1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0033P (6th Cir.)File Name: 00a0033p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.150ACRES OFLAND, More orLess, Located in MedinaCounty, Ohio,Defendant-Appellant.;>1No. 98-3160Appeal from the United States District Courtfor the Northern District of Ohio at Cleveland.No. 95-01009—Solomon Oliver, Jr., District Judge.Argued: April 29, 1999Decided and Filed: January 20, 2000Before: JONES, BOGGS, and COLE, Circuit Judges._________________COUNSELARGUED:David S. Hoffmann, McMAHON, DeGULIS &HOFFMAN, Cleveland, Ohio, for Appellant. Jared A.Goldstein, U.S. DEPARTMENT OF JUSTICE, LAND &NATURAL RESOURCES DIVISION, Washington, D.C., for2United States v. 150 Acres of LandNo. 98-3160Appellee.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 EnvironmentalProtection Agency (“EPA”) sued the Glidden Co.inpersonamand certain land owned by various members of theBohaty familyin remunder the ComprehensiveEnvironmental Response, Compensation, and Liability Act(“CERCLA”), 42 U.S.C. § 9601et 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 nowappeal 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.IThe land in question is approximately 150 contiguous acresof 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. 98-3160United States v. 150 Acres of Land27property into appropriate units based on reasonable divisionsand the bounds of contamination present on the property. Inthe present case, I would hold that the facility is limited toParcel 1, based on the divisibility of the property into naturalunits and the admission that no contamination was foundoutside of Parcel 1, and thus I would hold that the lien isproper only as it pertains to Parcel 1.For the foregoing reasons, I respectfullyDISSENTfromPart II. C. of the majority opinion.26United States v. 150 Acres of LandNo. 98-3160389, 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 thatcontamination 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 andwhile 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 inBrightonand 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 andthere 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 ofBrightonwith respect to limiting the “facility” atall, this case presents a clear opportunity to divide theNo. 98-3160United States v. 150 Acres of Land3According to the district court’s opinion, at the present time,Ethel Bohaty owns a 37/45 interest, and John Bohaty, Jr.,Barbara Bohaty, Belinda Bohaty, and Susan Bohaty each owna 2/45 interest in the land. Each interest was entirely inheritedexcept for that part of Ethel Bohaty’s interest that is 12/45 ofthe land, which she purchased from relatives whose interestsdescended at the same time as her husband’s. Ethel’s fatherin-law, John Bohaty, died on April 12, 1982, leaving one-halfinterest in the property to her husband Vencel (John), theinterests now owned by John, Jr., Barbara, Belinda, and Susanto them, and the remainder to three other relatives. OnJanuary 27, 1984, Vencel died, leaving his entire interest toEthel. On February 15, 1985, the three other relatives or theirheirs sold their interests to Ethel.On March 30, 1987, the local fire department noticednumerous fifty-five gallon drums on the property and notifiedthe Ohio Environmental Protection Agency (“OEPA”).OEPA visited the property and noted approximately 300abandoned drums containing paint waste, laboratorychemicals, and red sludge. OEPA’s toxicity tests werenegative. Ethel Bohaty stated that she asked the inspectors toinform her if the drums posed a problem, and that she did nothear from them.On August 17, 1989, OEPA again inspected the property inconnection with the City of Medina’s appropriation of fouracres for road construction. The inspection was not related tothe 1987 inspection. Ethel Bohaty expressed her desire to getrid of any toxic substances that might be found. Theinspectors found 200–300 drums, some of which were causefor concern, and five underground storage tanks; theysuggested a follow-up inspection in the fall, when thevegetation would be less dense. The inspectors concluded,from historical aerial photographs, that organized drumplacement had occurred from the mid-1950s through the early1970s. Ethel Bohaty stated that the inspectors did not tell herthat the drums contained hazardous materials or that sheshould remove them or take other precautions, and that OEPA4United States v. 150 Acres of LandNo. 98-31601The EPA regional judicial officer found that the Bohatys had raisedcredibility 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 fromthe 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.1The 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 EthelBohaty 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 operationon the property. Altogether, approximately 1000 drums wereremoved, of which approximately 550 contained waste andNo. 98-3160United States v. 150 Acres of Land25records, were transferred on the same land deed, and weremaintained in similar undeveloped states. These factors arenot determinative of the bounds of the facility. The words ofthe statute direct our inquiry to the determination of thebounds of the “site or area where a hazardous substance hasbeen deposited, stored, disposed of, or placed, or otherwisecome to be located.” 42 U.S.C. § 9601(9)(B). The case lawconforms to this directive.InBrighton, this court determined that the entire propertywas the “facility” in part because “it appear[ed] that the entireproperty was operated together as a dump.” 153 F.3d at 313.Judge Moore, concurring in the result inBrighton, concludedthat the entire property was the facility because § 9601(9)(B)defined a “landfill” in its entirety as constituting a “facility”and this court did not need to decide the bounds of thecontamination under § 9601(9)(B) to designate the entireproperty as the facility.Id. at 323 (Moore, J. concurring inresult). Thus, inBrightonthis court reasoned that land whichwas used overall as a dumping site – thus, the land waswidely contaminated – and was not geographically distinctcould not be divided into reasonable or natural separatefacilities.See id. at 313 (Judge Boggs’s reasoning on definingthe scope of facility), 323 (Judge Moore’s concurrence relyingon statutory language to define “facility”).Similarly, courts faced with widely contaminated land haverefused to divide the land into separate facilities even whendivisible into separate units.See, e.g., Axel Johnson, Inc. v.Carroll Carolina Oil Co., 191 F.3d 409, 418-19 (4th Cir.1999) (holding that widespread contamination scatteredthroughout the property prevented limiting the facility to theparticular functional units simply because the property couldbe divided into those units);Akzo Coatings, Inc. v. AignerCorp., 960 F. Supp. 1354, 1358 (N.D. Ind. 1996) (rejectingthe argument that because the “Site can be divided into fivedistinct geographic areas, each area is a distinct facility” andholding that hazardous waste had “otherwise come to belocated in several locations at the Site”);NorthwesternMutual Life Ins. Co. v. Atlantic Research Corp., 847 F. Supp.24United States v. 150 Acres of LandNo. 98-31601TheBrightoncourt produced a divided opinion where Judge Boggswrote 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 theBrightoncourt differs according tothe opinion of each of Judge, while the result is the product of the court.Accordingly, references to theBrightonopinion refer to the reasoning ofthe 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 andDissenting 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 respectfullyDISSENTfrom PartII. C of the majority’s opinion.As Judge Boggs noted inUnited States v. Township ofBrighton,1“a facility should be defined at least in part by thebounds of the contamination.” 153 F.3d 307, 313 (6th Cir.1998). InBrighton, 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 werenever considered separate for any purpose other than landNo. 98-3160United States v. 150 Acres of Land5approximately 450 were empty. The removal was completedon May 7, 1992. The estimated cost under control of the onscene coordinator was $652,720. The district court ultimatelydetermined that the costs and damages incurred by thegovernment were $854,426.87. The Bohatys assert that alarge underground storage tank was removed, although theon-scene coordinator’s report does not indicate such activity.The removal activities were confined to Parcel 1 of theproperty. The EPA inspected Parcels 2 and 3 visually andwith a magnetometer for surface and subsurface drums, andfound nothing to remove.On May 5, 1995, just before the three-year statute oflimitations expired,see42 U.S.C. § 9613(g)(2)(A), thegovernment brought anin personamaction against theGlidden Company and anin remaction against the Bohatys’three parcels of land to recover the cost of the removalactivity. The government executed a consent agreement withGlidden resolving the claims against Glidden for $60,000,leaving the Bohatys as the only defendants in this action.See61 Fed. Reg. 29763. The government and the Bohatys bothmoved for summary judgment. On September 30, 1997, thedistrict court granted the government’s motion, denied theBohatys’ motion, and entered judgment “for the Plaintiff andagainst the Defendants.” The Bohatys appealed to this court,but voluntarily dismissed their appeal without prejudice,apparently on the ground that the order entered by the districtcourt was not a final judgment. The government, unopposedby the Bohatys, then moved the district court to modify itsorder and judgment entry. On January 26, 1998, the districtcourt granted the motion and entered both an order modifyingits previous judgment and order and a concurrent order ofsale. Enforcement of the orders is stayed pending this appeal.In related proceedings, on February 13, 1996, the EPAissued ade minimisorder on consent addressing the potentialliability of nine parties with regard to the Bohaty property. 61Fed. Reg. 5550. Ashland Chemical Company, Dow ChemicalCompany, General Motors Corporation, Quaker Oats6United States v. 150 Acres of LandNo. 98-3160Company, 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.IIA. The Structure of the CERCLA DefensesThe basic liability structure under CERCLA is set forth at42 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 anyhazardous 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 bythe 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 thissection 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 anemployee 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 dueNo. 98-3160United States v. 150 Acres of Land23________________________CONCURRENCE________________________NATHANIEL R. JONES, Circuit Judge, concurring. WhileI agree with the majority that the district court’s constructionof “disposal” for the purposes of 42 U.S.C. § 9601(35)(A) isoverly expansive, the majority’s interpretation is too narrow.The majority limits “disposal” to “spills occurring by humanintervention.”Anteat ___. This language seemingly restricts“disposal” to occasions where property owners release toxicsubstances themselves, or actively participate in exacerbatingexisting spills. The result is to potentially provide unjustifiedcover for spectator polluters, who are aware of past andongoing toxic releases, yet do nothing to remedy them.Accordingly, I construe “disposal” under § 9601(35)(A) toencompass spills produced by human agency, including thoseprecipitated by willful neglect. This construction conveys the“active” component of “disposal,” yet still provides room foractions that are not affirmatively interventionist, butsufficiently assertive to fall outside the bounds of theCERCLA defense regime. I concur in the court’s judgmentand in all other aspects of Judge Boggs’ opinion.22United States v. 150 Acres of LandNo. 98-3160government’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.IIIThe Bohatys have raised a genuine issue of material fact asto 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 courtwith 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. 98-3160United States v. 150 Acres of Land7care with respect to the hazardous substance concerned,taking into consideration the characteristics of suchhazardous substance, in light of all relevant facts andcircumstances, and (b) he took precautions againstforeseeable acts or omissions of any such third party andthe consequences that could foreseeably result from suchacts or omissions.42 U.S.C. § 9607(b). The CERCLA definitions state:(35)(A) The term “contractual relationship”, for thepurpose of section 9607(b)(3) of this title, includes, butis not limited to, land contracts, deeds or otherinstruments transferring title or possession, unless thereal property on which the facility concerned is locatedwas acquired by the defendant after the disposal orplacement of the hazardous substance on, in, or at thefacility, and one or more of the circumstances describedin clause (i), (ii), or (iii) is also established by thedefendant by a preponderance of the evidence:(i) At the time the defendant acquired the facility thedefendant did not know and had no reason to know thatany hazardous substance which is the subject of therelease or threatened release was disposed of on, in, or atthe facility.. . . .(iii) The defendant acquired the facility by inheritanceor bequest.In addition to establishing the foregoing, the defendantmust establish that he has satisfied the requirements ofsection 9607(b)(3)(a) and (b) of this title.(B) To establish that the defendant had no reason toknow, as provided in clause (i) of subparagraph (A) ofthis paragraph, the defendant must have undertaken, atthe time of acquisition, all appropriate inquiry into theprevious ownership and uses of the property consistentwith good commercial or customary practice in an effortto minimize liability. For purposes of the precedingsentence the court shall take into account any specializedknowledge or experience on the part of the defendant, the8United States v. 150 Acres of LandNo. 98-3160relationship 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 liabilityunder 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 consideringthe 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 causedsolelyby an act oromission 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 thefollowing contractual relationships satisfy (1)(b) above andthus create liability for owners: land contracts, deeds, or otherinstruments transferring title or possession,unlessNo. 98-3160United States v. 150 Acres of Land21Furthermore, there is no evidence in the record that removingthe empty drums raised the costs significantly. There is alsono evidence in the record on appeal that an underground tankwas removed. Nor is there evidence that the empty drumswould have been accepted by an ordinary landfill, or that suchdisposition would have been less costly than the actualdisposition. Accordingly, the decision of the district court asto the amount of the cleanup costs is affirmed.E. Due ProcessRelying onReardon v. United States, 947 F.2d 1509 (1stCir. 1991), the Bohatys argue that the lien on their propertyviolates their Fifth Amendment due process rights. Thedistrict court agreed that the lien deprived the Bohatys of asignificant property interest, but held that the Bohatys wereafforded sufficient due process. The district court wascorrect.To determine what process is due, we consider (1) theprivate interest that will be affected by the official action; (2)the risk of an erroneous deprivation of such interest throughthe procedures used and the probable value, if any, ofadditional or substitute safeguards; and (3) the government'sinterest, including the function involved and the fiscal andadministrative burdens that the additional or substituteprocedural requirement would entail.See Mathews v.Eldridge, 424 U.S. 319, 335 (1976).The district court found that the risk of erroneousdeprivation was minimal because the Bohatys were givenboth notice of the government’s intent to perfect the lien anda hearing before the EPA Regional Judicial Officer (“RJO”).The Bohatys argue that due process was not satisfied becausethe RJO is an EPA employee and because the lawsuit nowbefore this court was filed before the RJO issued her decision.The RJO was sufficiently institutionally isolated to satisfy dueprocess,see5 U.S.C. § 554(d);Withrow v. Larkin, 421 U.S.35, 56 (1975), and the need to file this lawsuit before thestatute of limitations expired constituted an exigentcircumstance sufficient to excuse the timing of the20United States v. 150 Acres of LandNo. 98-31603If the NCP does mean strict logical inconsistency, then the EPAcould 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 generalrule, appropriate in the types of situations shown;however,this list is not exhaustiveand 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 bulkcontainers that containor may containhazardoussubstances 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 theempty 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 toadvanceorpromotethe goals of theNCP. However, even if strict logical inconsistency is notwhat the NCP means,3Congress did not say that costs mustadvance 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. 98-3160United States v. 150 Acres of Land9(i) the present owners acquired their interest in the realproperty on which the facility is located after the“disposal” or “placement” of the substances, and(ii) the present owners(A) did not know, and had no reason to know, after“all appropriate inquiry,” of the substances, or(B) acquired their interests by inheritance or bequest.Thus, present owners who acquired their interests byinheritance or bequest can avoid liability without havingundertaken “all appropriate inquiry” with respect to the“disposal” or “placement” by third parties of hazardoussubstances on the land before they acquired it. However, theymust have exercised due care with respect to the substances,in light of all relevant facts and circumstances, and takenprecautions against the foreseeable actions and omissions ofthird parties, while they have owned the land. Present ownerswho acquired their interests by land contracts, deeds, or otherinstruments transferring title or possession, andnotbyinheritance or bequest, must also have undertaken “allappropriate inquiry” when they acquired the property to avoidliability.The 12/45 interest that Ethel Bohaty bought from the threeother relatives was transferred by quit-claim deed, and wasnot an inheritance or bequest. On first consideration, itappears that for this interest to avoid liability, Ethel mustshow that she undertook “all appropriate inquiry” when shebought it.But see infraat 14-15. The remaining 33/45interest can avoid liability if the Bohatys establish by apreponderance of the evidence that (1) the “disposal” or“placement” occurred before 1982, (2) the “release” of thesubstances and the damages resulting from the release werecaused solely by an act or omission of a third party (i.e., thatthey did not “cause or contribute to” the release, and (3) theyexercised due care with respect to the substances, in light ofall relevant facts and circumstances, and took precautionsagainst the foreseeable actions and omissions of third partiessince they have owned the land.10United States v. 150 Acres of LandNo. 98-3160The Bohatys concede that they are the owners of theproperty, 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 erredwhen 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 DefenseThe Bohatys argue first that they qualify for the “innocentlandowner” defense of §§ 9607(b)(3) and 9601(35). Thedistrict court held thatDefendants 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. 98-3160United States v. 150 Acres of Land19constitutes a “reasonable or natural” division into multipleparts.We hold that it does not. There is no evidence in the recordthat the parcels were, at any relevant time, consideredseparate for any purpose other than the land records. Theywere transferred on the same deed, and except for a small partof one parcel they were in the same undeveloped state. Themerely formal division in the land records is not a “reasonableor natural” division underBrighton.D. Which Removal Costs are Proper?The Bohatys argue that the removal action incurredunnecessary costs, for which they should not be liable. Inparticular, they claim that (1) the EPA should not haveremoved the empty drums at all, because they posed noenvironmental hazard; (2) the EPA should not have removedthe underground storage tank, because it posed noenvironmental hazard; (3) after the EPA consolidated thecontents of the 550 waste-containing drums into 300 drumsfor disposal, it should not have disposed of the 250 additionalempty drums, because they posed no environmental hazard;and (4) at a minimum, the 700 empty drums should have beendisposed of in a standard landfill rather than sent to ahazardous-materials site (presumably, at greater cost).CERCLA places liability on responsible parties for “allcosts of removal or remedial action incurred by the UnitedStates . . . not inconsistent with the national contingencyplan.” 42 U.S.C. § 9607(a)(2)(A). The national contingencyplan (“NCP”) provides that:At any release . . . where the lead agency makes thedetermination . . . that there is a threat to public health orwelfare of the United States or the environment, the leadagency may takeany appropriate removal actiontoabate, prevent, minimize, stabilize, mitigate, or eliminatethe release or the threat of release.40 C.F.R. § 300.415 (b)(1) (emphasis added).18United States v. 150 Acres of LandNo. 98-3160law to interpret CERCLA’s lien provision is a tenuousproposition.The government states that this court has decided the issue,relying onKelley 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.” AlthoughKelleydoes 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 inKelley. . . 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. TheKelleypanel simply did not consider the issue of thegeographical extent of a “removal.”The distinctive feature of the case before this court is thefact 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) (citingClear 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 ofBrighton, wemust decide whether the fact that the Bohaty property iscomposed of three cartographically-denominated parcelsNo. 98-3160United States v. 150 Acres of Land112Section 9601(35)(A) exempts certain, apparently contractual,relationships from the § 9607(b)(3) rule that present owners are liable ifthe release was caused by third parties with whom they have contractualties (or, whom they employ).Opinion, J.A. at 62. Each of the four holdings, if correct, isdispositive standing alone.First, the district court held that hazardous substances were“released” by the Bohatys. CERCLA defines “release” asfollows: “The term ‘release’ means any spilling, leaking,pumping, pouring, emitting, emptying, discharging, injecting,escaping, leaching, dumping, or disposing into theenvironment (including the abandonment or discarding ofbarrels, containers, and other closed receptacles containingany hazardous substance or pollutant or contaminant).” 42U.S.C. § 9601(22). Therefore, to prevail in their assertion ofthe “innocent landowner” defense, the Bohatys must provethat all spilling, leaking, pumping, pouring, emitting,emptying, discharging, injecting, escaping, leaching,dumping, or disposing into the environment (including theabandonment or discarding of barrels, containers, and otherclosed receptacles containing any hazardous substance orpollutant or contaminant) was “caused solely by” the acts oromissions of third parties who were neither employees norpersons in a contractual relationship with the Bohatys.The district court held that the release of hazardoussubstances was caused, in part, by the Bohatys’ “failure toremove or stabilize the drums on their property.” The districtcourt evidently was not entirely clear about the elements ofand defenses to CERCLA liability. Having concluded that therelease was notsolelycaused by a third party, which would infact be fatal to the “third party” defense, the court thenconfusingly stated that the Bohatys “can still attempt to assertthe innocent purchaser defense by demonstrating that a thirdparty’s ‘act or omission [causing the release of hazardouswastes at the Site] occur[red] in connection with a contractualrelationship, existing directly or indirectly with’ them.” J.A.at 63 (brackets in original) (citing 42 U.S.C. § 9607(b)(3)).212United States v. 150 Acres of LandNo. 98-3160The 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” isimportant 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 ofCDMG Realty). Thisinterpretation of the statute is the better view for severalreasons.SeeMichael 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,see42U.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 humanactivity 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 theNo. 98-3160United States v. 150 Acres of Land17(B) The time that the person referred to in paragraph(1) is provided (by certified or registered mail) writtennotice of potential liability.Such lien shall continue until the liability for the costs(or a judgment against the person arising out of suchliability) is satisfied or becomes unenforceable throughoperation of the statute of limitations provided in section9613 of this title.42 U.S.C. § 9607(l)(1).The government argues that the three parcels were all“subject to or affected by” the removal. EPA investigatorsobserved Parcels 2 and 3 both visually and with amagnetometer to locate any drums that might have beendeposited there. The government presented evidence that thepond, upon which the investigators expended considerableenergy, extends beyond Parcel 1 to Parcel 3. Are thesesuch actions as may be necessary to monitor, assess, andevaluate the release or threat of release of hazardoussubstances, the disposal of removed material, or . . . suchother actions as may be necessary to prevent, minimize,or mitigate damage to the public health or welfare or tothe environment, which may otherwise result from arelease or threat of release?They may be, but that does not appear self-evident.The record indicates that interests in the three parcels havebeen transferred together by the same instruments, rather thanby separate instruments for each parcel, at least since 1982.The district court looked to asset-forfeiture cases, and foundsupport for the proposition that a “property” is “defined by therecorded instruments and documents that created thedefendant’s interest in the property.”SeeUnited States v.Smith, 966 F.2d 1045 (6th Cir. 1992) (citingUnited States v.Santoro, 866 F.2d 1538, 1543 (4th Cir 1989) andUnitedStates v. Reynolds, 856 F.2d 675, 677 (4th Cir 1988)). As thedistrict court acknowledged, looking to criminal forfeiture16United States v. 150 Acres of LandNo. 98-3160C. What Constitutes the “Facility”?The parties agree that no release nor threat of releaseoccurred 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 areawhere 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] thecleanup 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 tothe 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 remedialaction.. . . .The lien imposed by this subsection shall arise at thelater of the following:(A) The time costs are first incurred by the UnitedStates with respect to a response action under thischapter.No. 98-3160United States v. 150 Acres of Land13Bohatys have raised genuine issues of material fact as to thethree other crucial issues: whether they (1) “released”hazardous substances on the land, (2) “exercised due carewith respect to the hazardous substance concerned, taking intoconsideration the characteristics of such hazardous substance,in light of all relevant facts and circumstances,” and (3) “tookprecautions against foreseeable acts or omissions of [thirdparties] and the consequences that could foreseeably resultfrom such acts or omissions.” These holdings resolve theappeal on the 33/45 interest obtained by inheritance by thepresent Bohaty owners. We give our reasoning on each of thethree in turn.The only evidence presented by the government that theBohatys “released” hazardous substances were severalphotographs showing what might be hazardous substances onthe ground near rusted drums and the statements of inspectorsto that effect. No evidence was presented, for example, thatat one time after the Bohatys acquired the land the piles nearcertain drums were one size and, later, that they were larger.The government appears to be relying on the inference thatbecause there were hazardous substances outside the drums,and because some of the drums were not empty, the leakingmust have been ongoing. Perhaps, with appropriate factualdevelopment, the government will be able to justify thatinference at trial. The government has not, however,advanced sufficient evidentiary support at this time to showthe absence of a genuine issue of material fact.The fact that the drums were present on the property andthat the Bohatys knew about them, at least after the firstOEPA visit in 1987, calls into question whether the Bohatys“exercised due care with respect to the hazardous substance[s]concerned, taking into consideration the characteristics ofsuch hazardous substance[s], in light of all relevant facts andcircumstances.” However, the Bohatys presented evidencethat after both the 1987 and the 1989 inspections they askedOEPA to advise them if anything needed to be done, that thetests performed in 1987 by OEPA were negative, and thatOEPA never told them that action was necessary. The14United States v. 150 Acres of LandNo. 98-3160Bohatys 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 accessibleto 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 Bohatyshave 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 byother 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 particularinquiry when she bought the interests.However, the particular inquiry that is necessary under thestatutory 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, allappropriateinquiry into the previousownership and uses of the property consistent with goodNo. 98-3160United States v. 150 Acres of Land15commercial orcustomarypractice in an effort to minimizeliability.” The definition also emphasizes the particularity ofthe inquiry by noting that “the courtshalltake into accountany specialized knowledge or experience on the part of thedefendant, the relationship of the purchase price to the valueof the property if uncontaminated, commonly known orreasonably ascertainable information about the property, theobviousness of the presence or likely presence ofcontamination at the property, and the ability to detect suchcontamination by appropriate inspection.”These paragraphs and definitions obviously contemplateprimarily a willful acquisition or purchase of the property fora particular commercial or personal purpose. They also,though not explicitly, seem to contemplate the acquisition ofall of the interest in a “facility” at one time. This case,however, is of quite a different sort. Ethel and the otherBohaty defendants had inherited undivided interestsconstituting a large majority of the ownership of the parcel.Three other heirs had inherited very small portions, less thantwo years before the other fractional interests werebequeathed to Ethel. A year later, while the estate of Ethel’shusband was still in probate, the three other relatives soldtheir fractional interest to Ethel. Under these circumstances,where one part-owner by inheritance acquires an interest fromanother part-owner by inheritance, apparently merely toconsolidate the inherited ownership interest, the level of“appropriate inquiry” is a very fact-specific question. We seeno evidence in the record of what is “customary practice” inconnection with such family transactions. There is also noevidence of the specific purchase price and the “value of theproperty if uncontaminated” or other factors mentioned in thedefinition. Under these circumstance we hold simply that, atthis time, we cannot state as a matter of law that Ethel’sactions were not “appropriate inquiry” under thecircumstances at the time of the sale of the other fractionalinterests. On remand, the burden will rest on Ethel, assumingall the other requisites of the defense with respect to herinherited interests are met, to also show that she met therequirement of “appropriate inquiry.”