3550 Stevens Creek Associates, a Limited Partnership v. Barclays Bank of California

915 F.2d 1355 32 ERC 1105 , 59 USLW 2235 , 21 Envtl. L. Rep. 20,011 3550 STEVENS CREEK ASSOCIATES, a Limited Partnership, Plaintiff-Appellant, v. BARCLAYS BANK OF CALIFORNIA, Defendant-Appellee. No. 88-15503. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 14, 1989. Decided Oct. 3, 1990. Bernard S. Greenfield and Marcia E. Gerston, Levy, Greenfield & Davidoff, San Jose, Cal., Kenneth A. Manaster, Los Altos, Cal., for plaintiff-appellant. Timothy M. Flaherty, Jordan, Keeler & Seligman, San Francisco, Cal., for defendant-appellee. Donald A. Carr, Anne S. Almy and David C. Shilton, U.S. Dept. of Justice, Washington, D.C., for amicus. Appeal from the United States District Court for the Northern District of California. Before FARRIS, PREGERSON and RYMER, Circuit Judges. RYMER, Circuit Judge: 1 3550 Stevens Creek Associates appeals the entry of judgment on the pleadings in its action for recovery of costs incurred in the voluntary removal of asbestos during remodeling of a commercial building against Barclays Bank of California, a predecessor-in-interest who owned the building at the time materials containing asbestos were installed. The United States…

dissenting:

I dissent. The majority’s opinion is based on a numbing, highly technical analysis of CERCLA definitions and provisions. “CERCLA is essentially a remedial statute designed by Congress to protect and preserve public health and the environment.” Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir.1986). Congress enacted CERCLA “to provide a comprehensive response to the problem of hazardous substance release.” Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 890 (9th Cir.1986). The purposes underlying this remedial statute should not be frustrated by the narrow interpretations inflicted on it by the majority opinion.

CERCLA provides several complementary mechanisms to effectuate hazardous substance removal. 1 The legislation also addresses the problems of compensation and liability in the wake of a release or threatened release of a hazardous substance. 2 Private cost recovery actions for clean up costs are a central part of CERC-LA. 3 The availability and independence of these causes of action are now clearly recognized by the courts. See id. at 892 (“private enforcement actions under section 107(a) ... [are] independent of governmental…

3550 Stevens Creek Associates appeals the entry of judgment on the pleadings in its action for recovery of costs incurred in the voluntary removal of asbestos during remodeling of a commercial building against Barclays Bank of California, a predecessor-in-interest who owned the building at the time materials containing asbestos were installed. The United States as Amicus Curiae has filed a brief on behalf of Stevens Creek. The question on appeal is whether a private party may recover its response costs for clean-up of asbestos installed in a commercial building under section 107(a)(2)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9607 (CERCLA). We hold that CERCLA does not permit such an action, and affirm.

I

In 1963, First Valley Corporation constructed a building, located at 3550 Stevens Creek Boulevard in San Jose, California, which contained asbestos insulation and fire retardants. In 1969, Barclays Bank acquired First Valley’s assets. First Valley Corporation was dissolved in 1971, when Barclays acquired title to the property. Barclays sold the property to Stevens Creek in 1984. From 1984 through 1986, Stevens Creek…