The opinion of the court was delivered by: JOHN T. CURTIN
B. LEGAL STANDARD OVERVIEW
II. WASTE DISPOSAL AT LOVE CANAL
B. DESCRIPTION OF THE SITE
1. Historical Development
2. Soil and Drainage Conditions
D. CHEMICAL COMPOSITION OF THE WASTE MATERIAL
E. TOXICITY AND DISPOSAL METHODS FOR SPECIFIC CHEMICALS
1. Lindane and Spent Cake
2. Dioxin and Trichlorophenol
4. Dodecyl Mercaptan or DDM
5. Incineration of Wastes
G. CHEMICAL EXPOSURE AT THE LANDFILL
III.THE TRANSFER OF THE LOVE CANAL SITE TO THE NIAGARA FALLS BOARD OF EDUCATION
A. INCIDENTS WHICH WERE REPORTED TO HOOKER
1. Chemicals at School Construction Site
2. Complaints About Odors: 1955
3. Crater in The Playground: 1955
4. Proposed Sale of Property: 1957
5. Problems During Road Construction: 1958
6. Board Offers Property to the City: 1958 - 1959
7. Eruption of Thionyl Chloride Container: 1961
8. City Excavation at Wheatfield Avenue
9. Proposed Sale of the 102d Street Landfill: 1962
10. Problems During Construction of LaSalle Highway: 1968
11. Report of Children Playing with Chemical Residue: 1970
12. Complaint of Odors: 1971
13. Complaints of Eye Irritation: 1971-72
14. Aliphatic Acid in Hole Where Children Were Playing: 1976
B. INCIDENTS NOT REPORTED TO HOOKER
1. Subsidence in the School Play Area: 1956
2. Land Collapse in School Parking Lot: 1960
3. Puddling at the School: 1961
4. Chemical Residue Exposure during Street Construction: Early 1960s
5. Emission at the Ball Field: 1969
V. GOVERNMENTAL INTERVENTION & OFF-SITE MIGRATION
A. INVESTIGATIONS BY GOVERNMENT AGENCIES
D. ANALYSIS OF CHEMICAL MIGRATION
A. APPLICABILITY OF STATE-OF-PRACTICE EVIDENCE
B. THE STATE OF KNOWLEDGE AND INDUSTRY PRACTICE IN THE 1940S AND 1950s
1. Scientific Knowledge and Public Awareness
2. Legislative History of Pollution Control
4. Public Health Analysis of the Love Canal Landfill Operation
5. State's Rebuttal to OCC Expert Testimony
A. THE APPROPRIATE LEGAL STANDARD
B. PRE-TRANSFER ACTIVITIES
The case was bifurcated into two phases: Phase I--to determine the liability of all parties and the principles of contribution or indemnification; and Phase II--to determine the nature and amount of the remedy. Item 741 at PP 2 & 7. Prior to trial on the Phase I issues, this court granted summary judgment against the defendant for joint and several liability under both § 107 of CERCLA and the common-law public nuisance claim. United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546 (W.D.N.Y. 1988) (Supplemental Order 20); United States v. Hooker Chemicals & Plastics Corp., 722 F. Supp. 960 (W.D.N.Y. 1989) (Supplemental Order 41).
The State's claim for punitive damages, based upon OCC's creation of a public nuisance at Love Canal in allegedly reckless disregard of the health, safety, and property of the local residents, as well as various counterclaims and cross-claims, remained for trial, which began on October 24, 1990. Testimony was heard through June 25, 1991, and the parties made closing arguments on January 7, January 29, February 11, and February 12, 1992. The following decision pertains solely to the punitive damages claim. The balance of the issues covered by the Phase I trial will be addressed separately in future orders.
The State claims that OCC is liable for punitive damages for Hooker's activities and omissions regarding the method of waste disposal at Love Canal, the site's transfer to the School Board in 1953, and a subsequent failure to respond adequately to the problems and potential hazards which arose once Hooker relinquished control of the Canal area. In its proposed conclusions of laws (Item 1175 at 363), the State asserts that Hooker acted with reckless or wanton disregard for the health and safety of others in each of five particulars:
1. Knowingly dumping tons of toxic chemicals in a canal used as a recreational area by children, with knowledge of actual and potential exposure of these children, and others, to harm;
2. Failing to fence a contaminated swimming and recreational area or to institute other protective measures, including warnings, in the face of knowledge of actual and potential exposure of children, and others, to harm;
4. Transferring a toxic waste dump to an inappropriate custodian, the Board of Education of the City of Niagara Falls, while imparting insufficient information of hazards to the School Board given Hooker's special knowledge of toxicity of its own waste materials;
5. Failing to reassume responsibility for the maintenance of a transferred toxic waste dump after exposure of the public to the wastes had become recurrent and widespread.
The heart of the case presented by the State to meet its burden of proof and the rebuttal evidence of OCC lies in the transfer of the site to the School Board. Indeed, the State asserted that if Hooker had kept control over Love Canal, there would not have been a punitive damages claim. Item 1186 at 34. Thus, the following discussion focuses on that event, but an examination of the transfer and its attendant problems also necessitates a description of the area and its history before, during, and after Hooker's tenure.
Before setting forth the factual findings, a few general remarks should be made about the unusual difficulties facing the litigants and the court in this case. While a trial which lasts over 70 days is in itself not extraordinary, such a lengthy trial, coupled with voluminous, weighty documents and conflicting scientific evidence made reaching a fair conclusion an arduous task. The difficulty was increased by the fact that almost all of the evidence concerned events which occurred 40 to 50 years ago, and the authors of most of the documents were unavailable for examination to help interpret their content.
The testimony at trial and in deposition came from employees and contractors of Hooker, School Board members, area residents, and experts. However, many of the individuals who were in executive positions at Hooker or who were on the School Board at the time of transfer died before trial or deposition. Of those who did testify, some found it difficult to recall exactly what occurred, or were not in a position to control policy or to know exactly why certain decisions were made. My assessment of both parties' witnesses is that their recollection was often influenced by the passage of time, rumor, subsequent conversations, media coverage, and their interest in the outcome of the case.
Therefore, despite the large number of witnesses overall, the parties offered little reliable testimony in support of their positions on several crucial issues. Occasionally, both parties offered the same testimony, but with different interpretations. For example, Jerome Wilkenfeld, a long-time Hooker employee, was called as a witness by both the State and OCC. He started working for Hooker in 1935, functioned as a junior executive in the 1940s and early 1950s, and eventually rose to a senior management position. Hooker relied on his testimony to prove that it acted responsibly, while the State offered the same testimony to show that Hooker acted recklessly. At the time of the disposal operation in the 1940s and the transfer in the early 1950s, Wilkenfeld was not at the decision-making level. He did not know how the top management arrived at certain essential decisions, but was able to provide background and the result of investigations which he was ordered to make. He gave his personal opinion as to the worth of certain Hooker decisions, but he was not privy to all the information known to management and how those in charge reached their decisions.
For some events, no live testimony was presented. For example, no School Board members who were intimately connected with the transfer were available. In other instances, it was difficult to assess the reliability of the testimony. The witnesses who had lived in the Canal area and described the events of the 1940s and 1950s were often in their early teens or younger during the relevant time period. Some only recalled one or two particular events and had difficulty pinpointing when they occurred, creating problems when timing became important in the context of the case. Many of these witnesses had little reason to remember the events precisely, and their testimony often differed from those who actually participated in the digging and disposal operation. For all these reasons, the testimony must be approached cautiously.
The court was frequently asked to rely on contemporaneous letters and documents of Hooker employees and management. In almost every case, the writer was not available for cross-examination. Even when an author did testify, the circumstances surrounding the writing of the document, the reason why it was written, the writer's position in the Company, and the source of his information were often difficult to reconstruct. When the accuracy of the document could not be tested by examination, its credibility was necessarily limited.
Difficulty in pinning down the State's legal theory concerning Hooker's liability for punitive damages added to the evidentiary problems. Although the State asserted that its principal claim related to the transfer, both parties devoted considerable attention in their briefs and during oral arguments to Hooker's dumping practice at the landfill, the conditions there during and after disposal, and the ultimate leaking of leachate to the surrounding area.
The importance of risk assessment, a scientific method of estimating how a given population's past and current exposure to toxic wastes might affect future health, was debated. Before trial, the State objected to the receipt of risk-assessment evidence; but its introduction was permitted because the court thought that it might have some bearing on Hooker's knowledge and intent and might be of assistance in resolving the cross-claims and counterclaims. Much time was spent in listening to this complicated and conflicting testimony. At the conclusion of trial, all agreed that this evidence was not helpful. See Closing Arguments of January 7, 1992. The State's motion to preclude risk assessment evidence, denied prior to trial, is hereby granted.
OCC argued that its actions had to be judged within the context of industry practice of the time. While the advances in science and engineering made since the 1940s would lead contemporary environmentalists to condemn many of the practices used by Hooker at Love Canal, it would be unfair to judge the Company by the application of knowledge obtained after the disposal and transfer were completed. Therefore, an effort was made to ascertain the disposal methods of the industry and extent of Hooker's knowledge compared to its competitors. Many difficult legal questions had to be considered. Did the State have the authority or standing to press a civil punitive damages claim instead of charging a violation of criminal law? If so, what was the proper legal standard? Did the statute of limitations foreclose suit after the passage of many years? After intensive study and debate in the years following Hooker's waste disposal at Love Canal, both state and federal governments enacted environmental statutes providing for civil and criminal sanction. However, not a single piece of legislation provides for punitive damage. Under these circumstances, should the State be permitted to rely upon the common law in seeking punitive relief, especially as the authority for a government to seek punitive damage is scant?
An array of questions regarding the appropriate legal standard and the type of evidence necessary to sustain the burdens of proof was also considered. What was the appropriate burden of proof? What was the state and applicability of property and products liability law at the time of the transfer? What responsibilities did Hooker have after the transfer? Should the eventual sub-migration of leachate in the late 1970s be considered in this phase?
This is not the full story of Love Canal. Much of the information reported in books and through the media which form the basis of public opinion was not included in the trial for punitive damages. In particular, the court was presented with no evidence of any serious personal injury in this phase of the proceedings. The large number of exhibits and the length of the testimony forced the court to rely heavily on the parties to identify and emphasize those aspects which they deemed important. Many marked exhibits and much testimony taken at trial were never mentioned again, or only given slight attention at briefings. Further, the evidence was limited to the problems which arose at the site and in the houses on the immediate perimeter (Ring I homes), risk assessment was not considered, and the theory of punitive damages urged by the State focused the trial on Hooker's knowledge of the potential for harm rather than the actual harm which may have occurred. With these limitations, the court has attempted to sift carefully through the voluminous documentary evidence and witness testimonies to determine what occurred and to reach a fair conclusion. The findings of fact and conclusions should be accepted in this light.
B. LEGAL STANDARD OVERVIEW
The Second Circuit's standard for what constitutes the requisite showing for an award of punitive damages was defined in Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (1967). "Punitive damages may be awarded if the defendant's conduct was determined to be 'wanton and reckless' [or] . . .'done in such a manner and under such circumstances as to show heedlessness of or utter disregard of the effect upon the rights and safety of others . . . .'" Simpson v. Pittsburgh Corning Corp., 901 F.2d 277, 282 (2d Cir. 1990) (reaffirming Roginsky). While each state employs its own specific language to describe conduct warranting punitive damages, most Circuits relying on state standards include the same or equivalent terms as those in Simpson.
See, e.g. Borden v. Paul Revere Life Ins. Co., 935 F.2d 370 (1st Cir. 1991)(Rhode Island--willfulness, recklessness or wickedness which for the good of society and warning to the individual ought to be punished); Marshall v. El Paso Natural Gas Co., 874 F.2d 1373 (10th Cir. 1989) (Oklahoma--wanton or reckless disregard for rights of plaintiff); Ingram v. Acands, Inc., 977 F.2d 1332 (9th Cir. 1992) (Oregon--wanton disregard for the health, safety and welfare of others); Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1097 (5th Cir.1991), cert. denied, 112 S. Ct. 1778 (1992) (Alabama--acting willfully, maliciously, intentionally, or with heedless and reckless disregard for plaintiff's rights). The Restatement (Second) of Torts § 500 (1965), defines a reckless disregard of safety as follows:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
The State further asserts that there is no requirement that serious injury or damage occur in order to warrant punitive damages. "Although a defendant has inflicted no harm, punitive damages may be awarded because of, and measured by, his wrongful purpose or intent . . . ." 4 Restatement of Torts 2d. § 908 (1979). This court agreed prior to the Phase I trial that "evidence of actual adverse health effects is . . . unnecessary to the question of proof of a health threat." Supp. Order 16, Item 573 at 6. However, in all the cases involving environmental polluters submitted by the State in support of an award of punitive damages, the defendant corporations had prior knowledge that serious harm had occurred or had been cited for violations of health codes or regulations and had failed to respond. See,e.g., Doralee Estates, 569 F.2d at 716; Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988); Exxon v. Yarema, 69 Md. App. 124, 516 A.2d 990 (1986), cert. denied, 309 Md. 47, 522 A.2d 392 (1987). In fact, the State did not present a single case in which punitive damages were awarded absent actual serious injury.
Prior to trial, the court denied OCC's motion for partial summary judgment on the punitive damages claim, postponing a final determination of whether punitive damages were available to the State until a more complete record was made. U.S. v. Hooker Chemicals & Plastics Corp., 748 F. Supp. 67 (W.D.N.Y. 1990). In its post-trial brief, OCC reiterated some of the arguments made in its pretrial motion, once again urging the court to reject the punitive damages claim as a matter of law.
OCC asserts that (1) the Penal Code provides the State with the sole punitive remedy for criminal nuisance, superseding any common-law punishment, and (2) there is neither statutory authority nor case law precedent sanctioning recovery of punitive damages by the State, as opposed to a private party. Analogous federal statutes provide the government with the option of criminal sanctions, but not punitive damages. OCC argues strongly that the State had the recourse to use criminal penalties provided by the Penal Code, and that awarding punitive damages to a government entity for creation of a public nuisance would provide a remedy that had never been envisioned.
The State counters that these issues were fully briefed and argued prior to the denial of OCC's motion to dismiss (Supp. Order 52); but following oral argument, the court directed the parties to rebrief them. As it had previously, the State cited City of New York v. Taliaferrow, 158 A.D.2d 445, 551 N.Y.S.2d 253 (2d Dept. 1990), in support of the right of government entities to recover punitive damages under the common law theory of public nuisance. It could produce no additional authority on this important question. The defendant and the court were similarly unsuccessful.
In Taliaferrow, a civil action was brought by the City of New York under the local Nuisance Abatement Law to enjoin the use of certain premises for prostitution and to seek damages. In a prior action, an injunction had issued barring the use of the premises for such purposes. The defendant argued that relief of punitive damages should be denied because the Code provided the exclusive remedy and did not include punitive damage. The court rejected the defendant's argument, finding that the section's language authorizing enforcement "without prejudice to the use of procedures under existing . . . laws" permitted the additional imposition of punitive damage. 158 A.D. at 446.
Strangely, this is the sole authority for the State's position. Although punitive damage is an ancient remedy, it evidently has not been relied upon in the past by governmental entities seeking punitive relief. In Taliaferrow, the court was able to use favorable statutory language to help justify its authority to impose additional relief. In this case, the State's punitive damage claim is based solely on common law.
The court is also troubled by the fact that in all the state and federal environmental legislation considered and enacted in the last several decades, punitive damage relief is never included as a remedy. If the legislatures believed that additional relief should have been afforded to the State or federal government in these cases, they could have easily provided for it. The State correctly argues that there is nothing in the New York Penal Code or any other federal or state statute which precludes the State from seeking punitive damages for the tort of public nuisance in the same way that a private plaintiff could. However, OCC is also correct in countering that no New York or federal statute explicitly gives the State the right to seek punitive damage under these circumstances.
Despite the slim support for this cause of action, the court has decided not to alter its prior holding that as a matter of law, the State is not prohibited from seeking punitive damages on a common-law theory of public nuisance. While OCC correctly points out the dearth of case law directly addressing this issue, it has not offered either new argument or precedent precluding a grant of punitive damages per se under New York State law. Further, the evidence received on the punitive damage claim is pertinent to the resolution of the cross-claims and counterclaims. Therefore, the court will proceed on the theory that punitive damages are available to the State. However, the meager case law and lack of statutory support for such a determination behooves the court to approach the overall evaluation of the merits and any actual award of punitive damages with care.
OCC has raised again the question of the proper standard and burden of proof. Those issues were also dealt with in my prior decision, and I see no reason to modify them. The applicable standard of proof for punitive damages is preponderance of the evidence, which the Supreme Court held "suffices even in civil suits involving proof of acts that expose a party to criminal prosecution." United States v. Regan, 232 U.S. 37, 47-48, 58 L. Ed. 494, 34 S. Ct. 213 (1914), most recently affirmed by Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991). While both Supreme Court decisions involved private parties, this case still involves a civil remedy and does not merit the standard of proof reserved for criminal cases.
WASTE DISPOSAL AT LOVE CANAL
Hooker was formed in 1905, and its Niagara Falls plant began operating the following year. By 1910, the Niagara Falls plant was producing 20 tons of caustic soda and 42 tons of bleach per day. Ex. 2786, p.25. In the Company's early days, the plant employed a process of electrolyzing salt to form chlorine, which was then reacted with other chemicals to form the finished products. T. 4514-15 (Wilkenfeld). The Company sold its products to the chemical industry for use in many consumer items. T. 5153-55 (Cull).
In 1915, in response to World War I shortages, Hooker built the first monochlorobenzol plant in the United States. By the end of the war, Hooker's monochlorobenzol production was the largest in the world, exceeding 1.5 million pounds a month. Id. After World War I, the Company started to diversify with other organic and inorganic compounds. By the beginning of World War II, Hooker was well known as a manufacturer of diversified chemicals, primarily based on chlorine and caustic. T. 4514-16 (Wilkenfeld).
The Company grew substantially during World War II because of the demands of the United States government and defense contractors. From 1940 until 1953, its sales grew from $ 7.1 million to $ 38.7 million. Ex. 2823, T. 1540-42 (Cull). This dramatic growth continued, and by 1970 its annual sales reached $ 450 million. T. 4542-43 (Bryant).
Until Hooker began its wartime production, it was able to sewer and dispose of chemicals on-site. Increased volume of chemical waste, combined with growing opposition to open dumping in streams, forced Hooker to consider alternative means of waste disposal. Incineration could not handle the anticipated heavy waste disposal demands. In-ground disposal developed as a viable alternative.
Hooker became interested in the nearby Love Canal site as a landfill for wastes from its Niagara Falls plant in 1941 and obtained permission from the owner, the Niagara Power Development Corporation, to use the site without the expense of an outright purchase. None of the executives who were involved in the decision to bury Hooker's wastes or in the efforts to locate a landfill area were available for trial, and the written record is quite sparse. Thus, it is very difficult to reconstruct the process by which the Company decided to use Love Canal as a landfill. However, the site posed several obvious advantages. Its proximity to the Niagara Falls plant reduced transport costs and avoided the difficulty of moving odorous chemicals long distances by truck. There was a general perception, held by Hooker executives and residents in the Niagara Falls area, that the soils at Love Canal were composed largely of clay. Lastly, there were no zoning restrictions on the Canal's use, although the Company realized that the operation of a landfill would require measures to keep people and animals from coming in contact with the wastes. Ex. 8.
B. DESCRIPTION OF THE SITE
1. Historical Development
The Canal was developed in the 1890s by an entrepreneur named William Love, who hoped to create an industrial community which would use the Canal as a source of electric power and as a means of transportation. Love planned to connect the upper and lower Niagara River, bypassing Niagara Falls. He began excavating the Canal in 1894, but abandoned the project when he lost financial backing. Thereafter, the site remained unused, except for informal recreation by people living in the area. Evidently without objection by the owner, it was used for swimming, fishing, trapping, and ice-skating.
The unfinished Canal, located near the center of the parcel, was approximately 3,000 feet long and varied from 8 to 16 feet deep and from 60 to 80 feet wide over most of its length. In 1941, there were mounds of excavated earthen material located along most of the east and west banks of the Canal. The size of mounds varied in height from 10 to 20 feet, and in width from 30 to 40 feet. They were comprised of a mix of clay and silty sand and were covered and surrounded by various forms of vegetation, brush, and grass.
The general area was best described by two expert witnesses on photographic interpretation: Robert Colwell for the State and Samuel Gowan for OCC. They examined aerial photographs of the Canal and its environs taken between 1927 and 1979. Ex. 1216; T. 2980-3067, 3977-4055. The area portrayed was bounded by Colvin Avenue to the north, Frontier Avenue to the south, 93rd Street to the west, and 102nd Street to the east. It encompassed 250 acres, with an average of one residence per acre, including the Griffin Manor Housing Project, which was about 400 feet from the northern section of the Canal to the west. The photographs picture a mostly rural and agricultural landscape with open fields and orchards, with six homes and a church near Frontier Avenue, along what would eventually be 99th Street. T. 2991 (Colwell).
By 1928, the land immediately west and east of the Canal had been subdivided into building lots; by 1939, the City had planned the installation of Reed and Wheatfield Avenues across the Love Canal site. Before 1940, the population of Niagara Falls had been gradually spreading eastward toward and past Love Canal. This development is apparent from the aerial photographs. Still, by 1954, over 75 percent of the houses were on the east side of 99th Street.
Only a few homes had been built adjacent to the site when Hooker began its operations, and new street development did not materialize until much later.
The area to the east of Love Canal began to develop after 1950, when the City rezoned the east side of 99th Street (the side furthest from the Canal) from an "unclassified" to a "second residence" district. Ex. 3626 P16. Only one house was built on the west side of 99th Street during the time of Hooker's disposal operations. T. 417 (Voorhees), Ex. 1216. By 1954, 33 of the 40 homes under construction were on the rezoned east side of the Canal. Ex. 176. See Appendix A2 (Ex. 1394).
On the west side of the Canal, the Griffin Manor Housing Project was under construction by 1942, but there were no houses or streets built between the housing project and Love Canal during the period when Hooker was dumping in the northern sector. Ex. 1216. By World War II, Griffin Manor had about 750 apartments. When disposal operations began in the northern section, the nearest house was approximately 400 feet away. Ex. 1216.
2. Soil and Drainage Conditions
Charles Adams, who began trapping in the area in the 1930s, summed up the local knowledge of the soil at the Canal. He said there was a natural well in the middle which provided a continuous flow of water. The topsoil was eight to ten inches deep, underlain by soil which was half clay and half dirt, below which was what he called Tonawanda clay, identifiable by its bluish cast. The clay was very hard and good for brick-making, but it was difficult to dig through below the surface. Generally, the soil was very poor for farming, with very little topsoil and with clay underneath. T. 37-41. Several Hooker employees confirmed that the soils were basically clay, T. 4184, 4153 (Wilkenfeld), T. 1180 (Schultz), Ex. 1704 (Colpoys), and (Ex. 119) (Klaussen), as did John Boddecker, a civil engineer employed by the City of Niagara Falls, who observed the construction of the Reed Avenue sewer in 1958. T. 10053. However, William Wagner, a contractor for Hooker who was employed in the actual disposal operation at the site, described the sides of the Canal as sandy loam. T. 815.
The drainage at Love Canal was described by Robert Cohen, one of the main hydro-geologist witnesses for the State. His report stated:
The Love Canal landfill and area are characterized by poor natural drainage due to several factors including: A) the relatively flat topography, B) the presence of subsoils of low permeability, C) the shallow depth of the nearby river and streams, D) the rate of precipitation, E) the absence of a well-developed natural drainage network. As a result, the Love Canal site has historically experienced a high water table and both subsurface and surface drainage problems.
Ex. 718A, Finding 21. For the most part, this is a fair assessment of drainage. However, as Mr. Cohen noted, the rate of precipitation must also be taken into account. Evidence from several witnesses leads to the conclusion that the water table fluctuated. Sometimes the water in the Canal was six feet below the banks. At other times, it rose much higher, averaging two or three feet below ground level, or even at ground level, depending upon the time of the year and the rainfall. Ex. 161.
Ditches draining water into the Canal from the surrounding area, mainly from properties to the east, remained in place until about 1951. Water drained from the Canal through a swale or natural drainage way which flowed out of the Canal in a northerly direction, first to the northwest, then north, and finally northeast back across the northern edge of the site toward Black Creek. Dr. Gowan observed from aerial photographs four ditches flowing into the Canal and three flowing to the swale. Ex. 1216. Generally, the area was flat, with poor drainage. During rainy spells, the fields bordering the Canal were often wet, with puddling sometimes occurring.
Hooker's analysis of the soil and drainage conditions at the time it decided to use the Canal as a landfill was probably no more sophisticated than the descriptions given by laymen who testified. F. Leonard Bryant, who was assistant plant superintendent in 1948, testified that Hooker management did not believe there would be any difficulty with groundwater contamination, because Love Canal was looked upon as a large bathtub lined with clay through which nothing would ever go. T. 4566. The Company apparently believed that the barrier was sufficient to prevent migration of chemicals and did not seek advice from geologists.
OCC offered evidence of the Company's preparations for use of the site. In a plan dated December 19, 1941, Hooker's Engineering Department depicted how the northern section of Love Canal would be used for disposal operations. The plan took note of the principal features of the area, including property lines, topography of the site, existing drainage ditches, surface-water flow patterns, and berms up to 13 feet high along the sides of the Canal. It also showed the proposed location of dams 60 feet long and 16 feet wide which spanned the width of the Canal, dammed-off disposal areas in the Canal, a fence which enclosed the northern disposal areas, an access road with a gate, and a culvert under the road to maintain natural drainage. T. 5199-5205 (Cull); Ex. 1197A, 2002.
In April 1942, Hooker obtained an operating license from the Niagara Power Development Corporation to begin waste disposal operations. Shortly thereafter, the Company acquired title of the property. Hooker continued to send waste materials from its Niagara Falls plant to the Canal until 1954. At trial, most of the evidence about disposal practices was given by Hooker employees, with some reference to Hooker records. No one lived near the northern section of the Canal while Hooker was using it as a dump site, and only six to ten houses had been built close to the southern section prior to 1954, when building on 97th and 99th Streets began. For this reason, the non-Hooker witnesses who testified about the disposal operation were primarily individuals who had played at the site as children.
The evidence supports a finding that, except for the erection of a fence, the Engineering Department's plan was carried out with only slight modification. The plan provided for construction of at least two earthen dams across the northern part of the Canal before disposal operations began. The purpose of the dams was to prevent contaminated liquids from flowing from disposal areas into the rest of the Canal and nearby creeks and the swale. Ex. 46 at 1; Ex. 1216; T. 4628-29 (Gowan). At the same time, dams prevented water from adjoining areas of the Canal from entering disposal areas. Ex. 7124, No. 13 (State-OCC Stip.); Ex. 1216; T. 5096-97 (Fekete); T. 5204-05 (Cull); T. 2631 (Owens); T. 826-27 (Wagner). In addition, the dams allowed water to be pumped out of a disposal cell, if appropriate, immediately prior to waste burial. T. 826-27 (Wagner); T. 5096-98 (Fekete). The dams, which were constructed from the surrounding soil, were wide enough to accommodate vehicle traffic. T. 5096 (Fekete); T. 5204 (Cull); T. 4154-55 (Wilkenfeld); Ex. 1216. They thus created disposal cells up to 60 feet wide, several hundred feet long, and 10 feet deep. Id.
Hooker deepened and widened portions of the Canal for waste disposal. In addition, the Company dug disposal pits between the Canal and the rear property lines of residential lots on the east side of 97th Street and the west side of 99th Street.
The pits were generally 30 to 50 feet in diameter, 20 to 30 feet deep, and took some time to fill. In most cases, if there was water in the pit, it was pumped out before disposal began, leaving only a small amount in the bottom. Following these practices, Hooker's early dumping operations proceeded south from the northern end of the Canal.
An internal Hooker memorandum indicated that the Company had determined that there were no legal restrictions on dumping "so long as the property is either owned or leased by the party doing the dumping." However, "the property should be adequately protected so as to prevent the possibility of persons or animals coming in contact with the dumped materials." Ex. 8. Therefore, the original plan included the installation of a fence that would enclose all areas in which chemical wastes were to be dumped. The fence was to run across the northern entrance, down the east and west sides of the northern section, and across the southern-most portion of the northern section where dumping was to occur. Ex. 2002. T. 6762-63. However, the general consensus among the witnesses was that the area was not fenced. While at least one internal Hooker memorandum refers to a fence around a portion of the northern section,
those most familiar with the area could not recall any fence along the sides of the landfill, but only one at the northern tip of the Canal designed merely to prevent other dumpers from using the site. T. 820.
In 1946, Hooker finished the bulk of its northern section dumping and began waste disposal operations at the extreme southern end of the site near Frontier Avenue, moving northward toward the point where Wheatfield Avenue would later be built. See Appendix A1. As it had done in the north, Hooker constructed dams to facilitate disposal. The northernmost dam in the southern section was located just south of the eventual location of the 99th Street Elementary School and near Wheatfield Avenue. Hooker also had widened and deepened portions of the Canal and dug pits outside the Canal to a much greater degree than had been done in the northern section in order to accommodate the volume of chemical wastes being transported to the dump.
Jerome Wilkenfeld visited the site in 1948 when he was a young engineer assigned to Hooker's process study group. He began working for Hooker in 1945 and was curious to find out how waste disposal was carried out. He recalled that a truck carrying waste drums proceeded to the south end of the Canal on the west side. The drums in the truck were not leaking. He noticed a large earthen dam substantial enough to permit earth-moving equipment to drive over it. The dam across the Canal created a deep pit which had been pumped almost dry, with a few feet of water at the bottom. The water in the unused portion of the Canal looked clean. There was a substantial berm on the west side of the Canal, extending for some distance to the north. Looking further north, he could see another dam, and beyond that a stretch of leveled earth. To the south, dumping was evidently finished and the earth was filled in and covered, but there were signs of settling. He thought that the method of disposal was reasonable. T. 4150-55 (Wilkenfeld).
No fencing was installed around the southern and central sections of Love Canal where 75 percent of the dumping occurred. T. 837 (Wagner). Hooker did not construct fencing along the residential property lines bordering the west and east sides of the site, nor did it post any warning signs.
Although the focus of its disposal operations shifted to the southern section in 1946, Hooker continued to dispose of wastes in the central and northern sections even after 1952. In the central section, Hooker's dumping extended to an area near Wheatfield Avenue. At least two large pits, one south and the other east of the eventual location of the school, were dug and filled with waste before the school was constructed (Exs. 180, 1442, and 1445). In the northern section, Hooker dumped mostly trash after 1950, but small quantities of chemicals were deposited in the swale area. T. 3062-63 (Colwell); T. 4634-35 (Gowan).
The frequency of dumping at Love Canal varied. Some witnesses reported that wastes were hauled from the plant several times a week. However, Hooker's general practice was to accumulate between 500 to 2,000 drums of chemical wastes at its plant before hauling them to Love Canal. That occurred on roughly a monthly basis, although at times there were longer intervals between these relatively large-scale dumping operations.
Hooker usually stored chemical wastes at its plant in 55-gallon metal or fiberboard drums, each of which weighed between 200 and 500 pounds when full. The drummed residues included both liquid and solid chemical wastes. When the disposal operation began, the contents of the waste barrels could not be discerned by looking at the barrels.
T. 5088. Later on, Hooker began a practice of marking the drums with different-colored dots of paint in order to distinguish materials believed to be reactive from those considered nonreactive. T. 4159-60. The plan was to keep reactive, highly odorous, and fuming material away from populated areas. However, the marking practice was often not followed.
To prepare for the dumping of drums, the crew dug a hole 20 to 30 feet deep and about 30 to 40 feet wide. T. 826 (Wagner); Ex. 180. The contractor built a small dam made of flyash and dirt to keep water out of the digging area. Then, the workers pumped most of the water out of the excavated part, leaving only a foot of liquid at the bottom of the pit. The pits extended out from the Canal to about 25 feet from property lines. After a pit was dug, 600 to 1,000 drums could be buried in one day and cover placed over the pit. T. 829-30 (Wagner).
Evidence about Hooker's disposal practice was also given by Frank Fekete. Along with Mr. Wagner, he worked at the site almost daily. Fekete was employed by Hooker for 37 years, beginning as a yard laborer in 1940. During the 1940s, he delivered and dumped steel, paper, and drums into the Canal. He testified that when the trucks reached the Canal, they were driven to a dammed off area of the Canal or to one of the excavated pits, at which point drums would simply be dumped or rolled directly from the trucks. At times, a crane was also used to deposit drums at the site. The drums were neither segregated by content nor stacked, but instead were randomly dumped.
Several witnesses testified about the degree and quality of the cover of the landfill. William Wagner said that when he first came to the northern section, he put in fill, including cinders, clay, and loam, graded the surface, and built up a mound three to four feet above grade. He was told to form a mound in the center so that rainwater would run off to the east and west sides. By 1951, the cover was a series of hummocks. T. 818-20, 860 (Wagner). As Wagner continued to work in the northern section, he noticed that the ground was settling. T. 841. Although Wagner said that a cover was put over material on the same day it was dumped, there was no attempt to cover the drums completely or grade the surface until the pit was filled. This meant that some drums usually remained uncovered at the end of each day. Ex. 1708; Cohen, T. 2950; A. Voorhees, Dep. 126.
During its disposal operations, Hooker dumped drums to within one-half to four feet of the original ground surface. The plan was to have at least a four-foot cover, but often this goal was either not attained or not maintained. On many occasions, the cover was only one-half foot deep (T. 840 (Wagner)), thus placing the drums within the most permeable portion of the Canal stratigraphy. See Part V, Section C, infra. Furthermore, Hooker did not place topsoil, seed, or vegetation on the cover. In the southern section, there often was virtually no buffer zone between the Ring I properties and the wastes dumped in the disposal pits. Ex. 718a, F. 7. Pits were dug outside of the Canal itself and quite close to the rear property lines. Ex. 1442; (Gibson); Aileen Voorhees Dep., 121.
Some Hooker workers and contractors experienced firsthand the dangers of contact with the chemical wastes being dumped at the site. Occasionally, when drums broke during disposal operations, men would be splashed and burned by chemicals, sometimes forcing them to seek help from nearby residents to wash off. Chemicals often burned holes in their clothing. In one vivid example, a former worker gave the following account of the corrosiveness of some of the chemical residues being dumped:
D. CHEMICAL COMPOSITION OF THE WASTE MATERIAL
The parties agree that about 25,000 tons of chemical wastes, plus flyash and general refuse from the plant, were deposited at Love Canal from the time Hooker began to use the site in the early 1940s until it ceased operations in 1954. The available records made it difficult to determine the types and quantities of the wastes sent to Love Canal. Thus, estimates of the amount and concentration of the individual chemicals buried at the landfill differed widely.
The principal testimony concerning the nature of the chemicals deposited at Love Canal was supplied by Jay Cull, a chemical engineer employed by OCC. Mr. Cull has a B.C.E. from Brooklyn Polytech and an M.B.A. from the University of Buffalo. He has worked for Hooker and OCC in various capacities from 1953 to the present, interrupted only by military service. In 1975, he became technical manager of the plant and head of a staff whose job it was to become familiar with the details of the various processes used in the plant and make suggestions for improving the efficiency of the chemical production. In 1978, he was assigned to gather information about the nature and quantities of the wastes that had been sent to Love Canal. To carry out this assignment, he examined written records and questioned individuals knowledgeable about disposal practices in the 1940s.
Mr. Cull's investigation was greatly hampered by the lack of accurate waste disposal records available. In the 1940s, the materials sent to Hooker's landfills were recorded in what the Company called "level books." By 1980, these records were no longer available. Moreover, many of the people who were involved in Hooker's disposal operations during the 1940s and who had the most exact information were either deceased or ill and unable to be of much assistance.
Sales records were available for two of the twelve years during which Love Canal was used for waste disposal. From the sales figures, Cull was able to estimate the quantities of the chemicals produced in those years. His understanding of the chemical production processes then enabled him to estimate the volume of waste generated. Further information was obtained through the Love Canal Interagency Task Force, which had been formed by the State and federal governments in 1978 to investigate and propose solutions to the problems created by the landfill. Ex. 2725. See Part V, Section A, infra.
Mr. Cull admitted that there were so many variables in his procedure that he was precluded from testifying with certainty about which chemicals were sent to Love Canal in what volumes. Nevertheless, his was the best estimate presented to the court. The State did not offer any comparable analysis. Cull's estimates of the total amount of waste materials generated by Hooker during the 1940s and early 1950s are summarized in Exhibit 2218. These estimates were based on the information he gathered during his own investigation, combined with figures from several other reports which were unknown or unavailable to him during his investigation. At page 2 of the exhibit, a table details the waste categories, the total amount of waste produced by Hooker, and the amount sent to Love Canal. At Cull's cross-examination, some minor changes were made in these figures.
Most of the chemical wastes transported by Hooker to Love Canal were soluble in water and are known as aqueous-phase liquids ("APL"). As much as 3,000 tons of the wastes were relatively insoluble in water and are known as nonaqueous-phase liquids ("NAPL"). About 2,100 tons of the NAPL were in the form of denser-than-water nonaqueous-phase liquids ("DNAPL"). Other waste material took the form of less-dense-than-water nonaqueous-phase liquids ("LNAPL"), which tended to rise toward the surface of the landfill.
The chemical found in the largest quantity was benzene hexachloride ("BHC"), in an amount estimated at 7,159 tons. See description of BHC residues or "spent cake" below. The second-largest deposit was of the chlorobenzenes (mono-, orthodi-, tri-, and tetra-) (3,506 tons), followed by dodecyl mercaptan ("DDM") (2,090 tons), sulfides (1,951 tons), benzyl chloride (1,757 tons), and benzoyl chloride (1,230). The remainder of the estimated 22,000 tons of chemical residues buried at the Canal included: thionyl chloride, trichlorophenol ("tcp"), metal chlorides, liquid disulfide ("lds"), monchlorotolunene ("mct"), and miscellaneous acid chlorides and chlorination products and other unidentified residues. Ex. 2218A.
E. TOXICITY AND DISPOSAL METHODS FOR SPECIFIC CHEMICALS
Many of the chemicals used by Hooker during the production process were highly toxic and hazardous. The State's accusation of reckless disregard for public safety is premised on the danger posed by chemical wastes both during and after disposal. Several specific chemicals and their waste products were the subject of special attention during the trial because potentially hazardous disposal methods were employed, there were recurring incidents of exposure, or the substances continued to cause problems during or after the disposal operations.
The following section sets out a general description of the dangerous properties of the chemicals handled by Hooker.
Next, the problems associated with disposing of the waste materials of several chemicals are reviewed. Particular chemicals which were discussed at length during trial or were the subject of concern during or after the landfill operation are highlighted. The section ends with the State's argument that Hooker's disposal procedures were unsafe and a brief discussion of the viability of alternative methods such as incineration.
Dr. Kelley Ann Brix gave expert testimony for the State regarding the toxic chemicals which Hooker used or produced in its Niagara Falls plant as well as a review of the extent of the Company's knowledge about the dangers associated with these chemicals. Dr. Brix is a public health physician for the Bureau of Environmental & Occupational Epidemiology of New York State Department of Health, Director of the Master of Public Health Degree Program at SUNY Albany, and consultant to physicians about clinical care patients who have been exposed to environmental agents. She received an M.S. in zoology (1974) and an M.D.(1978) from the University of Michigan. She also has a Master of Public Health degree (1980) from the University of Illinois. Ex. 1128. Dr. Brix was asked by the State to review internal Hooker memoranda and reports, operating and first-aid manuals, product warning labels, and reports and journals issued by organizations such as the Manufacturing Chemists' Association, the National Safety Council, the American Industrial Hygiene Association, the United States Department of Labor, and the American Medical Association. She focused primarily on the time period prior to 1954, but included some post-1954 materials.
Dr. Brix discussed Hooker's knowledge of the dangers posed by these chemicals as raw or finished commercial products. Her report (Ex. 1335) covers 17 chemicals or classes of chemicals, including those listed above, and relates a considerable amount of toxicological information. See Appendix B for her "Executive Summary" of this report. She determined that Hooker "definitely recognized that these materials were toxic." Exhibit 1335 at 1. She also concluded the following:
Id. at 1. However, very few documents covered in the report refer to the content or potential harm from exposure to the waste materials or residues created by Hooker's processes. Dr. Brix also could not testify about Hooker's knowledge of the possible hazards of burying toxic wastes because this information was not included in the documents she reviewed. She is not an expert in waste disposal, hydrology, or geology. T. 425-31.
The disposal methods of four of the chemicals reviewed by Dr. Brix--thionyl chloride, TCP, dioxin, DDM--were discussed at length during the trial because of the exposure problems which occurred during Hooker's landfill operations at the Canal. Although the parties did not give the disposal of spent cake, the waste product of lindane, a great deal of attention, it is also included in this section because it was deposited in enormous quantities at the landfill and was the subject of several reports of surface exposure after the site had been transferred.
1. Lindane and Spent Cake
Between 1946 and 1953, Hooker manufactured large quantities of lindane
, the commercial name for the gamma isomer of hexachlorocyclohexane ("HCH"), also known as benzene hexachloride ("BHC"). Waste residues generated in the production of lindane, which was widely used as an insecticide, were variously called "spent cake," "BHC spent cake," "spent BHC," "FBHC spent cake," "HGI residue," "HGI cake," and "'A' cake." Spent cake made up between 1/4 and 1/3 of all chemical waste products buried at Love Canal. Although it contained only a small percentage of lindane, the most acutely toxic of the HCH isomers, spent cake consisted very largely of the alpha, beta, and delta isomers, all of which are also toxic.
Lindane or high gamma isomer ("HGI") was isolated from an industrial mixture of HCH which included 13.5-14 percent gamma. Ex. 1515. The isolation process seems to have involved at least two steps which produced residues. The first step produced "fortified BHC" (FBHC), which contained about 40 percent gamma isomer. The second isolated the gamma isomer (99 percent gamma) from the FBHC. This two-step process left large quantities of spent cake, rich in HCH/BHC isomers other than gamma. The various names for spent cake appear to have been used interchangeably even though residues produced in the second stage of isolation probably differed in the proportions of the isomers to those produced in the first stage.
Two methods of disposal of spent cake were described. In one method, the spent cake was dumped into pits 12 to 15 feet deep and covered by cinder and ash. Ex. 1516. See also, T. 5437 (Cull). Impurities later found in this material consisted of dirt particles approximately the same size as the cake particles. Ex. 962. In the other method, spent cake which may have been the residue from the later stage of the process when lindane was present in higher concentrations, was first packaged in wax-coated fiber drums. This was once described as "'A'-cake," a substance which looked similar to chalk and contained approximately 11 percent "volatiles" or materials other than HCH/BHC. Ex. 962.
By 1950, the Company's top management officials were well aware that spent cake contained very large quantities of undegraded (though gamma-depleted) HCH/BHC isomers. This knowledge is demonstrated in a August 1950 memorandum detailing a proposal discussed by Hooker management to install the equipment necessary to convert HCH/BHC present in spent cake into up to 250,000 lbs. per month of pyrolytic trichlorobenzene ("PTCB") by high temperature degradation or pyrolysis. Exs. 951 & 1515. Hooker management apparently found this proposal attractive because PTCB could be produced at a much lower cost than trichlorobenzene prepared by chlorination of benzene.
Exs. 951, 1514, and 1515. The proposal was approved by Hooker's
president and senior management in September 1950. Ex. 1515.
According to Cull, Hooker installed the necessary equipment and began converting some or all of the spent cake produced in the FBHC process to PTCB in 1951 or 1952, thereby drastically reducing the amount of waste generated from HGI production. T. 5190. In early 1953, however, the Company cut FBHC production. Ex. 1516. Hooker's production personnel were concerned that there would be insufficient "BHC spent cake" available from the FBHC process to meet the demand for PTCB. Id. This led to a proposal that the Company's Process Study group investigate the practical problems that might be involved in recovering spent cake from "the dump," in quantities of up to 190 tons per month, for use in PTCB production. Id. Such a study was performed (see Exs. 961 and 962), and a recommendation was made that "facilities be provided for return of spent cake from the dump . . . ." Ex. 962. Nothing in the record indicates whether spent cake was ever actually recovered on a large scale.
The proposal to recover spent cake from "the dump" for use in PTCB production demonstrates that in 1953, Hooker's production personnel understood (1) that HCH/BHC isomers were present in "the dump" in very large amounts, (2) that the HCH/BHC isomers remained in the ground in an undegraded state, suitable as raw material for PTCB production, and (3) that they were in the ground in a sufficiently concentrated form that they could be readily "mined," cleaned up, and utilized.
Dr. Brix testified that Hooker knew that all four isomers of BHC were toxic by 1953. Her report reviewed at least 18 documents obtained from Hooker files which relate to the toxicity of BHC. Ex. 1335 at 44-54; T. 522-542. In addition to several internal memoranda, she noted a 1951 article in the Journal of the American Medical Association (Ex. 1159) which described lindane, the gamma isomer, as the most acutely toxic form of BHC, but warned of the ill effects of all the isomers. The article reported that the estimated fatal oral dose of lindane in adult humans was less than a quarter of an ounce. The alpha and delta isomers had been found to be about 1/9 and 1/6 as potent, respectively, as lindane in single-dose acute toxicity tests on laboratory animals. The beta isomer is the least acutely toxic of the four isomers but the most chronically toxic, meaning that it could be stored and built up in the body over a long period of time. The article described the pathological effects of cutaneous absorption (absorption through the skin) in laboratory animals as "liver necrosis,. . . hyaline granular degeneration of the renal convoluted tubular epithelium as well as mild changes in the bone marrow, lymphoid tissues, adrenal cortex, and cerebrum." Ex. 1159.
Dr. Brix testified that she examined both internal documents and scientific articles found in Hooker's files which discussed the toxicity of the BHC/HCH isomers. She concluded:
Hooker Chemical Company recognized the toxicity of HCH isomers as early as 1945
. . . . Fatal poisonings [of humans] due to gamma HCH were reported as early as 1951. Poisonings could occur through ingestion or skin absorption. Symptoms of acute poisonings could include loss of consciousness and grand mal convulsions. As early as 1953 chronic poisonings were reported which included symptoms [such as] severe anemia and easy bleeding, probably due to decreased platelets. Hooker exchanged information on the toxicity of HCH isomers with other companies, kept apprised of the toxicological literature, was familiar with research at academic institutions, recommended several safety precautions for its employees exposed to HCH isomers, and closely followed the concern of regulatory agencies in gamma HCH.
T. 540-42; Ex. 1335 at 53-54.
2. Dioxin and Trichlorophenol
The State urges that Hooker's method for disposal of trichlorophenol ("TCP") and dioxin wastes and its attitude toward the employees who handled these chemicals demonstrate its negligence and malicious intent. Dioxin is a byproduct of the manufacture of TCP. It was buried at Love Canal and detected in sump pumps of Ring I homes in 1978.
Dr. Brix testified that between 1949 and 1952, about 200 tons of TCP were dumped in Love Canal. She calculated that the TCP residue contained about 300 parts per billion, or 120 pounds, of dioxin. Ex. 446; T. 605.
The amount of dioxin which migrated to the area of the homes cannot be ascertained.
The State contends that by 1941, Hooker knew that workers exposed to TCP could develop chloracne, a serious skin disease which was difficult to cure. T. 552 (Brix). During the 1940s, some Hooker employees did suffer from this condition, but their condition was caused by handling chlordiphenyloxide and related chemicals, rather than TCP. Hooker did not start the production of TCP until 1949. Before it embarked upon the chemical's manufacture, the Company was advised that TCP "is by a wide margin the least toxic of the chlorinated phenols." Exs. 66 and 69. The Company manufactured TCP from about 1949 to 1960, but did not learn until 1957 that dioxin was a byproduct. T. 5194 (Cull). Dr. O'Keefe, a chemical expert testifying for the State, said that the 2,3,7,8 TCDD (dioxin) isomer was not isolated until 1980. Hooker was aware in the 1950s that workers could develop chloracne from TCP production, but did not understand precisely what caused the condition.
While Hooker's protection of its workers is not at issue in this case, the court will consider the steps the Company took to protect the health and safety of its employees and whether it was careless. In the early 1940s, Hooker consulted with governmental and other experts to find out how to prevent chloracne (Exs. 66, 97, 778, 1219, and 2502). The Company modified mechanical, ventilating, and operating procedures to improve industrial hygiene. T. 4264-66. In the latter part of the decade and the early 1950s, the incidence of chloracne continued to ...