History of Agriculture Street Landfill Case
History of Agriculture Street Landfill Case

HISTORY OF AGRICULTURE STREET LANDFILL LITIGATION

From the early 1900's until approximately 1958, the City leased more than one hundred acres of land in the 9th Ward for the operation of a municipal landfill and garbage dump. It was known as the Agriculture Street Landfill ("ASL"). The ASL was located on property bordered by Almonaster Boulevard on the West, Higgins Boulevard on the North, Louisa Street on the East, and the Peoples Avenue Canal and railroad tracks on the South. The ASL was used to dispose of ash from the City of New Orleans' Incinerators. The landfill was closed in 1958.

In 1965, the City re-opened the ASL site for the disposal of massive quantities of debris created by Hurricane Betsy. Up to 300 truck loads per day of trash material was burned for 9 months. No specific closure plan was followed. In 1967, the City and HANO entered into an agreement to build residential properties in the Desire area of New Orleans. Between 1969 and 1971, Drexel Development Corporation built the Press Park townhomes and apartments for HANO. There was no environmental remediation of the site before Press Park was constructed. HANO supervised and monitored the construction of Press Park. Since 1971, HANO owned and operated Press Park. Some Press Park tenants participated in a "turn key" program, whereby a portion of their monthly rent was placed in an escrow account and applied toward the purchase of their town home unit. HANO did not advise turn key home owners that the site had once been a part of the City's landfill. Children from around the ASL neighborhood played on the Press Park playground, located behind the Shirley Jefferson Community Center, at the corner of Press and Benefit Streets.

In 1975, the School Board purchased a tract of land along Abundance Street in the ASL neighborhood, with the intent to build an elementary school. In the late 1970's the City performed soil testing in the Gordon Plaza area of the ASL neighborhood, in anticipation of the construction of the Gordon Plaza single-family homes. As a result of the soil testing, the City required the developer of Gordon Plaza to add topsoil before constructing the homes. The City has never produced a copy of the Gordon Plaza area soil testing and has not explained why the report was never produced.

In 1980, 67 single family homes were built comprising Gordon Plaza. The Gordon Plaza home buyers were not told that their homes were located on what had once been a part of the City's landfill. The School Board purchased land on the ASL site in the mid-1970's. In 1984, the School Board began plans for construction of the Moton Elementary School on the ASL site. Because the School Board knew when it purchased the property that the Moton School site had once been a part of the City's landfill, the School Board hired engineering firms to conduct an environmental evaluation of the School Board's property. Environmental testing on the school site identified the presence of numerous toxic and hazardous materials including lead, arsenic, mercury, and polycyclic aromatic hydrocarbons. Because of the presence of the toxic and hazardous materials, the School Board hired several environmental consultants to advise the School Board on how the school site could be remediated to eliminate the danger of harmful exposures created by the presence of the hazardous materials. At a school board meeting on February 25, 1985, the environmental consultants advised that the site may pose an unreasonable risk of exposure to hazardous materials to construction crews, school children and staff, and potentially to neighbors via ground and surface water.

Before the construction began on the school site, no fence or barrier was placed around the school's property. Neighborhood children played on the school board's undeveloped land. The residents of the adjacent area streets between Montegut and Feliciana were exposed to dust from contaminated soild during the construction of Press Park, Moton Elementary School, and Gordon Plaza Subdivision.

The EPA tested the soil in parts of the ASL neighborhood in 1986 to determine whether the ASL was contaminated. The residents were not given the results of the EPA's 1986 soil tests. After the 1986 tests, the residents were not told that their property was contaminated or given any special instructions to follow to protect themselves from soil exposure. Between 1985 and 1986, the Louisiana Department of Health and Agency for Toxic Substance and Disease Registry conducted public health screenings of children in the ASL neighborhood to determine whether there was an increased incidence of lead poisoning. The results were not released to the community.

In 1986-1987, Moton School opened for kindergarted through sixth grade. There were about 900 children enrolled in the school. The School Board did not tell its employees or parents that the school had been built on a part of the City's landfill or that environmental testing had identified the presence of toxic materials on the school site.

Between 1991 and 1992, there were plumbing problems at Moton School caused by a construction defect which required under-slab construction and repairs. The repairs were made while school was in session. The construction trench around the school was deep enough for an adult man to stand erect indicating that the 3 foot layer of clean top soil had been breached.

In 1993, the EPA came back to test the ASL site. Based on those tests, the EPA told the ASL residents that their soil was contaminated with more than 149 toxic and hazardous materials, more than 40 of which are known to cause cancer in human beings. After the 1993 tests, the residents were warned to prevent exposures to the contaminated soil, and the playground equipment was removed. After the 1993 tests, EPA fenced an undeveloped area of land near Almonaster Boulevard to restrict access to it.

In 1994, the EPA placed the ASL neighborhood on the EPA's National Priorities List. Later in 1994, the EPA declared the ASL site sufficiently contaminated to warrant declaring it a superfund site - one of the most toxic and hazardous sites in the United States.

In 1994, a HANO official recommended that HANO stop placing new tenants in Press Park and should offer to move Press Park tenants into off-site housing. HANO did not enact this policy.

In 1994, the ASL residents formed Concerned Citizens of the Agriculture Street Landfill to qualify for a federal grant to pay for the services of a technical advisor. In response to the Superfund designation, the School Board closed the Moton School campus. For the next 6 years, the School Board rented a closed Catholic school in the Broadmoor area and bussed the Moton elementary students across town every day for school.

In the mid 1990s, EPA conducted an environmental clean-up on the site. The residents opposed the remediation as inadequate. Only 10% of the community's soil was actually remediated. No soil was removed from under buildings, houses or streets. After the EPA remediation work was completed, the ASL residents were given a certificate of completion confirming that their property had been partially remediated. Along with the certificate, ASL residents were given a list of permanent land use restrictions and advised that home owners were responsible for maintaining the integrity of the clean layer of topsoil and felt-like material that comprises the semi-permeable barrier.

As a result of the contaminated condition of the soil, the residents and students/employees of Moton were exposed on a daily basis to more than 140 toxic and hazardous materials from 1972 to date.

THE LITIGATION

In 1993, a class action lawsuit was filed against the City of New Orleans, HANO, the OPSB, and the insurers for HANO: Republic Insurance Company, National Union Fire Insurance Company of Pittsburgh, PA, U.S. Fire Insurance Company, and the Louisiana Insurance Guaranty Association for Southern American Insurance Company. On September 15, 1999, Judge Ramsey certified this case to proceed as a class action. The following attorneys were designated as Class Counsel: Suzette Bagneris (Lead Counsel), Linda S. Harang, Joseph M. Bruno, Stephen B. Murray, and George J. G. Roux. Nine ASL residents were appointed to serve as Class Representatives: Phyllis Smith, Don Lewis, Nathan Parker, Viola Allen, Peggy Grandpre, Lizette Gaines, Fannie Johnson, Iris Myers, and Diarra McCormick.

On January 7, 2005, and ending on March 11, 2005, Judge Nadine Ramsey presided over the trial of this case. Judge Ramsey rendered a Judgment in favor of the Class and against the Defendants. This was a judgment on the LIABILITY of the Defendants. She also rendered Judgment in favor of the Class Representatives on their individual damages claims, as follows: Phyllis Smith - $72,000.00; Don Lewis - $155,000.00; Nathan Parker - $145,000.00; Viola Allen - $140,000.00; Peggy Grandpre - $63,500.00; Lizette Gaines - $7,000.00; Fannie Johnson - $50,000.00; Iris Myers - $2,500.00; Diarra McCormick - $40,000.00. The Court used the following rationale for her awards:

GORDON PLAZA AND PRESS PARK HOMEOWNERS

Judge Ramsey ruled that property located on the ASL site lost value or suffered a decrease in value. She ruled that property owners on the EPA boundary were entitled to the FULL AMOUNT OF THEIR FAIR MARKET VALUE, AS THAT VALUE IS DETERMINED AT THE TIME THEY ARE APPRAISED IN SUPPORT OF THEIR CLAIMS.

ADJACENT AREA PROPERTY OWNERS

Judge Ramsey ruled that property on the adjacent area (between Montegut and Feliciana Streets and the West side of Louisa street) were entitled to 10% OF THEIR FAIR MARKET VALUE, AS THAT VALUE IS DETERMINED AT THE TIME THEY ARE APPRAISED IN SUPPORT OF THEIR CLAIMS.

MOTON STUDENTS AND EMPLOYEES

Judge Ramsey ruled that full time Orleans Parish School Board students and employees of Moton School are entitled to receive emotional distress damages of $2,000.00 FOR EACH YEAR OF THEIR FULL TIME ATTENDANCE OR FULL TIME EMPLOYMENT AT MOTON SCHOOL FROM AND INCLUDING THE 1986-1987 SCHOOL YEARS THROUGH AND INCLUDING THE 1993-1994 SCHOOL YEARS.

RESIDENTS OF GORDON PLAZA, PRESS PARK AND THE GORDON PLAZA ELDERLY CENTER

Emotional Distress Damages:

For 1-5 years -- $4,000.00 per year

For 5-10 years -- $25,000.00 total

For 10-15 years -- $30,000.00 total

For 15-20 years -- $40,000.00 total

For 20 years or more -- $50,000.00 total

FOR RESIDENTS OF ADJACENT AREA

$2,500 in emotional distress (total)

***Each award is subject to 100% judicial interest - so awards were doubled.

***The Defendants appealed the Judgments and the appellate courts reduced the emotional distress awards by 50% or half.

    Bagneris Law Firm
    Post Office Box 6129
    New Orleans, Louisiana 70174
    Phone: 504-552-4828

    Email: sbagneris@bagnerislawfirm.com