ELR Citation: ELR 20354
No(s). CIV-79-990C (W.D.N.Y. Aug 25, 1989)

The court holds that Occidental Chemical Company is liable for creating a public nuisance at the Love Canal landfill even though Occidental gave the new owner notice that hazardous wastes had been disposed of in the canal. Occidental deposited 40 million pounds of liquid and solid chemical waste in the Love Canal before selling the southern portion of the site to the City of Niagara Falls Board of Education (Board). The sale agreement notified the Board that Occidental had disposed of chemical wastes at the site and contained a disclaimer of liability to subsequent purchasers. The court, which previously found Occidental liable for the release or threatened release under the Comprehensive Environmental Response, Compensation, and Liability Act, holds that no genuine issue of material fact remains as to Occidental's responsibility for the release and threatened release of hazardous wastes into the environment in this nuisance claim. The court rejects Occidental's "sale defense" because of the different interests protected by the doctrines of public and private nuisance and the nature of the activity involved. Finally, the court holds that Occidental's assumption of risk defense, which alleges that the state expressly assumed the risks of injury resulting from the wastes deposited at the Love Canal when it acquired a portion of the site, applies to this case but does not bar recovery from Occidental. Thus, recoverable damages will be diminished in an amount attributable to the damages caused by the state's culpable conduct.

[Previous decisions in this litigation are published at 11 ELR 20883, 12 ELR 20701, 14 ELR 20875, 15 ELR 20801, 16 ELR 20079, and 18 ELR 20580.]

Counsel for Plaintiff
Eugene Martin-Leff
New York State Department of Law
Environmental Protection Bureau, 120 Broadway, 26th Fl., New York NY 10271
(212) 341-2466

Counsel for Defendant
Thomas H. Truitt
Piper & Marbury
1200 19th St. NW, Washington DC 20036
(202) 861-3900