QUESTION

Who can help me with interpretation of a lab report regarding a radioactive product that has likely contaminated my company's construction waste

Asked on Nov 13th, 2013 on Environmental Law - New York
More details to this question:
My company does industrial abrasive cleaning & painting on steel structures. We use certain abrasive media to clean the steel from old paint. All the spent abrasive with the old paint gets collected in designated storage for proper disposal under EPA guidelines and classification. This time, the waste collected from the particular project had traces of radionuclides, which has been unheard of in our line of work. Tons of waste were rendered radioactive, causing our company thousands of dollars to dispose it as "NORM" waste. We ran 2 comparable tests through a lab from separate batches and different waste streams. We strongly believe that it was the abrasive media we selected that caused the waste to be radioactive, but we need the proper professional interpretation and furthermore legal insight to determine if we can proceed to legal action for undisclosed material safety data and product liability.
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1 ANSWER

Environmental Law Attorney serving Dayton, OH
2 Awards
I am only licensed to practice law in Ohio so my comments below should not be considered legal advice on your New York issue.  However, my thoughts are as follows. There appears to be 3 possible causes of your issue.  1) test results may be flawed; 2) abrasive cleaners used contain radionuclides; or 3) structure cleaned was contaminated by radionuclides; It seems like you already confirmed that the test results are accurate. That leaves 2 potential causes. To eliminate cause #2, consider having the abrasive cleaner manufacturer or distributor provide your company with more written information to back up their Safety Data Sheet (formerly known as Material Safety Data Sheet) for the product.  The manufacturer or distributor should be able to prove the lack of radionuclides in their product. That leaves cause #3.  My limited research shows that Department of Energy ("DOE") facilities have historically generated waste containing radionuclides when paint is stripped from buildings that we already contaminated by radionuclides prior to being painted.  That could be your cause here. So, the pertinent questions might be: i) what is the history of the facility you removed paint from?; ii) what knowledge did the owner have about that history?; and iii) what does your contract say about the responsibility for waste characterization and disposal? If your contract is not specific about which party is the "generator" of the waste created by the removal work, you may have a dispute with the property owner about which party has the responsiblity for waste characterization and disposal.  Typically, that responsibility rests with the property owner.  Even with an ambiguous contract, you probably have a pretty good argument it only covers the disposal of normal solid waste, not hazardous waste. With those thoughts as a baseline, I strongly suggest that you seek the advice of a New York environmental lawyer to make decisions on how to proceed.  Good luck. 
Answered on Nov 24th, 2013 at 9:57 AM

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