*1 698 jurisdiction personal F.2d mits the exercise
Chattanooga Corp. Klingler, v. 704 (6th Cir.1983); 903, over them. Serras v. First 906-07 N.A., 1212, 1217 Bank 875 F.2d Tennessee Disposition
(6th Cir.1989). IX. ruling on Schmitt’s The trial court’s “jurisdic it true that While and the Rule 50 motion is REVERSED corpo the individual officers of a tion over is RE- judgment is The case VACATED. predicated merely upon ration cannot be to the district court for further MANDED jurisdiction corporation,” Weller over opinion. consistent with this proceedings 929, Co., 504 F.2d at we v. Cromwell Oil the mere fact that the actions hold that
connecting defendants to the state per in an official rather than
undertaken capacity preclude does not the exer
sonal jurisdiction over those de personal
cise of Hence,
fendants. where an out-of-state actively
agent
personally
involved
claim,
giving rise to the
the conduct
America,
UNITED STATES
jurisdiction
de
personal
should
exercise
Plaintiff-Appellee,
pend
play
on traditional notions of fair
v.
i.e.,
justice;
pur
whether she
substantial
LAND,
Less,
More or
150 ACRES OF
posely availed herself of the forum and the
County, Ohio,
Located in Medina
reasonably
consequences
foreseeable
Defendant-Appellant.
v.
Burger King Corp.
that availment. See
Rudzewicz,
462, 474,
471 U.S.
105 S.Ct.
No. 98-3160.
(1985);
2174, L.Ed.2d
International
528
Appeals,
310, 316,
United States Court
Washington,
Shoe Co. v.
326 U.S.
(1945).
Circuit.
154,
This
Sixth
66 S.Ct.
standing the that the defendants acted See, agents they e.g., did
as when so. High Idaho’s Desert v.
Committee for (9th
Yost, 814, Cir.1996); 92 F.3d 823-24 Laboratory Supply
Electronic Co. v. Cul (3d
len, 798, Cir.1992); 977 F.2d 807-08 Fashions, Inc., Craftex,
Polo Inc. v. (4th Cir.1987); Donsco,
F.2d Inc. (3d Casper Corp., 587 F.2d
Cir.1978). court in dismissing
The district erred Morgan
Case and from the suit based
merely they on the fact acted as
agents corporation. for the The matter
will be remanded for a determination of
whether their contacts with the state of
Michigan process per- were such that due *2 briefed), (argued and
David S. Hoffmann Hoffman, Cleveland, McMahon, DeGulis & OH, Appellant. briefed), (argued A.
Jared Goldstein *3 (briefed), Depart- D. Freeman U.S. James Justice, Re- ment of Land & Natural Division, D.C., Washington, sources Appellee. JONES, COLE, BOGGS,
Before: and Judges. Circuit BOGGS, J., opinion delivered the of the JONES, 700), (p. court. J. delivered a COLE, separate concurring opinion. J. 711-13), opinion (pp. separate delivered a concurring part dissenting part. OPINION BOGGS, Judge. Circuit The federal Environmental Protection (“EPA”) Agency sued the Glidden Co. in personam certain vari- land owned Bohaty family ous of the in rem members Comprehensive under the Environmental Response, Compensation, Liability Act (“CERCLA”), seq., 9601 et U.S.C. in removing connection with costs incurred toxic wastes found on the land. Glidden with the EPA for a fraction settled small costs, clean-up summary cross-moved for judgment. granted The district court summary judgment government, for the thereby perfecting a lien on the 9607(0(1). under The Boha- tys appeal judgment now of the district court ordering the sale of the land and directing proceeds be used to satisfy the lien on the We re- judgment verse the of the district court in part, part, affirm in and remand the case proceedings. for further I in question approximately The land contiguous acres of real estate in three tanks; cern, underground storage in Medina and five on Pearl Road parcels, located It has “for a they suggested follow-up inspection been owned County, Ohio. Bohaty fall, vegetation when the generations” three would less least farm-equip- concluded, operated inspectors has from family, which dense. extreme west- repair business at the photographs, orga- ment historical aerial court’s According to the district edge. ern placement nized drum had occurred from time, Bohaty present Ethel at the opinion, early mid-1950s 1970s. through Jr., interest, Bohaty, and John Bohaty inspectors owns Ethel stated that % Bohaty, and Su- Bohaty, Belinda Barbara not tell her drums contained did own Bohaty each interest san materials that she should % inherited Each interest entirely land. precautions, them or take other remove Bohaty’s in- for that of Ethel except did further and that OEPA not contact her *4 land, of which she that the regarding August inspection. terest the % interests purchased from relatives whose 16, 1991, September request- OEPA On her hus- at the same time as descended EPA. In ed assistance from the federal father-in-law, Boha- Ethel’s John band’s. 1991, inspect the EPA to October asked 12, 1982, leaving April on one-half ty, died 1991, EPA On property. the October property in the to her husband interest inspec- conducted inspectors preliminary a (John), by the now owned Vencel interests tion that identified approximately Barbara, Belinda, John, Jr., to and Susan afternoon, inspec- that drums. Later the them, three other and the remainder to samples parts tors took soil from various 27, 1984, Vencel January On relatives. analysis re- property. Laboratory died, to Ethel. leaving his interest entire samples vealed that each exhibited 15, 1985, other February the three On Fahr- flashpoints degrees of less than 130 or their heirs sold their interests relatives enheit, ignitability therefore an haz- posing to Ethel. ard, pH as acidic val- substantially as well 30, 1987, depart- the local fire On March EPA results ues. The considered these fifty-five gallon noticed numerous ment justify to a action under sufficient removal property drums on the and notified 300.415(b)(2). 40 G.F.R. Agency Environmental Protection Ohio government evidence presented The (“OEPA”). OEPA visited the (now Bohaty, that Vencel Ethel’s husband approximately and noted 300 abandoned deceased) may dumping knew of waste, containing paint laboratory drums Bohatys profited living from it.1 The chemicals, toxici- sludge. and red OEPA’s they unrebutted presented evidence negative. Bohaty stat- ty tests were Ethel presence drums on did not know inform inspectors ed that she asked to in the other than those used property, posed if and that problem, her the drums Except repair farm-equipment business. did not hear from them. she prop- edge extreme for the western 17, 1989, again in- August OEPA On vegetated, espe- land was erty, heavily with spected in connection In containing area the drums. cially the of four City appropriation of Medina’s fact, inspectors not see EPA often could inspec- road The acres for construction. they on them. the drums until stumbled inspection. not related to tion was the 1987 16, 1991, the EPA sent Bohaty expressed get desire to December Ethel her On poten- might Bohaty toxic and Ethel a notice rid of substances John asking agree pay inspectors liability The found 200-300 tial them to found. re- drums, response The notice of which cause for con- for the activities. some were judicial government support of this regional proffered 1. The EPA officer found Bohatys credibility defeat had raised issues con- claim "that their usefulness cerning depositions several affidavits and EPA." .quested response days. judgment within five and order and a concurrent or- respond did not to the notice. der of sale. Enforcement of the orders is stayed pending appeal. 15, 1992, January the EPA began
On operation removal on Alto- proceedings, February In related gether, approximately 1000 drums were 1996, the EPA a de issued minimis order removed, approximately of which 550 con- on addressing potential consent liabili- approximately tained waste and 450 were ty parties regard of nine to the Boha- empty. completed The removal was on ty property. Fed.Reg. 5550. Ashland May 7, cost under 1992. estimated Company, Chemical Dow Chemical Com- control of the on-scene coordinator was pany, Quaker Corporation, General Motors $652,720. ultimately The district court de- Company, Oats State Chemical Manufac- that the damages termined costs and in- Inc., turing Company, Synthetic Products $854,- curred Company, Uniroyal Company, Chemical large 426.87. The assert that a Inc., Upjohn Company were each as- removed, underground storage tank was $1,050 sessed past satisfaction of the on-scene although report coordinator’s future claims Bohaty connected with the activity. does not indicate such site. Ibid. The removal activities were confined to
Parcel of the The EPA in- II spected visually Parcels and with a and A. The Structure of the De- CERCLA magnetometer for surface and subsurface drums, fenses nothing and found to remove. 5, 1995, May just
On before the three- liability The basic structure under year of expired, statute limitations see 42 CERCLA is set forth at 42 U.S.C. § 9613(g)(2)(A), 9607(a): brought personam an in against action any Notwithstanding provision other Company Glidden and an in rem action law, subject or rule of only and to the against Bohatys’ parcels three of land (b) defenses set forth in subsection of activity. to recover the cost of the removal this section— The government agree- executed a consent (1) the owner and operator of a ... ment with resolving Glidden the claims facility, [and] $60,000, against Glidden for leaving the (2) any person who at the time of only as the defendants disposal any hazardous substance action. 61 Fed.Reg. gov- See 29763. The owned operated any facility or at which ernment and the both moved for such hazardous substances were dis- summary 30, judgment. September On of, posed 1997, granted the district court govern- ... shall motion, be liable for— motion, Bohatys’ ment’s denied the judgment entered “for Plaintiff (A) all costs of removal or remedial and against the Defendants.” The Boha- by action incurred the United States tys appealed court, voluntarily to this but Government or a State or an Indian appeal prejudice, dismissed their without tribe not inconsistent with the national apparently ground on the that the order contingency plan; entered the district court not a judgment.
final government, unop- Ibid. The defenses CERCLA are: posed by the Bohatys, then moved the (b) Defenses modify district court judg- its order and entry. ment January On There shall be no under liability sub- (a) granted district court the motion and en- person section of this section for a tered previous both an order its modifying otherwise who can liable establish satisfied the of sec- requirements he has the evidence preponderance 9607(b)(3)(a) (b) hazard- tion of this title. threat of release of a release or damages result- ous substance (B) To establish that the defendant solely by— therefrom caused ing know, provided had no reason to as (i) (A) of this subparagraph
clause un- must have paragraph, defendant party a third an act or omission of dertaken, all acquisition, at the time of agent of employee than an other inquiry previous into the appropriate defendant, act or or than one whose con- ownership and uses of the with a occurs connection omission good or custom- sistent with commercial directly relationship, existing contractual to minimize ary practice an effort ..., if indirectly, with the defendant purposes preceding For of the liability. by establishes prepon- the defendant into ac- sentence the court shall take (a) evidence that he exer- derance of the any specialized knowledge or ex- count haz- due care cised defendant, on the perience concerned, taking into substance ardous relationship price purchase of such the characteristics consideration if the value of uncontami- substance, all rele- light nated, reasonably commonly known or (b) circumstances, he vant facts and information about ascertainable precautions foreseeable against took pres- the obviousness of the property, party omissions of such third acts or likely presence ence or of contamination foresee- consequences that could ability property, at the and the to detect from such acts or omissions. ably result in- by appropriate contamination such 9607(b). defi- The CERCLA 42 U.S.C. spection. nitions state: *6 (35)(A) rela- The term “contractual (D) Nothing paragraph shall for the of section tionship”, purpose liability chapter of affect the under this 9607(b)(3) includes, title, of this but who, omission, by any a act or defendant to, contracts, land deeds or not limited release or caused or contributed to the or transferring title other instruments release of a hazardous sub- threatened on unless the real possession, subject action which is the stance facility is located which concerned relating facility. to the by the after the acquired was defendant § 9601. placement the hazardous disposal or on, in, facility, and or at the substance provisions, the frame- Based on these de- or more of circumstances one liability considering Bohatys’ work for (iii) (i), (ii), is also in clause or scribed “facility” present The of a this: owners by pre- by the defendant established in remov- incurred are liable for costs of the evidence: ponderance un- facility, toxic substances from the ing (i) less acquired At the time the defendant know facility the defendant did not (1) by preponder- they can establish had no reason to know that
and “release” ance of the evidence that the is the sub- hazardous substance which damages re- and the of the substances or release ject of the release threatened caused sulting from the release on, in, facility. disposed or at the was third by an act of a solely or omission who was neither
party (a) nor present employee owners’ (iii) facili- acquired The defendant (b) or who in a contractual ty by bequest. inheritance someone owners; relationship with the forego- establishing In addition to ing, the defendant must establish
(2) “all appropriate inqui- the owners that she undertook ry” bought when she it. But see (a) exercised due care with infra remaining 706-07. The interest can substances, in light of all relevant liability Bohatys by avoid if the establish circumstances, facts (1) preponderance of the evidence that (b) precautions against took the foresee- “placement” “disposal” or occurred before par- able actions and omissions of third the “release” of the substances ties. damages resulting and the from the re- state, statutory The definitions non-ex- solely by lease were caused an act or clusively, following that the contractual re- (i.e., a third party they omission of did (l)(b) lationships satisfy above and thus release), not or “cause contribute to” the contracts, liability create for owners: land (3) they exercised due with re- care deeds, transferring or other instruments substances, spect in light of all possession, title or unless circumstances, relevant facts and and took (i) present owners in- acquired their precautions against the foreseeable actions terest in the real on which parties they and omissions of third since facility have owned the land. “disposal” is located after the or substances, “placement” of the they concede that are the (ii) present owners property, they owners of the and thus that (A) potentially responsible parties are under know, did not and had no reason to 9607(a)(1); they they dispute that are know, “all appropriate inquiry,” after potentially responsible parties under substances, 9607(a)(2), as the argues, (B) acquired by their interests inheri- they because “disposal” contend that no bequest. tance or hazardous substance has occurred while Thus, present acquired owners who they owned the their bequest interests inheritance or also that a “release” concede of “hazardous can liability having avoid without under- substances” has on property, occurred “all appropriate inquiry” taken with re- that at least one of parcels the three is a spect to the “disposal” “placement” by “facility,” and that the government in- parties third of hazardous substances curred removal They dispute costs. they the land acquired before it. Howev- amount of the removal costs claimed er, they must have exercised due care with *7 government. the substances, respect to in light the of all (1) on appeal The issues are whether the circumstances, relevant facts and and tak- district court erred when it that decided precautions en against the foreseeable ac- qualify the do not for the “inno- tions and parties, omissions of third while 9607(b)(3) §§ cent landowner” defense of they have owned the land. Present own- 9601(35) (2) above; set out whether ers acquired by who their interests land the district court erred when it decided contracts, deeds, or other instruments that parcels the two unaffected are of transferring possession, by title or and not (3) “facility;” the whether the district court inheritance bequest, or must un- also have erred when it found that the costs of dis- appropriate dertaken “all inquiry” when posing empty of the barrels and the under- they acquired the property to avoid liabili- ground tank properly part were of the ty. (4) costs; removal whether the Boha- n % The Bohaty interest that Ethel tys deprived were process by due the bought from the three other relatives was actions of the EPA and the district court. deed, by quit-claim transferred and was B. The Innocent Landowner Defense not an bequest. inheritance or On first consideration, appears it that for this in- Bohatys argue The they quali- first that liability, terest to avoid must fy Ethel show for the “innocent landowner” defense of 9601(35). Bohatys’ “failure to remove or 9607(b)(3) part, by The district the §§ their property.” stabilize the drums on court held that evidently court was entire- district not cannot such defenses Defendants assert ly of and defenses (1) clear about elements they prove cannot because Having Lability. to CERCLA concluded or of release hazardous release threat solely by that the release was not caused resulting damages substances in fact fatal to party, third which would solely by act or omission were caused an defense, (2) party” the “third court then party’s the third act party; of a third stated that the “can confusingly not occur in connection or omission did attempt pur- with still to assert the innocent relationship with contractual (3) Defendants; demonstrating due chaser defense they care exercised substance; [causing third ‘act or party’s with omission precautions against took wastes they Site] release of hazardous acts or omis- with a party’s third foreseeable connection contractual occur[red] consequences directly indirectly foreseeable or relationship, existing sions and the (brackets resulting therefrom. origi- with’ them.” J.A. at 63 nal) 9607(b)(3)).2 § (citing U.S.C. at 62. Each of four Opinion, J.A. to ques- court decided that the answer correct, dispositive standing if holdings, depends upon “disposal” tion whether alone. preceded Bohatys’ acquisition First, court held haz- the district “disposal” and concluded that ardous substances “released” “dispos- For definition of ongoing. its “release” as Bohatys. defines CERCLA al,” CERCLA refers to Solid Waste any means “The term ‘release’ follows: Act, which Disposal “[t]he states that term leaking, pumping, pouring, emit- spilling, discharge, in- ‘disposal’ deposit, means the injecting, es- ting, emptying, discharging, jection, dumping, leaking, plac- or spilling, leaching, dumping, disposing or caping, ing any solid or hazardous waste waste (including into the environment aban- any land water.” 42 into or on or U.S.C. barrels, discarding or contain- donment 6903(3). ers, contain- receptacles and other closed pollutant or ing hazardous substance “disposal” and The distinction between contaminant).” 9601(22). important to our resolution of “release” is Therefore, in their assertion of prevail to early Although the case before us. defense, Bo- the “innocent landowner” interpreted “disposal” CERCLA decisions leaking, hatys spilling, must that all prove substances passive include movement emitting, emptying, dis- pumping, pouring, (i.e., activity), no human two circuits injecting, leaching, charging, escaping, “disposal” spills recently limited dumping, disposing into environ- by human intervention. See occurring (including ment the abandonment or dis- Co., 96 Realty United States CDMG *8 barrels, containers, and carding of other (3rd Cir.1996); Sys., ABB F.3d Indus. 706 any receptacles containing hazard- closed Inc., Tech., 358 120 F.3d Inc. v. Prime contaminant) pollutant substance or ous (2d Cir.1997) reasoning (adopting by” solely “caused the acts omis- was interpretation of the Realty). This CDMG parties who were neither sions third rea- view for several statute is better in a employees persons nor contractual Caplan, “Escaping sons. Michael S. See Bohatys. relationship with Liability: The Interim Owner CERCLA Migration Gains Circuit Passive Defense The district court held that release Rep. L. caused, 28 Envtl. Recognition,” in of hazardous substances certain, 9601(35)(A) by parties caused third exempts appar- ble if the release was 2. Section (or, contractual, they ties contractual relationships with whom have ently from employ). 9607(b)(3) present they owners lia- whom that are rule (1998). First, “disposal” Bohatys acquired because is de- piles the land the near primarily fined in terms active words and, later, certain drums were one size injection, such as deposit, placing, they larger. that government The potentially passive “spilling” words appears to relying on the inference that “leaking” should be interpreted actively; because there were hazardous substances second, “release” must be broader than drums, outside the and because some of “disposal,” disposal because is included the empty, leaking drums were not release, 9601(22); within see 42 U.S.C. must have been ongoing. Perhaps, with third, it makes sense statutory appropriate factual development, gov- scheme as well as the words themselves to ernment justify will be able to that infer- “disposal” stand activity pre- not, government ence at trial. The has entry cedes the of a substance into the however, advanced sufficient evidentiary environment and “release” stand for the support at this time to show the absence of entry actual of substances into the envi- genuine issue of material fact. view, ronment. On this more recent Bohatys acquired the property after the The fact that pres the drums were “disposal.” question The is whether “re- ent on the property Bohatys and that the lease” acquisition. continued after their them, knew about at least after the first
In any the absence of evidence that OEPA visit calls into question activity there was human involved what Bohatys whether the “exercised due care ever movement of hazardous substances with respect to the hazardous substance[s] occurred on the property since the Boha- concerned, taking into consideration the tys it, have owned we hold that the Boha- characteristics of such hazardous sub tys “disposed” have not of hazardous sub stance[s], light of all relevant facts and stances on the We also hold However, Bohatys circumstances.” Bohatys that the genuine have raised is presented evidence that after both the sues of material fact as to the three other 1987 and the inspections they asked (1) crucial they issues: whether “released” OEPA to advise them if anything needed land, (2) hazardous substances on the “ex done, to be performed tests ercised due care with to the haz by negative, OEPA were and that concerned, ardous substance taking into OEPA never told them that action was consideration the characteristics such necessary. The have raised a substance, in light of all rele genuine issue of material fact as to wheth vant circumstances,” facts and they er required exercised the degree of precautions “took against foreseeable acts care. or omissions parties] of [third and the consequences that could foreseeably result government has shown that from such acts or omissions.” These hold was accessible to par third ings appeal resolve the on the interest % ties, may which indicate that the Bohatys by obtained present inheritance did not “precautions against take foresee Bohaty owners. giveWe our reasoning on able acts or omissions parties] of [third each of the three in turn. consequences that could foresee- only ably presented evidence result from such acts or omissions.” However, there is no evidence the rec “released” hazardous substances ord that photo parties were several third ever compro *9 graphs showing what might integrity mised the of the drums or other ground substances the near wise caused rusted the release of their contents. drums and the of inspectors Perhaps precautions statements to the taken the Bo- that effect. No presented, evidence was hatys adequate were under the circum for example, that at one time after Again, the stances. the has not paragraphs These genuine of a issue of definitions obvi- the absence shown ously a contemplate primarily acqui- willful material fact. purchase or of the a property sition Therefore, the inherited inter as to 3%s particular personal purpose. or commercial est, genuine the have shown a also, They though explicitly, not to seem to each of of material fact as element issue contemplate acquisition the of all of the defense innocent landowner CERCLA “facility” interest in' a at one time. This to trial. proceed and are to entitled case, however, quite a is of different sort. Bohaty Ethel the other defendants the n % in respect to Finally, with had inherited undivided interests constitut- heirs, Bohaty terest to Ethel other sold large ing majority ownership of the of has raised genuine we hold that Ethel parcel. other heirs had Three inherit- to of fact as whether she issue material very portions, years ed small less than two “undert[ook], acquisition, at the time of all before the other fractional interests were previous own appropriate inquiry into the later, A bequeathed year Ethel. to while ership property uses of the consistent the estate Ethel’s husband was still good customary prac with or commercial probate, the three other relatives sold with liability” tice in to minimize an effort to Ethel. their fractional interest Under purchased interest she from circumstances, part-own- these where one her relatives. byer inheritance an acquires interest from inheritance, part-owner by There no evidence that Ethel conduct- another appar- is bought when particular inquiry ently merely ed she to consolidate the inherited interest, ownership “appropri- the interests. the level of very inquiry” fact-specific question. ate is a However, inquiry particular no We see evidence the record of what statutory definition is necessary under with “customary practice” connection clearly totality of the dependent on family There is also such transactions. no require- In particular, circumstances. price and specific purchase evidence of the ment is “the defendant ... has no if “value property of the uncontaminat- any reason know that hazardous sub- to ed” or factors mentioned the defi- other disposed ... was ... at stance nition. these circumstance we hold Under 9601(35)(A)(i). facility.” 42 U.S.C. Sub- time, that, simply at this we cannot state (35)(B) amplifies section this definition as a matter of law that Ethel’s actions un- stating that “the defendant must have “appropriate inquiry” not under the dertaken, acquisition, at the time of all the time of the sale of the circumstances at appropriate inquiry previous into the own- remand, other fractional interests. On ership of the consistent and uses Ethel, assuming will all the burden rest on good customary prac- commercial or requisites other of the defense with re- liability.” tice an effort to minimize met, spect to inherited interests are to her particularity emphasizes definition also requirement of also show that she met the inquiry by noting of the that “the court “appropriate inquiry.” any specialized shall take into account “Facility”? C. What Constitutes the on the knowledge experience or parties agree that no release nor defendant, relationship purchase on Parcels threat release occurred if price value of the uncon- Therefore, if Bohatys argue, even 3. taminated, commonly reasonably known liable, appropriate only they are a lien is prop- about the ascertainable information on Parcel 1. erty, presence the obviousness (B) “facility” means ... likely presence The term of contamination ability site or area where a hazardous sub- property, and the detect such stored, deposited, dis- by appropriate inspection.” contamination stance has been *10 of, posed or or come to placed, provided otherwise ute limitations section 9613 of this title. located. be 9607(0(1). 42 U.S.C. government argues that the three (23) The terms “remove” or “remov- parcels “subject were all to or by” affected cleanup al” means or [sic] removal of investigators the removal. EPA observed
released hazardous substances from the visually Parcels and 3 both and with a environment, may such actions as be magnetometer to locate drums that necessary taken in the event of the might deposited have been there. The threat of release of hazardous sub- government presented evidence that environment, stances into the such ac- pond, upon investigators which the ex- monitor, may necessary tions as be to pended energy, considerable extends be- assess, and evaluate the release or yond Parcel 1 to Parcel 3. Are these threat of release sub- may necessary such actions as be to stances, disposal of removed materi- monitor, assess, and evaluate the release al, taking or the of such other actions as or threat of release of hazardous sub- minimize, may necessary prevent, be to stances, disposal of removed materi- mitigate or to damage public health al, ... may such other actions as environment, or welfare or to the which necessary minimize, prevent, to or miti- may otherwise result from a release gate damage public health or threat of release. environment, welfare or to the which may otherwise result a from release or 42 U.S.C. 9601. threat of release? All damages costs and which for be, They may appear but that does not person is liable to the United States self-evident. (a) under subsection of this ... section The record indicates that interests shall constitute lien favor of the parcels the three have been transferred United upon States all real together by instruments, the same rather rights to such which— by separate than par- instruments for each (A) belong person; to such cel, at least since 1982. The district court (B) subject are to cases, or affected looked to asset-forfeiture and found removal or remedial action. support proposition “proper- for the that a
ty”
is “defined
the recorded instru-
ments and documents that created the de-
imposed
The lien
by this subsection shall
property.”
fendant’s interest
See
arise
the later of the following:
Smith,
(6th
United States v.
709 other than the land any purpose arate for that the term Kelley does state Although They were transferred on the should be construed records. action” “removal deed, in a except issue small broadly, the statute-of-limitations same geograph- they not illuminate were in the same undevel- parcel that case does one us. Further- merely in the case before in oped ic issue state. The formal division that “the more, claim government’s or the land records is not “reasonable ... ten Kelley examined investigation Brighton. under natural” division sites, actually of which only one contiguous waste,” Brief for contained Proper? D. Removal Costs are Which 45, misleading. There at States United that the removal ac- argue The “sites” were that the ten
is no indication costs, unnecessary for which tion incurred merely ten parcels they separate — particular, In they should not liable. EPA large landfill that the one locations (1) not the EPA should they claim that of hazard- possible locations identified as all, at empty have removed the drums simply Kelley panel materials. The ous haz- they posed no environmental because geograph- the issue of not consider did (2) ard; should not have removed the EPA of a “removal.” ical extent tank, it underground storage because case before feature of the The distinctive (3) hazard; no after posed environmental parcels the three is the fact that this court the EPA consolidated the contents identities, notwithstanding separate waste-containing into 300 550 drums historically conveyed to- they were it not have dis- disposal, drums for should question is whether this gether. The hard drums, empty additional posed of the 250 any make difference. should haz- no environmental they posed because suggest that words of the statute ard; minimum, empty the 700 at facility should be de- of a bounds disposed of in a drums should have been part by the bounds fined at least than sent to a standard landfill rather However, an contamination.... (presumably, at hazardous-materials site reasonably natu- area that cannot be cost). greater multiple parts or func- rally divided into liability responsible places CERCLA single be defined as tional units should of removal or remedi- parties for “all costs parts contains “facility,” even if it ... by the States al action incurred United are non-contaminated. contin- with the national not inconsistent Brighton, Township v. United States 9607(a)(2)(A). gency plan.” Cir.1998) (6th (citing F.3d (“NCP”) contingency plan The national Int’l Properties Lake Rockwell Clear provides that: (S.D.Tex. F.Supp. 767-68 Corp., 959 ... where the lead any release At 1997)). where In we held that Brighton, ... the determination agency makes that the entire appeared] “it public a threat to health that there is whole together dump,” as a operated States or the envi- welfare of the United only “facility” though even parcel was a any ronment, may take agency the lead To contaminated. Ibid. one corner was abate, removal action appropriate Brighton, we must teaching apply minimize, stabilize, mitigate, or prevent, Bohaty whether the fact decide threat of the release or the eliminate cartographi- of three composed release. constitutes a cally-denominated parcels 300.415(b)(1) into multi add- (emphasis or natural” division “reasonable 40 C.F.R. ed). ple parts. are, (e) following removal actions There is that it does not.
We hold rule, in the appropriate general as a parcels record that the no evidence however, shown; time, types of situations were, sep- considered relevant appeal list is not exhaustive and is not intended dence the record on that an prevent agency taking the lead from underground tank was removed. Nor is *12 any necessary other actions deemed un- empty there evidence that the drums CERCLA, 311, der CWA section or oth- accepted by ordinary would have been an appropriate landfill, er federal or state enforce- disposition or that such would have authorities, response ment or and the costly than disposition. been less the actual duty not on list does create the lead Accordingly, the decision of the district agency any particular to take action at court as to the amount of the cleanup costs time: is affirmed. E. Due Process
(7)Removal
drums,
tanks,
barrels,
or other bulk containers that contain or
States,
Relying v.
Reardon
United
may contain hazardous substances or
(1st Cir.1991),
Bohatys
ment of the district court is AFFIRMED
States
United
Boggs noted in
Judge
As
respects.
all other
Township Brighton,1
facility
“a
should
of
by the
part
be defined at least in
bounds
JONES,
NATHANIEL R.
Circuit
(6th
307,
contamination.” 153 F.3d
313
Judge, concurring.
Cir.1998).
Brighton, Judge
Boggs rea-
In
that an area that cannot be reason-
majority
I
with the
that the
soned
agree
While
naturally
multiple
divided into
“disposal”
ably
district court’s construction of
units should be defined
purposes
parts
or functional
9601(35)(A)
parts
if it contains
expansive,
single facility,
ma-
as a
even
overly
that are non-contaminated. See id.
at 313.
jority’s interpretation is too narrow.
reasonably
Conversely,
where
majority
“disposal”
“spills
limits
occur-
according
opinion
of each
Brighton
produced a divided
court differs
1. The
court
product
Judge,
opinion
Judge Boggs
the result is the
where
wrote for the
while
court,
Brigh-
only
Accordingly, references to the
Judge
concurred
in the
court.
Moore
reasoning
opinion refer to the
indi-
Judge
Dowd concurred in
ton
result
(6th
appropriate
not to
part.
Judges where
F.3d 307
Cir.
vidual
dissented
1998).
sum,
reasoning
reasoning
Brighton
of the court.
In
(4th Cir.1999) (hold-
409,
191 F.3d
418-19
into contaminated
naturally
divisible
widespread
contamination scat-
ing
a court can
parts,
and non-contaminated
property prevented
por-
throughout
tered
facility
limit the
to the contaminated
case,
particular
func-
limiting
facility
In this
tions of
simply
units
because the
parcels
three
tional
evidence shows
units); Akzo
rea-
could be divided into those
legal descriptions and can be
distinct
Aigner Corp., 960
sepa- Coatings,
Inc. v.
sonably
multiple parts,
into
divided
(N.D.Ind.1996)
(reject-
F.Supp.
from the non-con-
rating the contaminated
the “Site
ing
argument
because
parts.
taminated
geographic
can be divided into five distinct
the fact that
majority emphasizes
areas,
facility” and
each area is a distinct
sepa-
considered
parcels
were never
holding that hazardous waste had “other-
than land rec-
any purpose
rate for
other
locations
wise come to be located
several
ords,
transferred on the same land
Site”); Northwestern Mutual
at the
Life
deed,
unde-
and were maintained
similar
Corp., 847
Ins. Co. v. Atlantic Research
veloped
These factors are not de-
states.
(E.D.Va.1994)
F.Supp.
(stating
395-96
*14
facility.
terminative of the bounds of the
de-
purpose
that what “matters for the
of
inquiry
our
The words of the statute direct
facility
of
where the
fining
scope
is
to the determination of the bounds of the
disposed
...
hazardous substances were
or area
a hazardous substance
“site
where
... or have
come to be located”
otherwise
stored,
of,
deposited,
disposed
has been
confirms
and “the uncontradicted record
placed, or otherwise come to be located.”
...
in all
that hazardous substances exist
9601(9)(B).
§
42
The case law con-
(footnotes
quadrants
property”)
of the
and
to
forms
this directive.
omitted).
essence,
quotations
In
internal
Brighton,
In
this court determined that
scope
of contamination determined
“facility” in
property
the entire
was the
scope
facility.
of the
“it
that the entire
part
appearfed]
because
Conversely,
the Fourth
where
Circuit
operated together
as a
property was
found that contamination was not wide-
Moore,
dump.”
Judge
sure, defining the part, at least in when “facility” under 42 U.S.C.
scope of the 9601(9). Brighton, 153 F.3d Cf contamination); Axel scope on
(relying (examin-
Johnson, Inc., at 418-19 191 F.3d divisibility
ing scope of contamination
Nurad,
land);
Inc.,
(relying scope of we statutory apply language defin-
are 9601(9) “facility” and fol-
ing the under teachings Brighton
low the all, “facility” at case limiting to divide the
presents opportunity a clear appropriate into units based on divisions and the bounds of
reasonable In present on the
contamination case, I present would hold limited to Parcel based on the
facility is
divisibility into natural *15 that no contamina-
units and the admission 1, of Parcel
tion was found outside proper I would hold that the lien is
thus
only pertains as it to Parcel 1. reasons, foregoing respectfully
For the I majority from Part II. C. of the
DISSENT
opinion. BEATTY, P. Plaintiff-
Robert
Appellant,
Phillip & S. WOOD Wood
Johnson, P.C., Defendants-
Appellees.
No. 98-4226. Appeals,
United States Court of
Seventh Circuit.
Argued Sept.
Decided Feb.