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Yellow Freight Sys., Inc. v. ACF Indus., Inc.

ELR Citation: 26 ELR 20899
Nos. No. 4:92-CV-2585 CAS, 909 F. Supp. 1290/(E.D. Mo., 04/10/1995)

The court holds a seller of land containing buildings and machinery with polychlorinated biphenyls (PCBs) and asbestos is not liable to the purchaser for response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that buildings on the site are facilities within CERCLA's meaning, because PCBs and friable asbestos, both hazardous substances, are located therein. The court next holds that a release within CERCLA §101(22)'s meaning occurred. Asbestos was released, because it became friable and broke away from its piping. The unsecured presence of PCBs at the site in sumps and machinery pits, on floors, and within transformers constituted a threatened release. The court also holds that the seller is not a covered person under CERCLA §107(a) for either asbestos or PCB contamination. The purchaser failed to meet its burden to establish that the seller disposed of hazardous substances at the time the seller owned the site. No evidence indicated that friable asbestos entered the environment before the sale. While the purchaser established that it did not bring PCBs onto the site, it did not meet its burden to show that the seller was responsible for the release. After the sale date, the purchaser abandoned the buildings and the machinery therein, allowing vandalism to occur. Thus, it is impossible to determine when PCBs leaked onto the site. The court also holds that the sale did not constitute an arrangement for disposal of hazardous substances under CERCLA §107(a)(3). The purchaser failed to meet its burden to establish that the seller's motivation for selling the property was to dispose of hazardous substances.

The court notes that even if the seller were a covered person, it would not be liable to the purchaser for investigation and abatement costs, because the purchaser failed to establish that such costs were necessary under CERCLA. No evidence suggests that there existed an immediate threat to the public health or the environment or that PCBs or asbestos would likely migrate into the environment. The court also holds that the purchaser's investigation and abatement costs are inconsistent with the 1985 and 1990 national contingency plans (NCPs). The purchaser failed to conduct adequate site investigations and evaluations that encompassed applicable NCP factors, such as determining the necessity of removing the contamination, the extent of the public health or environmental threats, outlining cleanup alternative cleanup methods, and providing an opportunity for public comment on the cleanup activities.

Counsel for Plaintiff
Russell W. Baker Jr.
Spencer, Fane, Britt & Browne
1400 Commerce Bank Bldg.
1000 Walnut St., Kansas City MO 64106
(816) 474-8100

Counsel for Defendant
Eric R. Riess
Thompson & Mitchell
525 W. Main St., Belleville IL 62220
(618) 277-4700