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Retirement Community Developers, Inc. v. Merine

ELR Citation: 19 ELR 21336
Nos. No. PN-87-2464, 713 F. Supp. 153/29 ERC 1625/(D. Md., 05/17/1989)

The court rules that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not provide a private cause of action for building renovators to recover from previous owners the cost of removing asbestos installed as part of the structure of a building. The court first holds that Congress did not intend for CERCLA coverage to extend to recovery of costs for the removal of asbestos installed during the construction of buildings. CERCLA §104(a)(3)(B) generally prohibits the federal government from providing for response actions for a release or threat of release from products which are part of the structure of residential, business, or community structures. While the language of CERCLA §104 would appear to limit onlyresponses by the government, Congress intended that private persons be limited also in responding to such releases. The legislative history indicates that Congress intended that §104 be a limit on the substantive scope of CERCLA and not solely a limit on the government's authority. For a private party to conduct a removal action consistent with CERCLA's National Contingency Plan, the private party must follow the same rules that apply to government removal actions. The financial consequence of imposing liability for asbestos removal would be astronomical, and hundreds of thousands of buildings constructed with asbestos would become hazardous waste sites subject to cleanup responsibilities under CERCLA. Finally, the court also holds that there is no federal interest over state common-law claims for tort liability from the sale of real property, and declines to exercise its pendent jurisdiction.

Counsel for Plaintiffs
Michael J. Goergen
Sims, Walker & Steinfeld
Ste. 875, 1275 K St. NW, Washington DC 20005
(202) 842-1741

Counsel for Defendants
Jerome H. Simonds, Arthur H. Bill
Freedman, Levy, Kroll & Simonds
Ste. 825, 1050 Connecticut Ave., Washington DC 20036-5366
(202) 457-5100