FREELANCE INVESTIGATIONS EXCLUSIVE
CITIZENS Serve Notice to SUE the New York State DEC, the NAVY and NY STATE for
ENVIRONMENTAL VIOLATIONS and Radiation in Sole Source Aquifer
On September 8, 2017, attorneys for the non-profit water watchdog group, Long Island Pure Water Ltd. (the "Citizens") filed a required notice of intent to sue the New York State Department of Environmental Conservation (NYSDEC), the United States Department of the Navy and New York State for violations of CERCLA (the Comprehensive Environmental Response, Compensation and Liability Act) and RCRA (the Resource, Conservation and Recovery Act of 1976).
The Citizens contend that for over thirty years, the Navy, (at Northrop Grumman in Bethpage) the NYSDEC and New York State have knowingly allowed a groundwater plume to spread and migrate and created an imminent and substantial threat to the health and environment in Long Island's sole source aquifer and the drinking water supply of Bethpage, South Farmingdale, Massapequa and surrounding communities.
Environmental attorney's at Rigano, LLC of Melville served notice for their clients, Long Island Pure Water Ltd., of their intent to commence a Citizens lawsuit to "remediate the imminent and substantial dangers caused to the health and the environment caused by the gross and egregious failures of the NYSDEC and the Navy."
The plume, according to the notice has spread over time and inaction to three miles long by two miles wide and hundreds of feet deep and is continuing to grow. "The plume impacts the drinking water supply and potentially indoor air, which places citizens at risk of exposure to contaminants, including recently discovered radioactive material existing in the plume."
Long Island Pure Water Ltd. will request among other things:
1: A formal remedial investigation and feasibility study be conducted
2: The remediation be conducted in a timely manner
3: Due to the persistent and collective failures of the NYSDEC and the Navy, Long Island Pure Water Ltd. will demand citizens be at the forefront of the investigation and remediation process
The Navy's operations in Bethpage at Northrop Grumman (formerly Grumman Aerospace Corporation and Grumman Aircraft Engineering Corporation aka "Grumman" ) began in the 1940's and had numerous operations at the site that included radioactive and radiological substances both loose and contained, and the Navy was aware radium was discovered in the plume, according to their own records. Despite evidence that the Navy and the DEC knew of the spreading radioactive contamination, due to extreme government delays and failure of proper remedial actions the plume has yet to be properly assessed and remediated as required by law, according to the Citizen's notice.
From the notice:
During the many decades of operation at the Bethpage site (originally 600 acres), chemical materials were used, spilled, leaked and or/otherwise discarded into the surrounding environment, including the soil and groundwater. This widespread contamination resulted in a massive groundwater plume of pollutants in the Bethpage area emanating from the Bethpage Facilities.
In 1983, the Grumman Facility at Bethpage was listed as a Superfund Site, representing a significant threat to the health and environment, according to New York Environmental Law.
The plume travels with the groundwater and as it spreads it migrates to different and deeper portions of the Long Island sole source aquifer.
Despite the Navy and the NYSDEC having knowledge of this significant contamination for over thirty years, "the plume has not even been contained, let alone remediated. More egregious, neither the NYSDEC, nor the Navy has conducted an investigation of radioactive material in the plume despite having knowledge that such radioactive materials exist therein.", according to the notice.
The plume has already impacted the water supply of Bethpage and South Farmingdale and threatens other community and private wells of the Nassau-Suffolk aquifer system.
The letter was sent to:
President Trump, Governor Cuomo, The Secretary of the Navy and The Commissioner of the NYSDEC, Basil Seggos.
It was cc'd to: the CEO of Northrop Grumman Corp., Jeff Sessions; U. S. Attorney General, Eric Schneiderman; The NY Attorney General, Scott Pruitt; USA EPA Administrator, Martin Brand; Deputy Commissioner of NYSDEC, James Mattis; Secretary of Defense and Catherine McCabe; Acting Regional Administrator, US EPA Region II.
The Presence of Radionuclides Emanating From the Bethpage Facilities
In May 2013, the local water district of Bethpage, shut down a water supply well due to the detection of elevated levels of radium.
Radium is a radioactive metal that exists in 34 known isotopes. All isotopes of radium are radioactive. Two of the most hazardous radium isotopes found in the environment are radium- 226 and radium-228. Radium-226 has a half life of 1600 years and radium-228 has a half life of 5.75 years. The state and federal maximum contaminant level (“MCL”) for combined radium- 226 and radium-228 (“Radium”) is 5 picoCuries per liter (pCi/L). According to a fact sheet issued by the United States Environmental Protection Agency, exposure to radium can result in an increased incidence of bone cancer, liver cancer, breast cancer, lymphoma, and hematopoietic diseases (e.g. leukemia and aplastic anemia). (from the Notice of Intent 9/8/17)
In June 2017, Bethpage School District reported the results of its own sampling of radioactive materials at Bethpage High School located about a half mile from the Bethpage Facilities. Levels far exceeding the MCL (maximum contamination level) in three groundwater monitoring wells and levels of radon gas (a decay product of radium 226) in the indoor air of the school that were just slightly lower than the federal hazard threshold but levels much higher than typical levels for Long Island were detected.
In 2013 and again in 2016, the NYSDEC requested Grumman disclose information regarding Grumman's use and disposal of radioactive materials during its operations.
Finally, in 2016 Grumman sent a response letter that admitted to the extensive use of radioactive materials at the Bethpage Facilities while revealing that records before 1960 were non-existent and the expert that conducted the review did not conduct a full "cradle to grave" review. According to the notice, the expert "...incredibly concluded that there is no reason to believe Grumman's activities at the site are the source of the radium detected in the groundwater in the area".
Activities at Plant 26 and Building 10 Further Confirm:
Radioactive Materials at the Bethpage Facilities
In 2000, Phase I of an Environmental Site Assessment on Plant 26 was prepared by Arcadis Geraghty Miller. From a letter contained in the assessment, dated February 25, 1999 from Grumman to the NYSDOL (New York State Department of Labor):
"[s]ince loose radioactive materials are no longer being used anywhere in this building (nor anywhere else within this installation), the purpose of this decommissioning effort was to ensure that no residual radioactivity in excess of current guidelines exist in the building."
Attorneys for the Citizens considered this a significant statement as it verified the use of radiological materials at the Bethpage Facilities was not limited to sealed areas or sources.
"The Black Room"
Plant 26 housed the Van deGraff ion generator and a Kamn neutron generator, used for "radiation effects studies" in which varies types of substances were tested with different types of radiation.
The report identified a restricted a partial basement area and one room of Plant 26 where classified use and contents were conducted and contained. According to the DOD (Department of Defense)
only those with high security clearances were granted access to the "Black Room".
In Building 10, a Neutron Generator Pit was filled and capped and the NYSDOL accepted the decommissioning report and released the building from radiological control in 1998. According the the Citizen's notice, the expedited release of the building "...does not imply that a thorough and and appropriate subsurface investigation was performed with respect to the effect or impact of the radioactive materials used in Building 10."
According to the expert that was retained by Grumman, not a third party independent investigator, two of Grumman's Alnor Detectors were "misplaced in 1974, each containing a 6.5 microCurie radium-226 source (higher than the MCL)". These detectors and their location still remain unknown to this day and although the sampling results show the radium excesses are south-easterly of the Bethpage Facilities and that coincides with the precise direction of groundwater flow demonstrating that the site is the likely source of contamination, Grumman's expert stated the exact opposite concluding there was no reason to believe Grumman's activities at the site are the source of the radium detected.
RADIUM and its' DECAY PRODUCTS ARE CARCINOGENS
The Notice of Intent describes a major concern with the soil and groundwater contamination to be the potential for those contaminants to evaporate into the air spaces in the soil and move upwardly into overlying buildings and affect indoor air quality. This process called soil vapor intrusion is particularly alarming in this case because:
...as radium decays it creates the radioactive gas radon. According to a NYS Department of Health fact sheet, radon can also be dissolved in groundwater and be introduced into the indoor air through the aeration of well water during its use in washing machines, showers, and cooking. Radon is a colorless, tasteless and odorless gas that can only be measured through the use of proper test procedures. It is also a known carcinogen and is the second leading cause of lung cancer in the United States, resulting in an estimated 22,000 lung cancer deaths annually.
To date, neither the Navy nor the NYSDEC has conducted subslab or indoor air testing for radon at the Bethpage Facilities or throughout the surrounding residential areas. Only the Bethpage School District has conducted isolated radon sampling at Bethpage High School. While those results did not show exceedances of the United States Environmental Protection Agency’s recommended action level of 4.0 pCi/L, the results did reveal substantially elevated indoor air levels as high as 3.8 pCi/L and 3.9 pCi/L.
These elevated levels are indicative of a radium source, as opposed to naturally occurring background levels of radon, which are typically low on Long Island.
The elevated levels found at the school emphasize the need for a thorough investigation of the radionuclide contamination in the groundwater, soil and soil gas. Until such contamination is remediated, the citizens are at risk of exposure through water and the air in their homes, schools and businesses.
THE DEC FAILED TO PROTECT
According to the Citizens' Notice of Intent, the DEC has failed for over thirty years to stop the spread of the plume and/or remediate the site. They also delisted portions of the Bethpage Facilities without adequate investigation. On June 1, 1995 the NYSDEC approved the delisting of Plant 26 from the registry of Inactive Hazardous Waste Sites without ever investigating the radionuclide contamination.
Despite delisting the Plant in 1995, the plant continued to be authorized by an active license to use loose and sealed radioactive materials at Plant 26. Radioactive materials were not sampled prior to the delisting, according to the Notice and Plant 26 was not released from radiological control until nearly four years after it was delisted by the DEC. "Thus, the NYSDEC permitted a building that served as a sanctuary for radioactive material to be delisted as a Superfund site without testing for radiological materials."
The NYSDEC's Violations of New York State Superfund Statutes and Regulations
The letter of intent outlined various New York State Environmental Conservation Laws (ECL's) that were violated or ignored by the NYSDEC that substantially endangered the health and environment of the Citizens. Every year the DEC is required by environmental law to adhere to a March 31st deadline to reassess the need for any action relating to any hazardous waste at such sites. Despite being in possession of the 2000 Arcadis Report, which revealed the use of "loose radioactive materials" at the Bethpage Facilities, the DEC has not conducted proper testing and remediation. The failure of the DEC to act upon this "new" information was itself a violation as it should have triggered the NYSDEC's reassessment of its investigatory and remedial strategy for the property, according to the Notice of Intent to sue.
The Citizens have thoroughly examined the NYSDEC’s response to the detection of radium in their source of drinking water and have eagerly awaited the NYSDEC to take action in accordance with the law. To date, the NYSDEC’s limited response actions in no way rise to the level that is required under the ECL and NYSDEC’s own regulations. In fact, the lack of response has only exacerbated the imminent and substantial endangerment to health and the environment. (from the Notice of Intent 9/8/17)
Selecting Wellhead Treatment as the Remedial Alternative in 2001 was Grossly Improper
Attorney's for the group outlined reasons why the chosen remedy was not only improper, it violated NYSDEC's preferred source removal and control measures set forth in State Law, that relegate wellhead treatment to "be considered a measure of last resort". The DEC was supposed to remove and treat contamination to the greatest extent feasible and eliminate exposure to the greatest extent possible before resorting to wellhead treatment.
NYSDEC issued Records of Decision (“ROD”) for each Operable Unit (“OU”) of the Bethpage Superfund site. The 2001 OU2 ROD, which addresses onsite and offsite groundwater, selected a remedy focused on long term operation and maintenance of wellhead treatment systems combined with long term groundwater monitoring including monitored natural attenuation. There are several issues with the chosen remedies of this ROD.
More importantly, they pointed to the fact that the wellhead treatments were designed to treat specific contaminants known by the DEC at the time. Those contaminants do not include radionuclides or the emerging contaminants, therefor the treatment systems currently in place are ineffective. In 2013, the local water district shut down a well found to have radium and even though a treatment system was installed, the system cannot remove the radium from the drinking water and so the well is no longer in use.
The NYSDEC's response was not just in violation of environmental laws, according to the Notice of Intent to sue. but "...their selected remedy did not even comply with the minimum requirement, as it has not eliminated or mitigated the significant threats to public health or the environment."
DEC KNEW OF RADIOACTIVITY...DENIED EVIDENCE OF USE THEY POSSESSED
In November 2016, the NYSDEC, in response to a citizen inquiry, definitively stated that only sealed sources of radioactive materials were used at the Bethpage Facilities. This despite the fact that they were in possession of the ArcadisPhase I Report on Plant 26 that discussed the prior use of both sealed and "loose radioactive materials"...
According to the Citizen's Notice, "It is unclear how the NYSDEC could disclaim knowledge of the use of "loose radioactive material" at the site when it was in possession of this information."
Thirteen years after the Navy was in possession of documents proving both sealed and loose radioactive materials were at the Grumman site, the NYSDEC finally requested documents from the Navy and this only after test results showed higher levels of radium than the allowable MCL in the sole source aquifer. It took another three years to confirm those test results and it was again shown that the radium in the water samples was in excess of the allowable MCL (Maximum Contaminant Level).
Finally in September of 2016, Grumman admitted to the use and disposal of radioactive materials at the Bethpage/Grumman Facilities. With the limited sampling of at least six additional wells testing for Radium, by Grumman, the Navy and the NYSDEC, more recent test results have not been made public. Neither the Navy, nor the State DEC revealed to the public that those tests revealed concentrations over the recommended MCL's in more than one well.
As of the date of this notice, a formal investigation still has not been performed. These collective failures and unreasonable delays have violated the National Contingency Plan (“NCP”), the ECL and NYSDEC’s own regulations. (9/8/17)
In 2014, Governor Cuomo signed a bill requiring the NYSDEC to issue a report to the NYS Legislature outlining a plan to remediate the plume that was already migrating for decades at this point. The law required strict provisions as to removal and protocols for safe remediation relating to the health of the aquifer, the saltwater environment and the health of the public. It required them to stop the migration and clean it up.
In July 2016, the New York State DEC submitted a report as required by that law, but failed to mention the fact that radium and other radiological were even present or considered in their report of remediation plans. This despite having that information of the "loose radiologicals" as well as contained in use at Grumman/Bethpage since getting the 2000 Arcadis Report.
The Notice outlined several other "deficiencies" of the DEC's 2016 report in their Notice of Intent to sue the State Agency including:
The Dec's failure to address the direct remediation of any areas already impacted by the plume in their use of hydraulic containment to prevent migration. That was required by the 2014 Law, "to address state of the art remediation practices to remove the contaminants without using well head treatment to timely address the areas of the plume already affected."
Also since the 2014 Law required the job to be accomplished in a timely matter and according to the 2016 DEC Report, their process would take over 200 years, their idea of timely is questionable at the very least and in violation of the law as well, according to the Notice that points out the fact that
"Amazingly, the NYSDEC discussed these alternatives knowing that the radioactive material will likely remain in the groundwater and soil vapor during the 200 year remediation process.
As part of this proposed remedial process the DEC would pump 730 Billion gallons of "treated" groundwater from a sole source aquifer into surrounding tributaries and recharge basins, water that likely would be contaminated with radioactive material. This would be in direct violation of the 2014 Law requirement that they "...protect natural resources, specifically the freshwater bodies, tributaries, wetlands and salt water natural resources of the Great South Bay from these contaminants."
Remarkably, the NYSDEC failed to consider that the groundwater may be contaminated with radium and pumping it into a neighboring surface water body or recharge basin would exponentially increase the risk of exposure of radioactivity to humans and wildlife. The 2016 NYSDEC Report does not address how to cause the Navy to pay for or reimburse the costs associated with this project as required by section 3 of the 2014 Law. (Notice of Intent to Sue 9/8/17)On August 10, 2017 a press release was issued by the NYSDEC announcing that drilling operations had begun to assess options for the containment of the plume by the Navy. No mention of any radiological contamination was contained in the press release. Instead they issued the press release about the investigation of the "engineering design of how to contain the plume in accordance with the 2016 NYSDEC Report". Again no mention of investigating the radium and other contaminants in the plume and how to properly deal with them.
As of this date, the DEC has no plan to remediate that even mentions the radioactive issues, let alone deals with them adequately. According to sources familiar with the latest plans, they only consider stopping the plume at the Southern State Parkway and preventing it from going further south.
The people on the North side of the Southern State are probably not going to be thrilled to hear this.
The NAVY Also Shirks Responsibility for Radioactive Plume
In June 2017, the Navy issued a Report to the United States Congress regarding the status of the groundwater contaminants that are at the Grumman site and leaving the site within a ten-mile radius.
Despite having prior knowledge of the radioactivity at the site and Radium in the groundwater as far back as 2013, ( and earlier) they neglected to mention this in their 2017 report in any context, forcing Senator Charles Schumer (D-NY) to demand documents from the Navy after Radium was detected in Long Island's sole source aquifer.
Defense Secretary Mattis was unable to explain to Senator Schumer, who followed up requesting an addendum to the 2017 Report, why this information was not included all along. To this day, the plume is still traveling and potentially threatening more of the aquifer every day as the water flows underground.
The Navy responded admitting although their record are "limited" that those they had they provided to the NYSDEC go as far back as 2013. The DEC never released this information to the public and only after Senator Schumer demanded answers and records from the Navy this year. The Navy failed to produce any records prior to 2003 thereby leaving over seventy years of potential radiological use and pertinent records that are either missing or intentionally being withheld. The Navy has advised that it has produced all records responsive to the DEC in 2003, however the Notice of Intent questions whether the Navy is in possession of additional documents as well as information they say is contained in one of the records already produced.
According to the Navy's 2003 Environmental Baseline Study of (EBS) the Northrop Grumman site, the Navy did a thorough review of Grumman's records in 2003 and is presumed to still be in possession of them after conducting this review that included interviews of Grumman employees. Documents dating back to 1997 show the Navy admitting radiologicals were on the property, but Grumman began operations in the 1930-40's leaving decades of records unaccounted for.
The Navy's failure to conduct a proper investigation has it in gross violation of CERCLA and as a Federal facility they are required to be in compliance with those regulations.
LONG ISLAND PURE WATER Ltd: "THE CITIZENS"
The entity giving this notice, Long Island Pure Water Ltd. Long Island Pure Water Ltd. is a nonprofit, public benefit corporation organized under the laws of New York State. The specific purpose of Long Island Pure Water Ltd. is to promote pure water for the benefit of individuals who reside and visit Long Island through management, negotiations, legal proceedings and other activities as permissible under the law for a civic organization. The Citizens have two highly experienced hydro-geologists who are technical advisors and will advise the Citizens on proceeding with the investigation and remedial work.
Federal Law requires 90 days Notice to sue and the clock started when the Letter of Notice of Intent was delivered, but the attorneys asked for a response after thirty days. Their remedy requests included but were not limited to:
1. Requiring an immediate and complete investigation and delineation of the radionuclide contamination for the purpose of enabling a comprehensive evaluation of the nature and extent of underlying contamination so that adequate remediation work may proceed. This would likely require, inter alia, access to Navy, Grumman and NYSDEC radioactive materials records and a thorough subsurface investigation;
2. Requiring, through a formal feasibility study, the development of a more effective remediation strategy designed to eliminate or significantly reduce the current threat to the environment and human health;
3. Requiring the NYSDEC to select an adequate and proper remedial alternative with substantial participation of the Citizens
4. Requiring the NYSDEC to issue a remedial decision or Record of Decision with substantial participation of the Citizens
5. Requiring the implementation of the necessary remedial actions based on the feasibility study and the remedial decision
6. Awarding Citizens the costs of litigation, including legal fees, expert witness fees and associated litigation costs, as authorized under RCRA and CERCLA.
In the event that the NYSDEC or the Navy choose to proceed with these items
independent of the Citizens, the Citizens would proceed, if necessary, with a court challenge, perhaps through Article 78, challenging the NYSDEC or Navy’s attempt to proceed with the work based on their past outrageous failure to address the radionuclide contamination of the sole source aquifer. (from the Notice of Intent 9/8/17)
Anyone who would like to join this group and therefore the Citizen's suit should live in Nassau or Suffolk Long Island and desire to have clean water, according to the group.
For more information about the group or to sign up for free membership go to:
http://longislandpurewater.org or
for membership questions contact: longislandpurewaterltd@gmail.com
All legal communications should be addressed to:
James P. Rigano, Esq. Rigano LLC
538 Broad Hollow Road, Suite 217 Melville, New York 11747
Tel. 631-756-5900
Email: jrigano@riganollc.com
Calls and emails to recipients who received the Notice of Intent were not returned as of time of publication.
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