SC Administrative Law Court Decisions

The South Carolina Department of Health and Environmental Control (DHEC) seeks to enforce the State Underground Petroleum Environmental Response Bank Act (SUPERB) by finding Petitioner, Timothy Looper (Looper), liable for fines and fees of $17,870 and requiring him to close six underground storage tanks (UST's) located on his property. Looper opposes DHEC's position. He asserts he is not the owner of the UST's, is not liable for fines and fees, and is not required to accomplish closure of the UST's.

The disagreement places jurisdiction for a contested case hearing in the Administrative Law Judge Division. S.C. Code Ann. §§ 1-23-600 and 1-23-310 et seq. (Supp. 1997). Based upon the evidence and the arguments presented by the parties at the October 13, 1998 hearing, Looper is not liable for any fines or fees and is not required to accomplish closure of the UST's.

For purposes of S.C. Code Ann. § 44-2-20(12)(c) (Supp. 1997) and S.C. Code Ann. Regs. 61-92.280.12, did Looper assume legal ownership of the UST's so as to warrant the imposition upon him of fines and fees of $17,870 and to require him to close six UST's located on his property at 117 West Main Street, Pickens, South Carolina?

III. Analysis

A. Positions of Parties

DHEC asserts Looper's ownership of the UST's makes Looper liable for fines and fees as well as a duty to close the UST's in accordance with S.C. Code Ann. Regs. 61-92.280.70(c) (Supp. 1997). DHEC places ownership in Looper under two theories. First, the UST's were purchased by Looper as fixtures attached to the real property at the time of he purchased the property. Second, in the alternative, Looper became the owner by operation of law under the legal theory of "trade fixtures." Under this view, the UST's are "trade fixtures" which became Looper's property when the UST's were abandoned by the former tenant of the property, Lake Energy Corporation ("Lake"). Under this theory, DHEC reasons that an abandonment passes ownership to the person owning the land at the time of the abandonment, i.e., Looper. Looper disagrees. He argues he never purchased the UST's as fixtures. Further, he asserts that neither he nor any previous owner of the real property ever expressed an intention to take ownership of any abandoned UST's. Rather, he argues ownership of the UST's remains with the former tenant, Lake.

While not a party to the hearing, an officer of Lake testified it did not own the UST's. In fact, the officer explained that Lake is no longer in existence. In general, Lake supported DHEC's view that the UST's were owned by Looper.

B. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

1. History of UST's

The history of the ownership of the UST's provides needed background.

a. Early Years

Beginning in the 1940's, Henry L. Bivens owned real property identified as 117 West Main Street, Pickens, South Carolina. At some point during the late 1940's, Bivens leased the property to Esso Standard Oil Company which began operating a gas station on the property. As a part of its leasehold improvements, Esso installed several UST's which were used to hold gasoline products. Thus, Esso held the original ownership of the UST's.

In November of 1971, Bivens transferred his real property to Ida Lee Bobo. Esso remained the owner of the UST's and continued to operate the gas station with Bobo as the landlord. However, in 1981, two changes occurred in operating the gas station which created uncertainty as to who owned the UST's.

b. 1981 Changes

The first 1981 change occurred in the spring. In April of 1981 Esso relinquished operation of the gas station and Hayes Oil Company became the new tenant with Bobo remaining as the landlord. This change in operators gives rise to a factual dispute as to who became the owner of the UST's. While the matter is disputed, a consideration of the evidence as a whole leads to the conclusion that Exxon (f/k/a Esso) sold the UST's to Hayes Oil Company in April of 1981.

The determination that Hayes acquired ownership of the UST's in the spring of 1981 is supported by the testimony of the DHEC enforcement project manager. He testified that DHEC's investigation found that Exxon sold the UST's to Hayes. I acknowledge that the witness' testimony is not aided by documentary evidence nor by any witness from Hayes. Rather, the testimony is premised on an extensive investigation by DHEC's staff. In considering the weight to give testimony based on an investigation made by others, such testimony may have its basis in hearsay and lack of personal knowledge. However, no party objected to this evidence. Therefore, it is competent evidence and must be given whatever weight deemed appropriate by the trier of fact. See Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994) ("Evidence received without objection is competent."); Cantrell v. Carruth, 250 S.C. 415, 158 S.E.2d 208 (1967) (testimony received without objection becomes competent and "its sufficiency must be left to the [finder of fact]."); Rouss v. King, 74 S.C. 251, 54 S.E. 615 (1906) (testimony based on hearsay will not be excluded from evidence to be weighed where no objection is raised as to its admission).

In deciding what weight to give the DHEC testimony asserting that Hayes acquired the UST's from Exxon, consideration must be given to the second event of 1981. In the summer of 1981, Hayes sold its assets to Lake Energy Corporation and Lake rented the gas station site under a written lease with Bobo. Obviously, since Lake was to continue the operation of the gas station, Lake would need to purchase those assets of Hayes needed to operate the gas station, i.e. the UST's. However, an officer of Lake testified that Lake did not need to purchase the UST's from Hayes in order to operate the gas station since the UST's were owned by the landlord, Bobo. Lake testified that Bobo became the owner of the UST's since, as fixtures, the UST's passed to Bobo as the owner of the real property when Exxon ceased operating the business during 1981. Thus, Lake alleges Bobo owned the UST's, Lake paid rent to Bobo, and that the rent paid included Lake's right to use Bobo's UST's.

2. Factual Conclusions On Ownership of UST's

A factual dispute exists as to the ownership of the UST's in 1981 and in 1988.

a. Factual Conclusion on Ownership of UST's in 1981

Considering all of the evidence as a whole, I find that the testimony of DHEC's witness that Exxon sold the UST's to Hayes must be afforded more weight than the testimony of Lake's officer that common industry practice resulted in the ownership of the UST's in the real property owner (Bobo) upon Exxon's departure. Two reasons support this determination.

First, no documentation supports the testimony of Lake's witness. The evidence does not contain such documents as asset-purchase contracts, depreciation schedules, or other accounting or tax records indicative of either ownership or lack of ownership.

Second, DHEC's witness is the more credible of the two. DHEC's witness is at least "neutral." Lake, however, has a vested interest in the outcome of this enforcement action since a finding of Looper's ownership would likely relieve Lake from any liability.⁽¹⁾ Given the vested interest of one witness versus the lack of such in another, the testimony of one can be given greater weight. See Jackson v. Jackson, 234 S.C. 291, 108 S.E.2d 86 (1959) (In passing upon the credibility of a witness, the trier of fact may "take into consideration her interest in the result . . . and all of the circumstances . . . tending to impeach her as a witness or throw discredit on her statements."). Accordingly, the testimony of DHEC's witness is more believable than that of Lake's officer. Thus, in April of 1981 Hayes purchased the UST's from Exxon.

Hayes' ownership, however, did not last long. In the summer of 1981, Lake purchased the assets of Hayes. A strong inference arises that Hayes sold the tanks to Lake since Lake operated the same business as Hayes and purchased assets of Hayes. In addition, given this natural assumption, something more must be shown to convince the fact-finder that Lake did not buy the tanks. The testimony shows that Lake purchased the entire business of Hayes and continued to operate that business. No bill of sale or listing of assets was produced to overcome the reasonable inference that Hayes sold the tanks to Lake. Thus, by the end of the summer of 1981 Lake owned the UST's by means of a purchase from Hayes.

b. Factual Conclusion on Ownership of UST's in 1988

Having found that Hayes bought the UST's from Exxon in the spring of 1981 and that Lake bought the UST's from Hayes in the summer of 1981, the evidence further demonstrates that Lake did not re-sell the UST's. Rather, Lake utilized the UST's in its business and remained the owner. Several incidents support this factual conclusion.

First, on November 20, 1985, Lake filed a form with DHEC notifying DHEC that six UST's were in operation at the W. Main Street property. Lake signed the form as the owner or owner's authorized representative. An officer of Lake testified that Lake was not the owner and that Lake signed the DHEC form only because experience with other state and federal agencies told them that it was proper for the operator to sign. However, no statement as to capacity in which the form is signed is noted on the form. In other words, if Lake was not the owner, Lake could have signed and noted the capacity in which it was signing.

Second, on June 10, 1988, Lake filed with DHEC a notice that the six UST's were no longer in use at the West Main Street location. Lake filed this form even though it ceased operating the gas station in April of 1988. Again, while Lake signed the form as an owner, its officer testified it did so because it thought that as the operator it was required to do so. Again, no designation is made that Lake signed in any capacity other than as owner.

Finally, Looper testified he did not buy the UST's when he purchased the real property on January 20, 1988. Looper supported this view by explaining that Lake subsequently tried to sell the UST's to him and then eventually tried to give them to him. Looper refused to take them and has repeatedly asked Lake to remove them from the property. Even though Lake ceased its operation of the gas station on April 15, 1988 and made its last rental payment to Looper on that date, Lake has refused to remove the UST's, claiming it has no responsibility for them.

c. Final Conclusion: Lake Held Ownership of the UST's

The evidence as a whole establishes that Lake believed it had ownership of the tanks. Lake signed DHEC forms as an owner. The explanation that an officer signed on behalf of Lake as the "owner" because Lake thought an operator was required to sign is not very persuasive due to its self-serving nature. The party signing could have designated in what capacity Lake was executing the document. Additionally, Looper's testimony that Lake offered to sell the tanks to him is persuasive. Obviously, a person offering to sell something inherently admits he owns that which he seeks to sell. While Looper's testimony as to Lake's offer to sell and failure to remove the UST's is also self-serving, it is not disputed by any witness. Additionally, the Looper testimony is more believable since it is corroborated by the evidence that Lake bought the assets of Hayes, including the UST's, and Lake signed DHEC forms as the owner of the UST's. Accordingly, Lake was the owner of the six UST's.

C. Conclusions of Law

Based upon the above Findings of Fact, I conclude as a matter of law, the following:

1. Introduction

DHEC seeks to establish that Looper has both violated the law and failed to comply with the terms for closure of six UST's. Accordingly, DHEC bears the burden of proof in this case. See 2 Am. Jur. 2d Administrative Law § 360 (1994) (burden of proof generally rests with the party who asserts the affirmative of an issue). The standard of proof in this administrative proceeding is a preponderance of the evidence. Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998). As the finder of fact, the judge has the authority to weigh the evidence presented and determine the credibility of witnesses. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996); Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 440 S.E.2d 401 (Ct. App. 1994), cert. dismissed, 318 S.C. 187, 456 S.E.2d 918 (1995).

Under the facts established, Lake, not Looper, owned the six UST's as of April 15, 1988. Given this fact, the legal issues to be decided are whether the law of fixtures or the law of "trade fixtures" removed ownership from Lake sometime after April 15, 1988 and placed that ownership in Looper. Given the state of the law, I find no change of ownership occurred.

2. Governing Statutes and Regulations

The legal determination that Looper is not liable for fines, fees and closure responsibilities associated with UST's must begin with South Carolina's SUPERB Act and corresponding regulations.

a. SUPERB Act and Regulations

The SUPERB Act was in response to the federal Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., which provides, in part, for the regulation of petroleum UST's. The SUPERB Act requires DHEC to promulgate regulations relating to the permitting, release detection, prevention and correction applicable to all owners and operators of UST's as may be necessary to protect human health and the environment. S.C. Code Ann. § 44-2-50 (Supp. 1997). In response, DHEC promulgated its Underground Storage Tank Control Regulations. Those regulations form the basis for the current enforcement action.

Under the regulations, when an UST system is closed for more than twelve months, "owners and operators" of the UST system must permanently close the UST system at the end of the twelve month period if it does not meet certain performance standards or certain upgrading requirements. S.C. Code Ann. Regs. 61-92.280.70(c) (Supp. 1997). Permanent closure involves emptying and cleaning out the tanks by removing all liquids and accumulated sludges. S.C. Code Ann. Regs. 61-92.280.71(b) (Supp. 1997). The tanks must also be either removed from the ground or filled with an inert solid material. Id. Additionally, owners and operators must measure for the presence of a release where contamination is most likely to be present at the UST site by taking soil samples for analysis. S.C. Code Ann. Regs. 61-92.280.72(a) (Supp. 1997). Thus, the issue is whether Looper is an owner or operator of the six UST's involved in this case.

b. Owner Responsibilities

In the instant case, all agree that Looper is not and has never been an "operator" of a UST. Rather, DHEC argues Looper is an "owner" of the six UST's. An "owner" is defined in S.C. Code Ann. § 44-2-20(12) (Supp. 1997) and S.C. Code Ann. Regs. 61-92.280.12 (Supp. 1997) as follows:

(a) in the case of an UST system in use on November 8, 1984, or brought into use after that date, a person who owns an UST system used for storage, use, or dispensing of regulated substances; or

(b) in the case of any UST system in use before November 8, 1984, but no longer in use on that date, a person who owned such UST immediately before the discontinuation of its use; or

(c) a person who has assumed legal ownership of the UST system through the provisions of a contract of sale or other legally binding transfer of ownership.

DHEC asserts Looper falls within (c) above as one who has "assumed legal ownership of the UST system" through one of two legal theories. The first is the law of fixtures which DHEC argues placed the UST's in Looper's ownership due to the UST's being fixtures on the real property Looper purchased from Bobo. The second theory is the law of trade fixtures which DHEC argues placed the UST's in Looper's ownership due to the UST's being abandoned by Lake. Neither theory results in Looper having ownership of the UST's.

3. Application of Law of Fixtures and Trade Fixtures to §44-2-20(12)(c)

a. Introduction

A fixture is an article in the nature of personal property which has been so annexed to the realty that it is regarded as a part of the land. Black's Law Dictionary 574 (5th ed. 1979). The parties' intentions control whether an item becomes a fixture in the traditional sense or merely a trade fixture to be removed by a tenant at the end of a lease. Colonial Oil Co. v. American Oil Co., 43 F.Supp. 718 (D.S.C. 1942), reversed on other grounds 130 F.2d 72 (1942); see also Carroll v. Britt, 227 S.C. 9, 86 S.E.2d 612 (1955). As between landlord and tenant, "the intention with which the annexation was made is always an important if not controlling factor." Colonial Oil, 43 F.Supp. at 721 (D.S.C. 1942). In other relationships, such as vendor and vendee, the intention is inferred from the nature of the article, the relations of the parties, the structure and mode of annexation, and the purpose or use for which the annexation was made. Colonial Oil, 43 F.Supp. at 721 (D.S.C. 1942). A generalization can be made that UST's are primarily regarded as trade fixtures. See Sgro v. Getty Petroleum Corp., 96 F.3d 1434 (3d Cir. 1996); Shell Oil Company v. Capparelli, 648 F.Supp. 1052 (S.D.N.Y. 1986); Bence v. Spinato, 538 N.W.2d 614 (Wis. App. 1995).

In this case, Exxon was the original owner of the UST's. Exxon held the UST's as trade fixtures. In exercising its rights of ownership, Exxon sold the UST's to Hayes. Subsequently, Hayes sold the UST's to Lake. Obviously, under these facts, Bobo had no ownership of the UST's. Accordingly, the law of fixtures is not relevant to Looper's purchase from Bobo of the real property at 117 West Main Street, Pickens, South Carolina. Rather, the legal issue to be decided is whether the law of abandoned trade fixtures transferred ownership from Lake to Looper within the meaning of subsection (c) of section 44-2-20(12).

b. Lack of Transfer of Ownership

No transfer of ownership occurred within the meaning of subsection (c) of section 44-2-20(12). First, under the statutory definition of owner, a mere abandonment by Lake does not place ownership in Looper. Second, even if a mere abandonment by Lake could place ownership in Looper, the elements required to accomplish an abandonment of trade fixtures are not met. Third, even if the elements required to accomplish an abandonment of trade fixtures are met, the law of abandonment of trade fixtures does not place ownership in Looper.

i. Statutory Definition of Owner

One must always ascertain and give effect to the legislature's intention as expressed in the statute. Scholtec v. Estate of Reeves, 327 S.C. 551, 490 S.E.2d 603 (Ct. App. 1997). The language used should be given its plain and ordinary meaning without resort to subtle or forced construction to expand or limit the scope of a statute. See Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993). Moreover, caution should be exercised in using common law doctrines in regulatory enforcement cases since such doctrines should only be applied when consistent with the intent behind the enforcement statutes. See Petropoulos v. Columbia Gas, 840 F.Supp. 511 (S.D. Ohio 1993).

In seeking the intent of the General Assembly, very little guidance is available from existing case law.⁽²⁾ While an owner is generally free to do with his property what he wills, he is limited to those purposes not involving criminal intent or liability for tortious activities in connection with the property. Annunziata v. Millar, 574 A.2d 1021 (N.J.Super. 1990). Therefore, it is doubtful that the General Assembly intended that the owner of a trade fixture could transfer an environmental liability to an unconsenting real property owner by simply abandoning the trade fixture on the real property.

Further, the intent of the General Assembly should be found in a manner that does not violate the spirit of the SUPERB Act. The spirit of the Act is violated if the true owner of a UST is allowed to escape the environmental liability associated with the UST by simply abandoning it. Cf. Nurad, Incorporated v. Hooper, 966 F.2d 837 (4th Cir. 1992), cert. denied, 113 S.Ct. 377 (1992) (Defendant who had abandoned hazardous materials at site could not escape CERCLA response cost liability by simply labeling subsequent transfer of property as "sale" of hazardous waste.); United States v. Glidden Company, 3 F.Supp.2d 823 (N.D.Ohio 1997) (CERCLA statute would not be interpreted to allow owner to insulate himself from liability by virtue of his passivity, so long as he transfers the property before any response costs are incurred). In enacting the SUPERB Act, the legislature could not have intended to reward UST owners for such behavior. Accordingly, the statutory definition of "owner" in subsection (c) of section 44-2-20(12) must be read to accomplish the spirit of the SUPERB Act.

Given this understanding of the intent underlying the SUPERB Act, what is the proper meaning of the word "owner" used in subsection (c) of section 44-2-20(12)? Under the definition of "owner" in subsection (c) of section 44-2-20(12), Looper's responsibilities arise only if he "assumed legal ownership of the UST system through . . . [a] legally binding transfer of ownership." Did Looper "assume legal ownership" of the UST's? No.

"Assume" has been defined as meaning "to adopt, receive or take up or into; to adopt, to become bound as another is bound, or to put one's self in the place of another as to an obligation or liability; to take on an obligation that would not be the obligor's except for the agreement to take it on . . . to take formally and demonstratively . . . ." 7 C.J.S. Assume (1980). "The term implies knowledge or information, and it also connotes a voluntary action." Id. "Where supported by the context, the word . . . imports a personal liability . . . ." Id. Accordingly, one does not assume legal ownership of a UST system within the meaning of subsection (c) of section 44-2-20(12) through another's mere abandonment of the UST's on the premises. Rather, before an abandonment of a UST by one party can be held tantamount to a second party's assuming legal ownership of the UST, the party allegedly having assumed ownership must have manifested some degree of acceptance of the UST's. In this case, neither before nor after the purported abandonment did Looper manifest an intent to accept the UST's. On the contrary, he has steadfastly maintained no ownership and has sought to have Lake remove the UST's. Accordingly, Looper did not assume legal ownership of the UST system through a legally binding transfer of ownership, and he is not liable for fines, fees, or closure requirements for the six UST's.

ii. Abandonment Not Satisfied

Even if a mere abandonment by Lake could place ownership in Looper within the meaning of § 44-2-20(12)(c), the elements required to accomplish an abandonment of trade fixtures are not met in this case. An abandonment occurs when the tenant expresses an intention to abandon and then performs acts consistent with such an intention. Witt v. Poole, 182 S.C. 110, 188 S.E. 496 (1936). For example, it is held that a tenant cannot claim a right to re-enter the property to remove a trade fixture after the expiration of the lease period or after surrendering the premises since the tenant has been deemed to have voluntarily abandoned the item and it becomes a part of the realty owned by the lessor. See Sampson v. Camperdown Cotton Mills, 64 F. 939 (D.S.C. 1894); Bence v. Spinato, 538 N.W.2d 614 (Wis. App. 1995). Likewise, no abandonment of trade fixtures occurs when the trade fixtures are conditionally sold by the tenant to a subsequent tenant, the subsequent tenant plans to carry on the same business, and the landlord knows of the arrangement. See Central Chrysler Plymouth, Inc. v. Holt, 266 N.W.2d 177.

The evidence in this case, however, shows that Lake manifested no meaningful intention to abandon the UST's at the time the issue of ownership arose in April of 1988. When Lake discontinued business in April of 1988, Looper made it clear to Lake that Looper did not own the UST's, did not want the UST's and did not wish any continued presence of the UST's on his property. In fact, Looper requested that Lake remove the UST's. Lake's respond to Looper does not manifest an intent to abandon the UST's. Rather, acts by Lake to sell or to donate the UST's are indicative of one who acknowledges ownership and control, not abandonment. Further, later acts of Looper do not manifest any intent to accept the UST's. Indeed, the law of abandonment of trade fixtures would be turned on its head if a finding were made that the landlord can be forced to become the owner of property he has expressly and repeatedly rejected prior to the alleged abandonment and for which he has continuously expressed his rejection after the alleged abandonment. Accordingly, under the facts of this case, no abandonment took place sufficient to transfer ownership of the UST's to Looper.

iii. Abandonment Does Not Place Ownership

Even if the elements required to accomplish an abandonment of trade fixtures are met, the law of abandonment of trade fixtures does not place ownership in Looper. True, the UST's are embedded in Looper's real property and such is some evidence of ownership. However, such a fact by itself is not dispositive in this case. Rather, the rule that title to personalty found embedded in land rests with the owner of the land is based upon the premise that a trespasser claiming under the law of finders should not be allowed to profit by his wrongdoing. 1 Am.Jur.2d Abandoned, Lost, and Unclaimed Property § 29 (1994). Here, the concern addressed by such a rule is not present in this case since the UST's are owned by Lake and are on Looper's property with permission via a rental agreement.

More relevant is the general common law concept that abandoned personal property is the property of no one until someone reduces the property to possession with the intent to acquire title to, or ownership of, it. 1 C.J.S. Abandonment § 12 (1985). Identifying who that someone is requires looking to the person who first lawfully appropriates the property and reduces it to possession with the intention to become its owner. Id. While some authorities have held that personal property, including trade fixtures, abandoned on real estate becomes property of the real estate owner, virtually all of these authorities have addressed the question in terms of some benefit or entitlement which was forfeited by the prior owner and accrued to the real property owner. See, e.g., Kafka v. Bozio, 218 P. 753 (Cal. 1923); Schuler v. Langdon, 433 N.E.2d 841 (Ind. App. 1982); Fidelity-Philadelphia

Trust Co. v. Lehigh Valley Coal Co., 143 A. 474 (Pa. 1928).⁽³⁾

Here, Looper never expressed any intention to acquire title to the UST's and never expressed an ownership interest. On the contrary, Looper at all stages disavowed any ownership in the UST's and never appropriated the UST's for his use. For example, Looper has not rented the property to anyone for use as a gas station after Lake discontinued use of the property. In other words, Looper has taken no action to demonstrate acquisition of the UST's. Thus, even if an abandonment by Lake could be shown, a mere abandonment does not produce ownership in Looper.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered that Timothy Looper is not liable for fines and fees of $17,870 and is not liable for closure of the six underground storage tanks located at 117 West Main Street, Pickens, South Carolina. Further, DHEC Administrative Order No. 98-0052-UST is dismissed.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

Dated: January 6, 1999

Columbia, South Carolina

1. Lake's potential liability under the SUPERB Act is still a question to be resolved by DHEC giving Lake a vested interest in the outcome of this enforcement action against Looper. Notably, Lake's officer admitted under cross examination that Lake's financial responsibility for the UST's would be absolved if Looper is found liable for them. The fact that the South Carolina Secretary of State issued a Revocation of Authority as to Lake on July 31, 1992 did not serve as evidence of the corporation's actual dissolution; Lake was merely banned from doing any business in South Carolina. Neither did it establish that the corporation's assets were no longer in existence. Further, while Lake's witness testified that the corporation was "no longer in existence," he gave no details to establish that the corporation's assets were no longer in existence. Therefore, there was no evidence that Lake was not in existence for purposes of an environmental enforcement action. Cf. In re Tutu Wells, 846 F.Supp. 1243 (D. Virgin Islands 1993) (failure to pay franchise tax merely results in forfeiture of right to do business in the state, and it is not dissolved so that it may not be sued; whether a corporation still has assets is a consideration in determining legal existence under federal regulatory law; "The location and identification of some corporate assets were sufficiently discernable signs of life for the imposition of CERCLA liability.").

2. Case law has not directly addressed the question of whether a transfer of an environmental liability to an unknowing and unconsenting real property owner can be accomplished by an abandonment of personalty situated on the real property.

3. One jurisdiction has held that a UST owner's abandonment established title in the real estate owner. See Bence v. Spinato, 538 N.W.2d 614 (Wis. App. 1995). In that case, the real property owner, as a plaintiff seeking damages for cleanup costs from his tenant, had the burden of proving the tenant's ownership of the UST's. The original owner of the UST's, either a prior tenant or its supplier, had abandoned the UST's prior to the defendant's direct lease of the premises from the plaintiff. Further, the defendant testified that he purchased no equipment from either the prior tenant, who had filed for bankruptcy, or the bankruptcy trustee. Under all of these circumstances, the Wisconsin Court of Appeals found the real property owner to the be owner of the UST's by virtue of their abandonment by a prior tenant or its supplier; the UST's had already become a fixture before the defendant's lease of the premises. I find the facts of Bence to be distinguishable and therefore unpersuasive as authority in this case.