Sowell makes many of the same arguments (see REASON interview, Dec.). Author Dr. Nathan Wrights, Jr., may well sum up this point of view when he argues that "black people cannot be subsidized into self-sufficiency."

Competition Not Illegal

In a major antitrust ruling, the Federal Trade Commission has decided that competitive practices leading to a large share of the market for a product does not violate the antitrust laws. The FTC made this ruling in finding that the DuPont Company had done nothing wrong in fighting hard to become the leading firm producing titanium dioxide. "The essence of the competitive process is to induce firms to become more efficient and to pass the benefits of the efficiency along to consumers," says the ruling. "That process would be ill-serviced by using antitrust to block hard, aggressive competition that is solidly based on efficiency and growth opportunities, even if monopoly is a possible result."

What's so strange about that? Only that it represents a stunning reversal of government policy. Ever since 1944 when Judge Learned Hand wrote the Supreme Court majority opinion in the Alcoa case, market domination per se has been taken as a measure of monopoly power and therefore considered illegitimate-even if obtained, as in Alcoa's case, purely by continuing technological innovation. The DuPont decision seems to be "an almost outright rejection of the Alcoa case," concedes Donald Baker, former head of the Antitrust Division of the Justice Department. All of which should be good news to America's leadin technology firms-and their customers.

Milestones

• Judge Backs Disneyland. Judge John K. Trotter, Orange County Superior Court judge, upheld Disneyland's right to prohibit couples of the same sex from dancing together on the park's dance floor. Two gay men had been stopped from joining the dancing couples and subsequently sued Disneyland, charging, that their civil rights had been violated. Trotter ruled that the private park could set and enforce its own regulations, set up to protect the interests of other patrons. The Trotter decision will be appealed. • Vatican to Resurrect Galileo. In 1633, Galileo Galilei was forced by the Dominican-led Inquisition to recant under threat of death-his mathematical proof of Copernicus's thesis that the carth revolves around the sun, instead of vice versa. Since the early 1960s, Rev. Dominique Dubarle, a Dominican, has been attempting to get the Galileo trial reopened, and Pope John Paul II has finally agreed to do so. It is expected that the Catholic Church will officially concede that the earth does, indeed, revolve around the sun.

• British Cable TV. The British government has given tentative permission for 12 cable-TV stations to operate for a period of two years in Britain-on certain condi tions, naturally: that advertising is not allowed, that program schedules be submitted to the Home Office in advance, that strict limits be placed on the movies that can be shown, that exclusive rights to major events be barred, and that audience research and viewer complaints be forwarded to the Home Office. Censorship was never so delicately put.

• 3-D on Cable-TV. SelecTV, a subscription television service in California with about 75,000 subscribers, is currently showing one 3-D movie a month to test subscriber response. Glasses are distributed through Sears, Roebuck & Co. with coupons that subscribers receive with their billing each month. SelecTV is not worried about commercial television competition, because federal regulations require networks to broadcast a clear pic ture, and the 3-D process involves sending out a split picture that becomes focused only when wearing the special glasses.

ment is seriously looking into the

laser battle stations, as well as laser, particle-beam, and plasma weapons. Two firms, TRW and Hughes Aircraft, have submitted proposals saying a fully operational laser battle station could be developed and deployed by the end of the decade. The Advanced Research Projects Agency is responsible for making any recommendations to the Senate Armed Services Committee for funding to develop such systems.

• NRC on TMI. A Nuclear Regulatory Commission study of reported animal deformities, stillbirths, and "glowing" fish around Three Mile Island concluded that nuclear radiation did not cause the problems. Nutritional deficiencies and infectious diseases were the culprits of such problenis, the NRC said.

• Afghanistan Unity. Former government minister Shamsuddin Majrooh, a respected 71-year-old elder, is leading an attempt to unite Afghanistan's 28 provinces and different tribes into a unified front to battle the Soviet invasion. Majrooh is trying to convene a loya jirga, a national council of representatives from all Afghan tribes, that would elect a president and a military commander and possibly form the basis of a new government. • French Minimum Wage Problems. French economist Andre Fourcans recently wrote in the Wall Street Journal that his econometric analysis for the period 1969-77 clearly shows that "everything clse being equal, the minimum wage increase appears to explain from 60% to 85% of the jump we [France] experienced in the unemployment rates for young males and females between 1973 and 1977." The minimum wage floor was raised by 285 percent during those years, while the consumer price index increased by 141 percent.

• Car Quotas and Competition. A recent Washington Post editorial dittoed the US International Trade Commission's recommendation not to protect the American auto industry from car imports. The Post blamed the US car companies' economic woes on their failure to produce smaller cars as quickly as foreign markets did, and opined that "Economic growth in a competitive, open market offers the American automobile makers far more than any import quotas can."

• Banking Protectionism. A Senate Banking Committee staff report criticized the Office of the Comptroller of the Currency for being "more interested in protecting existing banks during [the 1970s} than in promoting competition and meeting the banking needs of the public." Sen. William Proxmire said he plans to hold hearings this year on legislation to alter federal bank-chartering statutes. The report was based on a review of nearly 1,000 chartering decisions between 1970 and 1977.

• Intermodal Ownership Okayed. Sen. George McGovern (D-S.D.), of all people, added a provision to the recently passed rail deregulation bill allowing railroads to acquire trucking subsidiaries to haul freight betwen main rail lines. A small catch though: affected shippers must approve.

-Robert Poole, Jr., and
Christine Dorffi

FEBRUARY 1981/REASON 15

Love Canal, then you've been snookered. In fact, as I'm going to show, hardly ever has there been a more blatant example of Big Brother successfully hiding the skeletons in his closet or of a gullible investigative reporter and compliant major media going along with the cover-up so that a bunch of bureaucrats can pass the buck to some bewildered private interest. The irony is that the target of this particular smear, Hooker Chemicals, may very well have botched others of its many chemical dumps, but not Love Canal, the very site that has brought the company so much adverse publicity and a flood of government and private lawsuits.

I first suspected that something might be wrong with the press reports about Love Canal-I had not yet read Michael Brown's book-when I noticed that only passing mention was being made of the fact that the Niagara Falls Board of Education has owned the site since 1953. Twentyplus years after Hooker deeded the property to the Board, the Canal is seeping huge quantities of poisonous chemicals. These toxic substances have been down there a long time, I thought. Why are they percolating up only after such a long sleep? Could something have disturbed the chemicals buried there? Or was the oozing inevitable? Had Hooker unloaded the property on the School Board back in the '50s, hoping to avert the very claims for damages now being pressed against it?

My curiosity sparked, I obtained a copy of the Love Cana! deed. It opens: "This Indenture [is] made the 28th day of April, Nineteen Hundred and Fifty Three, between Hooker Electrochemical Company...and the Board of Education of the School District of the City of Niagara Falls, New York," which would, "in consideration of One Dollar" paid to Hooker, receive title to the described property. The kicker is the deed's closing paragraph:

So Hooker had shifted to the Board "all risk and liability incident to the use" of the property. In addition, the deed specified that the future owner(s) of the property could not make any claims against Hooker for injury or death or property daniage arising even from "the presence of said industrial wastes." It's not surprising that Hooker would have wanted this shift of liability incor porated into the deed. After all, it had made clear that these "waste

Prior to the delivery of this instrument of conveyance, the grantee hercin 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 mani facturing 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 thercof. It is therefore understood and agreed that, as a part of the considera- liability for use, only makes explicit tion for this conveyance and as a con- what normally accompanies any dition thereof, no claim, suit, action or property exchange, and since the secdemand of any nature whatsoever shall ond would protect Hooker only from ever be made by the grantee, its sur claims made by the Board and subsecessors or assigns, against the grantor, quent owners, and not from claims by its successors or assigns, for injury to a third parties, it would seem that these person or persons, including death provisions are more in the nature of a resulting therefrom, or loss of or warning. By incorporating them into damage to property caused by, in con- the deed, Hooker had provided clear nection with or by reason of the presence of said industrial wastes. It is notice, recorded for all time, that its further agreed as a condition hereof use of this property had been such that each subsequent conveyance of that any future owner would have to the aforesaid lands shall be made sub- take care to use it in a safe manner so ject to the foregoing provisions and as to avoid causing harm. conditions.

products resulting from the manufac turing of chemicals" could cause not only property damage but "injury" and "death." That's pretty dangerous stuff.

Looked at one way, these provisions would seem to indicate that Hooker had been quite anxious to unburden itself of responsibility for this the first condition, assumption of property. On the other hand, since

Certainly the last sentence in the indenture must be interpreted in this way. Not only the School Board but "its successors and assigns"-any future holder of the property obtaining rights to the Canal after or from the Board--had already been drawn into the shift of liability. So why add the closing sentence, about "each subsequent conveyance of the property"? The concern seems to have been with preventing catastrophe to innocent third parties by making sure that, down through all future generations, whoever obtained this property would be warned that it contains dangerous chemicals and reminded of the corresponding obligation to use it in a manner reflecting this hazard. So the inclusion of that last sentence in the deed doesn't fit in very well with the ruthless and negligent attitude I'd been led by most press accounts to

18 REASON/FEBRUARY 1981

believe that Hooker has been displaying in the Love Canal matter.

Ruthless and negligent? As I was subsequently to learn, Hooker had evidently been so concerned that the Board know what it was getting in taking over the Canal that the company had not left to chance whether School Board officials would physically inspect the property prior to acquiring it. Instead, Hooker had escorted them to the Canal site and in their presence made eight test borings-into the protective clay cover that the company had laid over the Canal, and into the surrounding area. At two spots, directly over Hooker's wastes, chemicals were encountered four feet below the surface. At the other spots, to the sides of the Canal proper, no chemicals showed up.

So whether or not the School Board was of a mind to inspect the Canal, Hooker had gone out of its way to make sure that they did inspect it and that they did see that chemicals lay buried in that Canal. Yet the subsequent behavior of the School Board would lead the casual observer to conclude that its members never knew the facts about the property they were acquiring.

I decided to try to talk with some of the people who sat on the Board during the key years of 1952 through

1957 and so had first-hand knowledge

of the events. In the latter year, the

Board was debating whether to sell

portions of the Love Canal to real estate develope. Hooker officials

came to the Board meetings to urge

that these sales not be consummated.

For this and other reasons, 1957

served as a turning point in the

history of the Love Canal-the beginning of its precipitous slide into

becoming a hell-pit.

I introduced myself to the first former member of the School Board I'd managed to track down and get on the phone, Peter Longhine, by saying that I was a reporter who wished to speak with someone with first-hand knowledge of the Board's transactions with Hooker. That's all-I made no mention of courts, legal liability for Love Canal, or anything even remotely threatening. But Longhine would say only:

I don't want to get involved in giving any court testimony. It's better to let sleeping dogs lie. But I can tell you one

thing-the Board of Ed didn't do anything wrong. Anyway, we don't have any legal responsibility for it. This seemed to me an odd reaction, considering that I had just introduced myself and had not suggested even remotely that the Board of Education was in any way culpable, much less legally liable.

I got another former School Board member on the phone, Dr. Robert Brezing. This time, I wasn't even able to finish my introduction. He abruptly hung up the phone, and I found myself trying to protest to a dial tone. Now I knew that something was fishy. I packed my bags, camera, and cassette recorder and left for Niagara Falls.

T

he first thing that struck this newcomer about the town of Niagara Falls was how very normal the place is. Because of its famous namesake falls, I had expected the town itself to have a character different from your typical American small city, but that's just what the place turned out to be. The people, I found, are pleas antly friendly and open, and if there

"It's better to let

sleeping dogs lie,” a former Board member told me.

"But I can tell you one thing—the Board of Ed didn't

do anything wrong.

chief thoroughfares. In any event, whether it's seen as a town or merely as a suburb without a city, Niagara Falls struck me as a singularly odd kind of place to serve as a bellwether for the souring of America's dream of an insect-free plasticized world"better living through chemistry," to quote the commercial from DuPont, There's an irony to this place: on the one side of town is the eternal majesty of nature grandly displayed in the water tumbling over the Niagara escarpment; across the city stands a stark symbol of the incompetence and perhaps greed of man--the acrid fumes and boarded up houses along the periphery of the now-infamous chemical ditch.

But as it turns out, that festering blister of the industrial age known as Love Canal isn't quite as incongruous a fixture in Niagara Falls as it might seem at first blush. You don't have to be around this place long but you'll hear about how the local economy was built even more upon the chemical industry then upon tourism. Back in the 1950s, the locals will tell you, the putrid air from the industrial stacks made the eyes and lungs continually smart. The smog was so bad that the city was recognizable from an approaching plane by the dark grayish-brown cloud of pollution that blanketed the earth below.

Of course, this was in an era when conservation meant leaving the wild bears alone, nutrition meant "fruit, cercal, milk, bread, and butter," and pollution was a term that only communists, oddballs, or crazy people ever used. Niagara Falls considered itself fortunate back then to be one of the capitals of the world's chemical industry. The townspeople felt proud to be in the vanguard of the coming technological society. When the Atomic Energy Commission handed out awards to Niagara Falls chemical plants for work on radioactive substances, it made page-one headlines in the local newspapers. Chemical row along Buffalo Avenue, which skirts the southernmost edge of town bordering the Niagara River, was not only the Falls area's chief source of employment but also a source of considerable civic pride.

Now, however, the long-anticipated chemical future has at last come to the world, and a lot of people

FEBRUARY 1981/REASON 19

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81 - 47

in Niagara Falls are finding that they don't like it. The theory used to be that industrial wastes need only be shoved under the rug and they would be gone. Out of sight was out of mind. But as events at Love Canal and elsewhere were ultimately to make clear, today's far-away rural chemical dump is tomorrow's suburb, where you may someday live and where your children may end up going to school.

Of course, many people don't care about tomorrow and never did. According to the popular wisdom, this kind of dangerous shortsightedness is an attribute of private businesses more than of governmental bodies, and this perception has colored the way the Love Canal story has been reported. But my own investigation shows that this popular interpretation of the Love Canal tragedy is 180 degrees off.

B

ack at the turn of the century, an ambitious entrepreneur by the name of William Love envisioned building a huge hydroelectric project in the Niagara Falls area. Thomas Edison had just harnessed the force of electricity; but because the stateof-the-art allowed only for transmission by direct current, which was uneconomic over long distances, industries had to be located near the source of electrical generation. Love planned his hydroelectric canal project as a means of supplying this electrical power to nearby industry and even dreamed that his "Love's Canal" would become the basis for a booming model city. But the economic recession of 1894 and Nikola Tesla's pioneering system of alternating current, which facilitated transmission of electricity over long distances, combined to bankrupt Love's canal after only short segments of it had been dug. The 3,200-foot-long section that Hooker started filling with waste chemicals in 1942 has now come to be known internationally as the Love Canal.

Hooker says that it chose the site because the soil characteristic of the area-impermeable clay-and the sparse population surrounding the Canal at the time made the pit outstandingly suitable for disposing of dangerous chemical wastes. The cus

20 REASON/FEBRUARY 1981

tomary practices then were to pile up such wastes in unlined surface impoundments, insecure lagoons, or pits, usually on the premises of the chemical factory, or else to burn the wastes or dump them into rivers or lakes. Except for disposal into water supplies, these practices were all legal until 1980, when the Environmental Protection Agency began issuing regulations implementing the Resource Conservation and Recovery Act of 1976. The EPA estimates that 90 percent of chemical wastes are currently being disposed of in ways that do not meet its proposed standards (controlled incineration, treatment to render the waste nonhazardous, secure landfills, or recovery). An attorney I spoke with from the New York State Department of Environmental Conservation told me that "at least 50 percent of chemical waste dumping (in that state] is contracted out to organized crime." If true, however, such was not to be the case with Love Canal.

Hooker in 1941 began studies of the suitability of using the Canal as a chemical dump. The findings were affirmative, and by April of the next year the company completed the legal transactions to commence dumping what ultimately amounted to approximately 21,800 tons of the company's waste before the Canal property (which included a strip of land on either side of the Canal) was donated by Hooker to the Niagara Falls Board of Education in 1953, under pressure from the Board that if Hooker didn't willingly deed the land the property would be seized under eminent domain for the building of a school.

It's also worth noting here that other wastes besides these 21,800 tons from Hooker have apparently been dumped into the Canal. According to New York State officials, federal agencies, especially the Army, disposed of toxic chemical wastes there during and after World War II. The city of Niagara Falls also regularly unloaded its municipal refuse into this Hooker-owned pit.

There were two reasons why the School Board wanted to acquire Hooker's Love Canal property. One was that the postwar baby boom had produced a need for construction of more schools, and virtually every available open lot of suitable size was

being eyed voraciously by the Board of Ed's Buildings and Grounds Committee for possible construction of new schools. The other was that since the area was not built up (one of Hooker's reported criteria for the site's suitability), land prices around this dumpsite were low, and the Board was strapped for cash. On October 16, 1952, the very same day that Hooker sent a letter to the Board of Education agreeing to donate the Canal property for the token price of $1.00, the Board itself recorded, in its minutes for that evening's meeting, that "a communication was received from the Niagara Falls Teachers Association stating that teachers are becoming more and more uneasy because of their uncertain financial prospects."

Looking over the School Board minutes from the carly '50s, one notes two concerns that dominated and practically obliterated all others: construction of new buildings, and overcoming the monetary shortage. There is no indication that any longterm consequences were being thought of; the attitude seems to have been that the future could take care of itself. For example, the 99th Street School, which was built beside Love Canal, was being planned by the School Board simultaneously with the planning for another, the 66th Street School; and the Niagara Gazette reported on September 13, 1978, that high radiation had been found at that other location. It turns out that this school also may have been built upon a former dumpsite. The Board of Ed's deed to the site (donated by the federal government) refers to the presence of radioactive substances.

he negotiations that culminated in Hooker's transfer of the Love Canal property

to the Board of Education took place over a period of several years. The contemporary documentary record is very sparse, consisting of three perfunctory letters and the deed itself. Virtually all of the negotiations were verbal rather than written.

One thing, however, is clear: according to the School Board's own records, the Board was already well along in its planning of the 99th Street School more than two years