96 F.3d 706 (3rd Cir. 1996), 95-5505, United States v. CDMG Realty Co.

• Docket Nº: 95-5505.
• Citation: 96 F.3d 706
• Party Name: UNITED STATES of America v. CDMG REALTY CO., a limited partnership; Helen E. Ringlieb, individually, and as general partner in CDMG Realty Co.; HMAT Associates, Inc.; Township of Parsippany-Troy Hills; Allied-Signal, Inc; Beazer Materials & Services, Inc.; Ciba-Geigy Corporation; Hoechst Celanese Corp.; Occidental Chemical Corp.; Pfizer, Inc.; Carl
• Case Date: September 27, 1996
• Court: United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 706

96 F.3d 706 (3rd Cir. 1996)

UNITED STATES of America

v.

CDMG REALTY CO., a limited partnership; Helen E. Ringlieb,

individually, and as general partner in CDMG Realty Co.;

HMAT Associates, Inc.; Township of Parsippany-Troy Hills;

Allied-Signal, Inc; Beazer Materials & Services, Inc.;

Ciba-Geigy Corporation; Hoechst Celanese Corp.; Occidental

Chemical Corp.; Pfizer, Inc.; Carl Gulick, Inc.; Becton

Dickinson, Inc.; Warner-Lambert Company; American

Telephone and Telegraph Company; Browning-Ferris Industries

of North Jersey, Inc.; Industrial Circuits Company;

Automatic Switch Company; Rowe International Inc.;

Hosokawa Micron International Inc.; Scovill Inc.; K-H

Corporation on Behalf of Magor Car; Leslie Controls

Company, Inc.; Nesor Alloy Corporation; Sandoz

Pharmaceuticals Corporation; Kidde Industries, Inc. (named

in the Complaint as Hanson Industries); Rayonier Inc.,

(formerly ITT Rayonier, Inc.); Wagner Electric Corporation

(named in the Complaint as Cooper Industries, Inc.); The

Sherwin-Williams Company; KDI/Triangle Electronics, Inc.;

State of New Jersey Department of Transportation; John

Dusenbury Company; Safety Light Corporation, (named in the

Complaint as USR Industries, Inc.); The Boc Group, Inc.;

L.E. Carpenter & Co.; The Mennen Company; Metem

Corporation; NSK Corporation; Ceramic Magnetics, Inc.;

Air Products & Chemicals, Inc.; Rockland Corporation; Sika

Corporation; Carbone USA Corporation; New Jersey Transit

Corporation; New Jersey Bus Operations, Inc.

v.

The SHARKEY LANDFILL AGREEMENT GROUP, an organization of

Defendants in Civil Action Number 89-4246(NHP), for

themselves and on behalf of other Settling Defendants whose

contribution claims they may assert pursuant to an

assignment of rights and Hoechst Celanese Corporation, one

of its members; Beazer Materials & Services, Inc.;

Occidental Chemical Corporation; HMAT Associates, Inc.,

Third-Party Plaintiffs,

v.

ADRON, INC.; Amerace Corporation and Sequa Corporation;

Air Products & Chemicals, Inc.; Basic, Inc.; The Boc

Group, Inc.; Carbone U.S.A. Corp.; Ceramic Magnetics,

Inc.; Colloid Chemical, Inc.; Cooper Industries, Inc.;

Hanson Industries; International Engraving Corp.;

International Paper Company; ITT Rayonier, Inc.; John

Dusenbury Company, Inc.; KDI/Triangle Electronics Inc.;

L.E. Carpenter & Co.; Litton Systems, Inc.; The Mennen

Company; Metem Corporation; New Jersey Transit

Corporation; New Jersey Transit Bus Company, Inc.; NSK

Corporation; Old Deerfield Fabrics, Inc.; Pantasote Inc.;

PQ Corporation; Precision Manufacturing Co., Inc;

Rockland Corporation; Sandoz Pharmaceuticals Corporation;

The Sherwin-Williams Company; Sika Corporation; USR

Industries, Inc. and Township of Bloomfield; Town of

Boonton; Township of Boonton; Borough of Butler; Township

of the Borough of Caldwell; Township of Chatham; City of

Clifton; Township of Denville; Town of Dover; Township of

East Hanover; County of Essex; Township of Fairfield;

Township of Glen Ridge Borough; Borough of Haledon;

Township of Hanover; City of Jersey City; Borough of

Kinnelon; Borough of Lincoln Park; Township of Little

Falls; Township of Livingston; Township of Millburn;

Township of Mine Hill; Township of Montclair; Township of

Montville; Township of Morris; Town of Morristown;

Borough of Mountain Lakes; Township of Pequamnock; Borough

of Pompton Lakes; Borough of Prospect Park; Township of

Randolph; Borough of Riverdale; Township of Rockaway;

City of Summit; Borough of Totowa; Borough of Victory

Gardens; Township of West Caldwell; Township of West

Orange; Borough of Wharton; Vincent Apice and Son; Frank

M. Bace Disposal, Inc.; Caldwell Trucking Co., Inc.;

Carner Bros., Inc.; Central Waste and Mill Service, Inc.;

Chatham Disposal Company; Chem-Quid Disposal, Inc.; Carmel

Chiullo; John Costa; Joseph Defrietas; Dell & Sons;

Denville Disposal Co., Inc.; Dimarco Sanitation; Sam

Fiorenzo; Frank's Sanitation Service; Garbco Associates,

Inc.; B. Horstmann Septic Tank Service; Daniel Jackson;

J.M.S. Sanitation Co.; R. Lobosco and Sons, Inc.; Marangi

Sanitation, Inc.; Frank J. Marinaro; Mercer Waste Removal

Co.; Anthony Miele; Morris County; West Essex Disposal

Co., Inc.; State of New Jersey Department of

Transportation; Helen Elaine Ringlieb and Township of Essex

Fells; Harding Township; Madison Borough; Borough of New

Providence; Roseland Borough; Union County; Wayne

Township; Dowel Associates, a general partnership; Herbert

M. Iris, individually and as a general partner in Dowel

Associates; Leste Z. Lieberman, individually and as general

partner in Dowel Associates, Third-Party Defendants.

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

v.

CIBA-GEIGY CORPORATION, INC.; Curtiss-Wright Corporation;

Hoechst-Celanese Corporation; Ketcham and McDougall, Inc.;

Pfizer, Inc.; Occidental Petroleum Corporation; Koppers

Company, Inc.; Sharkey Farms, Inc.; Nicholas Enterprises,

Inc.; Parker Chemical Company; Chemical Waste Management, Inc.

HMAT Associates, Inc., Appellant.

No. 95-5505.

United States Court of Appeals, Third Circuit

September 27, 1996

Argued March 18, 1996.

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James J. Periconi (argued), Periconi & Rothberg, New York City, for Third-Party Plaintiff/Appellant.

David B. Farer (argued), John P. Quirke, Farer Siegal Fersko, A Professional Association, Westfield, NJ, for Third-Party Defendants/Appellees.

Before: BECKER, McKEE, and McKAY, ^[*] Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This appeal requires us to determine the meaning of the word "disposal" in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. Plaintiff HMAT Associates, the current owner of contaminated property, was sued by the United States under CERCLA for the costs of cleaning up the site. HMAT sought contribution from Defendant Dowel Associates, the company that sold the land to HMAT, on the ground that Dowel was a prior owner "at the time of disposal," see id. § 9607(a)(2). HMAT concedes that no one dumped waste at the property during Dowel's ownership, but offers two reasons why "disposal" took place during Dowel's tenure. HMAT first advances a "passive" disposal theory: that "disposal" occurred because contamination dumped in the land prior to Dowel's purchase of the property spread during Dowel's ownership. HMAT also offers an "active" disposal theory: that a soil investigation conducted by Dowel to determine whether the land could support construction caused the dispersal of contaminants, and that this constitutes "disposal."

Page 711

On cross-motions for summary judgment, the district court ruled in favor of Dowel. The court rejected HMAT's argument that the spread of contamination unaided by human conduct can confer CERCLA liability and held that any disturbance of contaminants caused by Dowel's soil testing was too insignificant to amount to "disposal." HMAT appeals the court's grant of Dowel's summary judgment motion and the denial of its own motion.

We hold that the passive migration of contamination dumped in the land prior to Dowel's ownership does not constitute disposal. Finding it unnecessary to reach the question whether the movement of contaminants unaided by human conduct can ever constitute "disposal," we conclude that the language of CERCLA's "disposal" definition cannot encompass the spreading of waste at issue here. This conclusion is based on an examination of CERCLA's text, is supported by the structure of the statute, and is consistent with CERCLA's purposes.

Regarding Dowel's soil testing, we hold that there is no threshold level of disturbance required to constitute "disposal," and that HMAT has identified evidence that would justify a factfinder's conclusion that contaminants were spread in the testing. We also hold, however, that because CERCLA clearly contemplates that prospective purchasers be allowed to conduct soil investigations to determine whether property is contaminated, a plaintiff must show not only that a soil investigation has caused the spread of contaminants, but also that the investigation was conducted negligently.

Thus, although we agree with the district court that HMAT's passive theory is not viable, HMAT may be able to proceed on its active theory. Accordingly, we will vacate the district court's grant of summary judgment to Dowel and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

The property at issue in this case, a ten-acre parcel of land in Morris County, New Jersey, was once part of the Sharkey's Farm Landfill (Sharkey's Landfill). Sharkey's Landfill operated as a municipal landfill from 1945 until 1972. During its operation, the landfill received waste from several counties in northern New Jersey. In addition to accepting municipal solid waste, the landfill received approximately 750,000 pounds of hazardous chemical waste from Ciba-Geigy Company, a large pharmaceutical concern. Additional chemical waste from other sources may also have been deposited there. For example, Koppers Chemical Company allegedly disposed of about 3,000,000 gallons of wastewater of unknown composition in the landfill. Between 1966 and 1972, county and state agencies received steady complaints about odors, smoke from fires, lack of proper cover, and the presence of dead animals in the landfill. The landfill was...