concluding that because particular inquiry necessary for defendant to establish innocent-landowner defense to CERCLA liability “is clearly dependent on the totality of the circumstances” and is thus “a very fact-specific question,” summary judgment was inappropriate to establish that, as matter of law, defendant’s actions did not amount to “appropriate inquiry”
How later courts described this case
- concluding that because particular inquiry necessary for defendant to establish innocent-landowner defense to CERCLA liability “is clearly dependent on the totality of the circumstances” and is thus “a very fact-specific question,” summary judgment was inappropriate to establish that, as matter of law, defendant’s actions did not amount to “appropriate inquiry”
- concluding that absent “any evidence that there was human activity involved in whatever movement of hazardous substances occurred on the property,” there is no “disposal”
- holding that proof as to whether a third party was the sole cause of a release is a dispositive issue for purposes of the innocent landowner defense
- holding that proof regarding whether a third party was the sole cause of the release is dispositive concerning the innocent landowner defense
Written by the judges who cited it.
The opinion
COLE, Circuit Judge,
concurring in part and dissenting in part.
I concur in the majority’s decision in Parts II. A, B, D and E. Because I believe that Parcel 1, the parcel at issue, is geographically separable by a reasonable and natural division from the multiple non-contaminated parts, I find that Parcel 1 is the appropriate facility under 42 U.S.C. § 9601 (9)(B). Therefore, I respectfully DISSENT from Part II. C of the majority’s opinion.
As Judge Boggs noted in United States v. Township of Brighton, 1 “a facility should be defined at least in part by the bounds of the contamination.” 153 F.3d 307 , 313 (6th Cir.1998). In Brighton, Judge Boggs reasoned that an area that cannot be reasonably or naturally divided into multiple parts or functional units should be defined as a single facility, even if it contains parts that are non-contaminated. See id. at 313. Conversely, where property is reasonably *712 and naturally divisible into contaminated and non-contaminated parts, a court can limit the facility to the contaminated portions of the property. In this case, the evidence shows that the three parcels have distinct legal descriptions and can be reasonably divided into multiple parts, separating the contaminated from the non-contaminated parts.
The majority emphasizes the fact that the parcels were never considered separate for any purpose other than land records, were transferred on the same land deed, and were maintained in similar undeveloped states. These factors are not determinative of the bounds of the facility. The words of the statute direct our inquiry to the determination of the bounds of the “site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. § 9601 (9)(B). The case law conforms to this directive.
In Brighton, this court determined that the entire property was the “facility” in part because “it appearfed] that the entire property was operated together as a dump.” 153 F.3d at 313. Judge Moore, concurring in the result in Brighton, concluded that the entire property was the facility because § 9601(9)(B) defined a “landfill” in its entirety as constituting a “facility” and this court did not need to decide the bounds of the contamination under § 9601(9)(B) to designate the entire property as the facility. Id. at 323 (Moore, J. concurring in result). Thus, in Brighton this court reasoned that land which was used overall as a dumping site thus, the land was widely contaminated — and was not geographically distinct could not be divided into reasonable or natural separate facilities. See id. at 313 (Judge Boggs’s reasoning on defining the scope of facility), 323 (Judge Moore’s concurrence relying on statutory language to define “facility”).
Similarly, courts faced with widely contaminated land have refused to divide the land into separate facilities even when divisible into separate units. See, e.g., Axel Johnson, Inc. v. Carroll Carolina Oil Co., 191 F.3d 409, 418-19 (4th Cir.1999) (holding that widespread contamination scattered throughout the property prevented limiting the facility to the particular functional units simply because the property could be divided into those units); Akzo Coatings, Inc. v. Aigner Corp., 960 F.Supp. 1354, 1358 (N.D.Ind.1996) (rejecting the argument that because the “Site can be divided into five distinct geographic areas, each area is a distinct facility” and holding that hazardous waste had “otherwise come to be located in several locations at the Site”); Northwestern Mutual Life Ins. Co. v. Atlantic Research Corp., 847 F.Supp. 389, 395-96 (E.D.Va.1994) (stating that what “matters for the purpose of defining the scope of the facility is where the hazardous substances were ... disposed of ... or have otherwise come to be located” and “the uncontradicted record confirms that hazardous substances exist ... in all quadrants of the property”) (footnotes and internal quotations omitted). In essence, the scope of contamination determined the scope of the facility.
Conversely, where the Fourth Circuit found that contamination was not widespread, the court limited the “facility” to include only the area where hazardous substances were located. See, e.g., Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 843 (4th Cir.1992) (stating that “the only ‘area’ where hazardous substances [had] ‘come to be located’ was in and around the storage tanks, so the relevant ‘facility’ [was] properly confined to that area”).
This case presents land that is geographically distinct and while used in part as a dumping site, is admittedly not contaminated in its entirety. It is clear that no contamination was discovered outside of Parcel 1. Following this court’s approach in Brighton and applying § 9601(9)(B), the facility under these facts should be limited to Parcel 1; the area of the entire contamination that is reasonably and naturally separable from Parcels 2 and 3.
Where the contamination is confined to a single parcel and there is no indication *713 that dumping has occurred on connected parcels, this court should look to the metes and bounds of the contamination as a measure, at least in part, when defining the scope of the “facility” under 42 U.S.C. § 9601 (9). Cf Brighton, 153 F.3d at 313 (relying on scope of contamination); Axel Johnson, Inc., 191 F.3d at 418-19 (examining scope of contamination and divisibility of land); Nurad, Inc., 966 F.2d at 843 (relying on scope of contamination). If we are to apply the statutory language defining the “facility” under § 9601(9) and follow the teachings of Brighton with respect to limiting the “facility” at all, this case presents a clear opportunity to divide the property into appropriate units based on reasonable divisions and the bounds of contamination present on the property. In the present case, I would hold that the facility is limited to Parcel 1, based on the divisibility of the property into natural units and the admission that no contamination was found outside of Parcel 1, and thus I would hold that the lien is proper only as it pertains to Parcel 1.
For the foregoing reasons, I respectfully DISSENT from Part II. C. of the majority opinion.
. The Brighton court produced a divided opinion where Judge Boggs wrote for the court, Judge Moore concurred only in the result and Judge Dowd concurred in part and dissented in part. 153 F.3d 307 (6th Cir.1998). In sum, the reasoning of the Brighton court differs according to the opinion of each of Judge, while the result is the product of the court. Accordingly, references to the Brighton opinion refer to the reasoning of the individual Judges where appropriate and not to the reasoning of the court.