Both parties argue that the plain language of the RCRA supports their interpretation of the statute. We also are ever mindful of the long-established plain language rule of statutory interpretation, see Walker v. Dilworth, 2 U.S. (2 Dali.) 257, 259, 1 L.Ed. 372 (1796), as we inquire into the scope of the EPA’s enforcement powers under the RCRA. Such an inquiry requires examining the text of the statute as a whole by considering its context, “object, and policy.” Pelofsky v. Wallace, 102 F.3d 350, 353 (8th Cir.1996). An examination of the statute as a whole supports the district court’s interpretation. The RCRA specifically allows states that have received authorization from the federal government to administer and enforce a program that operates “in lieu of’ the EPA’s regulatory program. 42 U.S.C. § 6926(b). While the EPA is correct that the “in lieu of’ language refers to the program itself, the administration and enforcement of the program are inexorably intertwined. The RCRA gives authority to the states to create and implement their own hazardous waste program. The plain “in lieu of’ language contained in the RCRA reveals a congressional intent for an authorized state program to supplant the federal hazardous waste program in all respects including enforcement. Congressional intent is evinced within the authorization language of section 6926(b) of the RCRA. Specifically, the statute permits the EPA to repeal a state’s authorization if the state’s program “does not provide adequate enforcement of compliance with the requirements of’ the RCRA. Id. This language indicates that Congress intended to grant states the primary role of enforcing their own hazardous waste program. Such an indication is not undermined, as the EPA suggests, by the language of section 6928. Again, section 6928(a)(1) allows the EPA to initiate enforcement actions against suspected environmental violators, except as provided in section 6928(a)(2). Section 6928(a)(2) permits the EPA to enforce the hazardous waste laws contained in the RCRA if the agency gives written notice to the state. Section 6928(a)(1) and (2), however, must be interpreted within the context of the entire Act. Harmonizing the section 6928(a)(1) and (2) language that allows the EPA to bring an enforcement action in certain circumstances with section 6926(b)’s provision that the EPA has the right to withdraw state authorization if the state’s enforcement is inadequate manifests a congressional intent to give the EPA a secondary enforcement right in those cases where a state has been authorized to act that is triggered only after state authorization is rescinded or if the state fails to initiate an enforcement action. Rather than serving as an affirmative grant of federal enforcement power as the EPA suggests, we conclude that the notice requirement of section 6928(a)(2) reinforces the primacy of a state’s enforcement rights under RCRA. Taken in the context of the statute as a whole, the notice requirement operates as a means to allow a state the first chance opportunity to initiate the statutorily-permitted enforcement action. If the state fails to initiate any action, then the EPA may institute its own action. Thus, the notice requirement is an indicator of the fact that Congress intended to give states, that are authorized to act, the lead role in enforcement under RCRA. The “same force and effect” language of section 6926(d) provides additional support for the primacy of states’ enforcement rights under the RCRA when the EPA has authorized a state to act in lieu of it. The EPA argues that the “same force and effect” language is limited to state permits because the words.appear under a heading that reads: “Effect of State Permit.” The EPA contends that the “same force and effect” language indicates only that state-issued permits will have the same force and effect as permits issued by the federal government. The EPA claims that the district court was incorrect when it applied the “same force and effect” language to encompass the statute’s enforcement mechanism. We disagree. Regardless of the title or heading, the plain language of section 6926(d) states that “[a]ny action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] under this subchapter.” 42 U.S.C. § 6926(d). In this context, the meaning of the text is plain and obvious. “Any action” under this provision broadly applies to any action authorized by the subchapter, and this language is not limited to the issuance of permits. The state authorization provision substitutes state action (not excluding enforcement action) for federal action. It would be incongruous to conclude that the RCRA authorizes states to implement and administer a hazardous waste program “in lieu of’ the federal program where only the issuance of permits is accorded the same force and effect as an action taken by the federal government. Contrary to the EPA’s assertions, the statute specifically provides that a “[s]tate is authorized to carry out [its hazardous waste program] in lieu of the Federal program ... and to issue and enforce permits.” 42 U.S.C. § 6926(b). Issuance and enforcement are two of the functions authorized as part of the state’s hazardous waste enforcement program under the RCRA. Nothing in the statute suggests that the “same force and effect” language is limited to the issuance of permits but not their enforcement. We believe that if Congress had intended such a peculiar result, it would have stated its preference in a clear and unambiguous manner. Absent such an unambiguous directive, we will apply a common sense meaning to the text of the statute and interpret its provisions in a manner logically consistent with the Act as whole. See Windsor on the River Assoc., Ltd. v. Balcor Real Estate Fin., Inc., 7 F.3d 127, 130 (8th Cir.1993) (requiring courts to give effect to all the words used by Congress); see also Minnesota Transp. Reg. Bd. v. United States, 966 F.2d 335, 339 (8th Cir.1992) (“Section and subchapter titles cannot alter the plain meaning of a statute; they can only assist in clarifying ambiguity”). Utilizing a sort of reverse plain language argument, the EPA contends that its approach is logically consistent with the framework of the RCRA. The EPA cites the statute’s citizen suit provision for the proposition that limitations on a parties’ right to act are expressly stated within the statute itself. See 42 U.S.C. § 6972(b)(1)(B). Section 6972(b)(1)(B), provides that “if the [EPA] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State,” then a private citizen suit is not permitted. Id. The EPA argues that if Congress had intended to limit the EPA’s right to file an enforcement action, it would have expressly stated its intention as it did in the citizen suit context. We find the EPA’s argument unpersuasive. Section 6972(b)(1)(B) of the RCRA provides the parameters for private litigation. In the course of providing such parameters, Congress apparently found it necessary to delineate exactly when and how a private citizen may initiate a civil action against an alleged environmental violator. In contrast, section 6926 of the RCRA addresses the interplay between federal and state authorization. Section 6926 also contains express language that establishes the primacy of states’ enforcement rights once the EPA has granted a state authorization. The mere fact that Congress did not choose to employ the exact same language as contained in an unrelated part of the act does not detract from the plain language used in the state authorization section. Again, Congress provided that the state’s program should operate in lieu of the federal program and that the state action should operate with the same force and effect as action taken by the EPA. See 42 U.S.C. § 6926(b) and (d). We find the language contained in the state authorization section of the Act to be as unambiguous as the citizen suit provision. In fact, we find it revealing that, under the citizen suit provision, Congress chose to forbid a private citizen from acting if the EPA or a state was diligently pursing a civil action. See 42 U.S.C. § 6972(b)(1)(B). Utilizing the same reverse plain language argument, one can assume that if Congress intended to allow the federal government and the states to initiate competing enforcement actions, it would have chosen the words “and/or” rather than simply “or.” The word “or” indicates that Congress did not contemplate competing enforcement actions between the federal government and the states. Thus, when the EPA has authorized a state program, the plain language of the text indicates that primary enforcement powers are vested in the states. See 42 U.S.C. § 6926. Even assuming some ambiguity exists in the statutory language, the primacy of the states’ enforcement rights, once the EPA has authorized a state to act, is illustrated further through the RCRA’s legislative history. The United States House of Representatives stated after its hearings that, through the RCRA, it intended to vest primary enforcement authority in the states. See H.R.Rep. 1491, 94th Cong., 2nd Sess. 24, reprinted in 1976 U.S.C.C.A.N. 6262 (“It is the Committee’s intention that the States are to have primary enforcement authority and if at any time a State wishes to take over the hazardous waste program it is permitted to do so, provided that the State laws meet the Federal minimum requirements for both administering and enforcing .the law”). The House Report states that although the “legislation permits the states to take the lead in the enforcement of the hazardous wastes [sic] laws[,] ... the Administrator [of the EPA] is not prohibited from acting in those cases where the state fails to act, or from withdrawing approval of the state hazardous waste plan and implementing the federal hazardous waste program pursuant to ... this act.” 1976 U.S.C.C.A.N. 6269. The House Report also states that the EPA, “after giving the appropriate notice to a state that is authorized to implement the state hazardous waste program, that violations of this Act are occurring and the state [is] failing to take action against such violations, is authorized to take appropriate action against those persons in such state not in compliance with the hazardous waste title.” Id. at 6270. The House Report thus supports our interpretation of the statute — that the federal government’s right to pursue an enforcement action under the RCRA attaches only when a state’s authorization is revoked or when a state fails to initiate any enforcement action. There is no support either in the text of the statute or the legislative history for the proposition that the EPA is allowed to duplicate a state’s enforcement authority with its own enforcement action. The EPA argues that the statute and legislative history support its contention that it may initiate an enforcement action if it deems the state’s enforcement action inadequate. The EPA’s argument misses the point. Without question, the EPA can initiate an enforcement action if it deems the state’s enforcement action inadequate. Before initiating such an action, however, the EPA must allow the state an opportunity to correct its deficiency and the EPA must withdraw its authorization. See 42 U.S.C. § 6926(b) and (e). Consistent with the text of the statute and its legislative history, the EPA also may initiate an enforcement action after providing written notice to the state when the authorized state fails to initiate any enforcement action. See 42 U.S.C. § 6928(a)(2); 1976 U.S.C.C.A.N. 6270. The EPA may not, however, simply fill the perceived gaps it sees in a state’s enforcement action by initiating a second enforcement action without allowing the state an opportunity to correct the deficiency and then withdrawing the state’s authorization. A contrary interpretation would result in two separate enforcement actions. Such an interpretation, as explained above, would derogate the RCRA’s plain language and legislative history. Companies that reach an agreement through negotiations with a state authorized by the EPA to act in its place may find the agreement undermined by a later separate enforcement action by the EPA. While, generally speaking, two separate sovereigns can institute two separate enforcement actions, those actions can cause vastly different and potentially contradictory results. Such a potential schism runs afoul of the principles of comity and federalism so clearly embedded in the text and history of the RCRA. When enacting the RCRA, Congress intended to delegate the primary enforcement of EPA-approved hazardous waste programs to the states. See 1976 U.S.C.C.A.N. 6262, 6270. In fact, as we have noted above, the states’ enforcement action has the “same force and effect as an action taken by” the EPA. See 42 U.S.C. § 6926(d). In EPA authorized states, the EPA’s action is an alternative method of enforcement that is permitted to operate only when certain conditions are satisfied. See 42 U.S.C. § 6926(b) and (e); 42 U.S.C. § 6928(b). The EPA’s interpretation simply is not consistent with the plain language of the statute, its legislative history, or its declared purpose. Hence, it is also an unreasonable interpretation to which we accord no deference. Therefore, we find that the EPA’s practice of overfiling, in those states where it has authorized the state to act, oversteps the federal agency’s authority under the RCRA. B. Res Judicata As an alternative basis to support its grant of summary judgment, the district court concluded that principles of res judicata also bar the EPA’s enforcement action by reason of the Missouri state court consent decree. The EPA argues that the state court judgment has no effect on its enforcement action against Harmon because the two actions lack the elements essential for a finding of res judicata. We review de novo a district court’s summary judgment determinations. See JN Exploration & Prod. v. Western Gas Resources, 153 F.3d 906, 909 (8th Cir.1998). Principles of res judicata embodied in the Full Faith and Credit Act, 28 U.S.C. § 1738 (1982), see also U.S. Const. art. 4, § 1, require federal courts to give preclu-sive effect to the judgments of state courts whenever the state court from which the judgment emerged would give such an effect. See Hickman v. Electronic Keyboarding, Inc., 741 F.2d 230, 232 (8th Cir.1984). In this case, we must determine whether Missouri law would give res judi-cata effect to the consent decree entered between Harmon and the MDNR in Missouri state court. In Missouri, res judicata requires “(1) [ijdentity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality of the person for or against whom the claim is made.” Prentzler v. Schneider, 411 S.W.2d 135, 138 (Mo.1966) (en banc). In this case, the four Missouri law res judicata requirements are satisfied. In both the state court action and the EPA administrative enforcement action, the parties sought to enforce a hazardous waste program pursuant to the RCRA. In both the state action and the agency action, the complaints named Harmon as the defendant. In addition, both actions involved the enforcement of regulations based upon identical facts and legal princi-pies. The only dispute is whether the parties are identical. A party is identical when it is the same party that litigated a prior suit or when a new party is in privity with a party that litigated a prior suit. See United States v. Gurley, 43 F.3d 1188, 1197 (8th Cir.1994), cert. denied, 516 U.S. 817, 116 S.Ct. 73, 133 L.Ed.2d 33 (1995). Privity exists when two parties to two separate suits have “a close relationship bordering on near identity.” Id. (internal quotations omitted); see also Hickman, 741 F.2d at 233. As the United States and the State of Missouri are not the same party, we must resolve whether their relationship in the enforcement action is nearly identical. The statutory language of the RCRA provides the framework for the party identity analysis. Pursuant to 42 U.S.C. § 6926(b), the federal program operates “in lieu of’ the state program. Section 6926(d) of the same statute mandates that “[a]ny action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the [EPA] under this subchapter.” 42 U.S.C. § 6926(d). As we determined in Part 11(A) of this opinion, the plain language of the RCRA permits the State of Missouri to act in lieu of the EPA. When such a situation occurs, Missouri’s action has the same force and effect as an action initiated by the EPA. Accordingly, the two parties stand in the same relationship to one another. The EPA argues that it has enforcement interests sufficiently distinct from the interests of the State of Missouri. We explained in Hickman, however, that privity under Missouri law is satisfied when the two parties represent the same legal right. See Hickman, 741 F.2d at 233. As the district court correctly indicated, privity is not dependent upon the subjective interests of the individual parties. See Harmon, 19 F.Supp.2d at 998; see also Hickman, 741 F.2d at 233. In this case, the State of Missouri advanced the exact same legal right under the statute as the EPA did in its administrative action. Accordingly, the identity of the parties requirement is satisfied. The EPA contends that even if principles of res judicata are satisfied under Missouri law, the doctrine of sovereign immunity precludes applying res judicata to the United States unless the United States was the actual party in the prior lawsuit. Before addressing the merits of the EPA’s claim, we note that the EPA did not raise the sovereign immunity defense before the district court. Harmon argues that in failing to raise the issue at the district court level, the EPA has waived its right to assert sovereign immunity on appeal. Sovereign immunity, however, is a jurisdictional threshold matter and it is well-established that questions of subject matter jurisdiction can be raised for the first time on appeal. See Dewitt Bank & Trust Co. v. United States, 878 F.2d 246 (8th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1318, 108 L.Ed.2d 493 (1990). Turning to the merits of the EPA’s sovereign immunity defense, we conclude that the defense is forestalled by the United States Supreme Court’s decision in Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). In Montana, the Supreme Court held that “one who prosecutes or defends a suit in the name of another to establish and protect his own right is as much bound as he would be if he had been a party to the record.” 440 U.S. at 154, 99 S.Ct. 970 (internal quotations and alterations omitted). The Court found in Montana that although the United States was not a party to a prior suit, it “had a sufficient laboring oar in the conduct of the state-court litigation to actuate principles of estoppel.” Id. at 155, 99 S.Ct. 970. The EPA argues that it had no laboring oar in the State of Missouri’s enforcement action. Such an argument ignores the RCRA. Unlike the present case, Montana did not involve a statute that authorized the state to proceed “in lieu of’ the federal government and “with the same force and effect” as the federal government. In Montana, the United States controlled the details of the prior suit directly. In RCRA cases, however, the federal government authorizes the state to act in its place. It cedes its authority to the state pursuant to the authorization plan contained in the statute. See 42 U.S.C. § 6926(b). The “laboring oar” is pulled on much earlier in the process. It occurs at the authorization stage when the EPA grants the state permission to enforce the EPA’s interests through the state’s own hazardous waste program. After authorization, the state “prosecutes” enforcement actions “in lieu of’ the federal government and operates as if it were the EPA. See 42 U.S.C. § 6926(b) and (d). Hence, pursuant to Montana, the United States must be bound by prior judgments involving state action as authorized by the RCRA. See also United States v. County of Cook, Illinois, 167 F.3d 381, 389 (7th Cir.1999) (questioning when sovereign immunity to claim preclusion exists); United States v. ITT Rayonier, Inc., 627 F.2d 996, 1002 (9th Cir.1980) (applying res judicata against the EPA). Accordingly, we find that principles of res judicata as defined by Missouri law foreclose the EPA’s enforcement action against Harmon. C. The Statute of Limitations Defense Harmon argues that the EPA’s enforcement claim is barred by a five-year statute of limitations. See 28 U.S.C. § 2462. The district court found that the statute of limitations did not affect this action. Although our decision in this case precludes our need to address this issue and Harmon did not file a eross-appéal, we note that Harmon’s statute of limitations claim entirely lacks merit. Harmon continuously polluted from 1973 to 1987. The EPA initiated its enforcement action in 1991. Hence, the EPA’s action fell within the five-year statute of limitations. See Cornerstone Realty, Inc. v. Dresser Rand. Co., 993 F.Supp. 107, 114-15 (D.Conn.1998). Accordingly, Harmon’s statute of limitations argument fails. III. CONCLUSION For the reasons stated herein, we affirm the judgment of the district court. . The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri. . Approximately thirty different organizations filed six amicus curiae briefs in support of Harmon Industries. . The EPA cites Wyckoff Co. v. EPA, 796 F.2d 1197 (9th Cir.1986), for the proposition that federal enforcement is not prohibited even in states authorized under the RCRA. Wyckoff, however, is more illustrative of the EPA’s authority to act in place of a state enforcement action. Wyckoff did not involve overfil-ing and competing enforcement actions. . Montana involved principles of collateral estoppel as opposed to res judicata. 440 U.S. at 154, 99 S.Ct. 970. We do not believe such a distinction is relevant in the context of this case.

National-Standard Co. v. Adamkus

RIPPLE, Circuit Judge. This case involves Environmental Protection Agency (EPA) inspections of two facilities owned by National-Standard Company (National-Standard) in Niles, Michigan. In its original declaratory judgment action, the appellant challenged whether the Resource Conservation and Recovery Act (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. §§ 6901 et seq., authorizes EPA to inspect the National-Standard facilities. The district court upheld EPA’s inspection authority, and granted the agency summary judgment. It also denied National-Standard’s discovery motion. We now affirm. I. BACKGROUND National-Standard is a Delaware corporation that manufactures wire products at its Lake Street and City Complex facilities located in Niles, Michigan. National-Standard’s manufacturing process generates, and the company stores, materials such as hydrochloric acid, sulfuric acid, and alkaline wastes. These by-products are within the RCRA definition of “hazardous waste.” The statute defines hazardous waste as: a solid waste, or combination of solid wastes, which because of its quantity, concentration • or physical, chemical, or infectious characteristics may— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. 42 U.S.C. § 6903(5). As required by section 6925(a), National-Standard applied to EPA for a permit for the treatment, storage, and disposal of the hazardous wastes it generated. See 40 C.F.R. § 270 [hereinafter TSD permit]. At present, its application remains pending, so that National-Standard’s facilities currently are operating under “interim status.” 42 U.S.C. § 6925(e)(1). Interim status facilities are required to handle hazardous wastes as if operating under a permit. Id. (Persons having applied for a hazardous waste disposal permit “shall be treated as having been issued such permit until such time as final administrative disposition of such application is made.”). As part of the process of obtaining a permit, corrective action must be taken with regard to any releases of hazardous wastes. Interim status facilities that experience hazardous waste releases are also subject to corrective action. Id. at §§ 6924(u), 6928(h). On March 24 and 25, 1987, EPA officials visited the facilities and performed visual site inspections. During that tour, the officials determined that there were several “solid waste management units” (SWMUs) at each facility and that corrective action would be necessary. On April 3, EPA formally notified National-Standard that it was planning a sampling visit at National-Standard’s facilities as the next stage of the corrective action program required under sections 6924(u) and 6927. See Letters from Richard Traub to Richard Moessner (Apr. 3, 1987) [hereinafter Notification Letters]; Vol.I, R.l at Ex. 1-A, 1-B. In the Notification Letters, EPA stated that it wanted to conduct a hazardous waste inspection and collect samples to determine the nature of any corrective action required at National-Standard’s facilities before granting the company a permit to store hazardous wastes. The Notification Letters also stated that EPA contractors (defendants-appellees Harding-Lawson Associates and K.W. Brown & Associates, Inc.) were to assist with the sampling, and that representatives of the Michigan Department of Natural Resources would observe the inspection. Finally, the Letters identified thirty SWMUs at the Lake Street and City Complex facilities that would be targeted by the inspection team. National-Standard refused to consent to the inspection. It protested the breadth of EPA’s intended sampling, and stated that section 6924(u) did not authorize the “fishing expedition” proposed by EPA. It also alleged that many of the proposed sampling sites were not SWMUs. See Letters from Mary Ellen Hogan to T. Leverett Nelson (May 11, 1987), Vol.I, R.l at Ex. 2-A, 2-B; Appellant’s Br. at 38-39. Soon afterwards, National-Standard filed a declaratory judgment action in the district court for the Northern District of Illinois. Vol.I, R.l. The complaint sought declaratory relief on the ground that EPA lacked authority under section 6924(u) to inspect the National-Standard facilities and that any inspections allowed under sections 6924(u) and 6927(a) were limited to hazardous wastes specifically listed in the Code of Federal Regulations. Id. Venue was grounded on the location in Chicago of the EPA Regional Administrator charged with overseeing RCRA enforcement at the facilities. Three days after the filing of the complaint, EPA applied for and obtained ex parte an administrative search warrant to inspect the National-Standard facilities from the United States magistrate in the district court for the Western District of Michigan (the district that encompasses Niles). Attached to the warrant application was the affidavit of Ms. Carol Witt, an EPA geologist. Ms. Witt had been part of the EPA visual site inspection team that visited the National-Standard facilities on March 24th and 25th; as a result of this inspection, she had determined that there were several SWMUs at each facility. She further stated that, based on her observations of discolored soil, surface water body sediments, discontinuities in vegetation, and odors, there had been releases of what may be hazardous wastes or constituents from some of the SWMUs. She believed the releases may have been hazardous wastes because they were near known SWMUs containing ignitable solid wastes, copper cyanide, lead, or waste water treatment sludges from electroplating operations. Ms. Witt proposed taking no more than sixty solid waste, water, and air samples, including background samples, at the facilities. Vol.II, R.10 at Ex. B. On July 15, 1987, three days after obtaining the warrant, EPA commenced execution. On June 16, 1987, National-Standard responded, filing in the district court for the Western District of Michigan: (1) a complaint seeking preliminary and permanent injunctive relief barring EPA from continuing the inspection and from using the inspection results; and (2) an emergency motion to quash the administrative search warrant and to transfer venue of all Michigan proceedings to the district court for the Northern District of Illinois. Vol.II, R.l at Ex. A & Ex. B. After conferring with the district judge presiding over the pending declaratory judgment action in the Northern District of Illinois, the chief judge of the Western District of Michigan ordered all proceedings transferred to Illinois. National-Standard Co. v. Adamkus, No. 87-42-M (W.D.Mich. June 16, 1987) (order); Vol.II, R.l at Ex. C. Eventually, all matters were consolidated in the Northern District of Illinois. Upon making a finding of relatedness, the district court joined the Michigan-initiated proceedings with the original declaratory judgment action. The court also entered an agreed order whereby EPA could continue its inspection and take samples from the National-Standard facilities, but could not obtain the results of the analyses from EPA’s contract laboratories. National-Standard then filed an amended complaint seeking declaratory relief, an order quashing the administrative search warrant, and preliminary and permanent injunctive relief as to the results of the first inspection. Vol.II, R.30. This complaint, when read in its totality, requests a broad adjudication as to the inspection powers of EPA with respect to a facility such as National-Standard’s. The district court later granted EPA’s motion to deny National-Standard’s discovery requests and granted summary judgment in favor of EPA and its contractor codefendants. National-Standard Co. v. Adamkus, 685 F.Supp. 1040 (N.D.Ill.1988) (memorandum opinion and order) [hereinafter Mem. op.]. The court also vacated the agreed order—releasing the sampling results to EPA. However, on the basis of the record before us, it appears that no EPA corrective action has been ordered since it received the sampling results. II. THRESHOLD ISSUES A. Jurisdiction Halfway through its oral argument before this court, EPA questioned, for the first time, whether the transfer order by the district court for the Western District of Michigan was properly granted. Specifically, EPA argued that Federal Rule of Criminal Procedure 41(a), in conjunction with the civil action transfer statute, 28 U.S.C. § 1404(a), requires this court to conclude that the transfer was incorrect and that, consequently, we cannot consider the propriety of the warrant’s issuance. Supplemental briefs were submitted by both EPA and National-Standard. We hold that EPA has waived this issue. A thorough review of the record reveals no attempt by EPA or its coappellees to object to the transfer when it was made. Never once in all its pleadings or briefs before the various courts in this case did EPA ever question the validity of the transfer from Michigan to Illinois. The EPA did not seek review of the transfer order in the Sixth Circuit. See Illinois Tool Works, Inc. v. Sweetheart Plastics, Inc., 436 F.2d 1180, 1187-88 (7th Cir.), cert. dismissed, 403 U.S. 942, 91 S.Ct. 2270, 29 L.Ed.2d 722 (1971); Purex Corp. v. St. Louis Nat’l Stockyards Co., 374 F.2d 998, 1000 (7th Cir.), cert. denied, 389 U.S. 824, 88 S.Ct. 59, 19 L.Ed.2d 77 (1967); see also Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 985-87 (11th Cir.1982). Nor did it move for retransfer of the matter in the district court for the Northern District of Illinois. See Purex, 374 F.2d at 1000; Linnell v. Sloan, 636 F.2d 65, 67 (4th Cir.1980); see generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3846 at 359-60 (1986) (“The transfer order is not subject to review by the transferee court or its court of appeals.... But an order of transfer is not res judicata. A motion to retransfer the action may be made in the transferee court and the ruling on that motion is reviewable in the court of appeals to which the transferee court is responsible.”) (footnotes omitted). Consequently, we shall not allow this afterthought to be argued before us now. B. Mootness Next, EPA submits that National-Standard’s entire appeal is now moot in light of EPA’s having obtained the results of the sampling analyses after the district court’s agreed order was vacated. A moot case is one that fails to present a “live” controversy to the adjudicating court. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). With regard to establishing mootness, a “heavy” burden of proof rests on the party suggesting mootness—EPA. See County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979); United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953). EPA has failed to carry its burden. As noted above, this appeal is from a district court judgment denying National-Standard’s broad request for declaratory and injunctive relief. Due to the vacation of the agreed order, EPA now possesses the results of the search and may order corrective action at the National-Standard facilities. The facts of this case thus closely resemble those addressed by this court in Donovan v. Fall River Foundry Co., 712 F.2d 1103 (7th Cir.1983). In Fall River, an employer appealed a district court’s holding that an administrative search warrant obtained by the Occupational Safety and Health Administration (OSHA) was not violative of the employer’s fourth amendment rights by reason of alleged over-breadth. Although the warrant had been executed, this court reviewed its scope and the subsequent search of the employer’s records. In addressing the agency’s claim that mootness precluded such review, the court said: Initially, it is important to note that, despite the limited search of the Fall River facility OSHA conducted in late 1982 or early 1983, this case is not moot.... [SJhould citations issue against Fall River, pursuant to the limited search, Fall River might contest them on the theory that they resulted from a search that violated the Fourth Amendment because of the overbreadth of the warrant. 712 F.2d at 1111. Accord Matter of Kulp Foundry, Inc., 691 F.2d 1125, 1129 (3d Cir.1982) (case moot because modified warrant had been fully executed and no citations issued). Contra B & B Chemical Co., Inc. v. United States EPA, 806 F.2d 987, 990-91 (11th Cir.1986) (rejecting Third and Seventh Circuits’ approach). Indeed, this case presents a stronger case against mootness than Fall River. Under the statutory scheme at issue here, there is every probability that EPA will act on the results of the samples obtained by the administrative search warrant. Under the comprehensive scheme of RCRA, discussed further infra, interim status hazardous waste facilities like those at National-Standard’s Niles plants are subject to the same level of stringent regulation as permitted hazardous waste facilities. See generally 42 U.S.C. § 6925(i); D. Stever, Law of Chemical Regulation and Hazardous Waste §§ 5.06[2][c], 5.06[2][d][i][B] (1988). Therefore, as a result of this search, EPA will take one of the following steps: (1) order immediate corrective action under section 6928(h); (2) consider the results and nevertheless grant a TSD permit; or (3) consider the results but not order immediate corrective action, and then later deny a TSD permit and order corrective action. This court’s holding in United States v. Kis, 658 F.2d 526 (7th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1712, 72 L.Ed.2d 135 (1982), on which EPA relies heavily, is not to the contrary. In Kis, we held that taxpayers’ compliance with an Internal Revenue Service request for handwriting exemplars mooted their appeal as to the enforceability of government summonses for those exemplars. 658 F.2d at 532-33. In so ruling, this court agreed with earlier rulings of six other circuits on the precise question. Id. at 532. We said that: The [taxpayers] contend that this court could grant them relief by declaring the summons to be invalid and by suppressing the handwriting exemplars and any evidence obtained as a result of their submission. Such a ruling, however, would ignore the well-established rule that questions of suppression should not be considered until the time when the Government seeks to use the evidence. It would be highly speculative so to rule at this stage, for there is no guarantee that the Government will ever seek to use that evidence. It may never even bring any subsequent actions against the [taxpayers]. Id. at 533 (footnote omitted) (emphasis supplied). There is no necessity for such speculation here. The statutory scheme makes further EPA action virtually inevitable. In the legislative history of the 1984 Hazardous and Solid Waste Amendments to RCRA, Pub.L. 98-616, 98 Stat. 3221 (1984), Congress made clear that past inadequate efforts by EPA in promulgating regulations, permitting facilities, and law enforcement necessitated the tightened statutes. See H.Rep. No. 98-198, Part I, 18-20, 44-46, reprinted in 1984 U.S.Code Cong. & Admin.News 5576-79, 5603-05. Congress has required EPA to take affirmative action in overseeing hazardous waste at interim status facilities. Thus, to fulfill its congressional mandate, EPA must “use the evidence” (i.e. review the sampling analyses from this search) either to issue a TSD permit or to order corrective action. Besides this initial use of the sampling results, it is virtually certain that EPA will likely again have to reinspect and resample the National-Standard facilities in order to guarantee the company’s compliance. Congress requires those facilities granted a TSD permit to undergo mandatory inspections at least once every two years. 42 U.S.C. § 6927(e)(1). The situation presented here is thus “capable of repetition, yet evading review.” See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). There is, given the statutory scheme, “a ‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur involving the same complaining party.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184, 71 L.Ed.2d 353 (1982) (per curiam); see also Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (question of constitutionality of pretrial restrictive order not moot even after the expiration of that order upon jury impaneling); Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). EPA’s initial search is the starting point of an ongoing regulatory relationship between National-Standard and EPA to ensure the safe storage and eventual disposal of hazardous wastes at the Lake Street and City Complex facilities. Under that scheme, inspections are not merely possible, but highly likely. III. WARRANT ANALYSIS A. EPA’s Statutory Authority The primary issue raised by the appellant before this court is whether RCRA authorizes EPA to inspect the National-Standard facilities. National-Standard submits that sections 6924(u) and 6927(a) bar these EPA inspections. EPA responds that RCRA clearly authorizes inspection searches like the ones conducted here, and alternatively submits that EPA’s interpretation of section 6927 is reasonable and thus merits deference by this court. EPA also submits that section 6924(u) authorizes the inspection of National-Standard’s Niles facilities. We hold that the RCRA inspection provision relied upon by the magistrate — section 6927(a) — authorizes EPA’s entry and inspection of National-Standard’s facilities, and thus we affirm the judgment of the district court. The starting point of statutory interpretation is the now-familiar two-part test delineated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). There, a unanimous Supreme Court explained how a court is to evaluate an agency’s interpretation of a statute it administers. First, the court must determine “whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” 467 U.S. at 842-43, 104 S.Ct. at 2781 (footnote omitted). See also American Mining Congress v. United States EPA, 824 F.2d 1177, 1182 (D.C.Cir.1987) (“This inquiry focuses first on the language and structure of the statute itself. If the answer is not yielded by the statute, then the court is to look to secondary indicia of intent, such as the measure’s legislative history.”). Second, in cases where Congress’ intent is not clear or where “Congress has not directly addressed the precise question at issue ...[,] the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782 (footnotes omitted). We turn, then, to the first step and examine the language employed by Congress. See CBS, Inc. v. FCC, 453 U.S. 367, 377, 101 S.Ct. 2813, 2820, 69 L.Ed.2d 706 (1981); Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). Section 6927(a) provides: (a) Access entry For purposes of developing or assisting in the development of any regulation or enforcing the provisions of this chapter, any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled hazardous wastes shall, upon request of any officer, employee or representative of the Environmental Protection Agency, duly designated by the Administrator, or upon request of any duly designated officer, employee or representative of a State having an authorized hazardous waste program, furnish information relating to such wastes and permit such person at all reasonable times to have access to, and to copy all records relating to such wastes. For the purposes of developing or assisting in the development of any regulation or enforcing the provisions of this chapter, such officers, employees or representatives are authorized— (1) to enter at reasonable times any establishment or other place where hazardous wastes are or have been generated, stored, treated, disposed of, or transported from; (2) to inspect and obtain samples from any person of any such wastes and samples of any containers or labeling for such wastes. Each such inspection shall be commenced and completed with reasonable promptness. If the officer, employee or representative obtains any samples, prior to leaving the premises, he shall give, to the owner, operator, or agent in charge a receipt describing the sample obtained and if requested a portion of each such sample equal in volume or weight to the portion retained. If any analysis is made of such samples, a copy of the results of such analysis shall be furnished promptly to the owner, operator, or agent in charge. 42 U.S.C. § 6927(a). National-Standard submits that the plain language of this provision explicitly limits any authorized inspections solely to “inspect and obtain samples from any person of any such wastes and samples of any containers or labeling for such wastes.” EPA thus exceeded its authority in broadening its search to the collection of samples that, according to National-Standard, “relate to” hazardous wastes. Appellant’s Br. at 16. In National-Standard’s view, section 6927(a) permits EPA inspections only when a given facility identifies itself as possessing hazardous wastes, at which point EPA may sample from any SWMU those wastes, or their containers, or container labels only. Furthermore, those hazardous wastes which may be sampled are to be defined by the hazardous waste facility, not EPA. Id. at 17. We cannot accept such an interpretation of section 6927(a). We agree with the district court that this interpretation would “emasculate EPA’s ability to pursue the broad remedial goals of RCRA.” Mem. op. at 22. Like the district court, we believe that “[t]he main purpose of an inspection and sampling visit is to detect the presence of hazardous wastes. If EPA could not inspect an area unless it knew hazardous wastes were stored there, EPA would be rendered effectively powerless.” Id. EPA’s broad inspection authority is tempered by its need to show probable cause and obtain an administrative search warrant, discussed infra, when a hazardous waste facility owner, such as National-Standard, does not consent to the inspection. Section 6927(a) inspections are authorized “[f]or the purposes ... of enforcing the provisions of this chapter.” Chapter 82 of Title 42 of the United States Code, 42 U.S.C. §§ 6901-699U, provides EPA with a broad mandate for enforcing the national policy of treating, storing, and disposing of hazardous wastes “so as to minimize the present and future threat to human health and the environment.” 42 U.S.C. § 6902(b). The Notification Letters’ reference to a particular provision that authorizes corrective action orders for hazardous waste releases from SWMUs — section 6924(u) — does not limit EPA’s ability to inspect and sample from areas other than SWMUs. EPA’s inspection and sampling authority derives from the broad language in section 6927(a), which empowers the agency to enforce the entire RCRA scheme, not just a particular provision. In determining the material that EPA may sample under section 6927(a), Congress significantly chose the broad, general term “hazardous waste” defined in section 6903(5) (set out in Part I) rather than “hazardous waste identified or listed under this subchapter,” employed in other provisions. See, e.g., 42 U.S.C. §§ 6924(a), 6925(a). This broad range of materials Congress intended to subject to sampling under section 6927(a) was demonstrated in the HSWA legislative history: EPA’s authority under these provisions [RCRA sections 3007 and 7003] is not limited to wastes that are ‘identified or listed’ as hazardous, but rather includes all wastes that meet the statutory definition of hazardous wastes. H.Rep. 198, 98th Cong., 1st Sess. 47 (1983), 1984 U.S.Code Cong. & Admin.News 5606, see EPA Br. at 28 n. 15. Finally, National-Standard’s interpretation of section 6927(a) as being limited to situations of proven actual releases is also incorrect. A similarly narrow interpretation of the Clean Water Act was rejected by this court in Mobil Oil Corp. v. EPA, 716 F.2d 1187 (7th Cir.1983), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984). In Mobil, this court refused to quash an administrative search warrant for the sampling of untreated waste water. The court interpreted the Clean Water Act and held that: These provisions of [the Clean Water Act inspection provision] leave no doubt that the Congress that enacted that Section was firmly convinced that the interest of permit holders such as Mobil in keeping secret information about the pollutants in its waste water is not entitled to protection. 716 F.2d at 1190. Likewise, section 6927(a) clearly vests broad authority in EPA to inspect and sample any facility at which the agency has probable cause to believe that violations of the statute are occurring. B. Issuance of Warrant National-Standard next argues that, despite EPA authority to inspect and sample pursuant to an administrative search warrant, such a warrant was granted improperly here. The appellant claims three flaws in the warrant: (1) not enough probable cause was shown; (2) the warrant was overbroad; and (3) it should not have been issued ex parte. Upon review, however, we determine that none of the alleged flaws exist. 1. Probable Cause The appellant asserts that Ms. Witt’s affidavit provided insufficient probable cause for the issuance of the warrant. In order for an administrative warrant to issue, (1) there must be specific evidence of an existing violation, or (2) the search must be part of a general neutral administrative plan. Marshall v. Barlow’s, Inc., 436 U.S. 307, 320-21, 98 S.Ct. 1816, 1824-25, 56 L.Ed.2d 305 (1978). Here, the warrant was issued on the former basis — specific evidence of a RCRA violation. National-Standard recognizes that administrative warrants do not require the same degree of probable cause as do criminal warrants. See Weyerhaeuser Co. v. Marshall, 592 F.2d 373, 377 (7th Cir.1979); In re Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335 (7th Cir.1979); West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950 (11th Cir.1982). Nevertheless, it urges that Ms. Witt’s affidavit does not satisfy even these standards. To determine whether this warrant passes probable cause muster, we shall compare the quantum of evidence presented to the reviewing magistrate to that considered by other courts reviewing the issuance of administrative search warrants. See Gilbert & Bennett, 589 F.2d at 1342. In Wey-erhaeuser, this court rejected as insufficient an affidavit for an OSHA search that merely stated a generalized summary of the one complaint that the agency received. 592 F.2d at 378 & n. 6. In Gilbert & Bennett, this court upheld a very detailed affidavit in support of an OSHA search that listed explicit conditions and complaints. 589 F.2d at 1339-42. The court also noted that in determining whether probable cause exists, “ ‘the need for inspection must be weighed in terms of [the] reasonable goals of code enforcement.’ ” Id. at 1338 (quoting Camara v. Municipal Ct., 387 U.S. 523, 535, 87 S.Ct. 1727, 1734, 18 L.Ed.2d 930 (1967)); see also Burkart Randall Division of Textron, Inc. v. Marshall, 625 F.2d 1313 (7th Cir.1980). In West Point-Pepperell, the Eleventh Circuit found sufficient probable cause in an affidavit based on nearly seventy interviews. 689 F.2d at 958. Here, we conclude that, like the affidavit reviewed in Gilbert & Bennett, Ms. Witt’s detailed affidavit satisfies the level of probable cause necessary for the issuance of an administrative search warrant. As outlined supra, Part I, the affidavit explained the various known hazardous wastes at the National-Standard facilities and the affiant’s observations at earlier visual site inspections. See R.44 at Ex. D. Additionally, the affidavit included photographs of what appear to be dead vegetation, leaking barrels, etc. “In no way was the warrant application mere boilerplate,” concluded the district court. Mem. op. at 16. We agree. This specificity, together with Congress’ express desire for strong enforcement of the RCRA statute, supra, clearly constituted sufficient probable cause for the issuance of the administrative search warrant. 2. Overbroad Warrant National-Standard also argues that the warrant purports to grant EPA permission to perform inspection and sampling beyond that specifically described in RCRA. See 42 U.S.C. § 6927(a). In particular, it submits that “background samples” authorized by the warrant are not authorized by RCRA. Appellant’s Br. at 36. National-Standard has not asserted that procurement of such background sampling incurred any specific problems, such as undue interference with plant operations; indeed, an examination of a map of the facilities confirms that no sampling locations were obstructive. The Supreme Court’s discussion in Dow Chemical Co. v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986), is persuasive guidance. There, Dow claimed that EPA had no authority to use aerial photography to implement its statutory power for site inspection under the Clean Air Act. The Court held that: Congress has vested in EPA certain investigatory and enforcement authority, without spelling out precisely how this authority was to be exercised in all the myriad circumstances that might arise in monitoring matters related to clean air and water standards. When Congress invests an agency with enforcement and investigatory authority, it is not necessary to identify explicitly each and every technique that may he used in the course of executing the statutory mission.... Regulatory or enforcement authority generally carries with it all the modes of inquiry and investigation traditionally employed or useful to execute the authority granted. 476 U.S. at 283, 106 S.Ct. at 1824 (emphasis supplied). Background sampling is a mode of “inquiry and investigation traditionally employed” in the type of scientific sampling authorized by section 6927(a). Accordingly, we agree with the district court that “[t]he power to take background samples is implicit in EPA’s power to detect releases of hazardous wastes.” Mem. op. at 23. There is “no indication in the statute that Congress intended to foreclose EPA from taking control of background samples in the ordinary course of scientific investigation.” Id. Therefore, in light of our determination that the administrative search warrant was properly limited in scope (location, duration, and number of samples) to meet the Dow standard, we hold that the warrant was not overbroad. 3. Ex Parte To persuade this court that use of an ex parte proceeding was improper, National-Standard relies almost exclusively on the district court opinion in In re Stauffer Chemical Co., 14 Env’t Rep.Cas. (BNA) 1737 (D.Wyo.1980), aff'd, 647 F.2d 1075 (10th Cir.1981). In Stauffer, the district court quashed an EPA administrative search warrant for the Clean Air Act inspection of a phosphate plant. It said that: The use of an ex parte proceeding to obtain the Administrative Warrant was, under the circumstances of this case, improper and violated principles of fundamental fairness. This is a case of first impression. EPA’s counsel ... was at all times fully aware that Stauffer would challenge the Agency’s authority to force entry by private contractors onto plant premises. For that reason, fundamental principles of justice and fair play dictated that Stauffer be allowed to contest the issue before a warrant was issued and the entry effectuated. However, instead an ex parte procedure was issued by EPA in this case, without notice of any kind to Stauffer.... Although ex parte warrants may be proper under other circumstances, we feel that in view of the novel aspects of this case, notice and an opportunity to be heard should have been provided by the EPA’s attorney. Stauffer, 14 Env’t Rep.Cas. (BNA) at 1741 (emphasis supplied). National-Standard submits that, like the Stauffer Company, it voiced its intention to mount a legal challenge to EPA’s authority to inspect, no exigent circumstances existed, National-Standard had been cooperative in following the permit procedure, and these provisions of RCRA had not yet been interpreted by this court. National-Standard’s argument fails to recognize that ex parte proceedings are the normal means by which warrants are obtained in both criminal and administrative actions, and do not, in and of themselves, evidence bad faith. See Midwest Grower’s Co-Op v. Kirkemo, 533 F.2d 455, 464 (9th Cir.1976); In re Stanley Plating Co., Inc., 637 F.Supp. 71, 72 (D.Conn.1986). In Stanley Plating, the court held that the penden-cy of a civil proceeding that had been initiated against the polluter by EPA did not prevent the agency from invoking its search and sampling power accorded by section 6927(a); the discovery constraints of Rule 26 of the Federal Rules of Civil Procedure did not dictate otherwise. 637 F.Supp. at 72. EPA’s inspection authority in section 6927(a), together with the admitted presence of hazardous waste at the facilities, an EPA scientist’s belief that a release of hazardous waste had occurred, and satisfactory probable cause, preclude any argument that it was improper for EPA to apply for and obtain an ex parte administrative search warrant. The mere penden-cy of a related civil action does not automatically preclude EPA’s use of other authorized law enforcement techniques such as the ex parte application for an administrative search warrant. See Stanley Plating, 637 F.Supp. at 72. CONCLUSION EPA was properly authorized by section 6927(a) to perform an inspection and sampling visit at the Niles Lake Street and City Complex facilities of the National-Standard Company. Therefore, we affirm the district court’s grant of summary judgment to EPA on this issue. We also affirm the district court’s judgment upholding the issuance of the warrant and denial of discovery to National-Standard. Affirmed. . In the briefs, the parties consistently refer to particular provisions of RCRA, as amended. In this opinion, however, any references to statutory sections shall be to Title 42 of the United States Code. The corresponding relevant enactments are as follows: RCRA U.S.C. § 1004(5) 42 U.S.C. § 6903(5) § 3004(u) 42 U.S.C. § 6924(u) § 3005(a) 42 U.S.C. § 6925(a) § 3007(a) 42 U.S.C. § 6927(a) . Neither RCRA nor the regulations promulgated thereunder define "solid waste management unit” (SWMU). The regulations do define a "hazardous waste management unit" as follows: ‘Hazardous waste management’ unit is a contiguous area of land on or in which hazardous waste is placed, or the largest area in which there is significant likelihood of mixing hazardous waste constituents in the same area. Examples of hazardous waste management units include a surface impoundment, a waste pile, a land treatment area, a landfill cell, an incinerator, a tank and its associated piping and underlying containment system and a container storage area. A container alone does not constitute a unit; the unit includes containers and the land or pad upon which they are placed. 40 C.F.R. § 260.10. The district court formulated its own definition of SWMU by substituting the word "solid” for "hazardous" in the above regulation. Mem. Op. at 3 n. 3. Neither party challenges this definition. The district court claimed support for this interpretation from EPA’s promulgation of final regulations under the HSWA, which state: The term 'solid waste management unit’ includes any unit at the facility 'from which hazardous constituents might migrate, irrespective of whether the units were intended for the management of solid and/or hazardous wastes.’ H.R.Rep. No. 198, 98th Cong., 1st Sess., Part 1, 60 (1983) ... EPA believes that the term 'unit' at least encompasses ... ‘containers, tanks, surface impoundment, waste piles, land treatment units, landfills, incinerators, and underground injection wells.’ 47 F.R. 32281 (July 26, 1982). 50 Fed.Reg. 28,712 (July 15, 1985); Mem. op. at 3 n. 3. . When, as here, the legal authority of the district court to transfer a case is at issue, mandamus has been considered an appropriate remedy. See Van Dusen v. Barrack, 376 U.S. 612, 615 n. 3, 84 S.Ct. 805, 809 n. 3, 11 L.Ed.2d 945 (1964); see also Chesapeake & O.R. Co. v. Parsons, 307 F.2d 924 (7th Cir.) reversed on other grounds, 375 U.S. 71, 84 S.Ct. 185, 11 L.Ed.2d 137 (1963); Chicago, R.I. & P.R. Co. v. Igoe, 212 F.2d 378 (7th Cir.1954); Dairy Indus. Supply Ass'n v. La Buy, 207 F.2d 554 (7th Cir.1953); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3855 at 475 (1986). On the other hand, as Judge Wisdom noted for the Eleventh Circuit in Roofing & Sheet Metal Servs. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 987 (11th Cir.1982), "there is substantial disagreement among the circuits, and some apparent confusion within the respective circuits, concerning the appropriate role of mandamus as a remedy for abuses of discretion by district courts in deciding motions under § 1404(a).” . 42 U.S.C. § 6927(e). The HSWA also ordered EPA to promulgate regulations establishing inspection frequency. Pub.L. 98-616 at § 231. See generally D. Stever, supra, at § 5.09[2][a][iv] & n. 669. . See "Inspection Authority Under Section 3007 of RCRA,” EPA Memorandum from Francis S. Blake to J. Winston Porter (Apr. 17, 1986); R.44 at Ex. A. . EPA Br. at 35. EPA cites Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 11, 104 S.Ct. 2778, 2782 n. 11, 81 L.Ed.2d 694 (1984) (stating that "[t]he court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding"). In Chevron, the Court determined that Congress had not spoken to the issue in question and that EPA regulations creating the "bubble” concept were reasonable interpretations of the Clean Air Act. .Section 6924(u) states: (u) Continuing Releases at Permitted Facilities. — Standards promulgated under this section shall require, and a permit issued after November 8, 1984, by the Administrator or a State shall require, corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subchapter, regardless of the time at which waste was placed in such unit. Permits issued under section 6925 of this title shall contain schedules of compliance for such corrective action (where such corrective action cannot be completed prior to issuance of the permit) and assurances of financial responsibility for completing such corrective action. 42 U.S.C. § 6924(u). . National-Standard submits that EPA’s reference to section 6924(u) in the Notification Letters prevents it from inspecting and sampling at locations other than SWMUs because that section addresses solely EPA authority to order corrective action for releases from SWMUs. We agree with the district court, however, that this argument is based on a "faulty premise.” Mem. op. at 24. EPA's invocation of section 6924(u) in the Notification Letters does not limit its authority to inspect and sample under section 6927(a), discussed infra. Under that provision, EPA’s inspection authority is not restricted to SWMUs, but rather, it may inspect any area in which hazardous wastes are or have been stored. . National-Standard submits that: "Neither the statute nor the regulations allow U.S. EPA's subjective beliefs to be a determining factor. In fact, the person who produces the material has by regulation the responsibility for determining whether it is a hazardous waste. 40 CFR § 262.11." Appellant's Br. at 17. . Other than the jurisdictional and mootness claims discussed supra, EPA raises no procedural challenges to our consideration of this issue. . In Stauffer, the company had made clear that it did not contest the right of government officials to enter the premises but did contest EPA’s contracting inspection responsibilities to private contractors. . Similarly, the Ninth Circuit in Midwest Growers reasoned that the Interstate Commerce Commission's use of an ex parte warrant did not demonstrate bad faith, despite the court’s ruling that the agency’s belief in its authority was erroneous. 533 F.2d at 464 & n. 21. As we discussed supra, EPA here correctly concluded that it possessed statutory authority. . As outlined by the Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), summary judgment should be granted when there exists no genuine issue of material fact. Here, the appellant submits that conflicts between the affidavits of Ms. Witt and Mr. Richard Moessner, National-Standard’s manager of environmental control, evidence such a genuine issue of material fact. Specifically, National-Standard argues that, although Ms. Witt attested to facts with sufficient particularity to support an administrative warrant, questions arise to the satisfaction of the level of particularity required by Rule 56(a) of the Federal Rules of Civil Procedure. Upon making a de novo examination of the subject matter of the summary judgment motion — the validity of the search and the warrant — however, we conclude that the appellant is mistaken. As demonstrated above, supra Part III.B., no genuine issues of material fact exist about the validity of the warrant. .The district court ruled that National-Standard may not pursue discovery of the warrant application and obtain a hearing to challenge the factual assertions in Ms. Witt’s affidavit. Mem. op. at 17. The court stated that Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), allowed challenges of an affidavit’s truthfulness only after a "substantial preliminary showing” of falsehood. Id. In In re Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335 (7th Cir.1979), we held that a district judge's decision to deny discovery of the facts attested to in support of an administrative warrant was, like all discovery decisions, "committed to the sound discretion of the district judge, and ... may not be easily reversed on appeal.” 589 F.2d at 1340. Where the information provided “was adequate on its face to establish probable cause[,] there was no need to pursue further discovery, and the judge acted properly in not granting such relief.” Id. Accord Donovan v. Mosher Steel Co., 791 F.2d 1535, 1537 (11th Cir.1986) (“the reviewing court is charged with examining the magistrate’s actual probable cause determination — not what he or she might have concluded based on information not presented in the warrant application”), cert. denied, A19 U.S. 1030, 107 S.Ct. 874, 93 L.Ed.2d 829 (1987); cf. Brock v. Brooks Woolen Co., Inc., 782 F.2d 1066, 1069 (1st Cir.1986) ("Franks merely holds that subfa-cial challenges are not mandated to protect a defendant’s constitutional rights unless the specified showing is made.”) (emphasis in original). Under the Gilbert & Bennett rule, we find no abuse of discretion by the district court, and thus we affirm its denial of discovery to National-Standard.

Wyckoff Co. v. Environmental Protection Agency

WALLACE, Circuit Judge: Wyckoff Company (Wyckoff) brought an action for a judgment declaring that the Environmental Protection Agency (EPA) was without authority to issue two orders requiring Wyckoff to submit written proposals for the monitoring, testing, analysis, and reporting of hazardous wastes at two of Wyckoff’s facilities. The district court denied Wyckoff’s motion for a preliminary injunction restraining the EPA from enforcing those orders. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we affirm. I Wyckoff owns and operates two wood treatment plants at which it uses hazardous chemicals as wood preservatives and stores hazardous wastes. Both plants are in the State of Washington. The EPA found that hazardous materials at one site had seeped into the surrounding soil, the groundwater, and into Puget Sound. At the other site, hazardous wastes had entered the surrounding soil, and likely the groundwater as well. The EPA determined that the storage and release of hazardous wastes at each of these facilities “may present a substantial hazard to human health or the environment.” It issued orders requiring Wyckoff to submit written proposals for monitoring, testing, analysis, and reporting of the hazardous waste at the facilities. II To obtain preliminary relief, the moving party must make a clear showing of either “ ‘(1) probable success on the merits and possible irreparable injury or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.’ ” Lydo Enterprises v. City of Las Vegas, 745 F.2d 1211, 1212 (9th Cir.1984) (Lydo), quoting Ebel v. City of Corona, 698 F.2d 390, 392 (9th Cir.1983) (emphasis in original); see Wilson v. Watt, 703 F.2d 395, 399 (9th Cir.1983). These articulations of the required showing do not express two separate tests, but are “ ‘merely extremes of a single continuum.’ ” Lydo, 745 F.2d at 1212, quoting Benda v. Grand Lodge of Int’l Ass’n of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). A weighing of the public interest is particularly important in cases, such as the one before us, where the public health and welfare may depend on unhindered enforcement of a federal environmental statute. See United States v. Akers, 785 F.2d 814, 823 (9th Cir.1986); California v. Tahoe Regional Planning Agency, 766 F.2d 1319, 1324 (9th Cir.1985). We review a district court’s denial of a preliminary injunction for abuse of discretion. Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 752 (9th Cir.1982). To determine whether there has been an abuse of discretion we “ ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ ” Id., quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). Thus, we will not substitute our own judgment for that of the district court. Id. Nevertheless, a district court’s denial of preliminary relief may be reversed if the court “misapprehends the law with respect to the underlying issues in litigation.” Id. Wyckoff contends that the district court’s misapprehension of the law was the basis for its denial of relief in this case. We must consider whether the district court misconstrued the relevant statutory provisions in concluding that Wyckoff had little chance of success on the merits. III The Resource Conservation and Recovery Act (Act), 42 U.S.C. § 6901 et seq., was enacted to protect the national health and environment. See 42 U.S.C. §§ 6901, 6902. The Act confers on the Administrator of the EPA broad powers to regulate the storage, treatment, transportation, and disposal of potentially hazardous materials. See 42 U.S.C. § 6912(a). The EPA orders that Wyckoff challenges were issued in August 1984 pursuant to section 3013 of the Act, which provides: If the Administrator determines, upon receipt of any information, that— (1) the presence of any hazardous waste at a facility or site at which hazardous waste is, or has been, stored, treated, or disposed of, or (2) the release of any such waste from such facility or site may present a substantial hazard to human health or the environment, he may issue an order requiring the owner or operator of such facility or site to conduct such monitoring, testing, analysis, and reporting with respect to such facility or site as the Administrator deems reasonable to ascertain the nature and extent of such hazard. 42 U.S.C. § 6934. Wyckoff does not allege that there was any error in the Administrator’s interpretation of the terms of section 3013, or in the Administrator’s evaluation of the facts in this case. Instead, Wyckoff contends that section 3013 did not apply in the State of Washington at the time the orders were issued, because federal regulation under the Act had been superseded by the implementation of a federally approved state regulatory program under section 3006 of the Act. 42 U.S.C. § 6926 (1982). Section 3006 provides for federal authorization of state hazardous waste programs. 42 U.S.C. § 6926 (1982). The Administrator may refuse to authorize a state program if he timely finds that “(1) such State program is not equivalent to the Federal program under this subchapter, (2) such program is not consistent with the Federal or State programs applicable in other States, or (3) such program does not provide adequate enforcement of compliance with the requirements of this subchapter.” 42 U.S.C. § 6926(b) (1982). If authorization is not properly denied, the “State is authorized to carry out [its hazardous waste program] in lieu of the Federal program ... and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste.” Id. States may also request, and receive from the Administrator, “interim authorization” to carry out a hazardous waste program: The Administrator shall, if the evidence submitted shows the existing State program to be substantially equivalent to the Federal program under this subchapter, grant an interim authorization to the State to carry out such program in lieu of the Federal program pursuant to this subchapter____ 42 U.S.C. § 6926(c) (1982). Any action taken by the state under an authorized program “shall have the same force and effect as action taken by the Administrator under this subchapter.” 42 U.S.C. § 6926(d) (1982). The Administrator retains power, after a public hearing, to revoke the authorization of any state program not operated in accordance with the requirements of federal hazardous waste law. 42 U.S.C. § 6926(e) (1982). At the time the Administrator issued the section 3013 orders to Wyckoff, the State of Washington operated a state hazardous waste program that had received interim authorization from the Administrator, pursuant to section 3006(c). During the course of judicial proceedings, the state program has qualified as an authorized program under section 3006(b). IV Wyckoff argues that because section 3006 authorizes state programs to be carried out “in lieu of the Federal program,” Congress intended to revoke the EPA’s power to issue orders under section 3013 where an authorized state program is in effect. The linchpin of Wyckoff’s argument is that the term “program” in section 3006 encompasses “the sum of the hazardous waste management authorities and activities described anywhere in subtitle C” of the Act, including section 3013. In short, Wyckoff contends that the EPA’s power under section 3013 constitutes part of the “Federal program” that is supplanted by an authorized state program under section 3006. Wyckoff concludes that the Administrator thus lacked power to issue the challenged orders. A. In reviewing an agency’s construction of a statute that it administers, we must first address whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue,____the question for the court is whether the agency’s answer is based on a permissible construction of the statute. Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted) (Chevron). If the EPA’s interpretation of section 3006 is reasonable, “[w]e must defer to the agency’s interpretation even if the agency could also have reached another reasonable interpretation, or even if we would have reached a different result had we construed the statute initially.” Washington v. United States EPA, 752 F.2d 1465, 1469 (9th Cir.1985) (Washington); see Chevron, 467 U.S. at 843-45, 104 S.Ct. at 2782-83; Train v. Natural Resources Defense Council, 421 U.S. 60, 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731 (1975). We can discern no clear congressional intent that section 3006 be read to disable the EPA from issuing orders under section 3013 wherever an authorized state hazardous waste program operates “in lieu of the Federal program.” Wyckoff’s argument that the EPA’s power under section 3013 is part of the superseded “Federal program” has no unambiguous support in the Act. Far from expressly conferring on the terms “program” and “Federal program” the all-encompassing meaning that Wyckoff proffers, the Act does not even define these terms. See Act § 1004, 42 U.S.C. § 6903 (definitional provision). Further, nowhere in the Act or in its legislative history is there any clear indication that the EPA’s section 3013 power is part of the “Federal program” to be supplanted under section 3006. Indeed, section 3008 appears to refute the interpretation Wyckoff would have us adopt. Section 3008(a) provides in part: (1) Except as provided in paragraph (2), whenever on the basis of any information the Administrator determines that any person is in violation of any requirement of this subchapter, the Administrator may issue an order requiring compliance immediately or within a specified time period or the Administrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction. (2) In the case of a violation of any requirement of this subchapter where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 6926 of this title [(Act § 3006)], the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under this section. 42 U.S.C. § 6928(a)(1), (2) (1982); cf. 42 U.S.C. § 6973(a) (1982) (EPA may take any action necessary upon finding imminent and substantial danger “notwithstanding any other provision”). Since the Administrator may exercise section 3008 powers even where a state program is in effect, it is clear that Congress did not intend, by authorizing a state program “in lieu of the Federal program,” to preempt federal regulation entirely. Wyckoff attempts to salvage its reading of section 3006 by arguing that section 3008, unlike section 3013, explicitly reserves federal authority in the face of an authorized state program. Where powers are not expressly reserved, it argues, they are displaced by the state program. This argument, however, misstates the apparent function of section 3008(a)(2). Read in context, section 3008(a)(2) does not explicitly reserve federal authority; rather, it simply conditions the exercise of such authority on the provision of prior notice. In other words, were section 3008(a)(2) to be eliminated from the Act, the apparent effect would not be to withdraw federal authority under section 3008 wherever ■ authorized state programs were in effect; rather, it would be to free federal section 3008 authority of the notice requirement. B. Having concluded that Congress did not clearly intend the interpretation proffered by Wyckoff, we have no difficulty finding that the EPA’s interpretation of section 3006 is reasonable. The EPA’s conclusion that its power to issue orders under section 3013 survives in those states where an authorized state program is operating is plainly consistent with a straightforward reading of the Act. Its reasonableness is further demonstrated by the fact that it comports with our opinion in Washington. In Washington, we upheld the EPA’s refusal to authorize the State of Washington to apply its state program of hazardous waste regulations to activities of both Indians and non-Indians on Indian land. 752 F.2d at 1466. We held that despite the adoption of a state program in lieu of the federal program, the EPA would retain authority to regulate hazardous wastes on Indian lands, to the exclusion of state regulation of the activities of Indians on Indian land. Id. at 1472. While we had no occasion to hold that the territorial jurisdiction of federal and state agencies overlapped, see id. at 1468 (“We do not decide the question whether Washington is empowered to create a program reaching into Indian country when that reach is limited to non-Indians.”), we recognized that “[wjhere a state program is in effect, EPA retains certain oversight and enforcement powers, including the power to withdraw authorization if the state program fails to comply with the federal requirements.” Id. at 1467 (emphasis added). We specifically cited section 3013 as one of the sections which the EPA retained its powers of “oversight and enforcement.” Id. at 1467, citing 42 U.S.C. § 6934 (Act § 3013). V Because the EPA’s interpretation of section 3006 of the Act is a reasonable one, and is entitled to deference, we conclude that Wyckoff has an insubstantial chance of success on the merits in this case. Because the district court did not misapprehend the law, and properly applied the test for preliminary relief, we conclude that its denial of a preliminary injunction was not an abuse of discretion. AFFIRMED. . The Administrator's orders in this case were issued in August 1984, and the district court’s order denying preliminary relief was issued on November 6, 1984. We consider the statutory language then in effect to determine whether the district court erred by concluding that the Administrator had authority to issue the August 1984 orders. The language of several relevant sections of the Act was altered by amendment later in November 1984. Wyckoff concedes that the 1984 amendments do not affect the import of the statute for purposes of the questions addressed in this appeal. We agree. Nevertheless, wherever language of a cited section has been altered by the 1984 amendments, our citations will include the parenthetical "(1982).”

United States v. Articles of Hazardous Substance

FIELD, Senior Circuit Judge: On January 18, 1978, the United States, acting on behalf of the Consumer Products Safety Commission (CPSC) under the Federal Hazardous Substances Act (FHSA), as amended, 15 U.S.C. §§ 1261, et seq., obtained an ex parte warrant of seizure and condemnation from the Clerk of the District Court for the Middle District of North Carolina, directing the seizure of quantities of several different types of children’s sleepwear which had been treated with TRIS, a flame retardant, technically known as (2, 3 Dibromoprotyl) phosphate. The sleepwear was being offered for sale by Troxler Hosiery Company, Inc., at its place of business in Greensboro, North Carolina, and in its complaint the Government alleged that the sleepwear was a banned hazardous substance under 15 U.S.C. § 1261(q)(1)(A). As authority for the seizure the Government invoked 15 U.S.C. § 1265 which authorizes the seizure of a banned hazardous substance “while held for sale”. Troxler filed a motion to quash the warrant of seizure which, after a hearing, was granted by the district court. The Government has appealed. In its motion to quash, Troxler contended that CPSC could proceed against TRIStreated goods only after adopting an appropriate regulation pursuant to 15 U.S.C. § 1261(q)(1)(B) and § 1261(q)(2), and that the seizure violated Troxler’s constitutional rights under the Fourth and Fifth Amendments. The district court rejected Troxler’s first contention, but upheld its constitutional challenges. With respect to Troxler’s first contention, we note, as did the district court, that under Section 1265 “banned hazardous substances” are liable to seizure by process pursuant to a libel of information, and that an article may be a “banned hazardous substance” under either Section 1261(q)(l)(A) or Section 1261(q)(1)(B). Section 1261(q)(1)(A), upon which the Commission relied in this case, defines a “banned hazardous substance” to be “any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted.” A “hazardous substance” is defined in Section 1261(f)(1) in pertinent part as follows: (A) Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children. (B) Any substances which the Secretary by regulation finds, pursuant to the provisions of section 1262(a) of this title, meet the requirements of subparagraph (1)(A) of this paragraph. The Commission contends that TRIS meets the definition of “hazardous substance” in Section 1261(f)(1)(A) because it is toxic within the meaning of Section 1261(g). This latter section provides that “[t]he term ‘toxic’ shall apply to any substance (other than a radioactive substance) which has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface.” Under FHSA a substance may be a “banned hazardous substance” either by meeting the statutory definition in Section 1261(q)(1)(A), or by being so defined by regulation after formal rule-making under Sections 1261(q)(1)(B) and (q)(2). Similarly, a substance may be a “hazardous substance” if it meets the statutory definition contained in Section 1261(f)(1)(A) or has been so defined by regulation under 15 U.S.C. § 1262(a). From our examination of the statutory structure, it appears that the Commission may proceed against a substance by regulation pursuant to its rule-making authority, or may go directly to court upon its allegation that the goods or substances meet the statutory definition under Section 1261(q)(1)(A). We agree with the district court that where the Commission elects to follow the latter course in a Section 1265 proceeding, the issue of whether TRIS-treated children’s sleepwear is, in fact, a “banned hazardous substance” is a question to be later determined in a hearing on the merits in the condemnation proceeding. While the district court rejected Troxler’s contention that an appropriate administrative regulation is a prerequisite to any enforcement action, it concluded that the seizure in this case was violative of the Fourth Amendment because the Commission did not establish probable cause and because an independent judicial officer did not review the allegations prior to the seizure; and that Troxler was denied its Fifth Amendment due process rights because the seizure was not followed by an immediate post-seizure hearing. We do not agree with the district court for we find little substantiality in Troxler’s constitutional arguments. Section 1265 is modelled after Section 304 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 334, and provides that “the procedure in cases under this section shall conform, as nearly as may be, to the procedure in admiralty; except that on demand of either party any issue of fact joined in any such case shall be tried by a jury.” The Commission in this case complied with the statute as well as the Admiralty procedure prescribed in Supplemental Rule C of the Federal Rules of Civil Procedure, filing a verified complaint which described the articles of merchandise and averred that they were “banned hazardous substances” subject to seizure and condemnation under FHSA. In dealing with the issue of probable cause under Section 304 of the Food, Drug and Cosmetic Act, Judge Wright, in Founding Church of Scientology v. United States, 133 U.S.App.D.C. 229, 233, 409 F.2d 1146, 1150 (1969), cert. denied 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969), observed: Though warrants are generally necessary for arrests of persons and for searches, the warrant requirement has not traditionally been imposed upon seizures of the type involved in this case— attachment of property in the course of civil proceedings. This does not mean that the Fourth Amendment does not apply to such seizures, in both its substantive prohibition against unreasonable seizures and its procedural requirement of judicial or quasi-judicial review of the decision to seize. It means merely that judicial restraint is imposed through a different form of proceeding than the showing of probable cause before a magistrate. In the case of ordinary civil attachments, the details of such proceedings are, even in the federal courts, left to state law. In cases in admiralty, the process is governed by the Admiralty Rules, lately recodified as a supplement to the Civil Rules. (Footnotes omitted). We are in accord with this observation, and in our opinion the Commission’s adherence to the Admiralty Rules provided sufficient probable cause for the issuance of the warrant of seizure in this case. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), upon which the district court relied, is inapposite for that case dealt with the warrantless search of a private home, while the case before us involves a seizure pursuant to a warrant in a store which concededly was open to the public. With respect to the Fifth Amendment issue, Section 1265, like Section 304 of the Food, Drug and Cosmetic Act, is designed to provide an expeditious remedy of seizure and condemnation to protect the public from substantial injury and illness because of hazardous substances, and we find the answer to Troxler’s due process claims in Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950). In that case Section 304 of the Food and Drug Act was challenged under the due process clause upon grounds similar to those advanced by Troxler that the party was entitled to a hearing upon the issue of probable cause in advance of the seizure. The Court, noting that the statute directed that the procedure should conform “as nearly as may be, to the procedure in admiralty,” stated that “[wjhen the libels are filed the owner has an opportunity to appear as a claimant and to have a full hearing before the court. This hearing, we conclude, satisfies the requirements of due process.” 339 U.S. at 598, 70 S.Ct. at 872. Troxler suggests that Ewing has been eroded by a series of cases beginning with Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), requiring notice and hearing in connection with governmental actions that affect individual liberty and property interests. However, Goldberg cited Ewing as an example in its observation “that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing.” 397 U.S. at 263, 90 S.Ct. at 1018 n.10. Our examination of the cases addressing the due process issue in this context indicates that they have consistently recognized the continuing viability of Ewing and we accept it as controlling authority in this case. Since we find no merit in Troxler’s constitutional claims, the judgment of the district court quashing the warrant of seizure must be reversed and this case remanded for further proceedings consistent with this opinion. * * * Acting upon the Government’s motion, we granted a stay of the order of the district court pending disposition of this appeal, and in our order granting the stay we remanded the case to the district court for the limited purpose of determining the appropriate disposition of the sleepwear in the event we should hold that it was subject to condemnation as a banned hazardous substance. Specifically, we requested the views of the district court on the facts posited as to whether, pursuant to Section 1265(c), the goods should be forfeited for destruction, forfeited for sale by the Government, or whether Troxler, under appropriate bond and supervision of the Commission, should be permitted to sell the goods in foreign commerce with the proceeds of the sale enuring to the benefit of Troxler. Upon remand, the district court filed a memorandum decision in which it observed that the record was inadequate to permit an intelligent exercise of its discretion with respect to the alternative dispositions under Section 1265(c). The court, however, considered the question of whether it had the authority to order that the seized goods be released to Troxler for sale in foreign commerce and concluded that it did not, and Troxler has appealed from its determination on this point. We agree with the conclusion of the district court. Under Section 1265(c), the court may order that the condemned articles be destroyed or sold by the Government, or, as a third alternative, may direct that they be delivered to the owner, under appropriate bond and supervision, “to be destroyed or brought into compliance with the provisions of” FHSA. Troxler contends that the sale of the condemned goods in foreign commerce would constitute bringing them into compliance with the FHSA under this third alternative. In United States v. Kent Food Corporation, 168 F.2d 632, 634 (2 Cir. 1948), the Second Circuit had occasion to consider a similar question under the parallel language of Section 304 of the Food, Drug and Cosmetic Act, and rejected the argument advanced by Troxler, stating: The power specifically given to the court to do only certain things upon condemnation of the articles excludes the possibility of according them a status they might originally have had, had they never been introduced into interstate commerce for the purpose of domestic sale. The clear purpose of the statute appears to be to visit the statutory penalties or sanctions upon articles thus found to be in violation of its provisions. Counsel for Troxler, however, suggests that Kent is inapposite because of differences between the export provisions of the Food, Drug and Cosmetic Act and those of the FHSA. Concededly, there are differences in the statutory language, but we do not regard them as significant. While Section 1265(c) exempts from seizure any hazardous substance appropriately intended for export, there is no indication that articles which have been offered for sale in domestic commerce can avoid the consequences of seizure and forfeiture by resorting to export after condemnation has occurred. Accordingly, we affirm the district court on this point. No. 78-1066 — REVERSED and REMANDED. No. 78-1110 — AFFIRMED. In view of our disposition of the appeal, the Government’s petition for a writ of mandamus (No. 78-1142) is dismissed. . Since the premises in which the merchandise was seized were open to ihe public, there was no impermissible governmental intrusion in this case, and the seizure “did not involve an invasion of privacy.” See G. M. Leasing Corp. v. United States, 429 U.S. 338, 351, 97 S.Ct. 619, 628, 50 L.Ed.2d 530 (1977). . See Mitchell v. W. T. Grant Co., 416 U.S. 600, 612, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Cale ro-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974); Fuentes v. Shevin, 407 U.S. 67, 92, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Natick Paperboard Corp. v. Weinberger, 525 F.2d 1103, 1107 (1 Cir. 1975), cert. denied 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976); United States v. An Art. Consisting of Boxes of Clacker Balls, 413 F.Supp. 1281, 1283 n.1 (E.D.Wis.1976).

George's Pest Control Service v. United States Environmental Protection Agency

PER CURIAM: The Regional Administrator of the Environmental Protection Agency found the petitioner had violated the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 135, et seq. (Supp. V 1975), and assessed a civil penalty of $1,000. Section 136j(a)(2)(G) of Title 7 proscribes the use of “any registered pesticide in a manner inconsistent with its labeling.” Petitioner contends that the EPA failed to adduce sufficient evidence to prove a violation of that section. The decision and order of the Administrator must be sustained if it is supported by a substantial evidence, when considered on the record as a whole. 7 U.S.C. § 136n(b) (Supp. V 1975). We affirm. The record demonstrates that an employee of petitioner sprayed either DIAZINON 4S or DIAZINON 4E in the interior of a retail meat market. DIAZINON 4S and 4E are EPA registered pesticides and carry the following cautionary label: Limited to crack and crevice treatment only — apply a small amount of material in a V2 — 1% solution directly into cracks and crevices such as expansion joints between different elements of construction or between bases and the floor, wall voids, or hollow equipment legs where cockroaches, ants, spiders, and silverfish hide. Apply as a pin thin stream. CARE SHOULD BE TAKEN TO AVOID DEPOSITING THE PRODUCT ONTO EXPOSED SURFACES OR INTRODUCING THE MATERIAL INTO THE AIR. AVOID CONTAMINATION OF FOOD OR FOOD PROCESSING SURFACES. APPLICATION OF THIS PRODUCT IN THE FOOD HANDLING AREAS OF FOOD HANDLING ESTABLISHMENTS, OTHER THAN AS A CRACK AND CREVICE TREATMENT, ARE NOT PERMITTED. The record contains substantial evidence to support the following conclusions: (1) the employee, in applying the pesticide, held the nozzle of the applicator eight to twelve inches away from crevices at the intersection of the wall and the floor and saturated a portion of the wall as a result [Record at 183, 203]; (2) during the application of the pesticide an employee of the California Department of Agriculture, who was present in the room, experienced a burning sensation in his eyes; (3) fresh cut meat was hanging in the room; and (4) samples of sawdust collected from the room contained Diazinon. This evidence is sufficient to establish that exposed surfaces of the room were contaminated with Diazinon and that the pesticide was not applied “directly into cracks and crevices,” as required by the label. The Administrator could conclude, quite properly, that the application of the pesticide was inconsistent with the labeling in-struetions. A violation of section 136j(a)(2)(G) is thereby established and the decision of the Regional Administrator is AFFIRMED.

Steeltech, Ltd. v. United States Environmental Protection Agency

OPINION MOORE, Circuit Judge. Plaintiff-Appellant Steeltech, Ltd., appeals the district court’s affirmance of the civil penalty imposed by an EPA administrative law judge (“ALJ”) under the Emergency Planning and Community Right-to-Know Act (“EPCRA”), 42 U.S.C. §§ 11001-11050, for Steeltech’s failure to file timely reports regarding its processing of toxic chemicals. Steeltech has not contested its liability under EPCRA, a strict liability statute; instead, Steeltech contends that the civil penalty assessed by the EPA is excessive because the agency failed to give due consideration to the mitigating circumstances surrounding Steeltech’s failure to file .the reports. The ALJ calculated the civil penalty by means of the Environmental Response Policy (“ERP”), a statement of general policy rather than a rule. Steeltech’s argument is that the ALJ applied the ERP as though it were a rule, however, and that the $61,736 civil penalty imposed is excessive because Steeltech’s EPCRA violations were of low gravity and caused by the firm’s lack of awareness of its reporting obligations. We AFFIRM the judgment of the district court. Applying the ERP, the ALJ and Environmental Appeals Board (“EAB”) considered Steeltech’s arguments and rejected them based on valid considerations. Thus, we are unable to conclude that the EPA acted arbitrarily or capriciously in the present case. I. BACKGROUND A Michigan corporation located in Grand Rapids, Steeltech manufactures iron, nickel, chromium, and cobalt-based alloy castings. Nickel, chromium, and cobalt are chemicals identified as “toxic” by federal law and thus subject to the reporting requirements of the EPCRA. Despite processing substantial quantities of these chemicals in the calendar years 1988, 1989, 1990, 1992, and 1993, Steeltech failed to file timely reports (the Form Rs required under the EPCRA) for these years and chemicals. Steeltech’s failure to file timely Form Rs for the years 1988-1990 for nickel and chromium came to the attention of both Steeltech and the EPA when the EPA conducted a consensual inspection of Steeltech’s facility in February 1992. Steeltech officials filed the necessary Form Rs for the years 1988-1990 the day after the inspection. The EPA then filed an administrative complaint against Steeltech based on its failure to file timely Form Rs for nickel and chromium for the years 1988-1990 on September 2, 1994. On October 26, 1994, a Steeltech official advised the EPA that Steeltech had also failed to file timely Form Rs for 1992 (for nickel and chromium) and for 1993 (for nickel, chromium, and cobalt, which was produced in reportable quantities in 1993 but in none of the other years at issue). The EPA subsequently amended its complaint to include these EPCRA violations. This amended complaint was served on Steeltech on March 28, 1995. A hearing on the amount of the civil penalty to be assessed against Steeltech was held before Chief Administrative Law Judge Susan L. Biro on September 23, 1997. The parties submitted stipulated facts and exhibits to the ALJ; the EPA did not present any additional evidence or testimony at this hearing. Steeltech presented the testimony of two witnesses at the hearing, and an intervenor, the founder of the company who was potentially liable for some of the civil penalty because of an indemnification agreement with the current owner, also testified. The greater part of this testimony concerned Steel-tech’s lack of awareness of the corporation’s obligation to file Form Rs under the EPCRA. In addition, there was testimony regarding the corporation’s troubled financial state during some of the years at issue, and the steps Steeltech has subsequently taken to comply with EPCRA reporting requirements. After dismissing the 1988 counts for nickel and chromium because the five-year statute of limitations on EPCRA claims had expired on those counts, the ALJ assessed a civil penalty against Steeltech for the remaining nine counts for nickel and chromium for 1989, 1990, 1992, and 1993 and for cobalt for 1993. During the years covered by these counts, Steeltech processed a total of 1,269,349 pounds of nickel, 885,796 pounds of chromium, and 162,369 pounds of cobalt. Although the statute authorized a maximum possible civil penalty of $225,000 for these nine counts, the EPA calculated an initial civil penalty of $74,390. J.A. at 24. After the 1997 hearing and considering the post-hearing briefs, however, the ALJ adjusted the civil penalty downward for a variety of reasons and assessed a civil penalty of $61,736. J.A. at 44. This is the amount at issue in the present case. In arriving at these figures, both the agency and the ALJ relied upon the terms of the EPCRA, which provides for civil penalties up to $25,000 for each violation, 42 U.S.C. § 11045(c)(1), and 40 C.F.R. § 22.27(b), which directs the agency to consider any guidelines issued under the statute in assessing civil penalties. The relevant guidelines are found in the EPCRA § 313 Enforcement Response Policy (“ERP”). The ERP was issued by the EPA’s Office of Compliance Monitoring as a general statement of policy “to ensure that enforcement actions for violations of EPCRA § 313 ... are arrived at in a fair, uniform and consistent manner; that the enforcement response is appropriate for the violation committed; and that persons will be deterred from committing EPCRA § 313 violations.” J.A. at 230 (ERP at 3). To achieve these ends, the ERP establishes an elaborate methodology for assessing civil penalties for EP-CRA violations. Both the ALJ and the Environmental Appeals Board (“EAB”) carefully applied the ERP to the facts of this present case, with the ALJ arriving at the civil penalty assessed and the EAB affirming that amount. The district court subsequently affirmed the EAB’s final decision and civil penalty of $61,736 against Steeltech. See Steeltech, Ltd. v. United States Envtl. Prot. Agency, 105 F.Supp.2d 760 (W.D.Mich.2000). The specific application of this methodology to the facts of the present case is not at issue in this appeal. Steeltech argues that the agency acted arbitrarily and capriciously in applying the ERP to the present case at all. Steeltech’s argument boils down to this: Although it admits liability for failing to comply with EPCRA, Steel-tech argues that it should escape significant penalties for its multiple violations of EPCRA because, in the final analysis, all it did was fail to file some forms, and, moreover, it failed to do so only because it lacked knowledge of the law. Steeltech argues that, rather than apply the ERP, the EPA should have assessed a civil penalty somewhere in the amount of $10,000. To defend the fairness of its desired result, Steeltech points to a number of facts: (1) its lack of knowledge regarding its reporting responsibilities under EPCRA, at least prior to the 1992 inspection; (2) its poor financial condition for much of the period at issue, which forced its principal officers to concern themselves solely with keeping the firm in business; (3) the failure of EPA to demonstrate any harm to the environment or any effect on the public’s right to know under the statute; and (4) the EPA’s failure either to put Steeltech on the relevant mailing list or to file its administrative complaint while the firm could have raised an inability-to-pay defense. II. ANALYSIS This court reviews de novo the district court’s decision affirming an agency determination and applies the appropriate standard of review to the decision of the agency. Community First Bank v. National Credit Union Admin., 41 F.3d 1050, 1054 (6th Cir.1994). Under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), this court will set aside the agency’s determination only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See also Spitzer Great Lakes Ltd. v. United States Envtl. Prot. Agency, 173 F.3d 412, 414 (6th Cir.1999). Steeltech’s argument on this appeal can be divided into two parts. First, Steel-tech argues that the ALJ, and subsequently the EAB, paid “mere lip service” to the distinction between a policy statement and a rule, and that this failure to treat the ERP as a policy rather than as a rule is reversible error. Second, Steeltech argues that the facts developed in the administrative hearing support its conclusion, as a policy matter, that the ERP should not have been applied. In our view, neither of these arguments has merit. With respect to Steeltech’s first argument, the ALJ expressly recognized that, under the APA, “a penalty policy, such as the ... ERP, is not unquestionably applied as if the policy were a rule with ‘binding effect.’ ” J.A. at 30 (ALJ Op. at 10) (citation omitted). The ALJ continued: “In setting the penalty, Administrative Law Judges have ‘the discretion either to adopt the rationale of an applicable penalty policy where appropriate or to deviate from it where circumstances warrant.’ However, ... the procedural Rules governing this proceeding require that ‘any civil penalty guidelines’ be ‘considered’ and that deviations from the amount of penalty recommended to be assessed in the complaint be accompanied by specific reasons therefor.” J.A. at 30 (ALJ Op. at 10) (citations omitted). Thus, it is clear that the ALJ understood that the ERP was only a policy, not a rule, and that it had the discretion to depart from the ERP if there was reason for doing so. The ALJ also specifically rejected Steel-tech’s argument that “the ERP should not be utilized at all in calculating the penalties,” J.A. at 37 (ALJ Op. at 17), and gave detailed reasons for applying the ERP in response to Steeltech’s arguments against doing so. Thus, in answer to Steeltech’s argument that it was at “the other end of the spectrum” from the “most recalcitrant violator” of EPCRA, for example, the ALJ emphasized that “EPCRA is a strict liability statute; ‘intent’ is not an element,” and that the ends of the statute are frustrated by every failure to report, irrespective of culpability. J.A. at 37. Thus, the ALJ concluded that Steeltech’s lack of culpability was not a reason for departing from the ERP-recommended penalty, especially since the strict liability nature of the statute was intended to “strongly discourag[e] ignorance of EPCRA.” J.A. at 38. The flaw in Steeltech’s argument is that the issues of liability and punishment are not so easily separated. Although Steel-tech is certainly correct that liability and the severity of punishment are distinct inquiries, it must be remembered that liability and punishment serve similar purposes. To find a party liable despite its lack of culpability, but then to reduce, significantly, the applicable penalty based on this lack of culpability, would certainly undermine the goals of the statute. Cf. Steeltech, 105 F.Supp.2d at 767 (“The EPA’s decision not to limit the penalties for unintended violations was reasonable because such a policy might have ... the effect of encouraging a lack of diligence on the part of regulated facilities.... ”). Along these lines, the ALJ also rejected Steeltech’s assertion that the ERP “is ... directed solely towards intentional, recalcitrant misfeasors.” J.A. at 38. Instead, the ALJ stressed that the ERP guidelines “encompass[ ] a whole range of violators and circumstances under which violations occur, providing flexibility in the penalty proposed based upon circumstances.” J.A. at 38. It was in this context that the ALJ’s language provided Steeltech with one of its stronger arguments: “This case presents no extraordinary circumstances which would suggest any deviation from the ERP.... ” J.A. at 38. Steeltech has argued that this statement reveals that the ALJ erred in applying too exacting a standard for deviating from ERP; the ALJ’s use of the word “extraordinary” in this sentence indicates, according to Steeltech, that the ALJ treated the ERP as if it had the effect of a rule of law. But in the context of the ALJ’s entire opinion, such a reading of this single use of the word “extraordinary” is untenable. The ALJ expressly stated that the ERP was not a rule and that she had the discretion to depart from the ERP, if appropriate. The statement that this case does not involve “extraordinary” circumstances, in this broader context, must be read as meaning only that the present case does not present circumstances that raise policy issues not accounted for in the ERP and thus that departure from the ERP is not warranted by the circumstances of this case. The ALJ’s use of the word “extraordinary” does not negate the rest of the ALJ’s lengthy and well-reasoned opinion. In reviewing the ALJ’s order, the EAB concluded that, even if the ALJ had applied an improperly high standard for deviating from the ERP, any error in doing so was harmless as “it [was] appropriate to apply the ERP to these facts and the circumstances [did] not warrant a deviation from the ERP’s guidance.” J.A. at 58 (EAB Op. at 13). The EAB went on in its opinion to consider and reject Steeltech’s argument that the agency should have deviated from the ERP guidelines in assessing the civil penalty in the present case. Like the district court, we are unable to conclude that the ALJ’s assessment of a civil penalty of $61,736 in the present case, under the guidance of the ERP, was either arbitrary or capricious. With respect to Steeltech’s second argument—i.e., that the facts of this ease support its position that the ERP should not have been applied—Steeltech misconstrues the substantial evidence standard of review. See 5 U.S.C. § 706(2)(E). Steeltech has not challenged specific factual determinations in the record. Instead, Steeltech argues that there was substantial evidence on the record to support its position that the ERP should not have been applied at all. Under the substantial evidence standard, however, our review of the ALJ’s factual determinations is limited to determining whether those determinations are supported by substantial evidence on the record as a whole — not whether there was substantial evidence in the record for a result other than that arrived at by the ALJ. See, e.g., Taylor Warehouse Corp. v. NLRB, 98 F.3d 892, 900 (6th Cir.1996) (holding that, under substantial evidence standard of review, court may not supplant the factual findings of an agency even when an alternative finding is also supported by substantial evidence); Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246 (6th Cir.1995) (“[A]s long as the ALJ’s conclusion is supported by [substantial] evidence, we will not reverse, even if the facts permit an alternative conclusion.”). Because the record fully supports the ALJ’s factual determinations, we decline Steeltech’s invitation to second-guess the ALJ’s use of the ERP in assessing the civil penalty in this case. III. CONCLUSION For these reasons, we AFFIRM the judgment of the district court.

Katzson Bros. v. United States Environmental Protection Agency

JOHN P. MOORE, Circuit Judge. Petitioner Katzson Brothers, a wholesale supplier of janitorial laundry and dry cleaning products, petitions for review of a $4,200 penalty assessed by the Environmental Protection Agency (EPA). EPA levied this penalty when Katzson Brothers failed to file a 1983 annual report listing its production of pesticides as required by the Federal Insecticide, Fungicide, and Roden-ticide Act (FIFRA). Katzson Brothers argues on appeal that EPA’s service of process was improper and violated the requirements of due process. Katzson Brothers also argues that the severe penalty fails to reflect significant mitigating factors. We hold that Katzson Brothers received service of process well within the parameters of due process. We are concerned, however, with the extreme fine assessed by EPA, particularly since neither the Regional Administrator nor the Chief Administrator adequately analyzed the factual basis for the penalty. We therefore remand to EPA with instructions to allow Katzson Brothers a hearing and to reconsider the penalty amount. I. Katzson Brothers has for a number of years produced small amounts of Kaybro Algaecide. Until 1983, Katzson Brothers consistently filed yearly reports with EPA stating how much algaecide it had produced and sold. When EPA did not receive the 1983 report by the due date of February 1, 1984, it sent Seymour Katzson, Secretary-Treasurer and one-half shareholder of Katzson Brothers, two letters by certified mail and made at least three telephone calls requesting the report. Mr. Katzson twice requested and was sent the proper report form. The return receipts for the letters and the copies of the report form were signed by three different employees of Katzson Brothers, including J. Rudisell, a secretary with the company. In February 1985, after fruitlessly waiting a year for the 1983 report, EPA filed an administrative complaint which proposed a civil penalty of $4,200 and advised Mr. Katzson of his right to a hearing before an Administrative Law Judge. EPA received the return receipt back from Katz-son Brothers, signed by Ms. Rudisell. When Seymour Katzson failed to respond to the complaint, EPA continued to try contacting him without success. EPA then filed a motion for a default order and again received a return receipt signed by Ms. Rudisell and no response from Mr. Katz-son. On June 28, the Regional Administrator of EPA issued a default order assessing the full penalty given in the complaint. Mr. Katzson attempted to vacate this order, but the Regional Administrator denied his motion in a seven-line ruling stating that “good cause” to vacate had not been established. Mr. Katzson appealed this decision to the Administrator of EPA, who affirmed the default order. Specifically, the Administrator dismissed Mr. Katzson’s claim that Ms. Rudisell had “sabotaged” the company by diverting mail and telephone messages as “uncorroborated and strainfing] all credulity.” The Administrator also found that service of process was proper under EPA’s Consolidated Rules of Practice and did not violate the requirements of due process. Finally, the Administrator ruled that the civil penalty amount had been properly calculated by EPA. Mr. Katzson’s motion for reconsideration was subsequently denied. II. Mr. Katzson first argues that the default order is invalid because of improper service. He cites Fed.R.Civ.P. 4(d)(3), which requires a complaint to be delivered to an officer, partner, agent, or other person authorized to receive service of process. Mr. Katzson also relies on the following sections of EPA’s Consolidated Rules of Practice: (i) Service of a copy of the signed original of the complaint, together with a copy of these rules of practice, may be made personally or by certified mail, return receipt requested, on the respondent (or his representative). (ii) Service upon a domestic or foreign corporation ... shall be made by personal service or certified mail, as prescribed by paragraph (i) above, directed to an officer, partner, a managing or general agent, or to any other person authorized by appointment or by Federal or State law to receive service of process. 40 C.F.R. § 22.05(b)(1)®, (ii) (1985). Mr. Katzson interprets these provisions as requiring EPA to directly serve him or his authorized agent. He alleges that EPA’s decision to send the complaint and the motion for default to a secretary denied him proper notice and an opportunity to respond. The review of an agency’s findings is governed by 7 U.S.C. § 136n(b), which states “[t]he order of the Administrator shall be sustained if it is supported by substantial evidence when considered on the record as a whole.” While substantial evidence means more than a mere scintilla, the possibility of reaching two different conclusions from the evidence presented does not prevent an administrative agency’s findings from satisfying this threshold. Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). This standard of review requires a court to give due deference to an agency’s special expertise and discretionary power to fashion remedies. Id. at 621, 86 S.Ct. at 1027. We note, however, that this deference should be somewhat tempered in the instant case because default judgments are not favored by courts, and an entry of default may be set aside for good cause shown. Fed.R.Civ.P. 55(c); 40 C.F.R. § 22.17(d); Jackson v. Beech, 636 F.2d 831, 835 (D.C.Cir.1980). In accordance with these principles of review, we hold the Administrator correctly determined that EPA properly served Mr. Katzson. While Rule 4(d) appears to require personal delivery, the Rules of Civil Procedure do not bind administrative agencies. E.g., Silverman v. Commodity Futures Trading Comm’n, 549 F.2d 28, 33 (7th Cir.1977); Hess & Clark v. FDA, 495 F.2d 975, 984 (D.C.Cir.1974). Rather, agencies are free to fashion their own rules of procedure, so long as these rules satisfy the fundamental requirements of fairness and notice. EPA has availed itself of this opportunity by establishing its Consolidated Rules of Practice. These rules and the requirements of due process alone determine whether EPA’s service is proper. We believe the relevant sections of EPA’s Consolidated Rules do not require direct personal service. It is undisputed that EPA served the complaint by certified mail, return receipt requested, and addressed to Seymour Katzson. Service to a “representative” encompasses a personal secretary, such as Ms. Rudisell, who regularly receives and signs for certified mail. If “representative” was intended to be read narrowly to include only officers, partners, and agents, it would have been further qualified to incorporate the specific classes of persons mentioned in the second section. Furthermore, where the Consolidated Rules seek to require actual delivery, they quite clearly use the appropriate language. See, e.g., 40 C.F.R. § 22.05(b)(l)(iv)(A) (service upon a state or a local government shall be accomplished “by delivering a copy of the complaint to the chief executive officer thereof”). The plain language of the second section, on the other hand, indicates that when service is effectuated by certified mail, the letter need only be addressed, rather than actually delivered, to an officer, partner, agent, or other authorized individual. This provision ensures that the representative who actually receives the mail will know to whom it should be delivered. Any other interpretation would severely hinder service of process on corporations by certified mail, since the postal service employee would have to wait on the corporation’s premises until the officer, partner, or agent could sign the return receipt. Nor did EPA’s service of process violate the requirements of due process. The mails may be used to effectuate service of process if the notice reasonably conveys the required information and affords a reasonable time for response and appearance. E.g., Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). Due process does not require actual notice. If an agency employs a procedure reasonably calculated to achieve notice, successful achievement is not necessary to satisfy due process requirements. Day v. J. Brendan Wynne, Inc., 702 F.2d 10, 11 (1st Cir.1983); Stateside Mach. Co. v. Alperin, 591 F.2d 234, 241 (3d Cir.1979). EPA’s service of the complaint by registered mail with return receipt requested, as well as its substantial efforts to contact Katzson over a sixteen-month period, satisfies these due process concerns. III. We have considerably more difficulty with EPA’s argument that the Administrator did not abuse his discretion by upholding a penalty of $4,200. EPA argues that it derived the penalty amount by following its published guidelines. EPA uses a matrix incorporating the type of violation and the. size of the violating company to determine civil penalties. See 39 Fed.Reg. 27,-711-18 (1974). This figure may then be increased or decreased by up to ten percent depending on the gravity of the violation. EPA treated Katzson’s violation as a failure to register, and, according to the matrix, the proposed penalty for a company with gross annual sales over $1 million that knows of FIFRA’s registration requirements is $4,200. While these guidelines may have been followed by EPA, neither the Regional Administrator nor the Chief Administrator adequately addressed the penalty amount. The Regional Administrator did not mention the penalty amount at all in his denial of Katzson Brothers’ motion to vacate, and the Chief Administrator simply agreed with the Regional Administrator’s conclusory finding in the default order that the penalty comported with EPA guidelines. This complete absence of inquiry into the factual basis for the penalty is troubling. As the court in Harborlite Corp. v. ICC, 613 F.2d 1088 (D.C.Cir.1979), stated: One basic procedural safeguard requires the administrative adjudicator, by written opinion, to state findings of fact and reason that support its decision. These findings and reasons must be sufficient to reflect a considered response to the evidence and contentions of the losing party and to allow for a thoughtful judicial review if one is sought_ Moreover, a court “cannot ‘accept appellate counsel’s post hoc rationalizations for agency action’; for an agency’s order must be upheld, if at all, ‘on the same basis articulated in the order by the agency itself.’ ” 613 F.2d at 1092 (quoting FPC v. Texaco, Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141 (1974)) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962)). See also Morton v. Dow, 525 F.2d 1302 (10th Cir.1975) (agency’s decision upheld because the Administrative Law Judge made the necessary findings on the ultimate issues, clearly indicated his reasoning, and gave evidence to support his conclusions). By effectively rubber-stamping EPA’s determination of the penalty amount, the Regional Administrator and the Chief Administrator failed to make findings regarding Katzson Brothers’ prior compliance with the filing requirement or its ability to pay the fine. They also failed to consider that the company did not produce any al-gaecide in 1983, and the violation therefore did not affect the environment or the health of anyone. These factors, though, are important in determining the proper penalty amount. The Administrator is required by statute to consider the effect of the penalty upon the ability of a business to continue and the gravity of the violation. 7 U.S.C. § 136i (a)(4). If the Administrator finds that the violation did not cause significant harm to health or the environment, the Administrator may issue a warning rather than a penalty. Id. We are also troubled by the severity of the penalty. The maximum penalty for any violation of FIFRA is $5,000. 7 U.S.C. § 136i(a)(l). Considering Katzson Brother’s spotless prior compliance record and the lack of harm caused to the environment by the violation, we question EPA’s judgment in assessing a fine that is only $800 less than the maximum penalty amount. EPA has shown greater temperance in the past. In an agency decision, Turner Copter Services, FIFRA No. 85-4 (EPA) (Nov. 5, 1985), for example, plaintiff was fined only $1,500 for three violations involving the use of a registered pesticide in a manner incompatible with its labeling, despite the fact that Turner accidentally sprayed sensitive crops and a pedestrian. And in Aero-Master v. EPA, 765 F.2d 746 (8th Cir.1985), EPA assessed only a $2,100 penalty for the shipping of improperly labeled pesticides. The reviewing court balked even at this relatively minimal fine and suggested the agency reduce the penalty because the violation was “essentially technical and non-willful.” Id. at 747. Because of the deficient review by the Regional and Chief Administrators, we think Mr. Katzson has shown good cause to set aside the penalty. We therefore remand the case to EPA with instructions to grant Mr. Katzson a hearing to consider the mitigating factors emphasized in this opinion. While we do not order the penalty amount to be reduced, we encourage EPA to carefully evaluate plaintiff’s arguments and reconsider its prior position. We anticipate that a careful review of this matter will result in an appropriate determination of the penalty assessment. REVERSED AND REMANDED. . This order states: Counsel for [Katzson], by both motion and informal conference, has presented arguments for vacating the Default Order issued June 28, 1985. As arguments therefor, [Katz-son] alleges failure to receive the complaint despite certified return receipt, and lack of effective service of process. I hereby find that under the Consolidated Rules of Practice, 40 C.F.R. Section 22.17(d), a good cause has not been shown to support [Katzson’s] motion. The motion to vacate the Default Order ... is hereby denied. . The Consolidated Rules of Practice specify that a copy of the rules must accompany each complaint. 40 C.F.R. § 22.14. There is some discrepancy whether Katzson Brothers received these rules. Mr. Katzson argues that the certificate of mailing attached to the complaint indicates only the complaint was mailed. The EPA secretary who mailed the complaint to Katzson Brothers, however, claims she always includes a copy of the rules with every complaint she mails. In any event, failure to include the rules with the complaint in this instance is harmless error, since the complaint gave the citation for the Consolidated Rules in the Code of Federal Regulations, and Mr. Katzson has shown no resulting prejudice. E.g., McCulloch Interstate Gas Corp. v. Federal Power Comm’n, 536 F.2d 910, 913 (10th Cir.1976). . Contacting Mr. Katzson was complicated by his failure to register a corporate agent until December 12, 1984, only six weeks before service of the complaint. EPA checked with the Colorado Secretary of State's office on December 27 and was told that Mr. Katzson had not yet designated an agent. Mr. Katzson did not submit evidence showing he had designated an agent until after the Administrator issued his final decision. The Administrator, though, addressed the matter fully in his order on reconsideration and still upheld the final decision. Ironically, Mr. Katzson appointed himself agent for the corporation. Therefore, EPA directed the complaint, the motion for default, and the several warning letters to the correct individual.

Thomas v. Union Carbide Agricultural Products Co.

Justice O’Connor delivered the opinion of the Court. This case requires the Court to revisit the data-consideration provision of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 61 Stat. 163, as amended, 7 U. S. C. §136 et seq., which was considered last Term in Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984). Monsanto examined whether FIFRA’s data-consideration provision effects an uncompensated taking in violation of the Fifth Amendment. In this case we address whether Article III of the Constitution prohibits Congress from selecting binding arbitration with only limited judicial review as the mechanism for resolving disputes among participants in FIFRA’s pesticide registration scheme. We conclude it does not and reverse the judgment below. H-i The Court’s opinion in Monsanto details the development of FIFRA from the licensing and labeling statute enacted in 1947 to the comprehensive regulatory statute of the present. This case, like Monsanto, concerns the most recent amendment to FIFRA, the Federal Pesticide Act of 1978, 92 Stat. 819 (1978 Act), which sought to correct problems created by the Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973 (1972 Act), itself a major revision of prior law. See Ruckelshaus v. Monsanto Co., supra, at 991-992. A As a precondition for registration of a pesticide, manufacturers must submit research data to the Environmental Protection Agency (EPA) concerning the product’s health, safety, and environmental effects. The 1972 Act established data-sharing provisions intended to streamline pesticide registration procedures, increase competition, and avoid unnecessary duplication of data-generation costs. S. Rep. No. 92-838, pp. 72-73 (1972) (1972 S. Rep.). Some evidence suggests that before 1972 data submitted by one registrant had “as a matter of practice but without statutory authority, been considered by the Administrator to support the registration of the same or a similar product by another registrant.” Ruckelshaus v. Monsanto Co., supra, at 1009, n. 14. Such registrations were colloquially known as “me too” or “follow-on” registrations. Section 3(c)(1)(D) of the 1972 Act provided statutory authority for the use of previously submitted data as well as a scheme for sharing the costs of data generation. “In effect, the provision instituted a mandatory data-licensing scheme. The amount of compensation was to be negotiated by the parties, or, in the event negotiations failed, was to be determined by the EPA, subject to judicial review upon instigation of the original data submitter. The scope of the 1972 data-consideration provision, however, was limited, for any data designated as ‘trade secrets or commercial or financial information’ . . . could not be considered at all by EPA to support another registration unless the original submitter consented.” Ruckelshaus v. Monsanto Co., supra, at 992-993. Congress enacted the original data-compensation provision in 1972 because it believed “recognizing a limited proprietary interest” in data submitted to support pesticide registrations would provide an added incentive beyond statutory patent protection for research and development of new pesticides. H. R. Rep. No. 95-663, pp. 17-18 (1977); S. Rep. No. 95-334, pp. 7, 34-40 (1977) (1977 S. Rep.). The data submitters, however, contended that basic health, safety, and environmental data essential to registration of a competing pesticide qualified for protection as a trade secret. With EPA bogged down in cataloging data and the pesticide industry embroiled in litigation over what types of data could legitimately be designated “trade secrets,’’ new pesticide registrations “ground to a virtual halt.” Id., at 3. The 1978 amendments were a response to the “logjam of litigation that resulted from controversies over data compensation and trade secret protection.” Ibid. Congress viewed data-sharing as essential to the registration scheme, id., at 7, but concluded EPA must be relieved of the task of valuation because disputes regarding the compensation scheme had “for all practical purposes, tied up their registration process” and “[EPA] lacked the expertise necessary to establish the proper amount of compensation.” 123 Cong. Rec. 25709 (1977) (statement of Sen. Leahy, floor manager of S. 1678). Legislators and the Agency agreed that “[dieter-mining the amount and terms of such compensation are matters that do not require active government involvement [and] compensation payable should be determined to the fullest extent practicable, within the private sector.” Id., at 25710. Against this background, Congress in 1978 amended § 3(c)(1)(D) and § 10(b) to clarify that the trade secret exemption from the data-consideration provision did not extend to health, safety, and environmental data. In addition, the 1978 amendments granted data submitters a 10-year period of exclusive use for data submitted after September 30,1978, during which time the data may not be cited without the original submitter’s permission. § 3(c)(l)(D)(i). Regarding compensation for use of data not protected by the 10-year exclusive use provision, the amendment substituted for the EPA Administrator’s determination of the appropriate compensation a system of negotiation and binding arbitration to resolve compensation disputes among registrants. Section 3(c)(l)(D)(ii) authorizes EPA to consider data already in its files in support of a new registration, permit, or new use, but “only if the applicant has made an offer to compensate the original data submitter.” If the applicant and data submitter fail to agree, either may invoke binding arbitration. The arbitrator’s decision is subject to judicial review only for “fraud, misrepresentation, or other misconduct.” Ibid,. The statute contains its own sanctions. Should an applicant or data submitter fail to comply with the scheme, the Administrator is required to cancel the new registration or to consider the data without compensation to the original submitter. The Administrator may also issue orders regarding sale or use of existing pesticide stocks. Ibid. The concept of retaining statutory compensation but substituting binding arbitration for valuation of data by EPA emerged as a compromise. This approach was developed by representatives of the major chemical manufacturers, who sought to retain the controversial compensation provision, in discussions with industry groups representing follow-on registrants, whose attempts to register pesticides had been roadblocked by litigation since 1972. Hearings on Extending and Amending FIFRA before the Subcommittee on Department Investigations, Oversight, and Research of the House Committee on Agriculture, 95th Cong., 1st Sess., 522-523 (1977) (testimony of Robert Alikonis, General Counsel to Pesticide Formulators Association). B Appellees are 13 large firms engaged in the development and marketing of chemicals used to manufacture pesticides. Each has in the past submitted data to EPA in support of registrations of various pesticides. When the 1978 amendments went into effect, these firms were engaged in litigation in the Southern District of New York challenging the constitutionality under Article I and the Fifth Amendment of the provisions authorizing data-sharing and disclosure of data to the public. In response to this Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982), appellees amended their complaint to allege that the statutory mechanism of binding arbitration for determining the amount of compensation due them violates Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested” in courts whose judges enjoy tenure “during good Behaviour” and compensation that “shall not be diminished during their Continuance in Office.” Appellees allege Congress in FIFRA transgressed this limitation by allocating to arbitrators the functions of judicial officers and severely limiting review by an Article III court. The District Court granted appellees’ motion for summary judgment on their Article III claims. It found the issues ripe because the “statutory compulsion to seek relief through arbitration” raised a constitutionally sufficient case or controversy. Although troubled by what appeared a “standardless delegation of powers,” the District Court did not reach the Article I issue because it held that Article III barred FIFRA’s “absolute assignment of [judicial] power” to arbitrators with only limited review by Article III judges. Union Carbide Agricultural Products Co. v. Ruckelshaus, 571 F. Supp. 117, 124 (1983). The District Court, rather than striking down the statutory limitation on judicial review, enjoined the entire FIFRA data use and compensation scheme. App. to Juris. Statement 25a. Appellant took a direct appeal to this Court pursuant to 28 U. S. C. § 1252. We vacated the judgment of the District Court and remanded for reconsideration in light of our supervening decision in Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984). Ruckelshaus v. Union Carbide Agricultural Products Co., 468 U. S. 1201 (1984). In Monsanto, we ruled that FIFRA’s data-consideration provisions may be deemed a “public use” even though the most direct beneficiaries of the regulatory scheme will be the later applicants. 467 U. S., at 1014. Insofar as FIFRA authorizes the Administrator to consider trade secrets submitted during the period between 1972 and 1978, a period during which the registrant entertained a reasonable, investment-backed expectation that its trade secret data would be held confidential, we held it effects a taking. But the data originator must complete arbitration and, in the event of a shortfall, exhaust its Tucker Act remedies against the United States before it can be ascertained whether it has been deprived of just compensation. The Court distinguished between the “ability to vindicate [the] constitutional right to just compensation” and the “ability to vindicate [the] statutory right to obtain compensation from a subsequent applicant.” Id., at 1019. But we declined to reach Monsanto’s Article III claim, explaining: “Monsanto did not allege or establish that it had been injured by actual arbitration under the statute. While the District Court acknowledged that Monsanto had received several offers of compensation from applicants for registration, it did not find that EPA had considered Monsanto’s data in considering another application. Further, Monsanto and any subsequent applicant may negotiate and reach agreement concerning an outstanding offer. If they do not reach agreement, then the controversy must go to arbitration. Only after EPA has considered data submitted by Monsanto in evaluating another application and an arbitrator has made an award will Monsanto’s claims with respect to the constitutionality of the arbitration scheme become ripe.” Ibid, (citation omitted). On remand in this case, appellees amended their complaint to reflect that EPA had, in fact, considered their data in support of other registration applications. The amended complaint also alleged that data submitted by appellee Stauffer Chemical Company (Stauffer), originator of the chemicals butylate and EPTC, had been used in connection with registrations by PPG Industries, Inc. (PPG), and Drexel Chemical Company of pesticides containing butylate and EPTC as active ingredients. App. 23. The complaint further alleged Stauffer had invoked the arbitration provisions of § 3(c)(l)(D)(ii) against PPG, and appellees entered in evidence the award of the arbitration panel, handed down on June 28, 1983. Id., at 42. Stauffer claimed the arbitrators’ award fell far short of the compensation to which it was entitled. In view of these developments, the District Court concluded that “[t]he claims presented by Stauffer challenging the constitutionality of FIFRA § 3(c)(1)(D) are ripe for resolution under the criteria established by the Supreme Court” in Ruckelshaus v. Monsanto Co., supra. The remaining plaintiffs, the District Court held, were aggrieved by the clear threat of compulsion to resort to unconstitutional arbitration. App. to Juris. Statement la-4a. The District Court reinstated its prior judgment enjoining the operation of the data-consideration provisions as violative of Article III. EPA again took a direct appeal and we noted probable jurisdiction. 469 U. S. 1032 (1984). This Court stayed the judgment pending disposition of the appeal. II As a threshold matter, we must determine whether appel-lees’ Article III claims demonstrate sufficient ripeness to establish a concrete case or controversy. Regional Rail Reorganization Act Cases, 419 U. S. 102, 138-139 (1974). Appellant contends that the District Court erred in addressing these claims because the criteria established in Monsanto for ripeness remained unsatisfied. Appellant argues that only one firm, Stauffer, engaged in arbitration and it seeks to enforce rather than challenge the award. Appellees counter that they are aggrieved by the threat of an unconstitutional arbitration procedure which assigns the valuation of their data to civil arbitrators and prohibits judicial review of the amount of compensation. Stauffer in particular argues that it was doubly injured by the arbitration. Although it claimed a shortfall of some $50 million, it was precluded by § 3(c)(l)(D)(ii) from seeking judicial review of the award against PPG. While seeking to enforce the award should its Article III claim fail, Stauffer has consistently challenged the validity of the entire FIFRA data-consideration scheme both here and in litigation initiated by PPG. See n. 3, supra. We agree that Stauffer has an independent right to adjudication in a constitutionally proper forum. See Glidden Co. v. Zdanok, 370 U. S. 530, 533 (1962). Although appellees contend and the District Court found that they were injured by the shortfall in the award, it is sufficient for purposes of a claim under Article III challenging a tribunal’s jurisdiction that the claimant demonstrate it has been or inevitably will be subjected to an exercise of such unconstitutional jurisdiction. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S., at 56-57, aff’g 12 B. R. 946 (Minn. 1981) (reversing Bankruptcy Court’s denial of pretrial motion to dismiss contract claim). “[A party] may object to proceeding further with [a] lawsuit on the grounds that if it is to be resolved by an agency of the United States, it may be resolved only by an agency which exercises ‘[t]he judicial power of the United States’ described by Art. Ill of the Constitution.” 458 U. S., at 89 (opinion concurring in judgment). In contrast to the Taking Clause claim in Monsanto, appellees’ Article III injury is not a function of whether the tribunal awards reasonable compensation but of the tribunal’s authority to adjudicate the dispute. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., supra; Glidden Co. v. Zdanok, supra. Thus appellees state an independent claim under Article III, apart from any monetary injury sustained as a result of the arbitration. “[Rjipeness is peculiarly a question of timing.” Regional Rail Reorganization Act Cases, supra, at 140. “[I]ts basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U. S. 136, 148 (1967). The Article III challenge in Monsanto was, in this sense, premature. Monsanto had not alleged that its data had ever been considered in support of other registrations, much less that Monsanto had failed to reach a negotiated settlement or been forced to resort to an unconstitutional arbitration. In fact, no FIFRA arbitrations had as yet taken place when Monsanto brought its claim. Monsanto’s claim thus involved “contingent future events that may not occur as anticipated, or indeed may not occur at all.” 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3532 (1984). By contrast, the FIFRA data-consideration procedures are now in place and numerous follow-on registrations have been issued. See Brief for Appellees 3, n. 3 (citing Docket Entry No. 132, p. 2). Each of the appellees in this action has alleged as yet uncompensated use of its data. App. 23. Stauffer has engaged in an arbitration lasting many months and consuming 2,700 pages of transcript. There is no doubt that the “effects [of the arbitration scheme] have [been felt by Stauffer] in a concrete way.” Abbott Laboratories v. Gardner, 387 U. S., at 148-149. In addition, “the fitness of the issues for judicial decision” and “the hardship to the parties of withholding court consideration” must inform any analysis of ripeness. Id., at 149. The issue presented in this case is purely legal, and will not be clarified by further factual development. Cf. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190, 201 (1983). Doubts about the validity of FIFRA’s data-consideration and compensation schemes have plagued the pesticide industry and seriously hampered the effectiveness of FIFRA’s reforms of the registration process. “To require the industry to proceed without knowing whether the [arbitration scheme] is valid would impose a palpable and considerable hardship.” Id., at 201-202. At a minimum Stauffer, and arguably each appellee whose data have been used pursuant to the challenged scheme, suffers the continuing uncertainty and expense of depending for compensation on a process whose authority is undermined because its constitutionality is in question. See ibid. “‘One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Regional Rail Reorganization Act Cases, 419 U. S., at 143, quoting Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923). Nothing would be gained by postponing a decision, and the public interest would be well served by a prompt resolution of the constitutionality of FIFRA’s arbitration scheme. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 82 (1978). Finally, appellees clearly have standing to contest EPA’s issuance of follow-on registrations pursuant to what they contend is an unconstitutional statutory provision. They allege an injury from EPA’s unlawful conduct — the injury of being forced to choose between relinquishing any right to compensation from a follow-on registrant or engaging in an unconstitutional adjudication. Allen v. Wright, 468 U. S. 737 (1984). Appellees also allege injury which is likely to be redressed by the relief they request. Ibid. The use, registration, and compensation scheme is integrated in a single subsection that explicitly ties the follow-on registration to the arbitration. See § 3(c)(l)(D)(ii) (EPA “shall deny” or “cancel” follow-on registration if arbitration section is not complied with). It is evident that Congress linked EPA’s authority to issue follow-on registrations to the original data submitter’s ability to obtain compensation. A decision against the provision’s constitutionality, therefore, would support remedies such as striking down the statutory restrictions on judicial review or enjoining EPA from issuing or retaining in force follow-on registrations pursuant to § 3(c)(l)(D)(ii). Ill Appellees contend that Article III bars Congress from requiring arbitration of disputes among registrants concerning compensation under FIFRA without also affording substantial review by tenured judges of the arbitrator’s decision. Article III, § 1, establishes a broad policy that federal judicial power shall be vested in courts whose judges enjoy life tenure and fixed compensation. These requirements protect the role of the independent judiciary within the constitutional scheme of tripartite government and assure impartial adjudication in federal courts. United States v. Will, 449 U. S. 200, 217-218 (1980); Buckley v. Valeo, 424 U. S. 1, 122 (1976) (per curiam). An absolute construction of Article III is not possible in this area of “frequently arcane distinctions and confusing precedents.” Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S., at 90 (opinion concurring in judgment). “[NJeither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law ... to be tried in an Art. Ill court before a judge enjoying life tenure and protection against salary reduction.” Palmore v. United States, 411 U. S. 389, 407 (1973). Instead, the Court has long recognized that Congress is not barred from acting pursuant to its powers under Article I to vest decisionmaking authority in tribunals that lack the attributes of Article III courts. See, e. g., Walters v. National Assn. of Radiation Survivors, ante, p. 305 (Board of Veterans’ Appeals); Palmore v. United States, supra (District of Columbia courts); Crowell v. Benson, 285 U. S. 22 (1932) (Deputy Commissioner of Employees’ Compensation Commission); Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856) (Treasury accounting officers). Many matters that involve the application of legal standards to facts and affect private interests are routinely decided by agency action with limited or no review by Article III courts. See, e. g., 5 U. S. C. §§ 701(a)(1), 701(a)(2); Heckler v. Chaney, 470 U. S. 821, 837-838 (1985); United States v. Erika, Inc., 456 U. S. 201, 206 (1982) (no review of Medicare reimbursements); Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 18 (1983) (administrative agencies can conclusively adjudicate claims created by the administrative state, by and against private persons); Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L. J. 197 (same). The Court’s most recent pronouncement on the meaning of Article III is Northern Pipeline. A divided Court was unable to agree on the precise scope and nature of Article Ill’s limitations. The Court’s holding in that case establishes only that Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants, and subject only to ordinary appellate review. 458 U. S., at 84 (plurality opinion); id., at 90-92 (opinion concurring in judgment); id., at 92 (Burger, C. J., dissenting). A Appellees contend that their claims to compensation under FIFRA are a matter of state law, and thus are encompassed by the holding of Northern Pipeline. We disagree. Any right to compensation from follow-on registrants under §3 (c)(l)(D)(ii) for EPA’s use of data results from FIFRA and does not depend on or replace a right to such compensation under state law. Cf. Northern Pipeline Construction Co., supra, at 84 (plurality opinion) (contract claims at issue were matter of state law); Crowell v. Benson, supra, at 39-40 (replacing traditional admiralty negligence action with administrative scheme of strict liability). As a matter of state law, property rights in a trade secret are extinguished when a company discloses its trade secret to persons not obligated to protect the confidentiality of the information. See Ruckelshaus v. Monsanto Co., 467 U. S., at 1002, citing R. Milgrim, Trade Secrets § 1.01[2] (1983). Therefore registrants who submit data with notice of the scheme established by the 1978 amendments, and its qualified protection of trade secrets as defined in §10, can claim no property interest under state law in data subject to § 3(c)(l)(D)(ii). Ruckelshaus v. Monsanto Co., supra, at 1005-1008. Cf. 21 U. S. C. §§ 348(a)(2), 376(a)(1); 21 CFR §71.15 (1985); 21 CFR § 171.1(b) (1984) (data submitted under Food, Drug, and Cosmetic Act is in public domain and follow-on registrants need not submit independent data). Nor do individuals who submitted data prior to 1978 have a right to compensation under FIFRA that depends on state law. To be sure, such users might have a claim that the new scheme results in a taking of property interests protected by state law. See 467 U. S., at 1013-1014. Compensation for any uncompensated taking is available under the Tucker Act. For purposes of compensation under FIFRA’s regulatory scheme, however, it is the “mandatory licensing provision” that creates the relationship between the data submitter and the follow-on registrant, and federal law supplies the rule of decision. Cf. Northern Pipeline Construction Co., supra, at 90 (opinion concurring in judgment). Alternatively, appellees contend that FIFRA confers a . “private right” to compensation, requiring either Article III adjudication or review by an Article III court sufficient to retain “the essential attributes of the judicial power.” Northern Pipeline Construction Co., supra, at 77, 85-86 (plurality opinion). This “private right” argument rests on the distinction between public and private rights drawn by the plurality in Northern Pipeline. The Northern Pipeline plurality construed the Court’s prior opinions to permit only three clearly defined exceptions to the rule of Article III adjudication: military tribunals, territorial courts, and decisions involving “public” as opposed to “private” rights. Drawing upon language in Crowell v. Benson, supra, at 50, the plurality defined “public rights” as “matters arising between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” 458 U. S., at 67-68. It identified “private rights” as “ ‘the liability of one individual to another under the law as defined.’” Id., at 69-70, quoting Crowell v. Benson, 285 U. S., at 51. This theory that the public rights/private rights dichotomy of Crowell and Murray’s Lessee v. Hoboken Land & Im provement Co., 18 How. 272 (1856), provides a bright-line test for determining the requirements of Article III did not command a majority of the Court in Northern Pipeline. Insofar as appellees interpret that case and Crowell as establishing that the right to an Article III forum is absolute unless the Federal Government is a party of record, we cannot agree. Cf. Northern Pipeline Construction Co., 458 U. S., at 71 (plurality opinion) (noting that discharge in bankruptcy, which adjusts liabilities between individuals, is arguably a public right). But see id., at 69, n. 23. Nor did a majority of the Court endorse the implication of the private right/public right dichotomy that Article III has no force simply because a dispute is between the Government and an individual. Compare id., at 68, n. 20, with id., at 70, n. 23. B Chief Justice Hughes, writing for the Court in Crowell, expressly rejected a formalistic or abstract Article III inquiry, stating: “In deciding whether the Congress, in enacting the statute under review, has exceeded the limits of its authority to prescribe procedure . . . , regard must be had, as in other cases where constitutional limits are invoked, not to mere matters of form but to-the substance of what is required.” 285 U. S., at 53 (emphasis added). Crowell held that Congress could replace a seaman’s traditional negligence action in admiralty with a statutory scheme of strict liability. In response to practical concerns, Congress rejected adjudication in Article III courts and instead provided that claims for compensation would be determined in an administrative proceeding by a deputy commissioner appointed by the United States Employees’ Compensation Commission. Id., at 43. “[T]he findings of the deputy commissioner, supported by evidence and within the scope of his authority” were final with respect to injuries to employees within the purview of the statute. Id., at 46. Although such findings clearly concern obligations among private parties, this fact did not make the scheme invalid under Article III. Instead, after finding that the administrative proceedings satisfied due process, id., at 45-48, Crowell concluded that the judicial review afforded by the statute, including review of matters of law, “provides for the appropriate exercise of the judicial function in this class of cases.” Id., at 54. The enduring lesson of Crowell is that practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III. Cf. Glidden Co. v. Zdanok, 370 U. S., at 547-548. The extent of judicial review afforded by the legislation reviewed in Crowell does not constitute a minimal requirement of Article III without regard to the origin of the right at issue or the concerns guiding the selection by Congress of a particular method for resolving disputes. In assessing the degree of judicial involvement required by Article III in this case, we note that the statute considered in Crowell is different from FIFRA in significant respects. Most importantly, the statute in Crowell displaced a traditional cause of action and affected a pre-existing relationship based on a common-law contract for hire. Thus it clearly fell within the range of matters reserved to Article III courts under the holding of Northern Pipeline. See 458 U. S., at 70-71, and n. 25 (plurality opinion) (noting that matters subject to a “suit at common law or in equity or admiralty” are at “protected core” of Article III judicial powers); id., at 90 (opinion concurring in judgment) (noting that state law contract actions are “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789”). If the identity of the parties alone determined the requirements of Article III, under appellees’ theory the constitutionality of many quasi-adjudicative activities carried on by administrative agencies involving claims between individuals would be thrown into doubt. See 5 K. Davis, Administrative Law §29:23, p. 443 (2d ed. 1984) (concept described as “revolutionary”); Note, A Literal Interpretation of Article III Ignores 150 Years of Article I Court History: Marathon Oil Pipeline Co. v. Northern Pipeline Construction Co., 19 New England L. Rev. 207, 231-232 (1983) (“public rights doctrine exalts form over substance”); Note, The Supreme Court, 1981 Term, 96 Harv. L. Rev. 62, 262, n. 39 (1982). For example, in' Switchmen v. National Mediation Board, 320 U.S. 297 (1943), cited with approval in South Carolina v. Katzenbach, 383 U. S. 301, 333 (1966), the Court upheld as constitutional a provision of the Railway Labor Act that established a “right” of a majority of a craft or class to choose its bargaining representative and vested the resolution of disputes concerning representation solely in the National Mediation Board, without judicial review. The Court concluded: “The Act. . . writes into law the ‘right’ of the ‘majority of any craft or class of employees’ to ‘determine who shall be the representative of the craft or class for purposes of this Act.’ That ‘right’ is protected by [a provision] which gives the Mediation Board the power to resolve controversies concerning it... . A review by the federal district courts of the Board’s determination is not necessary to preserve or protect that ‘right.’ Congress for reasons of its own decided upon the method for protection of the ‘right’ which it created.” 320 U. S., at 300-301. See also Union Pacific R. Co. v. Price, 360 U. S. 601, 608 (1959); NLRB v. Hearst Publications, Inc., 322 U. S. 111, 131, 135 (1944) (Board’s conclusions reviewable for rational basis and warrant in the record). Cf. Leedom v. Kyne, 358 U. S. 184, 199 (1958), (Brennan, J., dissenting) (discussing Switchmen). The Court has treated as a matter of “public right” an essentially adversary proceeding to invoke tariff protections against a competitor, as well as an administrative proceeding to determine the rights of landlords and tenants. See Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 454-455 (1977), citing as an example of “public rights” the federal landlord/tenant law discussed in Block v. Hirsh, 256 U. S. 135 (1921); Ex parte Bakelite Corp., 279 U. S. 438, 447 (1929) (tariff dispute). These proceedings surely determine liabilities of individuals. Such schemes would be beyond the power of Congress under appellees’ interpretation of Crowell. In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that “could be conclusively determined by the Executive and Legislative Branches,” the danger of encroaching on the judicial powers is reduced. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S., at 68 (plurality opinion), citing Crowell v. Benson, 285 U. S., at 50. C Looking beyond form to the substance of what FIFRA accomplishes, we note several aspects of FIFRA that persuade us the arbitration scheme adopted by Congress does not contravene Article III. First, the right created by FIFRA is not a purely “private” right, but bears many of the characteristics of a “public” right. Use of a registrant’s data to support a follow-on registration serves a public purpose as an integral part of a program safeguarding the public health. Congress has the power, under Article I, to authorize an agency administering a complex regulatory scheme to allocate costs and benefits among voluntary participants in the program without providing an Article III adjudication. It also has the power to condition issuance of registrations or licenses on compliance with agency procedures. Article III is not so inflexible that it bars Congress from shifting the task of data valuation from the agency to the interested parties. Cf. United States v. Erika, Inc., 456 U. S., at 203 (private insurance carrier assigned task of deciding Medicare claims); Crowell v. Benson, supra, at 50-51. The 1978 amendments represent a pragmatic solution to the difficult problem of spreading the costs of generating adequate information regarding the safety, health, and environmental impact of a potentially dangerous product. Congress, without implicating Article III, could have authorized EPA to charge follow-on registrants fees to cover the cost of data and could have directly subsidized FIFRA data submitters for their contributions of needed data. See St. Joseph Stockyards Co. v. United States, 298 U. S. 38, 49-53 (1936) (ratemaking is an essentially legislative function). Instead, it selected a framework that collapses these two steps into one, and permits the parties to fix the amount of compensation, with binding arbitration to resolve intractable disputes. Removing the task of valuation from agency personnel to civilian arbitrators, selected by agreement of the parties or appointed on a case-by-case basis by an independent federal agency, surely does not diminish the likelihood of impartial decisionmaking, free from political influence. See 29 CFR § 1404.4, pt. 1440, App. § 7 (1984). Cf. Northern Pipeline, 458 U. S., at 58 (plurality opinion); id., at 115-116 (White, J., dissenting). The near disaster of the FIFRA 1972 amendments and the danger to public health of further delay in pesticide registration led Congress to select arbitration as the appropriate method of dispute resolution. Given the nature of the right at issue and the concerns motivating the Legislature, we do not think this system threatens the independent role of the Judiciary in our constitutional scheme. “To hold otherwise would be to defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task.” Crowell v. Benson, supra, at 46. Cf. Palmore v. United States, 411 U. S., at 407-408 (the requirements of Art. Ill must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas); Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How., at 282 (citing “[i]mperative necessity” to justify summary tax collection procedures). We note as well that the FIFRA arbitration scheme incorporates its own system of internal sanctions and relies only tangentially, if at all, on the Judicial Branch for enforcement. See supra, at 574-575. The danger of Congress or the Executive encroaching on the Article III judicial powers is at a minimum when no unwilling defendant is subjected to judicial enforcement power as a result of the agency “adjudication.” See, e. g., Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953), reprinted in P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 330 (2d ed. 1973); Mona-ghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 16 (1983); L. Jaffe, Judicial Control of Administrative Action 385 (1965) (historically judicial review of agency decisionmaking has been required only when it results in the use of judicial process to enforce an obligation upon an unwilling defendant). We need not decide in this case whether a private party could initiate an action in court to enforce a FIFRA arbitration. But cf. 29 CFR pt. 1440, App. § 37(c) (1984) (under rules of American Arbitration Association, parties to arbitration are deemed to consent to entry of judgment). FIFRA contains no provision explicitly authorizing a party to invoke judicial process to compel arbitration or enforce an award. Compare § 3(c)(l)(D)(ii), 7 U. S. C. § 136a(c)(l)(D)(ii), with § 10(c), 7 U. S. C. § 136h(c) (authorizing applicant or registrant to institute action in district court to settle dispute with Administrator over trade secrets); 29 U. S. C. § 1401 (b)(2) (Employee Retirement Income Security Act provision authorizing parties to arbitration to bring enforcement action in district court); Union Pacific R. Co. v. Price, 360 U. S., at 614, and n. 12 (statute authorized court enforcement of National Railroad Adjustment Board’s money damages award); and Crowell v. Benson, 285 U. S., at 44 (providing for entry of judgment in federal court). Cf. Utility Workers v. Edison Co., 309 U. S. 261 (1940) (as award to worker vindicates a “public right,” agency alone has authority to institute enforcement proceeding). In any event, under FIFRA, the only potential object of judicial enforcement power is the follow-on registrant who explicitly consents to have his rights determined by arbitration. See 40 CFR §162.9-5(b) (1984) (registration application must contain a written offer to pay compensation “to the extent required by FIFRA section 3(c)(1)(D)”). Finally, we note that FIFRA limits but does not preclude review of the arbitration proceeding by an Article III court. We conclude that, in the circumstances, the review afforded preserves the “appropriate exercise of the judicial function.” Crowell v. Benson, supra, at 54. FIFRA at a minimum allows private parties to secure Article III review of the arbitrator’s “findings and determination” for fraud, misconduct, or misrepresentation. § 3(c)(l)(D)(ii). This provision protects against arbitrators who abuse or exceed their powers or willfully misconstrue their mandate under the governing law. Cf. Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597 (1960) (arbitrator must be faithful to terms of mandate and does not sit to administer his “own brand of industrial justice”). Moreover, review of constitutional error is preserved, see Walters v. National Assn. of Radiation Survivors, ante, at 311, n. 3; Johnson v. Robison, 415 U. S. 361, 367-368 (1974), and FIFRA, therefore, does not obstruct whatever judicial review might by required by due process. Cf. Crowell v. Benson, 285 U. S., at 46; id., at 87 (Brandeis, J., dissenting). We need not identify the extent to which due process may require review of determinations by the arbitrator because the parties stipulated below to abandon any due process claims. See n. 2, supra. For purposes of our analysis, it is sufficient to note that FIFRA does provide for limited Article III review, including whatever review is independently required by due process considerations. IV Appellees raise Article I as an alternative ground for sustaining the judgment of the District Court. Cf. Dandridge v. Williams, 397 U. S. 471, 475, n. 6 (1970). Appellees argued below that FIFRA’s standard for compensation is so vague as to be an unconstitutional delegation of legislative powers. See A. L. A. Schecter Poultry Corp. v. United States, 295 U. S. 495 (1935). A term that appears vague on its face “may derive much meaningful content from the purpose of the Act, its factual background, and the statutory context.” American Power & Light Co. v. SEC, 329 U. S. 90, 104 (1946). Although FIFRA’s language does not impose an explicit standard, the legislative history of the 1972 and 1978 amendments is far from silent. See, e. g., S. Conf. Rep. No. 95-1188, p. 29 (1978); 1977 S. Rep., at 4, 8, 31; 1972 S. Rep., pt. 2, pp. 69, 72-73; Hearings on Extending and Amending FIFRA before the Subcommittee on Department Investigations, Oversight, and Research of the House Committee on Agriculture, 95th Cong., 1st Sess., passim (1977). The Article I claim, however, was neither adequately briefed nor argued to this Court and was not fully litigated before the District Court. Without expressing any opinion on the merits, we leave the issue open for determination on remand. V Our holding is limited to the proposition that Congress, acting for a valid legislative purpose pursuant to its constitutional powers under Article I, may create a seemingly “private” right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary. To hold otherwise would be to erect a rigid and formalistic restraint on the ability of Congress to adopt innovative measures such as negotiation and arbitration with respect to rights created by a regulatory scheme. For the reasons stated in our opinion, we hold that arbitration of the limited right created by FIFRA § 3(c)(l)(D)(ii) does not contravene Article III. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. The full text of § 3(c)(l)(D)(ii) reads: “(ii) except as otherwise provided in subparagraph (D)(i) of this paragraph, with respect to data submitted after December 31, 1969, by an applicant or registrant to support an application for registration, experimental use permit, or amendment adding a new use to an existing registration, to support or maintain in effect an existing registration, or for reregistration, the Administrator may, without the permission of the original data submitter consider any such item of data in support of an application by any other person (hereinafter in this chapter referred to as the ‘applicant’) within the fifteen year period following the date the data were originally submitted only if the applicant has made an offer to compensate the original data submitter and submitted such offer to the Administrator accompanied by evidence of delivery to the original data submitter of the offer. The terms and amount of compensation may be fixed by agreement between the original data submitter and the applicant, or, failing such an agreement, binding arbitration under this subparagraph. If, at the end of ninety days after the date of delivery to the original data submitter of the offer to compensate, the original data submitter and the applicant, have neither agreed on the amount and terms of compensation nor on a procedure for reaching an agreement on the amount and terms of compensation, either person may initiate binding arbitration proceedings by requesting the Federal Mediation and Conciliation Service to appoint an arbitrator from the roster of arbitrators maintained by such Service. The procedures and rules of the Service shall be applicable to the selection of such arbitrator and to such arbitration proceedings, and the findings and determination of the arbitrator shall be final and conclusive, and no official or court of the United States shall have power or jurisdiction to review any such findings and determination, except for fraud, misrepresentation, or other misconduct by one of the parties to the arbitration or the arbitrator where there is a verified complaint with supporting affidavits attesting to specific instances of such fraud, misrepresentation, or other misconduct. The parties to the arbitration shall share equally in the payment of the fee and expenses of the arbitrator. If the Administrator determines that an original data submitter has failed to participate in a procedure for reaching an agreement or in an arbitration proceeding as required by this sub-paragraph, or failed to comply with the terms of an agreement or arbitration decision concerning compensation under this subparagraph, the original data submitter shall forfeit the right to compensation for the use of the data in support of the application. Notwithstanding any other provision of this subchapter, if the Administrator determines that an applicant has failed to participate in a procedure for reaching an agreement or in an arbitration proceeding as required by this subparagraph, or failed to comply with the terms of an agreement or arbitration decision concerning compensation under this subparagraph, the Administrator shall deny the application or cancel the registration of the pesticide in support of which the data were used without further hearing. Before the Administrator takes action under either of the preceding two sentences, the Administrator shall furnish to the affected person, by certified mail, notice of intent to take action and allow fifteen days from the date of delivery of the notice for the affected person to respond. If a registration is denied or canceled under this subparagraph, the Administrator may make such order as the Administrator deems appropriate concerning the continued sale and use of existing stocks of such pesticide. Registration action by the Administrator shall not be delayed pending the fixing of compensation.” 7 U. S. C. § 136a(e)(l)(D)(ii). Following the 1978 amendments, appellees amended their complaints to allege that the data-consideration and disclosure provisions effected a taking of their property without just compensation and without due process of law. The District Court granted a preliminary injunction against use of data submitted prior to 1978, Amchem Products, Inc. v. Costle, 481 F. Supp. 195 (1979), but the Second Circuit reversed for want of a showing of likelihood of success and this Court denied appellees’ petition for a writ of certiorari. Union Carbide Agricultural Products Co. v. Costle, 632 F. 2d 1014 (1980), cert. denied, 450 U. S. 996 (1981). Appellees then amended their complaint to allege that the lack of valuation standards rendered the arbitration provision an unconstitutional delegation of legislative authority in violation of Article I. At the same time they stipulated to dismissal, without prejudice to a Court of Claims action, of their due process claims. Record, Doc. Nos. 1, 15, 19. Shortly after the award was handed down, PPG filed an action against Stauffer and EPA in the District Court for the District of Columbia to set aside the award. Stauffer cross-claimed against EPA seeking to have the entire FIFRA data-compensation scheme invalidated as violative of Article III and counterclaimed against PPG seeking damages in the amount of the award should the statute be struck down or, in the alternative, enforcement of the award. PPG Industries, Inc. v. Stauffer Chemical Co., Civil Action No. 83-1941 (DC, filed July 7, 1983); Record, Doc. No. 35. Should the scheme be upheld, Stauffer argues it is entitled to the award as the only option possible under FIFRA absent fraud or misconduct. As noted supra, at 585, appellees retain Tucker Act claims in the District Courts or in the United States Claims Court with review in the Court of Appeals for the Federal Circuit for any shortfall between the arbitration award and the value of trade secrets submitted between 1972 and 1978.

Thomas v. Union Carbide Agricultural Products Co.

Justice Brennan, with whom Justice Marshall and Justice Blackmun join, concurring in the judgment. Our cases of both recent and ancient vintage have struggled to pierce through the language of Art. Ill of the Constitution to the full meaning of the deceptively simple requirement that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art. Ill, § 1. We know that those who framed our Constitution feared the tyranny of “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” The Federalist No. 47, p. 300 (H. Lodge ed. 1888) (J. Madison), and sought to guard against it by dispersing federal power to three interdependent branches of Govérnment. Each branch of Government was intended to exercise a distinct but limited power and function as a check on any aggrandizing tendencies in the other branches. See Buckley v. Valeo, 424 U. S. 1, 122 (1976) (per curiam). The salary and tenure guarantees of Art. Ill — reflecting Hamilton’s observation that “a power over a man’s subsistence amounts to a power over his will,” The Federalist No. 79, p. 491 (H. Lodge ed. 1888) — were thought essential to the Judiciary’s ability to function effectively as a check on Congress and the Executive. It is thus clear that when Congress establishes courts pursuant to Art. Ill the judges presiding in those courts must receive salary and tenure guarantees. The difficult question is to what extent the need to preserve the Judiciary’s checking function requires Congress to assign the Federal Government’s decisionmaking authority to independent tribunals so constituted. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982), is the Court’s most recent attempt at defining the limits Art. Ill places on the power of Congress to assign adjudicative authority to decisionmakers not protected by tenure and salary guarantees. We faced the question whether, under the federal Bankruptcy Act of 1978, 92 Stat. 2549, a federal bankruptcy court whose decisionmaker did not benefit from those guarantees could be empowered to render the entire initial adjudication of a state common-law cause of action. The issue was, in other words, whether Art. Ill permitted assignment of any essential attributes of the “judicial Power” to a non-Art. Ill federal decisionmaker when state law prescribed the rule of decision in a dispute between private parties. The Court invalidated the congressional action but a majority did not agree upon a common rationale. The plurality would have held that this allocation of decisional authority could not be justified as a proper exercise of either the congressional power to create Art. I legislative courts or the congressional power to create adjuncts to Art. Ill courts. 458 U. S., at 63-87. Justice Rehnquist, in a concurring opinion joined by Justice O’Connor, would simply have held that Congress may not assign the power to adjudicate a traditional state common-law action to a non-Art. Ill tribunal even given the “traditional appellate review” by an Art. Ill court afforded under the challenged bankruptcy statute. Id., at 90-91. Because the appellees in Northern Pipeline had argued that bankruptcy court jurisdiction over state-law contract claims could be justified as an exercise of Congress’ Art. I power to create legislative courts, the plurality examined the basis and scope of that congressional power as it has been explicated in our precedents. The plurality concluded that notwithstanding the commands of Art. Ill Congress could create such legislative courts for three categories of cases: territorial courts, courts-martial, and courts that adjudicate public rights disputes. The only serious question in Northern Pipeline was whether the disputed bankruptcy court jurisdiction fell into the third category. The plurality opinion concluded that public rights cases, as that concept had come to be understood, involved disputes arising from the Federal Government’s administration of its laws or programs. 458 U. S., at 68-69. The plurality expressly disclaimed any intention to provide a generally applicable definition of “public rights” but Concluded that at a minimum public rights disputes must arise “‘between the Government and others.’” Id., at 69, quoting Ex parte Bakelite Corp., 279 U. S. 438, 458 (1929). The dispute at issue in Northern Pipeline was found by the plurality not to fall into the public rights category because state law created the right and provided the rule of decision as between the private parties litigating the dispute, irrespective of the existence of the federal bankruptcy scheme. 458 U. S., at 72, n. 26 (“Even in the absence of the federal scheme, the plaintiff would be able to proceed against the defendant on the state-law contractual claims”). In no sense could the dispute be said to be about the propriety or accuracy of a determination made by an organ of the Federal Government in administration or execution of a federal regulatory scheme. Whatever the precise scope of the public rights doctrine, that case was clearly outside it and therefore adjudication before an Art. Ill decisionmaker or properly constituted adjunct was required. Because the challenged bankruptcy jurisdiction could not be sustained on the alternative rationale that it was a proper adjunct to an Art. Ill court, id., at 77-86 (plurality opinion); id., at 91 (Rehnquist, J., concurring in judgment), the statute embodying the jurisdictional grant was declared unconstitutional. Analysis of the present case properly begins with the recognition that it differs substantially from the issue in Northern Pipeline. The present case arises entirely within the regulatory confines of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U. S. C. § 136 et seq. This federal statute prescribes both the terms of compensation and the procedures for arriving at the proper amount of compensation in any given case. See 7 U. S. C. § 136a(c) (l)(D)(ii) (providing for negotiation followed by binding arbitration to set amounts “follow-on” registrants must pay in compensation for use of test data). Thus the question for decision here is whether fixing the amount of compensation for test data under FIFRA can be characterized as a public rights dispute that need not be adjudicated from the outset in an Art. Ill court or a properly constituted adjunct to such a court. Should it be concluded that this is such a dispute, the further issue must be confronted of whether some form of appellate oversight by an Art. Ill court is nonetheless required, see Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 455, n. 13 (1977), and, if so, whether this statute’s provision of review only for “fraud, misrepresentation, or other misconduct” suffices. 7 U. S. C. § 136a(c)(l)(D)(ii). I agree with the Court that the determinative factor with respect to the proper characterization of the nature of the dispute in this case should not be the presence or absence of the Government as a party. See ante, at 586. Despite the Court’s contrary suggestions, the plurality opinion in Northern Pipeline suggests neither that “the right to an Article III forum is absolute unless the Federal Government is a party of record” nor that “Article III has no force simply because a dispute is between the Government and an individual.” Ante, at 586. Properly understood, the analysis elaborated by the plurality in Northern Pipeline does not place the Federal Government in an Art. Ill straitjacket whenever a dispute technically is one between private parties. We recognized that a bankruptcy adjudication, though technically a dispute among private parties, may well be properly characterized as a matter of public rights. 458 U. S., at 50. The plurality opinion’s reaffirmation of the constitutionality of the administrative scheme at issue in Crowell v. Benson, 285 U. S. 22 (1932), similarly suggests that a proper interpretation of Art. Ill affords the Federal Government substantial flexibility to rely on administrative tribunals. See Northern Pipeline, 458 U. S., at 69, n. 22, 78-80. The plurality opinion should not be read to imply that reliance on administrative agencies for ratemaking or other forms of regulatory adjustments of private interests is necessarily suspect. Cf. Leedom v. Kyne, 358 U. S. 184, 191 (1958) (Brennan, J., dissenting). Nor does the approach of the Northern Pipeline plurality opinion permit Congress to sap the Judiciary of all its checking power whenever the Government is a party. The opinion made clear that “the presence of the United States as a proper party to the proceeding is . . . not [a] sufficient means of distinguishing ‘private rights’ from ‘public rights.’” 458 U. S., at 69, n. 23. At a minimum, Art. Ill must bar Congress from assigning to an Art. I decisionmaker the ultimate disposition of challenges to the constitutionality of Government action, either legislative or executive. Cf. United States v. Raddatz, 447 U. S. 667, 708-712 (1980) (Marshall, J., dissenting). Also, the plurality opinion was careful to leave open the question whether and to what extent even the resolution of public rights disputes might require some eventual review in an Art. Ill court in the exercise of its responsibility to check an impermissible accumulation of power in the other branches of Government. 458 U. S., at 70, n. 23; see also id., at 115 (White, J., dissenting) (“[A] scheme of Art. I courts that provides for appellate review by Art. Ill courts should be substantially less controversial than a legislative attempt entirely to avoid judicial review in a constitutional court”); Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, supra, at 455, n. 13. Because the approach of the plurality opinion in Northern Pipeline is sufficiently flexible to accommodate the demands of contemporary Government while preserving the constitutional system of checks and balances, I adhere to it as the proper analysis for resolving the present case. Though the issue before us in this, case is not free of doubt, in my judgment the FIFRA compensation scheme challenged in this case should be viewed as involving a matter of public rights as that term is understood in the line of cases culminating in Northern Pipeline. In one sense the question of proper compensation for a follow-on registrant’s use of test data is, under the FIFRA scheme, a dispute about “the liability of one individual to another under the law as defined,” Crowell v. Benson, supra, at 51 (defining matters of private right). But the dispute arises in the context of a federal regulatory scheme that virtually occupies the field. Congress has decided that effectuation of the public policies of FIFRA demands not only a requirement of compensation from “follow-on” registrants in return for mandatory access to data but also an administrative process — mandatory negotiation followed by binding arbitration — to ensure that unresolved compensation disputes do not delay public distribution of needed products. This case, in other words, involves not only the congressional prescription of a federal rule of decision to govern a private dispute but also the active participation of a federal regulatory agency in resolving the dispute. Although a compensation dispute under FIFRA ultimately involves a determination of the duty owed one private party by another, at its heart the dispute involves the exercise of authority by a Federal Government arbitrator in the course of administration of FIFRA’s comprehensive regulatory scheme. As such it partakes of the characteristics of a standard agency adjudication. Cf. Leedom v. Kyne, supra, at 191 (Brennan, J., dissenting). Given that this dispute is properly understood as one involving a matter in which Congress has substantial latitude to make use of Art. I decisionmakers, the question remains whether the Constitution nevertheless imposes some requirement of Art. Ill supervision of the arbitrator’s decisions under this scheme. In this case Congress has provided for review of arbitrators’ decisions to ensure against “fraud, misrepresentation, or other misconduct.” The Court therefore need not reach the difficult question whether Congress is always free to cut off all judicial review of decisions respecting such exercises of Art. I authority. The review prescribed under FIFRA encompasses the authority to invalidate an arbitrator’s decision when that decision exceeds the arbitrator’s authority or exhibits a manifest disregard for the governing law. See Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597 (1960); Wilko v. Swan, 346 U. S. 427, 436-437 (1953). Such review preserves the judicial authority over questions of law in the present context. Cf. Crowell v. Benson, supra, at 54. In essence, the FIFRA scheme delegates a significant case-by-case lawmaking function to the arbitrator in compensation disputes. So long as this delegation is constitutionally permissible — an issue left open on remand — and judicial review to ensure that the arbitrator’s exercise of authority in any given case does not depart from the mandate of the delegation, the Judiciary will exercise a restraining authority sufficient to meet whatever requirements Art. Ill might impose in the present context. For these reasons, I agree with the Court that the FIFRA arbitration scheme does not violate the mandates of Art. Ill, and I would therefore reverse the judgment of the District Court and remand for further proceedings. In Ex parte Bakelite Corp., 279 U. S. 438 (1929), public rights disputes were described as those “which may be . . . committed exclusively to executive officers.” Id., at 458. In this regard it is worth noting that early eases recognizing a public rights doctrine typically involved either challenges to Government action affecting private interests in which at the time no constitutional claim of entitlement was recognized, e. g., United States v. Babcock, 250 U. S. 328, 331 (1919); Decatur v. Paulding, 14 Pet. 497 (1840), or challenges by one private party seeking exercise of the Federal Government’s enforcement authority against another private party not before the court, e. g., Ex parte Bakelite Corp., supra. The original theory would seem to have been that because Congress had absolute power to dispose of such issues as it saw fit without resort to the Judiciary, it could assign decisionmaking authority to Art. I courts. The underpinnings of the original theory, of course, have not survived intact. We now recognize an entitlement in certain forms of government assistance. Goldberg v. Kelly, 397 U. S. 254 (1970). And we have recently made clear that government is not free to dispose of individual claims of entitlement in any manner it deems fit. Cleveland Board of Education v. Loudermill, 470 U. S. 532 (1985). Also, such reasoning is not consistent with the doctrine of unconstitutional conditions. See Speiser v. Randall, 357 U. S. 513 (1958). The erosion of these underpinnings does not, however, mandate the conclusion that disputes arising in the administration of federal regulatory programs may not be resolved through Art. I adjudication. The term “public rights” as now understood encompasses those “matters arising between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments,” Northern Pipeline, 458 U. S., at 67-68, that need not be fully adjudicated in an Art. Ill forum or a properly constituted adjunct to such a forum. “What clearly remains subject to Art. Ill are all private adjudications in federal courts within the States — matters from their nature subject to a ‘suit at common law or in equity or admiralty.’. . . There is no doubt that when the Framers assigned the ‘judicial Power’ to an independent Art. Ill Branch, these matters lay at what they perceived to be the protected core of that power.” Northern Pipeline Construction Co. v. Marathon Pipe Line Co., supra, at 70-71, n. 25. As the Court correctly concludes, there is no tenable argument that ap-pellees in this case will be forced to undergo an Art. I adjudication of a state-law claim that arises between private parties, as was the case in Northern Pipeline. See ante, at 584-585. Although the essential function of the Judiciary is to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), the exercise of this power with respect to the interpretation of federal statutory law may not be the power that constrains the actions of the Legislative Branch. Congress is always free to reject this Court’s interpretation of a federal statute by passing a new law. It may rather be that the exercise of the Court’s power of judicial review to ensure constitutionality is what restrains the exercise of legislative power. The power to interpret federal statutory law could be seen as acting as a check on the exercise of the executive power — or the power of administrative agencies whether or not they are considered as under the head of executive authority — given that what courts do when they review agency action, both rulemaking and adjudication, is ensure that the reviewed action has not departed from congressional intent. It is also important to note that the Due Process Clause of the Fifth Amendment imposes, as the Court correctly notes, independent constraints on the ability of Congress to establish particular forums for dispute resolution under Art. I. See ante, at 592. Cf. Crowell v. Benson, 285 U. S., at 87 (Brandeis, J., dissenting).

Thomas v. Union Carbide Agricultural Products Co.

Justice Stevens, concurring in the judgment. This appeal presents a question under Article III, but one which differs from that addressed by the Court and whose answer prevents me from reaching the merits of appellees’ claims. Appellees, plaintiffs in the District Court, challenge the constitutionality of an “arbitration procedure that [allegedly] violates their right to an adjudication that complies with” Article III insofar as it empowers civilian arbitrators to determine the amount of compensation they are entitled to receive for use of their research data. Amended Complaint for Declaratory Judgment and Injunction ¶¶ 20-21, App. 23-24. The relief they claim against the Environmental Protection Agency and its Administrator (collectively referred to as the agency, EPA, or the Administrator) is a declaration of unconstitutionality and an injunction against use of their data in the agency’s processing of applications filed by third parties. See id., at 24. In § 3(c)(l)(D)(ii) of the Federal Insecticide, Fungicide, and Rodenticide Act, Congress provided appellees with a contingent form of protection against the EPA’s use of certain of their research data: “[T]he Administrator may, without the permission of the original data submitter, consider any such item of data in support of an application by any other person (hereinafter in this subparagraph referred to as the ‘applicant’) . . . only if the applicant has made an offer to compensate the original data submitter . . . 92 Stat. 821, 7 U. S. C. § 136a(c)(l)(D)(ii) (emphasis added). Appellees’ research data may not be used to process a third party’s application unless that party offers to compensate appellees in an amount that is “fixed by agreement between the original data submitter and the applicant, or, failing such agreement, binding arbitration.” Ibid. But if the third party consents to this procedure for determining the appropriate compensation, there is no statutory restraint on EPA’s use of the data. Appellees make no claim that the Administrator has used any of their data without obtaining the consent required by the statute. Thus, the statute provides no basis for any relief against EPA. And if we should declare § 3(c)(l)(D)(ii) unconstitutional, there is no other basis of which I am aware for interfering with the agency’s use of appellees’ data. See ante, at 584-585; Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1016-1019 (1984). Therefore, whether or not the arbitration provision is constitutional, there is no basis for enjoining EPA’s use of appellees’ research data. For a party to have standing to invoke the jurisdiction of a federal court “relief from the injury must be ‘likely’ to follow from a favorable decision.” Allen v. Wright, 468 U. S. 737, 751 (1984); accord, Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 38, 43-46 (1976); Warth v. Seldin, 422 U. S. 490, 507 (1975); Linda R. S. v. Richard D., 410 U. S. 614, 618-619 (1973). Because § 3(c)(l)(D)(ii) does not give appellees any legal basis for claiming that they have been harmed by anything EPA did or threatened to do, a decision that FIFRA’s arbitration provisions violate Article III could not support an injunction against the Administrator’s use of appellees’ data. Accordingly, appellees do not have standing to challenge the constitutionality of § 3(c)(l)(D)(ii) in this action. For this reason, I agree that the judgment of the District Court must be reversed. The text of § 3(e)(l)(D)(ii) is quoted in full ante, at 574-575, n. 1. Under appellees’ reading of § 3(c)(l)(D)(ii), compensation is a condition precedent to EPA’s use of their research data to evaluate applications by third parties. See Amended Complaint for Declaratory Judgment and Injunction ¶ 20, App. 23. Because the statutorily required arbitration procedure violates Article III, they reason, compensation cannot be awarded and the condition precedent to EPA’s use of data cannot be fulfilled. Ergo, an injunction must issue against the agency. Appellees, however, misread the statute. Section 3(c)(l)(D)(ii) conditions the Administrator’s use of their data on a third party’s “offer to compensate,” not upon actual compensation. 92 Stat. 821, 7 U. S. C. § 136a(c)(l)(D)(ii) (emphasis added); accord, § 3(c)(1)(D)(iii), 92 Stat. 822, 7 U. S. C. § 136a(e)(l)(D)(iii). Indeed, the same section later provides that “[r]egistration action by the Administrator shall not be delayed pending the fixing of compensation.” 92 Stat. 822, 7 U. S. C. § 136a(c)(l)(D)(ii). A straightforward reading of this section demonstrates that EPA is not disabled from using research data to process “follow-on” registrations pending compensation of appellees. I find nothing in the legislative history that contradicts this interpretation, and it is consistent with Congress’ “vie[w] [of] data-sharing as essential to the registration scheme,” ante, at 573, and with the Legislature’s consequent desire to break “the ‘logjam of litigation that resulted from controversies over data compensation and trade secret protection,”’ ibid, (quoting S. Rep. No. 95-334, p. 3 (1977)). See id,., at 3 (“The single largest problem is the fact that the registration and reregistration process has ground to a virtual halt. . . . Since registration is critical, this program must be made to work”). Congress surely-desired both that EPA have use of appellees’ data and that appellees be compensated for such use. But there is no evidence to indicate that Congress intended these complementary provisions to be mutually dependent. See § 30, 92 Stat. 836, 7 U. S. C. § 136x (“If any provision of this [Act]. . . is held invalid, the invalidity shall not affect other provisions. . . which can be given effect without regard to the invalid provision . . . and to this end the provisions of this [Act] are severable”); cf. INS v. Chadha, 462 U. S. 919, 931-935 (1983). The sentence the Court believes “ties the follow-on registration to the arbitration,” ante, at 582, is beside the point. Section 3(c)(l)(D)(ii) requires the Administrator to “deny the application or cancel the registration of the pesticide” if the third-party “follow-on” applicant “has failed to participate in a procedure for reaching an agreement or in an arbitration proceeding as required by this subparagraph, or failed to comply with the terms of an agreement or arbitration decision concerning compensation.” 92 Stat. 821, 7 U. S. C. § 136a(c)(l)(D)(ii). This sentence is obviously addressed to defaults by third-party “follow-on” applicants in the registration process and hardly suggests that Congress would have scrapped the entire data-use provision if the compensation component was found unconstitutional. To restate the obvious, Congress undoubtedly intended that EPA have use of original applicants’ research data and that such use be recompensed — the statute, after all, provides for both. But the Legislature’s unequivocal intention to facilitate pesticide registrations and the presence of an express severability provision (accompanied by the traditional duty “to save and not to destroy,” Tilton v. Richardson, 403 U. S. 672, 684 (1971)), makes it rather unlikely that Congress gambled the entire pesticide registration process on the constitutionality of a provision for arbi-trable compensation. I therefore conclude that even if we invalidated the compensation clauses appellees would have no right to an injunction against EPA’s use of appellees’ research data. The District Court held that appellees had standing to challenge FIFRA’s arbitration provisions because “plaintiffs’ injuries here would be the direct product of the statutory plan.” Union Carbide Agricultural Products Co. v. Ruckelshaus, 571 F. Supp. 117, 123, n. 2 (SDNY 1983). This analysis is incomplete: “The injury must be ‘fairly’ traceable to the challenged action, and relief from the injury must be ‘likely’ to follow from a favorable decision.” Allen v. Wright, 468 U. S., at 751 (emphasis added); accord, Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S., at 472. These two components of the Article III causation requirement are distinct: The “fairly traceable” component “examines the causal connection between the assertedly unlawful conduct and the alleged injury”; the “redressability” component “examines the causal connection between the alleged injury and the judicial relief requested.” Allen v. Wright, supra, at 753, n. 19. “[I]t is important to keep the inquiries separate.” Ibid.

Kennedy Building Associates v. CBS Corp.

JOHN R. GIBSON, Circuit Judge. In Kennedy Building Associates v. Viacom, Inc., 375 F.3d 731 (8th Cir.2004) (Kennedy I), we remanded in part for modification of the injunction enforcing the Minnesota Environmental Rights Act (MERA). CBS Corporation, the most recent incarnation of the entity responsible for contaminating the Kennedy Building property in Minneapolis, appeals from the injunction as modified on remand. The modified injunction required CBS to perform those duties prescribed in the Minnesota Decision Document, issued by the Minnesota Pollution Control Agency, which were necessary to prevent the release of further contaminants into soil and groundwater; to test as required by the Decision Document, and to remedy migration revealed by those tests, if any; to remedy any remaining contamination exposed during future excavation on the property; and to post a performance bond to secure performance of these obligations. Kennedy Bldg. Assocs. v. Viacom, Inc., No. 99-CV-1833 JMR/FLN, 2006 WL 305279, at *3-4 (D.Minn. Feb.8, 2006). CBS contends that the injunction did not sufficiently specify which acts were required of it, that the evidence showed there was no need for MERA relief, and that the district court had no power to require CBS to post a performance bond. We reject the latter two arguments, but remand for modification making the injunction’s commands more specific. Westinghouse, the corporate predecessor of CBS’s corporate predecessor, operated an electrical transformer repair facility on the Kennedy Building property, which resulted in contamination of the property with polychlorinated biphenyls (PCBs) and chlorobenzenes. Westinghouse sold the property in 1980, and a partner in Kennedy Building Associates bought the property and transferred it to Kennedy in 1982. Kennedy I, 375 F.3d at 736-37. Kennedy discovered the contamination in 1997. Kennedy sued Viacom and recovered a jury verdict for state law strict liability; a judgment for response costs under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Minnesota Environmental Response and Liability Act (MERLA); and an injunction under MERA to remediate the property so that the deed restriction required by state law for contaminated property could be removed. Id. at 737. On appeal, we reversed the jury verdict and ordered the injunction to be modified so that it ordered only the relief authorized by MERA, that is, “the prevention of ongoing releases of PCBs and chlorobenzenes into soil and groundwater.” Id. at 748; see id. at 750. Just before the trial, Viacom had entered into a consent order with the Minnesota Pollution Control Agency agreeing to develop and implement a remediation plan for the property; Viacom argued that this consent order rendered the injunction moot and that the consent order preempted relief under MERA; we rejected both arguments and held that because the injunction did not conflict with an order of the Minnesota Pollution Control Agency, it was not preempted by MERA. 375 F.3d at 742-46. On remand, the district court held the matter in abeyance for a year and a half until Viacom and the Minnesota Pollution Control Agency could arrive at a substantive plan for remediation. See 2006 WL 305279, at *1. The Minnesota Decision Document of April 20, 2005, required removal of contaminated soil down to twelve feet below the surface of the property, except for the soil under the building. The rationale for these specifications was that soil deeper than twelve feet and soil under the building was not immediately accessible to human or ecological “receptors” and therefore did not pose a current threat to public health. However, the remediation plan was subject to two caveats. First, long-term monitoring was required “to ascertain plume stability and provide data to show that contamination in ground water is not continuing to migrate.” Second, although the Decision Document did not impose substantive requirements, it acknowledged that if the building on the property were demolished or the floor had to be removed, then the contaminants under the building would become exposed, and Viacom would be required to come up with a response plan, which would then start the whole process of administrative remediation all over again. The Decision Document did not address indoor contamination at the building because “indoor contamination currently falls outside the purview of the [Minnesota Pollution Control Agency].” Kennedy was not satisfied with the remediation plan because it would leave contamination in place underground and inside the building. Once the Minnesota Pollution Control Agency had issued the Decision Document, Kennedy sought a contested-case hearing in the agency. When that was denied, Kennedy sought review by writ of certiorari of the agency’s remedy selection. The Minnesota Court of Appeals dismissed the writ on the grounds that the agency’s decision was not final and that “the [agency] order does not preclude [Kennedy] from litigating appropriate remediation in [its] pending federal district court action.” In the Matter of the Kennedy Building Superfund Site Petition for Contested Case Hearing, No. A05-994 (Minn.Ct.App. Aug. 2, 2005). Back in the district court, Kennedy moved to modify the original injunction to incorporate the requirements of the Decision Document, to order Viacom to remediate the interior of the building, and to require Viacom to post a bond to assure performance of the remedial work that was left contingent in the Decision Document on future demolition or disturbance of the building or its floor. Counsel for Viacom explained at the hearing that Viacom had undergone a corporate reorganization, with the result that the entity called “Viacom” would no longer be responsible for the Kennedy site and that the entity with such responsibility would now be known as “CBS Corporation.” The district court noted that the Decision Document gave Kennedy no right to enforce the remediation plan, that no remediation had taken place so far, and that if Kennedy were to decide to redevelop the property in a way that required excavating deeper than twelve feet, there was no way to assure that remediation would happen promptly enough to make such development commercially feasible. In light of the evidence adduced at the hearing, the district court issued an injunction including the following requirements: (1) Viacom was ordered to “perform those actions prescribed in the [Decision Document] which will prevent the release of PCBs and chlorobenzenes into uncontaminated soil and groundwater consistent with the purposes of MERA.” 2006 WL 305279, at *3. (2) Viacom was ordered to provide to the court and to Kennedy copies of the results of tests required by the Decision Document. In the event a test should show migration of the contaminants, Viacom was obliged to submit a remediation plan within 30 days of receiving the test result. Id. (3) In the event the future development of the parcel should result in excavation of soils left in place under the Decision Document’s remediation plan (i.e., soil deeper than twelve feet or underneath the building), Kennedy was obliged to notify Viacom, whereupon Viacom was required to submit to the court a remediation plan within 30 days of receiving the notification. Id. (4) To ensure that the relief in paragraph 3 above would be timely provided and adequately funded, the court required Viacom and its corporate successors to post a bond or irrevocable letter of credit. Id. In a subsequent order, the court set the amount of the bond at $1,311,000 and required that it be maintained for five years. Kennedy Building Associates v. CBS Corp., No. 99-CV-1833 (April 21, 2006). CBS appeals the injunction making a large number of arguments that can be categorized into three types of objection: the injunction is not sufficiently specific, it is not supported by the evidence before the court, and the court had no power to require CBS to post a performance bond. We review for abuse of discretion a district court’s issuance of a permanent injunction. Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958, 967 (8th Cir.2005). A district court abuses its discretion when it bases its decision on a legal error or a clearly erroneous finding of fact. Id. CBS attacks the first item of the injunction, requiring it to perform those requirements of the Decision Document that will prevent the release of PCBs and chloro-benzenes into uncontaminated soil and groundwater “consistent with the purposes of MERA.” See 2006 WL 305279, at *3. CBS contends that since the Decision Document was designed to comply with MER-LA, not MERA, it is not clear which of the provisions of the Decision Document the district court considered necessary to accomplish the goals of MERA — preventing the release of PCBs and chlorobenzenes into uncontaminated soil and groundwater. We need not wrestle with this argument, for Kennedy conceded at oral argument before us that the injunction was inadequately specific in this regard and agreed that the injunction should be remanded for clarification of this point. Accordingly, we remand for the district court to specify in accord with Federal Rule of Civil Procedure 65(d) which of the requirements of the Decision Document are required under the MERA injunction in this case. On remand, the district court should expressly list those actions required by the injunction. CBS further contends that the record does not support the issuance of any MERA injunction because there is no record evidence of continuing releases of PCBs or chlorobenzenes. In Kennedy I, we concluded that there were continuing releases within the meaning of MERA. We relied on the district court’s finding of fact after trial that PCBs were continuing to migrate in the soil and groundwater because of the presence of mineral oil in the soil. 375 F.3d at 747. The finding was supported by expert testimony at trial, as well as Viacom’s stipulation in the administrative consent order. Id. It is not clear whether CBS is contending that something changed after trial or that the findings on which we based our first holding were erroneous. Viacom did nothing to clean up the site between the time of trial and the January 3, 2006, hearing on the modification. Nevertheless, CBS points to statements from its expert saying that groundwater testing in February and August 2005 showed that the groundwater plume is stable. In contrast, Kennedy points to statements by its expert witness that the August 2005 data show increases in several contaminants in several wells and that CBS’s expert’s opinion is not justified by the data. Thus, the record shows merely a conflict of expert opinion, rather than a lack of evidence of continuing migration. Moreover, this conflict is peripheral to the actual injunction issued, since even CBS’s expert conceded that continuing testing is necessary to ascertain whether the plume is stable. CBS also contends that the district court found the plume had stabilized, based on the following statement by the court at the modification hearing: “Now, the MPCA seems to think that that’s all [remediation to twelve feet] that’s needed at this time. It says that the plume has not moved, and right now the condition of the situation is as it is.” The district court made this statement in denying Kennedy’s request for an immediate order to clean up the soil more than twelve feet below the surface. The statement cannot be characterized as a definite finding that the plume has stabilized, any more than the Decision Document can be so characterized; both the Decision Document and the injunction are provisional. Both are premised on the presumption that we cannot be sure what the plume is doing without continuing testing; contaminants may well migrate, and if so, further remediation will be required. The Decision Document requires monitoring “for a minimum of five years and, if the monitoring indicates that the contamination plume is expanding or migrating, the MPCA will require ground water remedial action.” The injunction, of course, requires the same. CBS has by no means shown that the injunction is based on a clearly erroneous finding of fact. CBS next contends that the district court lacked power to require it to post a performance bond. We begin by examining the language of MERA. Minn.Stat. Ann. § 116B.07 provides: The court may grant declaratory relief, temporary and permanent equitable relief, or may impose such conditions upon a party as are necessary or appropriate to protect the air, water, land or other natural resources located within the state from pollution, impairment, or destruction. (Emphasis added.) The statute certainly appears to be broad enough to allow the court to require a bond to be posted for five years to assure that foreseeable events of excavation or groundwater migration will not result in pollution to the soil and water of Minnesota. CBS relies on Grupo Mexicano de Desarrollo, S.A v. Alliance Bond Fund, Inc., 527 U.S. 308, 332, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999), which is instructive, although not in the way CBS suggests. In Grupo Mexicano, creditors of an insolvent Mexican company obtained a preliminary injunction ordering the company not to distribute or transfer its assets while the creditors pursued their damages claim against the company. The Supreme Court reversed, holding that traditional equitable remedies did not include a freeze order to preserve assets in aid of a legal claim which was not yet reduced to judgment. Justice Scalia distinguished two kinds of cases, both of which would include the case at bar. First, he distinguished cases in which the underlying suit was for equitable relief, rather than damages. Id. at 324-25, 119 S.Ct. 1961 (discussing Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940)). Here, the underlying relief sought is equitable, rather than legal, so our case involves the use of equity in support of equity, rather than equity in support of a legal remedy. Next, Justice Scalia distinguished cases in which a statute authorized injunctions “necessary or appropriate for the enforcement” of the statute. Id. at 325-26, 119 S.Ct. 1961 (discussing United States v. First Nat’l City Bank, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965)). In this case, MERA has authorized the court to impose such conditions as are “necessary or appropriate” to accomplish the goals of MERA, so our case is distinguishable from Grupo Mexicano on that ground. CBS has not come forward with any authority casting doubt on the district court’s power to require a bond as part of an effective MERA remedy. Finally, CBS contends that the district court should have abstained from exercising jurisdiction on the grounds of comity and federalism. This argument is substantially redundant of Viacom’s argument on the first appeal that the administrative consent order was entitled to preemptive effect barring MERA relief. We rejected that argument in Kennedy I and remanded for refinement of the MERA injunction. 375 F.3d at 743-48. The district court took us at our word, as it was required to do, and carefully avoided modifying the injunction in any way that could impinge on the state administrative remedy. We will not, at this stage in the litigation, reverse on the strength of an old argument dressed up as a new one. We remand for the district court to specify which requirements of the Decision Document are included as items of the MERA injunction; in all other respects, the order of the district court is affirmed.

Coalition for Health Concern v. LWD, Inc.

HORTON, District Judge. This ease is before the Court on interlocutory appeal from the United States District Court for the Western District of Kentucky pursuant to 28 U.S.C. § 1292(b) (1988). The-controversy involves a dispute over the licensing and operation of a hazardous waste incineration facility in Calvert City, Kentucky owned by a company known as LWD, Inc. Plaintiffs-appellees failed to persuade the Kentucky agency charged with regulating hazardous waste that LWD’s facility was in violation of federal and state regulations and should be closed. Subsequently, plaintiffs-appellees abandoned all Kentucky administrative proceedings before a decision had been reached and filed this action in the district court. The issue on appeal is whether the district court, applying the Burford abstention doctrine, properly declined to dismiss plaintiffs’ claims because of the ongoing state administrative proceedings. See, Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). The district court, relying on New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (“NOPSI”), concluded it could not dismiss plaintiffs’ claims under Burford unless the claims required significant analysis of state law. Our review of the record leads us to the conclusion that Kentucky law provides an adequate review process for plaintiffs’ claims and that the exercise of federal jurisdiction and review at this point would be disruptive of Kentucky’s efforts to establish a coherent policy -with respect to the licensing of hazardous waste facilities in that commonwealth. We also find this case distinguishable from NOPSI, supra, and that Burford abstention is appropriate here. Accordingly, we reverse and remand with instructions that the district court dismiss all of plaintiffs’ claims without prejudice except Count III. We conclude the district court should dismiss Count III of plaintiffs complaint for want of jurisdiction under Palumbo v. Waste Technologies Industries, 989 F.2d 156 (4th Cir.1993). I. The Parties and Claims. The Defendants-appellants in this case are LWD, Inc. (“LWD”), the owner and operator of a hazardous waste incineration facility, and Phillip J. Shepherd, in his official capacity as Secretary of Kentucky’s Cabinet for Natural Resources and Environmental Protection (the “Secretary” and “Cabinet”). Plaintiffs-appellees, Coalition for Health Concern, Natural Resources Defense Council, Inc., Sierra Club and Ernest Ramey Whitehead (collectively “CHC”), are environmental groups with members who live near the facility and an individual who also lives near the facility. Plaintiffs-appellees brought this action for alleged violations by the Secretary and LWD of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-6992 (1988) and the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675 (1988). Plaintiffs’ primary claim is that LWD is in violation of RCRA because the facility is operating without a final “Part B” permit. Plaintiffs allege that under RCRA, as amended, the Part B permit must have been issued or denied by November 8, 1989. See, 42 U.S.C. § 6925(c). Plaintiffs also claim the Secretary failed to perform his statutory duty to either issue or deny LWD’s final “Part B” permit by the November 8, 1989 deadline. Defendants-appellants, in addition to their procedural defenses, contend that LWD is entitled to “interim status” pursuant to 42 U.S.C. § 6925(e) and under state law until a final decision is made on their Part B permit application irrespective of the November 8, 1989 deadline. The Secretary and LWD both filed motions to dismiss arguing lack of subject matter jurisdiction, the doctrine of abstention and other defenses. The district court denied the motions to dismiss but did, however, dismiss one count of the complaint pursuant to the Burford abstention doctrine. The district court retained jurisdiction over the remaining claims to the extent they did not require an indepth analysis of state law. Recognizing an immediate appeal might materially advance the ultimate termination of this litigation, the district court certified its decision to this court as appropriate for interlocutory appeal sua sponte. We subsequently granted defendants’-appellants’ petitions for review. II. RCRA and Kentucky’s Authorized Hazardous Waste Program. RCRA is a comprehensive regulatory system designed to promote the safe handling of solid and hazardous wastes. See, Palumbo v. Waste Technologies Indus., 989 F.2d 156, 157 (4th Cir.1993). RCRA was amended by the Hazardous and Solid Waste Amendments of 1984, Pub.L. No. 98-616, 98 Stat. 3221 (“HSWA”)(current version at 42 U.S.C. §§ 6901-6992 (1988)), which imposed stricter standards on the owners and operators of hazardous waste treatment facilities to provide better protection for the public and the environment. See, e.g., 42 U.S.C. § 6924. Under RCRA, the United States Environmental Protection Agency (“EPA”) has primary responsibility for implementing its directives; however, the states may enact their own hazardous waste regulatory program. 42 U.S.C. § 6926. If a state elects to enact its own program meeting minimum federal standards and applies for and receives approval from the EPA, then the state program operates in lieu of the federal program. 42 U.S.C. § 6926; see, Palumbo v. Waste Technologies Indus., 989 F.2d 156, 157-58 (4th Cir.1993). Kentucky enacted its own hazardous waste disposal program, Ky.Rev.Stat.Ann. §§ 224.01-010, et seq. (1991), and thereafter received authorization from the EPA to implement it on January 31,1985. 50 Fed.Reg. 2550 (1985). Counsel to the Secretary indicated Kentucky is authorized to implement the RCRA standards through its own authorized program but has not as yet obtained authorization to enforce the stricter standards imposed by HSWA. HSWA amended RCRA in part by adding the November 8, 1989 deadline language the parties dispute here. See, 42 U.S.C. § 6925(c) (1988). There is no dispute that under RCRA and under Kentucky’s authorized program, a hazardous waste disposal facility must submit and receive approval from the Commonwealth of Kentucky of its Part A and Part B permit application to become fully licensed to operate. If an existing facility fulfills the necessary prerequisites and files its Part A permit application, it is allowed to continue to operate under certain conditions as if it had a permit with “interim status” authorization. 42 U.S.C. § 6925(e)(1), 401 Ky.Admin.Regs. 30:010-20. III. The History of LWD’s Licensing Process. LWD purchased its facility in 1977 and has since that time been involved in the complicated process of obtaining all the necessary permits and approvals for it to operate. LWD submitted its Part A application on September 19, 1980 and a Part B application on May 10, 1983. However, during the course of the application approval process, problems arose with LWD’s Part B application. The Cabinet issued at least six “Notice of Deficiencies” to LWD concerning its Part B application. Plaintiffs contend these “notices” resulted from LWD’s willful failure to provide the Cabinet with sufficient information to allow for the processing of its Part B application. Regardless of the reason, it is clear that the relationship between the Cabinet and LWD deteriorated to the point where two separate legal actions were initiated in the Franklin County, Kentucky, Circuit Court. In the first action, Franklin County Circuit Court No. 89-CI-1138, the Cabinet sued LWD to enjoin it from transferring part of the property on which the facility is located to other corporate entities in an alleged attempt to avoid clean-up costs associated with part of the site. In the other action, Franklin County Circuit Court No. 89-CI-1592, LWD filed suit to enjoin the Cabinet from enforcing its decision to deny LWD’s final Part B permit and effectively close the facility- During the course of these proceedings, the circuit court determined that LWD had submitted a technically complete Part B application and obtained “interim status” to operate the facility since 1980 as defined by 401 KAR 30:010, Section l(145)(b); 401 KAR 38:020, Section 1(1); and 401 KAR 30:010, Section 1(101). The court also enjoined the Cabinet from closing the facility but did not restrict the Secretary or Cabinet from taking further action against LWD pursuant to KRS § 224.071, concerning LWD’s Part B permit application. In fact, the court specifically remanded all issues relating to LWD’s permit issuance or denial to the Cabinet for determination in accordance with the procedures of that administrative body. The court’s final order was in apparent response to an agreement by the Cabinet and LWD. This agreement established the conditions under which LWD would operate the incinerators pending the Cabinet’s final permit decision, including “test” or “trial burns” of incinerators, and imposed $100,000 in civil penalties against LWD for past violations. Concurrent with the Franklin County Circuit Court proceedings, plaintiffs filed three administrative petitions with the Cabinet protesting the agreements reached between LWD and the Cabinet as to the facility’s continued operation during the approval process. CHC’s petitions were filed pursuant to KRS § 224.10-420 which provides that any aggrieved person may file a petition and is entitled to a hearing concerning the issuance of a permit. Judicial review of all orders of the Cabinet is available in the Franklin County Circuit Court pursuant to KRS § 224.10-470 and any decision reached by that court may be appealed to the Kentucky Court of Appeals. KRS § 224.10-470. In at least two of the petitions, CHC specifically alleged that LWD was in violation of 42 U.S.C. § 6925(c)(2)(A)(ii) because LWD continued to operate under interim status although it had not been granted or denied its final Part B permit by the November 8, 1989 deadline. An administrative hearing was conducted on the petitions. The initial hearing officer recommended that CHC be granted partial summary judgment on the permit deadline issue based on his determination that LWD was in violation of RCRA because the final permit had not been issued by November 8,1989. Both the Cabinet and LWD filed exceptions to the hearing officer’s recommendation with the Secretary, and CHC responded to those exceptions. The Secretary declined to adopt the findings and recommendation. The Secretary’s decision was based in part on his determination that the report and recommendation by the hearing officer was grossly deficient in setting forth any legal reasoning, that factual disputes remained concerning the delays surrounding LWD’s Part B permit issuance, and that the Franklin County Circuit Court had determined that LWD was entitled to interim status. The Secretary also noted that CHC failed to cite any case supporting its position that LWD’s interim status expired by operation of law under RCRA on November 15, 1989. More importantly, the Secretary determined that the November 8, 1989 deadline dispute was an appropriate issue for determination in subsequent administrative proceedings. The Secretary then remanded the case for further administrative hearings and for the purpose of establishing a factual record in an effort to resolve the issues raised in CHC’s petitions. In the remand order, the Secretary set forth a strict time table for the completion of discovery between the parties, the completion of any additional test burns and for review of the results. The Secretary also established a November 1, 1993 completion date for determining whether LWD would be issued or denied its Part B permit. At this point, however, CHC abandoned its proceedings before the Cabinet and filed this action in the district court. CHC also filed a notice of its federal action with the Cabinet and sought a stay of any further Kentucky administrative proceedings pending resolution of its federal action. IV. Analysis of Plaintiffs’ Claims. Plaintiffs filed this action pursuant to the citizens suit provisions of RCRA and CERC-LA. The district courts have jurisdiction over such claims pursuant to 42 U.S.C. §§ 6972 and 9659 (1988). In their thirteen count complaint, plaintiffs alleged eleven RCRA violations and two CERCLA violations. Four counts were filed against the Secretary and nine were filed against LWD. All the RCRA claims except one were brought pursuant to 42 U.S.C. § 6972(a)(1)(A). That section provides in pertinent part that [A]ny person may commence a civil action on his own behalf— (1)(A) against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter. 42 U.S.C. § 6972(a). These “(a)(1)(A)” claims, counts I, II, V-VIII, and X-XIII, center on LWD’s continued operations past the November 8, 1989 deadline, the Secretary’s failure to issue or deny LWD’s Part B permit, the Secretary’s failure to revoke LWD’s interim status, and for allowing test burns to proceed. In each of these counts, plaintiffs also alleged violations of Kentucky’s environmental regulations. Plaintiffs’ remaining RCRA claim, count III, arises under 42 U.S.C. § 6972(a)(1)(B). That section provides in pertinent part that [A]ny person may commence a civil action on his own behalf— (1)(B) against any person ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment ... 42 U.S.C. § 6972(a)(1)(B). In their “(a)(1)(B)” claim, count III, plaintiffs alleged that as a result of the Cabinet’s failure to require LWD to comply with the final Part B permit process the incinerators pose an imminent and substantial endangerment to the public and the environment. Plaintiffs further alleged that even if LWD were issued the final permit, “substantial endangerment” to the public and the environment would continue to exist. We do not see how these allegations can reasonably be interpreted to be anything other than a collateral attack on Kentucky’s hazardous waste permitting process in an effort to enjoin the issuance to LWD of an operating permit. Plaintiffs are clearly alleging that even if LWD met all the federal and state criteria for the safe operation of the facility and were subsequently issued a permit, the facility would continue to pose “substantial endangerment” to the public and the environment. As such, this claim is barred by 42 U.S.C. § 6972(b)(2)(D) which provides that “[n]o action may be commenced under subsection (a)(1)(B) of this section by any person (other than a State or local government) with respect to the siting of a hazardous waste treatment, storage, or disposal facility, nor to restrain or enjoin the issuance of a permit for suck facility.” (emphasis added). Accordingly, we conclude this claim must be dismissed. See, e.g., Palumbo v. Waste Technologies Industries, 989 F.2d 156, 159-62 (4th Cir.1993). Plaintiffs’ CERCLA claims center on LWD’s alleged failure to comply with the notice provisions of CERCLA concerning the handling and release of hazardous materials into the environment in alleged violation of 42 U.S.C. §§ 9603 and 9611(g). These claims therefore arise under the citizens suit provision of CERCLA, 42 U.S.C. § 9659(a)(1). That section provides in pertinent part that “any person may commence a civil action ... against any person ... who is alleged to be in violation of any standard, regulation, condition, requirement or order which has become effective pursuant to this chapter.” 42 U.S.C. § 9659(a)(1) (emphasis added). This provision has been interpreted to require allegations of continuous or intermittent violations. Lutz v. Chromatex, Inc., 718 F.Supp. 413, 420-22 (M.D.Pa.1989), relying on, Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)(interpreting identical language of the citizens suit provision of the Clean Water Act, 33 U.S.C. § 1251 et seq., 33 U.S.C. § 1365(a)). We find this interpretation persuasive. Our review of plaintiffs’ alleged CERCLA violations fail to reveal assertions that LWD’s failure to comply with CERCLA’s notice provisions are of a continuous or intermittent nature. Accordingly, these claims should be dismissed without prejudice. V. Abstention. Turning to the abstention issue in this case, we recognize that “ ‘the courts of the United States are bound to proceed to judgment and to afford redress to suitors before them in every ease to which their jurisdiction extends,’ ” and “ ‘[t]hey cannot abdicate them authority or duty in any case in favor of another jurisdiction.’ ” New Orleans Pub. Serv. Inc. v. Council of New Orleans, 491 U.S. 350, 359, 109 S.Ct. 2506, 2513, 105 L.Ed.2d 298 (1989), quoting, Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S.Ct. 695, 697, 37 L.Ed. 546 (1893) (citation omitted in original). However, we also recognize that “there are some classes of eases in which the withholding of authorized equitable relief because of undue interference with state proceedings is ‘the normal thing to do.’” Id., 491 U.S., at 359, 109 S.Ct., at 2513, quoting, Younger v. Harris, 401 U.S. 37, 45, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971). Although abstention is permissible, it is the exception and not the rule. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). The most recent Supreme Court decision to address the principles underlying the Bur-ford abstention doctrine is New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (“NOPSI”). Plaintiffs rely on NOPSI, as did the district court, as authority that Burford abstention is inappropriate in this ease. We disagree. In NOPSI, the Court was faced with a challenge by a producer and retailer of electricity, New Orleans Public Service, Inc., to a decision by the New Orleans City Council not to grant a requested rate increase to cover all costs associated with building what was called the Grand Gulf Nuclear Reactor. These costs had been allocated to NOPSI by the Federal Energy Regulatory Commission (“FERC”). Id., 491 U.S., at 352, 109 S.Ct., at 2510. The Supreme Court ruled earlier that for the purposes of setting intrastate retail rates a State may not differ from FERC’s allocations of wholesale power by imposing its own judgment of what would be just and reasonable. Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 106 S.Ct. 2349, 90 L.Ed.2d 943 (1986). The Court had also ruled that FERC’s allocation of the cost of the Grand Gulf Nuclear Reactor among the operating companies that jointly agreed to finance the construction and operation of the reactor pre-empted Mississippi’s inquiry into the prudence of a utility retailer’s decision to participate in the joint venture. Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 108 S.Ct. 2428, 101 L.Ed.2d 322 (1988). Although the state rate making authority deferred to FERC’s implicit finding that NOPSI’s decision to participate in the Grand Gulf venture was reasonable, it determined that the costs incurred should not be completely reimbursed because, it asserted, the utility’s management was negligent in failing-later to diversify its supply portfolio by selling a portion of its Grand Gulf power. NOPSI, 491 U.S., at 352, 109 S.Ct., at 2510. The Supreme Court declined to address whether the State’s decision to provide less than full reimbursement conflicted with its earlier decisions but instead determined that the issue was whether the District Court properly abstained from exercising jurisdiction in deference to the state review process. Id., 491 U.S., at 352, 109 S.Ct., at 2510. In addressing the Burford abstention doctrine, the Supreme Court stated, [wjhere timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are ‘difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar’; or (2) where the ‘exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.’ NOPSI, 491 U.S., at 359, 109 S.Ct., at 2514, quoting, Colorado River Water Conservation Dist. v. United States, 424 U.S., at 814, 96 S.Ct., at 1245. The Court went on to find Burford abstention inappropriate in its case because the ease did not involve a state-law claim, nor even an assertion that the federal claims were “in any way entangled in a skein of state-law that must be untangled before the federal case can proceed.” NOPSI, 491 U.S., at 361, 109 S.Ct., at 2514-15 (citation omitted). The Court further indicated that [wjhile Burford is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a ‘potential for conflict’ with state regulatory law or policy. Colorado River Water Conservation Dist., 424 U.S., at 815-16, 96 S.Ct., at 1245. Here, NOPSI’s primary claim is that the Council is prohibited by federal law from refusing to provide reimbursement for FERC-allo-cated wholesale costs. Unlike a claim that a state agency has misapplied its lawful authority or has failed to take into consideration or properly weigh relevant state-law factors, federal adjudication of this sort of pre-emption claim would not disrupt the State’s attempt to ensure uniformity in the treatment of an ‘essentially local problem.’ NOPSI, 491 U.S., at 362, 109 S.Ct., at 2515 (citation omitted)(emphasis added). In the present case, it is clear to us that Kentucky has an overriding interest in the protection of its environment from the effects of unregulated hazardous waste as indicated by its enactment of a broad statutory scheme and review process governing the issuance and approval of permits for hazardous waste facilities. See, KRS 224.01 et seq. Cf., Adar-Cascade Watch Co. v. Cascade Resource Recovery, 720 F.2d 897 (1983)(fmding Michigan’s adoption of a complex system of permit review and approval process consistent with its interest in developing a coherent state policy toward hazardous waste facilities). We also find, according to the circumstances of this case, that the exercise of federal review at this juncture would be disruptive of Kentucky’s efforts to establish a coherent policy with respect to the licensing of hazardous waste facilities. Moreover, in light of Kentucky’s authorized program which incorporates the RCRA provisions and based on a review of plaintiffs’ remaining (a)(1)(A) claims, it appears to us that plaintiffs’ claims do not and cannot arise in isolation from state law issues nor are they premised solely on alleged violations of federal law. Each of plaintiffs’ remaining (a)(1)(A) claims seeks declarator and injunctive relief for alleged violations of state and federal RCRA requirements. Further, this case simply does not present the same situation as that in NOPSI. Here, Kentucky has enacted and is operating its own authorized program under RCRA and is attempting to establish a coherent policy under its law concerning the operation and licensing of hazardous waste disposal facilities. We do not see how plaintiffs’ claims can be decided without interfering with Kentucky’s policies governing the issuances of hazardous waste incineration permits. In addition, it appears that plaintiffs allegations are based on assertions that the Secretary has failed to apply or misapplied his lawful authority under Kentucky law and under RCRA concerning the issuance of LWD’s Part B permit. All of these findings distinguish this case from NOPSI. Simply put, federal adjudication of plaintiffs’ claims presented here would be disruptive of Kentucky’s attempt to ensure uniformity in its hazardous waste policy. See, NOPSI, 491 U.S., at 362, 109 S.Ct., at 2515. YI. Conclusion. We therefore conclude the district court should have dismissed all of plaintiffs’ claims except Count III without prejudice under the Burford abstention doctrine. As to Count III of the complaint, it is hereby dismissed for want of jurisdiction under Palumbo v. Waste Technologies Industries, 989 F.2d 156 (4th Cir.1993). The district court’s decision is therefore REVERSED, and this case is hereby REMANDED. We find it unnecessary to address other issues and contentions raised by the parties on appeal. . CHC also sought leave to intervene in the Franklin County Circuit Court proceedings in December of 1991 but the motion was denied as movants failed to appear by counsel or in person. . We also note the absence of any judicial decisions supporting plaintiffs' interpretation of 42 U.S.C. § 6925. It appears the Secretary’s order misstated the date of November 15, 1989 instead of November 8, 1989 date indicated by 42 U.S.C. § 6925(c)(2)(A)(ii). . Counsel for the Secretaiy indicated at oral argument that the November 1, 1993 deadline for issuance or denial of LWD’s final Part B permit had not been met due to the EPA's imposition of additional "Site Specific Risk Assessments” for each hazardous waste disposal facility before licensing could be completed.

Carpenter Technology Corp. v. City of Bridgeport

STRAUB, Circuit Judge: Plaintiff Carpenter Technology Corporation (“Carpenter”) appeals from a judgment of the United States District Court for the District of Connecticut (Alfred V. Covello, Chief Judge), denying Carpenter’s motion for a preliminary injunction to prevent the taking of its property by eminent domain and sua sponte dismissing as unripe Carpenter’s action for both injunc-tive and declaratory relief against the City of Bridgeport, the Bridgeport Port Authority (“the Port Authority”), the Mayor of Bridgeport, and the Executive Director of the Port Authority. We hold that the District Court exceeded its allowable discretion in denying Carpenter’s motion for a preliminary injunction on the ground that Carpenter had failed to show a threat of irreparable harm. We also conclude that the District Court erred in dismissing Carpenter’s claim for permanent injunctive relief. Finally, although we do not decide the ripeness issue, we conclude that the District Court’s dismissal of Carpenter’s claim for declaratory relief as unripe was based in part on a misunderstanding of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq. We therefore vacate the judgment and remand the case so that the District Court may consider further the propriety of preliminary and permanent injunctive relief as well as the ripeness and, if appropriate, the merits of Carpenter’s claim for declaratory relief. BACKGROUND Carpenter owns a 47.5 acre waterfront property located at 730, 800, and 837 Sea-view Avenue in Bridgeport, Connecticut. Carpenter operated a steel mill on the property from 1957 until 1988, when it shut down operations at the site. Over the last decade, Carpenter has sought to sell the property to a suitable private purchaser. In preparation for such a sale and in cooperation with environmental regulatory agencies, Carpenter has taken steps to clean up the environmental contamination that exists at the site. In July 1992, Carpenter entered into a voluntary consent order with the Connecticut Department of Environmental Protection (“DEP”), wherein Carpenter agreed to obligations that continue even after transfer of title to the property. A restrictive covenant also provides that neither Carpenter nor any subsequent owner will disturb an eleven-acre plume of solidified fuel oil on the site without the DEP’s consent. As a result of Carpenter’s remediation efforts and the consent order, the DEP informed the United States Environmental Protection Agency (“EPA”) in March 1997 that the property in its current state is not a substantial threat to human health and the environment, and the EPA decided in April 1997 not to list the property on its National Priorities List. Before Carpenter’s efforts to sell the property had come to fruition, the Port Authority became interested in acquiring the property. An affidavit presented to the District Court by the Executive Director of the Port Authority states that: The decision to proceed with the acquisition of the Property by condemnation was, in part, the result of Carpenter’s continuing failure to cooperate with the Port Authority in finding viable and productive uses for the Site. The initial interest of the Port Authority in the Property was in large part based upon the fact that, as a result of Carpenter’s abandonment of the Site in the late 1980’s and its failure to obtain a committed purchaser, the Property, which is prime deep water coastline, had become a site with significant, unused potential. In communications with representatives of Carpenter, in particular David Daddario of North American Realty Advisory Services, the Port Authority had consistently expressed to Carpenter its desire to develop the Site in accordance with the goals and objectives established for the Port District by the City legislature. Despite these positive advances by the Port Authority, Carpenter consistently refused to cooperate. Among other things, it refused to disclose to the Port Authority the extent and nature of the adverse environmental conditions at the Site, the status of Carpenter’s efforts to market the Property and the price that it was seeking from potential developers. At one point, when Port Authority representatives suggested that the Authority might seek to condemn the Site, Carpenter responded that it would fight to prevent any such action. The Port Authority envisions that after its acquisition, the property will become home to a world class shipyard, an expanded deep water port, an oyster production company, and water dependent users dislocated by a nearby development project. On July 16, 1998, the Port Authority passed a resolution authorizing purchase or condemnation of the property under Connecticut law. See Conn. Gen.Stat. § 7-329f (providing that a port authority “may lease or acquire title to real ... property” and “may condemn real property located within the district which it deems necessary for the development of port facilities in the district, subject to the provisions of [Conn. Gen.Stat. § ] 48-12”). The Bridgeport Common Council subsequently approved this action by ordinance. On August 27, 1998, the Mayor of Bridgeport approved the Common Council ordinance. Carpenter alleges that in June 1998, it successfully negotiated an agreement to sell the property to Philips Realty Acquisition Corporation, which planned to build a retail shopping and entertainment complex on the property. Carpenter maintains that this agreement contained indemnification provisions and contractual use restrictions to protect Carpenter from paying remediation expenses caused by Philips’s development of the property. According to Carpenter’s General Counsel, Carpenter and Philips tried to persuade Bridgeport to allow the Philips plan to go forward by offering to give twelve acres of land to the City, but Bridgeport representatives rejected this offer at a meeting in November 1998 and informed Carpenter that the City intended to proceed with its acquisition by condemnation and to. pursue Carpenter for environmental remediation costs in excess of the City’s valuation of the property. Carpenter also asserts that, upon information and belief, the Port Authority has already incurred testing and/or investigation expenses related to the environmental contamination of the property. Carpenter further alleges that despite the steps taken toward condemnation in the summer of 1998, the Port Authority did not attempt to negotiate with it a purchase of the property until January 12, 1999. On that date, counsel for the Port Authority faxed a $2.5 million offer to Carpenter. The Port Authority’s letter stated that the $2.5 million offer was “based upon an appraisal that assumes no environmental remediation costs or other exceptional liabilities associated with this acquisition other than payment of the purchase price and applicable taxes” and was “subject to customary contractual provisions, including without limitation, environmental provisions acceptable to the City.” The letter also indicated that the offer would be deemed withdrawn if Carpenter had not accepted it by 5 p.m. on January 14, 1999. By letter dated January 14, 1999, an attorney for Carpenter responded to the Port Authority’s offer. The letter stated in part: Your “offer” does not constitute a reasonable and good faith effort to negotiate a fair price for the Carpenter property. We do not understand how the Port Authority could possibly have in good faith arrived at a fair market value of $2.5 million. Although it appears to Carpenter that the Port Authority has made an offer to purchase the property for only a fraction of its value, Carpenter remains willing to negotiate based on the Philips plan or any other reasonable alternative. We cannot do so, however, without sufficient information. Carpenter has the right to see the Port Authority’s appraisals before it responds formally to your offer, and we request that you provide them immediately. Carpenter also requests that you explain precisely what you mean in your letter by “customary contractual provisions, including, without limitation, environmental provisions acceptable to the Port Authority.” Please, accept this letter as Carpenter’s formal request for an extension of the Port Authority’s deadline, at least until Carpenter has an opportunity to review the Port Authority’s appraisals.... I ... hope that the Port Authority will attempt to work out a fair resolution of this matter. If the Port Authority continues to act unreasonably, Carpenter will take whatever steps it must to protect its interests. The Port Authority did not respond to Carpenter’s letter. Instead, on January 15, 1999, the Port Authority began the process of condemning the property by filing a Notice of Condemnation and a Statement of Compensation with the Clerk of the Superior Court for the Judicial District of Fairfield at Bridgeport and depositing $2.5 million with the Clerk. On January 28, 1999, Carpenter filed with the Clerk of the Superior Court an Appeal and Application for a Review of the Statement of Compensation, the statutory trigger for a judicial review of the amount of compensation. See Conn. Gen.Stat. § 8-132. On January 29, 1999, Carpenter removed the action to the United States District Court for the District of Connecticut on the basis of diversity of citizenship and Rule 71A(k) of the Federal Rules of Civil Procedure. See Bridgeport Port Auth. v. Carpenter Tech. Corp., No. 99-CV-174 (Warren W. Eginton, Judge). Under Connecticut law, the Clerk of the Superior Court ordinarily issues a Certificate of Taking shortly after a notice of the condemnation has been given and documentation thereof has been filed with the Superior Court. See Conn. Gen.Stat. § 8-129. However, on January 29, 1999, Carpenter’s counsel wrote to the Clerk, informing him of the removal and asserting that the removal stripped him of his authority to issue a Certificate of Taking. On February 1, 1999, the Clerk refused to issue a Certificate of Taking to the Port Authority. The Port Authority has since moved to remand the removed action or, in the alternative, to clarify the effect of removal in such a way as to permit the issuance of a Certificate of Taking. Carpenter filed this action on January 29, 1999, seeking a preliminary and permanent injunction against the transfer of title to the Port Authority or, alternatively, a declaratory judgment that the Port Authority or any future owner should be liable instead of Carpenter for any environmental remediation costs related to future development of the property following transfer of title to the Port Authority. On February 8, 1999, the District Court heard argument on Carpenter’s motion for a preliminary injunction. By ruling filed February 12, 1999, the District Court denied Carpenter’s motion for a preliminary injunction and sua sponte dismissed the action without prejudice for lack of subject matter jurisdiction. With respect to the motion for a preliminary injunction, the District Court explained that Carpenter had failed to demonstrate that it would suffer irreparable harm absent injunctive relief. As to Carpenter’s request for declaratory relief, the District Court stated: [D]ue to the remote and speculative nature of any potential harm to the plaintiff, this issue is not now ripe for adjudication. Specifically, if and until such time as the City or a third party transferee disturbs the environmental status quo at the property, resulting in a duly authorized state or federal environmental agency making a claim against the plaintiff for remediation costs, any opinion rendered by the court on this issue would be purely advisory. The District Court did not expressly consider Carpenter’s request for a permanent injunction, but dismissed Carpenter’s entire action for lack of subject matter jurisdiction. On March 10, 1999, Carpenter filed a notice of appeal. On March 12, 1999, Carpenter moved this Court for an expedited appeal and for an injunction pending appeal. On April 6, 1999, a panel of this Court granted the motion for an expedited, appeal but denied the motion for an injunction pending appeal. DISCUSSION On appeal, Carpenter contends that: (1) the District Court abused its discretion in denying Carpenter’s motion for a preliminary injunction; (2) the District Court erred in dismissing Carpenter’s claim for permanent injunctive relief without explanation; and (3) the District Court erred in dismissing Carpenter’s claim for declaratory relief as unripe. We address these arguments in turn. I. Denial of the Motion for a Preliminary Injunction The District Court denied Carpenter’s motion for a preliminary injunction on the ground that Carpenter had not shown that it would suffer an irreparable injury absent such relief. We review the denial of a preliminary injunction for abuse of discretion. See Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir.1998). We conclude that on the facts of this case, the denial of a preliminary injunction for failure to establish irreparable injury exceeded the District Court’s allowable discretion. Carpenter seeks a preliminary injunction to prevent the taking of its real property by the Port Authority. The Connecticut Supreme Court has recognized that a party seeking judicial review of a government agency’s decision to condemn property has no adequate remedy at law and is therefore entitled to obtain equitable relief. See Simmons v. State, 160 Conn. 492, 501-02, 280 A.2d 351, 356 (1971); see also Stocker v. City of Waterbury, 154 Conn. 446, 451, 226 A.2d 514, 517 (1967) (describing Conn. Gen.Stat. § 8-129). Because real property is at issue and because. Carpenter cannot raise its claim for injunctive relief to prevent the taking of its property in the valuation proceeding, Carpenter has shown a threat of irreparable injury. On this record, however, we cannot determine whether the other requirements for the issuance of a preliminary injunction have been met. We therefore vacate the denial of the preliminary injunction and remand so that the District Court may make factual findings and determine whether a preliminary injunction is appropriate. Because Carpenter “seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” it must establish a likelihood that it will succeed on the merits of its claim. Plaza Health Lab., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989), quoted in Time Warner Cable v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir.1997). In considering Carpenter’s probability of success on the merits, the District Court should consider whether it is probable that it will ultimately find that the Port Authority has not exhausted all reasonable efforts to obtain the property by agreement as required under Connecticut law. See Conn. Gen.Stat. § 48-12 (specifying the procedure for condemning land “if those desiring to take such property cannot agree with the owner upon the amount to be paid him for any property thus taken”); Town of Darien v. Kavookjian, 151 Conn. 659, 661, 202 A.2d 147, 149 (“[IJnability to agree with the owner of property sought to be condemned is a condition precedent to condemnation under the statute.”), cert. denied, 379 U.S. 840, 85 S.Ct. 77, 13 L.Ed.2d 46 (1964); see also Connecticut Light & Power Co. v. Costello, 161 Conn. 430, 441-42, 288 A.2d 415, 421 (1971); Town of West Hartford v. Talcott, 138 Conn. 82, 89, 82 A.2d 351, 354 (1951). Additionally, the District Court should consider the balance of public interests affected in determining whether Carpenter’s threatened irreparable injury and probability of success on the merits warrant injunctive relief. See Time Warner, 118 F.3d at 929; see also Rodriguez v. DeBuono, 175 F.3d 227 (2d Cir.1999) (per curiam). II. Dismissal of Carpenter’s Claim for Permanent Injunctive Relief The District Court did not explain why it dismissed the part of Carpenter’s action that seeks a permanent injunction. The defendants contend that the District Court’s dismissal was justified because Carpenter’s claim for injunctive relief was unripe. We reject this argument. Whatever the merits of the defendants’ contention that Carpenter’s claim for declaratory relief is unripe, there is no question that the dispute over whether the Port Authority is legally entitled to take Carpenter’s property is now ripe as the Port Authority has already initiated the condemnation process. The defendants argue in the alternative that the District Court was justified in dismissing Carpenter’s claim for permanent injunctive relief because the District Court concluded that Carpenter had not shown a threat of irreparable harm. For the reasons discussed above, we find this argument to be without merit. Accordingly, we vacate the District Court’s dismissal of this part of the action and remand Carpenter’s claim for permanent injunctive relief to the District Court for its renewed consideration. III. Dismissal of Carpenter’s Claim for Declaratory Relief Article III, § 2 of the United States Constitution permits federal courts to hear only those disputes that present a “case or controversy.” See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Thus, jurisdiction exists only if the plaintiff has “suffered, or be[en] threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). The District Court dismissed Carpenter’s declaratory judgment action on the theory that it did not present a ripe case or controversy. For the reasons that follow, we decline to rule on ripeness, but instead remand the issue for the District Court’s reconsideration. We note first that Carpenter’s request for a declaratory judgment is presented in the alternative. Because we are remanding the issue of injunctive relief, it is possible that the question of whether the declaratory claim is ripe need not be decided at all. We also question the District Court’s analysis of the issue. Acting sua sponte and without the benefit of briefing, the District Court determined that Carpenter’s liability for remediation costs was too speculative to present a ripe case or controversy. Specifically, the District Court concluded that: in order for the plaintiff to actually be harmed, a number of contingencies would have to occur, including the following: 1) the superior court clerk would have to issue a Certificate of Taking, so that the City could perfect its condemnation of the property by taking title; 2) the City or a third party transferee would have to implement a development or remediation plan with respect to the property which proved to be physically invasive and [disruptive] of the environmental status quo; 3) the DEP (or USEPA) would have to determine that additional environmental remediation was required at the site; 4) the appropriate state or federal environmental agency would have to seek to recover the cost of the environmental remediation from the plaintiff. We are not convinced that the third and fourth contingencies outlined above are in fact preconditions to liability. Under CERCLA, a private party may bring a cost recovery action or seek a declaratory judgment even in the absence of a governmental enforcement action. See CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B) (imposing liability on potentially responsible parties for “necessary costs of response incurred by any ... person [other than the United States Government or a state or an Indian tribe] consistent with the national contingency plan”); B.F. Goodrich v. Betkoski, 99 F.3d 505, 518 (2d Cir.1996) (“Congress [through CERCLA] has explicitly authorized private rights of action independent of EPA enforcement decisions.”), reh’g denied & decision clarified, 112 F.3d 88 (2d Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2318, 141 L.Ed.2d 694 (1998); see also Tanglewood E. Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1575 (5th Cir.1988) (agreeing with other circuits in finding “no merit to the contention that prior governmental involvement is a prerequisite to the recouping of [CERCLA] response costs”). Moreover, it is not clear that the District Court considered that actions for declaratory relief by their nature sometimes ripen before actions seeking to impose liability on the same subject matter are actually brought. Since we are remanding Carpenter’s claim for injunctive relief, there is no reason for us to evaluate the arguments raised in the parties’ briefs for the first time on appeal. Instead, we remand the question of ripeness for the District Court’s reconsideration in light of our comments and the parties’ briefs. CONCLUSION The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.

Davis v. Sun Oil Co.

The court-delivered a PER CURIAM opinion. BOGGS, J. (pp. 613-615), delivered a separate opinion concurring in part and dissenting in part. OPINION PER CURIAM. Donald and Maxine Davis brought this action under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B), against Sun Oil Co. (“Sun”). In Davis v. Sun Oil Co., 929 F.Supp. 1077 (S.D.Ohio 1996) (“Davis I"), the district court denied the Davises’ motion for summary judgment, and in Davis v. Sun Oil Co., 953 F.Supp. 890 (S.D.Ohio 1996) (“Davis II"), it granted Sun’s motion for summary judgment. We AFFIRM. I The facts of this case may be found in detail in Davis I and Davis II, as well as in Davis v. Sun Refining and Marketing Co., 109 Ohio App.3d 42, 671 N.E.2d 1049 (1996), of which we take judicial notice. To summarize the situation, in 1985 the Davises purchased from Sun a parcel of land on which Sun had operated a Sunoco filling station. Prior to the sale, Sun told the Davises that it was removing the four 6,000 gallon underground gasoline storage tanks on the property, and did so. In 1989, the Davises contracted to sell the land to United Dairy Farmers (“UDF”), subject to an environmental inspection. When UDF’s consultants tested the land, they discovered quantities of gasoline in the soil, emanating from buried gasoline pipes that had connected the tanks and the gas pumps; Sun had left the piping in place and covered it up with dirt when the tanks were removed. Faced with the prospect of a lawsuit, Sun executed with the Davises a letter agreement pledging to clean up the site. After Sun largely failed to do so, the Davises sued Sun in state court in May 1991, alleging nuisance, breach of contract, and fraud. In September of 1993, a referee conducted a thi’ee-day trial, and in December of 1993, filed a report with the court recommending that Sun be found to be in breach of contract, and that the Davises be awarded damages equal to what they had already spent in an effort to clean up the site, and specific performance of the letter agreement. The referee also recommended that Sun be found liable for fraud, and that the Davises be awarded punitive damages. In March of 1995, the state court issued a decision and entry adopting the referee’s recommendations. As to the specific performance remedy, the court required Sun to clean up the site so as to satisfy state regulatory guidelines within one year, and to post a $400,000 bond as guarantee. In January, 1996, the state court of appeals affirmed the decision of the trial court, except that it modified the specific performance award, on the grounds that cleaning up the site so as to meet state regulations might take more than one year. The appellate court ordered Sun “to complete the cleanup in an expedited manner, in full accordance with all requirements and regulations promulgated by the fire marshall [sic] [the state agent charged with regulating underground storage tanks].” Davis, 671 N.E.2d 1049. Meanwhile, in October of 1993, the Davises brought this RCRA action in federal district court, alleging that Sun, by leaving gasoline buried in the property, had “contributed to and caused the disposal of solid or hazardous waste on the property which may present an imminent and substantial endangerment to health or environment,” in violation of RCRA, 42 U.S.C. § 6972(a)(1)(B). The court held a pretrial conference and, in July of 1994, issued the first of a series of orders staying proceedings pending the resolution of the litigation in state court, and requesting timely status reports with respect to the other action pending. II In July, 1995, the Davises moved for summary judgment. They argued that the essential factual elements of a claim under 42 U.S.C. § 6972 have been finally determined by the Court of Common Pleas of Cuyahoga County, Ohio ... [which] specifically found that the contamination indicated “high levels of benzene, toluene, ethyl benzene and xylenes (together called ‘BTEX’), lead and PHC. The PHC levels exceeded the State’s guidelines.” ... The several findings of high levels of benzene necessarily determines that there may be an imminent and substantial endangerment. See 40 C.F.R.. §§ 141.32 and 141.50(a). Thus, through the principles of collateral estoppel, Defendant Sun is now estopped from contesting the findings of the Court of Common Pleas.... Under Ohio law, those issues are determined and are entitled to preclusive effect. 28 U.S.C. § 1738 requires that the Court give them the same preclusive effect. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Migra v. Warren City School Bd., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). The district court rejected the Davises’ argument, correctly observing that the precise issue of whether the contamination “may present an imminent and substantial endangerment to health or the environment” had never been actually litigated and determined by the state court. Therefore, the issue was not precluded from further litigation. 929 F.Supp. at 1081. Further, the court held that summary judgment was inappropriate because there was a genuine issue of material fact as to whether the contamination “may present an imminent and substantial endangerment.” The Davises and Sun each presented affidavits by consulting engineers, who, after evaluating the same environmental assessments that had been submitted as evidence in state court reached — unsurprisingly—opposite conclusions on this question. As the court observed, “[tjhis disagreement by the experts retained by each of the parties, would appear to create a genuine issue of material fact as to the ultimate legal issue in this case.” Id. at 1082. The court also rejected the Davises’ attempted use of the Environmental Protection Agency regulations cited in their brief to establish a standard for the level of contamination that might, as a matter of law, “present an imminent and substantial danger.” The district court" noted that the cited EPA regulations pertain to contamination levels in drinking water, not in soil, and observed: There is simply no evidence as to either the precise quantity of gasoline which remains in the soil; whether this seepage either currently has an effect on the drinking water, or is likely to have such an effect; or what the magnitude of such an effect might be, in regard to health or the environment. Although this Court could speculate on these issues, such speculation would not provide a proper basis for summary judgment. RCRA is á remedial measure that courts have tended to construe and apply in a liberal, though not unbridled, manner. The Second Circuit has discussed the statute as follows: When congress enacted RCRA in 1976, it sought to close “the last remaining loophole in environmental law, that of unregulated land disposal of discarded materials and hazardous wastes.” ■ RCRA’s waste management requirements for disposal facilities are designed not only to prevent, but also to mitigate endangermehts to public health and the environment. Significantly, congress used' the word “may” to preface the standard of liability: “present an imminent and substantial endangerment to health or the environment”. This is “expansive language”, which is “intended, to confer upon the courts the authority to grant affirmative equitable relief to the extent necessary to eliminate any risk posed by toxic wastes.” The statute is “basically a prospective act designed to prevent improper disposal of hazardous wastes in the future”. It is not specifically limited to emergency-type situations. A finding of “immanency” does not require a showing that actual harm will occur immediately so long as the risk of threatened harm is present: “An ‘imminent hazard’ may be declared at any point in a chain of events which may ultimately result in harm to the public.” Imminence refers “to the nature of the threat rather than identification of the time when the endangerment initially arose.” In addition, a finding that an activity may present an imminent and substantial endangerment does not require actual harm. Courts have consistently held that “endangerment” means a threatened or potential harm and does not require proof of actual harm. Dague v. City of Burlington, 935 F.2d 1343, 1355-56 (2d Cir.1991) (citations omitted). In keeping with the language recited in Dague, courts might in some eases be justified in holding, as a matter of law, that a certain degree of hazardous waste at a particular site “may present an imminent and substantial endangerment.” They could do so where the specific circumstances of the disposal site presented such large and unmitigated hazards (such as the amount and type of waste, combined with its proximity to the public) that “reasonable minds could not differ as to the import of the evidence.” See Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The district court cited, and correctly distinguished, two such cases, in which the particular facts had been held to justify summary judgment. Davis II, 953 F.Supp. at 893 n. 3. We agree with the district court’s explanation, noted above, of why the determination by the Ohio court that Sun had polluted the soil in that manner and degree shown by the submitted evidence was not by itself adequate to settle as a matter of law the question of whether the pollution “may present an imminent and substantial endangerment.” Accordingly, we affirm the district court’s denial of the Davises’ motion for summary judgment. Ill The district court next addressed Sun’s claim that the doctrine of res judicata prevents the Davises from maintaining this federal action. In its cross-motion for summary judgment, Sun argued that “Plaintiffs have obtained the only relief they are entitled to under 42 U.S.C. § 6972 by the decision and order in plaintiffs’ parallel state cause of action. By the application of the common law doctrine of res judicata, plaintiffs cannot maintain the present action having obtained the same relief in state court.” Were the Davises to win the RCRA suit, Sun argued, they would be entitled to nothing more than an order requiring Sun to take “necessary action,” i.e., to investigate the site, to remediate the site, etc. Sun claims that the Davises have, in fact, already obtained an order from the state court requiring Sun “to clean up the contamination on the property.” In an attempt to demonstrate that the Davises had already obtained all the relief they could get, Sun argued (correctly, in light of Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996), see n. 3 supra) that the Davises would not be entitled under RCRA to , compensation for the costs they had incurred in their partial efforts to clean up the site. Sun also argued that the Davises could not seek imposition of the civil penalties available under § 6928(g), which provides: Any person who violates any requirement of this subehapter shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall, for purposes of this subsection, constitute a separate violation. Initially, the district court rejected Sun’s argument that the Davises could not enforce the civil penalty provision as a private party. Indeed, civil penalties payable to the United States may be awarded in a citizen suit brought under § 6972(a). See Clorox Co. v. Chromium Corp., 158 F.R.D. 120, 128 (N.D.Ill.1994); cf. Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 14 n. 25, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (recognizing availability of civil penalties in suits brought under 33 U.S.C. § 1365(a), the citizen-suit provision of the Federal Water Pollution Control Amendment of 1972). The district court then noted Sun’s argument that the Davises could not maintain the federal action under the doctrine of res judi-cata, because they had obtained in state court all the relief the district court could have given them in the federal litigation. The court declined to address that claim specifically, however, because it found that even if the Davises had not obtained all such relief in state court, Ohio’s laws on claim preclusion prevented.the Davises from maintaining the federal action. The district court relied on Stuhlreyer v. Armco, Inc., 12 F.3d 75 (6th Cir.1993), as an accurate statement of Ohio’s law on claim preclusion: State judicial proceedings are entitled to the same preclusive effect in federal court as they would receive in the judgment-rendering state____ In Ohio, “ ‘[t]he doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in. the same or any other judicial tribunal of concurrent jurisdiction.’ ” ... This includes all claims which were or might have been litigated in the first lawsuit. ... Thus, under Ohio law, claim preclusion requires that the rendering court possess subject matter jurisdiction over the original claim. Stuhlreyer, 12 F.3d at 77 (citations omitted); see Grava v. Parkman Township, 73 Ohio St.3d 379, 653 N.E.2d 226, 227 (1995) (holding that “a valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.”). In accordance with this rule against “claim-splitting,” the district court turned to the question of whether the RCRA suit “might have been litigated” in the state court proceedings or whether, instead, the federal- courts enjoyed exclusive jurisdiction over such matters. The district court recognized that Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990), and Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), are important in resolving the question of whether federal jurisdiction is exclusive in citizen suits brought under the RCRA. These two cases require that Congress either expressly states that federal jurisdiction is exclusive or in some other affirmative way overcomes the strong presumption that jurisdiction is concurrent with state courts. This doctrine is an integral part of our system of federalism. The federal courts cannot create Congressional intent, if it is left unstated, by making an assumption that federal jurisdiction should be exclusive. Rather, the strong presumption is in favor of concurrent jurisdiction in the state courts. See Holmes Fin. Assocs. v. Resolution Trust Corp., 33 F.3d 561, 565 (6th Cir.1994) (holding that Congress must “affirmatively divest” the state courts of their “presumptive competence” to heai’ cases arising under federal law). In the instant case, we find that the citizen suit provision of the RCRA does not expressly provide for exclusive jurisdiction. As in the legislation scrutinized in Tafflin and Yellow Freight, Congress did not specifically deal with the question. We disagree with the analysis in Middlesex County Bd. of Chosen Freeholders v. New Jersey, 645 F.Supp. 715 (D.N.J.1986), in which the district court held that the enforcement provision of the RCRA creates exclusive jurisdiction in the federal courts. That provision provides that RCRA private suits “shall be brought in the district court for the district in which the alleged violation occurred or the alleged endangerment may occur.” 42 U.S.C. § 6972 (emphasis added). The Mid-dlesex court found that the term “shall” was mandatory, not discretionary. The court also found that the legislative history of the RCRA indicated that “Congress did not contemplate that RCRA suits would be brought in State courts.” Id. at 719. We disagree with that reasoning. In our view, the term “shall” as it is used in the statute does not affirmatively divest the state courts of their presumptive jurisdiction. In Yellow Freight, the Supreme Court rejected a similar argument made with respect to a provision in Title VII which states that “[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction under this subchapter.” Yellow Freight, 494 U.S. at 823, 110 S.Ct. 1566 (quoting 42 U.S.C. § 2000e-5(f)(3) (emphasis added)). The “shall have” language in that statute was not deemed to be sufficient evidence that Congress intended to divest the state courts of jurisdiction over those matters. In the same way, the “shall” language in the RCRA enforcement provision does not grant exclusive jurisdiction to the federal courts in suits brought pursuant thereto. The dissent is of the view that, even if jurisdiction is concurrent, Sun may not rely on a res judicata defense because it acquiesced in the claim-splitting. We disagree. Sun gave notice to the plaintiffs that it would rely on the defense of res judicata in its answer, which specifically states that Sun is relying upon the doctrine of res judicata as a defense. The district court relied upon that pleading and held the doctrine of res judica-ta applicable as a defense, and the court did not err in holding that the doctrine applies. Therefore, the proper application of the doctrine precludes this action in federal court. We conclude, moreover, that the defense was not waived in the district court. Having stated in its answer that “Plaintiffs’ claims are barred by the doctrine of res judicata,” defendant may rely on this defense and we find no error in the district court’s determination. We join with the dissent that ¶ 26 of the Restatement of Judgments adopted in Grava v. Parkman Township, 73 Ohio St.3d 379, 653 N.E.2d 226, 229 (1995), precludes claim-splitting except where “the parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant has acquiesced therein.” Sun did not agree to plaintiffs claim-splitting, and we cannot agree with the dissent that it acquiesced in this respect. Sun defended on the doctrines of both waiver and res judicata. We do not construe Matter of Super Van, Inc., 92 F.3d 366 (5th Cir.1996), to support plaintiffs position in this case. Super Van defendants did not plead res judicata, and defendants indicated to the bankruptcy court that they “preferred not to have the two action [one in state court and one in federal court] consolidated.” Id. at 371. By reason of this action, contrary to defendant’s posture in the instant case, defendants were deemed to have acquiesced in the plaintiffs claim-splitting. We believe, therefore, contrary to the dissent, that plaintiffs were not treated unjustly and that they had fair notice of the defendant’s claim of res judicata. We are mindful, as the dissent points out, that the defense of res judicata can mean several things. The district court relied on the “other action pending” facet of the res judicata doctrine in finding that this federal suit was barred. It is unfortunate that the district court did not earlier rule on the issue, at a time when the Davises could have had the opportunity to amend their state-court action to add the RCRA suit if they so desired. But we are of the view that Sun properly asserted the defense in its answer, and that the district court was warranted in addressing all aspects of the res judicata claim. Accordingly, we AFFIRM the denial of plaintiffs’ motion for summary judgment and the granting of defendant’s motion, and entry of judgment for the defendant. . The complaint in state court originally included a claims for violations of federal law, which were eliminated in an amended complaint. No specific statutory basis was stated for the federal allegations, and we do not know why the Davises dropped them from the lawsuit. . Although the judgment of the Ohio court did not settle as a matter of law the issue of RCRA liability, we hold that other facts and issues actually and necessarily litigated and determined by the Ohio court are precluded from relitigation, in accordance with Ohio’s law of issue preclusion. See Whitehead v. General Tel. Co., 20 Ohio St.2d 108, 254 N.E.2d 10, 13 (1969); overruled in part by Grava v. Parkman Township, 73 Ohio St.3d 379, 653 N.E.2d 226, 229 (1995); see also Hapgood v. City of Warren, 127 F.3d 490 (6th Cir.1997). . In Meghrig v. KFC Western, Inc., 516 U.S. 479, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996), the Supreme Court stated that, under § 6972(a)(1), "[a]n endangerment can only be imminent if it threatens to occur immediately.” Id. 116 S.Ct. at 1255 (internal quotations and citation to dictionary definition of "imminent” omitted). The Court made this observation in support of its holding that the citizen-suit provision of RCRA did not afford as a remedy the costs of a clean-up undertaken prior to the filing of the lawsuit; once a site is cleaned up, it can no longer present the threat that is a predicate for the action. It is not clear whether the Court intended to refute the reading of "imminence” contained in cases such as Dague: a looming threat of harm, but not necessarily a looming harm. . It would be possible to reformulate Sun's theory as a challenge to the Davises’ standing to bring their RCRA action — specifically, as an assertion that the Davises fail to meet the "remedial benefit” requirement of standing. See Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (plaintiff lacked standing to challenge city's zoning ordinance where unable to show that "he personally would benefit in a tangible way from the court’s intervention”); Linda R.S. v. Richard D., 410 U.S. 614, 618, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) (mother had no standing in suit to compel prosecution of father for failure to pay child support where successful action "would result only in the jailing of the child's father. The prospect that prosecution will ... result in payment of support can, at best, be termed only speculative."). See generally 13 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3531.6. Sun may not prevail on such a theory, however, because the Davises may benefit from the pressure placed on Sun to remedy the pollution by the daily-accruing penalties. Alternatively, Sun's argument could be viewed as expressing the facet of the mootness doctrine under which it may be held that ”[i]f full relief is accorded by another tribunal, a proceeding seeking the same relief is moot...." See 13A Wright & Miller § 3533.2 & n. 28 (citing cases). Where substantial civil penalties might be assessed against Sun, the case is clearly not moot. . The Davises do not argue that the statutory scheme of the RCRA would plainly be disrupted by the exercise of state-court jurisdiction. See Holmes, 33 F.3d at 569.

Davis v. Sun Oil Co.

BOGGS, Circuit Judge, concurring in part and dissenting in part. I concur in parts I and II of the court’s opinion in this case. I dissent from the holding in part III that Sun Oil’s general invocation of “res judicata” in its amended answer suffices to overcome Sun’s acquiescence in the maintenance by Davis of concurrent actions in state court and federal court. Section 24 of the Restatement of Judgments (2d) (1982), which articulates the rule against claim-splitting, provides that it is subject to the exceptions described in § 26. Consequently, when the Ohio Supreme Court “expressly adherefd] to the modern application of the doctrine of res judicata ” found in §§ 24-25, see Grava v. Parkman Township, 73 Ohio St.3d 379, 653 N.E.2d 226, 229 (1995), it also adopted § 26 of the Restatement, which provides, in pertinent part: EXCEPTIONS TO THE GENERAL RULE CONCERNING SPLITTING (1) When any of the following circumstances exists, the general rule of § 24 does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant: (a) The parties have agreed in terms or in effect that the plaintiff may split his claim, or the defendant' has acquiesced therein.... The accompanying comment states in part: A main purpose of the general rule stated in § 24 is to protect the defendant from being harassed by repetitive actions based on the same claim. The rule is thus not applicable where the defendant consents, in express words or otherwise, to the splitting of the claim____ Where the plaintiff is simultaneously maintaining separate actions based upon parts of the same claim, and in neither action does the defendant make the objection that another action is pending based on the same claim, judgment in one of the actions does not preclude the plaintiff from proceeding and obtaining judgment in the other action. The failure of the defendant to object to the splitting of the plaintiffs claim is effective as an acquiescence in the splitting of the claim. Sun filed an amended answer to the Davises’ RCRA suit on March 22, 1994, asserting, among other defenses, that “Plaintiff’s claims are barred by the doctrine of waiver,” and “Plaintiffs claims are barred by the doctrine of res judicata.” The question arises whether this was an objection, or a sufficient one, to the Davises’ claim-splitting. I conclude that it was not, and that Sun thereby in effect acquiesced in the bringing of the federal action. See, e.g., In re Super Van Inc., 92 F.3d 366, 371 (5th Cir.1996); Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 328 (9th Cir.1995); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1072-73 (3d Cir.1990); Calderon Rosado v. General Elec. Circuit Breakers, Inc., 805 F.2d 1085, 1087 (1st Cir.1986). Conceivably the mention of waiver suggests that the Davises waived their opportunity to bring the RCRA claim in state court, but that is a speculation never borne out in Sun’s briefs below. As for the defense of res judicata, it is true that claim-splitting falls under that broad heading. But Sun’s brief below suggests that by claiming this defense, it was not complaining of claim-splitting, but was advancing its theory of full remedies discussed above at 610-612. I note, too, the boiler-plate nature of Sun’s amended answer. Here it is useful to look to the rules pertaining to the pleading of affirmative defenses. I recognize, of course, that Fed R. Civ. P. 8(e) provides that “[n]o technical forms of pleadings or motions are required.” But requiring an affirmative defense to be stated in an intelligible manner is not a mere formalism. While the rule against splitting claims is essential to the repose to which defendants are ultimately entitled, it must be applied fairly to plaintiffs, as well. An essential aspect of that fairness is adequate notice of the nature of the affirmative defense. “Res judicata and collateral estoppel are affirmative defenses that must be pleaded---- The purpose of such pleadings is to give the opposing party notice of the plea of estoppel and a chance to argue, if he can, why the imposition of an estoppel would be inappropriate.” Blonder-Tongue Labs., Inc. v. University of Ill. Found,., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). “An affirmative defense may be pleaded in general terms and will be held to be sufficient, and therefore invulnerable to a motion to strike, as long as it gives plaintiff fair 'notice of the nature of the defense.” 5 Charles Alan Wright & Arthur R. Miller, 5 Federal Practice and Procedure § 1274 (emphasis added). “Rule 8(c), by requiring defendant to plead his defense or risk waiving it, also selves the purpose of giving the opposing party notice of the defense and an opportunity to argue why his claim should not be barred completely.” Id. at § 1270. “Another highly relevant consideration [as to whether a theory must be pleaded as an affirmative defense] is whether plaintiff will be taken by surprise by the assertion at trial of a defense not pleaded affirmatively by the defendant.” Id. at § 1271. “The requirement that affirmative defenses be specifically pleaded is based on notions of fair play. A party should not have to deal with an extraneous issue in a lawsuit unless it is specifically brought to his attention.... More important, what matters is not whether the magic words ‘affirmative defense’ appears in pleadings, but whether the Court and the parties were aware of the issues involved.” Baker v. City of Detroit, 483 F.Supp. 919, 921 (E.D.Mich.1979), aff'd on other grounds sub nom. Bratton v. City of Detroit, 704 F.2d 878, vacated on rehearing, 712 F.2d 222 (6th Cir.1983). In short, I do not think that Sun’s cloudy answer sufficed — if such was its intent at all — to put the Davises on fair notice that Sun objected to the Davises’ maintenance of separate state and federal actions. A useful comparison can be found in Diversified Foods, Inc. v. First Nat’l Bank of Boston, 985 F.2d 27, 29 (1st Cir.1993), where, in answering the complaint in the successive federal suit, the defendants “included as a defense the assertion that the borrowers ‘have improperly split their causes of action, having previously filed in another court another complaint arising out of the same transaction or series of transactions.’ ” The court held that defendants who had presented such a plain objection could hardly be found to have acquiesced in the split claim. The prejudice to the Davises is obvious. If they had perceived such an objection, then they could have repaired to state court before the entry of judgment, seeking to amend their complaint to include a RCRA count. Or they could have asked the district court to strike the defense, and mustered arguments at. that time in favor of exclusive federal jurisdiction. The difficulty for the Davises was compounded by the fact that no court, so far as I can tell, had ever held that RCRA cases could be brought in state court, and that numerous courts had either held or assumed that jurisdiction was exclusively federal. Nor do we find any report of a RCRA citizen action ever being brought in an Ohio court. The district court’s holding on this matter is at least plausible, but I cannot say that resolution of that question is sufficiently plain under Yellow Freightand Holmes to have put the Davises fairly on notice that they could bring the RCRA allegation in Ohio court. See Diversified Foods, 985 F.2d at 31 (recognizing that a good-faith belief in exclusive federal jurisdiction might excuse a failure to bring a federal claim as part of a previous state-court action, but rejecting that excuse where the belief in exclusive federal jurisdiction was “formed in the face of two circuit decisions to the contrary.”) Indeed, if the district court held strong views on this matter, it might have alerted the parties, or perhaps have asked them to brief the issue. As it was, for the year and a half prior to the state court judgment, the Davises’ federal and state claims were pending simultaneously. The district court requested and received periodic status reports. It was reasonable for the Davises to believe that, once the state court proceeding was over, they could proceed with their RCRA complaint in federal court. The record shows (and Sun confirmed at oral argument), that, other than the vague statements in its amended answer, Sun never voiced an objection to the Davises’ splitting of the claims. Thus, I would hold that the Davises’ RCRA suit was not barred by the application of Ohio’s rule against claim-splitting, and may proceed, I therefore respectfully dissent. . This court has had occasion to comment on the confusion caused by the use of the broad term "res judicata,” and to "express our hope that future litigants, in the interests of precision and clarity, will formulate arguments which refer solely to issue or claim preclusion and which refrain from using the predecessors of those terms, whose meanings have become so convoluted.” Barnes v. McDowell, 848 F.2d 725, 728 n. 5 (6th Cir.1988). . See Middlesex County Bd. of Chosen Freeholders v. New Jersey, 645 F.Supp. 715, 719 (D.N.J.1986); Jilot v. Colorado, 944 P.2d 566, 568-69 (Colo.App,1996)(unpublished pending appeal). A number of other courts have stated or assumed that RCRA jurisdiction is exclusively federal. Together, the effect of these cases is an emphatic consensus that RCRA jurisdiction is exclusively federal. Yet none of the cases apply with full rigor the analytic framework erected by the Supreme Court in the line of cases beginning with Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981) and culminating in Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). The Eighth Circuit has flatly stated that “RCRA places exclusive jurisdiction in federal courts for suits brought pursuant to section 6972(a)(1)....” Blue Legs v. Bureau of Indian Affairs, 867 F.2d 1094, 1098 (8th Cir.1989). Thus, it was not necessary, or even possible, to exhaust certain tribal remedies, as normally required. True, Blue Legs preceded by two years the stringent language of Yellow Freight noted by this court in Holmes. Nonetheless, since Yellow Freight, Blue Legs has repeatedly been cited as good law— though, again, generally without much jurisdictional analysis under Yellow Freight. See, e.g., Fletcher v. United States, 116 F.3d 1315, 1327 (10th Cir.1997); Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1502 (10th Cir.1997); Reservation Tel. Coop. v. Three Affiliated Tribes of the Fort Berthold Reservation, 76 F.3d 181, 185-86 (8th Cir.1996). Other courts have, without citing Blue Legs, reached the same conclusion. See White & Brewer Trucking, Inc. v. Donley, 952 F.Supp. 1306 (C.D.Ill.1997) (Burford abstention inappropriate when federal action in which abstention is sought contains RCRA claims, over which federal courts have exclusive jurisdiction).

United States v. CITGO Asphalt Ref. Co. (In re Frescati Shipping Co., Ltd.)

SMITH, Chief Judge. Table of Contents I. Introduction ...295 II. Background ...295 a. Facts ...295 b. Procedural History ...298 III. Jurisdiction and Standard of Review ...300 IV. The Safe Berth Warranty ...300 a. The Draft of the Athos I ...301 b. Frescati's Seamanship ...303 V. Wharfinger Negligence ...306 VI. Subrogation and Equitable Recoupment ...308 a. Subrogation and Subrogee-Specific Defenses ...309 b. Equitable Recoupment ...311 VII. Limitation of Liability under the Oil Pollution Act ...313 VIII. Prejudgment Interest Rate ...314 IX. Conclusion ...315 I. Introduction After a 1,900-mile journey from Venezuela to Paulsboro, New Jersey, the M/T Athos I , a single-hulled oil tanker, had come within 900 feet of its intended berth when it struck an abandoned anchor on the bottom of the Delaware River. The anchor pierced the Athos I 's hull, causing approximately 264,000 gallons of crude oil to spill into the river. The cost of cleaning up the spill was $143 million. We are presented with the question of how to apportion responsibility for that cost between three parties. The first party comprises not only the shipowner, Frescati Shipping Company, Ltd., but also the ship's manager, Tsakos Shipping & Trading, S.A. (collectively, "Frescati"). Frescati, through an intermediary, contracted to deliver crude oil to the second party, which is made up of several affiliated companies-CITGO Asphalt Refining Company, CITGO Petroleum Corporation, and CITGO East Coast Oil Corporation (collectively, "CARCO"). The oil shipment was to be delivered to CARCO at its marine terminal in Paulsboro. After the oil spill, Frescati paid for the cleanup effort, and was eventually reimbursed $88 million by the third party to this litigation, the United States, pursuant to the Oil Pollution Act (OPA) of 1990, 33 U.S.C. § 2701 et seq. Frescati and the United States now seek to recover their cleanup costs from CARCO. II. Background a. Facts The M/T Athos I was a single-hulled tanker ship, measuring approximately 748 feet long and 105 feet wide. As owner of the ship, Frescati chartered it to an intermediary which assigned it to a tanker pool. CARCO sub-chartered the Athos I from the tanker pool to deliver a shipment of crude oil from Puerto Miranda, Venezuela, to CARCO's berth in Paulsboro, New Jersey. CARCO was the shipping customer as well as the wharfinger who operated the berth. The Athos I , carrying CARCO's shipment, left Venezuela in mid-November 2004 under the command of the ship's master, Captain Iosif Markoutsis. CARCO had instructed the Athos I to load to a draft of 37 feet or less in Venezuela, and provided a warranty that the ship would be able to safely reach the berth in Paulsboro as long as it arrived with a draft of 37 feet or less. When the Athos I left Venezuela, it had a draft of 36' 6?. Over the course of the Athos I 's journey, the ship burned fuel and the crew consumed fresh water. As the ship grew lighter, it rode higher on the water. By the time it reached the entrance to the Delaware Bay, the Athos I was drawing 36' 4?. Because the fuel and fresh water were consumed from tanks located in the stern, or rear, of the ship, the Athos I was no longer sailing at an even keel; it was "trimmed by the bow," meaning that the bow, or front of the ship, was deeper in the water than the ship's stern. To return the ship to an even keel, the Athos I took on approximately 510 metric tons of ballast to tanks in the rear of the ship. Although the parties dispute how much the Athos I was drawing as it approached CARCO's berth, the District Court found that the added ballast brought the ship's draft to 36' 7?. The Athos I reached the entrance to the Delaware Bay without incident on November 26th. All vessels traveling north from the Delaware Bay to the Delaware River are required to use a Delaware River Pilot to navigate the waters. At the appropriate time, a local river pilot, Captain Howard Teal, Jr. boarded the ship and guided it up the Delaware River until it reached a section of the river near CARCO's berth. At that point, a local docking pilot, Captain Joseph Bethel, replaced Captain Teal and began to navigate the ship to its berth at Paulsboro. Captains Teal and Bethel both engaged Captain Markoutsis in conversations about the Athos I , its passage from the Delaware Bay to the Paulsboro berth, water depth, underkeel clearance, and other local conditions. The substance and sufficiency of those conversations are disputed by the parties. CARCO's berth is on the New Jersey side of the Delaware River, directly across from Philadelphia International Airport. To reach the berth from the main river channel, ships must pass through an anchorage immediately adjacent to the berth. The anchorage, known as Federal Anchorage Number 9 or the Mantua Creek Anchorage, is a federally-designated section of the river in which ships may anchor; it is periodically surveyed for depth and dredged by the Army Corps of Engineers, as Corps resources allow. No government agency is responsible for preemptively searching for unknown obstructions to navigation in the anchorage, although the Coast Guard, the National Oceanic and Atmospheric Administration (NOAA), and the Corps of Engineers work together to remove or mark obstructions when they are discovered. Anyone who wishes to search for obstructions in the anchorage may do so, but anyone wishing to dredge in the anchorage requires a permit from the Corps of Engineers. It was in this anchorage on November 26, 2004, at 9:02 p.m., that the allision occurred. The Athos I was only 900 feet-not much more than the ship's length-from CARCO's berth. The ship was "just about dead in the water" as Captain Bethel slowly positioned it to dock. Suddenly, the ship began to list and oil appeared in the river. At the time of the allision, the ship was in the middle of a 180° rotation, guided by tugboats, and moving astern and to port (backwards and to the ship's left). The path taken by the Athos I through the anchorage passed, at its shallowest point, over a 38-foot shoal. Most of the anchorage was deeper, and the depth of the river at the site of the allision was at least 41.65 feet at the time. Captain Bethel immediately called the Coast Guard to alert them to the spill, while Captain Markoutsis rushed to the engine room and transferred oil from the breached cargo tank into another tank. The crew of the Athos I was eventually able to stop the leak, but not before 264,321 gallons of crude oil had spilled into the Delaware River. The cleanup effort began almost immediately. Although it was ultimately successful, it took months to complete and the efforts of thousands of workers at a cost of $143 million. The cause of the allision was not discovered until more than a month later, when an abandoned anchor was discovered on the riverbed. The search for the obstruction that caused the allision proved difficult. An experienced sonar operator using side-scan sonar conducted the first search shortly after the allision, but did not recognize the anchor. A second search by the same operator, conducted several weeks later, eventually discovered the anchor with the use of side-scan sonar in combination with divers and magnetometers. The anchor weighed approximately nine tons and was 6' 8? long, 7' 3? wide, and 4' 6? high. It has since been removed from the river. The parties dispute the positioning of the anchor at the time of the allision. An anchor like the one that punctured the Athos I has two stable positions. It can sit at rest in the "flukes-up" or "flukes-down" position. A flukes-up anchor stands almost upright on its crown, with the flukes pointed upward at a 65° angle, while a flukes-down anchor has essentially tipped over, with both the crown and flukes of the anchor lying horizontally on the riverbed. In the flukes-up position, the anchor sticks up approximately seven feet above the riverbed, but in the flukes-down position, it rises only about 3' 5? above the riverbed. The District Court found that the anchor was flukes-up at the time of the allision, but CARCO asserts that the anchor was flukes-down, pointing to side-scan sonar data gathered as part of a geophysical study of the Delaware River that showed the anchor was flukes-down in 2001, three years before the allision. The anchor was also flukes-down when it was discovered after the allision. Between 2001 and the allision in 2004, 241 vessels went to CARCO's Paulsboro berth, and many others have anchored in the anchorage over the years. The District Court theorized that one of those anchored ships could have dragged its own anchor chain along the riverbed, catching on the abandoned anchor and shifting its position. The court ultimately concluded that although the actual cause of the anchor's movement would never be known, at some point between the geophysical study in 2001 and the allision in 2004, the anchor shifted from flukes-down to flukes-up. A flukes-down anchor would not have allided with the Athos I if the Athos I 's draft was less than 37 feet; a flukes-up anchor would have. Now, more than thirteen years after the allision, the Athos I has been scrapped, the anchor removed from the river, and the oil spill cleaned up. What remains is this case for apportionment of cleanup costs. b. Procedural History This case, like the Athos I , has been on a long journey. Over the past thirteen years, the matter has been to trial before two different judges and heard on appeal before two separate panels of this Court. We briefly summarize that history. Litigation began shortly after the allision in January, 2005, when Frescati filed a "Petition for Exoneration from or Limitation of Liability." CARCO and others filed claims for damages associated with the spill. Frescati then filed a counterclaim against CARCO for its damages. The United States eventually reimbursed Frescati for some of its cleanup expenses pursuant to the OPA, and filed suit against CARCO as a partial subrogee to some of Frescati's claims. The claims of Frescati and the United States against CARCO were consolidated with CARCO's counterclaims and defenses, forming the litigation as it exists today. The case was first tried in a forty-one-day bench trial before the Honorable John P. Fullam. Judge Fullam found that CARCO was not liable for the casualty in contract, tort, or otherwise; Frescati and the United States appealed. On appeal, we affirmed in part, vacated in part, and remanded the case because the District Court had failed to make appropriate findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a)(1). In re Frescati , 718 F.3d 184, 189, 196-97 (3d Cir. 2013). We determined, among other things, that Frescati was a third-party beneficiary of CARCO's safe berth warranty, and that the allision occurred in the approach to CARCO's terminal, meaning that CARCO had an unspecified duty of care to Frescati in tort. We remanded for the District Court to determine whether Frescati met the conditions for the safe berth warranty to apply. We also asked the District Court, if necessary, to determine the appropriate duty of care CARCO owed Frescati and whether CARCO breached that duty. 718 F.3d at 214-15. Judge Fullam retired before the case was remanded. Upon its return to the District Court, the case was assigned to the Honorable Joel H. Slomsky as a successor judge pursuant to Fed. R. Civ. P. 63. Under the terms of that rule, Judge Slomsky certified his familiarity with the record and recalled more than twenty witnesses over the course of a thirty-one-day proceeding. The District Court held that CARCO was liable to Frescati, and the United States as Frescati's subrogee, for breach of contract. CARCO's contract included a provision known as a safe berth warranty, which, for purposes of this appeal, warrantied that CARCO's berth would be safe for the Athos I as long as the ship had a draft of 37 feet or less and Frescati did not cause the allision through bad navigation or negligent seamanship. The District Court concluded that CARCO breached the warranty because the Athos I had a draft of 36' 7? at the time of the allision, exercised good navigation and seamanship, and yet still hit an anchor within the geographic area covered by the warranty. On appeal, CARCO argues that the Athos I had a draft much deeper than the warrantied depth of 37 feet, and that Frescati demonstrated negligent seamanship by violating several federal maritime regulations relating to underkeel clearance and safe navigation. The District Court also found CARCO liable in tort to Frescati, concluding that CARCO had a duty, as operator of the berth, to search for obstructions in the approach to its berth. Specifically, the District Court concluded that CARCO had a duty to use side-scan sonar to search for unknown obstructions to navigation in the approach to its berth, and to remove any such obstructions or warn invited ships-like the Athos I -of their presence. Because CARCO had not taken any action to search for obstructions, the District Court held CARCO liable in tort-for the same amount for which it was liable in contract. The District Court's contract and tort holdings independently support the judgment for Frescati. CARCO, in a motion for partial summary judgment before the District Court, asked that its liability, like Frescati's, be limited under the OPA. Because CARCO did not raise the defense until after the first trial and appeal, almost a decade into this litigation, the District Court held that the defense was waived, and in the alternative, that it failed on the merits. The District Court did, however, partially credit CARCO's equitable recoupment defense against the United States. CARCO argued that the conduct of three federal agencies-the Coast Guard, NOAA, and the Army Corps of Engineers-misled CARCO into believing that the United States was maintaining the anchorage free of obstructions. In addition, CARCO argued that equity requires the United States to bear the cost of the cleanup rather than CARCO. The District Court ultimately reduced the United States' recovery against CARCO by 50%, rather than acceding to CARCO's request to eliminate its liability entirely. Finally, the District Court held that Frescati was entitled to prejudgment interest at the federal postjudgment rate rather than the higher U.S. prime rate requested by Frescati. The District Court ultimately awarded Frescati $55,497,375.95 on the claims of breach of contract and negligence, plus prejudgment interest of $16,010,773.75, for a total judgment of $71,508,149.70. The United States, after the court's 50% reduction, was awarded $43,994,578.66 on its subrogated breach of contract claim, with prejudgment interest of $4,620,159.98, for a total judgment of $48,614,738.64. All three parties now appeal. We will affirm the District Court's judgment in favor of Frescati on the breach of contract claim and the prejudgment interest award, as well as the District Court's denial of CARCO's motion for partial summary judgment on its limitation of liability defense. We will vacate the District Court's judgment in favor of Frescati on the negligence claim. We will affirm in part the District Court's judgment in favor of the United States with respect to CARCO's liability on the subrogated breach of contract claim, but because CARCO's equitable recoupment defense fails, we will reverse and remand for further proceedings to recalculate damages and prejudgment interest. III. Jurisdiction and Standard of Review The District Court had admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1). We have jurisdiction over this appeal under 28 U.S.C. § 1291. "On appeal from a bench trial, we review a district court's findings of facts for clear error and exercise plenary review over conclusions of law." Norfolk S. Ry. Co. v. Pittsburgh & W. Va. R.R. , 870 F.3d 244, 253 (3d Cir. 2017). "A finding of fact is clearly erroneous when it is completely devoid of minimum evidentiary support displaying some hue of credibility or bears no rational relationship to the supportive evidentiary data." VICI Racing, LLC v. T-Mobile USA, Inc. , 763 F.3d 273, 283 (3d Cir. 2014) ; In re Frescati , 718 F.3d at 196. IV. The Safe Berth Warranty CARCO promised that the Athos I would be directed to a location "she may safely get (always afloat)," a promise known as a safe port or safe berth warranty. JA at 1211. Such a promise provides, among other things, "protection against damages to a ship incurred in an unsafe port to which the warranty applies." In re Frescati , 718 F.3d at 197. A port is deemed safe where the particular chartered vessel can proceed to it, use it, and depart from it without, in the absence of abnormal weather or other occurrences, being exposed to dangers which cannot be avoided by good navigation and seamanship. Whether a port is safe refers to the particular ship at issue, and goes beyond the immediate area of the port itself to the adjacent areas the vessel must traverse to either enter or leave. In other words, a port is unsafe-and in violation of the safe berth warranty-where the named ship cannot reach it without harm (absent abnormal conditions or those not avoidable by adequate navigation and seamanship). Id. at 200 (quotations and citations omitted). "[T]he safe berth warranty is an express assurance made without regard to the amount of diligence taken by the charterer." Id. at 203. For our purposes, a safe berth warranty promises that a ship with a draft less than the warrantied depth is covered by the warranty in the absence of bad navigation or negligent seamanship. Our prior opinion called for the District Court to resolve three issues on remand: the draft limit beyond which the safe berth warranty would not apply; the actual draft of the Athos I at the time of the allision; and whether the warranty was negated by bad navigation or negligent seamanship. Id. at 204-05, 204 n.20. As an initial matter, the District Court found that the safe berth warranty applied to ships drawing less than 37 feet, a finding neither party challenges on appeal. The remaining issues, then, are whether the Athos I had a draft of less than 37 feet, and if it did, whether bad navigation or negligent seamanship by Frescati negated the warranty. a. The Draft of the Athos I The District Court found that the Athos I had a draft of 36' 7? at the time of the allision. The court based this finding on the undisputed draft of the Athos I at the time of its departure from Puerto Miranda-36' 6?-as well as expert testimony regarding the condition of the ship and its estimated draft at Paulsboro. CARCO challenges the District Court's determination of the Athos I 's draft, arguing that the District Court improperly based its finding on a speculative assumption about the orientation of the abandoned anchor. Specifically, CARCO disputes the District Court's finding that the anchor shifted from a flukes-down position to a flukes-up position sometime between 2001 and the allision in 2004, a shift that caused the anchor to intrude within the 37-foot safe depth promised by CARCO. CARCO argues that the District Court failed to make a finding as to the precise mechanism by which the anchor shifted from flukes-down to flukes-up. The anchor's orientation matters; if the accident occurred while the anchor was flukes-down, the Athos I necessarily would have had a draft that exceeded the scope of CARCO's warranty. Broadly speaking, the District Court made three findings of fact related to the anchor's orientation. First, the court and parties agree that, three years before the allision, the anchor was in the flukes-down position. Second, the District Court found that at some point before the allision, the anchor shifted into the flukes-up position. Finally, after the allision, the anchor was eventually discovered back in the flukes-down position-perhaps unsurprising, given the force of its encounter with the Athos I . CARCO attacks the second finding, arguing that there was insufficient evidence in the record to support the District Court's suggestion that a "sweeping anchor chain" could have caught the anchor and shifted it into the flukes-up position. We find CARCO's arguments unconvincing, primarily because the "sweeping anchor chain" theory, however plausible or implausible, is not necessary to sustain the District Court's finding. Let us imagine a piece of furniture (a sofa, perhaps, or an armchair) that has fallen off the back of a pickup truck onto a roadway. One driver reports seeing the furniture in the right lane. A while later, a second driver hits the furniture. The second driver asserts that the furniture was in the left lane when he struck it, and provides evidence to that effect. A highway patrolman shows up later and finds the furniture once again in the right lane. A court may find, without committing error, that the furniture was in the right lane and moved to the left without making a specific finding as to the precise method by which the furniture moved from one lane to the other. Perhaps another driver hit it; perhaps a pedestrian tried to move it out of the road but did not finish the job. When credible evidence shows that the second driver was driving in the left lane, a finding to that effect does not become error because the furniture was in the right lane when the first driver passed, or changed position after-or because of-the encounter with the second driver. Here, the record contains sufficient evidence to support the finding that the anchor was, in fact, flukes-up at the time of the allision. How exactly the anchor changed position does not impact our sufficiency determination. As an initial matter, the movement of the Athos I at the time of the allision and the damage to its hull are sufficient to show that the anchor was flukes-up. And substantial evidence unrelated to the anchor showed that the Athos I was drawing 36' 7? at the time of the allision-a draft at which the allision would not have occurred had the anchor been flukes-down. That is enough to support the District Court's finding that the anchor moved from flukes-down to flukes-up. The movement of the ship and damage to its hull shows that the anchor must have been flukes-up. The District Court found that the Athos I was moving astern and to port at the time of the allision, a finding CARCO does not challenge. Based on that movement, the scoring left by the anchor on the hull, the size and shape of the two holes the anchor created, and the damage to the anchor itself also supported the District Court's finding that the anchor must have been flukes-up at the time of the allision. CARCO's own expert witness, on cross-examination, testified that if the Athos I were moving astern and to port, the damage to the Athos I 's hull would necessarily require a flukes-up anchor. JA at 1021-22. Nor did the District Court base its finding of a 36' 7? draft on the flukes-up anchor alone. While CARCO argues that the anchor was flukes-down, and that therefore the Athos I must have had a deep draft, the reverse is also true. If the Athos I had a draft of 36' 7?, then the anchor must have been flukes-up. The District Court credited expert testimony that the ship had a 36' 7? draft. The ballast tanks contained no extra liquid that would have affected the ship's draft, a finding that CARCO does not challenge on appeal. The ship left Puerto Miranda with a draft of 36' 6?. Visual observation of the ship by experts and crewmembers immediately after the allision suggested the Athos I had a 36' 7? draft before the allision. And, on appeal, CARCO fails to offer any suggestion as to how the draft might have increased by more than a foot without the crew's knowledge or any evidence that the ballast tanks were faulty. We conclude there was no clear error in the District Court's determination that the Athos I had a draft of 36' 7? at the time of the allision. The ship was, therefore, within the scope of CARCO's safe berth warranty. b. Frescati's Seamanship A safe berth warranty applies only in the absence of bad navigation or negligent seamanship. CARCO argues on appeal that Frescati violated several maritime regulations related to the operation of single-hulled tankers, and that those regulatory violations serve as sufficient proof of negligent seamanship. The District Court concluded that Frescati did not violate any relevant regulations, and enforced the safe berth warranty. We agree with the District Court that Frescati did not violate any relevant regulations. On appeal, CARCO argues specifically that Frescati violated two federal regulations: 33 C.F.R. § 157.455 and 33 C.F.R. § 164.11. Section 157.455 applied to certain single-hulled tankers during the period they were being phased out of operation, while § 164.11 applies to certain ships above 1,600 gross tons. 33 C.F.R. §§ 157.400, 164.01. Both sections applied to the Athos I at the time of the allision. Section 157.455 requires the owner or operator of a single-hulled tanker to provide certain written guidance to the ship's master for purposes of estimating the tanker's underkeel clearance. 33 C.F.R. § 157.455(a). It also requires the master to use that guidance to plan the ship's passage, estimate the underkeel clearance, consult with the relevant pilots who will guide the ship to its berth, and make a log entry reflecting discussion of the ship's underkeel clearance with the pilot. 33 C.F.R. § 157.455(b). Section 164.11 mandates that the master ensure the pilot is informed of certain information, including the ship's draft and tidal conditions. 33 C.F.R. § 164.11. CARCO argues that Frescati was responsible for three specific violations, each of which allegedly caused the allision. First, CARCO claims that Frescati failed to adequately plan the ship's passage. Second, CARCO claims that Frescati failed to estimate the Athos I 's underkeel clearance. Finally, CARCO claims that Frescati failed to ensure that an adequate master-pilot exchange occurred, and made no log entry that would reflect such an exchange. With respect to planning the passage, CARCO argues that 33 C.F.R. § 157.455 requires a written voyage plan. Frescati allegedly violated that requirement by failing to finalize an official voyage plan document using the Tsakos Voyage Plan form contained in the Tsakos Vessel Operation Procedures Manual. See JA at 1178-85. The text of § 157.455 undermines CARCO's argument. The regulation does not itself require a written voyage plan. Paragraph (a) of the regulation requires that Frescati create "written under-keel clearance guidance," which must contain "factors to consider" when evaluating draft, water depth, and weather conditions. Paragraph (b) requires that the master plan the ship's passage using those "factors to consider" in the guidance required by paragraph (a). Nowhere does this regulation require that the master's passage plan be in writing; the only reference to a writing in paragraph (b) comes in the requirement that some official log of the master-pilot conference be recorded. CARCO conflates the passage plan requirement of paragraph (b)-to consider certain relevant factors when planning-with the "Voyage Plan" form contained in Frescati's Vessel Operation Procedures Manual. See JA at 1180. The Voyage Plan form focuses on plotting the course of the vessel from berth to berth; paragraphs (a) and (b) of the regulation, on the other hand, serve to create a reference list for the ship's master of relevant factors to consider when estimating underkeel clearance. Frescati satisfied the requirements of paragraph (a) by providing written underkeel clearance guidance in Section 3.4 of its Vessel Operation Procedures Manual. JA at 1191. The Manual appropriately lists factors to consider, including "sea state and swell," "tidal conditions," and "the effect of squat," and suggests to the master that 10% or 5% underkeel clearance margins would typically be appropriate. Id. Furthermore, Frescati satisfied the planning requirement of paragraph (b) because the Athos I 's master, Captain Markoutsis, considered factors like the sea state, tidal condition, and the effect of squat. Even though CARCO provided a safe berth warranty for a draft up to 37 feet, Captain Markoutsis loaded the ship to only 36' 6? because he was "afraid" of a 37-foot draft, and eventually entered the Delaware River with a draft of 36' 7?. In re Frescati , 718 F.3d at 204. The charts in the Athos I were marked with the 38-foot controlling draft in the anchorage. JA at 992. Captain Teal, the river pilot, testified that he and Captain Markoutsis discussed the draft, wind, visibility, and tides. We agree with the District Court that Frescati fully complied with the planning requirement of § 157.455(b) -that is, to use the factors listed in the Vessel Operating Procedures Manual when planning the passage. CARCO's second argument is that Frescati violated § 157.455(b) because Captain Markoutsis failed to estimate the Athos I 's underkeel clearance. The District Court did not err in finding that Captain Markoutsis had estimated underkeel clearance. Captain Markoutsis discussed the draft, tidal conditions, and anticipated underkeel clearance with Captain Teal. JA at 801-802. They estimated that the ship would have at least 1.5 meters' clearance-nearly five feet. Id. Captains Bethel and Markoutsis also discussed the draft and believed they would have sufficient clearance. JA at 833, 837. CARCO highlights that there is no evidence of written underkeel clearance estimates, but § 157.455 does not require written estimates. Finally, CARCO argues that the master-pilot exchange required by § 157.455 and § 164.11 was inadequate. In general, master-pilot exchanges are intended to allow the master to share the navigational characteristics of his ship with the pilot who will be guiding it, and for the pilot to share local conditions such as weather, depth, and the tide with the master. Section 157.455(b) requires that "[t]he tankship master and the pilot shall discuss the ship's planned transit including the anticipated under-keel clearance. An entry must be made in the tankship's official log or in other onboard documentation reflecting discussion of the ship's anticipated passage." 33 C.F.R. § 157.455(b). Section 164.11 requires that the master ensure that [i]f a pilot other than a member of the vessel's crew is employed, the pilot is informed of the draft, maneuvering characteristics, and peculiarities of the vessel and of any abnormal circumstances on the vessel that may affect its safe navigation. ... [and that the] [t]idal state for the area to be transited is known by the person directing movement of the vessel. 33 C.F.R. § 164.11(k), (n). Captain Markoutsis was responsible for discussing the draft, underkeel clearance, maneuvering characteristics, and tidal state with the two pilots who guided the Athos I . The testimony shows that Captain Markoutsis did so, discussing all the relevant information with both pilots, and that he recorded the conversation on the signed Pilot Card, which served as sufficient documentation of the master-pilot conference. The District Court additionally credited Frescati's expert witness, Captain Betz, who observed both Captain Teal and Captain Bethel testify. Captain Betz opined that the master-pilot exchanges were adequate and customary in all respects. Frescati operated the Athos I with neither bad navigation nor negligent seamanship. Nevertheless, the allision occurred. The District Court did not err in concluding that the allision resulted from a breach of CARCO's safe berth warranty. V. Wharfinger Negligence CARCO wore two hats in its dealings with Frescati, as a shipping customer and as a wharfinger. These dual roles exposed CARCO to liability under two independent legal theories. CARCO's first role, as a shipping customer that contracted with Frescati for delivery of a shipment of crude oil, resulted in CARCO's liability under the contractual safe berth warranty, discussed above. The second, as the wharfinger for the Paulsboro berth that was the Athos I 's intended destination, resulted in the District Court's finding of negligence and CARCO's corresponding liability in tort. Both theories of liability independently support the District Court's judgment against CARCO. As a result, our decision to affirm the judgment based on CARCO's contractual liability means that we are not required to delve into the District Court's tort analysis. However, having reviewed that analysis, we harbor serious doubts about the appropriateness of the court's proposed duty of care. For that reason, we are compelled to make clear that we will affirm the District Court's judgment based solely on CARCO's breach of contract. A wharfinger's duty is more limited than that of a shipping customer who has provided a safe berth warranty. As we previously wrote: In the tort context, ... a wharfinger is not a guarantor of a visiting ship's safety, but is bound to use reasonable diligence in ascertaining whether the berths themselves and the approaches to them are in an ordinary condition of safety for vessels coming to and lying at the wharf. This is not an unconstrained mandate to ensure safe surroundings or warn of hazards merely in the vicinity. Instead, a visiting ship may only expect that the owner of a wharf has afforded it a safe approach. In being invited to dock at a particular port, a vessel should be able to enter, use and exit a wharfinger's dock facilities without being exposed to dangers that cannot be avoided by reasonably prudent navigation and seamanship. In re Frescati , 718 F.3d at 207 (quotations and citations omitted). In short, and as a general matter, a wharfinger's duty is to use reasonable diligence to ascertain whether the approach to its berth is safe for an invited vessel. We remanded for the District Court to determine in the first instance what reasonable diligence required of CARCO under the circumstances of this case, and whether CARCO breached that standard. Id. On remand, the District Court concluded that a reasonably prudent terminal operator should periodically scan the approach to its dock for hazards to navigation as long as ships are being invited there. In this case, the standard would require that side-scan sonar be used to search the approach for obstructions that are potential hazards to navigation. If an obstruction is located, a terminal operator is then required to remove it, and if the terminal operator cannot remove it, notice of the hazard must be given to incoming ships by marking it as a hazard and/or warning ships of its presence. JA at 132. Because CARCO did nothing to look for obstructions, the District Court held that it had breached its duty. The District Court chose its standard by determining what the "demands of reasonableness and prudence" required. JA at 129. Citing Judge Learned Hand's famous formula from United States v. Carroll Towing , 159 F.2d 169 (2d Cir. 1947), the court concluded that the precaution of a preemptive side-scan sonar search would be less burdensome than the probability of an allision multiplied by the serious harm caused by a spill of toxic substances like crude oil. We have doubts about the District Court's balancing of the cost of preventative measures on one hand and the cost of potential accidents on the other. The court found that a general scan of the approach to CARCO's berth and the berth itself would have cost between $7,500 and $11,000, and would have prevented the allision. Yet in this very case, the targeted scan of the area where the allision occurred, conducted only eight days after the allision, did not identify the anchor. The first set of 93 side-scan sonar passes conducted by Frescati's expert, John Fish-at a cost of $38,577-identified a pump casing on the river bottom. The anchor, however, went unrecognized. We do not share the District Court's confidence that a general $11,000 scan of the approach and berth would have "recognized" the anchor with sufficient clarity to prevent the allision, given that a targeted $38,000 scan for obstructions failed to do so. Beyond the questionable utility of side-scan sonar as applied to this case, we doubt whether imposing a specific duty to require side-scan sonar would be useful for wharfingers in the ordinary course of their business. Single-hulled vessels like the Athos I present unique risks, and have been treated with special care by regulators. See, e.g. , 33 C.F.R. § 157.455. Today, as a result of those unique risks, such vessels are no longer permitted to operate in the waters of the United States. See 46 U.S.C. § 3703a (banning single-hulled oil tankers in the waters of the United States after January 1, 2015). Furthermore, side-scan sonar is not the only method available to detect and recognize obstructions, as the District Court pointed out. Even if we were to accept the court's balancing of cost, risk, and the magnitude of the potential harm, the high standard set forth in this case-involving a risky single-hulled vessel-would not necessarily apply to future cases, which will necessarily involve only double-hulled vessels. We are not unsympathetic to the position in which we placed the District Court by asking it to specify the duty of care at play in this case. The District Court has conscientiously complied. And we stand by our previous holding that CARCO had some duty to use reasonable diligence to provide the Athos I with a safe approach to its berth-a duty it may or may not have breached. In re Frescati , 718 F.3d at 211. Nevertheless, given CARCO's independent liability in contract and our decision to affirm on that basis, we will once again decline to outline precisely what CARCO's duty of reasonable diligence entailed. VI. Subrogation and Equitable Recoupment This litigation does not implicate the interests of only Frescati and CARCO. The United States reimbursed Frescati for $88 million in cleanup expenses above the liability limit established by the OPA. Consequently, the United States became subrogated to Frescati's claims, and joined the fray by filing suit against CARCO in 2008. Frescati initially paid for the oil spill cleanup costs as a "responsible party" under the OPA. See 33 U.S.C. § 2702(a). The OPA allows a responsible party like Frescati to limit its liability to a specified sum; any cleanup costs above that amount are reimbursed out of the Oil Spill Liability Trust Fund. See 33 U.S.C. § 2704. Under this scheme, Frescati's liability for the cost of the oil spill cleanup was limited to approximately $45 million. The Trust Fund reimbursed Frescati for its remaining cleanup costs, which totaled approximately $88 million. The United States then became statutorily "subrogated to all rights, claims, and causes of action that the claimant [Frescati] has under any other law." 33 U.S.C. § 2715(a). The United States pursued these claims against CARCO as a "person who is liable, pursuant to any law, to the compensated claimant [Frescati] or to the Fund, for the cost or damages for which the compensation was paid." 33 U.S.C. § 2715(c). Pursuant to the partial settlement agreement, the United States limited itself to the same contractual claims Frescati asserted. Because CARCO was liable to Frescati in contract, it was also liable to the United States for the amount the Trust Fund had reimbursed Frescati: nearly $88 million. But CARCO asserted a defense against the United States it did not assert against Frescati-equitable recoupment-and in response, the District Court reduced the United States' judgment by 50%. Both CARCO and the United States appealed. CARCO argues that the District Court erred by not eliminating the United States' recovery, while the United States argues that the District Court should have left the contract judgment untouched and denied CARCO any equitable remedy. We conclude that the District Court erred by reducing the United States' judgment by 50%. The United States is entitled to a full recovery. a. Subrogation and Subrogee-Specific Defenses As an initial matter, we note that the dispute between CARCO and the United States presents an unusual question about the nature of subrogation. Subrogation itself is not unusual; in general terms, it "simply means substitution of one person for another; that is, one person is allowed to stand in the shoes of another and assert that person's rights against a third party." US Airways v. McCutchen , 569 U.S. 88, 97 n.5, 133 S.Ct. 1537, 185 L.Ed.2d 654 (2013). Most often, it arises in the insurance context as a procedural mechanism to allow an insurer (the subrogee) to step into the shoes of its insured (the subrogor) after it has compensated the insured for harm caused by a third party. The subrogee, having stepped into the shoes of the subrogor, is entitled to assert all of the subrogor's rights and claims against the responsible third party. Likewise, the third party-now defending an action brought by the subrogee-is entitled to assert every defense it otherwise could have raised against the subrogor. In that vein, the third party's liability to a subrogee cannot be greater than it would have been to the subrogor. Restatement (Third) of Restitution & Unjust Enrichment § 24. All that is unexceptional. The unusual question presented here is whether a third party may assert a defense against a subrogee that it could not assert against the subrogor. As we discussed above, CARCO is liable to Frescati, the subrogor, in contract. Consequently, CARCO is liable to the United States, the subrogee, under that very same contract. But CARCO wishes to assert a defense against the United States-namely, that equitable recoupment requires the United States to bear the loss rather than CARCO because of the allegedly misleading conduct of three federal agencies-that it could not assert against Frescati. The United States makes a related argument. Its position is that the equitable recoupment defense, predicated as it is on the conduct of federal agencies rather than the contractual relationship between Frescati and the United States, violates the statutory subrogation provision of the OPA. Specifically, the United States argues that it is entitled to "all [of Frescati's] rights, claims, and causes of action" under the OPA. 33 U.S.C. § 2715(a). Frescati's contractual right is not limited by CARCO's claims against the Coast Guard, NOAA, and the Army Corps of Engineers; the United States asserting Frescati's contractual right should also not be so limited, and to do otherwise would infringe on the United States' statutory entitlement. When Frescati has the right to a full recovery under its contract, the argument goes, so does the United States. We agree. CARCO may only assert defenses against the United States' subrogated claims which it could have asserted against Frescati-including any equitable recoupment defense it could have asserted against Frescati. In its capacity as a subrogee, the United States should be subject to the same treatment as Frescati. Just as the United States, as subrogee, may only assert Frescati's claims, CARCO, as defendant, is not entitled to extra defenses because the United States asserts Frescati's claims rather than Frescati itself. Of course, no party is exempt from the Federal Rules of Civil Procedure. The United States is subject to the ordinary procedural rules governing counterclaims and third-party complaints, and the OPA does not bar CARCO from asserting whatever claims it has against the United States using those recognized procedural mechanisms where appropriate. In this case, the only claim asserted by the United States is Frescati's contract claim. In re Frescati , 718 F.3d at 189 ; JA at 390. It follows that CARCO's equitable recoupment defense must be directed toward the United States' contract claim. See 718 F.3d at 214 (declining to preclude CARCO from raising "equitable defense[s] to the Government's subrogation claims"). If CARCO had other cognizable claims against the three federal agencies involved in regulating the Delaware River and the anchorage, sounding in tort or otherwise, it was free to assert them in a third-party complaint or counterclaim, just as the United States was free to pursue other claims against CARCO. In that light, we proceed to analyze CARCO's equitable recoupment defense as it applies to the United States' contractual rights. b. Equitable Recoupment Equitable recoupment is a "principle that diminishes a party's right to recover a debt to the extent that the party holds money or property of the debtor to which the party has no right." In re Frescati , 718 F.3d at 214 n.35. For an equitable recoupment defense to succeed, the defendant must possess a claim against the plaintiff arising from the same transaction or occurrence as the plaintiff's suit, seeking relief of the same kind as that sought by the plaintiff, in an amount no greater than that sought by the plaintiff. See Livera v. First Nat'l State Bank of New Jersey , 879 F.2d 1186, 1195 (3d Cir. 1989). CARCO's equitable recoupment defense faces at least two serious obstacles. As an initial matter, the United States questions whether CARCO possesses a "claim" against it, rather than a generalized request for the court to balance the equities. Second, the United States questions whether CARCO seeks relief of the same kind as the United States. On both points, CARCO fails to meet its burden. CARCO's claim, such as it is, appears to be that the equities favor CARCO, and require the United States to bear the cost of the spill. CARCO argues that the United States, through the Coast Guard, NOAA, and the Army Corps of Engineers, had responsibility for maintaining the anchorage where the allision occurred free of obstructions. In the alternative, if the agencies were not responsible to preemptively search for obstructions, CARCO argues they should have more explicitly made clear that they were not conducting such searches. CARCO asserts that it reasonably believed, based on the agencies' conduct, that the agencies were maintaining the anchorage free of obstructions. Additionally, CARCO argues that equity requires the Oil Spill Liability Trust Fund to bear the cost of the cleanup rather than CARCO. Equitable recoupment requires more than just a request to balance the equities. CARCO points out that although equitable recoupment most often arises in the context of offsetting monetary claims, as in tax or bankruptcy cases, it is not necessarily limited to those situations. See, e.g. , Oneida Indian Nation of New York v.New York , 194 F.Supp.2d 104, 136-37 (N.D.N.Y. 2002) (allowing an equitable recoupment defense in the context of offsetting requests for declaratory judgments in a land rights case). But CARCO still must assert some cognizable claim, rather than simply a request for the Court to reduce the United States' damages in the interest of equity. Here, CARCO has failed to do so. Neither does CARCO seek the same kind of relief as the United States. The United States seeks contractual relief, to which it is entitled by operation of statute. See 33 U.S.C. § 2715. CARCO, by contrast, seeks equitable relief, or (on another reading) essentially tort-based relief grounded in misrepresentation by the agencies. The mismatched relief sought by CARCO and the United States does not support CARCO's equitable recoupment defense. The requirement that a defendant seek the same kind of relief as has been sought in the plaintiff's claim is a fundamental requisite for recoupment. The defense is not intended to be a catch-all to allow any claims otherwise barred by time, settlement, or statute to be heard as equity seems to require. Equitable recoupment is intended to allow only truly similar claims arising from the same transaction to offset one another in the interest of equity between the parties. As noted, equitable recoupment is well-suited for disputes in which two claims arise out of the same taxable event or the same contractual obligation, as often seen in tax or bankruptcy cases. When, as here, the plaintiff seeks relief on a contract, the defendant may not resort to equitable recoupment as a means to assert a non-contractual claim, whether sounding in an equitable-balancing analysis, in tort, or otherwise. CARCO has failed to meet its burden of establishing an equitable recoupment defense. It is liable to the United States in full. VII. Limitation of Liability under the Oil Pollution Act CARCO argues that a provision of the OPA, 33 U.S.C. § 2702(d)(2)(B), limits its liability in this case to the same extent to which Frescati's liability was limited-approximately $45 million. Because CARCO did not raise this defense with the requisite clarity until nearly ten years after this litigation began, the District Court concluded that CARCO waived it. We agree that the defense was waived. A District Court's holding that an affirmative defense has been waived is reviewed for abuse of discretion. Cetel v. Kirwan Financial Group, Inc. , 460 F.3d 494, 506 (3d Cir. 2006). Waiver is appropriate if the party raising the defense did not do so at a "pragmatically sufficient time" and if the opposing party would be prejudiced if the defense were allowed. Charpentier v. Godsil , 937 F.2d 859, 864 (3d Cir. 1991). Whether CARCO raised its defense at a pragmatically sufficient time requires us to determine when CARCO first raised the § 2702(d)(2)(B) defense. CARCO argues that it first raised the limitation defense in its 2005 answer to Frescati's Amended Counterclaim by referring to the OPA. The District Court concluded that CARCO's answer contained nothing that would have put Frescati or the United States on notice that CARCO planned to rely on a limitation of liability defense. In general, "[a]n affirmative defense ... 'need not be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of [ Fed. R. Civ. P. 8 ] by its bare assertion.' " Moody v. Atl. City Bd. of Educ. , 870 F.3d 206, 218 (3d Cir. 2017) (quoting Zotos v. Lindbergh Sch. Dist. , 121 F.3d 356, 361 (8th Cir. 1997) ). Nevertheless, the party asserting the defense must actually do so, and in a way that gives fair notice of that defense. CARCO relies on the averment listed as its "Seventh Separate Defense," which reads simply: "The claims and causes of action set forth in the plaintiffs' Amended Counterclaim are barred in whole or in part by the provisions of the Oil Pollution Act of 1990, 33 U.S.C. § 2701, et seq." JA at 355. Noticeably absent from this general averment is any specific citation to the limitation of liability defense or even a description of the nature of the defense. This is significant, because the OPA includes a number of potential affirmative defenses. See, e.g. , 33 U.S.C. § 2702(b) (limiting scope of damages for which the OPA imposes liability); § 2702(c) (excluding certain oil spills from OPA liability); § 2702(d)(1)(A) (shifting liability under the OPA to a solely responsible third party); § 2702(d)(2) (limiting the liability of certain parties under the OPA); § 2703 ("Defenses to liability"). CARCO's general reference to the entirety of the OPA did not provide adequate information from which Frescati could determine that CARCO was seeking to limit its liability under § 2702(d)(2)(B). Nor did CARCO develop this defense at any point before the first trial. For that reason, CARCO's unspecified reference to the OPA did not provide the requisite fair notice to Frescati. Furthermore, Frescati would be prejudiced if the defense were allowed. As the District Court found, if CARCO had asserted its defense in a timely fashion, fifteen days of depositions and trial testimony from seven witnesses could have been avoided, along with the OPA damages phase of the first trial. CARCO did not clearly assert the limitation defense until nearly a decade after this action commenced, and over a year after the first trial and appeal had concluded. The District Court appropriately concluded that CARCO had not raised the defense at a pragmatically sufficient time, and that Frescati would be prejudiced if the defense were allowed. The District Court did not abuse its discretion in finding the defense waived. VIII. Prejudgment Interest Rate The District Court awarded Frescati prejudgment interest of just over $16 million. Frescati, in its cross-appeal from the District Court's judgment, argues that the District Court erred by using the federal postjudgment interest rate set by 28 U.S.C. § 1961(a) to determine the amount of the prejudgment interest award. Specifically, Frescati argues that the District Court improperly believed itself bound to use the federal postjudgment rate rather than the higher U.S. prime rate because Frescati did not present evidence of its borrowing costs. An award of prejudgment interest is reviewed for abuse of discretion. Ambromovage v. United Mine Workers of Am. , 726 F.2d 972, 981-82 (3d Cir. 1984) ; see also Sun Ship, Inc. v. Matson Nav. Co. , 785 F.2d 59, 63 (3d Cir. 1986). When selecting an interest rate, the District Court must keep in mind that the rate and corresponding award "must be compensatory rather than punitive." Del. River & Bay Auth. v. Kopacz , 584 F.3d 622, 634 (3d Cir. 2009). Here, the District Court awarded Frescati prejudgment interest at the one-year Treasury rate-the same rate used as the federal postjudgment interest rate. See 28 U.S.C. § 1961(a). Importantly, the District Court found that the postjudgment rate would "fairly and adequately compensate Frescati for its losses." JA at 183. Frescati argues that, in the absence of evidence of borrowing costs, we should require the use of the U.S. prime rate. We grant that, had the District Court chosen to use the prime rate, it would not have abused its discretion even without extensive proof of borrowing costs. Taxmanv. Bd. of Educ. , 91 F.3d 1547, 1566 (3d Cir. 1996) (en banc). Indeed, the prime rate is commonly used to approximate the cost the defendant would have paid to borrow in the market, and at least one court appears to require it. See, e.g. , Gorenstein Enters., Inc. v. Quality Care-USA, Inc. , 874 F.2d 431 (7th Cir. 1989) (requiring use of the prime rate in certain circumstances); see also Forman v. Korean Air Lines Co. , 84 F.3d 446, 450-51 (D.C. Cir. 1996) ("[T]he prime rate is not merely as appropriate as the Treasury Bill rate, but more appropriate ...."). In this Circuit, however, a district court is not constrained to the use of only the prime rate: "[i]n exercising [its] discretion, ... the court may be guided by the rate set out in 28 U.S.C. § 1961." Sun Ship , 785 F.2d at 63 ; Taxman , 91 F.3d at 1566 ("[A] court 'may' use the post-judgment standards of 28 U.S.C. § 1961(a) [to calculate prejudgment interest, though] it is not compelled to do so."). The District Court determined that the federal postjudgment rate "fairly and adequately compensate[s] Frescati for its losses." JA at 183. Under our Court's precedent, the District Court acted within its discretion. IX. Conclusion The District Court's order dated August 17, 2016 will be affirmed in part, vacated in part, and reversed in part. The District Court's judgment in favor of Frescati on the breach of contract claim and the prejudgment interest award will be affirmed. The District Court's judgment in favor of Frescati on the negligence claim will be vacated. The District Court's judgment in favor of the United States will be affirmed in part with respect to CARCO's liability on the subrogated breach of contract claim, but the judgment will be reversed and remanded for further proceedings in light of our equitable recoupment ruling for the purpose of recalculating damages and prejudgment interest. The District Court's order dated April 9, 2015, denying CARCO's motion for partial summary judgment on its limitation of liability defense, will be affirmed. The facts are undisputed unless otherwise noted. Single-hulled tanker ships drew the attention of regulators and the public in the wake of the 1989 Exxon Valdez oil spill off the Alaskan coast; the Exxon Valdez , like the Athos I , was a single-hulled tanker. Single-hulled ships were initially subjected to extra regulation, see, e.g. , 33 C.F.R. § 157.455, but have since been phased out of operation in the United States in favor of double-hulled ships. See 46 U.S.C. § 3703a. A ship's draft is the measurement from the water line to the bottom of the ship's hull, known as the keel. As a ship loads cargo, it becomes heavier and sits lower in the water. Its draft thereby increases. An allision is "[t]he contact of a vessel with a stationary object such as an anchored vessel or a pier." Allision , Black's Law Dictionary (10th ed. 2014). Side-scan sonar is used to locate objects on the sea floor and works like a camera, but using sound instead of light to form an image. Single-beam sonar, by contrast, uses sound to measure the depth along a single line traced by a sounding mechanism known as a towpath. If an obstruction is not located along the towpath, it would not be detected, and even if the towpath crossed an obstruction, the data would simply show a depth change rather than the obstruction itself. Before the allision, CARCO used single-beam sonar to survey its berthing area and a small portion of the anchorage. The government typically used single-beam sonar when it surveyed the anchorage for depth and dredging purposes. The anchor was identified in the geophysical study data only after the allision occurred. The parties agree that in 2001, the anchor was flukes-down, and that no one was aware of the anchor's existence before the allision-except, perhaps, the still-unidentified owner who abandoned it. The United States is not a party to the tort claim, pursuant to a partial settlement agreement it reached with CARCO in 2009. Frescati's liability under the OPA for the cost of cleaning up the spill was limited to approximately $45 million. The United States reimbursed it for the remaining $88 million of its qualifying cleanup expenses. In addition to the $45 million in OPA damages, Frescati also incurred roughly $10 million in damages that fell outside the scope of the OPA's liability cap-third-party claims; cleanup expenses for recreational boats; the cost of removing the anchor and the pump casing from the riverbed; a settlement with a nearby nuclear power plant that had to shut down; unrepaired hull damage to the Athos I , and other miscellaneous expenses. Frescati's contract recovery of $55 million was based on both its OPA and non-OPA damages. Frescati's expert, Anthony Bowman, developed the Seamaster software program, which allows him to enter the measurements of a ship-including the weight, dimensions, and strength of all its constituent parts, such as the hull, cargo, and supplies-and calculate, among other things, a ship's draft. Having considered the ship's records, information about the ballast tanks, and his own software, Bowman testified that at the time of the allision, the Athos I had a draft of 36' 7?. The District Court credited his testimony. The District Court made undisputed findings of fact as to the height of the anchor in a flukes-down position (41 inches or 3.42 feet) and the depth of the river at the time and location of the allision (41.65 feet). Assuming for the moment that the anchor was flukes-down, as CARCO argues, the allision would not have occurred unless the Athos I had a draft of at least 38.23 feet, or just under 38' 3?, significantly in excess of the warrantied draft of 37 feet. Experts for both sides were able to identify the flukes-down anchor in a sonar scan performed in 2001 as part of an independent geophysical study. Ships at anchor move with the tide, back and forth as the tide comes in and goes out. The anchor chain drags or "sweeps" across the riverbed as the ship floats, potentially shifting the position of objects on the riverbed, and leaving scour marks on the riverbed. Anchor chains also move along the river bottom when the anchor is pulled back onto the ship. CARCO, for its part, characterizes the idea that an anchor chain might have moved the abandoned anchor as "fantastical," "inexplicabl[e]," an "astonishing assertion," "facially implausible," "pure and wild speculation," "pure speculation," "conjecture," "speculative and unsupported," and, once again, "implausible." CARCO Opening Br. 4, 53-55; CARCO Reply Br. 32. The District Court pointed out that scour marks were found on the river bottom near the site of the allision, but ultimately decided only that the anchor was in the flukes-up position at the time of the allision. JA at 78 ("Although the actual cause of the anchor's movement to a 'flukes-up' position will never be known, the Court finds that at some point after December 2001, this movement occurred and the anchor was positioned in a 'flukes-up' orientation when it allided with the Athos I."). CARCO's theory at trial, abandoned on appeal, was that the ship was not moving astern and to port. The Athos I passed safely over a 38-foot shoal less than fifteen minutes before the allision. JA at 203. It seems that if the Athos I had a draft deep enough to hit the flukes-down anchor (a minimum of 38.23 feet, see supra note 10), it would have encountered the 38-foot shoal before it ever encountered the anchor. A flukes-down anchor would have been deeper than the 38-foot shoal even at the anchor's shallowest point. JA at 77, 78, 85. 33 C.F.R. § 157.455(a)-(b) reads: (a) The owner or operator of a tankship, that is not fitted with a double bottom that covers the entire cargo tank length, shall provide the tankship master with written under-keel clearance guidance that includes- (1) Factors to consider when calculating the ship's deepest navigational draft; (2) Factors to consider when calculating the anticipated controlling depth; (3) Consideration of weather or environmental conditions; and (4) Conditions which mandate when the tankship owner or operator shall be contacted prior to port entry or getting underway; if no such conditions exist, the guidance must contain a statement to that effect. (b) Prior to entering the port or place of destination and prior to getting underway, the master of a tankship that is not fitted with the double bottom that covers the entire cargo tank length shall plan the ship's passage using guidance issued under paragraph (a) of this section and estimate the anticipated under-keel clearance. The tankship master and the pilot shall discuss the ship's planned transit including the anticipated under-keel clearance. An entry must be made in the tankship's official log or in other onboard documentation reflecting discussion of the ship's anticipated passage. 33 C.F.R. § 157.455(a)-(b). 33 C.F.R. § 164.11 reads: The owner, master, or person in charge of each vessel underway shall ensure that: .... (k) If a pilot other than a member of the vessel's crew is employed, the pilot is informed of the draft, maneuvering characteristics, and peculiarities of the vessel and of any abnormal circumstances on the vessel that may affect its safe navigation. ... (n)Tidal state for the area to be transited is known by the person directing movement of the vessel .... 33 C.F.R. § 164.11. The Vessel Operation Procedures Manual appears to contain a typographical error listing the appropriate section as 2.4 rather than 3.4, as it appears in the Table of Contents. See JA at 1189, 1191. "Squat is a hydrodynamic phenomenon, which occurs when a ship is moving through the waters. As a ship moves forward, it displaces a volume of water. The displaced water rushes under the keel of the ship and creates a low pressure area causing the ship to sink down toward the riverbed. The faster a ship is moving, the more the ship will sink down towards the riverbed. This process causes a ship to be closer to the riverbed by increasing a vessel's draft." JA at 70 (citations omitted). We previously determined that the allision occurred in the approach to CARCO's berth-the geographic area within which a wharfinger's duty exists-and as a result, CARCO had a duty to use reasonable diligence to provide the Athos I with a safe approach. In re Frescati , 718 F.3d at 211. Fish testified that the side-scan sonar equipment "detected" the anchor, but neither he nor anyone else "recognized" it until after the second set of scans were taken. JA at 927. The court determined that CARCO should have used side-scan sonar to search for obstructions, but seemed willing to accept that other methods of searching for obstructions might accomplish the same purpose. It noted that "side-scan sonar ... is not the only method available in the industry to search for hazardous debris. ... Since the standard of care involves factual issues, the methods may vary when the conditions in the approach to each terminal are examined." JA at 132 n.109. Indeed, five years after the Athos I allision, the Norwegian tanker SKS Satilla , carrying nearly 42 million gallons of crude oil, allided with a sunken oil rig in the Gulf of Mexico, sustaining "substantial damage to the port side of her hull." Findings of Fact and Conclusions of Law, In re Ensco Offshore Co. , No. 4:09-CV-2838, ECF No. 185 at 3, ¶¶ 6-7 (S.D. Tex. Sept. 30, 2014). But "[b]ecause the SATILLA [was] a double hulled vessel[,] ... there was no discharge of crude oil." Id. at 3, ¶ 9. The United States and CARCO reached a partial settlement agreement before the first trial. Both the United States and CARCO agreed to forgo any negligence claims they might have had against one another. The parties agreed that the United States would pursue only its contract claim against CARCO. As a result, the United States' judgment against CARCO was based solely on CARCO's contractual liability under the safe berth warranty. CARCO, for its part, reserved in the settlement agreement each and every substantive and procedural right available to a defendant ... including but not limited to the right to raise affirmative defenses under any theory or doctrine of law or equity, the right to assert setoff or recoupment and the right to assert compulsory or non-compulsory counterclaims other than a Claim for Contribution or Indemnity .... JA at 391. The Oil Spill Liability Trust Fund, administered by the Coast Guard, serves much like insurance for the oil transportation industry. Companies that import oil into the United States pay a per-barrel fee into the Trust Fund. When a tanker vessel spills oil, the OPA assigns liability for the cleanup to a "responsible party"-typically the owner of the vessel from which the oil spilled. The responsible party is liable for all cleanup costs associated with the spill. If the costs exceed a liability cap established by the OPA, the Trust Fund reimburses the responsible party for all expenses above the statutory cap. Liability under the OPA does not preclude a responsible party from bringing any claims it has against a third party under any other law. The United States, to the extent the Trust Fund has reimbursed the responsible party's costs, steps into the shoes of the responsible party as subrogee and may pursue claims against a third party as if it were the responsible party. Any recovery won by the United States is returned to the Trust Fund to cover future oil spill reimbursements. This issue is complicated by the fact that the specific defense asserted by CARCO, equitable recoupment, is sometimes pleaded as a defense, and sometimes as a counterclaim. We do not mean to imply that CARCO should have pleaded equitable recoupment as a counterclaim rather than a defense. However it is pleaded, "recoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded," and here, the plaintiff's action is grounded in Frescati's contractual right. Bull v. United States , 295 U.S. 247, 262, 55 S.Ct. 695, 79 L.Ed. 1421 (1935). To the extent CARCO had cognizable claims against the Coast Guard, NOAA, and the Army Corps of Engineers, it should have asserted those claims directly, rather than as a defense to Frescati's now-subrogated contract claim. CARCO was also free to waive its claims against the United States, and vice versa. Indeed, both CARCO and the United States waived certain rights in the 2009 partial settlement agreement, including CARCO's waivers of the rights to bring a "Claim for Contribution or Indemnity ... whether based on principles of common law, contract, quasi-contract or tort," and "demand that the court reduce or offset the damages awarded to the United States ... based on evidence that the negligence or fault of the United States in failing to detect, mark and/or remove underwater obstructions to navigation ... caused or contributed to the ATHOS I Incident." JA at 389. At an earlier stage in the litigation, the United States argued that CARCO's equitable recoupment defense amounted to a violation of the settlement agreement. The United States eventually waived that argument by failing to raise it at the first trial, and so we need not consider it today. In re Frescati , 718 F.3d at 214. A classic example of recoupment is a situation in which the statute of limitations is different for two related claims arising out of the same transaction-when, for example, the statute of limitations period during which the United States may file a claim against a taxpayer for underpayment of the income tax is longer than the period during which a taxpayer may file a claim for a refund of overpayment of the estate tax. The taxpayer (in this case, the estate of a decedent) pays the estate tax and final year's income tax. Sometime later, after the statute of limitations has run on the estate tax overpayment but not the income tax underpayment, the government claims the taxpayer owes additional income tax for the taxpayer's final year. Due to the increased income tax liability for the year, the taxpayer now owes less in estate tax-but the statute of limitations has already run, and the taxpayer cannot amend the estate tax return. In an action brought by the government to recover the extra income tax owed, the taxpayer may assert an equitable recoupment defense for the amount of the overpayment of the estate tax, even though the statute of limitations has run and the taxpayer would not otherwise have been able to recover the overpayment. See generally Bull v. United States , 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421 (1935). Though it is not necessary to our holding, we note that these equities do not appear to favor CARCO. As to agency regulation and maintenance of the anchorage where the allision occurred, the District Court held that the agencies did not have a duty to maintain the anchorage free of obstructions. The United States does not preemptively search for obstructions in the anchorage, it is not responsible for doing so, and it did not tell CARCO that it would do so. To the extent CARCO believed otherwise, CARCO simply misunderstood the regulatory structure and the responsibilities (and indeed, the capabilities) of the agencies. Additionally, to the extent-if at all-that the Coast Guard, NOAA, and the Army Corps of Engineers were responsible for the Athos I oil spill, reducing the recovery of the United States in this case would not be equitable. Beyond our concerns relating to subrogation (equity would certainly not favor reducing Frescati's recovery under these circumstances), such a decision would impose liability on the Oil Spill Liability Trust Fund, not the responsible agencies. Any recovery based on the United States' subrogated claim flows back to the Trust Fund, out of which the United States originally reimbursed Frescati. 26 U.S.C. § 9509(b)(3). The Trust Fund is not intended (or allowed by statute) to be used as a slush fund to cover the liabilities of federal agencies. See 33 U.S.C. § 2712 ("Uses of the Fund"). As a final point, the purpose of the Trust Fund is not to absorb the cost of cleaning up oil spills; indeed, almost the opposite is true. The OPA creates a strict liability regime for responsible parties, while capping that liability at a set amount. But the Trust Fund was not designed to bear those costs indefinitely; the subrogation provision of 33 U.S.C. § 2715 allows the United States, on behalf of the Trust Fund, to pursue any claim a responsible party could have brought against a third party under any law, in order to recover the money paid out by the Trust Fund and preserve the Trust Fund's ability to respond quickly to spills in the future. The OPA is intended to quickly compensate victims of spills, minimize environmental damage, and internalize the costs of oil spills within the oil industry. The subrogation provision serves those purposes by letting cleanup costs fall upon the liable party, rather than with the Trust Fund. Allowing CARCO to assert the defense after failing to raise it at a practicable time wastes the District Court's resources as well. Affirmative defenses must be raised as early as practicable, not only to avoid prejudice, but also to promote judicial economy. If a party has a successful affirmative defense, raising that defense as early as possible, and permitting a court to rule on it, may terminate the proceedings at that point without wasting precious legal and judicial resources. Robinson v. Johnson , 313 F.3d 128, 137 (3d Cir. 2002). It is worth noting that the United States similarly waived a defense by its failure to raise an argument in the first trial. We previously held that the United States waived its right to object to CARCO's equitable recoupment defense on the basis that it violated the terms of the partial settlement agreement. In re Frescati , 718 F.3d at 214. Nor was it an abuse of discretion for the District Court to adopt a variable interest rate. Interest accumulated for more than a decade, and during that time prevailing interest rates changed substantially.

Whittaker Corp. v. United States

OPINION MURGUIA, Circuit Judge: When two or more people have been found liable for someone’s injury, and one of them pays more than her fair share, the law often lets the person who paid too much recover from the others, in order to even things out. This is called the right to “contribution,” and it has deep roots in our statutory and common law. See Nw. Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 86-88, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981). CERCLA, a federal environmental statute, also allows people who pay to clean up pollution recover their costs from the polluters. See 42 U.S.C. § 9607(a). The plaintiff in this case, Whittaker, is a company that was both found liable for injuries caused by its pollution and that also paid to clean pollution up. Whittaker now seeks reimbursement of its cleanup expenses from other polluters. We must decide whether Whit-taker is limited to seeking contribution from other polluters, or whether Whittaker may instead recover its cleanup expenses in a CERCLA cost recovery action. We hold that Whittaker’s liability in a prior case did not limit it to seeking contribution for all of its expenses, so Whittaker may use a CERCLA cost recovery action to seek reimbursement for the cleanup costs at issue in this case. I Whittaker Corporation is a defense contractor that manufactures and tests munitions for the U.S. military. In 1967, Whit-taker acquired a munitions facility in Santa Clarita, California, from the Bermite Powder Company (the Bermite Site). Between 1954, when the Bermite Powder Company was in charge, until 1987, when Whittaker ceased operations, approximately 90 percent of the munitions manufacturing and testing at the Bermite Site was done under contracts with the U.S. military. Whittaker began investigating the release of hazardous substances at the Ber-mite Site in the early 1980s. In 2000, Whit-taker was sued by the Castaic Lake Water Agency and other water providers (the Castaic Lake plaintiffs) under CERCLA and various state laws. The Castaic Lake plaintiffs were in the business of pumping water out of ground wells near the Ber-mite Site. They alleged that their water supplies were contaminated by a pollutant called perchlorate and other hazardous chemicals as a result of Whittaker’s operations. Specifically, the Castaic Lake plaintiffs alleged: Plaintiffs, and each of them, are injured by the contamination (including, without limitation, the perchlorate contamination) caused by Defendants on a continuing basis. In addition, Plaintiffs, and each of them, have incurred and will continue to incur costs in responding to the contamination (including, without limitation, the perchlorate contamination) caused by Defendants’ activities at the Site. Until the contamination problems caused by the Site are stopped, Plaintiffs will continue to incur substantial costs for the indefinite future. In their CERCLA causes of action, the Castaic Lake plaintiffs sought to recover the “costs of response” they had incurred. The Castaic Lake plaintiffs also alleged causes of action for negligence, nuisance, trespass, and ultra-hazardous activity, and in those causes of action, they sought an injunction ordering Whittaker to “remediate and abate all contamination and threats of contamination caused by the Site.” The district court in Castaic Lake granted summary judgment to the Castaic Lake plaintiffs on their CERCLA claim based on perchlorate contamination in the plaintiffs’ wells. Castaic Lake Water Agency v. Whittaker Corp., 272 F.Supp.2d 1053, 1069 (C.D. Cal. 2003). Whittaker and its insurers subsequently settled with the Castaic Lake plaintiffs in 2007. Under the terms of the settlement, Whittaker and its insurers agreed to reimburse the Castaic Lake plaintiffs for costs the plaintiffs had incurred to remove perchlorate pollution from their water wells, and to purchase replacement water. The result of Castaic Lake was that Whittaker was found liable for a specific set of the plaintiffs’ costs of responding to Whittaker’s pollution; Whit-taker was never ordered in Castaic Lake to clean up the Bermite Site. In 2013, Whittaker initiated this CERC-LA lawsuit against the United States to recover expenses Whittaker incurred since the 1980s from investigating and cleaning the Bermite Site. Whittaker alleged that these expenses included costs for soil sampling, borings, excavations, surveys, groundwater sampling, and remedial operations addressing chlorinated solvents and heavy metals. Whittaker explicitly alleged that these expenses were separate from the costs for which it was liable under the Castaic Lake settlement. The United States moved to dismiss Whittaker’s complaint, arguing that because Whittaker had been sued in Castaic Lake, it could bring only a CERCLA contribution action — not a cost recovery action — against the United States, and that the statute of limitations for a contribution claim had expired. The district court agreed with the United States. The district court concluded that, pursuant to CERC-LA § 113, the Castaic Lake lawsuit triggered Whittaker’s right to bring an action for contribution (ie., reimbursement for paying more than its fair share), and that the instant lawsuit sought expenses that could have been reimbursed through such a contribution action. Because Whittaker could have brought a contribution action, the district court concluded under our case law that Whittaker could not bring a cost recovery action (ie., reimbursement from a polluter for cleanup costs). And because Whittaker only brought a cost recovery action, the district court dismissed the complaint. Whittaker filed this timely appeal. We have jurisdiction under 28 U.S.C. § 1291, and we reverse. II We review the district court’s decision to grant a motion to dismiss de novo. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). We take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Id. “Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory.” Id. We review the district court’s interpretation of a statute de novo. Id. Ill A Congress enacted CERCLA in 1980 to facilitate the remediation of hazardous waste sites and the resolution of liability for the related costs, especially through negotiated settlements. Chubb Custom, 710 F.3d at 956. One of the ways CERCLA achieves these goals is by allowing a party who remediates a hazardous waste site to obtain reimbursement of its expenses from those responsible for the pollution. See id. at 956-57. As relevant to this case, CERCLA provides two mechanisms for private parties to recover their environmental cleanup expenses from other parties. First, CERCLA § 107(a) allows parties to bring “cost recovery” actions against polluters for a wide range of expenses, including “any ... necessary costs of response incurred” and “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release [of a hazardous substance].” 42 U.S.C. § 9607(a); United States v. Atl. Research Corp., 551 U.S. 128, 139, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). In the lingo of CERCLA litigation, a polluter who might be liable under a § 107 cost recovery action is called a “potentially responsible party” or “PRP.” See Chubb Custom, 710 F.3d at 956. The other mechanism to recover cleanup expenses, § 113(f), allows a party to seek “contribution” in two circumstances. Section 113(f)(1) provides, in relevant part: Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a) ] of this title, during or following any civil action ... under [§ 107(a) ] of this title. ... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. 42 U.S.C. § 9613(f)(1). And § 113(f)(3)(B) provides: A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a settlement .... Id. § 9613(f)(3)(B). In short, § 113(f) generally allows a polluter to bring a contribution claim against other polluters if the polluter has been sued in a § 107 cost recovery action or settled with the government. CERCLA does not define “contribution.” See id. § 9601. However, the Supreme Court provided a definition in United States v. Atlantic Research, another CERCLA case: Contribution is defined as the “tortfea-sor’s right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.” Nothing in [CERCLA] § 113(f) suggests that Congress used the terra “contribution” in anything other than this traditional sense. 551 U.S. at 138, 127 S.Ct. 2331 (quoting Black’s Law Dictionary 353 (8th ed. 2004)). The Supreme Court has made clear that “cost recovery” and “contribution” are “two ‘clearly distinct’ remedies.” Id. (quoting Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 163 n. 3, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004)). The Court explained the distinction as follows: [T]he remedies available in §§ 107(a) and 113(f) complement each other by providing causes of action to persons in different procedural circumstances. Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under ... § 107(a). And § 107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Hence, a PRP that pays money to satisfy a settlement agreement or a court judgment may pursue § 113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under § 107(a). As a result, though eligible to seek contribution under § 113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under § 107(a). Id. at 139, 127 S.Ct. 2331 (internal quotation marks and citations omitted). A party uses contribution to get reimbursed for being made to pay more than its fair share to someone else, and uses cost recovery to get reimbursed for its own voluntary cleanup costs. See id. at 139, 127 S.Ct. 2331 n. 6. However, problems with this distinction arise when a party is ordered to incur its own cleanup costs. Such a party is not reimbursing someone else, but neither are its own costs “voluntary.” Because the procedural requirements and the remedies for cost recovery and contribution claims are distinct, every federal court of appeals to have considered the question since Atlantic Research, including this Court, has said that a party who may bring a contribution action for certain expenses must use the contribution action, even if a cost recovery action would otherwise be available. See, e.g., Kotrous v. Goss-Jewett Co. of N. Cal., 523 F.3d 924, 932 (9th Cir. 2008) (“A PRP cannot choose remedies, but must proceed under § 113(f)(1) for contribution if the party has paid to satisfy a settlement agreement or a court judgment pursuant to an action instituted under ... § 107 [for cost recovery].”). Under our precedent, if Whittaker could bring its claim in this case as a contribution action, it is required to do so. See id. The government argues, and the district court determined, that Whittaker’s right to bring its claim in contribution was triggered by the Castaic Lake lawsuit, barring Whittaker from bringing this cost recovery action. It is clear that the Castaic Lake suit triggered Whittaker’s ability to bring a contribution claim for at least the costs it was found liable for in that case. See id. The determinative question here is whether Whittaker could, and therefore must, also bring a contribution action for costs for which it was not found liable in Castaic Lake, after the entry of judgment in that case. B CERCLA allows a party to bring a contribution claim in two circumstances: “during or following” being sued in a § 107 cost recovery action, and after the party “has resolved its liability to the United States or a State ... in an administrative or judicially approved settlement.” 42 U.S.C. § 9613(f)(1), (3)(B). Although CERCLA sets forth these procedural triggers to bring a contribution claim, the statute does not actually define “contribution,” as noted above. See id. § 9601. The government argues that, once one of the procedural triggers for a party’s contribution claim has occurred, the party’s right to contribution extends to all of the party’s expenses at the site, regardless of whether those expenses were at issue in the triggering litigation or settlement. However, the government’s argument mischaracter-izes the contribution remedy. Not all of a party’s expenses related to remediating a site fall within the scope of contribution. In Atlantic Research, the Supreme Court explained that “costs incurred voluntarily are recoverable only by way of § 107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under § 113(f).” 551 U.S. at 139 n. 6, 127 S.Ct. 2331; see also id. at 138, 127 S.Ct. 2331 (rejecting the government’s argument that contribution is “synonymous with any apportionment of expenses among PRPs”). Although the Supreme Court has not explicitly held that a party’s right to contribution in a CERCLA case is limited to the costs for which the party has been found liable, the Court’s reasoning in Atlantic Research strongly supports that interpretation: Contribution is defined as the “tortfea-sor’s right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.” ... [A] PRP’s right to contribution under § 113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties. By contrast, § 107(a) permits recovery of cleanup costs but does not create a right to contribution. A private party may recover under § 107(a) without any establishment of liability to a third party- Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under ... § 107(a). Id. at 138-39, 127 S.Ct. 2331 (citation omitted). The Supreme Court’s statement that the right to contribution is “contingent upon an inequitable distribution of liability” indicates that a party has a right to recover contribution only for those costs for which it has been found liable; other costs can be recovered in a § 107 cost recovery action “without any establishment of liability.” See id. This is consistent with the traditional notion of contribution. See Restatement (Third) of Torts § 23(b) (2000) (“A person entitled to recover contribution may recover no more than the amount paid to the plaintiff in excess of the person’s comparative share of responsibility.”). Following Atlantic Research, we have also explained that a private party must use a § 113(f) contribution action to recover expenses paid under a settlement agreement or a judgment. Kotrous, 523 F.3d at 932. “If, however, the private party has itself incurred response costs, it may seek recovery under [a cost recovery action pursuant to] § 107.” Id. The two other circuits to have considered the question have held that, even where one of the statutory triggers for a contribution claim has occurred for certain expenses at a site, a party may still bring a cost recovery action for its other expenses. In Bernstein v. Bankert, the Seventh Circuit confronted a case where some of a plaintiffs cleanup expenses at a site were incurred pursuant to a 1999 finalized settlement with the EPA, and other expenses were incurred pursuant to a 2002 consent decree that was not yet final. 733 F.3d 190, 202-03 (7th Cir. 2012). The plaintiff in Bernstein, the Third Site Trust Fund (the Trust), was established by a group of companies that were potentially responsible for pollution at a hazardous waste site. Id. at 196. For the expenses the Trust incurred under the finalized 1999 settlement, the Seventh Circuit held that the Trust was required to bring a contribution action, since the settlement “resolved its liability” and triggered § 113(f)(3)(B). Id. at 204-06. However, the Seventh Circuit also held that the non-final 2002 consent decree did not resolve the Trust’s liability for those separate costs, and therefore the 2002 decree did riot trigger a right to contribution. Id. at 207-08. The Seventh Circuit held that the Trust could bring a cost recovery action under § 107 for the expenses it incurred under the 2002 decree, because, “[t]o the extent that the Trustees’ suit seeks to recover expenses arising out of their performance of the 2002 [consent decree], it is not a contribution action.” Id. at 207. In NCR Corp. v. George A Whiting Paper Co., the Seventh Circuit reaffirmed Bernstein’s, approach of separately evaluating different sets of costs, but arrived at a slightly different outcome. 768 F.3d 682, 690-92 (7th Cir. 2014). In NCR, the plaintiff company, NCR, sought reimbursement for cleanup expenses it had incurred at a site under three separate orders from the EPA and the Wisconsin Department of' Natural Resources issued in 2001, 2004, and 2007. Id. at 691. NCR argued it could bring a cost recovery action for these expenses, and that it was not limited to a contribution action. Id. Applying Bernstein, the Seventh Circuit held that each order triggered NCR’s right of contribution for the expenses covered by that order. Id. at 691-92. NCR conceded that its expenses incurred under the 2001 order triggered its right to contribution. Id. at 691. The Seventh Circuit held that NCR’s expenses incurred under the 2004 order were also required to be reimbursed through contribution, because that order “resolved NCR’s liability” for those expenses, triggering § 113(f)(3)(B). Id. at 692. And finally, the Seventh Circuit held that NCR’s expenses under the 2007 order were also required to be brought in contribution, because the government brought an action in 2010 to enforce that order, and a contribution action is available “during or following” an enforcement action. Id. at 691-92 (citing 42 U.S.C. § 9613(f)(1)). The Seventh Circuit rejected NCR’s argument that the expenses it incurred under the 2007 order before the government’s 2010 enforcement action were not covered by NCR’s right of contribution: “Such slicing and dicing of costs incurred under the same administrative order makes little sense when a party’s liability for all of those costs will ultimately be determined in the enforcement action.” Id. at 692. In Agere Systems, Inc. v. Advanced Environmental Technology Corp., the Third Circuit held that a party who had been sued in a § 107 cost recovery action could still bring its own cost recovery action for expenses separate from the liability established by the prior suit, because § 113 had not been triggered for those separate costs and a contribution action was therefore unavailable. 602 F.3d 204, 225 (3d Cir. 2010). One of the plaintiffs in Agere, TI Automotive Systems LLC (TI), had paid into a trust fund with other potentially responsible parties to cover a certain set of expenses at a site (the “Operational Unit One” expenses), even though TI had not been sued for those expenses. Id. at 212. TI had also previously been sued by the EPA in a cost recovery action under § 107 for a different set of expenses (the “Operational Unit Two” expenses), resulting in a consent decree requiring TI to pay those separate expenses. Id. at 212-13. The Third Circuit held that TI was not required to use a contribution action for all of its claims, and could bring a § 107 cost recovery action to recover its share of the Operational' Unit One expenses, even though TI had been sued by the EPA under § 107 for the Operational Unit Two expenses. Id. at 225-26. The Third Circuit also held that another plaintiff, Agere Systems, Inc. (Agere), could bring a cost recovery action because it had not been sued by the EPA for the expenses related to either Operational Unit. Id. The Third Circuit explained that “Agere and TI 'do not have § 113(f) contribution claims for the settlement sums because those parties were never themselves sued for those amounts by the EPA or by other PRPs.” Id. at 225 (emphasis added). Bernstein, NCR, and Agere each demonstrate that a party’s right to contribution for some of its expenses at a site does not necessarily mean that the party loses its right to bring a cost recovery action for other expenses. Both Bernstein and Agere held that plaintiffs could bring cost recovery actions for expenses separate from those for which the plaintiffs had a right of contribution. And NCR held that the plaintiff was required to bring all of its claims in contribution because each set of expenses was covered by an order triggering the right to contribution. Considering the closely related issue of whether a party’s right to contribution for some of its expenses triggers the statute of limitations for contribution for all of its other expenses, the First Circuit has held that the limitations periods for separate sets of expenses are triggered independently. Am. Cyanamid Co. v. Capuano, 381 F.3d 6, 13-15 (1st Cir. 2004). In American Cyanamid, a hazardous waste site required both soil and groundwater remediation. Id. at 10-11. In previous litigation, a potentially responsible party called the Rohm & Haas Company (R&H) was held liable in a § 107 cost recovery action for expenses related to the soil cleanup. Id. at 10. R&H also entered into a separate consent decree with the United States related to the groundwater cleanup. Id. at 11. R&H later brought a CERCLA contribution action against other potentially responsible parties for its groundwater cleanup expenses. Id. The First Circuit upheld R&H’s contribution action over the defendants’ argument that the statute of limitations for contribution for the groundwater expenses had been triggered by R&H’s earlier liability for the soil expenses. Id. at 13. The First Circuit explained that CERCLA’s statute of limitations for contribution claims bases the timeliness of an “action for contribution for any response costs or damages” on “the date of judgment in any action ... for recovery of such costs or damages.” Id. (quoting 42 U.S.C. § 9613(g)(3)). The First Circuit held that the phrase “ ‘such costs or damages’ refers to the costs or damages contained in the ‘judgment.’ ” Id. (emphasis added). “[A] PRP has three years to seek contribution for costs contained within a judgment. The statute of limitations, however, is not triggered for costs not contained within the judgment.” Id. at 15; see also ASARCO, LLC v. Celanese Chem. Co., 792 F.3d 1203, 1215 (9th Cir. 2015) (“[T]here is no limit in the statute to prevent a party in an early settlement from seeking contribution related to a later settlement, as long as those settlements cover separate obligations.”); RSR Corp. v. Commercial Metals Co., 496 F.3d 552, 557 (6th Cir. 2007) (“Rather than focus on who settled the cost-recovery action, in short, the statute asks us to focus on what was settled.”). Although these cases considered statute of limitations questions, their reasoning confirms that a party’s right to contribution is limited to the expenses for which it has been found liable. In this case, Whittaker was found liable to the Castaic Lake plaintiffs for the expenses specifically related to removing perchlorate from the plaintiffs’ wells and replacing their water. Whittaker now seeks reimbursement from the government for a different set of expenses, for which Whittaker was not found liable in Castaic Lake. Following the guidance of the Supreme Court and the other circuit courts, we hold that Whittaker was not required to bring its claims in this case in a § 113(f) contribution action after its liability was resolved in Castaic Lake. C The government presents two text-based arguments for why a party who has been sued in a § 107 cost recovery action for expenses related to pollution at a site should be limited to a contribution action for all of the party’s expenses at the site, regardless of whether the expenses are covered by the liability established by the prior § 107 suit. We find neither argument persuasive. First, noting that § 113(f)(1) allows a contribution action to be brought “during or following” a cost recovery action under § 107, see 42 U.S.C. § 9613(f)(1), the government argues that a party’s right to contribution cannot be limited to the liability established by the § 107 cost recovery action. After all, it would not make sense to permit a party to recover contribution before its liability is established if the party’s right to contribution is limited to its established liability. However, the Supreme Court has explained that: The statute authorizes a PRP to seek contribution “during or following” a suit under ... § 107(a). Thus, § 113(f)(1) permits suit before or after the establishment of common liability. In either case, a PRP’s right to contribution under § 113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties. By contrast, § 107(a) permits recovery of cleanup costs but does not create a right to contribution. A private party may recover under § 107(a) without any establishment of liability to a third party- Atl. Research, 551 U.S. at 138-39, 127 S.Ct. 2331 (emphasis added; citation omitted). While the statute permits a party to initiate a contribution action while a § 107 cost recovery suit is pending, actual recovery of contribution under § 113(f)(1) is limited to the expenses for which the party is found liable. See Bernstein, 733 F.3d at 207 (“To the extent that the Trustees’ suit seeks to recover expenses arising out of their performance of the 2002 [consent decree], it is not a contribution action.”); United States v. Davis, 261 F.3d 1, 46 (1st Cir. 2001) (“This [statutory] language anticipates that a defendant in a § [107] cost recovery action may initiate a contribution action before its own liability is established. Consistent with this scheme, a § [107] defendant whose liability has been established may be awarded declaratory relief before that liability has been fully discharged.”). This is how contribution claims traditionally work. See Restatement (Third) of Torts § 23(b) & cmt. b. For this reason, it was not the terms of the Castaic Lake complaint that determined Whittaker’s right to recover contribution, but rather the extent of the costs for which Whittaker was held liable in that ease. Second, noting that § 113(f)(1) allows a contribution action to be brought against “any other person who is liable or potentially liable” under § 107, see 42 U.S.C. § 9613(f)(1), the government argues that,, once a contribution claim has been triggered, the scope of expenses recoverable in contribution is coextensive with the scope of potential liability under § 107, including “any ... necessary costs of response incurred” by a party, see id. § 9607(a)(4)(B). If the right to contribution were so broad, there would be no reason for courts to evaluate different sets of expenses separately in deciding whether a party has a contribution claim, yet evaluating expenses separately is precisely what courts have done. See, e.g., NCR, 768 F.3d at 690-92; Bernstein, 733 F.3d at 207-08; Agere Sys., 602 F.3d at 225-26; Am. Cyanamid, 381 F.3d at 14-16. Section 113(f)(1)’s reference to § 107’s potentially responsible parties indicates from whom contribution may be sought, not the scope of expenses that are recoverable in contribution. D Finally, our holding is consistent with CERCLA’s purposes. As noted above, CERCLA was intended to incentivize both environmental cleanup efforts and negotiated settlements of liability. Chubb Custom, 710 F.3d at 956. Allowing a party who has incurred substantial environmental response costs over a span of decades to recover from other potentially responsible parties serves these dual goals. See Fireman’s Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 948 (9th Cir. 2002) (“Potential purchasers of abandoned or underutilized contaminated properties are often deterred from purchasing and cleaning up these properties by exposure to unbounded and uncertain liability.”); Bernstein, 733 F.3d at 214 (“[T]he cost recovery action is subject to a longer statute of limitations, making it arguably the preferable recovery vehicle for a PRP embarking on what might well be a decade-long cleanup effort, and thus actually creating a further positive incentive to settle.”). We recognize that CERCLA’s goal of encouraging prompt settlement may also be served by interpreting the right of contribution broadly, because the imposition of a shorter statute of limitations would incentivize parties to initiate lawsuits sooner. See 42 U.S.C. § 9613(g); ASARCO, 792 F.3d at 1211. Yet such a broad interpretation of “contribution” is inconsistent with the balance struck by Congress and with the Supreme Court’s interpretation of the term. We do not believe that Congress mandated parties who have been sued in § 107 cost recovery actions to bring all of their own CERCLA claims in the form of a contribution action, on an accelerated timeframe, regardless of the merit or the result of the § 107 cost recovery suit. IV Because Whittaker seeks to recover expenses that are separate from those for which Whittaker’s liability is established or pending, Whittaker was not required to bring this suit as a claim for contribution. Whittaker therefore is not barred on this basis from bringing a cost recovery action against the United States. REVERSED and REMANDED. . “CERCLA” stands for the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980.” See generally 42 U.S.C. §§ 9601-75. . Because we are reviewing the district court’s decision on a motion to dismiss, we take the factual allegations in the complaint as true and construe them in the light most favorable to Whittaker. See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). . Adopting the convention of the litigants and other courts, the body of this opinion refers to CERCLA’s Public Law sections, but citations are provided to the sections in Title 42 of the United States Code. . Several courts have recognized that, given the choice, plaintiffs would generally prefer to proceed under a § 107 cost recovery action, rather than a § 113 contribution action, due to the § 107 cost recovery action’s different statute of limitations, its provision for strict liability, its limited defenses, and its opportunity for joint and several recovery. See, e.g., NCR Corp. v. George A. Whiting Paper Co., 768 F.3d 682, 690 (7th Cir. 2014); Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1236-37 (11th Cir. 2012). . See also NCR, 768 F.3d at 690-92; Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014) ("CERCLA’s text and structure lead us to conclude that PRPs must proceed under § 113(f) [for contribution] if they meet one of that section's statutory triggers.”); Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013); Solutia, 672 F.3d at 1237; Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 603 (8th Cir. 2011) (holding "that § 113(f) [contribution] provides the exclusive remedy for a liable party compelled to incur response costs pursuant to an administrative or judicially approved settlement under ... [§ ] 107 [for cost recovery]”); Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 124-28 (2d Cir. 2010) ("In our view, only § 113(f)(3)(B) [contribution] provides the proper procedural mechanism for [the plaintiffs] claims.”). . We do not here decide whether Whittaker’s contribution claim based on its liability in Castaic Lake belongs solely to Whittaker's insurers. . The Seventh Circuit’s statement regarding the “slicing and dicing” of costs under the 2007 administrative order is consistent with our analysis. The statement refers to “slicing and dicing of costs incurred under the same administrative order," where NCR’s “liability for all of those costs will ultimately be determined in the enforcement action.” 768 F.3d at 692 (emphasis added). It is apparent that the Seventh Circuit did not find it generally problematic to consider different sets of expenses separately, because the court separately evaluated NCR’s expenses under each of the three orders. Instead, the Seventh Circuit found it problematic to further divide NCR’s expenses under the 2007 order, when NCR’s liability for all of those expenses would be determined in the government's enforcement action. . Nor is Whittaker’s own liability for the expenses it seeks in this case pending in any other litigation, as far as we are aware. . A party may also be able to obtain a declaratory judgment in a contribution action, in order to assign proportionate liability for any uncertain future expenses. See Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1191-92 (9th Cir. 2000). . As explained in the comment: A person seeking contribution must extinguish the liability of the person against whom contribution is sought for that portion of liability, either by settlement with the plaintiff or by satisfaction of judgment. As permitted by procedural rules, a person seeking contribution may assert a claim for contribution and obtain a contingent judgment in an action in which the person seeking contribution is sued by the plaintiff, even though the liability of the person against whom contribution is sought has not yet been extinguished. Restatement (Third) of Torts § 23 cmt. b (citations omitted).

Whittaker Corp. v. United States

OWENS, Circuit Judge, concurring in all but Part III D: The Court’s opinion persuasively follows current Supreme Court and circuit law interpreting the relevant statutory provisions, so I concur. Yet I do not join Part III D, as the case law, in my view, has drifted from what Congress intended when it passed and amended CERCLA in the 1980s. See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956 (9th Cir. 2013). Requiring all related contribution claims to be “dealt with in a single action” would “encourage private party settlements and cleanup” because the threat of being sued “as a third-party defendant, concurrent with the original litigation, has the effect of bringing all such responsible parties to the bargaining table at an early date.” H.R. Rep. No. 99-253, pt. 1, at 80 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2862. Rather than dining at the same table for one big CERCLA feast, our holding — dictated in my view by language in Atlantic Research — permits adversaries to fight for generations over moldy leftover crumbs. Good for lawyers, but bad for the environment and the communities affected by the contamination. I urge Congress to take a second look at this aspect of CERCLA.

Peoples Gas Light & Coke Co. v. Beazer East, Inc.

BAUER, Circuit Judge. The Peoples Gas Light and Coke Company (“Peoples”), brought suit against defendant-appellee, Beazer East, Inc. (“Beazer”), to recover costs incurred by Peoples in conducting environmental investigation and removal activities at a property, partially owned by Peoples, known as the Crawford Station site. I. BACKGROUND This case requires the interpretation of a contract entered into in 1920 between Peoples and Beazer’s predecessor, Kop-pers. Under the terms of the contract, Koppers agreed to “organize ... a corporation empowered by its charter to build and to operate a by-product coke plant and a plant for the manufacture of carbureted water gas.” The corporation was to be called Chicago By-Product Coke Company (“Chicago Coke” or “Coke”). Coke then was to enter into a contract with Koppers, under the terms of which Koppers would agree to build and operate for a period of years a coke plant located at Crawford Station in Chicago, Illinois (the “coke plant”), “for and in behalf of and in the name of 'Coke,’ ” using Koppers’ patented coke-oven technology. To pay for construction, Coke issued $13,000,000 of first mortgage bonds to Koppers and $600,000 of second mortgage bonds. Peoples agreed to purchase all of the gas and coke manufactured at the plant for distribution to consumers. Operations at the coke plant began in October 1921. Seven years later, Peoples acquired the assets of Coke. Koppers continued to operate the coke plant until 1938, when Peoples purchased the stock of Coke and took over operations until 1956. Today, some of the land is still owned by Peoples. In recent years, Peoples began working with the United States Environmental Protection Agency (“EPA”) and the Illinois Environmental Protection Agency to investigate environmental contamination at the Crawford Station site. Peoples eventually entered into three agreements with the EPA, beginning in 2007 when they entered an “Administrative Settlement Agreement and Order on Consent” (“2007 AOC”). This agreement required Peoples “to conduct an Engineering Evaluation and Cost Analysis ... of alternative response actions ... to address the environmental concerns in connection with ... Crawford Station.” In 2008, Peoples and the EPA entered a second “Administrative Settlement Agreement and Order on Consent” (“2008 AOC”), which concerned “the preparation and performance of a remedial investigation and feasibility study” at the Crawford Station site. Then, in 2011, Peoples and the EPA entered a third “Administrative Settlement Agreement and Order on Consent” (“2011 AOC”), which provided “for the performance of a removal action by [Peoples] and the reimbursement of certain response costs by the United States” in connection with the Crawford Station site. As a result of the investigation and removal activities at the Crawford Station site, Peoples has incurred over $70,000,000 in costs. On April 4, 2014, Peoples filed suit against Beazer to recover costs incurred in connection to the aforementioned environmental investigation and removal activities. Count I of the two-count complaint was for cost recovery pursuant to CERCLA § 107(a), 42 U.S.C. § 9607(a); Count II was for contribution pursuant to CERCLA § 113(f)(3)(B), 42 U.S.C. § 9613(f)(3)(B). Beazer moved to dismiss the complaint on three grounds: (1) Peoples had contractually released Koppers of all liability of any character for its operation of the coke plant; (2) Peoples was limited to a contribution claim; and (3) Peoples’ contribution claim was time-barred with respect to costs incurred under the 2007 and 2008 AOCs. On September 8, 2014, the district court partially granted Beazer’s motion to dismiss. The court dismissed with prejudice Count I of the complaint, finding that Peoples had resolved its liability to the United States via administrative settlement and, therefore, only had a claim for contribution under CERCLA § 113(f)(3)(B). As to Count II, the district court dismissed with prejudice Peoples’ claims for contribution for costs arising out of the 2007 and 2008 AOCs. The court held that each AOC was subject to the three-year statute of limitations set forth in 42 U.S.C. § 9613(g)(3)(B), thus Peoples’ claims were time-barred. The court held Peoples’ contribution claim stemming from t^e 2011 AOC was not time-barred, but dismissed with prejudice Peoples’ contribution claim based on Kop-pers’ operator liability. The court denied Beazer’s motion as to Peoples’ claim based on ownership liability. On November 3, 2014, the district court conducted a Status Hearing where Peoples moved to voluntarily dismiss the remaining contribution claim in Count II. The district court granted this oral motion and entered judgment in favor of Beazer. On appeal, Peoples contests the district court’s dismissal of Count II of its complaint. Peoples presents two issues on appeal: (1) that the district court erred in holding that the 1920 agreement bars Peoples’ contribution claims under CERCLA § 113(f)(3)(B) based on Koppers’ status as an operator; and (2) that the district court erred in holding that Peoples’ contribution claims arising out of the 2007 and 2008 AOCs are time-barred. II. ANALYSIS CERCLA was passed in 1980 “to promote the ‘timely cleanup of hazardous waste sites’ and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.” Burlington Northern & Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009) (internal citations omitted). There are four classes of potentially responsible parties upon whom CERCLA imposes liability: (1) present owners and operators of facilities; (2) past owners or operators of the facility at the time of the disposal of a hazardous substance; (3) arrangers of the disposal of hazardous substances at the facility; and (4) certain transporters-of hazardous substances. 42 U.S.C. § 9607(a). The parties do not dispute Koppers’ role as an operator during the relevant period. Section 107(e)(1) of CERCLA provides: No indemnification, hold harmless, or similar agreements or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability imposed under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section. 42 U.S.C. § 9607(e)(1). At first blush, this section appears internally inconsistent. However, we have joined other federal courts of appeals in reconciling these two sentences by construing them to mean that responsible parties may not transfer their CERCLA liability, but may obtain indemnification for that liability. See PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 613 (7th Cir.1998) (“Parties are free ... to allocate [CERCLA] expenses between themselves by contract.”); Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321 (7th Cir.1994); Harley-Davidson, Inc. v. Minstar, Inc., 41 F.3d 341, 342-43 (7th Cir.1994) (holding that § 107(e)(1) “does not outlaw indemnification agreements, but merely precludes efforts to divest a responsible party of his liability”); see also SmithKline Beecham Corp. v. Rohm & Haas Co., 89 F.3d 154, 158 (3rd Cir.1996) (“[RJesponsible parties can lawfully allocate CERCLA response costs among thémselves while remaining jointly and severally liable to' the government for the entire clean-up.”); Beazer East, Inc. v. Mead Corp., 34 F.3d 206, 211 (3rd Cir.1994). Peoples does not question this court’s interpretation of § 107(e)(1). However, it argues that the 1920 agreement, which was signed well-before CERCLA was passed, does not relieve Beazer (as Koppers’ successor) of its liability for contribution under CERCLA. It is well-established that “[a] party may indemnify another party for liability arising out of a law not in existence at the time of contracting.” Kerr-McGee, 14 F.3d at 327. However, where such a contractual assignment of liability pre-dates CERCLA, courts will look to see “whether an indemnification provision is either specific enough to include CERCLA liability or general enough to include any and all environmental liability which would, naturally, include subsequent CERCLA claims.” Beazer East, 34 F.3d at 211. Peoples argues that the 1920 agreement between Beazer’s predecessor Koppers and Peoples contains neither an unqualified, broad release of environmental liability nor a specific release of environmental liability sufficient to absolve Beazer of its CERCLA liability. We apply state law to determine whether a particular indemnification provision encompasses contribution costs under CERCLA. See LaSalle Natl Trust, N.A. v. ECM Motor Co., 76 F.3d 140 (7th Cir.1996). Here, we apply Illinois law to construe the terms of the 1920 agreement. Under Illinois law, the court’s “primary objective in construing a contract is to give effect to the intent of the parties.” Gallagher v. Lenart, 226 Ill.2d 208, 232, 314 Ill.Dec. 133, 874 N.E.2d 43 (Ill.2007). The court must first “look to the language of [the] contract alone, as the language, given its plain and ordinary meaning, is the best indication of the parties’ intent,” and construe the contract “as a whole, viewing each part in light of the others.” Id. at 233, 314 Ill.Dec. 133, 874 N.E.2d 43. The court should consider extrinsic evidence to ascertain the parties’ intent only where the language of the contract is reasonably or fairly susceptible to more than one meaning. Id. Paragraph 48 of the 1920 agreement states: The obligation to be assumed by “Kop-pers” with respect to the - operation of the proposed By-Product Coke Plant shall be limited to operating or supervising the operation thereof for and in behalf of and in the’ name of “Coke,” without liability of any character on the part of “Koppers,” except as expressly assumed under the terms of this contract, and shall cover the period contemplated by paragraphs 54 to 60 inclusive hereof. “Koppers” shall assume full responsibility for the efficient operation and for the maintenance of the plant in good working order during the period of operation by “Koppers,” but the expense of such operation and maintenance or loss incident thereto shall be borne by “Coke” as hereinafter provided. Looking to the plain language of the contract alone, and construing the contract as a whole, we agree with the district court that the 1920 agreement is unambiguous and that its language is broad enough to absolve Beazer of liability for contribution costs under CERCLA. The first sentence of paragraph 48 explicitly states that Kop-pers’ obligation to operate or supervise the operation of the coke plant was assumed “without liability of any character on the part of ‘Koppers, ’ except as expressly assumed under the terms of this contract” (emphasis added). Peoples argues that the second sentence in paragraph 48, which states, “ ‘Koppers’ shall assume full responsibility for the efficient operation and for the maintenance of the plant in good working order during the period of operation by ‘Koppers,’ ” identifies liabilities that were “expressly assumed” by Koppers. This argument is flawed for a number of reasons. In the first place, under Peoples’ interpretation of this language, the second sentence of paragraph 48 reinstitutes the very same liability that the first sentence of paragraph 48 released Koppers of with respect to its obligation to operate and supervise the operation of the plant. Thus, Peoples’ interpretation would render the first sentence of the paragraph meaningless, and courts should not “interpret a contract in a manner that would nullify or render provisions meaningless, or in a way that is contrary to the plain and obvious meaning of the language used.” Thompson v. Gordon, 241 Ill.2d 428, 442, 349 Ill.Dec. 936, 948 N.E.2d 39 (Ill.2011). Peoples’ characterization of the first clause of the second sentence as an assumption of liability cannot be reconciled with the second clause of the same sentence, which states, “but the expense of such operation and maintenance or loss incident thereto shall be borne by ‘Coke.’ ” Where possible, courts should construe a contract so that its provisions are harmonized and not in conflict. See Henderson v. Roadway Exp., 308 Ill.App.3d 546, 242 Ill.Dec. 153, 720 N.E.2d 1108, 1111 (1999). The fact that “Coke,” not Koppers, was responsible for any “loss incident” to the operation and maintenance of the plant is in direct conflict with Peoples’ interpretation that Koppers assumed liability for the operation and maintenance of the plant. Peoples contends that there is no direct conflict in these two clauses because: (1) losses related to environmental liability would have been outside the parties’ contemplation in 1920; and (2) the phrase “loss incident thereto” refers to expenses in excess of profits, not to long-term, future liability. Putting aside the fact that Peoples cannot support such a narrow definition of the term “loss,” its argument that the contract could not have contemplated future liabilities is illogical. A party’s intent is not determined by viewing a clause or provision in isolation, or in looking at detached portions of the contract. Thompson, 241 Ill.2d at 441, 349 Ill.Dec. 936, 948 N.E.2d 39. Viewing the contract as a whole, it is clear that the 1920 agreement was signed before the financing, construction, and operation of the plant occurred, thus every liability contemplated by the contract necessarily was a future liability. Actually, the terms of the 1920 agreement indicate that the second sentence of paragraph 48 acts not as an assumption of liability on the part of Koppers or as a limitation on the broad release language of the first sentence of paragraph 48, but as an elaboration of the limited scope of Kop-pers’ obligations as an operator. This is consistent with the rest of the agreement, which establishes that Koppers’ obligation was limited to financing and operating the coke plant for a limited amount of time until it had been repaid. This interpretation is also reinforced by the inclusion of the language, “for and in behalf of and in the name of ‘Coke,’ ” which indicates the parties’ intent to distance Koppers from any ultimate liability for the operation of the plant. Finally, it is supported by the language of paragraph 63 of the agreement, where Koppers explicitly agreed to: ... covenant and agree to keep and save harmless and to indemnify “Peoples Gas” and “Coke,” ... from and against all and every demand or demands of any nature or kind, and from the payment of any royalties, damages, losses or expense, claimed or established against “Peoples Gas” or “Coke,” ... for or growing out of any infringement upon Letters Patent of the United States, by or in respect to, or for or on account of the adoption or use of any patented invention, article, appliance, machinery or process which is furnished by or through “Koppers” and adopted or used in or about the construction or operation of said plants or any part thereof, ... (emphasis added). Unlike the language used in the second sentence of paragraph 48, this language is an express assumption of liability. However, since it relates to patents, it cannot be said to materially alter the broad release of liability contained in paragraph 48. Consistent with the contract as a whole, therefore, we agree with the district court that the language of paragraph 48 unambiguously absolves Beazer of any and all liability resulting from its operation of the coke plant. We also agree that this language is broad enough to include contribution costs under CERCLA. Peoples argues that a pre-CERCLA contractual release must be “unqualified” and not contain any exceptions. However, Peoples’ argument misstates federal precedent on this issue. Federal courts look to whether a pre-CERCLA indemnification clause is specific enough to include CERCLA liability or general enough to include any and all environmental liability. Beazer East, 34 F.3d at 211. The 1920 agreement contains clear and unequivocal language that Koppers’ obligation to operate the coke plant is assumed “without liability of any character on the part of ‘Kop-pers’ ” (emphasis added). This is precisely the kind of broad and general release language that has been construed by courts to encompass CERCLA liability. See E.I. Du Pont de Nemours and Co. v. United States, 365 F.3d 1367, 1373 (Fed.Cir.2004) (holding that an indemnification clause reciting the government’s agreement to hold a contractor “harmless against any loss, expense, or damage” arising out of the performance of certain work and not due to the personal failure of the contractor to exercise good faith covered CERCLA liability); SmithKline Beecham Corp., 89 F.3d at 159-60 (holding that a contract that indemnified the buyer against “all material liabilities relating to the conduct of the business prior to the First Closing Date ... which are not assumed by the Buyer” under a different subsection contained the “sort of broad language in pre-CERCLA contracts” that encompasses CERCLA liability); Purolator Prods. Corp. v. Allied-Signal, Inc., 772 F.Supp. 124 (W.D.N.Y.1991) (holding that a provision indemnifying for “all liabilities and obligations ... relating to or arising out of the Assets” was expansive enough to include CERCLA liability); American Nat’l Can Co. v. Kerr Glass Mfg. Corp., No. 89-C-0168, 1990 WL 125368, *3 (N.D.Ill. August 22, 1990) (indemnity provision covering “any claim of any kind or nature whatsoever with respect to the business ... arising out of the facts or events occurring prior to the Closing Time” was sufficiently broad to encompass future CERCLA liability). It is readily apparent from a plain reading of paragraph 48 that the parties sought to release Koppers from all future claims, including environmental liability, arising out of Koppers’ operation of the plant. Accordingly, we agree with the district court that the language of the 1920 agreement bars Peoples’ claim for contribution from Koppers under CERCLA § 113(f)(3)(B). Because we affirm the district court’s determination that the 1920 agreement bars Peoples’ contribution claims against Beazer, we need not address whether Peoples’ contribution claims arising out of the 2007 and 2008 AOCs are time-barred. III. CONCLUSION For the reasons set forth above, we AFFIRM the dismissal of Peoples’ claims against Beazer for contribution under CERCLA § 113(f)(3)(B), 42 U.S.C. § 9613(f)(3)(B). . Because Peoples voluntarily dismissed the part of Count II relating to its claim for contribution arising out of Koppers’ ownership liability, it does not appeal this issue.

ASARCO, LLC v. Union Pacific Railroad

RILEY, Chief Judge. Two companies with a business relationship dating back to the nineteenth century call upon us to resolve their dispute about environmental liability for a lead refinery and smelter — once among the world’s largest — which polluted Omaha, Nebraska, for over a hundred years. The former American Smelting and Refining Company, today known simply as ASARCO, LLC (As-arco), claims the Union Pacific Railroad Company (UP) has contributed too small a share of the clean-up cost. Asarco paid approximately $200 million to settle with the Environmental Protection Agency (EPA), which named lead-contaminated areas of Omaha a “Superfund” site. UP settled with the EPA for $25 million. Under the complex statutory structure erected by Congress in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Act), 42 U.S.C. §§ 9601-9675, settling with the government protects a party from further liability claims. See id. § 9613(f)(2). Despite receiving notice of UP’s settlement, Asarco did not object before the district court issued the consent decree. Asarco waited until after entry of the consent decree and brought this collateral case. According to Asarco, UP breached the two companies’ agreement to toll the statute of limitations while “reserv[ing] all [other] rights and defenses.” The district court granted UP’s motion to dismiss, ruling UP did not breach the agreement and the consent decree protected UP from Asarco’s claims. Having duly considered Asarco’s assignments of error, we affirm. I. BACKGROUND The history of this case is an archetypal tale of industrial boom and environmental bust. A. The Smelter About a year after the Golden Spike linked the coasts in 1869, the Omaha Smelting Company began construction on land leased from UP near the eastern terminus of the Transcontinental Railroad. See 1 Omaha: The Gate City and Douglas County Nebraska 226 (Arthur C. Wakeley ed., 1917). Both Omaha and the smelter grew rapidly; within two decades the smelter’s initial capital stock of $60,000 increased to $2.5 million, with over 65,000 tons of ore (then worth $14 million) smelted in 1890. See Lawrence H. Larsen et al., Upstream Metropolis: An Urban Biography of Omaha & Council Bluffs 118 (2007); Nebraska: A Guide to the Com-husker State 282 (1939). Control of the smelter passed to the American Smelter and Refining Company in 1889, and by the 1920s it “was reputed to be the nation’s largest lead refinery,” “producing refined lead,] copper, gold, and silver,” and employing hundreds of immigrants who “spoke a total of fourteen languages.” Larsen, supra, at 118, 206; see Nebraska, supra, at 232. Amid the Great Depression, the smelter continued to produce 150,000 tons of “desilverized lead” a year, making it “one of the largest smelters in the world.” Nebraska, supra, at 220, 232. In 1958, the smelter still had the largest lead refining capacity in the United States: 180,000 tons per year. See United States v. Am. Smelting & Ref. Co., 182 F.Supp. 834, 851 (S.D.N.Y.1960). Beneath the smelter’s soaring smokestacks — one of which in 1939 was “said to be the highest self-supported metal stack in existence,” Nebraska, supra, at 232 — lay a darker story. An early twentieth century study of the “chief centers of the [lead] industry,” including Omaha, found the lead poisoning rate for workers in 1912 was “a little over twenty-two for every 100 employed.” Alice Hamilton, Lead Poisoning in American Industry, 1 J. Indus. Hygiene 8, 10 (1919). Approximately sixty years later, we upheld a finding by the Occupational Safety and Health Review Commission “that airborne -concentrations of inorganic lead at” the Omaha smelter seriously threatened the lives and health of employees. Am. Smelting & Ref. Co. v. Occ. Safety & Health Review Comm’n, 501 F.2d 504, 506 (8th Cir.1974). The smelter “historically discharged wastewater containing lead and other pollutants directly into the [Missouri] river” — potentially “several thousand pounds of lead and other heavy metals and pollutants ... annually.” Armstrong v. ASARCO, Inc., 138 F.3d 382, 384 & n. 3 (8th Cir.1998). Not until 1994 — after lawsuits by citizen plaintiffs and the EPA — did Asarco agree to “limitations on the levels of pollutants [the smelter] was permitted to discharge into the river.” Id. at 384-85. According to the EPA and the State of Nebraska, lead emitted from the smelter also blew downwind and landed in residential areas of Omaha, contaminating soil. Screening in 1997 and 1998 found approximately 21% of children in the area had elevated blood lead levels — -associated with lowered IQ, troubled behavior, impaired hearing, and stunted growth. See Agency for Toxic Substances & Disease Registry, Dep’t of Health & Human Servs., Public Health Assessment for Omaha Lead 11, 15 (2005). Asarco closed the smelter in the late 1990s, paying for remediation and donating the land to the City of Omaha to use as a riverside park. Yet approximately 10% of children in the area still had elevated levels of lead between 2000 and 2002. See id. at 23. B. Superfund Litigation In 2003, the EPA designated approximately 27 square miles around the former Asarco smelter as a Superfund site. The EPA took enforcement action against As-arco, alleging liability of $400 million for the cost of removing lead from the affected area. Faced with crushing environmental liabilities for “many of the largest, oldest, and most complex Superfund sites in the country, including the two largest,” Asarco filed for bankruptcy in 2005. In re ASARCO LLC, No. 05-21207, 2011 WL 2974957, at *9 (Bankr.S.D.Tex. July 20, 2011). In 2009, the bankruptcy court approved Asar-co’s approximately $214 million settlement of the EPA’s claims related to the Omaha site. The EPA also named UP as a potentially responsible party. UP owned the smelter site, leasing it to Asarco until the late 1940s when Asarco bought the land. The Act extends liability to any “owner” of “any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located,” 42 U.S.C. §§ 9601(9), 9607(a)(1), with the only time limit on recovery beginning to run once “remedial action” begins, id. § 9613(g)(2)(B). “Liability under the statute is generally strict and subject to very narrow defenses.” Stewman v. Mid-S. Wood Prods. of Mena, Inc., 784 F.Supp. 611, 615 (W.D.Ark.1992) (M.S. Arnold, J.). Once the government proves liability, “all of the defendants are jointly and severally liable, unless a particular defendant can establish that his harm is divisible, a difficult proposition.” Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 934 n. 4 (8th Cir.1995). UP took the position that peeling lead-based paint — rather than airborne lead from the smelter — was “the main lead source” in the Superfund area. To obtain evidentiary support, UP filed numerous requests for EPA documents under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. UP discovered e-mails indicating some EPA officials were withholding evidence which UP believed could support its position. Learning of this possibility, Asarco sought to intervene in UP’s FOIA case in the hope that material hidden by the EPA could provide a basis to void Asarco’s settlement with the EPA. Yet Asarco also wanted UP to contribute a share of the $214 million already paid. To facilitate Asarco’s intervention in the FOIA case, UP agreed to toll the statute of limitations applicable to any contribution action for “two years after a final judgment is obtained in the FOIA Litigation and any appeals therefrom are exhausted.” Apart from the statute of limitations, the “Tolling Agreement” expressly “reserve[d] all rights and defenses which [Asarco and UP] may have ... to contest or defend any claim or action [by] the other.” Using information obtained by UP, Asarco succeeded in reducing its EPA payment by $15 million. Meanwhile, UP and the EPA agreed to settle their- respective FOIA and CERC-LA claims: without admitting fault, UP would pay $25 million. Asarco’s counsel received direct notice of the tentative agreement, and notice of the CERCLA consent decree appeared in the Federal Register, see Notice of Consent Decrees, 76 Fed.Reg. 33,864 (June 8, 2011). Asarco did not comment or object during the thirty-day public comment period, and the district court approved the settlements on August 9, 2011. The resulting consent decree provided UP with “protection from contribution actions or claims” relating to the Superfund site. See 42 U.S.C. § 9613(f)(2). C. This Case On May 30, 2012, Asarco filed a complaint against UP, alleging breach of contract and seeking contribution. UP moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting the consent decree precluded Asarco’s claims. Resisting dismissal, Asarco claimed the tolling agreement preserved the contribution claims “unaltered” throughout the tolling period. According to Asarco, “UP promised not to do anything to ‘alter’ Asarco’s Contribution Claim — or Asarco’s ability to pursue that claim — for up to two years,” and UP breached that supposed promise by settling with the EPA. The district court disagreed and granted UP’s motion to dismiss. Based on the plain language of the UP consent decree, the district court found “no one can sue [UP] for ‘costs incurred’ in relation to the [Superfund site].” Because granting relief to Asarco would “unravel[]” the consent decree, the district court found Asarco could not prevail “absent a specific waiver.” Carefully reading the parties’ “Tolling Agreement,” the district court found no specific waiver of any defense except one: statute of limitations (unsurprising given the title of the agreement). Concluding all of Asarco’s claims were either prohibited contribution claims or contribution claims “couched as indemnification and breaches of contract,” the district court dismissed Asarco’s complaint and entered judgment in favor of UP. Asarco appeals, invoking our 28 U.S.C. § 1291 appellate jurisdiction. II. DISCUSSION Asarco’s appeal presents three discrete questions. First, do the Act and consent decree protect UP from Asarco’s claims? Second, did UP agree not to obtain contribution protection or use it against Asarco? Third, is UP estopped from relying on the consent decree as a defense? Answering these questions requires us to interpret certain provisions of the Act, the tolling agreement, and the consent decree. We interpret statutes and contracts de novo. See Union Pac. R.R. v. Dep’t of Homeland Sec., 738 F.3d 885, 892 (8th Cir.2013); Rapid Leasing, Inc. v. Nat’l Am. Ins. Co., 263 F.3d 820, 825 (8th Cir.2001). As to the consent decree, we typically afford “a large measure of deference to the interpretation of the district court that actually entered the decree.” United States v. Knote, 29 F.3d 1297, 1300 (8th Cir.1994). But “[w]hen, as here, a district court’s interpretation of a consent decree is based solely on the written document, we review the court’s interpretation de novo.” White v. Nat’l Football League, 585 F.3d 1129, 1141 (8th Cir.2009). A. Is UP Entitled to CERCLA Contribution Protection? We answer the first question in the affirmative. The district court correctly recognized that all of Asarco’s claims are prohibited contribution claims even though some are disguised — like wolves “clad, so to speak, in sheep’s clothing,” Morrison v. Olson, 487 U.S. 654, 699, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting) — as breach of contract claims. In light of the consent decree, the Act unambiguously protects UP against any contribution claim related to the site: A person who has resolved its liability to the United States ... in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement. 42 U.S.C. § 9613(f)(2); see also id. § 9622(g)(5), (h)(4) (using nearly identical language). The consent decree broadly defines the “matters addressed in the settlement” as: all response actions taken or to be taken and all response costs incurred or to be incurred ... at or in connection with the Site, by the United States or any other person. We agree with the district court that this language plainly covers all Superfund remediation costs, whether incurred before or after the consent decree’s effective date, including Asarco’s earlier settlement with the government. As a matter of law, therefore, the Act protects UP from Asar-eo’s contribution action. See 42 U.S.C. § 9613(f)(2); United States v. Davis, 261 F.3d 1, 27-28 (1st Cir.2001) (finding statutory protection based on a nearly identical definition of “matters addressed in the settlement”); United States v. Se. Penn. Transp. Auth., 235 F.3d 817, 822-23 (3d Cir.2000) (reaching the same result based on similar language). Asarco’s brief implies the Act’s contribution protection for settling parties is unfair and hints UP acted duplicitously by settling with the government despite Asarco’s potential contribution claim. We see nothing untoward in UP’s natural desire to receive the benefits of settlement conferred by Congress. The Act’s protections apply even in cases where the settling party is involved in pending contribution litigation. See, e.g., Axel Johnson, Inc. v. Carroll Carolina Oil Co., 191 F.3d 409, 420 (4th Cir.1999) (dismissing a pending contribution appeal as moot in light of a settlement precluding contribution claims). By giving polluters an attractive incentive to settle with the government, the Act spares taxpayers the expense of trial against companies with deep pockets and teams of lawyers. Settling existing cases allows the government to bring new enforcement cases and recover the heavy cost of environmental remediation from the parties responsible for the pollution, further encouraging “polluters to act quickly and aggressively to remedy the harm they have done.” Control Data, 53 F.3d at 936; see also United States v. BP Amoco Oil PLC, 277 F.3d 1012, 1021 (8th Cir.2002). While firmly promoting these purposes, the Act does not leave a party such as Asarco “without remedy,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 164, 2 L.Ed. 60 (1803). The problem for Asarco, as for the hapless petitioner in Marbury, is that the appropriate remedy is not the one being sought. Asarco’s remedy was to object to UP’s settlement and consent decree, not to launch a collateral attack. The Act channels parties like Asarco into the settlement proceedings itself to prevent collateral litigation from undermining the consent decree. Before final settlement, the Act requires public notice and a comment period. See 42 U.S.C. § 9622(i). Asarco could have commented, but apparently chose not to. In addition, other responsible parties like Asarco may intervene as of right in the judicial settlement proceeding, raising any objections they wish. See, e.g., United States v. Union Elec. Co., 64 F.3d 1152, 1170-71 (8th Cir.1995) (reversing entry of consent decree and remanding to allow other responsible parties to intervene); accord, e.g., United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1149-50 (9th Cir.2010); United States v. Albert Inv. Co., 585 F.3d 1386, 1399 (10th Cir.2009). Asarco did not intervene before entry of the consent decree. With a valid excuse, Asarco might even have intervened within a reasonable period afterward to ask for a discretionary modification. Cf. Picon v. Morris, 933 F.2d 660, 662 (8th Cir.1991). This too Asarco failed to do. Instead of pursuing the remedies available under the Act, Asarco sought to circumvent the statutory protection conferred on settling parties. In accordance with clear congressional intent as expressed in the plain language of the Act, the district court rejected Asarco’s circumvention. B. Did UP Breach the Tolling Agreement? We answer the second question in the negative. The district court correctly concluded that UP neither waived the Act’s contribution protection nor breached the tolling agreement by invoking that protection. 1. Applicable Law Federal law governs the question whether a federal statutory right is waiva-ble. See, e.g., Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). But state law may still have a role to play, depending on congressional authorization. See, e.g., Burks v. Lasker, 441 U.S. 471, 477, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979). In some statutory domains, Congress instructs the federal courts to “fashion a complete body of federal law.” Id. In others, the nature of the statutory scheme requires the federal courts to incorporate state law “as the federal rule of decision.” United States v. Kimbell Foods, Inc., 440 U.S. 715, 728, 99 S.Ct. 1448, 59 L.Ed.2d 711 (1979). The threshold question here is whether Congress intended waiver of the Act’s statutory settlement protection to be governed by a uniform federal rule or a federal rule dependent on state law. We are not aware of any circuit decision answering this precise question, but analogous cases lead us to conclude Congress intended us to use state law to determine whether a party chose to waive contribution protection. Interpreting parallel provisions of the Act permitting insurance and indemnification for environmental liability, see 42 U.S.C. § 9607(e), other circuits have uniformly concluded Congress did not wish to displace state law absent a conflict with federal law. See, e.g., Harley-Davidson, Inc. v. Minstar, Inc., 41 F.3d 341, 344 (7th Cir.1994); Beazer E., Inc. v. Mead Corp., 34 F.3d 206, 214 (3d Cir.1994); John S. Boyd Co. v. Boston Gas Co., 992 F.2d 401, 406 (1st Cir.1993); United States v. Hardage, 985 F.2d 1427, 1433 n. 2 (10th Cir.1993); Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1460 (9th Cir.1986). The underlying principle is that the Act focuses on remedying the environmental hazard, not on prescribing how polluters privately choose to apportion the cost of doing so. See Control Data, 53 F.3d at 935-36. Although the question has never been squarely presented to our court, we implicitly joined our sister circuits by incorporating state law in a prior § 9607(e) dispute, see Lion Oil Co. v. Tosco Corp., 90 F.3d 268, 270 (8th Cir.1996), and a prior § 9607(e)-related insurance dispute, see Aetna Cas. & Sur. Co. v. Gen. Dynamics Corp., 968 F.2d 707, 711 (8th Cir.1992). We see no reason to treat waiver of § 9613(f)(2) differently from indemnification under § 9607(e), given that both involve parties’ private allocation of costs through contract. So long as they do not jeopardize federal goals, parties should be free to waive contribution protection through contracts governed by state law. 2. This Case The state law applicable to this case is that of Nebraska. The Nebraska Supreme Court has not established a specific standard for waiver of the statutory right to contribution protection conferred by the Act, see 42 U.S.C. § 9613(f)(2), “so we are obligated to predict what it would hold if the issue were presented to it.” Maschka v. Genuine Parts Co., 122 F.3d 566, 573 (8th Cir.1997). Waiver, under Nebraska law, “is a voluntary and intentional relinquishment or abandonment of a known existing legal right or such conduct as warrants an inference of the relinquishment of such right.” Wheat Belt Pub. Power Dist. v. Batterman, 234 Neb. 589, 452 N.W.2d 49, 53 (1990) (emphasis added). UP’s right to contribution protection was neither “known” nor “existing” when the parties signed the tolling agreement, which predated the consent décree conferring the right by nearly two years. Id. We therefore predict the Nebraska Supreme Court would hold the tolling agreement did not waive UP’s unknown, later-acquired right to contribution protection. See, e.g., Davenport Ltd. P’ship v. 75th & Dodge I, L.P., 279 Neb. 615, 780 N.W.2d 416, 425 (2010). In making this prediction, we recognize the Nebraska Supreme Court might read “known existing legal right” to include future rights expressly contemplated and relinquished. In Village of Memphis v. Frahm, 287 Neb. 427, 843 N.W.2d 608 (2014), the Nebraska Supreme Court found a party “waived any claims” by waiving “any and all claims ... whether known or unknown.” Id. at 613-14 (emphasis added). The Frahm court did not specifically address whether any of the claims the party sought to raise were unknown at the time of the waiver, but neither did the court specify the claims were all known. It therefore seems that parties operating under Nebraska law might be able to waive uncertain future rights through specific and unambiguous language such as that used in Frahm. Cf., e.g., Adams v. Philip Morris, Inc., 67 F.3d 580, 584 (6th Cir.1995) (“Where a release waives rights unknown to the releaser at the time of signing the waiver ... the release must be particularly scrutinized as to the intent of the parties.”). Accepting this premise without deciding it, we still conclude UP did not waive the Act’s protection. Far from specifically waiving “any and all” defenses “whether known or unknown,” Frahm, 843 N.W.2d at 613, the tolling agreement in this case expressly “reserve[d] all rights and defenses which [UP] may have, except as set forth in th[e tolling agreement], to contest or defend any claim or action [Asarco] may assert or initiate.” Nothing in the tolling agreement “specifically waive[d] the statutory right,” later acquired by UP, to contribution protection under the Act. Crete Educ. Ass’n v. Saline Cnty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166, 180 (2002). Relying on the assumption that the parties “intended to preserve [the] contribution claims intact and unaltered until conclusion of the FOIA action,” Asarco concludes an “explicit waiver” was not necessary. We cannot accept Asarco’s predicate assumption because we agree with the district court that “[t]here is no clear agreement between the parties to preserve anything other than an extended two-year statute of limitations.” Asarco’s reliance on a provision in the tolling agreement regarding alternative dispute resolution is especially misplaced because this provision is inextricable from UP’s unambiguous reservation of “all [other] rights and defenses.” But even if Asarco’s assumption were true, it was not the “conclusion of the FOIA action,” but rather the conclusion of the EPA’s separate CERCLA action which gave UP contribution protection. The government notified Asarco in a pre-settlement filing in the FOIA action that “[i]f settlement negotiations between [UP and the EPA] are successful in resolving ... the CERCLA claims, ... [they] would then file that settlement agreement in the context of a CERCLA case.” (Emphasis added). That is precisely what happened. The FOIA and CERCLA cases, resolved through two settlements on the same date, remained formally distinct. Asarco’s contribution claims remained fully intact until the end of the FOIA case, when UP— without breaching any provision of the tolling agreement — simultaneously received a statutory defense by settling the CERCLA case. In any event, Asarco’s conclusion is independently flawed. UP’s contribution protection is a statutory right, and Nebraska law requires waiver of known and existing statutory rights to be “clear and unequivocal.” Bacon v. DBI/SALA, 284 Neb. 579, 822 N.W.2d 14, 32 (2012). The Nebraska Supreme Court “ ‘will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is explicitly stated.’ ” Hogelin v. City of Columbus, 274 Neb. 453, 741 N.W.2d 617, 624 (2007) (emphasis added) (quoting Metro. Edison Co. v. NLRB, 460 U.S. 693, 708, 103 S.Ct. 1467, 75 L.Ed.2d 387 (1983)). We agree with the district court that the tolling agreement contains “no language that expressly waives the CERCLA contribution defense.” See, e.g., Zarrs v. Keck, 40 Neb. 456, 58 N.W. 938, 935 (1894). Given that UP had not yet acquired statutory contribution protection, we are all the more convinced there was no waiver under Nebraska law. UP also did not breach any contractual obligation to Asar-co because nothing in the tolling agreement prevented UP from obtaining protection under the Act. C. Is UP Estopped from Invoking Contribution Protection? We decline to answer the third question because Asarco never presented its estoppel argument to the district court. On appeal, Asarco informs us Count III of its complaint, requesting a declaration that UP “may not assert contribution protection under [the Act],” rests on an estop-pel theory. Asarco accuses the district court of “failflng] to consider whether the allegations in the Complaint regarding [UP’s] misleading communications could form the basis for estoppel” and “simply ignoring] these allegations in the Complaint, which are sufficient to make out a claim for declaratory judgment in Count III based on estoppel or waiver of the right of contribution protection.” Asarco also accuses UP of “having ignored Count III of the Complaint below.” Asarco’s accusations are unfounded. None of Asarco’s district court filings mention estoppel. Asarco’s response to UP’s motion to dismiss had only this to say about Count III: Count III (“Declaratory Judgment Under Federal Law”) is a properly pled claim for a declaratory judgment that UP “must abide by its promises in the Tolling Agreement to preserve Asarco’s claims unaltered for the term of the Tolling Agreement and may not assert contribution protection ... against As-arco’s contribution claim ... related to the [site].” The Federal Declaratory Judgments Act enables this Court to do exactly what Asarco’s claim requests— “declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). The Eighth Circuit routinely upholds declaratory judgments that “determine” contractual rights. See, e.g., Maytag Corp. v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 687 F.3d 1076, 1083 (8th Cir.2012). (Omissions in original) (citation to the record omitted) (emphasis added). Not only does this paragraph — the only one addressing Count III — fail to mention estop-pel, it expressly links Count III solely to “promises in the Tolling Agreement” and asks for a declaration of “contractual rights.” Having thus limited itself to the tolling agreement and failed to mention estoppel, Asarco should not be surprised neither the district court nor UP searched the record to uncover vague extra-contractual allegations. “ ‘Judges are not like pigs, hunting for truffles buried in briefs’ ” or the record. Brown v. City of Jacksonville, 711 F.3d 883, 888 n. 5 (8th Cir.2013) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (per curiam)). Asarco forfeited the right to relief on appeal by failing to raise its estoppel theory below. See, e.g., Hartman v. Smith, 734 F.3d 752, 761-62 (8th Cir.2013). III. CONCLUSION Called upon for the second time in the last hundred years to resolve a smelter-related dispute between Asarco and UP, see Am. Smelting & Ref. Co. v. Union Pacific R.R., 256 F. 737 (8th Cir.1919), we affirm the district court’s well-reasoned opinion and judgment. . The Honorable Laurie Smith Camp, Chief Judge, United States District Court for the District of Nebraska. . The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska. . By comparison, last month the average official cash price for a ton of lead on the London Metal Exchange was $2,188.33. See Average Official & Settlement Prices US$/tonne for the Month of July 2014, London Metal Exchange (July 31, 2014), www.lme.com/7media/Files/ Market% 20data/Historic% 20Data/July% 202014.xlsx. Multiplied by 65,000 tons, this price suggests the smelter’s 1890 output would be worth approximately $142 million today. . We find no merit in UP’s alternative argument that the Act affirmatively prohibits waiver. It is well established that both statutory and constitutional rights are presumptively waivable. See, e.g., New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). Giving a settling party the option to waive contribution protection furthers the Act’s goal of promoting quick settlement with the government by enabling a party to exclude from protection claims by another responsible party who might otherwise intervene and derail the settlement. . Nebraska’s definition of waiver is well established in our legal tradition. Justice Hugo Black, for example, defined waiver as “an intentional relinquishment or abandonment of a known right or privilege” in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). At common law, it was a "frequently recognized” principle that a landlord waives a breach by accepting rent "only where he knows [of] the [breach] at the time.” Roe d. Gregson v. Harrison, (1788) 100 Eng. Rep. 229 (K.B.) 231-32; 2 Term Rep. 425, 430-31.

Textileather Corp. v. GenCorp Inc.

OPINION SILER, Circuit Judge. Textileather Corporation, which purchased a vinyl-manufacturing facility with hazardous waste management units (“RCRA units”) from GenCorp Inc., appeals from the district court’s grant of summary judgment to GenCorp in this breach-of-contract and Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) action. We AFFIRM IN PART, REVERSE IN PART, and REMAND the case to the district court for further proceedings consistent with this opinion. I. GenCorp owned and operated a vinyl-manufacturing facility from the mid-1950s to 1990, including the operation of several RCRA units, which reclaimed solvent waste. Under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., GenCorp was obligated to obtain permits to operate these units. In 1989, GenCorp entered into negotiations to sell the vinyl-manufacturing facility to Textileather. In order to address allocation of each side’s liabilities, the parties jointly hired an environmental consulting firm. GenCorp applied for, but had not received, all of the required RCRA permits at the time of its agreement with Textileather. The negotiations culminated in an Asset Purchase Agreement (“APA”), which specified, in relevant part, GenCorp’s retained liabilities, and contained a provision requiring each party to indemnify and defend against their retained liabilities. Section 9.1.1 of the APA, titled “Retained Liabilities,” provides the following: Seller will retain responsibility for: (a) all liabilities, if any, to third persons in respect of the substances, conditions and other matters which are included on the Chemicals List in Section 9.1.6, ... whenever such liabilities may arise, and by whatever third persons may assert such liabilities, specifically including (A) fines, penalties, judgments, awards, settlements, losses, damages, costs, fees (including attorneys’ and consultants’ fees), expenses and disbursements, (B) defense and other responses to any administrative or judicial action (including claims, notice letters, complaints and other assertions of liability) instituted by any third person concerning any such liability, and (C) financial responsibility for (i) cleanup costs and injunctive relief, including any removal, remedial or other response actions, and natural resource damages, and (ii) any other compliance or remedial measures .... and (b) all liabilities, if any, to third persons (including the types of liabilities identified in (a)(A)-(C) above) in respect of any substance, condition or other matter related to the off-site management (including handling, storage, treatment, recycling, transportation or disposal) of any material after June 14, 1954 and prior to the Closing at any off-site property. Section 9.1.4, titled “Indemnification,” provides the following: Seller will indemnify and defend Purchaser with respect to the liabilities retained by Seller as provided in Sections 9.1.1 and 9.1.2 above; provided that Purchaser promptly gives Seller notice of any claims or actions, transmits to Seller copies of all documents and papers received by or served on Purchaser in connection therewith, permits Seller to control the defense thereof, and (at its own expense) fully cooperates with Seller in the defense thereof. Purchaser will indemnify and defend Seller with respect to the liabilities assumed by Purchaser as provided in 9.1.3 above; provided that Seller promptly gives Purchaser notice of any claims or actions, transmits to Seller copies of all documents and papers received by or served on Seller in connection therewith, permits Purchaser to control the defense thereof, and (at its own expense) fully cooperates with Purchaser in the defense thereof. The parties entered the APA on May 30, 1990, and Textileather became the owner of the vinyl-manufacturing facility on June 4,1990. Six months after the purchase, Textileather decided to discontinue use of the RCRA units. Textileather began the closure process required by Ohio Administrative Code § 3745-66. However, during Textileather’s efforts to close the RCRA units, the Ohio Environmental Protection Agency (“OEPA”) issued several Notices of Deficiency. These notices led to an extended period of negotiations between OEPA and Textileather. The Notices of Deficiency required Textileather to complete a detailed soil-sampling analysis, as well as follow OEPA-developed, site-specific clean-up standards and implement a ground-water-monitoring program. For a more detailed account of the interactions between Textileather and OEPA, see Textileather v. Korleski, Nos. 06AP955, 06AP956, 2007 WL 2306968 (Ohio Ct.App. Aug. 14, 2007). In 2001, OEPA approved a closure plan submitted by Textileather. In its letter regarding the approved closure plan, OEPA noted that compliance with this approved plan was expected and would be monitored. Textileather appealed portions of the approved plan. The Ohio Tenth District Court of Appeals affirmed the plan in part and reversed in part with instructions to OEPA to approve a plan consistent with its holding. OEPA has not yet issued a new plan. Throughout the course of the RCRA closure proceedings, including the negotiation of various plans and appeal of the approved plan, Textileather notified GenCorp that it believed, pursuant to the APA, GenCorp was obligated to indemnify and defend Textileather in these proceedings. Textileather brought this action to recover the costs it incurred in the RCRA closure proceedings. Textileather and GenCorp filed cross-motions for summary judgment, and the district court granted GenCorp’s motion and denied Textileather’s motion. In particular, the district court held the APA to be unambiguous and determined that, under the terms of the APA, OEPA did not constitute a “third party” and Textileather’s RCRA closure proceedings with OEPA did not constitute a “claim or action.” II. We review a grant of summary judgment de novo, construing the evidence and drawing all reasonable inferences in favor of the nonmoving party. Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011). A. Breach of Contract Claim Textileather argues that the district court erred in its interpretation of the APA because that agreement requires GenCorp to defend and indemnify Textileather for the RCRA closure proceedings. We agree that, under the APA, GenCorp bears responsibility. Per the terms of the APA, Ohio law governs the dispute. Under this law, contract interpretation is a question of law for determination by the court. Savedoff v. Access Grp., Inc., 524 F.3d 754, 763 (6th Cir.2008); Saunders v. Mortensen, 101 Ohio St.3d 86, 801 N.E.2d 452, 454 (2004). Ohio courts examine contracts in order to determine the intent of the parties, which is presumed to reside in the language of the agreement. Savedoff, 524 F.3d at 763. We must apply the plain language of the contract unless that language is ambiguous. Id. “[C]ommon words appearing in a written instrument will be given their ordinary meaning unless manifest absurdity results[ ] or unless some other meaning is clearly evidenced from the face or overall contents of the instrument.” Foster Wheeler Enviresponse, Inc. v. Franklin Cnty. Convention Facilities Auth, 78 Ohio St.3d 353, 678 N.E.2d 519, 526 (1997) (quoting Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146, 150 (1978), superseded by statute on other grounds). “[A] writing, or writings executed as part of the same transaction, will be read as a whole, and the intent of each part will be gathered from a consideration of the whole.” Id. 1. Third Person We begin by addressing whether OEPA is a “third person.” Section 9.1.1 of the APA defines GenCorp’s retained liabilities as limited to those owed to “third persons.” The district court reasoned that “the parties cannot provide, nor has the Court found, any case holding that a regulatory obligation incurred by a party’s own business decision is the same as a third-party claim or action.” In considering this issue, the district court explained that OEPA could act as a third party if “OEPA demands Textileather clean-up, but Textileather refuses, and ... OEPA then hires a contractor to come in and do the cleanup. In this situation, ... OEPA would be a ‘third person’ contemplated by the APA who may attempt to sue Textileather to recover its costs.” Because Textileather complied with OEPA’s orders instead of disregarding them, the district court found only first-party regulatory obligations in this case, which it did not view as covered by the APA. We interpret the phrase “third person” differently. To ascertain the common meanings of terms or phrases not defined in the language of contracts, Ohio courts routinely turn to dictionaries. See, e.g., United Ohio Ins. Co. v. Brooks, No. 12-11-04, 2012 WL 1099821, at *4 (Ohio Ct. App. Apr. 2, 2012) (slip copy) (citing Merriam Webster’s Collegiate Dictionary and Black’s Law Dictionary); Ohio Valley Associated Builders & Contractors v. Rapier Elec., Inc., 192 Ohio App.3d 29, 947 N.E.2d 1261, 1265 (2011). The APA does not define the phrase “third person,” but it is commonly understood to refer to a person or entity who is not a party to an interaction or agreement. See, e.g., Oxford English Dictionary (2002) (“[additional to and distinct from two others already known or mentioned”); Webster’s Third New International Dictionary (2002) (“someone or something that is neither the speaker or writer of the utterance in which they occur nor the one to whom that utterance is addressed”); The Random House College Dictionary (1980) (“anything or anyone other than himself or the one or ones to whom he is speaking”). OEPA was not a party to the APA, so it fairly falls under the common meaning of “third person.” The remainder of the APA presents further evidence that OEPA should be considered a “third person.” Section 9.1.1 provides examples of the types of third-party liabilities retained by GenCorp, and those include fines, penalties, responses to administrative actions, and financial responsibility for compliance and remedial measures. The examples reflect various forms of liability that governmental agencies, such as OEPA, could require Textileather to incur. Thus, the phrase “third person” must be broad enough to cover entities to whom the aforementioned examples of liability could be owed because the use of these examples illustrates that the parties intended the coverage of Section 9.1.1 to include them. Additionally, Anderson Development Co. v. Travelers Indemnity Co., 49 F.3d 1128 (6th Cir.1995), is instructive. In that case, a panel of this court explained that, under Michigan law, existing environmental nuisances constitute third-party liabilities. The EPA warned the plaintiff that failure to comply with potentially responsible party (PRP) notices would result in the plaintiffs being liable for all costs associated with removal or remedial action and all other necessary costs incurred in cleaning up the location. Id. at 1130. Subsequently, the EPA determined that a clean-up would be required. Id. The plaintiff cooperated voluntarily. Id. at 1134. The plaintiff had a liability insurance policy and notified its insurer of this claim, but the insurer refused to defend or cover the matter. Id. at 1130. The plaintiff then filed suit against its insurer, seeking a declaration that its liability insurance policies covered all the costs of defense and indemnification resulting from the EPA negotiations and environmental clean-up. Id. The district court granted the defendant’s motion for summary judgment because it found that the letter and consent decree were not a lawsuit and that environmental cleanup costs were not damages. Id. On appeal, we held that when the EPA mandated a clean-up, it constituted a third-party liability. Id. at 1134. GenCorp’s efforts to distinguish Anderson are not persuasive. First, under Ohio law, GenCorp stepped into the position of an insurer to the extent provided for in the indemnity provision. See Allen v. Standard Oil Co., 2 Ohio St.3d 122, 443 N.E.2d 497, 499-500 (1982) (involving an analogous indemnity provision). Thus, the fact that Anderson arises in the insurance context has no substantive import. Second, Ohio courts consider PRP notices to be claims of liability. See Prof'l Rental, Inc. v. Shelby Ins. Co., 75 Ohio App.3d 365, 599 N.E.2d 423, 430 (1991). For reasons detailed in the next section, this determination brings PRP notices under the APA. Anderson substantiates our conclusion that OEPA is a third party in this case. In both the case at bar and Anderson, a government agency demanded clean-up. In both cases, the plaintiff sought indemnification based upon a prior contract. Unlike the hypothetical situation suggested by the district court, neither plaintiff refused to comply with the government agency; instead, each plaintiff chose to comply voluntarily. In Anderson, the voluntary nature of the compliance did not change the EPA’s status as a third party relative to the contract to indemnify and defend. 49 F.3d at 1134 (“Thus ... there was indeed liability to a third party — the EPA.”). Similarly, Textileather’s compliance does not change OEPA’s status in this case. The contract’s use of the term “third person” unambiguously includes administrative agencies, such as OEPA. 2. Demands for Liability Next, the OEPA closure proceedings constitute demands for liability addressed by the APA. The first sentence of Section 9.1.4, the only sentence which discusses GenCorp’s indemnity responsibilities, contains two clauses separated by a semicolon. The first clause explains the liabilities for which GenCorp is obligated to indemnify and defend. The second clause describes notice and filing requirements that Textileather must meet in order for GenCorp to defend it. The clause explaining GenCorp’s obligation to indemnify defines that obligation by reference to Sections 9.1.1 and 9.1.2. The phrase “claims or actions” only appears in the subsequent clause which describes the notice and filing requirements. Based on this structure, the phrase “claims or actions” is best understood to refer back to the liabilities described in the previous clause. But the term “liability” is not defined in the APA. However, liability is commonly understood to mean a monetary obligation, “something disadvantageous,” or “the state or quality of being liable.” The Random House Dictionary (2012); see The American Heritage New Dictionary of Cultural Literacy (2005) (“[a]n obligation or debt”); Oxford English Dictionary (1989) (“[t]he condition of being liable or answerable by law or equity”). The final closure plan required Textileather to perform various investigations and clean-ups. These measures and their inherent costs to Textileather constitute something disadvantageous. Furthermore, the letter that OEPA wrote to Textileather, which was attached to the approved closure plan, illustrates that Textileather was legally responsible for compliance. In that letter, OEPA states: [c]ompliance with the approved closure plan ... is expected. Ohio EPA will monitor such compliance. The director expressly reserves the right to take action ... to enforce such compliance and to seek appropriate remedies in the event of noncompliance with the provisions and modifications of this approved closure plan.... You are hereby notified that this action of the director of the Environmental Protection Agency is final and may be appealed to the Environmental Review Appeals Commission pursuant to Ohio Revised Code Section 3745.04. The plain language of the letter illustrates that OEPA considers this approval to be an administrative action requiring compliance. Further, the fact that Textileather appealed the closure plan demonstrates that the closure plan’s demands for liability were subject to impartial oversight. Because the closure plan required Textileather to take certain actions and thereby incur certain monetary obligations, it is appropriately considered a demand for liability. The Notices of Deficiency are also liabilities covered by the APA. Notices of Deficiency permit the director of OEPA to require a party to take certain actions. Ohio Admin. Code § 3745-66-12(D)(4) (explaining that “[i]f the director does not approve the plan he will provide the owner or operator with a detailed written statement of reasons for the refusal and the owner or operator must modify the plan or submit a new plan for approval within thirty days after receiving such written statement”). In this case, the Notices of Deficiency required that, among other things, Textileather provide OEPA with a detailed soil sampling analysis, follow OEPA-developed site-specific clean-up standards, and implement a ground-water-monitoring program. Requiring Textileather take these actions necessarily imposed monetary obligations on Textileather. Thus, it is reasonable to consider these notices as demands for liability. Both of these demands are backed by OEPA’s legal authority. The director of OEPA has the authority to issue Notices of Deficiency and to approve closure plans under Ohio Administrative Code §§ 3745-66-11, 3745-66-12. Both of these rules were promulgated pursuant to the authority granted to the director of the OEPA by Ohio Revised Code Annotated § 3734.12. See Ohio Admin. Code §§ 3745-66-11, 3745-66-12. Under Ohio Revised Code Annotated § 3734.13, the director of OEPA can request that the Attorney General for the State of Ohio institute a civil action to enforce a violation of Section 3734 or a violation of the rules adopted pursuant to the authority given to the director in that chapter. Failure to comply with a closure plan can lead to injunctive relief and civil penalties. Eg., State ex rel. Petro v. Mercomp, Inc., 167 Ohio App.3d 64, 853 N.E.2d 1193, 1201-02 (2006) (affirming a Court of Common Pleas grant of summary judgment to the State of Ohio for claims that the defendant failed to comply with an approved closure plan). Because the orders are backed by legal authority, they are demands for liability. Construing demands for clean-up as a demand for liability is supported by Ohio case law. Prof'l Rental, Inc., 599 N.E.2d at 427, provides insight into how Ohio Courts would evaluate the communications at issue in this case. The court considered whether a PRP notice imposes liability and determined that the PRP notice was not a lawsuit because it did not impose liability. Id. at 429-30. Rather, PRP notices require a further step to impose liability. Id. However, the court found these notices to be a “claim” of liability and demand for restitution because, unlike lawsuits, PRP notifications do not compel clean-up. Thus, under Ohio law, the distinction between demanding and enforcing a liability is whether a party is compelled to resolve it. Because of the director’s ability to enforce Notices of Deficiency and approve closure plans with one additional step, Ohio courts could reasonably consider these letters to be demands for liability. The notices in this case are also covered by Section 9.1.1 of the APA. The list of examples of GenCorp’s retained liability in Section 9.1.1(a) demonstrates that the parties intended the term “liability” to be used broadly. The parties specifically stated that GenCorp retained responsibility for “other responses to any administrative or judicial action (including claims, notice letters, complaints and other assertions of liability) instituted by any third person concerning any such liability.” The parenthetical illustrates the breadth of the assertions of liability that the parties intended to include in this contract. Because all of Textileather’s actions were taken in response to either notice letters or other assertions of liability expressly stated in the APA, the unambiguous interpretation of the APA is that its indemnity provisions included the costs associated with these responses. Therefore, the costs at issue in this case were unambiguously based on a third person’s demand for liability and are covered by the plain language of Section 9.1.1. Last, GenCorp claims that this case should be dismissed under Section 9.1.1(a)(2)(B), which provides: [GenCorp] will have no responsibility or obligation in respect of: .•.. (2) any substance, condition or other matter included on the Chemicals List in respect of which an action is first asserted after [the deal closed], to the extent that such action: ... (b) is asserted directly because of actions taken by [Textileather] or its employees, except actions (including the filing of any report or document) that [Textileather] is legally obligated to take. GenCorp argues that OEPA’s orders should be considered “asserted directly because of actions taken by” Textileather, and, therefore, liability for them was not retained by GenCorp. Textileather responds, and we agree, that the liabilities at issue fall within the exception to the exception. Under Section 9.1.1(2)(b) any action that Textileather is legally obligated to take is excluded from this exception. Upon receipt of the final volume of hazardous waste, Textileather was under a legal obligation to close the RCRA units pursuant to an OEPA-approved closure plan. Ohio Admin. Code § 3745-66-13. In order to secure an approved closure plan, Textileather drafted several closure plans. OEPA issued various Notices of Deficiency until finally agreeing to the approved closure plan. Textileather’s actions in response to the Notices of Deficiency and the approved closure plan were legally required by OEPA. Thus, the liabilities at issue stem from actions Textileather was legally obligated to take. For the foregoing reasons, as to this claim, we reverse the district court’s decision granting summary judgment to GenCorp and instruct the district court to enter summary judgment in favor of Textileather on the legal question of whether the retained liabilities section applies. We remand this case to the district court for proceedings to determine the appropriate allocation of costs and damages under the terms of that provision. B. CERCLA Claim Textileather argues that the district court erred in finding that the contract’s language was broad enough to include CERCLA liability. Parties may allocate CERCLA liabilities in their contract. White Consol. Indus., Inc. v. Westinghouse Elec. Corp., 179 F.3d 403, 409 (6th Cir.1999) (citation omitted). Even when a contract was written prior to the passage of CERCLA, we have found that contracts which used sufficiently broad language could transfer CERCLA liability. Id. In White, we noted that Ohio law did not address whether a contract written before CERCLA was enacted could transfer CERCLA liability. Id. at 409-10. After examining other circuit court precedent, we found that a contract allocates CERCLA liability when “it is either specific enough to include CERCLA liability or general enough to include any and all environmental liability.” Id. at 410 (collecting cases). At the time of this decision, no Ohio state court has decided what language is required to allocate CERCLA responsibility, and we believe that Ohio courts would be persuaded that the language required by White is sufficient to transfer CERCLA liability. We affirm the district court’s decision on this issue on that basis. The APA provides that “[Textileather] will assume [GenCorp’s] liabilities in respect of any substance or environmental conditions relating to the Business except those retained by [GenCorp] provided in Sections 9.1.1 and 9.1.2.” But Section 9.1.1 is expressly limited to liabilities to third persons. By the plain language of this provision, the APA allocates all environmental liabilities, including CERCLA liability. Textileather argues that the district court is mistaken in its interpretation. It claims that it only assumed liabilities relating to the “Business.” “Business” is a defined term in the APA: “manufacturing automotive soft interior and other products.” Textileather adds the phrase “conducted as of May 30, 1990” to that definition. However, Textileather does not provide a citation for this additional phrase. There are two reasons why this argument is not persuasive. First, because it is unclear where the “May 30, 1990” addition came from, there is no reason to assume that it was the intent of both parties to define the term “Business” as only including the events occurring after that date. Second, reading the APA as a whole provides further support that all environmental liabilities, except those in Section 9.1.1, were assigned. Unlike Sections 9.1.1(a), 9.1.2, and 9.1.3, Section 9.1.1(b) makes an explicit reference to the time frame of GenCorp’s ownership. Had the parties intended to limit Section 9.1.3 as Textileather contends, it is reasonable to expect similar language to appear in Section 9.1.3. For these reasons, Textileather’s first argument is not persuasive. Additionally, Textileather argues that we should look to other circuits and district courts in order to hold that the contract does not allocate CERCLA liability. Textileather cites various cases which involve a more limited transfer of liability and where the court did not find that CERCLA liability was transferred. E.g., PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 615 (7th Cir.1998) (holding that due to the existence of a provision which limited the hold-harmless provision, the contract did not extinguish CERCLA claims); Beazer E., Inc. v. Mead Corp., 34 F.3d 206, 216-19 (3d Cir.1994) (construing a more limited provision). Due to our holding in White and the broad and unambiguous allocation of environmental liabilities in the APA, these cases do not justify overturning the district court judgment. Therefore, the district court properly concluded that the allocation and assumption of liability provisions apply to CERCLA claims as well. GenCorp retained only those CERCLA liabilities covered by Sections 9.1.1 and 9.1.2. III. For the foregoing reasons, we AFFIRM IN PART, REVERSE IN PART, and REMAND the case to the district court for further proceedings consistent with this opinion. . Section 9.1.1 applies to chemicals on the Chemicals List in Section 9.1.6, and there is no dispute that some of the chemicals at issue in the closure proceedings are included on the Chemicals List.

United States v. George A. Whiting Paper Co.

KANNE, Circuit Judge. In 2009, the United States and the State of Wisconsin (“the Governments”) filed suit in federal district court against eleven of the potentially responsible parties (“PRPs”) in an environmental cleanup, seeking response costs under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (CERCLA). Shortly thereafter, the Governments filed notice of a de minimis consent decree pursuant to CERCLA § 122(g). Eventually, the Governments moved for settlement. Appleton Papers Inc. and NCR Corporation intervened. The district court granted the settlement motion over the intervenors’ opposition. Later, the Governments moved for a de minimis settlement with a twelfth defendant, and the district court granted this motion. Appleton and NCR appealed the grant of both settlement motions. We affirm. I. Background The Fox River in Wisconsin is heavily contaminated with Polychlorinated biphenyls (“PCBs”). The Governments contend Appleton and NCR are responsible for much of these PCBs. Their predecessors, according to the Governments, contributed significant amounts of Aroclor 1242, the most prevalent PCB in Fox River. The river also contains other PCBs, including Aroclor 1254 and Aroclor 1260. Appleton, NCR, and a few other PRPs are currently paying to clean up Fox River in compliance with a 2007 Environmental Protection Agency order. Appleton and NCR are seeking contribution, in a separate suit, from many other PRPs. These include the twelve PRPs subject to the consent decrees in this suit: Neenah Foundry Company; Green Bay Metropolitan Sewerage District; the City of De Pere; Procter & Gamble Paper Products Company; Union Pacific Railroad Company; Green Bay Packaging, Incorporated; Heart of the Valley Metropolitan Sewerage District; Lafarge Corporation; Leicht Transfer and Storage Company; Wisconsin Public Service Corporation; International Paper Company; and George A. Whiting Paper Company (the “de minimis defendants”). In 2009, the Governments filed suit against the de minimis defendants under CERCLA §§ 106 and 107. See 42 U.S.C. §§ 9606, 9607. The Governments then filed two separate consent decrees — one for the City of De Pere, the other for the remaining de minimis defendants. De Pere agreed to pay $210,000 to satisfy its liability. .The others agreed to pay a combined total of $1,875,000. The Governments estimated that the total cleanup cost would be, accounting for uncertainty, $1.5 billion. They also estimated that each of the de minimis defendants had discharged no more than 100 kilograms of PCBs and that, in total, 230,-000 kilograms of PCBs had been discharged into the Fox River. The total discharge estimate is a conservative one, based on a low-end estimate of Aroclor 1242, not total PCBs. The Governments based their individual contribution estimates on the de minimis defendants’ responses to CERCLA § 104(e) information requests (“§ 104(e) requests”), on discovery responses from Appleton and NCR’s contribution suit, and on statements by the de minimis defendants certifying that they had turned over all information related to their use of PCBs. The Department of Justice filed notice of the consent decrees in the Federal Register and solicited public comment. Appleton and NCR objected to both settlements, arguing that the settlements underestimated the de minimis defendants’ contributions. Appleton and NCR based their objections on studies suggesting that the Governments had underestimated the amount of Aroclor 1254 and 1260 in the Fox River. These studies also provided direct evidence of PCB use by some de minimis defendants. The Governments agreed with NCR on one point: they recognized that Green Bay Metro Sewerage may have discharged more than 100 kilograms of PCBs. Appleton and NCR claimed Green Bay Metro Sewerage had discharged up to 324 kilograms. The Governments made an even more cautious estimate of 480 kilograms, and Green Bay Metro agreed to a corresponding payment of $325,000. The remaining de minimis defendants’ payments remained the same. After the notice and comment process, the Governments moved for settlement in the district court. Appleton and NCR intervened and opposed the motions for settlement. The district court approved both settlement decrees and granted the motions for settlement. Appleton and NCR then appealed. II. Analysis In reviewing the consent decrees, we are constrained by a double dose of deference. See United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir.1990). First, the trial court must defer to the expertise of the agency and to the federal policy encouraging settlement. In re Tutu Water Wells CERCLA Litigation, 326 F.3d 201, 207 (3d Cir.2003). Thus, the district court must approve a consent decree if it is reasonable, consistent with CERCLA’s goals, and substantively and procedurally fair. Id. We, in turn, defer to the district court’s decision — reviewing only for an abuse of discretion. Cannons Eng’g, 899 F.2d at 84. A No Rational Basis The district court concluded the consent decrees were substantively fair. Appleton and NCR argue that this conclusion has no rational basis in the record. A consent decree is substantively fair if its terms are based on comparative fault. Tutu Wells, 326 F.3d at 207; Cannons Eng’g, 899 F.2d at 87. The calculation of comparative fault “should be upheld unless it is arbitrary, capricious, and devoid of a rational basis.” Cannons Eng’g, 899 F.2d at 87 (“[W]hat constitutes the best measure of comparative fault ... should be left largely to the EPA’s expertise.”). Rarely does an appellate court conclude the district court had no factual basis to approve a consent decree. Appleton and NCR can point to only one such holding. In United States v. Montrose Chem. Corp., the Ninth Circuit reversed the approval of a consent decree because the record included no information — not even an unsupported estimate — about the total cost of cleanup or the settling parties’ comparative fault. 50 F.3d 741, 747 (9th Cir.1995). We need not decide whether an unsupported estimate would be a sufficient factual basis to affirm a consent decree — the Governments’ estimate here has adequate support in the record. According to Appleton and NCR, the only bases for the de minimis defendants’ comparative fault are the Governments’ unsupported conclusions. In reality, the record includes information about each of the de minimis defendants’ discharges of PCBs. Whiting Paper, Green Bay Metro Sewerage, Green Bay Packaging, Heart of the Valley, International Paper, Procter & Gamble, and Union Pacific all responded to § 104(e) requests. The de minimis defendants that did not respond to § 104(e) requests provided certified statements about their use of PCBs and about any potential discharges. The record also included deposition transcripts and written discovery responses produced in related litigation. Finally, the record included information drawn from the public comment process. Contrary to Appleton and NCR’s argument, these sources are not devoid of content. In fact, Appleton and NCR used the information from Green Bay Metro Sewerage’s § 104(e) responses to demonstrate that Green Bay Metro Sewerage’s discharges exceeded the Governments’ original estimate. Given the amount of relevant information in the record, we find that the record provides a rational basis on which the district court could conclude the consent decrees were substantively fair. B. Consideration of non-124.2 Aroclors Appleton and NCR next argue that the consent decrees are not substantively fair because the estimates of the de minimis defendants’ comparative fault do not account for non-1242 Aroclors. This argument rests on a false premise. In truth, the estimates of the individual de minimis defendants’ comparative fault account for discharges of all PCBs — not just Aroclor 1242. According to Appleton and NCR, the Governments relied on surveys of PCB pollution — which focus on Aroclor 1242 — to derive individual estimates. But the Governments actually relied on § 104(e) responses and other direct information about the de minimis defendants’ discharges. These sources cover discharges of all PCBs. The Governments did consider only Aroclor 1242 in their estimate of the total amount of PCBs discharged into the Fox River. But Appleton and NCR wisely do not contest this choice: including non-1242 Aroclors in this estimate would have only decreased the de minimis defendants’ comparative fault. Appleton and NCR’s only argument, then, is that the evidence it has presented about the presence of non-1242 Aroclors shows that the consent decrees lack a rational basis. We reiterate that a district court should defer to the Governments’ expertise in weighing ambiguous and conflicting evidence of substantive fairness. Cannons Eng’g, 899 F.2d at 88. And we will only disturb the district court’s decision if Appleton and NCR can show that the court ignored a material factor or made “a serious mistake in weighing” the relevant factors. Id. at 84. Appleton and NCR have not met this heavy burden. They point to studies suggesting that Aroclors 1254 and 1260 are more toxic than Aroclor 1242. This, they argue, shows the consent decrees lack rational basis because the non-1242 Aroclors do not weigh more heavily in the decrees’ comparative fault calculations. But the Governments point to evidence suggesting that Aroclor 1242 is just as toxic as Aroclors 1254 and 1260. The district court considered all the relevant evidence and decided the Governments’ approach was rational. We are poorly suited to evaluate the merits of the conflicting positions. See Kalamazoo River Study Grp. v. Rockwell Int’l Corp., 274 F.3d 1043, 1051 (6th Cir. 2001) (upholding district court’s decision to defer to the EPA’s conclusion that Aroclors 1242 and 1254 are equally toxic). The district court did not abuse its discretion by deeming the Governments’ toxicity calculations reasonable. Appleton and NCR also point to evidence suggesting the Governments have underestimated the amount of non-1242 Aroclors discharged into Fox River. Even if we were to disregard the Governments’ evidence of the amount of non-1242 Aroclors in Fox River, Appleton and NCR’s evidence would not demonstrate a lack of substantive fairness. Appleton and NCR cannot show that the de minimis defendants — rather than any of the numerous other PRPs- — are responsible for the purportedly uncounted non-1242 Aroclors. C. Unresolved Issue of Divisibility We note that Appleton and NCR appeal only the district court’s approval of the consent decrees at issue here. Any divisibility decision made — or not yet made — in related litigation is beyond the scope of this appeal. The only relevant issue, then, is whether the district court abused its discretion by affirming the consent decrees before deciding whether the de minimis defendants’ liability was divisible from that of other PRPs. By its nature, a consent decree eliminates many possible outcomes that would have been better for one side or the other. See United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971) (“[I]n exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation.”). Appleton and NCR have not shown that the settlement amounts do not account for the risk of divisibility. Under Appleton and NCR’s theory, parties could never negotiate away the risk of which side would prevail in a divisibility dispute, even when — as here — the cost of resolving that dispute might exceed the total settlement amount. Neither the Governments nor the de minimis defendants have an interest in disputing divisibility here. Appleton and NCR are free to dispute the divisibility of their own liability in the appropriate suit. Accordingly, the district court did not abuse its discretion by approving the consent decrees before a divisibility determination. D. Insufficient Discovery Appleton and NCR claim more discovery was needed before the district court could approve the settlement agreement. They do not make clear when the discovery should have taken place or who should have been involved. Appleton and NCR did not move for discovery in this case, so they cannot appeal the denial of any such motion. To the extent they argue that the Governments and the de minimis defendants should have engaged in discovery in order to establish a factual basis for the consent decree, we have already addressed their concerns. To the extent Appleton and NCR challenge discovery limitations in separate litigation, their argument is beyond the scope of this appeal. E. Improper Consideration of Equitable Factors Appleton and NCR argue that the district court, in its approval of the consent decrees, considered equitable factors in violation of CERCLA § 122(g). By not making this argument until oral argument, they forfeited it. See Ceta v. Mukasey, 535 F.3d 639, 649 n. 16 (7th Cir.2008). Even if not forfeited, Appleton and NCR’s argument has no merit. Section 122(g) puts forth criteria for identifying de minimis defendants. It does not limit the factors a district court can consider in determining whether a settlement decree is fair, reasonable, and consistent with CERCLA. See 42 U.S.C. § 9622(g). Moreover, while the district court’s order does mention comparative liability, an equitable factor, its decision rests on its appraisal of comparative fault — an appropriate and necessary factor for consideration. See Tutu Water Wells, 326 F.3d at 207; Cannons Eng’g, 899 F.2d at 87. III. Conclusion Because the district court did not abuse its discretion in approving the consent decrees between the Governments and the de minimis defendants, we Affirm its decisions. . Section 104(e) requests are a tool by which the federal government can obtain information about the creation, storage, use, disposal, and release of hazardous substances and pollutants. 42 U.S.C. § 9604(e)(2). . Union Pacific provided certified responses to relevant § 104(e) requests that had been served on other parties.