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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)
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
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)
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
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
