976 F.2d 1338 (9th Cir. 1992), 92-15506, Kaiser Aluminum & Chemical Corp. v. Catellus Development Corp.

Docket Nº:92-15506.
Citation:976 F.2d 1338
Party Name:KAISER ALUMINUM & CHEMICAL CORPORATION, a Delaware Corporation; James L. Ferry & Son Inc., a California corporation, Third-Party Defendants-Appellees, v. CATELLUS DEVELOPMENT CORPORATION, Defendant-Third-Party-Plaintiff-Appellant.
Case Date:October 08, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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976 F.2d 1338 (9th Cir. 1992)


Corporation; James L. Ferry & Son Inc., a

California corporation, Third-Party





No. 92-15506.

United States Court of Appeals, Ninth Circuit

October 8, 1992

Argued and Submitted Aug. 18, 1992.

Page 1339

Howard M. Hoffman, Sacramento, Cal., for third-party-defendants-appellees.

Sanford Svetcov, Landels, Ripley & Diamond, San Francisco, Cal., for defendant-third-party-plaintiff-appellant.

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

Before: KOZINSKI and THOMPSON, Circuit Judges, and REA, District Judge. [*]

DAVID R. THOMPSON, Circuit Judge:

Catellus Development Corporation ("Catellus") appeals the dismissal of its third-party complaint against James L. Ferry & Son ("Ferry"). In that complaint, Catellus sought contribution under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., for costs incurred in cleaning up a contaminated construction site. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.


Catellus's predecessor, Santa Fe Land Improvement Company, sold 346 acres of land to the City of Richmond, California ("Richmond"). Richmond hired Ferry to excavate and grade a portion of the land for a proposed housing development. While excavating the development site, Ferry spread some of the displaced soil over other parts of the property. This soil

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contained hazardous chemical compounds, including paint thinner, lead, asbestos, and petroleum hydrocarbons. 1

Richmond sued Catellus to recover part of the cost of removing the contaminated soil from the property. 2 Catellus filed a third-party complaint against Ferry for contribution under 42 U.S.C. § 9613(f)(1), alleging that Ferry exacerbated the extent of the contamination by extracting the contaminated soil from the excavation site and spreading it over uncontaminated areas of the property. 3 The district court concluded that Ferry was not a person who could be held liable under CERCLA section 9607(a) and thus dismissed Catellus's complaint for failure to state a claim on which relief could be granted. See Fed.R.Civ.P. 12(b)(6). This appeal followed.


We review de novo a dismissal under Rule 12(b)(6) for failure to state a claim under. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533 (9th Cir.1984). We take all allegations of material facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir.1991). We will affirm a dismissal under Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).


CERCLA was enacted with two primary purposes in mind. First, Congress intended to provide the federal government with the means to effectively control the spread of hazardous materials from inactive and abandoned waste disposal sites. Anspec Co., Inc. v. Johnson Controls, Inc., 922 F.2d 1240, 1247 (6th Cir.1991). Second, it intended to affix the ultimate cost of cleaning up these disposal sites to the parties responsible for the contamination. Id. We construe CERCLA liberally to achieve these goals. 3550 Stevens Creek Assoc. v. Barclays Bank of Cal., 915 F.2d 1355, 1363 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991).

To prevail in an action for contribution under CERCLA, a plaintiff must show, among other things, that the defendant falls within one of four classes of persons subject to liability under 42 U.S.C. § 9607(a). See 42 U.S.C. § 9613(f)(1) ("[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a)"); Stevens Creek, 915 F.2d at 1358 (discussing the requirements for recovery in a contribution action under CERCLA). 4 This section imposes liability on:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment ... of hazardous substances owned or possessed by such person,

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by any other party or entity, at any facility ... owned or operated by another ... entity and containing such hazardous substances, and

(4) any person who ... accepted any hazardous substances for transport to...

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