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. e du/thir dc ir c uit_1996/82UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

NO. 95-5505

___________

UNITED STATES OF AMERICA

v.

CDMG REALTY CO., a limited partnership; HELEN E. RI NGLIEB, individually, and as general partner in CDMG REALTY CO.; HMAT ASSOCIATES, INC.; TOWNSHIP OF PARSIPPANY-TROY HILLS; ALLIED-SIGNAL, INC; BEAZER MATERIALS & SERVICES, IN C.; CIBA-GEIGY CORPORATION; HOECHST CELANESE CORP.; OCC IDENTAL CHEMICAL CORP.; PFIZER, INC.; CARL GULICK, INC.; BE CTON DICKINSON, INC.; WARNER-LAMBERT COMPANY; AMERICAN T ELEPHONE AND TELEGRAPH COMPANY; BROWNING-FERRIS INDUSTRIES O F NORTH JERSEY, INC.; INDUSTRIAL CIRCUITS COMPANY; AUTOMATI C SWITCH COMPANY; ROWE INTERNATIONAL INC.; HOSOKAWA MICRON I NTERNATIONAL INC.; SCOVILL INC.; K-H CORPORATION ON BEHALF OF MA GOR CAR; LESLIE CONTROLS COMPANY, INC.; NESOR ALLOY CORPORAT ION; SANDOZ PHARMACEUTICALS CORPORATION; KIDDE INDUSTRIES, INC. (named in the complaint as Hanson Industries); RAYONIER IN C., (formerly ITT Rayonier, Inc.); WAGNER ELECTRIC CORP ORATION (named in the Complaint as Cooper Industries, Inc.) ; THE SHERWIN-WILLIAMS COMPANY; KDI/TRIANGLE ELECTRONICS, INC.; STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION; J OHN DUSENBURY COMPANY; SAFETY LIGHT CORPORATION, (named in the Co mplaint as USR Industries, Inc.); THE BOC GROUP, INC.; L.E. CARPEN TER & CO.; THE MENNEN COMPANY; METEM CORPORATION; NSK CORPORAT ION; CERAMIC MAGNETICS, INC.; AIR PRODUCTS & CHEMICALS, INC.; RO CKLAND CORPORATION; SIKA CORPORATION; CARBONE USA CORPORAT ION; NEW JERSEY TRANSIT CORPORATION; NEW JERSEY BUS OPERATIONS, INC.

v.

THE SHARKEY LANDFILL AGREEMENT GROUP, an organizati on of Defendants in Civil Action Number 89-4246 (NHP), fo r themselves and on behalf of other Settling Defendan ts whose contribution claims they may assert pursuant to an assignment of rights and HOECHST CELANESE CORPORATI ON, one of its members; BEAZER MATERIALS & SERVICES, INC.; OCC IDENTAL

CHEMICAL CORPORATION; HMAT ASSOCIATES, INC.,

Third-Party Plaintiffs

v.

ADRON, INC.; AMERACE CORPORATION and SEQUA CORPORAT ION; AIR PRODUCTS & CHEMICALS, INC.; BASIC, INC.; THE BO C GROUP, INC.; CARBONE U.S.A. CORP.; CERAMIC MAGNETICS, INC.; COLL OID CHEMICAL, INC.; COOPER INDUSTRIES, INC.; HANSON INDUSTRIES; I NTERNATIONALENGRAVING CORP.; INTERNATIONAL PAPER COMPANY; ITT RAYONIER, INC.;

JOHN DUSENBURY COMPANY, INC.; KDI/TRIANGLE ELECTRON ICS 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 MANUFACTU RING CO., INC; ROCKLAND CORPORATION; SANDOZ PHARMACEUTICALS CORPORATION; THE SHERWIN-WILLIAMS COMPANY; SIKA CORPORATION; USR IND USTRIES, INC. and TOWNSHIP OF BLOOMFIELD; TOWN OF BOONTON; TOWNSH IP OF BOONTON; BOROUGH OF BUTLER; TOWNSHIP OF THE BOROUGH OF CALDW ELL; TOWNSHIP OF CHATHAM; CITY OF CLIFTON; TOWNSHIP OF D ENVILLE; TOWN OF DOVER; TOWNSHIP OF EAST HANOVER; COUNTY OF ESSEX; TOWNSHIP OF FAIRFIELD; TOWNSHIP OF GLEN RIDGE BOROU GH; BOROUGH OF HALEDON; TOWNSHIP OF HANOVER; CITY OF JE RSEY CITY; BOROUGH OF KINNELON; BOROUGH OF LINCOLN PARK; TOWNSHIP OF LITTLE FALLS; TOWNSHIP OF LIVINGSTON; T OWNSHIP OF MILLBURN; TOWNSHIP OF MINE HILL; TOWNSHIP OF MON TCLAIR; 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 O F RANDOLPH; BOROUGH OF RIVERDALE; TOWNSHIP OF ROCKAWAY; CITY OF SUMMIT; BOROUGH OF TOTOWA; BOROUGH OF VICTORY GARDENS; TOWN SHIP OF WEST CALDWELL; TOWNSHIP OF WEST ORANGE; BOROUGH OF WHART ON; VINCENT APICE AND SON; FRANK M. BACE DISPOSAL, INC.; CALDWE LL TRUCKING CO., INC.; CARNER BROS., INC.; CENTRAL WASTE AND MI LL 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. SANITAT ION CO.; R. LOBOSCO AND SONS, INC.; MARANGI SANITATION, INC. ; FRANK J. MARINARO; MERCER WASTE REMOVAL CO.; ANTHONY MIELE; MORRIS COUNTY; WEST ESSEX DISPOSAL C O., 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 partner ship; HERBERT M. IRIS, individually and as a general part ner 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 PRO TECTION

v.

CIBA-GEIGY CORPORATION, INC.; CURTISS-WRIGHT CORPORATION; HOECHST-CELANESE CORPORATION; KETCHAM AND MC DOUGAL L, INC.;PFIZER, INC.; OCCIDENTAL PETROLEUM CORPORATION; KOP PERS

COMPANY, INC.; SHARKEY FARMS, INC.; NICHOLAS ENTERP RISES, INC.; PARKER CHEMICAL COMPANY; CHEMICAL WASTE MANAG EMENT, INC.

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

HMAT Associates, Inc., Appellant

________________________________________ _

On Appeal From the United States District C ourt 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 meani ng of the word "disposal" in the Comprehensive Environmental Respo nse, 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 State s under CERCLA for the costs of cleaning up the site. HMAT sought contribution from Defendant Dowel Associates, the company that s old 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 con cedes that noone dumped waste at the property during Dowel's own ership, but

offers two reasons why "disposal" took place during Dowel's tenure. HMAT first advances a "passive" disposal t heory: that "disposal" occurred because contamination dumped in the land prior to Dowel's purchase of the property spread du ring Dowel's ownership. HMAT also offers an "active" disposal t heory: that a soil investigation conducted by Dowel to determine whether the land could support construction caused the dispersa l of contaminants, and that this constitutes "disposal." On cross-motions for summary judgment, the dis trict court ruled in favor of Dowel. The court rejected HMAT's argument that the spread of contamination unaided by human conduc t can confer CERCLA liability and held that any disturbance of c ontaminants caused by Dowel's soil testing was too insignifican t to amount to "disposal." HMAT appeals the court's grant of Dowe l's summary judgment motion and the denial of its own motion. We hold that the passive migration of contamin ation dumped in the land prior to Dowel's ownership does not con stitute disposal. Finding it unnecessary to reach the ques tion whether the movement of contaminants unaided by human condu ct can ever constitute "disposal," we conclude that the languag e of CERCLA's "disposal" definition cannot encompass the spreadin g of waste at

issue here. This conclusion is based on an examina tion 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 t here is no threshold level of disturbance required to constitu te "disposal," and that HMAT has identified evidence that would ju stify a factfinder's conclusion that contaminants were spre ad in the testing. We also hold, however, that because CERCL A clearly contemplates that prospective purchasers be allowed to conduct soil investigations to determine whether property i s 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 cour t that HMAT's passive theory is not viable, HMAT may be able to p roceed on its active theory. Accordingly, we will vacate the dis trict court's grant of summary judgment to Dowel and remand for f urther 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 Land fill operated as a municipal landfill from 1945 until 1972. Duri ng its operation, the landfill received waste from several counties in northern New Jersey. In addition to accepting muni cipal 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 ex ample, Koppers Chemical Company allegedly disposed of about 3,000, 000 gallons of wastewater of unknown composition in the landfill. Between 1966and 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 land fill 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 Nati onal

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 per son deposited waste at the site during Dowel's term of ownership. Dowel's only activity on the land was a soil investigation, cond ucted in September 1981 (three months prior to finalizing it s purchase) to determine the land's ability to support constructio n. The soil investigation, which was performed by Thor Engineer ing, involved nine drill borings, each twelve to eighteen feet in to the ground. Thor's logs show that its equipment bored through v arious waste materials and groundwater and that several of the b oreholes "caved" during the testing. App. 120. In November 1983, the NJDEPE notified Dowel th at it was investigating the property and that Dowel should ce ase any planned activities at the site. In 1984, the EPA n otified Dowel that Dowel was potentially liable for the cleanup c osts 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 wa s part of the Sharkey Landfill, that the landfill was under inves tigation by state and federal environmental authorities, and th at the property was part of a possible Superfund site. Ap p. 282. In October 1989, EPA and NJDEPE commenced acti ons against parties potentially liable for the costs of cleanin g up the Sharkey Landfill and seeking a declaration of futur e liability. HMAT, as the current owner of the property, was nam ed as a defendant under CERCLA § 107(a)(1), 42 U.S.C. § 960 7(a)(1). Dowel was not sued. However, HMAT filed a third-pa rty 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 cla ims. Dowel moved for summary judgment, arguing that under CERCLA, prior owners are only liable if they actively engag e in waste disposal during their ownership of the property. H MAT also moved for summary judgment. HMAT challenged Dowel's read ing of CERCLA, contending that prior owners are liable if they fai l to stop the migration of contaminants on their property. In ad dition, HMAT argued that Dowel actively engaged in waste disposa l within the meaning of CERCLA: HMAT submitted an affidavit fro m Laura Truettner, an expert environmental consultant, whic h asserted that Dowel's drill borings exacerbated contaminatio n by mixing, shifting, and spreading waste materials. In respon se, Dowel submitted an affidavit from Peter Wilner, the princ ipal of Thor Engineering, stating that the boring did not spread or mix any

materials. HMAT then submitted another affidavit f rom Truettner,which contended that Wilner's affidavit contains mi sleading

statements and directly contradicts the contemporan eous record of the drilling. As we have noted, the district court granted D owel'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 acce pting HMAT's version of the facts, Dowel's drilling activities d id 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 conclusio n that Dowel is not liable under state law). We exercise plenar y review over the district court's summary judgment rulings. See , e.g., United States v. Capital Blue Cross, 992 F.2d 1270, 1271-7 2 (3d Cir. 1993).

II. Passive Spreading in a Landfill as Dis posal

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 cos ts" incurred in remedying an environmental hazard, 42 U.S.C. § 9 607, and allows those liable for response costs to seek cont ribution from other liable parties, id. § 9613(f). A plaintiff m ust meet four elements to establish CERCLA liability: (1) that h azardous substances were disposed of at a "facility"; (2) th at there has

been a "release" or "threatened release" of hazardo us substances from the facility into the environment; (3) that th e release or threatened release has required or will require the expenditure of "response costs"; and (4) that the defendant fal ls within one of four categories of responsible parties. Id. § 9 607(a); seeUnited States v. Alcan Aluminum Corp., 964 F.2d 252, 258-5 9 (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 inten t. See id. at 259 ("CERCLA imposes strict liability on responsibl e parties."). The parties agree that the first three require ments are met. Their dispute concerns whether Dowel is a responsib le party. CERCLA makes four classes of people liable for resp onse costs or contribution: the current owner or operator of a f acility, id. § 9607(a)(1); any person who owned or operated the fa cility "at the time of disposal" of a hazardous substance, id. § 9 607(a)(2); any person who arranged for disposal or treatment, or a rranged for transport for disposal or treatment of hazardous su bstances at the facility, § 9607(a)(3); and any person who acce pts or accepted hazardous substances for transport to site s selected by such person, Id. § 9607(a)(4). HMAT contends that Dowel is liable as a person who owned or operated the facili ty "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, depos it,

injection, dumping, spilling, leaking, or plac ing 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 environm ent or be emitted into the air or discharged into any wa ters, including ground waters. 42 U.S.C. § 6903(3). Focusing on the breadth of th is definition, HMAT reads "disposal" to encompass the passive migr ation of contaminants. HMAT offers no evidence that any pas sive migration has occurred here but asks us to take judicial noti ce that waste tends to spread once it is put in the ground, See O ffice of Remedial Response, United States Environmental Prot ection Agency, Superfund Exposure Assessment Manual 8 (1988) [Here inafter Superfund Manual] (waste in landfills tends to migr ate due to, inter alia, rain, groundwater movement, and wind) a nd waste therefore must have spread during the six years Dow el owned the property. Several courts have been sympathetic to this argument. See United States v. Waste Indus., Inc., 734 F.2d 1 59, 164-65 (4th Cir. 1984) (migration of hazardous substances can constitute disposal under RCRA); CPC International, Inc. v. Ae rojet-General Corp., 759 F. Supp. 1269, 1278 (W.D. Mich. 1991) (t he unchecked spread of contaminated groundwater qualifies as dis posal under CERCLA); Stanley Works v. Snydergeneral Corp., 781 F. Supp. 659, 662-64 (E.D. Cal. 1990) (ongoing migration of hazar dous substances constitutes disposal under CERCLA); Unit ed States v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981) (sprea ding 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' owners hip constitutes disposal subjecting the defendant to CE RCLA liability), cert. denied sub nom. Mumaw v. Nurad, I nc., 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 d rums deposited prior to the defendants' ownership constitutes disp osal under CERCLA); In re Hemingway Transport, Inc., 108 B.R. 378, 382 (Bankr. D. Mass. 1989) (leaking drums constitute CE RCLA 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 m igration of contaminants alleged here does not constitute dispo sal. Our conclusion is based on the plain meaning of the wor ds used in the disposal definition and is supported by the structu re of CERCLA's liability scheme. We also believe that our interpr etation is consistent with CERCLA's purposes.

B. The Language 1. The Definition of "Disposal" The definition of disposal begins with "the di scharge, 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 migr ation canconstitute disposal have focused on the words "leak ing" and

"spilling," terms that generally do not denote acti ve 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 "le aking" and "spilling" also have meanings that require some act ive human conduct. "Leak" can be defined as "to permit to en ter 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 state s that one may infer meaning by examining the surrounding words. The words surrounding "leaking" and "spilling" -- "discharge, " "deposit," "injection," "dumping," and "placing" -- all envisi on a human actor. In the context of these other words, then, Congress may have intended active meanings of "leaking" and "spi lling." SeeEcodyne Corp. v. Shah, 718 F. Supp. 1454, 1457 (N.D. Cal. 1 989); Robert L. Bronston, Note, The Case Against Intermed iate Owner Liability for Passive Migration of Hazardous Waste, 93 Mich. L. Rev. 609, 616 (1994). But we need not address this question in the b road terms of whether disposal always requires active human condu ct. Even if it does not, we conclude that the passive migration at issue in this case cannot constitute disposal. While "leaki ng" and "spilling" may not require affirmative human conduc t, neither word denotes the gradual spreading of contamination alleged here.

A common definition of "leak" -- and the one most f avorable to HMAT -- is "to enter or escape through a hole, crev ice, or other opening." Webster's, supra at 1285. This definiti on requires that a substance "leak" from some opening. For exa mple, the definition would encompass the escape of waste thro ugh a hole in

a drum. But HMAT has offered no evidence of leakin g drums. Compare, e.g., Nurad, Inc. v. William E. Hooper & S ons Co., 966 F.2d 837, 846 (4th Cir.) (the plaintiff presented e vidence showing that tanks had leaked), cert. denied sub no m. 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 unavailin g. Although "spilling" too sometimes denotes the movement of li quid in the absence of human action, such a definition does not cover the spreading of waste at issue here. Passive definiti ons of "spill" suggest a rapid torrent, not gradual passive migrat ion over the course of several years. See Webster's, supra at 2 195 (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 exa mple, an "oil spill."2. A Comparison With "Release"

It is especially unjustified to stretch the me anings of "leaking" and "spilling" to encompass the passive m igration that generally occurs in landfills in view of the fact t hat 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 f ollows: The term "release" means any spilling, leaking
, pumping, pouring, emitting, emptying, discharg ing, injecting, escaping, leaching, dumping, or dis posing into the environment (including the abandonmen t or discarding of barrels, containers, and other c losed 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" encompa sses "disposing" and some elements of the "disposal" def inition and

also includes some additional terms. Most importantly, the definition of "release" includes the term "leaching," which is not mentioned in the defi nition of "disposal." "Leaching" is "the process or an insta nce of separating the soluble components from some materia l 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 Sup erfund Manual, supra at 8, and is the most predominant cause of gr oundwater contamination from landfills, Edward Repa & Charles Kufs, Leachate Plume Management 2 (1985). The word "leac hing" is commonly used in the environmental context to descr ibe this migration of contaminants. See, e.g., Steven Ferre y, 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 tha t migrate away from the point source of contamination in groundwat er or surface water, often influenced by rain and normal water ta ble activities. Such a phenomenon is described as 'lea ching' of contaminants.") Congress's use of the term "leachi ng" in the

definition of "release" demonstrates that it was aw are 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 i f 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 i n the "disposal" definition cannot cover the passive migr ation alleged in this case is buttressed by the language of CERCL A's liability provision. If the spreading of contaminants is con stant, as HMAT would have us assume, characterizing liable parties as "any person who at the time of disposal . . . owned or o perated anyfacility," 42 U.S.C. § 9607(a)(2), would be a rathe r complicated

way of making liable all people who owned or operat ed 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. 14 54, 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 curr ent owner or operator, id. § 9607(a)(1). See Ecodyne Corp., 718 F. Supp. at 1457. Although CERCLA is not written with great cl arity, we will not impute to Congress an intent to set up a s imple liability scheme through a convoluted methodology.

C. Structure: The Innocent Owner D efense Our conclusion that the language of CERCLA's d efinition of "disposal" does not include the passive migration a lleged 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. §§ 960 1-9675), 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 ca used solely by an act or omission of a third party. 42 U.S.C. § 9 607(b)(3). The defense is generally not available if the third party causing

the release is in the chain of title with the defen dant. See 42 U.S.C. § 9601(35)(A). However, the defense is avai lable in such circumstances if the person claiming the defense is an "innocent

owner." To establish the innocent owner defense th e defendant must show that "the real property on which the faci lity is located was acquired by the defendant after the dis posal 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 th at any hazardous substance which is the subject of the rel ease or threatened release was disposed of on, in, or at th e facility."

Because CERCLA conditions the innocent owner d efense on the defendant's having purchased the property "after th e disposal" of hazardous waste at the property, "disposal" cannot constitute the allegedly constant spreading of contaminants. Othe rwise, the defense would almost never apply, as there would ge nerally be no point "after disposal." See United States v. Peter sen 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 62 7-28. We think it unlikely that Congress would create a basi cally useless

defense. The innocent owner defense's apparent limitati on 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: "N othing 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 previ ous owner oroperator who would be otherwise liable under this c hapter." 42

U.S.C. § 9601(35)(C). This language certainly sugg ests that the innocent owner defense is unavailable to prior owne rs 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 limitat ion makes sense only if passive spreading of waste in a landf ill is not included in disposal. If passive migration is excl uded from "disposal," past owners will generally only be liab le as owners "at the time of disposal" when they have committed or allowed affirmative acts of disposal on their property. Th ey would thus have little need for the innocent owner defense, wh ich requires, inter alia, that a defendant did not "cause[] or co ntribute[] to the release or threatened release," 42 U.S.C. § 960 1(35)(D); "exercised due care with respect to the hazardous s ubstance concerned," id. § 9607(b)(3)(a); and "took precauti ons against foreseeable acts or omissions of any such third par ty [causing the release] and the consequences that could forese eably result from such acts or omissions," id. § 9607(b)(3)(b). On the other hand, if prior owners were liable because waste spr ead during

their tenure and the innocent owner defense is avai lable only to current owners, prior owners would be in a signific antly worse position than current owners: they would be liable for passive migration of waste even if they had no reason to kn ow 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 mean ing of the words defining "disposal" does not encompass the gr adual spreading of waste in a landfill and that this conc lusion is supported by the structure of the innocent owner de fense. We also conclude that this reading of "disposal" is co nsistent with CERCLA's purposes. Congress enacted CERCLA with two principal goa ls 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 asso ciated with their pollution, United States v. Alcan Aluminum, 9 64 F.2d 252, 257-58 (3d Cir. 1992). See United States v. USX Co rp., 68 F.3d 811, 814 (3d Cir. 1995). Our holding is clearly co nsistent with the latter purpose. Those who owned previously con taminated property where waste spread without their aid canno t reasonably be characterized as "polluters"; excluding them fro m liability will not let those who cause the pollution off the hook. And, many of these owners will pay for the pollution: i f they disclose the fact that the land contains waste, the ir selling price will reflect the cost of CERCLA liability. I f they have knowledge of contamination and do not disclose it t o 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 contaminate d.And our holding will not undermine the goal of facilitating

the cleanup of potentially dangerous hazardous wast e sites. Even if owners of previously contaminated land can evade liability by transferring the land, ample incentives remain to p romote cleanup. See United States v. Petersen Sand and Gr avel, Inc., 806 F. Supp. 1346, 1353 (N.D. Ill. 1992); Bronston, supra at 637- 40. Present owners and operators remain strictly l iable 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 d isposal, id. § 9607(a)(3), and transporters of hazardous substance s, id. § 9607(a)(4). Moreover, a number of provisions ensur e that

contamination will be discovered and the fact of co ntamination disclosed if the land is transferred. CERCLA impos es criminal liability (including prison sentences) for failure to report a
"release" of hazardous substances above a certain t hreshold. See42 U.S.C. § 9603. As mentioned, if an owner transfers land t hat 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 defen se 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 "pas sive" theory of disposal: the movement of contaminants alleged here does not constitute "disposal." However, because we conclud e 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 n ot constitute disposal, we now consider HMAT's other asserted bas is of liability. HMAT argues that Dowel's soil investiga tion, which was meant to determine the land's ability to suppor t construction, caused the mixing, shifting, and spre ading of contaminants and that this constitutes disposal. A lthough the district court suggested that HMAT's evidence of sp reading was "speculative," it did not resolve whether the evide nce was sufficient to allow a factfinder to conclude that t he drilling caused any subsurface mixing. Instead, the court c oncluded that even accepting HMAT's version of events, Dowel's dr illing "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 so il 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 l and or water." "Disposal" thus includes not only the initial intro duction of contaminants onto a property but also the spreading ofcontaminants due to subsequent activity. See Webst er's, supra at

644 (defining "discharge" in part as "to set at lib erty," "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. Catel lus Development Corp., 976 F.2d 1338, 1342-43 (9th Cir. 1992) ("CERCLA's definition of 'disposal' expressly encom passes 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 1 568, 1573 (5th Cir. 1988) ("[T]his definition of disposal does not limit disposal to a one-time occurrence -- there may be o ther disposals when hazardous substances are moved, dispersed, or released during landfill excavations and fillings."). Although the cases cited above involved a grea ter disturbance of contaminants than that alleged here, the dispersal of contaminants need not reach a particular thresho ld level in order to constitute "disposal." "Disposal" consist s of "the discharge . . . or placing of any solid waste or ha zardous waste into or on any land or water." 42 U.S.C. § 6903(3) (emphasis added). There is no exception for de minimis distu rbances. Cf.United States v. Alcan Aluminum Corp., 964 F.2d 252, 260 ( 3d Cir. 1992) ("[C]ourts that have addressed this issue [wh ether the term "hazardous substance" includes any quantitative req uirement] have almost uniformly held that CERCLA liability does no t depend on the existence of a threshold quantity of a hazardou s substance."). The fact that a defendant's dispersa l of contaminants is trivial may provide a ground to all ocate less liability to that defendant, but it is not a defens e to liability.

B. The Evidence The evidence presented by both parties shows t hat a genuine

issue of material fact remains as to whether Dowel' s drilling caused the dispersal of contaminants. HMAT present ed the drilling logs and report of Thor Engineering, the f irm that performed Dowel's soil test. According to these do cuments, Thor made nine drill borings twelve to eighteen feet int o 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 Tr uettner, an expert environmental consultant, which asserted tha t 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," Tr uettner concludes that mixing of these materials occurred. Second, Thor's report and logs show no evidence that the dr illing equipment was decontaminated between boreholes and before the equipment was moved from the landfill. Thus, Truet tner maintains, it is probable that contaminated materia l was spreadbetween boreholes and along roads used for access b y the drilling

equipment. Dowel, in response, submitted an affidavit fro m Peter Wilner, the principal of Thor Engineering. Wilner states that he personally directed and oversaw the drilling at iss ue. He asserts that "no drills were used; no 'cuttings' we re 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 per formed at the Premises does not cause the underground mixing or s hifting of

subsurface materials."

HMAT then submitted another affidavit from Tru ettner.
Truettner contends that Wilner's affidavit contains misleading statements and directly contradicts the contemporan eous record of the drilling. She first casts doubt on Wilner's cl aim that he was present during the drilling, pointing out that the drilling logs indicate the presence of several people but ma ke no mention of Wilner. She represents that it is industry prac tice 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 Tru ettner, "anytype of sampling activity generates cuttings because the sp lit spoon sampler knocks material off the borehole wall s." Furthermore, Truettner attacks the implication s of Wilner's statement that no holes were left open. According to Truettner,
in order for the holes to have been closed one of t hree things would have had to occur: (1) the holes were filled with material brought from off-site; (2) they were filled with ma terial from the site itself; or (3) they were allowed to collap se in on

themselves. Truettner contends that the first scen ario 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 o ccurred, the act of filling the holes would cause mixing of mate rials on the property. Finally, Truettner asserts that Wilner's state ment that Thor's boring method does not cause mixing of subsu rface of material is contradicted by the drilling logs, whic h 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 contaminan ts. A factual dispute is genuine if the evidence is such that a r easonable factfinder could find in favor the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). HMA T'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 findin g that a dispersal of contaminants occurred. Dowel's eviden ce, that despite the contact between its equipment, waste, s oil, andgroundwater, its boring method caused no mixing, is sufficient to

support the opposite finding. Thus summary judgmen t in favor of either party is inappropriate.

C. Soil Investigation As we have explained, HMAT has identified evid ence from

which a factfinder could conclude that Dowel has ca used a dispersal of contaminants. Ordinarily, that would be sufficient to submit the question of whether a "disposal" occu rred to a factfinder. However, this is not an ordinary case: the alleged act of disposal consists of a soil investigation, a nd CERCLA clearly contemplates that some soil investigation b e allowed to examine contaminated property. Thus, it is not eno ugh for a plaintiff to show that a soil investigation has cau sed the spread of contaminants. Rather, we conclude that in order to establish that "disposal" has occurred based on a soil invest igation, a plaintiff must also show that the investigation was conducted negligently. CERCLA's innocent owner defense encourages pro spective property buyers to conduct soil investigations. Th e innocent owner defense requires, inter alia, that "[a]t the time the defendant acquired the facility the defendant did n ot know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was di sposed 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 p rior disposal:

To establish that the defendant had no re ason to know . . . the defendant must have undertaken, at the time of acquisition, all appropriate inquiry i nto the previous ownership and uses of the property co nsistent with good commercial or customary practice in an effort to minimize liability. For purposes of the pr eceding sentence the court shall take into account any specialized knowledge or experience on the par t of the defendant, the relationship of the purchase pr ice to the value of the property if uncontaminated, c ommonly known or reasonably ascertainable information about the property, the obviousness of the presence or l ikely presence of contamination at the property, and the ability to detect such contamination by approp riate inspection. Id. § 9601(35)(b). CERCLA thus contemplates that p rospective purchasers "undertake[] . . . all appropriate inqui ry" 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 inves tigation cannot itself trigger CERCLA liability. Otherwise, prospective purchasers who by diligently inspecting for contami nation cause the dispersal of any contaminants will find themsel ves liable for causing a "disposal." And the innocent owner defen se would offer such prospective purchasers no protection: if they buy the property after discovering contamination, they will be ineligiblefor the defense because they will not be "innocent" (i.e., they

will "know and ha[ve] reason to know" of a prior di sposal, id. § 9601(35)); if they do not buy the property, they wi ll be ineligible for the defense because they will not be "owners" (i.e., they will not have "acquired the facility" a s required by 42 U.S.C. § 9601(35)(A)). In order to give the def ense effect, then, an "appropriate" soil investigation cannot co nstitute disposal. But a party cannot escape liability for perfor ming a soil investigation negligently and thereby unnecessarily spreading pollution. Several CERCLA provisions suggest that persons otherwise insulated from CERCLA liability may nonet heless become liable if they act negligently. In order to take a dvantage of a third-party defense (i.e., that a release was cause d solely by a third party), a defendant must show that "he exerci sed 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 th e National Contingency Plan unless they are negligently perfor med: [N]o person shall be liable under this subchap ter for costs or damages as a result of rendering care
, assistance, or advice in accordance with the N ational Contingency Plan ("NCP") or at the direction o f an onscene coordinator appointed under such a pla n, with respect to an incident creating a danger to pu blic

health or welfare or the environment as a resu lt of any

releases of a hazardous substance or threat th ereof. This paragraph shall not preclude liability fo r costs or damages as the result of negligence on the part of such person. 42 U.S.C. § 9697(D)(1). These provisions are thems elves inapplicable to the issue at hand. However, they e xpress a useful principle for determining when an action tha t 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 investigat ions -- 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 i nvestigations and its goal of remedying hazardous waste sites. We recognize that the soil investigation at is sue here was not meant to discover the presence of contamination but was aimed at assessing the land's ability to support construc tion. However, we conclude that the purpose of the invest igation is irrelevant. Determining the motive of the investig ating party seems a costly and difficult inquiry. Moreover, we do not wish to deter the productive use of property by discoura ging soil investigations aimed at assessing development possi bilities. In addition to applying the wrong test of "dis posal," the

district court did not focus on whether Dowel's soi l testing was negligently performed, and we believe that the part ies should

have a chance to add to the record on this issue. Therefore, wewill vacate the district court's order dismissing H MAT's CERCLA

claim and remand for further proceedings.

IV. Conclusion For the foregoing reasons, the passive spreadi ng of

contamination in a landfill does not constitute "di sposal" under CERCLA. Soil testing that disperses contaminants, however, may constitute "disposal" and HMAT has identified evide nce that would justify a factfinder's conclusion that contaminants were dispersed in Dowel's testing. Nevertheless, becaus e CERCLA contemplates that some soil investigation be allowe d, HMAT must show not only that the soil investigation caused th e spread of contaminants but also that the investigation was co nducted negligently. The judgment of the district court wi ll therefore be vacated and the case remanded for further procee dings consistent with this opinion.