[*PG69]PUTTING THE REMEDIAL CART BEFORE THE STATUTORY HORSE:THE NINTH CIRCUIT REOPENS DEBATE ON CERCLAS DEFINITION OF DISPOSAL
Abstract: In Carson Harbor Village, Ltd. v. Unocal Corp., a panel of the Ninth Circuit Court of Appeals ruled that the passive migration of contaminants satisfied the Comprehensive Environmental Response, Compensation, and Liability Acts definition of disposal. In so doing, the Ninth Circuit went against the weight of prevailing jurisprudence, which had clearly settled on the belief that passive migration should not be considered a statutory disposal. After undertaking an independent analysis of the passive migration question, this Note examines the effectiveness of the Ninth Circuit in rebutting the majority positions strongest arguments. The Note concludes that while the Ninth Circuit offers a strong opinion, its reading of the CERCLA leads to too many statutory inconsistencies to be tenable.
The Resource Conservation and Recovery Act of 1976 (RCRA) was Congresss first attempt to address the growing environmental hazardous waste problem in a comprehensive manner.1 Touted as a cradle-to-grave regulatory regime governing the movement of hazardous waste in our society,2 RCRA is primarily prospective in nature.3 In 1980, Congress addressed the other side of the regulatory coin by passing the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)4 which, being retrospective in nature, was designed to promote the cleanup of waste sites that were already contaminated and, therefore, largely outside of RCRAs pur[*PG70]view.5 Towards this end, CERCLA implemented a system of strict liability and joint and several liability for potentially responsible parties (PRPs).6 Included among these PRPs are persons who owned or operated property at the time of disposal of hazardous waste.7
The exact meaning of the term disposal has been sharply disputed among the courts.8 One possible interpretation limits CERCLA liability of past land owners to persons who actively placed waste on or in the environment, while a broader interpretation of disposal finds that this statutory threshold is met if a landowner owned previously contaminated land while that contamination passively migrated through the ground.9 While the circuits are currently split on this issue,10 trends in the evolution of the jurisprudence are clearly identifiable,11 as are landmark cases which have served as milestones in the ever-changing case law.12 Most recently, the active definition has become the dominant interpretation, with three consecutive circuit court decisions endorsing that interpretation.13 However, a recent appellate decision by the Ninth Circuit endorsing the passive interpretation reopens a debate that had appeared settled.14
This Note will examine the ongoing controversy between the two interpretive camps, paying particular attention to the Ninth Circuits [*PG71]recent decision to adopt the passive interpretation.15 Part I will examine the structure of CERCLAs system of liability and introduce the interpretational ambiguity which is at the center of the problem. Part II will examine the history and development of the passive definition. Part III will examine the emergence and development of the active definition, focusing on the landmark decisions that articulate the majority view. Part IV will explicate the Ninth Circuits recent endorsement of the passive definition in Carson Harbor Village, Ltd. v. Unocal Corp.16 Lastly, part V will analyze the Ninth Circuits success in rebutting the widely accepted rationale of the active interpretation.
The question of whether Congress intended for the passive migration of contaminants to count as a statutory disposal hinges, in large part, on a detailed understanding of CERCLAs liability provisions. Because any resolution to the passive disposal question depends on interpreting and harmonizing a broad and complicated set of explicit congressional actions, implicit policy considerations, and judicial canons of statutory construction, a firm grasp of the statutory provisions implicated by the passive disposal question is an essential foundation for further analysis. Additionally, understanding the intricacies of CERCLAs liability provisions also helps one appreciate the ultimate scope and extent to which the affected parties are impacted by a judicial decision endorsing either interpretation.
CERCLA was passed to bring order to the array of partly redundant, partly inadequate federal hazardous substances cleanup . . . laws.17 A large part of this new order involves a compensatory liability system for those who have incurred response costs in remediating an environmental hazard.18 In order to recover these response costs, a plaintiff seeking contribution from a liable party must prove [*PG72]four elements: (1) the defendant falls within one of the classes of PRPs; (2) the hazardous substances were disposed of at a facility; (3) there has been a release or threatened release of hazardous substance from the facility into the environment; and (4) the release or threatened release has required or will require the expenditure of response costs.19
Statutory analysis of the passive disposal question focuses primarily on the first and third elements described above.20 With respect to the first element, which defines who CERCLA may hold responsible, the statute effectively imposes liability on three classes of persons: (1) the current owner or operator of the facility; (2) any person who owned the facility at the time of disposal of any hazardous substance; and (3) any person who arranged, agreed to arrange, or accepted hazardous material for purposes of transport or treatment of those substances.21 These classes of PRPs are intentionally broad in order to effectuate CERCLAs remedial purpose.22
Judicial analysis surrounding the third element for CERCLA liability centers around the statutes definitions of release and disposal.23 CERCLA defines release as any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leach[*PG73]ing, dumping, or disposing into the environment.24 Disposal is defined by incorporating the definition of disposal used in RCRA:25
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.26
Thus, if a PRP owns a facility where a release or threatened release has caused the incurrence of response cost, that PRP may be liable under CERCLA.27
If the above requirements are met, responsible parties are held strictly liable.28 Section 101(32) states that liability under CERCLA shall be construed to be the standard of liability under section 311 of the Clean Water Act (CWA).29 The courts have interpreted section 311 of the CWA to impose strict liability,30 and there is ample evidence that this was Congresss intent.31 Additionally, courts have construed CERCLAs liability framework to impose joint and several liability on all persons covered by the statute.32
While liability may be strict, it is not absolute.33 Specifically, Congress included three affirmative defenses under section 107(b).34 Liability does not attach if a release or threatened release was caused solely by either (1) an act of God; (2) an act of war; or (3) an act or [*PG74]omission of a third party not an employee or agent of defendant, or of a person having a contractual relationship with the defendant.35
Six years after CERCLAs passage, Congress expanded and clarified the extent of the third party defense available under section 107(b)(3).36 The 1986 Superfund Amendment and Reauthorization Act (SARA),37 which supplemented and reauthorized the original 1980 CERCLA legislation, defined the previously undefined term contractual relationship contained in section 107(b)(3).38 Under the new innocent landowner provision, a defendant looking to establish that he or she did not have a contractual relationship with a third party must prove that the property on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility.39 Thus, only a defendant acquiring a site after the disposal of the hazardous substances could invoke the innocent landowner defense.40
CERCLA was born of considerable controversy and an eleventh-hour compromise, and is plagued by drafting inconsistencies as a result.41 While some elements of CERCLAs liability framework are straightforward, other provisions have spawned considerable litigation.42 The scope of section 107(a)(2), which holds persons who owned or operated land at the time of disposal liable for cleanup [*PG75]costs, is one area of sharp disagreement among the courts.43 Some courts have concluded that disposal includes the passive leaking or migration of chemicals through land.44 Conversely, other courts have found that a disposal occurs only as a result of affirmative human action.45
[*PG76] These differing interpretations have important consequences for landowners.46 Under the passive interpretation, intermediate landowners of a contaminated parcel may be held jointly and severally liable if the court finds that chemicals on their land leaked, leached, or otherwise migrated during their intervening ownership.47 It is of no legal consequence that the intermediate landowners were guilty only of inaction during their tenure as title holders, or that they may not even have had reason to suspect that their property was contaminatedif the parties owned the contaminated property and did not clean it up, they are jointly and severally liable for the cleanup costs.48 By comparison, the active interpretation narrows liability only to those current and past landowners who intentionally buried waste or allowed waste to be buried on the land.49 Intervening title holders who did not take action with respect to the waste are exempted from liability.50
Courts which have adopted the passive definition of disposal in the context of CERCLA have usually cited three main justifying factors: (1) early decisions interpreting this language in the context of RCRA strongly endorsed the passive definition;51 (2) the inclusion of passive language in the statutory definition of disposal is dispositive evidence that Congress did not intend to require human action in order for an event to constitute a disposal;52 and (3) the remedial purposes of the statute are frustrated without a broad interpretation.53 While all three of these reasons have found their way into the opin[*PG77]ions of various district courts endorsing the passive definition, they were given their most comprehensive examination, and most complete endorsement, by the Fourth Circuit in Nurad, Inc. v. William E. Hooper & Sons Co.54
The first courts faced with the challenge of interpreting the ambiguous language of section 107(a) did so in the context of RCRA section 6903(3),55 where the language first appeared. These early interpretations gave disposal an expansive meaning, setting a precedential foundation for later courts to adopt that same definition in the context of CERCLA.56
In United States v. Price, EPA brought suit under the imminent hazard provision of RCRA against the previous and current owners of a now abandoned landfill.57 Under section 7003, the Administrator may bring suit against such persons engaged in the handling, storage, treatment, transportation or disposal of any solid waste or hazardous waste [that] may present an imminent and substantial endangerment to health or the environment.58 The current owners of the site objected to the imposition of liability, arguing that they should not be considered a person engaged in disposal under section 7003 because they had bought the site three years after the dumping had ceased and had in no way contributed to the introduction of hazardous waste.59
While the court noted the troubling aspects of holding the defendants liable for a condition they did not create, it found the defendants argument was predicated on the . . . erroneous premise . . . that disposal requires some active behavior.60 In the courts opinion, the defendants had contributed to the disposal (i.e. leaking) of wastes merely by virtue of their studied indifference to the hazardous [*PG78]condition that now exists.61 The court held that because the defendants were aware that the land had previously been a landfill, they had a duty to investigate the condition of the property before purchase.62 Because they had chosen not to investigate the state of the land, and because they had not taken any steps to abate the hazardous condition since they had become aware of it, the court ruled for the EPA.63
In United States v. Waste Industries, EPA brought suit seeking contribution under section 7003 of RCRA for remediation of a leaking landfill owned and operated by the defendant.64 In overturning the district courts ruling that section 7003 was not actionable because the provision was not intended to apply to past conduct that terminated before enforcement was sought, the court of appeals found that section 7003 does not regulate conduct but regulates and mitigates endangerment.65 To rule otherwise, the court reasoned, would render the remedial purpose of the Act meaningless.66
The court further noted that the diverse definitional components of disposal demonstrates that Congress intended disposal to have a range of meanings.67 The court paid particular attention to inclusion of the word leaking within the definition, pointing out that leaking usually occurs at poorly constructed landfills or when storage tanks rust out.68 Thus, the court reasoned, leaking is an event which is included in the meaning of disposal.69
Courts faced with the question of whether disposal encompassed the passive migration of waste within the context of CERCLA relied heavily on previous decisions which had interpreted the lan[*PG79]guage in the context of RCRA.70 For example, in Stanley Works v. Snydergeneral Corp., the district court was faced with resolving the extent to which the ongoing leaking, leaching and migration of hazardous substances constitutes a release or disposal giving rise to liability under CERCLA . . . .71 In ruling that parties were responsible under CERCLA for passive migration of contaminants, the district court specifically rebutted defendants contention that the court should not rely on RCRA decisions for guidance in interpreting the term disposal under CERCLA.72 Calling it a distinction without merit, the court emphasized that the definition of disposal was identical in both statutes.73
The court found support for its reading of the statute in the policy choices CERCLA was believed to represent.74 In the courts opinion, the active interpretation would impart a causation requirement into the liability scheme.75 The court viewed a fault-based liability regime as conflicting with CERCLAs strict liability framework and the Congressional purpose represented by that liability structure.76
New York v. Shore Realty is another case which provides a broad interpretation of the language of CERCLA section 107(a)(2).77 The defendant, Shore Realty Corp. (Shore), knowingly purchased property with underground storage tanks (USTs) full of hazardous chemicals.78 Shore was aware that the equipment at the site was in a state of disrepair and that the site had a history of spills.79 While the previous owner had attempted some cleanup, it was well known that hazardous substances were still leaking into the ground when Shore obtained [*PG80]ownership.80 Upon taking title, Shore did nothing about the deteriorating condition of the storage tanks on its newly acquired land.81
Approximately one year after Shore obtained title to the property, the State of New York brought suit to compel Shore to clean up the contamination.82 Despite being a current owner of the facility under section 107(a)(1), Shore claimed that it should not be held liable because it had never actively contributed to the disposal of the waste on the site.83 According to Shore, 42 U.S.C. § 9607(a) was ambiguous, and both sections 107(a)(1) and (a)(2) should be read as requiring a showing of causation.84
The court was unpersuaded, however, and held that CERCLAs strict liability regime was at odds with Shores proposed causation requirement.85 A ruling requiring a showing of causation would have the effect of rendering the affirmative defenses provided in § 9607(b) superfluous.86 Additionally, accepting Shores argument would have opened a loophole in CERCLAs liability scheme, allowing a current owner of a site to avoid liability merely by having purchased the site after chemical dumping had ceased.87 The court ultimately held that the leaking tanks, pipelines, and drums, along with the continuous leaching and seepage from the earlier spills, all constituted a release.88 Thus, Shore was found liable for contribution towards the cost of remediation.89
These complimentary threads of analysis were finally gathered together by the Court of Appeals for the Fourth Circuit, which was the first appellate court to address directly the passive disposal issue in the context of CERCLA.90 In Nurad, Inc. v. William E. Hooper & Sons Co., Nurad, the current owner of a hazardous waste site, brought suit against the previous owners in order to recover costs incurred during [*PG81]removal of abandoned USTs.91 The tanks had been installed by the Hooper company, which had owned and operated the property from 1905 to 1963.92 The tanks stored mineral spirits, which the company had used to coat fabrics in an adjacent textile finishing plant.93 In 1963, the Hooper company sold the property to Property Investors, Inc., who in turn sold it to Kenneth Mumaw.94 Mumaw eventually subdivided the property and sold the portion in dispute to Nurad in 1976.95
In 1987, the Maryland Department of the Environment informed Nurad that the USTs had not been properly abandoned, and required their removal within 180 days.96 Nurad sought assistance for the cleanup from previous owners of the property, but they refused.97 In 1990, after having completed removal, Nurad filed suit seeking $226,000 in compensation from all previous owners.98 Included in the suit was a claim of liability against the intervening owners, Property Investors, Inc. and Mumaw, even though there was no evidence that they had actually used the USTs during their ownership.99 On a summary judgment motion, the district court ruled that certain previous owners were not liable because they were not owners at the time of disposal.100 According to the district court, disposal required an element of affirmative participation on the part of the defendant, and only the Hooper company defendants had actively utilized the site for hazardous waste management.101
In overturning the district courts decision, the Fourth Circuit Court of Appeals first looked to the language of the provision.102 Finding that some of the words of the disposal definition have passive connotations, the court noted that human participation was not required for hazardous waste to leak or spill.103 It reasoned that the district courts decision to impose a requirement of active human par[*PG82]ticipation arbitrarily deprived these words of their passive element.104 Furthermore, the district courts decision represented a break with circuit precedent since the court had already rejected a strained reading of disposal which would limit its meaning to active human conduct when it decided Waste Industries.105
The Fourth Circuit was also concerned that a requirement of active participation would open a statutory loophole through which an owner could avoid liability simply by standing idle while an environmental hazard festers on his property.106 This outcome would significantly harm CERCLAs statutory policy of promoting private cleanup of environmental hazards, as well as create:
the anomalous situation where a current owner, such as Nurad, who never used the storage tanks could bear a substantial share of the cleanup costs, while a former owner who was similarly situated would face no liability at all. A CERCLA regime which rewards indifference to environmental hazards and discourages voluntary efforts at waste cleanup cannot be what Congress had in mind.107
Finally, the court found that the active definition of disposal was contradictory to CERCLAs strict liability emphasis.108 Because the trigger to liability under § 9607(a)(2) is ownership or operation of a facility at the time of disposal, [and] not culpability or responsibility for the contamination, the court declined to engraft onto the statute additional prerequisites to the reimbursement of response costs which Congress did not place there.109
Applying these principles to the case, the court determined that there had been a statutory disposal of hazardous waste during the period of Hoopers and Mumaws ownership.110 Because there was clear evidence that the mineral spirits were leaking from the tanks, and because neither defendant had pointed to anything to overcome the presumption that the leaking . . . was not a sudden event, but the result of a gradual and progressive course of environmental contamination that included these defendants period of ownership, the [*PG83]court held that Nurad was entitled to reimbursement from these intermediate owners. 111
To many contemporary observers, Nurad seemed to mark the crowning of the passive interpretation as the majority position.112 Most district court decisions supported the passive definition, and in Nurad, the first appellate court to examine the issue had persuasively argued the point in reaching the passive interpretation.113 Nurad, however, would not be the most influential decision concerning the definition of disposal to be issued that year.114 Ironically, it would be a decision by a district court which, in explicitly rejecting Nurad, would take the first step in a sweeping jurisprudential shift towards the active definition.115
In Petersen Sand, the government sought to recover response costs expended in investigating the defendants property.116 Raymond Petersen, who owned the land individually before Petersen Sand & Gravels incorporation in 1970, allegedly allowed the site to be used for hazardous waste disposal during the 1960s.117 In 1982, the site was condemned by the Lake County Forest Preserve District for use as a recreational lake.118 While preparing the site for flooding, a bulldozer struck a buried barrel.119 The Forest Preserve contacted EPA, who informed the Forest Preserve that they would be liable for cleanup under CERCLA.120 Cleanup was completed by the Forest Preserve in December of 1983.121
In 1984, EPA placed the site on the National Priorities List, which tracks priority releases for long-term remedial evaluation and re[*PG84]sponse.122 A subsequent investigation by EPA concluded that while the site did contain hazardous substances in concentrations above those occurring naturally, the levels present did not warrant further remedial action.123 In 1991, the United States sued Petersen Sand & Gravel, to recover the $800,000 expended in conducting the investigation.124
The United States sought recovery from the defendant under three theories of liability, one of which was that the company was liable for the passive leaking or leaching of contaminants that occurred after Petersen Sand & Gravels incorporation in 1970.125 In addressing the question of passive disposal, the court noted that the language of the statute readily admitted both an active and a passive interpretation.126 To some people, most of the events constituting disposal required a human actor, while others maintained that such interpretations deprived the terms spilling or leaking of their passive definition.127 The court also noted, however, that there was more to the definition of disposal than the oft-discussed series of occurrences.128 Rather, the rest of the definition of disposal requires that an event must be one such that waste may enter the environment or be emitted into the air or discharged into any waters.129 In the courts opinion, passive migration was itself an entering into the environment; not a predicate to entering the environment.130 As proof that Congress appreciated this distinction, the court observed that CERCLAs definition of release is also a series of events, such as spilling or leaking, but it is followed simply by the phrase into the environment.131
The court gained further illumination from the contextual relationship between release and disposal.132 Under CERCLA, a release or a threatened release is the precondition to authority to act.133 A release is defined as any spilling, leaking, pumping, pour[*PG85]ing, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment.134 The court found it undisputed that this definition encompasses the sort of passive migration at issue.135 Thus, while
a release includes a disposal, . . . a disposal does not include a release. In some way, therefore, release must be more inclusive than disposal. Congress could have made operator liability depend on a release; instead, Congress designed the entire CERCLA response scheme to activate whenever a release occurred, but limited the liability for operators to those who were operators during a disposal. Some distinction must have been intended . . . between active and passive events.136
The court also found support for the active interpretation in the 1986 amendments to CERCLA.137 Specifically, the court examined the innocent purchaser defense under section 107(b)(3), which relieves an otherwise responsible party from liability when the damages are caused by a third party who is not an agent or employee of the otherwise responsible party, and who is not in a contractual relationship with that party.138 The amendments expanded the scope of the defense by excluding land sales from the definition of contractual relationship.139 The court found that this definitional clarification contributed to the analysis in three ways:
First, in order for the defense to apply in all but the rarest circumstances, disposal must be limited to its active meaning. Otherwise, this defense would be available only to innocent owners who are fortunate enough to have purchased a facility where all the hazardous waste is sealed in concreteany seeping or leaking on a site occurring after the purchase would eliminate the defense. Put simply, the amendment on its face has a plain purpose: to exclude from liability owners who bought after the hazardous waste was placed on the land and knew nothing about the hazardous waste at the time of purchase. Giving disposal passive content would [*PG86]eviscerate that plain purpose. Second, by juxtaposing the two terms, the amendment makes the relative scope of release and disposal unequivocally clear. The reference to a period after a disposal but during (is the subject of) a release or threatened release establishes that disposal refers to a discrete human act with a discrete ending. Finally, the amendment likens a disposal to a placement, which also requires an affirmative human act.140
The court ended its analysis by explicitly refuting Nurads contentions that the active interpretation was incompatible with CERCLAs remedial purpose.141 The court stated three reasons why the Fourth Circuits fears were overstated.142 First, because CERCLA imposes criminal liability for failure to report a release in a timely manner, it is unlikely that an owner could avoid liability by standing idle while an environmental hazard festered, then transferring the property before any response costs were incurred.143 Second, CERCLA creates an incentive for purchasers to investigate the possibility of environmental contamination before a land purchase, which makes the transfer of contaminated facilities more difficult.144 Finally, the court maintained that the state common law disclosure requirements, which already protect purchasers against intentional failure to disclose hidden defects, would help prevent malevolent owners from carrying out environmentally irresponsible schemes.145
The Petersen Sand opinion proved to be extremely influential. Cases decided in the aftermath of Petersen Sand cited the case to support the active disposal interpretation.146 In 1995, much of the Illinois district courts reasoning was adopted by the Third Circuit Court of [*PG87]Appeals in United States v. CDMG Realty Co.,147 which is widely regarded as the most comprehensive and authoritative endorsement of the active interpretation.148 The CDMG Realty decision is critical because, in establishing the dominant analytical framework for the active interpretation of disposal, it is the foil against which Carson Harbor must argue.149
In CDMG Realty, the plaintiff HMAT Associates, the current owner of a former municipal landfill, sought contribution from the defendant, Dowell Associates, under the theory that contamination dumped on the land prior to defendants purchase of the property spread passively during defendants ownership.150 It was not alleged that Dowell Associates had ever placed hazardous waste on the site.151 In disposing of the passive disposal interpretation, the court undertook a five-part analysis, including consideration of the language of the statute, the structure of the innocent owner defense, and the purposes of the statute.152
The courts analysis of the statutory language of the disposal definition hinged on the canon of noscitur a sociis.153 A common cannon of statutory interpretation, noscitur a sociis states that one may infer the meaning of ambiguous terms by examining the meaning of its surrounding words.154 Because the words surrounding leaking and spillingdischarge, deposit, injection, dumping, and placingall envision a human actor, the court reasoned that Congress could have intended these words to have an active meaning as well.155
[*PG88] The court did not rely on the canon of noscitur a sociis exclusively.156 Because the common definition of leak is to enter or escape through a hole, crevice, or other opening, the court reasoned that if something is to leak passively, it must leak from some opening.157 As an example, the court noted that the definition might encompass the escape of waste through a hole in a drum.158 HMAT, however, had offered no evidence of leaking drums, or that waste had escaped from any opening during Dowells ownership.159 A similarly precise definitional analysis of spilling convinced the court that the passive definition of spill implies a rapid torrent, not gradual passive migration over the course of several years.160 Thus, whatever the answer to the broader question of whether disposal always requires human activity, the court decided that the activity alleged here did not meet the statutory burden.161
The court continued its rhetorical analysis by comparing the definition of disposal with the definition of release.162 In a similar fashion to the district court in Petersen Sand, the Third Circuit found the definition of release to be broader than the definition of disposal.163 More importantly, the court noted that the definition of release included the term leaching, which was not mentioned in the disposal definition.164 The court referred to Websters dictionary, which defines leaching as the process or an instance of separating the soluble components from some material by percolation.165 Taking notice of the fact that the term is commonly used in an environmental context to describe the sort of slow, rain- and groundwater-induced migration at issue here, the court reasoned that Congress was aware of the concept of passive migration in landfills and knew how to [*PG89]refer explicitly to it.166 Thus, the fact that Congress made prior owners liable only if they owned the land at the time of disposal, and not the time of release, was strong evidence that the passive activity of leaching was not intended by Congress to be a disposal.167
The court concluded its rhetorical analysis by noting, as did Petersen Sand, that if the spreading of contaminants is constant, then characterizing liable parties as any person who at the time of disposal . . . owned or operated a facility was a very complicated way of making liable everyone who owned or operated a facility after the introduction of hazardous waste.168 Furthermore, such a distinction would eliminate the need for a separate responsible party category of current owner or operator.169 Thus, while the court acknowledged that CERCLA was not written with great clarity, it was loathe to impute to Congress an intent to set up a simple liability scheme through a convoluted methodology.170
As in Petersen Sand, the court in CDMG Realty found that the consequences of the passive interpretation would essentially nullify the innocent owner defense.171 Because CERCLA conditions the innocent owner defense on the defendants having purchased the property after the disposal of hazardous waste at the property, disposal cannot constitute the allegedly continuous spreading of contaminants.172 Otherwise, the court reasoned, the defense would almost never apply, since there would generally be no point after disposal.173
Importantly, however, the Third Circuit found additional support for the active interpretation in the fact that it appears that only current owners can invoke the innocent purchaser defense.174 The provision establishing the innocent owner defense states: [n]othing in this paragraph or in section 9607(b)(3) of this title shall diminish the liability of any previous owner or operator who would otherwise be li[*PG90]able under this chapter.175 If, as this provision seems to suggest, only current owners can invoke the defense, and if we hold prior owners liable because waste spread during their ownership, then prior owners would be in a significantly worse position than current owners, liable even if they had no reason to know that the waste was present.176 This, the court concluded, could not have been Congresss intent.177
The CDMG Realty court concluded its analysis by examining CERCLAs purposes.178 The court explained that CERCLA has two principal goals: to facilitate the cleanup of potentially dangerous hazardous waste sites, and to force polluters to pay the costs associated with their pollution.179 The court found nothing in the passive interpretation inconsistent with these purposes.180 Believing that those who owned previously contaminated property where waste spread without their aid cannot reasonably be characterized as polluters, the court reasoned that excluding them from liability would not let those who cause the pollution off the hook.181 That said, the court was confidant that many of those owners would end up paying for the pollution anyway.182 If landowners disclose the fact that the land contains waste, then the selling price of the land would reflect that potential future liability.183 If landowners have knowledge of contamination and do not disclose it to the transferee, they are liable for response costs even after the transfer.184 Thus, under an active interpretation of disposal, the only people who escape liability are the small segment of intermediate property owners who bought and sold the land without any knowledge that the land was contaminated.185
The Third Circuit was also convinced that nothing in its decision would undermine CERCLAs goals for facilitating cleanup of hazardous waste cites.186 The court cited Petersen Sand for the proposition [*PG91]that existing statutory safeguards already ensured that owners cannot easily transfer ownership to avoid liability.187 These safeguards include the imposition of criminal liability for failure to disclose a release,188 the fact that an owner who knowingly transfers contaminated land without full disclosure remains liable even after transfer,189 and the fact that the innocent owner defense encourages potential buyers to investigate the possible contamination before purchase.190
The persuasiveness of the CDMG Realty opinion is clearly evident in the next two appellate decisions to examine the passive interpretation of disposal.191 In ABB Industrial Systems, Inc., v. Prime Technology, Inc., the Second Circuit was faced with the now familiar pattern of a present landowner seeking contribution from a prior intervening landowner because waste had passively migrated during the intervenors ownership.192 In dismissing the plaintiffs passive migration theory, the court relied exclusively on the CDMG Realty reasoning, and chose to summarize the Third Circuits most persuasive reasoning rather than reinven[t] the wheel.193
The Second Circuit found four of CDMG Realtys arguments persuasive: (1) that none of the terms used in the disposal definition commonly refer to the gradual spreading of hazardous chemicals already in the ground; (2) that Congress used the term leaching in the definition of release, but not in the definition of disposal, demonstrating that Congress knew that passive migration occurred but chose not to impose liability on prior owners; (3) that the innocent landowner defense, which is applicable when an owner acquired a cite after disposal, would almost never apply because there would never be a period of time after disposal; and (4) that the active interpretation was not contrary to CERCLAs policy objectives.194 Thus, the court affirmed the district courts grant of summary judgment to [*PG92]the defendant intermediate landowners who had been sued for contribution.195
CDMG Realtys reasoning was also adopted by the Sixth Circuit, which had an opportunity to rule on the passive migration question in United States v. 150 Acres of Land.196 Unlike ABB Industrial Systems, which evidenced the influence of CDMG Realty by adopting the Third Circuits reasoning almost verbatim, 150 Acres of Land evidenced the influence of the recent interpretive shift towards the active position by barely discussing its reasoning at all.197 The court summarily disposed of the entire passive migration question in one paragraph.198 In doing so, the court cited the more recent view of CDMG Realty and ABB Industrial Systems that disposal be limited to spills occurring by human intervention.199
Carson Harbor Village, Ltd. v. Unocal Corp., filed on September 14, 2000, is the most recent appellate pronouncement on the question of passive migration.200 By a two-to-one vote, a panel of the Ninth Circuit Court of Appeals adopted the passive definition of disposal.201 In doing so, the court noted, but ultimately rejected, the analysis of CDMG Realty and its progeny, solidifying a circuit split that had recently appeared resolved.202
In Carson Harbor, the plaintiff Carson Harbor Village Ltd. owned and operated a mobile home park on seventy acres of land.203 One of the defendants, Carson Harbor Village Mobile Home Park (Partnership Defendants), had owned the property from 1977 to 1983 and had operated a mobile home park on the land.204 From 1945 to 1983, Unocal corporation held a leasehold interest in the property, which it used for petroleum production.205
Seventeen of the seventy acres of the property were undeveloped open flow wetlands.206 In 1993, as part of an attempt to refinance the property, the plaintiffs lender undertook an environmental assessment of the property, which revealed slag and tar-like material buried within the wetlands.207 Further investigation determined that the material was a petroleum by-product that had been on the property for several decades prior to its development as a mobile home park.208 Elevated lead levels were found in and around the area of contamination.209
In 1995, the plaintiff undertook remediation of the contaminated soil, which ultimately required the removal of 1,042 tons of material from the wetlands.210 Within a year after the completion of remediation, the plaintiff filed suit seeking contribution from the Partnership Defendants, among others.211 On a motion for summary judgment, the district court ruled that the Partnership Defendants were not PRPs under section 107(a)(2) because there was no evidence of disposal between 1977 and 1983.212 In reaching this conclusion, the district court rejected the plaintiffs claim that the passive spread of contamination from the buried tar and slag material into the surrounding soil constituted disposal.213 While the court recog[*PG94]nized that CERCLA was intended to reach broadly, it also clearly expresses limits to the contemplated statutory liability.214 If passive migration satisfied the statutory requirement of a disposal, it would subject previous owners who had no knowledge of or control over the leaching material to liability.215 To the court, this result was in conflict with the statutes intent, which was to affix the ultimate cost of cleanup to the parties who were responsible for the contamination.216
In overturning the district court decision not to allow the passive migration of contaminants to count as a disposal, the panel of the Ninth Circuit Court of Appeals first examined the language of the statute.217 While previous courts had focused on the passive meaning of spill and leak within section 107(a), the Ninth Circuit felt that the passive definition of discharge was especially broad.218 Because at least three of the terms listed in the definition had well-recognized passive meanings, the court felt it was bound to give effect to that definition.219 Citing Nurad, the court held that the district court arbitrarily deprived these words of their passive element by imposing a requirement of active participation as a prerequisite to liability.220
The court continued by further comparing its current position with that of the Fourth Circuit.221 In Nurad, the court had looked to its own circuit precedent for support in imbuing disposal with a passive interpretation, since the circuit had already rejected the active interpretation of the term in the context of RCRA.222 Likewise, the Ninth Circuit had also previously rejected the passive interpretation of disposal in the context of RCRA.223
The Carson Harbor court also believed that the passive definition cohere[d] with the structure and purpose of CERCLAs liability pro[*PG95]visions.224 While the court recognized that CERCLA was intended to impose cleanup on responsible parities, it decided that the overriding imperative of the statute was to create a mechanism for prompt cleanup.225 The court reasoned that because many directly responsible parties were insolvent or no longer in existence at the time of CERLAs passage, Congress, so aware, had abandoned traditional causation requirements in favor of a strict liability regime.226 Consequently, the categories of PRPs were defined broadly, sweeping in parties who may have done nothing affirmatively to contribute to contamination at a site and forcing them to disprove causation as an affirmative defense.227 An interpretation of disposal that included past passive owners as PRPs was deemed by the court to be consistent with that structure.228
The court continued its analysis by addressing the thoughtful opinion of the Third Circuit and its progeny.229 Implicitly recognizing that the active interpretation had become the majority position in the wake of CDMG Realty, the Ninth Circuit did not reject the active interpretation outright.230 Instead, Judge Fletcher argued that because CERCLA contained many inherent inconsistencies and redundancies, the identification of inconsistency or redundancy in the statute is not necessarily fatal to a given construction. Nor can one automatically assume that a construction that appears to resolve inconsistencies or avoid redundancies is consonant with the intended design of the statute, especially if the saving construction merely substitutes one form of inconsistency or redundancy for another.231
With that framework in place, the court turned its attention to the specific arguments set forth in CDMG Realty.232 In addressing the argument that the passive definition rendered release and dis[*PG96]posal redundant, the court referred to Petersen Sand, which had cautioned that [i]t is not possible to interpret these two definitions without some degree of inconsistency because both definitions share terms.233 To the Ninth Circuit, the critical question was whether Congress intended to avoid the particular redundancy that would result from reading disposal in accordance with the passive terms and whether this particular redundancy is one we should care about.234
In the courts view, the passive interpretation did not render time of disposal awkward or superfluous, as had been charged by CDMG Realty.235 Rather, Judge Fletcher saw the time of disposal requirements as drawing an important distinction in CERCLAs otherwise capricious liability framework.236 Time of disposal was a temporal trigger for prior owner liability, with owners and operators preceding the disposal of hazardous substances exempted from CERCLAs coverage regardless of their knowledge that selling the property to a certain buyer may result in contamination.237
The Ninth Circuit also disputed CDMG Realtys contention that an active interpretation of disposal was required to preserve the innocent landowner defense.238 Judge Fletcher pointed out that the defense applied to property acquired after the disposal or placement of the hazardous substances.239 The alleged negation of the innocent owner defense could be avoided by merely giving effect to Congresss explicit use of the disjunctive, and to the common meaning of placement.240 Thus, the defense would apply despite passive migration, as long as the owner acquired the property after the hazardous waste was first placed on it.241
Finally, the Ninth Circuit pointed out that the active theory of disposal created its own inconsistencies.242 Under the active theory, current operators would be PRPs without regard to fault, while prior owners would be immune from suit as long as they did not own the [*PG97]property during an act of disposal.243 Additionally, the court stated that the active interpretation created irrational distinctions between prior owners.244 The court explained:
Owners who held property while contamination was passively migrating would be categorically exempt even if they (1) failed to conduct a reasonably diligent review of the environmental condition of their property (and thereby allowed readily discoverable contamination to worsen), or (2) simply allowed known, pre-existing contamination to remain untreated. On the other hand, owners at the time of active disposal would be PRPs along with current owners even if they werent responsible for the disposal.245
Applying these principles to the facts of the case, the court found little reason to impose liability on the Partnership Defendants because there was little to distinguish them from the current owner.246 Both parties had come into ownership after the hazardous waste had been deposited, and neither had directly caused any of the contamination by running a mobile home park on the land.247 The court did, however, find one difference between the intermediate and current owner: during the Partnership Defendants tenure, Unocal Corp. had been in possession of the land.248 Thus, equity suggested finding the Partnership Defendants liable because they had more reason to be vigilant concerning the possibility of contamination.249 The court therefore remanded the case for further proceeding against the Partnership Defendants.250
In adopting the passive definition of disposal, Carson Harbor reopened a debate that some commentators,251 and most courts,252 believed had been conclusively decided. Since the passive definition [*PG98]of disposal was adopted by the Fourth Circuit Court of Appeals in Nurad, relatively few district courts outside of that circuit have followed the passive interpretation.253 Prior to Carson Harbor, none of the three subsequent appeals courts had followed the passive interpretation.254 Instead, CDMG Realtys authoritative opinion had solidified the interpretive shift towards the active position that began in Petersen Sand.255 Indeed, one may infer from the surprising lack of analysis contained in 150 Acres of Land that the question of whether passive migration constituted disposal was no longer in sufficient doubt to warrant extended discussion.256
Thus, in adopting the minority passive position in Carson Harbor, the Ninth Circuit needed to do more than just provide a reasonable interpretation of the statute. As Judge Fletcher noted himself, CERCLAs inconsistencies make it relatively easy to have two divergent interpretations, both of which are reasonable.257 In order for the Ninth Circuits opinion to have an effect outside of its own circuit, it needed to forcefully rebut the reasoning that made CDMG Realty so authoritative in the first place.
Like most courts that have examined the definition of disposal, the Carson Harbor court began its analysis by focusing on the language of the statute.258 While the court repeated the oft-cited fact that the terms spilling and leaking have well recognized passive meanings, the court did break new ground by recognizing the passive component of the term discharge.259 Citing to a common cannon of statu[*PG99]tory construction, the court pronounced that as a rule, a definition which declares what a term means is binding upon the court.260
By the courts own admission, however, these three words are capable of multiple meanings.261 In citing Nurad for the proposition that the district courts ruling arbitrarily deprived these words of their passive element, the court implicitly admitted that the words are capable of multiple meanings. A courts job is not to give effect to every meaning the words are capable of, but rather to deduce the specific meaning intended by Congress.262 When the definition of the words alone are not dispositive, a reviewing court must examine the overall statutory structure, as well as the purposes of the statute.263 In this regard, the active interpretation has the stronger argument. Because meaning derives from context the noscitur a sociis and ejusdem generis canons of statutory construction necessarily serve to cohere the definition with itself.264
While both camps can cite to canons of statutory construction to support their position, at some point technical statutory construction and nuanced semantic interpretation give way to common usage and understanding. As Judge Weiner pointed out in dissent, human action and agency are a prerequisite for something to spill or leak.265 Something spills only when it is actively emptied, or because of human action . . . is placed in a position where gravity, or the elements . . . cause the contents to be emptied into the environment.266 Whether a substance pours, splashes, or falls, human conduct was necessary ab initio to create the situation permitting the spill to occur . . . .267 This same reasoning also applies to the verb tense of leak. Regardless of who owns the parcel of land during the actual leakage, that event could not have occurred without someone actively placing the hazardous waste in the container and creating the conditions under which it could, with the passage of time, begin to escape.268 It is this [*PG100]initial human conduct that creates the conditions for a leak or a spill that the statute is targeting.269
Neither does the Carson Harbors invocation of the passive component of the word discharge prove insurmountable. While a discharge can arguably occur without human conduct (e.g., a volcano may discharge lava under pressure), the verb also has definitions which imply human agency.270 Reading discharge in pari materia with the other verbs found in the definition of disposal, it becomes clear that Congress intended the definition of discharge to be limited to unload or empty or to pour forth contents.271 Both of these meanings imply active human conduct.272
The statutory distinction between disposal and release also strongly supports the argument that Congress did not intend for passive migration to incur liability. This distinction, which was first identified in Petersen Sand,273 has been a foundation of every appellate opinion endorsing the active interpretation.274 As such, any court adopting the passive interpretation must adequately address how the passive interpretation does not inextricably conflate these two terms.
[*PG101] Significantly, Carson Harbor does not directly address the conflation of these two terms that results from the passive definition.275 Instead, the court merely notes the inherent inconsistency between the definitions of release and disposal.276 According to Judge Fletcher, the important question is whether the particular redundancy that would result from reading disposal in accordance with the passive terms in its definition . . . is one we should care about.277 The court answers its own question in one line, stating that because there is no indication that the operation of either term in the statute would be compromised . . . we reject the CDMG courts narrower construction.278
The Ninth Circuits conclusory response is unjustified. The fact that the definition of release includes the term leaching, while the definition of disposal does not, is proof that Congress understood how to describe the occurrence of a passive event.279 The definition of release also includes the term escaping, which, being exclusively passive, further supports the argument that Congress knew the difference between a passive and an active event, and intended a distinction between release and disposal.280 None of the words in the definition of disposal are so obviously or exclusively passive. Considering that Congress made an affirmative decision to impose liability on the condition of disposal rather than release, one must assume that Congress intended to give effect to the differences in language between the two definitions.
Not only does the definition of release prove that Congress knew how to describe a passive event, but the fact that a release includes disposing means that the definition of release is broader than that of disposal.281 This insight was critical to the Sixth Circuits decision in 150 Acres of Land, which noted that the CERCLA statutory [*PG102]scheme as a whole gains internal cohesion by having disposal stand for human activity that precedes the entry of a substance into the environment while having release stand for the actual entry of substances into the environment.282 Thus, while the broader of the two requirements establishes potential CERCLA liability, that liability is limited to those PRPs who owned or operated the facility when the act of disposal took place.283
Such an interpretation does not, as the Ninth Circuit claimed, frustrate the statutes strict liability regime.284 While courts endorsing the passive interpretation have generally reasoned that Congress intended to confine causation arguments to the affirmative defenses, such an approach effectively puts the remedial cart before the statutory horse.285 CERCLAs strict liability is limited only to PRPs, which Congress defined to include a requirement of disposal.286 If Congress had intended strict liability for all owners after the introduction of waste regardless of activity, it could easily have made liability contingent on release rather than on disposal. As it did not do so, a judicial interpretation confining disposal to the active conduct of placing the material in or on the environment cannot be seen as contravening clear congressional intent or subverting the statutes emphasis on holding PRPs strictly liable. To the contrary, the active interpretation respects the fact that Congress used different terms to define different conditions, and sharpens the distinction between a general condition for CERCLA liability and the specific activity necessary to attach that liability to a particular individual.
Carson Harbors explanation of the requirement that a PRP be an owner or operator at the time of disposal is also less than convincing. As the Ninth Circuit read the statute, the passive interpretation did not render congressional reference to a time of disposal superfluous because, without that reference, prior owners and operators might be liable under CERCLA if they sold property to buyers whom they knew would contaminate the property.287 Certainly this is true: time of disposal was undoubtedly intended to act as a temporal trigger for the attachment of liability, with only those people who are part of the chain of title after a disposal held liable under the Act. The problem highlighted by CDMG Realty, however, was not that the passive position would render time of disposal meaningless, but that it would render it extremely awkward and convoluted.288 Under the passive interpretation, there is no time of disposalby definition disposal is a continuous, on-going event.289 Such a reading interprets the congressional instruction to hold liable any person who at the time of disposal . . . owned or operated any facility as a directive to hold liable everyone who owned or operated a facility after the introduction of waste.290 Not only is this an awkward reading, it renders the separate PRP category of current owner or operator unnecessary.291 While Carson Harbor is correct in noting that CERCLA was not written with great clarity, we should be wary of any construction which impute[s] to Congress an intent to set up a simple liability scheme through a convoluted methodology.292 If Congress had wanted to hold everyone in the chain of title liable from the introduction of waste forward, it would have done so explicitly.
The interpretation of time of disposal has important ramifications for the innocent owner defense as well. As discussed in CDMG Realty, if there is no definitive time of disposal, then an owner looking to prove that he or she acquired property after the disposal would generally have an impossible task.293 Carson Harbors solution to this problem is to give effect to the statutes explicit use of the disjunctive, because the innocent owner defense applies after disposal or placement.294 The critical interpretive question is whether the disjunctive should be viewed either as two separate conditions, or as two different ways of describing the same condition.295
There is ample evidence to support the view that use of the word placement was not intended by Congress to create a different class of innocent landowner.296 Because the definition of disposal includes placing, the use of the word placement is redundant.297 If Congress actually meant for a placement alone to suffice, then there would have been no need to also condition the defense on disposal, because disposal occurs by definition when something is placed on the land.298
A better interpretation views the congressional reference to a period of time after the disposal or placement of the hazardous substance as proof that Congress viewed disposal as a discrete event, with fixed beginning and end points.299 Reading the phrase as a whole, it appears Congress was not creating a separate class of conduct (i.e., placement in and of itself) from which to measure liability, but was viewing the process of disposal as being akin to the concept of placement, which requires an affirmative act . . . .300 Thus, rather than support the passive definition, reference to placement is fur[*PG105]ther evidence that Congress intended disposal to require active human conduct.301
The active interpretation also makes sense of the fact that the innocent owner defense is apparently limited to current owners.302 As discussed in CDMG Realty, the passive interpretation creates a category of prior intermediate landowners who are in a significantly worse position than current owners, because while both groups are subject to liability, only the current owners are offered the possibility of establishing the innocent owner defense.303 This disparity would, in effect, create an irrational inequity between similarly situated landowners.304 The active interpretation avoids this potential inequality in so much as the intermediate landowners are no longer held liable.305
Carson Harbors rebuttal to this position is simply to assume that the innocent landowner defense is available to prior owners.306 Under this scenario, the active interpretation creates irrational distinctions of its own between current owners who are PRPs without regard to fault, and prior owners who would be immune from suit if they did not own the property during an act of disposal.307 Unfortunately, the court does not provide any reasoning as to why we are warranted in assuming that the innocent owner defense should be extended to prior owners, given the statutes plain language to the contrary.308
Even granting the Ninth Circuits argument that the innocent owner defense is available to prior owners, it not clear that the passive [*PG106]interpretation is any more persuasive.309 The Second Circuit had already ruled that the innocent owner defense was available to prior owners when it examined the question of passive migration in Westwood Pharmaceuticals v. National Fuel Gas Distribution Corp.310 Nevertheless, the court found the other arguments presented in CDMG Realty convincing, and rejected the passive migration theory.311 Thus, even if the innocent landowner defense is applicable to prior landowners, it does not appear to be fatal to the active interpretation.
Perhaps the strongest argument against the active disposal position in general, and CDMG Realty in particular, is that the active interpretation may not fully satisfy some of the remedial purposes of the statute.312 As the Ninth Circuit correctly recognized, one of CERCLAs goals is to create a mechanism for the prompt cleanup of hazardous waste.313 An integral component of this mechanism is statutory encouragement of private cleanup of polluted sites.314 One of the main arguments against the active interpretation has been that it encourages landowners to sell potentially contaminated property without investigating the state of the land or, worse, knowingly sell contaminated property without disclosing defects to the buyer.315
[*PG107] The active interpretation has usually addressed this issue by examining the language of section 101(35)(C), which provides:
Nothing in this paragraph or in section 9607(b)(3) of this title shall diminish the liability of any previous owner or operator of such facility who would otherwise be liable under this chapter. Notwithstanding this paragraph, if the defendant obtained actual knowledge of the release or threatened release of a hazardous substance at such facility when the defendant owned the real property and then subsequently transferred ownership of the property to another person without disclosing such knowledge, such defendant shall be treated as liable under section 9607(a)(1) of this title and no defense under section 9607(b)(3) of this title shall be available to such defendant.316
Both Petersen Sand and CDMG Realty have interpreted the italicized part of section 101(35)(C) as preventing owners from escaping liability by knowingly transferring contaminated property.317 To these two courts, an owners knowledge of a release or threatened release, coupled with the failure to disclose such knowledge upon subsequent transfer of the property, would result in liability under section 107(a)(1).318 These courts reasoned that since 101(35)(c) provides a mechanism for liability to apply after the fact, no owner would attempt to evade liability by intentionally selling contaminated property without full disclosure.319
Closer analysis of section 101(35)(C) and its apparent restrictions on knowingly selling contaminated land indicate that the section could not apply as the two courts would wish.320 In the second sentence, Congress has limited the scope of the section only to a defendant under the act.321 In order to be a defendant, you would need to be classified as a PRP first.322 If, as Petersen Sand and CDMG Realty [*PG108]ruled, passive migration does not qualify as a disposal, then you are not a PRP. Once outside of CERCLAs definition of a PRP, restrictions on reselling contaminated sites are inapposite.323 Read with this understanding, section 101(35)(C) is not a catch-all provision that imposes liability on past owners who sold their land without disclosing contamination, but is rather a limitation on the innocent owner defense to PRPs who did not have knowledge of contamination when they sold their property to a buyer.324 Because the active interpretation excludes past passive owners from the PRP definition, they must fall outside of any restrictions 101(35)(C) would otherwise introduce.
This loophole in CERCLAs liability is regrettable, but not fatal. To the extent that this loophole may be a concern, it can largely be addressed by judicial consistency. If the case law is clear that section 101(35)(C) does not impose liability on intermediate landowners, then prospective purchasers would soon learn to investigate diligently the property they are considering purchasing or otherwise, to contract with the intermediate landowner for the contingency that waste may be discovered at some future date. If waste is discovered after an investigation of the land, the selling price will undoubtedly reflect that future liability. Simple due diligence on the part of the buyer effectively removes any incentive an intermediate landowner may have to try to pass off cleanup costs to a subsequent purchaser.
Further evidence that one should not read too much into this apparent gap in CERCLAs coverage comes from Carson Harbor itself: the statutes inherent inconsistencies create problems for either interpretation.325 The question comes down to crafting an interpretational approach to the issue that best adheres to congressional intent while, at the same time, recognizing that Congress may not have been fully clear itself what it intended.326 As the court stated in Petersen Sand:
We are enforcing a statute rather than modifying rules of common law . . . . To the point that courts could achieve more of the legislative objectives by adding to the lists of [*PG109]those responsible, it is enough to respond that statutes have not only ends but also limits. Born of compromise, laws such as CERCLA and SARA do not pursue their ends to their logical limits. A courts job is to find and enforce stopping points no less than to implement other legislative choices.327
While courts adopting the passive interpretation have freely invoked the remedial nature of CERCLA to justify a broad interpretation,328 such an approach here leads to too many other statutory inconsistencies to be tenable. CERLCA may be inconsistent, but courts should certainly strive to harmonize as much of the statute as possible. Because the active interpretation successfully integrates more of CERCLAs complex liability structure with its carefully chosen statutory definitions, it remains the better interpretation of disposal.
While the significance of the Carson Harbor decision should not be underestimated, its ultimate impact on the continuing passive disposal debate is hard to predict. Judge Fletcher offers a strong opinion that attempts to rebut as much of CDMG Realty as possible, but in reality breaks little new analytical ground and fails to address some of the active interpretations strongest arguments. Instead, the Ninth Circuit relies on CERCLAs inherent inconsistencies to initially open the majority position to questioning, then finds the remedial purposes of the statute compelling in interpreting disposal broadly. As we have seen, however, such an interpretation simply pushes the statutory definitions and structure too far.
While commentators have called on the Supreme Court to grant certiorari to the passive disposal question,329 the Court has thus far refrained from entering the debate.330 Perhaps the Court believes that events of the eight years prior to Carson Harbor, which witnessed three circuits and the majority of district courts reject the passive interpretation, has conclusively answered the questions involved. The Ninth Circuits recent decision clearly shows that a true consensus has yet to develop. Carson Harbor, which had provided an excellent opportunity to repudiate fully the passive definition of disposal, has instead served as a platform for reopening the entire debate. The Supreme [*PG110]Court should grant certiorari to the next section 107(a)(2) case that comes up for review and answer the question of passive disposal, which has been asked for twenty-one years running.