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G.J. LEASING, CO. v. UNION ELEC.

June 6, 1994

G.J. LEASING, COMPANY, INC., and S.I. ENTERPRISES, L.P., Plaintiffs,
v.
UNION ELECTRIC, Defendant.



The opinion of the court was delivered by: J. PHIL GILBERT

 GILBERT, Chief Judge:

 This matter is before the Court following a bench trial on the plaintiffs', G.J. Leasing Company, Inc., d/b/a Cahokia Marine Service, and S.I. Enterprises, L.P., claim against the defendant, Union Electric, seeking damages for violations of the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. The relief sought by the plaintiffs include damages equalling the plaintiffs' response costs incurred as a result of the release or threatened release of hazardous substances at the Site, plus interest, as well as attorney's fees and costs; and a declaratory judgment in the plaintiffs' favor and against Union Electric ("U.E.") holding that U.E. is liable for all response costs to be incurred by the plaintiffs in the future. The plaintiffs also seek damages in Count IV, an ultrahazardous activity claim, which alleges that U.E.'s disposal of hazardous substances through the sale of the Sauget Site for the purpose of demolition was an abnormally dangerous and ultrahazardous activity. *fn1" This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 9601 et seq. After considering the testimony, exhibits, arguments of counsel, and supporting memoranda, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).

 I. Findings of Fact

 The following facts have been stipulated to by the parties:

 1. The plaintiff, S.I. Enterprises, L.P. is a Missouri limited partnership.

 2. The plaintiff G.J. Leasing Company, Inc., d/b/a Cahokia Marine Service ("CMS") is a Missouri corporation.

 3. The defendant, Union Electric ("U.E.") is a Missouri corporation.

 4. U.E. owned a power generating facility on property located at #1 Monsanto Avenue in Sauget, Illinois from 1923 until 1979.

 5. The electric generating equipment was located in the power plant.

 6. On December 21, 1978, U.E. entered into an executory contract with G&S for the sale of the Site along with certain of its equipment.

 7. The sale was contingent upon U.E. obtaining consent of the Illinois Commerce Commission ("ICC").

 8. On March 29, 1979, Slay Warehousing Co., Inc., a Missouri corporation, entered into a Letter of Intent with G&S Sarnelli, for the purchase of the Sauget Site. Pursuant to the Letter of Intent, G&S and Sarnelli were to sell the real estate to Slay Warehousing and were to retain the right to remove for salvage those materials that were not necessary for the operation of a tank farm and trucking operation.

 9. Sometime after April 23, 1979, and before May 29, 1979, Slay Warehousing assigned its rights in the real estate contract to Eugene P. Slay and Joan Slay.

 10. On May 29, 1979, U.E. sold the property to G&S for nearly $ 1.6 million. On the same day, G&S sold the property for $ 1,000,000.00 to Eugene and Joan Slay. All property was sold "as is."

 11. On or about February 3, 1988, the Slays transferred the Cahokia Site to S.I. Enterprises, L.P. by warranty deed. The following facts are findings made by this Court:

 1. Eugene Slay is the Chief Executive Officer of all the plaintiff entities. He, together with members of his family, own and control all of the plaintiff entities. Slay Industries is the umbrella organization for the plaintiff entities. (Testimony of E. Slay).

 2. Mr. Slay began his career working for his father's business, Bee Line Trucking, which specialized in local transportation and delivery services. Eventually, Slay expanded his father's operations into tankage, trucking, barging and warehousing. (Testimony of E. Slay). Judge Paul Simon, Mr. Slay's long time attorney, described Eugene Slay as a sophisticated and knowledgeable businessman. Slay's companies have stored and transported a variety of other hazardous substances over the years, including such materials as caustic potash, ammonium nitrate, benzene and sulfuric acid. (Testimony of Glen Slay).

 3. It is Mr. Slay's practice to rely on certain key employees, such as Ted Tahan, Paul Simon, and Ray Stratmeyer, in managing the day to day operation of his enterprise. (Testimony of E. Slay). These employees are also knowledgeable and experienced businessmen.

 5. The Court agrees with the plaintiffs' expert David Schau's testimony that, based upon his review of various U.E. health and safety documents, U.E. appeared at all times to comply with OSHA regulations regarding worker exposure. Schau further testified that he saw no evidence that U.E. violated NESHAP or OSHA regulations during its ownership of the Site. (Testimony of D. Schau).

 6. U.E. knew asbestos fibers were hazardous to worker health and undertook two asbestos surveys in 1973, of Cahokia employees who had to work with asbestos. (Plaintiffs' Exh. 8). U.E. knew, as a result of these surveys, that any handling of asbestos could cause exposures above levels set by the government. U.E. also knew that the protective gear worn by workers and methods to control releases (such as spraying water) were ineffective, under conditions where dust was prevalent, in reducing asbestos exposure to a safe level. (Plaintiffs' Exh. 8).

 7. During the plant's operation, U.E. was meticulous about the condition of its plant, its cleanliness and its repair. As a matter of corporate policy, U.E. imposed strict maintenance requirements on its facilities. (Testimony of R. Weidenbenner; E. Dille). Insulation on pipes was always well maintained and was loose only during repair. Transite boards were always intact and "somebody would have gotten fired" if the plant was left in a disheveled condition. (Testimony of R. Carter; R. Weidenbenner). Similarly, equipment was serviced regularly and in such a manner as to minimize damage to the equipment or the facility.

 8. The buildings on the Site include a large power plant used at one time by U.E. to generate electricity, several large above-ground storage tanks, four underground storage tanks, a warehouse, a truck maintenance facility, and an office building. The power plant is partially built out into the Mississippi River.

 9. The power plant is divided into three sections-- the boiler, the turbine room, and the river bay. There were 24 boilers in the plant and six turbine generators. The turbine generators and boilers were fixed and bolted in place. (Testimony of R. Carter, R. Weidenbenner, C. Kind, M. Gatewood).

 10. Without repeating all of the testimony regarding all of the systems in the plant, the Court finds the following to be an accurate description of the systems in the power plant. There were two precipitator systems located on the roof of the building which had been out of use since 1972, when the plant converted from coal to oil. There were transformers located both inside the building and on the outside deck of the river bay. The exterior transformers transported power under the Mississippi River and to the eastern shore of Missouri through submarine cables. All of the transformers contained heat transfer oils, but with the exception of two transformers on the roof relating to the precipitator system and two pole mounted transformers which were installed by U.E. during its plant decommissioning, none of the transformers were contaminated with polychlorinated biphenyls (PCBs). (Testimony of R. Carter) (Defendant's Exh. CX). There were valves in the areas of the power plant which were below water level, which prevented flooding into the plant. (Testimony of R. Carter). Sump pumps also prevented water from collecting in the lower levels of the basement. (Testimony of P. Brendel). There were also numerous wires, connectors, and other electrical equipment, including long copper buss-bars which transported electrical current from the generators to the transformers for distribution within the U.E. system. Some of this electrical equipment also contained non-PCB contaminated heat transfer fluids.

 12. When Cahokia was built, it was the principal base load electrical generating plant which carried power throughout the entire U.E. system. After the Labadie and Rush Island Power Plants became operational, however, Cahokia was used for peak period only. (Testimony of R. Baudendistel). By 1975, Cahokia had become the least efficient plant in U.E.'s system. Mr. Earl K. Dille, President of U.E., testified that given the amount of electricity capable of production at Cahokia, it did not make economic sense to continue operation of the Cahokia plant. The plant's production was limited to 300 megawatts, less than one-fourth the production capacity of a single generator in one of U.E.'s newer plants. (Testimony of R. Weidenbenner; R. Baudendistel, E. Dille). In addition, load forecasts for 1976-1977 indicated a reduced demand for electricity. (Plaintiff's Exh. 10).

 13. Accordingly, in 1975, U.E. conducted an economic feasibility study of the Cahokia Power Plant which contemplated the retirement of the plant through a step-by-step program. (Testimony of R. Baudendistel). The decision to decommission the Site was based on the plant's age, maintenance and labor costs. The plant had to be fully staffed even if operated only sporadically during peak periods. (Testimony of R. Baudendistel).

 14. As a result of the study, on October 1, 1975, Mr. Dille approved the implementation of the phased unmanning of the Site. The target date for decommissioning and retirement was 1977. (Plaintiff's Exh. 43).

 15. U.E.'s fundamental reason for retirement of the Cahokia Power Plant was its age. Most equipment at the plant was 40 to 50 years old and generated large maintenance costs. Spare parts for this equipment were expensive and increasingly difficult to procure, and it required an inordinate amount of manpower to operate and maintain. The old equipment also could not be economically fitted with necessary environmental controls. (Plaintiff's Exh. 15, p. 10). In fact, the manufacturers were no longer making the spare parts for the turbine. (Testimony of R. Baudendistel).

 16. The presence of asbestos in structural components or other hazardous substances was not a factor in U.E.'s decision to decommission the Cahokia Power Plant. (Testimony of R. Baudendistel, E. Dille, M. Gatewood).

 17. By April of 1976, the first and second phases of the Cahokia Unmanning were completed and staffing at the plant was reduced accordingly. (Plaintiff's Exh. 11). Bob Weidenbenner, plant superintendent at Cahokia, testified that prior to completion of the phased shutdown, the plant was modified for close down by draining boilers, water storage systems and piping. Equipment was placed in a mothball status. (Defendant's Exh. CE; Plaintiff's Exhs. 12 and 191; Testimony of R. Weidenbenner). However, the power plant was left in operational condition and capable of generating electricity. (Testimony of R. Weidenbenner).

 18. In October 1976, the Cahokia Power Plant was completely unmanned, heat was turned off, and the gate was locked. (Weidenbenner Trial Test., Plaintiffs' Exh. 71).

 19. In 1977, the substation in the river bay section was closed, but U.E. continued to maintain the property, although it ceased operational maintenance and capital expenditures. Since the Engineering and Construction Department had no staff maintenance personnel, this task was contracted out. U.E. entered into a servicing contract with a security firm to protect the property and hired an electric company to perform maintenance at the Site on an as needed basis. (Plaintiffs' Exhs. 10, 12, 13, 43; Testimony of E Dille, R. Baudendistel). U.E. also installed provisional electrical service to provide necessary lighting and to keep sump pumps in the lower level of the plant operational. (Plaintiffs' Exhs. 181, 47).

 20. After the Cahokia Power Plant had been decommissioned, its economic viability as an operating power plant within the U.E. system continued to decline. U.E. considered other alternatives for the Site, including using it as a training center, and even the possibility of developing the Site for a nuclear power plant. U.E. did not know, however, what the value of the Site might be if sold "as is" or if sold after all buildings were demolished and, therefore, it decided to put out bid packages to test the market for the Site. (Testimony of E. Dille, R. Baudendistel).

 21. U.E.'s Purchasing and Real Estate Departments coordinated the development of the bid request package. The bid package was designed to solicit a variety of proposals in an effort to create the best market and highest value for the property. Bidders were required to tour the plant and to make their own evaluation as to the value of the facility. (Plaintiffs' Trial Exh. 70; Testimony of M. Gatewood).

 22. The bid invitation contemplated essentially four alternatives: (1) sale of the property with the successful bidder assuming full responsibility and liability; (2) sale of equipment with demolition of the power house structure and restoration of the Site; (3) salvage only -- all mechanical and electrical equipment to be removed; and (4) razing of structures and restoration of the Site. The preferred alternative was an outright sale of the property with the new buyer assuming full responsibility and liability because by this time it was thought that the property probably would not be needed in the U.E. system, but the Company was still open to the other alternatives. Contractors were required to "visit the Site and become thoroughly familiar with existing conditions to which the work [was] in anyway related and become fully informed as to the extent and character of the work required." The bid deadline was March 10, 1978. (Plaintiffs' Exh. 17).

 23. The term "salvage" simply meant used equipment which retained asset value. It did not connote equipment that was valueless or incapable of use. (Testimony of M. Gatewood, C. Kind). U.E. envisioned that a prospective bidder who was interested in salvaging mechanical and electrical equipment would dismantle and disconnect the equipment for reuse or resale. (Testimony of M. Gatewood, C. Kind, L. Kurowski, E. Dille). U.E. believed that there were many potential purchasers for the equipment at the Site, including other power companies, both in the United States and in South America, as well as corporate users of large amounts of electrical power.

 24. The bid specification contained a listing of principal equipment at the Site including its manufacturer, weight, and age data. (Plaintiffs' Exh. 16). U.E. did not guarantee the accuracy or completeness of the information contained in the bid specification and the bidder assumed the responsibility for establishing all dimensions, the exact number, size, model number, make and condition and age of all items. In addition, no consideration was granted for "any misunderstanding of the Site conditions, materials or equipment, construction or features of the structures." (Plaintiffs' Exh. 16).

 25. U.E. made no effort to hide the condition of the property. The property was sold "as is" which indicates that the seller was not making any warranty. The fact that asbestos, PCBs and other hazardous substances may have been present at the Site was specifically disclosed to prospective bidders in the bid specification. (Testimony of M. Gatewood). Moreover, U.E. required all bidders to visit the Site and accommodated all prospective purchasers during their Site inspections.

 26. None of the bidders ever questioned U.E. regarding the presence of PCBs or asbestos in the facility. (Testimony of C. Kind). G&S Motor Equipment Co. ("G&S"), the successful bidder, was well aware of the presence of asbestos in the plant, was aware of asbestos regulations at the time and specifically contemplated the cost of asbestos removal in making its bid. (Newmark Depo. p. 47; Sarnelli Depo. p. 42). The information provided in the bid request package was adequate to allow bidders to submit an appropriate bid. (Sarnelli Depo. pp. 19-20). Slay testified that he was well aware of the term "as is", that he had sold and purchased trucks and equipment in that manner, and that as he understood the term to mean the buyer accepted all responsibility for the property, whatever its condition, once it was purchased. (Slay Depo. 3/30/92 pp. 36-39). Slay also expected his attorneys and others in his employ to read the bid specification and to become fully familiar with its terms.

 27. The bid specification was sent out to potential bidders suggested by other utility companies, companies discovered by searching trade publications, companies who had previously expressed an interest in the Site, scrap dealers, demolition companies and, also local companies who might be interested in riverfront access. (Testimony of C. Kind, M. Gatewood; Plaintiffs' Exh. 18). Other companies, such as Slay Industries, contacted U.E. to receive the bid package. (Defendant's Exhs. GM, GN). Ultimately, 82 companies received copies of the bid package. (Plaintiffs' Exh. 20).

 28. Carl Kind toured the entire plant with prospective bidders from the lower levels to the roof. (Testimony of C. Kind). In his tours of the plant, Kind never noticed any leaks in the roof, torn insulation, disrepair or broken windows. He described the conditions as neat and orderly. (Testimony of C. Kind). He answered each bidder's questions as best as he could and he never tried to hide any equipment or condition from any prospective bidder.

 29. During March of 1978, the Mississippi River rose to flood stage and a leak developed in the condenser pits, flooding the lower level of the power plant. (Testimony of P. Brendel). Prospective bidders, including Mr. Slay, were advised of the flood and inspection tours suspended. (Plaintiffs' Exh. 200). Paul Brendel testified that flood waters reached as high as 25 grade. After the flood, U.E. hired a contractor to clean up the basement. This cleaning was done with firehoses. The water was then filtered and pumped from the basement and discharged into a basin on the property. Oil floating on top of the water was suctioned by hose and removed. Motors for the sump pumps were removed, repaired and reinstalled in the condenser pits. (Plaintiffs' Exh. 57). Brendel described the basement as being in broom clean condition after the clean-up. (Testimony of P. Brendel).

 30. G&S visited the Site three separate times before submitting its bid. During its initial visit to the Site, G&S could not view the lower level of the plant because of the flood. Mr. Newmark, G&S's President, testified that he made a second trip to the Cahokia Power Plant specifically so that he could view the basement area and equipment. Newmark walked through the plant a third time the day before G&S submitted its bid to verify the condition of the plant. (Newmark Depo. p. 37). In addition, Sarnelli Brothers, Inc. ("Sarnelli"), G&S's undisclosed joint venturer, visited the Site on numerous occasions to evaluate the facility and its contents. (Sarnelli Depo. pp. 8-9).

 31. Mr. Slay and others in his organization also made multiple tours of the facility before making their bids. (Plaintiffs' Exh. 96). During Slay's personal tour of the facility, even though he never got out of his car to inspect the plant closely, he described the facility as being in excellent condition -- a "nine" on a scale of one to ten and said that it was a "first class facility." Slay was impressed with the cleanliness of the property, referring to it as "meticulous", "spotless", "exceptionally clean", (Slay Depo. 3/30/92, pp. 25-29, 60), and he did not feel any particular hazard in walking through the facility. (Slay 3/30/92 Depo. p. 60; Testimony of E. Slay).

 32. As noted, bids on the Cahokia property were solicited from 82 firms and resulted in 19 responses. Fourteen companies elected to bid on the entire property and improvements, with bids ranging from $ 47,000 to nearly $ 1.6 million. Four bidders submitted bids in excess of $ 1 million for the entire property on an "as is" basis. The sale price was established through an open and competitive market in which plaintiffs themselves participated. Maury Gatewood reviewed the analysis and bids.

 34. On September 19, 1978, U.E. notified G&S that it was the successful bidder. (Defendant's Exh. Y; Plaintiffs' Exh. 69). Shortly thereafter, U.E. petitioned the Illinois Commerce Commission for approval of the sale of the Cahokia Power Plant to G&S. At a hearing before the ICC, Dick Shea, a Senior Buyer in the Purchasing Department, testified that G&S had no intention of demolishing the power plant building. Shea testified that he had spoken to the president of G&S who informed Shea that G&S intended to sell or lease the tank farm and to retain the plant structure and operate it for warehousing or as an industrial park. (Plaintiffs Exh. 15, pp 51-52) (Sarnelli Depo. pp. 9-10). These were, in fact, Sarnelli's intentions as he believed the structure and property had great value as a warehousing facility due to its unique location. This is also what aroused Slay's interest in the Site. He understood that the Site could be of great value as an "intermodel facility" incorporating warehousing with transportation of materials by barge, rail and truck. (Testimony of P. Simon; E. Slay). However, U.E. was also aware that these plans would require some demolition of portions of the facility. (Plaintiffs' Exhs. 15, 28).

 35. On December 21, 1978, U.E. entered into an executory contract with G&S for the sale of the Cahokia Site along with certain of its equipment. (Defendants Exh. AL). U.E. notified Slay Industries that G&S was the successful bidder. (Plaintiffs' Exh. 97).

 36. Mr. Slay ultimately contacted Sarnelli Bros. and discussed purchase of the property. (Testimony of Eugene Slay). The discussions resulted in a letter of intent entered between Slay Warehousing Co., Inc. and G&S and Sarnelli dated March 29, 1979. (Stipulated Facts). Pursuant to the letter of intent, Slay Warehousing was to purchase the real estate and Sarnelli was to retain the right to remove for salvage those materials that were not necessary for the operation of a tank farm and trucking operations. (Plaintiffs' Exh. 98).

 37. On April 2, 1979, Sarnelli informed Slay that Sarnelli and G&S had received a bona fide offer of 1.1 million dollars for the property. (Defendants Exh. AU). Under the terms of the option, Slay had ten days in which to exercise or waive its right to purchase the property.

 38. So that Slay could complete his research into "all the factors involved" regarding the property, Slay requested an extension of the option deadline to April 25, 1979. (Plaintiffs' Exh. 95). Slay hired Ted Jockenhoefer, an engineering consultant with the engineering and architecture firm of Warren & Van Praag, Inc. to evaluate the property. Slay and Simon both testified that they had confidence in Jockenhoefer and his firm from having worked with them on other transactions and that they believed him to be a competent engineer. (Testimony of P. Simon; E. Slay). Jockenhoefer contacted U.E. regarding the property and informed Larry Kurowski, a Senior Real Estate Representative, that Slay had an option to purchase the property from G&S and that he had been hired to perform a feasibility study. Slay wanted to use the plant property as a trucking terminal including an office building and truck servicing building. (Defendant's Exh. AV). The entire Site (mooring rights, tank farm, power plant building) all had value to Mr. Slay. (Testimony of E. Slay).

 39. On April 23, 1979, Slay Warehousing, entered into a sale contract with G&S for the purchase of the Cahokia Site and improvements. In the sale contract, Slay agreed to pay G&S one million dollars and to grant Sarnelli a leasehold interest in the property and to allow salvaging to occur at the site. (Plaintiffs' Exh. 105). Sarnelli testified that he had the right to salvage anything he wanted from the Site. (Sarnelli Depo. p. 18). Prior to entering into the lease agreement, Sarnelli and Ted Tahan discussed the condition in which Sarnelli was to leave the property at the conclusion of the salvaging operations, (Sarnelli Depo. p. 17), and everyone understood that Sarnelli was to leave the property in clean condition and, further, that he would be responsible for any damage his operations caused to the property.

 40. On May 29, 1979, after U.E. received approval for the sale from the ICC, both closings occurred, however, the transactions were distinct and independent. Slay did not participate in U.E.'s and G&S's closing. Similarly, U.E. did not participate in the G&S and Slay closing. Since U.E. was not a party to the Slay - G&S contract, it "was no business of U.E. what Slay wanted to do with the property." (Testimony of P. Simon). At no time did U.E. enter into a contractual relationship with Slay or Sarnelli. (Testimony of E. Slay, P. Simon; Sarnelli Depo. pp. 20-22; Plaintiffs Exh. 79). Further, Sarnelli was not U.E.'s agent, and U.E. had no authority to direct or control Sarnelli's activities. (Sarnelli Depo. pp. 21-22).

 41. The realty was sold by quit-claim deed and the personal property and fixtures were sold "as is", expressly excluding warranties of "merchantable quality" or for "particular purpose". As noted, Slay understood this term to mean that the buyer took the property in whatever condition he found it with "the risk associated with fixing the equipment [to] be on the person purchasing the equipment." (E. Slay Depo. 3/30/92 p. 38).

 42. On that same day, the lease between Sarnelli and the Slays was signed. Plaintiffs' Exh. 106. Slay left the negotiation of the sale contract and lease agreement up to his attorneys, Paul Simon and Ted Tahan. (Testimony of E. Slay). The Slay - G&S contract expressly contemplated and provided for salvaging activities to occur at the Site. Specifically, as an express condition to the contract, Sarnelli was granted access to the facility "for the purpose of removing and salvaging therefrom the Personal Property". The contract provided that "any inorganic debris may be dumped by Sarnelli at such locations on the property as Sarnelli and [Slay] may mutually agree", and that upon completion of Sarnelli's salvaging operations, Sarnelli was to "remove all debris . . . and its materials and equipment." Further, the contract provided that Sarnelli "be responsible for any damage or deterioration caused by its salvage operations to the access roads and property." (Plaintiffs' Exh. 105). The only rent Sarnelli was to pay was one dollar per month. (Plaintiffs' Exh. 106).

 43. Judge Simon testified that the lease agreement between Slay and Sarnelli was necessary because G&S owned the property and was conveying it to Slay; therefore, Sarnelli could not have access to the property without the lease. (Testimony of P. Simon). It was common knowledge to Simon that Sarnelli's operations would necessarily create debris. Accordingly, Simon sought to protect his client's interest by requiring the following:

 
(i) Lessee shall be responsible for any damage or deterioration to access roads and property caused by its salvage operations on the Cahokia Power Plant, and maintain the roads in good condition satisfactory to the Lessor;
 
(ii) Lessee's salvage operations shall not commence until Lessee has provided to Lessor's satisfaction liability insurance and a performance bond;
 
(iii) Lessee shall keep in operation the bilge pumps in the basement of the Leasehold Property;
 
(iv) Lessee shall remove the chimneys or smokestacks and repair the holes in the roof in a manner mutually acceptable to Lessor and Lessee;
 
(v) Lessee shall place the brick contained in said chimneys or smokestacks following this removal in areas of the plant designated by Lessor;
 
(vi) Lessee shall remove all debris and all of its materials and equipment - masonry debris to be dumped at such locations as Lessor designates;
 
(vii) Lessee shall be liable for any damage occasioned by or from plumbing, gas, water, sprinkler, steam, or other pipes or sewage or the bursting, leaking or running of any pipes.

 (Plaintiffs' Exh. 106).

 45. In mid-July of 1979, following Jockenhoefer's report, Sarnelli began his equipment removal activities. Prior to starting such activities, Sarnelli called Tahan and told him that he would be performing asbestos removal activities at the Site. (Sarnelli Depo. p. 24). Thereafter, on July 2, 1979 and in accordance with then applicable NESHAP (National Emission Standards For Hazardous Air Pollution) regulations, Sarnelli advised EPA that he was removing asbestos from the Site. Sarnelli simultaneously informed his bonding company and Slay that "[the] equipment will be stripped by hand of any and all asbestos covering after thorough wetting and any resulting asbestos will be placed in plastic bags and removed to an acceptable dump for disposal." (Plaintiffs' Exh. 108).

 46. Based on the common knowledge in the industry that asbestos would be found in power plants of the Cahokia Site vintage, the Court finds that this knowledge certainly would have been known to Slay's agents, William Uhrig and Ted Jockenhoefer, if not also to others in his organization. Also, based upon the facts that U.E.'s bid specification clearly mentioned that asbestos likely would be found at the Site (Defendant's Exh. 16) and that Slay received notice from Sarnelli that he was about to begin removal of asbestos from the Site, the Court finds that Mr. Slay and others in his organization knew of the existence of asbestos at the Site at least by July 2, 1979.

 47. Sarnelli performed the operations consistent with the common practice in the salvage industry in the 1979 to 1981 time frame. (Testimony of D. Schau).

 48. Dismantling the boilers and turbines created large holes in the floors of the boiler room and turbine room. (Testimony of M. Schwartz). Debris created from the dismantling, including bricks, pipe, and asbestos insulation, was allowed to fall into the holes. (Testimony of M. Schwartz).

 49. The buss-bars were removed by smashing asbestos transite tunnels and removing the bars. During the salvage of other valuable metals and equipment, asbestos was cut, torn, and stripped from equipment and thrown into compartments in the electrical bay area. (Testimony of M. Schwartz).

 50. Sarnelli did salvage work on the roof of the building, leaving debris and other materials behind. Among the materials salvaged were motors and blowers. (Testimony of M. Schwartz).

 51. When Sarnelli completed the dismantling and salvage work, the interior of the power plant, its roof, and the pumphouses were in shambles. The boiler room had been gutted. (Testimony of M. Schwartz and Hesse; Hesse photos numbered Plaintiffs' Exhs. 162A-L). Debris was on the floor. Pipes were cut and hanging. Windows and insulation were damaged. The lower levels of the building were filled with water on which oil and debris were floating. (Testimony of M. Schwartz).

 52. Despite efforts by Slays to get Sarnelli to remove the debris, Sarnelli refused. A performance bond which had been taken out to insure Sarnelli's work was proper proved ...


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