Aerial Survey for Radioactivity in Two Western New York Counties Could Lead to Problems for Property Owners

On September 29, 2023, the New York State Department of Environmental Conservation (“NYSDEC”) announced plans for an aerial survey that will be conducted in October in Erie County and Niagara County to identify radioactivity emanating from properties in those counties. The NYSDEC is collaborating with the United States Environmental Protection Agency (“USEPA”) on the survey.

This survey will be similar to prior aerial surveys for radioactivity that were conducted in the Niagara region in the 1970s and 1980s by various government agencies. Those surveys identified dozens of properties with radioactivity. Some were cleaned up, but most were not. The sites that have not been cleaned up continue to emit dangerous radiation to this day, causing an increased risk of cancer for people exposed to the radiation, and other problems for the owners of the properties.

The source of the radioactivity at most of the impacted sites is a radioactive byproduct from certain types of industrial production that is known as “slag.” The radioactive slag was purposefully used by contractors (and presumably without knowledge of its radioactivity by the property owners at the time) as a substitute for gravel in construction applications, starting in the early to mid-1900s and continuing until around 1970. Common uses of slag were in driveways, parking lots, roadways, building foundations, and any other applications where gravel would normally be used.

While the prior aerial surveys identified dozens of properties with radioactivity, there are likely hundreds and perhaps thousands more impacted properties in the region that have not yet been identified. Because of technological advances since the time of the original surveys, the new survey by the NYSDEC and USEPA is expected to substantially expand the list of commercial and residential properties with sufficiently high radioactivity levels to warrant further investigation and remediation.

Recently, the USEPA has cleaned up several sites, and the work has been very costly because no landfills in New York State are licensed to accept wastes with radioactivity even slightly above background levels. Thus, the wastes must be disposed of out of state. The cleanup of typical commercial or retail parking lots can cost millions of dollars and cleanup of relatively small residential driveways can cost hundreds of thousands of dollars.

After evaluating the aerial survey results in the coming months, the NYSDEC and USEPA will likely conduct follow-up “drive-by” surveys from public roads and then site-specific sampling at impacted properties. We expect the follow-up surveys and sampling to begin in 2024. Owners of properties that are found to have radioactive contamination will be faced with serious problems, including difficulty selling, improving, redeveloping, and financing their properties, “stigma” concerns and fears about radioactivity at their properties, not to mention possible cleanup liability.

Harter Secrest & Emery has been actively engaged with this issue for years and we have significant experience, including leading first-of-its-kind litigation that seeks to hold the generators of the radioactive waste found at numerous residential and commercial properties responsible. Our unmatched, cutting-edge expertise with respect to the complex legal, historical, and technical aspects of this issue means that we are ready to help when you need us.

Please contact Tom Tuori if you would like to learn more about this development or are contacted by the NYSDEC or USEPA in the coming months.

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