3550 Stevens Creek Associates v. Barclays Bank of California

Does the installation of asbestos-containing materials as part of a building's structure constitute a 'disposal' of a hazardous substance under CERCLA section 107(a)(2)?

Under CERCLA, 'disposal' is defined by reference to the Solid Waste Disposal Act as the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that it may enter the environment or be emitted into the air or discharged into waters. Solid waste includes garbage, refuse, sludge, and other discarded materials, while hazardous waste is a subset posing threats to health or the environment. Materials used productively, such as in construction, are not considered waste.

The asbestos materials were incorporated into the building's structure during construction by First Valley Corporation, which Barclays later acquired, rather than being discarded as waste.

This productive use did not involve discharging, depositing, or placing waste into or on land or water in a manner that would allow it to enter the environment, as required by the definition of disposal.

Instead, the materials formed part of the building itself, and even when disturbed during remodeling, any resulting hazard remained within the building, not released into the external environment.

Courts in other circuits have similarly interpreted 'disposal' under CERCLA as requiring an affirmative act of discarding as waste, not the sale or productive use of substances containing hazardous materials.

The statutory language and definitions from related acts confirm that asbestos in non-waste form, like building insulation, falls outside the scope of 'disposal' under section 107(a)(2).

This interpretation aligns with EPA regulations excluding materials 'used or reused as ingredients in an industrial process to make a product' from the definition of solid waste (40 C.F.R. § 261.2(e)(1)(i)).

No, the installation of asbestos-containing materials as part of a building's structure does not constitute a 'disposal' of a hazardous substance under CERCLA section 107(a)(2).

Does CERCLA section 107(a)(2)(B) authorize a private cause of action for recovery of response costs incurred in the voluntary removal of asbestos from a commercial building?

CERCLA section 107(a) allows private parties to recover necessary response costs consistent with the national contingency plan from liable persons, including prior owners or operators at the time of disposal of hazardous substances, provided there is a release or threatened release causing such costs. However, the statute must be interpreted based on its plain language, definitions, and legislative history, without implying remedies beyond congressional intent.

Reviewing de novo, the court found that although CERCLA broadly aims to address hazardous waste cleanup and imposes strict liability, its provisions and legislative history focus on releases from inactive waste sites and spills, not on building materials like asbestos integrated into structures.

The limitation in section 104(a)(3)(B) on governmental responses to releases from building products, while not directly applicable to private actions, indicates congressional intent to exclude such scenarios from CERCLA's scope.

Legislative history, including reports from the 1986 Superfund Amendments, explicitly clarifies that CERCLA does not cover removal actions for indoor hazards from building materials, and there is no evidence of intent to create a private right for asbestos removal in commercial buildings.

Recognizing such a cause of action would extend CERCLA's liability far beyond its intended purpose, shifting massive costs without clear statutory support.

No federal court has extended section 107 to cover asbestos placed as part of building structures, and the absence of explicit authorization precludes implying one.

No, CERCLA section 107(a)(2)(B) does not authorize a private cause of action for recovery of response costs incurred in the voluntary removal of asbestos from a commercial building.