PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CROFTON VENTURES LIMITED 

PARTNERSHIP,

Plaintiff-Appellant,

v.

G&H PARTNERSHIP; HARRY RATRIE;

E. STEWART MITCHELL,

INCORPORATED; DAHLIA RATRIE,  No. 00-1517

Defendants-Appellees,

and

JOHN C. CYPHERS; N. W. GREENWALD

CONCRETE COMPANY; NORMAN

GREENWALD, JR.,

Defendants. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CA-96-1378-MJG)

Argued: March 2, 2001

Decided: July 24, 2001

Before NIEMEYER, MICHAEL, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded for further proceedings by published opinion. Judge Niemeyer wrote the opinion, in

which Judge King joined. Judge Michael wrote an opinion dissenting

in part and concurring in part. 
COUNSEL

ARGUED: Holly Drumheller Butler, Steven Keith Fedder, PIPER,

MARBURY, RUDNICK & WOLFE, L.L.P., Baltimore, Maryland,

for Appellant. Thomas M. Downs, SWIDLER, BERLIN, SHEREFF,

FRIEDMAN, L.L.P., Washington, D.C.; Thomas Mark Lingan, VENABLE, BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for

Appellees. ON BRIEF: John Chen, Kathleen L. Nooney, PIPER,

MARBURY, RUDNICK & WOLFE, Chicago, Illinois, for Appellant.

Laura A. Ford, SWIDLER, BERLIN, SHEREFF, FRIEDMAN,

L.L.P., Washington, D.C.; Geoffrey R. Garinther, VENABLE,

BAETJER & HOWARD, L.L.P., Baltimore, Maryland, for Appellees.

OPINION

NIEMEYER, Circuit Judge: 

After purchasing a 32-acre parcel of land in Anne Arundel County,

Maryland, Crofton Ventures Limited Partnership ("Crofton") discovered that a portion of the parcel had been used as a hazardous waste

dump. After reporting its discovery to the Maryland Department of

the Environment and cleaning up the site, it brought this action under

the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., against former

owners and operators of the land to recover its response costs. In

addition to its CERCLA claim, Crofton asserted common law claims

for fraudulent misrepresentation and breach of contract. Following a

bench trial, the district court entered judgment for the defendants on

all counts. Because we conclude, however, that the district court erroneously construed the requirements of CERCLA, we vacate its ruling

on that claim and remand. We affirm the court’s remaining rulings.

I

On April 9, 1987, Crofton1 entered into a contract with G & H Part1The contract of sale was actually signed by C & H Properties, a partnership, but before closing, it assigned its interest in the property to Crofton, which took title to the property on February 27, 1991. 

2 CROFTON VENTURES v. G&H PARTNERSHIP
nership, of which Harry and Dahlia Ratrie were partners, (collectively

hereinafter, "Ratrie"), to purchase a parcel of land to be carved from

Ratrie’s 55-acre tract located on Patuxent River Road in Anne Arundel County, Maryland. Crofton intended to develop the site for operation of a vehicle salvage business involving the storing and selling of

motor vehicles that had been declared a total loss. As part of the contract of sale, which the parties amended from time to time, Ratrie represented:

To the best of Seller’s knowledge and while the [property]

was in Seller’s possession, the [property] has not been used

for hazardous waste disposal, and no party has transported,

caused to be transported, stored or caused to be stored on the

[property], in any buildings, containers, on the surface or

underground, any solid, liquid, semi-solid or gaseous materials that would constitute "hazardous wastes" . . . "hazardous substances" . . . "oil, petroleum products, and their byproducts" . . . or any substance the presence of which on the

[property] is prohibited or regulated by any law similar to

those set forth in this section and that the [property] has not

been contaminated by any of the aforementioned hazardous

or toxic wastes or substances[.]" 

In 1991, before closing, Ratrie subdivided the 55-acre tract and, at

closing, conveyed a 32-acre parcel to Crofton pursuant to the April

1987 contract. When Crofton began to develop the site in 1995, it discovered a waste dump on the site that contained a total of 285 fully

or partially buried 55-gallon drums, truck tires, household appliances,

and other similar refuse. Upon testing five of the drums, Crofton

found that four contained a mixture of asphalt and trichloroethylene

("TCE"), a common solvent known to be carcinogenic and constituting a hazardous substance under federal and state environmental laws.

Crofton reported its finding to the Maryland Department of the Environment and, thereafter, under the Department’s supervision, cleaned

up the site. 

In the process of cleaning up the site, Crofton found a few corrugated drums of World War II vintage. The remainder of the drums,

however, were of a type manufactured during the period "in [the] late

’70s through the ’80s and to today." They were discovered in a broad

CROFTON VENTURES v. G&H PARTNERSHIP 3
array of disrepair, described variously as "rusted," "crushed," "split

open," "leaking," and "broken." Two hundred forty-six of these drums

contained observable asphalt, and most smelled of TCE. Two sets of

10 drums containing asphalt were sampled and tested to determine

whether they contained hazardous substances, and the tests from each

of the two composite samples indicated high concentrations of TCE.

"High levels" of TCE were also found in the soil and groundwater at

the site. 

After cleaning up the site, Crofton commenced this action under

CERCLA to recover all or part of its cleanup costs. It also alleged

state common law counts for fraudulent misrepresentation and breach

of warranty. 

The evidence at trial established that the 55-acre tract had been

used from the 1930s to 1977 by its owner Alan E. Barton and various

tenants for the production of hot-mix asphalt, ready-mix concrete, and

sand and gravel. After Barton’s death, the tract was conveyed to E.

Stewart Mitchell, Inc. ("Mitchell"), a Maryland corporation, which

owned it until 1985. Mitchell operated an asphalt plant on the tract

during the early part of that period — from 1977-1980 — and thereafter sold the business to Ratrie, leasing to him the property with an

option to purchase. In 1985, Ratrie exercised the option and bought

the tract from Mitchell. Ratrie subsequently leased it to an operator

who continued to produce asphalt on the tract. Both Mitchell and

Ratrie concede that, as defined by CERCLA, they were owners during

the relevant periods, 1977-85 and 1985-1991, respectively, and that

Mitchell was an operator from 1977-1980. 

The evidence in the record indicates that TCE was used at the site

beginning in 1979, when Mitchell began using TCE in testing hot-mix

asphalt as required by the State of Maryland. In 1980, when Mitchell

ceased operating the plant and leased the property to Ratrie, Ratrie

continued to produce asphalt at the site and test it in the same manner.

From 1979 until the late 1980s, waste material from asphalt testing

on the site — consisting of a mixture of liquid asphalt, aggregates,

and TCE — was placed in 55-gallon drums of the type found at the

site by Crofton. No evidence could be uncovered, however, as to how

Mitchell or Ratrie, or indeed the State of Maryland, disposed of those

4 CROFTON VENTURES v. G&H PARTNERSHIP
waste-filled drums. Mitchell retained no records of the drums’ disposition, and no witness recalled how the drums were disposed of. 

Upon Crofton’s purchase of the site in 1991, no further operations

were conducted there, and it remained unused until Crofton began its

development of the property in 1995, at which time Crofton discovered the hazardous waste. 

Following a four-day bench trial, the district court made findings

of fact, upon which it entered judgment dismissing all of the claims

with prejudice, concluding generally that Crofton had failed to meet

its burden of proof on each of the three counts. On Crofton’s CERCLA claim, the district court found that hazardous wastes had been

released on the site, causing Crofton to incur response costs. It concluded, however, that the evidence failed to establish that either

Mitchell or Ratrie "placed any TCE on the Site." The court observed

that if Crofton "could so prove, [Mitchell] would be a responsible person from 1981 to 1985 and [Ratrie] would be a responsible person

starting in 1985." The district court acknowledged that prior to 1995,

when Crofton discovered the partially buried drums, "one or more

persons . . . placed TCE on the Site." But the court stated that the dispositive question was "whether [Crofton] has proven that some, if not

all, of the drums containing TCE were placed on the Site by the

[defendants] from 1977 on." And it repeated that statement of the

issue in its discussion: "The question before this Court is whether the

Court can find, by a preponderance of the evidence, that the [defendants] dumped their TCE waste on the Site." The court then summarized its findings, concluding that Crofton "has presented no direct

evidence of dumping by the [defendants], the alleged perpetrators."

(Emphasis added). Acknowledging that Crofton could also satisfy its

burden through circumstantial evidence, the court concluded that the

circumstantial evidence was likewise insufficient:

[Crofton] has, at most, presented evidence to raise a mere

suspicion that the [defendants] (or one of them) might be

responsible for placing some drums containing TCE at some

improper location. [Crofton] has not proven by a preponderance of the evidence that the [defendants] placed any TCE

on the Site. 

CROFTON VENTURES v. G&H PARTNERSHIP 5
On the fraud claim, the court found that Crofton failed to prove that

Ratrie knew that hazardous waste was buried on the property when

he represented in the contract of sale that it was not. And on the

breach of contract claim based on Ratrie’s express warranty that "to

the best of [his] knowledge," the site had not been used for waste disposal, the court likewise found that Ratrie did not have knowledge of

any hazardous waste disposal and therefore did not breach that

express warranty. 

Crofton filed this appeal, which challenges the legal and factual

bases for the court’s findings on the CERCLA claim and the factual

bases for its findings on the state common law claims. 

II

Crofton brought its CERCLA claim for contribution under 42

U.S.C. § 9613(f), which authorizes a suit in contribution against "any

other person who is liable or potentially liable under section 9607(a)"

for response costs. It asserts that Mitchell and Ratrie are liable under

§ 9607(a) for response costs because they were owners or operators

of a site during the time when hazardous waste was "disposed of" at

the site. They argue that under CERCLA, the term "disposed of" is

a term of art that results in liability for defendants if they owned or

operated the property at a time that the TCE was actually placed on

the site or when TCE leaked into the soil at the site. Crofton contends

that the district court erred in requiring it to prove that the defendants

"dumped their TCE waste on the Site" during the period that they

were owners or operators. It also contends that the district court

clearly erred in making factual findings about the size and location of

the area in which the 55-gallon drums were found, the date when the

drums were buried, and the source of the drums containing the TCE

waste. 

We address Crofton’s argument by first looking at the nature of its

claim under CERCLA and the elements that Crofton must prove.

CERCLA was enacted to address "the increasing environmental and

health problems associated with inactive hazardous waste sites. The

statute encourages private cleanup of such hazards by providing a

cause of action for recovery of costs incurred in responding to a

‘release’ of hazardous substances at any ‘facility.’" Nurad, Inc. v.

6 CROFTON VENTURES v. G&H PARTNERSHIP
William E. Hooper & Sons, 966 F.2d 837, 841 (4th Cir. 1992). The

Act imposes broad and strict liability for the costs of cleaning up hazardous waste sites without regard to whether the persons assigned liability under the Act placed the waste material on the site or had

knowledge of the waste materials’ presence. See United States v.

Monsanto Co., 858 F.2d 160, 168 (4th Cir. 1988); New York v. Shore

Realty Corp., 759 F.2d 1032, 1042 (2d Cir. 1985). 

Section 9607(a), which defines the scope of liability, provides that

in connection with a facility "from which there is a release, or threatened release which causes the incurrence of response costs, of a hazardous substance," four classes of persons are liable for the response

costs, two of which are relevant here: 

(1) the owner and operator of a vessel or a facility, [and] 

(2) any person who at the time of disposal of any hazardous

substance owned or operated any facility at which such hazardous substances were disposed of.

42 U.S.C. § 9607(a)(1), (2).2 Subsection (a)(1) thus imposes liability

2The relevant portions of 42 U.S.C. § 9607(a) provide: 

Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section

— 

(1) the owner and operator of a vessel or a facility, 

(2) any persons who at the time of disposal of any hazardous

substance owned or operated any facility at which such hazardous substances were disposed of, 

* * *

from which there is a release, or a threatened release which

causes the incurrence of response costs, of a hazardous substance, shall be liable for — 

* * *

(B) any other necessary costs of response incurred by any

other person consistent with the national contingency plan.

CROFTON VENTURES v. G&H PARTNERSHIP 7
on current owners and operators of a facility, such as Crofton, and

subsection (a)(2) imposes liability on any previous owners or operators of the facility if they were owners or operators at the time of "disposal." "Disposal" is defined broadly to include the "discharge,"

"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." 42 U.S.C.

§ 9601(29) (incorporating definition from 42 U.S.C. § 6903(3)). Thus,

under subsection (a)(2), any owner or operator is liable if he was an

owner or operator at the time when hazardous waste was either placed

on the site or leaked into the environment from a source on the site,

whether or not such owner or operator was the cause of the disposal

or, indeed, even had knowledge of it. See Monsanto, 858 F.2d at 168

(holding that under 42 U.S.C. § 9607(a)(2), ownership of a facility at

the time when hazardous substances were deposited is sufficient to

trigger liability regardless of the owners’ degree of participation in the

disposal); Shore Realty, 759 F.2d at 1044 ("Prior owners and operators are liable only if they owned or operated the facility ‘at the time

of disposal of any hazardous substance’"). 

In sum, to recover contribution under CERCLA for response costs,

as authorized by 42 U.S.C. § 9613(f), a plaintiff must establish: (1)

that it incurred costs as a person liable under § 9607(a) in the

response to a "release" or "threatened release"; (2) that the response

was "consistent with the national contingency plan"; (3) that the

defendant was a person liable for response costs under § 9607(a)(1)-

(4); (4) that the defendant, if asserted to be a person covered by subsection (a)(2), as Crofton asserts in this case, was an owner or operator of a facility or site at the time that the hazardous waste was

dumped at the site or when it leaked into the environment there; and

(5) that the costs incurred by the plaintiff were "necessary" to the

response. Necessary costs are defined to include interest. Once a

* * *

The amounts recoverable in an action under this section shall

include interest on the amounts recoverable under subparagraphs

(A) through (D). 

* * *

8 CROFTON VENTURES v. G&H PARTNERSHIP
plaintiff proves these elements, the defendant may avoid liability only

by proving an affirmative defense provided in § 9607(b). 

In this case, the district court found that Crofton incurred costs in

response to a release as a person liable under 9607(a)(1). It did not,

however, decide whether the response was consistent with the

national contingency plan because it concluded that Crofton failed to

prove that the defendants were persons liable for the response costs

under § 9607(a)(2). Accordingly, we must determine whether, when

the correct legal standard is applied, Crofton could recover under

CERCLA. Reduced to the context of the evidence presented, we must

determine whether, during the period when Mitchell or Ratrie owned

or operated the site in question, evidence was sufficient to show that

TCE was dumped at the site or that TCE leaked from the drums at

the site into the environment. We believe there is ample evidence to

establish both bases of liability in this case and that the district court

overlooked this evidence because it misconstrued the requirements for

establishing liability under CERCLA.3

(Text continued on page 11)

3Contrary to the suggestion of our dissenting colleague, a review of the

complete record does not disclose that Crofton advanced a new theory

of liability for the first time at the end of closing argument. The "bombshell" that counsel for Crofton "dropped" was their advice to the district

court that the court was reading CERCLA too narrowly, failing to recognize that "disposal" includes "leaking." See 42 U.S.C. § 9601(29). And

while counsel acknowledged that their attempt to prove the defendants’

actual dumping would present a stronger case for Crofton, they argued

that Crofton could meet its burden of establishing liability under CERCLA simply by showing that hazardous wastes "leaked" into the land

while owned by the defendant. But this was not a new theory; it was

rather a lesser included burden of proof. 

Crofton stated its theory of liability in its complaint, alleging as one

basis of CERCLA liability as to all of the defendants that each was either

an owner or operator "of the Property at the time hazardous substances

were released and disposed of on the Property." It also alleged that some

of the defendants actually dumped hazardous wastes on the site. 

When counsel sought, during closing argument, to argue strict liability

based solely on ownership, the court directed counsel to argue how Crofton had proved actual dumping by the defendants. The court stated that

Crofton had "to prove precisely who was the responsible person." When

CROFTON VENTURES v. G&H PARTNERSHIP 9
counsel for Crofton branded as immaterial the ownership of the property

and its operation by Ratrie and Mitchell, the court said, "I am afraid we

are going to get unfocused . . . we are jumbling it together." Counsel for

Crofton stated: 

Well, the problem with separating it, and I understand the

Court’s concern is that there is liability because of ownership

and owner liability because of operation, and for the period

between the early 1980 to 1985 Mitchell owned and Ratrie operated and so by its nature it jumbles. 

The court then redirected the argument, "No, it doesn’t jumble because

of the first question from a factual point of view, who put the TCE there

and then we’ll worry who owned the property." 

After the parties conceded that TCE had been dumped at the site, the

court stated, "what’s material is what was there, there was some TCE

there, and we are trying to find out who put it there." As counsel for

Crofton attempted to demonstrate its proof of actual disposal through circumstantial evidence, the court rejected the evidence as inadequate and

stated, "[T]he sugar fairy didn’t put it there. Somebody put it there, and

it wasn’t [Crofton]." As his final statement on the issue to the court,

counsel for Crofton argued, 

The proposition we are now talking about is whether TCE containing drums were put on the dump site between ’77 and ’88

with, I guess an understanding, my understanding that the evidence is that there was no — once the still came in — but I don’t

think that is important. 

In a subsequent exchange with counsel for Mitchell, the court reaffirmed its limited interpretation of CERCLA, as follows: 

The court: But it would be reasonable to surmise, again at least

50, 60 drums had TCE based on that. What’s the

difference if it was one drum. The point is, did you

put it there? 

Counsel for Mitchell: There is no evidence that we put it there. 

The court: That is the whole point. That is why we are here. 

As its last point, counsel for Crofton argued more specifically that the

law does not require "active disposal" but permits liability upon the

establishment of "passive disposal." Counsel for Crofton stated: 

10 CROFTON VENTURES v. G&H PARTNERSHIP
The uncontroverted evidence shows that TCE was routinely used

at the site beginning in 1979. Indeed, there is no evidence that it had

been used at the site prior to that date. TCE was used to test asphalt

at the site by Mitchell, by Ratrie, or by the State of Maryland, but,

for purposes of establishing liability, it is immaterial who conducted

the testing or used the TCE at the site. The uncontroverted evidence

also established that a waste mixture of asphalt and TCE was, during

the period from 1979 through the late 1980s, placed in 55-gallon

drums at the site. Despite efforts to discover the fate of these drums,

however, none of the owners or operators can account for what happened to the drums, and all records relating to this issue have somehow become unavailable. But the drums found at the site, filled with

a mixture of asphalt and TCE, were of a type that were manufactured

in the late 1970s and 1980s, and not before. When the drums were

found in 1995, they were in a state of gross disrepair, evidencing a

long period during which their contents were leaking into the environSection 107 focuses liability not only for active involvement in

dumping or placing of hazardous waste facility but for the ownership of the facility at the time hazardous waste was spilling or

leaking. 

Believing this to be a new theory, the court asked why the parties went

into the issue of who disposed of the drums and why hadn’t counsel for

Crofton mentioned this theory before. Counsel for Crofton said that it

gave notice of its theory in the complaint. 

The "bombshell" to which my dissenting colleague refers was bringing

the realization to the court that the statute’s definition of "disposal" was

broader than active dumping and included leaking. The court’s misperception of the statute’s scope was clearly revealed much earlier when the

court stated to the parties that Crofton itself was not a responsible party

under CERCLA. "[I]f you are telling me that [Crofton] gets any responsibility in this world for those drums being there, then you are crazy."

Yet, counsel for Crofton conceded that as owner of the property it had

liability, a prerequisite to seeking contribution. Indeed, counsel for Ratrie

agreed, arguing, "Mr. Horisk [of Crofton] testified that he understands

that he is a liable party or potentially responsible party under CERCLA

as an owner of the property." 

Thus, any unfairness resulted from the limited interpretation of CERCLA, not from a change of theory. 

CROFTON VENTURES v. G&H PARTNERSHIP 11
ment at the site. Finally, the evidence was uncontroverted that TCE

was found in the soil and in the groundwater at the site.

We believe that these facts, which are relevant to the appropriate

legal standard for liability under the Act, would easily permit a factfinder to conclude either (1) that TCE was placed on the site after

1977 or (2) that during the period after 1977, whether the drums were

placed on the site before or after 1977, the drums’ contents, including

TCE, began to leak into the environment at the site and continuously

leaked into the environment until cleaned up. Either conclusion would

support liability of an owner or operator of the site from 1977 until

1995. It is irrelevant under the Act that Crofton could not prove who

actually dumped the TCE at the site or whether any owner or operator

had knowledge of the dumping or leaking during the relevant period.

As we have pointed out, liability under the Act is strict and does not

require that either of these elements be shown. See Nurad, 966 F.2d

at 841. 

The district court appears to have assumed otherwise, erroneously

adding elements for establishing liability under the Act by requiring

Crofton to show that the defendants themselves actively dumped the

TCE at the site or otherwise were involved in the dumping. And relatedly, the court erroneously construed the term "disposal," as used in

the Act, too narrowly. The court repeatedly used language in its opinion suggesting that it limited "disposal" to active conduct of the

defendants. Thus, the district court said that "[t]o establish the CERCLA claims, Plaintiff must prove that [the defendants] placed TCE on

the site." (Emphasis added). After discussing Crofton’s claim, the

court stated that "the case turns on whether the Plaintiff can prove if,

and when, the operators of the asphalt plant on the . . . Site . . .

dumped TCE on the Site." (Emphasis added). The court again stated,

after concluding that someone placed TCE on the site prior to 1995,

that "the question before the Court is whether the Plaintiff has proven

that some . . . of the drums containing TCE were placed on the Site

by the [defendants] from 1979 on." (Emphasis added). In concluding

that Crofton did not make the showing demanded by the court, the

court stated that Crofton "has not proven by a preponderance of the

evidence that the [defendants] . . . placed any TCE on the Site." The

court then repeated the issue as it understood it: "The question before

this Court is whether the Court can find, by a preponderance of the

12 CROFTON VENTURES v. G&H PARTNERSHIP
evidence, that the [defendants] dumped their TCE wastes on the Site."

(Emphasis added). The district court did not appear to countenance

the possibility that the drums were buried on the site at the behest of

some unknown third party, although there is evidence in the record

supporting precisely such a possibility. Of course, given the court’s

apparent belief that a conclusion that a third party was responsible for

dumping of TCE would have been insufficient to impose liability

upon the defendants, it is understandable that the court failed to take

this possibility into account when it analyzed the evidence. 

The district court thus made two legal errors. First, it believed that

liability could not attach under § 9607(a) unless Crofton showed that

the defendants placed or dumped TCE on the site. Second, the district

court apparently believed that the defendants could not be liable for

Crofton’s response costs absent evidence linking the TCE used by the

defendants and the TCE that was buried in the drums at the site.

These legal assumptions overlooked the strict liability imposed by the

Act for any owner or operator of land at which hazardous waste is in

fact leaking into the environment. While "disposal" includes activities

such as "dumping," it also encompasses "spilling" and "leaking . . .

of any . . . hazardous waste into or on any land or water so that such

. . . hazardous waste . . . may enter the environment." 42 U.S.C.

§ 9601(29) (incorporating the definition from 42 U.S.C. § 6903(3)).

Given the breadth of the statutory definition of "disposal," the district

court must be able to conclude that the buried drums did not leak

between 1977 and 1991, regardless of when they were buried, to

make a finding that the owners and operators during that period were

not liable under § 9607(a)(2). 

Because the district court did not reach other elements of liability

and did not address the defendants’ affirmative defenses asserted

under 42 U.S.C. § 9607(b), we vacate the court’s ruling on the CERCLA count and remand for further proceedings. 

III

Crofton’s challenge to the district court’s factual findings on its

common law claims are based on the district court’s findings of fact

that the defendants did not have knowledge of the existence of the

hazardous waste at the site. We have reviewed the record carefully

CROFTON VENTURES v. G&H PARTNERSHIP 13
and do not find the district court’s factual findings in this regard

clearly erroneous. Accordingly, we affirm the district court’s rulings

with respect to Crofton’s claims for fraudulent misrepresentation and

breach of contract. 

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED FOR FURTHER PROCEEDINGS

MICHAEL, Circuit Judge, dissenting in part and concurring in part:

In a four-day trial that was fair to both sides, the defendants successfully defended the case Crofton asserted against them, which

included a CERCLA claim that they dumped drums contaminated

with TCE on a parcel of land in Anne Arundel County, Maryland.

The majority nevertheless concludes that a remand of the CERCLA

claim is necessary because the district judge did not understand the

bases of liability under the Act and therefore failed to assess the evidence properly in making his factual findings. I respectfully disagree.

While the evidence was being presented at trial, Crofton’s theory was

that the defendants dumped the TCE-filled drums on the site during

the time they owned or operated it. During closing arguments, however, Crofton attempted to raise a new theory of liability based on

passive disposal, that is, the leaking of TCE. I agree with the district

judge’s refusal to indulge this belated change in theory because of the

prejudice to the defendants, who had defended a different case. In

focusing on the case that was actually tried, the judge concluded that

Crofton failed to prove by a preponderance of the evidence that contaminated drums were placed on the site during the time the defendants were responsible. This finding was not clearly erroneous. I

would therefore affirm the judgment in favor of the defendants. 

I.

The remand ordered by the majority gives Crofton the chance to

have its case reconsidered under a new (and perhaps less burdensome)

theory, that TCE leaked from the drums during the time that the

defendants owned or operated the site. This is fundamentally unfair

because Crofton waived the passive disposal theory of liability by

failing to raise it until closing argument in a five-day trial. 

14 CROFTON VENTURES v. G&H PARTNERSHIP
In an extended closing argument session, Crofton’s lawyers spent

most of their time trying to convince the district judge that the defendants were responsible for dumping the drums found at the site. Then,

at the very end, one of Crofton’s lawyers said, "I want to take a step

back . . . and kind of drop a bomb shell on this Court." He explained

that he wanted to include the passive disposal (or leaking) theory of

liability in his argument. The defendants’ lawyer objected to the introduction of this theory, saying that Crofton had not based its case on

passive disposal. The defense pointed out, for example, that there had

been "[n]o discovery about passive disposal. . . . If there had been, we

would have had lots of testimony on it." The district judge, who was

immediately concerned because the defendants had no notice of the

passive disposal theory, said:

It is a little bit strange here, this [passive disposal] concept

for the first time in final argument. Why did we go through

four days of testimony without hearing about it? I don’t

understand. . . . Why didn’t you mention this before? . . . It

would [be] nice if they [defendants] knew what they were

trying — if they really knew they were going to try that

issue.

The judge nevertheless allowed Crofton’s lawyer to attempt to identify evidence of leaking. In the end, however, the judge returned to

the notice problem:

I cannot believe in final argument you are going to be able

to change this case from what everybody tried it to something that nobody tried. . . . I am sorry. It is absolutely not

the slightest notice that this [passive disposal] was going to

be tried. . . . It is not an additional argument. It is a totally

different case than what they [defendants] thought they were

trying. You look at the pretrial order. You don’t see the

slightest reference to this. . . . I got to tell you I didn’t have

to listen to all that stuff I heard for the last three years. It is

a totally different case. Secondly, it wasn’t even raised in

argument with regard to liability; so let’s proceed. I cannot

allow you to amend the pleadings and do this at this time.

This is unconsci[o]nable; unconsci[o]nable. Unconsci[o]nable. I can’t do it. 

CROFTON VENTURES v. G&H PARTNERSHIP 15
It was thus clear to the trial judge that leaking was never an issue in

the case. The record supports the judge’s understanding. The passive

disposal theory did not surface in discovery or in any other pretrial

proceeding. And most important, at trial Crofton did not indicate during opening argument or at any other time before the close of evidence that it intended to base liability on leaking. 

I agree with the majority that a number of events or acts can constitute "disposal" for purposes of CERCLA liability. This, however,

does not excuse a plaintiff from giving a defendant notice of the particular theory or theories of disposal being pressed in a given case.1

CERCLA provides that "any person who at the time of disposal of

any hazardous substance owned or operated any facility at which such

hazardous substances were disposed of" is liable for cleanup costs and

other damages. 42 U.S.C. § 9607(a)(2). 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

1

I respectfully disagree with the majority’s assertion that the "bombshell" Crofton "dropped" in closing argument did not signal a new theory

but rather was "advice to the district court that the court was reading

CERCLA too narrowly." Ante at 9 n.3. Crofton was advancing a new

theory, and the district judge did not misunderstand the law. As the judge

recognized, "If any of the liquid leaks out, any of the TCE leaked out of

the drum before [Crofton] moved it, that there would have been passive

disposal." Thus, he did not read CERCLA too narrowly. The judge’s ultimate rejection of the passive disposal or leaking theory rested on Crofton’s delay in introducing the specific theory. In response to the judge’s

inquiry about why Crofton had never before mentioned leaking, its lawyer said only that the complaint, which used the general statutory term

"disposed of," was sufficient. The general language in the complaint,

however, did not excuse Crofton from giving the defendants and the

court reasonable notice as to which of the several statutory definitions of

"disposal" it was basing its case upon. Leaking is not a "lesser included

burden of proof," as the majority suggests, ante at 9 n.3, but a separate

ground for liability. It might be easier to prove leaking than dumping in

some cases, but the defendant is still entitled to know whether the plaintiff’s theory of the case includes leaking. 

16 CROFTON VENTURES v. G&H PARTNERSHIP
or be emitted into the air or discharged into any waters,

including ground waters. 

42 U.S.C. § 6903(3). Different cases present different grounds for disposal liability. Not every case involves facts suggesting both active

disposal (for example, dumping or placing) and passive disposal (for

example, leaking or spilling). See, e.g., Kaiser Aluminum & Chem.

Corp. v. Catellus Dev. Corp., 976 F.2d 1338, 1342 & n.7 (9th Cir.

1992) (declining to consider the question of passive migration

because plaintiff alleged active disposal, specifically, that defendant

excavated contaminated soil and spread it over a clean part of the

property); Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d

837, 844-46 (4th Cir. 1992) (holding individual defendant liable

because hazardous substances were leaking from tanks during the

time that he owned the property, even though he did not handle the

tanks). Crofton chose to frame and try its case as one involving active

disposal only. The defendants responded accordingly. They did not

pursue discovery on the issue of leaking, nor did they present evidence at trial to rebut a theory of leaking. This was not an oversight

by the defendants, who legitimately believed that they were only facing a charge of active disposal. Crofton should not be permitted to

argue now that this is a passive disposal case requiring only a showing that the TCE leaked into the environment during the time of the

defendants’ ownership or operation. Indeed, it is unprecedented to

allow Crofton to make such a prejudicial change in its theory — in

its own words, to "drop a bomb shell" — at this late stage. See, e.g.,

Savarin Corp. v. Nat’l Bank of Pak., 447 F.2d 727, 732 (2d Cir.

1971). The district judge was correct to conclude that Crofton waived

the passive disposal theory of liability. 

Moreover, the district judge was correct in his observation (during

closing argument) that there was insufficient evidence to establish

that TCE leaked from the drums during the time the defendants would

have been responsible. Crofton points to the drum log and groundwater test results for evidence of leaking. See Br. of Appellant at 26;

Reply Br. of Appellant at 6. The drum log describes drums in various

states of damage or deterioration, including crushed, split, or leaking.

The log, however, revealed only what was seen. The log was not

based on any scientific analysis. Furthermore, because the log was

prepared at the time of the cleanup in 1995, it does not address

CROFTON VENTURES v. G&H PARTNERSHIP 17
whether any leakage occurred earlier when the defendants owned or

operated the site. The groundwater test results do show TCE contamination, but the testing was conducted after the drums had been

removed. Tr. 328-29. The expert reports indicate that Crofton had not

done any soil or groundwater sampling before the cleanup. See Expert

Report of Bruce Monteith, Pl.’s Ex. 35-A, at 6-7; Expert Report of

Joseph P. Lewandowski, Def. G&H’s Ex. 39, at 5, 10. In addition, the

groundwater test results are irrelevant to the issue of leaking. That

evidence was introduced for the sole purpose of proving that the drum

removal complied with the National Contingency Plan (NCP), an

issue that the district judge never reached. Before Crofton’s expert

testified as to the groundwater test results, the judge ruled that the evidence could only be used to prove compliance with the NCP. Tr. 327,

329-30. All of this reveals that even if the issue of leaking is considered, the evidence, as the district judge recognized, is not sufficient

to establish that the defendants are liable for passive disposal. 

II.

It is beside the point to say, as the majority does, that the facts presented by Crofton "easily permit a factfinder to conclude" that TCE

was placed on the site when defendants owned or operated it. Ante at

12. The record reveals that the district judge understood the bases of

liability under CERCLA and that he made factual findings that were

keyed to the case presented and the liability standards spelled out in

the Act. We review factual findings for clear error. See Fed. R. Civ.

P. 52(a) ("Findings of fact . . . shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of the trial

court to judge of the credibility of the witnesses."). The district

court’s factual findings are not clearly erroneous. 

The majority contends that the district judge erred because he

required "Crofton to show that the defendants themselves actively

dumped the TCE at the site or otherwise were involved in the dumping." Ante at 12. Although the district judge focused on whether Crofton proved that the defendants dumped the TCE on the site, this does

not mean that the judge misunderstood the law. The judge was merely

analyzing the case according to Crofton’s theory, specifically, that the

defendants had produced the TCE and then illegally dumped it on

another part of their property after 1977. See R. vol. 9 at 51 (closing

18 CROFTON VENTURES v. G&H PARTNERSHIP
argument by Crofton’s lawyer) ("We believe [the drums] all came

from the asphalt plant that was constructed by Mr. Mitchell in 1977

. . . .").2 Based on the case that Crofton presented, the judge framed

the "central question" as "whether Plaintiff has proved the alleged

dumping in the post 1976 period." J.A. 826. See also J.A. 825 n.14

("[A]s discussed herein, the Court concludes that Plaintiff has failed

to prove that there was any TCE dumping on the Site after 1977

. . . ."). The judge rejected some of the evidence because it did not

shed light on when the dumping occurred. See J.A. 833 ("[I]t would

be more likely that drum dumping took place prior to 1977, while the

dump site area was denuded from strip mining, rather than later, close

to 1984, after the vegetation had regrown."); J.A. 834 ("The presence

of [the fully corrugated] drums indicates that the dumping (at least of

2The trial judge’s comments that the majority includes in its footnote

3 did not result from any "limited interpretation of CERCLA." Ante at

11 n.3. Rather, they were made in reference to Crofton’s theory that the

defendants themselves placed the contaminated drums on the site. See R.

vol. 9 at 7 (closing argument by Crofton’s lawyer) ("[M]y argument it

would be what’s in the drums, who put them there, who knew about it

and who cleaned it up."); R. vol. 9 at 93-94 (judge’s statement during

closing argument) ("[Crofton’s lawyer] just went through a long list

which said it is evidence from which I should find that you [defendants]

put it there."). Notwithstanding Crofton’s theory, the judge recognized

that Crofton could prove an active disposal case by showing that some

person, not just the defendants, placed the contaminated drums on the

site while the defendants owned or operated it. As a result, the judge

focused his analysis on the timing of the dumping. See, e.g., R. vol. 9 at

11 ("Why don’t we start with the proof that it was put there between ’77

and ’88 . . . ."). 

According to the majority, the judge’s comment that Crofton had no

"responsibility" reveals the "court’s misperception of the statute’s

scope." Ante at 11 n.3. The majority, I believe, has misconstrued the

judge’s statement. It is true that as the current landowner Crofton is liable for cleanup costs under CERCLA. 42 U.S.C. § 9607(a)(1). But the

judge was not referring to this technical statutory meaning. Instead, he

was using the ordinary meaning of "responsibility." See R. vol. 9 at 4-5

("[Crofton] is innocent as I use the term. That may not be precisely the

right word when you get down to it."). In fact, the judge’s ruling against

Crofton even though he considered Crofton "innocent" shows that the

judge understood CERCLA’s strict liability scheme. 

CROFTON VENTURES v. G&H PARTNERSHIP 19
these drums) took place a long, long time ago."); J.A. 835 ("[I]t would

have been simple, yet potentially significant, to have preserved evidence of . . . the vintage of the tires.").

In a 31-page opinion the district judge explained in detail why he

concluded that Crofton did not prove its active disposal case by a preponderance of the evidence. The first problem was "the absence of

reliable proof of the location and size of the dump site." One of Crofton’s assertions was that before 1977 heavy vegetation surrounding

the dump site prevented trucks from driving to the site and unloading

the drums, but that by 1984 the area was cleared and easily accessible.

This, according to Crofton, allowed the inference that the drum dumping took place after 1977. But there was confusion in Crofton’s case

about the location of the site. Crofton’s expert on aerial photographs

placed the dump site at a location on the 1984 aerial photograph that

was different from the location he identified on the 1968 and 1977

photographs. See R. vol. 8, ex. 3B-3D. Because of this confusion, the

judge concluded that Crofton’s "argument [that the dumping took

place after 1977] based upon the alleged progressive changes in the

dump site [from heavily vegetated to cleared] totally lacked an evidentiary foundation." The second problem was that much of the evidence that would have established the timing of the dumping either

was not fully analyzed or was lost during the cleanup process. Crofton

failed to present an expert analysis on the degradation of the drums

and failed to specify how many drums were fully corrugated (in use

in the 1930s and 1940s) and how many were semi-corrugated (in use

later). Crofton likewise did not preserve evidence removed from the

dump site that would have shed light on when the dump site was in

use. This evidence included tires, mud flaps, road signs, and junked

household appliances. The final problem was that Crofton’s evidence

regarding the defendants’ involvement in the dumping was too speculative. The deposition of a former employee of the defendants supported Crofton’s case, but the judge considered the employee’s

testimony unreliable because the defendants had fired him after he

was caught stealing. The judge concluded that the remaining evidence

created no more than a suspicion that the defendants dumped their

TCE waste at the site. Crofton has not pointed to any record evidence

that would fill the gaps in proof that the district judge identified. 

Not once in part II does the majority mention the clearly erroneous

standard of review, nor does it apply that standard. It is not enough

20 CROFTON VENTURES v. G&H PARTNERSHIP
to say, as the majority does, that a factfinder could conclude that TCE

was placed on the site while the defendants owned or operated it. This

is not the standard that governs our review. The district judge, who

heard four days of testimony and studied almost one hundred exhibits,

found that Crofton did not prove a case of active disposal. After

reviewing the evidence and giving "due regard . . . to the opportunity

of the trial court to judge of the credibility of the witnesses," I am

firmly convinced that the district judge did not commit clear error in

finding that Crofton did not prove its case. Fed. R. Civ. P. 52(a). See

also Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). 

III.

This appeal at the core is not about CERCLA. It is about whether

the defendants won according to rules governing the trial of a lawsuit

and any appeal from the judgment. These rules are that a defendant

is entitled to fair notice of the plaintiff’s theory of liability at trial and

that findings of fact are reviewed on appeal for clear error. Because

the defendants won the case according to these rules, the majority’s

remand of the CERCLA claim is simply wrong. I therefore respectfully dissent from parts I and II of the majority opinion, which govern

the remand. I concur in part III, which affirms the judgment in favor

of the defendants on Crofton’s common law claims.

CROFTON VENTURES v. G&H PARTNERSHIP 21