Toxic Waste on Residential Property: A Defense Perspective on New York Claims and Niagara County's Radiological Legacy
Kenney Shelton Liptak Nowak LLP | Toxic Tort and Environmental Litigation
Contamination claims involving homes are quite different from industrial site cases. The plaintiffs are families rather than neighboring businesses, the alleged injuries often include children, and the contamination frequently stems from activity that ended decades before anyone now living on the property arrived.
Niagara County is a current example. For defendants, insurers, and the attorneys who represent them, the developments there illustrate how residential contamination claims tend to unfold in New York and where the strongest defenses usually lie.
The Situation in Niagara County
Two separate radiological issues are getting attention in the county this year.
The first is long-standing. The Niagara Falls Storage Site, a 191-acre federally owned property on Pletcher Road in Lewiston that was once part of the Lake Ontario Ordnance Works, has residues from uranium ore processing performed for the Manhattan Project. Most of that material sits in a 10-acre Interim Waste Containment Structure built in the 1980s. The site is managed by the U.S. Army Corps of Engineers under the Formerly Utilized Sites Remedial Action Program (FUSRAP).
The Corps signed a record of decision in 2019 selecting full excavation and off-site disposal of the containment structure's contents, and a 2022 decision selected complete removal for the rest of the site and its groundwater. As of September 2026, the Corps reports that the first phase of cleanup outside the containment structure is nearly finished, with additional work on one area expected under a new contract in 2027. Removal of the containment structure itself is projected for the 2030s.
The second issue is newer and closer to home for many residents. Following a 2024 aerial radiological survey of Erie and Niagara counties, the state Department of Environmental Conservation (DEC) and the EPA began investigating residential properties in the Town of Niagara. Public reporting in July 2026 indicated that elevated radiation had been identified at more than 120 properties, that a smaller number required detailed follow-up, and that the EPA offered temporary relocation to four families.
Officials have said they suspect industrial slag containing elevated levels of naturally occurring radioactive elements, used as fill decades ago, but the source has not been confirmed. The EPA previously cleaned up slag-contaminated properties elsewhere in the county, including commercial lots on Niagara Falls Boulevard and residential areas in Lewiston.
Residents have raised concerns about property access forms that included language waiving claims for reimbursement against the state and federal agencies, and there is pressure for a state Superfund designation. Private litigation should be expected. The legal questions those cases will raise are familiar to anyone who defends against toxic tort claims in New York.
Identifying the Right Defendant Decades Later
The first problem in a legacy contamination case is often figuring out who, if anyone, is legally responsible. Slag and other industrial byproducts used as fill in the 1950s and 1960s may have passed through several hands: the facility that generated the material, a hauler, a developer or contractor who spread it, and every owner of the property since. Many of the original companies have been acquired, merged, or dissolved.
That history gives plaintiffs a long list of potential targets and gives defendants significant arguments. Successor liability in New York generally requires an express or implied assumption of liabilities, a de facto merger, a mere continuation of the predecessor, or a fraudulent transfer.
Proving that a particular company's material ended up under a particular house, sixty years later, is also difficult. Defendants should expect plaintiffs to rely on historical government reports, aerial surveys, and the chemical or radiological signature of the material to make that connection, and defense experts should be prepared to test each link.
Federal Law May Control the Case
Radiological claims raise a threshold question that ordinary chemical cases do not. The Price-Anderson Act converts claims arising from a "nuclear incident" into federal "public liability actions." Those cases can be removed to federal court, and while state law generally supplies the rules of decision, the federal framework affects procedure, indemnification for certain government contractors, and, in some cases, the applicable standard of care.
Whether Price-Anderson applies depends largely on the material involved. Manhattan Project residues, like those at the Lewiston site, fall within the categories of material the Atomic Energy Act regulates. Industrial slag with elevated levels of naturally occurring radioactivity may or may not, depending on its composition and origin. Early analysis of what the material actually is will shape where the case is litigated and what defenses are available.
Timing Defenses in Latent Exposure Cases
New York's statute of limitations for injuries caused by the latent effects of exposure to a substance is under CPLR 214-c. A claimant generally has three years from the date the injury was discovered, or reasonably should have been discovered. Where the cause of the injury was not yet known, a separate provision allows one year from discovery of the cause, provided that discovery occurs within five years of discovering the injury and the claimant meets additional requirements.
These rules apply to both personal injury and property damage claims. In a case where contamination has been publicly reported for years, defendants can sometimes show that the claimant knew or should have known of the injury well before suit was filed. In Niagara County, the long public record of radiological investigation, including state reports dating to the late 1970s and early 1980s, may become relevant to these arguments, though defense counsel should be careful about how such arguments land with a jury.
Causation Is Often the Deciding Factor
The most important defense in nearly every residential toxic tort case is causation. New York requires a plaintiff to prove general causation (that the substance can cause the claimed illness) and specific causation (that the plaintiff was exposed to enough of it to cause the illness in this case).
In Parker v. Mobil Oil Corp., 7 N.Y.3d 434 (2006), the Court of Appeals held that an expert does not always need a precise numerical dose but must offer a scientifically reliable basis for concluding that the plaintiff's level of exposure was sufficient. The Court applied those principles to dismiss a mold claim in Cornell v. 360 West 51st Street Realty, LLC, 22 N.Y.3d 762 (2014), and to set aside a plaintiff's verdict in an asbestos case in Nemeth v. Brenntag North America, 38 N.Y.3d 336 (2022), where the expert failed to establish that the plaintiff's exposure was enough to cause her disease.
Radiological claims are well suited to this analysis. Radiation dose can be measured and modeled with more precision than many chemical exposures, and background radiation provides a baseline for comparison. A plaintiff who lived on a contaminated property and later developed cancer still has to show that the additional dose from the property, rather than background radiation, genetics, or other causes, was a substantial factor. Defense counsel should retain health physicists and epidemiologists early and challenge expert methodology through Frye motions where the science does not support the opinion offered.
Claims Without Physical Injury
Many residents in contamination cases have no diagnosed illness. They seek compensation for fear of future disease, the cost of medical testing, loss of property value, and the disruption of relocation.
New York limits some of these claims. In Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439 (2013), the Court of Appeals declined to recognize an independent cause of action for medical monitoring absent a present physical injury, though monitoring costs may be recoverable as consequential damages where an existing tort claim is established. Claims for emotional distress based on fear of future illness generally require proof of actual exposure and a rational basis for the fear.
Property damage claims are a different matter. Trespass and nuisance theories, along with claims for diminished property value and remediation costs, can proceed without personal injury and often represent the largest share of potential damages in a residential case. Defending them requires appraisal evidence that separates actual contamination-related loss from general market conditions and from temporary effects that resolve once cleanup is complete.
Insurance Questions Arise Early
For companies whose historical operations may be implicated, the older insurance policies often matter more than current ones. Occurrence-based policies from before the mid-1980s may respond to contamination that began during those years, while later policies typically contain broad pollution exclusions. Under Keyspan Gas East Corp. v. Munich Reinsurance America, Inc., 31 N.Y.3d 51 (2018), the policyholder bears the cost for years when coverage was unavailable, so locating those older policies early can significantly affect how much of a loss is covered.
Kenney Shelton Liptak Nowak LLP defends businesses, property owners, municipalities, and their insurers in toxic tort, environmental, and premises liability litigation throughout New York. For questions about potential claims arising from residential contamination, contact our litigation team.
