A recent Appellate Court decision regarding the Love Canal disaster has apparently doomed new Love Canal claims to decades of litigation.
A plethora of defendants have been returned to court, making the litigation of alleged unsafe handling of the hazardous waste a more complicated process to resolve.
The decision of the Fourth Appellate Department, dated Oct. 2, restored the full complaint of plaintiffs against eight named defendants necessitating pre-trial discovery and other court process that could prolong the litigation. The Niagara County Supreme Court decision that was modified by the Appellate Division decision, had removed numerous defendants from the litigation. Now, they have all been restored as parties to the litigation.
The City of Niagara Falls; Glenn Springs Holdings, Inc.; Gross PHC LLC; Miller Springs Remediation Management, Inc.; Oxy, Inc.; Op-Tech Environmental Services; Roy’s Plumbing, Inc.; and Scott Lawn Yard, Inc. are the defendants in the pending litigation.
The last of the first string of the Love Canal State cases was resolved in 2005, stemming all the way back to 1978. It took 27 years to fully litigate and resolve the prior cases. On the other hand, the federal case started in 1979, and was finally resolved in 1994, 15 years of court proceedings.
“Yes, the present litigation has the potential to take a very long time,” states Tom O’Donnell, attorney representing the City of Niagara Falls. “We have people from two miles away claiming they were affected by the toxic chemicals.”
Explained T.J. Frain, a plaintiff in the prior string of Love Canal cases who still resides in the Love Canal area, “My whole family who lived in the Love Canal has asthma and many got cancer. My brother was born with one testicle and two thumbs on one hand.
“I’m not sure how long the pending litigation will take. I was lucky and got my settlement quickly. Families may need the money for medical bills. Even worse, they might have limited health insurance.”
The named defendants have rebutted the plaintiffs, claiming that the plaintiffs are seeking federal relief and are, therefore, seeking aid from the wrong court.
The plaintiffs instituted the litigation in search of relief regarding personal injury and property damage claims. The defendants allegedly failed to accomplish their specific duties, which involved remediating and monitoring the contamination of the Love Canal site, causing damages to the plaintiffs.
Additionally, claims were made that a spontaneous release of toxins occurred during a renovation of a sewer outside of the remediation area in January 2011. The cleanup of the Colvin Boulevard trench site, where this incident occurred, was allegedly ineffective. Instead of collecting and removing the chemicals, the suits claim that the toxins were dispersed throughout the community.
The Love Canal disaster started in the 1940s due to the negligent dumping of approximately 21,000 tons of toxic chemicals into a ditch by Hooker Chemicals and other chemical companies. Later, Hooker Chemicals sold the site to the Niagara Falls School Board in 1953.
The construction of the school on the premises disturbed the chemicals in the soil. It wasn’t until after a community of houses and the school was developed, that people became aware of the chemicals and health hazards.
The 1970s Love Canal incident drew national attention, culminating in President Jimmy Carter declaring the area an environmental disaster and authorizing the federal government to purchase the homes of Love Canal residents. This resulted in the demolition of several neighborhood blocks and the relocation of 800 families from the Love Canal area.
The Love Canal site is now a fenced-off area with numerous collection sites and monitoring pipes dotting a large mounded grassy area. Although the fenced off area is a forever-lasting reminder of the disaster, the surrounding area is now a nice, redeveloped neighborhood with kids playing in the streets. Although a pre-Halloween visit to the site revealed skeletons and other Halloween decorations on neighboring houses, the grassy terrain shows no sign of the horrors that took place just 40 years earlier.
There were more than a thousand claims involved in the first litigation as a result of the contamination of the Love Canal area. There is great concern that the length of time it took to dispose of prior suits could be a harbinger of how long the present litigation will take. There are currently over a thousand new claims made by plaintiffs claiming new injuries from the Love Canal.
The present Love Canal suits have been assigned to New York Supreme Court Justice Richard C. Kloch Sr.
“I can’t talk about the present suits, judicial ethics precludes me from talking about any case in litigation,” states Kloch. However, he could comment about the first round of Love Canal lawsuits. “I’ll never forget the final family who had their case resolved by me in 2005. I have to tell you I really believe that the whole legal system had let that family down.”
This suit settled for an undisclosed sum of money and was subject to a confidentiality agreement.
“It was documented to me that there was absolute proof that there were various health issues that affected a number of members of that family of a serious nature,” says Kloch, regarding the damages to the family. “The coincidence was beyond belief. There had to be some relation between where they had been living and what happened to that family.
“I have to give credit to Occidental. We didn’t go to a trial. We settled it after much discussion and got a satisfactory result from that lawsuit on behalf of that family. It is unimaginable that it took from the 1970s to 2005 to resolve that litigation and I felt sorry for that family.”
The Appellate Division did dismiss a nuisance cause of action brought by the parents of children named in the litigation citing that the children owned no property interest in the affected area.
There is no court date currently scheduled to begin the long process of pre-trial discovery necessary to bring the various suits to trial.
Richelle Kloch is a student at Niagara University and the daughter of Judge Richard Kloch Sr.