Carson Harbor Village, Ltd. v. Unocal Corp.
Opinion
Lead Opinion
Fletcher, J.
The current owner of land contaminated by storm water runoff and oil production filed this action against prior owners and operators of the property, as well as certain local government entities, to recover cleanup costs under, inter alia, the Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607 (a), and California common law. The district court dismissed the case on cross motions for summary judgment, reasoning that plaintiff failed to meet its burden on at least one of the CERCLA elements, and that its common law claims were without merit. 2 We have jurisdiction over plaintiffs appeal pursuant to 28 U.S.C. § 1291 , and we reverse in part, affirm in part, and remand for further proceedings.
I. Factual AND PRocedural Background
Carson Harbor Village, Ltd. (“Carson Harbor”) owns and operates a mobile home park on 70 acres of land in the City of Carson, California. Carson Harbor Village Mobile Home Park, a general partnership run by Richard G. Braley and Walker Smith, Jr. (collectively, the “Partnership Defendants”), owned the property from 1977 to 1983 and also operated a mobile home park there. Between 1945 and 1983, Unocal…
Concurrence in Part
Weiner, J.
dissenting in part:
While I join Parts I, II, III A 1, III B and III C of the panel opinion, I cannot agree that CERCLA liability extends to the so-called passive migration of hazardous wastes. Accordingly, I dissent from Part III A 2.
In adopting the passive migration theory, first espoused eight years ago by the Fourth Circuit in Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir.1992), but finding no adherents since, the panel opinion casts this Circuit’s lot with a distinctly minority view of CERCLA liability. To date, each circuit to have discussed Nurad has rejected its reasoning and its result. See United States v. CDMG Realty Co., 96 F.3d 706 (3d Cir.1996); ABB Industrial Systems v. Prime Technology, Inc., 120 F.3d 351 (2d Cir.1997); United States v. 150 Acres of Land, 204 F.3d 698, 705-06 (6th Cir.2000). The reason for this seems clear to me. As stated by the Third Circuit in CDMG Realty, “[a] thorough examination of the text and structure of CERCLA convinces [me] that the passive migration of contaminants alleged here does not constitute disposal [as that term is used in 42 U.S.C. § § 6903(3) and 9607(a)(2) ].” 96 F.3d at 713 .