1

United States Court of Appeals,

Fifth Circuit.

No. 93-5553.

JOSLYN MANUFACTURING CO., Plaintiff-Appellant,

v.

KOPPERS COMPANY, INC. and the Louisiana & Arkansas Railway

Company, Defendants-Appellees.

Dec. 28, 1994.

Appeal from the United States District Court for the Western

District of Louisiana.

Before POLITZ, Chief Judge, and GOLDBERG and DUHÉ, Circuit

Judges.

DUHÉ, Circuit Judge:

This is an action for contribution arising under the

Comprehensive Environmental Response, Compensation and Liability

Act (CERCLA), 42 U.S.C. §§ 9601, et seq., and the Louisiana

Environmental Quality Act (LEQA), La.Rev.Stat. 30:2271, et seq.

Appellant Joslyn Manufacturing Company (Joslyn) appeals from

judgment entered following a bench trial and from an order

denying its motion to vacate. We have jurisdiction pursuant to

28 U.S.C. § 1291. For the reasons set forth below, we affirm.

I. BACKGROUND

Joslyn sued T.L. James & Co., Koppers Company, Inc.

(Koppers), Louisiana & Arkansas Railway Company (L & A) and

others. Joslyn sought recovery of response costs and a

declaration of future liability under both CERCLA and LEQA. The

district court granted summary judgment for T.L. James & Co. See

Joslyn Corp. v. T.L. James & Co., Inc., 696 F.Supp. 222
 

1T.L. James & Co. was the owner of 60% of the voting common

stock and 100% of the non-voting stock of Lincoln Creosote

Company. In Joslyn Corp. v. T.L. James & Co., Inc., we held that

CERCLA did not mandate the piercing of the corporate veil in this

instance, and therefore affirmed the district court's grant of

summary judgment for T.L. James. See 893 F.2d at 84. 

2

(W.D.La.1988), affirmed, 893 F.2d 80 (5th Cir.1990), cert.

denied, 498 U.S. 1108, 111 S.Ct. 1017, 112 L.Ed.2d 2053 (1991).1

Joslyn dismissed all remaining parties except Koppers and L & A.

Judge Stagg conducted a four day bench trial, and held that

Joslyn was obligated to defend and indemnify L & A for all

damages to the property. Joslyn moved to vacate judgment. The

district court denied the motion and Joslyn filed this appeal.

II. FACTS

This litigation involves two contiguous parcels of land in

Bossier City, Louisiana and known collectively as the Lincoln

Creosoting site. The first parcel contained a wood treatment

plant, including buildings, treating and storage tanks, wood

treatment cylinders, black storage areas and other equipment. 

The second parcel contained industry tracks used in conjunction

with the wood treatment operations on the first parcel. A chart

depicting the relevant history of the parcels is set out in

Appendix A.

A. Wood Treatment Operations

Lincoln owned the first parcel from at least 1935 to 1950

when it sold the parcel to Joslyn. Lincoln leased portions of

the second parcel from L & A beginning in 1938 and continuing

through 1950 when it assigned its leases to Joslyn. According to
 

2Lincoln was dissolved in 1952 upon unanimous consent of its

shareholders, and is no longer in existence. 

3

Joslyn, prior to the sale and assignment Lincoln operated four

wood treatment cylinders on the first parcel. Lincoln's creosote

recovery system allowed raw creosoting chemicals to drip from the

treating cylinders to a sump pit located below the system. The

system recovered some of the creosote from the sump. The

remaining chemicals and waste water were discharged into an open

ditch which emptied into a slough at the east end of the second

parcel. From the slough, the creosoting chemicals were washed

away by rain to the surrounding land areas and waterways. 

Investigation of the site has revealed substantial creosote

contamination in the areas of the ditch and the slough. Joslyn

claims that contamination also occurred due to Lincoln's use of

creosote to kill weeds, and because of Lincoln's use of creosote

residue as a base for roads.

On August 1, 1950, Joslyn bought the first parcel, and the

plant and equipment located thereon, from Lincoln. On August 14,

1950, Lincoln2 assigned its leases on portions of the second

parcel to Joslyn. Joslyn executed leases directly with L & A in

1955 and 1967.

The evidence reveals that Joslyn took over all of Lincoln's

physical facilities and continued wood treatment operations

without interruption. George Bauer, Joslyn's plant manager from

1950 to 1963, testified that "There was a shutdown [of Lincoln]

one night and startup the next morning as Joslyn, same people,
4

same equipment." Joslyn used creosote and several other

chemicals throughout its 19 years of wood treatment operations on

the site. There is no dispute that both Lincoln and Joslyn's

wood treatment operations resulted in environmental

contamination.

Joslyn continued operations at the plant until December 1969

when it sold the property to Koppers. Koppers purchased the

first parcel from Joslyn in order to remove some of the wood

treatment equipment from the property. Specifically, Koppers

sought to acquire two treatment cylinders for use at other

Koppers' plants. These cylinders, which sat on concrete pads,

were removed in September 1970 by lifting them off of their

supports and placing them on double flat cars. In addition,

Koppers removed railroad ties, tracks, tram cars, frogs and

switches. Koppers also removed the fans and doors from a

dry-kiln located on the property. The trial court determined

that at no time during Koppers' ownership did it operate the wood

treatment facility, nor did Koppers dismantle the entire plant.

Koppers owned the property until January 1971 when it sold

the property to the Myatt family doing business as the Specialty

Oil Company. Thirteen days later, the Myatts transferred

ownership to Marvin E. Pollard. L & A sold the second parcel in

March of 1972. The property then passed through several

additional owners, the last of which subdivided the property.

B. Environmental Action

On February 3, 1986, the Louisiana Department of
5

Environmental Quality (DEQ) issued an order against T.L. James,

Joslyn, Koppers, L & A and others, requiring that a fence be

erected around the perimeter of the site. While Joslyn bore the

majority of the fencing cost, L & A—though denying liability for

remediation—paid a pro rata share. L & A and Koppers requested a

hearing on all matters relating to the February 3, 1986

compliance order issued by DEQ.

On August 2, 1986, the DEQ issued a second order against

T.L. James, Joslyn, Koppers, L & A and others ordering them to

develop a plan for investigation of the site and for clean up of

"problem areas" discovered during the Phase 1 investigation. 

Koppers and L & A again denied liability and requested a hearing

on the compliance order. Joslyn submitted a "remedial

investigation work plan" to the DEQ. On November 17, 1988, the

DEQ approved the Joslyn work plan. Once again, Koppers and L & A

denied liability and requested a hearing in regard to the

November 17, 1988 compliance order.

On April 30, 1991, the DEQ issued an order against T.L.

James, Joslyn, Koppers, L & A and others to submit a "remedial

action plan" and, upon plan approval, to implement the plan. 

Again, Koppers and L & A denied liability and requested a

hearing. On January 17, 1992, Joslyn submitted a "removal action

work plan" to the DEQ. Joslyn began clean up of the site on

February 28, 1992. In June and July of 1992, Joslyn sought DEQ's

permission to stop work at the site. DEQ denied the request and,

as of the date of the trial, Joslyn claims that it had expended
6

over $13 million in its clean up of the site.

III. STANDARD OF REVIEW

Joslyn appeals from judgment entered by the district court

after a bench trial on the merits. We review the district

court's findings of fact for clear error and legal issues de

novo. F.D.I.C. v. McFarland, 33 F.3d 532, 536 (5th Cir.1994). 

However, we may affirm for reasons other than those relied upon

by the district court. Ballard v. United States, 17 F.3d 116,

118 (5th Cir.1994).

IV. INDEMNIFICATION OF L & A

As indicated above, Lincoln entered into several leases with

L & A. Two of those leases, executed in 1942 and 1949, were

assigned by Lincoln to Joslyn. Joslyn leased portions of the

second parcel directly from L & A in 1955 and 1967. After

reviewing the terms of the indemnity clauses contained in the

four leases, the district court held,

L & A is clearly liable to Joslyn for response costs under

CERCLA because L & A is a past owner of parcel 2 of the site

and owned this property at the time hazardous substances

were disposed. Any amount for which L & A owes Joslyn under

CERCLA as a past owner, however, is MOOT, because any such

amount is CANCELLED OUT by the fact that Joslyn is

ultimately liable for such amount under the indemnity

provisions of the four leases at issue.

(emphasis in original). Joslyn agrees that it is bound by the

indemnity clauses contained in the 1955 and 1967 leases it

executed with L & A. In addition, Joslyn concedes that it is

bound by the indemnification clauses in the 1942 and 1949 leases

for all contamination which occurred after the August 14, 1950

assignment from Lincoln. The issue before this Court is whether
7

Joslyn, as assignee, is required to indemnify L & A for

environmental damage caused by Lincoln prior to the August 14,

1950 assignment. The scope of the assignment must be determined

by applying Louisiana law.

A. Terms of the Indemnification Provision

The starting point of our analysis must be the language of

the leases. The 1942 lease from L & A to Lincoln contained the

following indemnification provision,

Lessee forever shall defend, indemnify as an insurer, and

save harmless Carrier from, for and against any and all

liability, judgments, outlays and expenses (1st) consequent

on any injury, death, damage, loss or destruction (a)

suffered or caused by or to any person or property incident

to or while being engaged or being used in the doing of

whatsoever Lessee attempts hereunder, or while on Premises

for any reason whatsoever; or (b) suffered by any person

(except Carrier's exclusive employees) or by any property

(except Carrier's exclusive property) while in the immediate

vicinity or, going to or leaving or being taken by other

than Carrier to or from the Premises; (c) caused by or

resulting from any condition of or defect in the Premises or

any operation by any person whomsoever of any locomotive or

car (except resulting form Carrier's sole negligence); or

(2) consequent on any sole or concurring, wrongful or

negligent act of Lessee or of any of Lessee's officers,

agents, employees, servants or contractors; or (3)

consequent on any fire howsoever set on the premises.

The 1949 lease contained a similarly broad indemnification

provision which provided,

The Lessee agrees to indemnify the Railway Company and save

it harmless from any and all claims and expenses that may

arise or that may be made for death, injury, loss or damage,

resulting to the Railway Company's employees or property, or

to the Lessee or Lessee's employees or property, or to other

persons or their property, arising from or happening in

connection with or during the occupancy or use of said

premises by the Lessee, whether or not caused by the

negligence of the Railway Company, and resulting from fire

or any other cause, excepting only loss or damage to the

premises of the Railway Company, or to rolling stock, or to

Lessee's shipments in the course of transportation, when
 

3See 42 U.S.C. § 9607(e)(1),

No indemnification, hold harmless, or similar agreement

or conveyance shall be effective to transfer from the

owner or operator of any vessel or facility or from any

person who may be liable for a release or threat of

release under this section, to any other person the

liability imposed under this section. Nothing in this

subsection shall bar any agreement to insure, hold

harmless, or indemnify a party to such agreement for

any liability under this section.

(emphasis supplied). 

 

4La.Rev.Stat.Ann. § 30:2276(I) (West 1989),

Nothing in this Chapter shall bar a cause of action

that an owner or operator or any other person subject

to liability under this Section or a guarantor has or

would have by reason of indemnification, subrogation,

or otherwise against any person. 

8

such loss or damage is caused solely by fire set by

locomotives operated by Railway Company.

While CERCLA does not permit the avoidance of liability vis-a-vis

the government, both CERCLA3 and LEQA4 specifically recognize the

enforceability of indemnification agreements which allocate

environmental liability among responsible parties.

 The Seventh Circuit recently recognized that a party may

contract to indemnify another for environmental liability even

though CERCLA was not in existence at the time of contracting. 

See Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d

321, 327 (7th Cir.1994). The broad language of the

indemnification agreements at issue herein evince a strong intent

by the lessee to indemnify L & A for all liability arising in

connection with the occupancy or use of the land. We hold that

the indemnification agreements were intended to cover all forms
9

of liability, including liability under CERCLA and LEQA, even

though environmental liability under these statutes was not

specifically contemplated at the time of contracting. Thus, the

question before the Court is whether Joslyn assumed all of

Lincoln's obligations under the leases, or merely those

obligations which arose after the date of the assignment.

B. Assignment

The next step in our analysis is to examine the scope of the

assignment from Lincoln to Joslyn to determine exactly what was

conveyed. Our starting point is the language of the assumption

agreement between Joslyn and L & A.

1. Terms of the Assignment

The assumption agreement between Joslyn and L & A, executed

on August 14, 1950, provides in relevant part,

As of the 24th day of July, 1950, the undersigned

purchased from Lincoln Creosoting Company, Inc., of

Shreveport, Louisiana, subject to your approval, all of its

right, title and interest in and to the following contracts:

 . . . . .

2. Lease Agreement dated June 11, 1942, executed by you

and said Lincoln Creosoting Company, Inc. covering 2.33

acres, more or less, out of the SW1/4 of Section 21,

Township 18 North, Range 13 West, Bossier Parish, Louisiana.

3. Lease Agreement dated November 11, 1949, executed by

you with said Lincoln Creosoting Company, Inc. covering an

irregular parcel of land between Mile Post B-104.17 and B104.41 in Bossier City, Bossier Parish, Louisiana.

Under dates July 24th and 25th, 1950, said Lincoln

Creosoting Company, Inc. by letters to you confirmed its

said sales and assignments to the undersigned.

If you will approve this purchase and transfer by so

indicating on each copy of this letter, an original and four

copies of which are enclosed, and return one copy to the
10

above address, the undersigned agrees to carry out and

perform, as well as to be bound by all the terms and

provisions of said Industry Track Agreement of January 16,

1936, and said Lease Agreements of June 11, 1942 and

November 11, 1949, all of which are incorporated herein by

reference with the same like effect as if copied herein in

full.

(emphasis supplied). In addition to the language contained in

the assumption agreement, the 1942 lease contained the following

provision,

Every undertaking herein shall have the effect of a

covenant. Carrier's undertakings are limited to Carrier's

express covenants herein. Carrier's implied covenants are

limited to Carrier's estate in Premises. Covenants herein

shall inure to or bind each party's heirs, legal

representatives, successors and assigns, but Premises shall

not be sublet nor shall Lessee's rights be transferred or

assigned voluntarily or involuntarily. Carrier or Lessee

may waive any default at any time of the other without

affecting or impairing any rights arising from subsequent

default....

(emphasis supplied). The 1949 lease contained a similar

provision:

The lease shall not be assigned or in any manner transferred

nor said premises or any part thereof sublet, used or

occupied by any party other than the Lessee, nor for any

purpose other than that specified herein, without the

written consent of the Railway Company. The provisions of

this lease shall be binding upon any assignee or sub-tenant

of the Lessee.

(emphasis supplied).

Under Louisiana law, an assignee is only bound to the extent

of the obligations assumed. See La.Civ.Code Ann. art. 1822 (West

1987). While we have been unable to find any Louisiana authority

addressing the specific issue at hand, an understanding of the

general law of obligations provides us with sufficient guidance

to determine how a Louisiana court would decide this issue. 
 

5See La.Civ.Code Ann. arts. 1763-66 (West 1987). 

11

Therefore, as an initial matter, we must set out the applicable

rules of obligations gleaned from Louisiana law.

2. Real or Personal Obligation

Louisiana law recognizes two basic types of obligations, and

corresponding rights: an obligation, and the correlative right

to demand its performance, can be either real or personal.5

[T]he term "real right" under the civil law is synonymous

with proprietary interest, both of which refer to a species

of ownership. Ownership defines the relation of man to

things and may, therefore, be declared against the world. A

personal right, on the other hand, defines man's

relationship to man and refers merely to any obligation one

owes to another which may be declared only against the

obligor.

Reagan v. Murphy, 235 La. 529, 105 So.2d 210, 214 (1958). In

other words, a personal right is the "legal power that a person

(obligee) has to demand from another person (obligor) a

performance consisting of giving, doing, or not doing a thing." 

A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property § 203,

at 370 (3d ed. 1991).

The distinction between real and personal obligations is

important when determining whether an obligation has been

transferred.

A real obligation is transferred to the universal or

particular successor who acquires the movable or immovable

thing to which the obligation is attached, without a special

provision to that effect.

But a particular successor is not personally bound,

unless he assumes the personal obligations of his transferor

with respect to the thing, and he may liberate himself of

the real obligation by abandoning the thing.
12

La.Civ.Code Ann. art. 1764 (West 1987); see also A.N.

Yiannopoulos, Louisiana Civil Law Treatise, Property § 210, at

385 (3d ed. 1991),

From the viewpoint of transferability, obligations are

either nontransferable (strictly personal) or transferable,

whether actively or passively (heritable and real

obligations). From the viewpoint of the nature of the

transferee's responsibility, transferable obligations are

either heritable or real. Heritable obligations are

transferable obligations that result in personable

responsibility to the transferee. Real obligations attach

to immovable property and do not result in personal

responsibility of the obligor. The obligor is thus held to

a duty merely in his capacity as possessor and may free

himself by abandoning the immovable.

Thus, a real right attaches to the property (movable or

immovable) and is automatically transferred to a subsequent

successor in interest to the property. The transferability of a

personal obligation, in contrast, depends on whether the

obligation is classified as "heritable" or "strictly personal."

Louisiana Civil Code Article 1765 defines "heritable

obligation" as follows:

An obligation is heritable when its performance may be

enforced by a successor of the obligee or against a

successor of the obligor.

Every obligation is deemed heritable as to all parties,

except when the contrary results from the terms or from the

nature of the contract.

A heritable obligation is also transferable between

living persons.

Article 1766 defines "strictly personal" obligation:

An obligation is strictly personal when its performance

can be enforced only by the obligee, or only against the

obligor.

When the performance requires the special skill or

qualification of the obligor, the obligation is presumed to
 

6See e.g. Leonard v. Lavigne, 245 La. 1004, 162 So.2d 341,

343 (1964); E.P. Dobson, Inc. v. Perritt, 566 So.2d 657, 659

(La.App.1990),

Although the lease provisions generally are stated to

be binding on the heirs and assigns of the parties, the

non-competition agreement does not state that it is a

covenant running with the land or binding on future

owners of the lessor's other property, nor does the

agreement refer to a general plan of development or

purport to inure to the benefit of other owners in the

area of development. The restriction is for the

benefit of this lessee only; not for the benefit of

any owner in the affected area. It is personal to the

lessee in the operation of lessee's particular business

on the leased property. 

13

be strictly personal on the part of the obligor. All

obligations to perform personal services are presumed to be

strictly personal on the part of the obligor.

When the performance is intended for the benefit of the

obligee exclusively, the obligation is strictly personal on

the part of that obligee.

With this background, we must determine whether the indemnity

clauses are personal or real obligations, and, if the obligations

are personal, whether they are heritable or strictly personal.

3. Classification of Obligation

 The indemnity clauses at issue are personal rather than

real obligations. There is no indication that the

indemnification agreements were intended to create a real

obligation upon the land itself, but rather were intended to bind

the lessee personally.6 It is also plain that these personal

obligations fall into the heritable rather than the strictly

personal classification.

Under the Civil Code, all obligations are deemed heritable. 

See La.Civ.Code Ann. art. 1765 (West 1987) ("Every obligation is
 

7Milton R. Friedman, Friedman on Leases, § 7.501c1, at 356-

57.

The assignee's liability created by privity of estate

does not include anything that accrued before the

assignment. The assignee is not liable for breach by

the original tenant or by a prior assignee. Nor is he

14

deemed heritable as to all parties, except when the contrary

results from the terms or from the nature of the contract"). The

leases at issue provide no evidence that a contrary result was

intended. In fact, there is no indication that performance was

intended to be rendered by a specific party, but rather that L &

A would be indemnified by the occupier and user of the land. We

find that the agreements were heritable as a matter of law. As

an important corollary, the right of L & A to be indemnified was

also clearly personal. Therefore, L & A is entitled to

indemnification even though it is no longer the owner of the

land.

4. Joslyn's Argument

Before we apply the legal concepts we have set out, it is

useful to explore Joslyn's arguments to determine whether it has

presented any authority inconsistent with our general

understanding of Louisiana law. Joslyn first cites two common

law commentators for the proposition that its obligations under

the assigned lease are prospective from the date of the

assignment.

First, Joslyn quotes Friedman on Leases for the proposition

that privity of estate does not create liability for breaches

occurring prior to assignment.7 While we need not decide the
liable for rent payable before the assignment to him,

even if this covers a period subsequent thereto. All

this is true, but requires amplification. An assignee

is not personally liable for prior breaches, but he

takes the lease subject to forfeiture if the breaches

are not cured. 

 

8American Law of Property, § 9.5, at 365 (1952).

In the absence of an assumption agreement, the assignee

of the covenantor is under no privity of contract

liability, so that the only basis for liability on his

part is on the basis of privity of estate. Therefore,

as soon as he in turn reassigns the burdened estate he

has terminated his privity of estate and so will not be

liable for future breaches of the covenant. Of course,

he remains liable for all breaches that occurred during

the period of the ownership of the burdened estate, but

he is not liable for breaches occurring prior to the

time in which he acquired the estate, nor for those

occurring subsequent to the date he disposes of it. 

15

result under the common law, we note that Joslyn's reliance on

this statement is misplaced in that the theory of liability at

issue is not based on privity of estate, but rather on

contractual liability arising under the terms of the transferred

lease.

 Joslyn also quotes American Law of Property for the

proposition that in absence of an assumption agreement, an

assignee is not in privity of contract with the lessor, and

therefore can only be held liable on the basis of privity of

estate.8 Once again, reliance on this language is misplaced. As

discussed above, the transfer of the lease from Lincoln to Joslyn

was by written assignment. The assumption agreement was

delivered to, and approved by, L & A before the assignment took

place. Therefore, in common law terms, Joslyn's liability arises

from privity of contract, not privity of estate. The common law
 

9See Milton R. Friedman, Friedman on Leases, § 7.501c2(a),

at 360 (3d ed. 1990),

If the assignee assumes "with the same force and effect

as if he had executed the lease as tenant," the

assumption includes all liability that had accrued at

the time of the assignment, as well as the liability

thereafter accruing.

Id. at § 7.501c2(b), at 361,

An assignee's agreement to assume the tenant's

obligations is held, without more, to exclude existing

breaches and include only obligation accruing

subsequent to the assignment. But the amount of

relevant authority is small. For this reason the

assumption clause should be clear. If it is intended

to be prospective it should be made expressly

applicable only to the covenants and conditions on

tenant's part to be performed and observed from and

after a specified time. The assignee will then be

clearly under no personal liability for anything that

occurred before the assignment. 

 

10Aubry & Rau, Droit Civil Français, in 2 Civil Law

Translations § 176, at 79 (7th ed. 1966),

The particular successor is not, as such and as of

right, directly held liable for the personal

obligations of his grantor.

Thus, under Art. 871, a legatee by a particular title

is not liable for the debts of his testator. The

acquisition of a thing would entail grave risks if the

transferees were held liable for debts related to the

thing, without being notified by them.

A lessor who has stipulated that the lessee will pay

all the taxes including the real estate tax can not

claim from an assignee of the lease a reimbursement for

the payment of taxes due before the assignment. 

16

seems to mirror the civil rule—the scope of liability is

determined by the scope of the assumption.9

The portions of Droit Civil Français quoted by Joslyn are

consistent with our understanding of Louisiana law.10 The French

authorities referenced in Droit Civil Français concur with
 

11Where the language of the contract is clear and

unambiguous, there is no need to go outside the four corners of

the document to determine the parties' intent. See American

Waste & Pollution Control Co. v. Jefferson Davis Parish Sanitary

Landfill Comm'n, 578 So.2d 541, 564 (La.App.1991), cert. denied,

581 So.2d 694 (La.1991). 

17

Louisiana law that a successor in interest to an immovable takes

those personal obligation of its predecessor which were known and

specifically assumed.

5. Application

Having established the analytical framework within which the

determination must be made, we briefly summarize our conclusions. 

First, the indemnification agreements are valid methods of

apportioning liability under CERCLA and LEQA among the

responsible parties. Second, these indemnification agreements

are heritable, personal obligations for which the assignee is

responsible only if they were specifically assumed.

 We hold as a matter of law the language of the assumption

agreement displays the intent of Joslyn to assume all of the

obligations of Lincoln under the lease.11 In the assumption

agreement, Joslyn specifically states that

the undersigned [Joslyn] agrees to carry out and perform, as

well as to be bound by all the terms and provisions of said

Industry Track Agreement of January 16, 1936, and said Lease

Agreements of June 11, 1942 and November 11, 1949, all of

which are incorporated herein by reference with the same

like effect as if copied herein in full

(emphasis supplied). This language clearly expresses Joslyn's

intent to take over all obligations under the referenced

contracts. There is no language of limitation contained in the

assumption agreement, and no attempt was made to limit the
18

assumption to prospective obligations. We find as a matter of

law that Joslyn accepted a general assignment of the leases and

thereby agreed to perform all of Lincoln's obligations

thereunder.

6. Solidarity

 Having determined that Joslyn assumed all of Lincoln's

obligations under the leases, we must next assess the extent of

Joslyn's liability to L & A. Under the Louisiana Civil Code, it

is clear that the written assumption agreement between Joslyn and

L & A rendered Joslyn liable under the terms of the leases, but

did not release Lincoln from liability. See La.Civ.Code Ann.

art. 1821 (West 1987),

An obligor and a third person may agree to an

assumption by the latter of an obligation of the former. To

be enforceable by the obligee against the third person, the

agreement must be made in writing.

The obligee's consent to the agreement does not effect

a release of the obligor.

The unreleased obligor remains solidarily bound with

the third person.

(emphasis supplied). The solidarity of Lincoln and Joslyn

creates a special relationship which renders each of them

individually liable for the whole performance. See id. at art.

1794,

An obligation is solidary for the obligors when each

obligor is liable for the whole performance. A performance

rendered by one of the solidary obligors relieves the others

of liability toward the obligee.

L & A could therefore, at its option, demand performance under

the lease from either Lincoln or Joslyn. See id. at art. 1795.
19

An obligee, at his choice, may demand the whole

performance from any of his solidary obligors. A solidary

obligor may not request division of the debt.

Unless the obligation is extinguished, an obligee may

institute action against any of his solidary obligors even

after institution of action against another solidary

obligor.

see also id. at art. 1800,

A failure to perform a solidary obligation through the

fault of one obligor renders all the obligors solidarily

liable for the resulting damages. In that case, the

obligors not at fault have their remedy against the obligor

at fault.

Under the code, once Joslyn assumed all of the obligations

of the lease, without reservation, it became inextricably bound

with Lincoln for performance of the lease obligations. L & A, by

approving the assignment of the lease to Joslyn, gained the

benefit of having two parties solidarily obligated to perform

under the lease. Under this arrangement, Joslyn made itself

liable vis-a-vis L & A for Lincoln's performance under the

indemnity clause. While Joslyn would certainly have a right of

subrogation against Lincoln, Joslyn—not L & A—assumed the risk of

Lincoln's insolvency. See id. Joslyn cannot be allowed to

thwart the terms of the indemnity clause, nor escape its

inevitable liability under the code, simply by initiating suit

itself. Had L & A initiated suit to enforce the indemnity

clause, Joslyn would be liable to L & A for Lincoln's

environmental damage. The same result must occur where suit is

filed by Joslyn.

C. Novation by the 1967 Lease
 

12"We will consider an issue raised for the first time on

appeal only if the issue is purely a legal issue and if

consideration is necessary to avoid a miscarriage of justice." 

Citizens Nat'l Bank v. Taylor (In re Goff), 812 F.2d 931, 933

(5th Cir.1987). We will not allow parties to raise issues for

the first time on appeal merely because they believe that they

might prevail if given the opportunity to try the case again on a

different theory. See id. (citing Holiday Inns, Inc. v.

Alberding, 683 F.2d 931, 934 (5th Cir.1982)).

The Supreme Court has afforded a limited exception to

this rule. See Moses H. Cone Memorial Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765

(1983). In Moses H. Cone, the Court concluded that, "in

view of the special interests at stake and the apparent lack

of any prejudice to the parties," the court of appeals had

discretion to consider an issue not decided in the district

court. Id. at 29, 103 S.Ct. at 944.

As explained by the Court, 28 U.S.C. § 2106 gives an

appellate court "some latitude in entering an order to

achieve justice in the circumstances." Id. That section

provides:

The Supreme Court or any other court of appellate

jurisdiction may affirm, modify, vacate, set aside or

reverse any judgment, decree, or order of a court

lawfully brought before it for review, and may remand

the cause and direct the entry of such appropriate

judgment, decree, or order, or require such further

proceedings to be had as may be just under the

circumstances.

28 U.S.C. § 2106. 

20

 For the first time on appeal,12 Appellant claims that any

obligations that it took by assignment from Lincoln were released

by L & A upon execution of the 1967 lease. The 1967 lease

provided, "This agreement cancels and supersedes agreements

between the parties hereto, dated August 14, 1950, and January

15, 1955." Joslyn claims that this language constitutes a

novation of the previous leases, and that L & A thereby released

it from its obligation under the 1950 assignment and 1955 lease.
 

13While in another context the lack of written approval may

have given L & A cause to complain about the validity of the

assignment, this issue is not before us. In addition, it is

clear that at the time the assignment was completed, valid

written approval was given, thus, the subsequent withdrawal of

approval is of no moment to our analysis. 

21

Notwithstanding the questionable timeliness of this

contention, the argument fails on its merits. Under Louisiana

law, a novation must be clear and unequivocal. La.Civ.Code.Ann.

art. 1880 (West 1987). Even assuming, ad arguendo, that the

above cited language constitutes a novation of the referenced

documents, the language does not constitute a express novation of

the 1942 and 1949 leases. The leases are simply not mentioned. 

At most, the language effectuated a novation of the assumption

agreement, and thereby negated L & A's written approval of the

assignment.13 Novation of the assignment agreement does not, and

cannot, affect the validity or effectiveness of the assignment

from Lincoln to Joslyn. The leases themselves were not novated,

nor was the agreement between Lincoln and Joslyn changed. 

Therefore, Joslyn's duty, as assignee of the 1942 and 1949

leases, was not affected by the purported novation of the 1950

assignment agreement and the 1955 lease.

Even without the assumption agreement, Joslyn and Lincoln

were solidarily bound by the assignment. Without an express

novation of the 1942 and 1949 leases, this solidarity is

unaffected, and L & A retains the option to seek indemnity from

either Joslyn or Lincoln.

V. KOPPERS' CERCLA LIABILITY
22

The final issue before us is whether Joslyn is entitled to

contribution from Koppers. To prevail on this issue, Joslyn must

first establish Koppers' liability under CERCLA.

To establish a prima facie case of liability in a CERCLA

cost recovery action, a plaintiff must prove: (1) that the

site in question is a "facility" as defined in § 9601(9); 

(2) that the defendant is a responsible person under §

9607(a); (3) that a release or a threatened release of a

hazardous substance has occurred; and (4) that the release

or threatened release has caused the plaintiff to incur

response costs.

Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir.1989). 

It is undisputed that the site in question is a facility as

defined in § 9601(9), that a release or threatened release has

occurred and that Joslyn has incurred response costs. Thus,

Joslyn's burden is to show that Koppers is a "responsible party"

under CERCLA and LEQA.

To be liable as a responsible party under CERCLA, Koppers

must fall into one of the categories set out in CERCLA section

107(a), 42 U.S.C. § 9607(a):

(1) the [present] owner and operator of ... a facility,

(2) any person who at the time of disposal of any hazardous

substance owned or operated any facility at which such

hazardous substances were disposed of,

(3) any person who by contract agreement, or otherwise

arranged for disposal or treatment, or arranged with a

transporter for transport for disposal or treatment, of

hazardous substances owned or possessed by such person ...,

and

(4) any person who accepts or accepted any hazardous

substances for transport to disposal or treatment facilities

or sites selected by such persons, from which there is a

release, or a threatened release which causes the incurrence

of response costs....

Similarly, LEQA imposes liability in solido on the following
23

persons:

All persons who have generated a hazardous substance

disposed of at the site, transported a hazardous substance

to the pollution source or facility, contracted to have a

hazardous substance transported to the pollution source or

facility, or disposed of a hazardous substance at the

pollution source or facility shall be presumed to be liable

in solido by the court for the cleanup of the site....

La.Rev.Stat.Ann. § 30:2276 (West 1989). Under both statutes,

Koppers' liability depends on whether a disposal occurred during

its ownership of the site. The district court found that no

disposal occurred during Koppers' ownership of the site, and

therefore held that Koppers was not a responsible party under

either statute.

Joslyn makes two arguments that Koppers is a responsible

party. First, that Koppers' removal of various equipment from

the plant resulted in a "disposal" under Tanglewood East

Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568 (5th Cir.1988). 

Second, that regardless of Koppers' activities on the site,

Koppers took the property with knowledge of the environmental

problem and should not be able walk away from the problems on the

site. This argument is loosely based on CERCLA policy as set out

by the Fourth Circuit in Nurad, Inc. v. William E. Hooper & Sons

Co., 966 F.2d 837, 845-46 (4th Cir.1992), cert. denied sub nom.,

Mumaw v. Nurad, Inc., --- U.S. ----, 113 S.Ct. 377, 121 L.Ed.2d

288 (1992).

A. Disposal by Removal of Equipment

 In Tanglewood, we adopted the definition of disposal set

out in RCRA at 42 U.S.C. § 6903(3),
24

The term "disposal" means the discharge, deposit, injection,

dumping, spilling, leaking, or placing of any solid waste or

hazardous waste into or on any land or water so that such

solid waste or hazardous waste or any constituent thereof

may enter the environment or be emitted into the air or

discharged into any waters, including ground waters.

Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d at

1573. In Tanglewood, we also recognized that "this 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." 

Id.

The district court found:

The court finds that the evidence does not establish that

Koppers dismantled the entire treatment plant nor does it

establish that Koppers allowed any amount of hazardous

substances to be discharged onto the site because not a

single witness testified to facts of any spillage by

Koppers. Joslyn has simply failed to prove by a

preponderance of the evidence that Koppers owned or operated

the site at the time of disposal of toxins.

(emphasis in original). As stated above, factual findings of the

district court are reviewed under a clearly erroneous standard. 

See F.D.I.C. v. McFarland, 33 F.3d 532, 536 (5th Cir.1994); see

also, AM Int'l, Inc. v. International Forging Equip. Corp., 982

F.2d 989, 998 (6th Cir.1993) (Whether there has been a disposal

under CERCLA is a question of fact to be decided by a district

court and to be reviewed under the clearly erroneous standard). 

We must affirm the district court's findings unless we are left

with the firm and definite conviction that a mistake has been

made. Haber Oil Co. v. Swinehart (In re Haber Oil Co.), 12 F.3d

426, 434 (5th Cir.1994).
25

Having reviewed Joslyn's arguments and the relevant portions

of the record, we are unable to say that the district court's

conclusions were clearly erroneous. Joslyn's arguments go

primarily to the weight and credibility of certain evidence. 

Weight and credibility assessments are within the province of the

trier of fact, and cannot, without more, constitute clear error.

B. Nurad v. William E. Hooper & Sons Co.

 Joslyn cites Nurad for the proposition that Koppers is a

responsible party under CERCLA simply by virtue of being a past

owner of the contaminated property. Joslyn would have us read

Nurad to require a finding of liability regardless whether

Koppers introduced hazardous substances to the site or whether a

disposal occurred during Koppers ownership of the site. We do

not believe that Nurad's definition of disposal can be read so

broadly, and we decline to expand the Fourth Circuit's reasoning

to eliminate the disposal element of CERCLA liability.

1. Definition of Disposal

The Fourth Circuit recognized that disposal is a necessary

element of liability, but provided the following definition of

disposal.

[W]e hold that § 9607(a)(2) imposes liability not only for

active involvement in the "dumping" or "placing" of

hazardous waste at the facility, but for ownership of the

facility at a time that hazardous waste was "spilling" or

"leaking."

Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d at 846. 

Under this definition, the court found that a previous property

owner was liable—though it had not actively contaminated the
26

property—because mineral spirits were leaking from underground

storage tanks during its ownership of the property.

While we decline to decide whether this circuit should adopt

the Fourth Circuit's definition of disposal, Joslyn has failed to

show that any hazardous waste "leaked" or "spilled" during

Koppers' ownership of the property. The district court

specifically found that "There is no evidence that leaking or

spilling of hazardous substances occurred during Koppers' brief

period of ownership." Joslyn has provided no evidence which

would lead us to believe that this determination was clearly

erroneous.

2. Policy

Joslyn's final attempt at bootstrapping its claims under the

Nurad holding arises from the Fourth Circuit's exposition of the

policy behind CERCLA.

It is easy to see how the district court's requirement of

active participation would frustrate the statutory policy of

encouraging "voluntary private action to remedy

environmental hazards." Under the district court's view, an

owner could avoid liability simply by standing idle while an

environmental hazard festers on his property. Such an owner

could insulate himself from liability by virtue of his

passivity, so long as he transfers the property before any

response costs are incurred. A more conscientious owner who

undertakes the task of cleaning up the environmental hazard

would, on the other hand, be liable as the current owner of

the facility, since "disposal" is not a part of the current

owner liability scheme under 42 U.S.C. § 9607(a)(1). The

district court's view thus introduces the anomalous

situation where a current owner, such as Nurad, who never

used the storage tanks could bear a substantial share of the

cleanup costs, while a former owner who was similarly

situated would face no liability at all. A CERCLA regime

which rewards indifference to environmental hazards and

discourages voluntary efforts at waste cleanup cannot be

what Congress had in mind.
27

Id. at 845-46. Joslyn claims that to allow Koppers—a

sophisticated purchaser who knew of the contamination—to escape

liability in this situation would frustrate the purposes of

CERCLA as set out by the Fourth Circuit.

We decline to follow Joslyn's reasoning for two reasons. 

First, as stated previously, to be found liable under the CERCLA

statutory scheme, a former owner must have owned the property

during a period when a disposal occurred. We have already

affirmed the district court's finding that a disposal did not

occur during Koppers ownership, and we decline to read the

disposal requirement out of the statutory scheme.

Second, an even larger policy consideration overshadows the

policy elucidated by the Fourth Circuit. In this instance,

unlike Nurad and the majority of cases on the subject, suit is

being brought by a former owner who is the primary contaminator

of the property. In Nurad, suit was brought by the current owner

who was not responsible for the contamination. To allow Joslyn

to recover under Nurad's policy—no avoidance of liability through

inaction—flies in the face of the polluter pays principle.

Joslyn—a nineteen year polluter of the site—is proposing a

scheme under which it could defray part of its clean-up cost by

passing the contaminated property through a series of innocent

landowners and then, when the contamination is discovered,

demanding contribution from each. Not only does this violate the

very policy that Joslyn purports to champion, but it would allow

a polluter to escape a portion of its liability by conveying the
28

property while ignoring the contamination which it caused. While

Congress determined to encourage clean-up by holding the current

landowner liable for the pollution regardless of fault and then

permitting contribution from past polluters, § 9607(a)'s disposal

requirement for prior landowners eliminates the legal legerdemain

that Joslyn is attempting.

We conclude as a matter of law that Joslyn has failed to

carry its burden of showing that a disposal occurred during

Koppers' ownership of the property. Koppers is not a CERCLA or

LEQA responsible party, and therefore not liable for any portion

of Joslyn's clean-up costs.

VI. CONCLUSION

For the foregoing reasons, the holding of the district court

is AFFIRMED.

APPENDIX A

DATE PARCEL ONE PARCEL TWO

1935 Owned by Lincoln Owned by L & A

1938 April 30

Portions leased

to Lincoln
DATE PARCEL ONE PARCEL TWO

29

1942 June 11

Additional Portions

leased to Lincoln

1949 November 11

Additional Portions

leased to Lincoln

1950 August 1

Joslyn purchases

August 14

Lincoln assigns its

leases to Joslyn

1955 January 15

Joslyn leases additional

portions of the parcel

1967 October 12

Joslyn leases additional

portions of the parcel

1969 December 1

Koppers purchases

1970 By agreement with L & A,

Joslyn assigns its 1967

lease to Koppers

1971 Myatt family purchases