The Case Against Intermediate Owner Liability Under CERCLA for Passive Migration of Hazardous Waste

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