Full opinion text
Opinion KEETON, District Judge. I. INTRODUCTION A. Questions About the Terms of Final Judgment The questions now to be decided concern what final judgment is to be entered, after extended pretrial and trial proceedings (both jury and non-jury), on claims of “settling parties” against non-settling parties for contribution of shares of remediation costs, past and future, of the “Sullivan’s Ledge Site” in New Bedford, Massachusetts. For the reasons explained in this opinion, the court (i) orders dismissal of claims of plaintiffs against several defendants (together with dismissal of counterclaims, cross-claims, and third party claims), in accordance with stipulations, settlements, consent decrees, and orders made as proceedings developed in this case, (ii) orders judgment against plaintiffs for all other defendants except Cornell-Dubilier Electronics, Inc. (“CDE”), (iii) orders judgment for plaintiffs against CDE for a share of responsibility for reimbursement of costs already paid by plaintiffs for remediation, at each of the sites designated as OU No. 1 and OU No. 2, to the date of the verdict on site OU No. 1, December 20, 1996, and through February 26, 1997 on site OU No. 2, and (iv) orders judgment declaring provisionally the rights and liabilities among plaintiffs and CDE for remediation costs incurred after those dates. B. Summary of Background Facts and Court Proceedings Previously published opinions in this case state background facts and explain pre-trial proceedings, the court’s rulings on dispositive motions during trial, and rulings reserving identified issues for determination either by the jury (impaneled in the case for one phase of trial) or by the court in non-jury phases of trial. See Acushnet Co. v. Coaters, Inc., 948 F.Supp. 128 (D.Mass.1996); Acushnet Co. v. Coaters, Inc., 937 F.Supp. 988 (D.Mass.1996). On June 13, 1995, this court approved a settlement and consent decree resolving all claims and counterclaims between plaintiffs and the City of New Bedford. On February 12, 1996, upon joint motion of the parties who are plaintiffs in this action and Savit Corp., the court dismissed the plaintiffs’ claims against Savit Corp. with prejudice and without costs. On July 24, 1996, this court granted summary judgment in favor of defendant New England Telephone and Telegraph Company (NETT) against all plaintiffs, and accepted NETT’s waiver of all its counterclaims and crossclaims, subject to right of withdrawal of the waiver should the judgment in its favor against all plaintiffs be vacated or modified by later order of this or a higher court. On November 7, 1996, this court granted judgment as a matter of law, after plaintiffs had been fully heard during trial before a jury, in favor of defendant Federal Pacific Electric Company (FPE), against all plaintiffs. On December 2, 1996, this court approved a settlement and consent decree among the Environmental Protection Agency, the parties who are plaintiffs in this case, Coaters, Inc., defendant in this case, Fibre Leather Mfg. Co., defendant in this case, and others. Under the terms of this settlement and consent decree, all claims (including counterclaims and crossclaims) among Coaters, Inc., Fibre Leather Mfg. Co., and all plaintiffs in this case were resolved and ordered dismissed with prejudice and without costs. On December 2, 1996, on conclusions and for reasons stated and explained orally of record at that time and supplemented in the opinion of December 17, 1996 (Docket No. 576), this court granted judgment as a matter of law, after plaintiffs had been fully heard during trial before a jury, in favor of defendants Mohasco Corporation, Monogram Industries, Inc., d/b/a American Flexible Conduit, Ottaway Newspapers, Inc., and Nortek, Inc. ' On December 20, 1996', the court received the following jury verdict in response to interrogatories: Verdict I. Findings as to Costs Plaintiffs Have Already Incurred 1. What amount do you find by a preponderance of the evidence to be reasonable costs actually paid out by plaintiffs on or before the date of your verdict for each of the following kinds of remediation costs? Answer in DOLLARS or by a checkmark beside NONE for each of items a-k. a. Payments to Baker Environmental $ 915,314.99 NONE b. Payments to O’Brien & Gere for Implementation of Pre-Design Work Plan $3,503,007.10 NONE e. Payments to O’Brien & Gere for Remedial Design Work $1,284,621.15 NONE d. Payments to O’Brien & Gere for Interim Project Coordinator Work $ 337,223.29 NONE e. Payments to Palmer & Dodge $ 603,937.00 NONE _ g. Reimbursement of Past Costs to EPA and DEP $ 644,983.30 NONE_ h. Payments to EPA and DEP for Oversight Costs $ 569,850.48 NONE _ i. Payments to Burke and Smith for Access to Golf Course $ 4,107.50 NONE _ j. Payments to New Bedford Realty for Rental of Cinema Parking Lot $ 13,500.00 NONE k. Payments to Pettiti & Gamaehe, Hodgson & Pettiti, and J.G. Hodgson for Audit and Tax Work $ 30,127.36 NONE_ II. Findings as to Hazardous Substances 1.PCBs Do you find by a preponderance of the evidence that Cornell-Dubilier Electronics (CDE) arranged for the disposal of polychlorinated biphenyls (PCBs) within the OU No. 1 area of the Sullivan’s Ledge site? X YES NO 2.TCE Do you find by a. preponderance of the evidence that Cornell-Dubilier Electronics (CDE) arranged for the disposal of triehlorethylene (TCE) within the OU No. 1 area of the Sullivan’s Ledge site? X YES NO If you answer NO to both of Questions 1 and 2, answer no other questions. Otherwise, go to Question 3 below. 3.a. Did the quantity, toxicity, or durability (or a combination of quantity, toxicity, and durability) of the total PCBs and TCE, contributed by CDE and others who contributed no more than did CDE to disposal of PCBs and TCE within the OU No. 1 area, add enough to contamination from sources other than these to make a reasonably determinable difference in the amount of reasonably necessary response costs incurred by plaintiffs? Answer by placing a checkmark in only one of the three blanks. X We unanimously find YES by a preponderance of the evidence We unanimously find NO by a preponderance of the evidence _We unanimously find no preponderance of the evidence for an answer of YES or NO 3.b. Was the quantity, toxicity, or durability (or a combination of quantity, toxicity, and durability) of the PCBs and TCE disposed of by CDE within the OU No. 1 area enough to weigh as one of the “equitable factors” in your determination of fair and equitable allocation of shares of responsibility X We unanimously find YES by a preponderance of the evidence We unanimously find NO by a preponderance of the evidence We unanimously find no preponderance of the evidence for an answer of YES or NO Skip Part III if you have answered NO to all of the questions you answered in Part II. III. Findings as to Allocation of Shares The percentages of responsibility you find in answering this question must add up to 100%. Under the evidence in this case, you may find that one of the equitable shares of responsibility is less than 1%. The mathematical expression of a share less than one percent may become difficult to write, read, and compare with other shares. For this reason, you are directed to express your findings in whole numbers of shares, using either the number 1 or the number 10 for the smallest share and appropriately larger numbers for all other shares. After weighing each of the equitable factors as to which you find that evidence before you gives you a basis for assigning some weight one way or the other, and taking into account your answers to questions in Part II as to any hazardous substances at Sullivan’s Ledge traceable to CDE, in order to have equitable sharing of reasonably necessary remediation costs plaintiffs have already paid and will incur in the future, what number of shares do you find to be appropriate for CDE, for plaintiffs (as a group), and for others? 1. Remediation Costs Plaintiffs Have Already Paid Answer by placing a checkmark beside only one of a, b, and c. Then complete other blanks that go with whichever of a, b, or c you have checked. _a. We unanimously find by a preponderance of the evidence the following shares: shares for CDE shares in total for plaintiffs as a group shares for Coaters shares for Fibre Leather _ TOTAL SHARES X b. We unanimously find no preponderance of the evidence; our best estimate is that the shares should be as follows: _7_ shares for CDE _83_ shares in total for plaintiffs as a group _5_ shares for Coaters _5_ shares for Fibre Leather _100 TOTAL SHARES c. We unanimously find the evidence insufficient to make any estimate that is reasoned from evidence 2. Remediation Costs Plaintiffs Will Incur in the Future Answer by placing a checkmark beside only one of a, b, and c. Then complete other blanks that go with whichever of a, b, or c you have checked. _a. We unanimously find by a preponderance of the evidence the following shares: shares for CDE shares in total for plaintiffs as a group shares for Coaters shares for Fibre Leather TOTAL SHARES X b. We unanimously find no preponderance of the evidence; our best estimate is that the shares should be as follows: __7 shares for CDE 83 shares in total for plaintiffs as a group _5 shares for Coaters 5 shares for Fibre Leather _100_ TOTAL SHARES _c. We unanimously find the evidence insufficient to make any estimate that is reasoned from evidence _12/20/96_ /s/ Barbara E. Rattigan Date Foreperson Post-verdict phases of trial, together with hearings on post-verdict motions, commenced on January 2, 1997. The total in-eourt time for these hearings was no more than about 40 hours, but the parties requested and were allowed substantial intervening periods of time, partly for negotiations that resolved some of the remaining disputes, partly for preparation of documents reporting and implementing agreements that were reached on some matters, and partly for preparing and filing submissions in support of their respective positions on all remaining disputes. All proceedings were completed with an oral hearing regarding the precise terms of the Final Judgment, on July 23,1997. On March 20, 1997, upon joint motion of the plaintiffs in this action and Dartmouth Finishing Corp., this court dismissed the plaintiffs’ claims against Dartmouth Finishing Corp. with prejudice and without costs. On July 23, 1997, the court denied plaintiffs’ motion for a partial separate final judgment with respect to claims against Revere Copper & Brass, Inc. and Revere Copper Products, Inc. (together called “Revere”), and allowed plaintiffs’ alternative motion for dismissal without prejudice of their claims against Revere, subject to an application for leave to seek reinstatement of such claims should a higher court reverse, vacate, or otherwise set aside the final judgment dismissing plaintiffs’ claims against one or more of the other defendants. On July 14-18 and 21-23, 1997, on findings and conclusions and for reasons stated orally of record at hearings commencing on January 2, 1997 and concluding on July 23, 1997, and supplemented in the opinion of July_, 1997, this court made additional rulings and orders resolving other issues material to final judgment. This opinion summarizes and explains post-verdict rulings, reasons for them, and reasons for the unusual terms of the final judgment. These unusual terms respond to distinctive legal and factual issues of extraordinary complexity that have arisen in this ease. Included are questions of law that must be decided to determine the outcome in this ease and have not previously been decided in opinions of higher courts that are binding in this circuit. II. COURT RULINGS (REFLECTED IN THE VERDICT FORM AND CHARGE TO THE JURY) AND JURY FINDINGS A. Factual Findings as to Costs Already Incurred In pre- and post-verdict hearings, the court denied motions of plaintiffs and CDE asking that the court (not the jury) decide all issues regarding claims for reimbursement of costs already paid. The court also overruled the objections of plaintiffs and CDE to the court’s submitting questions l(a)-(k) to the jury. These questions concern claims for reimbursement of remediation costs incurred by plaintiffs before the date of the verdict. Each party contended also, both before and after verdict, that the court should have decided these questions as matters of law are decided. Plaintiffs claimed that they were entitled to full reimbursement as a matter of law. The court ruled that these claims could not be decided as a matter of law, for reasons explained in the second of the previously published opinions. 948 F.Supp. at 132-42. Once the court had ruled that a settling party may claim reimbursement of a share of remediation costs against a non-settling party upon satisfaction of a threshold-of-signifieance standard — see id. at 133-36, 140-42— CDE’s remaining objections to the court’s submitting to the jury questions regarding remediation costs already incurred were of the following types: (a) CDE’s contention that, both as to causation and as to any reasonable basis for allocation of shares, the evidence proffered by plaintiffs in this case was speculative and insufficient to support a finding, reasoned from evidence, for plaintiffs; (b) CDE’s contention that plaintiffs’ claims were either premature or precluded under the terms of an agreement between plaintiffs and the Environmental Protection Agency (“EPA”); (e) CDE’s challenges to the sufficiency of the evidence to support the amounts claimed for specific items of costs. Most of the issues were resolved by agreement during post-verdict negotiations. The objections that remained in dispute were resolved by a stipulation filed on July 22, 1997. As to costs of remediation at the OU No. 1 site incurred and paid by plaintiffs before verdict, the court will order judgment for plaintiffs based on jury findings as modified by the stipulation of July 22, 1997. The percentage share of these costs that plaintiffs are to recover from CDE is 7.0 percent of the amount agreed upon in the stipulation of July 22,1997. B. Findings as to Hazardous Substances Both in fashioning the verdict form and in ruling on objections to it and to the charge, the court rejected plaintiffs’ contention that plaintiffs were entitled to judgment as a matter of law for total reimbursement, and in the alternative for a share determined by the court and not by a jury. Some of the background for these rulings was explained in the second published opinion. See id. at 134-36, 140-42. As explained orally on the record during trial before the jury (partly in their presence and more fully out of their presence), the court concluded that disputable fact issues were presented by the evidence as to whether CDE arranged for the disposal of PCBs and TCE within the OU No. 1 area. These questions were submitted to the jury in Part II of the verdict form, questions 1 and 2. Under instructions on the verdict form, an affirmative answer to either of these questions led to more questions of disputable fact, submitted in Part II of the verdict form as questions 3.a and 3.b: a. whether the quantity, toxicity, or durability (or a combination of quantity, toxicity, and durability) of the total of PCBs and TCE, contributed by CDE and others who contributed no more than did CDE to disposal of PCBs and TCE within the OU No. 1 area, added enough to contamination from sources other than these to make a reasonably determinable difference in the amount of reasonably necessary response costs incurred by plaintiffs; and b. whether the quantity, toxicity, and durability (or a combination of quantity, toxicity, and durability) was enough to weigh as one of the “equitable factors” in a determination of fair and equitable allocation of shares of responsibility. A potentially significant dispute of law was presented by the contrasting contentions of the parties concerning the burden of proof on the factual questions designated as 3.a and 3.b. Because the law is unsettled on this matter, the court required the jury to choose one of three possible answers as shown in the verdict form. The jury’s answer unanimously finding YES by a preponderance of the evidence has mooted this disputed legal issue regarding burden of proof. This opinion says no more about this burden-of-proof issue, except for calling attention (in Parts II.D and III through V) to developments in the law that bear upon how this and other unsettled questions of law are to be decided when they are essential to determining the outcome of a case. C. Cause-in-Fact Among Multiple Contributors of Hazardous Waste The clashing primary contentions of plaintiffs and CDE were that attorneys on each side said the court should decide causation issues in their favor as a matter of law. Except for maintaining these respective positions in their objections to the verdict form and charge, neither the plaintiffs nor CDE objected to the framing of question 3.a and to the court’s explanation to the jury of cause-in-fact and the meaning of “substantial factor” as used in a context of hundreds of alleged contributors of varying quantities, toxicity, and durability of hazardous waste. The cause-in-fact issue in this case is another of the matters as to which no guiding precedent on point can be found, and the requests for instruction and drafting suggestions of counsel for plaintiffs and CDE substantially aided the court in fashioning a suitable instruction on this issue. The formulation developed, in this consultation, for use in this trial is similar to the alternative recommended in W. Page Keeton, et al., Prosser & Keeton on Torts (5th ed.1984), for cases in which each of the defendants bears a like relationship to the event [for which legal responsibility is to be assigned or allocated]. Each seeks to escape liability for a reason that, if recognized, would likewise protéct each other defendant in the group, thus leaving the plaintiff without a remedy in the face of the fact that had none of them acted improperly the plaintiff would not have suffered the harm. Candid recognition of this fact as a reason for holding that the conduct of each of such similarly situated defendants is a cause in fact of the event seems preferable to the substantial-factor rule. Id. at 268-69 (footnote omitted). The alternative formulation recommended in Prosser & Keeton is as follows: When the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event. Id. at 268. The appended footnote states: Although no judicial opinion has approved this formulation, results reached in reported cases are almost uniformly consistent with it. Id. at n. 40. The parties to this case preferred that the relevant portion of the charge to the jury accept the terminology of “substantial factor” and then define “substantial factor,” in the context of hundreds or more contributors of hazardous substances to a site, in a way closely analogous to the alternative formulation cited above. The court adopted this suggestion. The explanation of this aspect of question 3.a, in the court’s charge, was as follows: Question II.3.a requires you to consider whether the disposal of identified substances at Sullivan’s Ledge made “a reasonably determinable difference” in the amount of costs paid and incurred by the plaintiffs. In determining whether the disposal of the identified substances at the site made a difference, you must consider whether that disposal was a substantial factor in bringing about some or all of the costs to remediate the site. In determining whether disposal by CDE was a substantial factor in causing plaintiffs to incur response costs, you may consider among other factors you find to be relevant, (a) the type, quantity, toxicity, and durability of hazardous substances that are being cleaned up; (b) criteria applicable to the determination that investigation and cleanup was necessary for soil, sediments, or groundwater at the Sullivan’s Ledge site; (c) criteria applicable to the performance of response actions at the site, including without limitation, determination of the time of completion of the cleanup of soil, sediments, or groundwater; (d) the type, quantity, toxicity, and durability of hazardous substances disposed of at the Sullivan’s Ledge site by a defendant. A person’s conduct may be a substantial factor in causing a harmful result even though other causes have contributed to the result, since such causes, innumerable, are always present. If you find that the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the harmful result, and application of the but-for rule to them individually would relieve all of them of responsibility, then you may find that the conduct of each actor is a substantial factor in causing the harm. In a moment I will use an example, not drawn from the evidence in this case but instead a hypothetical example, to help you understand the meaning of substantial factor. This example will also include further explanation that will help you understand questions II.3.a, II.3.b, and III. It is a hypothetical not based on evidence in this case, just as an example. Assume a case in which there is evidence that 100 entities contributed hazardous substances to a site, and no evidence about any other contributors. Assume that we have enough evidence to fix the comparative contributions of hazardous substances in sequence from No. 1, the heaviest contributor, down to No. 100, the least contributor. Would the remediation costs have been just the same — no less and no more — if the hazardous substances from the smallest contributor (whom we designated No. 100) never got to the site? If so, the answer to a question like question II.3.a about contributor No. 100 would be NO. Would the remediation costs have been just the same — no less and no more — if all of the hazardous substances from the smallest five contributors (whom we have designated Nos. 100, 99, 98, 97, and 96) never got to the site? If so, the answer to a question like II.3.a about each of Nos. 100, 99, 98, 97, and 96 would be NO. If, however, a finder of fact found that remediation costs would have been less if No. 95’s contribution as well as those of 96-100 had never reached the site, then the answer to a question like II.3.a about contributor No. 95 would be YES. That is, the contributors of Nos. 95-100, together, did make a difference. Also, the answer for Nos. 1-94, each of whom contributed more than No. 95, would be YES. As stated orally on the record during post-verdict proceedings, the court ruled that the evidence was sufficient to support the jury finding, for the plaintiffs and against CDE, on this causation issue. This finding is accepted by the court as part of the basis for the judgment to be entered. D. Findings as to Allocation of Shares Because of unsettled law with respect to placement of burdens (on what party) and standards of decision (by a preponderance of the evidence or by a standard demanding more — such as clear and convincing — or by a standard demanding less — such as sufficient to make a reasoned estimate), Part III of the verdict form used a tri-partite submission. Had the jury made a finding by a preponderance of the evidence, for one side or the other, these unsettled questions of law might have become moot in this case. The jury did not do so. Instead they answered: 1. Remediation Costs Plaintiffs Have Already Paid X b. We unanimously find no preponderance of the evidence; our bestestimate is that the shares should be as follows: _7_shares for CDE _83_shares in total for plaintiffs as a group _5_shares for Coaters _5_shares for Fibre Leather _100 TOTAL SHARES 1. Remediation Costs Plaintiffs Will Incur in the Future _b. We unanimously find no preponderance of the evidence; our bestestimate is that the shares should be as follows: _7_shares for CDE _83_shares in total for plaintiffs as a group _5_shares for Coaters _5_shares for Fibre Leather 100_TOTAL SHARES In post-verdict proceedings I have denied motions of all parties to set aside or disregard these findings and have overruled objections to them. Aso, I have denied other motions that were premised on the motions to disregard and the objections. I conclude that the findings of the jury in Part III of the verdict are well supported by evidence. Aso, to avoid any risk of leaving a matter unresolved that might lead to a necessity for remand rather than instructions as to what modified judgment to enter should a higher court reject one or more of my rulings bearing upon the judgment to be entered in this case, I now explicitly proceed to address this set of questions as a finder of fact. As did the jury, I find no preponderance of the evidence either way on these questions. This case and most cases one may reasonably expect to arise, under the law of hazardous waste disposal as it now stands, are paradigm illustrations of rules and rulings of law establishing tests for legal accountability that require consideration of more than a single matter. That is, a test for legal accountability in a context such as this is either a multistep test requiring consideration of two or more “elements,” each of which must be satisfied separately, or it is a test requiring a one-step evaluative decision, based upon consideration of two or more (often many) “factors.” In the context of hazardous waste remediation, rarely if ever can most of the “elements” or “factors” be proved with a degree of probability even approaching the more-probable-than-not (preponderance-of-the-evidence) standard. Important distinctions exist between “elements” tests and “factors” tests. See, e.g., Harris v. Forklift Sys., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (psychological harm, like any other relevant “factor,” may be taken into account in determining whether an employment environment is “hostile” or “abusive,” but no single “factor” is alone decisive); Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 944-48 (1st Cir.1995) (holding, in light of Harris, that it was enough to charge the jury that unreasonable interference with Scarfo’s work performance was an absolute requirement for showing hostile or abusive work environment); United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 983 (2d Cir.1984) (various components of Fed.R.Civ.P. 24(a) directive regarding intervention are not bright lines but ranges; components must “be read not discretely but together”). See also Ciba-Geigy Corp. v. Liberty Mut. Ins. Co., 149 N.J. 278, 299-300, 693 A.2d 844, 854 (N.J.1997) (disputes between an insured and an insurer concerning future coverage for environmental remediation costs did not exist historically as part of a jury trial and remediation is a form of equitable relief that can require continuing supervision; damages are not calculable and determinations of declaratory and equitable relief depend on many considerations). Regardless, however, of whether higher courts adopt an “elements” test for this context of hazardous waste remediation, or instead a “factors” test, or some combination, the point will remain that proving an element or factor by a preponderance of the evidence will be so difficult, if not impossible, that the placement on a party of a burden of proof by a preponderance of the evidence will ordinarily assure decision of the case against that party. Interests in clarity and candor about grounds for judicial decisions of cases before the courts make a compelling case for acknowledging this reality of a dearth of accessible evidence and fashioning legal tests that take it into account. More reasons for this position are explained in Part III, below. My finding of fact is that even the issues about shares of accountability for costs already incurred cannot be answered by a preponderance of the evidence in this case. For added practical reasons, predictions about future costs and equitable shares are necessarily even more difficult to make with a degree of confidence that can be characterized accurately as predictions that it is more probable than not that the shares assigned will turn out to be equitable when future events unfold. III. A PRELIMINARY EXAMINATION OF GROUNDS FOR FUTURE REMEDIATION COSTS AND EQUITABLE SHARES A. The Court’s Obligation to Decide Regardless of Complexity The constitutional structure allocating authority and responsibility among the Branches of state and national governments in the United States places responsibility on courts to decide cases filed before them that present issues of law and fact within the scope of their jurisdiction. A court is not permitted the luxury of declining to decide because the material issues are so complex that any decision will be extraordinarily difficult and inevitably controversial. For controversies within the scope of their jurisdiction, courts are the place of last resort for persons or entities who have claims or defenses that no other governmental institution can be moved to resolve by taking decisive action within the scope of its constitutional authority. Increasingly, as economic, social, and personal relationships become more complex, clashes of interest produce controversies far more complex than paradigm tort, contract, and property controversies that constituted the regular fare of court dockets historically and well into the 20th century. A perceptive scholar, commenting recently on responses of various institutions and professionals to the reality of extreme complexity in a significant percentage of current controversies, remarked: Restricting one’s attention to particular aspects of reality reduces complexity, making it possible to solve problems that otherwise would boggle the mind. The disadvantage in restricting one’s attention, however, is that it often screens out important aspects and leads the analyst to the wrong conclusion. Lynn M. LoPucki, The Systems Approach to Law, 82 Cornell L. Rev. 479, 480 (1997). Other decisionmakers, as well as commentators, may choose the course of adopting hypothetically simplifying assumptions as they discuss and write about present and future remediation of past hazardous waste disposal. To decide the cases that are before them, and are within the scope of them jurisdiction, courts are not permitted this choice. To decide cases, they must address the realities regardless of complexity, and declare outcomes despite conflicting positions, for each of which reasonable arguments can be advanced by professionals responsibly representing their clients. B. The Statutory Provisions at Issue Excerpts from CERCLA and SARA as Amended and Codified in 42 U.S.C. Chapter 103 § 9601(20) (A) The term “owner or operator” means (i) in the case of a vessel, any person owning, operating, or chartering by demise, such vessel, (ii) in the case of an onshore facility or an offshore facility, any person owning or operating such facility, and (iii) in the case of any facility, title or control of which was conveyed due to bankruptcy, foreclosure, tax delinquency abandonment, or similar means to a unit of State or local government, any person who owned, operated, or otherwise controlled activities at such facility immediately beforehand. Such term does not include a person, who, without participating in the management of a vessel or facility, holds indicia of ownership primarily to protect his security interest in the vessel or facility- (D) The term “owner or operator” does not include a unit of State or local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release or threatened release of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title. § 9606. Abatement actions (a) Maintenance, jurisdiction, etc. In addition to any other action taken by a State or local government, when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United, States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require. The President may also, after notice to the affected State, take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and welfare and the environment. (Emphasis added.) § 9607. Liability (a) Covered persons; scope; recoverable costs and damages; interest rate; “comparable maturity” date 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(i) of this title. The amounts recoverable in an action under this section shall include interest on the amounts recoverable under sub-paragraphs (A) through (D). Such interest shall accrue from the later of (i) the date payment of a specified amount is demanded in writing, or (ii) the date of the expenditure concerned. The rate of interest on the outstanding unpaid balance of the amounts recoverable under this section shall be the same rate as is specified for interest on investments of the Hazardous Substance Superfund established under subchapter A of chapter 98 of Title 26. For purposes of applying such amendments to interest under this subsection, the term “comparable maturity” shall be determined with reference to the date on which interest accruing under this subsection commences. (Emphasis added.) § 9613(f) Contribution (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. 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. (Emphasis added.) (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 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. (3) Persons not party to settlement (A) If the United States or a State has obtained less than complete relief from a person who has resolved its liability to the United States or the State in an administrative or judicially approved settlement, the United States or the State may bring an action against any person who has not so resolved its liability. (B) 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 ivho is not party to a settlement referred to in paragraph (2). (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. (Emphasis added.) § 9613(h) Timing of review No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 of the United States Code (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 (relating to cleanup standards) to review any challenges to removal [of contaminated soils, for example] or remedial action selected under section 9604, or to review any order issued under section 9606(a), in any action except [those specified in subparagraphs designated (1)-(5)]. 42 U.S.C. § 9613(h). § 9613(i) Intervention In any action commenced under this chapter or under the Solid Waste Disposal act [42 U.S.C.A. § 6901 et seq.] 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®. § 9613(j) Judicial review (1)Limitation In any judicial action under this chapter, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court. (2) Standard In considering objections raised in any judicial action under this chapter, the court shall uphold the President’s decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law. (3) Remedy If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the response costs or damages that are not inconsistent with the national contingency plan, and (B) such other relief as is consistent with the National Contingency Plan. (4) Procedural errors In reviewing alleged procedural errors, the court may disallow costs or damages only if the errors were so serious and related to matters of such central relevance to the action that the action would have been significantly changed had such errors not be made. 42 U.S.C. § 9613®. § 9622(f)(6)(A) (6) Additional condition for future liability (A) Except for the portion of the remedial action which is subject to a covenant not to sue under paragraph (2) or under subsection (g) of this section (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall include an exception to the covenant that allows the President to sue such person concerning future liability resulting from the release or threatened release that is the subject of the covenant where such liability arises out of conditions which are unknown at the time the President certifies under paragraph (3) that remedial action has been completed at the facility concerned. 42 U.S.C. § 9622(f)(6)(A). C. A Recent Instance of Supreme Court Interpretation of Statutory Provisions About Future Loss The issue of statutory interpretation presented by this case is different in both context and detail from the issue that divided the Supreme Court of the United States 6-3 in Metropolitan Stevedore Company v. Rambo, - U.S. -, 117 S.Ct. 1953, 138 L.Ed.2d 327 (1997), but from a more generalized perspective the two issues are alike. The issue in Metropolitan Stevedore concerned what kind of judgment should be made, under applicable provisions of the Longshore and Harbor Workers’ Compensation Act, on the claim for long-term future benefits for a worker (Rambo), stipulated to have suffered 22 1/2 % permanent partial disability as a result of his injury, whereby Rambo established that the injury impaired his ability to undertake at least some types of previously available gainful labor and thus prevented him from earning as much as he had before his accident. Id., at-, 117 S.Ct. at 1964. Because of intervening training for higher-paying work and intervening market developments opening up demands for workers qualified for the higher-paying jobs, the ALJ found that “Rambo is now able to earn market wages as a crane operator significantly greater than his pre-injury earnings.” Id. No reliable prediction could be made, however, about whether these favorable market conditions would prevail throughout Rambo’s work life expectancy. Justice Souter, delivering the opinion of the Court in Metropolitan Stevedore, observed that because an injured worker who in these circumstances has a basis to anticipate wage loss in the future resulting from a combination of his injury and job-market opportunities must nonetheless claim promptly [under a one-year statutory limitation], it is likely that Congress intended “disability” to include the injury-related potential for future wage-loss. Id., at-, 117 S.Ct. at 1959. Supporting reasons for this interpretation of the Act are stated in a footnote. They explain a concept of “awarding nominal compensation,” a concept of “permitting protective filings,” and a relationship between these two concepts. A different conclusion might, perhaps, be drawn from our observation 46 years ago in Pillsbury, 342 U.S. at 198-199 [72 S.Ct. at 224-225], that the agency allowed claims to be filed within one-year of injury but before recovery for present disability could be had. If that practice were assumed to be authorized by the Act, an injured worker who anticipated future loss of earning capacity could file a claim within the one-year period permitted by § 13(a) yet defer litigation of the claim indefinitely until a capacity-loss manifested itself, thereby undercutting our inference from the limitations provision that present disability must be conceived as including the potential for future decline in capacity. But it seems unlikely that when Congress enacted § 13(a) it intended workers to be able to file claims before they could establish all the elements entitling them to compensation. Moreover, while the practical effect of permitting protective filings and indefinitely deferring adjudication is in one respect the same as awarding nominal compensation when there is a significant possibility of future capacity loss, in that both approaches hold open the possibility of compensating a worker when the potential future economic effects of his injury actually appear, the former approach, unlike the latter, has the defect of putting off the adjudication of every element of the worker’s claim, including such matters as the work-related nature of the injury, until long after the evidence grows stale. We therefore think that the inference we draw from the limitations provision is the better one. Id., n. 2 (emphasis added). In contrast, Justice O’Connor (joined by Justices Scalia and Thomas) concluded: I part company with the Court first because in my view, § 8(h) of the LHWCA, 33 U.S.C. § 908(h), requires an administrative law judge (ALJ) to make an up-front finding that “fix[es]” the worker’s wage-earning capacity (and hence his eligibility for compensation) by taking into account both the worker’s present and future ability to earn wages. Second, a finding of future economic harm must be supported by a preponderance of the evidence pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., in order to affect a claimant’s wage-earning capacity. Finally, because I read the ALJ’s decision as expressly finding that respondent Rambo will probably suffer no future loss of earning power, and because that finding is supported by substantial evidence, I would reverse the decision of the Court of Appeals and direct the entry of judgment for petitioner Metropolitan Stevedore Co. Id., at-, 117 S.Ct. at 1965 (O’Connor, J., dissenting). The issue presented by the present litigation is one as to which consensus is not to be expected either in the Supreme Court or elsewhere. My purpose throughout pretrial developments and trial of this case has been to develop the record, in every respect likely to be viewed by higher courts as relevant to the final outcome of the case, under whatever resolution they may reach on reasonably disputable issues regarding the meaning of statutory provisions that may be invoked by any of the litigants. IV. LEGAL ISSUES ARISING WHEN LITIGATION COMPLEXITY DEPARTS FROM TRADITIONAL TORT AND CONTRACT PARADIGMS A. Increasing Incidence of Departures From Traditional Paradigms 1. A Future Event as an Element of a Legal Test As Metropolitan Stevedore illustrates, the present case is not at all unique, in the legal system, in presenting a kind of problem for decision as to which practical reasons exist for a lawmaking determination of the unsuitability of a legal test for determining the final outcome of a case (or some important aspect of the case) that uses a future event (or an identified set of future events) as an element of the test. In few if any instances will a finder of fact be able to predict with any degree of confidence that the relevant future event will or will not occur. In paradigm tort and contract jury trials, the jury, in arriving at their verdict, must decide whether they find by a preponderance of the evidence that future events, bearing upon extent of harm caused by a tort or breach of contract, will occur, as the plaintiff has contended. Inevitably the jury’s predictive findings seldom if ever turn out to be precisely accurate as events unfold. The common law initially, and as well statutes and procedural rules of more recent time, provide for adjudicative revision of the jury’s findings of damages only in very exceptional circumstances. The underlying policy choice of lawmakers has been, instead, to treat the jury’s predictive finding as final and decisive. 2. Lawmaker’s Policy Options Very different policy considerations have been advanced, however, in a varied and increasing number of controversies that are far more complex than paradigm tort and contract cases. The considered choice of lawmakers may be, for some at least of these more complex controversies, both to define in a different way what it is the finder of facts is to find and to define in some way other than “preponderance of the evidence” the measure of confidence the finder of facts must have to make the finding. B. Analogies in Legal Reasoning 1. Circumstances of Uncertainty About Past Events and Evaluation of Past Conduct In searching for analogies that might provide guidance in relation to the issues in this case, I turn first to a context in which the practicalities of reaching decisive outcomes in the face of uncertainty relate to inevitable uncertainty about past events and evaluation of past conduct. Precedents for departure from the traditional tort-contract paradigm in relation to findings about the past may be evaluated as relevant more broadly in this ease because the distinction between past and future events makes past-event departures even more compelling support for reconsidering the content and structure of legal tests concerned with prediction of future events. Criminal sentencing is a context in which this kind of explicit reconsideration by lawmakers has occurred, in relation to findings about past events and evaluative findings about degrees of culpability associated with past events. In that context, as in the present toxic waste remediation case, some important findings about past events and evaluations of conduct of parties must be qiiantitative in nature. Developments in the law bearing on sentencing speak to the problems associated with making findings about quantities as to which precision is inevitably not achievable. Thus, for example: When making findings under a preponderance of the evidence standard about quantities (whether quantities of controlled substances, or quantities determining a restitutional obligation, or quantities of foreseeable “loss” or “value” with respect to, for example, stock in a corporate entity or bank “checks” or “credits”), the finder of facts may evaluate the evidence as insufficient to support a finding that it is more probable than not that the quantity was more than some particular numerical minimum in a prescribed “level” of a guideline sentencing table. United States v. Fulton, 960 F.Supp. 479, 496 (D.Mass.1997). This development in criminal sentencing occurred through a statutory mandate to an agency (The United States Sentencing Commission) for that agency to promulgáte guidelines that provided somewhat greater specificity than did the statutory provisions themselves. Both the statute and the Commission characterized what the Commission promulgated as “guidelines.” The statute and Commission promulgation, taken together, left much to courts to work out by decisional processes like those of the common law method. A court decision of this kind, made with guidance from other sources of legal authority, has more or less force as precedent, depending on the role of the deciding court in the hierarchy of courts, on the nature and content of the guidance, and on the nature and content of the court’s reasoned explanation of its decision. In several other contexts precedent already exists for the fashioning of new kinds of legal tests by statute, or by administrative action under statutory authorization, or by judicial decision where no other source of authority has provided essential guidance. The response of the legal system to claims of injuries to infants from DPT vaccines is an example. A very small percentage of all the infants to whom DPT vaccine is administered quickly develop disabling conditions that health care professionals who have provided services to or for the infant commonly attribute to characteristics of the vaccine, or to the choice of some health care provider to administer it, or to the method of administration. Also, another small percentage of the infants to whom the vaccine is administered develop disabling conditions first diagnosed years later. Inevitably great uncertainties exist in these cases, when first they are presented in any forum for an adjudication of legal responsibility. The uncertainties concern both past facts relevant to legal accountability and predictions about future consequences. Among the uncertainties is likely to be a lack of information about which among all the manufacturer-marketers of the vaccine was the source of the particular vaccine that was administered to the infant whose disability is first diagnosed years later. In these circumstances, manufacturers and marketers of DPT vaccines publicly expressed, in the 1980s, expectations of withdrawal of DPT vaccines from the market, creating concerns about complete disappearance from the market of DPT vaccines in the absence of governmental action, state or federal, to resolve the “crisis.” Congress responded by enacting the National Childhood Vaccine Injury Act of 1985. That Act has features that to some extent, and in defined circumstances, displace claims for compensation under state tort law criteria in a “tradeoff.” O’Connell v. Shalala, 79 F.3d 170, 173 (1st Cir.1996). See also Schafer v. American Cyanamid Co., 20 F.3d 1 (1st Cir.1994). The “tradeoff’ includes a grant, to a child who has suffered a kind of injury presumed to be causally tied with DPT vaccine, and family members qualifying for consortium-like claims, very substantial economic benefits measured by criteria (“elements”) that must be satisfied to prove a claim legally recognized under the Act. The findings required to satisfy these “elements” are not things that could never be found by a preponderance of the evidence because of the high degree of uncertainty about both past events and future events that are traditionally relevant under paradigm state tort law claims. Instead, the Act establishes other criteria as to which proof is possible, at least in a substantial percentage of all eases of childhood vaccine injury. See id. See also Shackil v. Lederle Laboratories, 116 N.J. 155, 561 A.2d 511 (1989). 2. Circumstances of Uncertainty about Future Events, Consequences, and Costs of Remedies Predictions about future events are inherently less likely to be precisely correct than factual findings about past events, even when all accessible evidence is placed before the person or group of persons making the factual predictions and findings. Sources of guidance in statutes and precedents leave trial courts without any settled rules they can invoke to decide what impact these inevitable uncertainties have upon the outcome of a case such as the present ease, involving claims of “settling parties” against “non-settling parties” for contribution of shares of future remediation costs. Developments in other areas of law, however, may serve as analogies. Developments that appear most useful in this case are discussed in Part V.B.3, below. Y. MORE ABOUT STATUTORY AND DECISIONAL GUIDANCE ON SHARES OF ACCOUNTABILITY UNDER CERCLA AND SARA A. Examining Statutory Text as a First Step To begin a more thorough inquiry into authoritative guidance for deciding the legal questions this case presents, I turn to the statutory text bearing on shares of legal responsibility for past and future remediation costs under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 (1987), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, § 101 et seq., 100 Stat. 1613 (1986). This method of commencing with statutory text is thoroughly supported by precedents that have developed in a wide range of other contexts. See, e.g., Metropolitan Stevedore, supra (Longshore Workers’ Compensation); In re Bajgar, 104 F.3d 495, 497 (1st Cir.1997) (applying this method in the context of the bankruptcy statute); Strickland v. Comm’r, Maine Dept. of Human Services, 48 F.3d 12, 17 (1st Cir.1995) (looking to statutory text in reviewing an administrative agency’s interpretation of the statute); Heno v. FDIC, 20 F.3d 1204, 1207 (1st Cir.1994) (applying this method to interpretation of FIRREA); Telematics Int’l Inc. v. NEMLC Leasing Corp., 967 F.2d 703, 706 (1st Cir.1992) (same). CERCLA and SARA, when read in a sense consistent with ordinary meaning of the words Congress used, contain unmistakable manifestations that in some instances at least, and perhaps in most, determinations of shares of accountability for remediation costs will not be made until years or even decades after the EPA, acting alone or after reaching a settlement agreement with some of the potentially responsible parties, develops a remediation plan, or approves one proposed by settling parties. One such manifestation is inherent in the specific provisions for reevaluation as remediation progresses and the work done discloses more and better information about what remains to be done. The added information developed as the work proceeds enables gradually improved predictions about what more must be done to accomplish the prime objective of removing toxic substances, or effectively “containing” them (for example, by laying down an impermeable “cap” that will stop atmospheric emissions and pumping into underground placement impermeable barriers to underground movement). The instinctive reaction that “containment” must be very expensive, and sometimes unpredictably expensive, has been reenforced by reported experience. The cost of precluding escape into the environment, with consequences of additional harm, is seldom if ever predictable with precision, but both the costs of precluding escape and the costs of bearing consequences if escape is not precluded are certain to be high. This conclusion is supported by the statutory text bearing upon a reservation by EPA of the right to make further claims, as part of a settlement agreement of the kind in evidence in this case. See Ex. 106. In the section concerning settlements between the EPA (as the President’s delegate, see 42 U.S.C. § 9606(a), quoted in Part III.B, above) and potentially responsible parties, the statute declares: Except for the portion of the remedial action which is subject to a covenant not to sue under paragraph (2) or under subsection (g) of this section (relating to de minimis settlements), a covenant not to sue a person concerning future liability to the United States shall include an exception to the covenant that allows the President to sue such person concerning future liability resulting from the release or threatened release that is the subject of the covenant where such liability arises out of conditions which are unknown at the time the President certifies under paragraph (3) that remedial action has been completed at the facility concerned. 42 U.S.C. § 9622(f)(6)(A) (emphasis added). Without doubt, some ambiguities do exist in § 9622(f)(6)(A). For example, what, precisely, is the meaning of the word “unknown”? One among the possible interpretations of the word “unknown” is that it is a statutory recognition that the President, and the EPA as the President’s delegate, did not have sufficient information to determine, with confidence approaching that implicit in a finding by a preponderance of the evidence, a particular potentially responsible person’s equitable share of accountability for the President (or the EPA as the President’s delegate) to certify “that remedial action has been completed at the facility concerned.” In any event, regardless of ambiguity of statutory provisions in