                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-2381

E MERGENCY S ERVICES B ILLING C ORPORATION, INC.,
individually (and as agent for) agent of
Westville Volunteer Fire Department,
                                         Plaintiff-Appellant,
                            v.

A LLSTATE INSURANCE C OMPANY, et al.,

                                             Defendants-Appellees.


             Appeal from the United States District Court
 for the Northern District of Indiana, Hammond Division at Lafayette.
         No. 4:09-cv-00045-JD-APR—Jon E. DeGuilio, Judge.



   A RGUED N OVEMBER 1, 2011—D ECIDED F EBRUARY 2, 2012




  Before B AUER, F LAUM, and SYKES, Circuit Judges.
  F LAUM, Circuit Judge. This appeal concerns the inter-
pretation of the phrase “consumer product in consumer
use” in the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”). 42 U.S.C.
§§ 9601 et seq. Plaintiff-appellant, Emergency Services
Billing Corporation (“ESBC”), is the billing agent for the
2                                               No. 11-2381

Volunteer Fire Department of Westville (“Fire Depart-
ment”), a town in central Indiana. ESBC brought this
action against individuals who were involved in motor
vehicle accidents and the insurance companies that rep-
resent those individuals. Under CERCLA, the owner of
a “facility” from which hazardous substances have
been released is responsible for the response costs that
result from the release. ESBC believes that personally-
owned motor vehicles fall within the definition of “facili-
ties” under CERCLA. Thus, ESBC charged the individual
defendants, and therefore the insurance company de-
fendants, with the response costs relating to their re-
spective car accidents. Defendants argue that personal
motor vehicles fall under CERCLA’s “consumer product
in consumer use” exception to the definition of “facili-
ties,” and they have refused to pay ESBC for the
response costs. ESBC has asked for declaratory relief in
the form of a confirmation of the defendants’ liability
under CERCLA.
  The district court held that motor vehicles for personal
use do, in fact, fall under the “consumer product in
consumer use” exception to CERCLA’s definition of
facility, and that defendants cannot be charged with
the Fire Department’s costs for responding to the car
accidents. ESBC appeals, challenging the district court’s
interpretation of CERCLA. For the following reasons,
we affirm the district court’s dismissal of ESBC’s suit.


                      I. Background
  The facts of this case are few and are not in dispute. This
case involves response costs that the Fire Department
No. 11-2381                                                3

incurred in responding to four separate motor vehicle
accidents. Defendants David Penton, Juan Jose Gomez
Hernandez, Frank Dubczak, and Michael Baker each
owned a vehicle that was involved in a car accident in
LaPorte County, Indiana. Defendants Dubczak and
Penton are insured by Progressive Insurance Company,
defendant Baker is insured by Allstate Insurance Com-
pany, and defendant Hernandez is insured by State
Farm Insurance Company. Each insurance company is a
defendant in this suit as well. ESBC, as billing agent for
the Fire Department, determined that each of the individ-
ual defendants was the owner of a vehicle involved in
a collision that the Fire Department responded to, and
that each of the defendants had liability insurance cover-
age. ESBC therefore provided invoices itemizing the
response costs incurred by the Fire Department for
each collision. The defendants, however, refused to pay
those costs.
  In response to defendants’ refusal to pay, ESBC brought
this declaratory action, asking the court to affirm that
defendants are liable for response costs under CERCLA.
Defendants filed answers and denied liability. Allstate
and Baker also filed counterclaims against ESBC
seeking injunctive relief from ESBC’s billing practices and
alleging claims for violation of the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692, et seq., unjust enrichment,
unlawful fee collection, fraud, constructive fraud, and
insurance fraud.
  State Farm eventually filed a motion for judgment on
the pleadings according to Rule 12(c) of the Federal Rules
4                                              No. 11-2381

of Civil Procedure. All defendants joined the motion.
Defendant/counter-plaintiff Allstate also filed a motion
for a preliminary injunction regarding ESBC’s mailing
of invoices and a motion for a hearing regarding the
preliminary injunction. The district court granted defen-
dants’ motion for judgment on the pleadings, rendering
Allstate’s motions moot. In response to this ruling, ESBC
filed a Rule 59(e) motion to alter or amend the judgment,
which was denied.
  For purposes of appellate jurisdiction, Allstate and
Baker stipulated to the dismissal of their remaining
counterclaims without prejudice. The district court con-
strued that stipulation as a motion, and granted their
motion to dismiss without prejudice. Given that all
claims had therefore been dismissed, the court dismissed
Allstate and Baker’s entire case without prejudice. ESBC
appealed the district court’s judgment on the pleadings,
but we questioned our jurisdiction over that ruling
given the fact that the counterclaims were not dis-
missed with prejudice. ESBC therefore dismissed their
appeal voluntarily and asked the district court for a
Rule 54(b) entry of judgment, which would permit ESBC
to appeal the court’s dismissal of its suit before
Allstate’s countersuit was finally resolved. Fed. R. Civ.
P. 54(b). The district court granted the Rule 54(b) motion,
and the appeal is now properly before us.


                     II. Discussion
   CERCLA was established by Congress to “provide for
liability, compensation, cleanup, and emergency response
No. 11-2381                                                 5

for hazardous substances released into the environment
and the cleanup of inactive hazardous waste disposal
sites.” CERCLA, Pub. L. No. 96-510, 94 Stat. 2767 (1980).
CERCLA imposes liability for “response costs” on the
“owner and operator of a . . . facility” from which a hazard-
ous substance has been released. 42 U.S.C. § 9607(a)(1)-(4).
See also Amcast Industrial Corp. v. Detrex Corp., 2 F.3d
746, 748 (7th Cir. 1993). Responders to situations in-
volving hazardous materials can therefore bring private
cost-recovery actions against facility owners responsible
for the release of hazardous materials. Id. In order to
succeed in an action for recovery of response costs
under CERCLA, a plaintiff must prove the following
elements: “(1) the site in question is a ‘facility’ as defined
by CERCLA; (2) the defendant is a ‘responsible person’
for the spill as defined by CERCLA; (3) there was a
release of hazardous substances; and (4) such release
caused the Plaintiff to incur response costs.” Envtl. Transp.
Sys., Inc, v. Ensco, Inc., 969 F.2d 503, 506 (7th Cir. 1992).
The only prong at issue in this appeal is the first prong:
whether the motor vehicles at issue constitute “facilities”
for the purposes of CERCLA liability. CERCLA defines
“facility” as follows:
    The term “facility” means (A) any building, structure,
    installation, equipment, pipe or pipeline (including
    any pipe into a sewer or publicly owned treatment
    works), well, pit, pond, lagoon, impoundment, ditch,
    landfill, storage container, motor vehicle, rolling stock,
    or aircraft, or (B) any site or area where a hazardous
    substance has been deposited, stored, disposed of, or
    placed, or otherwise come to be located; but does
6                                              No. 11-2381

    not include any consumer product in consumer use
    or any vessel.
42 U.S.C. § 9601(9) (emphasis added). Section 9601(9)(A)
clearly contemplates that motor vehicles are facilities
for the purposes of CERCLA. Section B, however,
excludes “consumer product[s] in consumer use” from the
definition of facility. The question, therefore, is whether
a motor vehicle owned for personal use is a “consumer
product in consumer use” under CERCLA.
  The district court held that defendants’ motor vehicles
fall under the consumer products exception, and thus
CERCLA response costs cannot be recovered by ESBC.
We review a district court’s ruling on a Rule 12(c) motion
de novo. Buchanan-Moore v. Cnty. of Milwaukee, 570
F.3d 824, 827 (7th Cir. 2009). As with Rule 12(b)(6)
motions, we must view the facts alleged in the light most
favorable to the non-moving party. N. Ind. Gun & Outdoor
Shows Inc. v. City of South Bend, 163 F.3d 449, 452 (7th
Cir. 1998).
  ESBC argues that motor vehicles do not fall under
the consumer product exception to facilities even if
they are being used by individuals for personal use. In
support of this contention, ESBC maintains that the
phrase “consumer product” is ambiguous as it is used
here, and thus we must look outside the statute to de-
termine its meaning. Under Chevron v. Natural Res.
Def. Council Inc., if a statutory term is ambiguous and
there is an agency that administers the statute in ques-
tion, courts must defer to the administering agency’s
interpretation of the ambiguous term. 467 U.S. 837, 843-44
No. 11-2381                                              7

(1984). ESBC argues that the Environmental Protection
Agency’s (the “EPA”) interpretation of CERCLA should
control since the EPA administers CERCLA. ESBC further
maintains that the EPA’s interpretation of the term
“consumer product” does not include motor vehicles,
and thus personal motor vehicles must be considered
“facilities” under CERCLA.
  Defendants disagree. They argue that the term “con-
sumer product” as it is used in CERCLA unambiguously
includes personal motor vehicles, and that any reference
to interpretive tools outside the statute itself, including
the EPA’s interpretation, is inappropriate. Defendants
also argue that the inclusion of motor vehicles in the
definition of “consumer product” is consistent with
the purposes of CERCLA. Defendants further maintain
that sources outside of CERCLA, even if considered,
actually bolster the position for which they advocate.
Finally, defendants argue that the EPA’s definition of
“consumer product” is not actually inconsistent with
the district court’s holding.
  We find the defendants’ interpretation of “consumer
product” persuasive. We therefore hold that motor
vehicles can be “consumer products in consumer use” for
the purposes of CERCLA, and thus owners/operators
of personal motor vehicles are exempt from CERCLA’s
response-cost provisions.


A. Waiver
 As an initial matter, defendants argue that ESBC
waived any argument that the term “consumer product”
8                                              No. 11-2381

is ambiguous by not raising this point until its motion
for reconsideration. While defendants are correct that
ESBC did not use the term “ambiguous” until its Motion
for Reconsideration, ESBC did argue against dismissal
by referring to sources outside of CERCLA in attempting
to advance its interpretation of “consumer prod-
uct”—an argument that could only succeed if the court
found that the statute’s plain language is ambiguous.
Further, the district court discussed whether “consumer
product” is ambiguous as it is used in CERCLA in its
order dismissing ESBC’s case. Given that this is a
matter that does not require a rich factual record, as well
as the fact that the district court amply covered the issue
of ambiguity, this case falls under Bailey v. International
Brotherhood of Boilermakers, in which we held that if “a
party has presented a skeletal argument below, which
the district court recognized and addressed, and which
the party has now fleshed out and emphasized on ap-
peal,” we can find that the party has not waived the
argument. 175 F.3d 526, 529-30 (7th Cir. 1999).


B. “Consumer Product in Consumer Use”
   When interpreting any statute, we begin with the statu-
tory language itself and assume that the plain meaning,
if easily ascertained, adequately expresses the intent of
the legislature. Grzan v. Charter Hospital of Northwest
Indiana, 104 F.3d 116, 122 (7th Cir. 1997). In determining
whether the statutory language is clear or ambiguous,
we are to consider “the language itself, the specific con-
text in which that language is used, and the broader
No. 11-2381                                                9

context of the statute as a whole,” Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997), and reference to dictionary
definitions is appropriate. Koyo Seiko Co. v. United States,
36 F.3d 1565, 1571 (Fed. Cir. 1994). When the plain
meaning of a statutory term is unclear, outside consider-
ations can be used in an attempt to glean the legislative
intent behind the use of the term. See Firstar Bank v.
Faul, 253 F.3d 982, 987-90 (7th Cir. 2001). These can
include the legislative history, Koyo Seiko, 36 F.3d at 1571,
and reference to the same term’s use in other statutes.
Firstar, 253 F.3d at 990.
  In the context of a statute that is administered by an
agency, these tools of construction still have a place, see
Bankers Life and Cas. Co. v. United States, 142 F.3d 973, 983
(7th Cir. 1998), but deference must be given to an
agency’s interpretation of its own statute if that statute
has a gap—that is, if a key term is ambiguous and Con-
gress was silent as to its meaning. Chevron, 467 U.S.
at 843. The framework established in Chevron is
generally broken down into two steps. The first step is
the determination of whether Congress has spoken on a
statutory ambiguity in dispute. Bankers Life, 142 F.3d at
983. Courts differ on the amount of analysis they are
willing to conduct under Chevron’s first step. Compare
Square D Co. and Subsidiaries v. C.I.R., 438 F.3d 739, 745
n. 4 (7th Cir. 2006) (“[W]e do not share [appellant’s]
enthusiasm for determining whether relevant provisions
have a clear and plain meaning by wandering outside
the actual statutory language and into the legislative
history in the first step of the Chevron analysis.”) with
Salman Ranch, Ltd. v. C.I.R., 647 F.3d 929, 937 (10th Cir.
10                                              No. 11-2381

2011) (stating that both statutory language and statu-
tory history are appropriate considerations in con-
ducting step one of the Chevron analysis). In this Circuit,
“we seem to lean toward reserving consideration of
legislative history and other appropriate factors until the
second Chevron step.” Bankers Life, 142 F.3d at 983. Thus,
the only questions we must answer in the first step of
Chevron are whether the statutory language to be inter-
preted, on its face, is ambiguous, and whether Congress
was silent regarding that ambiguity. If the answer to both
of these questions is yes, then we must turn to the ad-
ministering agency’s interpretation of that language. Id.
  Under the second step of Chevron, an agency’s interpreta-
tion of the statute it administers is afforded deference.
Id. If that interpretation is reasonable, it must be fol-
lowed, regardless of whether or not the reviewing court
would have come to the same conclusion. Chevron, 467
U.S. at 843 n. 11. It is at this point that we view
the agency’s interpretation in light of the legislative
history, the purpose of the statute, and comparative
statutes in order to determine whether the agency’s
interpretation is reasonable. Bankers Life, 142 F.3d at 983.
  Applied to this case, step 1 of the Chevron analysis
requires us to determine whether the term “consumer
product,” as used in CERCLA, is ambiguous, and if so,
whether Congress resolved the ambiguity with other
statutory language. To start, the term “consumer prod-
uct” is not found in the definitions section of CERCLA.
See 42 U.S.C. § 9601. ESBC claims that this is dis-
positive—Congress was silent as to the meaning of
No. 11-2381                                                    11

“consumer product,” so we must turn to the EPA’s defini-
tion. “[T]he lack of a statutory definition,” however,
“does not render a term ambiguous.” American Fed’n
of Gov’t Employees v. Glickman, 215 F.3d 7, 10 (D.C. Cir.
2000). The district court initially held that the dictionary
definition of “consumer product” is clear and applicable,
and thus the phrase is unambiguous and no further
inquiry is necessary. The court cited Black’s Law Dictio-
nary as defining “consumer product” as “[a]n item of
personal property that is distributed in commerce and
is normally used for personal, family, or household pur-
poses.” 359 (9th ed. 2009).1 Since a personal motor



1
   The district court also compared the use of the term “con-
sumer product” in CERCLA to its use in the Magnuson-Moss
Warranty Act (to which Black’s Law Dictionary cites), which
defines “consumer product” as “any tangible personal property
which is distributed in commerce and which is normally
used for personal, family, or household purposes.” 15 U.S.C.
§ 2301(1). Using the Magnuson-Moss Act’s definition, the dis-
trict court reasoned that “a personally owned vehicle, or
an instrument of transportation or conveyance, is an item of
tangible personal property distributed in commerce, and, when
normally used for personal purposes, it fits within the
ordinary meaning of ‘consumer product.’ ” For further sup-
port, the district court cited Stoebner Motors, Inc. v. Automobili
Lamborghini S.P.A., in which a district court held that motor
vehicles fall under the definition of consumer product in the
Magnuson-Moss Warranty Act. 459 F.Supp.2d 1028 (D. Haw.
2006). While these points are persuasive, our case law con-
cerning the Chevron framework suggests that the district
                                                    (continued...)
12                                                 No. 11-2381

vehicle is undoubtedly “distributed in commerce” and
is used for “personal, family, or household purposes,”
defendants argue that the term “consumer product in
consumer use” is unambiguous as it applies to motor
vehicles, and we should end our analysis at this point.
  In response, ESBC cites the Consumer Product Safety
Act (the “CPSA”), 15 U.S.C. §§ 2051-2089, and the
Magnuson-Moss Warranty Act (the “Magnuson-Moss
Act”), 15 U.S.C. § 2301-2312, to defend its position
that “consumer product” is an ambiguous term. ESBC
argues that “consumer product” has been defined in
two different, mutually exclusive ways by Congress in
these statutes, and thus the term could not possibly be
unambiguous. ESBC first cites the Magnuson-Moss Act
discussed by the district court, see supra, note 1, which,
according to the district court’s reasoning, clearly
includes motor vehicles. ESBC next cites the definition
given in the CPSA, which explicitly excludes motor
vehicles from its definition. See 15 U.S.C. § 2052(a)(5)(C).
Given that motor vehicles can be considered “consumer
products” under one statute and cannot be considered
“consumer products” under another, the phrase, ESBC
argues, is ambiguous.
  Again, reference to outside statutes is generally
reserved for the second step in the Chevron framework.
Here, however, ESBC is using the definitions of “con-


1
  (...continued)
court’s use of interpretive tools that consider sources outside
the language of CERCLA is better suited for a step two analysis.
No. 11-2381                                             13

sumer product” found in other statutes not to advocate
for the acceptance of a given definition (at this point,
anyway), but rather to illustrate that the term can have
two different meanings, thus rendering it ambiguous.
Regardless of whether we consider ESBC’s extra-
statutory argument at this juncture or in a step two analy-
sis, the argument does not succeed. Contrary to ESBC’s
assertions, the Magnuson-Moss Act and the CPSA are
not in conflict regarding their respective definitions of
the term “consumer product,” and therefore do not
evidence an ambiguity. True, the CPSA explicitly excludes
motor vehicles from the definition of “consumer product.”
15 U.S.C. § 2052(a)(5)(C). But before excluding motor
vehicles from its definition, the CPSA provides the
general definition of “consumer product,” which states:
   The term “consumer product” means any article, or
   component part thereof, produced or distributed
   (i) for sale to a consumer for use in or around a perma-
   nent or temporary household or residence, a school,
   in recreation, or otherwise, or (ii) for the personal
   use, consumption or enjoyment of a consumer in or
   around a permanent or temporary household or
   residence, a school, in recreation, or otherwise . . . .
15 U.S.C. § 2052(a)(5). Immediately following this general
definition, the CPSA excludes several items from the
category of “consumer products,” not because they do not
meet the terms of the general definition, but because
they are already regulated by different agencies or dif-
ferent statutes. For instance, in the CPSA, motor vehicles
are excluded from “consumer products,” and the term
14                                              No. 11-2381

“motor vehicle” is defined by cross-referencing the
Motor Vehicle Safety Act. 15 U.S.C. § 2052; 49 U.S.C.
§ 30102. If the Consumer Product Safety Commission (the
“CPSC”)—the agency established by the CPSA—promul-
gates regulations regarding the manufacture and sale
of motor vehicles, those regulations could conflict with
the regulations already established in the Motor Vehicle
Safety Act. The reason for the exclusion, therefore, is
to avoid conflicting regulations of the same products or
conflicting regulations of the same primary behavior.
See also 15 U.S.C. § 2052(a)(5)(D) (excluding pesticides
from the definition of “consumer product” in the CPSA
as defined by the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. §§ 136 et seq.). Thus, the exclu-
sion of motor vehicles from the CPSA’s definition for
“consumer product” does not illustrate the ambiguity
of the term; it does the very opposite. The need to
exclude motor vehicles from the definition illustrates
the fact that under normal circumstances, motor vehicles
for personal use constitute consumer products. This
reasoning is bolstered by a Fifth Circuit case, which
reasoned that “Congress has chosen to give the term
[consumer product] very similar definitions in other
federal statutes.” Uniroyal Chem. Co. v. Deltech Corp., 160
F.3d 238, 255-56 (5th Cir. 1998) (citing four statutes
that give “consumer product” a similar definition, in-
cluding the CPSA and the Magnuson-Moss Act).
   For these reasons, the district court correctly concluded
that the term “consumer product” is unambiguous as
it is used in CERCLA, and personal motor vehicles in
personal use fall within its scope. However, even if,
No. 11-2381                                                 15

arguendo, the term “consumer product” is ambiguous
as it is used in CERCLA, a look to outside sources
confirm that motor vehicles for personal use do, in fact,
belong under the “consumer product” exemption from
“facilities” as defined in CERCLA.
  Under step two of the Chevron framework, an execu-
tive agency’s interpretation of an ambiguous statutory
term is controlling if that agency administers the statute
in question and the agency’s interpretation is reason-
able. See generally 467 U.S. 837. See also Wisconsin
Electric Power Co. v. Reilly, 893 F.2d 901, 907 (7th Cir. 1990)
(“When a court reviews an agency’s construction of
the statute which it administers . . . [and] the statute
is silent or ambiguous . . . the question for the court
is whether the agency’s answer is based on a
permissible construction of the statute.”). The EPA is
the agency that administers CERCLA, Uniroyal Chem. Co.,
160 F.3d at 250, and it has discussed its interpretation
of the term “consumer product” in a regulation, which
states, “Consumer product shall have the meaning
stated in 15 U.S.C. 2052[, the definitions section of the
CPSA].” 40 C.F.R. § 302.3 (2009). By way of review,
the CPSA defines “consumer product” as follows:
    The term “consumer product” means any article,
    or component part thereof, produced or distributed
    (i) for sale to a consumer for use in or around a perma-
    nent or temporary household or residence, a school,
    in recreation, or otherwise, or (ii) for the personal
    use, consumption or enjoyment of a consumer in or
    around a permanent or temporary household or
16                                                   No. 11-2381

     residence, a school, in recreation, or otherwise; but
     such term does not include—
     ...
     (C) motor vehicles or motor vehicle equipment (as
     defined by section 30102(a)(6) and (7) of Title 49)2 .
15 U.S.C. § 2052(a)(5). ESBC argues that since motor
vehicles are excluded from the definition of “consumer
product” under the CPSA, and the EPA interpreted
“consumer product” to have the same meaning in
CERCLA as it does in the CPSA, motor vehicles should
be excluded from the definition of “consumer product,”
and thus should not be excluded from CERCLA’s provi-
sions concerning “facilities.” The defendants, on the
other hand, argue that the general definition of “con-
sumer product” alone is what the EPA was referring
to, and not the several exclusions listed.
  ESBC’s argument is misleading. CERCLA serves
many functions, and one of those functions, at issue in
this case, is to hold the owners of facilities responsible
for response costs when the facilities in question emit
hazardous substances. See 42 U.S.C. § 9607. Another
purpose of CERCLA, however, is to impose notification
requirements on owners of facilities that leak hazardous
substances. See 42 U.S.C. § 9603. The EPA regulation
cited by ESBC defines “consumer product” solely for
the sections of CERCLA concerning facility owners’



2
  49 U.S.C. § 30102 is the definitions section of the Motor Vehicle
Safety Act.
No. 11-2381                                               17

notification requirements, not the cost-recovery provi-
sions. See 40 C.F.R. § 302.3 (“As used in this part, all
terms shall have the meaning set forth below . . . .” (empha-
sis added)). This is made clear in the EPA’s original
notice of proposed rules concerning the CERCLA regula-
tion cited by ESBC, 48 Fed. Reg. 23552-01, 23553 (May 25,
1983), which was published pursuant to the EPA’s
notice and comment requirements for the adoption of
regulations. 5 U.S.C. § 564. The relevant portions of that
notice only concerned the notification requirements
under CERCLA, and stated that “nothing in this proposal
should be interpreted as reflecting Agency policy or
the applicable law with respect to other provisions
of [CERCLA].” 48 Fed. Reg. 23552-01, 23553. Thus, the
EPA’s acceptance of the definition of “consumer prod-
uct” found in the CPSA has no bearing on that term’s
definition in this cost-recovery action.
  In addition, even if we presume that the EPA intended
for their definition of “consumer product” to apply to
the case at hand, ESBC’s interpretation of the EPA’s
regulation is unreasonable. The EPA’s preliminary rule
regarding the definition of “consumer product,” found
in the notice of proposed rules discussed above, states:
    Although the Act does not define the term “consumer
    product,” the Consumer Product Safety Act defines
    that term as, generally, any article sold to a consumer
    for the person’s use, consumption or enjoyment in
    or around a household, residence, school, in recrea-
    tion, or otherwise (15 U.S.C. 2052). This definition
    will apply for notification under CERCLA.
18                                             No. 11-2381

48 Fed. Reg. 23552-01, 23553 (emphasis added). The EPA’s
use of the word “generally,” along with the lack of any
reference to the exclusions that follow the CPSA’s
general definition, suggest that the EPA did not intend
for the CPSA exclusions to apply under CERCLA. ESBC
correctly argues that proposed rules are not entitled to
any deference. Clay v. Johnson, 264 F.3d 744, 750 (7th Cir.
2001). But the preliminary rule states that the definition
discussed “will apply.” 48 Fed. Reg. 23552-01, 23553.
ESBC provides no evidence that the EPA decided to
alter its course between the preliminary rule stage and
the final rule stage. Nor does it discuss any comments
made to the EPA on the subject during the notice and
comment stage of this particular regulation. Further,
the final rule can very easily be read as consistent with
the proposed rule; indeed, the final rule appears to be
a simplified, shortened version. The proposed rule, to
the extent that it should be considered in this cost-
recovery context, suggests that the CPSA’s “consumer
product” exclusions should not be imported to CERCLA.
  ESBC next argues that since the EPA referenced the
entirety of § 2052 in its regulation, the exclusions must
be included in the definition of “consumer product”
under CERCLA, since the exclusions are contained
within § 2052. This interpretation is supported, ESBC
contends, by the fact that the EPA decided to drop the
use of the word “generally” from its preliminary rule
when publishing its final rule. Compare 40 C.F.R. § 302.3
(“Consumer product shall have the meaning stated in
15 U.S.C. 2052.”) with 48 Fed. Reg. 23552-01, 23553 (“[T]he
Consumer Product Safety Act defines that term as, gener-
No. 11-2381                                              19

ally, any article sold to a consumer for the person’s
use . . . .” (emphasis added)). While ESBC is correct that
the entirety of § 2052 is cited in the final rule (which
includes the motor vehicle exclusion), the very same
citation is used in the preliminary rule, in which the
EPA refers to the CPSA’s definition generally. Further,
§ 2052 does not just include the definition for “con-
sumer product”; it includes all the definitions for the
CPSA. The EPA clearly did not mean for us to look to
the definition of “Third-party logistics provider,” for
instance, in seeking guidance while interpreting
CERCLA. Yet the definition of that term can be found in
§ 2052. 15 U.S.C. § 2052(a)(16). Thus, we should not
read into the fact that the EPA cited the entirety of § 2052
instead of the particular clause where the general defini-
tion of “consumer product” is found. The exclusions
that accompany the motor vehicle carve out in the
CPSA’s definition of “consumer product” are also in-
structive. Beyond motor vehicles, the CPSA excludes,
inter alia, tobacco, pesticides, drugs, and food from the
definition of “consumer product.” None of these
products could be considered “facilities” even without
CERCLA’s consumer product exception, so their exclu-
sion from the definition of “consumer product” would
make little sense. Lastly, if the EPA meant for the ex-
clusions found in the CPSA to be included in CERCLA,
it would be very strange and misleading to directly
quote the CPSA’s general definition of “consumer prod-
ucts” in its preliminary rule but fail to mention or
directly cite the motor vehicle exclusion at any point,
despite the large and non-intuitive impact that the ex-
20                                               No. 11-2381

clusion would have. We therefore conclude that the
EPA did not intend for the exclusions found in the CPSA
to apply to the definition of “consumer product”
in CERCLA.
  Finally, even assuming that the EPA did, in fact, intend
to include the CPSA’s “consumer product” exclusions
in its interpretation of “consumer product” under
CERCLA, their interpretation would be unreasonable.
As defendants point out, the legislative history
indicates that the purpose of the consumer product
exception was to immunize all consumers using con-
sumer products from liability under CERCLA. The de-
fendants note that the sponsor of the amendment that
resulted in the consumer products exception had this
to say about the bill:
     [The bill] contains no exclusions for consumer prod-
     ucts. Therefore, it has been suggested that this would
     mean that an individual consumer is subject to
     strict, joint and several liability for a “release” from
     any product that contains one of the numerous haz-
     ardous substances . . . . While staff has been in-
     formed that such a result was not intended, the
     term “facility” as it is presently defined would
     include consumer products, and the report does not
     in any way clarify that this term does not include
     consumer products. An amendment will be offered
     to clarify this matter.
126 Cong. Rec. S12,917 (daily ed. Sept. 18, 1980) (Statement
of Sen. Howard W. Cannon). Senator Cannon later said
that the amendment “preclude[s] any unintended applica-
No. 11-2381                                            21

tion of notification requirements and liability provisions
to consumers.” 126 Cong. Rec. S13,364 (daily ed. Sept. 24,
1980) (Statement of Howard W. Cannon). The purpose
of the exclusion, therefore, is clearly to prevent con-
sumers—all consumers—from being held liable under
CERCLA, despite ESBC’s claims that this broad remedial
scheme must cover car accidents. ESBC offers no
support from CERCLA’s legislative history that a
category as large as personal motor vehicles should be
excluded from the definition of consumer products, nor
can we think of a reason for this exclusion.


                    III. Conclusion
  CERCLA’s “consumer product” exemption from the
term “facilities” cannot reasonably be read to exclude
personally-owned, personally-operated motor vehicles.
The language of CERCLA is clear on its face, and a look
into CERCLA’s legislative history, the term “consumer
product” as it is used in other statutes, and the EPA’s
interpretation of the term only confirms our conclusion.
We therefore A FFIRM the district court’s dismissal of
ESBC’s suit for declaratory relief.




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