792 F.2d 896 (9th Cir. 1986), 85-2783, NL Industries, Inc. v. Kaplan

Docket Nº:85-2783.
Citation:792 F.2d 896
Party Name:NL INDUSTRIES, INC., Petitioner-Appellant, v. Stuart M. KAPLAN, Respondent-Appellee.
Case Date:June 20, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 896

792 F.2d 896 (9th Cir. 1986)

NL INDUSTRIES, INC., Petitioner-Appellant,


Stuart M. KAPLAN, Respondent-Appellee.

No. 85-2783.

United States Court of Appeals, Ninth Circuit

June 20, 1986

Argued and Submitted March 10, 1986.

Page 897

Jennifer L. Machlin, Orrick, Herrington & Sutcliffe, San Francisco, Cal., for petitioner-appellant.

John D. Hoffman, Ellman, Burke & Cassidy, San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, KENNEDY and FARRIS, Circuit Judges.

WALLACE, Circuit Judge:

NL Industries, Inc. (NL Industries) appeals from the district court's denial of its motion to dismiss Kaplan's action for failure to state a claim upon which relief can be granted. This appeal concerns the pleading requirements of a private cause of action under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. Sec. 9607(a). We have jurisdiction under 28 U.S.C. Sec. 1292(b), and we affirm.


Kaplan's complaint alleges that Kaplan is the court-appointed receiver for 2222 Ltd. (the partnership), a California limited partnership that owns a parcel of real property in San Francisco (the parcel). The partnership acquired the parcel in February 1980 for the purpose of developing a condominium project. It later learned that the parcel was severely contaminated with deposits of various hazardous substances. State and local officials, acting pursuant to California hazardous waste control and water quality laws and other state and local statutes, regulations, and ordinances, have required Kaplan, as receiver for the partnership, to expend approximately $1,200,000 in detecting, identifying, controlling, and disposing of these hazardous substances.

From approximately 1933 to 1971, NL Industries owned the parcel and operated on it facilities for the production of paint, varnish, shellac, lacquer, and related products. From before 1900 until 1933, two corporations owned, controlled, and directed by NL Industries owned the parcel and conducted similar production operations. During these two periods, NL Industries and the two corporations owned by it deposited the hazardous substances that contaminate the parcel.

Kaplan sued NL Industries in district court under CERCLA Sec. 107(a), 42...

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