U.S. v. CDMG Realty Co.
| Decision Date | 27 September 1996 |
| Docket Number | K-H,No. 95-5505,CIBA-GEIGY,95-5505 |
| Citation | 96 F.3d 706 |
| Parties | , 65 USLW 2215, 26 Envtl. L. Rep. 21,589 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.;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.; |
| Court | U.S. Court of Appeals — Third Circuit |
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.
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."
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.
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 closed to further disposal in 1972.
The Environmental Protection Agency (EPA) and the New Jersey Department of Environmental Protection and Energy (NJDEPE) began investigating Sharkey's Landfill in the mid to late 1970s. In 1982, the EPA placed Sharkey's Landfill on the National Priorities List of Hazardous Waste Sites.
In December 1981, Dowel purchased the property. The land was vacant at the time of purchase, and it remained vacant during Dowel's ownership. Neither Dowel nor any other person deposited waste at the site during Dowel's term of ownership. Dowel's only activity on the land was a soil...
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