GJ Leasing Co., Inc. v. Union Elec. Co.

Decision Date09 July 1993
Docket NumberCiv. No. 91-158-JPG.
Citation825 F. Supp. 1363
PartiesG.J. LEASING CO., INC., Slay Transportation Co., Inc., S.I. Warehousing Co., Inc., d/b/a Bi-State Warehousing, and S.I. Enterprises, L.P., Plaintiff, v. UNION ELECTRIC CO., Defendants.
CourtU.S. District Court — Southern District of Illinois

COPYRIGHT MATERIAL OMITTED

Joseph G. Nassif, Ronald L. Hack, Coburn & Croft, St. Louis, MO, for plaintiff.

Paul Venker, Edwin Noel, Susan Knowles, Armstrong, Teasdale, Schlafly & Davis, St. Louis, MO, for defendants.

MEMORANDUM AND ORDER

GILBERT, District Judge:

Pending before this Court are three motions for partial summary judgment. The first was filed by the defendant (Document No. 69), the second was filed by the plaintiffs (Document No. 74) and the third was filed by the defendant (Document No. 97).

BACKGROUND

This is a five count civil suit concerning environmental issues at a certain site located at # 2 Monsanto Avenue, Sauget, Illinois ("the Sauget site"). In Count I the plaintiff seeks 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 amounting to 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. Count II is a common law negligence claim premised on U.E.'s duty to the general public and to future owners of the Sauget site to exercise reasonable care in disposing of the hazardous substances on the Sauget site and/or to disclose the unreasonable risk created by the disposal to subsequent vendees. Count III is a willful and wanton conduct claim premised on the same conduct as Count II. Count IV is an ultrahazardous activity claim which alleges that U.E.'s disposal of hazardous substances at the Sauget site was an abnormally dangerous and ultrahazardous activity. And finally, Count V is brought pursuant to the Resource, Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6903, et seq. This Count requests the Court to enjoin U.E. from further violations of RCRA; enter judgment in the plaintiffs favor and order U.S. to notify the proper Illinois state agency of the existence of the underground storage tanks at the Sauget site and to properly close the tanks; and to order U.E. to pay the plaintiffs' costs of this litigation. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, § 113 of CERCLA, 42 U.S.C. § 9613(b), 28 U.S.C. § 1367(a), and 42 U.S.C. § 6972(a)(1)(A).

FACTS

Union Electric ("U.E.") generated electricity at its Cahokia Power Plant ("the Site") for over fifty years at Sauget, Illinois. The Sauget site was decommissioned in 1976 due to economic factors. (U.E. Ex. 1, Statement of Uncontroverted Facts, ¶¶ 4, 5; U.E. Ex. 5, Phased Unmanning of Cahokia Power Plant Report; U.E. Ex. 6, Baker Depo. pg. 40; U.E. Ex. 7, Arras Depo. pg. 86-89). In 1978, U.E. issued bid invitations for the purchase of the Sauget site (U.E. Ex. 9, Union Electric Bid Invitation for Cahokia Power Plant Facility, pg. 1) and included a bid specification memorandum that stated all proposed work under any arrangement where U.E. was to retain ownership was to comply with OSHA and EPA rules and regulations (U.E. Ex. 10, Bid Specifications for Disposition of Cahokia Power Plant at C-3). Also, equipment that contained any material that was declared hazardous, i.e., PCBs, asbestos, etc. was to be disposed of by legally accepted means (U.E. Ex. 10, Bid Specifications for Disposition of Cahokia Power Plant at C-1). The bid specifications went on to clarify that all "improvements and equipment" were to be purchased "as is — where is"; that U.E. "does not warrant that the property is of merchantable quality nor that it can be used for any particular purpose;" that the purchaser "accepts the property in place and its present condition, and recognizing the hazards involved"; and that "no consideration will be granted for any misunderstanding of the site conditions, material or equipment, construction and features of the structures" (U.E. Ex. 10, Bid Specifications for Disposition of Cahokia Power Plant at pg. 1, D-1, D-2).

Nineteen prospective bidders responded to U.E.'s solicitation and were allowed to inspect the Sauget Site. Out of twelve proposals to purchase the property and the nonexcluded equipment in its entirety, the ultimate purchaser with a bid of nearly $1,600,000.00 was, G & S Motor Equipment Company ("G & S"). Prior to bidding on the project G & S and its joint venturer Sarnelli Brothers ("Sarnelli") toured the Sauget site as well as did Eugene Slay, representing G.J. Leasing. In connection with the Slay's proposal, Slay had retained the services of William Uhrig of Remelt, Inc. of Englewood, Colorado, an experienced salvage contractor (U.E. Ex. 15, Eugene Slay Depo. 3/30/92, pg. 31, 32 & 58; U.E. Ex. 2, Eugene Slay Depo. 3/16/92, pg. 63). During Slay's personal tour of the facility he described its condition as being in excellent condition — a "nine" on a scale of one to ten (U.E. Ex. 15, Eugene Slay Depo. 3/30/92 pg. 25-29, 60, 62, 80-82).

Prior to the closing transaction with U.E., and after the G & S was awarded the winning bid, G & S received several proposals concerning the property including an offer from Eugene Slay ("Slay") who had unsuccessfully submitted a bid to U.E. (U.E. Ex. 14, Sarnelli Depo. pg. 11).

On December 21, 1978, U.E. entered into an executory contract with G & S for the sale of the Sauget Site pending Illinois Commerce Commission ("ICC") approval (U.E. Ex. 17, G & S — Union Electric Real Estate Sale Contract, pg. 11, ¶ 15). On May 29, 1979, after receiving ICC approval, the U.E. and G & S sale transaction was finalized (U.E. Ex. 17, G & S — Union Electric Real Estate Sale Contract; U.E. Ex. 18, Union Electric Quit Claim Deed to G & S Motor Equipment Company Bill of Sale; and U.E. Ex. 20, Assignment and Assumption).

On March 29, 1979, prior to the consummation of the U.E. and G & S transaction, Slay entered into a Letter of Intent with G & S and Sarnelli for the purchase of the Site (U.E. Ex. 1, Statement of Uncontroverted Facts, ¶ 6; U.E. Ex. 21, Letter of Intent). It was later formalized into a real estate contract dated April 23, 1979, (U.E. Ex. 22, Slay Warehousing Company and G & S Motor Equipment Company Real Estate Contract) that was contingent upon the U.E./G & S sale transaction.

Immediately following closing, G & S sold the property and equipment to Slay by quit-claim deed and the personal property and fixtures were sold "as is", expressly excluding warranties of "merchantable quality" or for "particular purpose" (U.E. Ex. 24, Bill of Sale Between G & S Motor Equipment Company and Eugene P. Slay and Joan Slay, pg. 2-3).

Following the conveyance, Sarnelli entered into a lease agreement with Slay to maintain salvage operations on the Sauget Site. Pursuant to that lease agreement, Sarnelli was to remove the smokestacks and level the floors in the power house building, remove all debris and all of its materials and equipment (U.E. Ex. 25, Lease and Easement Agreement, ¶ 4). If Sarnelli failed to remove any covered property, Slay reserved the right to remove the property at Sarnelli's expense (U.E. Ex. 25, Lease and Easement Agreement, ¶ 1(b)).

Prior to starting salvaging operations, Sarnelli informed Slay's Chief Operating Officer and in-house lawyer, Ted Tahan, that he would be removing asbestos at the Sauget site and thereafter advised EPA and his bonding company (U.E. Ex. 14, Sarnelli Depo. pg. 24-25). Thereafter, on July 2, 1979, Sarnelli advised EPA that he was removing asbestos from the site and simultaneously informed his bonding company and Slay (U.E. Ex. 14, Sarnelli Depo. pg. 24; U.E. Ex. 27, Letter from Sarnelli Brothers, Inc. to EPA). Mr. Slay admitted receiving the letter and stated that he probably would have sent it to Ted Tahan (U.E. Ex. 15, Eugene Slay Depo. 3/30/92, pg. 88-89).

In 1985, nearly eight years after they purchased the property, the Slay's began rehabilitating the building to convert it into a warehouse for general storage (U.E. Ex. 28, Schwartz Depo. pg. 16-17; U.E. Ex. 26, Lueken Depo. pg. 14-20). In doing so, Slay's removed the remnants of Sarnelli's salvaging. The remnants contained scrap metal, insulation, piping and equipment that was abandoned by Sarnelli, however, no attempt was made to test the insulation for asbestos containing materials prior to taking action (U.E. Ex. 26, Lueken Depo. pg. 34). Slay contends that he had no knowledge of the extensive amounts of hazardous materials on the Sauget Site and thus, was out additional amounts of money to remove it in response.

STANDARD OF REVIEW FOR MOTIONS FOR SUMMARY JUDGMENT

A Court may grant summary judgment only if the party seeking summary judgment demonstrates that no genuine issue of fact exists for trial and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(e); Wilson v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 841 F.2d 1347, 1354 (7th Cir.1988). If that showing is made and the motion's opponent would bear the burden at trial on the matter that forms the basis of the motion, the opponent must come forth with evidence to show what facts are in actual dispute. Celotex Crop. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Donald v. Polk County, 836 F.2d 376, 379 (7th Cir.1988). Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1222 (7th Cir.1984).

When the parties do not dispute the factual basis of a motion for summary...

To continue reading

Request your trial
11 cases
  • Aviall Services, Inc. v. Cooper Industries, LLC
    • United States
    • U.S. District Court — Northern District of Texas
    • 11 Agosto 2008
    ...of consistency with the NCP is separate from the issue of liability." (citing Amoco Oil, 889 F.2d at 668)); G.J. Leasing Co. v. Union Elec. Co., 825 F.Supp. 1363, 1379 (S.D.Ill.1993) ("This Court interprets the Fifth Circuit to say that a prima facie case may be made without proof that the ......
  • GJ Leasing Co., Inc. v. Union Elec. Co., Civ. No. 91-158-JPG.
    • United States
    • U.S. District Court — Southern District of Illinois
    • 6 Junio 1994
    ...recognized that there is no dispute that the Site in question is a facility as defined by § 9601(9). G.J. Leasing Co. v. Union Electric Co., 825 F.Supp. 1363 (S.D.Ill.1993). However, courts have held that CERCLA does not apply to asbestos that is incorporated into walls and ceilings of buil......
  • Raytheon Co. v. McGraw-Edison Co.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 13 Octubre 1997
    ...(E.D.Wis.1996); see also, Environmental Transp. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503 (7th Cir.1992); G.J. Leasing Co., Inc. v. Union Elec. Co., 825 F.Supp. 1363 (S.D.Ill. 1993). However, in VME Americas, the issue came before the Court on a motion for summary judgment. The Court examined......
  • Dartron Corp. v. Uniroyal Chemical Co., Inc., 1:94-CV-119.
    • United States
    • U.S. District Court — Northern District of Ohio
    • 11 Julio 1995
    ...that have examined this issue have concluded that such a duty does not exist under common law. See, e.g., G.J. Leasing Co. v. Union Elec. Co., 825 F.Supp. 1363, 1372 (S.D.Ill.1993); Wilson Auto Enterps., Inc. v. Mobil Oil Corp., 778 F.Supp. 101, 104 (D.R.I.1991); John Boyd Co. v. Boston Gas......
  • Request a trial to view additional results
1 books & journal articles
  • Chapter 14 ENVIRONMENTAL LAW IN THE OIL PATCH-MORE PATCH, LESS OIL
    • United States
    • FNREL - Annual Institute Vol. 40 Rocky Mountain Mineral Law Institute (FNREL)
    • Invalid date
    ...substance. See AM Int'l Inc. v. Int'l Forging Equipment Corp., 982 F.2d 989 (6th Cir. 1993); G.J. Leasing Co. v. Union Electric Co., 825 F. Supp. 1363 (S.D. Ill. 1993). It would be interesting to ask the government to reconcile its broad reading of the arranger liability theory as it applie......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT