Full opinion text
ORDER ON BENCH TRIAL ROBERT W. PRATT, Judge The United States of America (the “Government”) filed this action against Dico, Inc. (“Dico”) and its corporate affiliate Titan Tire Corporation (“Titan Tire”), (collectively “Defendants”) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq. Clerk’s No. 1. After awarding summary judgment to the Government as to each of its claims, the Court held a bench trial on civil penalties and punitive damages from December 2 through December 5, 2013. On appeal, the United States Court of Appeals for the Eighth Circuit affirmed in part and reversed in part the prior rulings of this Court, remanding the case for a trial on the merits on certain issues with respect' to which it concluded genuine disputes as to material facts precluded summary judgment. On remand, the Court held a bench -trial on the merits us to those issues from April 3 through April 6, 2017. The parties submitted proposed findings of fact and conclusions of law on May 5, 2017. Clerk’s Nos. 347, 348. The case is fully submitted. I. PROCEDURAL HISTORY This action concerns the sale of several buildings by Dico through Titan Tire to Southern Iowa Mechanical, L.L.C. (“SIM”). United States v. Dico, Inc., 808 F.3d 342, 345 (8th Cir. 2015). In March 1994, years prior to this sale, the presence of hazardous polychlorinated biphenyls (“PCBs”) was discovered in several buildings on property owned by Dico located in Des Moines, Iowa (“the Dico site”). Id. Relying on its authority to issue “such orders as may be necessary to protect public health and welfare and the environment” under 42 U.S.C. § 9606(a) of CERCLA, the Environmental Protection Agency (“EPA”) initiated a removal action and issued a unilateral administrative order (“the 1994 Order”) that required Dico to address the contamination by, among other things, repairing and encapsulating all the remaining insulation in the buildings to prevent the further release of PCBs into the environment. Dico, 808 F.3d at 345. The 1994 Order imposed continuing obligations on Dico concerning the affected buildings. Id. at 352-53. In particular, paragraph 31 of the order required Dico to submit and implement an operation and maintenance plan addressing “the actions necessary to ensure the protectiveness and integrity of the removal action,” including the maintenance of all interior surface sealing and the encapsulation of all building insulation, and to complete “appropriate reporting, including, at a minimum, submittal of a written report on an annual basis.” Id. at 352. And paragraph 59 of the order required Dico to “immediately take all appropriate action” and “immediately notify” the EPA should any “change in site conditions” cause or threaten to cause the further release of hazardous substances. Id. at 353. In 2007, Titan Tire entered into three transactions with SIM on behalf of Dico involving several buildings, - each of which was subject to the 1994 Order with the exception of the northern end of a building known as the Production Building. Id. at 345-46. After purchasing the buildings, SIM dismantled them and disposed of the materials used to construct them other than the steel beams they contained, which were relocated to its property in Ottumwa, Iowa (“the SIM site”). Id. at 346. In September 2007, the EPA learned that buildings subject to the 1994 Order had been dismantled and sold. Id. The EPA subsequently traced the steel beams to the SIM site and discovered PCBs in insulation still attached to the beams and in the surrounding soil. Id. Negotiations to reach an administrative settlement regarding the cleanup of the SIM site ensued but were ultimately unsuccessful, and the EPA initiated a removal action at the SIM site, issuing a new unilateral administrative order requiring Dico and Titan Tire to work with an environmental contractor to retrieve and dispose of insulation there (“the 2008 Order”). Ex. 80; see also Clerk’s No. 128 at 12. As a result, more than four tons of insulation were removed from the SIM site, the testing of which revealed the presence of PCBs. Dico, 808 F.3d at 346. In October 2010, the Government filed this suit against Dico and Titan Tire, alleging two distinct violations of CERCLA. Clerk’s No. 1; First, the Government alleged Defendants violated 42 U.S.C. § 9607(a) by arranging- for the disposal of a hazardous substance by means of the sales that led. to the dismantling of buildings subject to the 1994 Order. Id. at 1-2, 8, 11-12, In relation to this “arranger liability” claim,- the Government sought to recover all past and future response costs it incurred in connection with response actions pertaining to the SIM site pursuant to 42 U.S.C. § 9604. Id. at 11-12, 14. Next, the Government alleged Dico violated 42 U.S.C. § 9606(b)(1) by violating the terms and conditions of the 1994 Order. Id. at 9-10, 12-14. In relation to this allegation, the Government sought civil penalties and punitive, damages pursuant 42 U.S.C. § 9607(c)(3) based on the costs it had incurred in responding to the release or threatened release of PCBs at the SIM site. Id. at 12-14. In August 2012, the Court heard oral argument on motions filed by the Government seeking partial summary judgment with respect to Defendants’ liability for arranging for the disposal of a hazardous substance, Dico’s liability for civil penalties and punitive damages, and the recoverability of the Government’s response costs related to the SIM site removal action. See Clerk’s Nos. 79, 93, 97, 98. Following the hearing and extensive briefing by the parties, the Court entered two .separate orders on the three pending motions. Clerk’s Nos. 119,128; see also Clerk’s Nos. 61, 62, 68, 68, 69, 70, 74, 75, 78, 94, 95, 96, 122, 123,124-1, 127. First, on September 24, 2012, the Court granted partial summary judgment to the Government on its arranger liability claim, concluding Defendants had intentionally arranged for the disposal of PCBs by selling the PCB-contaminated buildings to SIM. Clerk’s No. 119 at 14-40. Months later, on March 6, 2013, the Court granted partial summary jhdgment to the Government on the question of whether Dico had violated the 1994 Order, concluding Dico necessarily did so by arranging for the demolition of the buildings subject thereto and by failing to immediately notify the EPA of the resulting change in conditions at the Dico site. Clerk’s No. 128 at 37, 39, 43. The Court further concluded Dico could be held liable for both civil penalties and punitive damages because it lacked sufficient cause to violate the order. Id. at 30-31, 40-42. Pursuant to its ruling on arranger liability, the Court ruled Defen-r dants were liable for all response costs the Government had incurred or would incur resulting from the SIM site reipoval action. Id. at 43. But the Court concluded a bench trial was necessary to determine “the amount, if any, of civil penalties and/or punitive damages to be assessed” against Dico based on its violations of the 1994 Order. Id. The Court held the bench trial on civil penalties .and punitive damages on December 2 through December 5, 2013. Clerk’s No. 198 at 2; see Clerk’s Nos. 192, 193, 194. Following the trial, the Court issued an order directing the entry of a judgment holding Defendants jointly and severally liable for. $1,477,787.73 in response costs already incurred and reported in connection with the SIM site on the arranger liability claim and holding Dico liable for $1,620,000.00 in civil penalties ($10,000 per day for each of the 162 days during which the disassembly of the buildings took place) and $1,477,787.73 in punitive damages (an amount equivalent to the total response costs the EPA had already incurred and reported in connection with the SIM site) based on its violations of. the 1994 Order. Clerk’s No. 198 at 14, 28-31. .The Court further ordered the entry of.a declaration stating. Defendants would be liable for unreported and future response costs incurred in connection with the SIM site removal action and ordered the Government be allowed to recover its costs incurred in this action. Id. at 30-31. On appeal, the Court of Appeals reversed and vacated the grant of summary judgment to the Government on the question of arranger liability and vacated this Court’s order with respect to response costs “specifically associated with” its finding on that issue. Dico, 808 F.3d at 351. But the Court of Appeals affirmed the grant of summary judgment to the Government on the question of whether Dico had violated the 1994 Order, concluding Dico had necessarily violated paragraphs 31 and 59 of the order by permitting the disassembly of buildings subject thereto and by failing to notify the EPA of the resulting change in conditions at the Dico site. Id. at 352-54, 355. Notwithstanding that affirmance, though the Court of Appeals affirmed the associated award of civil penalties to the Government, it vacated the punitive damages awarded based on the response costs the Government had incurred in connection with the SIM site. Id. In reversing that award, the Court of Appeals emphasized that the conduct amounting to violations of the 1994 Order violations established at summary judgment involved the disassembly of the buildings at the Dico site and the subsequent failure to notify the EPA of this change in conditions, not the sale of the buildings to SIM with the intent to dispose of a hazardous substance. See id. Consequently, the Court of Appeals concluded the costs the Government incurred in connection with the SIM site, which was contaminated as a result of the sale of the buildings to SIM and not merely the disas-sembly of the buildings or failure to notify the EPA, could not serve as the basis for a punitive damages award in connection with the 1994 Order violations with respect to which summary judgment was affirmed. See id. On remand, the Court ruled on competing motions filed by the parties. See generally Clerk’s No. 298. In particular, Defendants filed motions for partial summary judgment with respect to the issues of arranger liability, punitive damages, and the recoverability of attorney fees and other enforcement costs associated with prosecuting the 1994 Order violations. See generally Clerk’s Nos. 235, 236. The Court denied the motions. Clerk’s No. 298 at 9-31, 40-41. In addition, the Government filed a motion to exclude certain issues from trial on remand. See generally Clerk’s No. 246, The Court granted the motion in part, concluding the law of the case doctrine barred the parties from presenting at trial (1) any argument, evidence, opinion, or testimony as to the origin of the PCBs discovered at the SIM site and (2) any argument, evidence, opinion, or testimony for the sole purpose of challenging the consistency with the national contingency plan (“NCP”) of any response costs originating from response actions disclosed prior to the issuance of its March 2013 order. Clerk’s No. 298 at 32-42. Defendants thereafter filed an emergency motion seeking an order compelling the Government to produce communications exchanged between a team of attorneys working for the Department of Justice (“DOJ”) and a witness or, in the alternative, an order prohibiting the Government from offering portions of the witness’s deposition at trial. See generally Clerk’s No. 319. The Court denied the request to compel production of the communications, concluding the work-product privilege shielded them from compelled disclosure because the Government had met its burden of establishing they constituted at least ordinary work product and Defendants had failed to demonstrate a substantial need for their production. Clerk’s No. 337 at 7-25, 29. The Court also denied Defendants’ alternative request that the Government be precluded from offering the witness’s deposition at trial, concluding that, under the totality of the circumstances, Defendants would not be unfairly prejudiced by its admission into evidence. Id. at 25-29. Prior to trial, the parties filed motions in limine. See generally Clerk’s No. 325; see also Clerk’s Nos. 301, 302. The Court admitted subject to Defendants’ objection updated cost summaries submitted by the Government detailing its costs associated with this action. Clerk’s No. 325 at 11-12, 14. But the Court denied Defendants’ request either to exclude all evidence the Government had incurred response costs “as a result of’ Dico violating the 1994 Order or, in the alternative, to permit Dico to present evidence it had sufficient cause for its failure to take prompt removal or remedial action with respect to the SIM site. Id. at 12-14; see also Clerk’s No. 333 at 3-8. The Court held a bench trial on the remaining issues with respect to the merits of the case on April 3 through April 6, 2017. See Clerk’s Nos. 343-346. Testifying live before the Court on behalf of the Government were Mary Peterson, Herbert Duane Jr., and James Hughes. See Clerk’s No. 343. Testifying live on behalf of Defendants were William Campbell, Mel Pins, Brian Mills, Dr. Remy Hennet, and Daniel Hoffman. In addition, the parties jointly designated for admission transcripts of deposition testimony, testimony from the 2013 bench trial, or both given by the following individuals: Mary Peterson, William Campbell, Brian Mills, Daniel Hoffman, Gary Schuster, Donald Brown, James Fechter, Dr. Gazi George, Quintín MacDonald, and Louis Barrentine. Following the trial, the parties submitted proposed findings of fact and conclusions of law. Clerk’s Nos. 347, 348. II. FINDINGS OF FACT Federal Rule of Civil Procedure 52(a) requires that in any action tried without a jury, “the court must find the facts specially, and state its conclusions of law separately.” In performing the related task of determining the credibility of the witnesses and the weight to be accorded their testimony, the Court has taken into consideration the following: the character of the witnesses; their demeanor on the stand, if their testimony was live; their memory, knowledge, education, intelligence, and experience; their opportunity to have seen or heard the things they testified about; their apparent capacity and willingness to truthfully and accurately describe what they observed; whether they said something different at another time and whether any such prior inconsistent statement was made under oath;-: any reasons they might have for testifying a certain way including their relation-to or feeling toward the parties or their interest, if any, in the result of the trial; whether their testimony sounded reasonable; the probability or improbability of their statements; whether or to what extent their testimony was consistent with,, supported by, or contradicted by other. evidence in the case; and all other facts and circumstances given in evidence that tend to show whether they are worthy of belief. Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit, Instruction 3.03 & n.1 & cmt. (2017) (quoting United States v. Merrival, 600 F.2d 717, 719 (8th Cir. 1979); United States v. Phillips, 522 F.2d 388, 391 (8th Cir. 1975); Clark v. United States, 391 F.2d 57, 60 (8th Cir. 1968)). The parties have stipulated to a number of facts. See Order Following Pretrial Conference (Clerk’s No. 316) at 1; Approved Proposed Order on Final Pretrial Conference (Clerk’s No. 317) at 3-9. The . following factual findings include facts to which the parties have stipulated, findings as to the credibility of the witnesses whose testimony the Court admitted at trial, and additional facts the Court finds based on the evidence admitted at trial taken as a whole. The Court finds the following with respect to individuals and business entities who were the subject of admitted testimony: • Defendant Dico is a corporation organized and existing pursuant to the laws of the State of Delaware. -. • Defendant Titan Tire is a corporation organized and existing pursuant to the laws of the State of Illinois. . Titan Tire makes decisions concerning the management of property owned by Dico to the extent directed by the board of directors and officers of Dico. • SIM is a mechanical maintenance contractor located in Ottumwa, Iowa, .that contracts to perform tasks such as industrial maintenance and repair for industrial operating facilities. SIM is not a demolition contractor and is unfamiliar with the sorts of preparations necessary to safely dismantle an industrial building. SIM regularly receives equipment. and material that can be reused, sold, or sold for scrap. during the course of its mechanical contracting jobs. • James “Jim” Hughes is the president and owner of SIM. Hughes has been in the mechanical maintenance contracting business since 1982. Prior to joining SIM in 2001, Hughes owned , his own mechanical maintenance contracting business called Midwest Services. In 2004, Hughes acquired SIM. At that time, Hughes had an extensive .history with Titan Tire, having regularly performed work for them as a mechanical maintenance contractor since at least 1994 with annual billings as high as $900,000. SIM performed work for Titan Tire until January 2009. Hughes testified in person during both bench trials, though the Court notes, that none of his testimony from the 2013 bench trial was designated by the parties for admission in the bench trial on remand. Two affidavits ; containing his sworn statements were admitted in the bench trial on remand. Exs. 1023, 2031. Having had ample opportunity to observe Hughes’s demean- or, the' Court finds he was’a credible witness with firsthand knowledge- of several relevant events whose testimony was direct, forthright, and particularly helpful to the Court in its role as factfinder. • Glenn Curtis was the EPA Remedial ■ Project Manager for the Dico site until approximately 1995, He later served as the Chief of the Iowa/Nebraska. Branch of the Superfund Division of EPA Region 7. Neither party sought the admission of testimony by Curtis into evidence in the bench trial on remand. • Mary Peterson replaced Glenn Curtis as the EPA’s.. Remedial Project Manager for the Dico site around 1995 and continued in that role through 2010. Prior to that time, she was the Assistant Remedial Project Manager for the Dico site. Thereafter, she was promoted to the position of Division Director for the Superfund Division of EPA Region 7. Peterson testified in person during both bench trials and was deposed in connection with this case, and the parties jointly designated portions of her prior sworn testimony for admission into evidence in the bench trial on remand. Her testimony was supported by the voluminous records maintained by the EPA regarding the Dico site. Having had ample op- • portunity to observe Peterson’s demeanor, the Court finds she was a credible and responsive witness with extensive firsthand knowledge of relevant events, whose testimony was clear, detailed,- and helpful to the Court in its role as factfinder. • Maurice “Morry” Taylor is the president of Dico and is familiar with the environmental history of the Dico site. Taylor authorized William Campbell, president of Titan Tire, to sell buildings on the Dico site, including those subject to the 1994 Order. Neither party sought the admission of testimony by Taylor into evidence in the bench trial on remand. • Cheri 'Holley was the general counsel of both Dico and Titan Tire from March 1994 until 2015. She was also the Corporate Secretary of Titan Tire at all times relevant to this case. Along with Morry Taylor, Holley was responsible for managing environmental matters related to the Dico site. In this capacity, Holley assigned responsibilities to and oversaw the work of employees and outside consultants with respect to environmental matters. Employees supervised by Holley to some degree in their performance of duties involving the buildings subject to the 1994 Order include, at a minimum, Dan Buttars, Brian Mills, Thomas Duncan, Dr. Gazi George, Quintín MacDonald, and Louis Bar-rentine. Holley received copies of numerous documents referencing matters pertaining to the 1994 Order and ongoing .remedial requirements involving the buildings subject thereto from both the EPA and individuals- communicating with the EPA on behalf of Dico. Holley oversaw the preparation of reports and regularly reviewed and edited writ- -. ten correspondence sent to the EPA - on behalf of Dico. Neither party . sought the admission of testimony . by Holley into, evidence in the bench trial on remand. • William “Bill” Campbell was the president of Titan- Tire from May 1, 2001, until 2012. He'presently works as a consultant for Titan International and reports to Morry Taylor. As president of Titan Tire, Campbell had responsibilities related to environmental compliance at the Dico - site pursuant to a delegation of authority" from- Taylor. For example, Campbell regularly directed various Titan Tire employees and outside en-viromtiental consultants to perform environmental work at the Dico site. Also pursuant to a delegation of authority from Taylor, Campbell negotiated and authorized the sales of the buildings on the Dico site to SIM. Campbell testified in person during both bench trials and was deposed in connection with this case, and the parties jointly designated portions of his prior sworn testimony for admission into evidence in the bench trial on remand. Having had ample opportunity to observe Campell’s demean- or, the Court finds he was generally not a credible witness. Campbell was often defensive, evasive, and vague in responding to questions posed to him; in some instances, he was outright nonresponsive or perceptibly hostile toward these proceedings. His testimony was internally inconsistent and inconsistent with the testimony of other witnesses. Additionally, his recollection of key events and related explanatory testimony were at times highly implausible given the testimony of other individuals testifying on Defendants’ behalf. • Gary Carlson was the president of Titan Tire prior to Bill Campbell. Neither party sought the admission of testimony by Carlson into evidence in the bench trial on remand. • James “Jim” Fechter was employed by Titan International as a corporate environmental engineer from 1993 to 1998. In this capacity, Fechter provided environmental management services for various Titan International subsidiaries. Fechter was responsible for environmental compliance at the Dico site, including general regulatory compliance, permitting, waste disposal, and waste-water discharge. Fechter left employment with Titan International in 1998. Fechter testified under oath in connection with this case during a deposition taken in March 2012, and the parties jointly designated portions of his deposition testimony for admission into evidence in the bench trial on remand. Particularly considering the content of this testimony in the context of the evidence as a whole and the lack of relationship between Fechter and any party to this action at the time the testimony was given, the Court finds he was generally credible as a witness. Fechter gave detailed, plausible responses to questions posed to him and had a cle'ar recollection of past events of which he had firsthand knowledge. However, Fechter was also direct and forthcoming about the limits of his recollection. • Thomas Duncan became the corporate environmental compliance manager for Titan International when Jim Fechter ended his employment with the company in 1998 and continued in that role until 2001. During that time, Duncan provided environmental management services for Dico at the direction of Cheri Holley. Upon his hiring, Duncan assumed the _ duties Fechter had previously performed with respect to maintenance at the Dico site. Neither party sought the admission of testimony by Duncan into evidence in the bench trial on remand. • Donald “Don” Brown was employed by Dico from 1971 until the early 2000s and served as superintendent of the Dico site during the 1994 removal action. Prom 1994 until several years after he left Dico, Brown was responsible for ensuring maintenance on the Dico buildings was properly performed, including maintenance that was required as part of the operation and maintenance plan implemented in order to comply with the 1994 Order. Brown understood that complying with the operation and maintenance plan was required by the EPA. In December 2002, Brown accompanied EPA contractors on the site inspection for the third five-year review of the remedial actions taken at the Dico site, during which they discussed the requirements of the operation and maintenance plan applicable to the buildings. In July 2003, Brown conducted the annual inspection of the regulated buildings with Dan But-tars. Brown would later be the primary contact for SIM during the negotiation of the 2007 transactions in which SIM purchased the Dico buildings subject to the 1994 Order. Following his retirement from Dico and continuing through .the date of the 2013 bench trial, Brown began working as a part-time consultant for Titan Distribution who consults periodically with Titan Tire and Dico. Brown was deposed and testified in person during the 2013 bench trial conducted in connection with this case, and the parties jointly designated portions of his prior sworn testimony for admission into evidence in the bench trial on remand. Having previously had the opportunity to observe Brown’s demeanor and having carefully considered his testimony in the context of the evidence of the whole — in- particular its inconsistencies with other testimony admitted in this ■ case — the Court finds Brown was only somewhat credible as a witness.Brown’s testimony was at times vague and unhelpful, and his responses to questions regarding key events were often incomplete, imprecise, or inconsistent with the testimony of other individuals testifying on Defendants’ behalf. • Dr. Gazi George owns a consulting' business called George Technical Services, Inc. In the summer of 2000, Cheri Holley retained George as an environmental consultant for Titan International and Dico. George answered to and was directed by Holley and regularly performed work pertaining to the Dico site, but he was paid by Titan International. From May 2005 to February 2007, George did not perform any consulting work for Dico because he was serving time in federal prison following his convictions for two environmental felonies in connection with his past work as an environment consultant for another consulting business. Following his release from federal prison, George returned to consulting for Dico in May 2007. George was deposed in connection with this case in March 2012, At that time, George worked as a full-time consultant for Titan International, and his son worked as a full-time consultant for Titan Wheel. Additionally, approximately five years prior to his deposition, his brother was retained by Titan International to perform sampling work on its behalf through his own company. The Court admitted portions of George’s testimony into evidence over Defendants’ objection. See Clerk’s No. 337. Having reviewed that testimony in the context of the evidence of the whole and taking into account George’s interest in the continued employment of himself and his son, the Court finds he was somewhat credible. Although his testimony was evasive at times, he occasionally spoke to factual details with sufficient specificity to bolster the plausibility of his version of select events with' respect' to which there was conflicting testimony. • Dan Buttars was an environmental coordinator with Titan Tire from 2000 to 2004, Pursuant to a delegation of authority from Morry Taylor, Buttars was authorized to perform work pertaining to environmental matters at the Dico site as directed by Bill Campbell through Cheri Holley. Jeff Kramer was his day-to-day supervisor, but Buttars communicated with Campbell or Holley regarding environmental matters related to the Dico site. The duties Buttars performed as the environmental coordinator responsible for the Dico site included conducting annual inspections of the buildings,, preparing annual reports, and communicating with the EPA on behalf of Dico. Thus, Buttars corresponded with the EPA regarding Dico’s request to modify the operation and maintenance plan in 2003. Following the approval of the revised work plan for operation and maintenance of the remedial actions taken at the Dico site, Buttars wrote a letter to the EPA confirming Dico would notify the EPA of any change in the status of the buildings. Neither party sought the admission of testimony by But-tars into evidence in the bench trial on remand. • Jeff Kramer was the operations manager of Titan Tire in the early 2000s. Kramer supervised Dan But-tars in the performance of his. work . as environmental coordinator for Titan Tire and was copied on various correspondence Buttars sent to the EPA, including correspondence re- . ferring to the 1994 Order and the operation and maintenance plan. Kramer also attended at least one meeting with Jim Hughes concerning the sale of the buildings. Kramer later attended at least one meeting with Hughes concerning SIM’s purchase of Dico buildings subject to the 1994 Order. Neither party sought the admission of testimony by Kramer into evidence in the bénch trial on ’ remand. • Environmental Management and Engineering, Inc. (“EME”) is a consulting firm .retained by Cheri Holley to perform environmental consulting for.the,Dico site in 2005. Its headquarters are located in Nashville, Tennessee. Years prior to being hired by Holley to perform environmental consulting for the Dico site, EME performed work for Titan and Dico unrelated to the contaminated buildings that were the subject of the 1994 Order. • r Quintín MacDonald is the president of EME and worked as a consultant to Cheri Holley with respect to the Dico site beginning in late 2004 or early 2005. Though the primary focus of this work pertained to the groundwater contamination at the site, MacDonald also participated in numerous communications and meetings with Holley and the EPA relating to the potential reuse or redevelopment of the Dico site. MacDonald was deposed and testified in person during the 2013 bench trial conducted in connection with this case, and the parties jointly designated portions of his prior sworn testimony for admission into evidence in the bench trial on remand. At the time of his testimony, the status of EME as a consultant with respect to the Dico site was in limbo,' and EME had not performed any work for Dico for some time. Having previously had the opportunity to observe MacDonald’s demeanor and having carefully considered his testimony in the context of the evidence of the whole, the Court finds he was generally credible as a witness. MacDonald was particularly direct and forthright in describing his own conduct and motivations, though his testimony occasionally conflicted with other evidence admitted at trial. • Louis Barrentine was an employee of EME and worked as a consultant to Cheri Holley with respect to the Dico site beginning in early 2006. The primary focus of this work pertained to the groundwater contamination at the site, and Barrentine was responsible for the preparation of yearly performance reports concerning. the groundwater extraction and treatment system and the asphalt cap. But like Quintín MacDonald, Barrentine also participated ' in several Communications and meetings with Holley :and the EPA relating to the potential reuse or redevelopment of the Dico site. While at EME, Barrentine regularly kept notes regarding meetings he attended, phone calls he participated in, conversations he had, and his other daily activities in a logbook. In addition, EME files pertaining to the Dico site were stored in a file cabinet in Barrentine’s office. Barrentine was deposed in connection with this case ih December 2011; At that time, Barrentine was still employed with EME, and EME continued to perform consulting work for Dico. The Courb finds Barrentine was generally not a credible witness. As the Court noted in it’s order on the 2013 bench trial, Barrentine’s testimony regarding the key events changed significantly over the course of his deposition. Beyond’ its lack of internal consistency, the Court finds his testimony was also often implausible, imprecise, and inconsistent with documentary evidence admitted at trial. • Fehr-Graham .Associates (“Fehr-Graham”) is a consulting firm retained by TitapTire to provide environmental services to the Titan Tire facility in Des Moines and the Dico site. • Brian Mills worked for Fehr-Gra-ham as an environmental'coordinator permanently assigned to the Titan Tire facility in Des Moines from August 2005 through October 2016, during which time Fehr-Graham was retained !>y Titan Tire to provide environmental consulting services to Titan Tire and Dico. As an outside consultant paid by Fehr-Graham, he had an office at Titán Tire and a Titan International email address, and his primary responsibility was to ensure that Titan Tire and Dico maintained compliance with federal, state, and local environmental regulations. When Mills began working for Titan Tire, he was trained primarily by Brian Mersch, who was then a safety coordinator for Titan Tire. At that time, Mills inherited several binders and a drawer containing files pertaining to the Dico site from Mersch. Beginning in the fall of 2005, Mills spent approximately one day per week at the Dico site, where he performed duties relating to the groundwater contamination at the site such as obtaining meter readings, sampling, environmental reporting, and performing maintenance on the groundwater extraction and treatment system. In addition to these duties, Mills on occasion helped identify security breaches in the buildings subject to the 1994 Order and received documents pertaining to the Dico site, including a copy of the Reuse Planning Report issued by the EPA in March 2007. In October 2016, Mills was hired by Titan Tire to become its environmental manager. Mills testified in person during both bench trials and was deposed in connection with this case, and the parties jointly designated portions of his prior sworn testimony for admission into evidence in the bench trial on remand. Having had ample opportunity to observe Mills’s demeanor and having carefully reviewed his testimony in light of the evidence of the whole and his relationship to the parties, the Court finds he was not a credible witness. Mills was often evasive and vague in responding to questions posed to him, and he testified as to events of which he was later revealed to lack independent knowledge. Additionally, his testimony was at times inconsistent with his own prior statements, other testimony, and documentary evidence admitted at trial. • Ken Thompson worked for Fehr-Graham and supervised Brian Mills in providing environmental consulting services to Titan Tire and Dico. Neither party sought the admission of testimony by Thompson into evidence in the bench trial on remand. • Brian Mersch is the former safety coordinator for Titan Tire. Mersch was involved in environmental maintenance at the Dico site until Brian Mills was hired as an environmental consultant for Titan Tire, at which point the environmental portion of his responsibilities transferred to Mills. Neither party sought the admission of testimony by Mersch into evidence in the bench trial on remand. • Doug Pospisil was a mechanical engineer for Titan Tire who provided mechanical engineering services for Dico. Pursuant to a delegation of authority from Morry Taylor, Pospisil was authorized to perform work pertaining to environmental matters at the Dico site as directed by Bill Campbell through Cheri Holley. Pos-pisil attended at least one meeting with Hughes concerning SIM’s purchase of Dico buildings subject to the 1994 Order. Pospisil also attended the site inspection for the fourth five-year review of the remedial actions taken at the Dico site where the EPA learned for the first time that buildings subject to the 1994 Order had been dismantled. Neither party sought the admission of testimony by Pospisil into evidence in the bench trial on remand. • Gary Schuster worked for Dico from November 1968 through early 1994, served as an officer of Dico from 1991 through early 1994, and was a member of Titan Tire from July 1994 through sometime in 2004. Throughout the time Schuster was employed with Titan Tire, one of his responsibilities was protesting property tax assessments of the Dico property with the Polk County Assessor, a task that required him to explain environmental issues pertaining to the property. Schuster testified during a deposition on behalf of Dico pursuant to Federal Rule of Civil Procedure 30(b)(6) in April' 2012, at which time he was employed by Titan Marketing Services. Schuster also testified during the 2013 bench trial, at which time he was employed by Titan International. The parties jointly designated portions of this prior sworn testimony for admission into evidence in the bench trial on remand. Having previously had the opportunity to observe Schuster’s demeanor and having carefully considered his testimony in the context of the evidence of the whole and the basis for his knowledge as to matters to which he testified, the Court finds he was generally credible, direct, and clear to the extent his apparently limited preparation allowed. The Court finds the following with respect to the events at issue in this suit. The Dico site is located at 200 Southwest 16th Street in Des Moines, Iowa, and is part of the Des Moines TCE Superfund Site, an area the EPA designated for inclusion on the National Priorities List (“NPL”) in 1983 following -its investigation into the origin of volatile organic compounds (“VOCs”) polluting the Des Moines water supply. See Ex. 26 at DICO-TRANX000438; see also Ex. 178 at DICO-TRANX003394. Ultimately, the EPA determined the Dico site was the primary source of the VOC contamination, as industrial solvents containing trichloroethylene (“TCE”) and other VOCs had previously been utilized in manufacturing processes on the Dico site. Ex. 26 at DICO-TRANX000438. In 1986, the EPA initiated a removal action pursuant to which Dico installed a groundwater extraction and treatment system the following' year. See Ex. 178 at DICOTRANX003394; see also Ex. 26 at DICOTRANX000438. However, the EPA subsequently discovered additional- contaminants in the area, and the Des Moines TCE Superfund Site eventually came to be divided into four operable units (“OUs”). Ex. 7 at DICOTRANX000079. The area that came to be known as OU1 included the groundwater extraction and treatment system intended to address the historical VOC contamination in groundwater on the Dico site. The area that came to be known as OU3 involved groundwater contamination to the north of the Dico site on land not owned by Dico. And the areas known as OU2 and OU4 included several buildings on the Dico site where, among other things, the formulation of pesticides and herbicides had once occurred. The buildings located on the Dico site included a number of pre-engineered, portable “Butler-style” buildings consisting of a steel frame and metal sheeting with or without insulation. Among these Butler-style buildings were buildings known as the Weld Shop, the Maintenance Building, Buildings 4 and 5, the western annex of Building 3, and the northern end of the Production Building, Additionally, several non-Butler-style buildings were located on the Dico site, including an Office Building, Buildings 1 and 2, and the remainders of both Building 3. and the Production Building. In 1989, Dico entered into an administrative order on consent with the EPA and agreed to conduct a remedial investigation and-a feasibility study for the Dico site, the primary purpose of which was to gather site-specific information to facilitate the development of remedial alternatives with respect to contaminated groundwater. Id. at DICOTRANX000080-81, However, the initial phase of the remedial investigation identified pesticide contamination in soils adjacent to several buildings on the Dico site.' Id. át DICOTRANX000081. Further investigation was performed to determine the nature and extent of contamination within and adjacent to the buildings. Id. Dico hired Eckenfelder, Inc. (“Ecken-félder”) to conduct further sampling and analysis of the building interiors, and Ecfc-enfelder prepared a detailed report summarizing the results of its investigation (“Eckenfelder Report”), copies of which were sent to both Dico and the EPA on August 3, 1992. Exs. 228, 292. The Ecken-. felder Report noted that analysis of sampling performed pursuant to its investigation detected the presence of pesticides in Buildings 1 through 5 and the Maintenance Building and the presence of PCBs in all those buildings except Building 1. Ex. at 292 at DICOTRANX008290, DICO-TRANX008302-09, DICOTRANX008323. The report identified the adhesive that had been used to secure insulation in the buildings to its backing as the probable source of the PCBs. See id. at DICO-TRANX008294-95, DICOTRANX008325. It further noted that the highest concentration of PCBs discovered during the course of the investigation — 29,000 parts per million — was found in a sample of ceiling insulation of Building 5. Id. at DICO-TRANX008306. Of more than thirty insulation samples analyzed from more than ten locations' throughout the sampled buildings, over 75% contained PCBs in concentrations exceeding fifty parts per million. Id. at DICOTRANX008306-07. Consistent with the findings in the Eck-enfelder Report, in March 1994, the EPA issued the 1994 Order, requiring Dico to address the contamination within the buildings, relying on its authority under 42 U.S.C. § 9606(a) of CERCLA to issue “such orders as may be necessary to protect. public health and welfare and the environment.” Among other findings, the order stated .that PCB-contaminated insulation had been found on the walls and ceilings of Buildings 2 through 5 and the Maintenance Building. Ex. 7 at DICO-TRANX000083. To address the resulting threat .to public health, welfare, and the environment, the order required Dico to submit for EPA approval a detailed work plan for a removal action during which it would “[rjepair, seal, and protect all building, insulation and clean and seal all exposed interior surfaces, including the walls, ceilings and concrete floors” within the contaminated buildings. Id. at-DICO-TRANX000087. Additionally, paragraph 31 of the. order required Dico to submit to the EPA for approval a work plan for ongoing operation and maintenance (“0 & M”) addressing “actions necessary to ensure the protectiveness and integrity of the removal action, including long-term maintenance of all interior surface sealing, encapsulation of all building insulation and appropriate reporting including, at a minimum, submit-tal'of a written report on an annual basis.” Id. at DICOTRANXOOOOS8-89. The order expressly stated it was binding upon Dico, its “successors and assigns, and upon all persons, contractors, and consultants acting under or for” Dico and provided Dico’s responsibilities thereunder would not be altered by “any change in ownership or corporate status ... including, but not limited to, any transfer of assets or real or personal property.” Id. at DICO-TRANX000079. Notably, the building removal action did not cover other buildings on the Dico site, including both the Weld Shop and the Production Building. However, the EPA issued a separate administrative order requiring Dico to install an asphalt cap over a substantial portion of OU2 and OU4 and ensure its continued integrity in a removal action that came to be known as “the capping removal action.” Jim Fechter, corporate environmental engineer for Titan Internatio'nal, was tasked with the responsibility of developing the removal action work plan for 0 & M related to the remedial actions to be performed at the Dico site. Fechter drafted the work plan in consultation with both Dico and Titan personnel, including, among others, Cheri Holley and Don Brown. In developing the plan, Fechter relied on the Eckenfelder data, which he regarded as accurate. The work plan called for the cleaning and sealing of all interior surfaces in the buildings subject to the order, the repair or replacement of damaged insulation within those buildings, and the encapsulation of the insulation with epoxy paint. Fechter understood these measures were intended to address the presence of PCBs in insulation on the ceilings and walls and permit the use of the buildings without any resulting danger to human health or the environment.' The work plan was' submitted to the EPA in March 1994. Ex. 16Í, Fechter submitted ah addendum to the work plan to the EPA on behalf of Dico, along with the first of many monthly progress reports he prepared addressing its implementation, on April 13,1994. Ex. 293. Throughout the implementation of the removal action work plan, Fechter oversaw the environmental contractors hired to perform the work described in the plan on behalf of Dico. During the implementation, Fechter worked with EPA personnel, including Glenn Curtis and Mary Peterson. Fechter also communicated regularly with Dico and Titan personnel, including Cheri Holley and Don Brown. Fechter prepared monthly reports regarding the progress of the building removal action, and these reports were reviewed by Holley prior to their transmission to the EPA. Exs. 293-95, 297-304. Meanwhile, Black & Veatch Waste Science, Inc. (“Black & Veatch”) oversaw implementation of the work plan on behalf of the- EPA, during the course of which the contractor submitted at least three written reports to the EPA documenting its oversight activities at the site along with field notes and photographs. Exs. 1177-79. During the course of the removal action, damaged insulation that was not able to be repaired was removed and replaced. This resulted in removal of thirty-six 55-gallon drums of PCB-contaminated insulation that were disposed of as hazardous waste by means of incineration. But the amount of contaminated .insulation that was removed was minimal (less than 5%) in comparison to the amount of contaminated insulation that remained, and the areas , in which insulation was removed and replaced were scattered in random patches throughout the buildings. After the insulation repair and removal process was. complete, all the insulation was encapsulated under a thick epoxy paint, and the acid-washed floors were sealed with two coats of urethane. While the remediation work was ongoing,. Fechter prepared, and revised the draft work plan for 0 & M of the remedial actions performed at the Dico site pursuant to directions from the EPA in compliance with paragraph 31 of the 1994 Order, with the understanding that the purpose of the operation and maintenance plan was to ensure the encapsulation remained an effective means of protecting human health and the environment from PCBs that would remain in the buildings following the removal action. On June 10, 1994, Fechter submitted the revised draft work plan that would ultimately be approved to the EPA along with a cover letter explaining the draft plan had been revised to address prior feedback Dico had received. Exs. 8, 162, 196. The revised draft work plan explicitly acknowledged the EPA had “issued an administrative order to address the contaminants present within the buildings” intended to “protect human health and the environment from the actual or threatened release of hazardous substances.” Ex. 8 at DICOTRANXOOOH7. In addition, it acknowledged “any event that causes significant damage to the structure of one of the six buildings” would constitute “an emergency event ... that allows potential exposure [to hazardous substances] suddenly and in quantities that may be harmful to human health and the environment.” Ex. 8 at DICOTRANX000124. Copies of the letter and the draft plan were also sent to Cheri Holley. Dico completed the remediation work required by the 1994 Order within the buildings subject thereto in early November 1994, leaving only confirmatory air sampling to be completed. By this point, recognizing that contaminants had been left in place with respect to both the soil and the buildings on the Dico site and that the effectiveness of the remediation would likely deteriorate over time, the EPA had engaged Black & Veatch to assist its investigation into and selection of remedial alternatives to maintain or improve the long-term future risks of contaminate exposure at the site. Toward that end, Black & Veatch conducted a remedial investigation into the nature and extent of contamination at the Dico site, the purpose of which was to gather data to support the development and evaluation of remedial alternatives. Black & Veatch submitted its final remedial investigation report to the EPA on July 27, 1995. Ex. 252. Following the remedial investigation, Black & Veatch conducted a feasibility study to analyze potential remedial alternatives for the Dico buildings against the nine criteria set forth in the NCP, one of which was cost. Of these criteria, two are threshold criteria a remedial action must meet in order to be considered a potential remedial alternative: namely, the remedial alternative must reduce risks to human health and the environment to acceptable levels and must comply with substantive requirements, regulations, limitations, and cleanup standards promulgated by federal, state, or local authorities. Black & Veatch identified and analyzed three potential remedial alternatives that met these threshold criteria for the contaminated Dico buildings. Those remedial alternatives included a “no action” alternative, a “limited action” alternative, and a “source layer removal/disposal” alternative. Though Black & Veatch screened “building removal/disposal” as a potential fourth alternative, it was withdrawn from further consideration based on its anticipated cost, which would have exceeded that associated with the source layer removal/disposal alternative. Black & Veatch analyzed in detail each of the remaining alternatives in terms of the NCP criteria, and that analysis involved consideration of their potential capital and long-term costs as well as their long-term effectiveness. The results were summarized in their final report on the feasibility study (“Feasibility Study”), a copy of which was provided to the EPA on May 23, 1996. Ex. 253. The Feasibility Study clearly summarized the current contaminant levels within the buildings and expressly stated that PCB contamination remained in insulation in the buildings. It further indicated that the epoxy coating applied .to the insulation did not permanently eliminate the potential for the release of PCBs within the buildings and that the EPA anticipated its effectiveness would deteriorate over time. The Feasibility Study was clear that its purpose was to evaluate remedial alternatives to reduce or maintain risks at or below acceptable levels for industrial use of the site and that further evaluation would be necessary before the site could be used for recreational or residential purposes. The limited action and no action alternatives analyzed in the Feasibility Study involved maintenance of the response actions already taken and periodic reviews with or without the implementation of land use restrictions on the site. In contrast, the source layer removal/disposal alternative involved the removal and disposal of sources of contamination within the buildings by means of removing the PCB-contaminated insulation and grit blasting or scarifying the. pesticide-contaminated concrete. The Feasibility Study recognized this alternative would remove only a majority of the contamination within the buildings. Thus, it expressly anticipated “the magnitude' of the residual risks would need to be evaluated through-air monitoring and sampling after” the source layer removal/disposal alternative was implemented. Ex. 253 at DICOTRANX07148. As such, the cost estimate did not account for costs that might be associated with residual PCB contamination on interior building components remaining after the removal of the PCB-contaminated insulation. The Feasibility Study estimated the total costs associated with the source layer removal/disposal alternative to be approximately $2,824,600. Id. at DICO-TRANX07151. But these costs included' various components, only some of which were relevant to the cost of removal and disposal of the PCB-contaminated insulation. Cost components included in Table E-3 of the final report included the following estimates for direct costs relevant to removal and disposal of the contaminated insulation: Estimated Direct Costs for Disposal of Insulation Cost in 1996 dollars Removal of insulation (227.687 square feel of insulation at $0.56 per square foot) $127,505 Loading insulation into roll-off containers (2811 cubic yards at $ 1.13 per cubic yard) $3176 Transport to offsite facility (88 truck loads at $4800 per load) $422,400 Disposal cost (2811 cubic yards at $ 150 per cubic yard) $421,650 Id. at DICOTRANX07264-67. The total cost estimate for the source layer removal/disposal alternative included various contingencies the EPA customarily accounts for when estimating the cost of remedial actions. They included bid contingencies (15%) and scope contingencies (15%) applied.to the--subtotal for all direct costs, followed by contingencies. for permitting and legal costs (5%) and construction services (10%) applied to the successive subtotal, and then by engineering design costs (8%). See id. On.May 30, 1996, the EPA issued the Feasibility Study to Dico. The EPA also made the final report accessible to the publicas part of its administrative record on the building removal action at both the Des Moines Public Library and its regional office, and notice of the availability of that record to the public was advertised in the local newspaper. See 400 C.F.R. § 430. Fechter thereafter became familiar with the contents of the Feasibility Study— including the fact that tearing down the buildings was identified as a potential remedial alternative therein — and discussed them with other Dico employees. Within weeks of the issuance of the final report, on June 11, 1996, a public meeting was held regarding the selection of a remedial action for OU2 and OU4. On December 17, 1996, the EPA issued the Record of Decision (“Record of Decision”) for OU2 and OU4 setting forth the cost estimates for each 'remedial alternative analyzed in the Feasibility Study and selecting the remedy to be -implemented from among those alternatives at the Dico site. Exs. 1118, 2042; see 40 C.F.R. § 300.430. The Record of Decision indicated the source layer removal/disposal alternative was estimated to involve capital costs of $2,824,600 with annual O & M costs of $1000 to $13,900. Ex. 1118 at DICOTCE-009167. In contrast, it indicated the no action and limited action alternatives for the buildings were estimated to involve no capital costs and $5000 in capital costs, respectively, and annual O & M costs of $31,900 to $53,900. Id. at DICOTCE-009166-67. Accordingly, the limited action alternative, which involved maintenance of the response actions already taken and periodic reviews with the implementation of restrictions on use of the site, was selected as the remedy to be implemented going forward. Concerning the remaining risks present, the Record of Decision indicated response actions already taken had “reduced risks creating ‘an acceptable risk for industrial use of OU2 and OU4 provided- the maintenance activities required by the response actions are conducted.” Id. at DICOTCE-009165. On April 23, 1998, the EPA sent a sp¿-cial notice letter to Cheri Holley via certified mail. Exs. 323, 2001. Consistent with EPA standard practice, the special notice letter was1 accompanied by a copy of the Record of Decision. The special notice letter contained both a demand for response costs incurred and an invitation to negotiate a settlement between Dico/Titan and the EPA concerning the implementation of the response action. It also advised that Dico' “may wish to review” the administrative record available for viewing at the Des Moines Public Library prior to responding. Ex. 323 at DICOTRANX008962. Dico did not respond to the invitation to negotiate regarding the demand for response costs. However, there.is no question Dico received the Record of Decision and was aware of the cost estimates it contained. For example, Dico later submitted comments and objections to a consent decree entered into between the EPA and other parties involved with the Des Moines TOE Superfund Site, citing the section of the Record of Decision containing the cost estimates for the remedial alternatives considered for the buildings as evidence of the remediation costs it had incurred. Ex. 322 at DICOTRANX008826. Following the announcement of the selection of the remedial action, in February 1997, Peterson sent Dico a letter in which she approved the previously submitted draft operation and maintenance plan on behalf of the EPA and confirmed the EPA was satisfied with the results of prior air sampling. Ex. 9. The letter indicated the EPA anticipated issuing a notice confirming the completion of the removal action upon receipt of the removal- action final report from Dico. It cautioned; however, that the issuance of that notice, “would not alter ... the continuing obligations” set forth in the 1994 Order, including the post-removal activities required by paragraph 31. Id. Thereafter, Fechter prepared the draft removal action final report, which Cheri Holley reviewed prior to its submission to the EPA. Dico submitted its removal action final report (“the 1997 Final Report”) to the EPA on April 11, 1997. Exs. 10,10R, 179. Peterson reviewed and approved the 1997 Final Report on behalf of the EPA, and the EPA issued its notice of completion on May 8, 1997. Ex. 11. The notice of completion expressly stated that its issuance did not alter the continuing obligations that existed under the 1994 Order, including the post-removal 'activities required by paragraph 31 and the annual reporting obligations described in the operation and maintenance plan. Id. Four days after its issuance, on May 12, 1997, Fechter wrote a memo to Cheri Holley and Mike Samide and provided them copies of the notice of completion, and copies of both the memo and the notice of completion were provided to Brown. Ex. 12. In the memo, Fechter acknowledged the notice of completion marked the completion of the removal action and stated that Dico was now “free to use the buildings without any stipulations from the EPA (with the exception of on-going maintenance and upkeep of the paint job).” Id. When he testified during his deposition, Fechter acknowledged he recognized the notice of completion issued to Dico upon EPA approval of the 1997 Final Report did not terminate Dico’s obligations under the 1994 Order. Consistent with Dico’s continuing obligations under the 1994 Order,- Fechter conducted an annual inspection of the buildings in January 1998 and prepared the 1997 annual report, which he sent to the EPA via certified mail the samé month with copy to Cheri Holley. Ex. 168. In an accompanying letter, Fechter acknowledged the buildings were still in use and noted Dico planned to touch up worn, floor paint in the spring when the weather would allow. - Later that year, Fechter ended his employment with Titan International, and Thomas Duncan became the corporate environmental compliance manager for Titan International and assumed the responsibility of overseeing 0 & M activities at the Dico site. Duncan conducted t