UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

H. GEORGE DENT, JR.; ASHLEY

REALTY COMPANY, INCORPORATED, a

South Carolina Corporation;

SOUTHERN DREDGING COMPANY,

INCORPORATED, a South Carolina

Corporation,

Plaintiffs,

v.

BEAZER MATERIALS AND SERVICES,

INCORPORATED; BEAZER EAST,

INCORPORATED,

Defendant & Third Party

Plaintiff-Appellants,

v.

AGRICO CHEMICAL COMPANY; No. 96-1148

CONTINENTAL OIL COMPANY;

AMERICAN AGRICULTURAL CHEMICAL

COMPANY; FOS-KEM LIQUIDATION

CORPORATION,

Defendant & Third Party

Plaintiff-Appellees,

and

CELANESE POLYMER SPECIALTIES

COMPANY; HANSON PLC; HANSON

INDUSTRIES,

Defendants,

v.

BRASWELL SHIPYARDS, INCORPORATED,

Third Party Defendant.
Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Solomon Blatt, Jr., Senior District Judge.

(CA-89-2851-2-8)

Argued: April 7, 1997

Decided: January 21, 1998

Before WIDENER, Circuit Judge, PHILLIPS, Senior Circuit Judge,

and DOUMAR, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished opinion. Senior Judge Phillips wrote the

opinion, in which Judge Widener and Senior Judge Doumar joined.

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COUNSEL

ARGUED: Robert E. Stepp, GLENN, MURPHY, GRAY & STEPP,

L.L.P., Columbia, South Carolina, for Appellants. Mark Richard

Zehler, Legal Department, CONOCO, INC., Houston, Texas; Samuel

J. Morley, HOLLAND & KNIGHT, Tallahassee, Florida, for Appellees. ON BRIEF: Robert C. Rhodes, GLENN, MURPHY, GRAY &

STEPP, L.L.P., Columbia, South Carolina; Elizabeth H. Warner,

BUIST, MOORE, SMYTHE & MCGEE, P.A., Charleston, South

Carolina, for Appellants. Lawrence N. Curtin, HOLLAND &

KNIGHT, Tallahassee, Florida; Maureen E. Mahoney, Michael P.

Vandenbergh, John C. Marchese, LATHAM & WATKINS, Washington, D.C.; Michael A. Scardato, MCNAIR LAW FIRM, P.A.,

Charleston, South Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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 2
OPINION

PHILLIPS, Senior Circuit Judge:

This is an appeal by Beazer Materials and Services, Incorporated

and Beazer East, Incorporated (Beazer) from a district court judgment

finding Beazer liable in a private action brought under the Comprehensive Environmental Response, Compensation, and Liability Act of

1980 (CERCLA), 42 U.S.C. §§ 9601, et seq ., for all past and future

response costs resulting from the environmental pollution of a CERCLA "Superfund" site, and holding Beazer liable under state law for

contractual and equitable indemnification of two co-defendants. We

affirm.

I.

The Superfund site at issue is made up of two adjoining tracts of

land on or near the Ashley River in Charleston, South Carolina. A

45-acre tract (the Koppers property) was owned from 1930 to 1977

by the Koppers Co., Inc., of which Beazer is the corporate successor.

During that period, Koppers operated a large wood-treating plant on

the property. The other tract of 57 acres (the Dent property) was

owned from 1921 to 1963 by the American Agricultural Chemical

Co. of Connecticut, from 1963 to 1972 by Continental Oil Co. (Conoco), and from 1972 to 1978, by Agrico Chemical Co. (Agrico). Until

mid-1972, the successive owners of the Dent property operated a fertilizer manufacturing plant at the site. Following two intervening

ownerships, this tract was bought in two parcels by George Dent in

1983 and 1986, and was thereafter owned and used for various purposes by two Dent enterprises, Southern Dredging Co., Inc. and Ashley Realty Co., Inc. (collectively, Dent). From 1963 to 1968, Beazer

leased from Conoco (which assumed a prior lease) a 4-acre parcel of

the Dent property that adjoined the Koppers property, for use in connection with its wood-treating operation. The lease contained an

indemnification clause obligating the lessee to hold the lessor harmless from all claims arising out of the leased property's use.

The events giving rise to this litigation began in 1985, during

Dent's ownership of the 57-acre tract. At that time, dredging of a

barge canal on the Dent property released wood-treating chemicals

 3
into the Ashley River. The resulting fish-kills and other consequences

of pollution attracted national publicity and led to both state and federal intervention under relevant environmental protection laws.

The state and federal environmental investigations established the

critical facts--not challenged in this litigation--that for nearly 50

years Koppers' environmentally unsound wood-treatment practices

had caused an estimated five to seven million gallons of creosote to

be released into the environment, including the soil of its own property and, by subsurface migration, that of the adjoining Dent property,

and from there into the Ashley River. Specifically offending chemical

constituents ("constituents of concern") under relevant provisions of

CERCLA and other federal environmental law were determined to be

those of creosote, Koppers' principal wood-treating agent. It is undisputed that during the time at issue, these chemicals were only released

into the area at issue by Koppers/Beazer's wood-treating operation.

On December 5, 1989, with administrative remediation processes

of the federal Environmental Protection Agency (EPA) underway as

a result of the investigative findings, Dent commenced this action

against, inter alia, Beazer, Conoco, and Agrico under relevant provisions of CERCLA and state law. Specifically, Dent sought recovery

under CERCLA § 107(a), 42 U.S.C. § 9607(a), of any statutory

response costs incurred or to be incurred as a result of the release of

hazardous substances on its property, and under CERCLA

§ 113(g)(2), 42 U.S.C. § 9613(g)(2), a declaratory judgment establishing the defendants' liability in any action seeking recovery of further

response costs or damages related to such a release. Additionally,

Dent sought recovery of compensatory and punitive damages and

injunctive relief on a variety of pendent state-law claims: fraud, negligence, etc.

An extended four-year period of pre-trial pleading, discovery and

motion practice followed. Its full details need not be recited at this

point. It suffices for immediate purposes to note that when the case

finally came on for trial on September 22, 1993, the following claims,

cross-claims and counterclaims had been pleaded and remained for

trial: (1) Dent's claims against Beazer under CERCLA § 107(a) for

statutory response costs, under § 113(f)(1) for contribution, and under

§ 113(g)(2) for declaratory judgment as to future costs, and under

 4
state law for damages and injunctive relief, and Beazer's generally

corresponding CERCLA counterclaims against Dent; 1 (2) Conoco's

cross-claims against Beazer, under CERCLA § 113(f)(1) for contribution, under § 113(g)(2) for declaratory judgment as to future response

costs, and under state law for contractual or equitable indemnification

of its litigation costs in defending against Dent's claims respecting the

4-acre parcel leased to Beazer, and Beazer's generally corresponding

CERCLA counterclaims against Conoco; (3) Agrico's cross-claims

against Beazer under CERCLA § 113(f)(1) for contribution, under

§ 113(g)(2) for declaratory judgment and under state law for equitable

indemnification of its litigation costs, and Beazer's generally corresponding CERCLA counterclaims against Agrico.

Just before the case went to trial, the district court ruled as a matter

of law that the indemnification provision in the Conoco/Beazer lease

bound Beazer to indemnify Conoco for all litigation costs incurred by

Conoco in defending against any claim arising out of Beazer's use of

the leased 4-acre parcel.

On Conoco's motion, the case was bifurcated for trial. Tried first

to a jury were the factual issues underlying the Conoco and Agrico

indemnification claims against Beazer. On Conoco's contractual

indemnification claim, the jury found that Dent's claim against Conoco did arise out of Beazer's use of the leased parcel. On Agrico's

equitable indemnification claim, the jury found that the Dent claim

against Agrico was based upon Beazer's creosote contamination of

the Dent property. Based upon these jury findings, the district court

later entered judgment for both Conoco and Agrico on their respective

indemnification claims for litigation costs.

Following return of the jury verdict on the indemnification claim

issues, Dent and Beazer settled and dismissed all the CERCLA and

state-law claims and counterclaims between those two parties. This

left for resolution only the CERCLA cross-claims and counterclaims

between Conoco and Beazer and between Agrico and Beazer for

response costs under § 107(a), contribution under § 133(f)(1), and

declaratory judgment under § 113(g)(2).

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1 Beazer, Conoco, and Agrico had in the interval settled and voluntarily

dismissed the several claims and counterclaims between those parties.

 5
The CERCLA cross-claims and counterclaims were tried over a

four-day period from October 18 through October 21, 1993. On October 18, the day the trial commenced, Beazer filed a motion for leave

to amend its CERCLA claims against Conoco and Agrico to allege,

as newly discovered evidence, the presence on the Dent property of

lead and other "non-wood treating constituents" in addition to the

wood-treating creosote constituents that until then had been the sole

basis of its cross-claims for response costs, contribution and declaratory judgment. Though resisting Beazer's contention that the proffered evidence was newly discovered, Conoco and Agrico consented,

in order to avoid a continuance on the eve of trial, to allowing the

proffered amendment. The district court did so, while imposing monetary sanctions, and the case proceeded to trial on the amended

Beazer counterclaim.

The district court heard the case as so structured on voluminous

documentary and testimonial evidence, including the recorded testimony and documentary evidence admitted in the jury trial. Following

a hearing on several post-trial motions, the court took the case under

submission on December 15, 1993.

Almost a year later, on October 12, 1994, with decision still pending, Beazer moved to reopen the case to allow proof that Conoco and

Agrico were liable, by reason of their release of fertilizer constituents,

for a larger share of response costs related to the Dent property than

was indicated by the evidence adduced at trial. The motion was

denied as untimely and prejudicial on January 9, 1995. On January 23, 1995, the court denied a similar request for reopening pursuant to Rule 103(a)(2), Fed. R. Evid., on the grounds that the proffered

evidence had already been considered. On January 25, 1995, Beazer

moved for reconsideration of the two previous orders. Following a

hearing on this motion on February 14, 1995, it was denied. When

Beazer persisted with suggestions for reopening, another hearing was

held on March 2, 1995 to consider the matter, following which the

district court proposed conditions upon which the record might be

reopened for the purposes sought by Beazer. When Beazer indicated

unwillingness to abide by the proposed conditions, the district court

on May 2, 1995, denied Beazer's final motion for reconsideration of

the previous orders refusing to reopen. Beazer moved again on

November 27, 1995, for leave to supplement the record, and this

 6
motion was denied on December 28, 1995, "for the reasons . . . previously stated."

In a comprehensive order filed on December 28, 1995, the district

court made extensive findings of fact and conclusions of law disposing of the various claims pending for decision. Among the findings

of fact were the following critical ones which we summarize:

(1) Beazer (Koppers) was the sole user of wood treating chemicals

on the Superfund site, and had during the 50 years of its operation at

the site released between 5 and 7 million gallons of these chemicals

which consisted principally of creosote, a dark, viscous liquid that

contains several polynuclear aromatic hydrocarbons; (2) as a result of

their subsurface migration, these chemicals were the cause of the

Dent property contamination and were the reason that remediation

efforts at the site were required; (3) Beazer knew its waste handling

practices were unsound, but derived $16 million in economic benefit

by consciously refusing to upgrade its waste handling system; (4) any

harms caused by wood treating chemicals and fertilizer constituents

could be separately identified because the substances have different

chemical characteristics and because different types of actions are

typically used to remediate them; (5) the relative toxicity, synergistic

capacity, and migratory potential of the wood treating chemicals and

the fertilizer constituents are quite distinct; (6) the only hazardous

substance for which there was credible evidence suggesting that

releases might have come from either Conoco or Agrico is lead;

(7) no credible evidence adduced by Beazer or otherwise suggested

that the presence of lead at the site would require remediation and

thus affect the cost of past, present, or future remediation efforts;

(8) Beazer had notice that lead and other fertilizer constituents were

present on the Dent property since at least 1990, but had deliberately

chosen not to investigate or initially to pursue its counterclaims based

upon their known presence and had first sought in this action to plead

that their presence would require remediation only on the day before

scheduled trial of the CERCLA claims on October 17, 1993.

On the basis of these and other findings and related conclusions of

law, the court entered judgment on January 3, 1996 in favor of Conoco and Agrico and against Beazer on all the CERCLA and state-law

claims pending before the court. See Dent v. Beazer Materials &

Servs., Inc., No. 2:89-2851-8 (D.S.C. Jan. 3, 1996).

 7
On Beazer's counterclaim against Conoco and Agrico for past

response costs, the court concluded that though Agrico and Conoco

were potentially liable persons under § 107(a)(2) by virtue of their

release of fertilizer chemical constituents on the Dent property, they

had avoided imposition of joint and several liability by sufficiently

proving that the fertilizer constituents had not and would not require

CERCLA remediation. On this basis, the court concluded that Beazer

was not entitled to recover any § 107 response costs from Conoco or

Agrico but was itself solely liable for all such costs.

Alternatively, the court held that even if Conoco and Agrico were

found to be jointly and severally liable for response costs by virtue

of an "indivisible" contamination of the site, they should yet be equitably entitled to full contribution for those costs by Beazer under

§ 113(f)(1). On this basis, the court found in favor of Conoco and

Agrico on their cross-claims and against Beazer on its counterclaim

for contribution.

On the parties' cross-claims for declaratory judgment under

§ 113(g)(2), the court further declared Beazer liable, as the party

solely responsible for site contamination, for all future response costs

at the site. In so holding, the court specifically rejected Beazer's contention that allocation of liability for future remediation costs should

await final EPA findings on the hazardous substances requiring

remediation.

On the state-law indemnification cross-claims, the court entered

judgment in favor of both Conoco and Agrico on the basis of the

jury's findings that the litigation costs incurred by both parties in

defending against Dent's claims were caused by Beazer's conduct.

This appeal followed. Beazer challenges on numerous grounds:

(1) the district court's allocation to Beazer of 100% liability for past

and future response costs; (2) the district court's discretionary refusal

to grant Beazer's several post-submission motions to reopen the

record to consider newly discovered evidence respecting the release

of fertilizer constituents by Conoco and Agrico; (3) the district

court's award of contractual indemnification to Conoco on its statelaw claim; and (4) the court's award of equitable indemnification to

Agrico on its state-law claim. We take these in order.

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II.

We first consider Beazer's several challenges to that portion of the

judgment which rejected its § 107 claims against Conoco and Agrico

for past response costs.

Under CERCLA § 107(a), 42 U.S.C. § 9607(a), various persons

connected in different ways with the release or threatened release of

hazardous substances that cause "response costs" to be incurred by

other governmental and natural persons are made"liable" to those

other persons for the costs incurred. Subject only to four "innocent

party" exceptions provided in § 107(b), this statutory liability is

"strict"--imposed without regard to culpability or causation. See

United States v. Monsanto, 858 F.2d 160, 167 (4th Cir. 1988), cert.

denied, 490 U.S. 1106 (1989). Among the persons made liable under

§ 107(a) are the owners of property at the time of the "disposal" upon

it of any hazardous substance. See 42 U.S.C.§ 9607(a)(2). Where

multiple persons are liable under § 107--either as past or present

owners or otherwise--for response costs incurred with respect to a

particular site, their liability is joint and several for the entire costs

incurred unless a liable person can establish that the environmental

harms reflected in the total costs incurred were fairly divisible

between the liable persons. Monsanto, 858 F.2d at 171-72. In such

cases, several liability may be apportioned between multiple liable

persons by applying, in accordance with congressional intent, federal

common law apportionment principles. See id. (drawing apportionment principles from § 433A of the Restatement (Second) of Torts).

Conceding, as it must on the undisputed facts, that it is a liable person by virtue of its long-term creosote disposal practices, Beazer

sought by its § 107(a) counterclaims against Conoco and Agrico to

impose upon those parties joint and several liability with Beazer for

all of the response costs incurred in consequence of hazardous substance disposals on both properties comprising the Superfund site.

Beazer's trial position, as finally alleged in its eve-of-trial amended

counterclaim, was that Conoco and Agrico were liable persons not

only with respect to the release of hazardous substances from their

fertilizer operations on the Dent property, but also with respect to the

 9
hazardous wood-treating substances released on the Koppers property

that had found its way by subsurface migration onto the Dent property.2

The district court rejected Beazer's contention that Conoco and

Agrico should be held jointly and severally liable with it for all past

response costs incurred as a result of the release of hazardous substances on both properties comprising the Superfund site. The court

first assumed that Conoco and Agrico were potentially liable persons

by virtue of the release of fertilizer constituents on the Dent property

during their respective periods of ownership of that property. But,

applying relevant divisibility and apportionment principles, see

Monsanto, 858 F.2d at 171, it then held that those parties should not

be held jointly liable with Beazer for all response costs incurred in

remediation of the site.

First, the court found that any harms to the site caused by woodtreating chemicals were sufficiently distinguishable by scientific testing procedures from any caused by fertilizer constituents to permit

reasonable apportionment of related response costs and other damages

between the persons respectively responsible for release of the two

types. (JA 236-38 (order).) It then held that because no harm caused

by wood-treating chemicals could be fairly attributed to Conoco and

Agrico, they could only be severally liable, under property apportionment principles, for any harm and resulting response costs caused by

fertilizer constituents for whose release they were responsible. (Id. at

235.) And, it then found that the only hazardous fertilizer substance

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2 Beazer's specific legal theory for holding Conoco and Agrico liable

as former owners of the Dent property for response costs related to

Beazer's release of wood-treating chemicals on the adjoining Koppers

property is not clear. In its brief, Beazer concedes at one point that subsurface migration of those wood-treating "organic" substances onto the

Dent property would not constitute its "disposal" on that property.

(Appellant's Br. 39 n.11.) That being conceded, Conoco and Agrico

could not be liable persons as to those substances under § 107(a)(2),

because they were not "person[s] who at the time of disposal . . . owned

. . . any facility at which such hazardous substances were disposed of."

42 U.S.C. § 9607(a)(2) (emphasis added). The precise theory now being

urged by Beazer (and it has seemed to shift over time) is in any event

irrelevant to the basis of the district court's disposition of the § 107(a)

claim and to our review of that disposition.

 10
identified on the site was lead, and that it was not present in sufficient

quantities to require any remediation. (Id. at 235-36.) On the basis of

these findings, the district court concluded that under relevant apportionment principles, all liability for response costs incurred at the site

should be apportioned to Beazer and none to Conoco or Agrico. (Id.)

The court accordingly entered judgment for Conoco and Agrico on

Beazer's 107(a) counterclaims to recover response costs from those

parties as persons jointly and severally liable with it.

Beazer challenges the rejection of its § 107(a) claim on several

grounds. None has merit.3

As to the critical findings of fact underlying the rejection, each is

either conceded by Beazer or is amply supported by the evidence and

is not, therefore, clearly erroneous. Specifically, Beazer has conceded,

as it must, that harms caused by wood-treating chemicals and those

caused by fertilizer constituents were sufficiently divisible to permit

apportionment of liability as between them. (See Appellant's Br. at

31, 36.) Its contention of error respecting the court's apportionment

goes only to the failure to hold Conoco and Agrico liable for harm

caused by the wood-treating constituents which it rightly, but irrelevantly, points out was indivisible. (See id.) The court did not err in

this respect. It correctly ruled as a matter of law on the undisputed

facts before it that no harm caused by wood-treating constituents

could fairly be attributed to Conoco and Agrico. No wood-treating

constituents were released by those parties during their prior ownerships of the Dent property and they could not be held to have released

those constituents simply because, unbeknownst to them and beyond

any means of their control, the substances were leaching onto their

property from their release point on the Koppers property by subsurface migration. Strict liability could not, therefore, be imposed upon

them for the release of those constituents under any of the relevant

"liable person" provisions of § 107(a)(1)-(4). See United States v.

Rohm & Haas Co., 2 F.3d 1265, 1280 (3d Cir. 1993) (recognizing

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3 Several do not warrant discussion: that Conoco and Agrico, unlike

Beazer, had refused cooperation with the EPA; that the EPA had indicated its belief that Conoco and Agrico should be liable by submitting

to them information requests under § 104(e); and that § 113(f)(2) entitled

Beazer to contribution as a party who had settled with the EPA.

 11
that upon proof that a hazardous substance found on a site could not

be "fairly attributable" to a party sued under§ 107(a), that party's

properly "apportioned share would be zero"); United States v. Alcan

Aluminum Corp., 964 F.2d 252, 270 (3d Cir. 1992) (holding that

potentially liable party could avoid all liability by proving its released

hazardous substances did not contribute to response costs); cf. Nurad,

Inc. v. Williams E. Hooper & Sons Co., 966 F.2d 837, 845 (4th Cir.)

(former property owner liable for leakage of hazardous substance into

soil of own property notwithstanding participation merely passive),

cert. denied, 506 U.S. 940 (1992).

Neither did the district court err in finding that the fertilizer constituents, for whose disposal Conoco and Agrico were potentially liable

persons, had caused no harm requiring remediation. The only

fertilizer-related hazardous substance identified in the evidence at trial

was lead. There was credible evidence that it was in quantities too

low to require CERCLA remediation; indeed, there was evidence that

efforts to remove the quantities of lead involved would be environmentally counter-productive. (JA 579-81.)

Accordingly, we affirm the district court's rejection of Beazer's

§ 107(a) claims against Conoco and Agrico for incurred response costs.4

III.

Based upon its determination that Koppers/Beazer's releases of

wood-treating chemical constituents "were the only cause of the harm

inflicted on the environment at this site," (JA 235 (order)), the district

court also held, on Conoco's and Agrico's § 113(g)(2) claim for

declaratory judgment, that Beazer was liable for 100% of all future

response costs incurred at the site. (Id. 238.)

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4 The district court determined in the alternative that even if Conoco

and Agrico were found jointly and severally liable with Beazer for all

response costs, Beazer should yet be liable for all such costs based upon

consideration of relevant equitable factors on the§ 113(f)(1) contribution

claims of Conoco and Agrico. (JA 242-47.) In view of our affirmance of

the judgment absolving those parties of any liability on Beazer's § 107(a)

response costs claims, we need not address this alternative basis for the

judgment in their favor.

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Beazer challenges this imposition of liability for future response

costs on two interrelated contentions: (1) that because administrative

investigation to determine the full extent of required remediation at

the site was still ongoing at conclusion of the CERCLA trial, the district court could not properly allocate liability between the parties on

the basis of the evidence adduced at trial; and (2) the court then

abused its discretion by denying Beazer's repeated post-trial motions

to reopen the record to permit introduction of newly discovered evidence respecting the release of fertilizer constituents on the Dent

property. We find no merit in either contention.

First, the court did not err in entering declaratory judgment as to

future response costs on the basis of evidence adduced before completion of administrative proceedings.

Section 113(g)(2) provides that:

In any . . . action described in this subsection, the court shall

enter a declaratory judgment on liability for response costs

or damages that will be binding on any subsequent action or

actions to recover further response costs on damages. A subsequent action or actions under Section [107] . . . for further

response costs . . . may be maintained at any time during the

response action . . . .

42 U.S.C. § 9613(g)(2) (emphasis added).

As this statutory language makes clear, under § 113(g)(2), "[t]he

entry of declaratory judgment as to liability is mandatory." Kelley v.

E.I. DuPont de Nemours & Co., 17 F.3d 836, 844 (6th Cir. 1994).

Compare 42 U.S.C. § 9613(g)(1) (an action for natural resource damages cannot be commenced "before [administrative] selection of the

remedial action" where there is an ongoing "remedial investigation

and feasibility study"), with id. § 9613(g)(2) (actions to recover

response costs can be brought without regard to status of EPA site

investigation).

Even if multiple response costs actions exist or might exist, the

court in the first action to reach decision is required to enter judgment

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as to liability for the site. The purpose of § 113(g)(2) is, in fact, to

require that the court's judgment in the first action have a preclusive

effect as to liability on all successive actions. See United States v.

USX Corp., 68 F.3d 811, 819 n.17 (3d Cir. 1995) ("Essentially,

§ 113(g)(2) mandates collateral estoppel effect to a liability determination.").

The language of § 113(g)(2) is not internally inconsistent on the

question of when liability should be determined. While § 113(g)(2)

permits actions for "further response costs," such as to contest the

amount of response costs, it does not permit a successive determination of liability. Id. If each action required a new liability determination, CERCLA's declaratory judgment provision would be

meaningless. Section 113(g)(2) specifically provides for a "declaratory judgment on liability for response costs or damages that will be

binding on any subsequent action." As the Sixth Circuit said in

Kelley, "[t]he fact that future costs are somewhat speculative is `no

bar to a present declaration of liability.'" Kelley, 17 F.3d at 844 (quoting United States v. Fairchild Indus., Inc., 766 F. Supp. 405, 415 (D.

Md. 1991)). Permitting prompt declaratory judgments encourages

prompt remedial action. See O'Neil v. Picillo , 682 F. Supp. 706, 730

(D.R.I. 1988), aff'd, 883 F.2d 176 (1st Cir. 1989), cert. denied, 493

U.S. 1071 (1990).5

Second, the court did not abuse its discretion in refusing to reopen

the record after trial on Beazer's several motions. A brief summary

of relevant procedural history shows why.

As the district court correctly noted (JA 257), Beazer was on notice

of the presence of lead on the Dent property as far back as early 1990.

Nevertheless, it did not assert lead contamination as a basis for recovery of response costs by cross-claims against Conoco and Agrico as

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5 Even if the district court were not bound to enter judgment immediately, it did not abuse its discretion in doing so here. At the time trial of

the CERCLA claims commenced, the case had been pending for four

years with no request for continuance or stay by Beazer. And, indicating

its assumption at the time, Beazer had also made claims for declaratory

judgment, presumably on the evidence to be adduced at a trial which it

did not timely move either to continue or to stay.

 14
co-defendants at any time before those parties in September, 1992

filed § 107(a) and § 113 cross-claims against Beazer. And, it did not

even then assert it as a counterclaim (though it was a compulsory one)

against those parties. Instead, deliberately declining at that time to

assert any claims against those co-defendants in this action, Beazer

first sought to raise CERCLA claims against them and other parties

in a separate CERCLA action, Beazer East, Inc. v. United States

Navy, 2-93-1677-8 (D.S.C. July 9, 1993), in July, 1993, three and a

half years after this action was commenced by Dent and ten months

after Conoco and Agrico had served § 107(a) and § 113 cross-claims

against Beazer. Beazer then unsuccessfully sought to have its separately filed CERCLA action consolidated with this action. Following

denial of Beazer's consolidation motion, Conoco and Agrico agreed

to allow Beazer belatedly to assert compulsory CERCLA counterclaims against them in this action. Beazer did so on August 27, 1993,

asserting CERCLA claims for response costs under§ 107(a) and for

contribution and declaratory judgment under § 113. These claims, as

then pleaded, did not mention lead as a cause of response costs, but

claimed joint and several liability and sought contribution only on the

basis of contamination of the site by wood-treating constituents. It

was only on Sunday, October 17, 1993, the day before the CERCLA

trial was scheduled to start, that Beazer for the first time asserted in

pleadings amended (by consent of Conoco and Agrico in order to

avoid delay) that Conoco and Agrico were liable to Beazer for

response costs caused by lead contamination of the site. As indicated,

Beazer then went to trial on its cross-claims as pleaded, and did not

request any continuance or stay of trial to permit further discovery or

investigation by it, or to permit further investigative procedures by the

government agencies. But, as also indicated, once the case had been

submitted for decision, Beazer then made repeated efforts to have the

case reopened for consideration of allegedly newly-discovered evidence, both as to the quantities of lead on the site and eventually as

to the presence of other "newly discovered" fertilizer constituents.

The district court did not abuse its discretion in refusing to reopen

in response to these efforts. Beginning with its eve-of-trial motion to

amend to allege lead contamination for the first time in four years of

pre-trial proceedings, Beazer's efforts to expand the record and alter

the dimensions of the case as then established invited growing incredulity, and occasionally rebuke, by the district court. The last-minute

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motion to amend on trial's eve was based on Beazer's assertion that

it "learned of the presence of non-wood treating constituents on the

Dent property" only after filing its August 27, 1993, counterclaim

which did not allege the presence of any fertilizer constituents. Following a hearing on the motion, the district court found the assertion

of new discovery untrue and sanctionable. (JA 257-58.) Specifically,

the court found that Beazer had known of lead's presence on the site

as far back as early 1990. (Id. at 257.) Nevertheless, the court, with

the consent of Conoco and Agrico, permitted the amendment to introduce this new and potentially important issue regarding the joint liability of Conoco and Agrico with Beazer for site contamination.

Once in trial, testimonial and documentary evidence was presented

on the question whether the presence of lead and other fertilizer constituents would require site remediation. Notwithstanding the abundant opportunity had by Beazer to address and counter unfavorable

evidence on this issue during trial, it continued in the post-trial period

to seek relitigation of the issue on a re-opened record. Its theories for

re-opening continued to shift over the period.

On October 12, 1994, in its first post-trial motion to re-open the

record, Beazer claimed to have "newly discovered evidence" of "additional" potential fertilizer constituents other than lead (e.g., fluorine),

even though the presence of these fluorine constituents was already

known. On January 13, 1995, Beazer filed an "offer of proof" and

requested a hearing because a January 11, 1995 EPA letter had identified lead and arsenic at the site, though not the"additional" (fluorine)

fertilizer constituents that were the basis for the earlier motion. After

the court denied Beazer's motion to reopen, Beazer then filed a

motion to reconsider on January 25, 1995. That motion relied upon a

January 1995 EPA fact sheet relating to lead and arsenic but again not

any "additional" fertilizer constituents. Despite the fact that the January 25, 1995 motion to reconsider was untimely, the court conducted

three hearings on the matter during which Beazer's position continued

to shift. At one point in the proceedings, Beazer asserted that if the

record were reopened it would not attempt to introduce "any new evidence about lead," but declined to identify which hazardous substance

or data it would rely upon in the proceedings or that it would in fact

rely upon any new evidence at all. After the court denied this motion

to reconsider on May 2, 1995, Beazer on November 27, 1995 filed yet

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another motion to supplement the record with an EPA finding regarding lead and arsenic (but not the additional fertilizer constituents).

That motion was denied in the court's final order.

When this conduct of Beazer's in the trial and post-trial stages of

this litigation is considered in conjunction with its litigation conduct

in the protracted pre-trial stage, it is abundantly clear that the court

did not abuse its discretion in declining to reopen the case post-trial.

IV.

Challenging the entry of judgment in favor of Conoco on Conoco's

contractual indemnification claim, Beazer contends that the district

court erred as a matter of law in ruling pre-trial that the indemnification provision in the 4-acre lease bound Beazer to indemnify Conoco

for the latter's litigation costs in defending against Dent's CERCLA

claims. The contention is two-fold. First, that because it is undisputed

that Beazer made no use of the leased parcel that involved the disposal of wood-treating constituents, Dent's claim against Conoco for

response costs related to the parcel did not arise out of Beazer's use

of the parcel. Second, that the indemnification provision does not, in

any event, apply to CERCLA claims. We disagree on both points and

find no error in the judgment in favor of Conoco on this claim.

The indemnification provision at issue provides, in critical part,

that "[Beazer] agrees to save [Conoco] harmless from any and every

claim arising out of the use by [Beazer] of the demised premises . . . ."

(JA 222.)

Beazer's contention that this contractual obligation only applies to

claims that involved Beazer's harm-causing use of the leased parcel

misinterprets the obligation. As the district court properly held, the

obligation is not to save Conoco harmless only from meritorious

claims arising from Beazer's use of the parcel but to save Conoco

harmless from "any and every claim arising out of [Beazer's] use."

(JA 219.) That left only the question whether Dent's claim against

Conoco for response costs did in fact arise out of Beazer's use--

whether or not the claim was mistaken (as concededly it was) as to

the use actually made. That very question was submitted to the jury

which found by special verdict that Dent joined Conoco as a party-

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defendant only because of Beazer's use of the leased parcel. The district court did not err in this aspect of its ruling on the indemnification

provisions coverage.

Neither did the court err in interpreting the indemnification provision to cover the CERCLA claim at issue. Beazer relies on the Third

Circuit's holding in Beazer East, Inc. v. Mead Corp., 34 F.3d 206,

211 (3d Cir. 1994), cert. denied, 514, U.S. 1065 (1995), that whether

a pre-CERCLA indemnification provision was intended to cover

CERCLA claim depends upon whether it is "either specific enough to

include CERCLA liability or general enough to include any and all

environmental liability." The provision at issue here, Beazer contends,

fits neither. We disagree. As the district court held, accepting the

Mead Corp. prescription, the provision here which covers "any and

every claim" could not be more general. It therefore sufficed to cover

the CERCLA claim here at issue. See Joslyn Mfg. Co. v. Koppers Co.,

Inc., 40 F.3d 750, 754-55 (5th Cir. 1994) (so construing indemnity

clause covering "any and all claims . . . arising from . . . the occupancy or use of [the] premises").

The district court did not err in entering judgment for Conoco on

its contractual indemnification claim.

V.

Beazer challenges on two grounds the court's entry of judgment

against it and in favor of Agrico on Agrico's equitable indemnification claim. First, Beazer contends that under controlling South Carolina law, equitable indemnification lies only between parties having

a contractual or special relationship that did not exist between Beazer

and Agrico. Second, Beazer contends that equitable indemnity does

not lie in favor of a party that itself is at fault in causing the injury

for which indemnification is sought and that here Agrico was so at

fault. We disagree on both points and find no error in this part of the

court's judgment.

Judgment was entered only for litigation costs incurred by Agrico

in defending against Dent's state-law claims of negligence, fraud, etc.

in failing to apprise Dent of the presence of wood-treating constitu-

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ents when Dent purchased the property from Agrico. 6 Under South

Carolina law, as generally, the right to equitable indemnification for

incurring such costs does not depend upon the existence of any contractual or other special relation between indemnitor and indemnitee.

Entitlement to equitable indemnification arises simply out of the

necessity to defend a claim based upon the wrongful conduct--

contractual or tortious--of a third party. It does not depend on there

having been any contractual or other special relationship between the

wrongdoer and the person forced to defend against the claim. See

Town of Winnsboro v. Wiedeman-Singleton, 414 S.E.2d 118, 121

(S.C. 1992) (holding that "recovery is allowed when as a result of

defendant's breach of contract or tortious activity the plaintiff is

required to either defend itself or bring an action against a third

party"); Stuck v. Pioneer Logging Mach., Inc. , 301 S.E.2d 552, 553

(S.C. 1982) (holding that equitable indemnity lies"where one person

is exposed to liability by the wrongful act of another in which he does

not join").

Here, the jury, answering an interrogatory put to it by agreement

of the parties, found that Agrico was sued by Dent solely as a result

of Beazer's conduct in contaminating the Dent property and not

because of Agrico's conduct vis-a-vis Dent. This fact, rather than any

special relationship between Agrico and Beazer, sufficed to invoke

equitable indemnification principles in Agrico's behalf.

Nor is entitlement to equitable indemnification defeated here by

any fault on Agrico's part in bringing about the injury for which it

sought indemnification from Beazer. Freedom from such contributing

fault is, as Beazer contends, a requirement for equitable indemnification. See Stuck, 301 S.E.2d at 553. But, here, given the jury's finding,

Agrico cannot be charged with any fault in causing incurrence of the

litigation costs of defending against Dent's state-law claims which is

the injury for which Agrico sought indemnification.

_________________________________________________________________

6 Because Agrico did not seek, and the district court did not award,

indemnification for Agrico's defense against Dent's CERCLA claims,

Beazer's further contention that indemnification does not lie against a

person who settles a CERCLA claim is irrelevant.

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The district court did not err, therefore, in giving judgment in favor

of Agrico on its equitable indemnification claim.

VI.

Having found no reversible error among those assigned by Beazer,

we affirm the judgment of the district court.

AFFIRMED

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