ELR Citation: ELR 21039
No(s). 94-2972 (7th Cir. May 4, 1995)

The court holds that the sale of land containing a decommissioned asbestos-insulated power plant does not constitute disposal or arranging for the disposal of a hazardous substance under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that asbestos is a hazardous substance within the meaning of CERCLA. The court next holdsthat the district court did not clearly err in finding that there was no asbestos leaking at the time of the sale, and therefore that there was no "disposal" of a hazardous substance when the former owner sold the property. The release of asbestos inside a building, with no leak outside the building, is not governed by CERCLA. The court holds that the district court did not clearly err when it found that the primary purpose and likely effect of the sale was not to bring about the removal of asbestos in circumstances that would make the release of fibers into the environment outside the plant inevitable or highly likely. The court rejects the current owner's argument that the law of the case doctrine barred the district court from finding that the property had not been sold for purposes of demolition. On motion for summary judgment, the district court found that there was a genuine issue of material fact concerning the purpose of the sale, not that demolition had been the purpose. The court next holds that the district court did not clearly err in holding that even if the former owner were a disposer or an arranger of disposal it would not be liable for the current owner's cleanup costs, because these costs are not "necessary" response costs within the meaning of CERCLA. The current owner's expert investigator did not recommend removal of any of the loose asbestos; instead, he recommended restricting workers' exposure and avoiding grain storage.

Turning to the current owner's state tort-law claim, the court holds that the former owner is not strictly liable, because the ownership or operation of a building that contains asbestos insulation is not an abnormally hazardous activity. The asbestos is safe as long as it is not allowed to leak, and that can be prevented by taking feasible precautions. The court also holds that the tort claim is also barred by Illinois' five-year statute of limitations for claims of property damage caused by an abnormally dangerous activity.

[Previous decisions in this litigation are published at 24 ELR 21010 and 25 ELR 20408.]

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

Counsel for Defendant
Thomas B. Weaver
Armstrong, Teasdale, Schlafly & Davis
One Metropolitan Sq., St. Louis MO 63102
(314) 621-5070

Before POSNER, Chief Judge, FLAUM, Circuit Judge, and McDADE, District Judge.^*