Land owners sue over radioactive waste

Twenty property owners in Niagara Falls, Lewiston and Grand Island have filed a lawsuit charging that three companies acted with gross recklessness by directly or indirectly disposing of radioactive wastes that they knew posed a danger to human health and the environment.

The lawsuit was filed Monday in U.S. District Court for the Western District of New York on behalf of 28 plaintiffs who own or share homes, businesses and vacant land in the affected communities.

Investigative Post reported in July 2016 that government documents show the federal Department of Energy and state health and environmental officials have known for almost four decades that at least 60 properties throughout Niagara County and Grand Island are contaminated with radioactive material that resembles gravel. The radioactivity at these properties ranges from three to more than 70 times what people are naturally exposed to in the local environment.

The lawsuit states that Union Carbide, Occidental Chemical Corporation and Bayer Cropscience Inc, or their subsidaries had processed radioactive ore or radioactive materials in and around Niagara County at various times in the 1900s.

The lawsuit alleges that the industrial processes these companies used had left behind “large volumes of radioactive byproduct and waste, including slag, a fragmented rock or cinder like aggregate material that is a byproduct of the extraction of metals and other elements from ore.”

“Defendants knew or should have known that the radioactive solid wastes posed a danger to human health and the environment if improperly disposed of,” the lawsuit charges.

“But rather than bear the costs and inconvenience of proper handling of the waste, Defendants indiscriminately, and with gross recklessness and deliberate disregard for the interests of others in the community, directly and indirectly disposed of the radioactive solid wastes throughout Erie and Niagara counties.”

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Beyond any potential health impacts, the lawsuit alleges that the plaintiffs face decreased property values and the “impairment of the use and enjoyment” of their properties.

Occidental Chemical Corp., previously Hooker Chemical, is the successor to Oldbury Electro-Chemical Company that had operated a metallurgical plant on Buffalo Avenue in Niagara Falls.

Bayer Cropscience of North Carolina, is the successor to Stauffer Chemical Company in Lewiston. This chemical plant, which has since been demolished, was less than 2,000 feet from three of the plaintiffs’ properties.

Union Carbide is the successor to Electro Metallurgical Company that had operated a metallurgical plant on 47th Street and Royal Avenue in Niagara Falls. State and federal documents have named Union Carbide as the potential source of some of the radioactive waste.

Occidental declined to comment, while the other two companies did not respond to inquiries.

Investigative Post reported in February that two reports done by a private investigator almost four decades ago raised concerns that the contamination could be more widespread in yards, roads, parking lots and driveways throughout Niagara County. One of those reports said half the parking lots in Niagara Falls could have been paved with industrial waste from Union Carbide.

Union Carbide officials previously have denied any responsibility for the waste.

“They were required to dispose of it responsibly. They failed to do that,” said John Horn, one of the attorneys representing the property owners.

“It wound up on properties where the owners had nothing to do with it getting there, but now cannot do what they should be able to do with their properties.”

Indeed, at least two property owners told Investigative Post that they have not been able to sell their homes since learning last year that their properties are contaminated.

“There’s no way any one of us can sell our house,” said Harry Wade on Oct. 9. He is one of the plaintiffs who lives on Robert Street, across from the contaminated Holy Trinity Cemetery property in Lewiston.

The lawsuit alleges the radioactive wastes were disposed of on the properties now owned by the plaintiffs from 1940 through the 1970s by either the companies themselves, contractors or third parties.

The lawsuit charges that the presence of this material on the plaintiffs’ properties “may present an imminent and substantial endangerment to human health or the environment” and “impairs the use and enjoyment of, and significantly decreases the value of the impacted properties.”

Attorneys for the plaintiffs said state and federal agencies have “failed to address this problem, despite their own recommendations for further evaluation and despite the acknowledged risks posed by the radioactive solid wastes.”

The EPA did begin cleanup last spring at a parking lot shared by Rapids Bowling and Greater Niagara Building Center off Niagara Falls Boulevard in Niagara Falls, both of which are plaintiffs. Other properties the EPA said they had hoped to clean up are three acres next to Holy Trinity Cemetery, which is not a plaintiff in the lawsuit, and a driveway on Upper Mountain Road.

But the estimated $11 million in work ceased this summer.

The sudden work stoppage drew the ire of U.S. Senator Chuck Schumer, who on Oct. 9 called on the EPA to finish the job.

“This is EPA’s job, they shouldn’t be backing away from it, they shouldn’t leave homeowners like Mr. Wade in the lurch,” Schumer said.

Horn said the lawsuit is asking the court to force the three companies to remediate contaminated properties and provide medical monitoring for the plaintiffs.

“The overarching objective of the lawsuit is to have the radioactive material removed from the plaintiff properties by the folks responsible for putting it there,” he said.