Environmental Transportation Systems, Incorporated and its insurer, Canal Insurance Company, appeal the district court’s decision to allocate to Environmental Transportation Systems, Incorporated the entire cost of cleaning up a spill of poly-chlorinated biphenyl dielectric fluid arising from a single vehicle accident that occurred on an Illinois interstate highway interchange ramp in November 1984.
BACKGROUND FACTS
In 1984 Northern States Power Company (“Northern States”) contracted, with EN-SCO, Incorporated (“ENSCO”), an Arkansas waste disposal firm, to remove and dispose of approximately 100 out-of-service electrical transformers containing poly-chlorinated biphenyl (“PCB”). dielectric fluid.
The agreement between ENSCO and Northern States provides that the transformers would be shipped to ENSCO’s disposal facility without first draining the transformers of the PCB-laced mineral oil they contained. The transformers were not packaged in any special manner for shipment. They were loaded onto ETS trucks by crane. The ETS trailers were modified by welding a lip around the outer edge of the flat-bed trailer in order to create a tub around the transformers. The tub did not contain any absorbent material. Presumably it was hoped that the tub would contain any PCBs that happened to leak out of the transformers during shipment. All of these specifications were negotiated between Northern States and EN-SCO; ETS did not participate in the decision to haul the PCB-filled transformers to the disposal site instead of first draining the transformers and then hauling the PCBs in a tank truck.
On November 9, 1984, Ronald Fresh, an ETS driver, was hauling a load of three Northern States transformers on a modified flat-bed trailer. Fresh exited Interstate'74 and was entering Interstate 80 near Moline, Illinois when he lost control of his rig. When Fresh drove onto the interchange, he did not know the road had an “S” curve, so after negotiating the first curve he found he was not in proper position to get around the second one. He ended up driving off the road, and the truck flipped over on its side. One of the transformers punctured a second one and approximately 100 gallons of PCBs spilled. Fresh testified in a deposition that an Illinois state trooper arrived at the accident site within , fifteen minutes. The state trooper issued Fresh a citation for driving too fast for conditions, and Fresh later pleaded guilty to the charge.
After the accident state troopers kept Fresh for two hours before they finally allowed him to call his contact at ETS. ETS in turn notified ENSCO because ETS did not have the capability to make the proper response. An emergency response unit from ENSCO arrived after several hours. Cleanup of the site took place over the next few months. ENSCO paid for and supervised this cleanup.
ETS submitted a claim to its insurer, Canal Insurance Company (“Canal”), for the amount of ETS’s reimbursement to EN-SCO. Canal did not honor the claim. Eventually three lawsuits arising out of litigation between ETS and Canal were settled, and Canal agreed to pay approximately half of ETS’s claim. During the litigation, ETS’s vice-president, David Kennedy, stated in an affidavit that the “sole cause of the accident was the vehicle being driven at an excessive speed as it attempted to negotiate a curved exit/access ramp.” Kennedy also concluded after conducting an investigation of the accident:
Based upon the investigation performed by ETS, it has no basis in fact to assert that anyone else other than its own employee [Fresh, the driver] is responsible for the accident and the resulting PCB spill. ETS has determined the speed of its driver was excessive for the conditions and posted limits. There is no indication inclement weather was present or contributed in any way to the accident.
Kennedy was installed as vice-president after the accident, and he made these conclusions solely by reviewing records of the accident.
In January 1989, ETS and Canal (hereafter collectively referred to as “ETS”) filed a lawsuit against ENSCO and Northern States. In the count relevant to this appeal, ETS demanded from ENSCO and Northern States pro rata shares in contribution for cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). ETS moved for summary judgment on July 17, 1990, asserting that ENSCO and Northern States were liable as a matter of law under CERCLA and that the court should apportion cleanup costs equally among the parties because the parties’ relative responsibility could not be diffused in any objective fashion.
ENSCO and Northern States filed a cross-motion for summary judgment on August 27, 1990. They argued that even if they were liable under CERCLA, the section of CERCLA concerning contribution directs the court to take into account equitable factors, including the relative fault of the parties. In replying to ENSCO’s and Northern States’s cross-motion, ETS admitted that courts may take into account the relative fault of the parties in apportioning liability under CERCLA. ETS then asserted improper loading of the transformers onto the truck caused the spill, not that Fresh was driving too fast. In support of this assertion, ETS cited certain Department of Transportation regulations that were allegedly not complied with. However, ETS submitted no expert testimony or lay opinion to súpport its theory that improper loading of the transformers rather than the fact that Fresh was driving too fast to negotiate the curve in the road caused the accident.
On March 12, 1991, the district court held that ENSCO and Northern States were liable parties under CERCLA. However, the court concluded that CERCLA liability does not necessarily lead to mandatory contribution for cleanup cqsts. The district court concluded that" ETS was responsible for all of the costs of cleanup because the accident was entirely ETS’s fault.' In coming to this conclusion, the district court decided that EPA regulations under the Toxic Substances Control Act (“TSCA”) and not regulations under the Transportation Safety Act (“DOT regulations”) applied to the transportation of PCBs. Consequently, any possible violation of the DOT regulations was irrelevant to a finding of fault. The district court further decided that EN-SCO had complied with the relevant TSCA regulations and that ETS had put forth no evidence to rebut ENSCO’s evidence that the spill was entirely ETS’s fault.
ETS now comes to this court to appeal the district court’s judgment.
ANALYSIS
Section 9613(f) of Title 42, United States Code, provides that any person may seek contribution from any other person who is liable or potentially liable under CERCLA, 42 U.S.C. §§ 9601 et seq. As the district court noted, to establish a defendant’s liability under CERCLA, a four-part test must be met: (1) the site in question is a “facility” as defined by CERCLA; (2) the Defendant is a “responsible person” for the spill as defined by CERCLA; (3) there was a release of hazardous substances; and (4) such release caused the Plaintiff to incur response costs. Environmental Transportation Systems, Inc. v. ENSCO, Inc.,
On appeal ETS argues it sought only partial summary judgment on the issue of ENSCO’s liability;' however, ETS’s motion clearly indicates ETS also sought resolution of the contribution issue, arguing that under CERCLA ENSCO was liable for an automatic pro rata assessment in contribution as the only equitable result. In response, ENSCO filed a cross-motion for summary judgment asserting that the facts in the record clearly established ETS was entirely at fault for the spill and should therefore be held responsible for the full cost of the cleanup. ETS countered, admitting that pro rata contribution did not have, to automatically follow from strict liability under CERCLA and raising for the first time that ENSCO was partially at fault for the spill by failing to follow applicable DOT regulations.
The district court resolved ETS’s motion on ENSCO’s liability in ETS’s favor. However, the court disagreed with ETS’s argument that once a party is- liable under CERCLA that party is automatically liable for a pro rata assessment of cleanup costs. The court stated that finding a party a “responsible party” under CERCLA does not mean that all parties involved in a spill are equally responsible and ¡should share costs on a pro rata basis. Such a finding, the district court determined, means only that a party is potentially liable for contribution under CERCLA, as 42 U.S.C. § 9613(f)(1), the section of CERCLA concerning contribution actions, specifically in■structs the court to “allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” The court then resolved EN-SCO’s- cross-motion for summary judgment against ETS. The court allocated the total costs of cleanup to ETS after determining that there was no genuine issue of material fact as to whether the accident was entirely the fault of ETS’s driver, Ronald Fresh. This appeal arises only from the district court’s decision on the contribution issue.
As this is an appeal from the grant of a motion for summary judgment, our review is de novo. Summary judgment in favor of ENSCO is appropriate only if, when viewing the evidence in the record in the light most favorable to ETS, no genuine issue of material fact exists and ENSCO is entitled to judgment as a matter of law.
While section 9613(f)(1) directs courts to allocate costs of cleanup between responsible parties “using such equitable factors as the court determines are appropriate,” that section does not limit courts to any particular list of factors, nor does the section direct the courts to employ any particular test. ENSCO argues section 9613(f)(1) has been widely recognized to allow courts to consider the relative fault of the parties in allocating response costs among the parties liable for a spill. ETS says the issue is not so clear and argues there are at least two different methods which could be used to address the problem of contribution under CERCLA — a pro rata assessment of costs and a comparative culpability notion focusing on several factors including relative fault.
CERCLA was originally enacted without any provision for contribution. Before CERCLA was amended to provide an
(i) the ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished;
(ii) the amount of the hazardous waste involved;
(iii) the degree of toxicity of the hazardous waste involved;
(iv) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;
(v) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and
(vi) the degree of cooperation by the parties with Federal, State or local officials to prevent any harm to the public health or the environment.
• Now there is an express right of contribution under CERCLA in section 9613(f). The legislative history of section 9613(f) cites the A & F Materials decision’s criteria as factors courts may consider in deciding whether to grant apportionment in a contribution action. See H.R.Rep. No. 253, 98th Cong., 2nd Sess., pt. 3, at 19 (1985), U.S.Code Cong. & Admin.News 1986, pp. 2835.. The legislative history also states, “[o]f course, the burden of proof is on the defendant or party seeking apportionment to establish that it should be granted. United States v. Chem-Dyne Corp.,
In recent decisions courts have stated that the language and legislative history of the new contribution section indicates, at the very least, Congress’s intent that courts should equitably allocate costs of cleanup according to the relative culpability of the parties rather than an automatic equal shares rule. See, for example, United States v. Monsanto Co.,
Although ETS urges this court to enumerate specific factors to be considered by courts making an equitable determination to allocate cleanup costs in contribution, we feel it is unnecessary to do so. First, 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. Second, the allocation of cleanup costs is a type of decision particularly suited to case-by-case determination— just as the decision to hold defendants jointly and severally liable to the government in CERCLA actions has been and continues to be made on a case-by-case basis. See Chem-Dyne,
We have already pointed out the Gore Factors listed in A & F Materials as possible considerations for making an equitable allocation decision, but we emphasize that the Gore Factors are neither an exhaustive nor exclusive list. Like the Court of Appeals for the Sixth Circuit, we think a court may consider any factors appropriate to balance the equities in the totality of the circumstances. See United States v. R.W. Meyer, Inc.,
ETS maintains the district court erred in granting summary judgment on the contribution issue in ENSCO’s favor because the district court decided the issue solely based on the relative fault of the parties. Clearly, relative fault is one factor that can be considered in making an equitable determination under section 9613(f)(1), and ETS does not deny this. Rather, ETS asserts there should have been, at the very least, an evidentiary hearing on the relative fault of the parties.
Before we address ETS’s concerns, we first point out that in enumerating the different factors that courts could possibly consider in making equitable allocations we are in no way requiring or even suggesting that courts must make specific findings as to each factor we have mentioned. Therefore, in any given case, a court may consider several factors, a few factors, or only one determining factor, as the district court did in this case, depending on the totality of circumstances presented to the court. Be
ETS strenuously argues that the accident was not the fault of its driver alone; rather, ETS says its driver stated in an affidavit that improper weight distribution caused the truck to overturn. Furthermore, ETS argues that even if its driver alone was responsible for. the accident, the spill of PCBs was caused, at least in part, by ENSCO’s failure to comply with DOT regulations concerning the transportation of hazardous materials. The district court concluded that Fresh’s statement concerning the manner in which the truck was loaded does not create a genuine issue of material fact over what caused the accident when considered in context of ENSCO’s evidence. We agree with the district court that those statements “say only that once Fresh had driven off the pavement due to his excessive speed, the momentum of the heavy trailer rig tipped his truck over.”
ETS’s second argument, regarding ENSCO’s compliance (or noncompliance) with DOT regulations, deserves more discussion. Compliance with applicable regulations concerning transportation of hazardous substances is surely an equitable factor to consider under section 9613(f), for compliance with industry regulations in an indication of the degree of care a party exercises with respect to hazardous substances. See A & F Materials,
The relevant TSCA regulations are found at 40 C.F.R. § 761.20. Section 761.20(a) states: “No persons may use any PCB, or any PCB Item regardless of concentration, in any manner other than in a totally enclosed manner_” Section 761.20 also specifies the distribution in commerce of intact, nonleaking electrical transformers as a totally enclosed activity. As ENSCO points out the term “commerce” is defined in 40 C.F.R. § 761.3 as trade, traffic, transportation of other commerce between a place in a state and any place outside of that state, and the definition of “disposal” contained in the same section includes actions related to transporting and destroying PCBs. ENSCO says these regulations clearly support its assertion that the TSCA regulations allow PCB-filled transformers to be transported to a waste facility, and
The DOT regulations ETS says are applicable to this ease are found at 40 C.F.R. § 173.12.
PCBs are “hazardous substances” for purposes of the DOT regulations. They are listed in the Appendix to 49 C.F.R. § 172.101. Although ETS argues PCBs are “hazardous wastes” for purposes of the DOT regulations, they are not. “Hazardous waste” for purposes of chapter 49 is material subject to the Hazardous Waste Manifest Requirements of 40 C.F.R. § 262. See 49 C.F.R. § 171.8. And, 40 C.F.R. § 261.8 specifically states, “disposal of PCB-containing dielectric fluid and electric equipment ... regulated under part 761 of this chapter ... are exempt from regulation under parts 261 through 265, and parts 268, 270, and 124 of this chapter.” Therefore, if the DOT regulations applied at all, only the regulations pertaining to PCBs as hazardous substances applied.
Because PCBs are listed in the Appendix to 49 C.F.R. § 172.101, they are classified as “other regulated material” or “ORM-E.” The packaging requirements of chapter 49 relevant to ORM-E materials are set forth in 49 C.F.R: § 173.510, which then directs that packaging of ORM-E materials be in accordance with the “Standard requirements for all packages.” See 49 C.F.R. § 173.24. These regulations are detailed, but they do not specifically regulate PCBs for shipment.
Although ETS refers us to these sections of the DOT regulations, ETS submits no evidence indicating that the transformers in which the PCBs were shipped do not conform with the DOT standards. In fact, the only evidence in the record could reasonably lead to the opposite inference— namely, that the shipment did meet the specifications. This is.because one regulation ETS cites, 49 C.F.R. § 171.2(a), states:
No person may offer or accept a hazardous material for transportation in commerce unless that material is properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by this subchap-ter.
ETS accepted the load with the PCB-filled transformers; thus, a court could reasonably infer that ETS must have thought the load was in compliance or else ETS would have rejected the load.
CONCLUSION
The judgment of the district court granting summary judgment in ENSCO’s favor is
Affirmed.
. As Environmental Transportation Systems notes in its brief, PCBs are a group of chemicals produced between 1929 and 1977 used primarily as cooling liquids in electrical equipment. PCBs are among the most hazardous man-made chemical substances.
. Although ENSCO paid for the cleanup itself, ETS reimbursed ENSCO by offsetting ENSCO's cleanup costs against money ETS was to receive from ENSCO for hauling other loads.
. In its brief, ETS also discusses a method of allocation based solely on fault. ETS does not cite any cases in which a court allocated cleanup expenses based solely on fault, except the instant case. However, as we will explain more fully, while relative fault of' the parties may have been the determining factor in this case, the district court was not required to limit itself to this single issue.
. ENSCO points out that the section 173.12 exceptions to specification packaging requirements were added as an amendment to section 173 on March 25, 1985, and did not become effective until April 22, 1985 — months after the November 22, 1984, accident. However, the underlying substantive packaging regulations were in effect before the accident.
. 49 C.F.R. § 173.24 Standard requirements for all packages reads in part:
(a) Each package used for shipping hazardous materials under this subchapter shall be so designed and constructed, and its contents so limited, that under conditions normally incident to transportation:
(1) There will be no significant release of hazardous materials to the environment;
(2) The effectiveness of the packaging will not be substantially reduced; and
(3) There will be no mixture of gases and vapors in the package which could through any credible spontaneous increase of heat or pressure, or through an explosion, significantly reduce the effectiveness of the packaging.
(b) Materials for which detailed specifications for packaging are not set forth in this part must be securely packaged in strong, tight packages meeting the requirements of this section.