Culture War on Love Canal
Alternate Headline: "Hooker sells dirty Love Canal to local school district"
I found this Reason Magazine article from 1981 about Love Canal (what ended up being one of the most expensive Superfund sites) really fascinating.
If this is at all interesting, I encourage you to read the whole article. But the basic premise is that the Niagara Falls Board of Education was looking for a cheap place to build a school and started eyeing an area known as Love Canal. A local chemical company, Hooker Chemicals, had been using the area as a dumpsite for more than a decade. When the Board reached to Hooker about condemning and seizing the land through eminent domain, Hooker seemed intensely aware of how dangerous the site was and went above and beyond to make sure Board members were also aware. Hooker offered to give the land with property covenants attached to it limiting its use. The first attempt was to donate the land but with a clause limiting it to park purposes ONLY and reverting ownership back to Hooker should the land be used for anything else. The Board said no. Hooker eventually "sold" the land for $1 but explicitly made part of the property deed a rather stern warning:
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.
Restrictive property covenants are not unusual. They are often used to maintain certain land as farmland, or as bird sanctuaries, low-income housing, or whatever, regardless of who owns it. It's a useful tool for property owners to guide control over how a piece of land can be used. What is unusual, is for the covenant to focus so much on warning people of the dangers of a piece of land in perpetuity. This seems to make it clear that Hooker understood the dangers of the dumpsite and also wanted every single entity to ever own the site also knew. Forever.
You can imagine what happened next. A local homeowner and a journalist started a national campaign to impugn Hooker's handling of the dumpsite. The story morphed into a nefarious corporation sticking a local school board with a radioactive waste site in order to walk away from all liability. Hooker's initial strategy ended up being severely misguided. They stonewalled and kept quiet, which allowed the alternate narrative to take hold. By the time they tried to retort anything, it was too late. The journalist had published his book and it eventually won three Pulitzers. Hooker never sued for libel because they were worried about giving too much free publicity to the book. When pressed on the issue by the author of this article, their lead lawyer responded:
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!
Once the dominant narrative took hold, it was easy for even the government institutions to turn against Hooker. They could have sued various government agencies which failed their duty but it was much more politically expedient to go after the corporation that everyone hated already. Even if the case was shoddy, defending against it would be too expensive from a legal billing standpoint as well as public relations concern.
Reading through the descriptions of the chemical dumpsite make me extremely grateful of the vastly improving norms regarding where, when, and how toxic waste is dumped. It's amazing reading about it now, but it was perfectly normal to find open waste pits near factories in almost any town with one up through the middle of the 20th century.
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.
How the saga was eventually resolved involved multiple lawsuits. The one initiated by the state, appears to show Hooker succeeding based on the reasons outlined in the article. The judge essentially says that the school board were unsophisticated people in the realm of chemicals and that Hooker should have tried harder to educate them of the dangers, such as by providing a detailed list of the chemicals buried in the dump.
Nevertheless, Hooker had superior knowledge about the health hazards of exposure to such substances as lindane wastes which it never disclosed to either the Board or the community. Even though there was a general awareness that dangerous chemicals were buried in the ground, the threat to the children's health was at least partially latent, because the current users of the property did not know what the residues were nor the type of ill effects they could cause. Incidents of exposure should have put the Company on notice that exposure would most likely continue and result in serious illness. At that point, Hooker should have provided more detailed information and sounded an alarm. The history of Hooker's failure to come forward makes for a strong argument that it showed a wanton disregard for the health and safety of others.
This must have been a painful litigation to go through since they were asking people in the 90s to recall conversations from 1952-53. Hooker (or rather, the company that bought them) was eventually sued by the EPA and they settled for $129 million.