In April 1945, more than 30 years before Love Canal became a synonym for toxic-chemical disaster, a manufacturing analyst at Hooker Chemical Co. wrote in an internal report that he worried about a "potential future hazard" and a "quagmire at Love Canal which will be a potential source of lawsuits." In a Buffalo courtroom this week, R.H. Van Horne's prophetic memorandum, along with other yellowing documents from the company's archives, will be at the center of a $250-million trial of Hooker Chemical that lawyers on both sides agree will measure the company's conduct for history.
Van Horne's warning is part of the critical evidence in a 10-year lawsuit by New York state that contends Hooker knew the risks when it dumped 21,800 tons of hazardous chemicals into the canal near the Niagara River.
The trial begins Wednesday, a decade after Presi
dent Jimmy Carter declared a state of emergency in the community where poisonous chemicals bubbled up into people's basements and where residents were stricken with fears of cancer, tumors, epilepsy and birth defects.
New York state's lawyers say the old documents _ many never public before, but now part of court record _ will help prove Hooker's executives were warned for years about things such as children swimming in chemical-thickened water on land that the company would one day donate for the construction of an elementary school.
"If we win this case," said state Attorney General Robert Abrams, "there will be a message and a signal sent around the world that you cannot do that without paying the price."
Lawyers for Occidental Chemical Corp., which bought Hooker in 1968, say the risks from the dump site have always been greatly exaggerated. They say Hooker never intended to hurt anyone and that the state, the local school board and the federal government share responsibility.
But the company's main defense is that it would be wrong to measure Hooker's actions based on what is now known about toxic chemicals. The lawyers say Hooker's disposal techniques were "state of the art" in the 1940s and '50s, the years when it dumped 82 different chemicals.
"You cannot be judging the conduct of people 40 years ago _ when half of them are gone and they can't explain anything _ by today's standards," said company attorney Thomas Truitt.
Judge John Curtin ruled in 1988 that Hooker is responsible for cleanup costs yet to be determined at Love Canal. The state argues those costs could be as much as $250-million.
The issue now before the judge is whether Hooker should be assessed punitive damages of another $250-million for what state lawyers say was a "conscious disregard" of risks.
Punitive damages are assessed under the law to punish wrongdoers who recklessly disregard serious risks that they knew or should have known about. So the trial will be similar to a detective story aimed at discovering how much Hooker's executives knew and how much they cared about the risks at Love Canal. The non-jury trial is expected to last six months.
Eugene Martin-Leff, the state's chief lawyer on the case, has told Judge Curtin he will show that Hooker's executives got many warnings about Love Canal and that the executives most often responded by increasing the company's insurance coverage.
One internal memorandum was from one of Hooker's in-house lawyers, Ansley Wilcox 2nd. It was dated August 1946.
Wilcox's memorandum was addressed to Hooker's president, E.R. Bartlett. "To my inexperienced eye," the lawyer wrote, "it seemed clear that the water (in the canal) was contaminated.
"I understand," Wilcox continued, "that children in the neighborhood use portions of the water for swimming . . .
"I feel very strongly that if this water is contaminated as a result of our dumping chemical residues, we are running a real hazard in not taking steps to prevent possible injuries to persons who may swim in the canal."