Trinity Industries, Inc. v. Greenlease Holding Co. (173 F. Supp. 3d 108, 2016)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Joy Flowers Conti, Chief United States District Judge

I. Introduction

This, action was brought by plaintiffs Trinity Industries, Inc. and Trinity Industries Railcar .Corporation (together with Trinity Industries, Inc., the “Trinity plaintiffs”) seeking contribution under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. and its Pennsylvania state law counterpart, the Hazardous Sites Cleanup Act (“HSCA”), 35 Pa. Cons. Stat. § 6020.101 et seq. The present dispute arises out of the contamination of real property located in Greenville, Pennsylvania, (the.“North Plant”) caused by the use and release of products containing hazard^ ous substances by Trinity, Industries, .Inc., defendant Greenlease Holding Company (“Greenlease”), and third parties who are not parties to this litigation. The contamination in large, part occurred in connection with railcar manufacturing operations at the North Plant.

This court in an opinion dated August 5, 2014, granted in part summary judgment to the Trinity plaintiffs and held as a matter of law that Greenlease is a liable party under the CERCLA and the HSCA. (ECF No. 240) at 19; (ECF No. 241.) The court explained in its opinion dated August 5, 2014, that no opinion was expressed with respect to how the costs of remediation of the North Plant should be allocated among the parties. (ECF No. 240) (citing Litgo N.J., Inc. v. Comm’r of the New Jersey Dep’t of Envtl. Prot., 725 F.3d 369, 383 (3d Cir.2013).)

On April 20, 2015, this court commenced a bench trial with respect to the equitable allocation of response costs for the hazardous waste remediated by the Trinity plaintiffs at the North Plant. During the hearing two experts testified: Joseph B. Gormley, Jr. (“Gormley”), who was called by the Trinity plaintiffs, and Steven Ger-ritsen (“Gerritsen!’), who was called by Greenlease. Having considered the testimony of the witnesses presented during trial and via deposition transcript, the voluminous exhibits entered as evidence, and the extensive post-trial submissions of the parties, the court in accordance with Federal Rule of Civil Procedure 52(a) makes the following findings of fact and conclusions of law with respect to the allocation of response costs for the hazardous waste remediated by the Trinity plaintiffs at the North Plant.

II. Findings of Fact (“FOF”)

The Parties

FOF 1. Trinity Industries Rail Car Corporation is a wholly-owned subsidiary of Trinity Industries, Inc. (ECF No. 334 at 3.) The Trinity plaintiffs are public companies and their financial information is publicly available. (T.T. 4/20/15 (ECF No. 340) at '68-9.) The Trinity plaintiffs consider themselves the leading manufacturers of railcars with manufacturing facilities across the United States and in Mexico. (Id.) In 2014, the Trinity plaintiffs reported an operating profit of $1,251 billion and a net income of $790 million. (T.T. 4/20/15 (ECF No. 340) at 69; Greenlease Ex. H.)

FOF 2. In 1910, Greenville Metal Products Company was organized for the man-ufaeture of automotive parts. (Trinity Pis. Ex. 29 at 1.) In 1914, the corporate name of Greenville Metal Products Company was changed to Greenville 'Steel Car Company. (Id. at 2); (ECF No. 336 at 10.) Greenville Steel Car Company eventually changed its name to Greenlease Holding Company. (T.T. 4/23/15 (ECF No. 342) at 94.) The court will refer to Greenville Metal Products Company, Greenville Steel Car Company, and Greenlease Holding Company as “Greenlease.”

FOF 3. In 1910, Greenlease began its operations on an 11-acre parcel of property located at 60 Union Street, Greenville, Pennsylvania (the “North Plant”). (T.T. 4/24/15 (ECF No. 343) at 71; Trinity Pis. Ex. 1 ¶¶ C and 3(e).) Greenlease throughout its operation of the North Plaht acquired additional parcels of property on which the North Plant was situated. (T.T. 4/20/15 (ECF No. 340) at 127; Greenlease Exs. KK-WW.) At the- time of trial, the North Plant consisted of approximately 34 acres of property. (T.T.' 4/24/15 (ECF No. 343) at 71.)

Shelby Steel Tube Company’s Ownership of the North Plant

FOF 4. Prior to the acquisition of the North Plant by Greenlease in 1910, the Shelby Steel Tube Company (“Shelby Steel”), a manufacturer of steel tubing affiliated with United States Steel Corporation, owned and operated the North Plant on the 11-acre parcel of property later acquired by Greenlease. (T.T. 4/23/15 (ECF No. 342) at 74-75; T.T. 4/27/15 (ECF No. 344) at 16; Greenlease Exs. II-KK) Shelby Steel operated the North Plant from at least 1898 until some point prior to Greenlease acquiring the property in 1910. (Greenlease Ex/II; T.T. 4/23/15 (ECF No. 342) at 75.)

FOF 5. The North Plant prior to its development by Shelby. Steel was “a hollow with. a stream running through the center axis of the property.” (T.T. 4/24/15 (ECF No. 343) at 61.) A hollow is “a stream valley, and so with the stream at the lowest point, it would be sloping towards the stream from — the stream is running north-south;_[T]he property.. .on both sides of the stream are sloping towards the stream.” (Id.) In other words, the easternmost and westernmost sides of the property are at a higher elevation than the stream, which was situated in the center of the property. (T.T. 4/27/15 (ECF No. 344) at 143.)

FOF 6. Part of the eastern portion of the North Plant was developed by Shelby Steel prior to Greenlease owning the site. CLT. 4/23/15 (ECF No’. 342) at 74.)

FOF 7. Shelby Steel brought historic fill to the North Plant to erect its- buildings. (T.T. 4/23/15 (ECF No. 342) at 77.) Shelby Steel’s buildings are depicted on the following excerpt of a Sanborn map dated 1898 (“1898 Sanborn map”).

(Trinity plaintiff’s Ex. 3 at 048766 (emphasis added, i.e., the text boxes containing cardinal directions).) Each -of the maps relied upon in this opinion, including the foregoing map, show the cardinal direction of “north” as the right side- of the image, “east” as the bottom of the image, “south” as the left side of the image, and “west” as the top of the image. The cardinal directions are depicted above on the map, but will not be depicted on the other maps used throughout this opinion. •

FOF 8. Historic fill is “a soil mixed with various non-native materials, including construction demolition debris, concrete, asphalt, or it could be industrial materials such as slag or ash.” (T.T. 4/24/15 (ECF No. 343) at 59.) The composition of historic fill depends upon “where it’s derived from, what process it’s derived from.” (Id.) Historic fill has a “wide spectrum of potential composition.” (Id.) Historic fill may consist of concrete, asphalt, slag, ash, coal, and a variety of other materials. (T.T. 4/27/15 (ECF No. 344) at 5-6.)

FOF 9. Historic fill is used extensively throughout Western Pennsylvania “to usually elevate grade on properties, to stabilize the ground for industrial developments.” (T.T. 4/24/15 (ECF No. 343) at 60.) Gerritsen explained:

[Historic fill is — fill is — first off, it’s required through the industrial development of the region. You know, the development occurred in the areas where it was accessible to transportation, along the railroads. The railroads were built along the rivers. The rivers were always built along areas where there is potential for flooding.

There’s topography with slope, and you would have to adjust the land so that you could facilitate industrial development. You find it in this area in particular along all of-the three rivers here. There’s layers — there’s thirty, forty feet of fill derived from, for example, the steel-making industry that has just been prevalent throughout here through time.

And -generally that’s the concept, is that it’s used to elevate the land surface, stabilize the' land surface for industrial development.

(T.T. 4/24/16 (ECF No. 343) at 59-60.)

FOF 10. The Norfolk Southern Railway Company, formerly the Erie Lackawanna Railroad, runs along the western border of the North Plant. (Trinity pis. Ex. 16 at TRINGRNL070534; T.T. 4/23/15 (ECF No. 342) at 81; T.T. 4/27/15 (ECF No. 344) at 17; Greenlease Ex. NNN.)

FOF 11. A map of the North Plant during Shelby Steel’s operations on the property depicts at least three large buildings situated closely together in the center of the property and a railroad track connected to the Erie Lackawanna Railroad, which broke off into two different railroad tracks that ran along either the west or east side of the three large buildings situated in the middle of the property. (Green-lease Ex. NNN; T.T. 4/23/15 (ECF No. 342) at 77.)

(Greenlease Ex. NNN (emphasis added, i.e., the text boxes and white arrows).)

FOF 12. There were no rail lines that ran through the buildings when Shelby Steel owned and operated the North Plant. (T.T. 4/27/15 (ECF No. 344) at 66.) There was one rail line that ran along a building on the western side of the property. (Id.)

FOF 13. Shelby Steel operated in the areas of the North Plant at which the “old Erie paint shop” and the “main paint shop” were later erected by Greenlease. (T.T. 4/23/15 (ECF No. 342) at 76.)

FOF 14. During Shelby Steel’s ownership of the North Plant, i.e., at least beginning in 1904, a reservoir existed on the southern portion of the property. (Trinity pis. Ex. 3 at TRINGRINL048767.) Shelby Steel used the reservoir as a water source. (T.T. 4/23/15 (ECF No. 342) at 80.) The reservoir is depicted on a Sanborn map dated 1904 (“1904 Sanborn map.”)

(Trinity pis. Ex. 3 at TRINGRINL048767.)

Greenlease’s Expansion of the North Plant

FOF 15. From 1910 until 1914, Green-lease manufactured automotive parts at the North Plant. (Trinity Pis. Ex. 29 at 1-2.) Greenlease’s business began “with the production of front and rear axle, spindles, jack shaft, [and] drop forgings.” (Id. at 1.)

FOF 16. By 1911, there were residential structures situated on property, which eventually became the westernmost side of the North Plant. (T.T. 4/24/15 (ECF No. 343) at 79; Greenlease Ex. W at 2.) In 1911, Greenlease at that time did not own those residential structures. (Id.) The San-born map dated 1911 (“1911 Sanborn map”) depicted below shows the residential structures on the western side of the stream that ran through north to south in the center of the property on which the North Plant was developed. (Trinity pis. Ex. 3 at TRINGRNL048768.)

(Trinity pis. Ex. 3 at TRINGRNL048768.)

FOF 17. By 1916, Greenlease’s operations included repairing, rebuilding, and manufacturing railcars for railroads. (Trinity Pis. Ex. 29 at 2; T.T. 4/27/15 (ECF No. 344) at 47.)

FOF 18. Between 1911 and 1922, Green-lease expanded the property on which the North Plant is situated. (T.T. 4/27/15 (ECF No. 344) at 47.) Greenlease’s expansion of the North Plant included an expansion of the geographic area on which the production facilities were situated. (Id.) Green-lease during the expansion placed historic fill at the North Plant. (Id. at 48.)

FOF 19. Between 1911 and 1922, Green-lease constructed twenty structures on the eastern side of the North Plant above Leet Avenue. (T.T. 4/27/15 (EOF No. 344) at 64; Trinity Pis. Ex. 22 at TRINGRNL053058.) Those twenty structures are depicted in a Sanborn map dated 1922 (“1922 Sanborn map”).

(Trinity pis. Ex. 3 at TRINGRNLÓ48769 (emphasis added, i.e., the red oval on the eastern portion of the map).)

FOF 20. Gerritsen testified that if Greenlease owned the property on which those twenty structures are situated at the time the structures were constructed, Greenlease placed historic fill in that area to build those structures. (T.T. 4/27/15 (EOF No. 344) at 64.)

FOF 21. By 1922, the hollow in which the North Plant was developed was filled. (T.T. 4/27/15 (EOF No. 344) at 67.)

FOF 22. A comparison of the 1911 San-born map of the North Plant with the 1922 Sanborn map of the North Plant shows the extent of Greenlease’s expansion of the North Plant.

(Trinity pis. Ex.'3 at TRINGRNL048768); (Trinity pis. Ex. 3 at TRINGRNL048769.) FOF 23. The 1922 Sanborn map depicts two large rectangular structures on the southern portion of the North Plant. (Trinity Pis. Ex. 22 at TRINGRNL053058.) Gerritsen testified that “if fill was required in order to construct those [buildings]” it would have been placed by Greenlease. (T.T. 4/27/15 (ECF No. 344) at 65.)

FOF 24. The 1922 Sanborn map does not depict the reservoir on the southern portion of the North Plant; rather, the 1922 Sanborn map depicts buildings erected where the reservoir used to be. (Trinity pis. Ex. 3 at TRINGRNL048769.)

FOF 25. The 1922 Sanborn map does not depict the stream that is depicted in the 1911 Sanborn map; rather, the 1911 Sanborn map depicts in the area in which the stream used to be a building labeled “Light & Repair Shop” and a railyard, i,e., a series of railroad tracks running north to south on the property, (Trinity pis. Ex. 3 at TRINGRNL048769.) Greenlease’s Operations at the North Plant

FOF 26. Greenlease operated' two paint shops at the North Plant, i.e., the “old Erie paint shop” and the “main paint shop,” which was also known as the “central paint shop.” (ECF No. 328 at 28-29.) The old Erie paint shop and the central paint shop had “mostly dirt [floors].” (T.T. 4/20/15 (ECF No. 340) at 16.)

FOF 27. The Trinity plaintiffs presented testimony from former employees of Greenlease describing Greenlease’s painting practices at the North Plant. (T.T. 4/20/15 (ECF No. 340) at 14; ECF Nos. 327; 328; 330; 332; 333.)

FOF 28. Raymond Fell (“Fell”), an employee of Greenville Steel Car Company from July 1963 until. 1985, worked in the old Erie paint shop and main paint shop. (T.T. 4/20/15 (ECF No. 340)' at 14.) Fell first cleaned cars and then became a painter. (Id.) His entire career with Greenville Steel Car Company was in the paint area. (Id.)

FOF 29. The first step in the painting process used by Greenlease in the old Erie paint shop and the main paint shop was to hose the railcar down with naphtha' to remove the grease off of the steel. The second step was to wipe the car with rags. Both steps were performed on a dirt area. “Drippage” from this process would fall onto the ground. (T.T. 4/20/15 (ECF No. 340) at 17; ECF No.,326 at 27, 29, 30.) Xylene — a chemical used to remove grease and paint — was used during this process as a spray to clean the 'spray gun and thin paint. (T.T. 4/20/15 (ECF No. 340) at 17.)

FOF 30. Fell wore coveralls and a “ball cap” while performing the painting process. (T.T. 4/20/15 (ECF No. 340) at 17.) Paint would get on his clothes during the painting process. (Id. at 18.) He did not have a covering on his face. (Id. at 17.) Paint would get on Fell’s face during the painting process. Fell put Vaseline on his face when he painted so that he “could take a rag and wipe the paint back off” his face. In other words, the Vaseline prevent? ed the paint from sticking to his forehead and face. (Id.)

FOF 31. Fell worked nearby the location where the shot blasting occurred, which was used to “take the lamination out of the steel and whatever PCBs from the oil that would be on there.” (T.T. 4/20/15 (ECF No. 340) at 18.) During the shot blasting process, tiny BBs were used to remove mill scale and rust from railcars to prepare the railcars to be painted. (T.T. 4/20/2015 (ECF No. 316) at 62;)

' FOF 32. Fires occurred in the area in which Fell worked. (T.T. 4/20/15 (ECF No. 340) at 19.) He testified that “when we would wash them cars down with naptha, it would run onto the ground, and then you started to sand those ears down with a sander, and some of the sparks would set the ground on fire.” (Id.) Fell testified the fires occurred “maybe once, twice a week.” (Id.) Fell put out the fires with fire extinguishers. (Id.)

FOF 33. Fell described a process called “undercoating” as follows: “[w]hen you got done cleaning the car, move it down to the next position, it called for undercoating. We would do the undercoating on it with— it’s like "a tar base. And the one thát comes into my mind mainly was a thin film was the name of it. And ,1 got my eyes burnt from that stuff.” (T.T. 4/20/15 (ECF No. 340) at 20.) Fell had to wear patches on his eyes and miss work for a week as a result of the tar base burning his eyes. (Id.) Tar would" also get onto' Fell’s clothing; (Id.)

FOF 34. Fell primed the cars with lead primer. (T.T. 4/20/15 (ECF No. 340) at 20.) Fell remembered using lead primers in 55-gallon containers from the following brands: DuPont, PPG, Sherwin Williams, and Jamestown Paint. (Id. at 21.) Fell described the procedure used to fill his spray gun with the lead primer as follows:

Well, when you took the lid of that drum, we had like a board to stir up the paint so it was mixed up real good. And you set your pump in there, your paint pump, set that in that barrel. And then you would pull the trigger on the gun and run all the thinner out [onto the dirt floor] until the paint started coming.

(T.T. 4/20/15 (ECF No. 34Ó) at 21.) In other words, Fell with a high pressure spray gun sprayed solvent onto the ground; (Id. at 22.) When the paint began to come out of the spray gun, Fell turned on the air and started spraying the car with the lead primer. (Id.) Another person would be doing the same task on the other side of the car. (Id.) Fell used a ladder to paint the top of the cars. (Id.) Primer would get onto Fell’s shoes and - clothes. (Id.) When Fell removed his clothes.at the end of a work day, they were so “stiff’ that they could “stand alone” “like somebody standing there in the corner if you left it there.” (Id. at 23.)

FOF 35. After the priming stage of the painting process was completed, Fell “[p]ull[ed] the car out of the transfer table, [took] it over and [took] it off [sic] on the next track to the finish position.” (T.T. 4/20/15 (ECF No. 340) at 25.) The cars were painted in the “finish position.” (Id.)

FOF 36. Fell described the process of filling his spray gun with the paint as follows:

Put the pump in the — take the lid off that finish paint barrel, put the pump in, run the thinner out onto the ground until the paint came through, and turn your air on and go up — start' at the top and finish. Start spraying.

(T.T. 4/20/15 (ECF No. 340) at 14.) Fell would start at the top and work toward the bottom. Another person would be painting the car on the other side of the car. (Id.)

FOF 37. Fell explained that he had to clean his spray gun because different paint colors were used for different railroad cars. (T.T. 4/20/15 (ECF No, 340) at 25-26.) He explained the process of cleaning his spray gun as follows:

Well, we had a bucket of thinner there. Usually you’d pull the pump out of the paint barrel, stick it in that five-gallon bucket of thinner, and spray — run that out onto the ground.

And sometimes' if you wanted the paint, you’d run it into an empty five-gallon' bucket or whatever you had there. At the end of the order, if you got a pass from your general foreman, you could take that home.

Apd you’d run that paint [onto the ground] until the thinner come out clear, and then take the paint and put it into another barrel.

(T.T. 4/20/15 (ECF No. 340) at 27.)

FOF 38. After painting, the next step in the process was stenciling. (T.T. 4/20/15 (ECF No. 340) at 27.) Fell explained:

That’s where they put the lettering on the cars, and they had a table there where they — when the stencil position took care of their stencils, they’d wash and clean them on a table like. '

(T.T. 4/20/15 (ECF No. 340)'at 27.) This process occurred every day and sometimes twice or three times per day. (Id. at 27-28.)

FOF 39. The last step of the painting process involved the car being transported from the paint shop to the' shipping track, where it would be picked up by its railroad owner or shipped to its railroad owner. (T.T. 4/20/15 (ECF No. 340).)

FOF 40. Fell explained the process for cleaning the dirt floors at the North Plant as follows:

On weekends we would take shovels and rakes and clean that up and put it in barrels and have a telehandler come and take the barrels, and I don’t know where he took them. But yes, we raked that up and cleaned it up with our rakes and shovels.

(T.T. 4/20/15 (ECF No. 340) at 37.)

FOF 41. Fell recalled taking a blood test for lead concentrations. (T.T. 4/20/15 (ECF No. 340) at 29.) Fell- was told that if the concentrations of lead in his blood were “too high” he would'have to do a job other than painting. (Id.) Fell could not recall the results of his blood test'and he was never required to do another job other than painting. (Id.)

FOF 42. An internal memorandum from Greenlease dated October 7, 1976, provided:

Painting operations are. by the air spray method, without benefit of mechanical ventilation necessary to remove flammable vapors, mists, etc. The paint is sprayed onto the.cars in the open, atmosphere of the buildings and collects on employees, structures, lights, electrical controls, etc., within the buildings and automobiles, houses, etc., outside of the buildings. The paint accumulated within the buildings is a continuing fire hazard. The frequencies of fires have increased in recent years. Also without heated work stations or buildings, winter weather painting conditions creates excessive repainting of freight ears.

(Trinity pis. Ex. 41 at 2.)

Greenlease’s Sale of the North Plant to Trinity Industries, Inc,

FOF 43. .Trinity Industries, Inc. purchased the North Plant from Greenlease in an asset sale, pursuant to a Purchase and Sale Agreement dated December 9, 1986 (the “purchase and sale agreement”).'(T.T. 4/20/16 (ECF No. 316) at 57, 60; T.T. 4/23/16 (ECF- No. 342) at 88; Trinity pis. Ex. 67.)

FOF 44. Pursuant to the purchase and sale agreement, the purchase price of the North Plant’s “subject assets other than the inventory” was $8,000,000. (Trinity Pis. Ex. 67 at TRINGRNL032315; T.T. 4/23/15 (ECF No. 342) at 88.)

FOF 45. The purchase price of the North Plant’s inventory pursuant to the purchase and sale agreement was $6,075,120. (Trinity Pis. Ex. 67 at TRINGRNL032316; T.T. 4/23/15 (ECF No. 342) at 88.) ■

FOF 46. Section 2.02 of the purchase and sale agreement, in pertinent part, provided:

Purchase Price for the Inventory. Section 1A of the Disclosure Schedule sets forth a statement of the physical inventory (the “inventory”), taken and conducted by Seller as of November 11, 1986 and approved by Purchaser, of Seller’s raw materials, work-in-process 'and finished goods inventories (specifically excluding rail cars and certain other assets set forth in Section 2 of the Disclosure Schedule), together with the book value of the Inventory as of November 11,1986.

(Trinity pis. Ex. 27 at 4.) Greenlease’s sale of the North Plant to Trinity Industries, Inc. was subject to a post-closing adjustment to reflect the amount and book value of inventory “disposed of’ between November 11, 1986, and the closing date. (Id. at 7.)

FOF 47. Greenlease’s balance sheet as of December 31,1985, reflected that:

— the book value of its assets at the , end of 1985 were $75,608,000 (Trinity Pis. Ex. G at GHC0005964; T.T. 4/23/15 (ECF No. 342) at 89);

— the book value of its inventory accounted for $14,635,000 of those assets (Trinity Pis. Ex. G at GHC0005964; T.T. 4/23/15 (ECF No. ■342) at 90); and

— the book value of its property, plant, and equipment accounted for $10,364,000 of those assets (Trinity Pis. Ex. G at GHC0005964; T.T. . 4/23/15 (ECF No. 342) at 90).

FOF 48. Greenlease operated the North Plant until December 9, 1986. (T.T. 4/23/15 (ECF No. 342) at 106.)

FOF 49. As of December 9, 1986 — the date of the purchase and sale agreement— Greenlease had operated the North Plant as an industrial facility “for some period of time.” (T.T. 4/23/15 (ECF No. 342) at 90.)

FOF 50, Section 3.10 of the purchase and sale,’.agreement, entitled “Compliance with Laws” (the “compliance with, laws clause”), provides:

.Compliance with Laws. Seller has complied, in all material respects, with all applicable laws and regulations (including, but not limited to, the Occupational Safety and health Act and the Equal Employment Opportunity Act), and all ■building, zoning and other laws affecting the business or operations of Greenville Facility or the Subject Assets; provided, however, that Seller makes no representation or warranty regarding compliance with the Environmental Protection Act, any other environmental laws or regulations or any hazardous waste laws or regulations (collectively, “Environmental Laws”).

(Trinity pis. Ex. 67 at TRINGRNL032327 (emphasis added); T.T. 4/23/15 (ECF No. 342) at 91.) The bolded and italicized portion of the compliance with laws clause was “a very common clause” used by Green-lease’s parent corporation, Ampco-Pitts-burgh Corporation (“Ampco”), or its subsidiaries when they sold their assets. (T.T. 4/23/15 (ECF No. 342) at 91.)

FOF 51. Rose Hoover (“Hoover”) is executive vice-president and chief administrative officer for Ampco. (T.T. 4/23/15 (ECF No. 342) at 85.) Hoover is also an officer and director of Greenlease. (Id. at 87.)

FOF 52. Hoover worked for Ampco for approximately 37 years. (T.T. 4/23/15 (ECF No. 342) at 85.) She began working for Ampco as a secretary in the legal department when she was 24 years old. (Id. at 86.)

FOF 53. Hoover for the past 36 years was involved in every acquisition or divestiture by Ampco..(T.T. 4/23/15 (ECF No. 342) at 86.) Ampco as a public parent holding company does acquisitions and divestitures “fairly regular[ly].” (IdL at 86-87.)

FOF 54. Hoover was-in the seventh year of her employment 'with Ampco when the Trinity plaintiffs purchased the North Plant from Greenlease. (T.T.'4/23/15 (ECF No. 342) at 87.) Hoover worked behind the scenes of the purchase arid sale of the North Plarit from Greenlease to Trinity Industries, Inc. (Id.) Hoover did riot negotiate the purchase and- sale of the North Plant between the Trinity Industries, Inc. and Greenleáse. (Id.) Hoover worked on the schedules and documents with respect to that deal. (Id.)

FOF 55. Hoover testified that the purpose of the compliance with laws clause was to achieve an “as is where is” sale of the property. (T.T. 4/23/15 (ECF No. 342) at 91.) Hoover, however, could not locate in the purchase and sale agreement the phrase “as is where is.” (Id. at 99.)

FOF 56. Section 9.01 of the purchase and sale agreement, entitled “Indemnity of Seller” (the “indemnity of seller clause”), provided, in pertinent part:

Indemnity of Seller. Seller agrees to indemnify and hold harmless Purchaser against any loss, liability, claim, damage, cost or expense, including attorneys’ fees (collectively the “Damages”), resulting from or arising out of any of the following:

(d) Any obligation, debt or liability of Seller, direct or contingent, known or unknown, which arose, existed or accrued on or prior to the date of Closing, to the extent not expressly assumed herein by Purchaser^]

(Trinity pis. Ex, 67 at TRINGRNL032346-47; T.T. 4/23/16 (ECF No. 342) at 101.) The indemnity of seller clause expired three years after the date of the purchase and sale agreement. (T.T. 4/23/16 (ECF No. 342) at 101.)

FOF 57. Section 9.03 of the purchase and sale agreement, entitled “Indemnity for Certain Laws” (the “indemnity clause”), provided,' among other things, that:

It is the intention of the parties that liability under this Section for any condition that is caused by the acts of Seller or 'its predecessors in title to the assets prior to the date of the Closing and by the acts of Purchase or its successors in title to the assets after the date of Closing shall be allocated between the parties in a just manner taking into account degree of fault, period of violation and other relevant factors.

(Trinity pis. Ex. 67 at TRINGRNL032350; T.T. 4/23/15. (ECF No. 342) at 92.) The indemnity clause was frequently used by Ampco when it sold its assets, i.e., it was used “in more deals than not.” (T.T. 4/23/15 (ECF No. 342) at 92.) Hoover explained the import of the indemnity clause as follows:

Because the purchaser of the business was going to conduct the same operation as we conducted, as Greenville Steel Car Company conducted prior to the date of close, you had to work in a mechanism where if you found environmental contamination that could only be caused by us prior to close, we would take care of it and indemnify the buyer.

If environmental contamination was found that could be shown that purchaser caused the environmental contamination after close, they would indemnify us. If it was — based on reading, this paragraph,- if it was contamination caused by both buyer and seller, you had to determine an equitable means to share the cost of that contamination.

So if it was all on Ampeo’s watch or Greenlease’s watch, it was Greenlease’s. If it was all on Trinity’s watch, it would have been Trinity’s; and if it spanned both, it would have been allocated between the two.

(T.T. 4/23/15 (ECF No. 342) at 92-93.)

FOF 58. Section 9.04 of the purchase and sale agreement, entitled “Survival” (the “survival clause”), provided:

Survival. Each of the foregoing indemnities shall survive and continue in force after the -transfer of the Subject Assets to Purchaser for a period ending on the third anniversary of the date of the Closing; provided, however, that (i) the foregoing limitation shall not apply to any Circumstance for which the party seeking indemnification has given notice to the Indemnifying Party pursuant to Section 9.05 prior to the third anniversary of the date of the Closing and (if) the indemnification referred to in Section 9.01(c) hereof shall survive until the applicable statutes of limitations shall expire.

(Trinity pis. Ex. 67 at TRINGRNL032350 (emphasis in original); T.T. 4/23/15 (ECF No. 342) at 92.) Hoover explained the import of the survival clause as follows:

It was very common in these - deals; and it was the case in this deal, that you picked a period of time for the buyer of the property to find something. And the indemnities usually lasted for two, three, four years, whatever the parties negotiated, in this case three years.

(T.T. 4/23/15 (ECF No. 342) at 93.) Hoover explained that — based upon the survival clause — if the Trinity plaintiffs discovered a liability attributable to Greenlease four, five, or twenty years after the -dosing, Greenlease “would not have an indemnification obligation to the buyer of the property.” (Id. at 93-94.)

Greenlease Assets Following the Sale of the North Plant to Trinity

FOF 59. Greenlease did not have any employees or operations after it sold the North Plant to Trinity Industries, Inc. (T.T. 4/23/15 (ECF No. 342) at 94.) Green-lease at the time of trial did not have any employees. (Id.)

FOF 60. Greenlease’s assets at the end of 1987 totaled $51,016,009. (Greenlease Ex. G at GHC0005963; T.T. 4/23/15 (ECF No. 342) at 93.)

FOF 61. Greenlease’s assets at the end of 1988 totaled $48,125,380. (Greenlease Ex. G at GHC0005963; T.T. 4/23/15 (ECF No. 342) at 93.)

FOF 62. Greenlease’s assets at the end of 1989 totaled $14,396,842. (Greenlease Ex. G at GHC0005963; T.T. 4/23/15 (ECF No. 342) at 93.)

FOF 63. Greenlease’s assets at the end of 1990 totaled $658,594. (Greenlease Ex. G at GHC0005963; T.T. 4/23/15 (ECF No. 342) at 93.)

FOF 64. Hoover explained that it was very common for Ampco that once an indemnification period for one of its deals was over, it “would clean up the balance sheet post the indemnification period and clean it up and dividend out however you get the remaining items on the balance sheet out of that entity.” (T.T. 4/23/15 (ECF No. 342) at 95.)

FOF 65. In 2008, Greenlease had an environmental reserve of $150,000. (Green-lease Ex. G at GHC0005963; T.T. 4/23/15 (ECF No. 342) at 95.) In 2009, Greenlease had an environmental reserve of $282,500. (Greenlease Ex. G at GHC0005963; T.T. 4/23/15 (ECF No. 342) at 95.) Hoover put the environmental reserve “on the books when [Greenlease and Ampco] were sued by Trinity.” (T.T. 4/23/15 (ECF No. 342) at 95.)

FOF 66. As of April 23, 2015, there was $92,000 in assets left in Greenlease’s estate. (T.T. 4/23/15 (ECF No. 342) at 95-96.) Greenlease used a portion of the $650,089 it recorded in 1990 to pay for legal fees accrued because of this lawsuit. (Id. at 96.)

FOF 67. Ampco and Greenlease “put all relevant insurance carriers on notice” with respect to this lawsuit. (T.T. 4/23/15 (ECF No. 342) at 96.) Two relevant insurance carriers “reserved their rights,” which means they “[m]ade note of the claim and reserved their rights to rule on coverage at a later point in time once more information [is] known.” (Id. at 96, 126.) None of the relevant insurance carriers agreed to provide coverage to Greenlease with respect to this lawsuit. (Id at 96.) One or two of the relevant insurance carriers offered Greenlease a defense in this case. (Id. at 127.) Hoover believed Greenlease accepted the defense offered to them. (Id.) Neither Ampco nor Greenlease were reimbursed for its legal costs with respect to this case. (Id.)

FOF 68. Hoover does not have knowledge about the total face value of any of Greenlease’s relevant insurance policies with respect to this case. (T.T. 4/23/15 (ECF No. 342) at 129.)

FOF 69. Ampco had attorneys “who have worked with [Hoover] to try to obtain the [insurance] coverage that [Greenlease] seek[s] with respect to this [case].” (T.T. 4/23/15 (ECF No. 342) at 116,133.) Hoover testified that with respect to investigating possible insurance coverage for Greenlease related to this case, she took the following actions:

I did a document search. I provided my counsel with all evidence of coverage policies and anecdotal evidence and turned that over to them. They as part of their services to me handled that aspect of this litigation.

(T.T. 4/23/15 (ECF No. 342) at 136.)

Trinity Industries, Inc.’s Operations at the North Plant

FOF 70. After Trinity Industries, Inc. acquired the North Plant from Greenlease in 1986, it manufactured railcars at the property, which included, among other things, cleaning the railcars, painting the railcars, and using solvents. (ECF No. 328 at 8, 13-14; ECF No. 333 at 21-22; ECF No. 330 at 21; Trinity pis. Ex. 1 ¶ E.)

FOF 71. Fell continued to work at the North Plant once it was acquired by Trinity Industries, Inc. .(T.T. 4/20/15 (ECF No. 340) -at 31-32.) Fell worked at the North Plant for Trinity Industries, Inc. until 1999. (Id.)

FOF 72. There was a brief period of time during Trinity Industries, Inc.’s operation of the North Plant that Trinity Industries, Inc. engaged in painting operations on dirt floors, i.e., prior to Trinity Industries, Inc. concreting the floors in the paint shops. (T.T. 4/20/15 (ECF No. 340) at 40.) During that time, spent solvents were allowed to run down the sides of the rail-cars and onto the dirt floors. (ECF No. 326 at 27,29.)

FOF 73. Trinity Industries, Inc. concreted the floors at the North Plant where the painting and shot blasting occurred within the first two years of operating the North Plant, and installed three paint booths. (T.T. 4/20/15 (ECF No. 340) at 32, 34, 36-37, 60; T.T. 4/21/2015 (ECF No. 341) at 74.)

FOF 74. Fell explained Trinity Industries, Inc.’s use of tar paper as follows:

Whenever an order started, before we done anything, each position, you rolled tar paper down on the floor — on the concrete on your position where you were working. And then at the end of that order, you rolled that all up and put it in a dumpster.

(T.T. 4/20/15 (ECF No. 340) at 32.) The purpose of putting down tar paper was to keep the paint off the concrete floor. (Id.)

FOF 75. The three paint booths installed or improved by the Trinity Industries, Inc. at the North Plant were fully enclosed booths. (T.T. 4/20/2015 (ECF No. 316) at 60-61; T.T. 4/21/2015 (ECF No. 341) at 74.) The floors and walls of the booths were protected from óverspray build-up. (T.T. 4/20/2015 (ECF'No. 316) at 61.) With respect to the floors of the paint- booths installed or improved by Trinity Industries, Inc., tarpaper, or roofing paper was used on the floors, of .the paint booths. When overspray occurred within a paint booth and built up on the tarpaper or roofing paper, the tarpaper or roofing paper was rolled up and disposed of in a landfill. (T.T. 4/20/2015 (ECF No. 316) at 60.) With respect to the walls of the paint booths installed or improved by Trinity Industries, Inc., a peel coat was sprayed onto the sides of the paint booths. Once overspray accrued onto the sides of the paint booth, the peel coat was easily removed from the inside of the paint booth. (Id. at 61.)

FOF 76. Trinity Industries, Inc. installed and improved the paint booths at the North Plant, used tarpaper or roofing paper on the floors, and sprayed peel coat on the walls to control the process and limit emissions to the environment. (T.T. 4/20/2015 (ECF No. 316) at 61.)

FOF 77. Fell testified that Trinity Industries, Inc. made the North Plant a safer place to work. (T.T. 4/20/15 (ECF No. 340) at 32.) Trinity Industries, Inc. provided Fell with a hard hat and a face shield. (Id. at 32-33.)

FOF 78. Trinity Industries, Inc. performed touch-up work on the railcars in an outbound area on dirt floors. (ECF 326 at 16.) The touch-up work was performed mostly with a paint brush, but occasionally or “very little” with a spray gun. (Id.)

FOF 79. After Trinity Industries, Inc. installed concrete floors in the paint shops, cleaning solvents were collected in a trough at ground level that tunneled the solvents into the dirt. (ECF No. 333 at 16-17,20-21.)

FOF 80. Open drums containing hazardous . waste including spent solvents and paint waste were stored in the open air and allowed to overflow due to the accumulation of rain water. (ECF No. 333 at 17.)

FOF 81. With respect to the shot blasting process, which occurred in abrasive blast booths, Trinity Industries; Inc. used a recovery system on the floor of the abrasive blast booths that collected the BBs, which could be reused. (T.T. 4/20/2015 (ECF No. 316) at 62.) There was a sizing mechanism that took material large enough to be reused and put it into a hopper. Any material that was not large enough to be reused went into a drum for disposal to be disposed of at licensed treatment and disposal facilities. (Idv at 62-63.) Dust created by this process went through a dust collection system that was drummed up and disposed. (Id. at 63.) These processes proved to be an effective method to control air emission and hazardous waste generation. (Id.)

FOF 82. By December 22, 1987, Trinity Industries, Inc. began implementing a policy, pursuant to which Trinity Industries, Inc. stopped using metal-containing paints at the North Plant. (T.T. 4/20/2015 (ECF No. 316) at 65-66.) .

FOF 83. In 1994, eight years after Trinity Industries, Inc. purchased the North Plant, it removed the old Erie shop, which still had dirt floors at that time.. (T.T. 4/20/15 (ECF No. 340) at 49.) Trinity Industries, Inc. excavated the dirt floors from the old Erie shop and transported the excavated soil and demolition debris to a separate plant that it owned called the South Plant. Trinity Industries, Inc. dumped the excavated soils and demolition debris from the old Erie paint shop onto a baseball field at the South Plant. (Id. at 49.)

FOF 84. Beginning in the 1900s, it was customary practice to use asbestos-containing materials for building purposes. (T.T. 4/24/15 (ECF No. 343) at 16.) There were multiple structures at the North Plant at the time Greenlease acquired the North Plant. (Id, at 17-18.)

FOF 85. In or about 1994, the Trinity Industries, Inc. erected a new paint shop. (T.T. 4/24/15 (ECF No. 343) at 16.) In the 1990s, it was not customary practice to use asbestos-containing building materials. (|d. at 17.)

FOF 86. On May 31, 2000, a “Title V” hearing with respect to air'permits and air emissions was held in Meadville, Pennsylvania, during which Trinity Industries, Inc.’s emissions of volatile organic compounds (“VOCs”) was discussed. (T.T. 4/20/15 (ECF No. 340) at 58, 76-77; Green-lease Ex. BB.) Notes from that meeting by the Trinity Industries, Inc.’s environmental engineer, Dennis Lencioni (“Len-cioni”), reflect: “Recent meeting w/ EPA. Trinity is designated as high priority violator.” (T.T. 4/20/15 (ECF No. 340) at 58-59; T.T. 4/20/2015 (ECF No. 316) at 56; Green-lease Ex. BB.)

FOF 87. “Material, safety data sheets” are required by the Occupational Safety and Health Administration (“OSHA”) to describe the occupational risks associated with products. (T.T. 4/20/15. (ECF No. 340) at 59.) Companies keep- material safety-data sheets at their facilities- where products are being used. (Id.) One of the first things an inspector from OSHA will, review are a company’s material safety data sheets. (Id. at 60.) 1

FOF 88. Trinity Industries, Inc. had material safety data sheets for the paint products it used at the North Plant. (T.T. 4/20/15 (ECF No. 340) at .60.) Trinity Industries, Inc. had material safety data sheets dated March 16, 1989, and September 28, 1995, for a paint, named “safety yellow,” which is maintenance paint, (Id. at 61.) Leneioni described safety paint as follows:

It’s a coating-that’s used for like safety railings, something that you want to draw attention to. But I would note that it’s applied using brushes and rollers. It’s not a coating that’s sprayed on.

(T.T. 4/20/15 (ECF No. 340) at 61.) The material safety data sheet dated March 16, 1989, provided that the lead concentration for the safety yellow páint was “14.66 weight percent,”- which was higher than OSHA’s airborne lead standard. (Id. at 61, 73.) The material safety data sheet dated September 29,1995, provided that the lead concentration for the safety yellow paint was “10% to 15%,” which was higher than OSHA’s airborne lead standard. (Id. at-61, 73.)

FOF 89. Leneioni testified that safety yellow is.not applied with a spray gun because “you’re trying to apply it to a very specific part.- You don’t want to- overspray and get on other things that you don’t want painted.” (T.T. 4/20/15 (ECF No. 340) at 74.)

FOF 90. During cross-examination, Greenlease’s counsel asked Leneioni: “[a]nd [safety yellow] is a paint product that Trinity Industries, Inc. had at the North Plant?” (T.T. 4/20/15 (ECF No. 340) at 61.) Leneioni responded: “I don’t know that. I know we had the [material safety data sheet] for it.” (Id.) During redirect examination, the Trinity plaintiffs’ counsel asked Leneioni: “Have you ever seen [safety yellow] applied or known of it to be used at Trinity?” (T.T. 4/20/15 (ECF No. 340) at 74.) Leneioni- replied: ‘Yes. I’ve seen it applied. And in all instances, it was applied with brushes and rollers.” (Id.) Leneioni, therefore, contradicted his earlier testimony that he did not know whether, safety yellow was used at the North Plant by Trinity Industries, Inc.

FOF 91. In 2000, Trinity Industries, Inc. ceased'operations at the North Plant. (T.T. 4/20/15 (ECF No. 340) at 92.) . .

’ FOF 92. Trinity Industries, Inc. owned the North Plant until approximately 2004 when it'sold the North Plant to William Marstellar (“Marstellar”) and his company, Commerce Park of Greenville, Inc. (“Commerce Park”). (Greenlease Ex. E ¶ 5.)

Trinity Industries, Inc.’s Sale of the North Plant to Marstellar and Commerce Park

FOF 93. When Trinity Industries, Inc. sold the North Plant to Marstellar and Commerce Park in 2004, a phase II environmental assessment was not done. (T.T. 4/20/15 (ECF No, 340) at 43.) A. phase II environmental assessment is a soil sampling to .determine whether there is contamination at a property; that assessment is commonly used by buyers in sales transactions for commercial properties on which industrial processes are performed. (Id. at 42.) Trinity Industries, Inc. prohibited Marstellar from performing a phase II environmental assessment without Trinity Industries, Inc.’s consent. (Id.- at 45; Greenlease Ex. K, ¶ 22.) .

FOF 94. Marstellar intended to use the North Plant as an industrial park. (T.T. 4/20/2015 (ECF No. 316) at 67; T.T. 4/23/2015 (ECF No. 342) at 45; Greenlease Ex. E.) Because Marstellar could not find renters for. the industrial park, he removed the buildings from the North Plant to recover the value of the scrap from those buildings. (Id.)

FOF 95. Marstellar, prior to demolishing the buildings at the North Plant, did “an ACM on asbestos-containing material removal action” and some amount of asbestos was removed from the North Plant. (T.T. 4/24/15 (ECF No. 343) at 15.)

Criminal Proceedings Against the Trinity plaintiffs and the Consent Order and Agreement

FOF 96. In June 2004, the Environmental Crimes Section (“ECS”) of the Pennsylvania Office of Attorney General’s Bureau of Criminal Investigations “commenced an investigation into waste disposal activities that occurred at the North Plant of Trinity Industries, Inc.” (Greenlease Ex. L. at TRIN GRNL035095.)

FOF 97. William F. Brown (“Brown”), a special agent with the ECS, interviewed former employees of Trinity Industriesj Inc. as a part of the criminal investigation with respect to the North Plant. (Green-lease Ex. J at TRINGRNL035241-42 and Ex. L at TRINGRNL035096-035101.)

FOF 98. On March 24, 2006, an investigative grand jury recommended that criminal proceedings be instituted against Trinity Industries, Inc. (Greenlease Ex. L.) On March 31, 2006, Brown filed an eleven-count criminal complaint against Trinity Industries, Inc. for alleged violations of Pennsylvania’s Solid Waste Management Act. (Greenlease Ex. I; Trinity pis. Ex. 1 ¶ J.)

FOF 99. The Commonwealth of Pennsylvania permitted Trinity Industries Rail Car Corporation, a wholly-owned subsidiary of Trinity Industries, Inc., to plead no contest to the charges against Trinity Industries, Inc. in the criminal complaint. (ECF No. 334 at 3.)

FOF 100. On December 21, 2006, Trinity Industries, Inc. was sentenced by the Court of Common Pleas of Mercer County, Pennsylvania, and ordered: (a) to pay a $200,000 fine; (b) to make a $50,000 contribution to a non-profit organization to be selected by the Attorney General; (c) to reimburse the PaDEP for its investigative costs of $54,502.55; and (d) to “remediate all environmental contamination at the Trinity North and South plants in accordance with the consent order and agreement-entered into with the [PaDEP] dated December 21,• 2006.” (Greenlease Ex. M.)

FOF 101. Prior to or at the time of sentencing, the' Trinity plaintiffs paid $54,502.55 to the PaDEP. (T.T. 4/20/2015 (ECF' No.' 316) at 98; Trinity plaintiffs Exi 2 ¶ 5.) The Trinity plaintiffs are seeking to recover that amount in this litigation as a response cost. (Id.) Lencioni testified that the Trinity plaintiffs were not given a choice about whether or not to pay $54,502.55 to the PaDEP. (Id.)

FOF 102. The consent .order and agreement dated December 21, 2006 (the “consent order”), provided that investigation of the North Plant was “necessary to fully identify ,the nature and extent of the release of hazardous substances at and/or potentially migrating to the North Plant...and to determine the Response Actions necessary to remediate the hazardous substances at and/or potentially migrating from [the North] Plant.” (Trinity pis. Ex. 1 ¶ I.)

FOF 103. Pursuant to the consent order, Trinity Industries, Inc. was required to investigate the North Plant to determine all impacts that may be on the site. (T.T. 4/20/15 (ECF No. 340) at 105; Trinity plaintiffs Ex. 70 at TRINGRNL050670.) In other words, Trinity Industries, Inc.’s investigation of the North Plant was not limited to any certain timeframe, e.g., the timeframe during which Trinity Industries, Inc. owned and operated the North Plant. (T.T. 4/20/15 (EOF No. 340) at 105; Trinity plaintiffs Ex. 70 at TRINGRNL050670.)

FOF 104. Pursuant to the consent order, Trinity Industries, Inc. was required to comply with the Land Recycling and Environmental Remediation ’Standards Act, 35 Pa. Cons. Stat. § 6026.101 et seq., which is known as “Act 2.” (T.T. 4/23/15 (EOF No. 342) at 63.)

FOF 105. Pursuant to Act 2, an entity performing a cleanup of a contaminated site, such as the North Plant, may utilize ■ one of three “environmental standards when conducting remediation activities.” 35 Pa. Cons. Stat. § 6026.301(a). The three environmental standards set forth in Act 2 are as follows:

(1) a background standard which achieves background as further specified in section 302;

(2) a Statewide health standard adopted by the Environmental Quality Board which achieves a uniform Statewide health-based level so that any substantial present or probable -future risk to human health and the environment is eliminated as specified in section 303; or

(3) a site-specific standard which achieves remediation levels based on a site-specific risk assessment so that any substantial present or probable future risk to human health and the environment is eliminated or reduced to protective levels based upon the present or currently planned future use of the property comprising the site as specified in section 304.

(Id.)

FOF 106. Act 2 does not have a mechanism for controlling costs; in other words, an entity may-use one of the standards set forth in Act 2 even ’ though it may be cheaper to perform a cleanup under one of the other standards set forth in Act 2. (T.T. 4/24/15 (EOF No. 343) at 54.) The PaDEP does not review whether an entity conducting a cleanup of a contaminated “spend[s] more [money] than is necessary.” (Id.) An entity conducting a cleanup of a contaminated site can spend more money than is necessary under Act 2 and receive approval from the PaDEP. (Id.)

FOF 107. The consent order defined “Response Actions” as follows:

[A]ny and all of the actions taken or to be taken by the Department, Trinity, and/or any other responsible, persons under the direction of the Department, relating to and addressing the release and threatened release of any hazardous substances at the North Plant and South Plant. Response Actions' include, but are not limited to: investigations of responsible persons; investigations of environmental conditions at the North Plant and South Plant; investigations of contaminated groundwater,, if any, at an potentially migrating from the Plants, including groundwater (if any) that has migrated and contaminated drinking water; actions to respond to the release and threated release of any hazardous substance at and/or potentially migrating from the North Plant and South Plant; and maintenance of those actions.

(Trinity plaintiffs Ex. 1 at 5-6.)

• FOF 108. The consent, order defines “Response Costs” as follows:

[A]ll of the reasonable and necessary direct and indirect costs, that the Department, Trinity, and/or any person acting on behalf of Trinity under the direction of the Department, have incurred and will incur relating to and addressing the Response Actions at the North Plant and South Plant. Response Costs include, -but are.not limited to: reasonable and necessary employees costs, attorneys’ fees, contractor costs, sampling costs, costs of investigation, treatment, and/or replacement of contaminated'drinking water, if any, laboratory costs, oversight costs, and accrued interest.

(Trinity plaintiffs Ex. 1 at 6.)

FOF 109. Every “significant step” taken by Trinity Industries, Inc. at the North Plant with respect to the cleanup and the consent agreement required approval by the PaDEP. (T.T. 4/20/2015 (ECF. No. 316) at 77; Trinity pis,. Ex. 1 at 7 ¶ 6a.)

FOF 110. The .consent order required Trinity Industries, Inc. to submit, among other things: an investigation work plan, a supplemental investigation work plan, a notice of intent to remediate, a remedial investigation report,- a proposed cleanup work plan, a supplemental cleanup work plan, and a final report. (Trinity pis. Ex. 1 ¶ 7.) Trinity Industries, Inc. was required to submit each of the foregoing documents to the PaDEP for approval. (Id. it 17.) The PaDEP upon review of the documents submitted by Trinity Industries, Inc;, could “approve, approve modifications, or disapprove the document or portion' thereof,” (Id.)

FOF 111. The PaDEP sent Trinity Industries, Inc. a letter dated November 19, 2007, approving the revised remedial investigation work plan dated November 17, 2007. (Trinity plaintiffs Ex. 17’ ’ at TRINGRNL 050682.)

FOF 112. The Trinity plaintiffs mailed Greenlease a “pre-suit notice” dated June 13, 2008, which described the contamination at the North Plant and Greenlease’s involvement in causing that contamination. (Trinity pis. Ex. 79.)

FOF 113. The PaDEP sent Trinity Industries, Inc. a letter dated December 5, 2011, approving with modifications the revised remedial investigation report for the North Plant. (Trinity plaintiffs Ex. 17 at TRINGRNL058354.) “Approval with modifications” means the PaDEP approved the document it reviewed and work at the North Plant could proceed, but the PaDEP identified certain matters in the document it reviewed that needed to be modified. (T.T. (ECF No. 341) at 76.) Trinity Industries, Inc. complied with the PaDEP modification requests. (Id.)

FOF 114. The PaDEP sent Trinity Industries, Inc. a letter dated March 13,-2012, approving with modifications the cleanup work plan. (Trinity plaintiffs Ex. 17 at TRINGRNL067558.) Trinity Industries, Inc. complied with the modification requests made' by the PaDEP. (T.T. (ECF No. 341) at 77.)

FOF 115. The PaDEP sent Trinity Industries, Inc. a letter dated March 28, 2013, approving the cleanup plan for the North Plant. (Trinity pis. Ex. 17 at TRIN GRNL068014.)

FOF 116. The consent order provided that Trinity Industries, Inc. “shall use reasonable efforts to promptly obtain and maintain access for itself'and for the [Pa-DEP] ., to the North Plant... as necessary to meet Trinity’s obligations under this [consent order].” (Trinity pis. Ex. 1 ¶ 8.)

FOF 117. The Trinity plaintiffs did not voluntarily cleanup the North Plant; rather, they .performed the cleanup pursuant to the consent order. (T.T. 4/20/15 (ECF No. 340) at 41.)

Trinity Industries, Inc. Purchased the North Plant from Marstellar

FOF 118. At some point after entering into the consent order, Trinity Industries, Inc. purchased the North Plant from Mar-stellar and Commerce Park. (T.T. 4/20/15 (ECF No. 340) at 92.)

FOF 119. Trinity Industries, Inc. or one of its wholly-owned subsidiaries, i.e., Trinity Industries Rail Car Corporation or Waldorf Properties, Inc., is the current owner of the North Plant. (ECF No. 334 at 2-3.)

FOF 120. When Trinity Industries, Inc. purchased the North Plant from Marstel-lar and Commerce Park, most, if not* all, the buildings that had been 'located on the property had been demolished. (T.T. 4/20/15 (ECF No. 340) at 75-76, 92-93.) The buildings were demolished by .Mar-stellar and Commerce Park in order to remove the scrap steel from the property and sell it for profit. (Id. at 76.)

FOF 121. The following photograph of the North Plant depicts the North Plant at the time Trinity Industries, Inc. purchased the North Plant from Marstellar and Commerce Park. (T.T. 4/20/15 (ECF No. 340) at 90.)

(Trinity pis. Ex. 24.)

FOF 122. Lubricating fluid from hydraulic presses was left at the North Plant by Marsteller and Commerce Park, (T.T. 4/23/15 (ECF No. 342) at 48.) Some of the waste left at the North Plant by Marsteller and Commerce Park was in an underground vault. The vault was approximately two-to-three feet wide and four-feet deep and contained mineral oil, i.e., waste oil and storm water mixed together. (Id. T.T. 4/24/15 (ECF No. 343) at 19.)

F.OF 123. In 2007, the Trinity plaintiffs sued Marstellar and Commerce Park. (T.T. 4/23/15 (ECF No. 342) at 46; Greenlease Ex. E.) In the first amended complaint in that lawsuit, the Trinity plaintiffs alleged that Marstellar “discharged, deposited, dumped, disposed of, released, stored and placed hazardous substances, solid wastes and hazardous wastes, including, but not limited to, asbestos and other waste on the property.” (T.T. 4/23/15 (ECF No. 342) at 46; Greenlease Ex. E ¶ 5.) The Trinity plaintiffs sought from Marstellar and Commerce Park, among other things:

a declaration that the Defendants are responsible for the investigation,- monitoring, reporting, cleanup, removal, response, and remediation costs for the asbestos, xylenes, naphthalene, 1,2,4-tri-methylbenzene, and other waste Defendants discharged, deposited, 'dumped, disposed of, released, stored, and placed on the Property or for which Defendants other assumed liability.

(Greenlease Ex. K ¶ 6; T.T. 4/23/15 (ECF No. 342) at 47.)

The Trinity plaintiffs> Retention of Golder

FOF 124. The Trinity plaintiffs selected Golder Associates, Inc. (“Golder”) and Gormley to perform, direct, and supervise the cleanup of the North Plant, pursuant to the consent order. (T.T. 4/20/15 (ECF No. 316) af 75-76; Trinity pis. Ex. 1 ¶ 4.) The PaDEP approved the Trinity plaintiffs’ selection of Golder and Gormley to perform the cleanup of the North Plant. (Trinity pis. Ex. 1 ¶ 4.)

FOF 125. The Trinity plaintiffs’ relationship with Golder began at least ten years ago. (T.T. 4/20/15 (ECF No. 340) at 67.) Golder has worked on about six projects for the Trinity plaintiffs. (Id. at 68.) The Trinity plaintiffs did not utilize a competitive bidding process for the consulting work performed by Golder at the North Plant. (Id.) The Trinity plaintiffs do not utilize a specific standard with respect to the number of bids that must be received for work or direct the manner in which those bids are received. (Id. at 77.)

FOF 126. The Trinity plaintiffs worked with Golder in the past on response actions at other industrial sites. (T.T. 4/20/2015 (ECF No. 316) at 75.) According to Len-cioni, Golder previously did excellent work for the Trinity plaintiffs and is a well-known compány with a “tremendous safety record.” (Id. at 76.) The Trinity plaintiffs determined Golder had the best team to work on the cleanup at the North Plant. (Id.)

FOF 127. The North Plant was a “high profilej high visibility location.” (T.T. 4/20/2015 (ECF No. 316) at 76.) The contamination at the North Plant received press. (Id.) The North Plant is situated in the middle of the town of Greenville, Pennsylvania, and is surrounded on three sides by residences. (Id. at 76; T.T. 4/20/15 (ECF No. 340) at 75.) The Trinity plaintiffs were concerned about the costs associated with “any missteps by a contractor with regard to the work that was done onsite.” (Id.) There was a time limit and urgency about getting a consultant with respect to the cleanup at the North Plant to satisfy the PaDEP and the deadlines set in the consent agreement. (Id. at 76-77.)

FOF 128. The cleanup at the North Plant was “high profile” in Greenville, Pennsylvania, because “it was a source of jobs and revenue for the community as well as it sits in the heart of the community.” (T.T. 4/20/15 (ECF No. 340) at 75.) The residences surrounding the North Plant are elevated so they look down upon the North Plant. (Id.)

FOF 129. The Trinity plaintiffs negotiated with Golder to try to control costs or pay only reasonable costs. (T.T. 4/20/2015 (ECF No. 316) at 78-79.) The Trinity plaintiffs and Golder agreed to an open book billing process, which “for a construction project is a method for the contractor and the owner or client to work together and manage risk on a site.” (Id.; T.T. 4/23/15 (ECF No. 342) at 21.) Lencioni explained the open book concept as follows:

[T]he effect of that is.. .you are really only paying for what yoú actually have to address. If for some reason there’s an area that has less material than was originally expected, you pay less. You just pay on what the actual volumes were that were remediated.

(T.T. 4/20/2015 (ECF No. 316) at 79.) Gormley explained the open book billing process as follows:

In general contracting procedures for a construction project, there are design documents and bid documents that a contractor will use for bidding purposes. And he will figure in some percentage for — to account for any risk that woul