DFA files suit against Burlington on asbestos

by Karen E. Culp

SBJ Staff

A 13-year-old debate concerning asbestos removal may be keeping Dairy Farmers of America from selling its former headquarters building at 3253 E. Chestnut Expwy.

DFA filed a petition Aug. 18 in Greene County Circuit Court, asking for $1 million or more in damages to remove the remaining asbestos from the premises, thereby freeing it to complete its contract to sell the building.

"The particular buyer, and buyers in general, don't want to purchase this problem," said John Price, attorney for DFA.

DFA is the legal successor to Mid-America Dairymen, a one-time Springfield-based dairy cooperative that merged with three other cooperatives in 1998 to form the nation's largest milk marketing agency. The cooperative moved its headquarters to Kansas City and moved most of its offices from the building on Chestnut following the merger.

DFA (then Mid-Am) purchased the building from Burlington Northern Santa Fe in 1986, according to the DFA petition. Prior to the cooperative's purchase, the railroad company had employed Western Spray Insulation to remove all asbestos-containing materials from the building.

When the dairy cooperative completed its purchase of the building and began remodeling, "representatives of the defendant discovered additional asbestos-containing materials at the premises and notified plaintiff. ... Defendant then orally agreed to remove the remaining asbestos-containing materials from the premises..." the petition states.

From 1986 until 1999, Burlington paid for additional asbestos removal, on at least five occasions, the suit said. When the cooperative began negotiating with a potential buyer in spring of 1999, the buyer asked for an environmental assessment of the property, the petition states.

"At that time, they discovered a great deal of additional asbestos in the building," Price said.

Removing the remaining asbestos will cost $1 million to $1.4 million, the petition states, and DFA has demanded that Burlington Northern honor its oral agreement to remove the remaining asbestos.

"Despite said demand, defendant has failed and refused to perform such asbestos removal work or to acknowledge its obligation to do so," the petition states. It further states that the railroad company has partially performed its oral agreement, in that Burlington Northern has paid for asbestos removal in portions of the premises, but that it breached the agreement in June, when the railroad company refused to confirm that it was to remove the remaining asbestos.

Price said that at the time of the sale of the building to DFA, there were no requirements to reveal the level of asbestos in the building, and that the only regulations on the substance pertained to disturbing it for renovation or other building projects.

A complete evaluation of how much asbestos the building contained was not performed at the time of DFA's purchase because environmental assessments "were not nearly so standard a practice as they are now. At that time the railroad made specific representations that there was no asbestos remaining in the building," Price said.

Repeated tests throughout the years indicate no asbestos has been released in such a way as to harm individuals in the building, Price said.

"It is important to note that there is no danger to those who would be in the building of harm from asbestos," he added.

There is no schedule yet for the lawsuit, Price said, adding that the railroad has yet to file its answer to the petition and has time remaining to do so.

The DFA building has been for sale for about a year, said Bill Beall, owner of Bill Beall Co., the real estate company that has listed the property for sale. The property has been under contract for some time, Beall added, but the sale has not been completed because of the outstanding asbestos problem, Price said. The 155,000-square-foot building is listed for about $5.8 million.

DFA relocated its headquarters, following the merger, to Kansas City, though it maintains some offices in the building on Chestnut, as does Burlington Northern Santa Fe.

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