 removal [25 ELR 20415] of the asbestos from the pumphouse. FCA submitted a bid on May 25, 1990 for $ 36,848.00. (Plaintiffs' Exh. 113, pg. A00199). Ultimately, CMS chose the lowest bid of $ 7,400.00 and had the asbestos removed by Environmental Rehab in 1991. (Plaintiffs' Exh. 114). Prior to its removal, Environmental Rehab sent notice to the state of Illinois of its plan to remove asbestos from the Site.
75. The cost of the work completed by FCA Services, from October 23, 1989, until March 29, 1990, in removing the asbestos from the boiler room and the turbine room section of the building is being sought as part of the plaintiffs' damages in this case. However, the Court finds that the pump house was demolished so plaintiffs could construct a boiler room for a steam boiler and not for any environmental clean-up concern. (J. Paris Depo. pp. 46-47) (Guy Slay Depo. p. 62). Also, Environmental Rehab failed to comply with IEPA's Notification of Demolition and Renovation requirements. (Defendant's Exhs. ES, ET).
76. FCA submitted a proposal to remove asbestos from the roof of the power plant building, as well as possible asbestos containing floor tile, tile mastic, pipe insulation and transite boards from the electrical bay area of the building. Plaintiffs seek a declaration as to U.E.'s liability as to those not yet incurred costs.
77. The Court finds that all of the asbestos removal done to date and all that has been proposed are the voluntary acts of the Slay organization for their own business reasons in enhancing their use of the property.
78. As to what issues remain regarding PCB's, the plaintiffs' search for PCBs at the Site has been exhaustive. While four transformers (two on the roof and two on poles inside the building) containing PCBs have been found, U.E. has taken complete responsibility for them by seeing they were promptly and properly removed and disposed of. There is no evidence that these transformers leaked or of any residual contamination. Nevertheless, plaintiffs' quest for finding residual PCB contamination continued. Plaintiffs' expert Bob Johnson testified that from 1988 through 1992 he sampled Mississippi river water, basement water, transformer substation capacitors, electrical equipment, drums of oil, sump pump sediment, transformers and various other electrical equipment, looking for PCBs. When the initial tests came back negative, the plaintiffs were not satisfied, and they sent samples to California to be sampled by a supposedly more sophisticated lab. All of the test results, from whatever source and however analyzed, indicated levels well below regulatory concern. (Plaintiffs' Exhs. 52, 118, 119, 132, 143) (Testimony of R. Johnson, W. Shifrin). Plaintiffs' counsel came to the same conclusion in their Environmental Assessment which concluded that "No PCB contamination of regulatory significance has been found inside the building to date." (Plaintiffs' Exh. 110, p. 3).
79. There are four partially underground tanks located at the Site. They were the subject of Count V of plaintiffs' Third Amended Complaint — the RCRA Citizens' Suit Count — which this Court has already dismissed. To the extent they remain in the case for plaintiffs' remaining counts, the Court finds that the tanks are either empty or contain very small residual amounts of petroleum products. Petroleum products are excluded from CERCLA. (Defendants Exh. HY) (Testimony of R. Johnson, W. Shifrin). Further, there is no evidence of contamination in the area around the underground tanks. (Testimony of R. Johnson, W. Shifrin).
80. Based on the testimony adduced, the Court finds that neither the PCB contamination, the oils in the transformers and other electrical equipment, the underground storage tanks, nor any other conditions at the Site present a threat of risk to public health or the environment to require their remediation pursuant to CERCLA.
81. The Court finds that the plaintiffs did not present sufficient evidence to support a finding that the conditions at the Site present an actual threat to public health or the environment. The costs associated with testing transformers, drums, electrical equipment and underground storage tanks were not necessary to address any threat at the Cahokia Site. In fact, such testing merely confirms that no such threat exists. Also, the costs associated with Schau's industrial hygiene survey were not caused by releases or threatened releases of hazardous substances. In fact, as noted above, Schau concluded that there are no releases or regulatory concern at the Site. Schau's report was part of plaintiffs' overall corporate plan to evaluate its properties and was not taken in response to an actual threat to public health or the environment.
82. The following are costs that the plaintiff asserts are response costs for which recovery is sought: $ 189,909.38 for FCA to perform the removal from the boiler room (Plaintiffs' Exh. 163); $ 7,400.00 for Environmental Rehab's removal of asbestos from the pumphouse (Plaintiffs' Exh. 115); $ 1,221.25 for Dave Schau's 1988 inspection and report; another $ 863.00 was spent for Mr. Schau's 1992 services (Plaintiffs' Exh. 152); various samplings were performed to obtain answers on possible hazardous substances at the Site for a total costs of (found in Plaintiffs' Exhibits 144, 145, 146, 160, and 204) $ 32,668.80.
83. Plaintiffs presented no evidence that they even considered, much less complied with, the requirements of the NCP prior to undertaking the asbestos abatement actions.
84. Plaintiffs' Environmental Assessment was performed after FCA's abatement action and therefore does not constitute a Preliminary Assessment under the NCP. Plaintiffs presented no evidence that the NCP was considered or followed in drafting or performing the Environmental Assessment. Furthermore, that document makes no reference to the NCP or its requirements. Also, the NCP was not considered when Schau, FCA, or Environmental Rehab performed asbestos-related work. (Testimony of D. Schau, R. Modlin, E. Krzak). In short, plaintiffs presented no evidence that it complied with any requirement of the NCP.
85. Renovation projects involving asbestos are commonplace. A detailed regulatory scheme has been developed to assure that these projects are undertaken safely. (Defendant's Exhs. HG, DM). Plaintiffs' expert and removal contractor testified that he does this work everyday and he agrees it can be done safely. (Depo. E. Krzak p. 17-18). Defendant's expert agrees. (Testimony of W. Shifrin).
86. Defendant's real estate expert Ted Martin, Chairman of the Board of the Turley Martin Company, testified by deposition that he visted the Site on behalf of several companies who were interested in bidding on the plant. Mr. Martin testified that the sale of industrial property in 1979 was a common occurrence and that many of these sales involved industrial properties containing asbestos. (Depo. T. Martin 20-21, 29-33). Certainly, a building with the characteristics of the Cahokia plant was appropriately located in Sauget, Illinois, a predominately industrial community. Moreover, owning, selling, and buying a building that has asbestos and some equipment with flammable materials does not itself create an abnormally dangerous activity. (Testimony of D. Schau; Testimony of R. Johnson; Testimony of W. Shifrin). Furthermore, solong as regulatory guidelines were followed, asbestos removal projects can be performed safely and without undue risk now and in 1979. (Testimony of D. Schau). (Testimony of W. Shifrin).
87. Defendant's expert Walter Shifrin testified to each of the six factors on ultra-hazardous activity set forth in the Restatement (Second) of Torts, § 520. (Defendant's Exh. HZ). After analyzing each factor in detail, he offered his opinion that U.E.'s sale of a property containing asbestos, trace PCB residuals and alleged flammable fluids was not an ultrahazardous activity. The Court concurs with his opinion that U.E. did not engage in an ultrahazardous activity as a matter of law.
(4) That such release caused the plaintiff to incur necessary costs consistent with the NCP.
42 U.S.C. § 9607(a). See Kerr-McGee Chemical Corp. v. Lefton Iron & Metal, 14 F.3d 321 (7th Cir. 1994). In a private CERCLA action, the plaintiff bears the burden of establishing that each of the prima facie elements exist. See Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir. 1989); Channel Master Satellite Systems, Inc. v. JFD Elec. Corp., 748 F. Supp. 373, 381 (E.D.N.C. 1990).
2. CERCLA only governs materials defined as "hazardous substances" under CERCLA. See 42 U.S.C. § 9601(14). Asbestos is such a hazardous substance. 40 C.F.R. § 302.4; see also National R.R. Passenger Corp. v. NYC Housing Auth., 819 F. Supp. 1271 (S.D.N.Y. 1993). However, CERCLA specifically excludes petroleum and petroleum byproducts from the definition of "hazardous substances." 42 U.S.C. § 9601(14).
1. Plaintiff's Asbestos Removal is Not Included Under CERCLA.
3. This Court has