978-1285770178 Case Printout Case CPC-25-06 Part 1

C.A.4 (S.C.),2013.

PCS Nitrogen Inc. v. Ashley II of Charleston LLC

— F.3d —-, 2013 WL 1340018 (C.A.4 (S.C.))

Robin Hood Container Express Incorporated; Ross Development Corporation; Koninklijke DSM NV; DSM Chemi-

cals of North America Incorporated; All Waste Tank Cleaning Incorporated, Third Party Defendants–Appellees,

and

Robin Hood Container Express Incorporated; Ross Development Corporation; Koninklijke DSM NV; DSM Chemi-

cals of North America Incorporated; All Waste Tank Cleaning Incorporated; J Holcombe Enterprises LP; J Henry

Fair, Jr., Third Party Defendants–Appellees,

and

City of Charleston, South Carolina; James H. Holcombe, Third Party Defendants,

Background: Property owner brought cost recovery action against successor–in-interest to former site owner under

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Successor–in-interest filed

counterclaim and third-party contribution claims against parties with past and current connections to site. After

bench trials, the United States District Court for the District of South Carolina, Margaret B. Seymour, Chief Judge,

C. Weston Houck, Senior District Judge, found successor–in-interest jointly and severally liable for response costs,

(2) evidence supported district court’s finding that past owners were potentially responsible parties (PRP);

(3) leasehold was not separate facility;

(4) current owner failed to establish bona fide prospective purchaser (BFPP) exemption from liability;

(5) PRPs failed to show that harm was divisible;

(6) PRP failed to establish reasonable basis for apportioning its own harm; and

[1] Environmental Law 149E 438

149E Environmental Law

hazardous substances exists at facility; (4) plaintiff has incurred costs responding to release or threatened release of

hazardous substances; and (5) response costs conform to National Contingency Plan. Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, §§ 101(9, 22), 107(a), 42 U.S.C.A. §§ 9601(9, 22), 9607(a).

[2] Environmental Law 149E 445(3)

Liability for response costs under CERCLA is, by default, joint and several. Comprehensive Environmental Re-

sponse, Compensation, and Liability Act of 1980, § 107(a), 42 U.S.C.A. § 9607(a).

[3] Environmental Law 149E 447

If court apportions harm in CERCLA cost recovery action, party that incurred response costs bears burden of

orphaned shares because apportioned orphan share is necessarily unrecoverable. Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, § 107(a), 42 U.S.C.A. § 9607(a).

[4] Corporations and Business Organizations 101 2723(1)

101k2723(1) k. In General. Most Cited Cases

At common law, corporation that acquires assets of another corporation typically does not acquire its liabilities,

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk776 k. Trial De Novo. Most Cited Cases

170BVIII(K)5 Questions of Fact, Verdicts and Findings

170Bk855 Particular Actions and Proceedings, Verdicts and Findings

170Bk859 k. Contract Cases in General. Most Cited Cases

Court of Appeals reviews district court’s applications of contract principles de novo, and its findings of fact with

95II(A) General Rules of Construction

95k143.5 k. Construction as a Whole. Most Cited Cases

Contracts 95 147(3)

spread contamination across site. Comprehensive Environmental Response, Compensation, and Liability Act of

1980, § 107(a)(2), 42 U.S.C.A. § 9607(a)(2).

[12] Environmental Law 149E 443

part of contaminated “facility,” for CERCLA purposes. Comprehensive Environmental Response, Compensation,

and Liability Act of 1980, § 101(9), 42 U.S.C.A. § 9601(9).

[13] Environmental Law 149E 443

poses, even though leasehold was less contaminated than some of rest of site, where fertilizer production and con-

struction activities widely contaminated site, including area of leasehold. Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, §§ 101(9), 107(a), 42 U.S.C.A. §§ 9601(9), 9607(a).

[14] Environmental Law 149E 445(1)

CERCLA’s innocent landowner defense requires party otherwise liable as potentially responsible party (PRP) to

prove by preponderance of evidence that: (1) another party was sole cause of release of hazardous substances and

damages caused thereby; (2) other, responsible party did not cause release in connection with contractual, employ-

ment, or agency relationship with defendant; and (3) defendant exercised due care and guarded against foreseeable

cals of North America Incorporated; All Waste Tank Cleaning Incorporated, Third Party Defendants–Appellees,

and

Robin Hood Container Express Incorporated; Ross Development Corporation; Koninklijke DSM NV; DSM Chemi-

cals of North America Incorporated; All Waste Tank Cleaning Incorporated; J Holcombe Enterprises LP; J Henry

Fair, Jr., Third Party Defendants–Appellees,

and

City of Charleston, South Carolina; James H. Holcombe, Third Party Defendants,

Background: Property owner brought cost recovery action against successor–in-interest to former site owner under

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Successor–in-interest filed

counterclaim and third-party contribution claims against parties with past and current connections to site. After

bench trials, the United States District Court for the District of South Carolina, Margaret B. Seymour, Chief Judge,

C. Weston Houck, Senior District Judge, found successor–in-interest jointly and severally liable for response costs,

(2) evidence supported district court’s finding that past owners were potentially responsible parties (PRP);

(3) leasehold was not separate facility;

(4) current owner failed to establish bona fide prospective purchaser (BFPP) exemption from liability;

(5) PRPs failed to show that harm was divisible;

(6) PRP failed to establish reasonable basis for apportioning its own harm; and

[1] Environmental Law 149E 438

149E Environmental Law

hazardous substances exists at facility; (4) plaintiff has incurred costs responding to release or threatened release of

hazardous substances; and (5) response costs conform to National Contingency Plan. Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, §§ 101(9, 22), 107(a), 42 U.S.C.A. §§ 9601(9, 22), 9607(a).

[2] Environmental Law 149E 445(3)

Liability for response costs under CERCLA is, by default, joint and several. Comprehensive Environmental Re-

sponse, Compensation, and Liability Act of 1980, § 107(a), 42 U.S.C.A. § 9607(a).

[3] Environmental Law 149E 447

If court apportions harm in CERCLA cost recovery action, party that incurred response costs bears burden of

orphaned shares because apportioned orphan share is necessarily unrecoverable. Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, § 107(a), 42 U.S.C.A. § 9607(a).

[4] Corporations and Business Organizations 101 2723(1)

101k2723(1) k. In General. Most Cited Cases

At common law, corporation that acquires assets of another corporation typically does not acquire its liabilities,

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

170Bk776 k. Trial De Novo. Most Cited Cases

170BVIII(K)5 Questions of Fact, Verdicts and Findings

170Bk855 Particular Actions and Proceedings, Verdicts and Findings

170Bk859 k. Contract Cases in General. Most Cited Cases

Court of Appeals reviews district court’s applications of contract principles de novo, and its findings of fact with

95II(A) General Rules of Construction

95k143.5 k. Construction as a Whole. Most Cited Cases

Contracts 95 147(3)

spread contamination across site. Comprehensive Environmental Response, Compensation, and Liability Act of

1980, § 107(a)(2), 42 U.S.C.A. § 9607(a)(2).

[12] Environmental Law 149E 443

part of contaminated “facility,” for CERCLA purposes. Comprehensive Environmental Response, Compensation,

and Liability Act of 1980, § 101(9), 42 U.S.C.A. § 9601(9).

[13] Environmental Law 149E 443

poses, even though leasehold was less contaminated than some of rest of site, where fertilizer production and con-

struction activities widely contaminated site, including area of leasehold. Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, §§ 101(9), 107(a), 42 U.S.C.A. §§ 9601(9), 9607(a).

[14] Environmental Law 149E 445(1)

CERCLA’s innocent landowner defense requires party otherwise liable as potentially responsible party (PRP) to

prove by preponderance of evidence that: (1) another party was sole cause of release of hazardous substances and

damages caused thereby; (2) other, responsible party did not cause release in connection with contractual, employ-

ment, or agency relationship with defendant; and (3) defendant exercised due care and guarded against foreseeable