ELR Citation: ELR 20023
No(s). 91-55565 (9th Cir. Sep 30, 1992)

In a suit by a commercial tenant against its landlord, the court rules that §107(a)(1) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not authorize removal costs for asbestos building material when no release of hazardous substances occurs outside the building. The tenant sued the landlord for removal costs incurred after an accidental release of asbestos dust in leased space during a fire. The landlord moved to dismiss on the basis of the court's prior ruling in 3550 Stevens Creek Assocs. v. Barclays Bank of California, 21 ELR 20011, which held that CERCLA §107(a)(2) did not authorize the present owner of a building to recover from a prior owner the cost of removing asbestos installed in the building by the prior owner. The court first notes that the instant suit is brought against the present owner of a building under CERCLA §107(a)(1) rather than against a past owner of a building under §107(a)(2), and that in Stevens Creek, the court rejected the claim on the ground that in installing the asbestos material, the prior owner had not "disposed of" it within the meaning of CERCLA §107(a)(2). The court holds that whether the failure to abate the asbestos dust constitutes "disposal" is irrelevant, because CERCLA §107(a)(1), unlike §107(a)(2), does not condition recovery from a present owner on the owner's "disposal" of the hazardous substance. In a footnote, the court resolves ambiguity in its Stevens Creek ruling, and holds that structures containing asbestos building material, as distinguished from containers of such materials for consumer use, satisfy CERCLA §101(9)'s broad definition of "facility." The court next holds that CERCLA §104(a)(3)(B)—the building materials exception—excludes costs incurred when the release or threatened release is from a product that is part of the structure of the building, and the resulting exposure is wholly within the structure. Finally, the court notes that its ruling does not extend to the availability under CERCLA of response costs, or to a release of a hazardous substance from building materials that are not part of the structure.

Counsel for Plaintiff
Christopher C. Foley, Deputy Attorney General
Attorney General's Office
312 N. Spring St., Los Angeles CA 90012
(213) 897-2000

Counsel for Defendants-Appellees
Arthur N. Greenberg
Greenberg, Glusker, Fields, Claman & Machtinger
1900 Avenue of the Stars, 20th Fl., Los Angeles CA 90067
(213) 553-3610

Before Browning, Farris, and MacBride,^* JJ.