By Hannah Lindqvist
NIAGARA FALLS, N.Y. — New York’s environmental and health agencies have turned down a rare legal request to relocate a family living about 300 feet north of the Love Canal landfill and to reopen the investigation of the neighborhoods around it. The family whose backyard turned up industrial waste in July is still waiting for the next round of testing, and the petitioners had said a denial would send them to weigh other legal remedies.
In separate letters sent Wednesday, Nov. 4, the state Department of Environmental Conservation and the Department of Health declined to issue the formal rulings the petitioners sought, The Buffalo News reported. The administrative petition, filed Oct. 2, put both agencies on a legal clock that The Buffalo Chronicle wrote about in October.
What the petition asked for
The petition asked the state to move Daniel and Jocelyn McKiernan and their three young children out of their 99th Street home, and to investigate whether chemicals are migrating from Love Canal’s containment system into nearby neighborhoods, WIVB reported. The McKiernans found industrial waste while digging for a backyard pool in July. Initial state testing later found unsafe levels of lead, chromium and pesticides in the excavated soil, according to The Buffalo News.
The petitioners included current and former Love Canal-area residents spanning four generations, along with the Clean Air Coalition of Western New York, the NAACP Niagara Falls Branch, Save Our Backyards Western New York and the Sierra Club Niagara Group.
Petitions for declaratory rulings are rarely used. Under state law, the agencies had 30 days to grant the petition, deny it or decline to rule. Attorney Christen Civiletto, who has focused on environmental cases, explained the strategy when the petition was filed.
“It is not a legal action. We are not filing a lawsuit,” Civiletto said at the time. “What it is is a formal request through the administrative procedures of New York State that require agencies to respond. So, they can accept and take the action we’re asking, or they can decline, and then we’ll pursue and evaluate other legal remedies that we might take.”
What the state says
The Health Department’s position has not changed since the petition was filed. “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 there is no public health reason to relocate these homeowners,” department spokesperson Erin Clary said, according to The Buffalo News.
The DEC said it will keep reviewing new information to make sure cleanups remain effective and protective of public health. Both agencies said further testing of the McKiernans’ yard is waiting on the family’s approval of sampling plans submitted in late October.
In October, a DEC spokesman told WIVB that “samples taken to date from the 99th Street property do not appear to be connected to Love Canal wastes.” State officials have said there is no evidence the landfill is leaking.
Gov. Kathy Hochul’s office has framed the state’s work as fact-finding. “That’s why the Governor directed the state departments of Environmental Conservation and Health to collect data and perform sampling to understand the extent of contamination so that they can take appropriate action to remediate it effectively,” Ken Lovett, Hochul’s senior communications advisor on energy and the environment, told WIVB. “The state will continue to explore all options to ensure any needed remediation.”
‘Bureaucratic declination’
The groups behind the petition were not persuaded. Chris Murawski, executive director of the Clean Air Coalition, said in an emailed statement to The Buffalo News that the denial further erodes trust in the agencies.
“Writing off the requests of the administrative petition with a bureaucratic declination does nothing to restore trust and does not change the fact that the McKiernan family should be immediately relocated and the surrounding properties fully investigated,” Murawski said.
Anne Rabe of Don’t Waste NY went further. “DEC and DOH are perpetuating a major cover-up going back to the DOH’s deeply flawed Love Canal habitability decision on the Emergency Declaration Areas in the late 1980s, and subsequent resettlement without any cleanup of known toxic pollution,” Rabe said.
Niagara Falls Mayor Robert Restaino backed relocation when the petition was filed. “I think that testing and following the science is the most important approach to making sure that we get this right,” Restaino said then. He added that it “seems incongruent to think that while all this commotion is going on that the family would simply sit there.”
The decades-old decision at the center
The dispute reaches back nearly four decades. Between 1942 and 1953, Hooker Electrochemical Company, now Occidental Chemical Corporation, disposed of more than 21,000 tons of hazardous chemicals in the abandoned canal, according to the U.S. Environmental Protection Agency. The waste sits today inside a fenced 70-acre site under a 40-acre cover, with a system that collects and treats contaminated liquid.
After President Jimmy Carter’s emergency declarations in 1978 and 1980, about 950 of the more than 1,050 families in the surrounding area were evacuated, the EPA says. The roughly 350-acre Emergency Declaration Area was split into seven sections that were studied to decide whether people could live there again.
In 1988, then-state Health Commissioner David Axelrod declared homes in sections 4 through 7, north and east of the dumpsite, suitable for resettlement, The Buffalo News reported. Sections 1 through 3 were deemed unsafe without further cleanup. The habitability study behind that decision took 879 samples and focused on eight “indicator” chemicals, while an earlier 1982 federal study took about 6,000. The neighborhood is now known as Black Creek Village.
The EPA’s fifth five-year review of the site found that the cleanup actions there “continue to protect people’s health and the environment.” The next review is scheduled to begin in 2029.
What comes next
Not every neighbor shares the petitioners’ alarm. Most of a dozen residents interviewed by The Buffalo News reported no problems, though two said they had found carbon or graphite rods in dark fill while installing a driveway and a fence.
The Love Canal fight is also unfolding alongside a separate federal and state review of radiological contamination in Niagara County. The DEC, EPA and state Health Department held a drop-in session on those assessments in Niagara Falls on Tuesday, Nov. 10. Lexi Hawk, co-founder of Save Our Backyards, told Buffalo Toronto Public Media in late October that residents feel shut out. “They have really went pretty silent on us,” Hawk said.
For the McKiernans, the next step is the sampling plan. Until the family and the state agree on it, the question at the heart of the petition, whether the waste in their yard is tied to the landfill next door, remains unanswered.
The Buffalo Chronicle has asked the DEC, the Health Department, the EPA and the petitioners about the denial letters, the status of the McKiernan sampling plan and whether the petitioners plan to go to court, and will update this story with their responses.
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