Apr 1
2025
Judge rules radioactive waste lawsuit “untimely”
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Metal plate bearing the name “Titanium Alloy Manufacturing Co.” Photo from court records.
A federal magistrate has recommended dismissal of a wrongful death claim filed last year by a Lewiston man who blamed his wife’s death on radioactive waste buried on the couple’s property.
U.S. Magistrate Judge Michael Roemer ruled Philip Palmeri filed his lawsuit long after the two-year statute of limitations had expired, as measured from the date in 2018 when his wife, Tracey Palmeri, was first diagnosed with breast cancer.
In a footnote to his ruling, Roemer acknowledged this was not “a fair result” for the plaintiff.
Palmeri only learned the name of the company investigators believed responsible for the waste five years after her initial diagnosis, Roemer wrote, “at which time the statute of limitations had run, Tracey had died, and plaintiff was left without any legal recourse.”
Palmeri’s lawyers objected to Roemer’s ruling, saying the magistrate judge “erred” in his assessment of the timeline.
Donate to support our nonprofit newsroomInvestigative Post reported Palmeri’s lawsuit last June.
The couple bought their house on Upper Mountain Road in 2011. Six years later they 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.”
In 2018, Tracey Palmeri was diagnosed with breast cancer.
In 2021, the U.S. Environmental Protection Agency evacuated the Palmeris from their home, after investigators found radiation levels 50 times higher than what the agency considers a safe background level.
The EPA then spent three years and $7 million to remove 4,800 tons of radioactive fill from the Palmeri property and an adjacent lot. Toward the end of the remediation, investigators found substantial evidence the waste had been dumped there by a now-defunct company called Titanium Alloys Manufacturing Co.
This evidence included metal plates bearing the company’s name covered by “black fine grain radioactive sand” and other industrial waste.
The EPA also matched the waste to products for which the company was the sole source in the 1950s, when the Palmeri house was built.
Tracey Palmeri died in April 2022. Palmeri’s lawyers say their client learned of the EPA’s findings about Titanium Alloys Manufacturing Co.’s relationship with the radioactive waste in October 2023.
Philip Palmeri last April sued the company’s corporate parent, NL Industries, Inc. — also 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.
Roemer, in a decision issued March 12, agreed with the defendant’s attorneys that the clock on the two-year statute of limitations started ticking when Tracey Palmeri was first diagnosed in 2018 — not when she died, and not when her husband learned who was responsible for the waste that might have caused her illness.
The magistrate judge acknowledged it was “unclear” how the Palmeri “could reasonably have identified a party to sue” within that two-year window, given that the EPA did not begin digging until September 2021 — three years after Tracey’s diagnosis and five years before the EPA matched the company to the waste.
Palmeri’s attorneys last Wednesday filed their objections to Roemer’s ruling, arguing the magistrate judge “erred in dismissing the suit as untimely” because “it was commenced within two years of Tracey’s death on April 25, 2022.”
“The action was commenced promptly after the cause of Tracey Palmeri’s lethal cancer was identified,” John Horn of the firm Harter Secret Emery told Investigative Post.
“That cause was [NL Industries’] radioactive waste, which USEPA concluded in the summer of 2023 had been present on the Palmeris’ property during the entire time they lived there from 2011 until 2021, when they were forced to evacuate their home.”
Roemer’s recommendation that the lawsuit be dismissed will be reviewed by U.S. District Court Justice John Sinatra, who is hearing the case.
