48. Notice to the public and opportunity to comment must be provided regardless of whether a removal or remedial action is performed. See 40 C.F.R. § 300.700(c)(6)(6) (1990). Again, plaintiffs took no effort to give notice to or to involve the public in any meaningful way before they undertook their abatement efforts. They did not even seek input from any federal, state or local agencies before taking action.
49. Plaintiffs failure to provide an opportunity for public comment bars their recovery. See Sherwin-Williams Co. v. City of Hamtramck, 840 F. Supp. 470 (E.D. Mi. 1993) (failure to provide public meetings and opportunity to participate in decision behind remedial actions was a "material and substantial departure from the NCP" and bars recovery of response costs -- regulatory involvement is not a substitute for public comment); Gussin Enterprises, Inc. v. Rockola, 1993 U.S. Dist. LEXIS 4579 (N.D. Ill. April 13, 1993). See also County Line Investment Co. v. Tinney, 933 F.2d 1508, 1514 (10th Cir. 1991) (a remedial action is not in substantial compliance with the 1990 NCP if there has been no opportunity for public comment).
50. Plaintiffs performed none of the NCP's steps prior to their asbestos abatement or their PCB, flammable fluids or underground storage tank investigations. Plaintiffs did not create a cleanup plan or any decisional document which explained the reasons for their activities, evaluated public health risks, or assessed remedial alternatives to the selected remedy. Due to their failure to follow any of the specific requirements of the NCP, plaintiffs' costs are not consistent with the NCP and, therefore, not recoverable. See Channel Master Satellite Sys. Inc. 748 F. Supp. at 379-380 (E.D. N.C. 1990) (failure to make any effort to comply with the NCP in its cleanup plan bars cost recovery -- plaintiffs failed to analyze impact of cleanup method on public health or environment, evaluate public health risks posed by the contaminants at issue, or reference any federal regulations in preparing its cleanup plan). Ambrogi, 750 F. Supp. at 1258 (investigative costs are not recoverable where consistency with NCP -- a required prerequisite -- has not been demonstrated).
51. This Court concludes that because plaintiffs were only able to prove one of the four prima facie elements necessary to recover response costs under CERCLA, they have failed to satisfy their burden of proof with respect to all past and future actions at the Cahokia Power Plant. Accordingly, the plaintiffs cannot recover under CERCLA.
6. U.E. Has Established a Third Party Defense to Liability Under CERCLA.
52. No liability under § 9607(a) can be imposed if the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by an act or omission of a third party. 42 U.S.C. § 9607(b). Section 9607(b) affords a complete defense to CERCLA liability. In re Hemingway Transport Inc. et al v. Kahn, 993 F.2d 915, 932 (1st Cir. 1993). See also Environmental Transportation Systems, Inc. v. Ensco, 969 F.2d 503, 507 n.3 (7th Cir. 1992). To establish a defense under § 9607(b)(3), a defendant must demonstrate that: (1) the third party was not an employee or agent; (2) the acts or omissions of the third party did not occur in connection with a direct or indirect contractual relationship to the defendant; (3) a third party was the sole cause of the release of threatened release of hazardous substances; (4) the defendant exercised due care with respect to the hazardous substances and took precautions against foreseeable acts and omissions of the third party. See Kelley v. Thomas Solvent Co., 714 F. Supp. 1439, 1446 (W.D. Mich. 1989).
53. At all times relevant hereto, Sarnelli and G&S were acting as independent entities and not as agents of U.E. Sarnelli's salvaging activities occurred "in connection with" and pursuant to the Slay Warehousing/G&S real estate contract and the Slay/Sarnelli Lease and Easement Agreement which expressly contemplated and provided for salvaging activities to occur at the Site. Slay had the ability, the opportunity and the obligation as owner/lessor to control Sarnelli's activities at the Site. Ownership implies authority to control, even if that authority is not exercised. United States v. Velsicol Chemical Corp., 1988 U.S. Dist. LEXIS 17123 (W.D. Tenn. 1988).
54. Under CERCLA, "sole cause" means proximate or legal cause. Lincoln Properties v. Norman Higgins, 823 F. Supp. 1528, 1540 (E.D. Ca. 1992). It is uncontroverted that Sarnelli's salvaging operations and Schwartz's subsequent rehab were the sole cause of the release of asbestos of which plaintiffs now complain. "But for" Sarnelli's and Schwartz's operations and what plaintiffs claim were their failure to comply with federal regulations, asbestos would not have been released at the Site.
55. Renovation projects involving asbestos are regulated under the NESHAP regulations of the Clean Air Act. NESHAP requirements apply to both the facility owner and the contractor:
The facility owner or operator, by purchasing the services of the demolition or renovation contractor, acquires ownership and control of the operation and would, therefore, be the "owner" for the purposes of this standard [NESHAP]. Therefore, this standard applies to both the facility owner or operator.
49 Fed. Reg. 13658 (April 5, 1984). (Defendant's Exh. HT). Sarnelli was aware of these regulations and informed both Eugene Slay and EPA of his intent to abide by the NESHAP requirements. U.E. had no authority to supervise Sarnelli's activities. Schwartz was not even aware of the regulations, although he should have been as should have other Slay employees. U.E. had no knowledge of or ability to control Schwartz's actions.
56. U.E.'s decision to sell a corporate asset was not the proximate cause of the release of hazardous substances which have purportedly caused plaintiffs' injury. Moreover, Sarnelli's and Slay's violations of the law are not foreseeable acts. Accordingly, U.E. is entitled to the presumption that the removal of equipment from its facility would be coordinated in accordance with applicable regulations. Had Sarnelli and Schwartz done so, there would not have been a "release" of asbestos. Therefore, the Court finds that U.E. has established its third party defense under 42 U.S.C. § 9607(b) and is not liable under CERCLA.
7. Plaintiffs' Cannot Recover Their Attorney's Fees.
57. The plaintiffs seek to recover their attorneys' fees for their CERCLA case. Because, based upon this opinion, they are not prevailing parties, therefore, they are not entitled to recover their attorneys' fees.
THE ULTRAHAZARDOUS ACTIVITY CLAIM
1. Plaintiffs Cannot Establish An Ultrahazardous Activity Claim As A Matter of Law.
58. It is a question of law whether U.E.'s sale in 1979 of a former power plant, full of useless equipment and hazardous substances, to a salvage and demolition contractor constitutes an abnormally dangerous activity for which U.E. is strictly liable. G.J. Leasing, 825 F. Supp. at 1373; See also Indiana Harbor Belt R. Co. v. American Cyanamid Co., 916 F.2d 1174, 1176 (7th Cir. 1990).
59. Substantial precedent exists to find that the Supreme Court of Illinois would treat as authoritative the provision of Section 520 of the Restatement 2nd of Torts ("Restatement") which sets out six factors to guide the Court in determining whether an activity is an abnormally dangerous one. 825 F. Supp. at 1373. See Indiana Harbor Belt, 916 F.2d at 1176 (7th Cir. 1990); See also Dominick's Finer Foods, Inc. v. Amoco Oil Co., 1993 U.S. Dist. LEXIS 17668 (N.D. Ill, 1993); Continental Building Corp. v. Union Oil of California, 152 Ill. App. 3d 513, 504 N.E.2d 787, 789, 105 Ill. Dec. 502 (1987).
60. These factors are:
(a) Existence of a high degree of risk of some harm to the person, land or chattels of another;