ELR Citation: ELR 20408
No(s). 91-158-JPG (S.D. Ill. Jun 6, 1994)

The court holds that a prior seller of property is not liable to either the current owner of the property or other responsible parties for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), or for damages under state tort law. The property in question is located in Sauget, Illinois, and included a power generating facility that contained asbestos-containing building materials and trace polychlorinated biphenyl (PCB) residuals. After the sale, salvage and remodeling activities resulted in asbestos contamination. The court first holds CERCLA §104(a)(3) does not provide a private right-of-action to recover the cost of removing from a building asbestos that is part of the structure. The statute's language and case law support this position. Therefore, the costs of one plaintiff's removal of asbestos from the commercial building is not recoverable under CERCLA. The court holds that as the present owner and/or operator of the site, plaintiffs are responsible parties under CERCLA §107(a)(1). The court holds that as the owner of the site at the time salvage and remodeling operations were conducted, plaintiffs are responsible parties under §107(a)(2). The court holds that by entering into a lease agreement for salvaging to occur, one plaintiff arranged for the disposal of hazardous substances and is a responsible party under §107(a)(3). The court holds that the prior seller is not a responsible party under §107. The sale of the power plant and surrounding acreage does not fall within CERCLA's "discharge, deposit, injection, dumping, spilling or leaking" definition of "disposal." Moreover, the mere sale of the property is insufficient to impose arranger liability on the seller. The sale of a useful product that contains a hazardous substance does not constitute "disposal," and the seller did not intend to dispose of hazardous substances by selling the plant. Also, there is no evidence that the sale of the power plant property was a sham. The court next holds that there was a threat of release of asbestos at the site, but that plaintiffs filed to show that they incurred any costs in response to an alleged release. The court also holds that there was no release or threat of release of PCBs at the site. Although PCBs were present, the seller never expressed an unwillingness to assert control over the substances. The court next holds that plaintiffs' alleged response costs were not "necessary," as required under §107. The court holds that to the extent that site investigations and abatement actions were taken for purposes other than responding to an actual public health threat, the actions were not necessary. Also, plaintiffs' voluntary removal of asbestos to improve employee working conditions is not necessary and, therefore, not recoverable, because employee exposure to asbestos is not the type of threat redressable under CERCLA. Moreover, there was no regulatory requirement that the asbestos be removed. The court holds, therefore, that none of plaintiffs' costs, either expended to date or proposed to be spent in the future, are necessary costs of response. Regarding the underground storage tanks and electrical equipment containing petroleum by products on the site, the court holds that because they are nonleaking and do not contain hazardous substances as defined by CERCLA, plaintiffs' testing and analysis costs were not expended in response to a release and, therefore, are not recoverable. The court next holds that plaintiffs failed to comply with the national contingency plan (NCP). Plaintiffs failed to provide an opportunity for public comment and they performed none of the NCP's steps before their asbestos abatement or their PCB investigations. The court next holds that the prior seller established a third-party defense to liability under CERCLA. The seller's decision to sell the asset was not the proximate cause of the release of hazardous substances that purportedly caused plaintiffs' injury, and the salvaging and remodeling companies' violations of law were not foreseeable acts. The court next holds that plaintiffs cannot recover their attorney fees, because they are not prevailing parties.

Addressing plaintiffs' state tort claims, the court next holds that plaintiffs cannot establish an ultrahazardous activity claim that is based on the seller's sale of the former power plant to the salvage and demolition contractor. The sale of an industrial tract of land with a complex of buildings, some of which contain asbestos as a building material, does not form the basis of an abnormally dangerous activity cause of action. Moreover, the mere presence of hazardous substances does not compel a different result, because strict liability attaches only to abnormally dangerous activities, not to substances. Also, the owner of the property assumed the risk of the salvage and remodeling activities, and this assumption of risk bars any recovery by plaintiffs. Finally, the court holds that the Illinois statute of limitations bars plaintiffs' recovery. The lawsuit was not filed until more than 10 years had passed from the time plaintiffs knew or reasonably should have known of the presence of asbestos and all other site conditions.

[A prior decision in this litigation is published at 24 ELR 21021.]

Counsel for Plaintiffs
Joseph G. Nassif, Ronald L. Hack
Coburn & Croft
One Mercantile Ctr., St. Louis MO 63101
(314) 621-8575

Counsel for Defendant
Paul Venker, Edwin Noel
Armstrong, Teasdale, Schlafly & Davis
One Metropolitan Sq., St. Louis MO 63102
(314) 621-5070