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The Road to Love Canal

The Road to Love Canal
Managing Industrial Waste before EPA
Foreword by Bruce Piasecki

This book examines industrial waste disposal before the formation of the Environmental Protection Agency in 1970.

February 1995
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231 pages | 6 x 9 | 5 figures, 1 table |

The toxic legacy of Love Canal vividly brought the crisis in industrial waste disposal to public awareness across the United States and led to the passage of the Superfund legislation in 1980. To discover why disasters like Love Canal have occurred and whether they could have been averted with knowledge available to waste managers of the time, this book examines industrial waste disposal before the formation of the Environmental Protection Agency in 1970.

Colten and Skinner build their study around three key questions. First, what was known before 1970 about the hazards of certain industrial wastes and their potential for causing public health problems? Second, what were the technical capabilities for treating or containing wastes during that time? And third, what factors other than technical knowledge guided the actions of waste managers before the enactment of explicit federal laws?

The authors find that significant information about the hazards of industrial wastes existed before 1970. Their explanations of why this knowledge did not prevent the toxic legacy now facing us will be essential reading for environmental historians and lawyers, public health personnel, and concerned citizens.

  • Foreword by Bruce Piasecki
  • Preface
  • Acknowledgments
  • 1. Introduction
  • 2. Recognizing Dangers
  • 3. Accommodating Hazards
  • 4. Regulating Hazards
  • 5. Working with Existing Knowledge
  • 6. Influencing the Decision Makers
  • 7. Outcomes
  • Notes
  • Index

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Love Canal, a once comfortable suburban neighborhood in the industrial community of Niagara Falls, New York, has been seared into the collective memory of the country, although particular segments of society view its significance differently. For the former residents of the now largely evacuated district, it denotes an example of corporate irresponsibility. Freemarket environmentalists portray it as governmental failure on an unprecedented scale. For environmental activists, it symbolizes a tragedy that finally compelled assertive government action to correct decades of land waste disposal abuses. In the environmental consulting field, it is a watershed event that has led to prosperity for countless environmental firms. Chemical manufacturers might perceive it as both a transgression by one of the fold and a media phantom that continues to haunt industry long after its discovery. A federal judge concluded that the creation of Love Canal reflected "many specific instances of Hooker's negligence," but did not meet the legal test of "the reckless disregard for the safety of others." From a historical perspective, Love Canal is but one of thousands of industrial waste sites that illustrates a pattern of corporate and government behavior during the past three-quarters of a century.

Legal proceedings and treatises on hazardous waste issues present a similarly perplexing view of industrial, particularly chemical, waste management for the period before 1970. On one extreme, expert witnesses for industrial waste disposers contend that indiscriminate disposal of toxic substances in pits, ponds, or lagoons was the best available treatment during the 1940s, 1950s, and 1960s. Such opinions bolster the position that what constitutes mismanagement now was acceptable and even recommended industry practice before 1970. Defenders of waste producers make the case that the consequences of their actions were not foreseeable and therefore not irresponsible. Other experts in fields such as toxicology, hydrology, public health, and industrial history have offered contrasting views. Casual waste management practices were common, some argue, and did not conform with practices recommended by industry itself. We will explore the technical literature that documents contemporary scientific knowledge that called for the adoption of alternatives to commonly used practices.

This book will examine the historical context of chemical waste management from viewpoints of waste disposers and the contemporary experts on hazardous substance use and public health during the first two-thirds of this century. We will focus our review on the technical and popular literature published prior to the formation of a national environmental protection agency, the testimony of expert witnesses in environmental litigation, municipal and state regulatory materials, and some internal corporate communications.

Before 1970 and the passage of the National Environmental Protection Act, there was no uniform regulation of chemical waste disposal. This does not imply an atomistic, locally based process of waste management decision making. To the contrary, there were numerous national organizations, in the fields of both manufacturing and public safety, that provided guidance on waste treatment technologies and served as networks for disseminating vital information. In fact, the staffs of many large manufacturers were by far the best informed and most capable of making critical decisions about proper waste disposal methods. There were government organizations and independent standards-setting associations that also provided mechanisms for introducing individuals and smaller companies to existing knowledge. These groups guided the formulation of local legislation and regulations regarding sewage and solid waste. Common law also acted to impose, albeit weakly, a degree of liability on waste disposers. Furthermore, professional journals, government reports, the popular press, symposia, and numerous other organs served effectively to disseminate information. The complex nexus of trade organizations, technical capabilities, economic constraints, and legal expectations contributed to the shaping of waste management practices.

The goal of this work is to analyze the historical context within which chemical manufacturers made decisions about the methods that they chose for discarding unwanted by-products. This framework consisted of several key elements and numerous smaller contributing factors. Of primary importance was the composition and volume of waste products. The increasing volume of chemical wastes during the twentieth century created increasing pressure on waste generators to find inoffensive and secure means of disposal. Likewise, the development of ever more toxic and persistent byproducts called for a higher degree of control. Waste treatment technologies evolved in response to, although somewhat behind, the demands of both industry and society. Treatment options involved isolation, chemical alteration, destruction, and recovery and were selected on the basis of a multitude of variables: local environmental conditions, scientific understanding of both chemical and environmental processes, and managements' consideration of these factors. A cohesive analysis of these factors, and additional influences on management decisions such as economics, internal policy, and social responsibility, will dispel much of the confusion surrounding the fragmented presentation of past waste management capabilities and practices. It will lend insight into the modus operandi of chemical waste producers and provide a clearer understanding of the sequence of events and choices made that produced thousands of Superfund sites across the country.

The analysis will demonstrate that—within the contemporary framework of technical knowledge, technological capability, and legal liability—there were lapses in appropriate waste management choices. Conversely, there were numerous success stories as well—examples of manufacturers that selected adequate means to ensure long-term control over hazardous wastes.

The Historical Imperative

When Congress passed the Superfund legislation (Comprehensive Environmental Response, Compensation, and Liability Act) in 1980, it chose to include stringent liability provisions. Enforcement of this act holds any and all former owners or operators of severely contaminated sites both jointly and severally responsible for cleanup costs and damages. And there is no statute of limitations. In general, when the U.S. Environmental Protection Agency seeks to initiate cleanup or to recoup expenditures for mitigation of environmental damage, it identifies the major contributors to a site's contamination and forces them to bear the costs. This requires an unusual amount of historical research—to identify former owner/occupants, to document contemporary production of hazardous substances, and to determine their contribution to the site's contamination. In claims against former insurers, past waste management practices also have become critical issues. This has inspired an unprecedented interest in industrial history and placed historical inquiry as a key component in current environmental litigation.

There are two main thrusts to the research agenda into Superfund litigation. The first involves government agency efforts to identify "potentially responsible parties" or PRPs and to determine their role in contamination and waste disposal incidents. An initial list of PRPs inevitably instigates a second round of inquiries—to identify contributors omitted by the government inventories and to show that they played a substantial role. The parties often call upon eyewitnesses and retired practitioners who are generally familiar with former activities. They are requested to provide the second element: an assessment of past standards of waste management practices. Beyond a consulting opportunity for many retired hydrologists, sanitary engineers, and public health officials, it has produced a wealth of historical testimony and research materials that relate to former waste management practices.

These historical materials frequently have been confined to court cases about specific sites, and consequently there has been no overarching review of the testimony or technical literature of the day. The fragmented delivery of countless witnesses and the volumes of reports and articles collected create a unique opportunity to consider the broad landscape of toxic waste management from a historian's perspective. Individual witnesses, tied to a somewhat particular body of experience, do not always provide a professionally detached, comprehensive perspective. Furthermore, their testimony, offered in a highly adversarial situation with millions of dollars at stake and further limited by evidentiary rules and case strategies, does not offer a holistic and more objective view of the general nature of pre-1970 waste management. Nevertheless, the fundamental issues deliberated call for a reasonable historical account. We hope to create a balanced and more complete account by assembling the contemporary observations and merging them with recent expert testimony. More than evidence assembled to support the agenda for particular cases, this panoramic view will provide a context for historical investigations into other environmental, social, and political issues associated with hazardous waste management.

We also intend to contribute to the ongoing historical inquiry into environmental and engineering topics. The historian Joel Tarr has offered an interpretation of toxic waste management that suggests past practices were in accord with existing levels of knowledge and analytical capabilities. He argues that public health authorities, principally sanitary engineers, were concerned with biological wastes and the potentially harmful bacteria they nurtured, not with the toxic effects of industrial by-products. Samuel Hays contends that public concern with toxics was largely a post-1945 issue. Nonetheless, Christopher Sellers has pointed out that expertise in toxicology resided in the community of industrial hygienists, many of whom worked closely with or for industry before 1950. Indeed, manufacturers often turned to their own toxicological experts when formulating policy involving hazardous substances. Despite the public's belated concern with this subject, industry vigorously sought to maintain exclusive dominion over toxics and waste management expertise. We will show that qualified individuals in the appropriate positions had access to sufficient tools to recommend, and some did recommend, more complete and technologically available waste control measures than were commonly implemented.

Martin Melosi and Christine Rosen have reviewed developments in the emergence of legal liability for hazardous substances. Melosi concluded that the judicial and legislative tools drew a narrow definition of environmental liability before 1940. Nonetheless, he found that decisions and legislative actions of the early twentieth century provided a legal context for grappling with hazardous waste problems today. Rosen demonstrated that during the early twentieth century justices in several northeastern states attached greater value to the social benefits of abating pollution than to the economic costs faced by polluters. These observations illustrate that there was a legal means to contest pollution and impose costs on polluters. We will consider actions and developments both before and after 1940 in an attempt to establish amore complete historical context that includes the critical decades of the 1940s and 1950s.

A Road Map for Selecting Waste Disposal Methods

As long as there has been industry, there have been manufacturing wastes to get rid of Except for plating, smelting, and certain refinery wastes, however, most persistent and toxic industrial wastes were manageable, at least until the 1930s—largely because the volumes produced were relatively small. During the 1930s and 1940s, the organic chemicals industry flourished and created a new spectrum of wastes whose quantities, toxicity, and persistence took quantum leaps. These industries created wastes which half a century later continue to tax society's cleanup capabilities.

Research chemists formulated specific synthetic organic chemicals for the purpose of destroying certain undesirable organisms. By the 1940s, organic chemical pesticides and fungicides were replacing the more traditional lead and cadmium-based predecessors. Thionyl chloride-based chemical warfare agents replaced the more traditional mustard gas. Manufacturing these chemicals created toxic by-products, often in copious quantities, that were not useful for reclamation and thereby required disposal. Other organic chemical synthesis processes created toxic wastes even though the products were not particularly hazardous.

The degree to which toxic and persistent wastes impinge on current activities generally depends on how much environmental control was chosen at the time of disposal. To illustrate, a high-control example would be incineration coupled with scrubbers—a method which destroyed the wastes and limited dispersal of combustion products into the community. Another example is deposition of wastes in lined pits with groundwater monitoring systems following some waste neutralization or immobilization coupled with appropriate trusteeship arrangements.

Examples of low-level control are off-site waste deposition and release on land used for public purposes. In either case, transfer of control had both environmental and institutional aspects. By placing hazardous wastes on land not controlled by the generator, the disposal site owner implicitly became the custodian of a substance that could move through the environment and inadvertently impact the owner and/or neighbors. Although land disposal in some cases sufficed to maintain control of waste migration, the failure to preclude exposure of unsuspecting visitors to the wastes was a different but just as dangerous loss of control.

The methods for disposal of chemical wastes varied from incineration to burial in lined and monitored landfills, open dumping, and deposition in waterways and quarries. Our study of waste management choices is based in part on historical cases and reveals a decision-making process that encompassed many considerations. Although responsibility for choosing a disposal method fell to a wide range of management and plant personnel, all too often, short-term considerations dictated the method selected.

Graphically, we can depict an arrangement of considerations which guided decision makers in selecting their methods of disposal (Fig. 1.1). The center rotatable circle depicts the position of the decision maker(s). A decision about the appropriate disposal method would be affected by many factors that would amplify or attenuate the degree of control chosen. This decision inevitably determined how well the public was protected from exposure to toxic materials through subsequent years. Viewed another way, these factors can be seen to have steered the choice of disposal method to the high end or the low end of the continuum.

The decision maker's thinking can be pushed one way or the other by various factors and can be sensitized by still others. Knowledge of a waste's endangerment potential is the foremost consideration in choosing an appropriate waste disposal method. If the decision makers believed the waste innocuous, they would give little thought to protecting the public from exposure to it. The waste managers had to consider a number of waste characteristics:

  • toxicity, reactivity, or explosivity
  • degradability
  • quantity
  • mobility

If land or watercourse disposal were options, the disposers considered the following:

  • geological integrity
  • local groundwater hydrology
  • proximity of downstream/down-gradient biological receptors
  • assimilation capability of local water courses

The decision makers also had to reflect on other waste-specific considerations, such as

  • proximity to human populations
  • destructive capabilities of treatment technology
  • containment integrity
  • by-product recovery potential

As one example, if the industrial waste needing disposal is very toxic and refractory (i.e. nondegradable), the disposal choice should feature a higher level of environmental control. Similarly, a higher level of control is warranted for land disposal options if the proposed dump site is close to residences or if the groundwater flows toward water supply sources. Finally, if a waste can be effectively burned, incineration options are good choices for toxic materials. Similarly, if the waste is easily recoverable, this option should rise to the top of the pile.

The degree to which these considerations were important to decision makers' choices depended inextricably on the level of knowledge that they had about any of these matters. If they were unaware of a waste's endangerment potential or understood the waste to be fairly innocuous or readily immobilized in the ground, they would feel less pressure to choose a highcontrol disposal method. If they knew nothing about the characteristics of the chosen disposal site, they were likely to assume the site was safe and require a relatively low level of environmental control. Knowledge of chemistry, geological sciences, and local land use played important roles in decision making as well.

On the left side of the diagram (Fig. 1.1) it can be seen that exogenous factors such as public liability and ethical considerations played roles in defining the social expectations for decision makers. In other words, when faced with choices about how to manage wastes, the decision makers considered or were guided by the public and corporate mores of the time, by statutory or common-law requirements, and by their own private value systems. These sensitizers helped define the "should do's" in their value systems.

The "should do's" were modified or dictated by other pressures, however. Other elements such as wartime imperatives, competition or economic cycles, level of enforcement, and availability of funds to capitalize more expensive, safer methods all played a role. These sensitizers amplified or attenuated any pressure the decision makers felt to choose better disposal methods owing to considerations described on the right-hand side of the diagram. In other words, if a particular waste was thought to be very toxic or hazardous, attentive decision makers would generally first consider high-control options. Their final choices, however, would probably reflect practical realities communicated to them about the cost or difficulty of the option, the likelihood of being caught for a violation of laws or ethical expectations, or by the countervailing pressures of war.

The foundation of environmental control was and is today the engineering options available to the decision makers. Some offered high degrees of physical control (i.e., waste destruction, recovery, or physical/chemical isolation in high-integrity encapsulation), while others offered low levels of control, such as open dumping. There were and are today many methods for increasing control or maintaining isolation, however. By maintaining ownership, posting warning signs, and erecting fences, waste managers can reduce inadvertent exposures to unsuspecting visitors. By installing covers and drainage systems, hazardous leachates and runoff can be collected and treated. By purchase of buffer lands around a dumping area, the risk of public exposure can be limited. In short, decision makers could in the past and can today engineer a blend of disposal technologies, institutional arrangements, and site enhancements to reduce long-term public exposure and thereby achieve a chosen level of waste control. All of these control/enhancement mechanisms reflect a degree of trusteeship.

We have added a second conceptual diagram to describe a corollary thought process for decision makers. For situations in which long-term care is appropriate, society has devised a number of trusteeship arrangements to provide appropriate levels of control. Figure 1.2, which depicts the decision maker's thought process, features a nomograph with two parallel bars illustrating the level of isolation needed against the level of trusteeship required. For wastes and/or dump sites needing a high level of long-term isolation, a decision maker could establish a rigorous and well-funded trusteeship arrangement. For a less hazardous site, a less rigorous arrangement would be satisfactory. The line connecting the two parallel bars pivots about a center point and reflects how these considerations change the level of trusteeship among the range of possibilities.

If waste disposal methods that guaranteed high control had been inexpensive and widely available, most attentive decision makers would have chosen them (as they would do today as well) without agonizing over the many decision criteria depicted in Figure 1.1. Although technologically available and understood, incineration and lined landfills (which increase control of wastes) were considered more expensive, at least as an initial cost, and were not widely used during the 1940s and 1950s for waste management. Consequently, low control often characterized land disposal practices of the period. One result was the Love Canal-type problems of the 1970s.

Some decision makers were unaware of the toxic and persistent nature of the wastes that they were expected to dispose of. The yard foreman who sometimes chose the dump sites was probably not a toxicologist. The third-party landowner who offered to take waste often knew very little about the site or the wastes. Without that knowledge, there would be little motivation to choose high-level control. Others may have been morally blank or simply unaware of public protection expectations. Nonetheless, industry guidelines called for educating personnel at all levels and retaining control over hazardous substances. Still, even better-informed decision makers may have been too easily swayed by higher costs, wartime imperatives, economic cycles, or minimal enforcement. Whatever the reason, many hazardous waste sites dot the U.S. landscape and have caused substantial degradation of natural resources and exposure to the public.

The upcoming chapters will examine the various components of the waste disposal choice process in turn. We will first focus on endangerment potential, tracing the recognition of chemical hazards among specialists and public officials. Next, we will look at the methods used to accommodate hazards or reduce the endangerment potential. Taking steps to develop and implement treatment technologies and to distinguish between garbage and sewage and other harmful wastes was an obvious expression of the recognition of endangerment. A following section explores the legal context and enforcement pressures that impinged upon waste disposers. Level of knowledge about endangerment potential and disposal options within industry and among corporate managers serves as the core of the next chapter. A section on sensitizers considers such ever changing forces as economic cycles, wartime exigencies, and corporate ethics. Finally, we review outcomes of the process (e.g., actual waste sites) or the actual waste management procedures that were put into place.


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