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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 project to develop and utilize the area's water power potential. The project was abandoned when financiers withdrew their backing. 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, D sought to purchase the sixteen-acre canal site from Niagara Power and Development Corporation (NPDC). In April 1942, D and NPDC had entered into an agreement allowing D to use the Love Canal property for the disposal of chemical wastes. D had deposited some 21,800 tons 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). The City of Niagara Falls (City) also used the canal to dispose of 'municipal wastes.' The deed conveying the Love Canal told of the waste disposed therein and City 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. The School Board constructed a school, the City installed sanitary sewer lines, and removed several thousand cubic yards of soil used to cover the wastes deposited in the canal. The State established streets and allowed for the construction of the LaSalle Expressway. The School Board conveyed the southern portion of the site to Mr. Ralph Capone, who subsequently conveyed it to Mr. Lee C. Armstrong. Several homes were built adjacent to the canal during this time. n 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. . . .' Orders by authorities came to abate the public health nuisance now existing at the Love Canal Chemical Waste Landfill site. The site was declared a federal emergency. Ps sued D 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. The court found D jointly and severally liable for these response costs under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and granted Ps' motions for partial summary judgment. Ps contend that the record is sufficiently well-developed for the court to further enter partial summary judgment as to D's liability for public nuisance.

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