You’re about to be untricked. If you believe that the guilty party in the Love Canal tragedy is the Hooker Chemicals & Plastics Corporation, which the Justice Department is suing, rather than the Niagara Falls Board of Education, which bought the dump from Hooker in 1953; or if you believe that Michael Brown’s famous book that has become the popular authority on the whole mess, Laying Waste: The Poisoning of America by Toxic Chemicals, sets out the truth, the whole truth, and nothing but the truth about Love Canal, then you’ve been snookered. In fact, as I’m going to show, hardly ever has there been a more blatant example of Big Brother successfully hiding the skeletons in his closet or of a gullible investigative reporter and compliant major media going along with the cover-up so that a bunch of bureaucrats can pass the buck to some bewildered private interest. The irony is that the target of this particular smear, Hooker Chemicals, may very well have botched others of its many chemical dumps, but not Love Canal, the very site that has brought the company so much adverse publicity and a flood of government and private lawsuits.
I first suspected that something might be wrong with the press reports about Love Canal–I had not yet read Michael Brown’s book–when I noticed that only passing mention was being made of the fact that the Niagara Falls Board of Education has owned the site since 1953. Twenty-plus years after Hooker deeded the property to the Board, the Canal is seeping huge quantities of poisonous chemicals. These toxic substances have been down there a long time, I thought. Why are they percolating up only after such a long sleep? Could something have disturbed the chemicals buried there? Or was the oozing inevitable? Had Hooker unloaded the property on the School Board back in the ‘50s, hoping to avert the very claims for damages now being pressed against it?
My curiosity sparked, I obtained a copy of the Love Canal deed. It opens: "This Indenture [is] made the 28th day of April, Nineteen Hundred and Fifty Three, between Hooker Electrochemical Company. . . and the Board of Education of the School District of the City of Niagara Falls, New York," which would, "in consideration of One Dollar" paid to Hooker, receive title to the described property. The kicker is the deed’s closing paragraph:
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.
So Hooker had shifted to the Board "all risk and liability incident to the use" of the property. In addition, the deed specified that the future owner(s) of the property could not make any claims against Hooker for injury or death or property damage arising even from "the presence of said industrial wastes." It’s not surprising that Hooker would have wanted this shift of liability incorporated into the deed. After all, it had made clear that these "waste products resulting from the manufacturing of chemicals" could cause not only property damage but "injury" and "death." That’s pretty dangerous stuff.
Looked at one way, these provisions would seem to indicate that Hooker had been quite anxious to unburden itself of responsibility for this property. On the other hand, since the first condition, assumption of liability for use, only makes explicit what normally accompanies any property exchange, and since the second would protect Hooker only from claims made by the Board and subsequent owners, and not from claims by third parties, it would seem that these provisions are more in the nature of a warning. By incorporating them into the deed, Hooker had provided clear notice, recorded for all time, that its use of this property had been such that any future owner would have to take care to use it in a safe manner so as to avoid causing harm.
Certainly the last sentence in the indenture must be interpreted in this way. Not only the School Board but "its successors and assigns"–any future holder of the property obtaining rights to the Canal after or from the Board–had already been drawn into the shift of liability. So why add the closing sentence, about "each subsequent conveyance of the property"? The concern seems to have been with preventing catastrophe to innocent third parties by making sure that, down through all future generations, whoever obtained this property would be warned that it contains dangerous chemicals and reminded of the corresponding obligation to use it in a manner reflecting this hazard. So the inclusion of that last sentence in the deed doesn’t fit in very well with the ruthless and negligent attitude I’d been led by most press accounts to believe that Hooker has been displaying in the Love Canal matter.
Ruthless and negligent? As I was subsequently to learn, Hooker had evidently been so concerned that the Board know what it was getting in taking over the Canal that the company had not left to chance whether School Board officials would physically inspect the property prior to acquiring it. Instead, Hooker had escorted them to the Canal site and in their presence made eight test borings–into the protective clay cover that the company had laid over the Canal, and into the surrounding area. At two spots, directly over Hooker’s wastes, chemicals were encountered four feet below the surface. At the other spots, to the sides of the Canal proper, no chemicals showed up.
So whether or not the School Board was of a mind to inspect the Canal, Hooker had gone out of its way to make sure that they did inspect it and that they did see that chemicals lay buried in that Canal. Yet the subsequent behavior of the School Board would lead the casual observer to conclude that its members never knew the facts about the property they were acquiring.
I decided to try to talk with some of the people who sat on the Board during the key years of 1952 through 1957 and so had first-hand knowledge of the events. In the latter year, the Board was debating whether to sell portions of the Love Canal to real estate developers; Hooker officials came to the Board meetings to urge that these sales not be consummated. For this and other reasons, 1957 served as a turning point in the history of the Love Canal–the beginning of its precipitous slide into becoming a hell-pit.
I introduced myself to the first former member of the School Board I’d managed to track down and get on the phone, Peter Longhine, by saying that I was a reporter who wished to speak with someone with first-hand knowledge of the Board’s transactions with Hooker. That’s all–I made no mention of courts, legal liability for Love Canal, or anything even remotely threatening. But Longhine would say only:
I don’t want to get involved in giving any court testimony. It’s better to let sleeping dogs lie. But I can tell you one thing–the Board of Ed didn’t do anything wrong. Anyway, we don’t have any legal responsibility for it.
This seemed to me an odd reaction, considering that I had just introduced myself and had not suggested even remotely that the Board of Education was in any way culpable, much less legally liable.
I got another former School Board member on the phone, Dr. Robert Brezing. This time, I wasn’t even able to finish my introduction. He abruptly hung up the phone, and I found myself trying to protest to a dial-tone. Now I knew that something was fishy. I packed my bags, camera, and cassette recorder and left for Niagara Falls.
The first thing that struck this newcomer about the town of Niagara Falls was how very normal the place is. Because of its famous namesake falls, I had expected the town itself to have a character different from your typical American small city, but that’s just what the place turned out to be. The people, I found, are pleasantly friendly and open, and if there is a wrong side of the tracks anywhere to the right or left of Main Street, it’s hard to find.