US v. Hooker Chemicals & Plastics Corp.

• Decision Date: 25 August 1989
• Docket Number: No. CIV-79-990C.,CIV-79-990C.
• Citation: 722 F. Supp. 960
• Parties: UNITED STATES of America; The State of New York, and UDC-Love Canal, Inc., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION, et al., Defendants.
• Court: U.S. District Court — Western District of New York

722 F. Supp. 960

UNITED STATES of America; The State of New York, and UDC-Love Canal, Inc., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION, et al., Defendants.

No. CIV-79-990C.

United States District Court, W.D. New York.

August 25, 1989.

Robert Abrams, Atty. Gen., State of N.Y. (Eugene Martin-Leff, Louise A. Halper, and Lewis M. Milford, of counsel), New York City, for plaintiffs.

Piper & Marbury (Thomas H. Truitt, of counsel), Washington, D.C., for defendant Hooker Chemical & Plastics Corp.

SUPPLEMENTAL ORDER No. 41

CURTIN, District Judge.

Pending for decision is plaintiff State of New York's motion, pursuant to Fed.R. Civ.P. 56, for partial summary judgment as to defendant Occidental Chemical Corporation OCC's liability in this action under the New York common law of nuisance. Specifically, the State seeks this court's determination that OCC is liable as a matter of law for the creation of a public nuisance at the Love Canal landfill site, as well as for the costs incurred by the State in cleaning up the site. The State also seeks a determination that several of OCC's affirmative defenses are insufficient as a matter of law to defeat its nuisance liability. See Item 252, pp. 1-3.

For the purpose of deciding the instant motion, it is necessary to set forth the underlying facts in some detail. In May of 1894, William T. Love began construction of a canal to connect the upper and lower portions of the Niagara River as part of a comprehensive project to develop and utilize the area's water power potential. The construction was subsequently abandoned when industrial financiers of Love's company (the Niagara Power and Development Corporation NPDC) withdrew their backing due to several factors, such as the discovery of new ways to economically transmit electrical power, new legislation prohibiting the diversion of water from the upper Niagara River, and the depression of the 1890s. The unfinished canal, about three-quarters of a mile long, thirty feet deep, eighty feet wide at the top and forty feet wide at the base, was essentially intact when, in the early 1940s, OCC's corporate predecessor the Hooker Electrochemical Company Hooker sought to purchase the sixteen-acre canal site from NPDC. See Exhs. 1, 16, to Affidavit of Steven K. Yablonski, attached to Item 388.

In April, 1942, OCC and NPDC entered an agreement allowing OCC to use the Love Canal property for disposal of chemical wastes generated at its Niagara Falls plant while negotiations continued for purchasing the site. OCC actually purchased the property in 1947, and continued to dispose of chemical wastes there until it sold the property to the City of Niagara Falls Board of Education the Board, for one dollar, in April, 1953. During its ownership and use of the property between April, 1942, and April, 1953, OCC deposited some 21,800 tons — more than 40 million pounds — of liquid and solid chemical waste in the Love Canal, including several substances designated as hazardous under the Clean Water Act, 33 U.S.C. §§ 1317(a) and 1321(b)(4), and the Comprehensive Environmental Response, Compensation and Liability Act CERCLA, 42 U.S.C. § 9601(14). Item 252, pp. 3-8; Item 309, pp. 2-3. For several years prior to 1953, the City of Niagara Falls the City also used the canal to dispose of "municipal wastes." Exh. 3, p. 4, attached to Item 252.

The deed conveying the Love Canal property to the Board contained the following provision:

Prior to the delivery of this instrument of conveyance, the grantee herein has been advised by the grantor that the premises above described have been filled, in whole or in part, to the present grade level thereof with waste products resulting from the manufacturing of chemicals by the grantor at its plant in the City of Niagara Falls, New York, and the grantee assumes all risk and liability incident to the use thereof. It is, therefore, understood and agreed that, as a part of the consideration for this conveyance and as a condition thereof, no claim, suit, action or demand of any nature whatsoever shall ever be made by the grantee, its successors or assigns, against the grantor, its successors or assigns, for injury to a person or persons, including death resulting therefrom, or loss of or damage to property caused by, in connection with or by reason of the presence of said industrial wastes. It is further agreed as a condition hereof that each subsequent conveyance of the aforesaid lands shall be made subject to the foregoing provisions and conditions.

Exh. 4, attached to Item 311. During the next several years, a number of events took place on the property, including the construction of a school by the Board, the City's installation of sanitary sewer lines and removal of several thousand cubic yards of the soil used to cover the wastes deposited in the canal, and the State's relocation of streets and sewer lines onto the property in the late 1960s to allow for construction of the LaSalle Expressway. Item 309, pp. 6-9. In 1962, the Board conveyed the southern portion of the site to Mr. Ralph Capone (Exh. 44, attached to Item 311), who subsequently conveyed it to Mr. Lee C. Armstrong. Id., Exh. 51. Several homes were built adjacent to the canal during this time. Item 252, p. 9.

During the 1970s, "hazardous substances were ... detected in the surface water, groundwater, soil, the basements of homes, sewers, creeks, and other locations in the area surrounding the Love Canal landfill...." United States v. Hooker Chemicals and Plastics Corp., 680 F.Supp. 546, 549 (W.D.N.Y.1988). 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 Chemical Waste Landfill site" (Exh. 2, p. 3, attached to Item 252), and subsequently issued an order on August 2, 1978, declaring the site a public health emergency. Id., Exh. 3, p. 11. Five days later, on August 7, 1978, President Jimmy Carter declared the site a federal emergency. Id., Exh. 5. David Axelrod, M.D., Dr. Whalen's successor, continued the State emergency order in full force and effect by order dated February 8, 1979 (id., Exh. 4), and President Carter issued a second federal emergency on May 21, 1980. Id., Exh. 6.

This action was filed on December 20, 1979, to recover costs incurred by the federal and state governments to prevent further migration of wastes, to relocate families, and for other actions taken in response to these emergency orders. In addition to ruling on several discovery motions throughout the already long history of this case, the court, in its order dated February 23, 1988, found OCC jointly and severally liable for these response costs under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and granted the plaintiffs' motions for partial summary judgment in that regard. 680 F.Supp. at 556-59.

In support of its instant motion, the State contends that the record is sufficiently well-developed for the court to further enter partial summary judgment, this time as to OCC's liability for public nuisance. According to the State, in an action brought in the exercise of its police power to abate a public nuisance or to seek reimbursement for the cost of abating the nuisance, New York common law imposes joint and several liability on those responsible for the nuisance without the need to show negligence or fault. Item 252, pp. 12-27; 69-71. The State contends that this "strict" liability extends to OCC for its waste disposal activities at Love Canal both prior to and during its ownership of the property, and cannot be avoided by OCC's sale of the property to the Board notwithstanding the notice and disclaimer in the deed. Id., pp. 29-48. With regard to causation, the State argues that OCC, by disposing hazardous wastes in the canal, created the risk of harm to the public health which later was realized as actual harm when those wastes migrated, and thus OCC cannot be relieved of liability for that harm based on any intervening acts that may have caused the migration to occur when it did. Id., pp. 49-69. The State further contends that once OCC's liability for public nuisance is established, the State can recover all of the abatement costs which it incurred as a direct response to the public emergency at Love Canal. Id., pp. 71-80. Finally, the State contends that since OCC's liability can be established as a matter of law, its affirmative defenses should be dismissed insofar as they relate to plaintiffs' claims under the common law of public nuisance. Id., pp. 80-97.

In response to these arguments, OCC contends that several complex factual issues relating to the causation of the public emergency and the potential liability of other parties remain in dispute so as to preclude summary judgment at this juncture. Item 309. According to OCC, the disposal of chemical waste is not per se abnormally dangerous activity, and such a determination must be made by the trier of fact on a case-by-case basis. Id., pp. 14-20. OCC further argues that it cannot be held liable for contributing to the nuisance without a showing, under traditional tort law principles, that it was the proximate cause of the nuisance, which OCC contends is a disputed issue of fact inappropriate for summary resolution. Id., pp. 20-31. Also inappropriate for determination on the instant summary judgment motion, according to OCC, are the questions as to whether independent, unforeseeable acts of third parties constituted superseding causes relieving it of nuisance liability (id., pp. 31-38), and whether its liability for the nuisance terminated upon the sale of the property when the new owner was given notice and the opportunity to abate the unsafe condition. Id., pp. 38-50. OCC contends that this "sale defense" applies to both public and private nuisance actions (id., pp. 45-48), and to both the periods prior to and during OCC's ownership of the Love Canal property....