*1 sрecifying in ad- provision contractual [a] disputes shall the forum in which vance applied is litigated and the law to be pre-condition indispensable
... an almost the orderliness and
to achievement of any interna-
predictability essential Further- transaction.
tional business
more, the dan- provision obviates such a agreement dispute under the
ger that a to a forum hostile
might be submitted parties or
the interests of one in- problem area
unfamiliar with
volved. Co., 417 U.S. v. Alberto-Culver
Scherk 2449, 2455,
506, 516, 41 L.Ed.2d 94 S.Ct. pre to rebut
TAAG has failed enforcing this forum
sumption in favor of it has not demon clause because
selection forum that “trial in the contractual
strated and inconvenient gravely difficult
will be so practical purposes be will for all
that [it] day in court.” The Bre
deprived [its] men, S.Ct. at 1917. 407 U.S. at that “enforce also no evidence
There is strong public poli contravene a
ment would brought, suit is
cy the forum which by judicial by statute or
whether declared Id. at 1916.
decision.”
Therefore, of the district judgment
AFFIRMED. ASSOCIATES,
3550 STEVENS CREEK Partnership,
a Limited
Plaintiff-Appellant, CALIFORNIA, BANK OF
BARCLAYS Defendant-Appellee.
No. 88-15503. Appeals, States Court
Ninth Circuit. Nov.
Argued and Submitted 3, 1990.
Decided Oct. *2 FARRIS, PREGERSON
Before
RYMER,
Judges.
Circuit
RYMER,
Judge:
Circuit
appeals
Associates
Creek
3550 Stevens
pleadings
on the
entry
judgment
recovery of costs incurred
for
its action
during
asbestos
voluntary
building
a commercial
remodeling
California, a
Barclays Bank
against
owned
predecessor-in-interest
materials
building at the time
The United
installed.
asbestos
on be-
filed a brief
Amicus Curiae
question on
Creek.
half
Stevens
may re-
appeal whether
clean-up of
response costs
cover
in a commercial
installed
Compre-
107(a)(2)(B) of the
under
Compen-
Response,
Environmental
hensive
1980, 42 U.S.C.
sation,
Liability Act
hold that
(CERCLA). We
affirm.
permit such
does not
I
con-
Valley Corporation
1963, First
In
at 3550 Stevens
building, located
structed
California,
Jose,
in San
Boulevard
Creek
insulation
which contained
1969, Barclays Bank
In
fire retardants.
Val-
First
assets.
Valley’s
First
acquired
dissolved
was
ley Corporation
proper-
title to the
acquired
Barclays
when
property
Stevens
Barclays sold the
ty.
through
From
Creek
building,
remodeled
Creek
Stevens
$100,000.00
E. Ger-
in remov-
and Marcia
S. Greenfield
than
Bernard
more
spending
Davidoff, San
&
ston, Levy, Greenfield
ing asbestos.
Altos,
Manaster, Los
Cal.,
A.
Jose,
Kenneth
in dis-
brought
this suit
Creek
Stevens
Cal.,
plaintiff-appellant.
CERCLA, 42 U.S.C.
trict court
Jordan, Keeler
Flaherty,
Timothy M.
damages sought
It
9601-9657.
§§
Cal.,
Francisco,
defen-
Seligman, San
107(a), 42 U.S.C. §
dant-appellee.
Barclay’s motion
On
incurred.
moval costs
judgment
granted
the district
Almy and David
Carr, Anne S.
A.
Donald
authority exists
holding
Justice,
pleadings,
Washing-
Shilton,
Dept, of
U.S.
C.
relief.
award
for the
D.C.,
ton,
for amicus.
II
hazardous waste at a site.”
Proper-
Ascon
ties,
Inc. v.
Mobil Oil
judgment
pleadings
A
on the
is a
(citations
Cir.1989)
omitted).
decision on the merits which we review de
*3
Corp.
General
employs
novo.
CERCLA
Sev
a bifurcated mecha-
Conference
enth-Day
Seventh-Day
Adventists v.
Ad
promote
cleanup
nism to
of hazardous
Congregational
ventist
sites,
F.2d
887
spills,
hazardous
and releases
—
denied,
228,
(9th Cir.1989),
cert.
230
of hazardous substances into the environ-
U.S. -,
1134,
110 S.Ct.
(2)
who at
cause of
any person
Walls,
any hazardous
Accord
disposal
nals,
F.2d at 890.
facility
operated
owned or
cost
prevail in a
To
F.2d at 980-81.
substances
which such
must establish
plaintiff
recovery
(1)
site on which
contract,
(3) any person who
“facility” un-
ais
are contained
substances
arranged
otherwise
agreement, or
term, Sec-
of that
definition
der CERCLA’s
treatment, of hazardous
disposal
9601(9);2
a “re-
101(9),42 U.S.C.
possessed
owned
substances
any “haz-
release”
or “threatened
lease”
*4
party or
by any other
person,
such
facility has
the
from
substance”
ardous
facility or incineration
any
entity, at
9607(a)(4); (3) such
occurred, 42 U.S.C. §
operated
another
or
vessel owned
has
release”
or “threatened
“release”
containing such
entity and
party or
response cоsts
plaintiff to incur
caused the
substances, and
hazardous
with
“necessary”
“consistent
and
were
accepts or ac-
(4)
person
any
plan,” 42 U.S.C.
contingency
national
the
substances
any hazardous
cepted
(4)
(a)(4)(B);
the de-
9607(a)(4)
and
§§
fa-
disposal or treatment
transport to
of
of four classes
one
fendant
within
se-
or sites
cilities,
vessels
incineration
liability provisions
subject to the
persons
from which
person,
such
lected
Properties,
107(a).
Ascon
release,
threatened re-
or a
there is a
at 1152.
the incurrence
cause
lease which
costs,
hazardous
sub-
response
suffi-
argues that
has
Stevens Creek
for—
stance,
liable
shall be
allegations neces-
the
pleaded all
ciently
or
(A)
removal
remedial
all costs
sary for a claim
by the
incurred
brought un-
properly
of action is
its
or an Indian
a State
or
Government
In
language of
section.
the
der
actual
the national
with
not inconsistent
tribe
any
subject to
107 is not
view section
its
plan;
contingency
limitations,
a limita-
particularly to
relevant
necessary costs of re-
(B) any other
responses to
governmental
on
tion
person
by any other
sponse incurred
part of the struc-
which are
products
from
contingen-
with the national
consistent
out
building set
of a
ture
plan;
.cy
prede-
that its
104(a)(3). Barclays contends
to,
injury
destruction
(C) damages for
“dispose” of a
did not
cessors-in-interest
resources, includ-
of,
of natural
or loss
meaning of
within
substance
hazardous
assessing
costs
ing the reasonable
response limita-
107, and that the
destruction,
result-
or loss
injury,
such
authori-
persuasive
104 are
in section
tions
release; and
a
ing from such
building
con-
materials
that removal
ty
any health assessment
(D)
the costs
scope of
is outside
taining asbestos
un-
study carried out
health effects
or
CERCLA.3
104(i).
der section
Creek that
that section
Stevens
agree with
question
no
We
There
in sec-
governmental
limitation
creates
“expressly
"owner
CERCLA,
Barclays
it is not an
contends that
101(9)
also
42 U.S.C. 3.
2. Section
arguing that its
property,
9601(9),
operator" of the
provides:
or
property result
Creek
(A)
acquisition
the Stevens
‘facility’
build-
means
The term
installation,
structure,
not
pipe
which does
equipment,
or
of assets
ing,
purchase
ed from a
(including any pipe into a
or
pipeline
liability
sewer
under CERCLA.
result in successor
well,
works),
pit,
publicly
Corp.
treatment
v. Celotex
Improvement
owned
Smith Land
landfill,
ditch,
lagoon, impoundment,
pond,
storage
stock,
Cir.1988),
(3d
cert.
Corp.,
vehicle,
container,
rolling
motor
L.Ed.2d
488 U.S.
aircraft,
(B) any site or area
question
(1989).
and is
this is
factual
Because
depos-
has been
where hazardous
ited, storеd,
disposition
appeal, we
of this
our
irrelevant to
placed,
other-
it.
do not consider
located;
does
include
but
not
wise come to
product
use or
in consumer
consumer
any vessel.
Patterson, 456 U.S.
Tobacco Co.
At
dispositive.
same
is not
(1982).
recognizing
1534, 1537,
authority
71 L.Ed.2d
time,
is no
S.Ct.
there
voluntary
107(a)(2)(B),
relief
right
under Section
To be liable
a commercial
from
asbestos
removal
“release”
must have been
there
upon which Stevens
The cases
of a hazardous
release”
“threatened
dispos-
rely concern
EPA
Creek
person
be a
stance,
defendant must
as
substances
dumping of
al or
any hazard-
disposal of
time of
“who at the
waste,
any facili-
operated
owned
ous substance
a com-
building material
any other
substances
ty at which
which
those cases
building.4 Even
mercial
disposed of.”
disposal as
relate
involve
do
as a
its use
than
rather
federal
material,5
placement
considered
101(22) as
is defined in section
“Release”
building has
aof
the structure
part of
pouring,
leaking, pumping,
“any spilling,
scope of
it falls within
concluded
injecting,
*5
emitting, emptying, discharging,
107(a).6
disposing
leaching,
escaping,
dumping,
7
environment_”
A
The “environ-
into the
ground waters
surface and
ment” includes
considering the
by
begin
We therefore
the United
air within
statute. American
“ambient
language of
plain
(BNA)
Walls,
(removal
Factors
See,
United States v. Fleet
e.g.,
F.2d
of
1953.
4.
823
977
Cf.
(S.D.Ga.1988) (denying
Dedham,
Corp.,
F.Supp.
ground);
724
955
dumping
805 F.2d at
waste
judgment
summary
(removal
motion for
of vola
defendants’
of
concentrations
“high
1075
Agency
discharged
by
illegally
Environmental Protection
organic compounds"
tile
Terminals,
asbestos-
of
wells);
recover
costs
F.2d at
Oil
792
Wickland
into
hazardous
containing material and barrels of
(removal
of
concentrations
of "hazardous
889
(11th Cir.1990).
chemicals), aff'd,
language have “includes statute to in the referred in sec- ment” is defined substance” “Hazardous building,” 9601(14).11 external atmosphere, That 101(14), 42 U.S.C. § See turn, air within the Clean section, refers to both but (citing n. Prudential, 1255 3 Clean F.Supp. at and the Act, 711 33 U.S.C. § Water Asbestos Methodist 42 U.S.C. § First United Air Inc., S, pollutant” AC & “toxic Knox v. 5); as a classified & n. at 867 pol- air “hazardous and a (S.D.Ind.1988); Electric Act Water Clean F.Supp. Act. U.S.C. Air the Clean Westing Chattanooga v. lutant” Bd. Power 7412; 40 C.F.R. see 1317; § 1080- F.Supp. Corp., house Elec. (1987); C.F.R. D, Table V App. Part also Covalt See (E.D.Tenn.1988). 61, Subpart Part (1987); 40 C.F.R. 401.15 F.2d 1434 Carey Canada as a hаzard- designated is also It M F v. A & Materi Cir.1988); sections purposes of substance ous (S.D.Ill.1984).9 als designate (authorizing Administrator substances) (providing “building struc “Facility” is a [or] contingency plan) the national a hazardous where ture ... 302.4, Table stored, 40 C.F.R. CERCLA. deposited, been found, (1987).12 The district to be located.” 302.4 come or otherwise placed, is a “hazard- assume, that asbestos Barclays does not and we 9601(9). 42 U.S.C. § is insuf- substance”; that fact however ous with asbestos structure built that a contend *6 9601(14), 9601(14), de- 42 (D) U.S.C. Section 11. the normal Act of tion Control substance": fines "hazardous application of fertilizer. (14) means substance’ term ‘hazardous 9601(8), CERCLA, 101(8) 42 U.S.C. 8. Section pursuant sec- designated to (A) any substance provides in full: Pollu- 311(b)(2)(A) Federa! Water of the (A) the means term ‘environment’ element, Act, (B) compound, any tion Control mixture, waters, contiguous the navigable zone, the waters solution, designated substance or natu- which the ocean waters and the Act, (C) any this 102 of pursuant to section manage- the exclusive are under ral resources having the characteristics waste hazardous the authority the under ment pursuant or listed identified under Management Act of Fishery Conservation (but Disposal not Act Waste Solid of the 300.1 water, ground (B) any other surface regulation which including any waste the water, supply, drinking land surface water Disposal Act has been Waste the Solid under strata, the air within or ambient subsurface (D) any Congress), toxic by suspended Act of jurisdiction of the or under the United States the pollutant listed United States. Act, (E) any Control Pollution Water Federal pollutant listed under air hazardous proceeding, in this Although contested 9. not (F) any immi- Air Clean 112 of the language have addressed which have courts or mix- substance nently chemical hazardous fibers escape of asbestos the that determined the Administrator respect to which ture with ob- building the intended falls outside within the 7 of pursuant to section taken United Methodist See First jectives of CERCLA. does Act. The term Control Toxic Substances Prudential, 5; 711 n. at 867 882 including oil petroleum, crude not include F.Supp. n. 3. at 1255 is other- any which not thereof fraction designated as a haz- specifically listed or wise say that accurate it is more In a sense 10. (A) sub-paragraphs ardous substance are the retardants and fire insulation asbestos building, the term (F) paragraph, and through of this they have have "come suppose than gas liq- gas, However, natural natural not building. does uids, include in the be located” gas synthetic gas, or liquefied natural broadly “facility" construed has been term gas (or of natural courts, mixtures that an usable for fuel to show "in that order such gas). synthetic only show 'facility,' plaintiff need a is area a hazardous Co., F.Supp. at 711 Ins. See also Prudential 12. come be locat- has otherwise placed there or 755; Knox, 1252; F.Supp. Asbes- at Metate 1148; Asbestos, F.Supp. at there.” Metate ed tos, The statutes 15; F.Supp. at 1146-48. n. Realty, at 1043 also Shore see these between Bliss, regulations no distinction 756; make Knox, F.Supp. solid and asbestos forms (E.D.Mo.1987); waste General building material. employed as form F.Supp. at Elec. 261.2(a). placement as C.F.R. The terms do not in- to establish that ficient building consti- clude of the structure of materials which are “used reused part any “disposal ingredients process as an industrial tutes product_” under CERCLA. make stance” C.F.R. 261.2(e)(l)(i). “Disposal” defined reference to “disposal” pertains On its face to “solid Disposal Act.13 SWDA section Solid Waste waste,” waste or hazardous not to “disposal” as: 1004 defines materials There is no which neither. dump- deposit, dischаrge, injection, suggestion Barclays predeces- or its any leaking, placing of ing, spilling, sors-in-interest discarded asbestos insula- into or on waste or waste solid retardants; they tion and fire rather water such solid any land or so building. Nor can used to construct any constit- or hazardous waste or building using construction of a these environment thereof enter the uent discharge, deposit, fit into “the discharged materials emitted into the air or or be waters, any including ground injection, placing wa- into or ón land ... into specified or water” in the definition. There ters. question is no the asbestos materials refuse, “any garbage, waste” “Solid structure, in this case were built into the discarded materi- sludge, ... and other al_” placed “into land water.” 6903(27), and “hazard- U.S.C. § Finally, there is no indication that materials is that of “solid waste” ous waste” subset part installed as poses particularly great threat here, building, see structure of a as are such environment, health or the human “may that asbestos fibers enter envi- 6903(5). Regulations issued U.S.C. § the air.” Even ronment or be emitted into Agency sim- Environmental Protection is taken that makes the asbes- “any when action ilarly discard- define “solid waste” “abandoned, friable, resulting recy- tos hazard is within ... ed material” which is cled, inherently wastelike.” ... CERCLA, 101(29) plant, supply plant, water treatment or air
13.
*7
9601(29), provides:
facility
pollution
control
and other discarded
solid,
semisolid,
waste’,
material,
(29)
including
liquid,
‘disposal’,
or
The terms
‘hazardous
meaning pro-
gaseous
resulting
and ‘treatment’ shall have the
material
from in-
contained
dustrial,
commercial,
1004 of the Solid Waste Dis-
mining,
agri-
vided in section
posal Act.
operations,
community
and from
ac-
cultural
Disposal
Section 1004 of the Solid Waste
tivities,
dissolved
but does not include solid or
6903, provides,
pertinеnt part:
U.S.C.
in
sewage,
domestic
or solid or dis-
material in
(3)
discharge,
‘disposal’means the
The term
irrigation
return flows or
solved materials
leaking,
deposit, injection, dumping, spilling,
discharges
point
which are
sources
industrial
placing
any
or
waste or hazardous
of
solid
subject
permits under section 1342 of Title
any
waste
land or water so that
into or on
nuclear,
source, special
byproduct
or
or
any
such solid
hazardous waste or
waste or
Energy
Act
as defined
the Atomic
material
may
the environ-
constituent
ment or be
thereof
enter
(68
U.S.C.
[42
as amended
Stat. 923
of
discharged
or
emitted into the air
seq.j).
2011 et
waters,
any
including ground
into
waters.
id
which because of its
istics
when
(A)
increase
irreversible,
or
ness; or
hazard to human health or the environment
bage,
(B) pose
(5)
physical,
waste,
cause,
[******]
The term
may—
improperly
refuse,
The term
a
or combination of solid
or
mortality
chemical,
substantial
or otherwise
sludge
significantly
‘hazardous waste’ means
incapacitating
‘solid
treat,
from waste treatment
or
quantity,
or
waste' means
stored,
present
infectious
managed.
increase in
contribute
transported,
concentration,
reversible,
character-
potential
any gar-
wastes,
serious
to an
a sol-
ill-
for
connection with hazardous
method,
tralization, designed
tion of
ize such waste or so
nonhazardous,
physical
chemical,
duced in volume.
activity
ous.
(34)
recovery, amenable for
any
technique,
form
or
processing designed to
hazardous waste so
term
biological
safer
or chemical
so as to render it nonhazard-
‘treatment’,
or
Such term includes
for
as to render such
process,
character
change
transport,
waste,
composition
storage,
when used in
including
as to neutral-
or
means
change
amenable
composi-
physical,
or re-
waste
neu-
any
REPORTER, 2d SERIES
FEDERAL
have con
in other circuits
courts
specific However
argues
Stevens Creek
of section
“disposal”
purposes
for
strued
sub-
“disposal of hazardous
reference
”
referring only to an affirma
107(a)(3)15as
the defi-
overrides
stances
waste,
discarding a substance
tive act
to “hazardous
“disposal” limited
nition
sub
use
the productive
Waste
not
the Solid
borrowed
wastes”
Prudential,
F.Supp.
See, e.g.
stance.
argues
because
It also
Disposal Act.
mate
(sale of asbestos
at 1253-56
substance”
“hazardous
phrases
“disposal” of asbestos
not
interchange-
rials is
used
are
waste”
“hazardous
CERCLA);
City Redevelopment
Jersey
are irrele-
“waste”
ably, the definitions
Indus.,
F.Supp.
Auth. v. PPG
vant.
aff’d,
(D.C.N.J.1987),
1260-61
for two
unpersuasive
reasoning is
This
involving
(transaction
Cir.1988)
(3d
have de-
First, Congress cоuld
reasons.
not
of hazardous substance
transfer
purposes for
“disposal”
fined
prod
sale
it
“disposal” if
involved
import
chose;
chose to
way it
Vul
Co. v.
uct);
Lumber
Hines
Edward
mean-
in SWDA. That
meaning provided
can Materials
definitions, in-
All CERCLA
ing is clear.
Cir.
(N.D.Ill.1988),
aff'd,
in sec-
set
“disposal,” are
forth
cluding for
use
1988)
(sale of hazardous
subsequent sec-
all
apply
101 and
not
process does
consti
treatment
wood
speak
“hazard-
tions,
which also
some of
disposal
treatment
arranging
tute
in the
appears
reason
No
substances.”
ous
process
substance, even where
mean-
a term one
give
statutory scheme
been
substance had
containing that
run-off
another.
another for
but
ing
one
site);
v. West
placed at
Second,
“hazardous
fact
(BNA)
E.R.C.
Corp., 22
Elec.
inghouse
waste”
“hazardous
stance”
(sale
product con
(S.D.Ind.1983)
goes to show
interchangeably
usеd
use in manufac
chemical
taining toxic
form,
as insula-
in non-waste
“disposal”). Be
turing does
constitute
“both
be covered:
tion,
meant to
was not
applicable to actions
the definition
hazard-
substance and
the terms hazardous
same, and
(a)(3)
under §
often
used,
their
use
wastes are
ous
pur
meaningful difference
there is
in the context
interchangeable, because
who
party
between
poses of CERCLA
gener-
are
CERCLA, hazardous substances
containing or
product
transports
sells
they
when
point
ally dealt with
for a
of hazardous substances
composed
become,
Inju-
wastes.”
to,
have
about
actually
use,
productive
From Hazardous
Damages
And
ries
use,
constructive
to its
product
*8
puts that
Improvement
Analysis And
Of
Wastes—
defi
adopt a different
no reason
we see
Congress
To
In
Report
A
Legal Remedies:
this case.16
nition in
301(e)
Section
Compliance With
“Superfund Section
By The
[CERCLA]
26.14
p.
Part
301(e)
Group”,
B
Study
that
argues
CERC
Stevens Creek
to no authori
points
Creek
Stevens
broadly construed
LA is
be
suggests.
it
as
construing “disposal”
ty
person,
by
possessed
by
or
given
owned
stances
CERCLA
interpretation of
The
14.
facility
entity,
party
at
by any
comprised
other
lawyers”
"distinguished panel of
operated
an-
vessels owned
incineration
Group
sub
301(e) Study
been accorded
has
entity
such haz-
party or
other
See
weight by
courts.
other federal
stantial
Canada,
ardous substances....”
Carey
v.
Covalt
Cir.1988);
(7th
Power Bd.
also Electric
see
that actions
contention
Creek’s
16.Stevens
F.Supp. at
& n. 3.
Chattanooga,
107(a)(2)
107(a)(3)
actions
differ from
section
107(a)(3)
essentially disguised products
they
liable
makes
are
in that
liability
15. Section
unhelpful,
it fails to
because
contract,
agreement,
suits
“any person who
"disposal”
treatmеnt,
should
why
explain
definition of
one
arranged
disposal or
for
otherwise
107(a)(3), and
under section
apply in actions
transport
transporter
arranged
with a
107(a)(2).
treatment,
in actions
another
of hazardous
disposal or
products which
of release ...
supple-
threat
intended
remedies
and result
the structure
part
are
governmental
ment,
supplant,
indeed
within,
buildings or
residential
exposure
We
threats.
to environmental
sponse
17 By
community
given a broad
structures.”
is to
business
agree that the Act
on
terms,
remedial
a limitation
accomplish its
section
interpretation to
its
104(a)(3)(B)
actions;
Methodist
section
First United
goals.
governmental
862;
Wickland
applies
see also
President” and
to “the
refers
Asarco, 792 F.2d
section.”
only
Terminals
“under this
responses
Oil
Cir.1986).
must
However we
section
argues that since
Creek
Stevens
on its
that the statute
reject a construction
au-
104(a)(3)(B)
only governmental
limits
legislative
permit,
face does
of asbes-
respond
presence
thority to
support.
history does not
infer-
building, by
of a
in the structure
tos
with the
designed to deal
was
CERCLA
par-
ence,
Congress intended
hazard-
abandoned
inactive and
problem under section
able to recover
would be
ties
Cong.
sites. U.S.Code
disposal
ous waste
token,
contends, the
107(a).
By the same
6125;
State
Admin.News
&
in sec-
provided
exception to the limitation
Corp., 759
Realty
York v. Shore
New
permits
the President
Cir.1985)
F.
(2d
(quoting
1032, 1040
person”
other
is able
only if “no
act
Tarlock,
Mandelker,
En-
A.
Anderson,
D.
release
release or threatened
respond to a
Policy
Law and
Protection:
vironmental
only
private parties
if
sense
makes
product
Necessarily it was
(1984)).
situations
respond to these
permitted to
Realty,
many compromises. Shore
usually can-
government
if
federal
even the
have, but
107 could
1040. Section
F.2d at
not.
problem
not,
provide
explicitly
did
effec
Congress
mate-
disagree.
fibers from
of asbestos
We
release
of the
response
of a
ac
part
precluded private
structure
tively
that are
rials
“disposal” requirement
through
tions
its
apart from
Even
107(a)(2)and
sections
history
that Con-
shows
legislative
inferring Con
this,
basis
there
provides
CERCLA
just what
intended
gress
far-reaching
create such
intent to
gress’
face.
Id.
on its
section
of action under
issue
directly addresses the
107(a).
part of
which are
removal
substances
removal
only discussion
place:
only one
buildings in
structure
oc-
history of CERCLA
legislative
authority of
104(a)(3)(B)limits the
Super-
during consideration
curred
“to
respond
President
argue that
and Amicus
9604(a)(3)(B),
Creek
Both Stevens
18.
104(a)(3)(B), 42 U.S.C.
erroneously
concluded
part:
the district court
pertinent
рrovides, in
104(a)(3)(B)
on
is a limitation
Response
Presi-
Limitations
—The
agree
107(a).
we
While
or reme-
provide for a
shall not
dent
dial action under
applies
ato
section in
terms
that section
private parties,
release—
and not to
only
release or threat
to the President
order
district court’s
do not read
we
*9
part
the struc-
(B)
de-
products
contrary.
which
holding
from
The district
the
within,
or,
exposure
resi-
in
and result
do not
provisions
ture
dential
of CERCLA
that
termined
"the
community
buildings
or business
recovery
this situa-
costs in
provide for the
structures;
104(a)(3)(B)
tion,”
before
then discussed
Congress
unlikely
concluding
that
that "it
(4) Exception
to Limitations —Notwith-
preclude the President
intended to
have
would
subsection,
standing
of this
paragraph
allowing
specific
taking
while
from
section,
the Pres-
this
the extent authorized
precise ac-
respond
parties
threat of
may
respond to
rеlease
ident
suggesting
as
read the court
We
tion.”
discretion,
con-
it
President’s
if in
its deter-
reinforces
in section
limitation
public
health
environmental
stitutes
emergency
extend
107 does not
that section
mination
person
the au-
with
no other
claim.
Creek’s
Stevens
respond to the emer-
thority
capability to
timely
in a
manner.
gency will do so
11,
Cong.,
S.Rep.
Act
No.
99th
1st Sess. 16-17
and Reauthorization
fund Amendments
reprinted
(1985),
Cong.
in
U.S.Code
99-499,
(SARA),
No.
1986 U.S.Code
Pub.L.
Admin.News 2835.
(100 Stat.) 1613,
Cong. & Admin.News
112(b)
limiting response to
provision
A similar
in 1986. Section
which was enacted
in the
releases of materials used
structure
language
Bill
51 contained the
of Senate
S.
in
117 of H.R.
buildings appeared
§
104(a)(3)(B) of
now codified
Section
2817,
Repre
passed by
the House of
bill
Report prior
The
CERCLA.
Senate
20,
1985. on December
sentatives
adoption
amendments
SARA
Cooke, The
Hazardous
Law
Waste—
discussed the extent of remedial
CERCLA
Management, Cleanup, Liability and Lit
Bill:
or removal actions under the
(1988);
igation
see
at 12-68
§ 12.04[4][e]
response
are ex-
authorities
“CERCLA
253,
Cong.,
also
H.R.Rep. No.
99th
1st
broad,
tremely
but
there are neverthe-
Cong.
reprinted
in 1986 U.S.Code
Sess.
situations,
may
less
some of which
be
After the bills
& Admin.News
lifethreatening,
conference,
which are not within
resolved in
Confer
in
Report discussed the limitation
ence
scope. The
Protec-
law’s
[Environmental
and to Sec
specific
terms
to the President
Agency
encountered some diffi-
has
tion]
tion 104:
culties,
political,
restraining
in
primarily
112(b) prohibits the President
responses
scope
to the
CERCLA
un-
undertaking
response
from
reason,
For this
Senate
law.
[the
Bill]
response
section 104 in
to a release
der
proposes
explicit
to make more
certain
part of the
products
from
which are
...
areas which the law does not cover.
buildings
busi-
structure of residential
Specifically,
makes clear the
[the Bill]
community structures which
nesses or
removal ac-
exclusion from remedial or
exposure
in
in such structures.
result
of a release or a threat of a release
tion
Cong., 2d
2.Conf.Rep. No.
99th
Sess.
products
part of the
...—from
which are
(Joint Explanatory
of Confer-
Statement
exposure
structure
and result
with-
(1986);
reprinted
Committee)
ence
facility....
Pro-
in a
Environmental
Cong. & Admin.News 3276.
1986 U.S.Code
Agency
requests
has received
tection
indicated,
report also
As the committee
or remedial action in situa-
take removal
adopted
language
the exact
committee
112(b)
tions where the contamination was
Bill
indi-
of Senate
S.
without
§
modify
origi-
cating
that it intended to
materials used
the structure
Id.
any way.
meaning
nal
creating
and was
an indoor hazard. This
clarify
that such situations
would
Report
No. 11 is
Whether or
Senate
subject
legislative
are not
to remedial or removal
guide
authoritative
an
section,19
underlying
legisla-
intent
action.”
matter,
though
general
inter-
Even
as a
“[t]he
19. See First United Methodist
agency charged
pretation
with the admin-
concluding
of an
& n.
that section
868-69
a statute is entitled to substantial
istration of
deference,
104(a)(3)(B)
limitation on the
substantive
reading
if it is a sensible
of the statu-
breadth of CERCLAitself. Given the fact
language,
tory
inconsistent
... and if it is not
provides
response
costs are not
history,"
legislative
Lawrence Co. v.
with
they
recoverable unless
are “consistent with
256, 262,
Dist.,
School
U.S.
Lead-Deadwood
contingency
plan,"
national
(1985),
S.Ct.
sources of
tial
deal with the mas-
EPA’s effort
to
enhance
in
facts,
the installation
disposal of haz-
problem
improper
sive
the defi-
private structures could fall within
ardous substances.4
po-
thus result
“disposal”
nition of
agree
Congress
that
“effective-
for
liability
I cannot
tential
precluded private party
ly
dis-
up
recovery. Because the
clean
cost
requirement.” Ma-
through
‘disposal’
issue,
we
court never addressed
trict
“disposal”
The
jority opinion at 12527.5
the matter with directions
should remand
does clearly
that
requirement
show
case
the facts of this
determine whether
par-
preclude private
Congress intended
“disposal” requirement.
satisfy the
installing
ty liability
the hazardous sub-
for
pri-
widespread use of asbestos
The
struc-
stance —asbestos—within
presents an exten-
vate
structures
“dispоs-
Interpretation
of the term
tures.
problem for
there is no common
sive
insu-
installation of asbestos
al” to include
remedy.6
Precisely because
law
fire retardants
build-
lation and
(1990) (contending
recovery
carcinogen
of costs for
60
that
known human
that
4. "Asbestos is a
cancer,
(a
buildings properly
lung
cancer of
fits
causes
mesothelioma
removal of asbestos from
lining)
also
language
congressional
abdominal
and is
plain
the chest and
in-
within the
It
been estimated
CERCLA).
linked to other cancers.
has
to use
Case law also tends
tent
3,300
12,000
year
cancer cases a
occur
that
waste" and "hazardous
the terms "hazardous
exposure
past
States as a result of
the United
asbestos;
referring
interchangeably when
substance”
cases are
almost all of these cancer
requirements. See New York v. Gener-
(a
addition, asbestos cаuses asbestosis
fatal. In
291,
Co.,
(N.D.N.Y.1984)
296
al Elec.
592
65,000
disorder).
lung
persons in
About
serious
("[I]t
Congress sought
appears
to deal with
suffering
States are estimated to be
the United
every
where
sub-
conceivable area
today."
Fed.Reg.
from asbestosis
located_")
(emphasis add-
come to be
stances
(introduction
proposed rule on ban of
ed);
Farms
Water Co. v. Cumberland
Dedham
products).
1074,
Cir.1986)
(1st
Dairy,
presented by the
Because of the health risks
("[A
reading
serves ...
of the statute
liberal]
environment,
fibers into the
release of asbestos
by preserving
congressional purposes
the limit-
authority
EPA has for the first time used its
by ensuring
ed resources of the Fund
Substances Control
under section 6 of the Toxic
among
apportioned
parties
liability
will be
danger-
place
comprehensive ban on a
Act to
sponsible
the release of
sub-
(BNA)
Rep.
See 20 Env't
ous substance.
addеd);
(emphasis
possible.”)
stances whenever
14, 1989)
(July
(reporting EPA Administrator
Chemical
Dow
Cadillac Fairview/California
Reilly's
press
K.
remarks at a
confer-
William
(9th Cir.1988) ("Section
added).
ban)
announcing
(emphasis
ence
Determining
expressly
claim
creates a
"piecemeal control of the risks
operated
against any person
who owned or
[presented
is not
fibers]
airborne asbestos
facility
at the time hazardous substances
satisfactory; only
to the
elimination of asbestos
facility
recovery
of neces-
of at the
acceptable
produce
reduc-
feasible will
extent
sary
responding
costs of
to the hazardous
risks,”
Fed.Reg.
the EPA
tion of
the national
incurred consistent with
stances
prohibit
which will
the manufac-
issued
rule
added).
(emphasis
recovery plan.”)
country
of asbestos in this
ture and distribution
present
product
uses
for 94%
14, 1989);
(BNA)
Rep.
(July
Env’t
damages
1996. 20
6.Recovery
asbestos in
caused
Part 763.
see 40 C.F.R.
exposure
uncertain. Where
sector is
personal injury,
to friable asbestos has caused
majority
analysis
ques-
bases its
parties
able to sue asbestos
individual
have been
only
proposition
"disposal”
refers
tionable
under traditional
tort theories.
manufacturers
See,
wastes,”
placement
not of
of "hazardous
Corp.
e.g.,
v. Johns-Manville Prods.
Beshada
proposition fails
"hazardous substances.” This
(1982); Borel v. Fibre
N.J.
private structure the cases Some under CERCLA.
arise law tort common brought lan theories, using CERCLA property See, e.g., liability. guide to as a
guage v. Methodist Church First United Cir.1989), F.2d 862 Gypsum Plaintiff-Appellant, LUCERO, Estella — U.S. -, rt. ce v. (1990); Power Elec. L.Ed.2d Corp., 716 Elec. Westinghouse v. Bd. HART, Papp, Rugh Su- J. B. Dennis (E.D.Tenn.1988). Others Defendants-Appellees. Mitchell, sie cause a CERCLA merely announce No. 88-15524. against a claims as one of several See, Mer e.g., liable defendant. potentially Appeals, Court Co., 258 Ga. Gypsum Nat’l cer Univ. Ninth Circuit. 368 S.E.2d 13, 1989. Nov. Submitted Argued majority’s concern Finally, 3, 1990. Decided Oct. liability under finding of far-reaching financial would misplaced. The problems practical in com- materials use of asbestos extensive already “pro- had properties has mercial impact on
found, continuing economic (BNA) Rep. industry.” 19 Env’t
real estate 1988) (remarks of H.L. Van (Oct. president
Varick, vice executive City of New York Savings Bank American Works Public Environment
to Senate Wastes on Hazardous Subcommittee kill- Substances). is deal “Asbestos
Toxic victim. culpable party innocent 6.8, rameters Toxic Substances ticides and pa- tort (1988), the classic not fall within does