Love Canal polluter found negligent but not reckless; punitive damages ruled out.

Hooker Chemical and Plastics Corp., the company that made Love Canal a synonym for environmental disaster by burying tons of toxic chemicals on the property, will not be held liable for punitive damages for its conduct. In the first legal decision in the combined federal and state civil case against Hooker Chemical and Plastics Corp., Judge John Curtin of the Western District of New York ruled in March that the plaintiffs had not proven that the company's conduct was reckless or wanton. (United States v. Hooker Chem. and Plastics Corp., No. 79-CV-990C (W.D.N.Y. Mar. 17, 1994).)

In the 1940s and 1950s, when most of the Love Canal waste was buried, other companies were dumping untreated toxics directly into streams and lakes, Curtin wrote. Therefore, though much of what Hooker and its successor, Occidental Chemical Corp. (OCC), did was negligent, it was not bad enough to merit punitives. Decisions on other claims in the liability phase of the bifurcated trial were pending at TRIAL press time, and no date had been set for the damages phase.

The government's request for punitive damages was novel. In previous civil actions against polluters, the government sought only cleanup costs; in worse cases it brought criminal charges. This ruling is expected to chill other government plans to seek punitive damages in cases of longstanding environmental harm.

The 170-page opinion also discussed past industrial waste disposal practices and public health policies in detail. The discussion is expected to set standards for evaluating future cases.

All in all, Hooker buried some 21,800 tons of chemical wastes on the 16-acre site. When the dumping began, the region was rural, with only a few houses nearby. Neighbors sometimes hunted, swam, or fished on the Hooker property. Company documents showed that there were plans to erect a fence and post warnings to keep children out. However, only part of one side was ever fenced, and warnings were not posted.

The parcel's natural soil was in two strata: an upper layer of sand, silt, and clay three or four feet deep, and a thick clay bottom layer that acted "like a giant bathtub," the court said. The chemical industry regarded this type of dense clay as impenetrable. Not until the 1970s was it known that some liquid wastes could widen cracks in the clay bed and seep into surrounding soil. However, Hooker knew from the outset that chemicals could move sideways through lighter soil. When full, the pits were covered with excavated material. In some parts of the Love Canal parcel, the cover layer was only six inches deep.

By the late 1950s, most of the parcel had been dug out and filled in with corrosive and toxic chemicals, some in barrels, some not. More and more houses were being built in the neighborhood. The Niagara Board of Education notified Hooker that it was considering condemning the parcel as a site for a school and playground.

Company documents show that some executives considered the site unsafe for a school. However, the company sold the parcel to the school board for $1, noting that toxic chemicals were buried there but not saying how much or what they were. Hooker disclaimed responsibility for any future harm from the chemicals and stressed that the school board should maintain the topsoil cover and should never allow the parcel to be excavated for roads, buildings, or sewers.

The company also supplied a map of the burials and said that the central portion was the only safe place to build the school; the rest should be kept covered and used as a park or playground. When school construction began, the contractor ran into two chemical pits not on the map, so the building had to be moved. In later years, city road and sewer construction exposed wastes and may have increased their migration along pipes and ditches.

Contrary to OCC's advice, the school board sold some of the property for housing. When the houses were built, chemical wastes seeped into basements, bubbled up in yards, and oozed into road construction sites. Over the years OCC was sometimes called to help remedy the problems, according to the court. The company always disclaimed responsibility but then helped correct the problem. Even after many such incidents, the company apparently never told the school board the composition of the wastes or warned the neighbors.

The wastes included many barrels of sulfuric acid and hundreds of tons of whitish "spent cake" rich in lindane, a highly concentrated and toxic insecticide. The acid barrels had been pierced to let the contents mix with water. The mixture would cause an intense foaming chemical reaction that eventually neutralized the acid.

Many waste barrels worked their way to the surface. Occasional explosions and "volcanos" from bursting acid barrels that had not been adequately pierced occurred for decades after burial. Often children found the crumbly white spent cake--on one occasion using it to chalk hopscotch grids on the street--and developed chemical burns.

The judge noted that he took all testimony on historical events and industry standards with a pinch of salt. Most of the people who actually made the decisions, negotiated the property's transfer from Hooker to the Niagara Falls Board of Education, and dealt with subsequent incidents of pollution were dead or otherwise unavailable to testify at the trial. The story had to be reconstructed from scanty documents and distant memories.

Despite the ruling's apparent leniency, Oliver Koppell, New York State's attorney general, said that polluters "can take no solace in this decision, which turns on the unique facts of the Love Canal case."