Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT HENDERSON, District Judge. The focus of this action is Oyster Bay Regional Park which comprises 194 acres of property fronting the San Francisco Bay in San Leandro, California. Originally used as a municipal landfill for 38 years, the site was covered and transferred to the East Bay Regional Park District (“Park District”) for development into a shoreline park. Thereafter, the property became contaminated with leachate, a hazardous waste that develops when water interacts with waste. The amount of leachate at the landfill has, and will continue to, require substantial remedial efforts, which to date, have been largely borne by plaintiff, Waste Management of Alameda County, Inc. (“WMAC”), the prior owner of the site. In 1998, WMAC brought this action against the Park District for contribution and declaratory relief pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (“CERC-LA”), as amended, 42 U.S.C. §§ 9607, 9613, the analogous California Hazardous Substance Account Act (“HSAA”), Cal. Health & Safety Code §§ 25300 et seq., and the Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202. The complaint also asserted a variety of state law claims that were dismissed without prejudice on April 24, 1998. In response, the Park District filed a counterclaim under CERCLA, HSAA, and the Declaratory Relief Act seeking comparable relief. The action was tried before the Court between November 30, 1999 and January 14, 2000. Both parties contend that the evidence demonstrates that the other should be held primarily or entirely responsible for the cost of remedying the leachate contamination at the site. The parties also dispute the recoverability of costs already incurred and whether WMAC’s remedial action plan for leachate control is necessary and consistent with the National Contingency Plan. Having carefully considered the testimony presented, along with the voluminous eviden-tiary record, and the comprehensive post-trial briefs and other submissions, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). I. BACKGROUND FACTS A. Developments Leading Up to Transfer of the Landfill to the East Bay Regional Park District Beginning in 1942, WMAC’s predecessor — Oakland Scavenger Company (“OSC”) — operated a 247-acre landfill at the western end of Davis Street in San Leandro, California, known as the Davis Street Landfill (“the Landfill”). The property lies on the eastern side of San Francisco Bay, approximately % mile southeast of the Oakland International Airport. Most of the site is reclaimed tidal flat lands. Starting in 1949, the original landfill area was expanded by construction of a perimeter levee. The area enclosed by the levee was dewatered, and waste was placed directly on the tidal mud flats. During its 38 years of operation — until 1980 — OSC disposed of approximately 13 million cubic yards of waste at the site, weighing approximately 6 million tons. OSC acquired the waste by providing garbage collection services for approximately 75 % of the residential and commercial population of Alameda County, California, through franchise agreements. Some industrial wastes are also deposited at the site. In 1986, WMAC acquired OSC, valued at the time at $85,400,000, and assumed all of its liabilities, including all liabilities associated with the former Davis Street Landfill. For the years the Landfill was operational, OSC was required to obtain a use permit from the City of San Leandro (“San Leandro”). In 1970, OSC was advised that there was enough volume left in the Landfill to make it usable for another 10 to 15 years, assuming operational permits were granted. The estimate, however, was later substantially revised when the pace of dumping exceeded expectations. By the mid-70’s, OSC knew the Landfill would soon reach capacity, but OSC had no ready alternative location near the Davis Street site. Instead OSC hoped to address this looming concern by building a Transfer Station on the 53 eastern acres of the site. This Station would allow OSC to crush and compact the garbage collected on local routes for transfer to the more distant Altamont landfill, thus saving the “heavy expense” of a longer direct haul of the garbage, see Def.’s Exh. 131 at 5419, with its substantially higher transportation, labor, and other costs. This plan, however, was contingent upon San Leandro agreeing to (1) re-zone the 53 acres, (2) grant a use permit for the Transfer Station, and (3) extend OSC’s permit beyond its then expiration-date of 1976 so that it could continue dumping at the Landfill until the Transfer Station was operational. At the same time, both OSC and San Leandro were aware that the residents of Mulford Gardens, a development just southeast of the site, were strongly opposed to the continued operation of the Landfill because of its odors, attraction of flies, and similar nuisances. The residents argued that the best use of the land would be for recreational purposes, emphasizing that “[hjistory shows that San Leandro’s long-range development plans call for a park on that site.” Def.’s Exh. 76 at 18381. OSC also knew that San Leandro was considering not extending OSC’s permit, thus putting OSC in a “survival mode” according to OSC’s then board member, Ronald Proto. Tr. 1654. In mid-1976, the City of San Leandro proposed that OSC turn over 194 acres of the Landfill to the Park District for development into a shoreline park. OSC understood that such a donation was a prerequisite to San Leandro favorably viewing its plans for the Transfer Station, although the two were never officially linked. As OSC plainly acknowledged in correspondence to the Regional Water Quality Control Board (“Water Board”), “The San Leandro City Council has required, as a condition to granting a Use Permit for the Transfer Station, that Oakland Scavenger Company dedicate the 194-acre parcel for park purposes to East Bay Regional Park District, or some other park agency.” Defs Exh. 131 at 5418; see also Proto Tr. 1652-53 (San Leandro “condition[ed]” permission to build Transfer Station upon donation of 194 acres). OSC also understood that, in return, San Leandro would extend OSC’s permit to dump at the Landfill beyond 1976, which would alleviate its immediate dilemma. At the same time, OSC’s commercial options for the landfill were limited, particularly given the permitting requirements enforced by the Bay Conservation and Development Commission. Given OSC’s predicament and the Park District’s interest in making more shoreline publicly accessible, both agreed to pursue San Leandro’s proposal, and the two parties jointly submitted, on July 28, 1976, a proposed letter of intent to this effect to San Leandro. The letter stated inter alia that the parties had agreed that OSC would be permitted to use solid waste as fill material to meet surface drainage and contour conditions as might be required by the Water Board and that OSC would cover the site with cover materials consistent with Water Board requirements. Additional fill would also be used to build up contours needed to make the site desirable as a park. As a result of the letter of intent, San Leandro granted OSC multiple permit extensions, enabling it to continue dumping garbage at the Landfill for over four additional years, from September 1976 until December 1980. Nearby residents reluctantly agreed not to oppose the permit extensions with the understanding that the property would ultimately be developed into a park by the Park District. OSC also obtained a use permit for the Transfer Station which continues in operation to this day. After lengthy negotiations, the Park District and OSC entered into an Option Agreement in April 1979, which provided the framework for transferring ownership of 194 acres of the Landfill to the Park District in three phases over a ten year period. See Pi’s Exh. B-l (“Agreement”). The first phase would transfer Parcels 1 and 1-A, consisting of the outer perimeter of the Site (approximately 67 acres), and the southeast portion of the Site (approximately 21 acres); the second phase would transfer Parcels II and II-A, consisting of the southern, internal portion of the Site (approximately 65.5 acres) and a small area for a service yard on the northern, internal portion of the Site (approximately 2.5 acres); and the final phase would transfer Parcel III, consisting of the northern, internal portion of the Site (approximately 37.4 acres). The Park District was not required to pay OSC any financial consideration for the property. See Agreement ¶ 2.8(a). The Agreement further provided that OSC would take the necessary measures to cover up and “close” each of these parcels, consistent with requirements of the Water Board. See Agreement ¶ 2.3 (“OSC shall provide ... the ‘cover materials’ required by ‘the Closure Plan and in the site closure plan finally approved by the Water Board .... ’ ”). The transfer of the parcels was to follow OSC’s completion of these closure obligations. See Agreement ¶ 2.8. The Agreement further provided that if the Park District elected to not exercise its right to acquire any of the parcels, ownership of the entire Site would transfer to San Leandro, and if not accepted by the City, would revert to OSC. See Agreement ¶ 2.8(c). The Park District, however, exercised its option to accept ownership of all three parcels. It assumed ownership of parcel 1 in December 1982 and May 1983, Parcel 2 in August 1985, and parcel 3 in July 1990. Leachate is a hazardous waste liquid that is formed when water infiltrates into, and interacts with, the solid and liquid waste in a landfill. Thus, the purpose of “closing” a landfill is to provide a barrier between the waste and any water with which it might come into contact. While refuse itself has a large capacity to hold water before generating leachate, the risk of developing leachate is common in municipal landfills. In this case, the immediate proximity of the San Francisco Bay made the need for proper containment of leachate particularly critical. Both parties were aware, during negotiations of the Agreement, that there was a risk of leachate problems developing at the site, notwithstanding the “closure” process contemplated by the Agreement. Both sides, however, refused to accept contractual responsibility for long term environmental risks. Instead, the parties dodged the issue, and essentially left it to the Water Board — which had not yet approved a closure plan at the time the Agreement was signed — to approve an appropriate closure plan and utilize its enforcement powers as it saw fit. As detailed more fully below, the parties’ concerns regarding the risk of contamination were well founded, as leachate problems began to unfold by the mid-1980s. B. OSC’s Closure Plan for the Landfill As noted above, OSC agreed to develop and implement a closure plan at the site. At the time, such closures were governed by Water Board Resolution No. 77-7, which provided “minimum criteria” for proper “closure” of landfills, including a 3% slope requirement as well as the following standards: 1. All completed disposal areas shall be compacted and provided with a final cover of at least three feet of clean soil. A lesser thickness of final cover may be allowed upon a demonstration that, due to thorough compaction of refuse or other factors, differential settlement is likely to be minimal. At least one foot of the final cover shall be compacted to attain a permeability no greater than 10 cm/sec. Exceptions to this requirement may be granted upon a demonstration that equivalent protection against water penetration may be provided by other means. 4. All necessary facilities shall be provided to ensure that leachate from group 2 waste and ponded water containing leachate or in contact with refuse is not discharged to surface waters of the State. Defs. Exh.105 (emphasis added). As OSC’s site closure consultant, Richard Karn made clear, “I’m sure that [OSC] [was] aware of [these requirements].” Tr. 1324. OSC also agreed to implement one of two' additional “Closure Plans” (denominated Plan “A” or “B”) that were designed solely for the purpose of creating a rolling topography for the park. See Agreement ¶¶ 2.3, 3. On August 12, 1977, OSC submitted to the Water Board its proposed closure plan for the Site. In accordance with Resolution No. 77-7, the draft called for a three foot soil “cap” or “cover” which included a layer of compacted soil with a very low-permeability of 10-6 (commonly referred to as a clay cap or lining) to be topped by 12-30 inches of non-compacted, permeable soil that would provide the basic planting area for the park development. OSC also proposed to build 13 leachate monitoring wells at various locations around the Site. The proposal further noted that there was no evidence at that time of any leachate leaking. “Since the landfill is constructed on very tight Bay muds, there has been no evidence of leachate seeping into useable ground water basins beneath the site.” Pl.’s Exh. C-7 at 3630. On December 6, 1977, the same date the Park District formally endorsed this plan, OSC wrote to the Park District informing it that OSC was now proposing an alternative “water balance” method of closure. “[T]hereafter, [OSC] refused to seriously consider again the impermeable barrier plan that the [Park District] board had approved.” Black Tr. 1837. Instead of relying on an impermeable clay layer to prevent water from infiltrating into the landfill, the water balance method depends on the absorptive capacity of the soil used to cover the landfill to soak up rain arid moisture and prevent leachate from building up and leaking out. As OSC explained in its revised closure proposal: For a specific type and thickness of soil, a specific storage capacity can be determined. When that capacity is exceeded, water will percolate into the refuse beneath the earth cover. In the dry months, evapotranspiration will exceed the precipitation and water will be withdrawn from the soil. The ideal situation exists when the amount of soil cover is sufficient to store the maximrim amount of precipitation without allowing percolation [of rain] into the refuse. Def.’s Exh. 122 at 15208. OSC learned of the water balance approach, through its consultants, from a 1975 EPA publication entitled “Use of the Water Balance Method for Predicting Leachate Generation from Solid Waste Disposal Sites.” OSC knew that this method was then new and largely untested in the field. And while OSC’s consultants, Bissell & Karn, told OSC that this new approach looked logical, they never guaranteed to OSC that their particular water balance proposal would work. Nor did they have any prior experience with this approach. WMAC suggests that OSC’s decision to switch from a clay cap to a water balance approach was motived solely by a desire to accommodate the Park District’s planting needs. Read fairly as a whole, however, the record reflects only that the Park District wanted to make sure that, if a clay cap was used, that sufficient top soil be available for planting as needed. WMAC’s alleged motive is further belied by the fact that while the Park District approved OSC’s original clay cap plan, it never approved the water balance plan. Indeed, based on its own review, the Park District’s concerns were so serious that the two parties were “at absolute loggerheads about that, the change in the proposal for the cover.” Black Tr. 1838. While the Park District ultimately agreed to go forward, it never endorsed the water balance method and instead agreed to simply stay “neutral,” with the expectation that the Water Board would adequately handle all issues relating to the closure. Given the above, WMAC’s explanation for its cover choice is simply not credible. Rather, while the evidence is indirect, the Court concludes that OSC’s decision to pursue the water balance plan was driven more by its cheaper price tag rather than a desire to accommodate the Park District. On October 17, 1978, the Water Board issued its first order relating to closure of the site, No. 78-84. The Order, directed to OSC, stated in part that “The dischar-ger shall submit a site closure plan to the Board which shall conform to Resolution No. 77-7 ...” Def.’s Exh. 137 at 7564. The Order further reiterated that “leach-ate from Group 2 wastes and ponded water containing leachate or in contact with refuse shall not be discharged to waters of the State.” Def.’s Exh. 137 at 7563. Shortly thereafter, on January 31, 1979, OSC submitted its revised closure plan to the Water Board based on the water balance method. Since this method violated the specific requirements of Resolution 77-7, given the absence of a low-permeability (10 cap, OSC relied on the provision that “[exceptions to [the requirements] may be granted upon a demonstration that equivalent protection against water penetration may be provided by other means.” Def.’s Exh. 105 at 180. OSC’s proposal called for 3 feet of cover (consisting of 6 inches of “daily cover placed during daily operations, topped with 2 feet-6 inches of soil wheel-rolled for compaction”). Assuming the use of sandy or silty loam soils, the proposal represented that “[t]he basic three feet of cover has been determined to be adequate to prevent the infiltration of excessive rainfall and the build-up of leachate in accordance with the water balance method.” Def.’s Exh. 146 at 1144. The proposal also anticipated that the Park District would place additional fill in certain areas to accommodate park planting needs. OSC’s representation regarding the adequacy of their plan assumed both a 3 percent slope (to promote runoff), and average rainfall at the site. Notably, however, the EPA publication that discussed the water balance approach warned that reliance on average rainfall may be risky: [W]hile the average year might indicate a relatively minor leachate problem requiring little or no leachate control measures, an above average year may result in an entirely different assessment of the problem. Therefore, the engineer may wish to base his design on monthly precipitation values higher than the average values in order to provide a factor of safety in the estimation of leachate flow. Def.’s Exh. 71 at 23. OSC, through its consultants, Bissell and Karn, suggested to the Water Board, however, that using average rainfall data in this instance would not be risky, despite the fact that the San Francisco Bay Area periodically experiences intensely rainy years, commonly referred to as “El Nino” years. Thus, its proposal to the Board stated only that: Naturally ... climatic factors vary each year so it was decided to design the landfill cover to meet the average conditions as specified by the [Water Board] staff. In the event that more precipitation occurs, some small amount of water may percolate into the refuse. However, the refuse itself has a large capacity to hold water before generating leachate. The intent of this design is to prevent the increase in the amount of leachate already in existence in the landfill. Def.’s Exh. 146 at 1152. On August 5, 1980, the Water Board issued Order 80-37, amending but not replacing Order No. 78-84. That order found that OSC’s closure plan did not conform to Resolution 77-7, as required, because it “[did] not call for an impermeable cover...” Def.’s Exh. 178 at 3697. The Water Board concluded, however, that OSC could “mitigat[e]” this non-compliance “with the installation of a leachate monitoring and collection system.” Def.’s Exh. 178 at 3697. Accordingly, the Water Board ordered OSC to “install a leachate monitoring and collecting system in accordance with plans contained in the Closure Plan Supplement of June and July 1980.” Def.’s Exh. 178 at 3698. The 1980 Order also stated that with respect to non-drip irrigation, OSC must, at least 120 days prior to the start of irrigation, submit a report evaluating the available leachate monitoring well data. “This report should address the need for additional leachate monitoring wells.” Finally, the Order required that OSC “complete site closure” by December 1, 1981. Def.’s Exh. 178 at 3698. OSC’s plan for mitigating the lack of an impermeable cover for the site — referred to above as the “Closure Plan Supplement” — consisted of two letters, dated June 6, 1980 and July 11, 1980, that had been submitted in response to specific Water Board concerns that the non-drip irrigation needs of the Park would require additional precautionary measures. However, as Karn testified at trial, he knew that leachate buildup was a possibility even in the absence of any special Park District irrigation and that was why he developed the supplemental system, “that, and that [ ] of course, was the concern of the [Water Board] also. So for those reasons we put in the monitoring system [into the proposal] ... [in case] anything went wrong.” Tr. 1350-51. In short, Karn explained, if the water balance calculations proved wrong, one of the backup solutions would be a leachate control system. In its mitigation plan, OSC represented that it had chosen to “build[] a leachate collection and disposal system” which would consist of additional wells placed at 1,000 foot intervals that would be “used for pumping pwposes as well as monitoring.” Pl.’s Exh. C-17 at 3684 (emphasis added). While OSC did not explicitly discuss the method of disposal of any pumped leach-ate, it attached a rough illustration that showed, along with locations for the proposed seven new wells, two bold lines that appear to be pipelines that would allow excess leachate to be pumped out of the site. The notations on the drawing state “possible discharge to sanitary system in Neptune Drive” and “Possible portable pump discharge line to sanitary system in Davis Street.” Pl.’s Exh C-17 at 3686. As Karn explained, “I think that probably what we were showing or what was attempted to be shown here was a method of disposing of the leachate. Yes, because it’s going to a sanitary sewer system.” Tr. 1350. The mitigation plan was somewhat vague on when pumping would commence. Earns testified, however, that he had advised OSC that “leachate collection should begin” once leachate reached 8 feet mean sea level (“MSL”). Tr. 1354, and that OSC “accepted” this suggestion “as a general matter.” Tr. 1356. This is consistent with the mitigation plan’s assertion that the existing dike has “a safe containment elevation of 8 feet MSL.” PL’s Exh. C-17 at 3685. A 1988 OSC internal memo interpreted the closure plan slightly differently — as requiring implementation of “leachate control (i.e. evacuation) if leach-ate levels in the site’s leachate wells exceed 7.5 feet MSL.” Def.’s Exh. 257 at 43769. In any event, at trial Earns eventually confirmed, despite his often evasive testimony, that he had advised OSC that it was “their responsibility ... [ ] to protect the waters of the state,” and that “the closure plan would have to provide for leachate pumping if monitoring showed that was necessary,” and “leachate disposal if monitoring showed that was necessary.” Tr. 1351-52. In short, “if the water balance was wrong, and leachate built up” OSC would have “to take care of it.” Earns Tr. 1351. Indeed such understanding was fully consistent with the Water Board’s 1978 order to OSC that “Leachate from Group 2 wastes and ponded water containing leachate or in contact with refuse shall not be discharged to waters of the State.” Def.’s Exh. 137 at 7563. The mitigation plan originally stated that OSC would design the leachate control system immediately but construct it “when and if the leachate level reaches an elevation of + 7.5 feet MSL.” PL’s Exh. C-17 at 3685 (June 6, 1980 letter). In its subsequent July 11, 1980 letter, however, OSC stated that it would install the monitoring and pumping wells “prior to December 31, 1980” without any reference to mean sea levels. PL’s Exh. C-19. In any event, the mitigation plan clearly represented that the monitoring and pumping wells would be installed in time to “be used to monitor the leachate level in the landfill and to assure that it did not reach elevations which would cause overtopping of the surrounding levee.” PL’s Exh. C-19 at 3693. C. Implementation of the Cover Requirements OSC covered the site between 1980 and 1983, using 1 million cubic yards of soil of varying types. Given that the water balance approach relies on the moisture storage capacity of the soil, use of soil that contains the required absorptive properties is essential. As Earn acknowledged, “You had to put the right soil on.” Earn Tr. 1316. As WMAC emphasizes, Lewis Crutcher, Chief of Planning and Design at the Park District, who came out to the site “probably once a week,” Bickford Tr. 1417, reported that OSC has “done a remarkable job in engineering their garbage into the contours of the District’s plan and that the cover material being put on by [one source] Gallagher & Burk is the overburden from a quarry and is beautiful cover material.” Pl.’s Exh. C-24 at 22939. On the other hand, the evidence shows that not all of the soil — which was brought in by dozens of truckloads each hour — was the high moisture capacity silty or sandy loam. A detailed analysis of the site commissioned by WMAC in 1996 found that the “soil materials that constitute the landfill cover are highly variable” and consist of, in addition to clays and silty sand and loam, the more porous “gravelly sand, and sandy gravel.” Jt. Exh. 1 at 104 (“Rust Report”). Consistent with this finding, the Rust report also noted that “[Recovery [of samples] was variable due to coarse gravels and occasional cobbles in the landfill cover material which damaged the thin walled Shelby tubes, thus hampering recovery.” Jt. Exh. 1 at 614-15. Anecdotal evidence also indicates variability in the quality of the cover. Ralph Bickford, an OSC consultant, recalled that OSC employees told him that there were rocks in some of the material and that some of the soil “wasn’t as good as they expected.” Tr. 1408; see also id. at 1422 (“I would say it included rock[s].”). Crutcher had also previously noted that some of the material OSC had stockpiled for the cover “is observed to be filled with sharp rocks, some quite large and questionable for use .... ” Def.’s Exh. 109 at 18589. A photogrammetry analysis of a 1983 aerial photograph of the site also shows that 52 acres, or roughly 25 percent of the site, did not meet the 3% percent slope requirement set forth in OSC’s closure plan. Water Board representatives inspected the site on July 27, 1981, January 7, 1983, and January 30, 1984 and reported no problems. In December 1983, OSC notified the Water Board that it had completed construction of the seven new leachate wells and asked for final approval of the closure. In June 1984, the Water Board notified OSC, that based on letters submitted by Bissell and Earn, and a site inspection, it had determined that compliance with closure requirements had been achieved. The Water Board’s decision does not appear to consider the fact that while OSC had installed seven wells that could be used for pumping, without any conveyance structures they were pumps with no place to go, and thus the site still lacked any system for collecting or otherwise disposing of excess leachate. Since 1983, when OSC finished covering the site, the Park District has developed 10 acres of parcel II into a park, that includes trails and picnic areas, along with a perimeter, shore-line trail along nine acres of parcel I. D. The Development of Leachate Contamination and the Parties’ Responses (1) 1983 — November 1991 In 1983 and 1984, Northern California experienced extended, heavy winter storms, referred to as El Nino, and the first signs of a developing leachate problem surfaced shortly thereafter. OSC’s annual self-monitoring report for the 12-month period ending March 1984 showed leachate levels in one well exceeded 8.0 MSL on May 3,1983 and another exceeded 7.5 MSL on November 22, 1983. This was a significant departure from the previous “static” leachate levels of “about 6 feet MSL.” Pl.’s Exh. C-17 at 3685. In June 1984, the Water Board found that OSC had satisfied its cover requirements. Leachate levels, however, continued to fluctuate above 7.5 MSL. Prodded by the Park District, the Water Board eventually wrote OSC in April 1986 that it was “concern[ed] regarding th'e fluctuating leachate levels at the site.” Def.’s Exh. 214 at 5480. The Water Board further stated: The closure plan indicates that the containment barriers have a top elevation of 10 feet MSL and a containment elevation of 8 feet MSL. Additionally, a leach-ate control system was planned to be implemented if the leachate levels exceeded 7.5 feet MSL. However, our files do not contain the as-built drawings of the leachate containment barrier and there has been no indication that Oakland Scavenger has ever initiated the leachate control system even though the leachate levels have exceeded the 7.5 feet. Def.’s Exh. 214 at 5480. The Water Board requested that OSC respond with, inter alia, its plans for reducing leachate levels. In its May 27, 1986 response to the Water Board, OSC conceded that “[sjeveral of the twelve leachate monitoring wells on the perimeter of the Davis Street Landfill show high levels of leachate.” Def.’s Exh. 216 at 3718. It also acknowledged that northern portions of the dike were not in fact 10 feet MSL as represented to the Water Board in 1980, but rather 8.3 feet. It also reported that a Park District project to repair El Nino related damage caused in 1983-84 had brought the southern end of the dike up to 12 feet MSL. Def.’s Exh. 216 at 3719. OSC asserted that it had installed the “leachate control system” and reaffirmed its obligation to pumping but explained that “[t]here was no specific commitment to begin pumping when the leachate level reached the 7.5 ft. level. In our understanding pumping was to begin if overflow appeared imminent.” Def.’s 216 at 3723. It further noted that it had begun experimental pumping of one well with the leach-ate pumpings being sprayed on the landfill cover surface for evaporation. In fact, however, there was still no “leachate control system” in place that would allow for the collection of leachate, once pumped from the wells. Nonetheless, OSC assured the Water Board that: Should these pumping tests indicate that there is a leachate buildup, which requires a larger volume pumping effort, we will procure the necessary equipment and pump as is necessary to reduce the leachate level. The leachate would be placed in a temporary evaporation pond to be constructed on the landfill, or arrangements would be made with the San Leandro Sewage Treatment Plan to accept it either by tank truck load or by pipeline .... I trust the above will reassure you that we are conducting post-closure affairs at the Davis Street Site in a responsible manner. Def.’s Exh. 216 at 3724. Accepting these assurances, the Water Board took no action. Later that year, however, on November 5, 1986, the Water Board again expressed concerns regarding continuing variations in the leachate levels, and particularly the leachate levels over 9.0 in Well Gr-5, despite pumping of several days at that well. The Water Board also stated that due to approaching wet weather, OSC should consider leachate disposal off site instead of spray disposal. Def.’s Exh. 232 at 6404-05. It also required OSC to install additional leachate monitoring wells in the interior of the site by January 1, 1987, and increase its monitoring reports from quarterly to monthly. In December 1986, WMAC acquired OSC and its liabilities, including any outstanding liabilities concerning the Davis Landfill. On December 29, 1986, OSC reported again to the Water Board, that, inter alia, it was still “trying to establish a policy” to cover disposal of leachate and again repeated that “[I]f we dispose of leachate off site, we would prefer to do it at the San Leandro facility, which is just across the street.” PL’s Exh. F-12 at 7502. A year later, in October 1987, the Water Board again raised concerns about leach-ate levels, noting that the monitoring data showed a “buildup of leachate within the landfill since the closure of the site.” Pl.’s Exh. F-20 at 17264. It found two threatened violations of its prior orders (regarding the need to regrade the slope in certain areas and the stockpiling of rubble) and asked OSC to submit a proposed corrective action plan, which it did. The Water Board also reiterated that OSC should install interior monitoring wells. Pi’s Exh. F-20 at 17265. In November 1987, the following month, OSC met with Water Board staff Ken Theisen who expressed “doubts about the adequacy of the cover,” the integrity of the perimeter levee, and the work done by Bissell & Karn. Def.’s Exh. 244 at 17242-43; see also Def.’s Exh. 245 at 5489 (December 1987 letter noting that “[t]he [Water Board] staff is still concerned about the adequacy of the landfill cover and the fluctuations of leachate elevations within the landfill”). About this time, Mike Crosetti, the OSC employee with overall responsibility for the landfill, also reported to WMAC that the northern perimeter of the dike was in “a debatable state of repair.” Def.’s Exh. 246 at 42851. He also observed that “[t]here was little evidence of surface runoff throughout the site despite decent existing grading. Reason seems to suggest that the landfill cover, at least in parts, is ineffective in preventing rainfall intrusion.” Def.’s Exh. 246 at 42852. At the November 1987 meeting, OSC told Theisen it had reached an agreement for the San Leandro Sanitation District to accept leachate from the landfill, information which was “well received” by Theisen. Def.’s Exh. 244 at 17243. OSC also reported that the tenor of the meeting was positive, and that Theisen was happy with progress at the site and assured OSC that it did not intend to take enforcement action so long as work proceeded in “an appropriate fashion.” Def.’s Exh. 244 at 17243. OSC did not, however, finalize the plan to dispose of leachate at the San Leandro treatment plant, despite the “low discharge fees” San Leandro was offering at the time. Def.’s Exh. 257 at 43770. In June 1988, WMAC filed its Solid Waste Assessment Test (SWAT) Report, as required by state law, which recommended some additional investigation and analysis with respect to possible groundwater contamination. Def.’s Exh 254 at 4572. No such analysis was undertaken at the time, however. In 1988, OSC did install six additional monitoring wells in the interior of the site, as first requested by the Wate: Board in 1986. It was later discovered, however, that the wells had been improperly installed, creating new pathways for groundwater contamination. In July 1988, an internal OSC memo discussed the fact that leachate levels had been reported “as high as 9 feet,” which was well beyond the 8 foot trigger Karn had advised for pumping. Def.’s Exh. 257 at 43769. OSC did not, however, accelerate its efforts to start pumping or establish a leachate collection system. Instead, the memo goes on to note that while OSC had reported to the Water Board that “we were pursuing an agreement with the San Leandro POTW,” a 1987 personnel change at the Water Board had “left [the issue] hanging.” Def.’s Exh. 257 at 43769. The memo then discussed the costs involved in pursuing various options, including discharge at the San Leandro POTW. It concluded, however, that “we may never need to evacuate liquids” and noted that the Park District had raised the height of part of the levee and intended to raise the height of the remainder in the future. The only action recommended was quarterly sampling for the six wells exhibiting the highest leachate levels, although it warned that “[o]ver the long term, it may well behoove us to consider the installation of a tank and a pretreatment system. I believe that future legislation will require landfill liquids extraction and treatment.” Defs Exh. 257 at 43771. In February 1989, the Water Board requested that WMAC submit a supplemental SWAT report providing information regarding water quality sampling, the integrity of the levee and clarification of survey data. Based on the information provided, the Water Board stated that “Staff is concerned... that two of the wells (G-03 and G-04) have been consistently showing [contamination]. This could be an indication of leakage of leach-ate from the landfill as evidenced by the presence of similar constituents in leach-ate wells GR-04 and GR-13, which are located adjacent to wells G-03 and G-04, respectively.” Pl.’s F-29 at 9280. Accordingly, the Water Board asked WMAC to evaluate the leakage and report on its investigation of the integrity of the levee. In response, WMAC obtained a report on levee conditions from Hydro-Search, Inc., an environmental consulting firm, which confirmed the existence of significant problems. In particular, the 1989 Hydro-Search report found that because of “higher permeability” areas, there were preferential pathways for “leachate migration,” and that “leachate may be migrating from the landfill.” Def.’s Exh. 278 at 9437, 9431-32. Specifically, the report found that portions of the levee were composed of the more permeable gravel, sand, and silt, and in some cases refuse, and that in certain sections, the levee’s permeability was 10-4 to 10-5 cm/sec, which is up to 500 times more permeable than the standard set forth in the Water Board’s 1978 Order. It suggested installation of a protective “slurry wall” designed to prevent migration of leachate, but OSC did not implement this recommendation. Indeed, during these years, the record reflects a pattern whereby OSC and WMAC collected data and information, and noted issues of concern, but took little concrete action to address the growing signs of leachate problems at the site. As an earlier internal memo had candidly admitted, there was little incentive to spend money on the site “since the landfill is no longer producing revenue.” Defs Exh. 239. WMAC’s passive approach intensified with the impending transfer of title of the final parcel to the Park in March 1990. WMAC took the position that once the Park District obtained title to the entire parcel, that it was 100 percent responsible for any leachate problems at the site. Thus, although WMAC staff recommended in 1990 that WMAC “take the environmental ‘high ground’ ” and “not allow things to slip,” Pl.’s Exh. F-34 at 32121, this advice went unheeded, and as late as November 1994, WMAC acknowledged that “there is no ‘Existing Leachate Control System’ ” for the site. Def.’s Exh. 310 at 240. At the same time, the Park District believed that while it was responsible for “maintenance of the regional 'park facets of the site,” Pl.’s Exh. D-12 at 5505 (emphasis in original), WMAC was responsible for all matters arising from OSC’s closure of the landfill, including the issue of leach-ate control. In its view, transfer of title did not discharge this duty or otherwise affect WMAC’s obligations. Thus, aside from its repair of the southern half of the levee in 1984-85, the Park District also did not act to address the leachate issues, except when ordered to do so by the Water Board. In 1993, the parties met. They knew that leachate levels in eight monitoring wells were “too high” and that they should try to resolve their dispute over liability “rather than risk the [Water Board] adopting more stringent requirements that could affect both parties.” Pl.’s Exh. D-14 at 273. Unfortunately, the parties were unable to do so. (2) December 1994—1999 On December 14,1994, the Water Board eventually took action, issuing Order 94-187, which updated but did not replace, its previous 1978 and 1980 orders. Directed at both WMAC, as the previous owner and landfill operator, and the Park District, as the current owner, the 1994 Order found that leachate elevation was highly variable and associated with heavy rain fall, and was, in part, the result of poor maintenance of the cover, which had allowed ponding to occur during the rainy season. Finding that the landfill still “does not have any Leachate Collection and Recovery System,” the Water Board ordered, among other things, the development and permanent operation of such a system as part of an overall leachate management plan that “shall prevent leachate migration off the site.” PL’s Exh. E-41 at 3546, 3550, 3552. Monthly leachate elevations for January 1, 1995 were well over 7.5 MSL in nine of the 13 wells. Shortly thereafter, in late March and early April, following what proved to be “an exceptionally wet winter,” Def.’s Exh. 417 at 397, visual inspections revealed that leachate was seeping into the San Francisco Bay through points on the northern portion of the levee, which the parties promptly reported to the Water Board. Specifically, “[a]bout 200 lineal ft. of shoreline ... had several small flows of reddish brown liquid suspected to be leachate emanating from the landfill down the edge of the dike running downslope through the rip-rap into S.F. Bay.” Def.’s Exh. 417 at 396. Although WMAC did not consider itself responsible, given the seriousness of the situation it agreed to immediately contract with Rust Environment and Infrastructure, Inc. (“RUST”), a wholly-owned subsidiary, to undertake an emergency short-term mitigation response. This consisted of capping the seepage areas with clay fill and raising the levee several feet in the affected areas. In addition, 1,100 gallons of leachate were pumped from LS-2 into a Baker tank surrounded by a clay berm. The situation was in fact an emergency, given the ongoing leakage of hazardous waste into the Bay. Indeed, “due to the urgent circumstances” site work was conducted “into the night on April 11 with the use of flood lights.” Pl.’s Exh. F-36 at 27035. On the other hand, the emergency action was plainly preventable, and necessitated by years of inaction. Indeed, the seeps were in or near the areas specifically identified as problem points in Hydro-Search’s report in 1989, and as early as 1987 OSC knew the northern levee perimeter was in “a debatable state of repair.” Def.’s Exh. 246 at 42851. Thereafter, at WMAC’s direction, RUST undertook (1) an initial area investigation in order to design and implement a pilot leachate extraction and treatment system that could be used to prevent seeps during the next winter in the same area, and (2) a Remedial Investigation/Feasibility Study (“RI/FS”), known as the Leachate Management Investigation Report and Feasibility Study. The latter, referred to by the parties as the RUST report, required RUST to undertake a comprehensive analysis of the landfill and various leachate management alternatives, and recommend a leachate management plan that would comply with the Water Board’s 1994 Order. The RUST report found that the “principal source of leachate generation at the site is infiltration of precipitation through the landfill cover, which is estimated at 27 million gallons/year.” Jt. Exh.l at P000006. It estimated, however, that Park District plans to place additional, impermeable bay mud on the site (necessary to develop turf areas of the park that require special irrigation), would reduce the infiltration of precipitation through the cover to 15 million gallons/year. The RUST report also concluded that between 13 — 19 million gallons of leachate was flowing through the levee each year. Indeed, it found that while all of the leach-ate monitoring wells, except for two, showed an overall increase in leachate elevations over time, leachate elevations typically rose one to two feet during the winter rainy season and then fell again during the dry summer season, Jt. Exh. 1 at P0000037, a pattern consistent with the conclusion that leachate has been escaping through the levee. See also O’Brien Trial Decl. at ¶ 3.2. RUST expected that most of the leachate was evaporating, and that the 1995 levee emergency response levee repairs slowed the flow; it did not, however, quantify the amount of the leachate still escaping. RUST recommended a phased leachate management approach, with design and implementation of an initial leachate control system in the vicinity of the leachate seeps. With respect to a long term solution, RUST recommended extracting the leachate through a network of vertical extraction wells, pretreatment if necessary, and then conveyance by pipe to the nearby San Leandro Publicly Owned Treatment Works (“POTW”) for treatment — the very approach OSC had declined to put in place years earlier. RUST further proposed, as an interim measure until the permanent collection and disposal system could become operational, continued monitoring, and if necessary, leachate recirculation. During the remedial investigation, WMAC determined that eight of the 10 groundwater monitoring wells that OSC had constructed in 1984 and 1988 were improperly installed without conductor casings, and thus actually acted as “preferential pathways” for leachate to escape into the groundwater. In 1996, WMAC destroyed and sealed the defective wells and replaced them with properly installed wells. Thereafter, groundwater contamination measurements dropped. In 1996-97, the Park District also upgraded the southern portion of the levee, and installed pipes, conduits, and vaults that could be utilized as part of a leachate conveyance structure. WMAC began talking to the city of San Leandro in the Fall of 1995 regarding the use of the POTW. Although it had been close to finalizing its application for a discharge permit from the San Leandro POTW several years earlier, WMAC had let the matter drop in 1988 and now had to essentially start over. This time it took four years for WMAC to convince San Leandro to accept the leachate without pretreatment, a less costly alternative than pretreatment, and a discharge permit was not issued until September 1999. In the meantime, as an interim, stop-gap measure to prevent leachate from flowing into the Bay, WMAC recirculated leachate from the northern perimeter of the site (where the seeps were sighted), and re-injected it into the interior of the landfill during the winters of 1995-1996, 1996-1997, and 1997-1998, successfully lowering leachate levels in the area of the seeps. WMAC did not operate the recirculation system in 1999 because it thought the collection system would be operational by then. At WMAC’s request, the Park District began conducting and documenting site inspections in 1995. In 1996 RUST also trained Park District staff to measure the leachate levels and they began monitoring leachate levels and the condition of leach-ate wells and well caps until told by RUST that it was no longer necessary to do so, sometime in 1998. On June 18, 1999, WMAC sent the Water Board its “Record of Decision,” in which it formally notified the Board that it had selected, as its long-term remedy, RUST’s recommended solution of pumping, collecting, and conveying the leachate to the San Leandro POTW. As suggested by RUST, WMAC is installing this remedy in phases. This approach allows WMAC to focus first on the area experiencing the prior seeps and also to “develop a better understanding of how the landfill as a whole works in terms of leachate extraction so that what we do in the future in terms of installation of wells can be done as economically as possible.” Dukes Tr. 283. The first phase, with seven wells in the vicinity of the 1995 leachate seeps, is complete and started operating continuously on October 20, 1999. As of the date of the trial there was no definite schedule for implementation of the remaining phases, although the collection of data on leach-ate levels that would help determine the scope of the further action, was underway. Finally, as to financial expenditures, WMAC has covered the vast majority of the costs incurred to date relating to leach-ate management at the site. Specifically, the parties have stipulated that WMAC incurred $4,091,431.86 in site related costs through August 31, 1999, that it seeks to recover from the Park District. In turn, the Park District seeks to recover $454,233.00 that the parties agree it incurred in 1996-97 in connection with the levee repair and leachate conveyance system piping project. II. DISCUSSION Congress enacted CERCLA, 42 U.S.C. §§ 9601-9675, to respond to the “ ‘threat to public health and the environment posed by the widespread use and disposal of hazardous substances.’ ” Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300 (9th Cir.1997) (citation omitted). As such, its purposes are twofold: first, to “ensure the prompt and effective cleanup of waste disposal sites,” and second, to “assure that parties responsible for hazardous substances [bear] the cost of remedying the conditions they created.” Id. (citation omitted); see also Kaiser Aluminum Chem. Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1340 (9th Cir.1992). CERCLA accomplishes these purposes by, inter alia, providing legal redress for private parties who are engaged in clean up efforts but believe they have incurred or will incur greater than them fair share of the cost. Such parties may bring two types of actions: (1) a cost recovery action against responsible parties to recover response costs already incurred in cleaning up hazardous waste so long as such costs were necessary and consistent with the national contingency plan, 42 U.S.C. § 9607(a)(4)(B); and (2) a claim for contribution from responsible parties in which the Court allocates the defendant’s share of liability for past and future response costs. 42 U.S.C. § 9613(f)(1); see also 42 U.S.C. § 9613(g)(2); 28 U.S.C. § 2201; Pi-nal Creek, 118 F.3d at 1300; Environmental Transp. Systems, Inc. (ETS). v. ENSCO, Inc., 969 F.2d 503, 506-07 (7th Cir.1992). In this case, both the Park District and WMAC qualify as “responsible parties” for purposes of CERCLA liability. A party so qualifies if it (1) owns or operates a facility where hazardous substances were disposed of, (2) previously owned or operated such a facility, (3) arranged for the disposal or treatment of hazardous wastes at the facility, or (4) transported hazardous substances to the facility. 42 U.S.C. § 9607(a)(1)-(4); Kaiser Aluminum, 976 F.2d at 1340-41. The Park District qualifies as the current owner of the site, while WMAC qualifies as a past owner, past operator, and “arranger.” As the parties agree, the remaining prerequisites for maintaining a cost recovery or contribution action are also satisfied here: (1) Oyster Bay Regional Park is a “facility” as defined by CERCLA, (2) there was a release of hazardous substances, and (3) the release caused WMAC to incur response costs. See ETS, 969 F.2d at 506. What is in dispute, however, is (1) the degree of liability each party should bear, and (2) whether the response costs already incurred by WMAC were necessary and consistent with the national contingency plan (“NCP”), such that it can recover the Park District’s proportionate share, if any, of those costs. The Court turns first to the issue of the appropriate allocation of responsibility. A. Contribution Under 12 U.S.C. § 9618(f)(1) Anticipating the unique nature of these cases, Congress gave district courts wide latitude to resolve claims for contribution. The statute states simply that “In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(1). WMAC argues that the equities in this case warrant a finding that the Park District is liable for 75% of past and future response costs. The Park District, by contrast, argues that WMAC should be largely or wholly responsible for such costs. In exercising its discretion, the Court need not limit itself to any particular set of factors. Rather, the broad language employed by Congress indicates its “intent to allow courts to determine what factors should be considered in their own discretion .... ” ETS, 969 F.2d at 509. Accordingly, courts may consider “any factors appropriate to balance the equities in the totality of the circumstances.” Id. Indeed, given that “the allocation of cleanup costs is a type of decision particularly suited to case-by-case determination,” a court may consider “several factors, a few factors, or only one determining factor.” Id.; see also Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1187-88 (9th Cir.2000); United States v. R.W. Meyer, Inc., 932 F.2d 568, 572-73 (6th Cir.1991). The array of (sometimes overlapping) equitable factors identified by courts include (1) the parties’ relative fault or culpability, (2) the ability of the parties to demonstrate that their contribution to, a discharge, release or disposal of a hazardous waste can be distinguished, (3) the amount of hazardous waste involved, (4) the degree of toxicity, (5) the degree of involvement of the parties in the generation, transportation, treatment, storage or disposal of the hazardous waste, (6) the degree of care exercised by the parties with respect to the hazardous waste, (7) the degree of cooperation by the parties with government agencies to prevent harm to the public health or the environment, (8) financial resources or economic status, (9) economic benefits received by the parties from contaminating activities or remediation, (10) knowledge and/or acquiescence of the parties in the contaminating activities, and (11) contracts between the parties. See ETS, 969 F.2d at 509; B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1206 (2nd Cir.1992); R.W. Meyer, 932 F.2d at 571, 573 n. 6; Boeing Co. v. Cascade Corp., 920 F.Supp. 1121, 1132 (D.Or.1996); aff'd in part, 207 F.3d 1177 (9th Cir.2000); Alcan-Toyo America, Inc. v. Northern Ill. Gas Co., 881 F.Supp. 342, 345 (N.D.Ill.1995). With the above in mind, the Court turns to the equitable factors most pertinent to the case at bar. (1) Introduction Unlike some cases, in this instance, the source of the hazardous waste problem is clear: the 6 million tons of garbage that OSC deposited at the Davis Street landfill over a period of almost 40 years. It is equally clear that operation of the municipal dump was central to OSC’s commercial interests. Basic principles of equity would suggest that the party that has profited for 38 years from the creation and operation of a landfill should bear primary responsibility for the hazardous byproducts of its activity. See Pinal Creek Group, 118 F.3d at 1300 (purpose of CERCLA is to ensure that party responsible for hazardous substance bears cost of remedying conditions); Amland Props. Corp. v. Aluminum Co. of America, 711 F.Supp. 784, 789 (D.N.J.1989) (overarching goal of CERCLA is to place cost of cleanup on parties responsible for creating the hazardous condition). WMAC contends, however, that a number of factors warrant shifting primary responsibility to the Park District in this case. Among other points, WMAC argues that the Park District has benefitted by receiving valuable property for free, and that it could have returned the site if it wanted to avoid the responsibilities of ownership. WMAC also asserts that the leachate problems are mostly attributable to the Park District’s lax maintenance of the site. After carefully considering these and other relevant equitable factors, however, and the evidentiary record as a whole, the Court is not persuaded, for the reasons explained below, that the Park District should bear significant liability for leachate contamination at the site. (2) Economic Benefits WMAC vigorously argues that the Park District should bear primary responsibility for environmental hazards arising from the landfill because it enjoys the economic benefit of owning a valuable, bay front property — and, on top of that, it acquired the site for free. At bottom, this is essentially an argument that the Park District should be responsible for leachate problems at the site because (1) it enjoys the status of current owner, and (2) WMAC’s liability as a former owner should be minimized because WMAC gave the property to the Park District as a donation. See also Pl.’s Post-Trial Br. at 29 (“logic ... dictates that in donating nearly 200 acres of Bay frontage land .. [ ]. the expenses ... would also be transferred") (emphasis added). The simple fact of current ownership, however, is not particularly persuasive. Indeed, if current ownership, was by itself, a dispositive or overriding factor, there would be no need for courts to carefully allocate responsibilities among several categories of responsible parties (e.g. owners, prior owners, operators, arrangers or generators, and transporters) using a variety of equitable considerations, as CERCLA clearly requires. See 42 U.S.C. §§ 9607(a), 9613(f)(1). Moreover, as the case law indicates, unless the current owner is responsible for the contamination, owned the land during disposal of the waste, or played some other contributory role, the mere fact of current ownership, is not usually considered a significant factor weighing in favor of a large share of liability. See, e.g., Gopher Oil Co. v. Union Oil Co. of Cal, 955 F.2d 519, 523, 527 (8th Cir.1992) (where prior owner responsible for contamination, current owner allocated zero liability); Foster v. United States, 130 F.Supp.2d 68, 77, 2001 U.S. Dist. LEXIS 742 at *29 (D.D.C. 2001) (same); Alcan-Toyo, 881 F.Supp. at 347 (prior owners responsible for disposal allocated 90% liability). In short, WMAC’s oft-stated complaint that it would be unfair for the Park District, as the current owner, to enjoy the benefits of remediation without footing the bill is simply out of step with the CERC-LA statutory scheme, which focuses not on current ownership per se but on the real world acts and contributions of all present and prior owners as well as other parties that may have created or otherwise fostered the hazardous contamination. Second, WMAC’s donation of the landfill to the Park District was not a simple altruistic act that warrants a reduced level of responsibility. As the record reflects, WMAC’s donation of the landfill to the Park District was less an act of charity than a hard-nosed business calculation designed to achieve its business objectives. Indeed, WMAC gained substantial economic benefits from the “park for transfer station deal." For example, because the deal netted WMAC a four-year extension on its permit, WMAC saved $12-16 million by avoiding the costs of long hauling the garbage to more distant sites during this time. The deal also enabled WMAC to use garbage, as opposed to clean fill, to meet the grade requirements for closing the site, resulting in a savings of roughly $9 million dollars. While the parties dispute the calculation of the present value of these benefits, it is clear that they run in the tens of millions of dollars. WMAC also benefítted of course, by obtaining permission to build the needed transfer station. In short, WMAC donated the landfill because that course of action yielded enormous financial benefits. Had other options appeared more advantageous, such as selling the site outright or developing it commercially, the Comb is confident that OSC would have pursued such an alternative instead. WMAC’s converse argument — that the Park District should bear a larger share of the liability because it obtained a property of great value for free- — -rings similarly hollow. WMAC’s expert, Stanley Tish, appraised the property as having a value of $3,240,000 under current zoning. Even assuming this testimony to be correct, it not only pales in comparison to the economic benefits WMAC obtained from the “park for transfer station deal,” but the argument also fails to appreciate that the Park District