Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR ENTRY OF FINAL JUDGMENT GEORGE C. SMITH, District Judge. Third-party plaintiffs Consolidation Coal Company (“Consol”) and Triangle Wire & Cable, Inc. (“Triangle”) seek a declaration of liability and the equitable allocation of response costs against third-party defendant Neville Chemical Company (“Neville”) under §§ 107 and 113 of the Comprehensive Environmental Response Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9607 and 9613. This case concerns the Buckeye Reclamation Landfill (“BRL”), located near St. Clairsville, in Belmont County, Ohio. This matter proceeded to a bench trial. For reasons that follow, the Court finds that Neville is liable under CERC-LA, and allocates to Neville a 6% share of past and future response costs for cleanup of the BRL. I. Preliminary Issues Before the Court turns to its findings and conclusions in this case, it must first address two motions that were filed immediately before the trial: Neville’s motion for summary judgment, and Consol’s motion for leave to amend to add itself as a named third-party plaintiff with a claim against Neville. A. Neville’s Summary Judgment Motion On the eve of the bench trial, Neville moved for summary judgment (Doc. 512 in Case No. C-2-94-248; Doc. 436 in Case No. C-2-94-785) on the ground that all pending claims against it in this action have been extinguished. First, Neville maintains that Consol has not asserted a claim directly against Neville. Second, Neville asserts that Triangle’s contribution claim against it is barred under § 4(b) of the Uniform Comparative Fault Act (“UCFA”) because the settlement agreement between Triangle and Consol did not extinguish Consol’s potential claims against Neville. As an initial matter, the Court finds that Neville’s eleventh-hour motion borders on bad faith, and smacks of having been presented for the improper purpose of delaying the trial. It was filed after Neville agreed to participate in a trial with Consol and Triangle as third-party plaintiffs, a decision Neville made after it was informed of the settlement between Consol and Triangle, Fed.R.Civ.P. 11(b)(1). This alone is sufficient basis for denial of Ne-ville’s motion. The Court will, nevertheless, proceed to examine Neville’s motion on the merits. “The UCFA is not a federal law, and [the court is] not bound by the parties’ agreement to an inapplicable body of legal rules.” Akzo Nobel Coatings, Inc. v. Aigner Corp., 197 F.3d 302, 306 (7th Cir.1999)(opinion by Easterbrook, J.)(reversing district court for applying UCFA §§ 2 and 6 to CERCLA allocation). Specifically, the UCFA does not govern Con-sol’s and Triangle’s contribution claims under CERCLA § 113(f). See id. at 307. In 1986, Congress created the second CERCLA cause of action when it enacted the Superfund Amendments and Reau-thorization Act of 1986 (“SARA”), which allows potentially responsible parties (“PRPs”) to seek contribution from other PRPs for their proportionate share of costs associated with hazardous waste cleanup. Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 348-356 (6th Cir.1998). The express language of the SARA amendment to CERCLA does not condition the right of contribution upon compliance with § 4(b) of the UCFA. Indeed, the district judge who penned the decision upon which Neville primarily relies clearly recognized this point. See Amland Properties Corp. v. Aluminum Co. of Amer., 808 F.Supp. 1187, 1198 (D.N.J.1992), aff'd, 31 F.3d 1170 (3d Cir.1994). Significantly, in Amland, unlike the instant case, the action had not been brought by the United States. Here, the United States is the plaintiff. Hence, in the case at bar, and in contrast to Amland, the parties that settled with the United States have an express statutory right of contribution under CERCLA § 113(f)(3)(B): A person who has resolved its liability to the United States or a State 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 referred to in paragraph (2). 42 U.S.C. § 6713(f)(3)(B). The Amland court recognized this distinction: were this action one brought by the United States or by a State, it is clear that the viability of Alcoa’s right to contribution would not depend on whether it had extinguished all claims against other defendants. 808 F.Supp. at 1198. Here, the Court has recognized that the United States is the real plaintiff in this action. In addition, both Triangle and Consol have resolved their liability to the United States. Thus, Amland does not support Neville’s “extin-guishment” argument. Morever, if Amland did apply, the Court would decline to follow it for two reasons. First, as Judge Easterbrook observed in Akzo, CERCLA contribution actions are not governed by the UCFA in the first instance. Second, the interest UCFA § 4(b) advances — the prevention of multiple recoveries for the same wrong — is adequately protected in this federal CERCLA action. Simply stated, if the Court enters a final judgment against Neville, allocating response costs, the Court would not allow a later claim by any party that would represent a multiple recovery of the same response costs, whether such a claim was brought in this or another court. In sum, the Court finds that UCFA § 4(b) does not provide a basis for summary judgment on Consol and Triangle’s claims for contribution. For the above reasons, the Court DENIES Neville’s motion for summary judgment (Doc. 512 in Case No. C-2-94-248; Doc. 436 in Case No. C-2-94-785). B. Consol’s Motion for Leave to Amend Consol moves to amend the amended third-party complaint to add Consol as a named third-party plaintiff with a claim against Neville (Doc. 509 in Case No. C-2-94-248; Doc. 433 in Case No. C-2-94-785). Consol seeks to assert such a claim on its own behalf, and as assignee of the contribution claims of the following potentially responsible parties: Allegheny Lud-lum Corporation (“Allegheny Ludlum”), Aristeeh Chemical Corporation (“Aris-tech”), Ashland, Inc. (“Ashland”), Beazer East, Inc. (“Beazer”), National Steel Corporation (“National Steel”), The Pullman Company (“Pullman”), SKF USA Inc. (“SKF”), USX Corporation (“USX”) (collectively, the “Group of Eight”); and Wheeling-Pittsburgh Steel Corporation (“Wheeling-Pitt”). Consol maintains that Neville will not be prejudiced by the amendment of the pleadings. Under Fed.R.Civ.P. 15(a), leave to amend a pleading shall be freely given “when justice so requires.” Several factors should be considered in determining whether to grant a motion to amend: Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision. Delay by itself is not sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted. Head v. Jellico Hous. Auth, 870 F.2d 1117, 1123 (6th Cir.1989) (quoting Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir.1973)). See also Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir.1998), cert. denied, 528 U.S. 842, 120 S.Ct. 110, 145 L.Ed.2d 93 (1999). Neville argues that it will suffer substantial prejudice if the Court grants Con-sol leave to amend. Neville contends that it has been prejudiced by Consol’s refusal to provide timely and accurate discovery on its allocation position. Specifically, Ne-ville charges that Consol avoided providing complete discovery on its allocation position, indicating that at the proper time Consol would submit an expert’s allocation report. Consol, however, never named an allocation expert, and after discovery was closed, Consol submitted an “allocation position statement,” which stated that allocation was a matter of law and equity, and that it was not an appropriate subject of expert testimony. Neville asserts that it has been prejudiced by Consol’s actions because, without the ability to probe Con-sol’s allocation position through discovery, Neville is unable to respond to it adequately. The Court rejects Neville’s argument. First, it is difficult to fathom how Neville is prejudiced by an opposing party’s failure to submit an expert opinion. Rather, such a failure would more logically prejudice the party who lacks an expert to support its position. Furthermore, Neville has, in fact, responded to Consol’s position on allocation, including Consol’s assertion that Neville’s share should be enhanced for Neville’s alleged failure to cooperate in the CERCLA process. Indeed, the alleged failure to cooperate is the lynchpin of both Triangle’s and Consol’s positions on allocation. Their allocation position is based upon equitable arguments concerning Ne-ville’s alleged failure to provide truthful or complete answers to government officials investigating the BRL, and its failure to participate, cooperate, or contribute with respect to the CERCLA cleanup process at the BRL, as opposed to matters such as relative toxicity or volume about which an allocation expert might be expected to testify. As such, it is understandable that Consol did not submit an expert report. Furthermore, the Court finds that there is an insufficient nexus between the prejudice Neville argues it suffered and Con-sol’s motion for leave to amend. That is, the alleged prejudice does not flow from the proposed amendment, but from unrelated conduct. In this sense, denying leave to amend is not an appropriate remedy for Consol’s alleged misconduct. The proper remedy for Consol’s alleged failure to provide discovery would have been under Fed.R.Civ.P. 37, as appropriate, following a motion to compel. The Court finds that Neville will not be prejudiced by the proposed amendment. Neville was named as a third-party defendant in the amended third-party complaint filed in April 1997. The contribution claims raised by the other third-party plaintiffs, including the Group of Eight, Wheeling-Pitt (whose claims have since been assigned to Consol) and Triangle, are of course identical to the claim Consol seeks to assert in its proposed amendment. So Consol’s proposed amendment would not result in an unfair surprise to Neville; Neville should be prepared to defend the exact claim Consol moves to add. Neville also participated in extensive discovery in this case. Indeed, the nature of Neville’s un-litigated discovery dispute with Consol anticipates or at least tacitly acknowledges that Consol was asserting, or intended to assert, a contribution claim against Ne-ville. Moreover, in May 1999 the Court set this case for a trial to begin in October 1999. Before Consol filed its motion for leave to amend, Neville prepared for trial, and agreed to participate in a summary bench trial, as reflected in the Court’s October 21, 1999 order (Doc. 508 in Case No. C-2-94-248; Doc. 432 in Case No. C-2-94-785). Such an agreement would seem to have been with the knowledge that Consol intended to assert a contribution claim against Neville. As with its summary judgment motion, Neville’s last-minute assertion of unfair prejudice seems disingenuous as best. In short, Consol’s proposed amendment will not result in substantial prejudice or surprise to Ne-ville. Although Consol waited until the eve of trial to seek leave to amend, in the absence of prejudice, the Court finds that Consol’s motion is well-taken. The Court GRANTS Consol’s motion for leave to amend (Doc. 509 in Case No. C-2-94-248; Doc. 433 in Case No. C-2-94-785). II. Findings of Fact A. The Parties 1. The three remaining parties in this contribution action are: (a) Consol, individually and as assignee of the BRL CERC-LA contribution rights of the Group of Eight and Wheeling-Pitt; (b) Triangle; and (c) Neville. 2. Each of the three remaining parties is a PRP for purposes of liability under CERCLA. Consol owned the land on which the BRL is located. Consol, Triangle, and Neville each generated hazardous substances that were disposed of at the BRL. B. Background and History of the BRL 3. From 1934 to 1954, Consol’s predecessor in interest, Hanna Coal Company, operated the Willow Grove Mine, near the town of Neffs, Ohio, on a 658-acre premises to the south and west of the current location of the BRL. Willow Grove was a deep coal mine, which produced coal from the Pittsburgh No. 8 coal seam. The coal contained sulfur. Willow Grove produced about 19 million tons of coal. 4. In about 1936, Willow Grove completed a new coal preparation plant to separate coal from rock and other geologic material. The operation of the preparation plant generated waste products, including “Gob,” which consists of coal, rock, clay, and other naturally occurring geological materials. The plant also generated fly ash and effluent. 5. Throughout the operation of the Willow Grove Mine and preparation plant, Gob and effluent were disposed of at the current location of the BRL, on a hillside behind the preparation plant and in parts of the premises known as the King’s Run Drainage Ravine and the Unnamed Run Drainage Ravine. 6. The Gob at the BRL contains hazardous substances, including arsenic, chromium, and lead. 7. Consol permanently closed the Willow Grove Mine in 1954. 8. From 1954 until 1970, the property that is now the BRL was essentially left vacant. 9. In late 1968, the Belmont County Board of Commissioners resolved to form a solid waste disposal district within the county under Ohio Rev.Code § 343.01. 10. Pursuant to Ohio Rev.Code § 343.01, the Commissioners adopted rules and regulations governing the sanitary district. The rules prohibited the disposal of waste originating outside Belmont County without prior written consent of the Board of Commissioners. The rules provided that the operator of the landfill would pay the county 10% of the landfill’s gross operating revenues. The rules further provided that once the landfill was established, all other licenses or permits for disposal of waste within the county would expire within 30 days, after which time the landfill would be the exclusive site for disposal within Belmont County. 11. In May 1970, Belmont County solicited bids for operation of the landfill. Cravat Coal Company (“Cravat”) d/b/a Buckeye Reclamation Company submitted the winning bid. On May 25, 1970, Cravat entered into a contract with Belmont County whereby Cravat agreed to: lease or own a landfill site; pay Belmont County a monthly fee of 10% of gross revenues; accept only solid waste from Belmont County or the contiguous counties unless it had prior written consent of the Board of Commissioners; obtain and maintain all necessary permits and approvals; to comply with all applicable laws; and, hold Belmont County harmless for any liability arising from operation of the landfill. The contract also set the initial prices Cravat could charge for disposal. 12. Direct regulatory oversight of the BRL operation was vested in the Belmont County Health Department and the Ohio Environmental Protection Agency (“OEPA”). The Belmont County Board of Commissioners employed a district sanitarian to conduct visual inspections of the BRL to ensure its compliance with the terms of the contract with Belmont County. Neither the inspector, the Belmont County Health Department, nor the Belmont County Board of Commissioners had any supervisory authority over the BRL employees or assumed any actual or financial responsibility for the operation of the BRL. 13. During the twenty-one years the BRL was operating, Belmont County collected a total of about $525,000 in franchise fee payments from the BRL operators. During the same period of time, Belmont County paid about $480,000 to the district sanitarian for salary and related expenses. 14. On October 30, 1970, Consol entered into a corrected lease agreement with Michael Puskarich, the president and a major shareholder of Cravat, whereby Consol agreed to lease the BRL property to Puskarich for a period of ten years. The lease agreement contained provisions whereby the lessee promised to use the premises in a safe manner, to comply with applicable laws and obtain necessary permits, to do all things necessary to avoid air and stream pollution, and to indemnify Consol for any liability arising from the use of the premises. The lease was made effective May 25, 1970. Puskarich assigned his interest in the lease to Cravat in 1971. During the lease period, until October 1975, Cravat operated the BRL. 15. In October 1975, Consol sold the land on which the BRL was located, and other property, to Ohio Resources Company (“Ohio Resources”) for the sum of $150,000. Consol sold only the surface rights to the property. It continues to own the mineral, oil and gas rights to the property. The deed stated in part: “Grantee for itself ... does hereby acknowledge the presence of a mine gob pile or slate dump on the above-described tracts of land and the same is the primary consideration for the conveyance.” An internal Consol memorandum dated August 23, 1977, concerning a corrected deed issued in 1977, states: “We are aware of the inadequate description, but proceeded with the conveyance inasmuch as said Grantee was willing to accept liability for the mine gob pile and we were most anxious to divest ourselves of this encumbrance, as quickly as possible.” 16. Ohio Resources, d/b/a Buckeye Reclamation Company, continued operating the BRL until the BRL closed. 17. Cravat and Ohio Resources, d/b/a Buckeye Reclamation Company, controlled and operated the BRL on a day-to-day basis. Indicia of Cravat and/or Ohio Resources’ control included: hiring and paying BRL employees; after October 1975,-ownership of the surface portion of property on which the BRL was located; ownership of the equipment used at the BRL; and making decisions to accept industrial waste at the BRL. 18. The BRL was operated in a fifty to sixty acre area of the Kings Run Ravine. The area is about 3,500 feet long (generally north to south), and about 1,000 feet wide east and west. For the most part, the BRL was constructed and operated in the Gob pile in the Kings Run Ravine. 19. The parties have stipulated that the BRL site is a CERCLA “facility” within the meaning of 42 U.S.C. § 9601(9). 20. The BRL ceased operation in April 1991. C. Background of Waste Disposal at the BRL 21. During the BRL’s operation from 1970 until 1991, 800,000 to 1,000,000 tons of waste were disposed of at the BRL. Three categories of waste were disposed of at the BRL: industrial waste; municipal waste; and Gob. 1.Industrial Waste 22. About 45,000 tons of industrial waste were disposed of at the BRL. From 1972 to 1980, most of the industrial waste at the BRL was disposed of in an area known as the waste pit, which is located in the northern portion of the BRL. 23. The parties have stipulated the weight, type, and percentage share of industrial waste ( by weight) disposed of at the BRL, as follows: 1. Allegheny Ludlum — 2,185 equivalent tons of waste oil containing metals and volatile organic compounds — 5.13%. 2. Aristech — 638,000 to 643,000 gallons (3,230 equivalent tons) of maleic and phthalic anhydride and fumaric acid wastes containing chromium, lead, ammonium, copper, xylene, cyanide, iron, nickel, zinc and phenolic compounds — 7.58%. 3. Ashland — 78,000 gallons (533 equiv- ’ alent tons) of maleic anhydride wastes containing chromium, benzine, toluene, xylene, and cresol— 1.25%. 4. National Steel — 782 tons of oil/water and caustic acid cleaning solutions containing chromium — 1.84%. 5. Neville — 472,000 gallons (2,034 tons equivalent) wastewater treatment plant sludge containing at least benzine, toluene and trichloroethylene— 4.78%. 6. Beazer — 3,300 tons of maleic and phthalie anhydride wastes, para cre-sol, meta cresol and cresylic acid wastes, butanol, paraformaldehyde, and resorcinal wastes — 7.75%. 7. Pullman — 36 tons of waste filter paper, spent corncob de-bur media and containers with arsenic, barium, cadmium, chromium, and lead — .08%. 8. SKF USA — 80,000 gallons (345 equivalent tons) waste tramp oil containing chromium, phosphorus, and phenol — .81%. 9. Triangle — 21,987 tons of wastewater treatment sludge containing arsenic, barium, cadmium, chromium, lead, mercury, nickel, silver and zinc— 51.61%. 10. USX — 1,318 tons of waste oil containing benzine, toluene, and polya-romatic hydrocarbons (“PAHs”)— 3.09%. 11. Wheeling-Pitt — 4,017 tons of wastewater treatment plant sludge containing cadmium, chromium and lead; 670,000 gallons (2,833 equivalent tons) of oil and water waste containing barium, chromium, lead, mercury, selenium, and silver— 16.08%. 24.The industrial waste identified above was generated outside Belmont County. Unless produced in contiguous counties, the prior written approval of the Belmont County Board of Commissioners was required for it to be properly disposed of at the BRL. Belmont County records show that the only industrial waste that received the Board’s prior approval for disposal at the BRL was the lime-neutralized sludge generated by Triangle. 2. Municipal Waste 25. Most of the waste disposed of at the BRL was Municipal Solid Waste (“MSW”). Between 755,000 and 955,000 tons of MSW were disposed of at the BRL from 1970 through 1991. When the BRL was operating, it was the exclusive site in Belmont County for the disposal of MSW. During that period, by the rule of the Board of Commissioners pursuant to Ohio Rev.Code § 343.01, all MSW generated within Belmont County was required to be disposed of at the BRL. 26. MSW and other solid wastes were typically disposed of at the BRL in large trenches excavated into the mining Gob. 27. About 35-40% of the MSW disposed of at the BRL was generated by customers who paid cash for the disposal, and who therefore cannot be identified from landfill records. Credit customers disposed of the remainder of the MSW at the BRL. Some of the BRL records are missing, however, and there is no reliable information concerning the precise quantity of MSW attributable to many of the identified MSW generators and transporters. Moreover, the specific types of waste attributable to the identifiable generators and transporters are not ascertainable. 28. Studies indicate that some components of MSW contain traces of hazardous substances. MSW components that contain hazardous substances include some paint and paint thinners, household cleaning products, pesticides and insecticides, nail polish remover, and batteries. The parties have stipulated that at least some of the MSW at the BRL contains some of the hazardous substances found at the BRL. Nonetheless, despite extensive discovery, the parties are unable to determine whether any particular MSW attributable to any specific generator or transporter contained any particular hazardous substance. 29. The MSW contained some of the hazardous substances found in the soil, surface water, and groundwater of the BRL. 30. MSW transporters such as Miller Collection, Roger Tipton, and others did not select the BRL as the disposal site. Rather, the rules adopted by the Belmont County Board of Commissioners mandated that all solid waste they collected was to be disposed of at the BRL. 3. Gob 31. All Gob at the BRL site was deposited there by Consol’s predecessor during the mine’s operation from 1934 to 1954, before the BRL was operating as a landfill. As a result, a significant amount of Gob is present over a much of the BRL. 32. The parties have stipulated that samples from Gob at the BRL indicate that the Gob contains arsenic, chromium, and lead. The parties also stipulate that the Gob contains some of the hazardous substances found at the BRL. In addition, the parties agree that when exposed to oxygen, the sulfur compounds in Gob may react with water to form acid mine drainage (“AMD”). The parties stipulate that AMD has occurred at the premises on which the BRL is located. D. Facts Specific to Neville’s Waste 33. Since before November 1978, Ne-ville has owned and operated a chemical manufacturing plant on Neville Island (Ne-ville Township), Pennsylvania, at which products have been manufactured from byproducts of petroleum and coal tar refining operations. 34. Between December 1, 1978, and February 28, 1979, chemical manufacturing at Neville’s plant included production of hydrocarbon resins by heat and catalytic processes, production of chlorinated paraf-fins and hydrochloric acid, and the production of benzophenone and other products, as well as the sale and distribution of solvents and fuel oil. Neville’s processes used various solvents, including toluene, 1,1,2,2-tetrachoroethane, chlorobenzine, and methylethylkeytone. 35. During that period, Neville’s chemical manufacturing operations generated process wastewater containing various chemical constituents requiring treatment in Neville’s wastewater treatment plant before discharge into the Ohio River. 86. During this time, Neville’s waste-water treatment process generated a lighter-than-water oily sludge, consisting of an emulsion of water, organic oily materials, and some inert solids. 37. In a letter dated November 20, 1978, Mays Corporation (“Mays”) indicated to Neville that it was hauling industrial wastes from the USS Chemicals (now Ar-istech) facility on Neville Island, from Koppers (now Beazer), and Ashland Chemicals. Mays offered to haul Neville’s “concentrated wastewater” for $.23 per gallon. 38. The parties stipulate that between December 1, 1978, and February 28, 1979, Neville hired Mays for the removal, transportation, and offsite disposal of the oily sludge from Neville’s wastewater treatment facility. 39. The parties further stipulate that during that period, Mays disposed of 472,-000 gallons, or 2,034 tons, of Neville’s sludge at the waste pit area of the BRL. 40. The parties agree that Neville’s sludge contained one or more hazardous substances, including but not necessarily limited to benzine, toluene, and/or trichlo-roethylene. 41. Neville has presented the opinion of purported expert Edward Sowinski to the effect that any hazardous substances initially present in Neville’s sludge had dissipated naturally and degraded to the point that they would have been essentially gone by the time the Remedial Investigation (“RI”) was performed. Sowinski’s opinion was based upon studies performed measuring the natural degradation of such hazardous substances in seawater and river water. The Court finds that Sowinski’s opinion on this point is unreliable because the opinion fails to take into account the condition of the waste pit at the BRL, which was acidic, anaerobic, and contained numerous other substances. Sowinski’s degradation theory also fails to explain the RI’s finding that benzine and toluene were present in waste pit borings at levels significantly higher than those in Gob or Gob plus MSW, as well as in down-gradient groundwater wells, and that a benzine plume was emanating from the waste pit, even though the BRL had ceased accepting industrial wastes 1980, and the RI samples were taken from the BRL years later. 42. The Court finds that Neville’s watery sludge contained hazardous substances as defined in CERCLA § 101(14), 42 U.S.C. § 9601(14), both at the time it was disposed of at the BRL, and at the time of the RI. E. The CERCLA Process at the BRL 43. On December 7, 1978, OEPA scientist Jerry Roberts visited the BRL and talked to Mike Puskarich of Ohio Resources. In a December 10, 1978 letter to the Belmont County Health Department, Roberts noted that the BRL was receiving “various industrial wastes which may be classified as hazardous, toxic, liquid, or semi-solid.” Roberts stated that the BRL was not approved to receive such wastes, and that it should cease receiving them. The Belmont County Health Commissioner sent a letter to Mike Puskarich on January 8, 1979, ordering the BRL to cease and desist receiving industrial wastes. 44. Several times thereafter, the OEPA recommended that the contents of the BRL waste pit be removed and disposed of at an approved facility. This was never done. Rather, in 1980, the waste pit was filled by pushing some of the sludge, gob, and soil into the impoundment. The waste pit was then covered with soil and garbage and.seeded with grass. 45. During this period, the OEPA, in conjunction with the USEPA, investigated the BRL, focusing on the industrial wastes in the waste pit. 46. As a result of the investigation, on September 8, 1983, the USEPA placed the BRL on the National Priorities List of hazardous substance disposal sites (also referred to as Superfund sites). 47. In December 1984, the USEPA notified the following companies that the agency considered them PRPs: Cravat, Ashland, Beazer, Neville, Triangle, SKF, and Aristech. The federal EPA requested that these companies conduct a RI and feasibility study (“RI/FS”) to determine the nature and extent of contamination at the BRL. 48. In response to the USEPA’s request, on October 31, 1985, Cravat, Ash-land, Beazer, SKF, Triangle, and USX entered into an administrative order on consent (“AOC I”), requiring the cooperating PRPs to complete the RI/FS and the endangerment assessment (“EA”). 49. The AOC I PRPs retained Versar, Inc. (“Versar”) to conduct the RI/FS and EA. The focus of the RI was on the “possible migration of hazardous substances present in the Waste Pit.” The RI identified the presence of benzene, toluene, ethylbenzene, xylenes, chromium, and zinc as “potentially indicative of the Waste Pit, due to significantly higher concentrations compared to concentrations found in mine spoil [Gob] or mine spoil plus garbage.” Versar concluded that the presence of these waste pit indicator chemicals in down-gradient groundwater wells “supports the hypothesis that contaminants may have moved some distance from the Waste Pit.” Versar further concluded that migration of contaminants from the waste pit would require “permanently immobilizing contaminants in the Waste Pit and fill area via minimizing recharge to groundwater, and by controlling discharge of ground water to surface water.” 50. The RI indicated a benzene contamination plume emanating from the waste pit. A brown oil with an odor typical of aromatic organic compounds was detected in all samples of the waste pit borings. Of the volatile organic compounds detected in the waste pit borings, the following six compounds represented 99% of such compounds: acetone, 1,1,1— trichloroethane, benzene, toluene, ethyl-benzene, and xylenes. 51. Upon completion of the RI/FS, the USEPA issued its record of decision (“ROD”) on August 19, 1991. In selecting a remedy for the BRL site, the USEPA was required by statute to implement all applicable or relevant and appropriate federal and state requirements (“ARARs”). Due to the industrial and hazardous wastes disposed of in the waste pit, the landfill closure requirements of the Resource Conservation and Recovery Act (“RCRA”) constituted ARARs for the site. The USEPA determined, however, that construction of a RCRA hazardous waste landfill cap at the site would be technically impracticable, and that construction of a solid waste landfill cap in accordance with Ohio Administrative Code § 3745-27-11 would attain a standard of performance equivalent to a RCRA cap. The USEPA therefore invoked a statutory waiver of the RCRA ARARs, and selected a remedy that included the construction of a solid waste landfill cap meeting OEPA regulatory requirements. In addition to a 97-acre solid waste landfill cap, the selected remedy included groundwater and surface leachate seep collection, treatment, and monitoring. The ROD estimated the cost of the remedy to be about $48 million to $52 million. 52. After the USEPA issued the ROD, it notified additional PRPs of their potential liability. It also requested that the PRPs participate in the implementation of the remedy selected for the BRL and in the reimbursement of the USEPA’s costs. The PRPs that received this notice included Consol and Neville. 53. The USEPA and the cooperating PRPs, which did not include Neville, entered into a second administrative order on consent (“AOC II”) on February 10, 1992, obligating them to conduct the work necessary to perform the pre-design studies required by the ROD, to prepare the remedial design for the EPA-selected remedy, and to pay the USEPA’s oversight costs for the remedial design. At the time of the AOC II, the cooperating PRPs included all of the PRPs that entered the AOC I, as well as Allegheny Ludlum, Aristeeh, Consol, National Steel, Pullman, Mill Service, Shenango, Wheeling Sanitary Board, and Wheeling-Pitt. 54. On March 21, 1994, Consol filed a complaint for declaratory judgment in Case No. C2-94-248, against the United States Department of the Interior, USE-PA, the Ohio Department of Natural Resources, Belmont County, Ohio and thirteen PRPs, including Triangle, to determine whether any effects of the pre-SMCRA coal mining activities at the site are covered by SMCRA, and to determine liability and allocation of response costs under at the BRL under CERC-LA. 55. On August 18, 1994, the United States filed a Complaint in Case No. C2-94-785 against Consolidation Coal Company, the Board of County Commissioners of Belmont County, and eleven other parties, including Triangle, for the recovery of the costs incurred by the U.S. and a declaration of the defendants’ liability for future response costs. 56. On November 4, 1994, Magistrate Judge Abel ordered that Case C2-94-785 be consolidated before Magistrate Judge Kemp with Case C2-94-248 for pretrial purposes. 57. On January 20, 1995, ten of the defendants, including Triangle, filed a Third-Party Complaint for contribution against sixty-four third-party defendants, including Neville. The Third-Party Complaint was amended on April 7,1995. 58. On October 16, 1995, Magistrate Judge Kemp issued a Status Conference Order consolidating the two cases and realigning the parties so that the sole plaintiff in both cases was the United States of America. 59. In the October 16, 1995 Status Conference Order, Magistrate Judge Kemp recognized the cooperating PRPs were in discussions with the USEPA concerning modifications to the remediation plan for the site and had made progress in those negotiations. In its Status Conference Order, the Court invited the Third-Party Defendants, including Neville, to participate in the negotiations with the United States and stated, “[a]ny third-party defendant who desires an update with respect to the status of these negotiations, or who would like to participate in such negotiations, should contact Mr. Lonardo, counsel for a number of the third-party plaintiffs, with such requests.” 60. On March 7, 1995, the AOC II cooperating PRPs, including Triangle and Consol, submitted a revised remedial design concept to USEPA for the modification of the remedy as chosen in the ROD. The revised remedial design report was finalized in November of 1996. 61. In two separate agreements, in June 1996 and October 1996, the Group of Eight and Wheeling Pitt assigned their CERCLA contribution rights and claims to Consol. 62. On July 17,1997, in response to the revised remedial design, USEPA granted an Explanation of Significant Differences (“ESD”) modifying its decision as to the chosen remediation alternative for the site. 63. The ESD memorialized USEPA’s agreement to reevaluate the remedy chosen in the ROD. The reevaluation was prompted by the March 1995 proposal submitted by the cooperating PRPs. 64. In the ESD Affirmation of Statutory Determinations, USEPA stated that the revised remedy is protective of human health and the environment and is cost-effective. 65. It is estimated that the cost of the revised remedy is $25 million, or about one-half of the cost of the remedy chosen in the ROD. 66. The revised remedy reduced the size of the Ohio solid waste cap from 97 to 37 acres, covering only the northern section of the landfill, including the waste pit. 67. Concurrent with the issuance of the ROD, the cooperating PRPs entered a Consent Decree in this action providing for the performance of the remediation of the BRL site. At this time the cooperating PRPs were: Allegheny Ludlum, Aristech, Ashland, Beazer, Consol, National Steel, Pullman, SKF, Triangle, USX, Wheeling-Pitt, Cravat, Ohio Resources, and Belmont County. 68. The Court entered the Consent Decree on March 17, 1998. The Consent Decree expressly recognizes and preserves the CERCLA contribution rights of the signatories against all non-signatories, which includes Neville. 69. As of October 1999, the total past response costs at the BRL were $7,488,427.10. F. Neville’s Lack of Cooperation 1. Non-cooperation during preliminary investigation phase 70. Not later than January 1979, Ne-ville knew its watery sludge, containing hazardous substances, had been taken from its plant by a waste hauler, Mays Corporation, to a disposal site in St. Clairsville, Ohio. The BRL is located about four miles southeast of St. Clairsville. The BRL is the only such site in the vicinity of St. Clairsville and the only waste disposal site in Belmont County, Ohio. 71. On February 22, 1979, in response to concerns raised by the Pennsylvania Department of Environmental Resources, William Roper, Neville’s vice president of manufacturing, wrote a letter to Assistant Attorney General Howard J. Wein, admitting that Neville’s wastewater treatment sludge was “being hauled away by Mays Corporation to St. Clairsville, Ohio,” the location of the BRL. The February 22, 1979 letter indicated that Mays had hauled thirty-eight loads of Neville’s sludge to St. Clairsville from January 1, 1979 to February 16,1979. 72. The February 22, 1979 letter from William Roper of Neville to the Assistant Attorney General for the Commonwealth of Pennsylvania attached a January 24, 1979 letter from Mays Corporation to Ne-ville’s Harvey B. Wheeler, indicating that Mays was disposing of Neville’s waste at the “current surface site in St. Clairsville Ohio.” 73. On January 20, 1983, Michael Moschell, an inspector for OEPA, wrote a letter to Neville requesting information on the wastes that Neville had arranged for Mays to haul to the BRL. 74. On March 8, 1983, William Roper of Neville wrote a letter responding to Moshell’s letter from the OEPA. Roper’s letter did not admit that Neville’s waste was disposed of at the St. Clairsville site in Ohio, the location of the BRL. Rather, Roper indicated that its earlier response to the Pennsylvania Assistant Attorney General had been based on a mere “supposition” that Mays hauled the waste to the BRL. 75. The March 8, 1983 letter response from Neville to OEPA also failed to give OEPA information on the volume of the waste sent to the BRL, failed to provide OEPA with purchase orders between Ne-ville and Mays, the shipping papers or invoices regarding the shipment of Ne-ville’s waste, or chemical data on the waste, even though these relevant documents previously had been provided by Neville to the Assistant Attorney General for the Commonwealth of Pennsylvania on February 22,1979. 76. Neville did not cooperate with OEPA’s request for information, and failed to provide relevant information which it had in its possession establishing that its waste had been disposed at the BRL. 77. The Court finds that Neville’s March 8, 1983 letter to the OEPA was incomplete, evasive and untruthful. 78. On March 15, 1983, Moschell of OEPA again wrote a letter to Mr. Roper requesting that Neville continue to search its files for documents, requesting shipping papers and invoices, and indicating that Neville should have analytical data on their waste as required by the Resource Conservation and Recovery Act (“RCRA”). He further requested information on the chemical products Neville manufactured and the hazardous constituents Neville would expect in the waste as well as the chemical composition of the waste and all relevant documents. 79. Moschell’s March 15, 1983 letter contains the following sentence: “Your cooperation in this matter is appreciated.” The Court finds that the sentence is no more than a common expression used in business and legal correspondence indicating OEPA’s sentiment that it is requiring Neville’s cooperation in giving complete disclosure. Indeed, the Court finds it would be ludicrous to suggest that the sentence is evidence that Neville fully cooperated with OEPA in its efforts to identify hazardous substances disposed of at the BRL. Furthermore, Mr. Moschell did not know at that time that Neville had failed to disclose information in its possession. 80. On March 29, 1988, Neville’s Roper responded to the March 15, 1983 letter from Mr. Moschell. Roper denied that Neville’s waste was a RCRA hazardous waste. Roper also claimed that Neville was unable to identify the hazardous constituents in the waste or provide shipping papers, invoices, as Neville claimed it could not find them. Roper’s March 29, 1983 letter did not provide information on the chemical products Neville manufactured, the hazardous constituents Neville would expect in the waste, or the chemical composition of the waste. 81. In sum, the Court finds that Ne-ville failed to cooperate in the OEPA’s preliminary investigation of the BRL site and provided answers to the OEPA’s requests for information that were incomplete, evasive, and misleading. 2. Lack of Cooperation in CERCLA administrative process 82. On December 7, 1984, the USEPA sent Neville a letter, notifying Neville that it was a PRP for the remediation of the BRL and requesting Neville’s participation in the remediation of the BRL. 83. On January 4, 1985, McKnight of Neville responded to USEPA’s request, and refused to participate in the remediation of the BRL, claiming “Neville has never been involved in the generation, transportation, treatment or disposal of hazardous wastes relative to the Buckeye Reclamation Landfill.” Instead, Ne-ville requested information from the USE-PA to show that Neville had disposed of waste at the BRL. 84. Other PRPs who allegedly generated, transported, or disposed of waste or owned or operated the BRL, including Triangle and Consol, cooperated in the USE-PA’s request to study and remediate the site. Those PRPs formed the Buckeye Reclamation PRP Steering Committee, chaired by David B. Graham. Graham sent letters to McKnight of Neville inviting Neville to join the PRP group’s effort to work with USEPA to remediate the BRL. 85. On June 27, 1985, McKnight of Ne-ville sent a letter to David Graham in response to Graham’s letters dated April 15, 1985, and June 14, 1985. In the letter he stated, “to the extent that any of the materials hauled by Mays at that time were disposed of at the Buckeye Reclamation Landfill, Neville must again advise that those materials were non-hazardous substances.” Therefore, he claimed, Ne-ville was not a PRP under CERCLA, and again he requested that Graham provide to Neville pertinent documents which could be used to prove Neville’s liability. Ne-ville did not join with the PRPs who did cooperate with USEPA and OEPA in studying and remediating the site. 86. On July 26, 1985, Mr. Graham responded to McKnight’s request for documents and invited Mr. McKnight to meet with representatives of two cooperating PRPs, Mr. Hayes of Koppers Company (Beazer East) and Mr. Todd of U.S. Steel. 87. On September 9, 1985, McKnight responded confirming that he had met with Hayes and Todd, denied that Neville was a liable party, and declined the PRPs’ “invitation to participate in the Buckeye Steering Committee for purposes of dealing with the USEPA.” 88. Although it was requested to do so, Neville failed and refused to participate in the AOC I, under' which the cooperating PRPs agreed to undertake the RI/FS and the EA. 89. The cooperating PRPs incurred $3,727,180 in direct expenses for the preparation of the RI/FS and EA. Neville did not participate in this effort and contributed nothing. 90. On February 21, 1986, Graham sent a letter to McKnight of Neville informing Neville that the cooperating parties had entered into the AOC I with USE-PA and OEPA to perform the RI/FS for the site, and reminding McKnight that the USEPA identified Neville as a PRP at the site. Graham requested that Neville participate in the investigation of the landfill and pay an equitable allocation of the costs incurred. He invited Neville to participate in a meeting to discuss these matters with the cooperating PRPs. 91. Although it had been requested to do so, Neville failed and refused to participate in the AOC II, under which the cooperating PRPs agreed to pay for the remedial design for the BRL site. 92. The cooperating PRPs incurred direct costs for the preparation of the remedial design studies in the amount of $3,245,571. Triangle paid a share of these costs in the amount of $582,252. Neville did not participate or contribute to the effort. 93. On March 31, 1993, Michael Ber-man of USEPA sent a letter to Neville pursuant to Section 104(e) of CERCLA, requesting supplemental information regarding the nature and quantity of Ne-ville’s waste. 94. On April 26,1993, McKnight of Ne-ville objected to USEPA’s letter requesting information. McKnight indicated he did not know the amount of Neville’s waste Mays hauled or the location and identity of the disposal site. 95. The Court finds that, with the information available to Neville prior to its 1983 correspondence with OEPA and its 1985 correspondence with USEPA, it is impossible to believe that Neville did not know or could not reasonably ascertain that Mays disposed of Neville’s sludge at the BRL site, and that the sludge contained hazardous substances. 96. Neville did not cooperate with USEPA’s request for information and gave answers that were incomplete, evasive, and misleading. Neville failed to provide USEPA with documents and information in its possession indicating that Mays had hauled Neville’s waste, which contained hazardous substances, to the BRL. 3. Non-cooperation in CERCLA lawsuits 97. Neville did not accept the Court’s invitation in October 1995 to participate with the cooperating PRPs in its negotiation of the remedy for the site with the United States. These negotiations led to the selection of a remedy with a cost of about $25 million, compared to the remedy selected in the ROD, which was estimated to cost at least $48 million. 98. In Neville’s “Answers and Objections of Third-Party Defendant Neville Chemical Company to Allegheny Ludlum Corporation’s Interrogatories and Requests for Production of Documents,” dated August 8, 1995, Neville swore, as verified by McKnight, that it did not transport or arrange with a transporter for the disposal of any materials either hazardous or non-hazardous at the BRL. The Court finds that this answer was untruthful. 99. In Neville’s “Answers and Objections of Third-Party Defendant Neville Chemical Company to Allegheny Ludlum Corporation’s Interrogatories and Requests for Production of Documents,” dated August 8, 1995, Neville did not admit that Mays had any contractual relationship with Neville during the years 1969-1992, but rather stated that Neville “may” have had a contractual relationship with Mays Corporation during the years 1978 and/or 1979. Neville attempts to redeem its answer, arguing that the term “contractual” requires a legal conclusion. The Court, however, finds that its answer was evasive and untruthful. 100. Neville did not participate in the effort between the cooperating PRPs and USEPA in the negotiation of the ESD. 101. On March 17, 1998, the Court entered the Consent Decree between the United States, Consol, Triangle, and the other cooperating PRPs, but not Neville, for the remediation of the BRL site estimated at $25 million, and the payment of USEPA’s future costs in excess of $800,000. 102. The parties to the Consent Decree paid oversight costs to USEPA and OEPA in 1998 in the amount of $232,883. Neville did not participate in the Consent Decree and consequently has paid nothing. ■ III. General Principles Applicable to CERCLA A. Purpose of CERCLA Congress enacted CERCLA in 1980 “ ‘to facilitate the prompt cleanup of hazardous waste sites by placing the ultimate financial responsibility for cleanup on those responsible for hazardous wastes.’ ” Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 652 (6th Cir.2000)(quoting Kalamazoo River Study Group v. Rockwell Int’l Corp., 171 F.3d 1065, 1068 (6th Cir.1999)); see also B.F. Goodrich v. Betkoski, 99 F.3d 505, 514 (2d Cir.1996) (noting that the purposes of CERCLA include “facilitating efficient responses to environmental harm, holding responsible parties liable for the costs of the cleanup, and encouraging settlements that reduce the inefficient expenditure of public funds on lengthy litigation” (citation omitted)), cert. denied, 524 U.S. 926, 118 S.Ct. 2318, 141 L.Ed.2d 694 (1998). CERCLA is not a model of legislative clarity. See, e.g., Exxon Corp. v. Hunt, 475 U.S. 355, 363, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986); Artesian Water Co. v. Gov’t of New Castle County, 851 F.2d 643, 648 (3rd Cir.1988) ( “CERCLA is not a paradigm of clarity or precision. It has been criticized frequently for inartful drafting and numerous ambiguities attributable to its precipitous passage.”). As it is a remedial statute, CERCLA must be construed liberally to effectuate its primary goals. Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 327 (2d Cir.), cert. denied, 531 U.S. 979, 121 S.Ct. 427, 148 L.Ed.2d 436 (2000). B. Liability under CERCLA CERCLA provides two causes of action: one for recovery of response costs under § 107(a), and one for contribution under § 113(f)(1). Section 107(a) provides: 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 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, 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 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(1) of this title. 42 U.S.C. § 9607(a). Liability under § 107(a) is generally joint and several on any defendant regardless of fault. Kalamazoo River Study Group, 228 F.3d at 653. ‘“To establish a prima facie 'case for cost recovery under § 107(a), a plaintiff must prove four elements: (1) the site is a ‘facility’; (2) a release or threatened release of hazardous substance has occurred; (3) the release has caused the plaintiff to incur ‘necessary costs of response’; and (4) the defendant falls within one of the four categories of PRPs.’ ” Id. (quoting Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F.3d 344, 347-48 (6th Cir.1998)). CERCLA defines a “facility” as including “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). CERCLA defines a “release” as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant). ...” 42 U.S.C. § 9601(22). In 1986 Congress created the second CERCLA cause of action when it enacted the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), which allows PRPs to seek contribution from other PRPs for their proportionate share of costs associated with hazardous waste cleanup. Centerior, 153 F.3d at 348-56. Before the 1986 amendment, PRPs were deemed ineligible to bring recovery actions under § 107(a). Id. at 349, 356. Section 113(f)(1) states 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, 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. 42 U.S.C. § 9613(f)(1). Parties seeking contribution under § 113 must look to § 107 for the basis and elements of the liability of the defendants. Kalamazoo River Study Group, 228 F.3d at 653. That is, the elements for a contribution claim under § 113 are identical to those for a § 107 claim. Id. at 656. Notably, causation is not an element of liability under either § 107 or § 113. Id.; AlliedSignal, Inc. v. Amcast Int’l Corp., 177 F.Supp.2d 713, 748-49 (S.D.Ohio 2001)(Rice, Chief Judge). Unlike § 107, liability under § 113 is not joint and several, but several only. Kalamazoo River Study, 228 F.3d at 653; Centerior, 153 F.3d at 348. PRPs who settle with the government may bring contribution actions under § 113, but are themselves immune from claims for contribution concerning matters covered by the settlement. 42 U.S.C. § 9613(f)(2); see Centerior, 153 F.3d at 352, n. 11. C. Equitable Allocation of Response Costs Congress invested the district courts with broad discretion in making CERCLA contribution allocations when it provided, “the court may allocate response costs among the liable parties using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(1)(em-phasis added); see Kalamazoo River Study Group v. Rockwell Int’l Corp., 274 F.3d 1043, 1049 (6th Cir.2001). By using the term “equitable factors” Congress invoked the tradition of equity under which the court must construct a flexible decree balancing all the equities in the light of the totality of the circumstances. United States v. R.W. Meyer, Inc., 932 F.2d 568, 572 (6th Cir.1991). “It is well established that flexibility is proper in the successful shaping ... of an equitable decree.” United States v. City of Birmingham, Mich., 727 F.2d 560, 566 (6th Cir.), cert. denied, 469 U.S. 821, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). Many courts determining allocation have consulted the six so-called “Gore factors”: (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. 126 Cong. Rec. 26,779, 26,781 (1980). See also H.R. Rep. 99-253, at 19 (1985), reprinted in 1986 U.S.C.C.A.N. 3042. The Court is by no means required to apply the Gore factors. Indeed, as the Seventh Circuit Court of Appeals has stated, “in any given case, a court may consider several factors, a few factors, or only one determining factor ... depending on the totality of the circumstances presented to the court.” Envtl. Trans. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 509 (7th Cir.1992). One court has distilled the following four “critical factors”: 1. The extent to which cleanup costs are attributable to wastes for which a party is responsible. 2. The party’s level of culpability. 3. The degree to which the party bene-fitted from disposal of the waste. 4. The party’s ability to pay its share of the cost. United States v. Davis, 31 F.Supp.2d 45, 63 (D.R.I.1998), aff'd, 261 F.3d 1 (1st Cir.2001); Robert P. Dahlquist, Making Sense of Superfund Allocation Decisions: The Rough Justice of Negotiated and Litigated Allocations, 31 Envtl. L. Rep. 11098, 11099 (2001)(“The Gore factors are most relevant in academic and theoretical analysis of the way Superfund liabilities should be allocated. But in the real world Judge Torre’s list of four critical factors often provides the basis upon which Superfund allocations are made.”). Mathematical precision in this process is not realistically achievable or desirable. R.W. Meyer, Inc. 932 F.2d at 573-74 (flexible apportionment approach furthers congressional intent of prompt cleanup by ensuring that participating PRPs may seek contribution from other PRPs “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.”); Davis, 31 F.Supp.2d at 63. A plaintiff seeking contribution bears the burden of establishing the defendant’s equitable share of response costs. Centerior, 153 F.3d at 348. Allocation under § 113 may include apportionment of any “orphan shares” among the parties, representing shares attributable to PRPs that are insolvent. See Centerior, 153 F.3d at 354 n. 12. IV. Conclusions of Law A. Liability of Neville 1. The Court has jurisdiction in this case because the action arises under the laws of the United States, viz., CERCLA. 28 U.S.C. § 1331. 2. The parties have stipulated that the BRL site is a “facility” for purposes of CERCLA. Thus the first element for liability is satisfied. Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 653 (6th Cir.2000). 3. The parties have stipulated that a release or threatened release of hazardous substances has occurred at the BRL. The second element for liability is therefore satisfied. Id. 4. The parties have stipulated that Consol has and will be required to incur necessary response costs for the BRL consistent with the National Contingency Plan. The third element for liability is met. Id. 5. The only essential element of liability in question in this case is whether Ne-ville is a responsible party under one of the four categories set forth in CERCLA § 107(a), 42 U.S.C. § 9607(a). Id 6. Neville argues that it is not liable because Neville did not itself cause incur-rence of response costs at the BRL. Ne-ville’s argument is unavailing because causation is not an element of liability under CERCLA. Kalamazoo River Study Group, 228 F.3d at 655-56. 7. Neville arranged for the d