The opinion of the court was delivered by: JOHN S. MARTIN, JR.
JOHN S. MARTIN, Jr., District Judge:
There are before the Court various motions to dismiss the complaint, third-party complaint, and third-party cross-claims, either in their entirety or in part, pursuant to FED. R. CIV. PRO. 12(b)(6) and 12(c), for failure to state a claim upon which relief can be granted.
Plaintiff National Railroad Passenger Corp. (Amtrak) owns tracks which are built in a cut, or depression, in the earth in Manhattan (the Westside line). The defendants, New York City Housing Authority (NYCHA) and Robert Born Assocs. (Born), are owners of the land upon which the tracks were built and buildings which were constructed over the tracks. The tracks are laid across defendants' properties on easements.
The third-party defendants are: The Despatch Shops (Despatch), the former owner of the property now owned by defendant Born at the time the building was erected; Lawrence Silverstein and Harry Silverstein (deceased), Bernard Mendik, Motel City, Inc. (adjudicated bankrupt), and Motel City C Assocs., collectively the previous lessee of the Born property that built the structure in question (hereinafter "Motel Defendants"); and Travelodge Corp. and Travelodge Int'l, Inc., (collectively Travelodge) the lessee of the Born property until 1979, on a lease assigned to Travelodge by the Motel Defendants in 1964.
The Westside line predates the buildings. The buildings were constructed on steel pillars placed between and beside the tracks by the Motel Defendants and NYCHA. During construction these pillars and the bottoms of the buildings were coated with asbestos containing material (ACM) to protect the buildings from fire.
In 1986, Amtrak undertook to renovate the Westside line in order to reopen service on these tracks. During renovation, it was discovered that ACM had been and was still flaking off the pillars and undersides of the buildings and falling on the tracks. Amtrak notified the owners of the buildings of the problem in November 1989, and sought to negotiate the removal of the ACM in a timely fashion. The operable time constraint was the self-imposed timetable for reconstruction that Amtrak was pursuing. NYCHA and Born allegedly sought to evade responsibility for removal of the ACM. Amtrak finally hired private contractors to remove the asbestos and notified NYCHA and Born that it had done so. The work was performed during May through July 1990.
Plaintiff claims that Born and NYCHA are liable for the costs of investigation, and clean-up and replacement of the ACM (response costs) under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. § 9601, et seq. (1983 & Supp. 1992) [hereinafter CERCLA], also known as the Superfund. Plaintiff has also asserted claims for intentional and negligent private nuisance, nuisance based upon ultrahazardous activity, trespass, restitution and indemnity, breach of covenants, and a claim based on a violation of the City building code. Defendants move to dismiss these claims.
Born seeks indemnification or contribution from the third-party defendants. Third-party defendants move to dismiss these claims.
Travelodge seeks contribution or indemnification from defendants and third-party defendants. Defendant NYCHA moves to dismiss these claims.
"[A] complaint should not be dismissed for failure to state a claim unless it appears that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). This standard applies to motions to dismiss under both FED. R. CIV. PRO. 12(b)(6) and 12(c). New York v. SCA Servs., Inc., 754 F. Supp. 995 (S.D.N.Y. 1991).
To withstand the motion to dismiss its CERCLA claims, plaintiff must have alleged the five elements of a prima facie claim which are:
(1) defendant fits one of four classes of responsible parties outlined in § 9607(a);
(2) the site is a facility;
(4) the plaintiff incurred costs responding to the release or threatened release; and
(5) the costs and response actions conform to the National Contingency Plan set up under the Act and administered by the EPA in order to prioritize hazardous substance release sites throughout the nation.
As a preliminary matter it is important to note that asbestos is a hazardous substance for purposes of CERCLA. 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355, 1361 (9th Cir. 1990).
The disposition of much of this motion depends upon whether or not the sites in question are facilities for CERCLA purposes. CERCLA defines "facility" as "(A) any building, structure, installation, pipe, pipeline . . ., or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel . . . ." 42 U.S.C.A. § 9601(9).
Defendants assert that the ACM was a consumer product in consumer use when applied to the building structures and is therefore excluded from the meaning of "facility." However, given that the "consumer products" exclusion is located in the definition of "facility", a definition clearly addressing locations covered by CERCLA, the relevant question actually pertains to the location of the hazardous substance which is a consumer product in consumer use, not merely the use to which the substance was put. See People v. Blech, 976 F.2d 525, 527 & n.1 (9th Cir. 1992) (explaining holding of 3550 Stevens Creek Assocs., 915 F.2d 1355) (building constructed with asbestos a facility); CP Holdings, Inc. v. Goldberg-Zoino Assocs., 769 F. Supp. 432, 438-39 (D.N.H. 1991) (hotel constructed with asbestos a facility); New York v. General Elec. Co., 592 F. Supp. 291 (N.D.N.Y. 1984) (drag strip sprayed with transformer oil to keep down dust a facility); Electric Power Bd. v. Westinghouse Elec. Corp., 716 F. Supp. 1069 (E.D. Tenn. 1988) (transformer containing PCB's not a facility). But see Dayton Indep. School Dist. v. U.S. Mineral Prods., 906 F.2d 1059, 1065-66 (5th Cir. 1990) (ACM used as building material so building not a facility). Thus, the proper approach is to construe the "consumer product in consumer use" exclusion from the broad definition of "facility" to mean the term does not encompass consumer products in consumer use which are, in effect, containers of hazardous substances, such as transformers which contain PCB's.
In this case, the support pillars and the undersides of the buildings were themselves coated with ACM. The ACM was not, for instance, contained in drums waiting to be put to a consumer use, in which case the drums would not be facilities. ...