Major Victory for New Orleans’ 9th Ward in Fourth Circuit

NEW ORLEANS (CN) – Thousands of people in New Orleans’ Ninth Ward got some welcome news when the Fourth Circuit affirmed they deserve compensation for property devaluation and emotional distress for living and working for years atop a landfill Superfund site.

The city of New Orleans and Orleans Parish School Board, among other defendants, face $50 million or more in damages for not disclosing to residents and elementary school students and staff that the land on which they worked and lived was filled with heavy metals, including mercury, lead and other toxic materials, from half a century of use as a landfill. A three-judge panel of the Fourth Circuit affirmed the trial court ruling on April 26.

Litigation began in 1994, when the plaintiff class learned the land was contaminated.

The Ninth Ward is the easternmost downriver section of New Orleans, bounded on the south by the Mississippi River. Its many famous natives include Fats Domino, pianist-composer Jon Batiste and his musical family, actor John Larroquette and NFL running back Marshall Faulk.

From the 1900s until 1958, the City of New Orleans leased more than 100 acres in the Ninth Ward for a municipal landfill and garbage dump. In 1965 the city reopened the site to dispose of massive quantities of debris after Hurricane Betsy.

Two years later, the city and the U.S. Department of Housing and Urban Development entered into an agreement for development of residential properties in the area, and over the course of the next two years, Press Park townhomes and apartments were constructed. No remediation or site preparation was done before the houses were built, according to court documents.

The Housing Authority of New Orleans sold the properties and never advised the buyers or residents that the land had been a landfill.

In 1975, Orleans Parish School Board bought a tract of the land for construction of a new elementary school. Because the school board knew of the history of the land as a landfill, it had soil testing conducted. The testing identified numerous toxic and hazardous materials, including lead, arsenic and mercury. Remediation was undertaken and Moton Elementary School opened for kindergarten through sixth grade, with 900 students.

In 1987, the EPA tested soil in the neighborhood. Results from the tests were never given to residents — though the EPA found the soil was contaminated.

Around the same time, the city began testing children from the neighborhood to determine if they had increased levels of lead in their blood, yet the city never mentioned the contaminated soil, court documents state.

Five years later, in 1993, the EPA tested more soil in the neighborhood. The tests indicated the soil was contaminated with more than 140 toxic substances, more than 40 of which are known to cause cancer in humans.

The next year, the EPA conducted more tests and determined the neighborhood was so contaminated it qualified as a Superfund site.

In 2000 and 2001, the EPA performed a partial remediation of approximately 10 percent of the site, according to court records. The contaminants at the surface of a portion of the site were excavated and replaced with clean soil, buy the soil below the homes was never cleaned up.

Plaintiffs worked or owned property next to the Agriculture Street Landfill and were exposed to toxic material after the Department of Housing and Urban Development approved development of public and private housing in the affected area.

A trial court judge awarded damages for pain and suffering and property devaluation, and the defendants appealed. The Fourth Circuit affirmed last week.

Chief Deputy City Attorney Adam Swensek said he cannot comment on ongoing litigation.

Joseph Bruno, one of the attorneys representing the class of thousands in a phone interview Friday, called the ruling “terrific.”

“It confirms what the Fourth Circuit had done previously,” Bruno said, and he said it means there is a very good chance the thousands of plaintiffs will see an award for damages.

Judges on the panel were Terri F. Love, Sandra Cabrina Jenkins, and retired Judge Marion F. Edwards.

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