Ashley II of Charleston LLC v. PCS Nitrogen Incorporated , 714 F.3d 161 ( 2013 )


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  •                         PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    PCS NITROGEN INCORPORATED,              
    successor through purchase, name
    change and merger to Columbia
    Nitrogen Corporation,
    Defendant and Third Party
    Plaintiff-Appellant,
    v.
    ASHLEY II OF CHARLESTON LLC,
    Plaintiff-Appellee,
    ROSS DEVELOPMENT CORPORATION; J
    HOLCOMBE ENTERPRISES LP;
    KONINKLIJKE DSM NV; DSM
    CHEMICALS OF NORTH AMERICA                 No. 11-1662
    INCORPORATED; ROBIN HOOD
    CONTAINER EXPRESS INCORPORATED;
    ALL WASTE TANK CLEANING
    INCORPORATED, f/k/a PSC Container
    Services, LLC, now known as
    QualaServices, LLC; J HENRY
    FAIR, JR.,
    Third Party Defendants-Appellees,
    and
    JAMES H. HOLCOMBE; CITY OF
    CHARLESTON, SOUTH CAROLINA,
    Third Party Defendants.
    
    2       PCS NITROGEN INC. v. ASHLEY II       OF   CHARLESTON
    ROSS DEVELOPMENT CORPORATION,            
    Third Party Defendant-Appellant,
    v.
    PCS NITROGEN INCORPORATED,
    successor through purchase, name
    change and merger to Columbia
    Nitrogen Corporation,
    Defendant and Third Party
    Plaintiff-Appellee,
    and
    ASHLEY II OF CHARLESTON LLC,
    Plaintiff,             No. 11-2087
    J HOLCOMBE ENTERPRISES LP;
    KONINKLIJKE DSM NV; ROBIN
    HOOD CONTAINER EXPRESS
    INCORPORATED; DSM CHEMICALS OF
    NORTH AMERICA INCORPORATED;
    ALL WASTE TANK CLEANING
    INCORPORATED; J HENRY FAIR, JR.;
    CITY OF CHARLESTON, SOUTH
    CAROLINA; JAMES H. HOLCOMBE,
    Third Party Defendants,
    PSC CONTAINER SERVICES LLC,
    Defendant.
    
    PCS NITROGEN INC. v. ASHLEY II      OF   CHARLESTON      3
    ROBIN HOOD CONTAINER EXPRESS            
    INCORPORATED,
    Third Party Defendant-Appellant,
    v.
    PCS NITROGEN INCORPORATED,
    successor through purchase, name
    change and merger to Columbia
    Nitrogen Corporation,
    Defendant and Third Party
    Plaintiff-Appellee,
    ASHLEY II OF CHARLESTON LLC,
    Plaintiff-Appellee,
    ROSS DEVELOPMENT CORPORATION; J
    HOLCOMBE ENTERPRISES LP;
              No. 11-2099
    KONINKLIJKE DSM NV; DSM
    CHEMICALS OF NORTH AMERICA
    INCORPORATED; ALL WASTE TANK
    CLEANING INCORPORATED; J HENRY
    FAIR, JR.,
    Third Party Defendants-Appellees,
    and
    CITY OF CHARLESTON, SOUTH
    CAROLINA; JAMES H. HOLCOMBE,
    Third Party Defendants,
    PSC CONTAINER SERVICES LLC,
    Defendant.
    
    4       PCS NITROGEN INC. v. ASHLEY II      OF   CHARLESTON
    J HOLCOMBE ENTERPRISES LP;              
    J HENRY FAIR, JR.,
    Third Party
    Defendants-Appellants,
    v.
    PCS NITROGEN INCORPORATED,
    successor through purchase, name
    change and merger to Columbia
    Nitrogen Corporation,
    Defendant and Third Party
    Plaintiff-Appellee,
    ASHLEY II OF CHARLESTON LLC,
    Plaintiff-Appellee,
    ROBIN HOOD CONTAINER EXPRESS                      No. 11-2104
    INCORPORATED; ROSS DEVELOPMENT
    CORPORATION; KONINKLIJKE DSM
    NV; DSM CHEMICALS OF NORTH
    AMERICA INCORPORATED; ALL
    WASTE TANK CLEANING
    INCORPORATED,
    Third Party Defendants-Appellees,
    and
    CITY OF CHARLESTON, SOUTH
    CAROLINA; JAMES H. HOLCOMBE,
    Third Party Defendants,
    PSC CONTAINER SERVICES LLC,
    Defendant.
    
    PCS NITROGEN INC. v. ASHLEY II      OF   CHARLESTON      5
    ASHLEY II   OFCHARLESTON LLC,           
    Plaintiff-Appellant,
    v.
    PCS NITROGEN INCORPORATED,
    successor through purchase, name
    change and merger to Columbia
    Nitrogen Corporation,
    Defendant and Third Party
    Plaintiff-Appellee,
    ROBIN HOOD CONTAINER EXPRESS
    INCORPORATED; ROSS DEVELOPMENT
    CORPORATION; KONINKLIJKE DSM
    NV; DSM CHEMICALS OF NORTH                        No. 11-2297
    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,
    PSC CONTAINER SERVICES LLC,
    Defendant.
    
    Appeals from the United States District Court
    for the District of South Carolina, at Charleston.
    Margaret B. Seymour, Chief District Judge;
    C. Weston Houck, Senior District Judge.
    (2:05-cv-02782-MBS)
    6       PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    Argued: December 5, 2012
    Decided: April 4, 2013
    Before MOTZ, KING, and DIAZ, Circuit Judges.
    Affirmed by published opinion. Judge Motz wrote the opin-
    ion, in which Judge King and Judge Diaz joined.
    COUNSEL
    ARGUED: Brian J. Murray, JONES DAY, Chicago, Illinois,
    for PCS Nitrogen Incorporated. Thomas Nolen Barefoot,
    Bethesda, Maryland, for Ashley II of Charleston LLC; Capers
    Gamewell Barr, III, BARR, UNGER & MCINTOSH,
    Charleston, South Carolina, for J. Holcombe Enterprises LP
    and J. Henry Fair, Jr.; Daniel S. McQueeney, Jr., PRATT-
    THOMAS WALKER, PA, Charleston, South Carolina, for
    Ross Development Corporation; Timothy William Bouch,
    LEATH, BOUCH & CRAWFORD, LLP, Charleston, South
    Carolina, for Robin Hood Container Express, Incorporated;
    Lewis Bondurant Jones, KING & SPALDING, LLP, Atlanta,
    Georgia, for Koninklijke DSM NV and DSM Chemicals of
    North America, Incorporated. Jason Scott Luck, SEIBELS
    LAW FIRM, PA, Charleston, South Carolina, for Allwaste
    Tank Cleaning, Incorporated. ON BRIEF: John B. Williams,
    COZEN O’CONNOR, Washington, D.C.; Jennifer L. Swize,
    Craig I. Chosiad, JONES DAY, Washington, D.C., for PCS
    Nitrogen Incorporated. G. Trenholm Walker, PRATT-
    THOMAS WALKER, PA, Charleston, South Carolina;
    Thomas M. Shelley, III, ROGERS, TOWNSEND &
    THOMAS, PC, Columbia, South Carolina, for Ross Develop-
    ment Corporation. Amy E. Melvin, LEATH, BOUCH &
    SEEKINGS, LLP, Charleston, South Carolina, for Robin
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON      7
    Hood Container Express, Incorporated. Randall J. Butterfield,
    John L. Fortuna, KING & SPALDING LLP, Atlanta, Geor-
    gia, for Koninklijke DSM NV and DSM Chemicals of North
    America, Incorporated.
    OPINION
    DIANA GRIBBON MOTZ, Circuit Judge:
    These appeals arise from disputes as to liability for cleanup
    of hazardous substances at a former fertilizer manufacturing
    site in Charleston, South Carolina. After incurring response
    costs, Ashley II of Charleston, Inc., the current owner of a
    portion of the site, brought a cost recovery action against PCS
    Nitrogen, Inc., under the Comprehensive Environmental
    Response, Compensation, and Liability Act ("CERCLA"), 
    42 U.S.C. §§ 9601-9675
     (2006). PCS counterclaimed and also
    brought third-party contribution actions against parties with
    past and current connections to the site. The district court
    bifurcated the case for trial. At the conclusion of the first
    bench trial, it found PCS a potentially responsible party
    jointly and severally liable for response costs at the site. At
    the conclusion of the second bench trial, the court found some
    of the other parties, including Ashley, potentially responsible
    parties, each liable for an allocated portion of the site’s
    response costs. PCS, Ashley, and many of the other parties
    now appeal. For the reasons that follow, we affirm the judg-
    ment of the district court in all respects.
    I.
    A.
    Congress enacted CERCLA in response to "the increasing
    environmental and health problems associated with inactive
    hazardous waste sites." Nurad, Inc. v. William E. Hooper &
    8       PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    Sons Co., 
    966 F.2d 837
    , 841 (4th Cir. 1992). CERCLA "was
    designed to promote the timely cleanup of hazardous waste
    sites and to ensure that the costs of such cleanup efforts were
    borne by those responsible for the contamination." Burlington
    N. & Santa Fe Ry. Co. v. United States, 
    556 U.S. 599
    , 602
    (2009) (internal quotation marks omitted).
    In furtherance of these goals, CERCLA allows "private par-
    ties to recover the costs of cleaning up hazardous wastes from
    certain defined types of person." Axel Johnson, Inc. v. Carroll
    Carolina Oil Co., 
    191 F.3d 409
    , 413 (4th Cir. 1999). A
    private-party plaintiff establishes a prima facie case for cost
    recovery under CERCLA by establishing that (1) the defen-
    dant is a potentially responsible person ("PRP"); (2) the site
    constitutes a "facility"; (3) a "release" or a threatened release
    of hazardous substances exists at the "facility"; (4) the plain-
    tiff has incurred costs responding to the release or threatened
    release of hazardous substances ("response costs"); and (5)
    the response costs conform to the National Contingency Plan.
    
    42 U.S.C. §§ 9601
    (9), (22), 9607(a); see ABB Indus. Sys., Inc.
    v. Prime Tech., Inc., 
    120 F.3d 351
    , 356 (2d Cir. 1997).
    Section 9607(a) establishes strict liability. See United
    States v. Monsanto Co., 
    858 F.2d 160
    , 167 (4th Cir. 1988).
    This liability under CERCLA is subject only to a few narrow
    defenses and exemptions. See 
    42 U.S.C. § 9607
    (b) (defenses);
    
    id.
     § 9607(o)-(r) (exemptions). Liability is, by default, joint
    and several. See Monsanto, 858 F.2d at 171-72.
    However, in some circumstances a PRP may mitigate the
    sting of CERCLA’s imposition of joint and several liability
    by apportionment or allocation of harm. See Axel Johnson,
    
    191 F.3d at 413
    . Apportionment—also known as division of
    damages—assigns a several share of liability to each PRP
    based on "traditional and evolving principles of federal com-
    mon law." Monsanto, 858 F.2d at 171-72. Under these princi-
    ples, apportionment is available only when a PRP proves that
    "there is a reasonable basis for determining the contribution
    PCS NITROGEN INC. v. ASHLEY II        OF   CHARLESTON           9
    of each cause to a single harm." Burlington Northern, 
    556 U.S. at 614
     (quoting Restatement (Second) of Torts
    § 433A(1)(b) (1963-64)).
    In contrast, allocation of harm—also known as contribution
    —is available to any party sued under § 9607(a), and allows
    the party to "seek contribution from any other person who is
    liable or potentially liable under [§] 9607(a)." 
    42 U.S.C. § 9613
    (f). The district court may then allocate several liability
    for "response costs among liable parties using such equitable
    factors as the court determines are appropriate." Id.; see Min-
    yard Enters., Inc. v. Se. Chem. & Solvent Co., 
    184 F.3d 373
    ,
    385 (4th Cir. 1999).1
    B.
    Central to this CERCLA case is the history of the site at
    issue here—approximately forty-three acres located in
    Charleston, South Carolina. As a result of decades of phos-
    phate fertilizer production, the westernmost thirty-four acres
    1
    In addition to the fact that apportionment rests on causation principles
    and allocation rests on equity principles, the two also differ in function.
    Although both technically negate CERCLA’s joint liability by assigning
    shares of liability, see Minyard Enters., 
    184 F.3d at 385
    ; Monsanto, 858
    F.2d at 171-72, they differ 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 response costs bears the
    burden of orphaned shares because the apportioned orphan share is neces-
    sarily unrecoverable. See Burlington Northern, 
    556 U.S. at 605, 618-19
    (upholding apportionment that left over ninety percent of the harm as an
    orphaned share ultimately borne by the government). But when a court
    allocates shares it retains the equitable discretion to allocate orphaned
    shares (or re-allocate newly orphaned shares) to solvent, available PRPs,
    thus shifting the burden of orphaned shares from the party that incurs the
    response costs. See Lyondell Chem. Co., 
    608 F.3d at 303
    ; Pinal Creek
    Group v. Newmont Mining Corp., 
    118 F.3d 1298
    , 1303 (9th Cir. 1997),
    overruling on other grounds recognized by Kotrous v. Goss-Jewett Co. of
    N. Cal., 
    523 F.3d 924
    , 927 (9th Cir. 2008).
    10      PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    of the site require remediation of soils contaminated with
    arsenic, lead, and other hazardous substances. The evidence
    presented at the two bench trials established the following
    facts.
    1.
    From 1884 to the early 1900s, seven phosphate fertilizer
    plants operated in close proximity to the site and provided
    potential sources for pyrite waste that may have been dis-
    posed of on the site prior to 1906.
    Planters Fertilizer & Phosphate Company, now known as
    Ross Development Corporation, purchased the site in 1906.
    Planters manufactured phosphate fertilizer at the site by react-
    ing sulfuric acid with phosphate rock. Planters produced the
    sulfuric acid for the process on-site, and stored the acid in
    lead-lined tanks. Prior to the 1930s, Planters used pyrite ore
    as the primary fuel for its sulfuric acid production. The burn-
    ing of pyrite ore generated a pyrite slag byproduct containing
    high concentrations of arsenic and lead. Planters spread the
    slag byproduct to stabilize roads on the site. This accounts for
    the vast majority of arsenic and lead contamination found on
    the site today.
    Planters continued operating its fertilizer production plant
    on the site until 1966. During that time, Planters constructed
    and repaired several minor buildings and, after a fire
    destroyed a significant portion of its original acid plant, con-
    structed a modernized acid plant. On June 30, 1966, Planters
    sold the site—including the plant and its equipment—to
    Columbia Nitrogen Corporation ("Old CNC").
    Old CNC continued operations of the acid and fertilizer
    plants until 1970 and 1972, respectively. Although Old CNC
    did not use pyrite ore, its superphosphate fertilizer production
    generated dust that contained elevated levels of arsenic and
    lead, and contributed to arsenic and lead soil contamination
    PCS NITROGEN INC. v. ASHLEY II         OF   CHARLESTON           11
    on the site. During its operations, Old CNC constructed a new
    granulation plant and converted the former granulation plant
    into storage.
    In April 1971, a wind storm extensively damaged many
    buildings on the site, including the acid plant, and dispersed
    contaminated materials across the site. Old CNC chose not to
    repair, and instead demolished, the damaged acid plant. In the
    process, Old CNC disturbed the subsurface soil to a depth of
    at least two feet. By October 1972, Old CNC had ceased all
    fertilizer production on the site.
    The site remained inactive until 1977, when Old CNC
    began to dismantle the remaining structures, a process com-
    pleted in January 1981. All told, Old CNC’s construction and
    demolition activities between 1971 and 1981 affected nearly
    eighty percent of the area of contaminated soils that needs to
    be remediated as part of the site’s cleanup. In May 1985, Old
    CNC sold the site to James H. Holcombe and J. Henry Fair
    (collectively "Holcombe and Fair"2). But in doing so, Old
    CNC apparently did not transfer any of its corporate liabilities
    for past actions on the site; thus, as the parties agree, Old
    CNC—if still in existence—would be a PRP with respect to
    the site. See infra § II.A.
    2.
    Old CNC did not limit its fertilizer production to the site.
    Rather, while owning the site, Old CNC also owned and oper-
    ated an ammonia and nitrogen fertilizer plant in Augusta,
    Georgia. In 1986, over a year after Old CNC had sold its
    2
    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 simplic-
    ity, we identify the owners of the site as Holcombe and Fair both before
    and after Holcombe’s conveyance of his share of the property to Hol-
    combe Enterprises.
    12      PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    Charleston site, Old CNC’s parent corporations, Koninklijke
    DSM N.V. and DSM Chemicals North America (collectively
    "DSM Parties"), decided to shut down Old CNC to benefit
    from a $100 million tax advantage in the Netherlands. To do
    so, Old CNC sought a buyer for certain "Assets" and its "Ac-
    quired Business," including its Augusta plant and operation.
    Andlinger & Company, Inc., a firm specializing in the acqui-
    sition of businesses, incorporated CNC Corp. ("New CNC")
    to purchase Old CNC’s "Assets" and "Acquired Business."
    Old CNC and New CNC entered into a series of agree-
    ments, and the acquisition closed on November 6, 1986.
    Under the Acquisition Agreement, New CNC purchased cer-
    tain "Assets" and the "Acquired Business" for $50 million, an
    approximately sixty percent discount from book value. In
    exchange for an additional $5 million discount, New CNC
    accepted the acquired business and assets "as is." After clos-
    ing, New CNC immediately changed its name to "Columbia
    Nitrogen Corporation" –- the same name under which Old
    CNC operated. At the same time, Old CNC initiated the pro-
    cess of liquidation and dissolution.
    After the acquisition, New CNC continued producing
    ammonia- and nitrogen-based fertilizers at the Augusta plant.
    By virtue of a series of mergers and acquisitions, PCS Nitro-
    gen, Inc., is a successor to New CNC. Neither New CNC nor
    PCS ever owned or operated any portion of the Charleston
    site at issue in this appeal.
    3.
    Meanwhile, Holcombe and Fair, who had acquired the
    Charleston site from Old CNC in 1985, were unaware of any
    contamination at the site. They first became aware of the pres-
    ence of hazardous substances at the site in 1990.
    Holcombe and Fair intended to subdivide and lease the site,
    and the record contains no evidence that Holcombe and Fair
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON      13
    introduced any new hazardous substances to the site. How-
    ever, even after learning of the possibility (and ultimate exis-
    tence) of hazardous substances on the site, Holcombe and Fair
    undertook site-wide earth-moving activities, including the
    construction of a street extension, the addition of water and
    sewer lines, excavation and grading, and the construction of
    several detention ponds. As late as 1998, Holcombe and Fair
    undertook earth-moving activities in areas with "discolored"
    and "contaminated" soils, and destroyed on-site wetlands
    along the Ashley River. However, they also added a four-to-
    six inch limestone run of crusher cover over the majority of
    the site, which mitigated risks of acute exposure to the site’s
    contaminated soils.
    During their ownership, Holcombe and Fair subdivided and
    conveyed several parcels from the original site. First, in
    December 1987, Holcombe and Fair sold three acres of the
    site to Max and Marlene Mast. The Masts sold their parcel to
    Allwaste Tank Cleaning, Inc., in August 1988. Allwaste oper-
    ated a shipping container cleaning and storage business and in
    1991 leased two additional acres from Holcombe and Fair for
    storage. As part of its operations, Allwaste utilized an under-
    ground sump system to capture wastewater generated by the
    container-cleaning process and pump it into a treatment sys-
    tem. Allwaste allowed the sumps to deteriorate during its
    ownership of the parcel to the extent that the sumps presented
    a threat of a release of hazardous substances. Although All-
    waste did not introduce arsenic or lead to its parcel, both con-
    taminate the soils in its parcel. Allwaste still owned the parcel
    at the commencement of this action.
    In December 1990, Holcombe and Fair contracted to sell
    two acres of the site to Robin Hood Container Express
    ("RHCE"). In December 1991, RHCE directed and paid for
    the excavation of a 1380-cubic-foot pond, two asphalt drive-
    ways, and extended sewer and water lines on the site. Con-
    tractors for RHCE also stripped six inches of topsoil and
    graded and proof-rolled the land. A month later, Holcombe
    14       PCS NITROGEN INC. v. ASHLEY II      OF   CHARLESTON
    and Fair conveyed the two-acre parcel to RHCE’s president,
    Robin Hood, who leased it to RHCE to operate a dropyard.
    During its tenure, RHCE filled in the pond, and limestone run
    of crusher now covers the entire parcel. Although RHCE did
    not introduce any arsenic or lead to its leasehold, both con-
    taminate its leasehold’s soil. Robin Hood continued to own,
    and RHCE continued to lease, this parcel at the commence-
    ment of this action.
    In December 1991, Holcombe and Fair conveyed the street
    extension they had constructed, totaling 1.28 acres, to the City
    of Charleston by quitclaim deed. The City remains the owner
    of the street extension today.
    Finally, in November 2003, Holcombe and Fair sold their
    remaining 27.62 acres of the site to Ashley II of Charleston,
    Inc., for $2.7 million. Ashley purchased the site to include it
    as a portion of its Magnolia Development—a sustainable,
    mixed-use project. As with other parcels within the project,
    Ashley purchased the site with knowledge of, and the intent
    to remediate, the contaminated soils.
    By the time of Ashley’s ownership, the run of crusher
    cover had degraded, leaving contaminated soil exposed in
    many areas. For several years, Ashley allowed a trash pile to
    accumulate on its parcel.
    In February 2007—well after the commencement of this
    action—Ashley contracted with Allwaste to purchase All-
    waste’s three-acre parcel. Ashley engaged in extensive pre-
    purchase environmental assessments of the parcel, and All-
    waste conveyed the parcel to Ashley in May 2008.
    In investigating and remediating the site, Ashley to date has
    incurred response costs totaling at least $194,000.3
    3
    Since 1998, state and federal experts have comprehensively investi-
    gated environmental conditions at the site, and have documented arsenic-
    PCS NITROGEN INC. v. ASHLEY II        OF   CHARLESTON          15
    C.
    On September, 26, 2005, Ashley filed this action, seeking
    a declaratory judgment that PCS was jointly and severally lia-
    ble for response costs as a PRP for the site, and recovery of
    response costs already incurred. See 
    42 U.S.C. § 9607
    (a)(4)(B). Ashley contended that PCS was a successor
    corporation to Old CNC, and thus liable as a PRP in Old
    CNC’s stead.
    PCS denied liability as a successor corporation to Old
    CNC, and in the alternative filed a contribution counterclaim
    under 
    42 U.S.C. § 9613
    (f) against Ashley and third-party
    claims against Ross, the DSM Parties, Holcombe and Fair,
    Allwaste, RHCE, and the City of Charleston. Those parties in
    turn filed counter- and cross-claims against one another under
    § 9613(f), and also sought determination of their rights to
    future cost recovery and contribution.
    The district court bifurcated the proceedings. The first trial
    would determine if PCS was liable to Ashley under § 9607(a).
    If so, the second trial would allocate the ultimate responsibil-
    ity of each party for response costs at the site under § 9613(f).
    On September 28, 2007, after a bench trial on PCS’s liabil-
    ity, the court held that PCS was a corporate successor to Old
    CNC, and thus jointly and severally liable to Ashley for
    response costs as a PRP for the site. A year later, the presiding
    and lead-contaminated soils and low soil pH conditions across the site, as
    well as two carcinogenic polycyclic aromatic hydrocarbon "hotspots."
    Although EPA considered undertaking removal actions during Holcombe
    and Fair’s ownership of the site, it did not do so. After Ashley purchased
    the site, it asked EPA to notify it if the agency desired "specific coopera-
    tion, assistance, access or the undertaking of any reasonable steps with
    respect to the Site." In October 2005, EPA determined that the site quali-
    fied for a non-time-critical removal action and described its preferred
    removal alternatives. To date, however, EPA has not ordered Ashley to
    take any remedial actions on the site.
    16      PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    judge disqualified himself from further participation in the
    case, and the case was reassigned to another judge. On June
    2, 2009, the successor judge denied PCS’s motion to vacate
    the original judge’s order as to PCS’s liability. Shortly there-
    after, the court granted summary judgment to the DSM Par-
    ties, holding them not liable because "no basis existed" for
    imputing Old CNC’s acts to them.
    Then, between October 2009 and January 2010, the district
    court held a sixteen-day bench trial on the allocation phase.
    The court ultimately allocated liability for past and future
    response costs at the site to PCS, Ashley, Ross, Holcombe
    and Fair, RHCE, and Allwaste in various amounts.
    These appeals followed. On appeal, no party disputes that
    Ashley incurred response costs for the cleanup of hazardous
    substances at the site that were consistent with the National
    Contingency Plan. Rather, the parties solely dispute whether
    and to what amount each is liable for response costs at the
    site.
    II.
    We first address the appeals of the district court’s determi-
    nations as to which parties constitute PRPs for the site.
    CERCLA defines four non-mutually exclusive classes of
    PRPs liable for costs incurred in responding to a "release" of
    hazardous substances at any "facility." 
    42 U.S.C. § 9607
    (a);
    see Nurad, 966 F.2d at 841. These PRPs include (1) the cur-
    rent "owner" or "operator" of a "facility"; (2) any "person"
    who "owned" or "operated" the "facility" at the time of dis-
    posal of a hazardous substance; (3) any "person" who "ar-
    ranged for disposal or treatment" of hazardous substances at
    the "facility"; and (4) any "person" who accepts hazardous
    substances "for transport to disposal or treatment facilities,
    incineration vessels or sites." 
    42 U.S.C. § 9607
    (a)(1)-(4);
    Nurad, 966 F.2d at 841. The classes of PRPs have an undeni-
    PCS NITROGEN INC. v. ASHLEY II    OF   CHARLESTON      17
    ably broad reach. See United States v. Atl. Research Corp.,
    
    551 U.S. 128
    , 136 (2007). But they nonetheless remain sub-
    ject to the limitations of derivative liability inherent in corpo-
    rate law. See United States v. Bestfoods, 
    524 U.S. 51
    , 62-64
    (1998).
    A PRP’s strict liability for response costs is subject only to
    CERCLA’s limited defenses and exemptions. Axel Johnson,
    
    191 F.3d at 413
    . Courts do not consider equity in determining
    whether a party is a PRP. Congress, however, did provide for
    equitable allocation of liability under § 9613(f) to mitigate
    any inequity arising from CERCLA’s strict liability scheme.
    Id. at 415.
    With these principles in mind, we review the district court’s
    determinations of PRP status de novo. See Pneumo Abex
    Corp. v. High Point, Thomasville & Denton R.R. Co., 
    142 F.3d 769
    , 773 (4th Cir. 1998). We first consider PCS’s appeal
    of the determination that it is a PRP. Then, we turn to the
    multiple challenges to the determinations of the other parties’
    PRP status in the second trial.
    A.
    The district court held that PCS is a PRP for the Charleston
    site as the corporate successor to Old CNC. Although PCS
    never owned or operated the site, it admits that it is a succes-
    sor to New CNC, and that Old CNC—despite dissolving dec-
    ades ago—would be a PRP.
    Under CERCLA, successor corporations may be liable for
    the actions of their predecessors. United States v. Carolina
    Transformer Co., 
    978 F.2d 832
    , 837 (4th Cir. 1992). How-
    ever, as at common law, a corporation that acquires the assets
    of another corporation typically does not acquire its liabilities,
    unless "(1) the successor expressly or impliedly agrees to
    assume the liabilities of the predecessor; (2) the transaction
    may be considered a de facto merger; (3) the successor may
    18      PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    be considered a ‘mere continuation’ of the predecessor; or (4)
    the transaction is fraudulent." 
    Id. at 838
    . In the past, we have
    also recognized successor liability where "substantial continu-
    ity" exists between a predecessor and successor corporation.
    
    Id.
    The district court held PCS liable as a successor to Old
    CNC under three theories. We need only address one—that
    New CNC either unambiguously, or based on extrinsic evi-
    dence, assumed Old CNC’s liabilities for the site under the
    1986 Acquisition Agreement. In doing so, we review the dis-
    trict court’s applications of contract principles de novo, and
    its findings of fact with respect to extrinsic evidence for clear
    error. Hendricks v. Cent. Reserve Life Ins. Co., 
    39 F.3d 507
    ,
    512-13 (4th Cir. 1994). Under the Acquisition Agreement’s
    choice of law provision, we apply New York contract law.
    New York law enforces unambiguous contracts in accor-
    dance with their plain terms. W.W.W. Assocs., Inc. v. Gian-
    contieri, 
    566 N.E.2d 639
    , 642 (N.Y. 1990). In determining
    whether a contract is ambiguous, a court must
    examine the entire contract and consider the relation
    of the parties and the circumstances under which it
    was executed. Particular words should be consid-
    ered, not as if isolated from the context, but in the
    light of the obligation as a whole and the intention
    of the parties as manifested thereby. Form should not
    prevail over substance, and a sensible meaning of
    words should be sought.
    William C. Atwater & Co. v. Panama R.R. Co., 
    159 N.E. 418
    ,
    419 (N.Y. 1927). Thus, when considering isolated, potentially
    conflicting provisions, so long as a contract "makes clear the
    parties’ over-all intention," a court "should then choose that
    construction which will carry out the plain purpose and object
    of the [agreement]." Kass v. Kass, 
    696 N.E.2d 174
    , 181 (N.Y.
    1998) (internal quotation marks omitted). In harmonizing pro-
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON       19
    visions, however, "no provision of a contract should be left
    without force and effect." Muzak Corp. v. Hotel Taft Corp.,
    
    133 N.E.2d 688
    , 690 (N.Y. 1956).
    1.
    Applying these principles, the district court initially held, as
    Ashley maintained, that New CNC unambiguously assumed
    Old CNC’s CERCLA liabilities for the Charleston site under
    the Acquisition Agreement. We cannot agree.
    Section 3.4 of the Agreement, on which the district court
    relied, does unambiguously transfer "[a]ll obligations required
    to be performed under all court, administrative and regulatory
    orders." But § 3.4 does not address, let alone unambiguously
    provide, that it covers CERCLA "obligations" arising after
    execution of the Agreement.
    Ashley alternatively argues that New CNC unambiguously
    assumed Old CNC’s CERCLA liability for the site in § 3.6 of
    the Agreement. This argument fares no better. All parties rec-
    ognize that under § 3.6 New CNC did assume unknown,
    future CERCLA liability. The liability assumed, however,
    was only that "arising out of or in connection with the
    Acquired Business or the Purchased Assets."
    It is undisputed that the phrase "arising out of or in connec-
    tion with" would transfer liabilities from businesses or assets
    no longer owned by a seller in a stock sale. But typically this
    phrase does not transfer such liabilities in an asset sale. See
    Honeywell Int’l, Inc. v. Phillips Petroleum Co., 
    415 F.3d 429
    ,
    435-36 (5th Cir. 2005). The Acquisition Agreement does not
    clearly establish whether the parties intended an ordinary
    asset sale or an atypical asset sale that was to be treated as a
    stock sale. Rather, the Agreement ambiguously provides that
    New CNC "assume[s] all obligations and liabilities relating to
    the Acquired Business . . . as if [Old CNC] were to sell and
    [New CNC] were to purchase the stock of [Old CNC] on the
    20       PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    open market." This ambiguity prevents us from concluding
    that under the Agreement New CNC unambiguously assumed
    Old CNC’s CERCLA liabilities for the Charleston site.
    This ambiguity also defeats PCS’s contention that the
    Acquisition Agreement clearly provides that New CNC did
    not assume Old CNC’s CERCLA liabilities for the site. For
    PCS can point to no language in the Agreement which clari-
    fies that, even if this were an atypical stock-like asset sale,
    New CNC assumed no CERCLA liabilities for the site.
    At its outset, § III of the Agreement does, as PCS contends,
    limit the transfer of liabilities and obligations to New CNC to
    those "relating to the Acquired Business and Purchased
    Assets." But PCS’s heavy reliance on the narrowness of this
    "relating to" language at the beginning of § III ignores lan-
    guage at the end of that same section that provides that trans-
    ferred liabilities include "without limitation, the liabilities and
    obligations described below" in §§ 3.1-3.7. Among the liabili-
    ties "described below" are those in § 3.4, which provides that
    New CNC will assume not only the certain obligations "relat-
    ing to the Acquired Business and Purchased Assets" but also
    those "applicable to the Seller." Where a general provision
    like that at the outset of § III conflicts with a specific provi-
    sion like that in § 3.4, "the specific provision controls."
    Muzak Corp., 133 N.E.2d at 690.
    Therefore, we cannot accept either party’s arguments that
    the Agreement unambiguously determines whether New CNC
    assumed Old CNC’s CERCLA liability for the site.
    2.
    Usually, when we conclude that a district court has erred in
    holding a contract unambiguous, we must remand for a fac-
    tual determination of the parties’ intent based on consider-
    ation of extrinsic evidence. See, e.g., Atalla v. Abdul-Baki,
    
    976 F.2d 189
    , 195 (4th Cir. 1992). However, in this case, the
    PCS NITROGEN INC. v. ASHLEY II    OF   CHARLESTON      21
    district court has already analyzed the extrinsic evidence
    offered by the parties during the bench trial, and alternatively
    found based on that evidence that New CNC intended to and
    did acquire CERCLA liabilities for the site under the Acquisi-
    tion Agreement. We review a district court’s factual finding
    as to intent for clear error. See Hendricks, 
    39 F.3d at 512
    . We
    can reverse only if, after reviewing the entire record, we are
    "left with the definite and firm conviction that a mistake has
    been committed." Easley v. Cromartie, 
    532 U.S. 234
    , 242
    (2001) (internal quotation marks omitted). This rigorous stan-
    dard does not permit reversal here.
    The district court based its ultimate factual finding that
    extrinsic evidence established that New CNC intended to
    assume CERCLA liability for the Charleston site on several
    predicate findings. When considering ambiguity, the court ini-
    tially found that even if the "as if" clause in the Agreement
    did not evince the parties’ intent to enter into something very
    akin to a stock sale, at the very least the clause was ambigu-
    ous. Thus, the court considered the extrinsic evidence and
    found it demonstrated that the parties did intend to enter into
    an agreement "tantamount to a stock sale," i.e., "as if" meant
    "equivalent to."
    In support of this critical finding, the district relied on the
    abundant extrinsic evidence that New CNC knew of Old
    CNC’s determination to dissolve by December 31, 1986, to
    preserve the $100 million tax advantage. The court found that
    New CNC’s knowledge of Old CNC’s paramount aim to avail
    itself of this tax advantage supported Ashley’s contention that
    the parties—Old CNC and New CNC—agreed that New CNC
    would acquire "all of Old CNC that was not specifically
    retained or sold to another entity." Given that no one contends
    that Old CNC’s CERCLA liability for the Charleston site was
    "specifically retained or sold to another entity," the court
    found this evidence supported Ashley’s position that Old
    CNC transferred this liability to New CNC.
    22      PCS NITROGEN INC. v. ASHLEY II    OF   CHARLESTON
    The district court also pointed to the extrinsic evidence that
    Old CNC discounted its sale price of $50 million by sixty per-
    cent from book value, and discounted an additional $5 million
    from the sale price in exchange for New CNC’s assumption
    of the business and assets "as is," i.e., including unknown
    environmental liabilities. The court noted that New CNC’s
    lawyer on the transaction testified that the principals at New
    CNC were "comfortable enough with [their] due diligence to
    conclude that any unknown liabilities would not exceed $5
    million." (To date, of course, the CERCLA cleanup costs for
    the site ($194,000) do not approach that number.) The court
    concluded that the heavily discounted purchase price further
    reduced by the $5 million discount for acceptance "as is" con-
    stituted additional extrinsic evidence that New CNC acquired
    "all of Old CNC that was not specifically retained or sold to
    another entity," i.e., New CNC acquired CERCLA liability
    for the Charleston site.
    Finally, the court found that New CNC intended to acquire
    "substantially all" of Old CNC—including its environmental
    liabilities—evidenced by two other agreements that New
    CNC entered into at the same time as the Acquisition Agree-
    ment. One of these agreements governed future advances, and
    the other contained guarantees signed by the chairman of New
    CNC. In both, New CNC stated that it was purchasing "sub-
    stantially all" of Old CNC’s liabilities. The court noted that
    these contemporaneous statements by New CNC "contradic-
    t[ed]" its after-the-fact litigation position as to the limited
    nature of the liabilities acquired.
    Based on these facts, the court found that the parties
    intended to and in the Acquisition Agreement did transfer all
    of Old CNC’s assets and liabilities not explicitly retained or
    sold to another entity, including Old CNC’s latent CERCLA
    liabilities for the site.
    PCS maintains that the district court clearly erred in so
    finding. PCS first contends that, contrary to the district court’s
    PCS NITROGEN INC. v. ASHLEY II    OF   CHARLESTON      23
    conclusions, Old CNC’s foremost intent to dissolve for tax
    benefit purposes and its agreement to discount its price if New
    CNC assumed the assets "as is" are "irrelevant" as to the
    actual scope of the liabilities transferred. That characterization
    seems to us to be an overstatement. While these facts are not
    dispositive, the district court could certainly find them rele-
    vant. PCS also points to evidence that after the sale Old CNC
    never transferred to New CNC records relating to the site
    (including those regarding environmental contamination); that
    New CNC was so cautious about assuming environmental lia-
    bilities that it did not acquire the land underlying the Augusta
    plant; and that some of the parties involved in the transaction
    testified that New CNC only intended to acquire the Augusta
    plant and operations. Although these facts are helpful to
    PCS’s position, none require a finding in its favor.
    Finally, PCS contends that, although Recital B describes
    the Agreement "as if" it were a stock sale, at the time the
    Agreement was executed witnesses at trial "agreed" that the
    sale transferred only assets. If the undisputed evidence at trial
    had established such contemporaneous "agreement" between
    Old CNC and New CNC, then PCS might well have been
    entitled to judgment. But the trial evidence did not establish
    this "agreement." In fact, only PCS’s witnesses "agreed" on
    this point, and the district court was free to weigh their testi-
    mony against the contrary, above-outlined evidence offered
    by Ashley.
    This is not to say PCS did not present evidence from which
    the district court could have resolved the Agreement’s
    ambiguity in its favor. But Ashley presented contrary evi-
    dence supporting its view as to the meaning of the ambiguous
    contract language, and the district court, as fact finder, found
    in favor of Ashley. We cannot conclude that the court clearly
    erred in doing so. Here, as in many other cases, "both the
    intrinsic and extrinsic evidence of intended reach of the agree-
    ment might have supported a contrary finding." See Brown v.
    Balt. & Ohio R.R. Co., 
    805 F.2d 1133
    , 1140 (4th Cir. 1986).
    24        PCS NITROGEN INC. v. ASHLEY II       OF   CHARLESTON
    But we are not "left with the definite and firm conviction that
    a mistake has been committed." Easley, 532 U.S. at 242
    (internal quotation marks omitted). Accordingly, we must
    affirm the judgment of the district court holding that in the
    Agreement New CNC assumed Old CNC’s CERCLA liabili-
    ties for the site and that PCS is therefore a PRP as a successor
    to Old CNC’s CERCLA liability for the site.4
    B.
    Next, we turn to the appeals of other parties challenging the
    district court’s determinations that they too constituted PRPs.
    As the plaintiff in the allocation action under 
    42 U.S.C. § 9613
    (f), PCS bore the burden of proving that another party
    was a PRP under § 9607(a). See Minyard Enters., 
    184 F.3d at 385
    . We consider each defendant’s challenge to PRP status in
    turn, reviewing the district court’s ultimate determinations of
    PRP status de novo, and its factual findings underlying those
    determinations for clear error.
    1.
    The district court held that Holcombe and Fair are PRPs as
    owners of the site at the time of disposal. See 
    42 U.S.C. § 9607
    (a)(2). The court based its holding on its factual finding
    that Holcombe and Fair’s earth-moving and construction
    4
    For the reasons well stated by the successor judge in her written opin-
    ion, we reject PCS’s contention that we should vacate the judgment of her
    predecessor to remedy that court’s asserted violation of 
    28 U.S.C. § 445
    (a). We also reject PCS’s contention that the district court erred in
    granting summary judgment to the DSM Parties on PCS’s contribution
    claims for alleged derivative CERCLA liability for the acts of Old 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 "amal-
    gamation" theory renders the DSM Parties liable. See, e.g., Kincaid v.
    Landing Dev. Corp., 
    344 S.E.2d 869
    , 874 (S.C. Ct. 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).
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON     25
    activities redistributed already-contaminated soils, causing a
    disposal of hazardous substances on the site.
    Holcombe and Fair do not challenge the legal basis for the
    district court’s conclusion. Indeed, Holcombe and Fair accept
    that past owners or operators of a facility are liable for "sec-
    ondary disposals"—that is, the movement or dispersal of
    already-once-disposed hazardous substances through earth-
    moving or construction activities—that occur during their
    ownership or operation of the facility. See Tanglewood E.
    Homeowners v. Charles-Thomas, Inc., 
    849 F.2d 1568
    , 1573
    (5th Cir. 1988) ("[CERCLA’s] definition of disposal does not
    limit disposal to a one-time occurrence—there may be other
    disposals when hazardous materials are moved, dispersed, or
    released during landfill excavations and fillings."); see also
    Redwing Carriers, Inc. v. Saraland Apartments, 
    94 F.3d 1489
    ,
    1510 (11th Cir. 1996) (same); Kaiser Aluminum & Chem.
    Corp. v. Catellus Dev. Corp., 
    976 F.2d 1338
    , 1342-43 (9th
    Cir. 1992) (same); cf. Westfarm Assocs. Ltd. P’ship v. Wash-
    ington Suburban Sanitary Comm’n, 
    66 F.3d 669
    , 680-81 (4th
    Cir. 1995) (refusing to limit "multiple release" disposals to
    non-migrating hazardous materials); Nurad, 966 F.2d at 844-
    46 (interpreting "disposal" broadly to include passive acts,
    such as leaking or spilling).
    Instead, Holcombe and Fair challenge the district court’s
    finding that a secondary disposal actually occurred during
    their ownership of the site. Holcombe and Fair argue that the
    court clearly erred because PCS offered no "discrete proof"
    that Holcombe and Fair actually moved or dispersed contami-
    nated soils during their earth-moving activities. At best, Hol-
    combe and Fair contend, the evidence demonstrates only that
    a disposal "probably" occurred during their ownership of the
    site.
    To be sure, PCS presented no direct evidence that Hol-
    combe and Fair moved or dispersed any contaminated soils.
    However, "CERCLA does not require a smoking gun." Niag-
    26       PCS NITROGEN INC. v. ASHLEY II       OF   CHARLESTON
    ara Mohawk Power Corp. v. Chevron U.S.A., Inc., 
    596 F.3d 112
    , 136 (2d Cir. 2010). Instead, "CERCLA liability may be
    inferred from the totality of the circumstances [and] need not
    be proven by direct evidence." Tosco Corp. v. Koch Indus.,
    Inc., 
    216 F.3d 886
    , 892 (10th Cir. 2000); see also Franklin
    Cnty. Convention Facilities Auth. v. Am. Premier Underwrit-
    ers, Inc., 
    240 F.3d 534
    , 547 (6th Cir. 2001).5 Thus, as with
    any other factual finding, we are bound to affirm any infer-
    ence of CERCLA liability if "plausible in light of the record
    viewed in its entirety." See Davis v. Richmond, Fredericks-
    burg & Potomac R.R. Co., 
    803 F.2d 1322
    , 1327 (4th Cir.
    1986) (internal quotation marks omitted).
    The district court heard evidence showing that Holcombe
    and Fair engaged in extensive grading and construction that
    affected at least 27.9% of the site during their ownership, and
    that even superficial earth-moving activities such as grading
    can redistribute contaminated soils. Considering the evidence
    of widespread contamination across the site, the court’s infer-
    ence that Holcombe and Fair’s construction activities at some
    point effected a disposal is certainly plausible.
    Accordingly, we affirm both the court’s finding that a dis-
    posal occurred during Holcombe and Fair’s ownership of the
    site, and its holding that Holcombe and Fair are therefore
    PRPs for the site under 
    42 U.S.C. § 9607
    (a)(2).
    5
    Holcombe and Fair rely on Redwing Carriers for their contention that
    a district court needs "discrete proof" to find that a secondary disposal
    occurred. But in Redwing Carriers the Eleventh Circuit merely held that
    "the only reasonable inference" from the evidence presented did not
    include disposal, "[n]o matter how broadly the term is defined." 
    94 F.3d at 1510-12
    . The court did not require "direct evidence" of movement or
    dispersal of contaminated soil, but just evidence that would support such
    an inference. Such evidence was absent in Redwing Carriers, but is pres-
    ent here.
    PCS NITROGEN INC. v. ASHLEY II       OF   CHARLESTON          27
    2.
    The district court held that RHCE is a PRP for the site as
    a current operator. See 
    42 U.S.C. § 9607
    (a)(1). On appeal,
    RHCE concedes that it is a current operator,6 but challenges
    its PRP status on several grounds—all unavailing.
    Most fundamentally, RHCE argues that its leasehold is not
    "part of the property for which Ashley sued PCS to remedi-
    ate." RHCE Br. at 1, 25. This argument misunderstands CER-
    CLA. Whether RHCE’s leasehold is "part of the 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").
    CERCLA defines "facility" to include "any site or area
    where a hazardous substance has been deposited, stored, dis-
    posed of, or placed, or otherwise come to be located." 
    Id.
    § 9601(9). The definition is not predicated, as RHCE seems
    to believe, on the area targeted for remediation. Instead, the
    statutory definition indicates "that the bounds of a facility
    should be defined at least in part by the bounds of the contam-
    ination." United States v. Twp. of Brighton, 
    153 F.3d 307
    , 313
    (6th Cir. 1998); see Nurad, 966 F.2d at 842-43 (holding a "fa-
    cility" includes that portion 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 contamination across the entire site. That is,
    RHCE’s parcel is part of the contaminated "facility" for CER-
    CLA’s purposes.
    6
    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 consti-
    tutes 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.
    28        PCS NITROGEN INC. v. ASHLEY II       OF   CHARLESTON
    RHCE’s seeming suggestion that its leasehold—even
    though contaminated—should be considered separately from
    the rest of the site also fails. "Courts have uniformly refused
    to divide widely contaminated properties . . . into separate
    facilities in response to a party’s claim to be responsible for
    contamination in only certain parts of the property." Axel
    Johnson, 
    191 F.3d at 418
    ; see also United States v. Capital
    Tax Corp., 
    545 F.3d 525
    , 535 (7th Cir. 2008) ("The bounda-
    ries of [a] facility do not necessarily reflect property bounda-
    ries, and liability can extend beyond what . . . defendants
    actually own." (internal citation omitted)).
    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 CERCLA. 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 could always avoid liability for CER-
    CLA response costs for the rest of the facility merely by dem-
    onstrating less pollution-sensitive land use on its leasehold.
    This would turn § 9607(a)’s strict liability on its head, and
    would improperly broaden Congress’ specific exemption from
    liability for "innocent" contiguous landowners. See 
    42 U.S.C. § 9607
    (q).7
    7
    RHCE’s argument that its leasehold cannot be a part of the "facility"
    because EPA has neither defined the bounds of the facility nor approved
    a final remediation plan for the site is similarly meritless. CERCLA does
    not require EPA to have defined an area as a "facility" in order for a pri-
    vate party to bring a recovery action. See 
    42 U.S.C. §§ 9601
    (9), 9607(a).
    And "governmental approval is not a prerequisite to private recovery for
    cleanup costs." Richland-Lexington Airport Dist. v. Atlas Props., Inc., 
    901 F.2d 1206
    , 1208-09 (4th Cir. 1990).
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON     29
    Finally, although RHCE does not claim that it meets the
    rigorous qualifications necessary to be exempt from PRP sta-
    tus 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 preponderance of the evidence:
    (1) that another party was the ‘sole cause’ of the release of
    hazardous substances and the damages caused thereby; (2)
    that the other, responsible party did not cause the release in
    connection with a contractual, employment, or agency rela-
    tionship with the defendant; and (3) that the defendant exer-
    cised due care and guarded against the foreseeable acts or
    omissions of the responsible party." Westfarm Assocs. Ltd.
    P’ship, 66 F.3d at 682. The district court rejected RHCE’s
    assertion of this defense, holding that it failed on all three
    prongs. On appeal, RHCE only challenges the court’s hold-
    ings under the first and third prongs of the defense. Because
    a party must establish all three prongs of the defense, and
    RHCE does not challenge the court’s determination that it
    failed the second prong, we must affirm the court’s denial of
    RHCE’s innocent landowner defense.
    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).
    3.
    The district court also held Ashley to be a PRP for the site
    as a current owner. See 
    42 U.S.C. § 9607
    (a)(1). In doing so,
    the court rejected Ashley’s attempt to establish a bona fide
    prospective purchaser ("BFPP") exemption from liability. See
    
    id.
     §§ 9601(40), 9607(r)(1). On appeal, Ashley again invokes
    the BFPP exemption.
    In 2002, Congress enacted the BFPP exemption as one in
    an array of CERCLA amendments intended "to promote the
    30      PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    cleanup and reuse of brownfields" under the Small Business
    Liability Relief and Brownfields Revitalization 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 facility must have acquired the
    facility after January 11, 2002, must "not impede the perfor-
    mance of a response action or natural resource restoration" at
    the facility, and must establish eight criteria by a preponder-
    ance of the evidence. See 
    id.
     §§ 9601(40)(A)-(H), 9607(r)(1).
    The district court held that Ashley failed to establish a
    number of these eight criteria. Among them is the requirement
    that a current owner "exercises appropriate care with respect
    to hazardous substances found at the facility by taking reason-
    able steps to (i) stop any continuing release; (ii) prevent any
    threatened future release; and (iii) prevent 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 estab-
    lished that Ashley did not exercise appropriate care at the site.
    Ashley argues that the purposes of the Brownfields Act
    necessitate that courts apply a less-stringent standard of "ap-
    propriate care" and "reasonable steps" than that applied by the
    district court. Otherwise, Ashley maintains, landowners will
    not undertake voluntary brownfields redevelopment for fear
    of becoming fully liable for cleanup costs as a result of minor
    mistakes that may not even contribute to harm at the facility.
    Even recognizing Congress’ clear intent to promote voluntary
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON     31
    brownfields redevelopment in passing the Brownfields Act,
    however, Ashley’s 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 innocent
    landowner defense require a demonstration of "reasonable
    steps." Compare 
    42 U.S.C. § 9601
    (35)(B)(i)(II), with 
    id.
    § 9601(40)(D). Logic seems to suggest that the standard of
    "appropriate care" required of a BFPP, who by definition
    knew of the presence of hazardous substances at a facility,
    should be higher than the standard of "due care" required of
    an innocent landowner, who by definition "did not know and
    had no reason to know" of the presence of hazardous sub-
    stances when it acquired a facility. Compare id.
    §§ 9601(40)(D), 9607(r)(1) (BFPP exemption and "appropri-
    ate care" standard), with id. §§ 9601(35), 9607(b)(3) (innocent
    landowner defense and "due care" standard).
    We need not here determine whether the BFPP standard of
    "appropriate care" actually is higher than the standard of "due
    care" mandated elsewhere in CERCLA, because in all events
    "appropriate care" under § 9601(40)(D) is at least as stringent
    as "due care" under § 9607(b)(3). Accord Office of Enforce-
    ment & Compliance Assurance, U.S. Envtl. Prot. Agency,
    Interim Guidance Regarding Criteria Landowners Must Meet
    in Order to Qualify for Bona Fide Prospective Purchaser,
    Contiguous Property Owner, or Innocent Landowner Limita-
    tions on CERCLA Liability 9 (March 6, 2003) (stating that
    reasonable steps required under the "appropriate care" stan-
    dard establish "an approach that is consonant with traditional
    common law principles and the existing CERCLA ‘due care’
    requirement").
    We therefore borrow standards from CERCLA’s "due care"
    jurisprudence to inform our determination of what "reason-
    able steps" must be taken to demonstrate "appropriate care."
    32        PCS NITROGEN INC. v. ASHLEY II        OF   CHARLESTON
    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 pru-
    dent 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, Ashley’s inactions clearly show that it
    failed to exercise "appropriate care." For Ashley’s delay in
    filling the sumps—which even Ashley’s expert admitted
    should have been filled a full year before Ashley did so—
    demonstrates that it did not take the "reasonable steps to . . .
    prevent any threatened future release," 
    42 U.S.C. § 9601
    (40)(D), that "a similarly situated reasonable and pru-
    dent person would have taken," Lashins Arcade Co., 
    91 F.3d at 361
     (internal quotation marks omitted).
    Accordingly, the district court did not err in finding that
    Ashley failed to demonstrate that it exercised "appropriate
    care" at the site. Because a party must establish all eight fac-
    tors under 
    42 U.S.C. § 9601
    (40) to qualify for a BFPP exemp-
    tion 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).
    III.
    PCS and RHCE challenge the district court’s denial of
    apportionment of harm at the site.8 Both argue that the harm
    at the site is divisible and thus should be apportioned. We
    8
    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 lia-
    bility. See Redwing Carriers, 
    94 F.3d at 1513
    . Because no party raises this
    argument and RCHE’s apportionment claim fails on the merits, we need
    not decide the issue and assume, for purposes of this case, that RHCE may
    argue for apportionment to avoid the court’s equitable allocation of harms
    under § 9613(f).
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON       33
    review a district court’s determination of whether a harm is
    capable of apportionment de novo, and review the factual
    findings underlying such a determination for clear error. See
    In re Bell Petroleum Servs., Inc., 
    3 F.3d 889
    , 902 (5th Cir.
    1993).
    A.
    "While CERCLA does not mandate the imposition of joint
    and several liability, it permits it in cases of indivisible harm."
    Monsanto, 858 F.2d at 171. The Supreme Court has con-
    firmed that "[t]he universal starting point for divisibility of
    harm analyses in CERCLA cases is § 433A of the Restate-
    ment (Second) of Torts." Burlington Northern, 
    556 U.S. at 614
     (internal quotation marks omitted); see also Monsanto,
    858 F.2d at 172.
    "Under the Restatement, when two or more persons acting
    independently caus[e] a distinct or single harm for which
    there is a reasonable basis for division according to the contri-
    bution of each, each is subject to liability only for the portion
    of the total harm that he has himself caused. . . . But where
    two or more persons cause a single and indivisible harm, each
    is subject to liability for the entire harm." Burlington North-
    ern, 
    556 U.S. at 614
     (internal quotation marks and citations
    omitted); see Monsanto, 858 F.2d at 171-72. Thus, PRPs can
    avoid 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 responsi-
    ble parties." Monsanto, 858 F.2d at 172 (citing Restatement
    (Second) of Torts § 433B (1965)).
    By its nature, apportionment necessarily requires a fact-
    intensive, site-specific analysis. See United States v. NCR
    Corp., 
    688 F.3d 833
    , 841-42 (7th Cir. 2012); Bell Petroleum
    Servs., 
    3 F.3d at 895-96
    ; United States v. Alcan Aluminum
    Corp., 
    964 F.2d 252
    , 269 (3d Cir. 1992). "Not all harms are
    capable of apportionment, . . . and CERCLA defendants seek-
    34      PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    ing to avoid joint and several liability bear the burden of prov-
    ing that a reasonable basis for apportionment exists."
    Burlington Northern, 
    556 U.S. at 614
    .
    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 analysis,"
    Burlington Northern, 
    556 U.S. at
    615 n.9, because the avail-
    ability of contribution actions under 
    42 U.S.C. § 9613
    (f) miti-
    gates any inequity arising from the unavailability of
    apportionment, see Axel Johnson, 
    191 F.3d at 415
    .
    B.
    The district court found that two factors contributed to the
    harm at the site—the amount of hazardous substances each
    PRP caused to be contributed to the site, and the amount of
    soil each PRP caused to be contaminated through secondary
    disposals. The court thus recognized that the harm at the site
    was at least "theoretically divisible" if a defendant provided
    sufficient evidence to establish a reasonable basis for appor-
    tionment 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 Plant-
    ers and Old CNC produced fertilizers on the site; (4) the per-
    centage of soils each PRP first disturbed on the site; and (5)
    the number of contaminated soil samples attributable to each
    PRP. According to PCS, these bases produced consistent
    results demonstrating PCS was responsible for, at most, six
    percent of the harm at the site.
    The district court rejected PCS’s proposed bases for appor-
    tionment. In doing so, the court identified several flaws sys-
    temic to PCS’s proposed bases for apportionment. Most
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON       35
    notably, the court found PCS’s methods did not (1) provide
    a reasonable estimate of the volume of soil contaminated by
    secondary disposals; (2) account for the likelihood of contam-
    ination prior to 1906, and thus assumed that Planters was
    responsible for all contamination prior to 1945; or (3) com-
    pensate appropriately for changes in the type and intensity of
    uses and construction on the site over time.
    C.
    1.
    On appeal, PCS first argues that the district court erred in
    requiring the establishment of more than a "reasonable basis"
    for apportionment, in contravention of the standard applied by
    the Supreme Court in Burlington Northern. (RHCE adopts
    PCS’s argument on this point.) In Burlington Northern, the
    district court sua sponte apportioned the collective harm that
    two railroad companies caused at a facility by multiplying
    three factors: (1) the percentage of 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-percent margin of error, and apportioned nine percent of
    the harm at the facility to the railroads. 
    556 U.S. at 616-18
    .
    After the Ninth Circuit reversed, concluding that these factors
    provided an unreliable measure of harm, the Supreme Court
    reversed the Ninth Circuit, and upheld the apportionment. The
    Supreme Court explained that the record before the district
    court provided a "reasonable basis" for the methodology it
    had adopted. See 
    id. at 617-18
    .
    Contrary to PCS’s assertion, the district court’s denial of
    apportionment here is entirely consistent with Burlington
    Northern. To be sure, Burlington Northern demonstrates that
    a "reasonable basis for apportionment" need not be mathemat-
    36      PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    ically precise, and may be based on the "simplest of consider-
    ations," e.g., time and land area. See 
    556 U.S. at 617-18
    ; 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 Corp., 688 F.3d at 842. For the factual scenario in Bur-
    lington Northern was relatively simple: "the primary pollution
    at the [site] was contained in an unlined sump and an unlined
    pond in the southeastern portion of the facility most distant
    from the Railroads’ parcel and . . . the spills of hazardous
    chemicals that occurred on the Railroad parcel contributed to
    no more than 10% of the total site contamination." Burlington
    Northern, 
    556 U.S. at 617
    . Only "[w]ith those background
    facts in mind" did the Court conclude that the district court’s
    methodology was reasonable. 
    Id. at 617-18
    . Clearly, after
    Burlington Northern, apportionment necessarily remains a
    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 appor-
    tionment must include reliable evidence as to both the initial
    disposals of hazardous substances and any secondary dispos-
    als that occurred over time. Indeed, the court distinguished
    Burlington Northern on this ground, emphasizing that in Bur-
    lington Northern most of the hazardous substances were
    located in unlined sumps and ponds, and that no evidence
    indicated that secondary disposals significantly contributed to
    the harm. The court further found that PCS’s apportionment
    methodologies individually and collectively failed to provide
    the evidence as to secondary disposals necessary to "establish
    a reasonable basis for apportioning the harm at the Site."
    Denying apportionment because a party fails to provide reli-
    able evidence as to one of the factors informing apportion-
    ment is in no way at odds with Burlington Northern.
    Indeed, as Burlington Northern confirmed, in the face of
    uncertain causation of harm, "‘courts have refused to make an
    PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON     37
    arbitrary apportionment for its own sake.’" 
    556 U.S. at 614-15
    (quoting Restatement (Second) of Torts § 433A cmt. i (1963-
    64)). An arbitrary apportionment is just what the district court
    refused to make, as any apportionment without adequate evi-
    dence as to the harm caused by secondary disposals necessar-
    ily would have been arbitrary. Therefore, the district court’s
    fact-intensive and site-specific analysis underlying its denial
    of apportionment entirely accords with Burlington Northern.
    2.
    PCS and RHCE next argue that, even if the district court’s
    apportionment analysis was consistent with Burlington North-
    ern, the court erred in holding that they failed to establish a
    reasonable basis for apportionment. Although 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 apportioning at least their individual
    shares of the harm. Because PCS and RHCE are PRPs under
    different CERCLA provisions, we consider their arguments
    on this point separately.
    a.
    PCS’s assertion of individual share apportionment presents
    the question of whether an owner or operator at the time of
    disposal under § 9607(a)(2) must provide a reasonable basis
    to apportion all of the harm, or only its share of the harm, to
    avoid joint and several liability.
    Neither we nor the Supreme Court has ever before consid-
    ered the question. Contrary to PCS’s suggestion, Burlington
    Northern provides no guidance. The district court there appor-
    tioned all of the harm, because, in that case, all harm not
    caused by the railroads was necessarily caused by the long-
    time operator of the facility. See Burlington Northern, 
    556 U.S. at 606
    .
    38      PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    Nor do traditional and evolving standards of common law
    provide clear guidance on the issue. Compare Restatement
    (Second) of Torts § 433A(1)(b) (suggesting apportionment is
    appropriate only when a defendant can demonstrate that
    "there is a reasonable basis for determining the contribution
    of each cause to a single harm" (emphasis added)), with
    United States v. Rohm & Haas Co., 
    2 F.3d 1265
    , 1280 (3d
    Cir. 1993) (holding apportionment required a showing "that
    there is a way to determine what portion of the ‘harm’ . . . is
    fairly attributable to [the defendant], 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)).
    However, we ultimately need not decide today whether a
    PRP under § 9607(a)(2) can avoid joint and several liability
    by apportioning only its own harm. For, even assuming that
    a PRP could do so, the district court did not err in holding that
    PCS failed to establish a reasonable basis for apportioning its
    own harm in this case. Both primary disposals (from fertilizer
    manufacturing) and secondary disposals (from earth-moving
    and construction) occurred during Old CNC’s ownership and
    operation of the site. Therefore, even to establish its own
    share of the harm, PCS (Old CNC’s successor) needed to pro-
    vide an apportionment methodology that addressed both types
    of disposals. 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).
    b.
    RHCE contends that, as a current operator PRP under
    § 9607(a)(1), it can avoid joint and several liability by demon-
    PCS NITROGEN INC. v. ASHLEY II       OF   CHARLESTON          39
    strating that no disposal of hazardous substances has occurred
    during its operation of the facility, and thus a reasonable basis
    exists to apportion it a zero-share of the harm. This argument
    clearly fails.
    The structure and purposes of CERCLA simply do not per-
    mit current owner or operator PRPs to use individual share
    apportionment to apportion themselves a zero-share harm.9
    Section 9607(a)(1) renders current owners and 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 lia-
    bility scheme must meet the requirements necessary to claim
    the narrow defenses and exemptions specifically established
    by Congress. E.g., 
    42 U.S.C. § 9607
    (b); see Trinity Am. Corp,
    
    150 F.3d at 395-96
    .
    Allowing current owner and operator PRPs to avoid joint
    and several liability through a zero-share apportionment
    because no disposal occurred during their ownership or opera-
    tion of a facility effectively would render current owner or
    operator liability coterminous with liability based on owner-
    ship or operation at the time of disposal. Compare 
    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 dis-
    posal during ownership or operation for liability).
    Such a rule would frustrate the several narrow statutory
    defenses and exemptions Congress created to address truly
    9
    That the district court held RHCE was also a PRP as an operator at the
    time of disposal under § 9607(a)(2) does not affect this conclusion. It
    would defeat the purposes of CERCLA to permit a current operator PRP,
    who was also an operator at the time of disposal, to claim individual share
    apportionment, while denying this right to a current operator PRP who was
    not a PRP at the time of disposal.
    40       PCS NITROGEN INC. v. ASHLEY II   OF   CHARLESTON
    "innocent" landowners. See, e.g., id. § 9601(20)(D), 35(A)
    (involuntary acquisition exemption); id. §§ 9601(35),
    9607(b)(3) (defense for innocent landowners); id.
    §§ 9601(40), 9607(r) (bona fide prospective purchaser exemp-
    tion); id. § 9607(q) (contiguous property owner exemption).
    All of these provisions require much more than a mere show-
    ing that no disposal occurred during a current owner or opera-
    tor’s tenure at a facility. See, e.g., id. §§ 9601(35), 9607(b)(3).
    Consequently, allowing such PRPs to apportion solely their
    own zero-share of liability would render the heightened
    requirements of these narrow defenses and exemptions dead
    letters. Where possible, we must interpret a statute to avoid
    rendering any of its provisions superfluous. Astoria Fed. Sav.
    & Loan Ass’n v. Solimino, 
    501 U.S. 104
    , 112 (1991). Our
    holding today avoids such redundancy, and preserves Con-
    gress’ calculated balance of broad strict liability and narrow
    defenses and exemptions under CERCLA.
    IV.
    Having affirmed the district court’s holding that the harm
    at the site is not subject to apportionment, we finally consider
    the several appeals of the court’s ultimate allocation of liabili-
    ties under 
    42 U.S.C. § 9613
    (f). The district court equitably
    allocated liability for the response costs to the PRPs as fol-
    lows: forty-five percent to Ross; thirty percent to PCS; sixteen
    percent to Holcombe and Fair; five percent to Ashley; three
    percent to Allwaste; one percent to RHCE; and zero percent
    to the City of Charleston. As the party bringing the § 9613(f)
    action, PCS bears the burden of proving each party’s equita-
    ble share of response costs. Minyard Enters., 
    184 F.3d at 385
    .
    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
    PCS NITROGEN INC. v. ASHLEY II         OF   CHARLESTON          41
    plain language grants a court significant discretion to choose
    which factors to consider in determining equitable allocation
    of liability. We review a district court’s choice of factors for
    abuse of discretion, and its ultimate allocations of liability for
    clear error. See Boeing Co. v. Cascade Corp., 
    207 F.3d 1177
    ,
    1187 (9th Cir. 2000).
    In this case, the parties do not challenge the court’s selec-
    tion of relevant factors in arriving at the appropriate alloca-
    tion. They only challenge the court’s application of those
    factors. PCS, RHCE, and Holcombe and Fair each contend
    that the court clearly erred by allocating too much liability to
    each of them, and not enough to the other parties.10
    Considering, as we must, the record as a whole, we cannot
    conclude the district court clearly erred. The court’s ultimate
    allocation of liability reasonably weighs relevant factors,
    including the degree of involvement each party had in dispos-
    als (both primary and secondary) on the site, the degree of
    care each party exhibited with respect to hazardous sub-
    stances, the degree to which each party cooperated with gov-
    ernment officials with respect to hazardous substances, and
    the benefit each party reaped from disposals of hazardous
    substances on the site. Although the record also might have
    supported a different allocation, the ultimate "allocation [is]
    among the reasonable conclusions supported by the evi-
    dence." Boeing, 
    207 F.3d at 1188
    . We therefore affirm the
    district court’s allocation of liabilities under § 9613(f).11
    10
    We reject Holcombe and Fair’s alternative argument that we remand
    for further factual findings because the district court’s analysis assertedly
    lacked the detail and exactness required for adequate appellate review. See
    Fed. R. Civ. P. 52(a). The district court made over two hundred factual
    findings, and specifically referenced the findings it considered important
    in its allocation determination for each PRP. This factual analysis ade-
    quately satisfies Rule 52(a).
    11
    Ross challenges the district court’s judgment directing that Ashley
    recover from PCS $147,617.02 plus interest, and that PCS recover from
    42         PCS NITROGEN INC. v. ASHLEY II      OF   CHARLESTON
    V.
    For the foregoing reasons, the judgment of the district court
    is
    AFFIRMED.
    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 modi-
    fication of the money judgment explicitly recognized that PCS cannot
    recover from Ross until it has paid more than its proportionate share to
    Ashley. Considering the court’s clarification on the record, we find no
    error in the form of the money judgment.
    

Document Info

Docket Number: 11-1662, 11-2087, 11-2099, 11-2104, 11-2297

Citation Numbers: 714 F.3d 161

Judges: Diaz, King, Motz

Filed Date: 4/4/2013

Precedential Status: Precedential

Modified Date: 8/6/2023

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