LOCKPORT - Niagara County Judge Matthew J. Murphy III will decide in the next few weeks whether the City of Niagara Falls should be allowed to escape from a lawsuit in which three Love Canal-area families are seeking $113.6 million in damages.
The suit, filed in April, contends that health problems, including a baby born with severe birth defects, were caused by chemicals leaking from the nearby Love Canal containment area. They came to light Jan. 11, 2011, when an effort to repair a sewer line on Colvin Boulevard went awry.
In an interview, Christen Civiletto Morris, a plaintiffs' attorney, said that there may be further suits filed by former Love Canal-area residents who attended 93rd Street School or swam in its pool. A meeting was held Aug. 21, Civiletto Morris said, and since then, other former residents have told her about health problems that became evident decades later.
But a court session Thursday was devoted to the three families, from 90th, 92nd and 93rd streets, who already have sued. "They assert they were exposed to chemicals over a long period of time, as well as acutely when a trench was opened up on Colvin Boulevard between 96th and 97th streets," Civiletto Morris said.
She said that chemicals of the same type found at Love Canal were discharged and that a leak was seen in the basement of one of the families' homes that city crews tried to repair for two months.
"The City of Niagara Falls was responsible for plugging a sewer that would have prevented the rush of chemicals into their home," Morris contended.
Assistant Corporation Counsel Douglas A. Janese Jr. argued that the city is entitled to a dismissal because the plaintiffs didn't show up for a mandatory hearing between the filing of the notice of claim and the actual suit. Plaintiffs' attorney Richard J. Lippes said the fault lay with a previous attorney and doesn't constitute grounds for getting the city out of the suit.
Janese said the city has factual angles to use, too. In 2003, the city turned over control of its water and sewer lines to the city Water Board, a quasi-independent authority. The suit doesn't claim any misdeeds before 2003. "Based on what's in their complaint, it's clear the city has no liability," he argued. "The city has no part in this project."
But attorneys for the Water Board said they will sue the city if it is taken out of the families' case, contending that the 2003 contract guarantees that the city will indemnify the Water Board for environmental claims. "These chemicals had likely been in [the Colvin sewer] since 1985 or 1986, when some cleaning activities were done in the sewers," Morris said.
The state Department of Environmental Conservation's website includes a statement asserting that the Colvin Boulevard pipe has a lower elevation than 16 other sewers repaired recently in the neighborhood, where there was no contamination found. Because of the elevation, the 1980s cleaning "may not have been effective within this isolated location."
The DEC believes that the toxic stew in the Colvin sewer dates from the original Love Canal disaster and asserts that there is no evidence the containment structure is leaking.