# Carson Harbor Village, Ltd. v. Unocal Corp.

> Court of Appeals for the Ninth Circuit · September 14, 2000 · 270 F.3d 863

URL: https://www.frixlaw.com/law-library/cases/7007046

## Case

- **Full name:** CARSON HARBOR VILLAGE, LTD., a limited partnership dba Carson Harbor Village Mobilhome Park, Plaintiff-counter-defendant-Appellant v. UNOCAL CORPORATION, a Delaware Corporation, Defendant-cross-defendant, and City of Carson, Defendant-cross-defendant-cross-claimant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 14, 2000
- **Citations:** 270 F.3d 863; 2001 WL 1269178
- **Precedential status:** Published
- **Opinion:** Concurring in part by Fletcherwhompregersonpaez
- **Judges:** Berzon, Fletcher, Hawkins, Hug, Kozinski, McKeown, Nelson, Paez, Pregerson, Schroeder, Tallman, Whom
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7007046

## How later opinions describe it (automated extraction)

- holding that Salisbury’s memo could be used to impeach Ross’ assertion that he did not require plaintiff to remove the tar and slag materials
- noting Judge Wardlaw's finding that "the 'evidence shows that there was no imminent danger’ to human health or the environment — -a requirement element of a RCRA claim” (emphasis original)
- noting that "[nlothing in the context of [CERCLA] or the term 'disposal suggests that Congress meant to include chemical or geological processes or passive migration"
- holding that migration of contamination through soil is not "disposal" in CERLCA action

## Opinion text

B. FLETCHER, Circuit Judge, with whom Judges PREGERSON and PAEZ, Circuit Judges,
join, Concurring in Part and Dissenting in Part.
I agree with the majority that CERC-LA 1 is not a model of legislative clarity. *889 Inconsistencies and redundancies pervade the statute. As a result, our task in interpreting CERCLA is to search for a construction that produces the fewest inconsistencies and at the same time remains true to the statute’s remedial purposes. In holding that passive migration of hazardous waste through soil in this case cannot constitute “disposal” under the Act, the majority misses the mark. If there is a plain meaning in CERCLA’s definition of “disposal,” it encompasses the sort of passive migration at issue here. Finding such passive migration as a form of “disposal” is consistent with CERCLA’s strict liability scheme, that broadly defines “potentially responsible parties” as including those who may have done nothing affirmative to contribute to the contamination of a site and that requires such parties to disprove causation as an affirmative defense. By contrast, excluding this sort of passive migration from the definition of “disposal,” as the majority does, frustrates CERCLA’s two central purposes: to encourage prompt, voluntary private action to remedy environmental hazards and to ensure that those responsible for the hazards pay their fair share of cleanup costs. Accordingly, I respectfully dissent from Part III of the majority’s opinion.
I.
One of the ways in which CERCLA encourages current landowners to clean up environmental hazards on their properties is to allow them to clean up the hazard and then bring suit to recover clean up costs from those who have some responsibility for the existence of the hazard. In order to prevail, the current owner must establish that the defendant is a “potentially responsible party,” a party who falls within one of four classes of persons subject to CERCLA liability. See 42 U.S.C. § 9607 (a). In this case, Carson Harbor argued that the Partnership Defendants are PRPs because they are persons “who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” Id. § 9607(a)(2). The district court granted the Partnership Defendants’ motion for summary judgment on Carson Harbor’s CERCLA claim because it concluded that the Partnership Defendants did not own the property “at the time of disposal of any hazardous substances.” Thus, the majority rightly focuses on the meaning of “disposal” in deciding whether the district court’s grant of summary judgment was proper. If there was a “disposal” of hazardous waste during the period that the Partnership Defendants owned the property, then, as the majority notes, the Partnership Defendants are PRPs and the district court was wrong to grant them summary judgment. Majority Op. at 874.
CERCLA defines “disposal” as “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.” 42 U.S.C. § 6903 (8) (emphasis added); see id. § 9601(29) (referring to § 6903(3) for the definition of “disposal”). Although the majority recognizes that almost all of the terms defining “disposal” have both active and passive meanings, it concludes that these terms “simply do not describe the passive migration that occurred here.” Majority Op. at 879. In reaching this conclusion, the majority purports to en *890 gage in a plain meaning analysis. However, the majority’s analysis is nothing more than ipse dixit. Remarkably, nowhere does the majority consider the ordinary, contemporary, common meaning of the terms defining “disposal.” See Williams v. Taylor, 529 U.S. 420, 431 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000) (“We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import.” (internal quotation marks and citation omitted)). Had it done so, the majority would have discovered that a common meaning of “deposit” exactly “fit[s] the hazardous substance contamination at issue” in this case. Majority Op. at 879.
The Oxford English Dictionary provides the following as one of the common definitions of the transitive form of the verb “deposit”: “Said of the laying down of substances held in solution, and of similar operations wrought by natural agencies; to form as a natural deposit.” IV The OxfoRD English Dictionaey (OED) 482 (J.A. Simpson & E.S.C. Weiner, eds., 2d ed.1989). 2 Webster’s Dictionary offers a similar definition: “to lay down or let fall or drop by a natural process: foster the accretion or accumulation of as a natural deposit.” Webster’s Third New International Dictionary of the English Language (Webster’s) 605 (Philip Babcock Gove, ed.-in-chief, Unabridged ed.1993). In addition, both dictionaries state that an intransitive definition of “deposit” is “to be laid down or precipitated, to settle.” IV OED 482; see Webster’s 605.
The evidence in the record is that the slag and tar-like waste was located within a 17-acre open-flow wetlands area of the plaintiffs property. The evidence also indicates that the slag and tar-like substance had high concentrations of lead and TPH. In addition, there is evidence that water flowing through the wetlands carried lead and TPH and that these hazardous wastes settled in the soil throughout the wetlands. Thus, contrary to the majority’s conclusory assertion, the plain meaning of “disposal” that includes “deposit” exactly describes the spread of hazardous waste throughout the wetlands: The wastes were carried by the water flowing through the wetlands and deposited in the surrounding soil. Cf Majority Op. at 879 (“Nor can the gradual spread here be characterized as a ‘deposit,’ because there was neither a deposit by someone, nor does the term deposit encompass the gradual spread of contaminants.”). 3
The plain meaning of “deposit” applies to the soil contamination that occurred in this case. Thus, the Partnership Defendants were owners of the property “at the time of disposal.” 42 U.S.C. § 9607 (2). As a result, the Partnership Defendants are PRPs and the district court was wrong to grant them summary judgment dismissing Carson Harbor’s CERCLA claim as to them.
II.
As we have noted, CERCLA has two central purposes: “to ensure the prompt *891 and effective cleanup of waste disposal sites, and to assure that parties responsible for hazardous substances [bear] the cost of remedying the conditions they created.” Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1300 (9th Cir.1997) (internal quotation marks and citation omitted). To effectuate the first purpose, Congress designed CERCLA to broadly define PRPs. See 42 U.S.C. § 9607 (a). To effectuate the second purpose, Congress created affirmative defenses to allow PRPs who bore no responsibility for the hazardous waste to avoid liability. See id. §§ 9601(35)(A), 9607(b). Also in furtherance of the second purpose, Congress provided for the equitable distribution of cleanup costs among PRPs who cannot avail themselves of an affirmative defense. See id. § 9613(f); United States v. Colo. & E. R.R. Co., 50 F.3d 1530 , 1536 n. 5 (9th Cir.1995) (describing some of the equitable factors courts consider in determining the proper allocation of cleanup costs among PRPs). The majority’s exclusion of parties such as the Partnership Defendants from the class of PRPs frustrates both of CERCLA’s central purposes.
a. Prompt and Effective Cleanup
While it holds that the “passive soil migration” at issue in this case does not constitute “disposal,” the majority also concludes that “disposal” may include other sorts of passive migration. Majority Op. at 881. Specifically, the majority opines that the passive spilling or leaking of hazardous wastes may count as “disposal.” See, e.g., id. at 881, 886. The majority notes that counting passive spilling or leaking as “disposal” furthers CERCLA’s purpose to encourage prompt and effective cleanup of hazardous wastes. Id. at 881. It also notes that were “disposal” read to exclude passive spilling or leaking, there would be little incentive for a landowner to examine her property for hazardous wastes and to clean up any contamination that was discovered. Id. at 881. But, of course, counting the passive migration at issue in this case as “disposal” also would encourage prompt cleanup, and excluding it produces the decreased incentives about which the majority frets: The majority’s holding would allow a property owner who discovers hazardous waste passively migrating through the soil to escape all CERCLA liability simply by selling the property to another.
The majority’s parsimonious reading of “disposal” also leads to plainly nonsensical results. Hazardous waste that is placed directly on or in land and is actively discharging or depositing waste throughout the soil, as is the case here, is likely a more immediate and direct environmental threat than that which is placed into drums or containment pools which may or may not eventually leak. Under the majority’s interpretation, however, CERCLA gives the owner of land on which hazardous waste has previously been directly placed less of an incentive to clean up the waste than it does an owner whose land contains leaking drums. The failure to count the passive migration of contaminants through soil as “disposal” thus frustrates CERCLA’s first central purpose.
The majority reaches this untenable result for two reasons. First, it believes that the plain meanings of “spill” and “leak” describe the passive spread of hazardous waste but that the plain meaning of “deposit” and other terms in the definition of “disposal” that could potentially describe the passive migration at issue in this case do not. Id. at 33. Second, the majority relies on statements in CERCLA’s legislative history that indicate that Congress enacted CERCLA in part out of concern for the spillage and leakage of hazardous waste from storage tanks at such places as *892 Love Canal and the Valley of the Drums. Id. at 36, 48-50.
However, the majority’s plain meaning analysis is patently flawed: Water, flowing through the wetlands, carried the hazardous waste and “deposited” it in the soil throughout the contaminated area. See supra Part I. In addition, the majority recognizes that its reliance on legislative history is a weak reed. As the majority itself notes with candor, “any inquiry into CERCLA’s legislative history is somewhat of a snipe hunt.” Majority Op. at 885. CERCLA was “an eleventh-hour compromise hastily assembled by a bipartisan leadership.” Id. at 885 n. 12. As such, there is precious little congressional commentary interpreting the bill that eventually became CERCLA. See id. at 885 n. 13 (“No committee or conference reports address the version of the legislation that ultimately became law.”). Thus, while the majority finds isolated statements from congressional witnesses, senators, and representatives indicating a concern with the passive spillage or leakage of hazardous waste, this is hardly evidence that Congress meant to limit CERCLA’s reach to only those forms of passive contamination that could be described as “spills” or “leaks.”
b. Fair Share of Remedial Costs
The majority’s refusal to give full effect to the meaning of “deposit” and other terms also frustrates CERCLA’s second central purpose: to ensure that the parties responsible for hazardous waste bear their fair share of cleanup costs.
This case presents a perfect illustration. The Partnership Defendants owned the property from 1977 until 1983, when they sold it to Carson Harbor. From 1945 until 1983, Unocal Corporation held a leasehold interest in the property. As the majority notes, Unocal used the property for petroleum production, operating a number of oil wells, pipelines, above-ground storage tanks, and production facilities. Majority Op. at 868. The evidence in the record indicates that the slag and tar-like material were placed on the property some time prior to the Partnership Defendant’s ownership. Thus both the Partnership Defendants and Carson Harbor owned the property while lead and TPH from the tar and slag discharged into the wetlands. The only significant distinction between Carson Harbor and the Partnership Defendants is that during the latter’s ownership, Unocal was actively engaged in petroleum production on the property. Thus, the Partnership Defendants had more reason to suspect the possibility of hazardous waste contamination than did Carson Harbor. But under the majority’s interpretation of “disposal,” the Partnership Defendants are completely exempt from liability for the cleanup costs incurred by Carson Harbor. This is an absurd result. By contrast, under the interpretation I urge, the Partnership Defendants would be PRPs and so liable for some of the cleanup costs unless they were able to establish an affirmative defense.
The majority appears to believe that counting the sort of passive migration at issue here as “disposal” would “essentially eliminate[ ]” one of a PRP’s central affirmative defenses: the “innocent landowner” defense. Majority Op. 881. This defense provides immunity from liability to a PRP who acquired property “after the disposal or placement of [a] hazardous substance” if, “at the time the [PRP] acquired the facility the [PRP] did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, *893 in, or at the facility.” 4 42 U.S.C. § 9601 (35)(A). The majority’s reasoning on this point is puzzling. The majority contends that an interpretation of “disposal” that included passive soil migration “would lead to the conclusion that disposal is a never-ending process, rendering liable every landowner after the initial disposal.” Majority Op. at 882. It then notes that for subsequent purchasers, the innocent landowner defense would be available “only if one could show that the land was purchased after the hazardous substances were ‘placed’ there.” Id. The majority then concludes that the defense would be available only “to a small portion of the landowners who have no actual culpability in the disposal of the hazardous substances.” Id. But this conclusion is simply a non-sequitur.
Even if we accept for the sake of argument that the more expansive interpretation of “disposal” implies that “disposal is a never-ending process,” 5 it just does not follow that the innocent landowner defense would be available only to those who have “no actual culpability in the disposal of the hazardous substances.” Majority Op. at 882 (emphasis added). Congress made the defense available to any PRP who purchases property after the disposal or after the placement of a hazardous substance on the property. 42 U.S.C. § 9601 (35)(A). Thus, if a PRP purchases property on which hazardous waste is passively migrating through the soil, under my interpretation the innocent landowner defense is not available to the PRP by virtue of the fact that she did not purchase the property after the “disposal” of the waste, since the disposal was on-going. However, if it was a prior owner who placed the hazardous waste on the property, then the defense is available to her by virtue of the fact that she bought the property after the hazardous substance was initially placed on the property. 6 Recognizing that the dispersal of hazardous waste through soil by water is “disposal” under the statute does not eliminate the innocent landowner defense. It “leaves in place the narrow applicability of the defense.” Majority Op. at 887.
Nor does the inclusion of passive soil migration give rise to a parade of horri-bles. A PRP who cannot avail herself of an affirmative defense is liable only for her fair share of cleanup costs. It is up to the district court to apportion costs equitably among all PRPs. 42 U.S.C. § 9613 (f)(1); see Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1187 (9th Cir.2000). Among the factors courts consider in allocating responsibility and liability are:
(i) the ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished; (ii) the amount of the hazardous waste involved; (in) the degree of toxicity of the hazardous waste involved; (iv) the degree of *894 involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste; (v) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and (vi) the degree of cooperation by the parties with the Federal, State or local officials to prevent any harm to the public health or the environment.
Colorado & E. R.R. Co., 50 F.3d at 1536 n. 5. Courts also take into account the existence of contractual or principal/agent relationships among PRPs, Cadillac Fair-view/California, Inc. v. Dow Chemical Co., Nos. 83-8034 MRP (BX), 83-7996 MRP (BX), 1997 WL 149196 , at *17 (C.D.Cal. Feb. 21, 1997); whether a PRP benefitted from the disposal of waste at the site, id.; whether a PRP has itself engaged in cleanup efforts, Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298 , 1303 n. 4 (9th Cir.1997), and the circumstances surrounding a PRP’s action or inaction, id., United States v. Shell Oil Co., 13 F.Supp.2d 1018, 1026-27 (C.D.Cal.1998); and the relative amount of time a PRP owned the property, Dant & Russell, Inc. v. Burlington N. R.R. Co. (In re Dant & Russell, Inc.), 951 F.2d 246, 249 (9th Cir.1991). 7 As the majority recognizes, CERCLA ensures that a PRP’s contribution will be limited to her equitable share. Majority Op. at 882-83. Thus, including as PRPs owners of property in which hazardous waste is passively migrating through the soil does not expose such owners to unbounded liability. It merely holds them accountable for their fair shares of cleanup costs, based upon the circumstances surrounding their ownership.
III.
The structure of the statute, despite its redundancies and inconsistencies, is clear: Liability is not based on causation or fault. Rather, the liability of previous land owners is based on ownership at the time hazardous waste is placed or disposed of on the subject property. The purpose of the statute is to encourage current owners to clean up and eliminate the hazard. The “encouragement” contained in the statute is to allow the current owner to recover aliquot shares of the cost from prior owners. The statute identifies “PRPs” as persons who are potentially liable to the current owners. The statute is clear that PRPs include all persons who owned or operated any facility at which hazardous substances were disposed of.
Identified PRPs can assert affirmative defenses to exclude themselves or can advance the reasons why their share of the cost should be minimal, little, or none. However, they should not be able to exclude themselves from PRP status by narrowing or distorting the meaning of “disposal” as the majority has done. The majority perhaps is motivated by a sense that the structure of the statute is unfair by including essentially innocent persons in the process-requiring them to assert their defenses-but that is the structure of the statute. Distorting the meaning of “disposal” under the guise of a “plain meaning” analysis that is seriously flawed is not appropriate.
The passive migration of hazardous waste through the soil is a form of “disposal” covered by CERCLA. Because the Partnership Defendants owned the property “at the time of disposal,” the district *895 court erred in concluding that they are not PRPs. I would reverse the district court’s award of summary judgment to the Partnership Defendants on Carson Harbor’s CERCLA claim and remand to allow the Partnership Defendants an opportunity to present an affirmative defense and, should they be unsuccessful, for equitable distribution of the cleanup costs. Accordingly, I respectfully dissent.
. I shall use the majority opinion’s abbreviations throughout.
. The OED Provides The Following Illustration, From T.H. Huxley's Physiography (1878), of this sense of deposit: "[The water] deposits more or less of the matter which it holds in suspension.” IV OED 482 (insertion in original).
. Although I focus on the meaning of "deposit,” I note that the plain meaning of other terms defining "disposal” aptly describe the spread of hazardous waste at issue in this case, the term "discharge,” for example, has an especially broad meaning. See Webster’s 644 (including in the definition of "discharge,” "to give outlet to: pour forth: emit ... to release or give vent to ... to emit or give vent to fluid or other contents”).
.In order to obtain immunity from liability, the PRP must also demonstrate that "(a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all the relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any ... third party and the consequences that could foreseeably result from such act or omissions." 42 U.S.C. § 9607 (b)(3); see 42 U.S.C. § 9601 (35)(A).
. The majority's use of this assumption is highly questionable. Whether subsoil migration is "a never-ending process," is clearly a factual question, the answer to which is not obvious. However, there is no evidence in the record to support the majority's supposition.
. The majority makes this very argument elsewhere in its opinion. Read its discussion at pages 882-83.
. These factors are neither exhaustive nor exclusive. In apportioning responsibility among PRP's "a court may consider several factors, a few factors, or only one determining factor, ... depending on the totality of the circumstances presented to the court.” Colorado & E. R.R. Co., 50 F.3d at 1536 (internal quotation marks omitted).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7007046. Public record. Not legal advice.