Jun 18
2024
Lawsuit: Radioactive waste killed Lewiston woman
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Six months after his wife died from breast cancer, an environmental remediation team digging underneath Philip Palmeri’s Lewiston home uncovered “black fine grain radioactive sand, refractory brick, ash slag, and what appears to be lime.”
That’s not all they found.
Over the course of a three-year, $7 million cleanup operation, the team removed 4,800 tons of waste from Palmeri’s and an adjacent property, some of it emitting radiation 50 times beyond what’s considered a safe or normal level.
The workers also found among the waste eight “index card sized metal plates.” Printed on the metal plates was the name of a Niagara Falls company: Titanium Alloys Manufacturing Co.
Now Palmeri is suing that company’s corporate parent — NL Industries, Inc., formerly known as National Lead — blaming the company’s “gross recklessness and deliberate disregard for the interests of others in the community” for his wife’s death.
Titanium Alloys Manufacturing and its parent company “participated in and sanctioned the indiscriminate dispersal and disposal of its radioactive waste throughout Niagara County,” including at the Palmeri’s house and an adjacent property on Upper Mountain Road, according to the lawsuit filed in state court in April.
“The radiation emitted from Defendant’s radioactive waste killed Decedent,” the lawsuit states, referring to Tracey Palmeri, a schoolteacher and Lewiston tavern operator who died in April 2022 at the age of 44.
Metal plate bearing the name “Titanium Alloy Manufacturing Co.” Photo from court records.
Last week NL Industries filed papers seeking to move the lawsuit into federal court. The company’s attorneys did not respond to a request for comment. Neither did Palmeri’s attorneys.
But the current lawsuit — in tandem with a related lawsuit filed almost seven years ago — tells a story that has generated “intermittent attention” but little action from state and federal authorities over the years, according to attorneys.
For decades, the lawsuits claim, radioactive solid wastes generated by a host of Niagara County companies were used “as fill material and/or as an aggregate substitute” in the construction of roads and buildings, including residential developments.
And those companies “knew or should have known” that those radioactive solid wastes “posed a danger to human health and the environment.”
The result, as Investigative Post has reported previously, is widespread radioactive contamination in Niagara County.
A decade of exposure
The Palmeris moved to 789 Upper Mountain Road in 2011. A quarter-mile northwest is the sixth-hole tee at the Niagara Falls Country Club. A quarter-mile southeast is the power plant reservoir. Just down the road is the Upper Mountain Volunteer Fire Company.
The house was built in 1957, eight years after NL Industries bought Titanium Alloys Manufacturing, two-and-a-half miles away on Hyde Park Boulevard.
The plant is bounded on the south by a junkyard and on the north by a notorious landfill where Hooker Chemical disposed of the same wastes it dumped in Love Canal. The facility is now operated by a different company called TAM Ceramics, which was raided by federal agents last year for reasons that remain undisclosed. It is not a party to this lawsuit.
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In the 1950s, Titanium Alloys Manufacturing was under contract with the federal Atomic Energy Commission to produce zirconium tetrachloride, used to coat fuel rods for nuclear reactors. The company had licenses from the AEC to recycle radioactive thorium and uranium in its electric furnaces, according to federal records.
The waste material from those processes is the likely source of the radioactive contamination found in and around the Palmeri house, according to the current lawsuit.
But it’s not the only source, according to the previous court action.
In October 2017, the Palmeris joined more than a dozen owners of properties in suing Union Carbide and related Niagara County companies that processed radioactive ores for the U.S. government and private commercial uses “as early as 1940 and continuing through the 1970s.”
Those property owners pointed to radiation surveys performed by state and federal agencies in the 1970s and 1980s “that identified more than 100 properties with elevated levels of radiation in Erie County and Niagara County.”
Among those properties were several on Upper Mountain Road, including the house the Palmeris eventually purchased.
A 1986 report by Oak Ridge National Laboratory, for example, showed gamma radiation readings at the Palmeri property five times higher than the level the government considered normal for Niagara County. The report attributed the radiation to “slag material with elevated levels of thorium.”
The Oak Ridge survey and others commissioned by the federal government yielded “[n]umerous government reports … and further recommendations for further evaluation and cleanup have been made,” the earlier lawsuit said.
“But despite the government’s involvement, not one site has been fully evaluated and fully remediated, and not one of the Defendants has been held accountable.”
The property owners asked a federal court to compel the companies that produced the radioactive waste to pay for its cleanup. They also sought financial compensation for the damage to their property values. None of the plaintiffs alleged they’d been made ill by the waste.
In December 2017, two months after that first lawsuit was filed, Tracey Palmeri was diagnosed with breast cancer.
Subsequently, the Palmeris hired an environmental consultant, who measured gamma radiation 30 times background levels in the crawl space underneath the home. The Palmeris shared the consultant’s findings with state health officials, who alerted the EPA.
“An unacceptable risk”
In 2020, the EPA took samples and readings inside the Palmeris’ house and around their yard, and determined there was “an unacceptable risk” created by gamma radiation, radon gas and “radioactive dust particles from the contaminated soil at the site,” according to the new lawsuit.
EPA investigators detected radon levels three times the EPA’s “action level,” which demands remediation. They found radiation levels 50 times higher than what the agency considers background levels — more than high enough to trigger a cleanup operation.
In September 2021, the agency removed the Palmeris from their house to initiate “removal activities.”
“[The Palmeris] did not ever move back in,” according to the lawsuit.
Palmeri’s attorneys cite EPA documents that indicate “approximately 4,800 tons of radioactive waste” was removed from the Palmeri property and a neighboring property and shipped to a hazardous waste landfill in Michigan. The work cost in excess of $7 million, according to those documents.
In August 2022, the EPA’s site coordinator wrote a memo describing the results of “hand excavation work” in the house’s crawl space, where workers had dug a hole two to three feet deep.
Excavation beneath 789 Upper Mountain Road in Lewiston. Photo from court records.
The memo was titled “Potential Responsible Party for the 789 Upper Mountain Road Site.” It included photos of the metal plates bearing the names “Titanium Alloy Manufacturing” and “TAMCO.”
Philip Palmeri sold the house last June. In September, the EPA concluded its cleanup work on the property.
Last December, an EPA official wrote a letter to the general counsel for NL Industries in Dallas, informing the company that the agency “has reason to believe the company generated radiological contamination and arranged for its disposal on the site.”
Material analysis is a big part of the EPA’s “reason to believe.” One manufactured material the agency’s crews dug up on the property — barium titanate powder — was produced exclusively by Titanium Alloys Manufacturing until the mid-1960s, according to the company’s promotional materials.
The metal sheets found among the waste material — identified as “product testing placards” — offered a solid clue, too.
An EPA representative did not respond to an inquiry before publication of this article. The 2017 lawsuit — in which Palmeri is one of many litigants — continues to wend its way through federal courts.
There are no hearings yet scheduled in federal court for Palmeri’s new lawsuit, which seeks compensation for Tracey Palmeri’s “wrongful death” as well as punitive damages. The case is assigned to U.S. District Court Judge John Sinatra.
