Norfolk Southern Railway on Monday announced the introduction of new safety measures, more than a month after one of its trains derailed near East Palestine, Ohio and released toxic vinyl chloride. On this week’s Now & Then episode, “Trash and Pollution: Who Pays?” Heather Cox Richardson and Joanne Freeman explore how the East Palestine disaster echoes other debates over the regulation of American waste, from New York City’s Antebellum sanitation pigs, to the “Garbage Ladies” of Progressive Era Chicago, to the 1978 Love Canal disaster. Another Ohio clean-up, a 1980s effort at a toxic waste site, presaged the political and economic rancor of the current environmental scene.
In 1974, two businessmen, William Lee Kovacs and Bruce Whitten, started a waste recycling business called Chem-Dyne in Hamilton, Ohio, a city of 65,000 near Cincinnati. Chem-Dyne’s 10-acre site, about one mile from Hamilton’s center, quickly became a destination for waste belonging to almost 300 top American companies, from Shell Oil to General Electric. Kovacs and Whitten stored the chemicals they received – arsenic, cyanide, DDT and vinyl chloride among them. They soon amassed thousands of hazardous waste drums and 14 massive bulk storage tanks, carrying at least 150,000 gallons of toxic materials.
In 1976, a Shell oil tanker stored on the site burst into flames and burned for four days. Shell chemists arrived from Houston and were shocked to find that the incendiary fuel had mixed with other chemicals, including phosgene, an agent that the U.S. had used to manufacture chemical weapons.
Hamilton’s Assistant City Manager, Hal Shepherd, began poking around, often appearing at night to meet trucks as they entered the dump and screening their contents. Whitten and Kovacs went on the offensive, responding to the city’s attention by filing a $30 million harassment suit. Given the lack of state or federal laws giving Hamilton authorities jurisdiction over the site, the investigation was stymied.
Over the next two years, Whitten and Kovacs expanded their enterprise. In the Spring of 1978, they purchased an already-dangerous dumpsite in Seymour, Indiana, shuttling drums of dangerous chemicals back and forth from Hamilton.
Environmental problems mounted. By 1978, fish kills had been reported in the nearby Great Miami River, with evidence of contamination 37 miles downstream.
State environmental regulators filed a civil suit in response to the Great Miami River conditions, ordering Kovacs and Whitten to clean up their Chem-Dyne site within a year and to pay $75,000 to the Ohio Department of Natural Resources as compensation for the pollution.
Shortly after the agreement, in late Summer 1979, another fire broke out. This time, 100 drums burned and six Hamilton firefighters were hospitalized after inhaling the toxic fumes. Flames rose to 100 feet in the air, and some even reported noxious odors in the hospital ICU where the firefighters had been taken for refuge, half a mile from the Chem-Dyne site.
Further bad publicity followed, and Kovacs and Whitten did little to honor their clean-up agreement as their finances began to fall apart. In February 1980, a county judge placed Chem-Dyne in receivership and turned over control of the site to Hamilton accountant Jack Zettler.
Zettler set to work removing drums from the site. In November 1981, however, the state funds dried up and he reached out to the EPA.
A year earlier, President Carter had signed the Comprehensive Environmental Response, Compensation, and Liability Act, popularly known as the Superfund legislation. The EPA-managed program was designed to compel polluters to pay the bulk of costs for cleaning up toxic waste sites, ideally in the form of a negotiated settlement. The Chem-Dyne dump became a guinea pig for this new form of environmental stewardship.
EPA investigators arrived and began taking soil and water samples. They found 3,185 parts per billion of vinyl chloride. The EPA claimed that two parts per billion was dangerous.
The potential harm – cancer, leukemia, respiratory ailments – to Hamilton residents was staggering. Washington Post journalist Penny Chorlton wrote an article in November 1982 that brought to life the chemical horrors Hamilton faced: “Past the city ballfields, the swimming pool, and the low-income neighborhood of Northend, a pungent chemical smell leads the way to the abandoned Chem-Dyne toxic waste dump site.”
Chorlton quoted 65-year-old Hamilton resident Margaret Peters, who said, “The fumes were something terrible. You just couldn’t breathe, you’d have to go inside if the wind was blowing that way.”
And she interviewed University of Cincinnati Chemistry Professor Harry Marks. “The leakages were atrocious. I’ve been a chemist for 25 years and I’ve seen nothing like it,” Marks exclaimed.
Amid this climate, the EPA began working toward the first voluntary settlement of the Superfund age, working to secure $2.2 million in cleanup funds from both Kovacs and Whitten and the companies who had given them the chemicals and had, at least in some cases, disregarded evidence of the shoddy storage.
On August 26th, 1982, the EPA secured the cooperation of more than 100 corporations to contribute money and expertise to the cleanup. At the same time, the Department of Justice sued the 25 resistant firms, which included such industrial giants as Monsanto and Phillips Petroleum, in hopes of securing an additional $1 million to devote to the remediation effort. The EPA estimated that the responsible companies would ultimately pay 70% of the price tag.
Initially, EPA Administrator Anne Gorsuch Burford – Supreme Court Justice Neil Gorsuch’s mother – was enthusiastic about the level of corporate cooperation in the quest, calling the arrangement “dramatic evidence of a new trend.” She continued: “We believe this is being engendered by EPA’s approach of a willingness to negotiate, backed with a strong enforcement commitment to litigation where negotiation fails to reach voluntary resolution.”
Gorsuch’s optimism, however, would soon appear premature, as Washington was beginning to comment on an emergent EPA pattern of financial and rhetorical leniency toward polluters.
As 1982 dragged on and cleanups at Chem-Dyne, the Seymour dump, and other high-profile Superfund sites moved slowly, Congress began to zero in specifically on the outspoken pro-business, pro-GOP tendencies of Rita Lavelle, the head of the Agency’s hazardous waste program.
Several California legislators were convinced that LaVelle, a former defense contractor at rocket-engine firm Aerojet General and a close personal friend of Reagan aide Edwin M. Meese III, had slowballed the cleanup of the Southern California Stringfellow Acid Pits in order to sabotage Democratic Governor Jerry Brown, who in Fall 1982 was running an unsuccessful Senate campaign against Republican Pete Wilson.
Congress subpoenaed documents related to hazardous waste investigations to ensure that the EPA was not cutting sweetheart deals with corporations. Gorsuch refused to turn the documents – including some about Chem-Dyne – over to Congress, and was held in contempt.
Georgia Democratic Representative Elliott Levitas, however, was also interested in the status of the Seymour, Indiana site – the other dump owned by Whitten and Kovacs. Lavelle had negotiated a $7.7 million settlement with another coterie of companies to clean the site, a deal that Levitas believed was far too kind to business.
Increasingly under threat, Lavelle lashed out at EPA Counsel Robert Perry. Lavelle believed that Perry was pushing for overly-onerous settlements and that he had been unfair in criticizing her work with the Seymour site. Lavelle allegedly wrote a memo excoriating Perry as “alienating…the primary constituency of this administration, big business.” The memo quickly leaked to the New York Times. Amid a media frenzy, Gorsuch moved to fire Lavelle in early February.
Post-firing, Lavelle appeared before Levitas’ Subcommittee in late February, making further news by repeatedly contending that her phone was tapped and admitting that she had allowed executives from companies she was investigating to pay for fancy dinners.
The conflict-of-interest elements of Lavelle’s case soon led Michigan Representative John Dingell, the Chair of the House Energy and Commerce Investigative Subcommittee, to do his own digging into the EPA Counsel Perry. Dingell found evidence that Perry had helped to negotiate much of the Chem-Dyne settlement, including the payout from the research arm of Exxon. Perry was a former Exxon trial lawyer who had signed documents guaranteeing his recusal from Exxon-related cases.
Perry gave tense testimony before Dingell’s Subcommittee in early March 1983. “Maybe you should have recused yourself,” Subcommittee member and then-Tennessee Representative Al Gore challenged Perry.
“You’re absolutely right,” Perry conceded.
By the time that Perry resigned over the lapse in late March 1983, Gorsuch and a number of other EPA leaders had also quit.
As the EPA leadership collapsed – an event that lawmakers dubbed “Sewergate” – Hamilton residents and advocates were becoming impatient. Republican State Representative Stephen A. Fox vented to the New York Times’ Stephen Kinzer in March 1983: “It’s been just around the corner for years and years. There is no sense of urgency at all. I see the whole system in paralysis.”
Many Ohioians, citing the Chem-Dyne standoff, became leery of the entire concept of negotiated voluntary clean-ups, arguing that the toxic waste would be cleared more quickly using government money and post-facto suits seeking damages. Assistant Ohio State Attorney General Stephen J. Willey became a particularly outspoken EPA critic, castigating a clause in the Chem-Dyne settlement that partially shielded corporations from further indemnification. “I didn’t feel that it was appropriate to offer that kind of protection,” Willey told Newsday in a March 1983 article entitled “EPA’s Unsettling Settlement.”
By 1984, notwithstanding the controversy, the cleanup was at last making headway. The following year, with cleanup costs increasing, a plurality of the polluting companies agreed to contribute a further $19.1 million to complete the clean-up efforts. Ohio Governor Richard Celeste praised the beefed-up settlement, saying, “It marks a turning point for the victims” and calling the arrangement “the very best cleanup to be negotiated under the federal Superfund legislation.”
Yet even as the site moved toward non-toxicity, a legal imbroglio showed the depth of resistance toward environmental responsibility. Chem-Dyne’s Kovacs had declared personal bankruptcy back in 1980 and had fled Hamilton to become a New Jersey salesman. He argued – and a federal bankruptcy court agreed – that his insolvency freed him from his obligations to contribute to cleaning the Chem-Dyne site.
Ohio was joined by 31 other states and the Reagan administration in opposing Kovacs. In October 1984, however, the case reached the Supreme Court, which unanimously backed the lower courts’ contention that Kovac’s bankruptcy protected him from further direct financial liability in the case. The Court’s opinion did outline that Kovacs could still face criminal liability.
The decision in Ohio v. Kovacs was met with disdain by environmentalists and advocates of polluter accountability. “The overall impact of this ruling is to make it easier for people to evade their cleanup responsibility by going into bankruptcy,” University of Chicago Law School Professor Geoffrey P. Miller told the press.
The Chem-Dyne and Seymour cleanups were largely complete by 1989, but the tumultuous roll-out of the Superfund system in Ohio was a decided portent of the discord plaguing the East Palestine disaster.
Listen to the 1980s Hamilton, Ohio punk band Chem-Dyne, here playing a 1985 track called “Anti-Congressman.” And read Emmanuel Abiodun Ogundipe’s 2019 University of Miami Masters in Environmental Studies thesis about the reaction of Hamilton residents to the Chem-Dyne crisis.
And head to the Twitter account of Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.
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