Defenders of the Hooker Chemical and Plastics Corporation
maintain that Hooker sufficiently encased the wastes in heavy concrete,
warned developers repeatedly of the dangers, and only went through with
the sale because of the threat of lawsuits. Others claim that Hooker was
innocent because the public was ignorant of the dangers of toxic waste
dumping in the era that Hooker conducted it (from 1942 to 1954).
However, these arguments are little more than historical revisionism.
The following is an excerpt from a legal case study of Love Canal:
A STATE'S RIGHT TO RECOVER PUNITIVE DAMAGES IN A PUBLIC NUISANCE
ACTION: The Love Canal Case Study
by Robert Emmet Hernan
Background of Facts Giving Rise to State's Claim for Punitive Damages
...Before discussing the various legal issues on which the State's
claim for punitive damages was grounded, it is critical that there be an
understanding of the factual predicates for that claim. All too often,
critics of punitive damage awards discuss the size and legal implications
of the award without also discussing the facts that the judge and/or jury
had before it when deciding whether to award punitive damages, and in what
amount. An understanding of these facts is especially important when the
case involves a hazardous waste site which was created in the 1940s and
1950s and which leads some people to question, without knowing more, the
appropriateness of seeking punitive damages for "ancient history,"
when, perhaps, companies "did not know any better"
than to pollute. As we shall see, the facts are not so forgiving.
The canal had been dug in the 1890s by a William Love, as part of a
proposed water power scheme in the Niagara Falls area. The project failed
and the portion of the unfinished canal which had been dug nearby the Niagara
River, in an area known as LaSalle, remained open and unused, until Hooker
started to use it for the disposal of chemical wastes from its manufacturing
operations at its Niagara Falls plant.
Hooker first leased, then purchased, the Love Canal site in the 1940s.
The canal was 3,000 feet long, running north, and filled with water. Dumping
occurred in the Northern Section, from 1942 to 1946, then in the Southern
Section from 1946 to 1954, with some dumping in the Central Section at
the end of the period. The toxic chemicals were dumped, usually, in metal
drums, which were often old and rusted, or in fiber drums, which were used
for filter cake residues. The drums sometimes broke apart as they were
being dumped and sometimes chemical wastes were dumped directly into the
canal. Dams were constructed across the canal. Also, pits, approximately
25 feet wide and 25 feet deep, were dug outside the canal for disposal.
Drums and waste filled the
canal to within a few feet of the ground surface, and then were covered
with dirt or ash. Throughout the trial, OCC characterized this as the "dig,
bury and cover" method of disposal.
On several occasions during the dumping period, employees of Hooker
visited the site and reported to management that the water throughout the
canal was contaminated and children were swimming in the sections which
were not being used for disposal. Despite strong recommendations by its
own General Counsel and other managers that a fence be constructed to prevent
injuries to the children, Hooker did not fence in the canal. Also during
this time, Hooker knew that, as a result of the way the drums and wastes
were dumped in the canal and pits, the drums were deteriorating, and would
continue to deteriorate, and the subsurface would shift, causing subsidence
to the ground surface. Hooker also knew that when the surface subsided,
the drums and wastes
would become exposed, further endangering children and others. Finally,
fires and explosions occurred in the canal, shooting flames as high as
the homes which were built adjacent to the canal. Throughout the post-war
period, more and more residences were being built in the area.
In 1952, Hooker was approached by the School Board which wanted to
buy a part of the Love Canal property (the Central Section where no dumping
had occurred, as yet) in order to build a new grade school. At first Hooker
declined, because it was concerned about liability for the wastes, but
within a month it reconsidered and agreed to donate the property, for $1.
The conditions on the donation were that the School Board take the entire
property, indemnify Hooker for any claims, and continue to allow dumping
until the school was built. Hooker advised the School Board that Love Canal
was used "for plant refuse containing some chemicals," that the
Central Section of the property was appropriate for a school, and that
the rest of the property was appropriate
for playgrounds. Actually, Hooker knew that approximately 22,000 tons
of toxic chemical wastes were dumped at Love Canal. Hooker never warned
the School Board of the dangers from subsidence of the ground.
No sooner had Hooker conveyed the property than the dangers surfaced.
The location of the school had to be moved within the Central Section because
contractors discovered two pits filled with chemicals that Hooker dumped
in that section. From 1954 through the mid-1970s, there were a series of
incidents where the ground subsided, drums and toxic wastes rose to the
surface, endangering and even burning children playing on the school grounds.
Hooker was usually called to the site, and the company would respond by
stating that it would not do anything unless specifically asked by the
School Board, that it had transferred Love Canal and was no longer responsible.
Toward the late 1970s, in addition to the surface exposures, the wastes
had migrated through the subsurface and were entering the basements of
the people who lived adjacent to the canal. Complaints to local health
authorities accelerated by 1976, and the state and federal authorities
became aware of the site and of the problems. Studies were undertaken in
1977 and 1978 to determine the nature and extent of the dangers, and some
possible ways to remedy the dangers. Conditions continued to deteriorate,
and in August 1978 the State and then President Carter declared an emergency
at Love Canal. Over two hundred families were relocated and their homes
were bought by the governments. Based on further studies and uncertainties
about the nature and extent of the risks at Love Canal, approximately five
hundred additional families were relocated in 1980, and their homes were
bought by the State. Remedial measures to cleanup Love Canal were begun
in late 1978, and are nearly completed, at a total cost to the governments
of over $150 million.
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