of the property to developers. Moreover, the dumping at Love Canal was observed by various employees and officials of the City. T. 5011-14, 5018 (Penque); T. 11590 (Ventry).
After the meetings, the Board voted to send a letter to Hooker expressing appreciation for sending a representative to the Board meeting "to explain the conditions of the soil near the Ninety-Ninth Street School when there was no legal obligation on their part to do so." Exs. 253, Ex. 2048. In spite of the explicit warnings given to the Board by Hooker's lawyers, the Board sold the southern end of the Canal to a private individual a short time later.
5. Problems During Road Construction: 1958
In 1958, Hooker learned of complaints about subsidence and children being burned by exposed chemicals. In June of 1958, Wilkenfeld wrote to R. F. Schultz, then Hooker's Works Manager, that three or four children had been burned by material at the Canal. Wilkenfeld noted that R. Fadel, Inspector for the City Engineering Department, reported he "had been down there inspecting a new road that was being constructed near the 99th Street School and gave Mr. Arch the impression that these children were burned while playing on earth excavated in the construction of this new road." Ex. 264. Despite the warnings Hooker had given earlier to the Board about the dangers of digging into the ground, the contractor was either not informed about the nature of the chemicals underground or, if warned, took no steps to prevent spreading the waste material in the surrounding area.
Wilkenfeld told Schultz that Beck and Johnson had subsequently visited the area and noticed that just south of the road construction, where dumping had occurred, "the ground had subsided and the ends of some drums which may have been thionyl residue drums were exposed and south of the school there is an area where benzene hexaxhloride [sic] spent cake was exposed." Id. Beck and Johnson told Wilkenfeld that "if children had been burned it was probably by getting in contact with this material." Id. They reported that "the entire area is being used by children as a playground even though it is not officially designated for that purpose," and suggested that these areas be recovered to avoid any further contact. Id.
Mr. Beck said he saw as many as a dozen small pieces of spent cake. T. 773-77. He remembered surmising that the children "picked some of these pieces up and played with them and got some irritation as a result . . . . I think that would be a natural reaction of children who saw these white chunks, attractive-looking, lying on the ground. I think a tendency would be to pick it up, look at it, maybe play with it for a while, then throw it away." Tr. 806. Wilkenfeld advised the City Air Pollution Control Board that these areas should be covered (T. 4229-31 Exs. 264, 2045, 3626), and similar information was given to the Board. T. 4234. In addition, in July 1958 Wilkenfeld gave another map to the Board showing where wastes were buried. T. 4234; Ex. 2045.
As discussed in Part II, supra, Hooker was fully aware that the spent cake that Mr. Beck found lying on the ground posed a great danger to these children. Ingestion of this material could be fatal. Exs. 1159, 1335 at 50. Although the spent cake only contained small amounts of lindane, the most acutely toxic form of BHC, the beta isomer and the most chronically toxic form of BHC, was present in much greater quantities. It could be absorbed through the skin, stored, and accumulated in the body, eventually damaging the liver and other organs. Id.
Mr. Beck also found thionyl chloride residue drums exposed to the surface. While the methods Hooker used in disposing of the thionyl residue dissipated most of the toxic liquid (see Part II, Section E, supra), occasionally a barrel which had not been punctured or still contained rework residue with traces of thionyl chloride would continue to react slowly with water and eventually burst, releasing hydrochloric acid (HCL) and sulfur dioxide (SO2) and whatever traces of thionyl chloride or purifiers like toluene were left. T. 157; Item 1021, P 309; T. 1078-79, 1085 (Schultz). The vapors of these chemicals could be irritating to the skin, eyes, nose, throat, and respiratory system. T. 572 (Brix); Exs. 1335 at 70; 1141.
The State contends that even though Hooker was well aware of the dangers associated with exposure to these chemicals, it never shared this information with those affected by the wastes. Indeed, Chambers advised Wilkenfeld during the 1958 incident that Hooker "should not do anything unless requested by the School Board." Ex. 264. According to Wilkenfeld, it was the belief of Hooker management that the Company did not have a continuing duty to maintain the property after the transfer. T. 4232, 4238-39; Ex. 286. In fact, Hooker believed that it had no right to correct problems at the site without permission of the current owners. T. 4232.
However, those who were most affected by the exposure were the children who lived, played, and went to school at the Canal site. Once Hooker was notified that children were playing with the spent cake and had access to thionyl chloride residues from the drums exposed to the surface, they had at least some responsibility to these children or their parents to make known to them the extent of the danger and the measures which needed to be taken should a child, despite warnings, touch, inhale, or ingest any of these toxic substances. There is no evidence on record that any such effort was considered or carried out.
6. Board Offers Property to the City: 1958 - 1959
By August 1958, the northern and southern sectors had been graded and recovered. There was also some grading behind the school. Ex. 2800; T. 4653, 3052-53. When Mr. Boddecker, a City engineer, inspected the area in late 1958, he found that the property was relatively flat and that there were no exposed drums or waste material. T. 10,046-47.
At some point in 1958, the School Board offered a portion of property to the City in order to "develop ball diamonds and other play facilities." Ex. 531A. At first, the City refused to take land north of the 99th Street School "because of the tremendous holes being created due to the chemical reaction in the land." Ex. 531. The City considered the area south of the school toward Frontier Avenue to be "in worse shape insofar as 'sink holes' and things [like] that are concerned." Id. T. 2841-43 (Cohen); Ex. 1445, 531. No one asked Hooker to attend to this condition.
However, when the Board offered the land a second time in May 1959, the Council recommended that the City Manager look into the possibility of transfer. Ex. 531A. He requested the Director of Parks to meet with the City Engineering Department to see if the Love Canal property could be used for a playground. After the Manager and his staff, along with Hooker representatives, inspected the property, the City and Board agreed to develop a playground behind the school for use by the school during the school year and by the City during the summer. Ex. 273. The City Manager suggested that the remainder of the property to the north and south of the school be "transferred to the Junior Chamber of Commerce for their long range development of this property for recreation purposes." Id. In June 1960, the City accepted a deed from the Board for Canal property north of Reed Avenue to be developed as a playground by the Junior Chamber. Ex. 296.
7. Eruption of Thionyl Chloride Container: 1961
In September 1961, the Niagara Falls Fire Department contacted Hooker about an exposure of thionyl chloride residue. When Hooker was asked for advice in disposing of the material, J.E. Dillman, Hooker's supervisor for Technical Control, inspected the area. In a memorandum he reported:
I found that a buried drum of Thionyl Chloride rework residue had apparently exploded, spewing residue over an area of about 10 [square] yds. The explosion was confirmed by a neighbor as having taken place around 9 a.m. Sunday, September 3. The residue was still fairly intact on Monday morning when inspected by the Fire Department, but by Tuesday it had hydrolysed and decomposed to a yellow stain over the soil. The soil was dry and strongly acid.
As discussed above, Mr. Wilkenfeld explained at trial that the drum was probably not sufficiently perforated when it was dumped in the disposal pit, so that some thionyl chloride remained. When enough water leaked in, there "was just an over-pressuring of a drum that was probably weakened and just broke open. It could make noise, it could throw some of the earth in the air a little ways as it released the pressure." T. 4132. Mr. Dillman told the Fire Department to cover the area with clean soil to prevent persons from coming in contact with the contaminated soil. He also informed the fire captain that while Hooker would be available for any further advice, it was no longer legally responsible for the property.
Interestingly, just prior to this incident, Hooker's Works Manager Maynard L. Parker had received a memorandum from C.M. Olson, Health & Safety Supervisor, chronicling a series of health problems related to this same residue. Ex. 1180. Olson entitled his memo "Thionyl Chloride Residues" and reported that workers had been sprayed on August 2, 6, & 9 from drums that "let go" or were shot out because they were "badly bulged." Id. One man suffered an eye injury as a result despite the fact that he wore eye protection. In another case, an entire building was evacuated. Id. Olson concluded that "it would appear to me that safe and final disposal of this problem merits being considered a major project." Id. Apparently, Hooker's concern about the hazard this chemical residue posed was not relayed to the Board.
8. City Excavation at Wheatfield Avenue
At some point during the excavation of Wheatfield Avenue, which took place between 1959 and 1962, the City asked Hooker for assistance. A backhoe digging a ditch on Canal property had run through the drums buried there. T. 120. Mr. Parker went to the excavation site. Upon arrival, Parker saw some construction workers at Wheatfield Avenue in a ditch across the Canal about 5 or 6 feet deep. He recalled: "I saw a bunch of poor fellows down there in hip boots wading around in swill
. . ." T. 123. When he was asked what they could do, he told them to "crib up the sides of this ditch . . . and put some planks down there so you don't need to wade too deep in it, and when you get through, will you please fill it up with clay instead of slag." Id. They had been using limestone for fill. The liquid in the ditch was black and smelled of chemicals. T. 126, 129 (Parker Dep. at 102-16).
Mr. Parker did not return to the site (T. 129-30), and apparently Hooker gave no further advice to the City regarding this incident. There is no evidence that any further aid was sought. City engineers should have been well aware that a large amount of chemical waste had been buried in this location and must take responsibility for any excavation undertaken without proper precaution.
9. Proposed Sale of the 102d Street Landfill: 1962
On December 4, 1962, Mr. Parker, by then a Production Manager, wrote a confidential internal memorandum opposing the possible sale of the nearby 102nd Street landfill to the City for the enlargement of a park. Ex. 293. He noted that the characteristics of the fill were not conducive to park development, reminding Mr. Coey that Hooker was still plagued with problems at Love Canal in spite of their best efforts to shed responsibility. He said, "Geography in this area is a scarce commodity. Hooker may want this property for its own development in the future." Id. In his testimony at deposition, Mr. Parker explained that when he said Hooker was "plagued," he was referring to the prior incidents in which children were burned. Parker Dep. at 148-49. He also explained that he had been
against the use of any landfill for recreational purposes [because] if you're going to have children on a playground or -- we had learned from some past experiences