ELR Citation: ELR 21589
No(s). 95-5505 (3d Cir. Sep 27, 1996)

The court holds that the passive migration of contamination that allegedly occurred while a party owned a contaminated site is not "disposal" under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first notes that in the context of the definition of "disposal," there is a strong argument that "leaking" and "spilling" should be read to require affirmative human action. Even if disposal does not always require active human conduct, the passive migration at issue in this case cannot constitute disposal. The definition of "leak" requires that a substance leak from some opening, and "spill" suggests a rapid torrent, not gradual passive migration over the course of several years. Further, CERCLA's definition of "release" shows that Congress knew precisely how to refer to the passive spreading of contamination. The definition of "release" is broader than that of "disposal" and specifically includes the term "leaching." In addition, if "disposal" includes passive migration, CERCLA's innocent owner defense would almost never be available. CERCLA conditions the innocent owner defense on the defendant's having purchased the property "after the disposal" of hazardous waste; thus, "disposal" cannot constitute the allegedly constant spreading of contaminants or there would generally be no point "after disposal." The court concludes that its reading of "disposal" is consistent with CERCLA's purposes. Those who owned previously contaminated property where waste spread without their aid cannot reasonably be characterized as "polluters": excluding them from liability will not let those who caused the pollution off the hook. And the court's holding will not undermine the goal of facilitating the cleanup of potentially dangerous hazardous waste sites.

The court then holds that "disposal" includes not only the initial introduction of contaminants onto a property, but also the spreading of contaminants due to subsequent activity. The dispersal of contaminants need not reach a particular threshold level to constitute "disposal." The court next holds that a genuine issue of material fact remains as to whether the former site owner's soil investigation caused the dispersal of contaminants. CERCLA, however, clearly contemplates that some soil investigation be allowed to examine contaminated property and thus it is not enough for the party that bought the site to show that the soil investigation caused the spread of contaminants. Rather, the buyer must also show that the investigation was conducted negligently.

[The district court's opinion is published at 25 ELR 20930].

Counsel for Plaintiff
James J. Periconi
Periconi & Rothberg
230 Park Ave., Ste. 615, New York NY 10169
(212) 490-2220

Counsel for Defendant
R. Bruce Morrison, David B. Farer
Farer, Siegal & Fersko
600 S. Avenue W., Westfield NJ 07091
(908) 789-8550

Before Becker, McKee, and McKay,^* JJ.