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National R.R. Passenger Corp. v. New York City Hous. Auth.

ELR Citation: 26 ELR 20379
Nos. No. 91 Civ. 4945 (JSM), 819 F. Supp. 1271/37 ERC 1536/(S.D.N.Y., 04/15/1993)

The court holds that a railroad alleged a prima facie claim for cost recovery under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against private and public owners of buildings containing asbestos that allegedly flaked off onto the railroad's tracks and into the air in its tunnel. The court first notes that asbestos is a hazardous substance for CERCLA purposes. The court holds that the railroad properly alleged that the buildings and tracks are facilities for CERCLA purposes because they were sites where a hazardous substance had come to be located. The asbestos-coated surfaces are not subject to the "consumer products in consumer use" exclusion for facilities, because the asbestos was not in this instance contained in drums waiting to be put to a consumer use. The railroad properly alleged that the building owners are responsible persons under CERCLA because they arranged for the disposal of hazardous substances when they made the affirmative decision not to remove the asbestos from their sites after being notified of the problem. In addition, they did not contest that they are the owners and operators of their respective facilities. There was a release into the environment because the asbestos flaked into the air of the tunnel which is open to the rest of the atmosphere. The release and threatened release of asbestos is not within the exclusion for releases of building materials within the same building, because the asbestos coated surfaces are not part of the rail tunnel structure, but instead form the surface of defendants' structures which abut the tracks. The exclusion for workplace releases is also inapplicable. Also, the railroad incurred costs to remove the asbestos from the building structure and the removal was consistent with the national contingency plan.

The court holds that the railroad properly alleged the elements of an intentional and negligent nuisance claim. The railroad properly alleged that the defendants intended or were negligent in causing the nuisance, that it informed the defendants of the interference to its use of its tracks caused by the presence of the asbestos, and that the defendants knew that the invasion resulted or was substantially certain to result from their failure to remedy the situation. The court next holds that the defendants' assertions that their failure to remove the asbestos was reasonable in light of the available alternative measures, and that they did not have a reasonable opportunity to abate the nuisance, raise questions of fact that preclude summary judgment. The court dismisses the railroad's claim that the defendant's failure to exercise due care and maintain the asbestos is an ultrahazardous activity. Under New York law an activity is ultrahazardous irrespective of the due care applied. The court holds that the intent requirement for the railroad's trespass action was met because the railroad alleged that it notified the defendants that the asbestos was falling on its tracks. The court also holds that the railroad properly alleged claims for restitution and indemnity under New York law. The railroad adequately identified the sources of the parties' respective duties to abate the asbestos, and its claim under CERCLA if proved, would establish a duty to indemnify on the part of the defendants. The court holds that the railroad's breach of covenant claim was properly alleged where the covenant in question could be construed to require the private owner to prevent the use of its property from interfering with the railroad's use of its easement. The court also holds that the railroad's allegations of tort liability due to the defendants' violation of the building code state a claim on which relief can be granted.

The court next holds that the private landowner's third-party CERCLA claim against the prior owner of its building and the prior owner's lessee should not be dismissed. The private landowner properly alleged that asbestos flaked onto the tracks while the building was being constructed, and that the third-party defendants owned and operated a facility. The court next dismisses the private landowner's third-party claim against the prior owner and its lessee for contribution and indemnification for nuisance based on an ultrahazardous activity. The railroad's claim having been dismissed, the private owner's claim for contribution is also dismissed. Finally, the court dismisses the lessee's counterclaim against the municipal owner because no basis for the claim was alleged.

Counsel for Plaintiff
Charles S. Warren
Robinson & Silverman
1290 6th Ave., New York NY 10104
(212) 541-2000

Counsel for Defendants
Mark F. Walter
New York City Housing Authority
General Litigation Division
250 Broadway, New York NY 10007
(212) 776-5033