United States of America v. 150 ACRES OF LAND , More or Less, Located in Medina County, Ohio

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0033P (6th Cir.)
File Name: 00a0033p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
150 ACRES OF LAND , More or
Less, Located in Medina
County, Ohio,
Defendant-Appellant.
;>

1
No. 98-3160
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 95-01009—Solomon Oliver, Jr., District Judge.
Argued: April 29, 1999
Decided and Filed: January 20, 2000
Before: JONES, BOGGS, and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: David S. Hoffmann, McMAHON, DeGULIS &
HOFFMAN, Cleveland, Ohio, for Appellant. Jared A.
Goldstein, U.S. DEPARTMENT OF JUSTICE, LAND &
NATURAL RESOURCES DIVISION, Washington, D.C., for

-- 1 of 14 --

2 United States v. 150 Acres of Land No. 98-3160
Appellee. ON BRIEF: David S. Hoffmann, McMAHON,
DeGULIS & HOFFMAN, Cleveland, Ohio, for Appellant.
Jared A. Goldstein, James D. Freeman, U.S. DEPARTMENT
OF JUSTICE, LAND & NATURAL RESOURCES
DIVISION, Washington, D.C., for Appellee.
BOGGS, J., delivered the opinion of the court. JONES, J.
(p. 23), delivered a separate concurring opinion. COLE, J.
(pp. 24-27), delivered a separate opinion concurring in part
and dissenting in part.
_________________
OPINION
_________________
BOGGS, Circuit Judge. The federal Environmental
Protection Agency (“EPA”) sued the Glidden Co. in
personam and certain land owned by various members of the
Bohaty family in rem under the Comprehensive
Environmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. § 9601 et seq., in connection with
costs incurred in removing toxic wastes found on the land.
Glidden settled with the EPA for a small fraction of the clean-
up costs, and the Bohatys and the government cross-moved
for summary judgment. The district court granted summary
judgment for the government, thereby perfecting a lien on the
property under 42 U.S.C. § 9607(l)(1). The Bohatys now
appeal the judgment of the district court ordering the sale of
the land and directing that the proceeds be used to satisfy the
lien on the property. We reverse the judgment of the district
court in part, affirm in part, and remand the case for further
proceedings.
I
The land in question is approximately 150 contiguous acres
of real estate in three parcels, located on Pearl Road in
Medina County, Ohio. It has been owned “for at least three
generations” by the Bohaty family, which has operated a
farm-equipment repair business at the extreme western edge.
No. 98-3160 United States v. 150 Acres of Land 27
property into appropriate units based on reasonable divisions
and the bounds of contamination present on the property. In
the present case, I would hold that the facility is limited to
Parcel 1, based on the divisibility of the property into natural
units and the admission that no contamination was found
outside of Parcel 1, and thus I would hold that the lien is
proper only as it pertains to Parcel 1.
For the foregoing reasons, I respectfully DISSENT from
Part II. C. of the majority opinion.

-- 2 of 14 --

26 United States v. 150 Acres of Land No. 98-3160
389, 395-96 (E.D. Va. 1994) (stating that what “matters for
the purpose of defining the scope of the facility is where the
hazardous substances were . . . disposed of . . . or have
otherwise come to be located” and “the uncontradicted record
confirms that hazardous substances exist . . . in all quadrants
of the property”) (footnotes and internal quotations omitted).
In essence, the scope of contamination determined the scope
of the facility.
Conversely, where the Fourth Circuit found that
contamination was not widespread, the court limited the
“facility” to include only the area where hazardous substances
were located. See, e.g., Nurad, Inc. v. William E. Hooper &
Sons Co., 966 F.2d 837, 843 (4th Cir. 1992) (stating that “the
only ‘area’ where hazardous substances [had] ‘come to be
located’ was in and around the storage tanks, so the relevant
‘facility’ [was] properly confined to that area”).
This case presents land that is geographically distinct and
while used in part as a dumping site, is admittedly not
contaminated in its entirety. It is clear that no contamination
was discovered outside of Parcel 1. Following this court’s
approach in Brighton and applying § 9601(9)(B), the facility
under these facts should be limited to Parcel 1; the area of the
entire contamination that is reasonably and naturally separable
from Parcels 2 and 3.
Where the contamination is confined to a single parcel and
there is no indication that dumping has occurred on connected
parcels, this court should look to the metes and bounds of the
contamination as a measure, at least in part, when defining the
scope of the “facility” under 42 U.S.C. § 9601(9). Cf.
Brighton, 153 F.3d at 313 (relying on scope of
contamination); Axel Johnson, Inc., 191 F.3d at 418-19
(examining scope of contamination and divisibility of land);
Nurad, Inc., 966 F.2d at 843 (relying on scope of
contamination). If we are to apply the statutory language
defining the “facility” under § 9601(9) and follow the
teachings of Brighton with respect to limiting the “facility” at
all, this case presents a clear opportunity to divide the
No. 98-3160 United States v. 150 Acres of Land 3
According to the district court’s opinion, at the present time,
Ethel Bohaty owns a 37/45 interest, and John Bohaty, Jr.,
Barbara Bohaty, Belinda Bohaty, and Susan Bohaty each own
a 2/45 interest in the land. Each interest was entirely inherited
except for that part of Ethel Bohaty’s interest that is 12/45 of
the land, which she purchased from relatives whose interests
descended at the same time as her husband’s. Ethel’s father-
in-law, John Bohaty, died on April 12, 1982, leaving one-half
interest in the property to her husband Vencel (John), the
interests now owned by John, Jr., Barbara, Belinda, and Susan
to them, and the remainder to three other relatives. On
January 27, 1984, Vencel died, leaving his entire interest to
Ethel. On February 15, 1985, the three other relatives or their
heirs sold their interests to Ethel.
On March 30, 1987, the local fire department noticed
numerous fifty-five gallon drums on the property and notified
the Ohio Environmental Protection Agency (“OEPA”).
OEPA visited the property and noted approximately 300
abandoned drums containing paint waste, laboratory
chemicals, and red sludge. OEPA’s toxicity tests were
negative. Ethel Bohaty stated that she asked the inspectors to
inform her if the drums posed a problem, and that she did not
hear from them.
On August 17, 1989, OEPA again inspected the property in
connection with the City of Medina’s appropriation of four
acres for road construction. The inspection was not related to
the 1987 inspection. Ethel Bohaty expressed her desire to get
rid of any toxic substances that might be found. The
inspectors found 200–300 drums, some of which were cause
for concern, and five underground storage tanks; they
suggested a follow-up inspection in the fall, when the
vegetation would be less dense. The inspectors concluded,
from historical aerial photographs, that organized drum
placement had occurred from the mid-1950s through the early
1970s. Ethel Bohaty stated that the inspectors did not tell her
that the drums contained hazardous materials or that she
should remove them or take other precautions, and that OEPA

-- 3 of 14 --

4 United States v. 150 Acres of Land No. 98-3160
1The EPA regional judicial officer found that the Bohatys had raised
credibility issues concerning several affidavits and depositions proffered
by the government in support of this claim “that defeat their usefulness to
the EPA.”
did not contact her further regarding the August 1989
inspection.
On September 16, 1991, OEPA requested assistance from
the federal EPA. In October 1991, the EPA asked to inspect
the property. On October 8, 1991, EPA inspectors conducted
a preliminary inspection that identified approximately 400
drums. Later that afternoon, the inspectors took soil samples
from various parts of the property. Laboratory analysis
revealed that each of the samples exhibited flashpoints of less
than 130 degrees Fahrenheit, therefore posing an ignitability
hazard, as well as substantially acidic pH values. The EPA
considered these results sufficient to justify a removal action
under 40 C.F.R. § 300.415(b)(2).
The government presented evidence that Vencel Bohaty,
Ethel’s husband (now deceased) knew of the dumping and
may have profited from it.1 The living Bohatys presented
unrebutted evidence that they did not know of the presence of
drums on the property, other than those used in the farm-
equipment repair business. Except for the extreme western
edge of the property, the land was heavily vegetated,
especially the area containing the drums. In fact, EPA
inspectors often could not see the drums until they stumbled
on them.
On December 16, 1991, the EPA sent John and Ethel
Bohaty a notice of potential liability asking them to agree to
pay for the response activities. The notice requested a
response within five days. The Bohatys did not respond to the
notice.
On January 15, 1992, the EPA began a removal operation
on the property. Altogether, approximately 1000 drums were
removed, of which approximately 550 contained waste and
No. 98-3160 United States v. 150 Acres of Land 25
records, were transferred on the same land deed, and were
maintained in similar undeveloped states. These factors are
not determinative of the bounds of the facility. The words of
the statute direct our inquiry to the determination of the
bounds of the “site or area where a hazardous substance has
been deposited, stored, disposed of, or placed, or otherwise
come to be located.” 42 U.S.C. § 9601(9)(B). The case law
conforms to this directive.
In Brighton, this court determined that the entire property
was the “facility” in part because “it appear[ed] that the entire
property was operated together as a dump.” 153 F.3d at 313.
Judge Moore, concurring in the result in Brighton, concluded
that the entire property was the facility because § 9601(9)(B)
defined a “landfill” in its entirety as constituting a “facility”
and this court did not need to decide the bounds of the
contamination under § 9601(9)(B) to designate the entire
property as the facility. Id. at 323 (Moore, J. concurring in
result). Thus, in Brighton this court reasoned that land which
was used overall as a dumping site – thus, the land was
widely contaminated – and was not geographically distinct
could not be divided into reasonable or natural separate
facilities. See id. at 313 (Judge Boggs’s reasoning on defining
the scope of facility), 323 (Judge Moore’s concurrence relying
on statutory language to define “facility”).
Similarly, courts faced with widely contaminated land have
refused to divide the land into separate facilities even when
divisible into separate units. See, e.g., Axel Johnson, Inc. v.
Carroll Carolina Oil Co., 191 F.3d 409, 418-19 (4th Cir.
1999) (holding that widespread contamination scattered
throughout the property prevented limiting the facility to the
particular functional units simply because the property could
be divided into those units); Akzo Coatings, Inc. v. Aigner
Corp., 960 F. Supp. 1354, 1358 (N.D. Ind. 1996) (rejecting
the argument that because the “Site can be divided into five
distinct geographic areas, each area is a distinct facility” and
holding that hazardous waste had “otherwise come to be
located in several locations at the Site”); Northwestern
Mutual Life Ins. Co. v. Atlantic Research Corp., 847 F. Supp.

-- 4 of 14 --

24 United States v. 150 Acres of Land No. 98-3160
1The Brighton court produced a divided opinion where Judge Boggs
wrote for the court, Judge Moore concurred only in the result and Judge
Dowd concurred in part and dissented in part. 153 F.3d 307 (6th Cir.
1998). In sum, the reasoning of the Brighton court differs according to
the opinion of each of Judge, while the result is the product of the court.
Accordingly, references to the Brighton opinion refer to the reasoning of
the individual Judges where appropriate and not to the reasoning of the
court.
_______________________________________________
CONCURRING IN PART, DISSENTING IN PART
_______________________________________________
R. GUY COLE, JR., Circuit Judge, Concurring in Part and
Dissenting in Part. I concur in the majority’s decision in Parts
II. A, B, D and E. Because I believe that Parcel 1, the parcel
at issue, is geographically separable by a reasonable and
natural division from the multiple non-contaminated parts, I
find that Parcel 1 is the appropriate facility under 42 U.S.C.
§ 9601(9)(B). Therefore, I respectfully DISSENT from Part
II. C of the majority’s opinion.
As Judge Boggs noted in United States v. Township of
Brighton,1 “a facility should be defined at least in part by the
bounds of the contamination.” 153 F.3d 307, 313 (6th Cir.
1998). In Brighton, Judge Boggs reasoned that an area that
cannot be reasonably or naturally divided into multiple parts
or functional units should be defined as a single facility, even
if it contains parts that are non-contaminated. See id. at 313.
Conversely, where property is reasonably and naturally
divisible into contaminated and non-contaminated parts, a
court can limit the facility to the contaminated portions of the
property. In this case, the evidence shows that the three
parcels have distinct legal descriptions and can be reasonably
divided into multiple parts, separating the contaminated from
the non-contaminated parts.
The majority emphasizes the fact that the parcels were
never considered separate for any purpose other than land
No. 98-3160 United States v. 150 Acres of Land 5
approximately 450 were empty. The removal was completed
on May 7, 1992. The estimated cost under control of the on-
scene coordinator was $652,720. The district court ultimately
determined that the costs and damages incurred by the
government were $854,426.87. The Bohatys assert that a
large underground storage tank was removed, although the
on-scene coordinator’s report does not indicate such activity.
The removal activities were confined to Parcel 1 of the
property. The EPA inspected Parcels 2 and 3 visually and
with a magnetometer for surface and subsurface drums, and
found nothing to remove.
On May 5, 1995, just before the three-year statute of
limitations expired, see 42 U.S.C. § 9613(g)(2)(A), the
government brought an in personam action against the
Glidden Company and an in rem action against the Bohatys’
three parcels of land to recover the cost of the removal
activity. The government executed a consent agreement with
Glidden resolving the claims against Glidden for $60,000,
leaving the Bohatys as the only defendants in this action. See
61 Fed. Reg. 29763. The government and the Bohatys both
moved for summary judgment. On September 30, 1997, the
district court granted the government’s motion, denied the
Bohatys’ motion, and entered judgment “for the Plaintiff and
against the Defendants.” The Bohatys appealed to this court,
but voluntarily dismissed their appeal without prejudice,
apparently on the ground that the order entered by the district
court was not a final judgment. The government, unopposed
by the Bohatys, then moved the district court to modify its
order and judgment entry. On January 26, 1998, the district
court granted the motion and entered both an order modifying
its previous judgment and order and a concurrent order of
sale. Enforcement of the orders is stayed pending this appeal.
In related proceedings, on February 13, 1996, the EPA
issued a de minimis order on consent addressing the potential
liability of nine parties with regard to the Bohaty property. 61
Fed. Reg. 5550. Ashland Chemical Company, Dow Chemical
Company, General Motors Corporation, Quaker Oats

-- 5 of 14 --

6 United States v. 150 Acres of Land No. 98-3160
Company, State Chemical Manufacturing Company, Inc.,
Synthetic Products Company, Uniroyal Chemical Company,
Inc., and Upjohn Company were each assessed $1,050 in
satisfaction of past and future claims connected with the
Bohaty site. Ibid.
II
A. The Structure of the CERCLA Defenses
The basic liability structure under CERCLA is set forth at
42 U.S.C. § 9607(a):
Notwithstanding any other provision or rule of law,
and subject only to the defenses set forth in subsection
(b) of this section—
(1) the owner and operator of a . . . facility, [and]
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substances were disposed of,
. . . shall be liable for—
(A) all costs of removal or remedial action incurred by
the United States Government or a State or an Indian
tribe not inconsistent with the national contingency plan;
. . . .
Ibid. The CERCLA defenses are:
(b) Defenses
There shall be no liability under subsection (a) of this
section for a person otherwise liable who can establish by
a preponderance of the evidence that the release or threat
of release of a hazardous substance and the damages
resulting therefrom were caused solely by—
. . . .
(3) an act or omission of a third party other than an
employee or agent of the defendant, or than one whose
act or omission occurs in connection with a contractual
relationship, existing directly or indirectly, with the
defendant . . . , if the defendant establishes by a
preponderance of the evidence that (a) he exercised due
No. 98-3160 United States v. 150 Acres of Land 23
________________________
CONCURRENCE
________________________
NATHANIEL R. JONES, Circuit Judge, concurring. While
I agree with the majority that the district court’s construction
of “disposal” for the purposes of 42 U.S.C. § 9601(35)(A) is
overly expansive, the majority’s interpretation is too narrow.
The majority limits “disposal” to “spills occurring by human
intervention.” Ante at ___. This language seemingly restricts
“disposal” to occasions where property owners release toxic
substances themselves, or actively participate in exacerbating
existing spills. The result is to potentially provide unjustified
cover for spectator polluters, who are aware of past and
ongoing toxic releases, yet do nothing to remedy them.
Accordingly, I construe “disposal” under § 9601(35)(A) to
encompass spills produced by human agency, including those
precipitated by willful neglect. This construction conveys the
“active” component of “disposal,” yet still provides room for
actions that are not affirmatively interventionist, but
sufficiently assertive to fall outside the bounds of the
CERCLA defense regime. I concur in the court’s judgment
and in all other aspects of Judge Boggs’ opinion.

-- 6 of 14 --

22 United States v. 150 Acres of Land No. 98-3160
government’s actions. The Bohatys have not presented
evidence that filing the lawsuit influenced the RJO’s decision;
in addition, the lawsuit itself may be construed as part of the
process afforded to the Bohatys. The district court is correct.
The Bohatys received sufficient due process.
III
The Bohatys have raised a genuine issue of material fact as
to each element of the CERCLA “innocent landowner”
defense, and are therefore entitled to have that defense survive
summary judgment. They have not, however, raised a
genuine issue of material fact as to whether any lien that may
be proper covers Parcels 2 and 3, the district court’s finding
on the amount of costs that are recoverable if liability is
established, or the due process claim.
For the foregoing reasons, the judgment of the district court
with respect to the innocent landowner defense is
REVERSED and the case is REMANDED to the district
court for further proceedings consistent with this opinion.
The judgment of the district court is AFFIRMED in all other
respects.
No. 98-3160 United States v. 150 Acres of Land 7
care with respect to the hazardous substance concerned,
taking into consideration the characteristics of such
hazardous substance, in light of all relevant facts and
circumstances, and (b) he took precautions against
foreseeable acts or omissions of any such third party and
the consequences that could foreseeably result from such
acts or omissions.
42 U.S.C. § 9607(b). The CERCLA definitions state:
(35)(A) The term “contractual relationship”, for the
purpose of section 9607(b)(3) of this title, includes, but
is not limited to, land contracts, deeds or other
instruments transferring title or possession, unless the
real 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, and one or more of the circumstances described
in clause (i), (ii), or (iii) is also established by the
defendant by a preponderance of the evidence:
(i) At the time the defendant acquired the facility the
defendant did not know and had no reason to know that
any hazardous substance which is the subject of the
release or threatened release was disposed of on, in, or at
the facility.
. . . .
(iii) The defendant acquired the facility by inheritance
or bequest.
In addition to establishing the foregoing, the defendant
must establish that he has satisfied the requirements of
section 9607(b)(3)(a) and (b) of this title.
(B) To establish that the defendant had no reason to
know, as provided in clause (i) of subparagraph (A) of
this paragraph, the defendant must have undertaken, at
the time of acquisition, all appropriate inquiry into the
previous ownership and uses of the property consistent
with good commercial or customary practice in an effort
to minimize liability. For purposes of the preceding
sentence the court shall take into account any specialized
knowledge or experience on the part of the defendant, the

-- 7 of 14 --

8 United States v. 150 Acres of Land No. 98-3160
relationship of the purchase price to the value of the
property if uncontaminated, commonly known or
reasonably ascertainable information about the property,
the obviousness of the presence or likely presence of
contamination at the property, and the ability to detect
such contamination by appropriate inspection.
. . . .
(D) Nothing in this paragraph shall affect the liability
under this chapter of a defendant who, by any act or
omission, caused or contributed to the release or
threatened release of a hazardous substance which is the
subject of the action relating to the facility.
42 U.S.C. § 9601.
Based on these provisions, the framework for considering
the Bohatys’ liability is this: The present owners of a
“facility” are liable for the costs incurred in removing toxic
substances from the facility, unless
(1) they can establish by a preponderance of the evidence
that the “release” of the substances and the damages
resulting from the release were caused solely by an act or
omission of a third party who was neither
(a) the present owners’ employee nor
(b) someone who was in a contractual relationship
with the owners;
and
(2) the owners
(a) exercised due care with respect to the substances,
in light of all relevant facts and circumstances, and
(b) took precautions against the foreseeable actions
and omissions of third parties.
The statutory definitions state, non-exclusively, that the
following contractual relationships satisfy (1)(b) above and
thus create liability for owners: land contracts, deeds, or other
instruments transferring title or possession, unless
No. 98-3160 United States v. 150 Acres of Land 21
Furthermore, there is no evidence in the record that removing
the empty drums raised the costs significantly. There is also
no evidence in the record on appeal that an underground tank
was removed. Nor is there evidence that the empty drums
would have been accepted by an ordinary landfill, or that such
disposition would have been less costly than the actual
disposition. Accordingly, the decision of the district court as
to the amount of the cleanup costs is affirmed.
E. Due Process
Relying on Reardon v. United States, 947 F.2d 1509 (1st
Cir. 1991), the Bohatys argue that the lien on their property
violates their Fifth Amendment due process rights. The
district court agreed that the lien deprived the Bohatys of a
significant property interest, but held that the Bohatys were
afforded sufficient due process. The district court was
correct.
To determine what process is due, we consider (1) the
private interest that will be affected by the official action; (2)
the risk of an erroneous deprivation of such interest through
the procedures used and the probable value, if any, of
additional or substitute safeguards; and (3) the government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail. See Mathews v.
Eldridge, 424 U.S. 319, 335 (1976).
The district court found that the risk of erroneous
deprivation was minimal because the Bohatys were given
both notice of the government’s intent to perfect the lien and
a hearing before the EPA Regional Judicial Officer (“RJO”).
The Bohatys argue that due process was not satisfied because
the RJO is an EPA employee and because the lawsuit now
before this court was filed before the RJO issued her decision.
The RJO was sufficiently institutionally isolated to satisfy due
process, see 5 U.S.C. § 554(d); Withrow v. Larkin, 421 U.S.
35, 56 (1975), and the need to file this lawsuit before the
statute of limitations expired constituted an exigent
circumstance sufficient to excuse the timing of the

-- 8 of 14 --

20 United States v. 150 Acres of Land No. 98-3160
3If the NCP does mean strict logical inconsistency, then the EPA
could charge landowners for building an expensive sculpture on the land
(assuming the sculpture were not itself a threat to health or welfare).
Presumably, this is absurd and compels a different interpretation of
“inconsistent.”
(e) The following removal actions are, as a general
rule, appropriate in the types of situations shown;
however, this list is not exhaustive and is not intended to
prevent the lead agency from taking any other actions
deemed necessary under CERCLA, CWA section 311, or
other appropriate federal or state enforcement or response
authorities, and the list does not create a duty on the lead
agency to take action at any particular time:
. . . .
(7) Removal of drums, barrels, tanks, or other bulk
containers that contain or may contain hazardous
substances or pollutants or contaminants—where it will
reduce the likelihood of spillage; leakage; exposure to
humans, animals, or food chain; or fire or explosion;
40 C.F.R. § 300.415 (emphasis added).
The question for decision, then, is whether removing the
empty drums is “not inconsistent with” the provisions of 40
C.F.R. § 300.415 set forth above. Absent evidence that there
were sufficient residual materials on the drums to constitute
a threat to the public health or welfare, removing the empty
drums cannot be said to advance or promote the goals of the
NCP. However, even if strict logical inconsistency is not
what the NCP means,3 Congress did not say that costs must
advance or promote the NCP to be recoverable. The general
tenor of the NCP is permissive—the lead agency may take
any appropriate action, including those on a list that is
expressly not exhaustive and that includes removal of drums
that “may contain” hazardous substances. Arguably, drums
that are known to be empty are not drums that “may contain”
hazardous substances. However, the generally permissive
nature of the NCP, together with the apparent reasonableness
of removing the empty drums, should be decisive.
No. 98-3160 United States v. 150 Acres of Land 9
(i) the present owners acquired their interest in the real
property on which the facility is located after the
“disposal” or “placement” of the substances, and
(ii) the present owners
(A) did not know, and had no reason to know, after
“all appropriate inquiry,” of the substances, or
(B) acquired their interests by inheritance or bequest.
Thus, present owners who acquired their interests by
inheritance or bequest can avoid liability without having
undertaken “all appropriate inquiry” with respect to the
“disposal” or “placement” by third parties of hazardous
substances on the land before they acquired it. However, they
must have exercised due care with respect to the substances,
in light of all relevant facts and circumstances, and taken
precautions against the foreseeable actions and omissions of
third parties, while they have owned the land. Present owners
who acquired their interests by land contracts, deeds, or other
instruments transferring title or possession, and not by
inheritance or bequest, must also have undertaken “all
appropriate inquiry” when they acquired the property to avoid
liability.
The 12/45 interest that Ethel Bohaty bought from the three
other relatives was transferred by quit-claim deed, and was
not an inheritance or bequest. On first consideration, it
appears that for this interest to avoid liability, Ethel must
show that she undertook “all appropriate inquiry” when she
bought it. But see infra at 14-15. The remaining 33/45
interest can avoid liability if the Bohatys establish by a
preponderance of the evidence that (1) the “disposal” or
“placement” occurred before 1982, (2) the “release” of the
substances and the damages resulting from the release were
caused solely by an act or omission of a third party (i.e., that
they did not “cause or contribute to” the release, and (3) they
exercised due care with respect to the substances, in light of
all relevant facts and circumstances, and took precautions
against the foreseeable actions and omissions of third parties
since they have owned the land.

-- 9 of 14 --

10 United States v. 150 Acres of Land No. 98-3160
The Bohatys concede that they are the owners of the
property, and thus that they are potentially responsible parties
under § 9607(a)(1); they dispute that they are potentially
responsible parties under § 9607(a)(2), as the government
argues, because they contend that no “disposal” of hazardous
substance has occurred while they owned the property. The
Bohatys also concede that a “release” of “hazardous
substances” has occurred on the property, that at least one of
the three parcels is a “facility,” and that the government
incurred removal costs. They dispute the amount of the
removal costs claimed by the government.
The issues on appeal are (1) whether the district court erred
when it decided that the Bohatys do not qualify for the
“innocent landowner” defense of §§ 9607(b)(3) and 9601(35)
set out above; (2) whether the district court erred when it
decided that the two unaffected parcels are part of the
“facility;” (3) whether the district court erred when it found
that the costs of disposing of the empty barrels and the
underground tank were properly part of the removal costs; and
(4) whether the Bohatys were deprived of due process by the
actions of the EPA and the district court.
B. The Innocent Landowner Defense
The Bohatys argue first that they qualify for the “innocent
landowner” defense of §§ 9607(b)(3) and 9601(35). The
district court held that
Defendants cannot assert such defenses because they
cannot prove that (1) the release or threat of release of
hazardous substances and the resulting damages were
caused solely by an act or omission of a third party; (2)
the third party’s act or omission did not occur in
connection with a contractual relationship with the
Defendants; (3) they exercised due care with respect to
the hazardous substance; and (4) they took precautions
against the third party’s foreseeable acts or omissions and
the foreseeable consequences resulting therefrom.
No. 98-3160 United States v. 150 Acres of Land 19
constitutes a “reasonable or natural” division into multiple
parts.
We hold that it does not. There is no evidence in the record
that the parcels were, at any relevant time, considered
separate for any purpose other than the land records. They
were transferred on the same deed, and except for a small part
of one parcel they were in the same undeveloped state. The
merely formal division in the land records is not a “reasonable
or natural” division under Brighton.
D. Which Removal Costs are Proper?
The Bohatys argue that the removal action incurred
unnecessary costs, for which they should not be liable. In
particular, they claim that (1) the EPA should not have
removed the empty drums at all, because they posed no
environmental hazard; (2) the EPA should not have removed
the underground storage tank, because it posed no
environmental hazard; (3) after the EPA consolidated the
contents of the 550 waste-containing drums into 300 drums
for disposal, it should not have disposed of the 250 additional
empty drums, because they posed no environmental hazard;
and (4) at a minimum, the 700 empty drums should have been
disposed of in a standard landfill rather than sent to a
hazardous-materials site (presumably, at greater cost).
CERCLA places liability on responsible parties for “all
costs of removal or remedial action incurred by the United
States . . . not inconsistent with the national contingency
plan.” 42 U.S.C. § 9607(a)(2)(A). The national contingency
plan (“NCP”) provides that:
At any release . . . where the lead agency makes the
determination . . . that there is a threat to public health or
welfare of the United States or the environment, the lead
agency may take any appropriate removal action to
abate, prevent, minimize, stabilize, mitigate, or eliminate
the release or the threat of release.
40 C.F.R. § 300.415 (b)(1) (emphasis added).

-- 10 of 14 --

18 United States v. 150 Acres of Land No. 98-3160
law to interpret CERCLA’s lien provision is a tenuous
proposition.
The government states that this court has decided the issue,
relying on Kelley v. DuPont de Nemours & Co., 17 F.3d 836,
843 (6th Cir. 1994) for the proposition that a remedial
investigation and feasibility study constitutes a “removal
action.” Although Kelley does state that the term “removal
action” should be construed broadly, the statute-of-limitations
issue in that case does not illuminate the geographic issue in
the case before us. Furthermore, the government’s claim that
“the investigation in Kelley . . . examined ten contiguous sites,
only one of which actually contained hazardous waste,” Brief
for the United States at 45, is misleading. There is no
indication that the ten “sites” were separate parcels—they
were merely ten locations in one large landfill that the EPA
identified as possible locations of hazardous materials. The
Kelley panel simply did not consider the issue of the
geographical extent of a “removal.”
The distinctive feature of the case before this court is the
fact that the three parcels have separate identities,
notwithstanding that they were historically conveyed together.
The hard question is whether this should make any difference.
The words of the statute suggest that the bounds of a
facility should be defined at least in part by the bounds of
the contamination. . . . However, an area that cannot be
reasonably or naturally divided into multiple parts or
functional units should be defined as a single ‘facility,’
even if it contains parts that are non-contaminated.
United States v. Township of Brighton, 153 F.3d 307, 313
(6th Cir. 1998) (citing Clear Lake Properties v. Rockwell Int’l
Corp., 959 F. Supp. 763, 767-68 (S.D. Tex. 1997)). In
Brighton, we held that where “it appear[ed] that the entire
property was operated together as a dump,” the whole parcel
was a “facility” even though only one corner was
contaminated. Ibid. To apply the teaching of Brighton, we
must decide whether the fact that the Bohaty property is
composed of three cartographically-denominated parcels
No. 98-3160 United States v. 150 Acres of Land 11
2Section 9601(35)(A) exempts certain, apparently contractual,
relationships from the § 9607(b)(3) rule that present owners are liable if
the release was caused by third parties with whom they have contractual
ties (or, whom they employ).
Opinion, J.A. at 62. Each of the four holdings, if correct, is
dispositive standing alone.
First, the district court held that hazardous substances were
“released” by the Bohatys. CERCLA defines “release” as
follows: “The term ‘release’ means any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the
environment (including the abandonment or discarding of
barrels, containers, and other closed receptacles containing
any hazardous substance or pollutant or contaminant).” 42
U.S.C. § 9601(22). Therefore, to prevail in their assertion of
the “innocent landowner” defense, the Bohatys must prove
that all spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment (including the
abandonment or discarding of barrels, containers, and other
closed receptacles containing any hazardous substance or
pollutant or contaminant) was “caused solely by” the acts or
omissions of third parties who were neither employees nor
persons in a contractual relationship with the Bohatys.
The district court held that the release of hazardous
substances was caused, in part, by the Bohatys’ “failure to
remove or stabilize the drums on their property.” The district
court evidently was not entirely clear about the elements of
and defenses to CERCLA liability. Having concluded that the
release was not solely caused by a third party, which would in
fact be fatal to the “third party” defense, the court then
confusingly stated that the Bohatys “can still attempt to assert
the innocent purchaser defense by demonstrating that a third
party’s ‘act or omission [causing the release of hazardous
wastes at the Site] occur[red] in connection with a contractual
relationship, existing directly or indirectly with’ them.” J.A.
at 63 (brackets in original) (citing 42 U.S.C. § 9607(b)(3)).2

-- 11 of 14 --

12 United States v. 150 Acres of Land No. 98-3160
The court decided that the answer to this question depends
upon whether the “disposal” preceded the Bohatys’
acquisition of the property and concluded that “disposal” was
ongoing. For its definition of “disposal,” CERCLA refers to
the Solid Waste Disposal Act, which states that “[t]he 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.” 42 U.S.C. § 6903(3).
The distinction between “disposal” and “release” is
important to our resolution of the case before us. Although
early CERCLA decisions interpreted “disposal” to include
passive movement of substances (i.e., with no human
activity), two circuits have recently limited “disposal” to
spills occurring by human intervention. See United States v.
CDMG Realty Co., 96 F.3d 706 (3rd Cir. 1996); ABB Indus.
Sys., Inc. v. Prime Tech, Inc., 120 F.3d 351, 358 (2d Cir.
1997) (adopting the reasoning of CDMG Realty). This
interpretation of the statute is the better view for several
reasons. See Michael S. Caplan, “Escaping CERCLA
Liability: The Interim Owner Passive Migration Defense
Gains Circuit Recognition,” 28 ENVTL. L. R EP . 10121 (1998).
First, because “disposal” is defined primarily in terms of
active words such as injection, deposit, and placing, the
potentially passive words “spilling” and “leaking” should be
interpreted actively; second, “release” must be broader than
“disposal,” because disposal is included within release, see 42
U.S.C. § 9601(22); and third, it makes sense of the statutory
scheme as well as the words themselves to have “disposal”
stand for activity that precedes the entry of a substance into
the environment and “release” stand for the actual entry of
substances into the environment. On this more recent view,
the Bohatys acquired the property after the “disposal.” The
question is whether “release” continued after their acquisition.
In the absence of any evidence that there was human
activity involved in whatever movement of hazardous
substances occurred on the property since the Bohatys have
owned it, we hold that the Bohatys have not “disposed” of
hazardous substances on the property. We also hold that the
No. 98-3160 United States v. 150 Acres of Land 17
(B) The time that the person referred to in paragraph
(1) is provided (by certified or registered mail) written
notice of potential liability.
Such lien shall continue until the liability for the costs
(or a judgment against the person arising out of such
liability) is satisfied or becomes unenforceable through
operation of the statute of limitations provided in section
9613 of this title.
42 U.S.C. § 9607(l)(1).
The government argues that the three parcels were all
“subject to or affected by” the removal. EPA investigators
observed Parcels 2 and 3 both visually and with a
magnetometer to locate any drums that might have been
deposited there. The government presented evidence that the
pond, upon which the investigators expended considerable
energy, extends beyond Parcel 1 to Parcel 3. Are these
such actions as may be necessary to monitor, assess, and
evaluate the release or threat of release of hazardous
substances, the disposal of removed material, or . . . such
other actions as may be necessary to prevent, minimize,
or mitigate damage to the public health or welfare or to
the environment, which may otherwise result from a
release or threat of release?
They may be, but that does not appear self-evident.
The record indicates that interests in the three parcels have
been transferred together by the same instruments, rather than
by separate instruments for each parcel, at least since 1982.
The district court looked to asset-forfeiture cases, and found
support for the proposition that a “property” is “defined by the
recorded instruments and documents that created the
defendant’s interest in the property.” See United States v.
Smith, 966 F.2d 1045 (6th Cir. 1992) (citing United States v.
Santoro, 866 F.2d 1538, 1543 (4th Cir 1989) and United
States v. Reynolds, 856 F.2d 675, 677 (4th Cir 1988)). As the
district court acknowledged, looking to criminal forfeiture

-- 12 of 14 --

16 United States v. 150 Acres of Land No. 98-3160
C. What Constitutes the “Facility”?
The parties agree that no release nor threat of release
occurred on Parcels 2 and 3. Therefore, the Bohatys argue,
even if they are liable, a lien is appropriate only on Parcel 1.
(9) The term “facility” means . . . (B) any site or area
where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located.
. . . .
(23) The terms “remove” or “removal” means [sic] the
cleanup or removal of released hazardous substances
from the environment, such actions as may be necessary
taken in the event of the threat of release of hazardous
substances into the environment, such actions as may be
necessary to monitor, assess, and evaluate the release or
threat of release of hazardous substances, the disposal of
removed material, or the taking of such other actions as
may be necessary to prevent, minimize, or mitigate
damage to the public health or welfare or to the
environment, which may otherwise result from a release
or threat of release.
42 U.S.C. § 9601.
All costs and damages for which a person is liable to
the United States under subsection (a) of this section . . .
shall constitute a lien in favor of the United States upon
all real property and rights to such property which—
(A) belong to such person; and
(B) are subject to or affected by a removal or remedial
action.
. . . .
The lien imposed by this subsection shall arise at the
later of the following:
(A) The time costs are first incurred by the United
States with respect to a response action under this
chapter.
No. 98-3160 United States v. 150 Acres of Land 13
Bohatys have raised genuine issues of material fact as to the
three other crucial issues: whether they (1) “released”
hazardous substances on the land, (2) “exercised due care
with respect to the hazardous substance concerned, taking into
consideration the characteristics of such hazardous substance,
in light of all relevant facts and circumstances,” and (3) “took
precautions against foreseeable acts or omissions of [third
parties] and the consequences that could foreseeably result
from such acts or omissions.” These holdings resolve the
appeal on the 33/45 interest obtained by inheritance by the
present Bohaty owners. We give our reasoning on each of the
three in turn.
The only evidence presented by the government that the
Bohatys “released” hazardous substances were several
photographs showing what might be hazardous substances on
the ground near rusted drums and the statements of inspectors
to that effect. No evidence was presented, for example, that
at one time after the Bohatys acquired the land the piles near
certain drums were one size and, later, that they were larger.
The government appears to be relying on the inference that
because there were hazardous substances outside the drums,
and because some of the drums were not empty, the leaking
must have been ongoing. Perhaps, with appropriate factual
development, the government will be able to justify that
inference at trial. The government has not, however,
advanced sufficient evidentiary support at this time to show
the absence of a genuine issue of material fact.
The fact that the drums were present on the property and
that the Bohatys knew about them, at least after the first
OEPA visit in 1987, calls into question whether the Bohatys
“exercised due care with respect to the hazardous substance[s]
concerned, taking into consideration the characteristics of
such hazardous substance[s], in light of all relevant facts and
circumstances.” However, the Bohatys presented evidence
that after both the 1987 and the 1989 inspections they asked
OEPA to advise them if anything needed to be done, that the
tests performed in 1987 by OEPA were negative, and that
OEPA never told them that action was necessary. The

-- 13 of 14 --

14 United States v. 150 Acres of Land No. 98-3160
Bohatys have raised a genuine issue of material fact as to
whether they exercised the required degree of care.
The government has shown that the property was accessible
to third parties, which may indicate that the Bohatys did not
take “precautions against foreseeable acts or omissions of
[third parties] and the consequences that could foreseeably
result from such acts or omissions.” However, there is no
evidence in the record that any third parties ever
compromised the integrity of the drums or otherwise caused
the release of their contents. Perhaps the precautions taken by
the Bohatys were adequate under the circumstances. Again,
the government has not shown the absence of a genuine issue
of material fact.
Therefore, as to the 33/45 inherited interest, the Bohatys
have shown a genuine issue of material fact as to each
element of the CERCLA innocent landowner defense and are
entitled to proceed to trial.
Finally, with respect to the 12/45 interest sold to Ethel by
other Bohaty heirs, we hold that Ethel has raised a genuine
issue of material fact as to whether she “undert[ook], at the
time of acquisition, all appropriate inquiry into the previous
ownership and uses of the property consistent with good
commercial or customary practice in an effort to minimize
liability” with respect to the interest she purchased from her
relatives.
There is no evidence that Ethel conducted a particular
inquiry when she bought the interests.
However, the particular inquiry that is necessary under the
statutory definition is clearly dependent on the totality of the
circumstances. In particular, the requirement is that “the
defendant . . . has no reason to know that any hazardous
substance . . . was disposed of . . . at the facility.” 42 U.S.C.
§ 9601(35)(A)(i). Subsection (35)(B) amplifies this definition
stating that “the defendant must have undertaken, at the time
of acquisition, all appropriate inquiry into the previous
ownership and uses of the property consistent with good
No. 98-3160 United States v. 150 Acres of Land 15
commercial or customary practice in an effort to minimize
liability.” The definition also emphasizes the particularity of
the inquiry by noting that “the court shall take into account
any specialized knowledge or experience on the part of the
defendant, the relationship of the purchase price to the value
of the property if uncontaminated, commonly known or
reasonably ascertainable information about the property, the
obviousness of the presence or likely presence of
contamination at the property, and the ability to detect such
contamination by appropriate inspection.”
These paragraphs and definitions obviously contemplate
primarily a willful acquisition or purchase of the property for
a particular commercial or personal purpose. They also,
though not explicitly, seem to contemplate the acquisition of
all of the interest in a “facility” at one time. This case,
however, is of quite a different sort. Ethel and the other
Bohaty defendants had inherited undivided interests
constituting a large majority of the ownership of the parcel.
Three other heirs had inherited very small portions, less than
two years before the other fractional interests were
bequeathed to Ethel. A year later, while the estate of Ethel’s
husband was still in probate, the three other relatives sold
their fractional interest to Ethel. Under these circumstances,
where one part-owner by inheritance acquires an interest from
another part-owner by inheritance, apparently merely to
consolidate the inherited ownership interest, the level of
“appropriate inquiry” is a very fact-specific question. We see
no evidence in the record of what is “customary practice” in
connection with such family transactions. There is also no
evidence of the specific purchase price and the “value of the
property if uncontaminated” or other factors mentioned in the
definition. Under these circumstance we hold simply that, at
this time, we cannot state as a matter of law that Ethel’s
actions were not “appropriate inquiry” under the
circumstances at the time of the sale of the other fractional
interests. On remand, the burden will rest on Ethel, assuming
all the other requisites of the defense with respect to her
inherited interests are met, to also show that she met the
requirement of “appropriate inquiry.”

-- 14 of 14 --