1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-27-1996

USA v. CDMG Realty Co

Precedential or Non-Precedential:

Docket 95-5505

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http://digitalcommons.law.villanova.edu/thirdcircuit_1996/82
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 

 NO. 95-5505 

 ___________ 

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 

(Newark N.J. D.C. Civil No. 89-cv-04246) 

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION 

 v. 

CIBA-GEIGY CORPORATION, INC.; CURTISS-WRIGHT CORPORATION; 

HOECHST-CELANESE CORPORATION; KETCHAM AND MC DOUGALL, INC.; 
PFIZER, INC.; OCCIDENTAL PETROLEUM CORPORATION; KOPPERS 

COMPANY, INC.; SHARKEY FARMS, INC.; NICHOLAS ENTERPRISES, 

INC.; PARKER CHEMICAL COMPANY; CHEMICAL WASTE MANAGEMENT, INC. 

(NEWARK N.J. D.C. Civil No. 89-cv-04281) 

 HMAT Associates, Inc., Appellant 

 _________________________________________ 

 

 On Appeal From the United States District Court 

 For the District of New Jersey 

 _________________________________________ 

 

 Argued: March 18, 1996 

Before: BECKER, McKEE, and McKAY, 

 Circuit Judges. 

 (Filed September 27, l996) 

JAMES J. PERICONI, ESQUIRE (ARGUED) 

Periconi & Rothberg, P.C. 

230 Park Avenue, Suite 615 

New York, NY 19169 

Attorneys for Third-Party Plaintiff/Appellant 

R. BRUCE MORRISON, ESQUIRE 

DAVID B. FARER, ESQUIRE (ARGUED) 

JOHN P. QUIRKE, ESQUIRE 

Farer Siegal Fersko 

A Professional Association 

600 South Avenue 

P.O. Box 580 

Westfield, NJ 07091 

Attorneys for Third-Party Defendants/Appellees 

 _________________________ 

 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 42 U.S.C. § 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. 

 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 

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 investigation, conducted in 

September 1981 (three months prior to finalizing its purchase) to 

determine the land's ability to support construction. The soil 

investigation, which was performed by Thor Engineering, involved 

nine drill borings, each twelve to eighteen feet into the ground. 

Thor's logs show that its equipment bored through various waste 

materials and groundwater and that several of the boreholes 

"caved" during the testing. App. 120. 

 In November 1983, the NJDEPE notified Dowel that it was 

investigating the property and that Dowel should cease any 

planned activities at the site. In 1984, the EPA notified Dowel 

that Dowel was potentially liable for the cleanup costs of the 

site and invited it to undertake voluntary cleanup. App. 273. 

 In 1987, Dowel sold the property to HMAT. In the contract 

of sale, Dowel fully disclosed that the property was part of the 

Sharkey Landfill, that the landfill was under investigation by 

state and federal environmental authorities, and that the 

property was part of a possible Superfund site. App. 282. 

 In October 1989, EPA and NJDEPE commenced actions against 

parties potentially liable for the costs of cleaning up the 

Sharkey Landfill and seeking a declaration of future liability. 

HMAT, as the current owner of the property, was named as a 

defendant under CERCLA § 107(a)(1), 42 U.S.C. § 9607(a)(1). 

Dowel was not sued. However, HMAT filed a third-party suit 

against Dowel, seeking contribution from Dowel as a former owner 

of the property "at the time of disposal" pursuant to CERCLA §§ 

107(a)(2) and 113(f). HMAT also pled state law claims. 

 Dowel moved for summary judgment, arguing that under CERCLA, 

prior owners are only liable if they actively engage in waste 

disposal during their ownership of the property. HMAT also moved 

for summary judgment. HMAT challenged Dowel's reading of CERCLA, 

contending that prior owners are liable if they fail to stop the 

migration of contaminants on their property. In addition, HMAT 

argued that Dowel actively engaged in waste disposal within the 

meaning of CERCLA: HMAT submitted an affidavit from Laura 

Truettner, an expert environmental consultant, which asserted 

that Dowel's drill borings exacerbated contamination by mixing, 

shifting, and spreading waste materials. In response, Dowel 

submitted an affidavit from Peter Wilner, the principal of Thor 

Engineering, stating that the boring did not spread or mix any 

materials. HMAT then submitted another affidavit from Truettner, 
which contended that Wilner's affidavit contains misleading 

statements and directly contradicts the contemporaneous record of 

the drilling. 

 As we have noted, the district court granted Dowel's motion 

in full and denied HMAT's cross-motion. The court reasoned that 

mere ownership of previously contaminated property does not 

trigger liability under CERCLA, and that, even accepting HMAT's 

version of the facts, Dowel's drilling activities did not cause a 

significant enough disturbance to trigger liability. HMAT 

appeals the district court's rulings on its CERCLA claims 

(although it accepts the district court's conclusion that Dowel 

is not liable under state law). We exercise plenary review over 

the district court's summary judgment rulings. See, e.g., United 

States v. Capital Blue Cross, 992 F.2d 1270, 1271-72 (3d Cir. 

1993). 

 II. Passive Spreading in a Landfill as Disposal 

 A. Introduction 

 CERCLA is a broad and complex statute aimed at the dangers 

posed by hazardous waste sites. Among other things, CERCLA 

provides a cause of action to recover "response costs" incurred 

in remedying an environmental hazard, 42 U.S.C. § 9607, and 

allows those liable for response costs to seek contribution from 

other liable parties, id. § 9613(f). A plaintiff must meet four 

elements to establish CERCLA liability: (1) that hazardous 

substances were disposed of at a "facility"; (2) that there has 

been a "release" or "threatened release" of hazardous substances 

from the facility into the environment; (3) that the release or 

threatened release has required or will require the expenditure 

of "response costs"; and (4) that the defendant falls within one 

of four categories of responsible parties. Id. § 9607(a); seeUnited 

States v. Alcan Aluminum Corp., 964 F.2d 252, 258-59 (3d 

Cir.), reh'g and reh'g in banc denied, 964 F.2d 271 (3d Cir. 

1992). If these requirements are met, responsible parties are 

liable for response costs regardless of their intent. See id. at 

259 ("CERCLA imposes strict liability on responsible parties."). 

 The parties agree that the first three requirements are met. 

Their dispute concerns whether Dowel is a responsible party. 

CERCLA makes four classes of people liable for response costs or 

contribution: the current owner or operator of a facility, id. § 

9607(a)(1); any person who owned or operated the facility "at the 

time of disposal" of a hazardous substance, id. § 9607(a)(2); any 

person who arranged for disposal or treatment, or arranged for 

transport for disposal or treatment of hazardous substances at 

the facility, § 9607(a)(3); and any person who accepts or 

accepted hazardous substances for transport to sites selected by 

such person, Id. § 9607(a)(4). HMAT contends that Dowel is 

liable as a person who owned or operated the facility "at the 

time of disposal" of a hazardous substance. 

 CERCLA defines "disposal" by incorporating the definition 

used by the Resource Conservation and Recovery Act (RCRA). See42 U.S.C. § 

9601(29) ("The terms 'disposal', 'hazardous waste',

and 'treatment' shall have the meaning provided in section 1004 

of the Solid Waste Disposal Act."). Under RCRA, 
 The term "disposal" means 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(3). Focusing on the breadth of this definition, 

HMAT reads "disposal" to encompass the passive migration of 

contaminants. HMAT offers no evidence that any passive migration 

has occurred here but asks us to take judicial notice that waste 

tends to spread once it is put in the ground, See Office of 

Remedial Response, United States Environmental Protection Agency, 

Superfund Exposure Assessment Manual 8 (1988) [Hereinafter 

Superfund Manual] (waste in landfills tends to migrate due to, 

inter alia, rain, groundwater movement, and wind) and waste 

therefore must have spread during the six years Dowel owned the 

property. Several courts have been sympathetic to this argument. 

See United States v. Waste Indus., Inc., 734 F.2d 159, 164-65 

(4th Cir. 1984) (migration of hazardous substances can constitute 

disposal under RCRA); CPC International, Inc. v. Aerojet-General 

Corp., 759 F. Supp. 1269, 1278 (W.D. Mich. 1991) (the unchecked 

spread of contaminated groundwater qualifies as disposal under 

CERCLA); Stanley Works v. Snydergeneral Corp., 781 F. Supp. 659, 

662-64 (E.D. Cal. 1990) (ongoing migration of hazardous 

substances constitutes disposal under CERCLA); United States v. 

Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981) (spreading of 

hazardous substances constitutes disposal under RCRA), aff'd, 688 

F.2d 204 (3d Cir. 1982); cf. Nurad, Inc. v. William E. Hooper & 

Sons Co., 966 F.2d 837, 845-46 (4th Cir.) (leaking from tanks 

that were deposited prior to the defendants' ownership 

constitutes disposal subjecting the defendant to CERCLA 

liability), cert. denied sub nom. Mumaw v. Nurad, Inc., 506 U.S. 

940 (1992); State of New York v. Almy Bros., Inc., 866 F. Supp. 

668, 676-77 (N.D.N.Y. 1994) (gradual leaking from drums deposited 

prior to the defendants' ownership constitutes disposal under 

CERCLA); In re Hemingway Transport, Inc., 108 B.R. 378, 382 

(Bankr. D. Mass. 1989) (leaking drums constitute CERCLA 

disposal), aff'd, 126 B.R. 650 (D. Mass. 1991), aff'd, 954 F.2d 1 

(1st Cir. 1992). 

 We are unpersuaded. A thorough examination of the text and 

structure of CERCLA convinces us that the passive migration of 

contaminants alleged here does not constitute disposal. Our 

conclusion is based on the plain meaning of the words used in the 

disposal definition and is supported by the structure of CERCLA's 

liability scheme. We also believe that our interpretation is 

consistent with CERCLA's purposes. 

 B. The Language 

 1. The Definition of "Disposal" 

 The definition of disposal begins with "the discharge, 

deposit, injection, dumping, spilling, leaking, or placing of any 

solid waste or hazardous waste into or on any land or water." 42 

U.S.C. § 6903(3). Courts holding that passive migration can 
constitute disposal have focused on the words "leaking" and 

"spilling," terms that generally do not denote active conduct. 

See CPC International, Inc. v. Aerojet-General Corp., 759 F. 

Supp. 1269, 1278 (W.D. Mich. 1991); United States v. Price, 523 

F. Supp. 1055, 1071 (D.N.J. 1981), aff'd, 688 F.2d 204 (3d Cir. 

1982). 

 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. Both "leaking" and 

"spilling" also have meanings that require some active human 

conduct. "Leak" can be defined as "to permit to enter or escape 

through a leak." Webster's Third New International Dictionary, 

Unabridged 1285 (Philip Babcock Gove & the Mirriam-Webster 

Editorial Staff eds., 1986) [hereinafter Webster's]. Similarly, 

"spill" can mean "to cause or allow to pour, splash, or fall 

out." Id. at 2195. Meaning derives from context, hence the 

constructional canon noscitur a sociis, which states that one may 

infer meaning by examining the surrounding words. The words 

surrounding "leaking" and "spilling" -- "discharge," "deposit," 

"injection," "dumping," and "placing" -- all envision a human 

actor. In the context of these other words, then, Congress may 

have intended active meanings of "leaking" and "spilling." SeeEcodyne 

Corp. v. Shah, 718 F. Supp. 1454, 1457 (N.D. Cal. 1989); 

Robert L. Bronston, Note, The Case Against Intermediate Owner 

Liability for Passive Migration of Hazardous Waste, 93 Mich. L. 

Rev. 609, 616 (1994). 

 But we need not address this question in the broad terms of 

whether disposal always requires active human conduct. Even if 

it does not, we conclude that the passive migration at issue in 

this case cannot constitute disposal. While "leaking" and 

"spilling" may not require affirmative human conduct, neither 

word denotes the gradual spreading of contamination alleged here. 

A common definition of "leak" -- and the one most favorable to 

HMAT -- is "to enter or escape through a hole, crevice, or other 

opening." Webster's, supra at 1285. This definition requires 

that a substance "leak" from some opening. For example, the 

definition would encompass the escape of waste through a hole in 

a drum. But HMAT has offered no evidence of leaking drums. 

Compare, e.g., Nurad, Inc. v. William E. Hooper & Sons Co., 966 

F.2d 837, 846 (4th Cir.) (the plaintiff presented evidence 

showing that tanks had leaked), cert. denied sub nom. Mumaw v. 

Nurad, Inc., 506 U.S. 940 (1992). And there is no other evidence 

that waste escaped from any opening during Dowel's ownership. 

 The definition of "spilling" is also unavailing. Although 

"spilling" too sometimes denotes the movement of liquid in the 

absence of human action, such a definition does not cover the 

spreading of waste at issue here. Passive definitions of "spill" 

suggest a rapid torrent, not gradual passive migration over the 

course of several years. See Webster's, supra at 2195 (defining 

"spill" as, inter alia, "to flow, run, or fall out, over, or off 

with waste, loss, or scattering as the result" and as "to come, 

go, or pass with a turbulent rush[; to] pour in an unrestrained, 

profuse, or disorderly manner"). Consider, for example, an "oil 

spill." 
 2. A Comparison With "Release" 

 It is especially unjustified to stretch the meanings of 

"leaking" and "spilling" to encompass the passive migration that 

generally occurs in landfills in view of the fact that another 

word used in CERCLA, "release," shows that Congress knew 

precisely how to refer to this spreading of waste. A prior owner 

who owned a waste site at the time of "disposal" is only liable 

in the event of a "release" or "threatened release." 42 U.S.C. § 

9607. CERCLA defines release in relevant part as follows: 

 The term "release" means any spilling, leaking, 

 pumping, pouring, emitting, emptying, discharging, 

 injecting, escaping, leaching, dumping, or disposing 

 into the environment (including the abandonment or 

 discarding of barrels, containers, and other closed 

 receptacles containing any hazardous substance or 

 pollutant or contaminant) . . . . 

42 U.S.C. § 9601(22). The definition of "release" is thus 

broader than that of "disposal": "release" encompasses 

"disposing" and some elements of the "disposal" definition and 

also includes some additional terms. 

 Most importantly, the definition of "release" includes the 

term "leaching," which is not mentioned in the definition of 

"disposal." "Leaching" is "the process or an instance of 

separating the soluble components from some material by 

percolation." Webster's, supra at 1282. Leaching of 

contaminants from rain and groundwater movement is a principal 

cause of contaminant movement in landfills, see Superfund Manual, 

supra at 8, and is the most predominant cause of groundwater 

contamination from landfills, Edward Repa & Charles Kufs, 

Leachate Plume Management 2 (1985). The word "leaching" is 

commonly used in the environmental context to describe this 

migration of contaminants. See, e.g., Steven Ferrey, The Toxic 

Time Bomb: Municipal Liability for the Cleanup of Hazardous 

Waste, 57 Geo. Wash. L. Rev. 197, 207 n.34 (1988) ("Leachate is 

liquid or water soluble contaminated substances that migrate away 

from the point source of contamination in groundwater or surface 

water, often influenced by rain and normal water table 

activities. Such a phenomenon is described as 'leaching' of 

contaminants.") Congress's use of the term "leaching" in the 

definition of "release" demonstrates that it was aware of the 

concept of passive migration in landfills and that it knew how to 

explicitly refer to that concept. 

 . Yet Congress made prior owners liable only if they owned 

land at the time of "disposal," not at the time of "release." 

 3. "At the Time of Disposal" 

 Our conclusion that the meaning of the words in the 

"disposal" definition cannot cover the passive migration alleged 

in this case is buttressed by the language of CERCLA's liability 

provision. If the spreading of contaminants is constant, as HMAT 

would have us assume, characterizing liable parties as "any 

person who at the time of disposal . . . owned or operated any 
facility," 42 U.S.C. § 9607(a)(2), would be a rather complicated 

way of making liable all people who owned or operated a facility 

after the introduction of waste into the facility. See Snediker 

Developers Ltd. Partnership v. Evans, 773 F. Supp. 984, 989 (E.D. 

Mich. 1991); Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 1457 (N.D. 

Cal. 1989); In re Diamond Reo Trucks, Inc., 115 B.R. 559, 565 

(Bankr. W.D. Mich. 1990). Furthermore, there would be no need 

for the separate responsible party category of current owner or 

operator, id. § 9607(a)(1). See Ecodyne Corp., 718 F. Supp. at 

1457. Although CERCLA is not written with great clarity, we 

will not impute to Congress an intent to set up a simple 

liability scheme through a convoluted methodology. 

 C. Structure: The Innocent Owner Defense 

 Our conclusion that the language of CERCLA's definition of 

"disposal" does not include the passive migration alleged here is 

also supported by a significant aspect of CERCLA's liability 

scheme, the innocent owner defense. Since the 1986 Superfund 

Amendments and Reauthorization Act (SARA), Pub. L. No. 99-499, 

100 Stat. 1613 (1986) (codified at 42 U.S.C. §§ 9601-9675), 

CERCLA has exempted certain "innocent owners" from liability. 

 CERCLA provides a defense to liability if the defendant can 

prove that the release or threatened release was caused solely by 

an act or omission of a third party. 42 U.S.C. § 9607(b)(3). 

The defense is generally not available if the third party causing 

the release is in the chain of title with the defendant. See 42 

U.S.C. § 9601(35)(A). However, the defense is available in such 

circumstances if the person claiming the defense is an "innocent 

owner." To establish the innocent owner defense the defendant 

must show that "the real property on which the facility is 

located was acquired by the defendant after the disposal or 

placement of the hazardous substance on, in, or at the facility" 

and that "[a]t the time the defendant acquired the facility the 

defendant 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, in, or at the facility." 

 Because CERCLA conditions the innocent owner defense on the 

defendant's having purchased the property "after the disposal" of 

hazardous waste at the property, "disposal" cannot constitute the 

allegedly constant spreading of contaminants. Otherwise, the 

defense would almost never apply, as there would generally be no 

point "after disposal." See United States v. Petersen Sand and 

Gravel, Inc., 806 F. Supp. 1346, 1351-52 (N.D. Ill. 1992); In re 

Diamond Reo Trucks, Inc. v. City of Lansing, 115 B.R. 559, 566 

n.3 (Bankr. W.D. Mich. 1990); Bronston, supra at 627-28. We 

think it unlikely that Congress would create a basically useless 

defense. 

 The innocent owner defense's apparent limitation to current 

owners also supports the conclusion that "disposal" does not 

encompass the passive spreading alleged here. The provision 

establishing the innocent owner defense states: "Nothing in this 

paragraph or in section 9607(b)(3) of this title [, which 

provides the causation defenses including the third party 

defense,] shall diminish the liability of any previous owner or 
operator who would be otherwise liable under this chapter." 42 

U.S.C. § 9601(35)(C). This language certainly suggests that the 

innocent owner defense is unavailable to prior owners or 

operators. 

 While the question whether the innocent owner defense is 

available only to present owners is not before us -- and we do 

not decide the issue -- we note that such a limitation makes 

sense only if passive spreading of waste in a landfill is not 

included in disposal. If passive migration is excluded from 

"disposal," past owners will generally only be liable as owners 

"at the time of disposal" when they have committed or allowed 

affirmative acts of disposal on their property. They would thus 

have little need for the innocent owner defense, which requires, 

inter alia, that a defendant did not "cause[] or contribute[] to 

the release or threatened release," 42 U.S.C. § 9601(35)(D); 

"exercised due care with respect to the hazardous substance 

concerned," id. § 9607(b)(3)(a); and "took precautions against 

foreseeable acts or omissions of any such third party [causing 

the release] and the consequences that could foreseeably result 

from such acts or omissions," id. § 9607(b)(3)(b). On the other 

hand, if prior owners were liable because waste spread during 

their tenure and the innocent owner defense is available only to 

current owners, prior owners would be in a significantly worse 

position than current owners: they would be liable for passive 

migration of waste even if they had no reason to know of the 

waste's presence. We do not believe that this was Congress's 

intent. 

 D. CERCLA's Purposes 

 We have explained our confidence that the meaning of the 

words defining "disposal" does not encompass the gradual 

spreading of waste in a landfill and that this conclusion is 

supported by the structure of the innocent owner defense. We 

also conclude that this reading of "disposal" is consistent with 

CERCLA's purposes. 

 Congress enacted CERCLA with two principal goals in minds -- 

to facilitate the cleanup of potentially dangerous hazardous 

waste sites, Tippins Inc. v. USX Corp., 37 F.3d 87, 92 (3d Cir. 

1994), and to force polluters to pay the costs associated with 

their pollution, United States v. Alcan Aluminum, 964 F.2d 252, 

257-58 (3d Cir. 1992). See United States v. USX Corp., 68 F.3d 

811, 814 (3d Cir. 1995). Our holding is clearly consistent with 

the latter purpose. Those who owned previously contaminated 

property where waste spread without their aid cannot reasonably 

be characterized as "polluters"; excluding them from liability 

will not let those who cause the pollution off the hook. And, 

many of these owners will pay for the pollution: if they 

disclose the fact that the land contains waste, their selling 

price will reflect the cost of CERCLA liability. If they have 

knowledge of contamination and do not disclose it to a 

transferee, they are liable for response costs even after the 

transfer. 42 U.S.C. § 9601(35)(C). The only prior owners who 

will not pay any cleanup costs are those who bought and sold the 

land with no knowledge that the land is contaminated. 
 And our holding will not undermine the goal of facilitating 

the cleanup of potentially dangerous hazardous waste sites. Even 

if owners of previously contaminated land can evade liability by 

transferring the land, ample incentives remain to promote 

cleanup. See United States v. Petersen Sand and Gravel, Inc., 

806 F. Supp. 1346, 1353 (N.D. Ill. 1992); Bronston, supra at 637- 

40. Present owners and operators remain strictly liable for 

the costs of cleanup, 42 U.S.C. § 9607(a)(1), as do some prior 

owners, id. § 9607(a)(2), people who arranged for disposal, id. § 

9607(a)(3), and transporters of hazardous substances, id. § 

9607(a)(4). Moreover, a number of provisions ensure that 

contamination will be discovered and the fact of contamination 

disclosed if the land is transferred. CERCLA imposes criminal 

liability (including prison sentences) for failure to report a 

"release" of hazardous substances above a certain threshold. See42 U.S.C. 

§ 9603. As mentioned, if an owner transfers land that 

it knows to be contaminated without disclosing the contamination, 

it remains liable even after the transfer. 42 U.S.C. § 

9601(35)(C). In addition, the innocent owner defense encourages 

potential buyers to investigate the possibility of contamination 

before a purchase. See 42 U.S.C. § 9601(35)(B) (in order to 

claim the innocent owner defense, a defendant must have 

undertaken all appropriate inquiry). 

 Thus, for the reasons we have stated, we agree with the 

district court that HMAT cannot proceed on its "passive" theory 

of disposal: the movement of contaminants alleged here does not 

constitute "disposal." However, because we conclude that HMAT 

may proceed on its "active" theory of disposal, the issue to 

which we now turn, we will vacate the court's order granting 

summary judgment to Dowel on HMAT's CERCLA claim. 

 III. Soil Investigation as Disposal 

 Having concluded that passive migration does not constitute 

disposal, we now consider HMAT's other asserted basis of 

liability. HMAT argues that Dowel's soil investigation, which 

was meant to determine the land's ability to support 

construction, caused the mixing, shifting, and spreading of 

contaminants and that this constitutes disposal. Although the 

district court suggested that HMAT's evidence of spreading was 

"speculative," it did not resolve whether the evidence was 

sufficient to allow a factfinder to conclude that the drilling 

caused any subsurface mixing. Instead, the court concluded that 

even accepting HMAT's version of events, Dowel's drilling "fell 

short of that conduct accepted as being enough of a disturbance 

to constitute disposal." According to the district court, only 

"significant disturbance of already contaminated soil constitutes 

disposal." 

 A. No Threshold to Disposal 

 We disagree with the district court's reading of "disposal." 

Under 42 U.S.C. § 6903(3), "disposal" is defined in part as the 

"discharge" or "placing" of waste "into or on any land or water." 

"Disposal" thus includes not only the initial introduction of 

contaminants onto a property but also the spreading of 
contaminants due to subsequent activity. See Webster's, supra at 

644 (defining "discharge" in part as "to set at liberty," 

"release from confinement, custody, or care," "pour forth," or 

"emit"); id. at 1727 (defining "place" in part as "cause to rest 

or lie"); Kaiser Aluminum & Chemical Corp. v. Catellus 

Development Corp., 976 F.2d 1338, 1342-43 (9th Cir. 1992) 

("CERCLA's definition of 'disposal' expressly encompasses the 

'placing of any . . . hazardous waste . . . on any land.' 42 

U.S.C. § 6903(3). Congress did not limit the term to the initial 

introduction of hazardous material onto property."); Tanglewood 

East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1573 (5th 

Cir. 1988) ("[T]his definition of disposal does not limit 

disposal to a one-time occurrence -- there may be other disposals 

when hazardous substances are moved, dispersed, or released 

during landfill excavations and fillings."). 

 Although the cases cited above involved a greater 

disturbance of contaminants than that alleged here, the dispersal 

of contaminants need not reach a particular threshold level in 

order to constitute "disposal." "Disposal" consists of "the 

discharge . . . or placing of any solid waste or hazardous waste 

into or on any land or water." 42 U.S.C. § 6903(3) (emphasis 

added). There is no exception for de minimis disturbances. Cf.United 

States v. Alcan Aluminum Corp., 964 F.2d 252, 260 (3d Cir. 

1992) ("[C]ourts that have addressed this issue [whether the term 

"hazardous substance" includes any quantitative requirement] have 

almost uniformly held that CERCLA liability does not depend on 

the existence of a threshold quantity of a hazardous 

substance."). The fact that a defendant's dispersal of 

contaminants is trivial may provide a ground to allocate less 

liability to that defendant, but it is not a defense to 

liability. 

 B. The Evidence 

 The evidence presented by both parties shows that a genuine 

issue of material fact remains as to whether Dowel's drilling 

caused the dispersal of contaminants. HMAT presented the 

drilling logs and report of Thor Engineering, the firm that 

performed Dowel's soil test. According to these documents, Thor 

made nine drill borings twelve to eighteen feet into the ground 

and extracted columns of soil for study. The drill bored through 

garbage, miscellaneous fill from the dump, cinders, a black 

substance that appeared to be petroleum-based, and ground water. 

The documents show that al least three of the holes "caved" 

during drilling. App. 120. 

 HMAT also submitted an affidavit from Laura Truettner, an 

expert environmental consultant, which asserted that Dowel's 

drilling spread contamination. First, because Thor's logs show 

that the drill encountered waste materials, natural soil, and 

groundwater, and that several boreholes "caved," Truettner 

concludes that mixing of these materials occurred. Second, 

Thor's report and logs show no evidence that the drilling 

equipment was decontaminated between boreholes and before the 

equipment was moved from the landfill. Thus, Truettner 

maintains, it is probable that contaminated material was spread 
between boreholes and along roads used for access by the drilling 

equipment. 

 Dowel, in response, submitted an affidavit from Peter 

Wilner, the principal of Thor Engineering. Wilner states that he 

personally directed and oversaw the drilling at issue. He 

asserts that "no drills were used; no 'cuttings' were generated; 

no soils or other materials were in any way spread around the 

premises; and no holes were left open, allowing for any 

infiltration of foreign materials." He also claims that "The 

'open' boring method used for the . . . borings performed at the 

Premises does not cause the underground mixing or shifting of 

subsurface materials." 

 HMAT then submitted another affidavit from Truettner. 

Truettner contends that Wilner's affidavit contains misleading 

statements and directly contradicts the contemporaneous record of 

the drilling. She first casts doubt on Wilner's claim that he 

was present during the drilling, pointing out that the drilling 

logs indicate the presence of several people but make no mention 

of Wilner. She represents that it is industry practice to list 

all representatives at the site during the drilling. 

 Truettner then states that, although Wilner's statement that 

no drills were used is technically correct because a "split spoon 

sampler" was used, the distinction is irrelevant: materials were 

disturbed and a hole was created. According to Truettner, "anytype of 

sampling activity generates cuttings because the split 

spoon sampler knocks material off the borehole walls." 

 Furthermore, Truettner attacks the implications of Wilner's 

statement that no holes were left open. According to Truettner, 

in order for the holes to have been closed one of three things 

would have had to occur: (1) the holes were filled with material 

brought from off-site; (2) they were filled with material from 

the site itself; or (3) they were allowed to collapse in on 

themselves. Truettner contends that the first scenario is 

unlikely in light of the documentary evidence: the cost estimate 

of the drilling does not reflect the costs of fill material and 

labor. And, if either of the other two scenarios occurred, the 

act of filling the holes would cause mixing of materials on the 

property. 

 Finally, Truettner asserts that Wilner's statement that 

Thor's boring method does not cause mixing of subsurface of 

material is contradicted by the drilling logs, which show that at 

least three of the holes "caved." "The process of caving," 

Truettner states, "will absolutely cause the mixing and shifting 

of subsurface materials." 

 Given this evidence, a genuine dispute remains as to whether 

Dowel's drilling caused the dispersal of contaminants. A factual 

dispute is genuine if the evidence is such that a reasonable 

factfinder could find in favor the nonmoving party. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). HMAT's evidence 

that Thor's equipment went through waste, soil, and groundwater 

and that several boreholes "caved", in combination with its 

expert's opinion, is sufficient to support a finding that a 

dispersal of contaminants occurred. Dowel's evidence, that 

despite the contact between its equipment, waste, soil, and 
groundwater, its boring method caused no mixing, is sufficient to 

support the opposite finding. Thus summary judgment in favor of 

either party is inappropriate. 

 C. Soil Investigation 

 As we have explained, HMAT has identified evidence from 

which a factfinder could conclude that Dowel has caused a 

dispersal of contaminants. Ordinarily, that would be sufficient 

to submit the question of whether a "disposal" occurred to a 

factfinder. However, this is not an ordinary case: the alleged 

act of disposal consists of a soil investigation, and CERCLA 

clearly contemplates that some soil investigation be allowed to 

examine contaminated property. Thus, it is not enough for a 

plaintiff to show that a soil investigation has caused the spread 

of contaminants. Rather, we conclude that in order to establish 

that "disposal" has occurred based on a soil investigation, a 

plaintiff must also show that the investigation was conducted 

negligently. 

 CERCLA's innocent owner defense encourages prospective 

property buyers to conduct soil investigations. The innocent 

owner defense requires, inter alia, that "[a]t the time the 

defendant acquired the facility the defendant 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, 

in, or at the facility." 42 U.S.C. § 9601(35)(A)(i) (emphasis 

added). CERCLA provides explicit guidance on how a defendant is 

to establish that it had "no reason to know" of a prior disposal: 

 To establish that the defendant had no reason to 

 know . . . the defendant must have undertaken, at the 

 time of acquisition, all appropriate inquiry into the 

 previous ownership and uses of the property consistent 

 with good commercial or customary practice in an effort 

 to minimize liability. For purposes of the preceding 

 sentence the court shall take into account any

 specialized knowledge or experience on the part of the 

 defendant, the relationship of the purchase price to 

 the value of the property if uncontaminated, commonly 

 known or reasonably ascertainable information about the 

 property, the obviousness of the presence or likely 

 presence of contamination at the property, and the 

 ability to detect such contamination by appropriate 

 inspection. 

Id. § 9601(35)(b). CERCLA thus contemplates that prospective 

purchasers "undertake[] . . . all appropriate inquiry" and will 

engage in "appropriate inspection." 

 In order to give effect to the innocent owner defense and 

its requirement that prospective purchasers engage in appropriate 

inquiry and inspection, an "appropriate" soil investigation 

cannot itself trigger CERCLA liability. Otherwise, prospective 

purchasers who by diligently inspecting for contamination cause 

the dispersal of any contaminants will find themselves liable for 

causing a "disposal." And the innocent owner defense would offer 

such prospective purchasers no protection: if they buy the 

property after discovering contamination, they will be ineligible 
for the defense because they will not be "innocent" (i.e., they 

will "know and ha[ve] reason to know" of a prior disposal, id. § 

9601(35)); if they do not buy the property, they will be 

ineligible for the defense because they will not be "owners" 

(i.e., they will not have "acquired the facility" as required by 

42 U.S.C. § 9601(35)(A)). In order to give the defense effect, 

then, an "appropriate" soil investigation cannot constitute 

disposal. 

 But a party cannot escape liability for performing a soil 

investigation negligently and thereby unnecessarily spreading 

pollution. Several CERCLA provisions suggest that persons 

otherwise insulated from CERCLA liability may nonetheless become 

liable if they act negligently. In order to take advantage of a 

third-party defense (i.e., that a release was caused solely by a 

third party), a defendant must show that "he exercised due care 

with respect to the hazardous substance concerned, taking into 

consideration the characteristics of such hazardous substance, in 

light of all relevant facts and circumstances." 42 U.S.C. § 

9607(b)(3)(a). And another provision, 42 U.S.C. § 9607(d)(1), 

insulates from liability actions consistent with the National 

Contingency Plan unless they are negligently performed: 

 [N]o person shall be liable under this subchapter for 

 costs or damages as a result of rendering care, 

 assistance, or advice in accordance with the National 

 Contingency Plan ("NCP") or at the direction of an 

 onscene coordinator appointed under such a plan, with 

 respect to an incident creating a danger to public 

 health or welfare or the environment as a result of any 

 releases of a hazardous substance or threat thereof. 

 This paragraph shall not preclude liability for costs 

 or damages as the result of negligence on the part of 

 such person. 

42 U.S.C. § 9697(D)(1). These provisions are themselves 

inapplicable to the issue at hand. However, they express a 

useful principle for determining when an action that is exempted 

from liability becomes so inconsistent with CERCLA's purposes 

that it is no longer so insulated, and this informs our judgment. 

We conclude that only "appropriate" soil investigations -- i.e., 

those that do not negligently spread contamination -- fall 

outside the definition of "disposal." Such a rule best 

harmonizes CERCLA's clear intention to allow soil investigations 

and its goal of remedying hazardous waste sites. 

 We recognize that the soil investigation at issue here was 

not meant to discover the presence of contamination but was aimed 

at assessing the land's ability to support construction. 

However, we conclude that the purpose of the investigation is 

irrelevant. Determining the motive of the investigating party 

seems a costly and difficult inquiry. Moreover, we do not wish 

to deter the productive use of property by discouraging soil 

investigations aimed at assessing development possibilities. 

 In addition to applying the wrong test of "disposal," the 

district court did not focus on whether Dowel's soil testing was 

negligently performed, and we believe that the parties should 

have a chance to add to the record on this issue. Therefore, we 
will vacate the district court's order dismissing HMAT's CERCLA 

claim and remand for further proceedings. 

 IV. Conclusion 

 For the foregoing reasons, the passive spreading of 

contamination in a landfill does not constitute "disposal" under 

CERCLA. Soil testing that disperses contaminants, however, may 

constitute "disposal" and HMAT has identified evidence that would 

justify a factfinder's conclusion that contaminants were 

dispersed in Dowel's testing. Nevertheless, because CERCLA 

contemplates that some soil investigation be allowed, HMAT must 

show not only that the soil investigation caused the spread of 

contaminants but also that the investigation was conducted 

negligently. The judgment of the district court will therefore 

be vacated and the case remanded for further proceedings 

consistent with this opinion.