The full case caption appears at the
end of this opinion. BRORBY, Circuit Judge. The United States District Court for the Western District of Oklahoma entered judgment in favor of Plaintiff, ToscoCorporation (“Tosco”), on its Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) andOklahoma nuisance law claims against Defendant, Koch Industries, Inc. (“Koch”). In so doing, the district court declared Kochresponsible for its fair share (fifteen percent) of all past and future response costs and damages Tosco incurred or will incurwhile investigating and remediating environmental contamination at the abandoned Duncan, Oklahoma oil refinery (“Refinery”).Koch appeals, claiming the district court (1) erred in determining Koch to be liable under CERCLA; (2) applied an incorrectand inequitable cost allocation method; (3) erred in ruling Koch liable under Oklahoma nuisance law; (4) abused its discretionby admitting late-filed, untimely evidence; and (5) erred by not taking into consideration the settlement between Sun and Tosco.We consider each issue in turn, and affirm. I. Factual Background Ownership History The Refinery sits on approximately four hundred acres five miles south of Duncan, Oklahoma. Rock Island Refining Companybuilt the northern and eastern portions of the Refinery (approximately 160 acres) in the 1920s, and expanded and modifiedthose portions during the 1920s and 1930s. Rock Island Oil & Refining Company, an unrelated entity and Koch’s predecessorcompany, purchased those portions of the Refinery as an ongoing refining business in September 1946. Koch operated thenorthern and eastern portions of the Refinery until December 1949, when it shut down operations. In June 1951, Koch leased the northern and eastern portions of the Refinery to Sunray DX Oil Corporation (“Sunray”),predecessor-in-interest to Sun Company, Inc. (“Sun”). Sunray continued Koch’s operation under lease from June 1951 toSeptember 1953. In September 1953, Sunray purchased the northern and eastern portions of the Refinery from Koch andcombined those portions with the southern and western portions of the Refinery it purchased in 1947 from the United States,Defense Plant Corporation, which had utilized the southern and western portions to produce jet fuel during World War II.Sunray and its successors owned and operated the Refinery from 1947 until 1980. Tosco purchased the Refinery from Sun inNovember 1980, and operated it for three years until June 1983. The Refinery has not been in operation since that date. Tosco sold the Refinery to Alpha Oil Company (“Alpha”) in April 1986. Alpha then sold certain waste areas of the Refinery toResource Recovery Company (“Resource Recovery”) and the remaining areas to Energy Realty International (“Energy Realty”)in the summer of 1986. Resource Recovery Company and Energy Realty International are the current owners of the Refinery. Refinery Operations Koch, Sun and Tosco each conducted oil refining operations at the Refinery. Koch manufactured gasoline, kerosene, distillate,naphtha, range oil, fuel oils, and asphalt products at the Refinery. During Sun’s and Tosco’s ownership, the Refinerymanufactured automotive gasoline, diesel fuel, aviation fuel, various grades of fuel oil, LP gas, petrochemical feedstock, andpetroleum coke. Koch’s asphalt plant was shutdown after Sunray built the coker in 1954. Refinery operations, including those during Koch’s ownership and operation, generated various hazardous substances andwastes, including slop oil emulsion solids, heat exchanger bundle cleaning sludge, API separator sludge, leaded tank bottoms,highly corrosive sludges, waste waters, and petroleum hydrocarbon byproducts. Koch operated numerous unlined waste pondsand pits, oil skimming ponds, sumps, settling ponds, cooling ponds, holding ponds, and drainage ditches, and an asphalt pit areaand underground pipeline for waste disposal. These areas are probable sources of underground contamination. The pollutioncaused by the Refinery’s various owners and operators commingled and cannot be separated. Site Investigation and Remediation The Oklahoma Department of Environmental Quality (“Department”) completed an environmental investigation of the Refineryin 1994. The Department informed Tosco and Sun, as former owners of the Refinery, that further investigation and remedialaction was necessary and requested that Tosco and Sun conduct such activity jointly. Only Tosco entered into a ConsentAgreement and Final Order with the Department, under which Tosco agreed to complete a remedial investigation and feasibilitystudy of the site, prepare a remedial design, and take certain interim remedial actions. Tosco has installed a cut-off wall andbank stabilization to remediate seeps of hydrocarbons and hazardous substances into Claridy Creek, and has operated asystem to recover hydrocarbons and other hazardous substances floating on the groundwater under the Refinery. At the time oftrial, Tosco continued to work with the Department to investigate the need for further, future corrective actions. As ofDecember 1, 1997, Tosco had incurred investigation and remediation costs of $755,868.23. Total costs are likely to exceed$2,000,000. Litigation History In June 1997, Tosco filed suit against Sun, Koch, Alpha, Resource Recovery and Energy Realty seeking contribution for pastand future investigation and remediation costs pursuant to CERCLA � 113, 42 U.S.C. � 9613, Oklahoma public nuisance law,and other statutes. Tosco also sought relief against Sun for breach of contract and contractual declaratory relief, stemming fromthe purchase agreement through which Tosco purchased the Refinery from Sun. Sun settled all claims with Tosco in January1998 after a one-day bench trial on the contractual issues. The remaining CERCLA and nuisance claims against Koch, Alpha,Resource Recovery and Energy Realty were tried to the court in February 1998. Koch was the only defendant that appearedand defended these remaining claims, as Alpha, Resource Recovery, and Energy Realty either no longer exist or are insolvent. In March 1998, the district court found Koch liable under CERCLA and Oklahoma public nuisance law and allocated nineteenpercent of Tosco’s past and future response costs to Koch. In September 1998, the district court amended its judgment byreducing the allocation of costs to Koch to fifteen percent, reflecting the relative proportion of time Koch operated the Refinery.Koch appeals the amended judgment. II. Analysis A. CERCLA Liability Pursuant to CERCLA’s contribution provision, 42 U.S.C. � 9613(f), Tosco is entitled to recover response costs from anyperson who is liable or potentially liable under CERCLA � 107(a), 42 U.S.C. � 9607(a). See United States v. Colorado &Eastern R.R., 50 F.3d 1530, 1535-36 (10th Cir. 1995). Section 107 imposes strict liability on four classes of potentiallyresponsible persons, including current and former owners and operators of a facility or vessel involved in hazardous substancedisposal, and persons who arranged for or accepted hazardous substances for disposal or transportation. 42 U.S.C. �9607(a)(1)-(4). Prior owners or operators like Koch are responsible persons if they controlled the site “at the time of disposal”of a hazardous substance. Id. � 9607(a)(2). A “disposal” is “the discharge, deposit, injection, dumping, spilling, leaking, orplacing of any … hazardous waste into or on any land or water so that such … hazardous waste … may enter the environment.”Id. � 6903(3). The plaintiff in a CERCLA response cost recovery action involving multiple potentially responsible persons neednot prove a specific causal link between costs incurred and an individual responsible person’s waste. United States v. AlcanAluminum Corp., 964 F.2d 252, 264-66 (3d Cir. 1992). To establish liability under � 9613(f), it is sufficient for the plaintiff toestablish a connection between a particular defendant and the incurred response costs vis � vis the defendant’s identification asa responsible person as defined in � 9607(a). See Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 935 & n.8 (8th Cir.1995); General Elec. Co. v. Litton Indus. Automation Sys., Inc., 920 F.2d 1415, 1417-18 (8th Cir. 1990) (courts lookonly to see if there has been a release or threatened release for which a defendant is responsible), cert. denied, 499 U.S. 937(1991); c.f. Farmland Indus., Inc. v. Colorado & Eastern R.R. , 922 F.Supp. 437, 439-42 (D. Colo. 1996) (court holds� 9613(f) does not impose a separate causation element � a prima facie case for contribution liability is established by provingliability under � 9607); Louisiana-Pacific Corp. v. Beazer Materials & Serv., Inc., 811 F.Supp. 1421, 1426-30 (E.D. Cal.1993) (statute does not impose a causation element where defendant falls within one of four statutorily defined classes andthere has been an actual release). The district court concluded Koch was liable under CERCLA because (1) it “owned or operated” the Refinery, a facility asdefined by CERCLA, and (2) during its ownership and operation, Koch released or disposed of hazardous substances, asdefined by CERCLA. The court further concluded Tosco had proven the required connection between Koch’s activities andthe response costs Tosco incurred. According to the district court, Koch failed to establish any of the CERCLA defenses. See42 U.S.C. � 9607(b). We review the district court’s conclusions of law de novo, applying the same standard used by the district court in making itsinitial ruling. See Naimie v. Cytozyme Lab., Inc., 174 F.3d 1104, 1108 (10th Cir. 1999); Olguin v. Lucero, 87 F.3d 401,403 (10th Cir.), cert. denied, 519 U.S. 982 (1996). We review the district court’s fact findings for clear error.
[FOOTNOTE 1] Naimie, 174 F.3d at 1108. “‘A finding of fact is “clearly erroneous” if it is without factual support in the record or if theappellate court, after reviewing all the evidence, is left with a definite and firm conviction that a mistake has been made.’”Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998) (quoting Cowles v. Dow Keith Oil & Gas, Inc., 752 F.2d508, 511 (10th Cir. 1985)). Koch claims Tosco failed to prove Koch actually discarded a hazardous waste at the Refinery site. In particular, Koch arguesthe district court’s findings of fact numbers 18 through 45 are erroneous and unsupported by the record. We find ample recordevidence to support the district court’s findings that Koch disposed of hazardous waste at the Refinery. CERCLA liability maybe inferred from the totality of the circumstances; it need not be proven by direct evidence. See United States v. Cello-FoilProds., Inc., 100 F.3d 1227, 1231-32 (6th Cir. 1996) (defining the scope of CERCLA liability under 42 U.S.C. �9607(a)(3)); United States v. Vertac Chem. Corp., 46 F.3d 803, 808 (8th Cir. 1994) (determination of operator liabilityunder 42 U.S.C. � 9607 (a)(2) is a fact-intensive inquiry requiring consideration of the totality of circumstances), cert. denied,515 U.S. 1158 (1995). This is especially true under the circumstances presented in this case, as eyewitness testimony or otherdirect evidence concerning specific waste disposal practices at oil refineries during the 1940s � well before the enactment ofenvironmental laws � is rarely available. It is sufficient, therefore, that Tosco presented a wealth of circumstantial evidenceshowing disposals of hazardous waste occurred at the Refinery during Koch’s ownership or operation.
[FOOTNOTE 2] Indeed, given the evidence of record, reviewed in its entirety, Koch’s effort to discredit the evidence in an attempt to avoid thebroad scope of CERCLA liability is disingenuous. Koch’s arguments concerning the lack of a nexus between any disposal activity conducted by Koch and the costs Tosco hasincurred, and the application of the petroleum exclusion to wastes Koch discharged at the Refinery, are equally meritless. Asstated above, and for obvious reasons given the nature and history of the Refinery site, Tosco need not tie specific responsecosts to hazardous waste identified as Koch’s, alone. Koch does not dispute it owned, operated or leased out a portion of theRefinery site between 1946 and 1953. Moreover, the record is replete with evidence Koch used unlined ditches, pits andponds to dispose of hazardous waste at the site. The evidence indicates those wastes migrated from the ditches, pits andponds, through the soil and into the groundwater, and thus are a probable source of groundwater contamination. The recordfurther reveals the Department has identified additional areas for investigation and possible remediation, including the Refinery’snorthern perimeter which Koch owned for seven years, as well as waste management units Koch is known to have operated.This evidence is more than sufficient to identify Koch as a responsible person under 42 U.S.C. � 9607, and thus, demonstratea connection between Koch’s operations and waste handling practices at the Refinery and the resulting hazardous wastecontamination the Department identified and Tosco has and will continue to remediate. See Control Data Corp., 53 F.3d at935 n.8. The record similarly supports the district court’s finding that hazardous wastes have commingled with the petroleum products inthe soil and floating on the groundwater beneath the refinery, thus rendering the CERCLA petroleum exclusion
[FOOTNOTE 3] inapplicable. It is well known refineries generate hazardous wastes in addition to petroleum products. See Cose v. Getty OilCo., 4 F.3d 700, 707-09 (9th Cir. 1993) (crude oil tank bottoms are not “petroleum” and therefore not subject to CERCLA’sexclusion); United States v. Western Processing Co., 761 F.Supp. 713, 721 (W.D. Wash. 1991) (EPA presumes wastesfrom the interior of a tank that held a petroleum product are hazardous); see also 40 C.F.R. �� 261.31, 261.32 (listed,hydrocarbon-based hazardous wastes relating to refineries include API separator waste, slop oil emulsion solids, andwastewater sludge). Congress intended that the petroleum exclusion address oil spills, not releases of oil which has becomeinfused with hazardous substances. See Alcan Aluminum, 964 F.2d at 266-67 (citing S.Rep. No. 848, 96th Cong., 2d Sess.30-31 (1980)). Consequently, “‘EPA does not consider materials such as waste oil to which listed CERCLA substances havebeen added to be within the petroleum exclusion.’” Id. at 266 (quoting 50 Fed. Reg. 13,460 (1985)). Sampling results andexpert testimony confirm that certain soil at the Refinery, as well as the petroleum plume in the groundwater aquifer beneath theRefinery, contains a mixture of petroleum and hazardous wastes generated and disposed from numerous sources at theRefinery.
[FOOTNOTE 4] The petroleum exclusion requires Koch to controvert Tosco’s evidence concerning the hazardous composition of the petroleumproduct in the soils or floating on the groundwater beneath the refinery.
[FOOTNOTE 5] Koch presents no such evidence,
[FOOTNOTE 6] and thus, has failed to demonstrate its entitlement to the exclusion.
[FOOTNOTE 7] For all these reasons, we affirm the district court’s conclusion Koch is obligated to contribute to investigation and remediationcosts incurred at the Refinery pursuant to 42 U.S.C. � 9613(f). B. Contribution Allocation CERCLA authorizes a district court to allocate CERCLA response costs among the liable parties using any equitable factors itdeems appropriate. 42 U.S.C. � 9613(f). See also FMC Corp. v. Aero Indus., Inc., 998 F.2d 842, 846 (10th Cir. 1993).We review the district court’s contribution allocation for abuse of discretion. FMC Corp., 998 F.2d at 847. Koch complains the district court erred by allocating remediation costs based solely on Koch’s relative duration of Refineryownership during the thirty-seven-year period between 1946 and 1983. Rather than allocate Koch a fifteen percent sharebased on proportionate ownership, Koch argues the district court should have based Koch’s fair share on the relativeproductive capability of each responsible party and the alleged fact Koch disposed of much of its Refinery waste off-site. Otherequitable factors Koch claims the district court failed to consider when making its allocation determination include the totalnumber of potentially responsible parties, the relative acreage controlled by each party (Koch operated on only 160 acres), andthe fact that during a portion of Koch’s ownership, Sun actually operated the Refinery under lease from Koch. In the end, Kochclaims it should be responsible for no more than 1.5% of the total response costs. In balancing the equities in light of the totality of the circumstances, see FMC Corp., 998 F.2d at 847, the district court firstdetermined the pollution caused by the various Refinery owners and operators has commingled and cannot be separated. Thecourt then found Koch operated waste areas in eleven out of thirty, or thirty-seven percent, of the identified solid wastemanagement areas at the Refinery. The court noted that waste disposal practices improved in the years subsequent to Koch’sownership and operation of the Refinery, and found it more probable than not there was a greater infiltration of contaminantsinto soils during Koch’s operation and ownership than during subsequent years � equitable factors weighing against Koch.Finally, the court cited the absence of any evidence that the amount of waste disposed to the environment was substantiallydifferent during Koch’s ownership, a period of seven years (or fifteen percent of the Refinery’s operational life). Recordevidence exists to support each of these findings, which placed Koch’s fair share in the range of fifteen to thirty-seven percent.Accordingly, we cannot say the court abused its discretion by rejecting Koch’s proposed 1.5% allocation, and insteadallocating fifteen percent of the total response costs to Koch. C. Nuisance Liability In addition to holding Koch liable for a share of response costs under CERCLA, the district court also held Koch liable fordamages to Tosco under Oklahoma public nuisance law. Koch claims the district court erred because “[t]he unrefuted evidenceestablishes that no claim for statutory nuisance exists.” Koch further argues Tosco’s nuisance claim is barred under Oklahoma’stwo-year statute of limitations, and Tosco did not suffer a “special injury,” as required to maintain an action for public nuisance.We address each argument in turn. Koch first attempts to avoid liability under state law by characterizing the alleged nuisance as the existence of petroleum seepsinto Claridy Creek, not the presence of petroleum hydrocarbons in the groundwater under the Refinery. According to Koch, ittherefore cannot be liable because “there is no evidence that seeps of petroleum hydrocarbons, which constitute the claimednuisance, occurred during Koch’s ownership or operation of its portion of the Refinery.” The evidence as Koch relates it”establishes that the petroleum hydrocarbon seeps were first observed in the early 1970s by Sun and that those seeps wereabated by Sun’s installation and operation of the petroleum hydrocarbon recovery system.” Only later was the abatementdiscontinued and did the seeps recur. In sum, Koch denies it ever committed any unlawful acts or failed to perform any dutiesrequired by the law in effect at the time it owned and operated the Refinery, which acts or omitted duties caused the allegednuisance. We disagree. First, Koch cites no legal authority or factual evidence to support its claim that seeps of polluted groundwater into ClaridyCreek constitute a public nuisance, but the presence of hydrocarbons in the groundwater does not. We fail to see how theOklahoma Department of Environmental Quality’s reference to the seeps as a public nuisance in any way limits legal liability tothat particular aspect of the nuisance. The pollution of any Oklahoma waters, including groundwater, has been prohibited bystate statute since the early 1900s � well before Koch’s waste disposal activity at the Refinery. As illustrated above, there isample record evidence establishing Koch disposed of hazardous wastes that have percolated through the soils and into thegroundwater beneath the Refinery. The groundwater is hydrologically connected to the Creek as evidenced by the seeps.Consequently, Koch’s denial of any unlawful activity vis � vis water pollution and the public nuisance stemming therefrom ringshollow. We also reject Koch’s argument Tosco’s nuisance claim is barred by a two-year statute of limitations. While the statute oflimitations on private nuisance claims under Oklahoma law is two years, see N.C. Corff Partnership, Ltd. v. OXY USA, Inc.,929 P.2d 288, 293 (Okla. App. Div. 4 1996), Okla. Stat. tit. 50, � 7 provides: “No lapse of time can legalize a public nuisanceamounting to an actual obstruction of public right.” Concluding, as we have here, that the pollution of Oklahoma watersconstitutes a public nuisance under Oklahoma law, the district court of the Western District of Oklahoma, in Fischer v.Atlantic Richfield Co., 774 F.Supp. 616 (W.D. Okla. 1989), applied Okla. Stat. tit. 50, � 7 to disallow the two-year statuteof limitations as a defense against a plaintiff seeking pollution abatement or the costs of abatement. Id. at 619. We see noreason to reject this existing interpretation of Oklahoma law. Finally, we agree with the District Court Tosco adequately proved it suffered a “special injury” sufficient to maintain a cause ofaction under Okla. Stat. tit. 50, � 10 by establishing it has borne the entire cost of investigation and remediation at the Refinery.See Westwood Pharm., Inc. v. National Fuel Gas Distrib. Corp., 737 F.Supp. 1272, 1281 (W.D.N.Y. 1990) (holding thatif Westwood can establish it has incurred response costs consistent with the National Contingency Plan, those costs will besufficient to meet the special injury criterion for bringing a public-nuisance action). D. Evidence Koch asserts the district court “abused its discretion by admitting the results of scientific tests that Tosco conducted after thediscovery cut-off and disclosed to Koch, for the first time, after the pretrial conference, on the eve of trial.” The specificevidence to which Koch objects is data from soil and groundwater sampling conducted in December 1997 as part of theremedial investigation and feasibility study performed pursuant to Tosco’s consent agreement with Oklahoma Department ofEnvironmental Quality. Koch claims it was unfairly prejudiced by the introduction of this sampling data because it was unable toconduct additional discovery prior to trial. We will not disturb the district court’s evidentiary ruling unless we have a definite and firm conviction the court made a clearerror of judgment or exceeded the bounds of permissible choice under the circumstances. McEwen v. City of Norman, 926F.2d 1539, 1553-54 (10th Cir. 1991). Moreover, in bench trials “questions raised relative to the admission or exclusion ofevidence … become relatively unimportant,” because the rules of evidence are “intended primarily for the purpose ofwithdrawing from the jury matter which might improperly sway the verdict.” United States v. Norman T., 129 F.3d 1099,1107 (10th Cir. 1997) (quotation marks and citations omitted), cert. denied, 523 U.S.1031 (1998). Where, as here, a case istried before the court without a jury, we presume on appeal the court considered only competent evidence and disregarded anyincompetent evidence. Id. Koch fails to overcome that presumption or demonstrate any abuse of discretion or prejudice. The sampling evidence Kochcomplains of was scheduled and conducted as part of Tosco’s ongoing remedial investigation and feasibility study at theRefinery. The record indicates Koch was aware no later than November 1997 Tosco would be conducting sampling inDecember 1997, after the discovery cut-off, and Tosco intended to present the results of such testing in the trial. Koch neverrequested to observe the sampling, take its own samples, or split any samples collected. Instead, Koch filed a motion in limineto exclude the sampling data the end of January 1998, after the court’s deadline for filing such motions, in part on the groundTosco allegedly denied then co-defendant Sun’s request for split samples. Yet, Koch makes no showing it had access to orotherwise was relying on any split samples Sun might obtain. Koch makes no claim Tosco failed to produce the data as soon asit became available. More important, Koch makes no showing the data is unreliable or Koch was denied an adequateopportunity to cross-examine witnesses at trial concerning the December 1997 data. Under these circumstances, we affirm thedistrict court’s evidentiary ruling. E. Previous Settlement Koch argues the district court “erred by not taking into consideration the fact of the Sun/Tosco settlement in connection withKoch’s liability to Tosco.” According to Koch, the district court was obligated to conduct a “fairness hearing” on the amount ofthat settlement so that Koch, as a non-settling defendant, could be credited with the amount of the settlement. Otherwise, Kochclaims Tosco will realize a windfall by recovering more than it is entitled to in contribution (i.e., more than the investigation andremediation costs Tosco has or will incur). Koch’s argument is factually flawed and without legal support. The record makes clear the district court allocated liability forpast and future response costs proportionately among the responsible parties � expressly as to Koch and implicitly as to Sunand Tosco � thus avoiding making Koch responsible for more than its fair share. Sun opted to settle its liability for a fixedamount in order to avoid the uncertainty of unknown future costs. Koch chose not to settle for a fixed amount. We believewhere, as here, a responsible party chooses to go to trial and future response costs are likely to be incurred, but the exactamount remains unknown, a judgment on proportional liability is an appropriate remedy. See Kelley v. E.I. DuPont deNemours & Co., 17 F.3d 836, 844-45 (6th Cir. 1994) (a declaration of liability is appropriate even if future costs aresomewhat speculative). In other words, the district court was not obligated to fix an amount of Koch’s liability based on theSun/Tosco settlement. As noted above, the district court acted well within its discretion by allocating Koch’s proportionateshare of liability based on Koch’s relative duration of Refinery ownership and control � a factor unique to Koch and unaffectedby a settlement between other responsible parties. Moreover, the majority of courts deciding contribution suits between privateparties under 42 U.S.C. � 9613(f)(1) (as contrasted from suits or settlements with the government under 42 U.S.C.� 9613(f)(2)), have applied the Uniform Comparative Fault Act to reduce a nonsettling party’s liability by the amount of thesettling parties’ liability, not the settlement amount. Lynnette Boomgaarden & Charles Breer, Surveying the SuperfundSettlement Dilemma, 27 Land & Water L.Rev. 84, 109-12 & note 189 (1992). Koch cites no persuasive legal authority tothe contrary, no authority for its proposition the district court was obligated to conduct a “fairness hearing” on the terms of theSun/Tosco settlement,
[FOOTNOTE 8] and no evidence Tosco will enjoy a windfall. Koch’s assertion Tosco may receive double recovery is pure speculation.Consequently, we will not overturn the district court’s judgment on this ground. III. Conclusion For all the foregoing reasons, the district court’s judgment imposing contribution liability on Koch under CERCLA andOklahoma law is AFFIRMED. Tosco’s request for attorney fees and costs pursuant to 28 U.S.C. � 1912 and Fed. R. App.P. 38 and 39 is denied. :::FOOTNOTES:::
FN1 Koch alleges the district court adopted Tosco’s proposed findings of fact verbatim, and for that reason we should reviewthose findings “especially critically.” Having reviewed the record, we do not believe the district court mechanically adopted theprevailing party’s proposed findings without reasoned consideration. In any event, the clearly erroneous standard must still guideour review. See Everaard v. Hartford Accident & Indem. Co., 842 F.2d 1186, 1193 (10th Cir. 1988).
FN2 As the district court found, and the record substantiates, Koch’s refinery operations, as well as operations conducted duringthe period when Koch leased the Refinery to Sunray, generated numerous hazardous substances and wastes. Koch itselfoperated numerous unlined waste ponds and pits, oil skimming ponds, sumps, settling ponds, cooling ponds, holding ponds,and drainage ditches, and an asphalt pit area and underground pipelines for waste disposal. In addition, numerous product andchemical spills and leaks occurred from tanks, ditches, pipelines, process units and waste areas. All these areas are probablesources of underground contamination. Koch’s own documents indicate Koch could not account for seven percent of its dailythroughput, thus evidencing a large volume of materials, including liquid phase petroleum hydrocarbons containing hazardousconstituents, leaking from the process units into the environment.
FN3 The definition of “hazardous substance” specifically excludes material that is “petroleum, including crude oil or any fractionthereof which is not otherwise specifically listed or designated as a hazardous substance.” 42 U.S.C. � 9601(14)(D).
FN4 The hazardous substances present in seep and soil samples from the Refinery include heavy metals, chromium, napthalenesand phenols, dissolved benzene, toluene, ethyl benzene and xylene, chromium, arsenic, barium, cobalt, lead, nickel, andbenadium.
FN5 In any CERCLA case, once the plaintiff alleges a release or threatened release of hazardous substances, which Tosco hasalleged and supported with evidence here, the party asserting the benefit of the petroleum exclusion bears the burden of proofon that issue. See Organic Chem. Site PRP Group v. Total Petroleum Inc., 58 F.Supp.2d 755, 763 (W.D.Mich. 1999)(because petroleum exclusion is an exception to a statutory prohibition, the defendant bears the burden of showing theexclusion applies). For the reasons discussed above, Koch’s assertion Tosco failed to establish the release of a hazardoussubstance and therefore Koch bears no burden to demonstrate the applicability of the petroleum exclusion is wrong.
FN6 Indeed, Koch’s own expert conceded he performed no testing to show unadulterated petroleum was the only contaminant inthe ground water plume. Moreover, he could not opine that hazardous waste generated by Koch did not commingle withpetroleum products.
FN7 Koch’s emphasis on the presence of petroleum product and past efforts to monitor and recover petroleum product from theground water beneath the Refinery is of no relevance. It simply does not rebut the fact hazardous substances are commingledwith the petroleum products, thus rendering the petroleum exclusion inapplicable.
FN8 We note in the context of settlement with the EPA pursuant to 42 U.S.C. � 9613(f)(2), courts consistently have rejected anyright to a fair share hearing prior to judicial approval of the settlement. See Boomgaarden & Breer, supra, at 107-08 & note171.
Tosco Corp. v. Koch Indus., Inc. United States Court of Appeals Tenth Circuit Tosco Corporation, a Nevada corporation, Plaintiff-Appellee, v. KOCH INDUSTRIES, INC., as successor to Rock Island Oil & Refining Co., Inc., a Kansas corporation, Defendant-Appellant, SUN COMPANY, INC., (R&M), a Pennsylvania, corporation; ALPHA OIL COMPANY, an Oklahoma corporation; RESOURCE RECOVERY COMPANY; ENERGY REALTY INTERNATIONAL, Defendants. No. 98-6209 Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-95-556-M) Filed: May 2, 2000 Before BRORBY, McWILLIAMS and HENRY, Circuit Judges. Counsel: John J. Lyons (Kathleen O’Prey Truman of Latham & Watkins, Los Angeles, California, and Robert N. Barnes of Barnes,Smith, Lewis & McCutcheon, P.C., Oklahoma City, Oklahoma, with him on the brief) of Latham & Watkins, Los Angeles,California, for Plaintiff-Appellee. J. Kory Parkhurst (Thomas A. Loftus III of Koch Industries, Inc., Wichita, Kansas, and J. William Conger of Hartzog, Conger& Cason, Oklahoma City, Oklahoma, with him on the briefs) of Koch Industries, Inc., Wichita, Kansas, forDefendant-Appellant.
