By Staff Reporter
NIAGARA FALLS, N.Y. — For weeks, Daniel and Jocelyn McKiernan and their three children have lived away from their house on 99th Street, about 100 yards north of the Love Canal containment area. They say chemical waste turned up in their backyard and is making their family sick. They want the state to move them.
State officials say the evidence does not support that, at least not yet. A formal legal deadline is now approaching that will force them to answer on the record.
On Oct. 2, the McKiernans and a coalition of former Love Canal residents and advocacy groups filed an administrative petition with the state Department of Environmental Conservation and the Department of Health. It asks the agencies to relocate the family immediately, to request federal Superfund money for the move, and to open a full investigation into whether the old landfill is leaking into the surrounding neighborhoods. The petition was filed under Section 204 of the State Administrative Procedure Act. According to the petition, that law generally requires agencies to respond within 30 days, or up to 60 days if their rules allow it. That puts the first possible deadline around the beginning of November.
What the family says
According to the petition, as summarized by WNYmedia, ash-like material, visible industrial waste and strong odors were found after a shallow dig for a backyard pool in July. Sampling by DEC and by an independent firm working with the family found heavy metals and a range of hazardous chemicals, and an oily material the petitioners describe as resembling non-aqueous phase liquid has seeped into basement drains and sumps.
The family has told Spectrum News 1 that they have had health problems, including five miscarriages, and that their oldest son, who has chronic health conditions, went nearly two months without in-home care because his providers considered the house unsafe. They have been staying in an Airbnb.
“This is a petition that charges the state agencies with failing to address toxic contamination during the Love Canal inhabitability process,” Chris Murawski, executive director of the Clean Air Coalition of Western New York, said at the Oct. 2 news conference, as reported by The Buffalo News.
What the state says
In statements over the following weekend, the two agencies said they had found no evidence that waste is escaping Love Canal’s containment system and no public health reason to relocate the family, the News reported.
“Samples taken to date from the 99th Street property do not appear to be connected to Love Canal wastes,” the DEC said in a statement to Spectrum News 1. “The state also remains ready and willing to continue further testing and remediation of the property once we are granted homeowner approval of the work to be performed.”
The Health Department told Spectrum that it needs the family’s medical records and access to their providers to evaluate their concerns, and that the family has declined. “To date, the Department has not found evidence of active exposure pathways that could be a risk to the health of the residents of the home and no public health reason to relocate these homeowners,” the department said.
Gov. Kathy Hochul’s office struck a more personal tone. “As a Western New York native who grew up near Love Canal, Governor Hochul understands the fear and concerns of the residents,” her office said, according to the News. “The state will continue to explore all options to ensure any needed remediation.”
The dispute over access
Much of the standoff comes down to access and sequence. The DEC says it cannot fully test without the homeowners’ approval. The family’s supporters say the family has agreed to testing, but only after being moved out, since the work would mean tearing up the yard and the house.
“What [the McKiernans] said is they have to be removed from the house before they can come in and tear up the yard and do testing throughout the entire house. That is a reasonable request,” Christen Civiletto, an environmental lawyer and adjunct professor at the University at Buffalo School of Law, told Spectrum. “That’s not a denial of access. Not only that, Dan McKiernan signed an access form that they seem to have forgotten about back in August.”
Mayor Robert Restaino has backed the family. “It just seems logical to me that you can’t go through what will be extensive testing in and out of the house without inconveniencing this family,” he told Spectrum. “So that needs to be a consideration as they move forward.”
State Sen. Rob Ortt, a Republican from North Tonawanda, said he had raised the case with Environmental Protection Agency Administrator Lee Zeldin. “We do feel and are hopeful that maybe the EPA, at some point… can help relocate this family,” Mr. Ortt said.
In August, DEC Commissioner Amanda Lefton told the Niagara Gazette that relocation decisions would be driven by data, not cost. “What we are really committed to doing is doing an investigation and sampling to understand what is there,” she said.
An old wound
Love Canal became a national symbol in the late 1970s, when chemical waste buried by Hooker Chemical forced hundreds of families from their homes and led Congress to create the federal Superfund program. In the late 1980s, the state declared parts of the emergency declaration area habitable, and houses were later resold. The EPA removed Love Canal from the Superfund National Priorities List in 2004, while the landfill itself remains capped and monitored.
The petition argues that the habitability decision was not based on sound science and that contamination was left in place on some properties. It is signed by the McKiernans and former residents spanning three generations, along with the Clean Air Coalition, the NAACP Niagara Falls Branch, Save Our Backyards WNY, the Sierra Club Niagara Group and others.
Several questions remain. Will the DEC and Health Department issue a formal declaratory ruling within the legal deadline? Will the state release the full lab results from its July sampling? Will the EPA, which still conducts periodic five-year reviews of the site, examine the landfill’s leachate collection system, as the petitioners request?
The petition is public, and so will be any declaratory ruling the agencies issue in response.
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