Prior to the conveyance, the City operated a landfill on the site from approximately Spring 1953 until late 1954. Tr. 5210 (Cull). The City stipulated that it filled open portions of the Love Canal property with, among other things, ash from the municipal incinerator, cinders collected from homes, and dirt. Ex. 3626, No. 24. OCC offered testimony at trial intended to show that the City also buried hazardous wastes on the site. OCC Proposed Findings of Fact, pp. 9-13.
Also prior to the conveyance, the City constructed Wheatfield Avenue and the Wheatfield Avenue sanitary sewer across and through the Love Canal landfill. Ex. 3626, Nos. 31, 32. The City excavated the landfill to construct the street and sewer, and backfilled the sewer lines with excavated soil. Id., No. 33. There was testimony at trial that the City encountered hazardous wastes during the excavation, and that the sewer system transmitted chemicals away from the site. OCC Proposed Findings of Fact, p. 16.
In about 1959, the City constructed Read Avenue between 97th and 99th Streets and installed a storm drain as part of the project. Ex. 3626, No. 35. Read Avenue was constructed across the Love Canal disposal area, and the City excavated the property in the process. Id., No. 36. Evidence was offered at trial that the City uncovered drums during the construction, and that the storm drain conducted chemicals offsite. OCC Proposed Findings of Fact, pp. 16-17.
In 1962, the Board conveyed the southern portion of the site to Mr. Ralph Capone. Item 311, Ex. 44. The State of New York thereafter acquired a portion of Capone's property through the exercise of its eminent domain power to build the LaSalle Expressway. Id. at 41.
By the mid-1970s, complaints about surface exposure to chemical wastes had increased significantly. These complaints were eventually accompanied by reports from neighboring residents of chemicals seeping into their homes. Their reports led a series of governmental agencies to investigate the site, establish an interagency task force, and decide on a course of remedial action. Hooker Plastics & Chemicals Corp., 850 F. Supp. at 1039.
The City prepared and presented a preliminary program for addressing the conditions at Love Canal on January 13, 1977. The City participated in the formation of the Love Canal Study Group, which ultimately included Hooker and other local governments. The City also contracted with a number of companies to investigate leachate movement, vacuum surface liquid, and develop a remediation plan. City's Proposed Findings of Fact, PP 12-15.
On June 20, 1978, New York State Commissioner of Health Robert H. Whalen, M.D. ordered the Niagara County Board of Health "to abate the public health nuisance now existing at the Love Canal landfill . . . ." Item 252, Ex. 2, p.3, and subsequently issued an order on August 2, 1978 declaring the site a public health emergency. Id., Ex. 3, p.11. As a result of information gathered by a study group and Whalen's staff, further investigation was ordered. A remedial plan and this lawsuit followed.
In Supplemental Order No. 41, this court found OCC jointly and severally liable under the common law of public nuisance. The court also held that:
While the exculpatory covenant contained in the deed provision, at least arguably, serves as express consent to invoke the assumption of risk defense in this case, I believe that the public policy exception should apply for several reasons. . . . Perhaps most importantly, OCC's assertion of assumption of risk as a defense to its liability for restitution should not as a matter of public policy be allowed to completely bar recovery by the State for the costs it incurred, on lands properly acquired, in exercising its police power to protect the public health.