Harter Secrest & Emery (HSE) has been immersed in the Niagara region’s radioactive waste issue for nearly 15 years. Our significant experience includes leading first-of-its-kind litigation that seeks to hold the generators of the radioactive waste at numerous residential and commercial properties responsible. We have unmatched, cutting-edge expertise with respect to the complex legal, historical, and technical aspects of this issue, and our expertise will be critically important in any future legal actions related to this serious area-wide problem. We expect many legal claims to fail unless the generator of the radioactive waste at the impacted properties can be identified. For this reason, our unique understanding of the radioactive waste “fingerprinting” process will be indispensable. More on this below, after a summary of the current status of this issue.
The area-wide radioactive waste problem has received a lot of attention recently, as the community and individual property owners have become aware of some of the findings from the ongoing investigations by the New York State Department of Environmental Conservation (“DEC”) and United States Environmental Protection Agency (“EPA”). The DEC and EPA have identified more than 1,200 potentially impacted properties in Niagara County and on Grand Island. The agencies have not yet released any details regarding the universe of potentially impacted properties, but our understanding is that the focus to date has been on residential properties and certain public properties, such as parks. The DEC and EPA findings with respect to commercial, industrial, and institutional properties are unclear. Thus, the total number of potentially impacted properties could be significantly higher than 1,200.
Similarly, the agencies have not released any information regarding the levels of radioactivity identified at individual properties or the thresholds they are using to determine whether the radioactive waste should be cleaned up.
We expect that the public will eventually get access to the detailed findings from the various phases of the DEC’s and EPA’s evaluation, which started with aerial surveys in 2023 and 2024, then pivoted to roadside screening in 2025, and has recently included the initial round of on-site sampling. Click here to view previous HSE LEGALcurrents and media coverage with HSE commentary.
Owners of properties that are found to have radioactive waste contamination could face serious problems, including an increased risk of cancer for occupants of their properties, difficulty selling, improving, redeveloping, and financing their properties, “stigma” concerns and fears about radioactivity at their properties, and for non-residential owners, the possibility of cleanup liability.
In many situations, attorneys for the owners of impacted properties and other aggrieved parties who decide to pursue legal claims to address the radioactive waste problem will face a significant impediment: Who are they going to sue? This will be a common obstacle, because the potential defendants will typically only include the generators of the waste and other parties who may have been involved with the waste disposal decades ago, such as the owners of the properties at that time and the contractors who hauled waste to the sites.
Our extensive historical and legal research indicates that the generators are usually the only viable defendants. Our research also indicates that there were at least a half-dozen generators of various types of radioactive waste in the region at any given time from the early 1900s through around 1970.
Identifying the right defendant – i.e., the particular generator(s) of the waste at a particular plaintiff’s property – should be done at the outset of litigation. Furthermore, and due to the statute of limitation periods for certain types of claims, it also should be done soon after a potential plaintiff learns that there is radioactive waste contamination on their property.
Following years of painstaking effort and research into this issue, HSE has developed an efficient and effective “fingerprinting” process to identify the generators of the types of radioactive waste that have been found in the region.
We have a deep understanding of the complicated legal, historical, and technical aspects of waste fingerprinting and we apply that knowledge to the radioactive waste profile at individual properties. Our team is well versed in the applicable law and legal concepts, we have compiled critically important historical documentation regarding the generators’ industrial processes and the unique characteristics of their waste streams (using a variety of research approaches and difficult-to-obtain sources), and we have a sophisticated understanding of the technical aspects of the fingerprinting work done by the labs and experts working under our direction.
HSE’s unique combination of legal and technical expertise is unmatched by any other law firm or technical advisor.
Please contact Tom Tuori at HSE at ttuori@hselaw.com or 585-231-1449 if you would like to learn more.