Love Canal Remediation Claims Revived in N.Y.

     ROCHESTER, N.Y. (CN) – Claims that a decades-old “toxic stew” of harmful chemicals in Love Canal was not properly remediated have been revived by a New York appeals court.
     A five-judge panel reversed parts of an order of the Supreme Court for Niagara County in Abbo-Bradley v. City of Niagara Falls, ruling that plaintiffs properly argued noncompliance with a federal clean-up plan.
     The Love Canal neighborhood of Niagara Falls was originally conceived of as a hydroelectrically-powered residential community, but that plan was abandoned when alternating current electricity came into vogue, according to the EPA website.
     Beginning in the 1920s, the abandoned canal was used as a chemical dumping site by both the city and the Hooker Chemical Co., whose successor is named in the current lawsuit.
     The city bought the land in 1953 and built homes and a school on it, according to the EPA.
     Residents began complaining to state and federal environmental agencies about noxious odors in the 1960s, and then contaminated groundwater bubbled to the surface in the 1970s, after a series of wet winters that raised the water table.
     It wasn’t until 1978 that news of carcinogens in the water, soil and structures of Love Canal hit the front page of The New York Times.
     The state evacuated the area and investigated “a disturbingly high rate of miscarriages, along with five birth-defect cases detected thus far in the area,” the EPA says.
     Remediation efforts were turned over to Hooker’s successor, Occidental Chemical, in 1995, and the plaintiffs claim more than 260 homes have been sold there since it was deemed habitable.
     But a sewer excavation project in 2011 revealed “certain ‘signature’ Love Canal contaminants,” a discovery that was reported to the city, but not to Love Canal residents.
     The defendants failed to contain the chemicals, the plaintiffs claim, instead opting to spray the area with high-pressure water hoses, which only spread the contaminants into the community.
     They say they have suffered birth defects, soft and/or crumbling teeth, reproductive disorders, cancer and severe heart conditions, according to the complaints.
     While the defendants properly argued that nuisance and trespass claims brought by homeowners on behalf of their minor children were improper and warranted dismissal, the plaintiffs’ negligence, abnormally dangerous activity, nuisance and trespass claims did not, the appeals court ruled.
     The Supreme Court improperly accepted the defendants’ argument that the plaintiff’s tort claims were not allowed under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
     The plaintiffs, however, have consistently argued they are not challenging the effectiveness of the remediation plan, “but instead challenged defendants’ allegedly faulty performance of their respective obligations in executing the CERCLA remedy,” the appeals court found.
     The order was issued by the Fourth Department of the Appellate Division of the New York Unified Court System on Oct. 2.

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