Ashley II of Charleston, LLC v. PCS Nitrogen, Inc. (746 F. Supp. 2d 692, 2010)

AMENDED ORDER AND OPINION

MARGARET B. SEYMOUR, District Judge.

This is a cost-recovery action brought under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. §§ 9601, et seq., to recover costs incurred to remediate 33.95 acres of a 43 acre parcel of land in Charleston, South Carolina (“the Site”). On September 26, 2005, this lawsuit was filed under CERCLA § 107 (42 U.S.C. § 9607) by one of the Site’s current owners, Ashley II of Charleston, LLC (“Ashley”), against PCS Nitrogen, Inc. (“PCS”), seeking a declaratory judgment that PCS is jointly and severally liable for the cost of remediating the Site; and a money judgment in the amount of $194,232.94 to reimburse Ashley for costs of remediation that it has already incurred. [Entry 1 at ¶¶ 28-36; Entry 209 at ¶¶ 31-37]. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and CERCLA. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (c), and 42 U.S.C. § 9613 because the claims arise, and the releases of hazardous substances occurred at the Site, which is located in the District of South Carolina.

PCS filed contribution claims pursuant to CERCLA § 113(f)(1) against Ashley, Ross Development Corporation (“Ross”); Koninklijke DSM N.V., and DSM Chemicals of North America, Inc. (collectively “the DSM Parties”); James H. Holcombe (“Holcombe”), J. Holcombe Enterprises, L.P. (“Holcombe Enterprises”), and J. Henry Fair, Jr. (“Fair”) (collectively “The Holcombe and Fair Parties”); Allwaste Tank Cleaning (n/k/a PSC Container Services, LLC) (“Allwaste”); Robin Hood Container Express, Inc. (“RHCE”); and the City of Charleston, South Carolina (“the City”), alleging that they are potentially responsible parties (“PRPs”). [Entry 226].

Pursuant to § 113 of CERCLA, Ross filed counterclaims against PCS and cross-claims against the Holcombe and Fair Parties, the DSM Parties, RHCE, the City, and Allwaste. [Entry 239 at 12-18]. RHCE filed § 113 counterclaims against PCS and cross claims against the DSM Parties, the Holcombe and Fair Parties, Allwaste, and the City. [Entry 231 at 8-11]. The Holcombe and Fair Parties have filed counterclaims against PCS and cross-claims against Ross and the DSM Parties pursuant to § 113. [Entry 234 at 10-12]. The City has filed a § 113 counterclaim against PCS. [Entry 228 at 7-8]. PCS, Ross, RCHE, the Holcombe and Fair Parties, and the City all seek a judicial determination of their rights to future cost recovery and contribution pursuant to 28 U.S.C. §§ 2201 and 2202. [Entry 226 ¶ 50; Entry 281 ¶ 50; Entry 234 ¶¶ 55, 63; Entry 228 at 9].

This case was bifurcated into liability and allocation phases by order of The Honorable C. Weston Houck on July 25, 2006. [Entry 56]. From February 20, 2007 to February 22, 2007, Judge Houck held a bench trial for the liability phase. [Entries 107, 108, 109 and 115]. On September 28, 2007, 2007 WL 2893372, pursuant to Federal Rule of Civil Procedure 52, Judge Houck entered Findings of Fact and Conclusions of Law determining PCS to be the successor-in-interest to former Site owner, Columbia Nitrogen Corporation (“CNC”). [Entry 118], On January 5, 2009, Judge Houck disqualified himself from further participation in the case. [Entries 307 and 308]. The case was reassigned to the undersigned on January 6, 2009. [Entries 307 and 308]. On August 13, 2009, this court granted summary judgment to the DSM Parties. [Entry 409],

From October 26, 2009 to November 6, 2009 and continuing from January 19, 2010 to January 27, 2010, the court held a bench trial for the allocation phase. [Entries 472, 473, 475-478, 480, 483, and 484], This case is currently before the court on three motions for judgment on partial findings filed during trial by Allwaste, the Holcombe and Fair Parties, and RHCE [Entries 517, 520 and 521]; as well as findings of fact and conclusions of law as to allocation pursuant to Federal Rule of Civil Procedure 52(a). On June 2, 2010, each of the parties submitted proposed findings of fact and conclusions of law. PCS’s responses to the motions for judgment on partial findings were contained within its proposed findings. [Entries 556-558].

Federal Rule of Civil Procedure 52(c), which governs judgments on partial findings, provides in pertinent part:

If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence.

Judgments entered pursuant to Rule 52(c) “must be supported by findings of fact and conclusions of law.” Fed.R.Civ.P. 52(c). Under Rule 52(c), a court assesses the evidence and may enter a judgment if the evidence is insufficient to support a claim or defense. See generally Carter v. Ball, 33 F.3d 450 (4th Cir.1994); Fed.R.Civ.P. 52. Rule 52(a) directs that when an action is tried without a jury, a court “must find the facts specially and state its conclusions of law separately.” Fed.R.Civ.P. 52(a). Having carefully considered the testimony, exhibits, deposition excerpts, trial briefs, and proposed findings of fact and conclusions of law, the court makes the following findings.

I.FINDINGS OF FACT

A. Current Site Conditions

1. The property at issue consists of approximately forty-three acres in the Upper Peninsula area of Charleston, South Carolina, and is located at the end of Milford Street, abutting the Ashley River. [Ash. Ex. 162, 195], The westernmost 33.95 acres of the property is the area that requires remediation and is the area referred to as “the Site.” [Entry 194 at 12].

2. Ashley seeks reimbursement of $194,232.94 in costs associated with the remediation of the Site. The costs claimed are itemized with invoices. [Ash. Exs. 231, 232, 247, 248, 250, 251, 252], The listed costs were actually paid by Ashley. [Ash. Exs. 231, 232, 247, 248, 250, 251, 252],

3. The environmental conditions at the Site have been comprehensively studied and investigated by experts, including experts from the United States Environmental Protection Agency (“EPA”) and the South Carolina Department of Health and Environmental Control (“DHEC”). [Ash. Ex. 256, at 9-13; Trial Tr. 23:10-16].

4. There are four conditions at the Site that the remediation seeks to correct: arsenic contamination, lead contamination, low pH, and carcinogenic polyaromatic hydrocarbon (“cPAH”) contamination. [PCS Exs. 216, 218; Trial Tr. 1298:514; Ash. Exs. 91,162],

5. Arsenic and lead contamination are found across the entire Site. [Ash. Ex. 140, Trial Tr. 646:3-24, 663:22],

6. The contamination at the Site is related to historic operations of a fertilizer plant at the Site. As part of the fertilizer manufacturing process, pyrite ore was burned as feedstock to create sulfuric acid. [PCS Ex. 1 at 7; PCS Ex. 218 at 1-2], Cinders of pyrite ore that “did not burn completely in the combustion process” resulted in the creation of pyrite slag. [PCS Ex. 1 at 15; PCS Ex. 218 at 1-2], Pyrite slag contains arsenic and lead. [Trial Tr. 649:10-19, 892:23-893:4, 914:4-7, 1059:3-5, 1451:7-14].

7. The use of pyrite ore in fertilizer manufacturing operations is the source of the vast majority of the arsenic contamination at the Site. [Trial Tr. 637:2-4, 899:1-5, 1900:19-22],

8. Another source of lead at the Site, other than pyrite slag, is lead sludge that was rinsed from lead acid chambers, which were used to make sulfuric acid during the operation of the fertilizer plant. [Trial Tr. 892:23-893:4, 1449:13-20; PCS Ex. 218 at 1, 10; O. Carter Dep. 17:8-18:3, Sept. 1, 2009].

9. There are two hot spots for cPAHs on the Site. One location is in the southwest corner of the Site and the other is on the Allwaste Parcel. [Trial Tr. 941:24-942:10]. The source of the cPAH contamination was a fire that destroyed a major portion of the acid plant in 1963. [Ash. Ex. 230 at 40; Trial Tr. 941:24-942:10, 950:14-951:3].

10. The low pH of the soil and groundwater on the Site means that there are acidic conditions at the Site. These conditions are caused by a process referred to as “acid mine drainage” in which sulfides in pyrite ore react with groundwater and oxygen to produce hydrogen ions. [PCS Ex. 1 at 20; Trial Tr. 1493:22-1494:9]. Arsenic and lead percolate through the soil and into the groundwater on the Site more readily in low pH conditions. [Trial Tr. 1460:13-23].

11. The majority of the Site is currently covered with a limestone run of crusher (“ROC”) layer that is graded to promote better drainage. [Ash. Ex. 80 at A-EPA 006141; Trial Tr. 774:7-18],

B. Remediation Plan

12. EPA has determined that the Site meets the requirements for initiating a Non-Time-Critical Removal Action under the National Contingency Plan. [Ash. Ex. 162 at A00859, A00868].

13. In October 2005, EPA published its first remediation plan for the Site. [PCS Ex. 216], This plan included three basic parts. First, soils contaminated with arsenic contamination above 37.3 milligrams per kilogram (mg/kg), or with lead contamination above 895 mg/kg, were to be removed from the Site and replaced with clean back fill. [PCS Ex. 216 at 6]. Second, any soil remaining onsite with arsenic over 22.5 mg/kg or with lead over 400 mg/kg would be covered with a cap. [PCS Ex. 216 at 60]. Third, groundwater would be directed to a sewer for treatment. [PCS Ex. 216 at A 00864; PCS Ex. 218 at A 00718]. The total cost of EPA’s first remediation plan was to be approximately $7,900,000 in 2005 dollars. [PCS Ex. 218 at A 00718].

14. In March 2008, Ashley submitted a plan, designed by engineering firm Entact, to implement the soil and sediment components of EPA’s remediation plan (the “En-tact Plan”). [Ash. Ex. 194; Trial Tr. 556:19-561:13]. In the Entact Plan, it was estimated that the implementation of EPA’s plan would require the excavation and offsite disposal of 35,337 cubic yards of soil and 800 cubic yards of sediment. [Ash. Ex. 194 at A04_04861, A04_04863]. The Entact Plan also calls for the consolidation and capping of 9,500 cubic yards of soil for areas in which the contamination levels are higher than 22.5 mg/kg for arsenic and 400 mg/kg for lead (the residential standard), but lower than 37.3 mg/kg for arsenic and 895 mg/kg for lead (the industrial standard). [Ash. Ex. 194 at A04_04861-2, A04_04868-9],

15.Ashley also developed alternative proposals for the remediation of the Site. [PCS Ex. 200; Trial Tr. 540:2-13]. In June 2008, Ashley proposed an alternative groundwater remedy involving the use of geochemical sequestration. [PCS Ex. 229 at A04_05150, A04_05165], Ashley also proposed mixing the 9,500 cubic yards of soil that was to be capped with a chemical stabilizer that would treat the contaminants in the soil and prevent contamination from leaching into the groundwater. [PCS Ex. 229 at A04J35150, A04_05165]. The estimated cost for the approach using the stabilizer is $8,778,221. [PCS Ex. 200 at Table 1]. In October 2008, Ashley proposed another remediation plan calling for the offsite disposal of the 9,500 cubic yards of contaminated soil that EPA had proposed to cap. [PCS Ex. 200 at 3; Trial Tr. 559:5-560:12, 702:4-704:11], Under this proposal, contaminated soil will be excavated on all of the parcels of land involved in this litigation. [Trial Tr. 673:19-674:4, 645:17-646:6, 650:24-651:16]. This plan also calls for the excavation of 13,670 cubic yards of ROC from the Site. [PCS Ex. 200 at Table 3-Case 2], Where the ROC is more than four inches deep, it would be “tested and evaluated for suitable onsite reuse.” [Ash. Ex. 194 at A04JM867; Trial Tr. 710:16-20, 805:2-20]. If it is contaminated with lead or arsenic above remediation levels, the stockpiled ROC will be disposed of off-site and replaced with clean fill. [Trial Tr. 1367:2-13], The estimated cost of the approach involving offsite disposal of the 9,500 cubic yards of soil is $8,021,240. [PCS Ex. 200 at Table 1].

C. Basis for Dividing up Remediation Costs

16. The cost of the remediation is directly related to the volume of contaminated soil on the Site. [Trial Tr. 701:6-11]. The predominant factors contributing to the cost of the cleanup are the amount of hazardous materials and the spread of these hazardous materials throughout the Site. [Ash. Ex. 162 at 12; Trial Tr. 812:6-11, 1587:9-15,1943:11-15].

17. The majority of the remediation at the Site is necessary because of arsenic contamination. [Trial Tr. 660:3-8; 1900:9-11].

18. The spread of contamination occurs in several ways, including air dispersion, chemical migration, construction, demolition, earth moving, grading, and filling. Air dispersion is contamination spreading on the land surface due to wind activity. [Trial Tr. 1606:7-16, 1606:22-1607:2, 1607:8-12, 1608:1-7]. Chemical migration involves contamination moving through the soil when contaminants interact with the environment. For example, both lead and arsenic can move through the soil, particularly in low pH conditions, through chemical migration. [Trial Tr. 842:23-843:11]. Development activities engaged in by Site owners including construction, demolition, earth moving, grading and filling can cause horizontal as well as vertical movement of contaminants. [Trial Tr. 791:7-18, 811:24-812:5,1646:10-17; PCS Ex. 1 at 16].

D. Summary of Site Ownership

19. Ross, formerly known as Planters Fertilizer & Phosphate Company (“Planters”), was incorporated on May 15, 1906. [PCS Ex. 177]. Planters owned the Site from 1906 to June 30, 1966 and operated a phosphate fertilizer manufacturing facility on the Site during those years. [Ash. Ex. 162 at 1].

20. On October 1, 1962, CNC filed its Certificate of Incorporation in Delaware as Columbia Nitrogen Corporation. [Entry 118 ¶ 11]. On June 30, 1966, CNC purchased the Site from Ross. [Entry 118 ¶ 1, Ash. Ex. 23].

21. Between 1966 and 1972, CNC owned the Site and operated a fertilizer granulation plant on the Site. CNC produced superphosphate and N-P-K fertilizer (nitrogen-phosphatepotassium fertilizer). [Entry 118 ¶ 2]. In 1972, CNC ceased fertilizer production at the Site. [Entry 118 ¶ 3].

22. On February 7, 1985, CNC conveyed the Site to Susan M. Smythe (“Smythe”), as counsel to Holcombe and Fair, for the sum of $588,168.00. [Entry 118 ¶ 5; Ash. Ex. 46]. Smythe took title to the property to facilitate a like-kind exchange for Holcombe and Fair. [Ash. Ex. 48; Trial Tr. 2861:11-2862:15]. On May 3, 1985, Smythe conveyed the Site to Donald J. Hyde (“Hyde”) for the sum of $365,323.00. [Ash. Ex. 48]. On May 3, 1985, Hyde conveyed the Site to Holcombe and Fair for the sum of $365,323.00. [Entry 118 ¶ 7; Ash. Ex. 49].

23. On December 29,1987, Holcombe and Fair sold three acres of the Site to Max B. Mast and Marlene B. Mast (“the Masts”) for the sum of $75,000.00. [Holcombe and Fair Parties Ex. 1; Trial Tr. 2593:2-10]. Subsequently, the Masts conveyed the same three acres of the Site to Allwaste by deed recorded on January 11, 1989. [All-waste Ex. 1].

24. The City was deeded a right-of-way over 1.28 acres of the Site by quit-claim deed from Holcombe and Fair on September 30, 1991. [City Ex. 19]. On December 13,1991, the City conveyed the turnaround at the end of the right-of-way to Holcombe and Fair by quit-claim deed. [Holcombe and Fair Parties Ex. 5; Trial Tr. 2658:7-2659:3].

25. On January 15, 1992, Holcombe and Fair conveyed two acres of the Site to Robin W. Hood, II (“Hood”). [RHCE Ex. 2], This parcel was then leased to RHCE for the purpose of conducting a business for the storage of intermodal shipping containers. RHCE continues to operate that business. [RHCE Exs. 5-7].

26. On December 23, 1997, Holcombe conveyed his ownership of the Site to Holcombe Enterprises. [Entry 118 ¶ 8, PCS Ex. 72].

27. On December 31, 2002, Holcombe Enterprises and Fair entered into a Contract of Sale with Ashley for the sale of the Holcombe and Fair Parties’ remaining property at the Site. [Ash. Ex. 94]. On November 24, 2003, Holcombe Enterprises, Fair, and Ashley amended the Contract of Sale by entering into the Fourth Amendment to the Contract of Sale. [Ash. Ex. 94; Trial Tr. 80:8-16]. On November 24, 2003, Holcombe Enterprises and Fan-conveyed 27.62 acres of the Site to Ashley for the sum of $2,700,000. [Ash. Exs. 94, 113; Entry 118 ¶ 9]. On May 15, 2008, Ashley acquired 2.99 acres of the Site from Allwaste. [Allwaste Ex. 1],

28. Currently, Ashley owns 30.67 acres of the Site [Ash. Exs. 194, 200], Hood owns 2.00 acres of the Site [RHCEI Ex. 2], and the City holds an interest in 1.28 acres of the Site. [City Ex. 19],

E. Planters Period of Ownership (1906-1966) and Subsequent Actions by Ross

29. The only evidence introduced at trial about the Site for the period prior to 1906 was an historical map of Charleston, South Carolina from 1884. [Ash. Ex. 72 at A 001879]. On the 1884 map, the Site is referred to as W.H. Kinsman’s. [Ash. Ex. 72 at A 001879]. The map shows that there were three structures on the western side of the Site in 1884. [Ash. Ex. 72 at A 001879]. It is unknown what uses were made of the Site prior to Planters’ purchase of the Site in 1906.

30. Prior to the construction of the buildings and structures shown in a 1907 Planters brochure, the Site would have required grading and filling of the undeveloped surface at the locations of those structures. [PCS Exs. 4,168].

31. To the extent fill containing pyrite waste was used on the Site prior to the construction of the manufacturing facilities first used by Planters in 1906, such fill came from an off-site source. Seven other phosphate fertilizer plants were in operation from 1884 to the early 1900’s in close proximity to the Site, all of which are potential sources of contaminated fill. [Trial Tr. 1665:6-10, 1564:23-1565:3; Ash. Ex. 72 at [ A XXXXXX-XX ], [ A XXXXXX-XX ], A 001888],

32. Throughout its ownership period, Planters made phosphate fertilizer by reacting sulfuric acid with phosphate rock. [PCS Ex. 1 at 2], Planters manufactured the sulfuric acid in acid chambers that were housed in an acid manufacturing plant on the northern part of the Site. [Ash. Ex. 226 at 6]. Once produced, the sulfuric acid was piped to a building on the southern part of the Site where it was added to crushed phosphate rock. [Ash. Ex. 226 at 5-7].

33. The chief fuel used by Planters until the early 1930’s was pyrite, which led to the production of pyrite slag. [Ash. Ex. 76 at 2, 4; Ash. Ex. 162 at A 00857], The pyrite slag was spread over the Site for road stabilization and used to line off-site roads in the area. [Ash. Ex. 76 at 2, 4; Ash. Ex. 81].

34. Planters is the only Site owner that burned pyrite ore and generated pyrite slag. [Trial Tr. 899:6-8, 1239:12-14, 1492:16-23]. Pyrite slag is the source of the vast majority of the arsenic and much of lead contamination at the Site. [Trial Tr. 637:2-4, 899:1-5,1900:19-22],

35. One of the causes of the low pH at the Site is the pyrite slag from Planters’ operations. [Trial Tr. 1461:8-22, 1492:22-1493:9; PCS Ex. 1 at 20-22]. Low pH is a condition often seen at phosphate fertilizer plant sites contaminated with slag. [Trial Tr. 1461:13-22, 1494:1-4]. The lowest pH on the Site is in the groundwater in the PZ-05 well cluster. [Trial Tr. 1461:8-22, 1494:10-23, 1496:10-1497:5]. The low pH and contamination in well cluster PZ-05 was caused by pyrite slag. [PCS Ex. 226 at 1-30, 1-33; PCS Ex. 217 at A01_01389; Trial Tr. 635:16-25, 636:8-10, 1888:25-1889:10].

36. The low pH conditions were also caused by acid discharges from the fertilizer operations, including acid rinsed out of the acid chambers, acid leaks from pipes, and discharges of fluorocylie acid and hydrofluoric acid. [Trial Tr. 926:17-927:15, 1307:3-15]. If a leak occurred at night while Planters operated the Site, the leak would not be fixed immediately and the production process would not be halted. [O. Carter Dep. 163:17-165:1, Sept. 1, 2009]. The sulfuric acid plant operated “on automatic” during the evening shifts. [PCS Ex. 169 at 7],

37. There were five acid chambers at the Site, which were lined with lead. The use of these chambers to make sulfuric acid resulted in the build up of lead sludge in the acid chambers. Three of these chambers were rinsed out every year and two were rinsed out every two to three years. [O. Carter Dep. 16:17-17:7, Sept. 1, 2009; PCS Ex. 169 at 6, PCS Ex. 170 at 6]. A hole was cut in the bottom of each of the chambers, and a fire hose was used to wash the sludge out of the chambers and onto the ground. [O. Carter Dep. 17:19-21, Sept. 1, 2009], Fire hoses were then used to push the lead sludge into the marsh and the Ashley River. [O. Carter Dep. 23:2-23:17, Sept. 1, 2009; Benson Dep. 36:4-36:11, 45:24-46:22, Nov. 15, 2006]. “[V]ery little” soda ash was used by Planters to treat the lead acid sludge created in the acid-making process, and Planters did not test the sludge with litmus paper to determine whether it was neutralized. [O. Carter Dep. 160:23-161:4, Sept. 1, 2009]. However, the amount of lead contributed by these maintenance procedures was relatively minor. [Trial Tr. 1834:23-25, 1837:1-5, 1838:12-16; PCS Ex. 1 at 24],

38. Between 1945 and 1949, Planters built a repair shop southwest of the phosphate plant. [PCS Ex. 4 at 9, Figs. 1-4, 3-2]. Between 1949 and 1962, Planters made two additions to the repair shop, constructed a building southeast of the main fertilizer plant, built a shed east of the acid plant, added two buildings along the southern edge of the Site, and constructed a bulk storage building at the west end of the Site. [PCS Ex. 4 at 10-11, Figs. 3-4, 3-5, 3-10, 3-11; Trial Tr. 1995:13-20].

39. In 1963, there was a fire that destroyed a significant portion of the acid plant. [PCS Ex. 169 at 6; Trial Tr. 1995:5-9]. This fire was the source of the cPAHs at the Site. [Trial Tr. 856:3-7]. Planters constructed a new, modernized acid plant in 1964. [PCS Ex. 169 at 6; Trial Tr. 1995:5-9],

40. In 1965, as a result of fish kills in the Ashley River, the United States Public Health Service conducted an Ashley River Pollution Study. [Ash. Ex. 21 at 1]. In June and July 1965, water discharges into the Ashley River from a number of industrial sources, including Planters Fertilizer, were sampled and analyzed. [Ash. Ex. 21 at 2]. Two waste ditches leaving the Planters plant were sampled. [Ash. Ex. 21 at 4]. One was described as being process drainage and the other as roof drainage. [Ash. Ex. 21 at 4]. Two samples from the process ditch had “extremely low” pHs of 1.7 and less than zero. [Ash. Ex. 21 at 4].

41. In a Letter of Agreement dated January 6,1966, Planters agreed to sell the Site to CNC and promised to indemnify CNC. [PCS Ex. 276]. The Indemnification provision states:

Seller [Planters] agrees to indemnify and hold harmless Buyer [CNC] in respect to all acts, suits, demands, assessments, precedings and cost and expenses resulting from any acts or omission of the Seller [Planters] occurring prior to the closing date and pertaining herein, provided the Seller [Planters] receives prompt notice in writing of such claims or demand and Seller [Planters] shall have the right to litigate or contest such claim.

[PCS Ex. 276 at 10],

42. On June 30, 1966, the Planters plant and equipment were transferred from Planters to CNC by way of a Bill of Sale. [PCS Ex. 15], The real estate on which the Plant was located was transferred by way of deed on the same date. [Ash. Ex. 23].

43. The phosphate fertilizer industry was aware that the use of pyrite caused the release of lead and arsenic since at least 1924. [Trial Tr. 1953:22-1954:5].

44. Ross filed a Notice of Intent to Dissolve in 1983. [PCS Ex. 177; Ross Ex. 5].

45. The Board of Directors of Ross (“Ross Directors”) knew that the Site was contaminated at least as early as 1992 when an article appeared in a Charleston paper regarding the listing of the Koppers Superfund Site on the National Priorities List. [Trial Tr. 2916:32-2917:12; PCS Ex. 261]. One of the Ross Directors, Katherine Rike (“Rike”), understood from the article that the entire Neck Area in Charleston, South Carolina, including the Site, was contaminated. [Trial Tr. 2916:32-2917:12], Another director, Mr. Carter (“Carter”) clipped out the article and placed it in a file entitled “Special Directors Meeting.” [Trial Tr. 2984:20-2985:1]. On January 31, 1992, the Special Directors Meeting was held in part to discuss a potential environmental liability claim against Ross. [Trial Tr. 2981:21-2982:18]. At that meeting, Carter was authorized by the Ross Directors to consult with an environmental attorney. [Trial Tr. 2987:11-14],

46. A November 12, 1998 article about the Site that was published in the Charleston Post and Courier specifically addressed lead and arsenic contamination at the Planters facility. [PCS Ex. 262], This article stated that the clean up could cost millions of dollars and that EPA had not yet determined “which former property owner would be responsible for the cleanup.” [PCS Ex. 262]. Following publication of the 1998 article, the Ross Directors held a meeting, and again discussed “possible environmental issues.” [PCS Ex. 263]. During that meeting three of the Ross Directors were authorized to discuss the matter with an environmental attorney. [PCS Ex. 263].

47. On January 28, 1999, Rike left a telephone message with Carter and another Ross Director. [PCS Ex. 264], She stated that “her thoughts at this point are to completely drain all the accounts, particularly since there is a potential ‘threat’ from the environmental agency right now.” [PCS Ex. 264].

48. From 1996 through 2006, Ross sold real estate valued at about $11,000,000 and transferred to its shareholders all proceeds from these sales not used to pay-expenses. [PCS Ex. 181].

49. In 2004, Ross distributed $1,832,019 to its shareholders. [PCS Ex. 181 at 15]. In 2005, Ross distributed $916,010 to its shareholders. [PCS Ex. 181 at 15]. In 2006, Ross distributed $694,991 to its shareholders. [PCS Ex. 181 at 5].

50. In July 2006, Mr. Carter advised the Ross shareholders that the distribution being made at that time might have to be returned to a creditor making a claim within ten years of Ross’s dissolution. [PCS Ex. 181 at 1].

51. Ross filed its Articles of Dissolution on September 13, 2006. [PCS Ex. 177; Ross Ex. 6].

52. Rike has acknowledged that she was aware of PCS’s claim against Ross in November 2006. [Trial Tr. 2932:3-5].

53. The Ross Directors made a final distribution of $35,439 to its shareholders on December 13, 2006. [Trial Tr. 2932:6-2933:18]. The Ross Directors were themselves Ross shareholders who received payments upon authorizing distributions. [PCS Ex. 181].

54. Ross has filed a declaratory judgment action in South Carolina state court against Fireman’s Fund Insurance Company and United States Fire Company, both of which have denied Ross insurance coverage for any liability related to the contamination at the Site. [PCS Ex. 183]; see Ross Dev. Corp. v. Fireman’s Fund Ins. Co., 2008-CP-10-5524. This case was subsequently removed to federal court. Ross Dev. Corp. v. Fireman’s Fund Ins. Co, 2:08-CV-03672-MBS.

F. CNC Period of Ownership (1966— 1987)

55. CNC owned the Site from 1966 to 1985. PCS operated the acid plant at the Site until June 1970 and operated the fertilizer plant until 1972. [PCS Ex. 1 at 3; PCS Ex. 15; PCS Ex. 175 at DSMNV000585].

56. Arsenic and lead were present in CNC’s finished product, normal super-phosphate fertilizer. [Ash. Ex. 41 at 75]. Dust generated by the manufacture of this product contained elevated lead and arsenic, which was deposited on the Site. [Trial Tr. 1303:7-1304:8, 1347:20-24].

57. Arsenic was present in the raw phosphate ore from Florida used by CNC in its manufacturing processes, but much less arsenic was released when the phosphate rock was burned than when pyrite was burned by Planters. [Trial Tr. 1299:7-10, 1299:18-22, 1407:19-24, 1958:25-1959:2, 1959:7-9, 1959:18-25; Ash. Ex. 41; Ash. Ex. 29 at 7 PCS-0006210].

58. CNC never used pyrite ore to manufacture sulfuric acid and generated no pyrite slag. [Trial Tr. 1492:21-23, 1524:12-13],

59. Lead was also present in the raw phosphate ore used by CNC in its manufacturing processes. [Trial Tr. 1299:7-10, 1299:18-22, 1407:19-24, 1958:25-1959:2, 1959:7-9, 1959:18-25; Ash. Ex. 41; Ash. Ex. 29 at 7].

60. Every summer CNC closed the acid plant for three months for plant maintenance. Of the five acid chambers, three were washed out every year, and two were washed out every two years. CNC personnel washed lead sludge that built up in the acid chambers from a four by six inch hole cut into the bottom of each chamber onto the ground. [O. Carter Dep. 22:13-22, Sept. 1, 2009]. This wash out resulted in a pyramid of sludge under each chamber that was two feet wide and two to three feet high. [O. Carter Dep. 22:13-22, Sept. 1, 2009]. Each pyramid of sludge was then hosed with a 225 foot long fire hose into an unlined ditch that ran toward the Ashley River. [O. Carter Dep. 102:25-103:12, Sept. 1, 2009]. The sludge then migrated towards the Ashley River. [O. Carter Dep. 15:24-26:11, 77:20-78:24, 89:17-105:19, Sept. 1, 2009; Trial Tr. 1842:3; Ash. Ex. 272 at 3-4, Figs. S-7, S-8; Ash. Ex. 41 at ii, A04_04337; Ash. Ex. 72 at 4, A001881; Ash. Ex. 150 at 1; Ash. Ex. 91 at 2, 6-63; Ash. Ex. 93 at A01_06704]. The sludge washed out of the acid chambers was a mixture containing lead sulfate, which was in part comprised of lead and acid. [Trial Tr. 831:9-22],

61. In addition, during periodic repairs to the lead acid chambers, pieces of lead were cut out and discarded onto the ground. From 1969 to 1971, the used lead was “just thrown and left laying around.” [2007 Trial Tr. 90:20-22, 93:16-20, 104:4-14]. In conducting a Site inspection during the Phase I Remedial Investigation, EPA contractor Black and Veatch Special Projects Corp. (“Black and Veatch”) noted that the site was “littered with ... sheets of lead lining from the lead acid chambers.” [Ash. Ex. 87 at 9]. Lead sheets were seen on the ground by EPA in the 1990’s. [Ash. Ex. 93 at 1-8]. If lead sheets were left on the surface of the ground from the time of the acid plant demolition in 1972, they could have contributed to the contamination at the Site. [Trial Tr. 1653:1-9].

62. The onsite manufacturing processes generated liquid process effluent that contained fluorosilicic acid and lead that was discharged into drainage ditches, releasing these contaminants across the Site and into the marsh and the Ashley River. [Ash. Ex. 228 at 4]. Fumes containing fluorosilicic acid were released into the air to be deposited onsite by prevailing winds. [PCS Ex. 1 at 5-6 & n. 2; Ash. Ex. 21 at 1].

63. After CNC purchased the plant, two new environmental practices were implemented by CNC’s environmental manager Herbert Respess (“Respess”). [Trial Tr. 1481:2-12, 1850:1-15]. First, during the periodic maintenance of the acid chambers, maintenance workers would enter the acid chambers and treat the acidic lead sludge with four to five hundred pounds of soda ash. [O. Carter Dep. 37:14-17, 20:1-6, Sept. 1, 2009]. After the treated sludge rested for twenty-four hours, the tanks were drained and another four to five hundred pounds of soda ash were mixed into the lead sludge. [O. Carter Dep. 17:12-21, 21:2-22:13, Sept. 1, 2009]. Before the lead sludge was washed away, it was tested with litmus paper to confirm that it had been neutralized. [O. Carter Dep. 160:6-18, Sept. 1, 2009]. Second, CNC implemented new procedures not used by Planters to address acid leaks from pipes. When pipes leaked, Carter was called to address the problem immediately and if he was not available, the plant was shut down. [O. Carter Dep. 163:17-165:1, Sept. 1, 2009], When a leak was discovered, it was treated with soda ash. [O. Carter Dep. 29:20-30:4, Sept. 1, 2009; Trial Tr. 875:18-878:3, 882:16-21, 883:5-15]. As a result, CNC shut down the plant more frequently than Planters did for maintenance. [O. Carter Dep. 28:20-29:12, Sept. 1, 2009]. CNC also shut down the plant on occasion to minimize air emissions from the plant. [PCS Ex. 175 at DSMNV-000609].

64. Site data show that lead sulfate was released from the acid lines. These acid releases created conditions that allowed redistribution of lead and arsenic through natural processes including chemical migration, leaching, and chemical dissolution followed by re-precipitation. Over time, periodic releases of acid, either from the washing out of the lead chambers or acid spills from line leaks and tank leaks, mobilized both lead and arsenic through the soil. [Trial Tr. 831:9-22, 840:13-16, 842:23-843:7].

65. During 1968 and 1969, CNC spent over $200,000 to construct a new granulation plant. [Ash. Ex. 26 at 3]. CNC dismantled existing components of the old granulation plant and moved them to a new structure. [Ash. Ex. 26 at 2], New construction involved over 120 tons of steel, creating heavier foundations and running over 4,500 feet of new underground piping, including 500 feet of piping from the acid plant to the new granulation plant. [Ash. Ex. 26 at 14,15, 21; Ash. Ex. 28 at 1,14-15],

66. In 1969, the old granulation plant was converted to storage, which required the construction of concrete ramps, the removal of old equipment, and the replacement of support columns. [Ash. Ex. 26 at 15], Two stories of the old granulation plant were removed and the roof replaced. [Ash. Ex. 26 at 15].

67. In May of 1970, CNC reported that the acid plant was “in poor repair.” [PCS Ex. 1 at 5-6 & n. 2; Ash. Ex. 26 at 1; Ash. Ex. 30 at 3].

68. During CNC’s ownership of the Site, material was brought onto the Site and used as fill. Locations at which fill material was placed are contaminated and require remediation. [Ash. Ex. 226 at 11,18; Ash. Ex. 229 at 23, 26].

69. On April 23, 1971, a severe wind storm caused extensive damage to the roof of the sulfuric acid plant, the main building, and the plant protection chemicals storage building. [Ash. Ex. 32 at 6]. Estimated loss amounted to $45,000 to buildings, $28,000 to fertilizer, and $20,000 to chemicals. [Ash. Ex. 32 at 6]. This damage resulted in air dispersion of contaminated roof dust, the finished fertilizer product, and chemicals.

70. The acid plant was not repaired after this event. Demolition of the plant began in 1971 and was completed by February 28,1972. [Ash. Ex. 32 at 6; Ash. Ex. 33 at 4; Trial Tr. 1667:24-1668:1]. Demolition involved dismantling and washing out the acid chambers and acid towers, and excavating the acid tank and associated piping. Heavy equipment would have been required to demolish and remove the structures, and to remove the pilings on which the structure was built. Demolition of the plant would have disturbed the subsurface soil to a depth of at least two feet. [Ash. Ex. 272 at 2, Figure S-l; Trial Tr. 2561:4-19, 2564:20-2565:1]. Underground piping was dug out with an excavator by digging a trench right over the pipe or next to it and removing the pipe to a staging area. [Trial Tr. 2561:4-2562:6].

71. By July 1972, the dismantling of all acid plant equipment was nearly complete. [Ash. Ex. 37 at 4], By October of 1972, all fertilizer production at the Site had ceased. [Ash. Ex. 226 at 13; Ash. Ex. 37 at 4]. Between 1972 and 1977, the Site was inactive. [PCS Ex. 4 at 13-14], An April 1973 aerial photograph indicates that the roof on the old granulation plant had collapsed. [PCS Ex. 4, Figs. 3-25; 3-33],

72. Between February and September of 1977, CNC dismantled most of the remaining structures on the Site. [Trial Tr. 2005:23-25]. The dismantling of the acid and fertilizer plants left wooden timbers and poles on the Site from late 1977 until 1979. [Trial Tr. 2072:1-10; PCS Ex. 4 at 14-15].

73. In April 1979, CNC’s demolition contractor defaulted on his contract and walked off the Site leaving “a lot of rubble and some very difficult concrete structures to remove.” [Ash. Ex. 40]. Access to the Site was not secure; fencing was down and a gate left open. [Ash. Ex. 40].

74. By January 11, 1981 the demolition of the fertilizer plant was completed. [Ash. Ex. 33 at 4; Ash. Ex. 40 at 1; PCS Ex. 4 at 15], Demolition of the fertilizer plant required the use of substantial heavy equipment, such as large hydraulic excavators, a crane with a wrecking ball, front-end loaders, and bulldozers. [Trial Tr. 2556:19-2557:16]. Demolishing the large plants on the Site required using an area around the buildings to position the equipment and to place pieces of the demolished building. [Trial Tr. 2558:9-2559:14], In addition, grading was likely required to expand site access and prepare an area for staging. [Trial Tr. 2558:9-2559:14]. These processes disturbed the soil. [Trial Tr. 2564:20-2565:1].

75. The removal of three separate railroad tracks on the Site, including portions elevated on trussle-type structures, would have required the use of heavy excavation equipment to dig out the tracks. [Trial Tr. 2560:13-2561:3]. The piles would either be pulled out or broken off with a bulldozer, disturbing the soil. [Trial Tr. 2560:13-2561:3],

76. After demolition activities were completed, CNC did not implement a storm water management system on the Site. By early 1981, most of the debris from the demolition process had been removed. [PCS Ex. 4 at 15; Ash. Ex. 272 at 3, fig. S-5],

77. The CNC demolition and site preparation activities that occurred in the 1971— 1981 time period impacted an area a little less than eighty percent of the area where contaminated soils and sediments must be excavated. [Trial Tr. 1047:5-17]. Demolition and regrading of the Site by CNC significantly disturbed the soil at the Site. [Trial Tr. 939:2-6].

78. CNC operated three phosphate fertilizer plants located in: Charleston, South Carolina; Moultrie, Georgia; and Macon, Georgia. [Ash. Exs. 31-38]. According to the testimony of Thomas Blue, a PCS environmental expert who testified at the first trial, a company with expertise in the manufacturing of phosphate fertilizer would be aware that these processes result in lead and arsenic contamination. [2007 Trial Tr. 364:24-366:17]. If pyrite clinkers and pyrite slag were on the land surface of the Site, a person with expertise in the phosphate fertilizer business would know that lead and arsenic contamination were being released. [Trial Tr. 1600:2-1601:2]. CNC employed more stringent environmental practices at its phosphate fertilizer plant in Moultrie, Georgia than in Charleston, South Carolina. In Moultrie the lead sludge from the lead acid chambers was washed into a retention basin lined with calcitic lime rock, whereas in Charleston the lead sludge was washed onto the ground, sprinkled with soda ash, and then washed away with a fire hose. [O. Carter Dep. 74:21-75:3, 93:9-22, September 1, 2009]. The foregoing indicates that CNC knew that hazardous materials had been disposed of on the Site.

79. CNC continued to own the Site until 1985, roughly five years after CERCLA was enacted. CNC did not report any release of hazardous substances at the Site to EPA. [Ash. Ex. 258].

80. Prior to the pin-chase of the Site by Holcombe and Fair in 1985, all of the structures on the Site were demolished and “some grading of portions of the Site took place.” [Trial Tr. 2565:17-2566:2; Ash. Ex. 258 at 5].

81. CNC did not disclose the presence of contamination on the Site to Holcombe and Fair prior to the sale of the Site. [Ash. Ex. 47; Trial Tr. 2863:24-2864:12].

G. Holcombe and Fair Parties Ownership (1987-2003)

82. In November of 1984, Holcombe and Fair, and CNC executed an agreement for the sale of approximately thirty-nine acres of the Site. [PCS Ex. 58; Trial Tr. 2580:20-21].

83. Holcombe and Fair were represented by Smythe, a real estate lawyer. [Trial Tr. 311:18-19, 2584:3-4, 2861:5-14].

84. On December 11, 1984, William Bivens (“Bivens”), counsel to CNC, sent Fair a letter enclosing the results of a soil sampling performed in 1968. [Ash. Ex. 44]. This soil sampling was performed for the purpose of assessing the suitability of the soil for construction purposes and did not assess the environmental condition of the soil. [Ash. Ex. 44; Trial Tr. 2585:2-2587:11],

85; Prior to consummating the sale of the property, Holcombe and Fair agreed to sell a portion of the property to the Commissioner of Public Works for the City and agreed to enter into a like-kind exchange of property with Hyde. [Trial Tr. 2583:14-2584:5, 2861:3-2863:13],

86. On January 4, 1985, Bivens sent Fair a letter describing an agreement between CNC and the City whereby the City planned to extend Milford Street and water and sewer utilities onto the Site. [PCS Ex. 59]. In this letter CNC offered to assign its rights under the agreement with the City to Holcombe and Fair. [PCS Ex. 59]. Fair understood this letter to mean that the City would pay to extend Milford Street and the utility lines. [Trial Tr. 2581:6-2582:18].

87. On February 7, 1985, CNC conveyed the Site to Smythe, as counsel to Holcombe and Fair, for the sum of $588,168.00. [Entry 118 ¶ 5; Ash. Ex. 46]. Smythe then conveyed six acres of the property she received from Columbia Nitrogen to the Commissioner of Public Works. [Trial Tr. 2584:2-5, 2861:3-2863:13]. On May 3, 1985, Smythe conveyed the remainder of the land at the Site to Hyde for the sum of $365,323.00. [Entry 118 ¶ 6; Ash. Ex. 48; Trial Tr. 2861:11-2862:15]. That same day, Hyde conveyed the property to Holcombe and Fair. [Entry 118 ¶ 7]. Holcombe and Fair, in turn, conveyed another property to Hyde through Smythe. [Ash. Ex. 49; Ash. Ex. 50; PCS Ex. 66; Trial Tr. 311:5-17, 313:11-314:3, 2583:14-2584:11, 2861:3-2863:13]. Holcombe and Fair did not have knowledge of environmental contamination at the time of the like-kind exchange. [Trial Tr. 2584:11-2585:10, 2863:24-2864:12; Ash. Ex. 47].

88. No environmental site assessment was conducted by Holcombe and Fair pri- or to purchase because it was not customary at the time for purchasers of commercial property to investigate the property’s environmental condition. [Entry 528 at 5:23-6:12, Ex. 1; Trial Tr. 310:4-311:1, 471:16-474:18, 2588:20-2589:5, 2793:4-2794:12, 2868:24-2870:9, 2885:10-16; Entry 527 at 16:5-17:21, 18:16-22, 22:2-9, Ex. 1; Holcombe and Fair Parties Ex. 13].

89. When the Site was acquired by Holcombe and Fair, it was in a condition that did not require rough grading or the removal of buildings. [Trial Tr. 434:11-17, 2496:6-25, 2498:1-2499:7, 2685:6-14, 2699:1-18, 2801:25-2802:7], Witnesses who observed the Site at the time described the land as relatively flat, with some vegetation, but no trees. [Trial Tr. 434:11-17, 2496:6-25, 2498:1-2499:7, 2685:6-14, 2699:1-18, 2801:25-2802:7].

90. On December 29,1987, Holcombe and Fair conveyed three acres of the Site to the Masts by deed for the sum of $75,000.00. [Holcombe and Fair Parties Ex. 1, Trial Tr. 2593:2-10]. Holcombe and Fair did not perform any site work or construction on this parcel prior to its sale to the Masts. [Trial Tr. 2593:2-10].

91. Holcombe and Fair intended to divide their property up into parcels for lease. [Trial Tr. 2494:12-2495:3, 2590:3-9, 2598:7-25, 2681:23-2682:7, 2695:6-2698:14],

92. In the summer of 1990, Holcombe and Fair began constructing the Milford Street extension. [Trial Tr. 2796:1-19]. Holcombe and Fair paid for the extension of Milford Street. [Trial Tr. 2656:10-2557:9]. The City did not contribute to the payment of these expenses. E.M. Sea-brook Jr., Inc., a local engineering and surveying company, was hired by Holcombe and Fair to plan and construct the Milford Street extension. [Trial Tr. 2598:13-22, 2682, 2687:6-8]. The construction for the Milford Street extension included the addition of underground water and sewer lines as well as a drainage ditch. [Trial Tr. 2494:12-2495:3, 2582:19-22, 2598:7-25, 2681:23-2682:7, 2685:6-18, 2695:6-2698:14], These plans were approved by the South Carolina Coastal Council. [PCS Exs. 79, 80, 83, 84, 155, 157, 165; Holcombe and Fair Parties Ex. 2].

93. To construct the Milford Street extension, Seabrook used a bulldozer to level and smooth the land. [Trial Tr. 1128:17-1129:6, 2694:14-2696:3, 2699:1-18; PCS Ex. 157]. By the end of the summer of 1990, the Milford Street extension was roughed in. [Trial Tr. 2796:1-19]. ROC was put down as base material with asphalt placed on top. [Trial Tr. 1128:17-1129:6, 2494:12-2495:22, 2694:14-2696:3, 2699:1-18; PCS Ex. 157], A turnaround was constructed at the end of the road extension, but was left unpaved. [PCS Ex. 157; Trial Tr. 2686:12-25, 2780:5-8]. The water and sewer utility extensions were constructed by excavating soil adjacent to the road extension, placing utility pipe in the excavated trench, backfilling the trench with soil removed from the trench, and spreading any excess dirt in the immediate area of the excavation. [PCS Ex. 157; Trial Tr. 2696:4-2697:2], The water line extension was placed on one of the road shoulders at an elevation of approximately three feet deep. [Trial Tr. 2731:15-16]. The sewer line was placed on the other road shoulder at a depth of 4.5 feet. [Trial Tr. 2731:2-14]. A drainage ditch approximately two feet in depth and ten feet wide was constructed along the road extension and along the turnaround. [PCS Ex. 157; PCS Ex. 166 at PCS-0016120; City Ex. 17 at 6; Trial Tr. 2686:12-25, 2697:3-12, 2746:23-2747:22], The final portions of the water and sewer lines were installed in 1996. [PCS Ex. 259 at HF0001249; PCS Ex. 101]. The construction of the road, ditch, and utility lines proceeded through areas with discolored soils. [PCS Ex. 126; Trial Tr. 422:6-9, 2800:18-25].

94. The asphalt on the Milford Street extension acted as a cap, preventing further environmental harm, and the addition of water and sewer prevented the use of contaminated groundwater, protecting human health. [Trial Tr. 439:15-440:3, 445:7-12, 479:15-22, 480:3-14, 1731:2-1732:6].

95. In mid-1990, Charles Lane (“Lane”), a real estate professional working at Holcombe and Fair Realtors, recommended that Holcombe and Fair conduct an environmental assessment of the Site before leasing or selling portions of the property. [Trial Tr. 2491:8-2492:6, 2589:9-15],

96. On July 31, 1990, Lane sent a letter to Tom Hutto (“Hutto”) of General Engineering Laboratories, Inc. (“GEL”) requesting an environmental investigation of the property “to the minimum extent necessary to show due diligence.” [PCS Ex. 124],

97. Subsequently, Scott Smith (“Smith”) and Hutto of GEL performed an environmental assessment of the property that included a review of historical information, interviews, and soil sampling and testing. [Ash. Ex. 53; PCS Ex. 126-127; Trial Tr. 314:1-323:12, 487:15-493:5, 2795:9-2802:13].

98. Hutto and Smith performed a visual inspection of the Site in the summer of 1990. [Trial Tr. 2795:1-17, 2797:13-20; PCS Ex. 126]. During this visual inspection, Smith noted a pile of material near the road construction that he believed was soil and building debris. [Trial Tr. 2800:6-15]. He did not sample this material. [Trial Tr. 2801:5-24]. Smith also noted the presence of discolored soils along the edge of the Milford Street extension and to the west of the turnaround. [PCS Ex. 126; Trial Tr. 2797:21-2798:2], These discolored soils included a purple slag-like material. [Trial Tr. 2815:9-14], Hutto observed waste materials spread across the land surface during the inspection. [Trial Tr. 510:23-511:8].

99. On October 3, 1990, a draft report of GEL’s investigation was sent to Lane. [Ash. Ex. 53; Trial Tr. 317:6-16, 496:12-497-6, 2493:8-16]. The report detailed the analytical results from several samples taken from sixteen on-site test pits that were seven to ten feet deep. [Ash. Ex. 53; Trial Tr. 320:5-321:1], The results showed elevated metals, including lead and arsenic, and low pH conditions in several of the samples. [Ash. Ex. 53; Trial Tr. 316:10-323:24]. These results were not reported to DHEC because samples from test pits are not required to be reported. [Trial Tr. 489:16-490:5, 2838:12-14, 2839:5-11]. The draft report indicated the presence a gray material that is considered characteristically hazardous as well as a purple slag material that is not considered characteristically hazardous. [PCS Ex. 127 at 2-3].

100. On October 4, 1990, Smith faxed a copy of the draft report to Smythe. [PCS Ex. 128].

101. On December 12, 1990, Elizabeth Warner (“Warner”), an attorney representing Holcombe and Fair, sent a copy of the GEL draft report to an attorney at Arcadian Corporation, successor to CNC, and predecessor to PCS. [Ash. Ex. 55; PCS Ex. 129; Entry 118 at 8, 22], Warner’s letter indicated that GEL’s investigation of the Site revealed “significant contamination” involving phosphates and petroleum products. [PCS Ex. 129].

102. Ross was never contacted by the Holcombe and Fair Parties regarding the contamination or clean up costs despite Holcombe’s knowledge that the Site had been owned by Planters. [Trial Tr. 2632:1^1, 2880:23-2881:60; PCS Ex. 56],

103. GEL’s final report on its subsurface investigation concluded that there were “materials in the subsurface which are characteristically hazardous.” [PCS Ex. 132], Contamination was found at depths ranging from one and one half to eight feet below the land surface. [PCS Exs. 127, 132], The final report also indicated that storm water presented a problem at the Site because it could carry contaminants that were on the land surface to the marsh and tidal pool at the western edge of the Site. [PCS Exs. 127, 132; Trial Tr. 2820:18-2821:21, 2822:18-25].

104. Holcombe and Fair did not commission further soil sampling or analysis after the GEL report [Trial Tr. 411:6-8, 2629:21-2630:22, 2837:6-16], despite GEL’s statement that additional sampling was appropriate. [PCS Exs. 127,132],

105. On December 29, 1990, Holcombe and Fair entered into a Contract of Sale with RHCE for three acres of land at the Site. [Holcombe and Fair Parties Ex. 3 at 3; Trial Tr. 2594:4-2597:8]. The Purchase and Sale Agreement stated, “There is no contamination on the property at the time [RHCE] takes over the property, except as outlined in GEL letter dated December 20, 1990.” [PCS Ex. 131]. The December 20, 1990 letter did not mention contamination on the Site besides that found on tracts one and two. [Trial Tr. 2836:3-21], The letter mentioned the purple slag, but did not mention the gray characteristically hazardous material described in the draft report. [PCS Ex. 130]. The GEL letter indicated that the presence of contamination should not affect the use of the property for the purpose parking commercial vehicles on six inches of ROC. [PCS Ex. 130 at 2],

106. On January 23, 1991, an attorney for Arcadian Corporation responded to Warner’s letter regarding the contamination at the Site denying responsibility. [Ash. Ex. 56]. Arcadian subsequently provided EPA with a copy of GEL’s draft report. [Ash. Ex. 62],

107. On May 22, 1991, Holcombe faxed additional information to Hood regarding the environmental condition of the property. [PCS Ex. 186; Trial Tr. 2594:25-2596:5]. The fax, which summarizes the findings of a July 22, 1987 environmental audit of the Site by the Commissioner of Public Works, indicates that the contaminants in the soil did not significantly impact the surface soils or the groundwater on the Site and that current Site activities were not exacerbating the contamination of the property. [PCS Ex. 186 at 5].

108. On May 29, 1991, the Holcombe and Fair Parties commissioned GEL to analyze the groundwater at the Site. [PCS Ex. 133].

109. In July of 1991, GEL conducted groundwater sampling and analysis at the Site. [Ash. Ex. 59; PCS Exs. 134,136]. In conducting this analysis, GEL took samples from a well not owned by Holcombe and Fair. [PCS Ex. 133; Trial Tr. 2806:5-12, 2838:7-25]. Because the well was owned by another entity, the test results from this sampling were not required to be reported to DHEC. [PCS Ex. 133; Trial Tr. 2806:5-12, 2838:7-25]. The results of the analysis were provided to Holcombe, who forwarded the information to Hood on July 3,1991. [Ash. Ex. 59; PCS Exs. 134-137]. The results revealed low pH conditions [Trial Tr. 417:7-12] and that the groundwater at the Site failed to meet South Carolina groundwater standards for levels of nitrates as well as the secondary standard for sulfates. [PCS Ex. 134]. The report, however, stated that the groundwater results should not affect Holcombe and Fair’s intended use of the property to park commercial vehicles and containers. [Ash. Ex. 59; Trial Tr. 2806:19-2807:16].

110. On September 30, 1991, the Holcombe and Fair Parties deeded the Milford Street extension, which covers 1.28 acres of the Site, to the City by quitclaim deed. [City Ex. 19].

111. On December 13, 1991, the City conveyed the land from the turnaround at the end of the Milford Street extension back to Holcombe and Fair by quit-claim deed. [Holcombe and Fair Parties Ex. 5; Trial Tr. at 2658:7-2659:3], The deed to the Milford Street extension was recorded on December 19,1991. [City Ex. 19].

112. Prior to leasing out parcels of the Site, Holcombe and Fair prepared each parcel by removing vegetation, filling any low spots, and putting down a four to six inch layer of ROC. [Trial Tr. 2496:6-2500:13, 2600:1-12, 2600:24-2601:1, 2697:13-2699:18]. The contractor performing the site preparation work encountered concrete and steel rods. In order to prevent breaking the equipment, the contractor stopped using a bushog and used a bulldozer to clear vegetation. [Trial Tr. 2496, 2499, 2632:19-2633:11]. Site preparation was conducted over approximately six years as leases were signed for the use of different parcels. [Trial Tr. 1174:7-24, 2495:23-2496:6, 2697:13-2698:2; Ash. Ex. 229]. Portions of the Site were graded, proof rolled and cleared as late as 1998. [PCS Exs. 105-106],

113. Development of the parcels by Holcombe and Fair occurred on contaminated soils. [Ash. Ex. 194, drawings 1-6].

114. On January 15, 1992, Holcombe and Fair conveyed two acres of the Site to Hood. [RHCE Ex. 2]. This parcel was then leased to RHCE, for the purpose of conducting a business for the storage of inter-modal shipping containers on the parcel. [RHCE Exs. 5-7]. RHCE continues to operate its intermodal shipping container storage business. [RHCE Exs. 5-7],

115. Between February 1992 and May 1993, Holcombe and Fair placed ROC on the first parcel of land that it leased. [Ash. Ex. 229 at 29-32; Trial Tr. 1192:13-1197:7, 2026:19-2030:9; PCS Ex. 4, Figs. 3-62-3-67],

116. Holcombe and Fair were required to have a master drainage plan for the Site approved by DHEC before they developed the Site. [Trial Tr. 2688:20-24; PCS Exs. 96; 97]. In 1992, Seabrook worked with DHEC to develop such a plan. [PCS Exs. 96-99]. The resultant plan involved the construction of four detention ponds. [PCS Ex. 4 at 17-18, Fig. 4-1; PCS Ex. 99; PCS Ex. 142; PCS Ex. 144],

117. On February 5, 1993, EPA sent a letter to Holcombe and Fair requesting access to their property in order to conduct environmental assessment activities related to the neighboring Koppers facility. Holcombe and Fair granted access. [PCS Ex. 74; Trial Tr. 2602:13-25].

118. Holcombe and Fair placed ROC on the second leased parcel in February of 1994. [Ash. Ex. 229 at 29-32; PCS Ex. 4, Fig. 3-62-3-67; Trial Tr. 1192:13-1197:7, 2026:19-2030:9].

119. In 1995, EPA requested access to the Site to conduct environmental assessment activities, which Holcombe and Fair granted. [PCS Ex. 75; Trial Tr. 2603:1-18],

120. On July 12, 1995, EPA project manager Craig Zeller (“Zeller”) sent the results of EPA’s preliminary assessment to Hutto as representative of Holcombe and Fair. [Ash. Ex. 68; PCS Ex. 140; Trial Tr. 324:8-325:9].

121. In April of 1997, Holcombe and Fan-placed ROC on a third leased parcel. [Ash. Ex. 229 at 29-32; Trial Tr. 1192:13-1197:7, 2026:19-2030:9; PCS Ex. 4, Fig. 3-62-3-67],

122. On December 17, 1997, Holcombe formed Holcombe Enterprises. [PCS Third-Party Complaint ¶ 81; Holcombe and Fair Parties Answer ¶ 3]. On December 23, 1997, Holcombe conveyed his ownership of the Site to Holcombe Enterprises. [Entry 118 ¶ 8; PCS Ex. 72],

123. In August 1998, an Expanded Site Inspection was performed for EPA by DHEC. The Expanded Site Inspection indicated that contamination existed at the Site, including elevated levels of arsenic, lead, and mercury. [Ash. Exs. 81, 162].

124. On November 5, 1998, Zeller, EPA project manager, contacted Hutto about the Site. [Ash. Ex. 77]. Zeller’s letter indicates that future remedial actions would be necessary to adequately protect human health and the environment from the contamination at the Site. [Ash. Ex. 77]. The letter further indicates that EPA’s greatest concern at the time was surface water runoff. [Ash. Ex. 77]. On or about November 12, 1998, Zeller met with Holcombe, Fair, and Hutto to discuss a surface water management plan. [Ash. Ex. 77; Trial Tr. 2605:1-2606:8, 337:8-338:25]. To avoid an EPA Removal Action, the Holcombe and Fair Parties agreed that they would: 1) develop a comprehensive surface water management plan; 2) submit the plan to EPA; and 3) upon approval of the plan, complete the required work. [PCS Ex. 144].

125. As previously found in Paragraph 115, in 1992 Seabrook had designed four storm water detention ponds to control surface water runoff at the Site after the placement of the ROC. Coastal Council regulations required that the post-development rate of surface water runoff not exceed the pre-construction development rate of surface water runoff. [Trial Tr. 2599:18-25, 2685:15-22, 2699:19-2702:11; Holcombe and Fair Parties Exs. 10a-10b; PCS Ex. 157], Seabrook first learned about the contamination at the Site in 1998 while working with EPA to design a plan to control runoff. [Trial Tr. 2715:13-24],

126. On December 4,1998, Holcombe and Fair wrote to Zeller that they had begun work on the detention ponds in response to his request. [Holcombe and Fair Parties Ex. 10; PCS Exs. 142, 144; Trial Tr. 423:4-424:1, 2606:9-2608:10]. The Holcombe and Fair Parties did not submit the plan for approval from EPA prior to beginning the work. [PCS Ex. 144]. The plan did not “[m]eet the substantive requirements for a NPL-Caliber site.” [PCS Ex. 144 at A09_00400], The Holcombe and Fair Parties’ implementation of the plan destroyed wetlands along the Ashley River. [PCS Ex. 148 at HF000288]. EPA told the Holcombe and Fair Parties that by proceeding without oversight they failed to follow “protocols” for work in “coastal/critieal areas.” [PCS Ex. 144 at A09-00400].

127. DHEC approved the construction of ponds on the Site, “unaware of the serious contamination issues related to past uses in this area.” [PCS Ex. 143]. When DHEC learned about the Site contamination in 1999, DHEC determined that the construction of the ponds might not have been appropriate. [Trial Tr. 2710:15-20; PCS Exs. 143,145].

128. Only three of the four ponds were built. [PCS Ex. 4, Figure 4-1; Trial Tr. 2709:5-9]. The fourth pond was not built because the area around it was not developed and no ROC was put down. [Trial Tr. at 2709:1-17]. The ponds were constructed by excavating dirt in the footprint of the pond and using the excavated dirt to form embankment walls. [Trial Tr. 2601:19-24, 2703:12-24].

129. The Holcombe and Fair Parties did not maintain the three detention ponds that were constructed, as evidenced by DHEC’s inability to locate the ponds during a 1998 inspection because they were overgrown. [PCS Exs. 98, 145, 148; Trial Tr. 2737:6-8, 2737:12-23],

130. In 1998 and early 1999, the Holcombe and Fair Parties put down additional ROC on the property and relocated one of the detention ponds. [Trial Tr. 2608:11-2609:13, 2710:18-2712:4], In March 1999, DHEC’s Department of Ocean and Coastal Resource Managem