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Hooker claims that it had wanted any future propertyholder there to know of the dangerous chemicals and that it had therefore agreed to donate the property, subject to the Board’s recognition that, to quote Hooker’s letter of October 16, 1952, to the Board, "in view of the nature of the property and the purposes for which it has been used, it will be necessary for us to have special provisions incorporated into the deed with respect to the use of the property and other pertinent matters." Had the land been condemned and seized, says Hooker, the company would have been unable to air its concerns to all future owners of the property. It is difficult to see any other reason for what it did.
The School Board, however, ultimately refused to accept the special provisions proposed by Hooker concerning the use of the property. Hooker wanted to require that the donated premises "be used for park purposes only, in conjunction with a school building to be constructed upon premises in proximity to" them. And it wanted the Board to agree that, should the property ever cease serving as a park, title to it would revert to Hooker. Instead of these restrictions, which the Board rejected, the company had to settle for the liability provisions and warnings in the last paragraph of the deed hammered out in meetings between Hooker and Board representatives.
On April 28, 1953, Hooker’s secretary and general counsel, Ansley Wilcox–the same man who later, as the company’s vice-president and general counsel, was to be the author of the letter read out at the meeting of the Board of Ed on November 21, 1957–submitted to the Board the final draft of the deed. Nine days later, the Board’s attorney, Mr. Boniello, wrote to the Board that, because of the provisions contained in the deed’s closing paragraph, "In the event that the Board shall accept this deed, it is my opinion that there is placed upon the Board the risk and possible liability to persons and/or property injured or damaged as a result thereof arising out of the presence and existence of the waste products and chemicals upon the said lands referred to in the said deed. " In short, the Board’s own attorney at the time was emphasizing to his client that if it were to accept the Canal it would be getting as part of the package liability for personal and property damage, as ultimately happened to homeowners in the area surrounding the Love Canal.
Nonetheless, on May 7, 1953, the Board voted unanimously to accept the deed. Similarly, the Board had voted unanimously to accept the deed to the site of the 66th Street School; that deed’s reference to radioactivity at the site served as no deterrent either. Both sites, incidentally, had already, on December 30, 1952, been approved by the Niagara Falls Planning Board.
In August 1953, before construction work had begun on the school, the Board voted (unanimously) to remove 4,000 cubic yards of "fill from the Love Canal to complete the top grading" at another school, on 93rd Street, whose construction was already well under way. This school, like the one on 99th Street nearby, is now closed down because of public concerns about the school children’s exposure to chemical waste residues.
On January 21, 1954, the Board approved the removal of 3,000 more cubic yards of fill from the Love Canal. On the same date, the architect for the 99th Street School wrote to Board member Wesley Kester, chairman of the Buildings Committee, saying that
the General Contractor. . . hit a soft spot in the ground. This turned out to be a filled drain trench which gave off a strong chemical odor. Upon further investigation the excavator made contact with a pit filled with chemicals and immediately stopped work in this area. The General Contractor contacted one of his employees who formerly worked on this properly for one of the former owners. From this man we learned that. . . these pits were filled with chemical waste, some of which was in 55 gallon drums.
Suggesting that these chemicals "might be a detriment to the concrete foundations," the architect advised soil tests with a view toward possible "revisions of building location," and the building was shifted 30 feet eastward.
When the Buffalo Courier-Express, in the wake of the recent recognition of chemical seepage in the Love Canal area, interviewed the architect about this in 1980, he "said the records indicated only ‘poor soil conditions’ as the reason for the move. " The newspaper’s reporters didn’t say that this was a gross understatement, apparently because they had never gone to the Board of Education to see the letter from which I’ve just quoted, which shows that the records indicate a lot more than just "poor soil conditions."
A set of architect’s plans dated August 18, 1955, reveals that another 10,000 cubic yards of soil were to be removed from the top of the Canal in order to grade the surrounding area. Part of the area from which this soil was to be scooped out had been filled with Hooker’s wastes. The grading was executed as shown in these plans. Later in the year, the Buildings and Grounds Committee donated some of the property immediately surrounding the school to the city so that streets and sidewalks could be paved. (The school building had been completed and its doors opened to 500 students in February 1955.)
On June 25, 1956, the architect wrote to the contractor for the school’s playground, changing the location of the kindergarten play area "so as not to interfere with the apparent chemical deposit" and informing him that "this revision has been approved by Dr. Small, Superintendent of Schools. "In an October report on this contractor’s work, the architect reiterated that "these changes were discussed with school authorities" and had been made "because a chemical dump occurred at the originally located play area." The architect further pointed out that "these chemical pits are continuously settling."
The whole character of this correspondence between the architect and the Board and contractors is in the manner of a somnambulist executing his accustomed routines, as in a deep, quiet fog that is never interrupted by the sound of the 55-gallon drums clanking around in the pits. One would be led to believe that they had signed the Love Canal deed with their eyes closed and their ears shut. The superintendent of schools approved relocation of the play areas so as to avoid "chemical deposits" and "chemical pits" and never once took it upon himself to advise the architect that more was at stake here than "detriment to the concrete foundations" due to "chemical pits...continuously settling." It is evident that the architect had never seen the deed. He and the contractor had to discover that this place had once been a chemical dump. The superintendent knew that it had been; he had been present at the drilling of test holes at the site; he had read the deed but evidently never imparted any wisdom therefrom to the architect or the contractor. He didn’t tell them, for example, about the danger of injury or death.
The Board was finally jarred awake in November 1957. The precipitating event was a proposal from two developers who owned land on another site that the Board was hungrily eyeing. The developers had suggested a trade whereby they would have gotten chunks of the Love Canal property in return for their properties plus some cash. The deal would have netted the Board $11,000, and Wesley Kester and the rest of the Buildings and Grounds Committee were strongly in favor of it. But Hooker got wind of the proposal and was just as strongly opposed.
Hooker sent its attorney, Arthur Chambers, to attend the meeting of the Board on November 7. As reported in the Niagara Gazette the next day, Chambers admonished the Board of Education that it had "a certain moral responsibility in the disposition of the land. "After reminding the Board that chemicals were buried under the surface, he explained that this "made the land unsuitable for construction in which basements, water lines, sewers and such underground facilities would be necessary." He referred to "negotiations at the time the land was deeded to the board," in which Hooker had urged that it be used only for surface constructions or parks. According to the Board minutes from that evening, Mr. Chambers conceded "that his company could not prevent the Board from selling the land or from doing anything they wanted to with it," but he made clear Hooker’s "intent that this property be used for a school and for parking. He further stated that they feel the property should not be divided for the purpose of building homes and hoped that no one will be injured. "
The head of the Buildings and Grounds Committee, Wesley Kester, was furious. According to the article in the Niagara Gazette, he spluttered, "The land is a liability to us. There’s something fishy someplace. Now they tell us it shouldn’t be used." The battle lines were now clearly drawn.