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3550 Stevens Creek Assocs. v. Barclays Bank of California

ELR Citation: 21 ELR 20011
Nos. No. 88-15503, 915 F.2d 1355/32 ERC 1105/(9th Cir., 10/03/1990)

The court holds that §107(a)(2)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not provide a private cause of action to recover cleanup costs for the voluntary removal of asbestos installed in a commercial building. The case law that plaintiff relies on concerns the disposal or dumping of hazardous substances as waste, and not the removal of asbestos or any other building material from a commercial building. Moreover, the plain meaning of the statute does not permit it, because the CERCLA §101(29) definition of "disposal" does not pertain to the installation of building materials. The legislative history, which is devoid of congressional intent to create such a private cause of action, reveals that asbestos in nonwaste form, such as insulation, was not meant to be covered. In the context of CERCLA, hazardous substances are generally dealt with at the point when they are about to, or have become, wastes. Finally, the court holds that recognizing such a cause of action would have substantial and far-reaching legal, financial, and practical consequences.

A dissenting judge would hold that installation of asbestos in private structures could fall within CERCLA's definition of "disposal" and result in potential liability under §107(a)(2) for cleanup cost recovery. Otherwise, no effective remedy for the damage and injury caused by the existence of asbestos in private structures would exist, and CERCLA's remedial purpose would be frustrated.

Counsel for Plaintiff-Appellant
Kenneth A. Manaster
1711 Park Hills Ave., Los Altos CA 94022
(415) 969-6262

Counsel for Defendant-Appellee
Timothy M. Flaherty
Jordan, Keeler & Seligman
One Embarcadero Ctr., Ste. 840, San Francisco CA 94111-3613
(415) 397-4600