Control of Toxic and Hazardous Substances HS415 Love Canal

Love Canal – some history The canal was to be built in the 1890s for ship navigation, but it was never completed. The canal was to be built in the 1890s for ship navigation, but it was never completed. Early 1900s: the unfinished canal was used for swimming and boating. Early 1900s: the unfinished canal was used for swimming and boating. The land was sold in 1920 and became a municipal and industrial dump site. The land was sold in 1920 and became a municipal and industrial dump site. From 1942 to 1953, Hooker Chemical dumped about 21,000 tons of ‘toxic chemicals” at the site. From 1942 to 1953, Hooker Chemical dumped about 21,000 tons of ‘toxic chemicals” at the site.

Love Canal – some history In 1953 the landfill was covered with layers of dirt. In 1953 the landfill was covered with layers of dirt. The Niagara Falls Board of Education bought the site from Hooker Chemical. The Niagara Falls Board of Education bought the site from Hooker Chemical. As the city started to grow into the area, the 99 th Street Elementary School was built over the landfill, and homes were built around the site. As the city started to grow into the area, the 99 th Street Elementary School was built over the landfill, and homes were built around the site.

Love Canal – some history From the late 1950s into the 1970s, residents reported foul odors and complained that “substances” were seeping into their basements, yards, and the school playground. From the late 1950s into the 1970s, residents reported foul odors and complained that “substances” were seeping into their basements, yards, and the school playground. The city assisted by covering up the seeping “substances.” The city assisted by covering up the seeping “substances.” Tests found high levels of PCB’s in storm sewers and toxic chemicals in wells. Tests found high levels of PCB’s in storm sewers and toxic chemicals in wells.

Love Canal -- Neighborhood The Love Canal neighborhood is in the city of Niagara Falls, New York. The Love Canal neighborhood is in the city of Niagara Falls, New York. In 1978 the neighborhood included about 800 homes, 240 low-income apartments, and the 99 th Street Elementary School. In 1978 the neighborhood included about 800 homes, 240 low-income apartments, and the 99 th Street Elementary School. The neighborhood was located over and around a landfill that had been active in earlier decades. The neighborhood was located over and around a landfill that had been active in earlier decades.

Love Canal In August 1978 President Carter declared a federal emergency at the Love Canal due to contamination by toxic chemicals in the area. In August 1978 President Carter declared a federal emergency at the Love Canal due to contamination by toxic chemicals in the area. Love Canal focused attention on hazardous waste issues and led to the passage of the federal Superfund Act. Love Canal focused attention on hazardous waste issues and led to the passage of the federal Superfund Act.

The Love Canal area in The arrow points to the canal.

Love Canal

LoveCanal in 1980

Love Canal: Environmental Damages Reports suggested that there was an unusually high rate of birth defects and miscarriages among Love Canal families. Reports suggested that there was an unusually high rate of birth defects and miscarriages among Love Canal families. In 1980 the EPA announced that chromosome damage had been found in 11 out of 36 residents tested in the area. In 1980 the EPA announced that chromosome damage had been found in 11 out of 36 residents tested in the area. There has not been conclusive proof of a link between Love Canal and any illness. There has not been conclusive proof of a link between Love Canal and any illness. The health of residents of the Love Canal area is being monitored in a number of ongoing studies. The health of residents of the Love Canal area is being monitored in a number of ongoing studies.

Love Canal today The canal itself has been fenced, and groundwater flow from it has been blocked. The canal itself has been fenced, and groundwater flow from it has been blocked. The surrounding area, now called Black Creek Village, is home to hundreds of families. The surrounding area, now called Black Creek Village, is home to hundreds of families. About 260 homes abandoned in the late 1970s have been renovated and resold. About 260 homes abandoned in the late 1970s have been renovated and resold. Chemical wastes were left in a 70-acre site, but it was capped and fenced. Chemical wastes were left in a 70-acre site, but it was capped and fenced.

Love Canal – Regulatory Impact The Love Canal disaster spurred the passage of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) – The Superfund Act – by Congress in The Love Canal disaster spurred the passage of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) – The Superfund Act – by Congress in Remediation efforts at Love canal took more than twenty years, with a large share of the costs being paid by the chemical company that bought Hooker Chemical. Remediation efforts at Love canal took more than twenty years, with a large share of the costs being paid by the chemical company that bought Hooker Chemical. Love Canal was removed from the federal government’s Superfund list in Love Canal was removed from the federal government’s Superfund list in 2004.

Sources ovecanal/introduction.html ovecanal/introduction.html ovecanal/introduction.html ovecanal/introduction.html History of the site from the local perspective. e_sum/ c.htm e_sum/ c.htm e_sum/ c.htm e_sum/ c.htm An overview from the EPA.

Toxic waste problems like Love Canal are especially hard to handle: It may be hard to identify the polluter. It may be hard to identify the polluter. Pollution might be the result of an improbable accident rather than an on-going activity. Pollution might be the result of an improbable accident rather than an on-going activity. It might be unclear how liability should be shared between two or more possible polluters. It might be unclear how liability should be shared between two or more possible polluters. Remediation must be completed quickly, but it might take a long time to decide who should pay. Remediation must be completed quickly, but it might take a long time to decide who should pay. It’s hard to measure the amount of pollution or the likely damages. It’s hard to measure the amount of pollution or the likely damages. Health problems might have a long latency period. Health problems might have a long latency period.

Federal responses: Resource Conservation and Recovery Act (1976)  “Cradle to grave” management of hazardous wastes  “Cradle to grave” management of hazardous wastes Established standards for storage and transport of hazardous materials. Established standards for storage and transport of hazardous materials. Required hazardous waste handlers to track and report all movements of wastes. Required hazardous waste handlers to track and report all movements of wastes. Established tough standards for landfills. Established tough standards for landfills.

Federal responses: Resource Conservation and Recovery Act (1976) Efficiency and cost-effectiveness of the RCRA approach Efficiency: Rules (such as the designation of certain wastes as hazardous) are based on factors such as toxicity, with no consideration of the costs of control. Efficiency: Rules (such as the designation of certain wastes as hazardous) are based on factors such as toxicity, with no consideration of the costs of control. Cost-effectiveness: RCRA is an another example of the use of uniform standards to control pollution. Cost-effectiveness: RCRA is an another example of the use of uniform standards to control pollution.

Federal responses: CERCLA – the Superfund Act (1980) Comprehensive Environmental Response, Compensation, and Liability Act established a fund – Superfund – to facilitate cleanup of hazardous waste sites. Comprehensive Environmental Response, Compensation, and Liability Act established a fund – Superfund – to facilitate cleanup of hazardous waste sites. Authorized the federal government to clean up hazardous waste sites and recover damages from responsible parties. Authorized the federal government to clean up hazardous waste sites and recover damages from responsible parties. Established a tax on oil and chemical companies to fund cleanup costs at abandoned sites; but this funding ended long ago. Established a tax on oil and chemical companies to fund cleanup costs at abandoned sites; but this funding ended long ago. Tightened legal liability standards for hazardous waste problems. Tightened legal liability standards for hazardous waste problems.

Superfund The National Priorities List (NPL) includes sites that pose the greatest threats to human health; these are supposed to get immediate attention. The National Priorities List (NPL) includes sites that pose the greatest threats to human health; these are supposed to get immediate attention. NPL Sites in the US, NPL, Superfund, US EPA Construction Completions at National Priorities List (NPL) Sites - by State, NPL, Superfund, US EPA Construction Completions at National Priorities List (NPL) Sites - by State, NPL, Superfund, US EPA Deleted National Priorities List (NPL) Sites - by State, NPL, Superfund, US EPA Deleted National Priorities List (NPL) Sites - by State, NPL, Superfund, US EPA

Progress under Superfund Summary of Superfund Program Accomplishments (End of 2006) 1006 Superfund sites have had all cleanup construction completed Superfund sites have had all cleanup construction completed. There were 1557 final NPL sites, so construction has been completed at 65% of them. There were 1557 final NPL sites, so construction has been completed at 65% of them. The EPA was conducting 653 cleanup projects at 414 sites. The EPA was conducting 653 cleanup projects at 414 sites. In 2006 the EPA obtained commitments from “potentially responsible parties” in the private sector to provide $391 million for future remediation work and $164 million to reimburse the EPA for past costs. In 2006 the EPA obtained commitments from “potentially responsible parties” in the private sector to provide $391 million for future remediation work and $164 million to reimburse the EPA for past costs.

What legal standard should apply? The choice of a legal standard can determine: Who pays for remediation? Who pays for remediation? Whenever possible, we want it to be the case that “The polluter pays.” Whenever possible, we want it to be the case that “The polluter pays.” What level of precaution will be chosen by waste handlers and other possible hazardous waste “sources”? What level of precaution will be chosen by waste handlers and other possible hazardous waste “sources”? Waste handlers will choose a higher level of precaution if that reduces the risk of a lawsuit later. Waste handlers will choose a higher level of precaution if that reduces the risk of a lawsuit later. Therefore the threat of legal action can provide significant incentives. Therefore the threat of legal action can provide significant incentives.

Possible standards: Negligence standard: Negligence standard: Waste handler has a duty to exercise “due care.” Waste handler has a duty to exercise “due care.” If it can be proved that damages were caused by the waste handler’s negligence (or lack of “due care”), then the waste handler can be forced to pay compensation. If it can be proved that damages were caused by the waste handler’s negligence (or lack of “due care”), then the waste handler can be forced to pay compensation. An example: One rule that’s sometimes applied in the courts is that the defendant is guilty of negligence if An example: One rule that’s sometimes applied in the courts is that the defendant is guilty of negligence if (damages) × (probability of contamination) > cost of preventing contamination What legal standard should apply?

Possible standards: Negligence standard (cont.) Negligence standard (cont.) Who pays? Who pays? If negligence can be proved, then the polluter pays. If negligence can be proved, then the polluter pays. But it can be hard to prove negligence! But it can be hard to prove negligence! Incentives? Incentives? What legal standard should apply?

Strict liability Strict liability Courts have determined that this can be applied in Superfund cases Courts have determined that this can be applied in Superfund cases Definition: if an activity causes damage, the defendant is liable for damages, even if the defendant was not negligent and was not breaking any laws. Definition: if an activity causes damage, the defendant is liable for damages, even if the defendant was not negligent and was not breaking any laws. Who pays? Who pays? Incentives? Incentives? What legal standard should apply?

Joint and several liability Joint and several liability Courts have determined that this standard also can be applied in Superfund cases Courts have determined that this standard also can be applied in Superfund cases Definition: if several parties are responsible for damages, each of them individually is potentially liable for all the damages. Definition: if several parties are responsible for damages, each of them individually is potentially liable for all the damages. Who pays? Who pays? The government can choose to sue only a few parties who might be responsible. The government can choose to sue only a few parties who might be responsible. What legal standard should apply?

Joint and several liability (cont.) Joint and several liability (cont.) Incentives? Incentives? In principle, each responsible party has an incentive to turn in other responsible parties. In principle, each responsible party has an incentive to turn in other responsible parties. But this also provides an incentive for defendants to appeal decisions, leading to lengthy and costly court battles. But this also provides an incentive for defendants to appeal decisions, leading to lengthy and costly court battles. In the 1980s, legal costs accounted for more than 50% (and perhaps as much as 90%) of remediation costs. In the 1980s, legal costs accounted for more than 50% (and perhaps as much as 90%) of remediation costs. The government tends to sue larger firms, so: The government tends to sue larger firms, so: Smaller firms have little incentive to take precautions. Smaller firms have little incentive to take precautions. Larger firms have an incentive to choose a higher level of precaution than would be economically efficient. Larger firms have an incentive to choose a higher level of precaution than would be economically efficient. What legal standard should apply?

Back to Love Canal So the City of Niagara Falls, NY bought (acquired) the site to use as a ‘landfill’ in ~1920. So the City of Niagara Falls, NY bought (acquired) the site to use as a ‘landfill’ in ~1920. Hooker Chemical Co. purchased it from Niagara Falls in ~1940 to use as an industrial dump. Hooker Chemical Co. purchased it from Niagara Falls in ~1940 to use as an industrial dump. April 1953 Niagara Falls School Board purchased it back for $1.00 and signed a 17 line caveat. April 1953 Niagara Falls School Board purchased it back for $1.00 and signed a 17 line caveat.

“ 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. 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. ”

So Everyone knew the history of the site that Niagara Falls built an Elementary School and housing complex on top of. So Everyone knew the history of the site that Niagara Falls built an Elementary School and housing complex on top of. (This was not a hidden toxic waste site!) (This was not a hidden toxic waste site!) So why did Hooker Chemical get sued to pay and not Niagara Falls, NY? So why did Hooker Chemical get sued to pay and not Niagara Falls, NY?