Submitted: January 15, 2019
from United States District Court for the Southern District
of Iowa - Des Moines
BENTON, MELLOY, and KELLY, Circuit Judges.
BENTON, CIRCUIT JUDGE.
and Titan appeal the district court's finding that they
violated the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), that they
are jointly and severally liable for response costs, and that
Dico is liable for punitive damages. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
Inc. owned several buildings in Des Moines contaminated with
Polychlorinated Biphenyls (PCBs) in the insulation. In 1994,
the Environmental Protection Agency issued an administrative
order that Dico remove some of the PCB contamination,
encapsulate the remaining insulation, and submit a long-term
maintenance plan for EPA approval. See 42 U.S.C.
§ 9606(a) (authorizing the EPA to issue "such
orders as may be necessary to protect public health and
welfare and the environment"). The order also required
ongoing testing, annual reports to the EPA, and immediate
notification if changes in site conditions threatened further
release of PCBs. Without informing the EPA, Dico-through its
corporate affiliate Titan Tire Corporation-sold the buildings
to Southern Iowa Mechanical (SIM) in 2007. Titan did not tell
SIM that the buildings were contaminated with PCBs and
subject to an EPA order. SIM tore down the buildings and
stored them in an open field, where the EPA later found PCBs.
sued Dico to recover damages for its cleanup costs. It
alleged Dico violated the CERCLA by arranging to dispose of a
hazardous substance. See 42 U.S.C. § 9607(a)(3)
(establishing liability for those who "arrange for
disposal . . . of hazardous substances"). The EPA also
alleged Dico violated the 1994 order by circumventing the
long-term maintenance plan, failing to prevent the additional
release of PCBs, and failing to notify the EPA of changed
site conditions. See 42 U.S.C. § 9606(b)(1)
(establishing liability for those who violate the terms and
conditions of an EPA order). The district court granted
summary judgment, finding CERCLA arranger liability and a
violation of the 1994 order. United States v. Dico,
Inc., 892 F.Supp.2d 1138, 1163 (S.D. Iowa 2012). After a
bench trial, it imposed civil penalties and punitive damages.
United States v. Dico, Inc., 4 F.Supp.3d 1047, 1068
(S.D. Iowa 2014). This court affirmed summary judgment on
Dico's violation of the 1994 order and civil penalties,
but held that questions of fact precluded summary judgment on
arranger liability and punitive damages. United States v.
Dico, Inc., 808 F.3d 342, 354-355 (8th Cir. 2015).
remand, the district court conducted a bench trial.
United States v. Dico, Inc., 265 F.Supp.3d 902, 906
(S.D. Iowa 2017). It found that Dico and Titan arranged to
dispose of a hazardous substance in violation of the CERCLA,
and held them jointly and severally liable for $5, 454, 370
in response costs. Id. at 967, 970. It held Dico
liable for the same amount in punitive damages, an amount
equal to the costs incurred from Dico's violation of the
1994 order. Id. at 970-71. It also found Dico and
Titan jointly and severally liable for all costs not yet
reported, all future costs, all enforcement costs, and
attorney's fees. Id. at 970. Dico and Titan
CERCLA imposes strict liability for environmental
contamination upon an entity that "arrange[s] for
disposal . . . of hazardous substances." 42 U.S.C.
§ 9607(a)(3). "[U]nder the plain language of the
statute, an entity may qualify as an arranger under §
9607(a)(3) when it takes intentional steps to dispose of a
hazardous substance." Burlington N. & Santa Fe
Ry. Co. v. United States, 556 U.S. 599, 611 (2009). Dico
and Titan qualify as arrangers if they "entered into the
sale . . . with the intention that at least a portion of the
product be disposed of" as a result of the transfer.
Id. at 612.
determination whether an entity is an arranger requires a
fact-intensive inquiry." Id. at 610.
"After a bench trial, this court reviews the district
court's findings of fact for clear error."
Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir.
2011). This court will affirm "the district court's
account of the evidence" if it is "plausible in
light of the record viewed in its entirety."
Id., citing Anderson v. City of Bessemer
City, 470 U.S. 564, 573-74 (1985).
and Titan argue that the district court gave insufficient
weight to evidence that the transaction was legitimate. For
example, the terms of the 2007 sale mirror the terms of Dico
and Titan's 2004 sale of a Weld Shop to SIM. Dico and
Titan argue that because the 2004 sale was legitimate, the
2007 was legitimate too. The district court properly found
that similarities in the transactions are "by no means
conclusive evidence that [Dico and Titan's] intent
regarding the former was the same as their intent regarding
the latter." Dico, 265 F.Supp.3d at 966.
Dico and Titan argue the usefulness of part of the buildings
is evidence of a legitimate transaction. The district court
found that the contaminated buildings' structural-steel
beams were reusable if sampled and decontaminated.
Dico, 265 F.Supp.3d at 957. An entity that
"enter[s] into a transaction for the sole purpose of
discarding a used and no longer useful hazardous
substance" is liable under the CERCLA. Burlington
N., 556 U.S. at 610. But, "an entity could not be
held liable as an arranger merely for selling a new and
useful product ...