Full opinion text
DECISION AND ORDER SKRETNY, District Judge. TABLE OF CONTENTS Title Page Introduction.220 Findings of Fact.221 I. Neceo Park.221 A. Generally.221 B. Site Characteristics.221 C. Nature and Extent of Contamination.222 II. History of EPA Activity at the Neceo Park Site.224 A. RCRA § 3013 Order and Related Consent Decree.224 B. AOC and Related Work.225 C. Risk Assessment.225 D. ROD.226 E. UAO.227 III. CERCLA § 107 Cost-Recovery Litigation. A. Procedural History. Documentation of EPA Response Costs ... B. Documentation of DOJ Enforcement Costs. C. Direct Labor Costs. i. Other Direct Costs. ii. Indirect Costs . iii. D. Summary of Administrative Record Conclusions of Law. I. Background. II. Recovery of Costs Related to RCRA Order and Consent Decree .. A. RCRA Order & Remedial Investigation . B. Use of RCRA Authority & Per Se Inconsistency with the NCP III. Recovery of Costs Related to DOJ Enforcement Activities. A. Statutory Basis for Recovery of DOJ Enforcement Costs .... B. DOJ Enforcement Costs & the NCP. i. “Necessary” or “Reasonableness” Standard. ii. Documentation of DOJ Enforcement Costs. IV. Validity of September 1998 CERCLA § 106 Order A. Standard for Issuance of UAO under CERCLA § 106(a). B. Defendant’s Challenge to the September 1998 UAO. i. Risk Assessment & Probability. ii. Use of “Baseline” Risk Assessment. C. Judicial Review of UAO. V. Recovery of Costs Related to September 1998 UAO. VI. Declaratory Judgment and Prejudgment Interest. Summary DO zn in Orders.256 List of Acronyms.256 INTRODUCTION This is a cost-recovery action brought under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). Plaintiff seeks to recover costs incurred in connection with the investigation and cleanup of Neceo Park, a hazardous waste site owned by Defendant E.I. du Pont de Nemours & Co., Inc. and located in Niagara Falls, New York. A non-jury trial was held before this Court on April 26, 2004 and April 27, 2004. Plaintiff introduced numerous exhibits and offered the testimony of two witnesses, Thomas E. Taccone and William Kime. Defendant did not call any witnesses, but introduced several exhibits. This Court heard closing statements from counsel on April 27, 2004, which included detailed presentations of the evidence contained in the Administrative Record. In addition, this Court frequently posed questions to counsel during the presentation of evidence and during closing arguments. Rule 52 of the Federal Rules of Civil Procedure provides, in pertinent part, that “[i]n all actions tried upon the facts without a jury ... the court shall find the facts specially and state separately its conclusions of law thereon.” Fed. R. Civ. P. 52(a). In accordance with Rule 52, this Court’s findings of fact and conclusions of law are set forth below. FINDINGS OF FACT I.Neceo Park A. Generally 1. Neceo Park is a twenty-four acre landfill located in an industrialized section of the City of Niagara Falls, New York. (Plaintiffs Trial Exhibit 1, Vol. XVII, at p. 500009). 2. The landfill is located approximately 1.5 miles north of the Niagara River. (Exhibit 1, Vol. XIII, at pp. 400031-33). 3. Residential neighborhoods are located approximately 2000 feet to the south and 2500 feet west of the landfill. (Exhibit 1. Vol. XIII, at p. 400032). 4. A wastewater treatment facility owned by CECOS International, Inc. (the “CECOS facility”) and three inactive hazardous waste landfill cells are located immediately south of Neceo Park. (Exhibit 1, Vol. XIII, at p. 400032; Exhibit 1, Vol. XVII, at p. 500009). 5. Defendant has owned Neceo Park since approximately 1930. (Docket No. 52, at p. I). 6. Defendant began using the property as a landfill during the mid-to-late 1930s. (Docket No. 52, at p. 1). 7. By 1977, the company had disposed of approximately 93,000 tons of industrial waste at Neceo Park. (Docket No. 52, at p. 1). 8. Some of the waste disposed of at the landfill included hazardous substances, such as hexachloroethane, carbon tetrachloride, chloroform, methylene chloride, and hexachlorobenzene. (Exhibit 1, Vol. XIII, at pp. 400033-34; Exhibit 1, Vol. XVII, at pp. 500015-16; Docket No. 52, at pp. 1-2). 9. In 1977, Defendant suspected that some of the industrial waste might be leaking from Neceo Park into the surrounding soil and groundwater. In response, the company voluntarily stopped disposing of waste at the landfill and took various investigative and corrective actions. (Docket No. 52, at p. 2). 10. Between 1978 and 1982, Defendant placed a clay cap over the landfill, installed groundwater monitoring wells, collected and analyzed soil and groundwater samples, and installed and operated two groundwater pumping wells. Between 1983 and 1985, Defendant undertook additional studies to assess the nature and extent of groundwater contamination and to evaluate the effectiveness of its response measures. (Tr., at 96-97; Exhibit 1, Vol. V, at pp. 301802-807, 301812-814; Docket No. 52, at p. 2). B. Site Characteristics 11. In this case, the designation “Neceo Park Site” or “the Site” refers to the Neceo Park landfill itself, as well as the surrounding areas where hazardous substances from the landfill have come to be located in the soils, bedrock, and groundwater. (Exhibit 1, Vol. XVII, at p. 500009). . 12. The geology beneath the Neceo Park Site consists of an overburden of sand, silt, clay, and miscellaneous fill. Several distinct layers of bedrock are located beneath the overburden. (Exhibit 1, Yol. XI, at pp. 304789-95; Exhibit 1, Yol. XVII, at pp. 500009-10). 13. Groundwater flowing under the Neceo Park Site in the upper portion of the bedrock generally moves to the south. Groundwater in the lower portion of the bedrock generally moves to the west. (Exhibit 1, Vol. XIII, at p. 400054; Exhibit 1, Vol. XVII. at pp. 50014-15). 14. The Falls Street Tunnel is an underground storm sewer located approximately 2400 feet southwest of Neceo Park. The tunnel carries storm water west to the Niagara River. (Exhibit 1, Vol. XIV, at p. 400032; Exhibit 1, Vol. XVII, at p. 500024). 15. In dry weather, all of the water flow from the Falls Street Tunnel is treated at the Niagara Falls Publicly Owned Treatment Works before it is discharged into the Niagara River. However, in wet weather, some of the water bypasses treatment and is discharged directly into the river. (Exhibit 1, Vol. XIV, at p. 401112; Exhibit 1, Vol. XVII, at p. 500012). 16. An undetermined amount of groundwater flowing south in the upper bedrock layer under the Neceo Park Site flows into the Falls Street Tunnel. (Exhibit 1, Vol. XIV, at p. 401112; Exhibit 1, Vol. XVII, atpp. 500014-15, 500024). 17. Any groundwater flowing south from the Site in the upper bedrock that does not enter the Falls Street Tunnel continues flowing south directly into the Niagara River. (Exhibit 1, Vol. XII, at p. 900016-17; Exhibit 1, Vol. XIII, at p. 400043). 18. The New York Power Authority (“NYPA”) conduits are two parallel underground tunnels located approximately 3700 feet west of Neceo Park. The NYPA conduits carry water north from the Niagara River to the Forebay Canal for use by the Robert Moses Power Station. Water from the Forebay Canal is released into the Niagara River untreated. (Exhibit 1, Vol. V., at pp. 301843-845; Exhibit 1, Vol. XIII, at p. 400032; Exhibit 1, Vol. XVII, at pp. 500011-13, 500024-25; Exhibit 1, Vol. XII, at pp. 900001-39). 19. Groundwater flowing into the drainage system surrounding the NYPA conduits moves either north or south. When the water flows north, it seeps into the Forebay Canal; when flowing south, it seeps into the Falls Street Tunnel. (Exhibit 1, Vol. V, at pp. 301843-845; Exhibit 1, Vol. XIII, at p. 400032; Exhibit 1, Vol. XVII, at pp. 500011-13, 500024-25; Exhibit 1, Vol. XII, at pp. 900001-39). 20. Groundwater flowing west in the lower bedrock under the Neceo Park Site flows into the drainage system surrounding the NYPA conduits. (Exhibit 1, Vol. V, at pp. 301843-845; Exhibit 1, Vol. XIII, at p. 400032; Exhibit 1, Vol. XVII, at pp. 500011-13, 500024-25; Exhibit 1, Vol. XII, at pp. 900001-39). 21. Residential areas are located between Neceo Park and both the NYPA conduits and the Falls Street Tunnel. (Exhibit 1, Vol. XVII, at p. 500009). C. Nature and Extent of Contamination 22. The Neceo Park Site is contaminated with both solid and liquid hazardous waste. (Exhibit 1, Vol. XVII, at p. 500015). 23. The solid waste consists of contaminated fill material that Defendant placed in the landfill and surrounding contaminated soils. (Exhibit 1, Vol. VII, at pp. 302968-969; Exhibit 1, Vol. XIII, at pp. 400062-63; Exhibit 1, Vol. XVII, at p. 500016). 24. The liquid contamination consists of both dense non-aqueous phase liquid (“DNAPL”) and aqueous phase liquid contamination. (Exhibit 1, Vol. XIII, at pp. 400063-64; Exhibit 1, Vol. XVII, at p. 500016). 25. Aqueous phase liquid contamination is dissolved in and moves with the groundwater. (Exhibit 1, Vol. XIII, at pp. 400063, 400065-66; Exhibit 1, Vol. XVII, at pp. 500020-21). 26. DNAPL contamination seeps into the bedrock and acts as a continuous source of dissolved groundwater contamination. (Exhibit 1, Vol. VII, at p. 302990; Exhibit 1, Vol. XIII, at p. 400064; Exhibit 1, Vol. XIV, at p. 400942). 27. DNAPL contamination at the Nec-eo Park Site has spread horizontally beyond the boundaries of the landfill and vertically through every bedrock layer. (Exhibit 1, Vol. XIII, at pp. 400064-65; Exhibit 1, Vol. XIV, at pp. 400579, 400950, 400956-962). 28. The Environmental Protection Agency (“EPA”) designated the area consisting of contaminated fill material and DNAPL as the “Source Area.” The Source Area includes areas where DNAPL has been observed in samples from groundwater monitoring wells and areas where the level of dissolved contamination in samples was so high that it indicated the presence of DNAPL in the vicinity. (Exhibit 1, Vol. XIII, at p. 400064; Exhibit 1, Vol. XIV, at p. 400944; Exhibit 1, Vol. XVII, at p. 500020). 29. The Source Area was so-designated because it serves as a continuing source of groundwater contaminator in the region. (Exhibit 1, Vol. XIII, at pp. 40064-65; Exhibit 1, Vol. XVII, at p. 500020). 30. The EPA designated the area outside of the Source Area where groundwater contamination from Neceo Park has spread as the “Far Field.” (Exhibit 1, Vol. XIII, at pp. 400065-67; Exhibit 1, Vol. XVII, at pp. 500020-21). 31. During the investigation of groundwater contamination related to the Neceo Park Site, the EPA used a list of hazardous substances known as the Neceo Park Indicator Parameter List (“NPIPL”). (Exhibit 1, Vol. V, at pp. 301803-804, 301816-817). 32. The NPIPL was used to identify contamination from the Site and differentiate it from contamination from other sources. (Exhibit 1, Vol. Ill, at p. 300960). 33. The hazardous substances included in the NPIPL are consistent with the substances known to have been in the industrial waste that Defendant disposed of at the landfill. (Exhibit 1, Vol. V, at p. 302005). 34. In each layer of bedrock beneath the Neceo Park Site, groundwater contamination has spread beyond the boundaries of the original landfill. In most of the bedrock layers, contamination has spread at least to the Falls Street Tunnel and NYPA conduits. (Exhibit 1, Vol. XIII, at pp. 400466-472). 35. Contaminants on the NPIPL were found in samples collected from the Falls Street Tunnel and the NYPA conduit drainage system. (Exhibit 1, Vol. V, at pp. 301864-867, 301999; Exhibit 1, Vol. XVII, at p. 500023). II. History of EPA Activity at the Nec-eo Park Site A. RCRA § 3013 Order and Related Consent Decree 36. On April 29, 1985, the EPA issued a unilateral administrative order pursuant to section 3013(a) of the Resource Conservation and Recovery Act (“RCRA”). That order directed Defendant to develop and implement a groundwater assessment plan for Neceo Park. (Exhibit C attached to Defendant’s Trial Exhibit A; Docket No. 52, at p. 2). 37. The EPA issued the RCRA § 3013 order (the “RCRA Order”) because it determined that the release or threatened release of hazardous substances from Nec-eo Park might “present a substantial hazard to human health or the environment.” (Exhibit C attached to Defendant’s Trial Exhibit A, at p. 5). 38. The RCRA Order was part of a coordinated effort to identify and assess potential human health and environmental hazards posed by several confirmed and suspected waste sites located in the City of Niagara Falls. Neceo Park was one of the confirmed waste sites. The EPA determined that the RCRA Order “was necessary to keep the investigation moving as rapidly as possible, while coordinating it with other related regulatory actions in the area.” (Exhibit V, at pp. 15-16). 39. During this same period, the EPA negotiated a RCRA consent order with the owner of the CECOS facility. The EPA and New York State Department of Environmental Conservation (“NYDEC”) determined that the investigations of Neceo Park and the CECOS facility should be conducted simultaneously. (Exhibit V, at p. 15; Tr. at 351-52). 40. Defendant challenged the validity of the RCRA Order by filing a lawsuit in the United States District Court for the Western District of New York. In that action, Defendant sought, inter alia, a preliminary injunction restraining the EPA from enforcing the RCRA Order. (Exhibit A, at p. 2). 41. On June 10, 1985, the Honorable John T. Elfvin, United States District Judge for the Western District of New York, filed a Decision and Order denying Defendant’s Motion for a Preliminary Injunction. E.I. duPont de Nemours & Co. v. Daggett, 610 F.Supp. 260, 264 (W.D.N.Y.1985). 42. In July of 1986, Defendant and the EPA entered into a Consent Decree. Under the terms of that decree, Defendant was required to perform groundwater assessment studies and report the results to the EPA. (Exhibit 14, at pp. 0000042, 0000058-74). 43. Defendant also agreed to prepare an Interpretative Report. This report was to include an evaluation of whether the information collected regarding Neceo Park was “adequate to ascertain the full nature and extent of any substantial hazard that past and continuing releases ... may present to human health or the environment.” (Exhibit 14, at pp. 0000037-38, 0000042, 0000074-75; Tr. at 67-68; Exhibit C attached to Defendant’s Trial Exhibit A, at pp. 19-20). 44. Defendant began performing the work required under the Consent Decree in July of 1986. That work, which took several years to complete, included an evaluation of the existing groundwater monitoring wells, installation of additional monitoring wells, analysis of the groundwater flow in the area, investigation of man-made passageways, and investigation of drainage swells. (Docket No. 52, at p. 2; Exhibit 1, Vol. XI, at pp. 304755-775, 304862-871). 45. Neither the RCRA Order nor the Consent Decree contained any reference to CERCLA or the National Contingency Plan (“NCP”). (Tr. at 103). 46. Between May of 1985 and September of 1989, the EPA, through its personnel and contractors, supervised and monitored Defendant’s performance of the work required under the RCRA Order and Consent Decree. (Tr. at 66, 68, 76-77). 47. The Consent Decree was terminated on July 16, 1992, when the EPA informed Judge Elfvin that Defendant had completed its obligations. (Tr. at 66, 68, 76-77; Docket No. 52, at p. 3). B. AOC and Related Work 48. In September of 1989, the EPA and Defendant entered into an Administrative Order on Consent (“AOC”) pursuant to CERCLA §§ 104(b) and 122. (Exhibit 13; Docket No. 52, at pp. 2-3). 49. Under the AOC, Defendant was required to perform additional investigations and assessments and conduct an analysis of remedial alternatives. Defendant’s work was subject to EPA oversight and approval. (Exhibit 13, at pp. 0000091-93, 0000095, 0000101-102; Tr. at 70, 72-74, 104-105). 50. The AOC was intended to continue the work conducted under the RCRA Order and Consent Decree, and lead to the completion of a Remedial Investigation/Feasibility Study (“RI/FS”). (Exhibit 13, at pp. 0000091-93, 0000095, 0000101-102; Tr. at 70, 72-74,104-105). 51. In February of 1993, the EPA’s contractor completed a site inspection evaluation of the Neceo Park Site and issued a site inspection report. (Exhibit 1, Vol. XVIII, at p. DUP 14781). 52. That report indicated that the Site had been given a “No Further Remedial Action Planned” (“NFRAP”) designation on CERCLIS, the EPA’s database and data management system. (Exhibit 1, Vol. XVIII, at p. DUP 14781, Reference 1). 53. In September of 1993, the EPA issued a Remedial Site Assessment Decision. The purpose of this decision was to determine whether the Neceo Park Site would be listed on the National Priorities List (“NPL”). In that decision, the agency concluded that the Site did not qualify for further remedial assessment and would not be listed on the NPL. (Exhibit 1, Vol. XVIII, at p. DUP 14780; Exhibit 1, Vol. XVIII, EPA Memorandum; Tr. at 262). 54. Defendant thereafter presented the EPA with an Investigation Report and Analysis of Alternatives Report, which the agency approved in May 1994 and July 1996, respectively. (Tr. at 70-71). C. Risk Assessment 55. In 1993, the EPA conducted a Risk Assessment to determine whether contamination from the Neceo Park Site posed any danger to human health or the environment. (Exhibit 1, Vol. VII, at p. 302955). 56. The Risk Assessment was a “baseline” assessment, which meant that it assumed that no remedial action had been taken with respect to the' Site. (Exhibit 1, Vol. XVII, at pp. 500028-29). 57. According to the Risk Assessment, the current use of groundwater contaminated by the Site posed no risk to human health. However, the potential future use of contaminated groundwater posed a significant risk to human health. (Exhibit 1, Vol. XIII, at p. 400078; Exhibit 1, Vol. XVII, at p. 500031). 58. The groundwater risk assessment was based upon three assumptions. First, that a private drinking well would be installed in a residential area downgradient of the Neceo Park Site. Second, that the system of recovery wells currently in operation at the Site would cease operation. Third, that the contaminants detected in the well were attributable to the Neceo Park Site. (Exhibit 1, Vol. VII, at p. 303091). 59. The Risk Assessment determined that under those circumstances the risk of acquiring cancer through contact with the groundwater would be at least 6-in-1000. The risk might be as high as 1-in-l, depending upon the bedrock layer from which the groundwater was drawn and the type of contact, e.g. ingestion, dermal, inhalation. (Exhibit 1, Vol. VII, at p. 303034). 60. These risks are significantly higher than the EPA’s maximum acceptable carcinogenic risk of between l-in-10,000 and 1-in-l million. (Exhibit 1, Vol. VII, at p. 303032). 61. The Risk Assessment also used a “chronic hazard index” to measure the potential for non-carcinogenic health effects, such as nervous system disorders, kidney problems, and liver problems. (Exhibit 1, Vol. VII, at p. 303033; Exhibit 1, Vol. XVII, at p. 500030). 62. A chronic hazard index of one or greater indicates the potential for non-carcinogenic health effects. (Exhibit 1, Vol. VII, at p. 303033; Exhibit 1, Vol. XVII, at p. 500030). 63. The Risk Assessment determined that the chronic hazard index for contact with groundwater contaminated by the Neceo Park Site is at least 30 and possibly as high as 10,000, depending upon the bedrock layer from which the groundwater is drawn and the type of contact. (Exhibit 1, Vol. VII. at p. 303035). 64. In addition, the Risk Assessment found that in the area where the Falls Street Tunnel discharges into the Niagara River, maximum concentrations of some contaminants associated with the Site exceeded federal and state criteria. (Exhibit 1, Vol. VII, at p. 303083; Exhibit 1, Vol. XVII, at p. 500159). 65. Further, the Assessment determined that two contaminants associated with the Neceo Park Site have the potential to bioconcentrate (ie. accumulate in tissue) in fish and have, in fact, been found in fish tissue samples: (Exhibit 1, Vol. VII, at p. 303084; Exhibit 1, Vol. XVII, at p. 500187). 66. A public water supply currently serves the residential areas downgradient of the Site. (Exhibit 1, Vol. VII, at p. 303091; Exhibit 1, Vol. XIII, at p. 400024). 67. Nevertheless, the EPA considered domestic use of groundwater to be a potential future risk because the groundwater had been used for domestic purposes in the past and New York State classifies the groundwater as a potential drinking water source. (Exhibit 1, Vol. XVII, at pp. 500178, 500023-24). D. ROD 68. On September 18, 1998, following a public notice and comment period, the EPA issued a Record of Decision (“ROD”) for the Neceo Park Site. (Exhibit 1, Vol. XVII, at p. 500001). 69. The ROD selected the remedy for addressing the release of hazardous substances at the Site. According to EPA estimates contained in the ROD, it will cost Defendant more than $65 million to implement the selected remedy. (Exhibit 1, Vol. XVII, at p. 500006; Tr. at p. 72). 70. In reaching its decision, the EPA considered the Analysis of Alternatives Report, which identified thirteen potential remedial alternatives. Among the alternatives that the EPA considered were the “no action” alternative (Alternative 1) and the combination of response measures that Defendant had voluntarily implemented at the Site (Alternative 2). (Exhibit 1, Vol. XIII, at pp. 400284-292, 400297-432) 71. The EPA selected a modified version of the remedial alternative identified as “Alternative 10.” This alternative involves the use of groundwater extraction wells to prevent contaminated groundwater from moving beyond the Source Area. (Exhibit 1, Vol. XVII, at pp. 500002-04, 500021). 72. In addition, the selected remedy includes monitoring of the groundwater in the Far Field to determine whether limiting the contamination source will allow the groundwater contamination in that area to attenuate naturally. (Exhibit 1, Vol. XVII, at pp. 500004, 500021, 500156-157). 73. The EPA determined that the selected remedy is superior to the response measures that Defendant voluntarily installed at the Site. The agency estimated that, even if the recovery wells installed and operated by Defendant achieved optimal pumping conditions, more than thirteen pounds of hazardous substances would migrate from the Source Area to the Far Field every day. Further, the agency noted that the wells do not, in fact, achieve optimal pumping conditions. (Exhibit 1, Vol. XIII, at pp. 400036, 400488; Exhibit 1, Vol. XVII, at pp. 500160, 500207). 74. In contrast, the EPA estimated that the remedial alternative selected in the ROD will allow only one pound of migration per day. Moreover, virtually all of that migration will occur in the lowest portion of the bedrock, which has far less groundwater flow than other layers. In addition, the capture zones of the wells installed pursuant to the selected remedy will encompass the Source Area, unlike the existing wells. (Exhibit 1, Vol. XIV, at p. 400550; Exhibit 1, Vol. XVTI, at pp. 500023, 500160, 500199). 75. The EPA also concluded that the selected remedy is consistent with regulatory approaches in place at other sites in the region that contribute to contamination of the Niagara River and Great Lakes. Further, the agency determined that the remedy is consistent with the 1978 Great Lakes Water Quality Agreement between the United States and Canada. (Exhibit 1, Vol. XVII, at pp. 500052-53, 500175). 76. As part of the ROD, the EPA prepared a Responsiveness Summary, in which the agency responded to various concerns and questions expressed by Defendant and members of the public. (Exhibit 1, Vol. XVII, at pp. 500140-209). E. UAO 77. On September 28, 1998, the EPA issued a Unilateral Administrative Order (“UAO”) to Defendant pursuant to section 106(a) of CERCLA. (Exhibit 2; Tr. at 72). 78. The UAO directed Defendant to implement the remedial alternative selected in the ROD, subject to EPA oversight and approval. Further, the order required that all work under the UAO be performed in a manner consistent with the NCP. (Tr. at 75-76; Exhibit 2, at p. 22). 79. The EPA’s decision to issue the UAO was based upon “the entirety of the administrative record.” (Exhibit 2, at p. 6). 80. After reviewing the materials contained in the Administrative Record, the EPA determined that the “[ajctual or threatened release of hazardous substances at and from the Site, if not addressed by implementing the response actions selected in the ROD, may present an imminent and substantial endangerment to the public health, welfare, or environment.” (Exhibit 2, at p. 5). III. CERCLA § 107 Cost-Recovery Litigation A. Procedural History 81. Plaintiff commenced this action on September 17, 2001, by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1). 82. Defendant filed its Answer and a Counterclaim on January 28, 2002. (Docket No. 3). 83. On December 26, 2002, Plaintiff filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docket No. 24). 84. Defendant filed a Motion for Partial Summary Judgment on January 21, 2003. (Docket No. 30). 85. On September 29, 2003, this Court filed a Decision and Order granting in part and denying in part Plaintiffs motion and denying Defendant’s motion. (Docket No. 52). 86. Counsel for the parties filed numerous pre-trial motions, which this Court resolved in a bench decision issued on April 23, 2004. 87. A non-jury trial was held on April 26, 2004 and April 27, 2004. (Docket Nos. 90, 91). 88. Thereafter, counsel for the parties filed post-trial submissions, including Proposed Findings of Fact and Conclusions of Law. (Docket Nos. 92, 93, 95, 97, 98, 100, 102,104,106, 107,108). B. Documentation of EPA Response Costs 89. Plaintiff brings this action pursuant to CERCLA’s cost-recovery provision, section 107. Among the costs that Plaintiff seeks to recover are costs incurred by the EPA in connection with the investigation and remediation of hazardous substances at the Neceo Park Site. (Docket No. 1). 90. The EPA used funds from the Hazardous Substance Superfund (the “Superfund”) to respond to the release or threatened release of hazardous substances at the Neceo Park Site. (Docket No. 89, at ¶1). 91. Plaintiffs Trial Exhibits 4, 5, and 11 are accurate summaries of the documentation of the costs incurred by the EPA with respect to the Site. (Docket No. 89, at ¶ 1). 92. The documentation that forms the basis of the summaries contained in Exhibits 4, 5, and 11 satisfies the documentation requirements contained in all relevant versions of the NCP. (Docket No. 89, at ¶ 1). 93. Personnel employed by the EPA performed work related to the Neceo Park Site. This work included oversight of investigations performed by Defendant, preparation of the Risk Assessment, preparation of proposed plans for the Site, preparation of the ROD, response to comments from Defendant and the public regarding the proposed remedy, maintenance of Site files, and oversight of the remedial design process. (Tr. at 66-77). 94. As indicated in Exhibit 11, the EPA incurred costs in the amount of $1,530,746.91 during the time period between May 12, 1985 and April 27, 1996. By agreement of the parties, this amount should be reduced by $194,716.21. As such, Plaintiff seeks to recover $1,336,030.70 of the costs documented in Exhibit 11. (Exhibit 11; Docket No. 89, at ¶ 2; Tr. at 79-80). 95. As reflected in Exhibit 4, the EPA incurred response costs in the amount of $60,667.96 for the period between September 24, 1998 and September 30, 1999. (Exhibit 4; Tr. at 86-87). 96. Exhibit 5 indicates that the EPA incurred response costs in the amount of $186,746.34 during the period between October 1, 1999 and April 22, 2002. (Exhibit 5; Tr. at 90). 97. The cost figures in Exhibits 4, 5, and 11 include indirect administrative costs. The methodologies used to calculate these indirect costs are appropriate and consistent with applicable federal accounting standards. (Docket No. 89, at ¶ 5). 98. The total amount of past response costs sought by Plaintiff on behalf of the EPA in this action in $1,583,445.00. “Past response costs” refers to costs incurred in connection with the Neceo Park Site prior to April 22, 2002. (Docket No. 89, at ¶ 4). 99. The EPA has continued to incur costs for response action related to the Site since April 22, 2002. The agency will incur response costs in the future, including costs for the oversight of the remedial action. For purposes of the present case, these costs are considered “future response costs.” (Tr. at 93-94). C. Documentation of DOJ Enforcement Costs 100. Plaintiff also seeks to recover costs incurred by the United States Department of Justice (“DOJ”) in connection with Neceo Park litigation. 101. Between October 2000 and May 2002, attorneys and paralegals employed by the DOJ’s Environment and Natural Resources Division performed work related to the Neceo Park Site.(Exhibit 29; Tr. at 128-30). 102. Plaintiffs Trial Exhibit 29 accurately summarizes the costs incurred by the DOJ in connection with the Site between October 2000 and May 2002. (Tr. at 129-131). 103. The DOJ incurred costs totaling $225,133.42 in connection with the Neceo Park Site during that period. (Exhibit 29; Tr. at 147, Docket No. 89, at ¶ 4). 104. The DOJ contracted with the accounting firm of Rubino & McGeehin to assist in the tracking of costs incurred in the prosecution of cases on behalf of the EPA. (Tr. at 119-120). 105. The DOJ assigns a number to each case for cost-tracking purposes. The number assigned to the Neceo Park case is 90-11-3-07299. (Tr. at 123-124). 106. The DOJ’s costs may be divided into three categories: (i) direct labor costs, (ii) other direct costs, and (iii) indirect costs. (Tr. at 130). i. Direct Labor Costs 107. “Direct labor costs” are the salaries paid to lawyers and paralegals for their work on a case. These costs are calculated by multiplying each employee’s hourly rate of pay by the number of hours reported by that employee for a particular case. The employee’s hourly rate is calculated bi-weekly by dividing the employee’s salary for that period by the total number of hours reported by the employee during that period. (Tr. at 130,132-33). 108. DOJ employees report their time for all activities through an electronic time reporting system. To report time for a particular case, the employees use the DOJ number assigned to that case. Internal controls are in place to ensure the accuracy of each employee’s time entries. (Tr. at 124,133-34, 157-58). 109. Exhibits 31 and 32 accurately summarize the hours that DOJ attorneys and paralegals charged in connection with the Neceo Park Site between October 2000 and May 2002. In addition^ those exhibits accurately summarize the biweekly hourly rates for those employees and the corresponding labor costs. (Exhibit 31; Exhibit 32; Tr. at. 134-35). 110. DOJ employees charged a total of 2160 hours in connection with the Site between October 2000 and May 2002. (Tr. at 137). ii. Other Direct Costs 111. “Other direct costs” are expenses, other than labor costs, specifically linked to litigation concerning the Neceo Park Site. For example, other direct costs include fees paid for expert witnesses, travel expenses, litigation support services, and transcripts. (Tr. at 137-138). 112. Exhibits 33, 34, and 35 accurately document the “other direct costs” incurred by the DOJ with respect to Neceo Park litigation. (Exhibit 33; Exhibit 34; Exhibit 35; Tr. at 138). iii. Indirect Costs 113. “Indirect costs” are the costs that the DOJ incurred while supporting the work of its employees. These costs include office space, administrative support, payroll taxes, compensated absences, and fringe benefits. (Tr. at 124-125,139). 114. Indirect costs are allocated to an individual case by using an indirect cost rate. This rate is calculated by dividing the total indirect costs incurred by the Environment and Natural Resources Division for each fiscal year by the total direct labor costs for that year. The indirect costs for a particular case are calculated by multiplying the direct labor costs charged to that case each year by the indirect cost rate for that year. (Tr. at 139-140). 115. The system used to identify and calculate the DOJ’s indirect costs resulted in an accurate calculation of those costs. Further, the methodology used to allocate indirect costs to the Neceo Park case resulted in an accurate and equitable allocation of all such costs. (Tr. at 152-153). 116. Additional costs have been incurred by the DOJ since May 31, 2002, with respect to litigation involving the Neceo Park Site. (Tr. at 147). D. Summary of Administrative Record 117. Exhibit 1 is the Administrative Record supporting the EPA’s selection of a remedy for the Neceo Park Site. 118. Exhibit 2 contains the UAO issued in September 1998 and the Administrative Record supporting the EPA’s decision to issue that order. In addition, Plaintiff has incorporated by reference all of the materials contained in Exhibit 1 into Exhibit 2. 119. The Interpretive Report is located in Exhibit 1, Vols. X-XII, at pp. 304161-5303. The Investigation Report is included in Exhibit 1, Vols. V-VII, at pp. 301776-2947. These reports were prepared pursuant to 40 C.F.R. § 300.430(d), which requires that a remedial investigation be conducted to characterize a hazardous waste site and to determine the nature and extent of contamination. 120. The Risk Assessment Report is located in Exhibit 1, Vol. VII, at pp. 302948-3374. This report satisfied the requirement under the NCP that a “baseline” risk assessment be conducted. 40 C.F.R. § 300.430(d)(4). 121. The Analysis of Alternatives Report is found in Exhibit 1, Vols. XIII-XIV, at pp. 400001-1113. This report was prepared pursuant to 40 C.F.R. § 300.430(e), which requires the preparation of a feasibility study identifying and evaluating potential remedial alternatives. 122. The ROD, found in Exhibit 1, Vol. XVII, at pp. 500001-342, documents the EPA’s selection of a remedy for the Neceo Park Site, as required under 40 C.F.R. § 400.430(f). CONCLUSIONS OF LAW I.Background 1. There are four main questions presented in this case. Those questions are: First, was the EPA’s use of RCRA response authority at the Site inconsistent with the NCP? Second, can Plaintiff recover the DOJ’s enforcement costs related to Neceo Park litigation? Third, was the EPA’s decision to issue a UAO in September 1998 arbitrary and capricious? Fourth, are the EPA’s oversight costs related to the UAO recoverable under CERCLA? 2. After discussing the general cost-recovery standard under CERCLA § 107, this Court will address each question in turn. 3. In December of 1980, Congress enacted CERCLA in response “to the serious environmental and health risks posed by industrial pollution.” United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). The statute was designed to “provide for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.” Freeman v. Glaxo Wellcome, Inc., 189 F.3d 160, 163 (2d Cir.1999) (quoting Pub.L. No. 96-510, 94 Stat. 2767, 2767 (1980)). 4. To that end, CERCLA “creates a regime of broad-ranging liability, permitting the government to recover its remediation expenses directly from parties responsible for pollution, and authorizing private parties to pursue contribution or indemnification from potentially responsible parties for expenses incurred responding to environmental threats.” Commander Oil Corp. v. Bario Equip. Corp., 215 F.3d 321, 326 (2d Cir.2000). 5. CERCLA also created the “Superfund” to finance federal efforts to respond to the release or threatened release of hazardous substances into the environment. 26 U.S.C. § 9507. 6. Under CERCLA, the federal government may either remediate hazardous waste sites itself or require responsible parties to conduct the cleanup. 42 U.S.C. §§ 9604(a), 9606. 7. The EPA can finance cleanup efforts through the use of Superfund resources and then replenish the fund through cost-recovery actions under section 107 of CERCLA. New York v. Shore Realty Corp., 759 F.2d 1032, 1041 (2d Cir.1985) (citing 42 U.S.C. § 9611); Bestfoods, 524 U.S. at 55, 118 S.Ct. 1876 (citing 42 U.S.C. § 9607). 8. CERCLA § 107 provides, in pertinent part, that subject only to certain enumerated defenses, and “[n]otwithstanding any other provision or rule of law,” a responsible party is liable for “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan.” 42 U.S.C. § 9607(a). 9. This cost-recovery provision is designed to ensure that “those actually ‘responsible for any damage, environmental harm, or injury from chemical poisons [may be tagged with] the cost of their actions.’” Bestfoods, 524 U.S. at 55-56, 118 S.Ct. 1876 (alteration in original) (citation omitted). 10. In the present case, to succeed on its claim under CERCLA § 107, Plaintiff must establish the following five elements: (i) the Neceo Park Site is a “facility” under CERCLA, (n) there has been a release or threatened release of a hazardous substance(s) at the Site, (iii) the release or threatened release caused Plaintiff to incur response costs, (iv) those costs were not inconsistent with the NCP, and (v) Defendant is a “responsible person” under CERCLA. United States v. Alcan Aluminum Corp., 990 F.2d 711, 719-20 (2d Cir.1993). 11. It is undisputed that the Neceo Park Site is a “facility,” as that term is defined under CERCLA. (Docket No. 52, at p. 8). 12. It is also undisputed that there has been a release of hazardous substances at the Site. (Docket No. 52, at p. 8). 13. Both parties agree that Defendant, as the owner of Neceo Park, is a “responsible person” under CERCLA § 107(a)(1). (Docket No. 52, at p. 8). 14. There is also no genuine dispute regarding the fact that the release or threatened release of hazardous substances at the Neceo Park Site caused Plaintiff to incur at least some “response costs.” (Docket No. 52, at pp. 8-16). 15. The principal point of disagreement between the parties concerns the relationship between the response costs and the NCP. 16. Plaintiff may recover “all costs of removal or remedial action ... not inconsistent with the [NCP].” 42 U.S.C. § 9607(a)(4)(A) (emphasis added). The NCP is a series of regulations promulgated by the EPA pursuant to CERLCA. 42 U.S.C. § 9605. It “governs cleanup efforts by ‘establishing] procedures and standards for responding to releases of hazardous substances.’ ” Shore Realty, 759 F.2d at 1041; see also United States v. Chapman, 146 F.3d 1166, 1170 (9th Cir.1998) (noting that the NCP is “a national plan the EPA was required to promulgate to guide federal and state response actions”); New York v. Green, No. 01-CV-196A, 2004 WL 1375555, at *8 (W.D.N.Y. June 18, 2004). 17. In cases where, as here, the federal government seeks to recover response costs under CERCLA § 107, “[t]he response costs’ consistency with the national contingency plan is presumed; the defendant bears the burden of proving inconsistency, and it must show ‘that the EPA acted arbitrarily and capriciously in choosing a particular response action.’ ” B.F. Goodrich v. Betkoski, 99 F.3d 505, 528 (2d Cir.1996) (citation omitted). 18. Under the “arbitrary and capricious” standard of review, Agency action will be set aside only if: “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” United States v. Alcan Aluminum Corp., 97 F.Supp.2d 248, 272 (N.D.N.Y.2000) (quoting United States v. Burlington N.R.R. Co., 200 F.3d 679, 689 (10th Cir.1999)). 19. When resolving allegations of inconsistency with the NCP, courts look to the version of the NCP that was in effect at the time the EPA took the response action at issue. Chapman, 146 F.3d at 1170 n. 3 (citing Wash. State Dep’t of Transp. v. Wash. Natural Gas Co., 59 F.3d 793, 802 (9th Cir.1995)); United States v. Chrysler Corp., 168 F.Supp.2d 754, 764 (N.D.Ohio 2001); Pichowicz v. Atl. Richfield, 37 F.Supp.2d 98, 101 (D.N.H.1997). II. Recovery of Costs Related to RCRA Order and Consent Decree 20. As noted above, the EPA issued the RCRA Order to Defendant in April of 1985. The parties later entered into a Consent Decree related to that order. 21. “RCRA is a comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste.” Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996); see also Chicago v. Envtl. Def. Fund, 511 U.S. 328, 331, 114 S.Ct. 1588, 128 L.Ed.2d 302 (1994) (noting that RCRA “empowers EPA to regulate hazardous wastes from cradle to grave.... ”). 22. Under RCRA § 3013, if the EPA determines that the presence of hazardous waste at a particular site, or the release of waste from that site, -might present “a substantial hazard to human health or the environment,” it has the power to issue an order requiring the owner or operator of the site “to conduct such monitoring, testing, analysis, and reporting with respect to such facility or site as the Administrator deems reasonable to ascertain the nature and extent of such hazard.” 42 U.S.C. § 6934(a). 23.In this action, Plaintiff seeks to recover, inter alia, costs that the EPA incurred while overseeing Defendant’s performance under the terms of the RCRA Order and Consent Decree. Defendant contends that such costs are unrecoverable under CERCLA § 107 because the use of RCRA authority at Neceo Park was inconsistent with the NCP. Defendant offers two principal arguments in support of its position. A. RCRA Order & Remedial Investigation 24. First, Defendant argues that the issuance of the RCRA Order was inconsistent with the NCP because of the type of work that it required. Specifically, the EPA used RCRA to order Defendant to perform a remedial investigation, an outcome that the agency could not have achieved using the CERCLA authority available at the time. 25. A “remedial investigation,” as that term is used in connection with CERCLA, involves the collection of information to understand the type and extent of hazardous waste contamination at a particular site. A remedial investigation “provides information to assess the risks to human health and the environment and to support the development, evaluation, and selection of appropriate response alternatives.” 40 C.F.R. § 300.430(d)(1). 26. In this case, there is no dispute regarding the fact that the work conducted by Defendant under the RCRA Order and Consent Decree was, in sum and substance, a remedial investigation. (Docket No. 92, at p. 36; Docket No. 98, at pp. 4-6). 27. Under the version of CERCLA in effect in 1985, the EPA could allow a responsible party to respond to the release of hazardous substances voluntarily, so long as the agency determined that the responsible party would perform the action “properly.” This voluntary responsible party action was authorized pursuant to CERCLA § 104(a). Pub.L. 96-510, § 104(a)(1), 94 Stat. 2767, 2774-75 (1980). 28. In addition, the EPA was authorized under CERCLA § 104(b) to undertake response action itself, including a remedial investigation, to ascertain the nature and extent of any danger posed by the release or threatened release of hazardous substances. Pub.L. 96-510, § 104(b), 94 Stat. 2767, 2774-75 (1980). 29. Subsections (a) and (b) of CERC-LA § 104 did not authorize the EPA to unilaterally order a responsible party to undertake a response action, such as a remedial investigation. The EPA could only issue such an order under CERCLA § 106(a). However, the agency could issue an order under that section only if it found that the release or threatened release of hazardous substances from a site “may be an imminent and substantial endangerment to the public health or welfare or the environment.” 42 U.S.C. § 9606(a). 30. In the present case, the EPA did not make an “imminent and substantial endangerment” finding with respect to the Neceo Park Site until September of 1998, over ten years after it issued the RCRA Order. 31. As noted supra, there is no genuine dispute regarding the fact that the RCRA Order was essentially a unilateral administrative order directing Defendant to conduct a remedial investigation. Defendant argues that this was inconsistent with the NCP because, under the circumstances present at the time, the EPA had no authority under CERCLA to issue this type of order. 32. As discussed above, the EPA’s response actions are presumed to be consistent with the NCP and Defendant “bears the burden of proving inconsistency.” Betkoski, 99 F.3d at 528. “To meet this burden, Defendant must show ‘that the EPA acted arbitrarily and capriciously in choosing a particular response action.’ ” Id.; see also Chrysler, 168 F.Supp.2d at 768 (noting that “[t]o establish an inconsistency, [the defendant] must prove that the agency’s actions were arbitrary and capricious”) (citing United States. v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 748 (8th Cir.1986)). 33. For the reasons set forth below, this Court finds that Defendant failed to establish that the EPA’s decision to choose the particular response action at issue here, the use of a RCRA order and consent decree, was arbitrary and capricious. 34. First, this Court finds that the EPA’s use of RCRA authority to respond to the Neceo Park Site was clearly based upon the reasoned judgment of agency professionals. CERCLA provides that the federal government is entitled to recover all of its costs for response actions not inconsistent with the NCP. 42 U.S.C. § 9607(a). “This language requires deference ... to the judgment of agency professionals.” United States v. Ward, 618 F.Supp. 884, 900 (E.D.N.C.1985). 35. In this case, the EPA determined that the release or threatened release of hazardous substances from Neceo Park might pose a danger to human health or the environment. (Exhibit C attached to Defendant’s Trial Exhibit A, at p. 5). Neceo Park was a confirmed hazardous waste disposal site that needed to be investigated with respect to groundwater contamination. (Exhibit V, at p. 15). The agency decided to issue the RCRA Order as part of a coordinated strategy to identify health and environmental hazards posed by several confirmed and potential waste sites. (Exhibit V, at p. 15). Both the EPA and the NYDEC concluded that the investigations of the Neceo Park and the neighboring CECOS site should proceed simultaneously. (Exhibit V, at p. 15). The EPA determined that the RCRA Order “was necessary to keep the investigation moving as rapidly as possible, while coordinating it with other related regulatory actions in the area.” (Exhibit V, at p. 16). This Court cannot substitute its judgment for that of the agency professionals and Defendant has failed to establish that the agency’s decision in this regard was arbitrary and capricious. 36. Second, the practical effect of the RCRA order and Consent Decree was compatible with the procedures set forth under the NCP. A remedial investigation, as defined under § 300.6 of the applicable (November 1985) NCP, involves sampling, monitoring, and the gathering of other information in an effort “to determine the nature and extent of the problem presented by the release.” 50 Fed.Reg. 47,912, 47,954 (Nov. 20,1985). Under the Consent Decree, Defendant agreed to undertake various monitoring and investigative activities to determine the nature and extent of the hazardous waste problem at Neceo Park. Defendant also agreed to prepare and submit an Interpretive Report to the EPA. That report was to include an evaluation of whether the information collected was “adequate to ascertain the full nature and extent of any substantial hazard that past and continuing releases ... may present to human health or the environment.” (Exhibit 14, at pp. 0000070-75). . It is readily apparent that the type of work that Defendant performed under the RCRA Order and Consent Decree was substantially similar to the type of work required in a remedial investigation under the NCP. As such, this Court finds that Defendant has not established that the practical effect of the EPA’s response action was inconsistent with the procedures outlined in the NCP. 37.Third, it is true that, under the conditions present at the time, the EPA could not have issued a unilateral administrative order under CERCLA directing Defendant to conduct a remedial investigation. Such an order would have required a determination under CERCLA § 106 that the release of hazardous substances from Neceo Park may have presented an imminent and substantial endangerment to the public health or welfare or the environment. As has been noted, the EPA did not make such a finding until 1998. However, in issuing the RCRA Order, the EPA did find that the release of hazardous substances from Neceo Park might present a substantial hazard to human health or the environment. (Exhibit C attached to Defendant’s Trial Exhibit A, at p. 5). While this likely would not have satisfied the heightened standard under CERCLA § 106, it does not follow that the EPA’s use of RCRA authority to respond to the hazard posed by the release of hazardous substances at Neceo Park was therefore inconsistent with the NCP. In other words, while the particular response action selected by EPA in this case may have been unavailable under CERC-LA, that does not mean that it was necessarily inconsistent with the NCP. Defendant suggests that a response action is automatically inconsistent with the NCP if it was not specifically authorized or available under CERCLA. However, Defendant failed to cite, and this Court cannot find, any case law supporting this proposition. If Congress had intended to adopt the rule urged by Defendant, it would have limited cost recovery under § 107 to response actions that were “authorized by”, “available under”, or “permitted by” the NCP. Instead, the statute permits recovery for all costs of governmental response actions that were “not inconsistent” with the NCP. 42 U.S.C. § 9607(a). This is far more generous than the standard suggested by Defendant. See Northeastern Pharm., 810 F.2d at 747 (holding that “ ‘not inconsistent’ is not, at least for purposes of statutory construction and not syntax, the same as ‘consistent’ ”). 38. Fourth and finally, the end result of the RCRA Order and Consent Decree was an investigation by the responsible party to ascertain the nature and extent of the danger posed by the release or threatened release of hazardous substances. The November 1985 NCP specifically referenced and contemplated a situation in which the responsible party would be conducting this type of investigation. Section 300.6 of that NCP provides, in pertinent part, for a remedial investigation “undertaken by the lead agency (or responsible party if the responsible party will be developing a cleanup proposal).” 50 Fed.Reg. 47,912, 47,952 (Nov. 20, 1985) (emphasis added). 39. In sum, this Court finds that Defendant has failed to prove that either the practical effect or ultimate result of the EPA’s response action was inconsistent with the NCP. While the response action may not have been specifically authorized by CERCLA, Defendant has not shown that it was inconsistent with the NCP. Moreover, the EPA’s decision to respond to the Neceo Park Site using RCRA authority was based upon the reasoned judgment of agency professionals and Defendant failed to establish that the agency’s decision in this regard was arbitrary or capricious. B. Use of RCRA Authority & Per Se Inconsistency with NCP 40. Defendant’s second argument is that the use of a non-CERCLA response authority is per se inconsistent with the NCP. Specifically, Defendant contends that the use of RCRA authority at Neceo Park was inconsistent with the NCP because the NCP does not contemplate the use of response authorities other than CERCLA. 41. In this regard, Defendant notes that RCRA is neither discussed nor referenced in the NCP. In addition, the RCRA Order and Consent Decree did not contain any reference to the NCP. Moreover, while RCRA authorizes EPA to promulgate various regulations, the statute makes no reference to the NCP and compliance with the NCP is not required. 42. Defendant further notes that “[although the aims of RCRA and CERCLA are related, each serves a separate and unique purpose.” S.C. Dep’t. of Health & Envtl. Control v. Commerce & Indus. Ins. Co., 372 F.3d 245, 256 (4th Cir.2004). While RCRA was designed to address present and prospective threats, CERCLA serves “goals that are remedial and curative rather than preventative.” Id. 43. As such, Defendant argues that Congress did not intend that EPA action under RCRA would be treated as a “response action” for purposes of cost-recovery under CERCLA. Thus, under Defendant’s theory, the use of RCRA authority would necessarily be inconsistent with the NCP and, as such, any costs incurred by the EPA in connection with the use of that authority would not be recoverable under CERCLA § 107. 44. For the reasons set forth below, this Court finds that the EPA’s use of RCRA response authority is not per se inconsistent with the NCP. 45. First, the language of CERCLA’s cost-recovery provision is very broad. CERCLA § 107(a) provides that “[n]o-thwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section ... the owner and operator of ... a facility ... shall be liable for ... all costs of removal or remedial action incurred by the United States Government ... not inconsistent with the national contingency plan ...” 42 U.S.C. § 9607(a) (emphasis added). There is nothing in this broadly worded provision to suggest that Congress intended to limit recovery to costs of response actions taken under CERCLA. Indeed, the provision’s principal purpose is to ensure that “those actually ‘responsible for any damage, environmental harm, or injury from chemical poisons [may be tagged with] the cost of their actions.’” Bestfoods, 524 U.S. at 55-56, 118 S.Ct. 1876. 46. Second, this Court has already determined that the EPA’s oversight of Defendant’s performance under the RCRA Order and Consent Decree is included within the definition of “removal action” under CERCLA. (Docket No. 52, at pp. 8-16). 47. Third, several other courts have held that “[c]osts arising from RCRA compliance can be recovered in a CERCLA action.” Union Carbide Corp. v. Thiokol Corp., 890 F.Supp. 1035, 1044 (S.D.Ga. 1994); Mardan Corp. v. C.G.C. Music, Ltd., 600 F.Supp. 1049, 1054 (D.Ariz.1984) (“CERCLA applies both to active and inactive waste disposal sites and ... RCRA compliance costs may also be considered ‘response costs’ under CERCLA.”); United States. v. Rohm & Haas Co., 790 F.Supp. 1255, 1262 (E.D.Pa.1992) (“There is no statutory expression that would prevent EPA from recovering costs incurred in supervising a so-called RCRA managed site. Instead, there are strong economic and environmental reasons for authorizing the recovery of such costs. Without a clear statutory statement to the contrary, this CERCLA remedy must be upheld as an available tool of environmental protection.”), rev’d in part on other grounds, 2 F.3d 1265 (3d Cir.1993). 48. Fourth, although the NCP may not have specifically authorized or referenced the use of RCRA authority to respond to a hazardous waste site, that does not necessarily mean that the use of such authority is inconsistent with the NCP. Defendant has not established that use of RCRA authority in this particular case was inconsistent with the response methods outlined in the NCP. In other words, Defendant did not prove that the EPA’s decision to use RCRA to respond to Neceo Park was arbitrary and capricious, or otherwise inconsistent with the NCP. Betkoski, 99 F.3d at 528 (noting that defendant bears the burden of proving that EPA acted arbitrarily and capriciously in choosing a particular response action); cf. Shore Realty, 759 F.2d at 1047-48 (“We read section 9607(a)(4)(A)’s requirement of consistency with the NCP to mean that states cannot recover costs inconsistent with the response methods outlined in the NCP.”). Indeed, as has been discussed above, both the practical effect and end result of the RCRA Order and consent decree were compatible, or at least not inconsistent, with the procedures outlined under the applicable NCP. 49. Accordingly, this Court finds that Defendant is liable for the response costs incurred by the EPA in connection with its oversight of Defendant’s performance under the RCRA Order and Consent Decree. III. Recovery of Costs Related to DOJ Enforcement Activities 50. Among the response costs that Plaintiff seeks to recover in this action are direct and indirect costs incurred by the DOJ. These costs, which include attorney’s fees and other litigation expenses, will be referred to collectively as the “DOJ enforcement costs.” 51. As noted above, Plaintiff may recover from Defendant “all costs of removal or remedial action incurred by the United States Government ... not inconsistent with the [NCP].” 42 U.S.C. § 9607(a)(4)(A). The terms “removal” and “remedial action” include “enforcement activities related thereto.” 42 U.S.C. § 9601(25). 52.Offering two main arguments, Defendant contends that Plaintiff cannot recover the DOJ enforcement costs. A. Statutory Basis for the Recovery of DOJ Enforcement Costs 53. First, Defendant asserts that there is no statutory basis for the recovery of DOJ enforcement costs incurred in connection with Neceo Park litigation. Specifically, Defendant argues that § 107 cost-recovery litigation is not a “removal” or “remedial” action, as those terms are defined under CERCLA. 54. In support of its position, Defendant cites Key Tronic Corp. v. United States, 511 U.S. 809, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994). In Key Tronic, the Supreme Court held that “CERCLA § 107 does not provide for the award of private litigants’ attorney’s fees associated with bringing a cost recovery action.” Id. at 819, 114 S.Ct. 1960. The Court’s decision was based, inter alia, upon its conclusion that “the term ‘enforcement activity1 is not sufficiently explicit to embody a private action under § 107 to recover cleanup costs.” Id. 55. Defendant urges this Court to apply the reasoning of Key Tronic to the instant case, arguing that there is no statutory basis for treating Plaintiffs claim for litigation costs differently than the private party claim at issue in Key Tronic. 56. The critical case guiding this Court’s analysis is B.F. Goodrich v. Betkoski. In that case, the Second Circuit held that the Government could recover attorneys’ fees and other indirect administrative costs under CERCLA § 107. Betkoski, 99 F.3d at 527-28. The court explained that: Responsible parties are liable for “any ... necessary costs of response incurred [that are] consistent with the national contingency plan.” [CERCLA] also states that “[t]he terms ‘respond’ or ‘response’ mean[ ] remove, removal, remedy, and remedial action,” and these terms include “enforcement activities related thereto.” Thus, the government’s recoverable response costs properly include not only the obvious costs of remediation, but also include, inter alia; attorneys’ fees, indirect administrative costs, studies conducted for remediation, and even prejudgment interest. Id.