Carson Harbor Village, Ltd. v. Unocal Corp.

WEINER, Senior District Judge,

dissenting in part:

While I join Parts I, II, III A 1, III B and III C of the panel opinion, I cannot agree that CERCLA liability extends to the so-called passive migration of hazardous wastes. Accordingly, I dissent from Part III A 2.

In adopting the passive migration theory, first espoused eight years ago by the Fourth Circuit in Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir.1992), but finding no adherents since, the panel opinion casts this Circuit’s lot with a distinctly minority view of CERCLA liability. To date, each circuit to have discussed Nurad has rejected its reasoning and its result. See United States v. CDMG Realty Co., 96 F.3d 706 (3d Cir.1996); ABB Industrial Systems v. Prime Technology, Inc., 120 F.3d 351 (2d Cir.1997); United States v. 150 Acres of Land, 204 F.3d 698, 705-06 (6th Cir.2000). The reason for this seems clear to me. As stated by the Third Circuit in CDMG Realty, “[a] thorough examination of the text and structure of CERCLA convinces [me] that the passive migration of contaminants alleged here does not constitute disposal [as that term is used in 42 U.S.C. § § 6903(3) and 9607(a)(2) ].” 96 F.3d at 713 .

To be considered a potentially responsible party under CERCLA, one must be “the owner or operator at the time the hazardous substances were disposed” on the property. Section 9607(a)(2). “Disposal,” in turn, is defined as the “discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water.” Section § 6903(3). Nurad held that, under § 9607(a), a landowner can be held to have disposed of hazardous material if he passively allowed that material to migrate in the environment during his ownership. Nurad, 966 F.2d at 846 (“Thus, we 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.’ ”). 1

*1213 To my mind, however, none of the words contained in the section can be construed to have a passive connotation. While the panel opinion attempts to define some of the various verbs found in the statute to imply passive migration — specifically discharge, spill and leak — I believe that the statutory scheme requires that even these verbs be understood to imply some kind of active human conduct. Accord, CDMG Realty, 96 F.3d at 714 (“We think there is a strong argument, however, that in the context of this definition, ‘leaking’ and ‘spilling’ should be read to require affirmative human action.”). To me, something “spills” only when it is actively emptied or, because of human action or inaction, is placed in a position where gravity, or the elements taking their natural course, cause the contents to be emptied into the environment. In the dictionary, spill is defined in its verb tense as “to cause or allow to pour, splash, or fall out.” Webster’s Third New International Dictionary, Unabridged 2195 (Philip Babcock Gove & the Merriam-Webster Editorial Staff eds., 1986). Whether a substance pours, splashes or falls, human conduct was necessary ab initio to create the situation permitting the spill to occur, and it is this conduct with which I believe the statute is concerned.

In its verb tense, “leak” is defined as “to permit to enter or escape through a leak.” Id. at 1285. Even an accidental leak requires human activity to cause it. Whether one let a metal drum rust to the point of leakage or fails to ensure the container is leakproof before it is filled, leaks don’t occur without someone actively placing the hazardous waste in the container and creating the conditions under which it could, with the passage of time, begin to escape.

“Discharge” arguably requires less human interaction to occur than does a spill or a leak since discharge can be a naturally occurring event. For example, spring water can discharge from the earth under its own pressure. I believe that this is the sense that the majority uses when it notes that “discharge” can be defined as “to give outlet or vent to: emit.” But in the sense the word is used in the statute, I believe a discharge, to be actionable under CERC-LA, must also result from active human conduct. Congress must have intended “discharge” to be read in pari materia with the other verbs and to be defined in the sense most applicable to the evil CERCLA seeks to prevent. Thus, I believe Congress also intended that the definition of discharge be limited to “unload or empty,” or “to pour forth contents,” both of which imply active conduct.

The statutory distinction between “disposal” and “release” supports this limitation. Release is a broader term than disposal since disposal is included within the definition of release. Compare 42 U.S.C. § 9601 (22) with § 9601(29). As the Sixth Circuit stated quite recently in 150 Acres of Land, it makes more sense for the statutory scheme, as well as the words themselves, to have disposal stand for activity that precedes the entry of a substance into the environment and release stand for the actual entry of the substance. 204 F.3d 698, 705-06 (6th Cir.2000) (rejecting the passive migration theory). While Congress chose to include within the definition of release the passive activity of “leaching,” no such obviously passive term is included in the definition of disposal.

While the majority argues that the definition of potentially responsible party (PRP) is broad, leaving defendants to prove the absence of a causal role as an affirmative defense, I believe this puts the cart before the statutory horse. Congress intended strict liability only for PRPs and offered a specific definition of that term which incorporates only the disposal requirement. If Congress had intended *1214 those who own property on which hazardous substances passively migrated to be considered PRPs, it easily could have written the PRP definition to include those who owned or operated property at the time the hazardous substance was “released” as well as when it was disposed. Congress’ failure to do so, I believe supports the position now accepted by the Second, Third and Sixth Circuits that some active human conduct is required to demonstrate disposal. 2

In conclusion, I would hold that one who merely owns a site upon which previously dumped chemicals or, in this case, naturally occurring lead contamination has spread, does not meet the definition of a potentially responsible party. A passive migration theory, permitting an otherwise non responsible party to be held liable, fails to comport with the overriding legislative intent to place strict liability upon those who created the pollution. Kaiser Aluminum v. Catellus Development Corp., 976 F.2d 1338 , 1340 (9th Cir.1992) (one of CERCLA’s primary goals was to affix the ultimate cost of clean up to those parties responsible for the contamination; we construe CERCLA liberally to achieve that goal.) As the district court correctly determined that the Partnership Defendants could not be held liable under a passive migration theory, I would find no error in its reason for granting these defendants summary judgment on the CERCLA claim.

. In Nurad, the prior owners of a property, Hooper and Mumaw, were held liable under CERCLA for cleanup costs incurred by the incumbent owner Nurad. Hooper had installed underground storage tanks (USTs) which he used to store mineral spirits used in textile finishing. The USTs leaked and the mineral spirits were found in surrounding soils. Although the district court concluded that Hooper was liable because he had disposed of the mineral spirits and then abandoned them in the USTs, it held that Mumaw was not liable, even though passive migration of hazardous substances may have occurred during his ownership, because Mumaw had no active role in managing the tanks or their contents. The Fourth Circuit concluded that *1213 the district court had taken a too narrow view of the word "disposal” as used in § 9607(a)(2), limiting it to disposal by affirmative human conduct. Nurad, 966 F.2d at 844 . The Fourth Circuit found the district court’s restrictive interpretation to be at odds with CERCLA’s fundamental remedial purpose and the language of the statute. Id.

. Noting that CERCLA provides for an "innocent owner” defense, §§ 9607(b)(3), 9601(35), the CDMG Realty court added that if "disposal” were defined to include the gradual spread of waste after a spill, the innocent owner defense would be almost a nullity. 96 F.3d at 716 . Since the innocent owner defense appears to be unavailable to a prior owner, see Id. at 716-17 ; § 9601(35)(C) ("[n]othing in this paragraph ... shall diminish the liability of any previous owner”), the court found that "if prior owners were liable because waste spread during their tenure ..., prior owners could be in a significantly worse position than current owners: they would be liable for passive migration of waste” in circumstances where current owners could establish the innocent owner defense. Id. This it believed further supported the conclusion that disposal could not include passive migration. Id. The Second Circuit in ABB agreed with the Third Circuit's lengthy analysis, adopting most of its reasoning and conclusions. The Second Circuit was persuaded by the Third Circuit’s reasoning which it fully adopted save for one caveat. While the CDMG court found that the innocent owner defense was not available to prior owners, the Second Circuit had previously rejected that conclusion in Westwood Pharmaceuticals v. National Fuel Gas Distribution Corp., 964 F.2d 85, 91 (2d Cir.1992). Nonetheless, the Second Circuit found the other arguments set out in the CDMG opinion persuasive and rejected the passive migration liability theory.