April 4, 2013 4th Circuit published opinion

PCS Nitrogen Incorporated v Ashley II of Charleston, LLC 

Ashley undertook environmental remediation on land formerly used as a phosphate fertilizer mine. It sued PCS and other entities for contribution under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). PCS countersued and several other parties cross sued each other. After two bench trials, PCS was ruled a responsible party and the district court divided responsibility among all responsible parties. The panel affirmed. It held that the district court did not clearly err in finding PCS was a responsible party as the purchase agreement was ambiguous, PCS took all the assets and liabilities unless sold to someone else, took the assets and liabilities “as is” and received a discount on the purchase price consistent with CERCLA liability assumption. The panel upheld other responsible party findings on the basis that a past owner moved earth contributed to the widespread contamination; that a lessee of part of the property occupied part of the contaminated facility and was thus potentially liable; and Ashley was potentially responsible as it owned the property at the time of the lawsuit and failed to make reasonable efforts, such as capping and filling sumps on the property, that even its expert witnesses acknowledged should have been done. The panel held that the district court properly conducted a fact specific analysis looking at both initial contamination and spread through land moving. The panel held that the assignment of responsibility to the current lessee was proper as allowing a zero percent responsibility argument when no movement of contamination occurred would render CERCLA’s narrow innocent owner provisions meaningless. As to the final apportionment of responsibility, the panel held that the district court considered appropriate factors and the assigned responsibility was reasonable looking at the record as a whole.

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