The case against intermediate owner liability under CERCLA for passive migration of hazardous waste.

• Author: Bronston, Robert L.
• Position: Comprehensive Environmental Response, Compensation, and Liability Act of 1980

INTRODUCTION

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)(1) to address the dangers posed by inactive hazardous waste sites.(2) CERCLA imposes both strict liability and joint and several liability(3) for environmental damage on four general categories of potentially responsible parties (PRPs).(4) The four categories of PRPs include present owners of environmentally contaminated facilities,(5) prior owners of a facility who owned it at the time it was used for hazardous waste disposal,(6) those owners of hazardous waste who contract for its removal,(7) any transporter of hazardous waste.(8)

Federal courts have divided over the scope of liability of prior owners who did not actively contribute to the contamination of their land. This controversy arises in one common factual context. In this scenario, the original owner of the land generates hazardous waste and thereby contaminates the property. A second owner then uses the land for a different purpose, does not create any new waste, and is not aware of the previous contamination.(9) During the second owner's tenure, the previously deposited hazardous material spreads via leaching or migration. Finally, a third owner assumes control of the land and retains ownership at the time of the required remedial activity.

Liability clearly rests both on the person who dumped the hazardous material(10) and, in all but a narrow range of situations, on the third, or current, property owner.(11) The liability of the second owner, however, presents a more difficult problem. CERCLA section 107(a)(2), the prior owner provision, imposes liability on those who owned the land "at the time of disposal."(12) Thus, in order to determine the liability of intermediate owners, courts must determine whether the term disposal as used in the prior owner provision requires active conduct on the part of the owner or whether it also includes the passive leaching or migration of previously deposited waste.

Federal courts have split on how to interpret disposal The majority view, adopted by the Fourth Circuit, employs a passive definition, which holds that even passive migration of hazardous waste may trigger section 107(a)(2) liability.(13) Several district courts and bankruptcy courts, however, have applied an active definition of disposal, holding that only prior owners who contribute to the risk of environmental contamination by an intentional act should face liability.(14) Under this view, an intermediate owner who did not actively contribute to the contamination of the site should face no liability because the migration of the hazardous waste did not result from any of her actions. Courts have recently issued opinions on both sides of the issue.(15) Also, as the Environmental Protection Agency (EPA) continues to discover more sites at which passive underground migration has occurred over several years,(16) the fact pattern at issue will tend to recur.

This Note argues that Congress intended disposal to have an active meaning and therefore that courts should not hold prior intermediate owners liable for the passive migration of hazardous waste under section 107(a)(2). Part I examines CERCLA's definition of disposal. This Part concludes that the language of the definition, though somewhat ambiguous, supports the active definition. Part II considers the history of both CERCLA and the Resource Conservation and Recovery Act (RCRA),(17) which CERCLA amended, in order to determine whether Congress intended to require affirmative conduct on the part of intermediate owners as a prerequisite to liability. Part II concludes that although the history of CERCLA sheds little direct light on the meaning of disposal, the analogous controversy under RCRA indicates that Congress understood disposal to have an active meaning in the CERCLA statute. Part Ill confirms this interpretation, concluding that the structure of CERCLA supports the active reading of the definition. Finally, Part IV demonstrates that the active reading of disposal is consistent with CERCLA's purposes. Courts should therefore interpret the word disposal to require a showing of affirmative human conduct before imposing liability on intermediate owners under section 107(a)(2).

1. THE LANGUAGE OF THE DEFINITION

   In interpreting and applying statutes, a court must first consider the statutory language.(18) If the relevant words have a clear meaning in their context, this meaning should, and arguably must, control.(19) To determine the scope of liability assessed under section 107(a)(2), courts must interpret its use of the term disposal CERCLA defines disposal by incorporating the definition used in RCRA:(20)

   The term "disposal" means the discharge, deposit, injection, dumping,

   spilling, leaking, or placing of any solid waste or hazardous waste into

   or on any land or water so that such solid waste or hazardous waste or

   any constituent thereof may enter the environment or be emitted into

   the air or discharged into any waters, including ground waters.(21) This Part examines whether this definition of disposal provides a sufficiently clear meaning to end the inquiry. Section I.A considers the argument that this language mandates a passive definition of disposal Section I.B considers the opposing arguments, that the language of the statute suggests an active interpretation. This Part concludes that the statutory language does not have a "plain meaning," although the best reading of the text favors the active definition of disposal

   1. Statutory Language Supporting a Passive Reading

      Courts applying the passive interpretation of disposal have relied on the inclusion of the word leaking in the definition of disposal These courts reason that because CERCLA defines disposal to include leaking -- a word which typically does not denote active human conduct -- disposal must not require active human conduct.(22) One district court(23) that relied on this analysis when construing the word leaking in a state statute virtually identical to CERCLA and designed for the same purposes summarized the argument as follows:

      "Leaking" does not commonly imply an intentional act. Rusted barrels, radiators, [underground storage tanks] each may "leak" without anyone's aid or knowledge; moreover, an unseen or unintended gravity-aided release from these containers would most naturally be called a "leak." Were one purposefully to refer solely to a controlled or intentional release of some substance, one would almost never use the term "leak" to capture that meaning.... Therefore, the word "leaking," by itself, plainly includes and likely connotes an unintentional or inadvertent release.(24)

      This reasoning, however, does not acknowledge that the definition of leaking includes both an active component -- "to let a substance (as water or gas) or light in or out through a hole, crevice, or other opening"(25) -- and a passive version -- "to enter or escape through a hole, crevice, or other opening."(26) When construed in the active sense, the word leak thus implies an affirmative human action that facilitates the escape of the substance. One could say, for example, "the owner of the tank leaked the oil by drilling a small hole in the tank" or "the White House aide leaked the information to the press." In ordinary usage the distinction between the two definitions rarely seems relevant. When construing CERCLA, however, the choice between these definitions may determine the result of a case in which a landowner has performed no affirmative act to let the hazardous waste escape.(27)

      Plain-meaning analysis cannot justify the selection of one possible definition and the rejection of other plausible alternatives. The district court quoted above acknowledged later in the same opinion that leaking could be subject to an active construction; but the court maintained both that the passive definition was the more common usage and that slight ambiguity should not disturb statutory analysis.(28) Once one acknowledges a plausible alternative reading of the statute, however, its meaning becomes less than "plain," and courts should turn to other sources of congressional intent to interpret the statute.(29)

      Under another approach to construing the meaning of leaking, and thus the meaning of disposal, some courts have arrived at a passive construction by inferring from other words in the definitional list that Congress intended the definition of disposal to encompass a wide variety of phenomena.(30) This argument emphasizes the diversity rather than the commonality of the words comprising the disposal definition. The definitional elements of terms like spilling and leaking differ -- in their passive nature -- from other verbs used in the list that require an actor. Thus, the argument runs, one can infer that Congress intended the passive meaning of leaking because such an interpretation furthers the breadth of diversity of the words Congress chose to include in the definition.

      The order of the words within the definitional list, however, may actually indicate that Congress intended the opposite. The placement of spilling and leaking between two active verbs -- the words dumping and placing(31) -- may suggest that Congress intended to minimize, rather than to emphasize, the passive aspects.(32)

      Thus, whether one focuses on the "plain meaning" of leaking, or on the context of the term, a critical reading of the statutory text does not obviously require the adoption of a definition of leaking that would hold prior intermediate owners liable for passive migration of hazardous waste. The next section examines the arguments made from the opposite perspective -- that the language alone supports an active reading of disposal.

   2. Statutory Language Supporting an Active Reading

      Two separate approaches suggest that CERCLA's statutory language requires a showing of affirmative human conduct before liability can attach to prior owners...