## Facts

- A commercial building was constructed in 1963 in San Jose, California, using asbestos-containing materials for insulation and fireproofing.
- Barclays later acquired the builder’s assets, and by 1971 acquired title to the property after the builder was dissolved.
- In 1984, Barclays sold the property to 3550 Stevens Creek Associates.
- From 1984 to 1986, Stevens Creek remodeled the building and spent over $100,000 removing asbestos.
- Stevens Creek sued Barclays under CERCLA § 107(a) to recover the asbestos abatement expenses as “response costs.”

## Issues

1. Whether CERCLA § 107(a)(2)(B) permits a private party to recover costs for voluntary removal of asbestos that was lawfully installed as part of a building’s original construction.
2. Whether asbestos remaining as part of an intact, functioning building involves a CERCLA “facility” and a qualifying “release” or threatened release sufficient to trigger cost recovery liability.
3. Whether dismissal on the pleadings is proper when the alleged asbestos abatement costs are not recoverable under CERCLA as a matter of law.

## Decision

- The Ninth Circuit affirmed judgment on the pleadings for Barclays.
- The court held CERCLA does not authorize private cost recovery for voluntary asbestos removal from a functioning building when asbestos was incorporated as a construction material rather than disposed as waste.
- Accepting the complaint’s facts as true, the claim failed because the alleged conditions did not fit CERCLA’s cleanup scheme; thus Rule 12(c) disposition was proper.

## Legal Principles

- CERCLA’s cost-recovery provision targets cleanup of hazardous waste sites and spill-type conditions, not routine removal of hazardous substances that are part of building products in an intact structure.
- The statutory terms “facility,” “release,” and “removal” must be read in context; treating any asbestos-containing building as a CERCLA facility would expand the statute beyond its intended scope.
- Voluntary interior asbestos abatement undertaken as part of commercial renovation, without allegations of a CERCLA-type release or threatened release into the environment, does not create recoverable “necessary costs of response” under CERCLA § 107(a).
- Judgment on the pleadings is appropriate when no material factual dispute exists and the moving party is entitled to judgment as a matter of law based on the pleadings.

## Conclusion

The Ninth Circuit concluded that CERCLA does not function as a reimbursement mechanism for voluntary asbestos abatement in an intact commercial building where asbestos was lawfully installed as a construction component and the pleadings do not allege the type of release or hazardous waste site cleanup CERCLA was enacted to address.


3550 Stevens Creek Assocs. v. Barclays Bank of Cal., 915 F.2d 1355 (9th Cir. 1990)