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.
Visually, it would perhaps be more accurate to describe Niagara Falls not as a small city so much as an endlessly sprawling suburb of 75,000 people without a core city. There are only two commercial streets, Main and Pine, both of which intrude upon otherwise uninterrupted expanses of suburban-style houses, which extend row upon row on each side of the two chief thoroughfares. In any event, whether it's seen as a town or merely as a suburb without a city, Niagara Falls struck me as a singularly odd kind of place to serve as a bellwether for the souring of America's dream of an insect-free plasticized world—"better living through chemistry," to quote the commercial from DuPont. There's an irony to this place: on the one side of town is the eternal majesty of nature grandly displayed in the water tumbling over the Niagara escarpment; across the city stands a stark symbol of the incompetence and perhaps greed of man—the acrid fumes and boarded up houses along the periphery of the now-infamous chemical ditch.
But as it turns out, that festering blister of the industrial age known as Love Canal isn't quite as incongruous a fixture in Niagara Falls as it might seem at first blush. You don't have to be around this place long but you'll hear about how the local economy was built even more upon the chemical industry than upon tourism. Back in the 1950s, the locals will tell you, the putrid air from the industrial stacks made the eyes and lungs continually smart. The smog was so bad that the city was recognizable from an approaching plane by the dark grayish-brown cloud of pollution that blanketed the earth below.
Of course, this was in an era when conservation meant leaving the wild bears alone, nutrition meant "fruit, cereal, milk, bread, and butter," and pollution was a term that only communists, oddballs, or crazy people ever used. Niagara Falls considered itself fortunate back then to be one of the capitals of the world's chemical industry. The townspeople felt proud to be in the vanguard of the coming technological society. When the Atomic Energy Commission handed out awards to Niagara Falls chemical plants for work on radioactive substances, it made page-one headlines in the local newspapers. Chemical row along Buffalo Avenue, which skirts the southernmost edge of town bordering the Niagara River, was not only the Falls area's chief source of employment but also a source of considerable civic pride.
Now, however, the long-anticipated chemical future has at last come to the world, and a lot of people in Niagara Falls are finding that they don't like it. The theory used to be that industrial wastes need only be shoved under the rug and they would be gone. Out of sight was out of mind. But as events at Love Canal and elsewhere were ultimately to make clear, today's far-away rural chemical dump is tomorrow's suburb, where you may someday live and where your children may end up going to school.
Of course, many people don't care about tomorrow and never did. According to the popular wisdom, this kind of dangerous shortsightedness is an attribute of private businesses more than of governmental bodies, and this perception has colored the way the Love Canal story has been reported. But my own investigation shows that this popular interpretation of the Love Canal tragedy is 180 degrees off.
Back at the turn of the century, an ambitious entrepreneur by the name of William Love envisioned building a huge hydroelectric project in the Niagara Falls area. Thomas Edison had just harnessed the force of electricity; but because the state-of-the-art allowed only for transmission by direct current, which was uneconomic over long distances, industries had to be located near the source of electrical generation. Love planned his hydroelectric canal project as a means of supplying this electrical power to nearby industry and even dreamed that his "Love's Canal" would become the basis for a booming model city. But the economic recession of 1894 and Nikola Tesla's pioneering system of alternating current, which facilitated transmission of electricity over long distances, combined to bankrupt Love's canal after only short segments of it had been dug. The 3,200-foot-long section that Hooker started filling with waste chemicals in 1942 has now come to be known internationally as the Love Canal.
Hooker says that it chose the site because the soil characteristic of the area—impermeable clay—and the sparse population surrounding the Canal at the time made the pit outstandingly suitable for disposing of dangerous chemical wastes. The customary practices then were to pile up such wastes in unlined surface impoundments, insecure lagoons, or pits, usually on the premises of the chemical factory, or else to burn the wastes or dump them into rivers or lakes. Except for disposal into water supplies, these practices were all legal until 1980, when the Environmental Protection Agency began issuing regulations implementing the Resource Conservation and Recovery Act of 1976. The EPA estimates that 90 percent of chemical wastes are currently being disposed of in ways that do not meet its proposed standards (controlled incineration, treatment to render the waste nonhazardous, secure landfills, or recovery). An attorney I spoke with from the New York State Department of Environmental Conservation told me that "at least 50 percent of chemical waste dumping [in that state] is contracted out to organized crime. " If true, however, such was not to be the case with Love Canal.
Hooker in 1941 began studies of the suitability of using the Canal as a chemical dump. The findings were affirmative, and by April of the next year the company completed the legal transactions to commence dumping what ultimately amounted to approximately 21,800 tons of the company's waste before the Canal property (which included a strip of land on either side of the Canal) was donated by Hooker to the Niagara Falls Board of Education in 1953, under pressure from the Board that if Hooker didn't willingly deed the land the property would be seized under eminent domain for the building of a school.
It's also worth noting here that other wastes besides these 21,800 tons from Hooker have apparently been dumped into the Canal. According to New York State officials, federal agencies, especially the Army, disposed of toxic chemical wastes there during and after World War II. The city of Niagara Falls also regularly unloaded its municipal refuse into this Hooker-owned pit.
There were two reasons why the School Board wanted to acquire Hooker's Love Canal property. One was that the postwar baby boom had produced a need for construction of more schools, and virtually every available open lot of suitable size was being eyed voraciously by the Board of Ed's Buildings and Grounds Committee for possible construction of new schools. The other was that since the area was not built up (one of Hooker's reported criteria for the site's suitability), land prices around this dumpsite were low, and the Board was strapped for cash. On October 16, 1952, the very same day that Hooker sent a letter to the Board of Education agreeing to donate the Canal property for the token price of $1.00, the Board itself recorded, in its minutes for that evening's meeting, that "a communication was received from the Niagara Falls Teachers Association stating that teachers are becoming more and more uneasy because of their uncertain financial prospects."
Looking over the School Board minutes from the early '50s, one notes two concerns that dominated and practically obliterated all others: construction of new buildings, and overcoming the monetary shortage. There is no indication that any long-term consequences were being thought of; the attitude seems to have been that the future could take care of itself. For example, the 99th Street School, which was built beside Love Canal, was being planned by the School Board simultaneously with the planning for another, the 66th Street School; and the Niagara Gazette reported on September 13, 1978, that high radiation had been found at that other location. It turns out that this school also may have been built upon a former dumpsite. The Board of Ed's deed to the site (donated by the federal government) refers to the presence of radioactive substances.
The negotiations that culminated in Hooker's transfer of the Love Canal property to the Board of Education took place over a period of several I years. The contemporary documentary record is very sparse, consisting of three perfunctory letters and the deed itself. Virtually all of the negotiations were verbal rather than written.
One thing, however, is clear: according to the School Board's own records, the Board was already well along in its planning of the 99th Street School more than two years before Hooker deeded the Canal to the Board. And the Board meant business. It was gearing up for a string of condemnation proceedings for the Canal site and all properties abutting it. First, there's a map, dated March 1951 and labeled "School Site Study Plan A" (Plan B was for the 66th Street School). This map not only shows the projected school being built right over the very center of the Canal itself but also shows the assessed condemnation values for the Canal property and each of the properties bordering it. Then there are two letters from the School Board's attorney, Ralph Boniello—one dated September 4, 1952, informing the Board's business manager, Frank Lang, that procedures were under way to purchase four lots abutting the Canal; the other dated September 19, 1952, addressed to Mr. Carmen J. Caggiano and sent registered mail, return receipt requested, informing Mr. Caggiano that since he had refused the Board's "price offered of $10 per front foot" for the strip of 10 lots he owned along the east side of the Canal, "The purpose of this letter is to apprise you of the institution of an action in condemnation to acquire the above-described property for educational purposes."
According to reporter Michael Brown, in his book and other writings, the School Board's attorney at the time denies that the threat of property condemnation was ever held out against Hooker for the Love Canal site. Brown neither questions nor documents this. Yet when Hooker, in 1957, addressed to the president of the Board of Education a letter that was read out loud and passed around at the Board's meeting on November 21 of that year, and when that letter recalled that in 1952 Board officials had threatened "that condemnation proceedings might be resorted to," there wasn't a peep of protest from any Board member or official present—not from Wesley Kester, head of the Board's Buildings and Grounds Committee in 1957, who had served in the same capacity in 1952 and so must have been very prominently involved in the negotiations with Hooker at the time; not from Arthur Silberberg, another member of the same committee who had also served in the same capacity throughout that period with the Board; not from Frank Lang, a Board member who had served as manager of business affairs throughout the period and was always involved in such matters as property condemnations; not from William Small, who was superintendent of schools throughout the period and who had personally accompanied Hooker's executive vice-president, Bjarne Klaussen, to Love Canal in March 1952 when the test-holes were bored into the clay cover over the Canal and into the surrounding area to check for chemical leakage; not from the Board's attorney, William Salacuse, who had been its president back in 1952 and who had also been present at that test at the Canal site; not from anyone at all, though the printed minutes of that evening's Board meeting make conspicuous mention of this letter from Hooker.
One might wonder why Hooker deeded the property to the School Board for $1.00 rather than let it be condemned and seized under eminent domain. After all, condemnation would clearly have freed the company from future liability for the chemical dump, saving Hooker the trouble of spelling out such matters in the deed.
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.
Hooker was determined to prevent, if it could, the selling of this land to subdividers. The showdown came at the Board meeting of November 21. Arthur Chambers again made his appearance, this time reinforced with a lengthy letter from the company's vice-president, Ansley Wilcox, in which the Board was reminded in no uncertain terms of the details of the mostly verbal negotiations and unwritten promises that had preceded the transfer of this property to the Board more than four years earlier. In addition, Hooker's position on the proposed sale was again stated. According to the Board minutes, "They feel very strongly that subsoil conditions make any excavation undesirable and possibly hazardous." As the Niagara Gazette quoted him the next day, Chambers told the Board, "There are dangerous chemicals buried there in drums, in loose form, in solids and liquids." The Buffalo Courier-Express, too, referred to Chambers's speech about this "chemical-laden ground."
But perhaps the deciding factor in the Board's ultimate vote wasn't the address by Arthur Chambers so much as the letter from Ansley Wilcox. Now even Wesley Kester's memory was refreshed. One no longer heard from him, "Now they tell us…," since, as Wilcox pointed out, they'd told it all before.
As I stated earlier, Wilcox's letter was being heard this evening by an audience that included, besides Kester himself, other key people on the Board who had been involved in the negotiations with Hooker during 1952 and 1953. It contains the most thorough recounting of these negotiations on record anywhere, and the officials present protested not a single item in Hooker's recounting—not that Hooker had been approached by Dr. Small and other representatives of the Board in the interest of acquiring the property; nor that Hooker had "explained in detail to Dr. Small the use which we were making of the property"; nor that Hooker had expressed its reluctance "to sell the same, feeling that it should not be used for the erection of any structures"; nor that the School Board was nevertheless "so desirous of acquiring the same" that its representatives had brought up the option of condemnation proceedings; nor that Hooker had then agreed to donate the property subject to certain restrictions upon its use; nor that Hooker had proposed and the Board had refused to agree that the Love Canal property be used "for park purposes only" and that the school building be constructed only on premises "in proximity to" the same; nor that any of these events had transpired in the way described, which indeed made Hooker look like the opposite of the negligent and shortsighted company it is now widely thought to have been. In fact, as evidenced by Wilcox's letter, Hooker was adamant in its long-range view, noting "that even though great care might be taken" in development of the property, "as time passes the possible hazards might be overlooked [and] injury to either persons or property might result." (See end of article for full text of letter.)
The Board's vote that evening was practically unprecedented. They split 4 to 4, with one member abstaining, and thus failed to pass Wesley Kester's resolution to sell the land. For once, the Board did not vote unanimously; they had been shaken awake from their slumber.
As it turns out, these tumultuous Board meetings of November 1957 were just so much "sound and fury signifying nothing," anyway. Apparently unbeknownst to Hooker, on the very same two November days when the company's representatives were urging the Board that the subsurface chemicals made the land unsuitable for underground construction, city workmen were busy at the Canal constructing a sewer that punctured both of its walls and the clay cover. From September through December 1957, work was in progress on this sanitary sewer between 97th and 99th streets beneath Wheatfield Avenue, a soon-to-be-paved street that lay right across the middle of the Canal property. This sewer pipe was laid 10 feet below the surface, on a gravel bed, and covered with gravel, providing a highly permeable violation of both Canal walls. Any loose and liquid chemicals buried in this part of the Canal could now escape, flowing along the gravel sewer-bed not only under Wheatfield but also under 97th and 99th streets, and so throughout the neighborhood. To top this all off, a manhole was dug from the top of the Canal down through the fill to this sewer system 10 feet below the surface.
Whether or not any of Hooker's chemicals were in fact buried in this part of the Canal is not clear from public records. Hooker says that its practice was to fill various parts of the Canal, creating an earthen dam with clay, pumping out the standing water, dumping waste to within four feet of the surface, then covering the section with clay. From Board of Education maps indicating the approximate location of Hooker and city wastes in the Canal, and another map showing the location of streets and the 99th Street School, it can be estimated that Wheatfield Avenue crossed over the Canal at a spot just south of a Hooker dumping area. It is doubtful, however, that these maps are precise enough to make a positive determination. One of them carries a notation showing that the Hooker dumping spot in question—the same one that, by the same approximations, would have been invaded at its northern end during construction of the school building—was used by Hooker to dispose of "fly ash, trash, and HG1 spent cake," the latter, according to a Hooker spokesman, being an abbreviation for lindane (a chlorinated hydrocarbon pesticide more toxic than DDT).
Whether or not this sewer was laid through Hooker chemicals, however, one thing is clear from the record: Hooker was opposed to any construction through any part of the Canal, precisely because of such risks. And work on this sewer system was being done by the city of Niagara Falls at the same time as the warnings that such construction was "dangerous," "injurious," and not "safe " were appearing in the local newspapers. But nobody made the connection; it is as though the printed word had not existed. The sleepwalkers kept bumping around in the night. Hooker was protesting into an abyss; no one was there who would hear and who would make connections between the real world and the printed warnings. Yet now Hooker is being excoriated.
This marked the first time in history that the Canal walls had been penetrated. Maps in the city engineer's office show that there were no sewers into the Canal before this one. But another was soon to be built. This was a storm sewer, under Read Avenue. It was put in between May and September 1960 and penetrated only the west Canal wall, running from a catch basin sunk into the Canal, out to 97th Street. Again, the sewer-bed was gravel.
The drawings of these sewers are available for public inspection at the office of the city engineer in the town hall. One member of the public who, it seems, never cared to look at them—nor at the voluminous printed records and correspondence regarding Love Canal that are also available at the Board of Education—is Michael Brown, the author of the Pulitzer-prize-nominated book on the subject of waste dumping.
In addition to these publicly recorded breaches of the Canal walls, there were two other, though lesser, man-made incursions upon the surface of the Canal: one a French drain that the School Board had placed around the school, the other an illegal catch basin put in by a 97th Street homeowner. Both of these were noted by Stephen Lester, who, under the auspices of the New York State Department of Transportation, served as a consultant to Love Canal area residents during remedial work on the Canal. Of course, like the sewers put in by the city, Hooker had nothing to do with these constructions.
Following Hooker's successful defeat of the Buildings and Grounds Committee's proposal to sell Love Canal property to developers in 1957, the Board sought every means possible to transfer liability for the property to somebody else. They wanted to dump the Canal like a hot potato. First, they tried to palm it off onto the local Junior Chamber of Commerce for a playground area. But the Jaycees wouldn't move ahead without liability insurance, which, it seems, no firm was willing to supply. So that deal fell through. Then, on June 2, 1960, the Board "dedicated to the City" the section of Canal property that lay north of the school. Hooker's restrictive provisions were included in the deed.
All that remained to unload now was the southern section. This was put up for public auction in December 1961. On the bidding sheet was duly imprinted the last paragraph of the deed from Hooker, with all those ghoulish warnings, and with one revealing addition: the indemnification clause to protect Hooker was now expanded with the mention also of the Board of Ed, so that the Board would pass liability along with the property. The difference this time was that the new owner would be receiving the property in dangerous condition and, in spite of the warnings in the deed, without any mention of all of Hooker's admonitions concerning suitable use of the property.
When the sole bid was opened, the Board found that they had been offered $1,200, which they voted, unanimously, to accept. The fellow who bought the land—a former firefighter, now a motel-keeper, by the name of Ralph Capone—ended up paying $5,400 in local paving assessments and $1,500 in property taxes, even though the city, every time he tried to get a building permit to develop 50 or so houses, confronted him with regulations that, as he later put it, "would have cost me millions." Then in 1972 the city ordered him to do $100,000 worth of work on his plot "to correct…strong chemical odors permeating from ground surface" and to alleviate "potentially hazardous conditions" there. Finally, after spending a total of $13,000 on the property, he gave up in 1974 and sold this bundle of headaches to a friend for $100.
Capone says that when he bought the property for $1,200 he had considered himself lucky. The release clause on the bidding sheet and in the deed had struck him as having been just so much lawyerese, hardly meriting a second wink. As he recently put it, in an interview with the Niagara Gazette's Paul Westmoore, "Back then I never would have believed a public body would have sold land it felt was dangerous." In fact, however, the Board had known quite well what it was selling; and the minutes of the Board, under the date of January 4, 1962, show the following reaction to Capone's bid: "Three members of the committee visited this plot of land on 99th Street and checked from one corner to the other. We all agreed that, if we could sell the property, it was the thing to do.
It is on the question of apportioning blame for Love Canal that the media have fallen down the most. Practically every level of government has been involved over the years in violating either the Canal's walls or the protective clay cover that Hooker says it had laid four feet thick on top of its wastes. Even the New York State Department of Transportation, which now shares major responsibility for remedial work on the Canal with New York's Department of Health and the federal Environmental Protection Agency, ripped into the Canal in 1968, at the southern end where Hooker had done most of its dumping. In the construction of an expressway and the moving of Frontier Boulevard northward, chemicals were contacted, and Hooker was requested to, and did, cart away 40 truckloads of chemical wastes. Just as Hooker had worried in 1957, as time passed the possible hazards of construction on the property had been put totally out of mind.
Quite in line with media reports, then, which have picked up on very little of this governmental involvement in the Love Canal disaster, is the lawsuit filed in December 1979 by the Justice Department on behalf of the EPA, seeking to collect from Hooker $124.5 million for cleaning up the Love Canal area. Evidently, with the public so misled, the government's lawyers thought they could get away with laying all the blame at the doorstep of the only nongovernmental body involved, Hooker Chemicals & Plastics Corporation and its parent, the Occidental Petroleum Corporation.
Although the suit also names the Niagara Falls Board of Education, the city, the County Health Department, New York State, and UDC-Love Canal (a state agency set up to purchase the homes of families evacuated from the surrounding area), not one of these governmental bodies—and here again the media have missed a step—is implicated in the responsibility for the problems at Love Canal. "The City is named herein as a defendant only to insure that the remedial measures requested by the plaintiff [EPA] can be fully implemented by the City's action with regard to its own property." And so on and so on. For each of the governmental units named in the suit, there is a reassuring paragraph noting that it is so named only to enlist cooperation in remedial work.
The government's case against Hooker contains a great many charges and allegations that I have seen disproven in the documentary records at the Board of Education and the office of the city engineer. Hooker hasn't supplied me with its own supplementary documentation, but that wouldn't be necessary except on one point that has served as a focus for many of the EPA-Justice Department charges: the adequacy of the clay cover Hooker laid over its dumpings.
Residents of the Love Canal area have contended that at least some of Hooker's wastes were covered only with fly ash. These are recollections of what happened 30 years ago. There is evidence that there was plenty of fly ash in the area. Not only did Hooker itself use part of the Canal to dump fly ash, which accumulated in the bottom of its furnaces, but School Board records show that Hooker and probably the city also were asked to supply fly ash to fill in the portions of the Canal that were still an open trench when the Board took over the property. There is no evidence, however, that Hooker used fly ash to cover its chemical dumpings.
Hooker claims—and notes on maps at the Board of Ed dating from the early '50s tend strongly to support this—that the company laid four feet of clay over its fill. Furthermore, a private engineering firm, Conestoga-Rovers Associates of Waterloo, Canada, hired by the city in 1979 to evaluate the Love Canal dumpsite, has concluded that Hooker's practices there cannot be faulted, even by the standards of the Resource Conservation and Recovery Act (RCRA) being implemented in 1980—the only existing federal law concerning the hows and wheres of industrial dumping.
(Of course, even without a statute on the books, Hooker would be liable, subject to the relevant statute of limitations, for damage to third parties due to negligence, were its practices in fact negligent. But it would be hard for such a claim to get very far if Hooker's practices decades ago met and exceeded regulations, generally regarded as stringent, effected only in 1980.)
Although the Conestoga-Rovers report had not yet been delivered to the city at press time, Mr. Frank Rovers has stated to Senate staff members considering toxic waste clean-up legislation that, as summarized by the Washington representative of the American Institute of Chemical Engineers, on whose RCRA Task Force Mr. Rovers was serving, "The design of the Love Canal site was well within the standards of RCRA. What went wrong with Love Canal can be attributed in large part to lack of monitoring, invasion of the site itself, and lack of remedial work." And the invading construction, which raised the need for remedial work, can only be laid at the feet of the School Board, the city, and the state Department of Transportation. (The other main factor that precipitated the crisis was that in 1976 Niagara Falls experienced record rains that poured down into the by-then opened Canal, forcing large quantities of the chemicals up and out; in October of that year, there surfaced the first reports of nearby basements being invaded by chemicals attributed to Love Canal.)
The EPA's own chief of Hazardous Waste Implementation, Mr. William Sanjour, was quoted in the New York Times on June 30, 1980: "Hooker would have had no trouble complying with these (RCRA) regulations. They may have had a little extra paperwork, but they wouldn't have had to change the way they disposed of the wastes. " Ironically, Mr. Sanjour's admission here was a bold and direct contradiction of a key charge leveled by the EPA itself in its suit against Hooker, filed in federal court six months earlier.
Reading this EPA-Justice Department lawsuit, one senses how desperate its drafters must have been to implicate Hooker on whatever grounds could be dredged up. In paragraph 23 it's charged that "two storm sewer systems…were built in 1952 before Hooker sold the Canal property to the Board." It is not claimed that the two sewers in question penetrated the Canal walls; the fact is that these systems—Colvin-100th Street and Frontier-100th Street—didn't even come close. Interestingly, the suit does not mention the real villain-sewers, constructed in '57 and '60, which would, of course, have implicated party or parties other than Hooker.
In paragraph 35 we find that "vegetation in the vicinity of the Love Canal is suffering from stress." The Love Canal homeowners might wilt upon hearing that one, as though their own travails were not enough to bring Hooker down if Hooker is guilty.
Paragraph 108 informs us that "Hooker never applied to the Secretary of the Army for and does not have a permit authorizing the deposit of wastes into navigable waters at the Canal." This is one of the few allegations in the suit that Hooker doesn't contest as false. Did you know that there are "navigable waters at the Canal"? Can you imagine sailing a ship upon this chemical dump? Well, of course, nobody's ever done it, nor even tried it. In fact, the Canal never was navigable, even before it became a dump in the early '40s; it wasn't even being dug for that purpose when its construction was abandoned in 1910. "Navigable waters" indeed.
But in the court of public opinion, Hooker is already adjudged guilty. Playing into the hands of the feds on this has been that intrepid "investigative reporter" Michael Brown, whose book, Laying Waste, has been praised to heaven, despite the fact that its tale of Love Canal is unrecognizable to anyone who has examined the actual documents. Jessica Mitford said, "This extraordinary and terrifying book is one of the best examples of tenacious, dedicated journalism I've ever read." Senator Moynihan pronounced the book "strong, clear, credible, and humane." Ralph Nader said, "Laying Waste takes the reader on a macabre journey from the notorious Hooker Chemical Company waste dump at Niagara Falls to…" and called the volume "an advance briefing" on America's future of "cancerous, toxic cesspools left by callous corporations." Sen. Bill Bradley applauded it as "a clear call for the massive effort necessary to clean up the horrors." Paul Ehrlich praised it as "a vitally important book." Jane Fonda said, "I hope every American is awakened by this book." So let's dip a bit into Laying Waste.
On page 8 Brown says, "At that time , the company issued no detailed warnings about the chemicals; a brief paragraph in the quitclaim document disclaimed company liability for any injuries or deaths that might occur at the site." He doesn't quote from the deed and mentions it again only once, curtly.
Would you know from his description of the "brief paragraph" (which I quoted in full earlier) that this is the longest paragraph in the entire deed, running 17 full lines of type, or that it speaks of these chemicals as being capable of causing injury and death? Furthermore, there's an innuendo here that is simply not true: that there is no evidence that Hooker had verbally warned the Board repeatedly and in strong terms about the chemicals. Ansley Wilcox's letter, which is reproduced here, but which Brown never even mentions in his book, is strong documentation to refute this innuendo.
On page 9 Brown says: "When I read [the Love Canal] deed I was left with the impression that the wastes would be a hazard only if physically touched or swallowed. Otherwise, they did not seem to be an overwhelming concern." That's his other reference to the deed, and it's equally misleading. Brown's introduction of "touching" and "swallowing" into the deed's restrictions are his own concoctions. Neither they nor any equivalents are in the deed, and even Brown's inference of them is drawn entirely from thin air. And although "injury" and "death"—which are in the deed—may "not seem to be an overwhelming concern" to Michael Brown, they did to relevant parties at the time, contrary to what Brown claims.
Also on page 9 Brown writes: "Ralph Boniello, the board's attorney, said he had never received any phone calls or letters specifically describing the exact nature of the refuse and its potential effects, nor was there, as the company was later to claim, any threat of property condemnation by the board in order to secure the land."
Boniello, however, had not needed any phone calls or letters. The very passage in the deed that Michael Brown saw as not "an overwhelming concern," Boniello warned his client at the time to take seriously. Boniello would later describe it as "like waving a red flag in front of a bull. " The School Board members "were forewarned. But all that they felt was that they were getting a big piece of land for free." If Brown had read the newspaper for which he himself was a reporter, the Niagara Gazette, he would have known that this was Boniello's opinion, because that's where it was quoted, on August 9, 1978, more than a year before Brown's book went to press. In this interview with Paul Westmoore, Boniello further stated: "I suggested they get a chemical engineer to inspect it [Love Canal]. They never did, to my knowledge."
On the property condemnation issue, my phone conversation with Boniello on the evening of October 16, 1980:
Q: Is it possible that Hooker could have been verbally threatened with land condemnation at Love Canal by the Board's representatives, such as Wesley Kester, head of the Buildings and Grounds Committee, while you might not have been informed of this?
A: Oh, yes. My function was only to come in afterwards and close a deal, not to negotiate or make deals. The Board decided what they wanted done, and told me to draw up the papers. I was brought in after the fact. So all I can say is that I was never instructed to initiate condemnation proceedings on the Love Canal property. Whether condemnation was actually threatened verbally by the Board is a question I'm not competent to answer, since I wasn't in a position to know.
On page 10: "In 1958, the company was made aware that three children had been burned by exposed residues on the surface of the canal, much of which, according to the residents, had been covered over with nothing more than fly ash and loose dirt. Because it wished to avoid legal repercussions, the company chose not to issue a public warning of the dangers only it could have known were there." This strings three distortions together into one big lie.
First, Brown fails to mention anywhere in his book that not only Hooker but the city had been dumping into the Canal; that this municipal waste may well have been covered over with fly ash and dirt; and that, in any case, the Board of Education had used fly ash at this site, as the record shows it had at other school sites, to grade the property. Therefore, Brown's slur of Hooker—the implication that fly ash and dirt is what Hooker had "really" laid over its wastes and that this gives the lie to the company's claim of having laid a clay cover over its dumpings—is at best a fudging of the available documentation and at worst a vicious distortion.
Second, Brown offers no evidence of Hooker's alleged wish "to avoid legal repercussions." The Board of Ed, of course, in accepting the deed, had explicitly assumed liability for any injury attendant to its use of the property, which use, as we now know, had unearthed those chemicals. For its part, Hooker was apparently confident that its own practices at the Canal had all been entirely legal, not just matching but surpassing the safeguards then in normal usage (which were zilch, even according to the EPA itself).
Third, as to the charge that Hooker "chose not to issue a public warning of the dangers only it could have known were there," this is false in both clauses. Brown never mentions in his book the very public warnings that Hooker had made in November 1957, which were published in the local newspapers at the time (including the Niagara Gazette, for which Brown later reported, but which, again, it appears he never consulted). These warnings preceded by less than a year this 1958 incident. So not only Hooker but the Love Canal area residents and the city government could have known of the dangers there. Yet while Hooker was issuing these warnings the city was ripping through the Canal to build a sewer. That the children's exposure to chemicals took place only months later lends plausibility to the hypothesis that this construction disturbed buried chemicals, just as Hooker had feared. Brown also fails to mention anywhere in his book the earlier warnings that Hooker had communicated to the Board, also brought to public light in 1957; and he furthermore leaves entirely out of the picture the correspondence between the Board and the school's architect, which shows how intimately the Board was involved with these "chemical pits."
When Hooker, in a letter to the editor in the July 1980 Atlantic, pointed out in response to Brown's article on Love Canal in an earlier issue that the chemical dump under Hooker's management in the '40s and '50s had been found by a chemical engineer to be "well within the standards of RCRA"—the strict law of 1980—Brown's evasive printed reply, which ignored these very findings, was that it would not comply with RCRA because "those standards, among other things, propose that landfills not be located near so populated an area, and mandate that a landfill not be in a position to poison a water source. The Love Canal has leaked into the Niagara River, and probably is still doing so." Brown's reply neatly avoided mentioning the lack of evidence for any such leakage while Hooker had managed the Canal and the abundant evidence of the dump's mismanagement by the School Board and the city for decades afterward—the "invasion of the site itself" noted by the engineer hired by the city.
And for Michael Brown to claim that the Love Canal dump in 1953 had failed to meet RCRA standards because the surrounding neighborhood was subsequently to become populous simply makes one's mind reel. Even Brown himself, in his book, acknowledges that in 1953 the surrounding area had been sparsely populated. Well, Brown's book won three Pulitzer nominations, so who cares about such insignificant matters as accuracy and truth!
When I spoke with the president of the Love Canal Homeowners Association, Lois Gibbs, on October 17, 1980, I learned that Michael Brown has been one of her chief sources of information about Love Canal. This surprised me, because I expected that the information flow would have been in the reverse direction, since Brown relied so much on residents' testimony. But as it turned out, Ms. Gibbs knew practically nothing about the Canal itself, although she has said a great deal about the dump.
This is a matter of some consequence, because Lois Gibbs has appeared prominently on network TV news programs and as a guest on national TV talk shows and has been much quoted in the newspapers and over the wire services. She has certainly been one of the chief sources for Mr. and Mrs. America's idea about what went wrong at Love Canal. Apparently, however, no interviewer or reporter has ever checked her facts; nor has she, so far as I am aware, ever been asked probing questions to determine the documentation for her positions.
As with Michael Brown, the basic thrust of her position is that, as she put it in response to my question, "Who was primarily responsible (for Love Canal)?": "I believe fullheartedly that Hooker is primarily." On Hooker's role at the Canal, she said:
They left open avenues of swale, pipelines, and so forth. They didn't deposit the waste in 55-gallon drums, as they say they have. They also knew children were being burnt on the Canal proper, and never made that public knowledge. And when they told the Board of Education there were wastes buried there, they never truly explained what the wastes were and what the ramifications of the wastes moving around in the ground and surfacing in the school could cause.
Ms. Gibbs, I soon learned, is fond of snowing the listener with technical terminology that she herself, as it turns out, doesn't understand. So for the perplexed reader who, like myself, has never encountered the term swale—which she later defined for me as "underground stream beds"—I subsequently found that it refers to a line of surface-water runoff. Every plot of land necessarily has swales. As for her intended charge of underground streams at Love Canal, there is not a shred of evidence for the allegation. And what we know and don't know about "pipelines" will be made clear below.
As to her charge that Hooker "didn't deposit the waste in 55-gallon drums as they say they have," Hooker's actual statement, as reported in the Niagara Gazette on November 22, 1957, was: "There are dangerous chemicals buried there in drums, in loose form, in solids and liquids." The rest of her statement is pure Michael Brown and has been dealt with earlier.
I asked her: "Are you aware that the Board of Education back in 1951 had drawn up a map of the Love Canal area and that it showed the assessed condemnation value of each property?" Her reply: "No." The head of the homeowners had never even gone to the Board of Ed to check its records so as to make an informed judgment about the roots of their tragedy.
When I asked her about the sewer under Wheatfield Avenue, whose installation in 1957 may well have precipitated the ultimate catastrophe, she denied my assertion that it was "surrounded with gravel." She claimed that this underground excavation was instead "backfilled with clay." The city engineer could straighten her out on that one.
In response to my question whether she'd ever heard of the American Institute of Chemical Engineer's Task Force on RCRA and the findings of one of its members about why the Love Canal had seeped, she said, "No." But, she continued:
Let's pretend that the Canal hadn't been disturbed. It still would have leaked.
Q: How so?
A: Because there were farmers' field tiles that were connected to the Canal, and these were clay pipes 6 inches to 8 inches in diameter.
Q: When were these tiles put in?
A: Probably before the Canal was used as a dump. Furthermore, there are open avenues of swale, which are underground stream beds, that were backfilled with rubbish—not a solid fill.
Q: Is this in Stephen Lester's report [which she had mentioned earlier]?
A: I think so. If not, it's in Beverly Paigen's.
Beverly Paigen is not an engineer but a biologist, so of course her study had nothing to do with the structure of the Canal. Instead, it was an epidemiological study of the incidence of health problems among Love Canal area residents. (This report created a sensation—and panic—when it was released in February 1979 with the conclusion that area residents showed high rates of pregnancy disorders, birth defects, and other illnesses. Subsequently, a five-member panel of scientists reviewed this study and concluded that it is "literally impossible to interpret" and "cannot be taken seriously as a piece of sound epidemiological evidence. ")
Stephen Lester is not an engineer either. He is a toxicologist and environmental researcher hired by the New York Department of Transportation in 1979 to assist the Love Canal area residents during remedial work being done by the DOT. In the course of observing that work, says Lester, he did see clay pipes running from the Canal, which, he speculates, were probably used to draw water from the Canal to irrigate the orchards that surrounded the area before it was built up.
Did they exist along the entire length of the Canal? Had Hooker removed any such pipes or backfilled them with clay in the sections used by the company for dumping chemicals? Lester's report has no answers to such questions; nor does the city engineer's office, which contains no records of the existence or location of such pipes; nor do the people working at Hooker 30 years hence. But it strains credulity to believe that Hooker would have chosen this site, prepared a section at a time for dumping, and covered its wastes with clay—rather than just dumping anywhere into the Canal's waters—and not have seen and attended to any such clay pipes. Of course, of what the Army did when it dumped toxic wastes there, we know nothing. And what would have happened had the Canal not been disturbed after Hooker owned it, we shall never know.
Love Canal may or may not have polluted its neighborhood beyond repair. But the question now is, Has it polluted the media beyond repair? Except for the Wall Street Journal's publication of the minutes of the two November 1957 School Board meetings under the headline "What Hooker Told Whom, When About Love Canal," and the Journal's two editorials on the facts therein, none of the national media has delved into the history of the Love Canal mess. This story has been butchered in the press. The executioners have been a motley band, led by the US Justice Department, the EPA, the New York State departments of you-name-it, Michael Brown, and Lois Gibbs. Why has their joint exercise in public deception been so overwhelmingly successful? More to the point, why hasn't Hooker's counterfight so far been more effective?
It makes me blush to say it, but in an OpEd article of mine in the New York Times in late '79, the editor there cut out a slashing comment I had made in a preliminary draft, calling Hooker's actions at Love Canal "criminal." I've learned since then to be more circumspect about the truthfulness of what I read (and write!) in the papers. There genuinely are big corporate criminals, and the public's outrage at this, and at their frequent success, is good and healthy—but only if one can still keep one's eyeglasses clean when approaching the facts of each particular case. But that's hard to do.
It hasn't helped that Hooker, and its parent Occidental Petroleum Corporation, have met the public relations challenge of Love Canal with a practically unbroken string of catastrophically bad decisions. At first, when the story was strictly a local one, before Love Canal had hit the national press in the summer of 1978, Hooker's response was to stonewall. The company refused to provide even basic information requested by both the homeowners and the local news reporters. After Love Canal exploded across the nation's front pages during the first half of 1979, cracks started appearing in Hooker's stonewall, but this change got under way too slowly and too late.
In the summer of 1980 the company published a booklet, Love Canal: The Facts, which for the first time presented Hooker's detailed public defense against the accusations that were now being hurled at the firm from every corner. Most of the damage to the company had already been done, however. Michael Brown and Lois Gibbs had made their starring appearances on the network TV talk shows, and the ghastly pictures of Love Canal's chemical oozings had finished their sensational runs on the nightly news shows—with prominent mention of the fact that the Canal had once been a Hooker dump.
Even now, the response of Hooker and Occidental remains strictly defensive. Having permitted the Love Canal spark to ignite a conflagration that (according to present Wall Street estimates) has burned off a half-billion dollars' worth of Occidental Petroleum stock value, the best that Hooker and its parent firm can come up with is still a meek squeak: "We didn't do it." Hooker has not sued Michael Brown and his book publisher, Random House, for libel; to the public, this means that Hooker must be guilty.
When I asked Hooker's PR department why the company isn't challenging in a court of law the allegations by Brown and others, I was told, in effect, that that was a matter for the legal department—and that none of Hooker's lawyers was talking to any reporters. Then, on November 3, I phoned Occidental Petroleum, which referred me to Philip Wallach Associates, the parent corporation's public relations counsel. Mr. Wallach told me that it was he who had advised Occidental not to file a libel suit against Michael Brown and Random House, because "to do so would only have given the book free publicity." When I asked Mr. Wallach, "But isn't it sometimes the case that the best defense is a good offense?" he agreed with me that this was so. And when I further inquired why he was more concerned about preventing some negative publicity for Brown's book than he was about giving his own bloodied corporate client some desperately needed positive exposure—and especially increased credibility—he told me, "Well, you have a point there. I suppose maybe I should reconsider." That's where the matter now stands. To think that $500 million of a corporation's stock value can hang on decisions made in such a manner!
Can more Love Canals happen? There's no reason why not. Niagara Falls is not the only town that's been gungho on technology without concern for consequences. This kind of attitude may still prevail there; it certainly can be found elsewhere, and Love Canal may well turn out to have been just the opening battle in a long hot war between the present and the future.
Despite the popular myth that Love Canal is the result of a single corporation's greed and heartlessness, the actual explanation is far more complex. It's clear to anyone who digs into this matter that Hooker may well have been the only party to the affair to behave responsibly. Hooker chose an exceptionally fine chemical dumpsite; it ceded the dump to the School Board under circumstances in which the threat of condemnation was real and the reality of condemnation was already under way for adjoining properties; it warned the School Board that the chemicals could kill and insisted that the Board pass this warning on to any subsequent owner of the property; it urged the Board not to construct the school or any other buildings directly over the Canal; it protested the prospect of any subsurface construction on the Canal.
These warnings were repeatedly ignored, however, by the governmental bodies involved in desecrating this chemical tomb: the School Board itself, the City Planning Board, the city engineer, and the state Department of Transportation. In addition, other governmental agencies have been busy spreading misinformation about the Canal: the Niagara County Health Department, the state Department of Health, the US Environmental Protection Agency, and the US Department of Justice.
Despite all these nefarious governmental involvements, nothing has happened up to the present time to reduce the likelihood of similar governmental crimes being committed in the future. Even if the new federal legislation on waste dumps, the RCRA, proves effective against corporate violators, it could never be effective against governmental bodies. Just on the outside chance that an RCRA suit might someday be filed against a town, school board, or other public agency, what would be the probability that any governmental criminals would be penalized? No matter how guilty they might be, it is the taxpayers who would end up paying the tab on any resulting fines, and it is unlikely that any government bureaucrat would be imprisoned, even if his crimes included the deaths of innocent victims.
When the Justice Department and the EPA joined the fray in December 1979 with their suit against Hooker, they were tacitly acting to protect the interests of all the governmental agencies that throughout the years seem clearly to have produced the Love Canal mess. The federal authorities could instead have chosen to file charges against those governmental bodies, but this would have made some important New York State politicians unhappy during an election year—and New York was a crucial state for Carter. With the press and the homeowners screaming, the federal government apparently felt compelled to "do something" about the matter, and Hooker turned out to be the most suitable punching bag under the circumstances.
The federal attorneys must certainly have seen much of the evidence that I've presented here and so must have known how shoddy their case against Hooker really was, yet they slogged through their legal mire and came up with the obligatory political document. If instead they'd sued the governmental agencies, that would have made considerable news but even more considerable political enemies. It would also have deflated the Michael Brown bubble, but why do that when it could be exploited, since Brown had conveniently placed blame upon the same scapegoat that the politicians now found so suitable?
Perhaps because of the visibility of what went wrong at Love Canal, even if there has been little attempt to understand how it went wrong, there is an increased public awareness that in environmental matters the future doesn't take care of itself. But that would not alone prevent future Love Canals. It would not get at any of the fundamental structural problems that aided and abetted the environmental disaster.
At the very least, governmental criminals should not be protected from paying the price for their actions. And when businesses share in the blame, they too should be hotly pursued for every ounce of damage to persons and property. If nothing else, that's the protection that should be afforded citizens by a proper system of property rights, whereby you may do what you will with your property and what is in it and on it, so long as it does not infringe on my rights to my life, my liberty, and my property.
Certainly the worst thing we could do would be to hand to the corporate world some of the same kind of protection from responsibility that we've allowed government officials. Yet, ironically, one of the hottest new items from Congress—the recently passed "superfund" legislation for cleaning up toxic chemicals in the environment—will serve, in part, to lessen the risks of mismanagement on the part of individual firms involved in disposing of toxic chemical wastes.
Any environmentalist who believes that this set-up is a super idea should pay heed to our experience with legislatively limited liability in another industry where the risks of injury are high: nuclear power. Back in the 1950s, when "the peaceful atom" was but a fervent dream on the part of the Atomic Energy Commission, Congress stepped in as the promulgator of devil-may-care. Faced with a drawing-board industry unable to obtain insurance (for reasons that themselves have much to do with government—see "Who Caused Three Mile Island?" REASON, Aug. 1980), Congress passed the Price-Anderson Indemnity Act in 1957, dictating that, in the event of a major nuclear accident, the first $500 million in claims would be footed by US taxpayers, the next $60 million by the firm (through its insurance), and anything over and above that—practically everything in a serious accident—would simply go uncompensated.
The nuclear-power industry was born as a direct result of this legislation. While it may well have come into existence anyway—eventually, and when reactor designers and so on had satisfied insurers' safety experts that nuclear-power generation was insurable—the indisputable effect of this legislation has been to reduce the incentives for individual firms or the industry as a whole to make sure that they are employing and coming up with the best, safest procedures possible.
How could we even think of imposing a similar system upon the public as a way of "controlling" the chemical industry? Said Sen. Jennings Randolph in urging the Senate's passage of its superfund bill: "We cannot afford another Love Canal." But the senator entirely misses the point. Any society that socializes risks while it privatizes rewards is earning every Love Canal it gets.
Eric Zuesse is a freelance writer and the director of the Consumers' Alliance, a New York-based consumer advocacy group.
In the waning days of its lame-duck session, Congress passed a compromise bill creating a federal fund to pay for cleaning up abandoned chemical dumps and toxic chemical spills, to be financed by a tax on the chemical and crude oil-producing industries, with taxpayers' dollars sweetening the pot. The legislation also creates a separate fund, from a tax on wastes deposited in chemical dumps licensed by the EPA, that will assume liability for dumps operated by RCRA standards.
If the superfund is used to clean up a hazardous site, the EPA can sue the responsible company for the cost. No victims' medical expenses, loss of income, or property damage will be paid for by the fund. When it comes to government owned property, however, companies may be held liable for damage from toxic spills and wastes, although even here the liability would be limited to $50 million per incident.
Moreover, how thoroughly the government cleans up a site, and thus how much the responsible company will be liable for reimbursing the fund, will be at the EPA's discretion and hence subject to competing demands on the fund's kitty, to political pressure, and to corporate wheeling and dealing. All these features, plus the fact that the fund can be used for purposes other than direct clean-up (such as promoting efforts to prevent toxic spills), means that the link between a company's doing harm and having to pay up for it–in full and by Itself, without contributions from taxpayers and from more responsible members of the industry—is substantially weakened.