978-1285770178 Case Printout Case CPC-25-06 Part 3

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property for which Ashley sued PCS to remediate” is simply irrelevant. The relevant question is whether RHCE‘s

leasehold is part of a “facility” as defined by CERCLA. See, e.g., 42 U.S.C. § 9607(a)(1) (making liable “the owner

and operator of a … facility”).

tion of a larger property “in and around the [leaking] storage tanks”). The district court did not err in finding on the

basis of the evidence before it that RHCE’s leasehold is contaminated as part of a pattern of widespread contamina-

tion across the entire site. That is, RHCE’s parcel is part of the contaminated “facility” for CERCLA’s purposes.

[13] RHCE’s seeming suggestion that its leasehold—even though contaminated—should be considered sepa-

In this case, fertilizer production and construction activities widely contaminated the site, including the area of

RHCE’s leasehold. That the leasehold is less contaminated than some of the rest of the site and would not require

remediation for its current industrial use makes no difference for purposes of determining PRP status under CER-

CLA. This is so because the hazardous substances located on RHCE’s leasehold are not distinct from those on the

rest of the site. Otherwise, an operator of a less-contaminated leasehold, like RHCE’s, in a multiple-parcel facility

from PRP status as an innocent contiguous landowner under § 9607(q), it does assert a defense from liability as an

innocent landowner under § 9607(b)(3). This defense requires a party otherwise liable as a PRP to prove “by a pre-

ponderance of the evidence: (1) that another party was the ‘sole cause’ of the release of hazardous substances and

In short, because RHCE is a current operator of a leasehold that is part of the facility at the site, we affirm the

district court’s determination that RHCE is a PRP for the site as a current operator under 42 U.S.C. § 9607(a)(1).

mote the cleanup and reuse of brownfields” under the Small Business Liability Relief and Brownfields Revitaliza–

tion Act (“Brownfields Act”), Pub. L. No. 107–118, 115 Stat. 2356 (2002). BFPP status exempts from CERCLA

liability a party otherwise liable simply because it is “considered to be an owner or operator of a facility” under 42

U.S.C. § 9607(a)(1). See 42 U.S.C. § 9607(r)(1). To qualify for the exemption, a current owner or operator of a fa-

cility must have acquired the facility after January 11, 2002, must “not impede the performance of a response action

vent or limit human, environmental, or natural resource exposure to any previously released hazardous substance.”

Id. § 9601(40)(D). The court specifically found that Ashley failed to clean out and fill in sumps that should have

been capped, filled, or removed when related aboveground structures were demolished, and that Ashley did not

monitor and adequately address conditions relating to a debris pile and the limestone run of crusher cover on the

site. The court concluded that these inactions established that Ashley did not exercise appropriate care at the site.

argument goes too far.

In particular, Ashley fails to provide a persuasive rationale for requiring a lower level of “care” from a BFPP

under § 9607(r)(1), than from an “innocent landowner” under § 9607(b)(3). Both the BFPP exemption and the inno–

cent landowner defense require a demonstration of “reasonable steps.” Compare 42 U.S.C. § 9601(35)(B)(i)(II),

We need not here determine whether the BFPP standard of “appropriate care” actually is higher than the stand-

ard of “due care” mandated elsewhere in CERCLA, because in all events “appropriate care” under § 9601(40)(D) is

[16][17] We therefore borrow standards from CERCLA’s “due care” jurisprudence to inform our determination

of what “reasonable steps” must be taken to demonstrate “appropriate care.” We agree with the Second Circuit that

the “due care” inquiry asks whether a party “took all precautions with respect to the particular waste that a similarly

situated reasonable and prudent person would have taken in light of all relevant facts and circumstances.” New York

v. Lashins Arcade Co., 91 F.3d 353, 361 (2d Cir.1996) (internal quotation marks omitted). Under this standard, Ash-

Accordingly, the district court did not err in finding that Ashley failed to demonstrate that it exercised “appro–

priate care” at the site. Because a party must establish all eight factors under 42 U.S.C. § 9601(40) to qualify for a

BFPP exemption from liability, this failure mandates denial of Ashley’s claim to BFPP exemption and affirmance of

the district court’s holding that Ashley is a PRP for the site as a current owner under § 9607(a)(1).

[18] “While CERCLA does not mandate the imposition of joint and several liability, it permits it in cases of in-

divisible harm.” Monsanto, 858 F.2d at 171. The Supreme Court has confirmed that “[t]he universal starting point

for divisibility of harm analyses in CERCLA cases is § 433A of the Restatement (Second) of Torts.” Burlington

Northern, 556 U.S. at 614, 129 S.Ct. 1870 (internal quotation marks omitted); see also Monsanto, 858 F.2d at 172.

joint and several liability by establishing either that on–site harms are distinct, or that there exists “a reasonable basis

for apportioning liability” for a single harm “among responsible parties.” Monsanto, 858 F.2d at 172 (citing Re-

statement (Second) of Torts § 433B (1965)).

For this reason, CERCLA’s joint and several liability scheme may be “terribly unfair in certain instances.” Bell

Petroleum Servs., 3 F.3d at 897. Nonetheless, “[e]quitable considerations play no role in the apportionment analy-

sis,” Burlington Northern, 556 U.S. at 615 n. 9, 129 S.Ct. 1870, because the availability of contribution actions un-

der 42 U.S.C. § 9613(f) mitigates any inequity arising from the unavailability of apportionment, see Axel Johnson,

if a defendant provided sufficient evidence to establish a reasonable basis for apportionment based on those two

factors.

At trial, PCS offered several bases for apportionment, including (1) the amount of fill material each PRP added

to the site; (2) the volume of contaminants Planters and Old CNC introduced to the site; (3) the period of time that

provide a reasonable estimate of the volume of soil contaminated by secondary disposals; (2) account for the likeli-

hood of contamination prior to 1906, and thus assumed that Planters was responsible for all contamination prior to

1945; or (3) compensate appropriately for changes in the type and intensity of uses and construction on the site over

time.

the total area of the facility the railroads owned; (2) the percentage of time the railroads leased their parcel to the

facility operator; and (3) an estimate of the percentage of contamination at the facility attributable to the types of

hazardous substances present on the railroads’ parcel. The court then adjusted its calculation by adding a fifty–

[20] Contrary to PCS’s assertion, the district court’s denial of apportionment here is entirely consistent with Bur–

lington Northern. To be sure, Burlington Northern demonstrates that a “reasonable basis for apportionment” need

not be mathematically precise, and may be based on the “simplest of considerations,” e.g., time and land area. See

556 U.S. at 617–18, 129 S.Ct. 1870; see also NCR Corp., 688 F.3d at 842. However, Burlington Northern neither

mandates these “simplest of considerations,” nor establishes their presumptive propriety in every case. See NCR

fact-intensive, site-specific determination. See NCR Corp., 688 F.3d at 841–42.

Here the district court undertook precisely such a fact-intensive, site-specific determination. Weighing the facts

in this case, the court held that any reasonable basis for apportionment must include reliable evidence as to both the

initial disposals of hazardous substances and any secondary disposals that occurred over time. Indeed, the court dis-

Indeed, as Burlington Northern confirmed, in the face of uncertain causation of harm, “ ‘courts have refused to

make an arbitrary apportionment for its own sake.’ ” 556 U.S. at 614–15, 129 S.Ct. 1870 (quoting Restatement (Sec–

ond) of Torts § 433A cmt. i (1963–64)). An arbitrary apportionment is just what the district court refused to make, as

any apportionment without adequate evidence as to the harm caused by secondary disposals necessarily would have

the court found that all of the proposed methods of apportionment improperly assumed Planters‘ responsibility for all

harm at the site prior to 1945, PCS and RHCE each maintain that they established a reasonable basis for apportion-

ing at least their individual shares of the harm. Because PCS and RHCE are PRPs under different CERCLA provi-

Neither we nor the Supreme Court has ever before considered the question. Contrary to PCS’s suggestion, Bur–

lington Northern provides no guidance. The district court there apportioned all of the harm, because, in that case, all

harm not caused by the railroads was necessarily caused by the longtime operator of the facility. See Burlington

Northern, 556 U.S. at 606, 129 S.Ct. 1870.

fendant], as opposed to other responsible parties.”), overruled on other grounds by United States v. E.I. Dupont De

Nemours & Co., 432 F.3d 161 (3d Cir.2005); Chem–Nuclear Sys., Inc. v. Bush, 292 F.3d 254, 259–60

(D.C.Cir.2002) (holding that a PRP can avoid joint and several liability by proving “the amount of the harm that it

caused” (internal quotation marks omitted)).

Because it did not do so, PCS failed to provide a “reasonable basis for apportionment” of its own harm (let alone all

of the harm), and we affirm the district court’s denial of apportionment. See Chem–Nuclear Sys., 292 F.3d at 260

(finding defendant failed to prove its own share of the harm); Rohm & Haas Co., 2 F.3d at 1280 (same).

operators strictly liable for response costs regardless of their culpability. 42 U.S.C. § 9607(a)(1); Trinity Am. Corp.

v. U.S. Envtl. Prot. Agency, 150 F.3d 389, 395 (4th Cir.1998). “Innocent” current owners and operators seeking to

avoid CERCLA’s strict liability scheme must meet the requirements necessary to claim the narrow defenses and

pare 42 U.S.C. § 9607(a)(1) (establishing liability for current owners and operators, regardless of whether disposal

occurred during ownership or operation), with id. § 9607(a)(2) (requiring disposal during ownership or operation for

liability).

Such a rule would frustrate the several narrow statutory defenses and exemptions Congress created to address

interpret a statute to avoid rendering any of its provisions superfluous. Astoria Fed. Sav. & Loan Ass‘n v. Solimino,

501 U.S. 104, 112, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Our holding today avoids such redundancy, and pre-

serves Congress’ calculated balance of broad strict liability and narrow defenses and exemptions under CERCLA.

IV.

Section 9613(f) allows “[a]ny person [to] seek contribution from any other person who is liable or potentially

liable under section 9607(a) … during or following any civil action … under section 9607(a).” A court “may allocate

response costs among liable parties using such equitable factors as the court determines are appropriate.” 42 U.S.C.

§ 9613(f)(1). This plain language grants a court significant discretion to choose which factors to consider in deter–

contend that the court clearly erred by allocating too much liability to each of them, and not enough to the other par-

ties.FN10

sions supported by the evidence.” Boeing, 207 F.3d at 1188. We therefore affirm the district court‘s allocation of

liabilities under § 9613(f).FN11

For the foregoing reasons, the judgment of the district court is

in how they determine liability for so–called “orphaned” shares—those shares of “liability attributable to a

party who is insolvent, cannot be located, or cannot be identified,” Lyondell Chem. Co. v. Occidental

Chem. Corp., 608 F.3d 284, 303 (5th Cir.2010). If a court apportions harm, the party that incurred the re-

sponse costs bears the burden of orphaned shares because the apportioned orphan share is necessarily unre-

coverable. See Burlington Northern, 556 U.S. at 605, 618–19, 129 S.Ct. 1870 (upholding apportionment

FN2. Holcombe formed Holcombe Enterprises, Inc., on December 17, 1997 and conveyed his share of the

site to Holcombe Enterprises six days later. Holcombe, Fair, and Holcombe Enterprises are all parties to

this appeal, and were treated as one entity by the district court. For the sake of simplicity, we identify the

owners of the site as Holcombe and Fair both before and after Holcombe’s conveyance of his share of the

ley purchased the site, it asked EPA to notify it if the agency desired “specific cooperation, assistance, ac–

cess or the undertaking of any reasonable steps with respect to the Site.” In October 2005, EPA determined

that the site qualified for a non-time-critical removal action and described its preferred removal alterna-

CNC. Before the district court, PCS merely argued that veil-piercing and single business enterprise theories

rendered the DSM Parties liable. The district court rejected both contentions. On appeal, PCS contends that

the “amalgamation” theory renders the DSM Parties liable. See, e.g., Kincaid v. Landing Dev. Corp., 289

S.C. 89, 344 S.E.2d 869, 874 (App.1986). PCS waived this argument by failing to raise it before the district

court. See Holland v. Big River Minerals Corp., 181 F.3d 597, 605 (4th Cir.1999).

evidence was absent in Redwing Carriers, but is present here.

FN6. The district court also held that RHCE was a PRP as an operator at the time of disposal under §

9607(a)(2), a holding that RHCE contends constitutes clear error. We need not reach that question because

RHCE does not challenge on appeal the court’s alternative holding that RHCE is a current operator.

(4th Cir.1990).

FN8. We note that some courts have held that apportionment is not available to parties, like RHCE, sued

under § 9613(f), because apportionment is a defense to joint and several liability, and § 9613 imposes only

several liability. See Redwing Carriers, 94 F.3d at 1513. Because no party raises this argument and RHCE’s

while denying this right to a current operator PRP who was not a PRP at the time of disposal.

FN10. We reject Holcombe and Fair’s alternative argument that we remand for further factual findings be-

plus interest, and that PCS recover from Ross $87,404.82 plus interest. Ross contends that the money

judgment against it is premature because PCS, as the jointly and severally liable party under 42 U.S.C. §

9607(a), has not yet paid its proportionate share of allocated liability to Ashley. However, the court’s order

denying modification of the money judgment explicitly recognized that PCS cannot recover from Ross un-

til it has paid more than its proportionate share to Ashley. Considering the court’s clarification on the rec–

END OF DOCUMENT