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Man O' Trees Sues Over Lewiston Road Project
by Geoff Kelly and Louis Ricciuti
On Tuesday afternoon, lawyers for Man O’ Trees, the company that three years ago won the ill-fated contract to reconstruct a deeply contaminated stretch of Lewiston Road in Niagara Falls, filed a lawsuit against the City of Niagara Falls; its mayor, Paul Dyster; the Niagara Falls City Council as a body and its individual members; the city’s engineers and lawyers; and a host of its consultants.
The 105-page complaint alleges a multitude of sins, ranging from conspiracy to fraud to breach of contract.
The lawsuit’s allegations, in a nutshell:
• The above-named defendants were eager both to repair a road that had been deteriorating for decades and to address the radioactive contamination that studies indicated lay beneath the pavement.
• Because it would be difficult for the cash-strapped city to win federal or state funds for an expensive environmental remediation project, officials set their eyes instead of plentiful federal stimulus dollars available for road work.
• City officials therefore underplayed the environmental remediation aspect of the job, characterizing it as a road reconstruction project.
• Thus, the specifications of the job conveyed to bidders were designed to make the bidders think they were engaging a road project.
• For example, contractors were told they “may encounter up to 500 cubic yards of radioactive material” and advised to budget $500,000 for its removal and disposal; in fact, by the time Man O’ Trees had completed 30 percent of the job, the contractor had removed nearly 3,000 cubic yards of radioactive material at a cost of $4 million.
• The bid documents also failed to indicate that the winning contractor would need to have a Radioactive Material Handling License from the New York State Department of Environmental Conservation; only after Man O’ Trees had won the bid was the company told that it would need to acquire that license, which delayed the beginning of work on the project for six months.
• The defendants misrepresented the variety of and danger posed by the radioactive contaminants, referring to it sweepingly as low-level “radioactive slag”; in fact, Man O’ Trees encountered thorium and uranium isotopes consistent with the region’s industrial history, especially its engagement in early efforts to produce materials for atomic weapons and reactors.
• The city’s consultants set a removal threshold for radioactive waste at 9,000 counts per minute, more than twice the “ambient radiation levels in the area.” Even that material was taken to a way-station and “further investigated” by the city’s consulting engineers, from the firm Wendel Duchscherer, to determine whether the waste should be shipped to a disposal facility or returned to the ground. In one case, the lawsuit alleges, Man O’ Trees was instructed to return waste that measured 80,000 counts per minute to the ground, rather than dispose of it.
• The lawsuit also alleges that Man O’ Trees was ordered by the city and its consultants to ignore areas where radiation levels measured “in excess of 180,000 [counts per minute] and in one report almost 300,000 [counts per minute].”
• The city and its consultants refused requests by Man O’ Trees to establish a written protocol for handling radioactive waste as it was encountered.
• A city engineer, Tom Radomski, who lived on Lewiston Road at the time the project started, allegedly ordered his property remediated. then moved his family to Lewiston, and was subsequently fired for failure to meet the city’s residency requirement for some employees.
We’ll post the entire lawsuit and its supporting exhibits, along with further analysis, on AV Daily at Artvoice.com.
On June 22, the City of Niagara Falls filed a complaint against Man O’ Trees for breach of contract, essentially accusing the company of abandoning the job. That accusation is not without merit: When it became clear that the city was not going to pay Man O’ Trees $2.9 million the company’s owner, David “Bear” Pfeiffer, felt it was owed for removing radioactive waste, and when negotiations to resolve the endless disputes the project engendered came to naught, and when the city and its consultants began to limit his employees’ access to the work site, Pfeiffer told us that he ordered his men off the job. But the equipment and materials remained, because, according to Niagara Falls attorney John Bartolomei, who is representing Man O’ Trees, Pfeiffer hoped eventually to reach a deal that would allow the work to continue. Instead the city sued and prepared new bid materials, hoping to hire a new contractor to finish the job.
In those bid documents, Bartolomei says, the city maintains that the contractor may encounter as much as 150 cubic yards of radioactive waste—another lowball figure, according to Bartolomei, which proves the point of the lawsuit: The city does not want this project to be characterized as a cleanup, no matter how much radioactive waste material it uncovers, because it can only fund a road project. The new bid documents also do not require the new contractor to obtain a license to handle radioactive material.
In the new bid documents, the city informed bidders that the materials and equipment Man O’ Trees left on site would be available for their use. On Friday and Saturday, Pfeiffer and his employees responded by returning to the site to remove their possessions, including heavy equipment, precipitating a showdown with police and city officials. Police impounded a front-loader, under orders from city officials, who argued that it was in the city’s right-of-way and lacked a license plate.
The lawsuit claims that Man O’ Trees is owed $14 million for work performed, and asks for hundreds of millions more in punitive damages, arguing that the city and its consultants have waged a public war on the company, denigrating the quality of its work in the media.
“They’re trying to destroy my company because I’m speaking out about what’s going on up there,” Pfeiffer told Artvoice earlier this summer, in one of several long conversations in which he described how the project went south, and how he became concerned, as both a matter of ethics and liability, for the health of his workers and people living nearby the project, whose own properties were contaminated with radioactive waste.
“But I won’t let them ruin me,” he said, “and I won’t be quiet.”blog comments powered by Disqus
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