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Gary M. Galles - Contributor

Mr. Galles is a professor of econmics at Pepperdine University. [go to Galles index]

Relearning Lessons from Love Canal
Superfund and the Law of Unintended Consequences...
[Gary M. Galles] 4/21/04

The EPA is proposing to take Love Canal off its Superfund cleanup list. That decision has led some to blow Superfund's horn and take one more shot at "evil" business polluters.

The Los Angeles Times editorialized that Love Canal was "a successful cleanup, rightly paid for by polluter Hooker Chemical Co (now Occidental Chemical Corp.) and a feather in EPA's cap."

Unfortunately, such a response has its history very wrong. Love Canal is one of the worst blots on the EPA's spotty record. It is true that the Hooker Chemical Company was required to pay millions for cleanup. But it was not at fault. The Niagara Falls Board of Education was primarily responsible.

Hooker's practices at Love Canal were a model of good corporate citizenship. The site was carefully chosen to minimize pollution damage. It would have easily met industrial dumping standards in existence 37 years later. It deeded Love Canal to the Board in 1953 only after the Board threatened to use eminent domain to seize it for a school. That deed clearly spelled out the dangers of the property, and any further sales were to convey the same warnings. Hooker took the Board to the site and showed them that wastes were four feet below the clay surface. Its attorneys opposed Board consideration of selling portions to developers and warned about inappropriate uses. It was, in fact, exemplary in trying to prevent harm to the community.

However, after acquiring the property, the Board approved using fill from Love Canal at several other sites, including another school site, rupturing the dump's cap and discovering the chemical wastes at least once in 1954. Then in late 1957, the city of Niagara Falls installed a sewer and manhole that punctured both of the walls and the cap of the dump. Another sewer punctured one dump wall in 1960. It was also punctured by a school drain. Then record rains in 1976 pushed large amounts of chemicals out, leading to the first reports of chemical disaster.

It is hardly a feather in the EPA's cap that the Hooker Chemical Company has been excoriated for years and forced to pay over $100 million to clean up a problem for which it wasn't responsible, while those in government who were responsible are never criticized. But that is far from the only problem with Superfund. In 1993, President Clinton said, "Superfund has been a disaster."

The results of Superfund have run exactly contrary to the law's intention. It has been excruciatingly slow, rather than quick (less than 10% of Superfund sites have been cleaned up). Its costs have been exorbitant rather than economical (e.g., the EPA itself estimated its overhead costs at $450 for every hour of work cleaning up a site and a recent study found that Superfund costs over $11 billion per life saved). Much of it has been paid for by current producers, rather than those firms responsible for the harm (chemical, petroleum and some other large firms must pay into Superfund regardless of whether they have contaminated any sites). And it doesn't even require breaking the law for the EPA to impose astronomical cleanup costs on a firm; it simply must designate such a firm as a "potentially responsible party," sometimes with the flimsiest evidence.

The history of Love Canal that "everyone knows" is wrong. And Superfund -- its legacy -- has been an incredibly costly, inconsistent and ineffective program that abusively and arbitrarily violates principles of fairness and the rule of law. Its primary beneficiaries have been lawyers, rather than the citizens who have been harmed.

It is good that Love Canal has been cleaned up. But it would be even better if we did the same with Superfund CRO

copyright 2004 Gary M. Galles




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