Niagara Falls homeowners Jocelyn and Daniel McKiernan had no idea what they would discover about their property when they hired contractors to excavate for an above-ground pool in July.
“It wasn't until after they left that my wife and I were walking around the piles and started to identify all this foreign material and stained, ashy-looking dirt,” Daniel McKiernan said.
The material unearthed in the backyard of their 99th Street home also carried what the family describes as a strong chemical odor. They contacted state environmental officials, setting off an investigation that has since identified elevated concentrations of lead and other heavy metals, pesticides and other chemicals in material from the property.
Some of the testing exceeded New York State soil cleanup objectives. Outdoor samples identified lead, copper, nickel, DDT and hexavalent chromium, among other substances. Testing of material from the home's sump also detected numerous metals and chemicals including chloroform, DDD, dieldrin and several forms of BHC, including lindane.
The source of the contamination has not been established.
Jocelyn and Daniel have three young children, including a six-year-old with a rare chromosomal disorder who was recently diagnosed with encephalitis and requires extensive care at home. No direct link has been established between his medical condition and contaminants at the property.
“He gets occupational therapy, he has a nurse that comes in and works with him, he gets massage therapy due to lack of mobility and joint stiffness, low muscle tone,” Daniel said. “He can't get any of that now. It's been, I'd say, a week and a half since he's actually been able to have those services.”
The couple says several of their son's service providers stopped entering the home after their employers reviewed the environmental test results.
“Upon them taking it back to the respective agencies, the agencies declared that they could not allow their staff in our home out of concern for the health and safety of their employees,” Daniel said.
Family denied relocation
The child's pediatrician has also written a letter recommending the family be relocated because of potential health risks from the chemicals identified at the property.
Environmental attorney Christen Civiletto, who is assisting the family, advocated for relocation during an Aug. 6 call with representatives from the state Department of Environmental Conservation and Department of Health.
Civiletto says officials repeatedly maintained that the available data did not support relocating the family and that additional testing was necessary. She says officials also initially questioned at least one of the elevated lead results and the way a sample had been collected.
“We spent at least an hour going back and forth with all of these representatives for them to explain how they would deny relocation to this family, in light of a pediatrician's letter, in light of other caregivers not being able to come in the home,” Civiletto said.
The state says neither DEC nor DOH has seen the pediatrician's letter and therefore cannot comment on its contents.
The McKiernans acknowledge they have not provided the agencies with a copy of the letter, but say they quoted its recommendation in emails and told officials about it during conversations with the agencies. Jocelyn said officials never asked them to provide the letter.
“I believe it was somewhere along the lines of, ‘Well, our doctor here is not making that recommendation,’” she said of the state's response.
Contamination documented decades ago
The current discovery also comes against a longer history of contamination in the neighborhood.
Records cited by Civiletto indicate BHC and mercury contamination was documented on or around the property in the early 1990s. Civiletto says a newly obtained appendix from sampling conducted in 1992 and reported the following year shows ash was documented on the McKiernans' current parcel and that remediation was conducted on only part of an adjoining former residential parcel.
Civiletto is also pointing to a 2011 sewer investigation roughly 275 feet from the home that detected several chemicals that have now also been identified at the McKiernan property. That investigation concluded the compounds were indicative of chemical operations and identified the Love Canal Superfund site as the only reported up-gradient facility.
Civiletto believes those records warrant investigating whether some of the present-day contamination could be associated with Love Canal. She has also raised the possibility of a separate historic industrial source for some of the graphite or carbon material unearthed in the yard.
Neither possibility has been established.
The sump findings have become another point of contention. The family and Civiletto argue that contaminants detected there, along with odors they report inside the home, raise questions about whether residents could be exposed through pathways other than direct contact with backyard soil.
DEC and DOH say additional testing of the sump contents, indoor air and yard is underway to assess possible exposure and determine what further action is necessary.
State says there is no immediate public health risk
In a joint statement Monday, DEC and DOH called the family's safety and wellbeing a “top priority” and said New York State is committed to fully investigating and remediating the property.
“Although initial data confirms no immediate public health risk, DOH and DEC are continuing the comprehensive analysis and will implement all measures needed to safeguard the family and restore the property,” the agencies said.
The state says DEC removed excavated material containing elevated lead, placed protective geofabric over disturbed portions of the property and covered those areas with sand and clean fill to reduce the potential for exposure.
Officials also said the family was advised to avoid unnecessary contact with soil, wash their hands after contact and remove shoes or boots before entering the home.
The agencies said initial air monitoring did not indicate immediate concerns. They also said no PCBs were detected during the initial waste characterization, although additional soil testing will again include PCBs.
DEC and DOH said the initial results have not yet been validated, which they described as necessary before determining next steps.
Daniel, however, says officials told the family during a subsequent phone call Monday that they now accept the soil and sump sampling results and are no longer questioning them.
“They said on the phone today that they accept both — all the sampling — and nothing's in question,” he said.
BTPM News has asked the agencies to clarify whether any of the existing sampling results remain disputed or unvalidated.
Family disputes state's description of response
The McKiernans also dispute portions of the state's description of the measures taken at their home.
Daniel says that when DEC first sent a petroleum spill specialist to the property, he was initially advised that the family would have to deal with the excavated pile themselves. When he later asked DEC for material to cover it, he says he was told to buy a tarp from Home Depot.
“While they were doing radiation testing on our lawn, I requested that the DEC provide tarps to cover it up, and he said, ‘Go to Home Depot. It's like 15 bucks,’” Daniel said.
Daniel says he ultimately used an old pool cover and another tarp before DEC later removed the pile and installed its own temporary cover.
The state says DEC subsequently placed protective geofabric and brought in clean material to reduce exposure to remaining soil.
But Daniel says that measure has also deteriorated.
“We have 17 tons of sand and dirt in our backyard, and that's mostly been washed away,” he said.
He says portions of the fabric have curled upward and developed holes near areas where contaminated material had previously been found.
Civiletto argues the measures also fail to address the family's concerns about contaminants detected in the sump and odors reported inside the home.
Thursday removal now in question
The dispute could come to a head Thursday.
DEC says contractors are scheduled to remove additional fill material recently identified beneath the family's deck on Aug. 13, weather permitting.
The material is close to a sliding-glass door leading into the home, and the family fears disturbing it could generate contaminated dust while their three children remain inside.
Civiletto is calling on Gov. Kathy Hochul to intervene and relocate the family before the work proceeds.
“This is not a family that can just pick up and go to a hotel,” she said. “But short of that, I don't know that there's anything fast enough that can get them out. We need the intervention of the governor.”
The McKiernans now say they will not allow DEC to conduct additional removal work on the property unless the state first relocates them.
“We told them as of today that they will be able to do no more remedial work until our family is relocated,” Daniel said.
The family says relocating is more complicated because their six-year-old requires specialized equipment and accommodations.
A representative from Hochul's office provided BTPM News with the joint DEC and DOH statement after BTPM requested comment from the governor about Civiletto's call for intervention. The governor's office has not separately said whether Hochul plans to intervene.
For now, DEC says Thursday's removal remains scheduled.
The McKiernans say it will not happen while they are still living in the house.
