Petition for Writ of Certiorari — Sycamore Industrial Industrial Park Park Associates Associates v. Ericsson, Inc. (No. 08-1070)

‘Supreme Court, U8.

70 OD | FILE

No. 08- 081070 FEB 17 2009

IN THE

Supreme Court of the United States

SYCAMORE INDUSTRIAL PARK ASSOCIATES,

Petitioner,

v.

ERICSSON, INC.,

Respondent.

ON PETITION FOR A WRiT OF CERTIORARI TO THE

UNITED StaTES Court OF APPEALS

FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Ss

WILLIAM J. ANAYA

Counsel of Record

Hat R. Morris

GEORGIA LOGOTHETIS

ARNSTEIN & LEHR LLP

120 S. Riverside Plaza

Suite 1200

Chicago, II]linois 60606

(312) 876-7100

Counsel for Petitioner

221135 ce

COUNSEL PRESS

(800) 274-3321 »* (800) 359-6859

OFFICE OF THE CLERK

i

QUESTIONS PRESENTED

1. Whether “passive” disposal of a solid waste/

hazardous substance (e.g., asbestos insulation)

through abandonment in place creates liability

under the Resource Conservation and Recovery Act

(“RCRA”) and the Comprehensive Environmental

Response, Compensation, and Liability Act

(“CERCLA”).

2. Whether RCRA’s statutory ambit that includes

“other discarded. material” as a solid waste is

broader than CERCLA.

rh)

PARTIES TO THE PROCEEDING

Sycamore Industrial Park Associates, an Illinois

general partnership, is Petitioner in this Court, was the

appellant before the United States Court of Appeals for

the Seventh Circuit, and was the plaintiff before the

United States District Court for the Northern District

of Illinois. Ericsson, Inc. is Respondent in this Court,

was appellee in the Seventh Circuit Court of. Appeals

and was the defendant before the Northern District of

Illinois.

CORPORATE DISCLOSURE STATEMENT

Sycamore Industrial Park Associates is an Illinois

general partnership with two partners: Robert Boey and

Sycamore Industrial Park, LLC. Sycamore Industrial

Park, LLC is an Illinois limited liability company with

Robert Boey as its sole member.

til

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ i

PARTIES TO THE PROCEEDING .......... ii

CORPORATE DISCLOSURE STATEMENT .._ ii

pe POR Et get yy 4): ere pena iii

TABLE OF APPENDICES .................. Vv

TABLE OF CITED AUTHORITIES cikeceus vi

ret EE 5A hdc ees eeeer wes 1

Rae te st a rr ere l

SIAL USM LV OLV EDD cc ccccicceccessacues 1

RR EE, ko bcc oxesenn eens dadessactieees 2

A. Statutory Background ............... ~ 2

B. Fectiel BOCKMPOONE 2.0.5 cccccecccsiees 4

C. Procedural Background ............... 5

iv

Contents

Page

REASONS FOR GRANTING THE PETITION 6

I. The Courts Of Appeal Are In Conflict

Concerning Whether “Active” Conduct Is

Required For Liability Under For RCRA

SRI, 4 6 06 5h 0b 04K O NN es Keka ce 6.

A. Passive Conduct Is Sufficient For

NE OL orl ooh ede ce bad at 11

B. Passive Conduct May Be Sufficient

RE 65.54 Herb hu kena cadens 13

C. Passive Conduct Is Not Enough To

Establish Liability ................ 15

II. Review is Necessary to Ensure

Consistency of Application of the

Statutory Environmental Scheme Among

ee EE 4 cic kadas teas suases keys 17

be 8 ne ry er 22

Vv

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States

Court Of Appeals For The Seventh Circuit

Decided October 20, 2008 .................. la

Appendix B — Memorandum Opinion And Order

Of The United States District Court For The

Northern District Of Illinois, Eastern Division

PREOG TOMUSTY 9, DIGS oc cicccccccccssccece 16a

Appendix C — Order Of The United States

Court Of Appeals For The Seventh Circuit

Denying Petition For Rehearing Dated

PUOWOMINIOY TG, BOD 6c cdcciccccccccvecsccecs 3la

Appendix D — 42 U.S.C. § 6902 .............. 33a

Appendix E — 42 U.S.C. § 6903 .............. 36a

Appendix F — 42 U.S.C. § 6972 .............. 37a

Appendix G — 42 U.S.C. § 6973 .............. 45a

Appendix H — 42 U.S.C. § 9607 .............. 46a

Appendix I — 40 C.FR. § 261.2 ............05. 50a

vi

TABLE OF CITED AUTHORITIES

Cases

ABB Industry Systems, Inc.

v. Prime Technology, Inc.,

120 F.3d 351 (2d Cir. 1997) ..........0.006-

Amland Properties Corp.

v. Aluminum Co. of America,

711 F. Supp. 784 (D.N.J. 1989) ............

A & W Smelter & Refiners, Inc. v. Clinton,

146 F'3d 1107 (9" Cir. 1998) ......-..--05--

BCW Assocs., Ltd. v. Occidental Chem. Corp.,

No. 86-5947, 1988 WL 102641

(B.D. Pa. Sept. 29, 1988) .......-.cceceene

Bob’s Beverage v. Acme,

264 FE. 3d 692 (6° Cir. 2001) ....... 2. cc neee

Briggs & Stratton Corp.

v. Concrete Sales and Services,

20 F. Supp. 2d 1356 (M.D. Ga. 1998) .......

Carson Harbor Village Ltd. v. Unocal Corp.,

270 F.00 GSS ]™ Cir, ZO01) ... 2. nec ceceses

Page

City of Chicago v. Environmental Defense Fund,

Re Cie SP EEUPED S40 ccc nceetaabexenawes

2,9

vii

Cited Authorities

Page

Connecticut Coastal Fishermen’s Ass'n

v. Remington Arms,

989 F.2d 1305 (2d Cir. 1993) ................ 15

Couer D’Alene Tribe v. Asarco, Inc.,

280 F. Supp. 2d 1094 (D. Idaho 2003) ........ 8,14

Crofton Ventures Ltd. P’ship v. G&H P’ship,

SES FBG Soe (G" Cir. ZOOL) ..nccccccscccscss 7, ii

Emhart Indus., Inc. v. Duracell Int'l, Inc.,

665 F. Supp. 549 (M.D. Tenn. 1987) ......... 21

In re Hemmingway Transport,

108 B.R. 378 (Mass. 1989), aff’d 126 B.R. 6

(Mass. 1991), aff’d 954 F. 2d 1 (1* Cir. 1992) ... 7,12

Metal Trades, Inc. v. United States,

810 F. Supp 689 (D.S.C.1992) .............4.. 10

National Acceptance Co. v. Regal Products,

838 F. Supp. 1315 (E.D. Wis. 1993) .......... 21

Nurad, Inc. v. William E. Hooper & Sons Co.,

996 F.2d 887 (4% Cir. 1982) .............. 7.41, 8

Pakootas v. Teck Cominco Metals, Lid.,

452 F: 8d 1066 (9™ Cir. 2006) ................ 8, 14

Safe Air For Everyone v. Meyer,

S73 F. Sd 1066 (9? Cir, 2004) .... cc cccccces 9

viii

Cited Authorities

Page

Southfund Partners III v. Sears,

Roebuck and Co.,

57 F. Supp. 2d 1369 (N.D. Ga. 1999) ......... 7,12

Sycamore Industrial Park Associates v.

Ericsson, Inc.,

546 F.3d S47 (7" Cir, 20GB)... ccccccvccces 147

United States v. 150 Acres of Land,

204 F:8d 698 (6* Cir. 2000) ......cccecececss 7,15

United States v. CDMG Realty Co.,

96 F:8d 706 (8d Cir. 1996) ........ cece eeeees 8,14

United States v. Chapman,

146 F.3d 1166 (0? Cir, 1998) 2... cccvccccccess 14.

United States v. Fleet Factors Corp.,

821 F. Supp. 707 (S.D. Ga. 1993) ............ 21

United States v. Northernaire Plating Co.,

670 F. Supp. 742 (W.D. Mich. 1987) ......... 21

United States v. Ottati & Goss, Inc.,

630 F. Supp. 1861 (D.N.H. 1985) ............ 12

United States v. Waste Ind., Inc.,

734 F. Sd 168 (4 Cin, 1966) oni nc cccccccccccs 11

ix

Cited Authorities

Page

Statutes and Regulations

ET EOE Soc ccccoccscrccceccseseses 3,9

Ee passim

DM Ee PEIRCE) oc ccc cc ccccccccvecs passim

42 U.S.C. $ 6978(a) ........... Geb a e644 94008 3

EE Gas esas ses ticccevecsscocces 5

ek TE Eo. ¢ \ Se errr ee 3

EES eee ee 3

Other Materials

H.R. Rep. No. 94-1491, pt. 1 (1976), reprinted in

1976 UB.C.C.AN. 6288 ..............000:. 4, 20

1

OPINIONS BELOW

The Seventh Circuit’s opinion that gives rise to the

questions presented is reported as Sycamore Industrial

Park Associates v. Ericsson, Inc., 546 F.3d 847 (7 Cir.

2008), and is reproduced in the appendix. (App. 1). The

District Court’s opinion which the Seventh Circuit

affirmed is found at Sycamore Industrial Park

Associates v. Ericsson, Inc., Case No. 06 C 0768 (N.D.

Ill. January 9, 2008), and is reproduced in the appendix.

(App. 9). The Seventh Circuit order denying the petition

for rehearing is found at Sycamore Industrial Park

Associates v. Ericsson, Inc., Case No. 08-118 (7 Cir.

November 18, 2008) and is reproduced in the appendix.

(App. 22).

JURISDICTION

The judgment of the court of appeals was filed on

October 20, 2008. (App. 23). A timely petition for

rehearing was denied, by order, on November 18, 2008.

(App. 22). This Court’s jurisdiction is invoked under -

28 U.S.C. § 1254(1).

STATUTES INVOLVED

The pertinent statutory provisions of the Resource

Conservation and Recovery Act (“RCRA”) and the

Comprehensive Environmental Response, Compen-

sation, and Liability Act (“CERCLA”) are set forth in

the appendix. (App. 24-42).

2

STATEMENT

Petitioner, Sycamore Industrial Park Associates

seeks review of the decision of the Court of Appeals for

the Seventh Circuit that liability under RCRA and

CERCLA “require[s] affirmative action rather than

merely passive conduct,” such as abandoning asbestos

in place. Putting aside the several errors of facts that

plague the Seventh Circuit’s opinion,' and despite its

claim that the “vast majority of courts” are in accord,

the decision is at odds with several circuits that hold

that affirmative conduct is not required to implicate

environmental liability under RCRA and CERCLA.

Compounding its error, the Seventh Circuit, unlike the

other circuits, ignored the broad statutory ambit of

RCRA and, instead applied the narrower coverage of

CERCLA when analyzing whether RCRA covers

“passive” disposal or other “discarding” of asbestos.

A. Statutory Background

The Resource Conservation and Recovery Act,

42 U.S.C. §§ 6901-6992k, is a comprehensive

environmental statute that governs the treatment,

storage and disposal of solid and hazardous waste.

See City of Chicago v. Envtl. Def Fund, 511 U.S. 328,

331-332 (1994). RCRA’s primary purpose is to reduce

1 The panel repeatedly asserted that Petitioner claimed

that a disposal occurred due to the sale of the property.

Petitioner, however, has continuously maintained, and the record

below supports, that the disposal—here, the affirmative

abandonment of an asbestos-laden, useless heating system—

took place before the sale of the property.

3

hazardous waste and to ensure the proper treatment,

storage, and disposal of waste, “so as to minimize the

present and future threat to human health and the

environment.” 42 U.S.C. § 6902(b). Thus, RCRA imposes

strict liability upon “any person” who is contributing to

or who has contributed to the disposal of hazardous

substances that may present an imminent and

substantial endangerment to health or the environment.

42 U.S.C. § 6973(a).

RCRA defines “solid waste” as “any garbage, refuse,

sludge from a waste treatment plant, water supply

treatment plant, or air pollution control facility and other

discarded material[.]” 42 U.S.C. § 6903(27). The

regulations promulgated under RCRA define “discarded

material” as any material which is abandoned by being

disposed of, burned or incinerated or accumulated,

stored or treated before or in lieu of being abandoned

by being disposed of, burned, or incinerated. 40 C.F-R.

§ 261.2(a), (b). CERCLA incorporates these definitions.

RCRA’s citizen suit provision is broader than the scope

of the regulation and includes waste materials

generated by commercial activities, such as the

abandonment of asbestos in place.

RCRA provides for certain private causes of action

by citizens against violators. 42 U.S.C. § 6972. Section

7002(a)(1)(B) of RCRA authorizes citizens to bring a

private cause of action against any person who causes

or contributes to conditions which “may present an

imminent and substantial endangerment to health or

the environment” due to the disposal of a RCRA solid

or hazardous waste. 42 U.S.C. § 6972(a)(1)(B). Thus, in

a most fundamental manner, RCRA “defines” solid waste

4

to include both “disposed of” and “other discarded

_ material.” 42 U.S.C. § 6903(27). This definition certainly

broadens the ambit covered by citizen suit environmental

cases and is intentionally broader than CERCLA.

H.R. Rep. No. 94-1491, pt. 1 (1976), reprinted in 1976

U.S.C.C.A.N. 6238.

B. Factual Background

Prior to 1985, Ericsson owned a 28-acre property,

located in Sycamore, Illinois, for several decades. The

property contains nine buildings, which were, until 1985,

heated by a boiler-based heating system: The boilers

and heating system were connected to the other

buildings through a pipe network located outside of the

buildings both below ground and in pipe chases located

approximately 18 feet above ground. This heating

system, as was common when built, was covered with

easily removable, but now useless and abandoned,

asbestos-containing insulation.

In January 1983, Ericsson ceased all of its

manufacturing operations at the facility. In the winters

of 1988 and 1984, the boiler-based heating system was

experiencing difficulty and needed costly repair and

maintenance. By the spring of 1985, Ericsson chose to

abandon the boiler-based, asbestos-containing heating

system and, instead, installed natural gas unit heaters.

Upon installing the new heaters, Ericsson discontinued

use of the obsolete, deteriorated asbestos-containing

boiler-based heaters. Rather than properly dispose of

the deteriorating asbestos that was part of the heating

system, Ericsson chose to leave it, abandoned, in rafters

and throughout the various buildings. Thereafter,

Petitioner purchased the facility from Ericsson in 1985.

4)

In 2004, Petitioner discovered the asbestos abandoned

by Ericsson throughout the abandoned heating system.

Petitioner instituted a RCRA private enforcement action

to force Ericsson to remove and properly dispose of the

abandoned asbestos insulation and to reimburse Petitioner

for response costs that it had incurred or will incur in

removing the asbestos. Petitioner brought an action in

the United States District Court for the Northern District

of Illinois, pursuant to the citizen suit provision of RCRA,

42 U.S.C. § 6972(a)(1)(B), and pursuant to CERCLA,

42 U.S.C. § 9607.

C. Procedural Background

On January 9, 2008, the District Court granted

Ericsson’s motion for summary judgment and denied

Petitioner’s cross-motion. (App. 9). Although the

District Court found that Ericsson abandoned the

asbestos in place at the property prior to sale, it held,

as a matter of law, that “passive” disposal through

abandonment did not constitute “disposal” of a solid or

hazardous waste into or on any land or water. In addition,

the District Court applied CERCLA’s more limited

definitions to the RCRA claim. In affirming the District

Court, the Seventh Circuit departed from the reasoning

of other circuits by requiring “active” disposal and by

applying CERLCA coverage to RCRA. The Seventh

Circuit affirmed the decision of the District Court.

Petitioner petitioned the Seventh Circuit for rehearing

en banc. On November 18, 2008, the Seventh Circuit

denied Petitioner’s petition for rehearing. The Petition

is timely brought within ninety days of that ruling.

6

REASONS FOR GRANTING THE PETITION

This Court should grant review because the Circuits

are fundamentally divided over whether passive disposal

through abandonment is actionable under RCRA and

CERCLA. The Seventh Circuit’s decision requiring

“active” disposal evidences a deep split between the

circuits, in that the Seventh Circuit: (1) misinterpreted

the “disposal” requirement of the Resource

Conservation and Recovery Act (RCRA); (2) failed to

properly place environmental liability on those

responsible at the time of disposal rather than release

(“polluter pays”); (3) is at direct odds with those Circuits

holding that “passive” disposal is sufficient for liability;

and (4) is contrary to the fact that RCRA liability is

independent of and broader than CERCLA.

I.

The Courts Of Appeal Are In Conflict Concerning

Whether “Active” Conduct Is Required For

Liability Under For RCRA And CERCLA

In reasoning that Ericsson’s acknowledged

abandonment in place of the asbestos insulation did not

give rise to liability, the Seventh Circuit held that

“{a] plain reading of the ‘has contributed or is

contributing’ language of § 6972(a)(1)(B) compels us to

find that RCRA requires active involvement in handling

or storing of materials for liability.” Sycamore Industrial

Park Associates v. Ericsson, Inc., 546 F.3d 847, 854 (7"

Cir. 2008). The panel also found that there was no

“disposal” because Petitioner “cannot show that

7

Ericsson placed the asbestos into or on land or water,

emitted it into the air, or discharged it into water.”

Id. at 853.

The Seventh Circuit’s decision below is indicative

of the serious jurisdictional split that has developed

regarding whether liability under RCRA and CERCLA

requires some additional affirmative action rather than

so-called “passive” conduet, such as the abandonment

of asbestos in place. The Second?’ and Sixth® Circuits,

now joined by the Seventh Circuit‘, have developed a

view of RCRA and CERCLA requiring a higher

standard of affirmative action. In contrast, the Fourth

Circuit®, joined by several district courts in the First®

and Eleventh’ Circuits refuse to adopt such a “strained

reading” that limits liability to active conduct. United

States v. Waste Ind., Inc., 734 F. 2d 159, 164-65 (4" Cir.

2 ABB Indus. Sys. v. Prime Tech, 120 F. 3d 351 (2d Cir. 1997).

3 Bob’s Beverage v. Acme, 264 F. 3d 692 (6* Cir. 2001); U.S. vu.

150 Acres of Land, 204 F:3d 698 (6 Cir. 2000).

4 Sycamore Industrial Park Associates v. Ericsson, Inc.,

546 F.3d 847 (7 Cir. 2008).

5 Crofton Ventures Ltd. P’ship v. G&H P’ship, 258 F.3d 292

(4 Cir, 2001); Nurad, Inc. v. William E. Hooper & Sons Co., 996

F.2d 837 (4% Cir. 1982), cert. denied sub nom Mumaw v. Nurad,

506 U.S. 940 (1992).

° Inre Hemmingway Transport, 108 B.R. 378 (Mass. 1989),

aff'd 126 B.R. 6 (Mass. 1991), aff’d 954 F. 2d 1 (1% Cir. 1992).

7 Southfund Partners III v. Sears, Roebuck and Co., 57

F. Supp. 2d 1369 (N.D. Ga. 1999); Briggs & Stratton Corp. v.

Concrete Sales and Services, 20 F. Supp. 2d 1856 (M.D.Ga. 1998).

8

1984). The Third Circuit,’ Ninth Circuit® and a district

court in the Highth Circuit” leave open the possibility

that “passive” conduct could be sufficient for liability

under RCRA and CERCLA.

Petitioner recognizes that the decisions addressing |

the “active”/”passive” dichotomy arise under factually

distinct circumstances. The fundamental! principles

addressed in those cases — whether a party can only be

liable for their “active” conduct — are equally applicable

to the. question of whether abandoning of asbestos in

place gives rise to liability under RCRA and CERCLA.

The holding of the Seventh Circuit is instructive as

to what it considers the state of the law in the face of

this clear Circuit split: “(t]he vast majority of courts that

have considered this issue read RCRA to require

affirmative action rather than merely passive conduct —

such as leaving a[n asbestos laden] heating system in

place when selling the real estate that houses it — for

handling or storage liability.” (App. 8). Respectfully, this

conclusion is incorrect on several levels and is a

compelling reason requiring this Court’s review.

8 U.S. v. CDMG Realty Co., 96 F.3d 706 (3'¢ Cir. 1996)

® Pakootas v. Teck Cominco Metals, Ltd., 452 F. 3d 1066 (9%

Cir. 2006), cert. denied, Teck Cominico Metals, Ltd. v. Pakootas,

128 S.Ct. 858 (2008); Carson Harbor Village Ltd. u Unocal Corp.,

270 F.3d 863 (9** Cir. 2001), cert. denied, Carson Harbor Village

Ltd. v. Braley, 585 U.S. 971 (2002).

10 Couer D’Alene Tribe v. Asarco, Inc., 280 F. Supp. 2d 1094

(D. Idaho 2003).

9

As a threshold matter, taken together, CERCLA and

RCRA are comprehensive statutes governing the

handling, treatment, storage and disposal of solid and

hazardous wastes. See, e.g., City of Chicago v.

Environmental Defense Fund, 511 U.S. 328, 331 (1994).

These statutes’ primary purpose is to limit the harmful

effects of solid and hazardous waste and “to minimize

the present and future threat to human health and the

environment.” 42 U.S.C. § 6902(b). The strong public

policy underlying RCRA is underscored by its citizen

suit provisions. In RCRA, Congress specifically

authorized citizen suits “against any person... who has

contributed or who is contributing to the past or present

handling, storage, treatment, transportation, or disposal

of any solid or hazardous waste which may present an

imminent and substantial endangerment to health or

the environment.” 42 U.S.C. § 6972(a)(1)(B). Thus,

because of the remedial nature of these provisions,

liability should not be avoided on mere technicalities nor

should courts strain to find exceptions to liability.

Rather, the statutes should be liberally construed

consistent with their broad intent to protect the

environment. Safe Air For Everyone v. Meyer, 373 F.

3d 1035 (9th Cir. 2004).

As astarting point, RCRA defines “solid waste” as:

Any garbage, refuse, sludge from a waste

treatment plant, water supply treatment

plant, or air pollution control facility, and other

discarded material ... resulting from

industrial, commercial, mining and

10

agricultural operations and from community

activities|. ]

42 U.S.C. § 6903(27).

In the case of asbestos, there can be little serious

argument that abandoned-in-place asbestos insulation

that is not being used for its intended purpose is indeed

a solid or hazardous waste. Although it is not listed as a

hazardous waste regulated by the United States

Environmental Protection Agency (“USEPA”), asbestos _

is nonetheless a solid or hazardous waste within the

RCRA and CERCLA statutory definitions. See Metal

Trades, Inc. v. United States, 810 F. Supp 689, 697-701

(D.S.C. 1992).

However, the inquiry undertaken by the Seventh

Circuit was whether such a substance can be considered

“disposed of” or “handled” or “stored” or “otherwise

discarded” without active involvement (apparently,

something more than affirmatively choosing to leave it

in place in lieu of removing it). In deciding that it could

not, the Seventh Circuit joined those Circuits that

narrowly interpret these remedial statutes.

In stark contrast, other circuits give a far more wide-

ranging interpretation to the statutes, which is more in

accord with their overall remedial purposes. Indeed,

the interests implicated by this fundamental split are

enormous. If some measure of additional “affirmative

action” is required, then environmental! liability will be

limited to the time of discharge and eviscerate the time

honored tenet that the “polluter pays;” the class of

people potentially liable will be lessened and risk will

11

not be as efficiently spread; and caveat emptor will prevail.

However, should “passive” conduct be sufficient, the

remedial purposes of the statutory schemes will be better

implemented; risks will be more completely and equitably

shared; clean ups will be hastened as additional responsible

parties will bear responsibility for their waste generating

decisions, and will encourage more responsible

environmental behavior as one will not be able to simply

abandon a solid waste/hazardous substance without

attendant responsibility. Alternatively, while both lower

courts declined to acknowledge that abandonment in place

is an affirmative act of disposal, distinguishable from

merely migrating materials, abandonment of asbestos in

place is an affirmative act of disposal sufficient to create

liability under RCRA and CERCLA. Surely, one should

not be permitted to escape responsibility for a choice not

to act.

A. Passive Conduct Is Sufficient For Liability

The Fourth Circuit has explicitly held that active

conduct is not a prerequisite for liability under RCRA

or CERCLA, holding in United States v. Waste Ind.,

Inc. that only a “strained reading” of “disposal” would

require “active human conduct.” 734 F.2d 159, 164-65

(4" Cir. 1984). Nearly a decade later, in Nurad,. Inc. v.

William E. Hooper & Sons Co., 966 F.2d 837 (4" Cir.

1992), the Fourth Circuit held that the term “disposal”

in CERCLA has “a range of meanings,” and is not

limited to “only active conduct.” More recently, the

Fourth Circuit has reaffirmed Nurad’s holding. Crofton

Ventures Ltd. P’ship v. G&H P’ship, 258 F.3d 292, 297

(4 Cir. 2001).

12

Nothing in the Fourth Circuit suggests that the

predicate acts for liability under CERCLA or RCRA

cannot and do not encompass the intentional

abandonment of asbestos in place. The Seventh Circuit’s

imposition of an active participation requirement — that

Ericsson had to remove the materials and leave them

on the premises instead of just intentionally leaving them

on the premises — would yield unreasonable and unjust

results.

While there appears to be no First Circuit case that

has directly decided this issue, several district court

cases from the First Circuit suggest that the trend

among the courts in that circuit is to refrain from

imposing an active conduct requirement. For example,

in United States v. Ottati & Goss, Inc., 630 F. Supp. 1361

(D.N.H. 1985), the district court noted that “(t]he

definition of ‘disposal’ is quite broad... ‘[Slignificantly,

it includes within its purview leaking, which ordinarily

occurs not through affirmative action but as a result of

inaction or negligent past actions.’ Jd. at 1399. In

In re Hemmingway Transport, 108 B.R. 378, 382 (Mass.

1989), aff’d 126 B.R. 6 (D. Mass. 1991), aff’d 954 F. 2d 1

(1% Cir. 1992), the district court there similarly held a

“disposal” did indeed have a passive context.

Similarly, while the Eleventh Circuit has yet to

resolve the question of whether “disposal” requires

active conduct, several district court cases in that circuit

hold that there is no such requirement. See, e.g.,

Southfund Partners III v. Sears, Roebuck and Co., 57

F. Supp. 2d 1869 (N.D. Ga. 1999) (finding that the term

“disposal” includes the leaking and spilling of hazardous

materials from an uncapped tank caused by rainwater

13

displacing the hazardous materials). In Briggs &

Stratton Corp. v. Concrete Sales and Services, 20

F. Supp. 2d 1856, 1370 (M.D. Ga. 1998), the court held

that a “disposal” occurred for CERCLA purposes when

hazardous substances leaked from containers that were

abandoned on the property. Thus, although the

Eleventh Circuit has not spoken on the issue, courts in

that circuit have endorsed a passive theory for liability.

B. Passive Conduct May Be Sufficient For

Liability

The Ninth Circuit has rejected the passive disposal

theory in some circumstances, but has left the door open

regarding whether passive conduct at all can give rise

to liability under RCRA and CERCLA. In Carson

Harbor Village Ltd. v. Unocal Corp., 270 F3d 8638 (9%

Cir. 2001), cert. denied, Carson Harbor Village Ltd. v.

Braley, 535 U.S. 971 (2002), the circuit court concluded

that “active” conduct was necessary, and held the

migration of slag materials through a wetland was not a

“disposal.” However, as explained by the dissent, the

Ninth Circuit left open “‘disposal’ may include other

sorts of passive migration [which could include

abandoning asbestos in place].” Jd. As if commenting

on the jurisdictional spiit, the dissent in Carson Harbor

is instructive as to why a limitation on statutory

environmental cleanup liability requiring “active”

conduct is contrary to the purpose of RCRA and

CERCLA: “[{Requiring ‘active’ conduct] would allow a

property owner who discovers hazardous waste passively

migrating through the soil to escape all CERCLA

liability simply by selling the property to another.”

Carson Harbor, 270 F.3d at 891. In 2002, this Court, in

14

declining to grant certiorari, left this question

unanswered. See Carson Harbor Village Lid. v. Braley,

535 U.S. 971 (2002).

Several years later, in Pakootas v. Teck Cominco

Metals, Ltd., 452 F. 3d 1066 (9 Cir. 2006), cert. denied,

Teck Cominico Metals, Ltd. v. Pakootas, 128 S.Ct. 858

(2008), in the context of interpreting CERCLA’s

“release” requirement, the Ninth Circuit held that the

passive leaching of hazardous substances from slag was

sufficient to establish liability. See also A & W Smelter

& Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9 Cir.

1998); United States v. Chapman, 146 F.3d 1166, 1170

(9% Cir. 1998).

In United States v. CDMG Realty Co., 96 F.3d 706,

714 (8d Cir. 1996), the Third Circuit held that the

gradual passive migration of contaminants cannot be a

“disposal” for purposes of CERCLA, at least when the

migration originated from the direct placement of

contaminants in or on the soil. Although the court stated

that it was inclined to view “disposal” as always limited

to “active” migration, it recognized that some passive

migration under certain circumstances might constitute

a disposal. /d. The court also reserved judgment on

“whether continuous seeping of contaminants from a

hole in a drum constitutes [a] ‘disposal.”” /d. at n.3.

District courts in the Eighth Circuit have also left

open whether passive conduct can result in CERCLA

liability. In Cower D’Alene Tribe v. Asarco, Inc., 280

FE. Supp. 2d 1094, 1118 (D. Idaho 2003), the court held

that “[the] passive movement and migration of

hazardous substances by mother nature (no human

15

action assisting in the movement) is still a ‘release’ for

purposes of CERCLA in this case.” While the Asarco

case held that passive migration was sufficient to trigger

CERCLA liability for purposes of a “release,” it did not

address the issue of whether such conduct would be a

“disposal” under CERCLA.

C. Passive Conduct Is Not Enough To Establish

Liability

In United States v. 150 Acres of Land, the Sixth

Circuit held that unless there is “human activity,”

a “disposal” under CERCLA has not occurred. 204 F.3d

698, 706 (6" Cir. 2000). Similarly, in Bob’s Beverage v.

Acme, the Sixth Circuit reiterated its “active” conduct

approach by holding that a party cannot be found liable

under CERCLA unless the plaintiff demonstrates that

a release by that party “affected the incurrence of

response costs.” 264 F. 3d 692, 696 (6" Cir. 2001).

The need for guidance by this Court on the issue of

passive disposal is further evidenced by the fact that

there apparently exists even an internal split in the

Second Circuit, which has produced two opinions, one

seemingly endorsing an active participation requirement

and another opinion rejecting such a requirement.

In Connecticut Coastal Fishermen’s Ass’n v.

Remington Arms Co., 989 F.2d 1305 (2d Cir. 1993), the

defendant was a trap and skeet shooting club. Lead

shot and clay target fragments had been added to the

land and waters surrounding the club over a period of

nearly seventy years. Jd. at 1808. According to the

Second District, “none of the lead shot or the clay target

fragments [had] been removed from” the surrounding

16

property or waters. Jd. at 1310. The question presented

was similar to that presented to the Seventh Circuit in

this case: does “abandonment” require active human

participation? The Second Circuit answered this in the

negative, specifically stating that any view that RCRA

is limited to “affirmative acts” “clearly is too narrow

because it ignores legislative aim and fails to take into

account the often nonvoluntary acts of depositing,

spilling and leaking.” /d. at 1313.

However, in ABB Industry Systems, Inc. v. Prime

Technology, Inc., 120 F.3d 351, 359 (2d Cir. 1997), the

Second Circuit held that “mere passive migration”

during ownership does not trigger CERCLA liability.

Yet, like the Third Circuit, the Second Circuit qualified

its analysis, stating that it expressed “no opinion” on

whether leaking barrels might constitute a CERCLA

disposal.

These disparate decisions of the circuits that have

addressed the issue of whether RCRA or CERCLA

liability requires active participation indicate that there

is no consensus or trend among the circuits on this

critical question of statutory interpretation. This Court’s

direction is urgently needed to resolve whether some

form of additional active participation is necessary to

trigger RCRA and CERCLA liability.

17

I.

Review is Necessary to Ensure Consistency of

Application of the Statutory Environmental

Scheme Among the Circuits

RCRA’s citizen’s suit provision, at 42 U.S.C.

§ 6972(a)(1)(B), imposes abatement responsibility on

those who contributed to, or are contributing to

“the past or present handling, storage, treatment,

transportation or disposal of any solid or hazardous

waste which may present an imminent and substantial

endangerment to health or the environment.” Jd. This

provision is by its very nature broad and designed to

encompass the gaps in environmental coverage found

in CERCLA. Nevertheless, contrary to the statutory

scheme, the Seventh Circuit endorsed an approach by

which RCRA’s citizen suit provisions are subsumed

under CERCLA’ narrower statutory provisions.

A RCRA citizen suit requires a discrete and separate

analysis because the definition of “solid waste” is broader

than CERCLA’ statutory definition of hazardous waste.

As the Second District explained in Remington Arms:

The RCRA regulations create a dichotomy in

the definition of solid waste. The EPA

distinguishes between RCRA’s regulatory and

remedial purposes and offers a different

definition of solid waste depending upon the

statutory context in which the term appears

... Currently, RCRA authorizes two kinds of

citizen suits. The first, under § 7002(a)(1)(A),

42 U.S.C. § 6972(a)(1)(A), enables private

18

citizens to enforce the EPA’s hazardous waste

regulations and — according to 40 C.F.R.

§ 261.1(b)(1) — invokes the narrow regulatory.

definition of solid waste. The second type of

citizen suit, under § 7002(a)(1)(B), 42 U.S.C.

§ 6972(a)(1)(B), authorizes citizens to sue to

abate an “imminent and _ substantial

endangerment to health or the environment”

. Consequently, the broader statutory

definition of solid waste applies to citizen suits

brought to abate imminent hazard to health

or the environment.

Remington Arms, 989 F.2d at 1315. Yet, instead of

employing the separate citizen suit standard — as the

Fourth Circuit and other courts have consistently

employed — the Seventh Circuit truncated its analysis

and impermissibly converted the broader RCRA claim

into a narrower CERCLA claim.

The result of such an analysis is startling and.

contrary to the statutory scheme. The requirement of

additional “active” disposal creates the anomalous

situation that abandonment of dangerous materials in

place does not constitute a “disposal,” but that those

very same dangerous materials, if actively moved to

another location and abandoned would constitute

“disposal” trigging CERCLA and RCRA liability. Thus,

those Circuits requiring “active disposal” hinge RCRA

and CERCLA liability on whether the initial

abandonment of the hazardous materials was in place

or involved some sort of transportation to another

location. This approach creates a strong disincentive to

remedy potentially hazardous situations and, instead,

19

makes it better to abandon the same hazardous

materials in place and thereby escape responsibility

completely.

As if commenting on the need for this Court’s

guidance, the Fourth Circuit in Nurad stated:

It is easy to see how the district court’s

requirement of active participation would

frustrate the statutory purpose of

encouraging “voluntary private action to

remedy environmental hazards.” Under the

district court’s view, an owner could avoid

liability simply by standing idle while an

environmental hazard festers on his property.

Such an owner could insulate himself from

liability by virtue of his passivity, so long as

he transfers the property before any

response costs are incurred. A more

conscientious owner who undertakes the task

of cleaning up the environmental hazard

would, on the other hand, be liable as the

current owner of the facility, since “disposal”

is not a part of the current owner liability

scheme under 42 U.S.C. § 9707(a)(1).

Nurad, 966 F.2d at 845-46.

As the Fourth Circuit went on to note, “[a] CERCLA

regime which rewards indifference to environmental

hazards and discourages voluntary efforts at waste

cleanup cannot be what Congress had in mind.” Jd. And

yet that is precisely the type of indifference to

environmental hazards that is endorsed by the Seventh

20

Circuit’s unreasonably narrow interpretation of

CERCLA and RCRA. The legislative history of RCRA

makes clear that that its reach was not meant to be

limited in location:

[T]he reach of RCRA was intended to be

broad. It is not only the waste by-products of

the nation’s manufacturing processes with

which the committee is concerned: but also

the products. themselves once they have

served their intended purposes and are no

longer wanted by the consumer. For these

reasons the term discarded materials is used

to identify collectively those substances often

referred to as industrial, municipal or post-

consumer waste; refuse, trash, garbage and

sludge.

Id. at 2; see also H.R. Rep. No. 94-1491, pt. 1 (1976),

reprinted in 1976 U.S.C.C.A.N. 6238, 6240.

Certainly, “post-consumer waste”—commonly

known as “garbage” or “trash”—irrespective of location

is covered by CERCLA and RCRA." Accord Amland

1! The Seventh Circuit further departed from both the plain

language of the statutes when it ruled that there was no

“disposal” of asbestos because the asbestos was contained in

the building. In doing so, the Seventh Circuit redrafted Section

6903(b), demanding evidence of “of soil, water or air

contamination” to demonstrate that a material has been placed

“into or on any land or water.” Sycamore, 46 F.3d at 851-853.

That decision equated the CERCLA “into or on any land or

water” requirement with the RCRA “in the environment”

requirement, and therefore severely and unreasonably restricts

the reach of RCRA. Congress simply did not so provide.

21

- Properties Corp. v. Aluminum Co. of America, 711

F. Supp. 784, 791-92 (D.N.J. 1989); see also National

Acceptance Co. v. Regal Products, 888 F. Supp. 13815,

1320 (E.D. Wis. 1993) (trichloroethylene on the concrete

floor of a degreasing pit in an industrial plant held to be

“disposal” for CERCLA purposes; United States v. Fleet

Factors Corp., 821 F. Supp. 707, 721-22 (S.D. Ga. 1993)

(hazardous substances on floor of industrial plant

constitutes disposal under CERCLA); BCW Assocs.,

Ltd. v. Occidental Chem. Corp., No. 86-5947, 1988 WL

102641 at *13 (E.D. Pa., September 29, 1988) (spreading

lead dust onto floor of warehouse constituted disposal

under CERCLA); Emhart Indus., inc. v. Duracell Int'l,

Inc., 665 F. Supp. 549, 574 (M.D. Tenn. 1987) (spilling

PCBs on floor of manufacturing plant constitutes

disposal under CERCLA). When the presence of

hazardous substances “is combined with an

unwillingness of any party to assert control over the

substances,” a threat of release exists.” United States

v. Northernaire Plating Co., 670 F. Supp. 742, 747 (W.D.

Mich. 1987). Yet, the Seventh Circuit’s ruling eliminates

the question of whether a hazardous substance exists

at a “facility” (a building) and instead creates a myopic

focus into whether that hazardous substance exists

outside “in the environment.”

Lastly, RCRA’s definition of solid waste, which is

incorporated into CERCLA includes “other discarded

material.” 42 U.S.C. §. 6903(27). Clearly, meaning must

be given to each word of a statute and the refusal to

acknowledge abandoned in place solid/hazardous waste

as properly giving rise to liability eviscerates the statute.

As discussed above, RCRA sweeps into its ambit a broad

range of disposals—active and passive—including

22

“other discarded material.” Surely, abandoned in place

asbestos is “other discarded material.”

CONCLUSION

As this Petition for a writ of certiorari demonstrates,

since the 2002 denial of certiorari in Carson Harbor v.

Braley, the Circuit Courts of Appeal have remained in

irreconcilable conflict as to whether RCRA and

CERCLA liability may be engendered by both “passive”

as well as “active” disposal. Thus, courts in three circuits

recognize “passive disposal” as sufficient, courts in at

least three circuits recognize liability as requiring “active

disposal,” and courts in four circuits leave open the

possibility that passive conduct can constitute a

“disposal” under certain circumstances. Accordingly,

Petitioner requests that its Petition for writ of certiorari

to the United States Court of Appeals for the Seventh

Circuit be granted.

Respectfully submitted,

WILLIAM J. ANAYA

Counsel of Record

Hav R. Morris

GEORGIA LOGOTHETIS

ARNSTEIN & LEHR LLP

120 S. Riverside Plaza

Suite 1200

Chicago, Illinois 60606

(312) 876-7100

Counsel for Petitioner

APPENDIX

la

APPENDIX A— OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DECIDED OCTOBER 20, 2008

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

No. 08-1118

SYCAMORE INDUSTRIAL PARK ASSOCIATES,

| Plaintiff-Appellant,

v.

ERICSSON, INC.,

Defendant-Appellee.

Argued Sept. 9, 2008

Decided Oct. 20, 2008

Rehearing and Rehearing En Banc

Denied Nov. 18, 2008

- Before FLAUM, WILLIAMS, and SYKES, Circuit

Judges.

FLAUM, Circuit Judge.

In 1985, plaintiff Sycamore Industrial Park

Associates bought an industrial property with fixtures,

2a

Appendix A

including a boiler-based steam heating system, from

defendant Ericsson, Inc. Before it sold the property,

Ericsson installed a new natural gas heating system, but

it left the old heating system in place. Several years after

purchasing the property, Sycamore discovered that the

boilers, pipes, and various pipe joints that make up the

old system were insulated with asbestos-containing

material. Sycamore sued to force Ericsson to remove

and dispose of the abandoned asbestos insulation and

reimburse Sycamore for alleged response costs it has

incurred or will incur in removing the asbestos

insulation. This action arises under the Comprehensive

Environmental Response, Compensation, and Liability

Act (“CERCLA”), 42 U.S.C. § 9607, and under the

Resource Conservation and Recovery Act (“RCRA”),

42 U.S.C. § 6972. The district court granted Ericsson’s

motion for summary judgment, and Sycamore appealed.

For the reasons explained below, we affirm the district

court’s grant of summary judgment.

I. Background

Ericsson owned the 28-acre property at issue,

located in Sycamore, Illinois, for several decades. The

property contains nine buildings where Ericsson

manufactured electrical wiring and cable. During most

of Ericsson’s ownership of this property, the buildings

were heated by the boiler system. The boilers are large

mechanical units and are anchored to the floor of the

two buildings that house them. They are connected to

the other buildings through a pipe network. Most of the

pipe network runs near the ceilings of the several

3a

Appendix A

buildings and is connected to the structures at intervals

by metal fasteners. All of the insulated piping is located

inside the various structures of the facility except for

two areas where the piping extends between buildings.

The insulated piping that extends between buildings is

encased in a mechanical piping chase or in a metal

casing. To maximize thermal efficiency, most elements

of the steam boiler system are covered with insulation.

This insulation is physically attached to the steam boiler

system and associated piping.

In January 1983, Ericsson ceased all of its

manufacturing operations at this facility and sought to

sell it to a third party. Soon thereafter, an Ericsson

employee, Michael Kreiger, decided that he would like

to purchase the property and operate it as an industrial

park. Kreiger was Ericsson’s vice president for

managing services and purchases and was in charge of

managing the Sycamore property for Ericsson.

Meanwhile, in the winters of 1983 and 1984, the

boiler-based heating system was experiencing difficulty

and needed costly repair and maintenance. In December

1984, while negotiating to sell the property to Kreiger,

Ericsson leased part of the property to UARCO Inc.

Before UARCO moved into the site, Ericsson installed

asbestos-free natural gas unit heaters in the parts of

the facility that UARCO would occupy.

In late 1984, Ericsson reached an agreement to sell

the property to Kreiger. Kreiger then partnered with

another Ericsson employee, Robert Boey, to form

4a

Appendix A

Sycamore Industrial Park Associates as an Illinois

general partnership. As soon as the sale was completed,

Kreiger would transfer ownership in the facility to the

Sycamore partnership.

In the spring of 1985, Ericsson installed additional

natural gas unit heaters so that the entire facility could

be heated with the new units. Upon installing the new

heaters, Ericsson discontinued use of the old boiler-

based heaters, but it left the old heating system in place.

Ericsson’s sale of the property to Kreiger closed on

May 30, 1985. Kreiger immediately assigned the

property to Sycamore. Ericsson did not remove the old

heating. system at the time of sale; the boilers and piping

remained completely in place after the sale. At the time

of the sale, neither Kreiger nor Boey requested that

Ericsson remove the old heating system.

The abandoned boiler-based steam heating system

has not been used for the purpose of heating the

buildings since the 1985 closing. The parties disagree

as to whether the system is merely turned off, meaning

that it could be utilized again, or whether it is inoperable.

In 2004, Sycamore discovered asbestos in the

insulation that covered the steam boiler system and

associated piping. The parties dispute the circumstances

under which the asbestos was discovered. Ericsson

describes the discovery as the result of a repair and

maintenance operation in an attempt to show that

Sycamore was contemplating use of the boiler-based

Sa

Appendix A

system. Sycamore responds that it discovered asbestos

during a routine inspection by a prospective tenant and

that it was not considering utilizing the old heating

systemi.

Sycamore sued Ericsson, seeking to compel it to

remove the asbestos-laden insulation. Sycamore claims

that by discontinuing use of the boiler-based heating

system containing asbestos insulation but not removing

it from the site, Ericsson violated CERCLA and RCRA.

Sycamore also sued under state law nuisance and

negligence theories not at issue on appeal.

On January 9, 2008, the district court granted

Ericsson’s motion for summary judgment. The district

court found that the defendant abandoned the asbestos

insulation in place at the property prior to sale. Yet it

held as a matter of law that the abandonment did not

constitute “disposal” of a solid or hazardous waste into

or on any land or water so that such solid waste or

hazardous waste might enter the environment, as

CERCLA requires. In addition, the district court held

as a matter of law that the abandonment of the boiler-

based heating system and the subsequent sale of the

Sycamore property was not “handling, storage,

treatment, transportation or disposal of any solid or

hazardous waste,” as required by RCRA. Sycamore

appeals the district court’s decision on the CERCLA

and RCRA claims.

6a

Appendix A

II. Discussion

A. Standard of Review

This Court reviews a district court’s grant of a

motion for summary judgment de novo. Jackson v.

County of Racine, 474 F.3d 4938, 498 (7th Cir.2007). In

doing so, all facts and reasonable inferences are

construed in the light most favorable to the nonmovant

party, Sycamore. Lawson v. CSX Transp., Inc., 245 F.3d

916, 922 (7th Cir.2001). A district court’s grant of

summary judgment is to be affirmed if “the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment

as a matter of law.” Fed.R.Civ.P. 56(c).

B. CERCLA Claim

CERCLA liability attaches when a plaintiff

establishes that: (1) the site in question is a “facility” as

defined by CERCLA; (2) the defendant is a responsible

party; (8) there has been a release or there is a

threatened release of hazardous substances; and (4) the ©

plaintiff has incurred costs in response to the release or

threatened release. 42 U.S.C. § 9607(a); Envtl. Transp.

Sys., Inc. v. ENSCO, Inc., 969 F:2d 503, 506 (7th

Cir.1992); 3550 Stevens Creek Assocs. v. Barclays Bank,

915 F.2d 1355, 1358 (9th Cir.1990). The second and third

elements are at issue here.

Ta

Appendix A

CERCLA states that a prior owner of a facility is a

responsible party if it controlled the site “at the time of

disposal” of a hazardous substance. 42 U.S.C.

§ 9607(a)(2). We have held in the past that asbestos is a

hazardous substance within the meaning of CERCLA.

G.J. Leasing Co. v. Union Elect. Co., 54 F.8d 379, 384

(7th Cir.1995). Therefore, for Ericsson to be a

responsible party, Sycamore only needs to show that a

disposal took place before Ericsson relinquished control

of the site. CERCLA adopts the definition of “disposal”

from the Solid Waste Disposal Act, which defines

“disposal” as: .

[D]ischarge, deposit, injection, dumping,

spilling, leaking, or placing of any solid waste

or hazardous waste into or on any land or

water so that such solid waste or hazardous

waste or any constituent thereof may enter

the environment or be emitted into the air or

discharged into any waters, including ground

waters.

42 U.S.C. § 9601(29); 42 U.S.C. § 6903(3). Accordingly,

to make a case for Ericsson’s liability as 2 responsible

party, Sycamore must establish that at the time it

controlled the site it discharged, deposited, injected,

dumped, spilled, or leaked a solid or hazardous waste

or placed it into or on any land or water.

One issue that arises is whether the asbestos-laden

boiler system is solid or hazardous waste. While

CERCLA purports to cover both solid and hazardous

8a

Appendix A

waste, in order to be hazardous waste the material must

be solid waste because the statute defines “hazardous

waste” as “a solid waste, or combination of solid wastes,

which because of its quantity, concentration, or physical,

chemical, or infectious characteristics” may be

hazardous. 42 U.S.C. § 9601(29); 42 U.S.C. § 6903(5).

“Solid waste” is then defined as “any garbage, refuse,

sludge from a waste treatment plant, water supply

treatment plant, or air pollution control facility and other

discarded material.” 42 U.S.C. § 6903(27). The parties

dispute whether the asbestos materials that Ericsson

left in the facility can be categorized as “discarded

material” to satisfy the “solid waste” definition. However,

we do not need to address this question. Assuming

arguendo that the asbestos material is solid waste,

Ericsson’s actions still do not constitute “disposal”

because it did not place the asbestos into or on any land

or water so that it may enter the environment or be

emitted into the air or discharged into any waters, as

required by § 6903(3).

Sycamore argues that Ericsson disposed of the

asbestos materials when it abandoned them in place and

then transferred the site to Sycamore. In other words,

they claim that by selling the real estate, Ericsson was

disposing of the asbestos.

In G.J. Leasing v. Union Electric Company, the

plaintiffs advanced an argument very similar to

Sycamore’s argument here: that Union Electric

disposed of a hazardous substance when it sold real

estate containing asbestos. In that case, Union Electric

9a

Appendix A

sold a power station consisting of power generation

equipment housed in a structure with significant

amounts of asbestos in the walls. G..J. Leasing, 54 F.3d

at 382-84. In G..J. Leasing, we determined that the mere

sale of property containing a hazardous substance is not

a disposal imposing liability. Our decision in G..J. Leasing

emphasized that the only exposure to asbestos was

inside the building; there was no apparent danger to

air, land, or water outside of the building as required

for “disposal.” Id. at 388. We acknowledged that if the

primary purpose and likely effect of the sale was to

remove the asbestos in circumstances that would make

the release of asbestos to the outside environment

inevitable, the transferor could be held liable under

CERCLA. But without such intent and likely effect, we

concluded that asbestos abandoned in place in a

structure did not lead to CERCLA liability. Jd. at 385.

The Ninth Circuit reached the same conclusion in

Stevens Creek, 915 F.2d 1355. Our sister Circuit

determined there was no private cause of action under

CERCLA for the sale of a building containing materials

with asbestos because the defendant never “disposed”

of a hazardous substance. It reasoned that asbestos

built into a building could not enter the environment or

be emitted into the air, as required by the definition of

“disposal.” Even if the asbestos broke off, asbestos fibers

would remain in the building. Stevens Creek, 915 F.2d at

1361.

G.J. Leasing and Stevens Creek are on point here.

All asbestos insulation at the Sycamore facility is either

10a

Appendix A

inside a building or enclosed in a pipe chase or metal

case.' There is no real threat that asbestos “or any

constituent thereof may enter the environment or be

emitted into the air or discharged into any waters,

including ground water,” as CERCLA requires in

§ 9601(29).

Sycamore attempts to distinguish G.J. Leasing and

Stevens Creek. It argues that in those cases the asbestos-

containing material was being used for its intended

purpose (to insulate structures), whereas in the instant

case the asbestos insulation was no longer serving a

purpose because the boiler-based heating system was

out of operation. In fact, in G.J. Leasing the power plant

was obsolete and “decommissioned.” G.J. Leasing, 54

F.3d at 381-82. More importantly, this distinction does

not make the reasoning from G.J. Leasing or that from

Stevens Creek inapplicable to the scenario at issue in

this case. Like in those cases, here there is no real

1. Plaintiff cites testimony of David Kedrowski,

defendant’s expert, to argue that there may be another pipe

underground. Kedrowski testified: “I was informed by Mr. Boey

that there was another pipe extending underground between

two of the buildings described as running to and from the

underground pipe. The pipes I could see were not covered with

insulation, at the locations where they were described as running

to and from an underground pipe.” (P1.Br.36). This testimony

does not affect the conclusion that all insulated piping was

encased because Kedrowski explicitly states that there was no

insulation around this pipe. Moreover, Kedrowski’s expert

testimony is limited to the condition of the equipment after

litigation was commenced. It cannot establish a disposal or

release or threat of release at the time of sale.

lla

Appendix A

possibility of asbestos entering the environment, as

required to have a “disposal.” For CERCLA liability, the

defendant must be a “responsible party,” defined as a

party that controlled the site “at the time of disposal”

of a hazardous substance. 42 U.S.C. § 9607(a)(2).

Without a disposal, Ericsson is not a responsible party.

It is worth noting that in G./. Leasing we also

pointed out practical reasons why “the sale of a product

which contains a hazardous substance cannot be equated

to the disposal of the substance itself or even the making

of arrangements for its subsequent disposal.” Jd. at 384.

As we noted, a contrary rule would mean that sale of an

automobile is an arrangement for disposal of a hazardous

substance because every automobile contains lead in the

battery. Jd. We carved out an exception to this general

principle, recognizing that an owner who wants to get

rid of a toxic retaining pond, for example, cannot avoid

CERCLA “arranger” liability merely by selling his

entire facility, which includes the pond, to an

unsuspecting purchaser. We described the toxic

retaining pond example as the “malicious motive case.”

Id. We also recognized a third category of cases, the

“mixed-motive case,” in which a seller’s intent is both

to dispose of hazardous waste and make a bona fide

profit. We stated the limiting principle may be whether

the materials are sold for reclamation. Jd. Here, there

is no evidence that Ericsson transferred the Sycamore

property with the intent to dispose of a hazardous

substance. It incidentally left the old heating equipment

in place when it sold otherwise useful realty. It simply

does not make sense to hold that Ericsson is a

12a

Appendix A

responsible party just because Sycamore decided to

remove asbestos in place decades after it purchased

valuable real estate in a legitimate transaction.

Even if we were to find that Ericsson is a responsible

party, CERCLA also requires that there has been a

release or there is a threatened release of hazardous

substances. There is substantial overlap in terms used

to define “disposal” and “release,” so analysis of the

“release” element required for CERCLA liability

inevitably overlaps with “responsible party” analysis.

See Carson Harbor Village, Ltd. v. Unocal Corp., 270

F'3d 863, 879 (9th Cir.2001). CERCLA defines a “release”

as “any spilling, leaking, pumping, pouring, emitting,

emptying, discharging, injecting, escaping, leaching,

dumping, or disposing into the environment.” 42 U.S.C.

§ 9601(22). The term “environment” includes any

“surface water, ground water, drinking water supply,

land surface or subsurface strata, or ambient air within

the United States.” 42 U.S.C. § 9601(8).

The asbestos at the Sycamore facility is contained

inside the buildings of the facility or, in the instances

when insulated piping runs between buildings, is

enclosed in a piping chase or in a metal case. Sycamore

has not presented evidence—such as evidence of soil,

water or air contamination—showing that the asbestos

insulation has been placed “into or on any land or water”

or emitted into the air as the applicable definition of

“disposal” requires. We have stated that “the release of

asbestos inside a building, with no leak outside, .. . is

not governed by CERCLA.” G.J. Leasing, 54 F.3d at

13a

Appendix A

385; see also Covalt v. Carey Canada, Inc., 860 F:2d 1434,

1439 (7th Cir.1988) (“the interior of a place of

employment is not the environment for purposes of

CERCLA”). The Ninth Circuit in Stevens Creek similarly

suggested that when any resulting hazard from emission

of asbestos fibers into the air would be confined to the

interior of the building, there is no release or threat of

release, and CERCLA does not apply. Stevens Creek,

915 F.2d at 1359-60. We reaffirm that when there is no

emission into the outside environment, but rather any

hazard resulting from emission of asbestos fibers would

be confined inside a building, there is no release or

threatened release, and thus there can be no liability

under CERCLA. Even viewing all facts in the light most

favorable to Sycamore, Ericsson’s abandonment of the

asbestos-laden insulation in place at the Sycamore site

does not make it liable under CERCLA.

C. RCRAClaim

The RCRA citizen suit provision states, in relevant

part, “any person may commence a civil action...

against any person, . .. who has contributed or who is

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste which may present an imminent and

substantial endangerment. to health or the

environment.” 42 U.S.C. § 6972(a)(1)(B).

To establish RCRA liability, Sycamore must show

that Ericsson “handled, stored, treated, transported,

or disposed of” solid or hazardous waste. Sycamore first

14a

Appendix A

argues that Ericsson “disposed”. of the boiler-based

heating system when it abandoned the system in place.

The definition of “disposal” is the same under RCRA

and CERCLA, because RCRA also adopts the definition

from the Solid Waste Disposal Act, which is its

predecessor statute. 42 U.S.C. § 6903(3). Once again,

because Sycamore cannot show that Ericsson placed the

asbestos into or on land or water, emitted it into the air,

_ or discharged it into water, we do not need to address

the closer question whether the asbestos contained in

the boiler-based heater satisfied the “solid or hazardous

waste” requirement. Because the definition of “disposal”

is the same, our reasoning that established that there

was no disposal under CERCLA applies to a RCRA

analysis as well. Sale of a facility with an abandoned

asbestos-containing boiler system does not meet the

statutory definition of “disposal.”

Sycamore argues in the alternative that even if

Ericsson did not dispose of the asbestos insulation,

Ericsson is nonetheless liable because it handled and

stored the asbestos insulation. Yet Sycamore presents

no evidence that Ericsson handled, stored, or even

touched any part of the heating system. In fact, there is

no evidence that Ericsson did anything to the asbestos-

containing boiler system or its insulation prior to or after

closing the sale with Sycamore. A plain reading of the

“has contributed or is contributing” language of

§ 6972(a)(1)(B) compels us to find that RCRA requires

active involvement in handling or storing of materials

for liability. The ordinary meaning of “contribute” is “to

act as a determining factor.” Webster’s IT New College

15a

Appendix A

Dictionary (2005). By definition, the phrase “has

contributed or is contributing” requires affirmative

action. The vast majority of courts that have considered

this issue read RCRA to require affirmative action

rather than merely passive conduct—such as leaving a

heating system in place when selling the real estate that

houses it—for handling or storage liability. See ABB

Industrial Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351,

359 (2d Cir.1997); Interfaith Cmty. Org. v. Honeywell

Int'l, 263 F.'Supp.2d 796, 844-46 (D.N.J.2003); Delaney

v. Town of Carmel, 55 F.Supp.2d 2387, 255-57

(S.D.N.Y.1999); Marriott Corp. v. Simkins Indus., Inc.,

929 F.Supp. 396, 398 n. 2 (S.D.Fla.1996). Thus, as a

matter of law, by leaving equipment that is insulated by

asbestos in place and then selling the Sycamore

property, Ericsson did not handle, store, treat,

transport, or dispose of the asbestos as required for

RCRA liability.

III. Conclusion

For the foregoing reasons, we Affirm the district

court’s grant of summary judgment for defendant.

16a

APPENDIX B — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

DATED JANUARY 9, 2008 —

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 06 C 0768

SYCAMORE INDUSTRIAL PARK ASSOCIATES,

an Illinois general partnership,

Plaintiffs,

v.

ERICSSON, INC., a Delaware corporation,

Defendant.

MEMORANDUM OPINION AND ORDER

DAVID H. COAR, District Judge.

Sycamore Industrial Park Associates (“SIPA”) filed

a civil action against Ericsson, Inc. (“Ericsson”) under

the Comprehensive Environmental Response,

Compensation and Liability Act (the “CERCLA”),

codified at 42 U.S.C. § 9601 et seg. , 26 U.S.C. §§ 4611-

4612, 4661-4662 (2006) and the Resource Conservation

and Recovery Act (the “RCRA”), codified at 42 U.S.C.

17a

Appendix B

§ 6901 et seg. (2006) to compel Ericsson to remove

asbestos located at a site SIPA purchased from Ericsson;

to pay SIPA recovery costs that SIPA incurred or will

incur in removing the asbestos; to pay a civil fine for

each day Ericsson violated and continues to violate

RCRA and the Illinois Environmental Protection Act;

and other additional remedies. SIPA also brings Illinois

common law claims of nuisance and negligence against

Ericsson and seeks damages, restitution of all costs

incurred by SIPA in the remediation of the site and an

injunction to remove and abate the nuisance of asbestos.

Ericsson now moves for summary judgment on all claims

of the Complaint and SIPA moves for partial summary

judgment on its RCRA and CERCLA claims. For the

reasons stated in the opinion below, Ericsson’s motion

is GRANTED in part, and SIPA’s motion is DENIED.

I. UNDISPUTED FACTUAL BACKGROUND

On May 30, 1985, Ericsson sold Michael Kreiger, an

Ericsson employee until sometime in or around May

1985, an industrial park (the “Site”) complete with

finished buildings on 28 acres of land. Once the

transaction closed Kreiger contemporaneously assigned

his interests in the Site to SIPA. In his capacity as an

Ericsson employee, Kreiger was in charge of preparing

the Site for sale. Ericsson used a boiler-based heating

system to provide heat throughout the buildings on the

Site. The boiler-based system consists of boilers, pipes

and other equipment containing asbestos insulation. The

boilers are large mechanical units, structurally anchored

to the floor of the buildings which house them at their

18a

Appendix B

bases, and are otherwise attached to the buildings

through pipe runs. The pipe network that distributed

heat is also physically attached to the boilers, and

physically attached to the various buildings to and

through which they run. Most of the pipe network runs

‘near the ceilings of the several buildings, connected to

the structures at intervals by metal fasteners or

supports. The pipe network of the steam boiler system

runs for thousands of linear feet through the structures

comprising the Site.

Before eventually selling the Site to Kreiger,

Ericsson leased part of the property to UARCO in

December of 1984. Until January 1985, the complete

boiler-based heating system was providing heat to the

buildings of the Site. However, in the winter seasons of

1983 and 1984, the boiler-based system was working with

increasing difficulty. When UARCO moved onto the Site

in January 1985, Ericsson discontinued use of the boiler-

based system in UARCO’s buildings and began using a

new non-asbestos containing heating system. Ericsson

never removed the old heating system. Neither Krieger

nor SIPA requested Ericsson to remove the old system.

Despite the fact that the sales contract between

Ericsson and Krieger states the purchase consists of

“all parcels, buildings and improvements thereon, . . .

together with all rights, titles, interests, hereditaments

and appurtenances relative thereto, personal property,

fixtures, ... if any,” SIPA claims it did not purchase the

boiler system. According to Kreiger, he concluded in

April 1985 that the boiler system was garbage and had

to be shut down. He stated that Robert Boey, an

19a

Appendix B

Ericsson engineer in charge of determining how to

provide heat to the Site’s buildings and who reported

to Kreiger, came to this conclusion in September 1983.

Ericsson obviously concluded at some point that it was

not economically reasonable to maintain, repair or

operate the boiler-based system and so it ceased its use.

Although the parties dispute what roles Krieger and

Boey occupy in SIPA, it is undisputed that both former

Ericsson employees are affiliated with SIPA in some

capacity.

SIPA now claims that by discontinuing use of the

boiler-based heating system containing asbestos

insulation but not removing it from the Site, Ericsson

abandoned it, thereby disposing of hazardous waste

under the terms of CERCLA and RCRA. SIPA also

claims that the old heating system is a common law

nuisance and that leaving the system was an act of

negligence that continues to harm SIPA.

II. STANDARD FOR MOTIONS FOR SUMMARY

JUDGMENT

Summary judgment will be granted only when “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. Pro. 56(c). A genuine

issue of material fact exists only if there is sufficient

evidence for a reasonable finder of fact to return a

verdict for the nonmoving party. Anderson v. Liberty

20a

Appendix B

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d

202 (1986). A fact is material if it can affect the outcome

of the case under the applicable substantive law. /d.

When reviewing a motion for summary judgment, the

court must view the facts in the light most favorable to

the nonmoving party and draw all reasonable inferences

in that party’s favor. Schuster v. Lucent Tech. Inc. , 327

F:3d 569, 573 (7th Cir.2003).

The movant bears the burden of establishing that

no genuine issue of material fact exists. Celotex Corp. v.

Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d

265 (1986). If the movant meets this burden, the non-

movant must set forth specific facts demonstrating that

there is a genuine issue for trial. Fed. R. Civ. Pro. 56(e);

Celotex, 477 U.S. at 324. To successfully oppose the

motion, the non-movant must designate these facts in

affidavits, depositions, answers to interrogatories, or

admissions; the non-movant cannot rest on the pleadings

alone. Celotex, 477 U.S. at 324.

III. ANALYSIS

CERCLA Claim

Liability under CERCLA is established when the

following four elements are met: (1) the site in question

is a “facility” as defined by CERCLA; (2) the Defendant

is a “responsible person” as defined by CERCLA;

(3) there was a “release or threatened release” of

hazardous substances; and (4) such release caused the

Plaintiff to incur response costs. Envtl. Transp. Sys.,

2la

Appendix B

Inc. v. ENSCO, Inc., 969 F.2d 508, 506 (7th Cir.1992)

(citations omitted); 3550 Stevens Creek Assocs. v.

Barclays Bank, 915 F.2d 1355, 1358 (9th Cir.1990). In

G.J. Leasing Co. v. Union Electric Company, a

purchaser of a decommissioned power plant containing

asbestos in its structure sued a former owner under

CERCLA. 54 F'3d 379 (7th Cir.1995). The Court held

that “the sale of a product which contains a hazardous

substance cannot be equated to the disposal of the

substance itself or even the making of arrangements

for its subsequent disposal ...” Jd. at 384. SIPA attempts

to evade the holding of G./. Leasing by recasting its

claim to the effect that Ericsson unlawfully disposed of

asbestos when it stopped using a functionally obsolete

heating system containing asbestos insulation out of

service and left it on a site that it later sold. In G.J.

Leasing, the entire facility was obsolete and useless and

had thus been decommissioned and rendered dormant

by the owner. 54 F.3d at 382. It was then sold to a

salvager. Jd. The Court recognized that the presence of

asbestos played no role in the decision to decommission

the facility. Jd. Similarly, SIPA does not claim nor has it

offered any evidence that the asbestos insulation on the

boiler-based heating system motivated Ericsson to

cease its use. Instead, SIPA continuously focuses on the

fact that the boiler-based system was inoperable junk

that was not worth the trouble of maintaining or

repairing.

In 3550 Stevens Creek Associates, the Ninth Circuit

declined to recognize a private cause of action under

Section 107(a) of CERCLA for the voluntary removal of

22a

Appendix B

asbestos from a commercial building. 915 F.2d at 1365. After

conducting a thorough analysis of the relevant sections .

and subsections of CERCLA and the Solid Waste Disposal

Act, as amended by the RCRA, from which the definitions

of certain terms used by CERCLA and RCRA are taken,

the Court held that the installation of asbestos containing

materials into a building did not amount to disposal of waste

materials such that the plaintiff could pursue a CERCLA

private cause of action against an owner of a commercial

building. Jd. The Court stated that “[o]}n its face “disposal”

pertains to ‘solid waste or hazardous waste,’ not to building

materials which are neither.” 915 F.2d at 1361. The Court

also found that CERCLA’s legislative history was devoid

of evidence of a congressional intent to permit private

causes of action for the recovery of response costs for the

removal of asbestos from buildings. Jd. at 1365..

SIPA attempts to distinguish 3550 Stevens Creek

Associates on the basis that the asbestos there was in

operation as a useful product in the structure. Here, the

asbestos in question belongs to a heating system no longer

in use by the time Ericsson sold the Site.' SIPA argues

that the boiler system was inoperable and useless. By

leaving the inoperable old asbestos-laden system where it

had been originally installed, SIPA argues that Ericsson

disposed of it because it is “solid waste,” i.e. “discarded

material” under the statutory scheme.

1. Whether or not the heating system was operable at the

time of the sale is a disputed fact that the Court resolves in

favor of SIPA for purposes of this motion only.

23a

Appendix B

The 3550 Stevens Creek Associates court

unambiguously held that building materials installed

into the structure was not “placing into or on any land

and water.” Jd. at 1362. If the action of installing

materials into a structure is not “placing into or on any

land and water,” then abandoning materials within a

structure, that is leaving the materials in place within

the building, cannot be “placing into or on any land and

water” either. SIPA attempts to-confuse the issue by

arguing that the asbestos here is not built into the

structure of the Site, but the undisputed facts

demonstrate that the asbestos is attached to the pipes

and boilers, which are in turn attached to the various

buildings of the Site.

This Court’s decision that the system is not “solid

waste” does not ignore the language of the statute,

contradict Seventh Circuit precedent or frustrate the

fundamental purposes of CERCLA. Title 42 U.S.C.

§ 6903(3) provides that “ ‘disposal’ means the discharge,

deposit, injection, dumping, spilling, leaking, or placing

of any solid waste or hazardous waste into or on any

land or water so that such solid waste or hazardous

waste or any constituent thereof may enter the

environment or be emitted into the air or discharged

into any waters, including ground waters.” Ericsson did

not place the asbestos materials anywhere. Although

courts have held that the term “disposal” contains a

passive element that must not be ignored, the term is

not so broad as to render an owner liable for merely

discontinuing use of equipment that is physically

attached to otherwise useful realty.

24a

Appendix B

The Seventh Circuit stated in G.J. Leasing Co. v.

Union Electric Company that although “asbestos is a

hazardous substance within the meaning of CERCLA, .

. . asbestos is harmless as long as the asbestos fibers

are not allowed to leak out of the walls or other building

components in which the insulation was placed.” 54 F.3d

at 385. Apparently, SIPA took note of this fact because

it asserts in its materials that the asbestos in question

may be friable.* However, the G.J. Leasing Co. court

also explained that “the release of asbestos inside a

building, with no leak outside ... is not governed by

CERCLA.” /d. (citations omitted.). It is apparent from

the facts SIPA chose to present in these proceedings

that it has no evidence that asbestos is being released

“into the environment” within the meaning of CERCLA.®

2. Yet, SIPA also points out in its materials that the asbestos

is in place and remains intact.

3. Thus, assuming arguendo that the asbestos-laden boiler

system is “solid waste” under 42 U.S.C. § 69038(27) as SIPA

contends, abandoning a heating system within a series of

buildings would probably still not satisfy the definition of

“disposal” under 42 U.S.C. § 6903(27) because such action does

not come within the scope of the phrase “placing of [the

abandoned contaminant] into or on any land or water so that

[the abandoned contaminant] or any constituent thereof may

enter the environment or be emitted into the air or discharged

into any waters, including ground waters.” See 3550 Stevens

Creek Assocs., 915 F.2d at 1361. The statute defines “release” as

“any spilling, leaking, pumping, pouring, emitting, emptying,

discharging, injecting, escaping, leaching, dumping, or

disposing into the environment (including the abandonment

(Cont’d)

25a

Appendix B

Asbestos “released” within a building or several

buildings is not equivalent to being “released” into the

environment. See Covalt v. Carey Canada Inc., 860 F.2d

1434, 1486-37 (7th Cir.1988).

Ultimately, determining whether a “disposal”

occurred requires this Court to return to the meaning

of “solid waste.” According to 42 U.S.C. § 6903(27), “solid

waste” is “any garbage, refuse, sludge from a waste

treatment plant, water supply treatment plant,.or air

pollution control facility and other discarded material.

... The Site is an industrial park, not a waste treatment

plant, water supply treatment plant, or air pollution

control facility. Therefore, the relevant question is

whether SIPA provided facts from which a reasonable

(Cont’d)

or discarding of barrels, containers, and other closed receptacles

containing any hazardous substance or pollutant or

contaminant). .. .” 42 U.S.C. § 9601(22). The statute further

defines “environment” as “(A) the navigable waters, the waters

of the contiguous zone, and the ocean waters of which the natural

resources are under the exclusive management authority of

the United States under the Fishery Conservation and

Management Act of 1976, and (B) any other surface water,

ground water, drinking water supply, land surface or subsurface

strata, or ambient air within the United States or under the

jurisdiction of the United States.” 42 U.S.C. § 9601(8). SIPA has

not introduced evidence from which a reasonable factfinder

could conclude the asbestos containing materials at issue here

have been released into the environment. Its evidence merely

consists of denigrations of Ericsson’s “expert” testimony and

the fact that some of the pipes may be underground and others,

covered by chases, extend outside between buildings.

26a

Appendix B

factfinder can conclude Ericsson “discarded” or

abandoned the materials within the meaning of the

statute. This Court finds as a matter of law, under

the facts presented in these summary judgment

proceedings, Ericsson neither discarded or abandoned

the asbestos materials. The materials here were

attached to the buildings that made up the Site as

insulation on pipes, boilers, and other equipment. The

only way that Ericsson could have discarded or

abandoned the boiler system and the asbestos materials

within the meaning of CERCLA is if it discarded or

abandoned the entire Site itself or detached the system

or asbestos materials and left them on the premises.

Ericsson did no such thing; it simply stopped using the

old system, installed a new system and then sold the

Site. The fact that Ericsson, as a tenant/lessee

responsible for its own heat, chose not to operate the

old boiler-based system, and instead utilized a gas-based

system, does not in anyway impact this Court’s

conclusion that no disposal of hazardous waste took

place. SIPA concedes that at according to its basic

everyday usage, the term “disposal” means the act or

process of getting rid of something. The facts

unambiguously demonstrate that Ericsson took no

actions, not a single step, towards ridding itself of the

boiler-based system.

This Court concludes that under the current

definitions utilized by CERCLA, there is no genuine

issue of material fact from which a reasonable factfinder

could conclude Ericsson is liable for the disposal of

asbestos at the Site.

27a

Appendix B

RCRA Claim

Ericsson contends that SIPA’s RCRA claim should

also be dismissed. It argues that since the definition of

“disposal” is the same under CERCLA and RCRA,

CERCLA case precedent compels the logical conclusion

that Ericsson’s conduct as alleged in the Complaint does

not fall within the ambit of RCRA. SIPA responds that

the scope of conduct that falls under the purview of

RCRA is broader than mere “disposal.”

To establish a prima facie imminent hazard citizen

suit claim under RCRA, a plaintiff must allege (1) that

the defendant has generated solid or hazardous waste,

(2) that the defendant is contributing to or has

contributed to the handling, storage, disposal,

treatment or transportation of this waste, and (8) that

this waste may present an imminent and substantial

danger to health or the environment. 42 U.S.C.

§ 6972(a)(1)(B); Albany Bank & Trust Co. v. Exxon

Mobil Corp., 310 F.3d 969, 972 (7th Cir.2002) (citations

omitted). RCRA amended certain provisions of the Solid

Waste Disposal Act. See 42 U.S.C. § 6901 et seq.

As discussed before, the RCRA defines “solid

waste” as meaning “any garbage, refuse, sludge from a

waste treatment plant, water supply treatment plant,

or air pollution control facility and other discarded

material. ...” 42 U.S.C. § 6903(27). This Court concluded

above that “discarded material” could not include

materials fixed to a building itself, unless the building

was discarded or the materials were detached from the.

28a

Appendix B

building and left on the premises. There is no reason to

deviate from that conclusion under RCRA.

. In Remington Arms Company, after reviewing the

legislative history of RCRA, the Second Circuit held

that the statute was designed to “regulate discarded

material and hazardous wastes” and to also deal with

products that had “served their intended purposes and

are no longer wanted by the consumer.” 989 F.2d 1305,

1314. While SIPA has presented facts from which a

reasonable factfinder could conclude that Ericsson

regarded the heating system as having served its

intended purpose of providing heat and it was no long

desired for that purpose (as evidenced by the use of a ©

new heating system), SIPA cannot demonstrate that the

boiler-based system was “discard material” under

RCRA. The Remington Arms Company decision and

the cited corresponding legislative history clearly show

that when Congress mentioned that the term “solid

waste” included products that no longer served their

intended purposes and were no longer wanted by the

customer, it was in fact referring to the factors of

production in this nation’s industries’ various

manufacturing processes, not to obsolete building

materials in an otherwise useful building. H.R. NO. 94-

1491, pt. 1, at (1976), as reprinted in 1976 U.S.C.C.A.N.

6238, 6240 (“It is not only the waste by-products of the

nation’s manufacturing processes with which the

committee is concerned; but also the products

themselves once they have served their intended

purposes and are no longer wanted by the consumer”).

29a

Appendix B

Nor do the asbestos-containing heating materials

at issue here satisfy RCRA’s definition of “hazardous

material.” Discarded materials must first be solid

materials in order to be included within the subset of

“hazardous materials.” Section 6703(5). This Court

concludes that the term “solid waste” utilized by RCRA

can not and does not include the discontinued use of a

boiler-based heating system left in the same place where

originally affixed on a building structure unless it is

alleged that the building itself is discarded. Since SIPA

cannot provide facts from which a reasonable factfinder

could conclude Ericsson discarded the Site itself,

summary judgment is granted to Ericsson on the RCRA

claim.

Supplemental Claims of Nuisance and Negligence

Having granted Ericsson summary judgment on the

issues of whether it violated CERCLA and RCRA when

it left a discontinued heating system containing asbestos

in place in and throughout several buildings later

transferred to SIPA, this Court declines to exercise

supplementa! jurisdiction over the state law claims of

nuisance and negligence. Those claims are hereby

dismissed without this Court expressing any opinion as

to the merits of either claim.

30a

Appendix B

Iv. CONCLUSION

For the foregoing reasons, Ericsson’s Motion for

Summary Judgment is GRANTED in part. SIPA’s

Motion for Partial Summary Judgment is DENIED. This

Court declines to exercise supplemental jurisdiction

over SIPA’s state law claims and dismisses them without

expressing any opinion as to their merit.

Enter:

/s/ David H. Coar

David H. Coar

United States District Judge

3la

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DENYING PETITION FOR REHEARING

DATED NOVEMBER 18, 2008

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

November 18, 2008

Before

Hon. JOEL M. FLAUM, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

Hon. DIANE S. SYKES, Circuit Judge

No. 08-1118

SYCAMORE INDUSTRIAL PARK ASSOCIATES,

an Illinois general partnership,

Plaintiff-Appellant,

v.

ERICSSON, INCORPORATED,

a Delaware corporation,

Defendant-Appellee.

32a

Appendix C

ORDER

On consideration of the petition for rehearing and

petition for rehearing en banc filed by the plaintiff-

appellant in the above case on November 3, 2008, no

judge in active service has requested a vote thereon,

and all of the judges on the original panel have voted to

deny the petition. The petition is therefore DENIED.

33a

APPENDIX D — 42 U.S.C. § 6902

§ 6902. Objectives and national policy

(a) Objectives

The objectives of this chapter are to promote the

protection of health and the environment and to

conserve valuable material and energy resources by—

(1) providing technical and financial assistance to State

and local governments and interstate agencies for the

development of solid waste management plans (including

resource recovery and resource conservation systems)

which will promote improved solid waste management

techniques (including more effective organizational

arrangements), new and improved methods of collection,

separation, and recovery of solid waste, and the

environmentally safe disposal of nonrecoverable

residues;

(2) providing training grants in occupations involving

the design, operation, and maintenance of solid waste

disposal systems;

(3) prohibiting future open dumping on the land and

requiring the conversion of existing open dumps to

facilities which do not pose a danger to the environment

or to health;

(4) assuring that hazardous waste management

practices are conducted in a manner which protects

human health and the environment;

34a

Appendix D

(5) requiring that hazardous waste be properly

managed in the first instance thereby reducing the need

for corrective action at a future date;

(6) minimizing the generation of hazardous waste and

the land disposal of hazardous waste by encouraging

process substitution, materials recovery, properly

conducted recycling and reuse, and treatment;

(7) establishing a viable Federal-State partnership to

carry out the purposes of this chapter and insuring that

the Administrator will, in carrying out the provisions of

subchapter III of this chapter, give a high priority to

assisting and cooperating with States in obtaining full

authorization of State programs under subchapter III

of this chapter;

(8) providing for the promulgation of guidelines for solid

waste collection, transport, separation, recovery, and

disposal practices and systems;

(9) promoting a national research and development

program for improved solid waste management and

resource conservation techniques, more effective

organizational arrangements, and new and improved

methods of collection, separation, and recovery, and

recycling of solid wastes and environmentally safe

disposal of nonrecoverable residues;

(10) promoting the demonstration, construction, and

application of solid waste management, resource

recovery, and resource conservation systems which

35a

Appendix D

preserve and enhance the quality of air, water, and land

resources; and

(11) establishing a cooperative effort among the

Federal, State, and local governments and private

enterprise in order to recover valuable materials and

energy from solid waste.

(b)National policy

The Congress hereby declares it to be the national policy

of the United States that, wherever feasible, the

generation of hazardous waste is to be reduced or

eliminated as expeditiously as possible. Waste that is

nevertheless generated should be treated, stored, or

disposed of so as to minimize the present and future

threat to human health and the environment.

36a

APPENDIX E — 42 U.S.C. § 6903

§ 6903. Definitions

As used in this chapter:

+. + *

(3) The term “disposal” means the discharge, deposit,

injection, dumping, spilling, leaking, or placing of any

solid waste or hazardous waste into or on any land or

water so that such solid waste or hazardous waste or

any constituent thereof may enter the environment or

be emitted into the air or discharged into any waters,

including ground waters.

*+* #*

(27) The term “solid waste” means any garbage, refuse,

sludge from a waste treatment plant, water supply

treatment plant, or air pollution control facility and other

discarded material, including solid, liquid, semisolid, or

contained gaseous material resulting from industrial,

commercial, mining, and agricultural operations, and

from community activities, but does not include solid or

dissolved material in domestic sewage, or solid or

dissolved materials in irrigation return flows or

industrial discharges which are point sources subject

to permits under section 1342 of Title 33, or source,

special nuclear, or byproduct material as defined by the

Atomic Energy Act of 1954, as amended (68 Stat. 923)

[42 U.S.C.A. § 2011 et seq.]. |

& ™ ® *

37a

APPENDIX F — 42 U.S.C. § 6972

§ 6972. Citizen suits

(a) In general

Except as provided in subsection (b) or (c) of this section,

any person may commence a civil action on his own

behalf— |

(1)(A) against any person (including (a) the United

States, and (b) any other governmental instrumentality

or agency, to the extent permitted by the eleventh

amendment to the Constitution) who is alleged to be in

violation of any permit, standard, regulation, condition,

requirement, prohibition, or order which has become

effective pursuant to this chapter; or

(B) against any person, including the United States and

any other governmental instrumentality or agency, to

the extent permitted by the eleventh amendment to the

Constitution, and including any past or present

generator, past or present transporter, or past or

present owner or operator of a treatment, storage, or

disposal facility, who has contributed or who is

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste which may present an imminent and

substantial endangerment to health or the environment;

or

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the

Administrator.

38a

Appendix F

Any action under paragraph (a)(1) of this subsection shall

be brought in the district court for the district in which

the alleged violation occurred or the alleged

endangerment may occur. Any action brought under

paragraph (a)(2) of this subsection may be brought in

the district court for the district in which the alleged

violation occurred or in the District Court of the District

of Columbia. The district court shall have jurisdiction,

without regard to the amount in controversy or the

citizenship of the parties, to enforce the permit,

standard, regulation, condition, requirement,

prohibition, or order, referred to in paragraph (1)(A), to

restrain any person who has contributed or who is

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste referred to in paragraph (1)(B), to

order such person to take such other action as may be

necessary, or both, or to order the Administrator to

perform the act or duty referred to in paragraph (2), as

the case may be, and to apply any appropriate civil

penalties under section 6928(a) and (g) of this title.

(b) Actions prohibited

(1) No action may be commenced under subsection

(a)(1)(A) of this section—

(A) prior to 60 days after the plaintiff has given notice

of the violation to—

(i) the Administrator;

39a

Appendix F

(ii) the State in which the alleged violation occurs; and

(iii) to any alleged violator of such permit, standard,

regulation, condition, requirement, prohibition, or order,

except that such action may be brought immediately

after such notification in the case of an action under this

section respecting a violation of subchapter III of this

chapter; or

(B) if the Administrator or State has commenced and

is diligently prosecuting a civil or criminal action in a

court of the United States or a State to require

compliance with such permit, standard, regulation,

condition, requirement, prohibition, or order.

In any action under subsection (a)(1)(A) of this section

in a court of the United States, any person may

intervene as a matter of right.

(2)(A) No action may be commenced under subsection

(a)(1)(B) of this section prior to ninety days after the

plaintiff has given notice of the endangerment to—

(i) the Administrator;

(ii) the State in which the alleged endangerment may

occur;

(iii) any person alleged to have contributed or to be

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

40a

Appendix F

hazardous waste referred to in subsection (a)(1)(B) of

this section,

except that such action may be brought immediately

after such notification in the case of an action under this

section respecting a violation of subchapter III of this

chapter.

(B) No action may be commenced under subsection

(a)(1)(B) of this section if the Administrator, in order to

restrain or abate acts or conditions which may have

contributed or are contributing to the activities which

may present the alleged endangerment—

(i) has commenced and is diligently prosecuting an

action under section 6973 of this title or under section

106 of the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 [42 U.S.C.A. §

9606], [FN1]

(ii) is actually engaging in a removal action under

section 104 of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 [42

U.S.C.A. § 9604];

(iii) has incurred costs to initiate a Remedial

Investigation and Feasibility Study. under section 104

of the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 [42 U.S.C.A. §

9604] and is diligently proceeding with a remedial action

under that Act [42 U.S.C.A. § 9601 et seq.]; or

4la

Appendix F

(iv) has obtained a court order (including a consent

decree) or issued an administrative order under section

106 of the Comprehensive Environmental Response,

Compensation and Liability Act of 980 [FN2] [42

U.S.C.A. § 9606] or section 6973 of this title pursuant to

which a responsible party is diligently conducting a

removal action, Remedial Investigation and Feasibility

Study (RIFS), or proceeding with a remedial action.

In the case of an administrative order referred to in

clause (iv), actions under subsection (a)(1)(B) of this

section are prohibited only as to the scope and duration

of the administrative order referred to in clause (iv).

(C) No action may be commenced under subsection

(a)(1)(B) of this section if the State, in order to restrain

or abate acts or conditions which may have contributed

or are contributing to the activities which may present

the alleged endangerment—

(i) has commenced and is diligently prosecuting an

action under subsection (a)(1)(B) of this section;

(ii) is actually engaging in a removal action under

section 104 of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980 [42

U.S.C.A. § 9604]; or

(iii) has incurred costs to initiate a Remedial

Investigation and Feasibility Study under section 104

of the Comprehensive Environmental Response,

Compensation and Liability Act of 1980 [42 U.S.C.A. §

42a

Appendix F

9604] and is diligently proceeding with a remedial action

under that Act [42 U.S.C.A. § 9601 et seq.].

(D) No action may be commenced under subsection

(a)(1)(B) of this section by any person (other than a State

or local government) with respect to the siting of a

hazardous waste treatment, storage, or a disposal

facility, nor to restrain or enjoin the issuance of a permit

for such facility.

(E) In any action under subsection (a)(1)(B) of this

section in a court of the United States, any person may

intervene as a matter of right when the applicant. claims

an interest relating to the subject of the action and he

is So situated that the disposition of the action may, as a

practical matter, impair or impede his ability to protect

that interest, unless the Administrator or the State

shows that the applicant’s interest is wisi cect

represented by existing parties.

(F) Whenever any action is brought under subsection

(a)(1)(B) of this section in a court of the United States,

the plaintiff shall serve a copy of the complaint on the

Attorney General of the United States and with the

Administrator.

(ec) Notice

No action may be commenced under paragraph (a)(2) of

this section prior to sixty days after the plaintiff has

given notice to the Administrator that he will commence

such action, except that such action may be brought

43a

Appendix F

immediately after such notification in the case of an

action under this section respecting a violation of

subchapter III of this chapter. Notice under this

subsection shall be given in such manner as the

Administrator shall prescribe by regulation. Any action

respecting a violation under this chapter may be brought

under this section only in the judiciai district in which

such alleged violation occurs.

(d) Intervention

In any action under this section the Administrator, if

not a party, may intervene as a matter of right.

(e) Costs

The court, in issuing any final order in any action

brought pursuant to this section or section 6976 of this

title, may award costs of litigation (including reasonable

attorney and expert witness fees) to the prevailing or

substantially prevailing party, whenever the court

determines such an award is appropriate. The court may,

if a temporary restraining order or preliminary

injunction is sought, require the filing of a bond or

equivalent security in accordance with the Federal Rules

of Civil Procedure.

(f) Other rights preserved

Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute

or common law to seek enforcement of any standard or

44a

Appendix F

requirement relating to the management of solid waste

or hazardous waste, or to seek any other relief

(including relief against the Administrator or a State

agency).

(g) Transporters

A transporter shall not be deemed to have contributed

or to be contributing to the handling, storage, treatment,

or disposal, referred to in subsection (a)(1)(B) of this

section taking place after such solid waste or hazardous

waste has left the possession or control of such

transporter, if the transportation of such waste was

under a sole contractual arrangement arising from a

published tariff and acceptance for carriage by common

carrier by rail and such transporter has exercised due

care in the past or present handling, storage, treatment,

transportation and disposal of such waste.

45a

APPENDIX G — 42 U.S.C. § 6973

§ 6973. Imminent hazard

(a) Authority of Administrator

Notwithstanding any other provision of this chapter, upon

receipt of evidence that the past or present handling,

storage, treatment, transportation or disposal of any solid

waste or hazardous waste may present an imminent and

substantial endangerment to health or the environment,

the Administrator may bring suit on behalf of the United

States in the appropriate district court against any person

(including any past or present generator, past or present

transporter, or past or present owner or operator of a

treatment, storage, or disposal facility) who has

contributed or who is contributing to such handling,

storage, treatment, transportation or disposal to restrain

such person from such handling, storage, treatment,

transportation, or disposal, to order such person to take

such other action as may be necessary, or both. A

transporter shall not be deemed to have contributed or to

be contributing to such handling, storage, treatment, or

disposal taking place after such solid waste or hazardous

waste has left the possession or control of such transporter

if the transportation of such waste was under a sole

contractural [F'N1] arrangement arising from a published

tariff and acceptance for carriage by common carrier by

rail and such transporter has exercised due care in the

past or present handling, storage, treatment,

transportation and disposal of such waste. The

Administrator shall provide notice to the affected State of

any such suit. The Administrator may also, after notice to

the affected State, take other action under this section

including, but not limited to, issuing such orders as may

be necessary to protect public health and the environment.

46a

APPENDIX H — 42 U.S.C. § 9607

§ 9607. Liability

(a) Covered persons; scope; recoverable costs and

damages; interest rate; “comparable maturity” date

Notwithstanding any other provision or rule of law, and

subject only to the defenses set forth in subsection (b)

of this section—

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any

hazardous substance owned or operated any facility at

which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or

otherwise arranged for disposal or treatment, or

arranged with a transporter for transport for disposal

or treatment, of hazardous substances owned or

possessed by such person, by any other party or entity,

at any facility or incineration vessel owned or operated

by another party or entity and containing such

hazardous substances, and

(4) any person who accepts or accepted any hazardous

substances for transport to disposal or treatment

facilities, incineration vessels or sites selected by such

person, from which there is a release, or a threatened

release which causes the incurrence of response costs,

of a hazardous substance, shall be liable for—

47a

Appendix H

(A) all costs of removal or remedial action incurred by

the United States Government or a State or an Indian

tribe not inconsistent with the national contingency

plan;

(B) any other necessary costs of response incurred by

any other person consistent with the national

contingency plan;

(C) damages for injury to, destruction of, or loss of

natural resources, including the reasonable costs of

assessing such injury, destruction, or loss resulting from

such a release; and

(D) the costs of any health assessment or health effects

study carried out under section 9604(i) of this title.

The amounts recoverable in an action under this section |

shall include interest on the amounts recoverable under

subparagraphs (A) through (D). Such interest shall

accrue from the later of (i) the date payment of a

specified amount is demanded in writing, or (ii) the date

of the expenditure concerned. The rate of interest on

the outstanding unpaid balance of the amounts

recoverable under this section shall be the same rate as

is specified for interest on investments of the Hazardous

Substance Superfund established under subchapter A

of chapter 98 of Title 26. For purposes of applying such

~ amendments to interest under this subsection, the term

“comparable maturity” shall be determined with

reference to the date on which interest accruing under

this subsection commences.

48a

Appendix H

(b) Defenses

There shall be no liability under subsection (a) of this

section for a person otherwise liable who can establish

by a preponderance of the evidence that the release or

threat of release of a hazardous substance and the

damages resulting therefrom were caused solely by—

(1) an act of God;

(2) an act of war;

(3) an act or omission of a third party other than an

employee or agent of the defendant, or than one whose

act or omission occurs in connection with a contractual

relationship, existing directly or indirectly, with the

defendant (except where the sole contractual

arrangement arises from a published tariff and

acceptance for carriage by a common carrier by rail), if

the defendant establishes by a preponderance of the

evidence that (a) he exercised due care with respect to

the hazardous substance concerned, taking into

consideration the characteristics of such hazardous

substance, in light of all relevant facts and

circumstances, and (b) he took precautions against

foreseeable acts or omissions of any such third party

and the consequences that could foreseeably result from

such acts or omissions; or

(4) any combination of the foregoing paragraphs.

49a

Appendix H

(c) Determination of amounts

(1) Except as provided in paragraph (2) of this

subsection, the liability under this section of an owner

or operator or other responsible person for each release

of a hazardous substance or incident involving release

of a hazardous substance shall not exceed—

(A) for any vessel, other than an incineration vessel,

which carries any hazardous substance as cargo or

residue, $300 per gross ton, or $5,000,000, whichever is

greater;

50a

APPENDIX I — 40 C.ER. § 261.2

§ 261.2 Definition of solid waste.

(a1) A solid waste is any discarded material that is not

excluded under § 261.4(a) or that is not excluded by a

variance granted under §§ 260.30 and 260.31 or that

is not excluded by a non-waste determination under

§§ 260.30 and 260.34.

(2)(i) A discarded material is any material which is:

(A) Abandoned, as explained in paragraph (b) of this

section; or

(B) Recycled, as explained in paragraph (c) of this

section; or

(C) Considered inherently waste-like, as explained in

paragraph (d) of this section; or

(D) A military munition identified as a solid waste in

§ 266.202.

(ii) A hazardous secondary material is not discarded if

it is generated and reclaimed under the control of the

generator as defined in § 260.10, it is not speculatively

accumulated as defined in § 261.1(c)(8), it is handled only

in non-land-based units and is contained in such units,

it is generated and reclaimed within the United States

and its territories, it is not otherwise subject to material-

specific management conditions under § 261.4(a) when

reclaimed, it is not a spent lead acid battery (see § 266.80

and § 273.2), it does not meet the listing description for

Sla

Appendix I

K171 or K172 in § 261.32, and the reclamation of the

material is legitimate, as specified under § 260.43.

(See also the notification requirements of $ 260.42).

(For hazardous secondary materials managed in land-

based units, see § 261.4(a)(23)).

(b) Materials are solid waste if they are abandoned by

being:

(1) Disposed of; or

(2) Burned or incinerated; or

(3) Accumulated, stored, or treated (but not recycled)

before or in lieu of being abandoned by being oes

of, burned, or incinerated.