FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TEAM ENTERPRISES, LLC, 

Plaintiff-Appellant,

v.

WESTERN INVESTMENT REAL ESTATE

TRUST, AKA Western Properties

Trust; WPT, INC.,

Defendants,

and

PK II CENTURY CENTER LP; PAN

PACIFIC RETAIL PROPERTIES, INC., as

a corporation and as successor-ininterest to Western Investment

Real Estate Trust; KIMCO REALTY

CORPORATION, as a corporation and 

as successor-in-interest to Pan

Pacific Retail Properties, Inc.;

PRUDENTIAL REAL ESTATE

INVESTORS, as a corporation and as

successor-in-interest to Pan Pacific

Retail Properties, Inc.; JOHN A.

BRANAGH, individually and as a

partner of Modesto Center

Investors, LP and MC II, LP;

LYNETTE F. BRANAGH, individually

and as a partner of Modesto

Center Investors, LP and MC II,

LP; GAYLON C. PATTERSON,

individually and as a partner of 

9559
Modesto Center Investors, LP and 

MC II, LP; MARLA J. PATTERSON,

individually and as a partner of

Modesto Center Investors, LP and

MC II, LP; MODESTO CENTER

INVESTORS, LP; MC II, LP;

VULCAN MATERIALS COMPANY;

LEGACY VULCAN CORPORATION; No. 10-16916

MULTIMATIC CORPORATION, now D.C. No.

known as Kirrberg Corporation;  1:08-cv-00872-LJOMULTIMATIC, LLC; THE KIRRBERG SMS

CORPORATION, FKA Multimatic

Corporation; THE DOW CHEMICAL OPINION

COMPANY; R.R. STREET & CO.,

INC.,

Defendants-Appellees,

v.

CITY OF MODESTO,

Third-party-defendant. 

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

May 13, 2011—San Francisco, California

Filed July 26, 2011

9560 TEAM ENTERPRISES v. WESTERN INVESTMENT
Before: Diarmuid F. O’Scannlain and Ronald M. Gould,

Circuit Judges, and Amy J. St. Eve, District Judge.*

Opinion by Judge O’Scannlain;

Concurrence by Judge St. Eve

*The Honorable Amy J. St. Eve, United States District Judge for the

Northern District of Illinois, sitting by designation. 

TEAM ENTERPRISES v. WESTERN INVESTMENT 9561
COUNSEL

Jan A. Greben, Greben & Associates, Santa Barbara, California, argued the cause and filed the briefs for the plaintiffappellant. With her on the briefs were Jeff G. Coyner and

Danielle L. De Smeth, Greben & Associates, Santa Barbara,

California.

Eric Grant, Hicks Thomas LLP, Sacramento, California,

argued the cause and filed a brief for the defendant-appellee.

With him on the brief was John B. Thomas, Hicks Thomas

LLP, Houston, Texas.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide, among other things, whether the manufacturer of a machine used in the dry cleaning process may be

held liable for contribution to environmental cleanup costs

under the Comprehensive Environmental Response, Compensation, and Liability Act.

9564 TEAM ENTERPRISES v. WESTERN INVESTMENT
I

Plaintiff-Appellant Team Enterprises, LLC (“Team”) has,

since 1980, leased space in a shopping center in Modesto,

California, where it operates a dry cleaning store. From 1980

to 2004, Team used perchlorethylene (“PCE”), a volatile

organic compound defined as a “hazardous substance” by the

State of California, in its dry cleaning operation. Team’s dry

cleaning machines used PCE as part of the cleaning process,

thereby generating wastewater containing the chemical. Team

used Puritan Rescue 800 filter-and-still combination equipment (“Rescue 800”), designed and manufactured by

Defendant-Appellee R.R. Street & Co., Inc. (“Street”), to filter and to recycle the PCE-laden wastewater for reuse. The

Rescue 800 returned distilled PCE to Team’s dry cleaning

machines and deposited the resulting wastewater into an open

bucket. Once in the bucket, some of the remaining PCE would

separate from the water, allowing Team to recapture “pure”

(or visible amounts of) PCE for reuse. The remaining wastewater contained dissolved—and invisible—PCE.

Team disposed of this wastewater by pouring it down the

sewer drain. Some of the PCE then leaked into the soil, and

the California Regional Water Quality Control Board deemed

the affected property in need of cleanup, which Team duly

performed at its own expense.

Team sued Street and several other defendants in the Eastern District of California,1

 for contribution under the Comprehensive Environmental Response, Compensation, and

Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675. Team

also alleged various state-law causes of action, including

claims for trespass and nuisance.

1

In a memorandum disposition filed concurrently with this opinion, we

decide Team’s appeal from the district court’s grant of judgment on the

pleadings to Multimatic Corporation. See Team Enters., LLC v. Multimatic

Corp., No. 10-16486. 

TEAM ENTERPRISES v. WESTERN INVESTMENT 9565
The district court granted summary judgment to Street on

all claims and entered final judgment as to it. Team timely

appealed the district court’s grant of summary judgment as to

Team’s CERCLA, trespass, and nuisance claims.

II

A

[1] Congress enacted CERCLA in 1980 “in response to the

serious environmental and health risks posed by industrial

pollution.” Burlington N. & Santa Fe Ry. Co. v. United States,

129 S. Ct. 1870, 1874 (2009). CERCLA was “designed to

promote the timely cleanup of hazardous waste sites and to

ensure that the costs of such cleanup efforts were borne by

those responsible for the contamination.” Id. (internal quotation marks and citation omitted). The statute imposes strict

liability for environmental contamination upon four broad

classes of covered persons.2 42 U.S.C. § 9607(a). 

[2] Once identified as a covered person, “an entity . . . may

be compelled to clean up a contaminated area or reimburse

the Government for past and future response costs.” Burlington N., 129 S. Ct. at 1878; see also 42 U.S.C.

§ 9607(a)(4)(A)-(D) (describing the remediation and cleanup

costs for which covered persons may be held liable). CERCLA further provides that a person who has incurred cleanup

costs may seek contribution from any other covered person.

42 U.S.C. § 9613(f)(1). Team argues that Street is a covered

person because Street allegedly “arranged for disposal” of

hazardous substances. The section giving rise to arranger lia2These categories include: (1) the current owners and operators of a vessel or facility, (2) the former owners or operators of a facility at the time

of disposal of any hazardous substance, (3) any persons who arranged for

disposal or treatment of a hazardous substance at any facility owned or

operated by another party, and (4) transporters of such substances to a disposal or treatment facility. 42 U.S.C. § 9607(a). 

9566 TEAM ENTERPRISES v. WESTERN INVESTMENT
bility provides, in relevant part, that liability shall be imposed

on:

any person who by contract, agreement or otherwise

arranged for disposal . . . of hazardous substances

owned or possessed by such person, by any other

party or entity, at any facility . . . owned or operated

by another party or entity and containing such hazardous substances . . . .

42 U.S.C. § 9607(a)(3). Arranger liability ensures that owners

of hazardous substances may not free themselves from liability by selling or otherwise transferring a hazardous substance

to another party for the purpose of disposal. See Burlington

N., 129 S. Ct. at 1878 (“[Arranger] liability would attach . . .

if an entity were to enter into a transaction for the sole purpose of discarding a used and no longer useful hazardous substance.”). Because there are myriad schemes by which a party

may “arrange[ ] for disposal” of a hazardous substance, courts

have recognized that determining whether a transaction gives

rise to arranger liability is a fact-intensive inquiry. See Cal.

Dep’t of Toxic Substances v. Alco Pac., Inc., 508 F.3d 930,

938 (9th Cir. 2007).

B

Team alleges that Street is subject to arranger liability

under two distinct theories: (1) Street took “intentional steps”

and “planned a disposal” of PCE, and (2) Street had “authority to control and exercised control over the disposal process.”

1

[3] In Burlington Northern, the Supreme Court recognized

that “CERCLA does not specifically define what it means to

‘arrang[e] for’ disposal of a hazardous substance.” 129 S. Ct.

at 1879. Nevertheless, giving the phrase its “ordinary meaning,” the Court explained that “the word ‘arrange’ implies

TEAM ENTERPRISES v. WESTERN INVESTMENT 9567
action directed to a specific purpose.” Id. (citing MerriamWebster’s Collegiate Dictionary 64 (10th ed. 1993)). Therefore, “an entity may qualify as an arranger . . . when it takes

intentional steps to dispose of a hazardous substance.” Id.

While actions taken with the intent to dispose of a hazardous

substance are sufficient for arranger liability, actions taken

with the mere knowledge of such future disposal are not. See

id. at 1880. As the Court explained,

[w]hile it is true that in some instances an entity’s

knowledge that its product will be . . . discarded may

provide evidence of the entity’s intent to dispose of

its hazardous wastes, knowledge alone is insufficient

to prove that an entity “planned for” the disposal,

particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful

product. 

Id. (emphasis added).

[4] In light of the intent requirement, we have long recognized the so-called useful product defense to CERCLA

claims. See Alco Pac., 508 F.3d at 934. The defense prevents

a seller of a useful product from being subject to arranger liability, even when the product itself is a hazardous substance

that requires future disposal. Id. In other words, a person may

be subject to arranger liability “only if the material in question

constitutes ‘waste’ rather than a useful product.”

3

Id. (citation

omitted). A plaintiff can overcome the defense by showing

3CERCLA does not define the term “disposal” but instead incorporates

the definition set forth in the Solid Waste Disposal Act (“SWDA”). See

42 U.S.C. § 9601(29). The SWDA defines “disposal” as “the discharge . . .

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

hazardous waste . . . may enter the environment . . . .” Id. § 6903(3).

Because the term disposal specifically incorporates the concept of

“waste,” this court has “developed a body of case law distinguishing

between the disposal . . . of ‘waste’ and the sale of a ‘useful product.’ ”

Alco Pac., 508 F.3d at 934. 

9568 TEAM ENTERPRISES v. WESTERN INVESTMENT
that the substance involved in the transaction “has the characteristic of waste at the time it is delivered to another party.”

Id. at 936 (internal quotation marks and citation omitted). 

The useful product doctrine serves as a convenient proxy

for the intent element because of the general presumption that

persons selling useful products do so for legitimate business

purposes. It would be odd, for example, to say that an auto

parts store sells motor oil to car owners for the purpose of disposing of hazardous waste. Conversely, persons selling or

otherwise arranging for the transfer of hazardous waste

(which no longer serves any useful purpose) are more likely

trying to avoid incurring liability that might attach were they

to dispose of the hazardous waste themselves. In other words,

the probable purpose for entering into such a transaction is to

dispose of hazardous waste.

a

[5] We recognize that the prototypical case applying the

useful product doctrine to avoid liability involves a defendant

selling products that qualify as hazardous substances, such as

pesticides or batteries. See, e.g., Burlington N., 129 S. Ct. at

1870 (sale of pesticides); Alco Pac., 508 F.3d 930 (sale of

dross and slag); La.-Pac. Corp. v. ASARCO Inc., 24 F.3d

1565 (9th Cir. 1994) (sale of slag); Catellus Dev. Corp. v.

United States, 34 F.3d 748 (9th Cir. 1994) (sale of spent batteries). Conversely, none of the parties in this appeal contend

that the Rescue 800 equipment is itself a hazardous substance.

Nevertheless, the presumption animating the doctrine—that

people sell useful products for legitimate business purposes,

not for the purpose of disposing of waste—is applicable to

this case. Absent a showing that Street intended for its sale of

the Rescue 800 to result in the disposal of PCE, we must conclude that Street lacks the requisite intent for arranger liability. See Burlington N., 129 S. Ct. at 1879 (“ ‘[I]t would be

error for us not to recognize the indispensable role that state

of mind must play in determining whether a party has otherTEAM ENTERPRISES v. WESTERN INVESTMENT 9569
wise arranged for disposal . . . of hazardous substances.’ ”

(quoting United States v. Cello-Foil Prods., Inc., 100 F.3d

1227, 1231 (6th Cir. 1996))).

b

[6] Team insists that intent can be inferred from Street’s

designing its product in such a way as to render disposal inevitable. According to Team, the Rescue 800 generated wastewater containing dissolved PCE, and Team allegedly had “no

other choice than to dispose of the contaminated waste water”

by pouring it down the drain. But the design of the Rescue

800 does not indicate that Street intended the disposal of PCE.

At most, the design indicates that Street was indifferent to the

possibility that Team would pour PCE down the drain. This

is insufficient. See id. at 1880 (rejecting the Government’s

argument that Shell could be held liable as an arranger “by

shipping [the pesticide] . . . under conditions it knew would

result in the spilling of a portion of the hazardous substance”).

[7] Team has presented no evidence indicating that Street

designed the Rescue 800 for the alleged “purpose of being a

waste disposal machine.” The self-evident purpose of the Rescue 800 was to recover and to recycle usable PCE that would

otherwise be discarded. Indeed, if Team’s assertions are true,

Team would have disposed of far more PCE had it not used

the Rescue 800 to recapture used PCE. That Team felt compelled to dispose of wastewater containing PCE after using

the Rescue 800 does not indicate that Street “planned a disposal” of PCE. We are therefore satisfied that Street is not

subject to arranger liability on the basis of its product design.

c

[8] Team also urges us to infer intent from Street’s failure

to warn Team about the risk of contamination that would

result from improper disposal. But allowing intent to be

inferred from a mere failure to warn would greatly expand the

9570 TEAM ENTERPRISES v. WESTERN INVESTMENT
scope of arranger liability. For example, a plaintiff would

have a viable CERCLA claim against an auto manufacturer

that failed to warn purchasers that motor oil must be disposed

of properly once it has outlived its usefulness. Countless other

manufacturers would also be subject to arranger liability

under Team’s novel theory. We are unpersuaded that CERCLA liability extends so far. While a manufacturer who fails

to warn the buyer about a product’s inherent risk might be

subject to a products-liability claim, we are not convinced that

sellers of useful products must instruct buyers on proper disposal techniques in order to avoid CERCLA liability. 

[9] In conclusion, we hold that to satisfy the intent requirement, a company selling a product that uses and/or generates

a hazardous substance as part of its operation may not be held

liable as an arranger under CERCLA unless the plaintiff

proves that the company entered into the relevant transaction

with the specific purpose of disposing of a hazardous substance. Team has failed to present evidence giving rise to a

triable issue as to whether Street sold the Rescue 800 with

such a purpose.

2

[10] Team also asserts that Street “exercised control over

the disposal process.” Arranger liability premised upon a

party’s control over the disposal process is well established.

See United States v. Shell Oil Co., 294 F.3d 1045, 1055 (9th

Cir. 2002) (“[C]ontrol is a crucial element of the determination of whether a party is an arranger under § 9607(a)(3)”). In

Shell Oil, we explained that “ ‘[n]o court has imposed

arranger liability on a party who never owned or possessed,

and never had any authority to control or duty to dispose of,

the hazardous materials at issue.’ ” Id. at 1058 (quoting

United States v. Iron Mountain Mines, Inc., 881 F. Supp.

1432, 1451 (E.D. Cal. 1995)); see also Gen. Elec. Co. v.

AAMCO Transmissions, Inc., 962 F.2d 281, 286 (2d Cir.

1992) (“[I]t is the obligation to exercise control over hazardTEAM ENTERPRISES v. WESTERN INVESTMENT 9571
ous waste disposal, and not the mere ability or opportunity to

control the disposal of hazardous substances that makes an

entity an arranger under CERCLA’s liability provision.”).

Given that Street had no legal authority to direct Team’s conduct, Team must show that Street exercised actual control

over Team’s disposal of PCE to subject Street to arranger liability.

a

Here, Street never owned or possessed the hazardous substances at issue. Nor did Street have a duty to dispose of the

PCE Team used in its dry cleaning machines. Nevertheless,

Team claims that because the design of the Rescue 800 “required a dry cleaner to toss contaminated waste water down

the drain,” Street controlled the disposal of PCE. This argument is unavailing in light of Burlington Northern. There,

Shell’s requirement that the purchaser store the pesticide in

bulk required the purchaser to transfer the chemical from one

bulk tank to another using a process that invariably led to disposal of the hazardous substance. Burlington N., 129 S. Ct. at

1875. The Court held, however, that Shell was not liable as

an arranger under such circumstances. Id. at 1880.

b

[11] Team also points to a portion of the Rescue 800’s

instruction manual that directed users to pour wastewater into

a bucket. This is insufficient to establish control because

instruction manuals are akin to recommendations and, therefore, do not control the actions of the purchaser. See Cal.

Dep’t of Toxic Substances Control v. Payless Cleaners, 368

F. Supp. 2d 1069, 1080 (E.D. Cal. 2005) (concluding that

instruction manuals do not “exercise [ ] control over the ultimate decision on how to dispose of the PCE”). Even if the

evidence established that Team was compelled to follow

every step in the instruction manual, the manual directed

Team to attach a “pipe from waste water leg of water separa9572 TEAM ENTERPRISES v. WESTERN INVESTMENT
tor downward 18 [inches] so that waste water may be caught

in a pail or other suitable container.” This procedure was

implemented to ensure that “solvent will not be lost down the

drain.” Team’s vice president of operations in Modesto, Frederic Jones, Jr., confirmed in his deposition that “one purpose

of the bucket was to prevent pure [PCE] from going down the

drain in the event of a separator malfunction.” Team presented no evidence that Street controlled its subsequent act of

pouring the contents of the pail down the drain. Team claims

that other disposal options were cost prohibitive, and that it

therefore had “no practical choice as to how to dispose of the

waste water.” Nevertheless, without evidence that Street exercised actual control over Team’s disposal, the options (or lack

thereof) available to Team are irrelevant for purposes of

arranger liability.

c

Team next argues that Street’s “employees dumped PCE

down the drain in Team’s stores,” when they visited the stores

to take titration samples. The only reference in the record to

such activity, however, comes from Jones’s deposition. When

Street’s counsel asked Jones where he recalled seeing Street

employees dumping wastewater down the drain, Jones

answered, “McHenry,” referring to a store in McHenry, California. Jones’s own testimony fails to establish that any Street

employee dumped PCE down the drain at the Modesto store

at issue in this case.4

The other pieces of evidence offered by Team in its opposition to Street’s motion for summary judgment similarly fail to

establish that Street exercised any actual control over Team’s

4We do not decide whether a party could ever be held liable as an

arranger on the ground that its employees disposed of small samples of a

hazardous substance once every month or so. But even if we were to

accept such a theory of liability, the evidence in the record fails to create

a genuine dispute as to any material fact with respect to this claim. 

TEAM ENTERPRISES v. WESTERN INVESTMENT 9573
disposal of PCE. The deposition of Street’s vice president,

Vincent Romanco, establishes only that Street’s manual

instructed Team to dispose of the wastewater into a bucket

and that Street did not tell Team what to do with the contents

of the bucket. And the internal memorandum authored by

Manfred Wentz, Street’s Vice President for Research and

Development and Environmental Affairs, establishes only that

Street knew that many dry cleaners disposed of PCE-laden

wastewater by pouring it down the drain. 

[12] Team does not point to any evidence in the record that

Street hooked up the Rescue 800 to the sewer, that Street continued to own the Rescue 800 used in Team’s store, that Street

owned or possessed the PCE that Team disposed of, that

Street made dumping wastewater down the drain a condition

of its sales contract with Team, or that Street employees

poured wastewater down the drain at Team’s stores. In short,

there is a dearth of evidence indicating that Street exercised

actual control over Team’s disposal.

C

[13] Accordingly, we conclude that Team has not presented evidence giving rise to a genuine dispute as to any

material fact with respect to its CERCLA claim.

III

[14] Team also argues that the district court erred by granting summary judgment to Street on Team’s nuisance claim.

California defines a “nuisance” as “[a]nything which is injurious to health, . . . or is indecent or offensive to the senses, or

an obstruction to the free use of property, so as to interfere

with the comfortable enjoyment of life or property.” Cal. Civ.

Code § 3479. Chemical contamination of the soil that affects,

or threatens to affect, water quality constitutes a nuisance.

Selma Pressure Treating Co. v. Osmose Wood Preserving Co.

of Am., Inc., 271 Cal. Rptr. 596, 607 (Ct. App. 1990), over9574 TEAM ENTERPRISES v. WESTERN INVESTMENT
ruled on other grounds by Johnson v. Am. Standard, Inc., 179

P.3d 905, 913-14 (Cal. 2008). A person may be held liable

under nuisance law if he “ ‘creat[es] or assist[s] to create and

maintain the nuisance.’ ” Id. (quoting Hardin v. Sin Claire, 47

P. 363, 364 (Cal. 1896)); see also City of Modesto Redev.

Agency v. Superior Court, 13 Cal. Rptr. 3d 865, 872 (Ct. App.

2004) (“[L]iability for nuisance does not hinge on whether the

defendant owns, possesses or controls the property, nor on

whether he is in a position to abate the nuisance; the critical

question is whether the defendant created or assisted in the

creation of the nuisance.”). 

[15] Here, it is undisputed that chemical contamination of

the soil, which is “injurious to health,” Cal. Civ. Code § 3479,

has occurred. The viability of Team’s claim therefore depends

on whether Street “creat[ed] or assist[ed] to create and maintain the nuisance.” Selma Pressure Treating, 271 Cal. Rptr. at

607. A defendant may be liable for assisting in the creation of

a nuisance if he either (1) affirmatively instructs the polluting

entity to dispose of hazardous substances in an improper or

unlawful manner, see City of Modesto, 13 Cal. Rptr. 3d at

874-75, or (2) manufactures or installs the disposal system,

see Selma Pressure Treating, 271 Cal. Rptr. at 607. Mere butfor causation, on the other hand, does not give rise to nuisance

liability. See Redevelopment Agency of the City of Stockton v.

BNSF Ry. Co., No. 09-16585, ___ F.3d ___ (9th Cir. 2011)

(holding that a railroad could not be held liable for nuisance

that resulted when pollution traveled through a french drain

installed by the railroad because the drain was “designed to

move water, not contaminants”).

[16] Although Team presented evidence that Street

instructed it to pour wastewater containing PCE into a bucket,

there is no evidence in the record that Street “instructed the

dry cleaners to set up their equipment to discharge solventcontaining wastewater into the drains and sewers,” or that

Street “gave dry cleaners instructions to dispose of spilled

[PCE] on or in the ground.” City of Modesto, 271 Cal. Rptr.

TEAM ENTERPRISES v. WESTERN INVESTMENT 9575
3d at 874. And despite Team’s protestations that once wastewater from the Rescue 800 had been poured into a bucket

there was no alternative but to pour it down the drain, Team’s

alleged lack of alternatives do not indicate that Street engaged

in the “kinds of affirmative acts or instructions” that would

“support a finding that [Street] assisted in creating a nuisance.” Id.

[17] Moreover, it is clear from the record that the Rescue

800 is not a disposal system. The Rescue 800 was not

designed to route wastewater from the dry cleaning machines

to the sewer; it was designed to filter and to recycle used PCE

that otherwise would have been lost. We therefore agree with

the district court’s conclusion that Team failed to present evidence giving rise to a genuine dispute as to any material fact

with respect to its nuisance claim.

IV

[18] Finally, Team argues that the district court erred by

granting summary judgment to Street on Team’s trespass

claim. A trespass is “an invasion of the interest in the exclusive possession of land.” Capogeannis v. Superior Court, 15

Cal. Rptr. 2d 796, 799 (Ct. App. 1993) (citation and internal

quotation marks omitted). “The essence of the cause of action

for trespass is an ‘unauthorized entry’ onto the land of another.” Martin Marietta Corp. v. Ins. Co. of N. Am., 47 Cal. Rptr.

2d 670, 681 (Ct. App. 1995) (citation and internal quotation

marks omitted). In California, “it is established that trespass

. . . may include . . . invasion by pollutants.” Id. at 682.

[19] Even though the action causing the entry of pollutants

does not have to be intentional, the entry must be “unauthorized” to support a cause of action for trespass. Id. at 681; see

also Cnty. of Santa Clara v. Atl. Richfield Co., 40 Cal. Rptr.

3d 313, 333 (Ct. App. 2006) (“Where the owner of property

voluntarily places a product on the property and the product

turns out to be hazardous, the owner cannot prosecute a tres9576 TEAM ENTERPRISES v. WESTERN INVESTMENT
pass cause of action against the manufacturer of that product

because the owner has consented to the entry of the product

onto the land.”). Team, however, did not present any evidence

that either the Rescue 800 or the PCE entered the property

without Team’s consent. Moreover, Team’s employees contaminated the soil by pouring the wastewater down the drain,

and “one cannot commit an actionable interference with one’s

own possessory right.” Capogeannis, 15 Cal. Rptr. 2d at 799.

Because Team’s contamination of the land was not a trespass

against itself, Street may not be held liable for assisting in a

trespass.5

We therefore conclude that Team has failed to present evidence creating a genuine dispute as to any material fact with

respect to its trespass claim.

V

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

ST. EVE, District Judge, specially concurring:

I am pleased to join the majority’s well-reasoned and

insightful opinion. I write separately to explain my view that

CERCLA, by its plain language, should not apply to this case.

5Team’s reliance on Newhall Land & Farming Co. v. Superior Ct., 23

Cal. Rptr. 2d 377 (Ct. App. 1993), is misplaced. In Newhall, the court held

that the plaintiff had stated a claim for trespass under a “continuing trespass theory.” Id. at 383 (“A trespass may be committed by the continued

presence on the land of a structure, chattel, or other thing which the actor

has tortiously placed there, whether or not the actor has the ability to

remove it.” (citation and internal quotation marks omitted)). Such a theory

has no relevance to this case because Street did not tortiously place the

Rescue 800 or the PCE on Team’s property. 

TEAM ENTERPRISES v. WESTERN INVESTMENT 9577
The Supreme Court has explained that courts are to consider “the plain language of [CERCLA]” and to give undefined terms in the statute their “ordinary meaning.”

Burlington N., 129 S. Ct. at 1879. The arranger-liability provision of the Act covers “any person who by contract, agreement or otherwise arranged for disposal or treatment . . . of

hazardous substances owned or possessed by such person, by

any other party or entity, at any facility . . . owned or operated

by another party or entity and containing such hazardous substances.” 42 U.S.C. § 9607(a)(3) (emphasis added). To be liable under this provision, therefore, an arranger must have

owned or possessed the “hazardous substance.”

The plain language of the statute indicates that a liable “arranger” must own or possess the hazardous substance.

Although Ninth Circuit precedent forecloses this interpretation for the purpose of the present case, see Pakootas v. Teck

Cominco Metals, Ltd., 452 F.3d 1066, 1079-82 (9th Cir.

2006), I am convinced that the better construction of the

arranger-liability provision of CERCLA is as I have indicated.

In this case, the undisputed evidence reveals that Street did

not, at any point, own or possess the relevant PCE. Accordingly, Street is entitled to summary judgment on Appellant’s

CERCLA claim.

9578 TEAM ENTERPRISES v. WESTERN INVESTMENT