In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1118

SYCAMORE INDUSTRIAL PARK ASSOCIATES,

Plaintiff-Appellant,

v.

ERICSSON, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

No. 06 C 768—David H. Coar, Judge.

ARGUED SEPTEMBER 9, 2008—DECIDED OCTOBER 20, 2008

Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.

FLAUM, Circuit Judge. In 1985, plaintiff Sycamore Industrial Park Associates bought an industrial property with

fixtures, 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
2 No. 08-1118

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 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
No. 08-1118 3

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 boilerbased 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 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 boilerbased heaters, but it left the old heating system in place.
4 No. 08-1118

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 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 system.

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.
No. 08-1118 5

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.

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 493, 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).
6 No. 08-1118

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; (3) 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.

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.3d 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.
No. 08-1118 7

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

make a case for Ericsson’s liability as a 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 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
8 No. 08-1118

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 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 383. 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. Id. 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
No. 08-1118 9

Plaintiff cites testimony of David Kedrowski, defendant’s 1

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.” (Pl. 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.

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 inside

a building or enclosed in a pipe chase or metal case. There 1

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 asbestoscontaining material was being used for its intended

purpose (to insulate structures), whereas in the instant

case the asbestos insulation was no longer serving a
10 No. 08-1118

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 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.J. 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.” Id. 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. Id. 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
No. 08-1118 11

hazardous waste and make a bona fide profit. We stated

the limiting principle may be whether the materials are

sold for reclamation. Id. 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 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
12 No. 08-1118

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 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. RCRA Claim

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, trans-
No. 08-1118 13

portation, 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

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
14 No. 08-1118

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 II New College 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 237, 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.

10-20-08