the entire corporation and dicho inc this is an appeal from a bench trial in an environmental case under circle in the primary question on appeal which i'll be spending most of my time on is whether titan tire and or dicho can be held liable as a rangers under circuit by virtue of diet goes on blank sale of buildings to a third party in two thousand and seven for the total price of one hundred sixty thousand dollars we submit that the district court's decision holding tight entire and i called liable as a rangers represents the broadest expansion of circle a range of liability since the united states supreme court decided burlington northern in two thousand and nine and i don't say that lightly but in the government's brief the government cites no cases subsequent to burlington northern or even before burlington northern was circumstances that are even remotely close to that those present here and where a court held arranger liability to exist the buildings that were at issue in the transactions here and i know the court is aware of this this is the second time now this case has reached this court the buildings at issue were butler style building which are prefabricated steel structures that can be disassembled and reassembled somewhere else with relative ease basically you have an infrastructure of hundreds of beans that are put together almost like tinker toys and you can take them down and put  back up and put walls and a roof over the building we know and it's undisputed that these buildings have commercial value because sim the third party the buyer southern iowa mechanical bought one of these buildings from dicho from the d site in two thousand and four and took the beams back to its property in a time while iowa and reconstructed the building and that building even at the time of trial in this case in two thousand and seventeen was still a very functional very useful building for sin so we know that these buildings were useful because there was a clear track record of monks these very parties of having used but if you but if you but if you break into some in capitals in capitals nation it makes it bad right some of the remedial activity on the site but the only thing that sim took back to its site was the most useful part of the buildings which were these steel beams and nobody expected those steel beams even in two thousand and seven to they very much expected to find clean beans they expected to give in her words a clean bill of health to see him to be able to use the beans exactly the way he had purchased but then they qualify that by saying because they expected that they would have  and environmentally safe way well remove all the contamination what she said was she expected the insulation to have been removed more neatly but that ultimately was something that sim had control over not my clients and that is i mean isn't this i mean i want to push in a big boulder up hill i mean should press you have a you have an order that you're supposed to tell the e p a before you do anything you don't do that you don't tell sam that you're that there's contamination and sam says we would have never bought it if we'd known there contaminated you don't properly dispose of the material you know their decision you know that there's this p c p it insulation flying all over the site because your way of watching them take it down i mean those are all facts that seem to me make a pretty compelling argument that you wanted to get rid of a bad building well first of all i don't think any court has ever held that knowledge and failure to disclose are enough in and of themselves it's not just but but you didn't tell the e p a and you would sign an agreement talent say e p a if we disassemble this building we'll tell you beforehand and so that i mean it wasn't just one fact i mean you're you're trying to cherry pick well there's just this fact we didn't tell him or there's this fact just press of there's ten facts and you read them all together and it makes a pretty compelling argument that you you knew exactly what you're doing any want to get rid of a a couple of responses first it's important to remember that my clients actually invited a p a to the site at exactly the time that the building removal activity was taking place so if this was some sort of disposal by subterfuge which is consultants at dicho in the years leading up to this contaminations of the people who were around at the time this commitment had been made to e p a to provide notice by and large had been replaced by other people as of two thousand and five two thousand and six two thousand and seven and those new people the new environmental consultants when they were having internal conversations about these transactions and there are contemporaneous notes that the government itself as reliable in those contemporaneous notes there is absolutely no discussion of this being a disguised disposal of hazardous waste there is no discussion of these transactions being anything other than a sale of buildings wealth of just a garden variety sale the ability whiting to tell the buyer was contaminated centrally the same reason it's not clear that the people who are communicating with the buyer even knew of the contamination but even accepting that they did again i'll go back to the case law in this area no case is held the failure to disclose an of itself is sufficient to create a range or liability and i'll give a couple of examples there was a case that this court cited favorably in its december of two thousand and fifteen opinion call she of own it was a district of connecticut case the defendant in that case was presumed to have known of the presence of p c b in use transformers that were sold the defendant did not disclose the existence of those p c p s to the buyer in fact there was no discussion of p c p s at all during the transactions and yet the court how as a matter of law a motion for summary judgment that there was no range or liability because the larger context of the transactions made clear that these were commercially legitimate transactions team enterprises  ninth circuit case that i would argue is an even more egregious example of deficiency or failure on the part of a seller to provide helpful information to a buyer with respect to hazardous substances in that case there was a sale of dry cleaning equipment and the seller included an instruction manual that specifically told the buyer how to dispose of waste oil and the buyer did what it was told in the instruction manual and that led directly to the contamination that the buyer later had to clean up was no range of liability because of the larger context of the transaction so if a seller isn't liable even when it misguides the buyer as to how these things should be disposed of than we would argue certainly there should be any liability where there's no discussion at all about disposal techniques are you suggesting that the only thing that the district court relied on was knowledge i would say that knowledge and failure to disclose were certainly the primary thrust of the district court's opinion and i know there was a lot of factual discussion but just about all of it came back to one of the other of those two things either knowledge or failure to disclose are you asking us to disregard all of the other factors that the district or considered in determining as the value of the beings in the bow and the costs that were avoided the plans that dicho had for are wanting to develop all of those facts is that are you saying that those are so de minimus that we should just ignore them no certainly not and instead a big part of what we're arguing is that the district court misunderstood and misapplied this court's opinion from december of two thousand and fifteen when it tried to apply those facts and i'll give a couple of examples and in that respect one of the issues in this court identified a whole host of factors for the district court to consider but there were two that this court placed particular emphasis on the first was whether or not the buildings were commercially useful the district court had concluded or tried to conclude as a matter of law that these buildings were commercially useless there was no general demand for buildings of this type and therefore it couldn't possibly have been anything other than a ploy to get rid of hazardous substances by the time we went back and had a trial the district court had completely reversed itself and recognized and found as a matter of fact that there was a general demand for buildings of this type and that there was a market for used or style buildings they did have value the government's own expert witness admitting that he said that if he was advising somebody in a building demolition situation he would insist that the buyer of that property make sure to get sufficient value for used butler style buildings these things absolutely have value and so that factor even though it was important to this court in its december of two thousand and fifteen opinion and i mean that literally the court used the word important to describe it even though it was important to this court judge crowd ended up giving it only a little bit of weight of finding that it weighed only slightly in favor of the legitimacy of the transaction so we argue that he did not give sufficient weight to that factor which th misapplication of what this court instructed the district court to one why is it legal why are different for how to make a factual finding that they would have bought it if you know it was contaminated a couple of reasons first of all sim actually learned of the contamination in january of two thousand and eight and continue paying for the buildings even after that and in fact in may of two thousand and eight after e p a had been at the sims site to see ample the buildings a week later sim signed an amendment to the contract agreeing to pay even more for the buildings than it had before so you've got to look at the testimony from two thousand and seventeen in the context of what the parties were actually doing at the time of the transactions what was that he does not what was that additional dollar amount for why was that added to the contract it was about five thousand dollars and it was to reflect certain camera if it was disposal or a permit it costs something some additional cost that had been incurred as part of the removal process that was then passed along december so i don't mean to that the existence of the contamination made the buildings more valuable i just mean that even after learning of the contamination soon still was willing and interested to complete the transaction and pay more money and  the district or did find that there is resale value here but i understood it also to consider the fact that dicho never advertised and never looked for really anyone beyond one person who then it rolled over to see them  bought it so that seemed to be a factor that played into the district court's assessment of the value it did but again it needs to be looked at in context we have a situation where this two thousand and four transaction between the same parties serves as an awfully good benchmark of what a legitimate transaction would look like between these parties and involving products of this type in other words the government mix the two thousand and four transaction was legitimate everything that happened in the two thousand and seven transaction th process the presence or absence of general advertising everything that happened was identical to what happened in two thousand and four so if two thousand and four was legitimate it becomes hard to argue that two thousand and seven was it or as the district that they were confident hughes was not going to ask any questions and so they didn't offer an up look this is gone through before in zero four and let's move in on it so couldn't you couldn't couldn't isn't it legitimate for the district court to make that actual finding i agree that that's what the district court did but backwards to the larger point about the law in this area at some point if there is a sufficient level of commercial legitimacy in these transactions the case law seems to recognize that courts shouldn't go beyond that and and try to spin everything to make it look suspicious and argument here the core of our argument here is that what the district court did was take a transaction where simm paid my clients one hundred sixty thousand dollars for these buildings it wasn't like we paid them to get rid of them and there was an arm's length negotiation where my clients actually rejected since first offer as being too low in two thousand and seven and said no you need to come back and do better and my clients ta did in fact talk to a different buy a different potential buyer before those negotiations fell through so there are plenty of in dish of commercial legitimacy here and in that context district courts shouldn't be allowed to come in particularly with the benefit of hindsight and say well that was just part of you being sneaky that type of speculation and innuendo under the existing case law simply shouldn't be a basis for finding a range or liability in the consolidation coal case from the fourth ends and you can't look behind it and the risk of holding it any other way is this in all of these transactions by definition if you've got an arranger liability case you have ended up in a situation where there is some tremendously expensive environmental liability that has come into existence and it becomes a fight about who's going to have to pay for it if you're allowed to come in after the fact and say well in retrospect what the seller did looks sneaky or looks like an attempt to avoid environmental liability pretty soon everybody who sells a useful product is going to be liable under circle as an arranger just because of what ended up happening as opposed to what the parties intend at the time and that's clearly not permissible under burlington northern and the other cases so i will reserve the remainder of my time for a bottle you may miss handsome young opening remarks rather there was copious evidence of intent that the district court documented after a trial and its extremely thorough hundred nine page decision and that court's decision and in particular its factual fi are reviewed under the very deferential clearer air standard that this court has particularly identified in one of its decisions girly at forty three of third eleven ninety four specifically applying in the circle dispositive factor as my friend suggested it is rather it is one factor that a court would look at in determining whether a seller intended to dispose of something you know through a sale whether whether that product is useful is just one factor among many others that a court would consider and the record shows that the district court considered that and found that it was only slightly weighed in favor of a finding that there was no intent whereas all of the other factors that the district court considered weight strongly in favor of a finding that diet go in tight and intended to dispose of p c p s through their sale to them and most notably those facts include not only was no reasonable way that diagonal or tightened could have know and the fact there were no p c b in the building but the district court also found it at page eighteen at seventy nine to eighty one of its decision that the defendants knew of the p c b and knew that the buildings were subject to an e p a order the site is the superfund site subject to not only that order but other orders and to try to characterize the sale of these contaminated buildings as similar to the sale of used transformers it is simply there is no comparison the district court also consider the fact that the value of the buildings sold to them were substantially less than the cost of the remediation that the company sought to avoid specifically the court found that the costs of remediation were close to one million dollars and that cost of the district court was able to calculate didn't even include all of the cost and it was also not adjusted for inflation it was set in one thousand nine hundred six dollars whereas the cost of the building the generally eighty five to ninety five of the district court's decision council would this be the broadest imposition of circle liability for an arranger in the history the country or at least since burlington northern no i don't think that's true i think that this court could look to the first circuits decision and in the general electric case which was found at six seventy after three seventy seven where g e was found liable after a trial similar to the case here for selling unwanted scrap material to a nother company or another individual who was using that scrap material to as an additive in his paint manufacturing process so that there was you know again as a similar to the case here there was a trial there was evidence of intent evidence that she couldn't find other buyers for that or other ways to dispose of the materials that didn't want and that's quite similar to the case here where as was  not tell them that they were p c b used in the building and in fact continued to hide that information from them after e p a had visited the site after the current environmental consultants had received the previous orders from e p a and who were informed by e p a that they were concerned about the p c b specifically dicho in typing both withheld information from e p a about who had purchased the buildings and also did not seven first circuit from two thousand and twelve and i believe it's discussed in this court twenty fifteen decision sorry i was going to ask well i have a couple questions one is can you clarify for me the state of the record relative to the disposal of the material it was taken to the don't whine landfill as i understand and was not disposed of as any type of hazard it was just general joe or would they have been required to get a prayer permit had the landfill know what the material was or would they have tested or what would have happened had the landfill been told that it was potentially hazard and the waste would have been expensive and required special treatment in the form of disposal at a certified landfill but i thought that mr walker's brief indicated that there was some evidence that they went to  so i think around page one hundred of the district court's decision and the court or maybe in the ninety's the court specifically found that e t a had the authority to direct how with e p a before they did demolition and they did but i'm just on the narrow question of whether don why my answer would have required a special permit i understand that was the judge perhaps make a specific factual finding them that it is my waived and the district court found that the argument was waved in its decision at docket number two ninety eight secondly even if the court considers argument there it is the defendant's burden in a circle a case to prove that the harm is divisible and that there is a reasonable bore reasonable basis for allocation of different costs the the harm here is not divisible it arises from the same set of fact period of time when the united states was litigating the civil penalties and punitive damages portions only well it's not appropriate to do that because in the twenty sixteen trial both die die go and tightened relied on and the party submitted testimony that was developed in the twenty fourteen trial to use in the twenty sixteen trial and that's referenced in page eight of the district court's decision the district court allowed to admitted the testimony that was previously developed during the time that titan says it wasn't responsible for those costs so for tying to say that all of the litigation and occurred during that period is not attributable to it or that it didn't benefit from that litigation or didn't rely on what was done during that time is belied and not by the record it's not supported there and tighten  met their burden of showing that the harm is divisible or that the costs can be allocated and i would also suggest that if the court found any question on this it would be appropriate to remain to the district court on that issue to make specific findings because the district court is in the best position to decide you know how the the litigation at any particular time served a different claim i'm not sure if you were also arguing that questioning whether there is a statutory basis for the recovery of enforcement costs but to dishonor time because they've also i wasn't but they've also raising that issue sure so i think that the easiest way for the court to resolve that claim is to look aside from the waiver issue which we've discussed thoroughly in our briefs and which the district court adopted in its decision that eat at doc and number two ninety eight but the easiest way for the court to address that issue if it just decides to reach it on the merits of to look to the statutes language itself the statute at ninety six zero one twenty three and twenty five to find removal action to include all enforcement activities related there t and a ninety six zero seven a for provide that the united states can recover all costs of its removal actions so a court have interpreted that to to mean that the fines and that provision makes clear that the the availability of fines can can only be pursued in an enforcement action in an action to enforce an order issued by e p a so if the both the plain language of the statute make clear that in that the recovery of all costs includes enforcement costs and this court has previously found in an earlier two thousand and three dicho decision that attorneys fees are properly considered in forstmann costs i'm sorry two thousand and one dicho decision i misspoke there and also in it's in th out just address a couple of the factual issues that were raised by my friend in his opening remarks he had sort of said well the fact that them purchased the buildings at the same price as  chop building in the earlier purchased sort of shows that it was all sort of the same type of transaction and and and again as the district court found selling it at the same price or simply suggest that the defendants withheld relevant information from stem and i think more broadly the the easiest or simplest way for this court to resolve the case is to affirm the district court judgment on the basis that it's factual findings were supported by the evidence that it received at trial and really although dicho entirely wish that the court had drawn different inference as from these fa the facts support the inferences that the district court found and under the clearly erroneous standard this court should affirm the district court's findings does the court have any questions or with the court like me to address the punitive damages thank you our man please the court let me address the first circuits decision in general electric that case involves scrappier and all and it was essentially undisputed that it was viewed as scrath by everybody involved in the transaction including the seller there was no general market for scrap here and all the buyers use of that product was described as idiosyncratic to the buyer and perhaps most importantly of all general electric continued shipping the stuff to the even after the buyer stopped paying and later decided to forgive the buyers of the debt rather than going and retrieving the stuff and bringing it back so i would submit that general electric absolutely is not as excuse me absolutely is not as expansive as this case would be if it is affirmed in terms of the scope of a ranger liability one of the issues in general electric which ties into an issue here is that the seller in that case general electric specifically crunched the numbers and evaluated whether it was cheaper to just leave the stuff with the buyer whether they should go pick it up and decided it was cheaper just to leave it there there's absolutely no evidence of any sort of analysis like that taking place here and that's another illustration of the legal error we believe the district court made when it evaluated costs avoided versus value received there is no evidence that any want to go sat down and crunched the numbers and said geez we're better off doing one thing as opposed to another with these buildings instead with the district court did was rely on this one nine hundred ninety six feasibility study to try and estimate the cost of oil it by the feasibility studies alone terms it was outdated by two thousand and seven it said the actual remediation costs are going to have to be evaluated at the time of remedial action not based on conditions as they existed in one nine hundred ninety six and there were question is an incredibly important document what e p a said in that document which was from march of two thousand and seven was that one of the cheapest ways to dispose of the insulation would be if the i would department of natural resources would allow it to be disposed of at the local municipal landfill as opposed to being sent off to an expensive tasca certified facility and i would d n r employee testified at this trial in two thousand and seventeen he had been in a similar position in two thousand and seven he said i would d n r absolutely would have allowed this insulation to be disposed of at the hazardous excuse me not hazardous waste at the at the regular landfill which is exactly where simin did up taking and the district court basically threw out that evidence and said well e p a testified at this trial in two thousand and seventeen that it would've overridden any judgment of iowa d r and therefore i'm going to conclude that e p a even though in the march of two thousand and seven assessment report said i would d n r will get to decide by twenty seventeen they testify that no actually they would have allowed i would d n r to decide and so therefore i'm going to use this much higher costs avoided number and here's the problem with that approach intent has to be evaluated at the time of the transaction not with the benefit of hindsight at the time of the transaction in two thousand and seven the best available information that the parties would have had would have been that i would d n r was going to allow the stuff to be disposed of in exactly the place that sin disposed of it did that all that in two thousand and seven you said that that was did they have they checked with the iowa d n r they haven't checked but that to me is actually more evidence of the legitimacy of the transaction because if nobody was talking about the costs of remediation at the time of the transaction that's pretty good evidence that it just wasn't a factor in the transaction and other courts have held that if the cost of remediation aren't being discussed between the parties then it's it's indicative that that simply wasn't a factor and shouldn't be given in a way to any particular direction