1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

150 ACRES OF LAND, More orLess, Located in MedinaCounty, Ohio,

Defendant-Appellant.

Appeal from the United St

for the Northern District of 

No. 95-01009—Solomon Oliv

Argued: April 2

Decided and Filed: Jan

Before: JONES, BOGGS, and 

____________

COUNSE

ARGUED: David S. Hoffmann, MHOFFMAN, Cleveland, Ohio, fGoldstein, U.S. DEPARTMENT NATURAL RESOURCES DIVISI
2 United States v. 150 Acres of Land No. 98-3160

Appellee. ON BRIEF: David S. Hoffmann, McMAHON,DeGULIS & HOFFMAN, Cleveland, Ohio, for Appellant.Jared A. Goldstein, James D. Freeman, U.S. DEPARTMENTOF JUSTICE, LAND & NATURAL RESOURCESDIVISION, Washington, D.C., for Appellee. 

BOGGS, J., delivered the opinion of the court. JONES, J.

(p. 23), delivered a separate concurring opinion. COLE, J.(pp. 24-27), delivered a separate opinion concurring in partand dissenting in part.

_________________

OPINION

_________________

BOGGS, Circuit Judge. The federal Environmental

Protection Agency (“EPA”) sued the Glidden Co. in

personam and certain land owned by various members of theBohaty family in rem under the ComprehensiveEnvironmental Response, Compensation, and Liability Act(“CERCLA”), 42 U.S.C. § 9601 et seq., in connection withcosts incurred in removing toxic wastes found on the land.Glidden settled with the EPA for a small fraction of the cleanup costs, and the Bohatys and the government cross-movedfor summary judgment. The district court granted summaryjudgment for the government, thereby perfecting a lien on theproperty under 42 U.S.C. § 9607(l)(1). The Bohatys now

appeal the judgment of the district court ordering the sale ofthe land and directing that the proceeds be used to satisfy thelien on the property. We reverse the judgment of the districtcourt in part, affirm in part, and remand the case for furtherproceedings.

I

The land in question is approximately 150 contiguous acres

of real estate in three parcels, located on Pearl Road inMedina County, Ohio. It has been owned “for at least threegenerations” by the Bohaty family, which has operated afarm-equipment repair business at the extreme western edge.

No. 98-3160 United States property into appropriate units basand the bounds of contamination pthe present case, I would hold thaParcel 1, based on the divisibility ounits and the admission that no outside of Parcel 1, and thus I wproper only as it pertains to Parcel 

For the foregoing reasons, I res

Part II. C. of the majority opinion.
26 United States v. 150 Acres of Land No. 98-3160

389, 395-96 (E.D. Va. 1994) (stating that what “matters forthe purpose of defining the scope of the facility is where thehazardous substances were . . . disposed of . . . or haveotherwise come to be located” and “the uncontradicted recordconfirms that hazardous substances exist . . . in all quadrantsof the property”) (footnotes and internal quotations omitted).In essence, the scope of contamination determined the scopeof the facility.

Conversely, where the Fourth Circuit found that

contamination was not widespread, the court limited the“facility” to include only the area where hazardous substanceswere located. See, e.g., Nurad, Inc. v. William E. Hooper &Sons Co., 966 F.2d 837, 843 (4th Cir. 1992) (stating that “theonly ‘area’ where hazardous substances [had] ‘come to belocated’ was in and around the storage tanks, so the relevant‘facility’ [was] properly confined to that area”). 

This case presents land that is geographically distinct and

while used in part as a dumping site, is admittedly notcontaminated in its entirety. It is clear that no contaminationwas discovered outside of Parcel 1. Following this court’sapproach in Brighton and applying § 9601(9)(B), the facilityunder these facts should be limited to Parcel 1; the area of theentire contamination that is reasonably and naturally separablefrom Parcels 2 and 3.

Where the contamination is confined to a single parcel and

there is no indication that dumping has occurred on connectedparcels, this court should look to the metes and bounds of thecontamination as a measure, at least in part, when defining thescope of the “facility” under 42 U.S.C. § 9601(9). Cf.Brighton, 153 F.3d at 313 (relying on scope ofcontamination); Axel Johnson, Inc., 191 F.3d at 418-19(examining scope of contamination and divisibility of land);Nurad, Inc., 966 F.2d at 843 (relying on scope ofcontamination). If we are to apply the statutory languagedefining the “facility” under § 9601(9) and follow theteachings of Brighton with respect to limiting the “facility” atall, this case presents a clear opportunity to divide the

No. 98-3160 United States According to the district court’s opEthel Bohaty owns a 37/45 intereBarbara Bohaty, Belinda Bohaty, aa 2/45 interest in the land. Each intexcept for that part of Ethel Bohatthe land, which she purchased from descended at the same time as her in-law, John Bohaty, died on April interest in the property to her huinterests now owned by John, Jr., Bto them, and the remainder to tJanuary 27, 1984, Vencel died, leEthel. On February 15, 1985, the thheirs sold their interests to Ethel.

On March 30, 1987, the local 

numerous fifty-five gallon drums othe Ohio Environmental ProtecOEPA visited the property and abandoned drums containing chemicals, and red sludge. OEnegative. Ethel Bohaty stated that inform her if the drums posed a prohear from them.

On August 17, 1989, OEPA agai

connection with the City of Mediacres for road construction. The inthe 1987 inspection. Ethel Bohaty rid of any toxic substances thainspectors found 200–300 drums, for concern, and five undergrosuggested a follow-up inspectiovegetation would be less dense. Tfrom historical aerial photograpplacement had occurred from the m1970s. Ethel Bohaty stated that the that the drums contained hazardshould remove them or take other p
4 United States v. 150 Acres of Land No. 98-3160

1The EPA regional judicial officer found that the Bohatys had raised

credibility issues concerning several affidavits and depositions profferedby the government in support of this claim “that defeat their usefulness tothe EPA.”did not contact her further regarding the August 1989inspection.

On September 16, 1991, OEPA requested assistance from

the federal EPA. In October 1991, the EPA asked to inspectthe property. On October 8, 1991, EPA inspectors conducteda preliminary inspection that identified approximately 400drums. Later that afternoon, the inspectors took soil samplesfrom various parts of the property. Laboratory analysisrevealed that each of the samples exhibited flashpoints of lessthan 130 degrees Fahrenheit, therefore posing an ignitabilityhazard, as well as substantially acidic pH values. The EPAconsidered these results sufficient to justify a removal actionunder 40 C.F.R. § 300.415(b)(2).

The government presented evidence that Vencel Bohaty,

Ethel’s husband (now deceased) knew of the dumping andmay have profited from it.1 The living Bohatys presentedunrebutted evidence that they did not know of the presence ofdrums on the property, other than those used in the farmequipment repair business. Except for the extreme westernedge of the property, the land was heavily vegetated,especially the area containing the drums. In fact, EPAinspectors often could not see the drums until they stumbledon them.

On December 16, 1991, the EPA sent John and Ethel

Bohaty a notice of potential liability asking them to agree topay for the response activities. The notice requested aresponse within five days. The Bohatys did not respond to thenotice.

On January 15, 1992, the EPA began a removal operation

on the property. Altogether, approximately 1000 drums wereremoved, of which approximately 550 contained waste and

No. 98-3160 United States records, were transferred on the smaintained in similar undeveloped not determinative of the bounds of the statute direct our inquiry to bounds of the “site or area where been deposited, stored, disposed ocome to be located.” 42 U.S.C. § conforms to this directive.

In Brighton, this court determin

was the “facility” in part because “iproperty was operated together as Judge Moore, concurring in the resthat the entire property was the facdefined a “landfill” in its entirety and this court did not need to dcontamination under § 9601(9)(Bproperty as the facility. Id. at 323 result). Thus, in Brighton this courwas used overall as a dumping widely contaminated – and was ncould not be divided into reasofacilities. See id. at 313 (Judge Bogthe scope of facility), 323 (Judge Mon statutory language to define “fa

Similarly, courts faced with wide

refused to divide the land into sepdivisible into separate units. See, Carroll Carolina Oil Co., 191 F1999) (holding that widespread throughout the property prevented particular functional units simply bbe divided into those units); Akzo Corp., 960 F. Supp. 1354, 1358 (Nthe argument that because the “Sidistinct geographic areas, each areholding that hazardous waste halocated in several locations at t

Mutual Life Ins. Co. v. Atlantic Res
24 United States v. 150 Acres of Land No. 98-3160

1The Brighton court produced a divided opinion where Judge Boggs

wrote for the court, Judge Moore concurred only in the result and JudgeDowd concurred in part and dissented in part. 153 F.3d 307 (6th Cir.1998). In sum, the reasoning of the Brighton court differs according to

the opinion of each of Judge, while the result is the product of the court.Accordingly, references to the Brighton opinion refer to the reasoning of

the individual Judges where appropriate and not to the reasoning of thecourt.

_______________________________________________

CONCURRING IN PART, DISSENTING IN PART

_______________________________________________

R. GUY COLE, JR., Circuit Judge, Concurring in Part and

Dissenting in Part. I concur in the majority’s decision in PartsII. A, B, D and E. Because I believe that Parcel 1, the parcelat issue, is geographically separable by a reasonable andnatural division from the multiple non-contaminated parts, Ifind that Parcel 1 is the appropriate facility under 42 U.S.C.§ 9601(9)(B). Therefore, I respectfully DISSENT from PartII. C of the majority’s opinion.

As Judge Boggs noted in United States v. Township of

Brighton,

1 “a facility should be defined at least in part by the

bounds of the contamination.” 153 F.3d 307, 313 (6th Cir.1998). In Brighton, Judge Boggs reasoned that an area thatcannot be reasonably or naturally divided into multiple partsor functional units should be defined as a single facility, evenif it contains parts that are non-contaminated. See id. at 313.

Conversely, where property is reasonably and naturallydivisible into contaminated and non-contaminated parts, acourt can limit the facility to the contaminated portions of theproperty. In this case, the evidence shows that the threeparcels have distinct legal descriptions and can be reasonablydivided into multiple parts, separating the contaminated fromthe non-contaminated parts.

The majority emphasizes the fact that the parcels were

never considered separate for any purpose other than land

No. 98-3160 United States 

approximately 450 were empty. Ton May 7, 1992. The estimated coscene coordinator was $652,720. Tdetermined that the costs and dgovernment were $854,426.87. Tlarge underground storage tank won-scene coordinator’s report does 

The removal activities were co

property. The EPA inspected Pawith a magnetometer for surface afound nothing to remove.

On May 5, 1995, just before 

limitations expired, see 42 U.Sgovernment brought an in persGlidden Company and an in rem a

three parcels of land to recover activity. The government executed Glidden resolving the claims agaleaving the Bohatys as the only def61 Fed. Reg. 29763. The governmmoved for summary judgment. Odistrict court granted the governmBohatys’ motion, and entered judgagainst the Defendants.” The Bohbut voluntarily dismissed their aapparently on the ground that the ocourt was not a final judgment. Thby the Bohatys, then moved the dorder and judgment entry. On Jancourt granted the motion and entereits previous judgment and order sale. Enforcement of the orders is s

In related proceedings, on Feb

issued a de minimis order on conseliability of nine parties with regard Fed. Reg. 5550. Ashland Chemical Company, General Motors Co
6 United States v. 150 Acres of Land No. 98-3160

Company, State Chemical Manufacturing Company, Inc.,Synthetic Products Company, Uniroyal Chemical Company,Inc., and Upjohn Company were each assessed $1,050 insatisfaction of past and future claims connected with theBohaty site. Ibid.

II

A. The Structure of the CERCLA Defenses

The basic liability structure under CERCLA is set forth at

42 U.S.C. § 9607(a):

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 . . . facility, [and](2) any person who at the time of disposal of any

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

. . . shall be liable for—(A) all costs of removal or remedial action incurred by

the United States Government or a State or an Indiantribe not inconsistent with the national contingency plan;

. . . .

Ibid. The CERCLA defenses are:

(b) DefensesThere shall be no liability under subsection (a) of this

section for a person otherwise liable who can establish bya preponderance of the evidence that the release or threatof release of a hazardous substance and the damagesresulting therefrom were caused solely by—

. . . .(3) an act or omission of a third party other than an

employee or agent of the defendant, or than one whoseact or omission occurs in connection with a contractualrelationship, existing directly or indirectly, with thedefendant . . . , if the defendant establishes by apreponderance of the evidence that (a) he exercised due

No. 98-3160 United States 

_______________

CONCURRE

_______________

NATHANIEL R. JONES, Circui

I agree with the majority that the dof “disposal” for the purposes of 4overly expansive, the majority’s inThe majority limits “disposal” to “intervention.” Ante at ___. This la

“disposal” to occasions where prosubstances themselves, or actively existing spills. The result is to potecover for spectator polluters, whongoing toxic releases, yet do nAccordingly, I construe “disposalencompass spills produced by humprecipitated by willful neglect. Thi“active” component of “disposal,” actions that are not affirmativsufficiently assertive to fall ouCERCLA defense regime. I concand in all other aspects of Judge B
22 United States v. 150 Acres of Land No. 98-3160

government’s actions. The Bohatys have not presentedevidence that filing the lawsuit influenced the RJO’s decision;in addition, the lawsuit itself may be construed as part of theprocess afforded to the Bohatys. The district court is correct.The Bohatys received sufficient due process.

III

The Bohatys have raised a genuine issue of material fact as

to each element of the CERCLA “innocent landowner”defense, and are therefore entitled to have that defense survivesummary judgment. They have not, however, raised agenuine issue of material fact as to whether any lien that maybe proper covers Parcels 2 and 3, the district court’s findingon the amount of costs that are recoverable if liability isestablished, or the due process claim.

For the foregoing reasons, the judgment of the district court

with respect to the innocent landowner defense isREVERSED and the case is REMANDED to the districtcourt for further proceedings consistent with this opinion.The judgment of the district court is AFFIRMED in all otherrespects.

No. 98-3160 United States 

care with respect to the hazardotaking into consideration the hazardous substance, in light ocircumstances, and (b) he toforeseeable acts or omissions of the consequences that could foreacts or omissions.

42 U.S.C. § 9607(b). The CERCL

(35)(A) The term “contractu

purpose of section 9607(b)(3) ois not limited to, land continstruments transferring title or real property on which the facilwas acquired by the defendanplacement of the hazardous subfacility, and one or more of the cin clause (i), (ii), or (iii) is adefendant by a preponderance o

(i) At the time the defendant 

defendant did not know and had any hazardous substance whicrelease or threatened release was the facility.

. . . .(iii) The defendant acquired th

or bequest.

In addition to establishing the 

must establish that he has satisfsection 9607(b)(3)(a) and (b) of 

(B) To establish that the defe

know, as provided in clause (i) this paragraph, the defendant mthe time of acquisition, all apprprevious ownership and uses of with good commercial or customto minimize liability. For pursentence the court shall take into knowledge or experience on the p
8 United States v. 150 Acres of Land No. 98-3160

relationship of the purchase price to the value of theproperty if uncontaminated, commonly known orreasonably ascertainable information about the property,the obviousness of the presence or likely presence ofcontamination at the property, and the ability to detectsuch contamination by appropriate inspection.

. . . .(D) Nothing in this paragraph shall affect the liability

under this chapter of a defendant who, by any act oromission, caused or contributed to the release orthreatened release of a hazardous substance which is thesubject of the action relating to the facility.

42 U.S.C. § 9601.

Based on these provisions, the framework for considering

the Bohatys’ liability is this: The present owners of a“facility” are liable for the costs incurred in removing toxicsubstances from the facility, unless

(1) they can establish by a preponderance of the evidencethat the “release” of the substances and the damagesresulting from the release were caused solely by an act or

omission of a third party who was neither

(a) the present owners’ employee nor(b) someone who was in a contractual relationshipwith the owners; 

and

 (2) the owners 

(a) exercised due care with respect to the substances,in light of all relevant facts and circumstances, and(b) took precautions against the foreseeable actionsand omissions of third parties.

The statutory definitions state, non-exclusively, that the

following contractual relationships satisfy (1)(b) above andthus create liability for owners: land contracts, deeds, or otherinstruments transferring title or possession, unless

No. 98-3160 United States Furthermore, there is no evidence ithe empty drums raised the costs sno evidence in the record on appeawas removed. Nor is there evidewould have been accepted by an ordisposition would have been ledisposition. Accordingly, the decito the amount of the cleanup costs E. Due Process

Relying on Reardon v. United S

Cir. 1991), the Bohatys argue that violates their Fifth Amendment district court agreed that the lien significant property interest, but hafforded sufficient due process. correct.

To determine what process is 

private interest that will be affected the risk of an erroneous deprivatiothe procedures used and the pradditional or substitute safeguardsinterest, including the function inadministrative burdens that the procedural requirement would eEldridge, 424 U.S. 319, 335 (1976

The district court found tha

deprivation was minimal because both notice of the government’s ina hearing before the EPA RegionaThe Bohatys argue that due procesthe RJO is an EPA employee and before this court was filed before thThe RJO was sufficiently institutioprocess, see 5 U.S.C. § 554(d); W35, 56 (1975), and the need to fistatute of limitations expired circumstance sufficient to exc
20 United States v. 150 Acres of Land No. 98-3160

3If the NCP does mean strict logical inconsistency, then the EPA

could charge landowners for building an expensive sculpture on the land(assuming the sculpture were not itself a threat to health or welfare).Presumably, this is absurd and compels a different interpretation of“inconsistent.”

(e) The following removal actions are, as a general

rule, appropriate in the types of situations shown;however, this list is not exhaustive and is not intended toprevent the lead agency from taking any other actionsdeemed necessary under CERCLA, CWA section 311, orother appropriate federal or state enforcement or responseauthorities, and the list does not create a duty on the leadagency to take action at any particular time:

. . . .(7) Removal of drums, barrels, tanks, or other bulk

containers that contain or may contain hazardoussubstances or pollutants or contaminants—where it willreduce the likelihood of spillage; leakage; exposure tohumans, animals, or food chain; or fire or explosion;

40 C.F.R. § 300.415 (emphasis added).

The question for decision, then, is whether removing the

empty drums is “not inconsistent with” the provisions of 40C.F.R. § 300.415 set forth above. Absent evidence that therewere sufficient residual materials on the drums to constitutea threat to the public health or welfare, removing the emptydrums cannot be said to advance or promote the goals of the

NCP. However, even if strict logical inconsistency is notwhat the NCP means,3 Congress did not say that costs must

advance or promote the NCP to be recoverable. The generaltenor of the NCP is permissive—the lead agency may takeany appropriate action, including those on a list that isexpressly not exhaustive and that includes removal of drumsthat “may contain” hazardous substances. Arguably, drumsthat are known to be empty are not drums that “may contain”hazardous substances. However, the generally permissivenature of the NCP, together with the apparent reasonablenessof removing the empty drums, should be decisive.

No. 98-3160 United States 

(i) the present owners acquired property on which the facilit“disposal” or “placement” of th(ii) the present owners 

(A) did not know, and had no “all appropriate inquiry,” of th(B) acquired their interests by i

Thus, present owners who ac

inheritance or bequest can avoid undertaken “all appropriate inqu“disposal” or “placement” by thsubstances on the land before they amust have exercised due care with in light of all relevant facts and precautions against the foreseeable third parties, while they have ownewho acquired their interests by land instruments transferring title or inheritance or bequest, must alappropriate inquiry” when they acqliability.

The 12/45 interest that Ethel Bo

other relatives was transferred by not an inheritance or bequest. appears that for this interest to ashow that she undertook “all apprbought it. But see infra at 14-1interest can avoid liability if thpreponderance of the evidence t“placement” occurred before 198substances and the damages resultcaused solely by an act or omissiothey did not “cause or contribute toexercised due care with respect to all relevant facts and circumstanagainst the foreseeable actions and since they have owned the land.
10 United States v. 150 Acres of Land No. 98-3160

The Bohatys concede that they are the owners of the

property, and thus that they are potentially responsible partiesunder § 9607(a)(1); they dispute that they are potentiallyresponsible parties under § 9607(a)(2), as the governmentargues, because they contend that no “disposal” of hazardoussubstance has occurred while they owned the property. TheBohatys also concede that a “release” of “hazardoussubstances” has occurred on the property, that at least one ofthe three parcels is a “facility,” and that the governmentincurred removal costs. They dispute the amount of theremoval costs claimed by the government.

The issues on appeal are (1) whether the district court erred

when it decided that the Bohatys do not qualify for the“innocent landowner” defense of §§ 9607(b)(3) and 9601(35)set out above; (2) whether the district court erred when itdecided that the two unaffected parcels are part of the“facility;” (3) whether the district court erred when it foundthat the costs of disposing of the empty barrels and theunderground tank were properly part of the removal costs; and(4) whether the Bohatys were deprived of due process by theactions of the EPA and the district court.B. The Innocent Landowner Defense

The Bohatys argue first that they qualify for the “innocent

landowner” defense of §§ 9607(b)(3) and 9601(35). Thedistrict court held that

Defendants cannot assert such defenses because theycannot prove that (1) the release or threat of release ofhazardous substances and the resulting damages werecaused solely by an act or omission of a third party; (2)the third party’s act or omission did not occur inconnection with a contractual relationship with theDefendants; (3) they exercised due care with respect tothe hazardous substance; and (4) they took precautionsagainst the third party’s foreseeable acts or omissions andthe foreseeable consequences resulting therefrom.

No. 98-3160 United States constitutes a “reasonable or naturparts.

We hold that it does not. There i

that the parcels were, at any rseparate for any purpose other thawere transferred on the same deed, of one parcel they were in the sammerely formal division in the land ror natural” division under BrightoD. Which Removal Costs are Pr

The Bohatys argue that the 

unnecessary costs, for which they particular, they claim that (1) thremoved the empty drums at allenvironmental hazard; (2) the EPA the underground storage tank, environmental hazard; (3) after tcontents of the 550 waste-containfor disposal, it should not have dispempty drums, because they posed and (4) at a minimum, the 700 empdisposed of in a standard landfhazardous-materials site (presuma

CERCLA places liability on re

costs of removal or remedial actiStates . . . not inconsistent with plan.” 42 U.S.C. § 9607(a)(2)(A). plan (“NCP”) provides that:

At any release . . . where the 

determination . . . that there is a twelfare of the United States or thagency may take any approprabate, prevent, minimize, stabilizthe release or the threat of relea

40 C.F.R. § 300.415 (b)(1) (emph
18 United States v. 150 Acres of Land No. 98-3160

law to interpret CERCLA’s lien provision is a tenuousproposition.

The government states that this court has decided the issue,

relying on Kelley v. DuPont de Nemours & Co., 17 F.3d 836,843 (6th Cir. 1994) for the proposition that a remedialinvestigation and feasibility study constitutes a “removalaction.” Although Kelley does state that the term “removalaction” should be construed broadly, the statute-of-limitationsissue in that case does not illuminate the geographic issue inthe case before us. Furthermore, the government’s claim that“the investigation in Kelley . . . examined ten contiguous sites,only one of which actually contained hazardous waste,” Brieffor the United States at 45, is misleading. There is noindication that the ten “sites” were separate parcels—theywere merely ten locations in one large landfill that the EPAidentified as possible locations of hazardous materials. TheKelley panel simply did not consider the issue of thegeographical extent of a “removal.”

The distinctive feature of the case before this court is the

fact that the three parcels have separate identities,notwithstanding that they were historically conveyed together.The hard question is whether this should make any difference.

The words of the statute suggest that the bounds of afacility should be defined at least in part by the bounds ofthe contamination. . . . However, an area that cannot bereasonably or naturally divided into multiple parts orfunctional units should be defined as a single ‘facility,’even if it contains parts that are non-contaminated.

United States v. Township of Brighton, 153 F.3d 307, 313(6th Cir. 1998) (citing Clear Lake Properties v. Rockwell Int’lCorp., 959 F. Supp. 763, 767-68 (S.D. Tex. 1997)). InBrighton, we held that where “it appear[ed] that the entireproperty was operated together as a dump,” the whole parcelwas a “facility” even though only one corner wascontaminated. Ibid. To apply the teaching of Brighton, wemust decide whether the fact that the Bohaty property iscomposed of three cartographically-denominated parcels

No. 98-3160 United States 

2Section 9601(35)(A) exempts ce

relationships from the § 9607(b)(3) rule tthe release was caused by third parties wties (or, whom they employ).Opinion, J.A. at 62. Each of the fodispositive standing alone.

First, the district court held that h

“released” by the Bohatys. CERfollows: “The term ‘release’ mepumping, pouring, emitting, emptyescaping, leaching, dumping, environment (including the abanbarrels, containers, and other closany hazardous substance or pollutU.S.C. § 9601(22). Therefore, to pthe “innocent landowner” defensethat all spilling, leaking, pumemptying, discharging, injectindumping, or disposing into the enabandonment or discarding of barclosed receptacles containing any pollutant or contaminant) was “caomissions of third parties who wpersons in a contractual relationsh

The district court held that t

substances was caused, in part, bremove or stabilize the drums on thcourt evidently was not entirely cand defenses to CERCLA liability. release was not solely caused by a tfact be fatal to the “third party” confusingly stated that the Bohatys the innocent purchaser defense by party’s ‘act or omission [causing wastes at the Site] occur[red] in conrelationship, existing directly or inat 63 (brackets in original) (citing 
12 United States v. 150 Acres of Land No. 98-3160

The court decided that the answer to this question dependsupon whether the “disposal” preceded the Bohatys’acquisition of the property and concluded that “disposal” wasongoing. For its definition of “disposal,” CERCLA refers tothe Solid Waste Disposal Act, which states that “[t]he term‘disposal’ means the discharge, deposit, injection, dumping,spilling, leaking, or placing of any solid waste or hazardouswaste into or on any land or water.” 42 U.S.C. § 6903(3).

The distinction between “disposal” and “release” is

important to our resolution of the case before us. Althoughearly CERCLA decisions interpreted “disposal” to includepassive movement of substances (i.e., with no humanactivity), two circuits have recently limited “disposal” tospills occurring by human intervention. See United States v.CDMG Realty Co., 96 F.3d 706 (3rd Cir. 1996); ABB Indus.Sys., Inc. v. Prime Tech, Inc., 120 F.3d 351, 358 (2d Cir.1997) (adopting the reasoning of CDMG Realty). This

interpretation of the statute is the better view for severalreasons. See Michael S. Caplan, “Escaping CERCLALiability: The Interim Owner Passive Migration DefenseGains Circuit Recognition,” 28 ENVTL.L.

REP. 10121 (1998).

First, because “disposal” is defined primarily in terms ofactive words such as injection, deposit, and placing, thepotentially passive words “spilling” and “leaking” should beinterpreted actively; second, “release” must be broader than“disposal,” because disposal is included within release, see 42U.S.C. § 9601(22); and third, it makes sense of the statutoryscheme as well as the words themselves to have “disposal”stand for activity that precedes the entry of a substance intothe environment and “release” stand for the actual entry ofsubstances into the environment. On this more recent view,the Bohatys acquired the property after the “disposal.” Thequestion is whether “release” continued after their acquisition.

In the absence of any evidence that there was human

activity involved in whatever movement of hazardoussubstances occurred on the property since the Bohatys haveowned it, we hold that the Bohatys have not “disposed” ofhazardous substances on the property. We also hold that the

No. 98-3160 United States 

(B) The time that the person 

(1) is provided (by certified or notice of potential liability.

Such lien shall continue until 

(or a judgment against the perliability) is satisfied or becomes operation of the statute of limitat9613 of this title.

42 U.S.C. § 9607(l)(1).

The government argues that th

“subject to or affected by” the remobserved Parcels 2 and 3 bomagnetometer to locate any drumdeposited there. The government ppond, upon which the investigatoenergy, extends beyond Parcel 1 to 

such actions as may be necessary evaluate the release or threat osubstances, the disposal of remoother actions as may be necessaor mitigate damage to the public the environment, which may orelease or threat of release?

They may be, but that does not app

The record indicates that interes

been transferred together by the samby separate instruments for each pThe district court looked to asset-fsupport for the proposition that a “precorded instruments and docudefendant’s interest in the proper

Smith, 966 F.2d 1045 (6th Cir. 199Santoro, 866 F.2d 1538, 1543 (4States v. Reynolds, 856 F.2d 675, 6district court acknowledged, look
16 United States v. 150 Acres of Land No. 98-3160

C. What Constitutes the “Facility”?

The parties agree that no release nor threat of release

occurred on Parcels 2 and 3. Therefore, the Bohatys argue,even if they are liable, a lien is appropriate only on Parcel 1.

(9) The term “facility” means . . . (B) any site or area

where a hazardous substance has been deposited, stored,disposed of, or placed, or otherwise come to be located.

. . . .(23) The terms “remove” or “removal” means [sic] the

cleanup or removal of released hazardous substancesfrom the environment, such actions as may be necessarytaken in the event of the threat of release of hazardoussubstances into the environment, such actions as may benecessary to monitor, assess, and evaluate the release orthreat of release of hazardous substances, the disposal ofremoved material, or the taking of such other actions asmay be necessary to prevent, minimize, or mitigatedamage to the public health or welfare or to theenvironment, which may otherwise result from a releaseor threat of release.

42 U.S.C. § 9601.

All costs and damages for which a person is liable to

the United States under subsection (a) of this section . . .shall constitute a lien in favor of the United States uponall real property and rights to such property which—

(A) belong to such person; and(B) are subject to or affected by a removal or remedial

action.

. . . .

 The lien imposed by this subsection shall arise at the

later of the following:(A) The time costs are first incurred by the United

States with respect to a response action under thischapter.

No. 98-3160 United States Bohatys have raised genuine issuethree other crucial issues: whehazardous substances on the landwith respect to the hazardous substaconsideration the characteristics of in light of all relevant facts and circprecautions against foreseeable aparties] and the consequences thafrom such acts or omissions.” Tappeal on the 33/45 interest obtaipresent Bohaty owners. We give othree in turn.

The only evidence presented by 

Bohatys “released” hazardous photographs showing what might bthe ground near rusted drums and thto that effect. No evidence was prat one time after the Bohatys acqucertain drums were one size and, lThe government appears to be relbecause there were hazardous suband because some of the drums wmust have been ongoing. Perhapdevelopment, the government winference at trial. The governadvanced sufficient evidentiary suthe absence of a genuine issue of m

The fact that the drums were pr

that the Bohatys knew about theOEPA visit in 1987, calls into que“exercised due care with respect to concerned, taking into consideratsuch hazardous substance[s], in ligcircumstances.” However, the Bothat after both the 1987 and the 19OEPA to advise them if anything ntests performed in 1987 by OEPA OEPA never told them that act
14 United States v. 150 Acres of Land No. 98-3160

Bohatys have raised a genuine issue of material fact as towhether they exercised the required degree of care.

The government has shown that the property was accessible

to third parties, which may indicate that the Bohatys did nottake “precautions against foreseeable acts or omissions of[third parties] and the consequences that could foreseeablyresult from such acts or omissions.” However, there is noevidence in the record that any third parties evercompromised the integrity of the drums or otherwise causedthe release of their contents. Perhaps the precautions taken bythe Bohatys were adequate under the circumstances. Again,the government has not shown the absence of a genuine issueof material fact.

Therefore, as to the 33/45 inherited interest, the Bohatys

have shown a genuine issue of material fact as to eachelement of the CERCLA innocent landowner defense and areentitled to proceed to trial. 

Finally, with respect to the 12/45 interest sold to Ethel by

other Bohaty heirs, we hold that Ethel has raised a genuineissue of material fact as to whether she “undert[ook], at thetime of acquisition, all appropriate inquiry into the previousownership and uses of the property consistent with goodcommercial or customary practice in an effort to minimizeliability” with respect to the interest she purchased from herrelatives. 

There is no evidence that Ethel conducted a particular

inquiry when she bought the interests. 

However, the particular inquiry that is necessary under the

statutory definition is clearly dependent on the totality of thecircumstances. In particular, the requirement is that “thedefendant . . . has no reason to know that any hazardoussubstance . . . was disposed of . . . at the facility.” 42 U.S.C.§ 9601(35)(A)(i). Subsection (35)(B) amplifies this definitionstating that “the defendant must have undertaken, at the timeof acquisition, all appropriate inquiry into the previousownership and uses of the property consistent with good

No. 98-3160 United States commercial or customary practice liability.” The definition also empthe inquiry by noting that “the couany specialized knowledge or expdefendant, the relationship of the pof the property if uncontaminatreasonably ascertainable informatiobviousness of the presence contamination at the property, and contamination by appropriate insp

These paragraphs and definitio

primarily a willful acquisition or pa particular commercial or persothough not explicitly, seem to contall of the interest in a “facility” however, is of quite a different sBohaty defendants had inhericonstituting a large majority of thThree other heirs had inherited vertwo years before the other fbequeathed to Ethel. A year later, husband was still in probate, the their fractional interest to Ethel. Uwhere one part-owner by inheritancanother part-owner by inheritanconsolidate the inherited owners“appropriate inquiry” is a very factno evidence in the record of what connection with such family transevidence of the specific purchase pproperty if uncontaminated” or othdefinition. Under these circumstanthis time, we cannot state as a mactions were not “appropriatcircumstances at the time of the sinterests. On remand, the burden wall the other requisites of the deinherited interests are met, to alsrequirement of “appropriate inquir