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Court allows class action status for homeowners' lawsuit against Brookhaven Lab

A key legal decision has paved the way

A key legal decision has paved the way for about 1,000 homeowners, current and past, from the North Shirley area who live adjacent to the Brookhaven National Laboratory to sue the government and seek damages due to the lab's leakage in the mid-1990s of toxic chemicals. (January 8, 2010) Credit: Ed Betz

A key legal decision has paved the way for up to 1,000 North Shirley homeowners, current and past, to collectively sue Brookhaven National Laboratory for damages due to the release of toxic chemicals from the lab in the mid-1990s.

Acting Supreme Court Justice Joseph Farneti, in a decision dated Dec. 23, granted the residents within an area south of the lab the right to sue as a class for property damages.

The lawsuit was filed in February 1996 by residents who charged toxic chemicals that had leaked into their area were causing health problems and reducing property values.

A year later, it was disclosed that one of the lab's nuclear reactors was leaking radioactive tritium. While the lab already had an ongoing cleanup program, the tritium discovery spurred a more extensive effort that to date has cost $460 million, said lab spokesman Pete Genzer.

Farneti ruled that the class-action suit could seek damages for losses in property values and for the costs of having to hook up to Suffolk's public water supply.

The judge rejected the residents' attempt to include all people who live or work within a 10-mile radius of the lab in the suit. Instead it includes residents who live within an area bounded on the north by the Long Island Expressway, on the west by the William Floyd Parkway, on the south by Moriches-Middle Island Road and on the east by Weeks Avenue.

Farneti also rebuffed attempts to seek damages for medical problems, though individuals can file personal injury lawsuits.

The residents' attorney, Craig Purcell, of Glynn Mercep and Purcell in Stony Brook, called the decision "a big deal."

"This could affect as many as 1,000 homes," he said. "Some people sold in a panic in 1996 and 1997 and others sold later on and suffered a loss. A stigma certainly has lasted for years."

Purcell said he has a meeting scheduled with the judge on Jan. 21; after that, all current and former residents in the designated neighborhood must be notified and given the opportunity to opt out of the class-action suit.

The lab's attorney, Michael Cohen, of Nixon Peabody in Jericho, said the decision was "procedural" and "not a decision on the merits." He said the lab is considering an appeal.

Environmental lawyers said the judge's decision was important for the plaintiffs. "It's a procedural decision that could have substantive ramifications on the case," said John Brook, of Phillips Nizer in Garden City.

But Daniel Estrin, who supervises the environmental law clinic at Pace Law School in White Plains, said because there are no medical damages, any money awarded is not likely to be "so astronomical as to bankrupt the lab."

Yet for some former residents, the hope of some redress remains important. William Ferguson, 49, who moved from North Shirley a decade ago to Las Vegas, said his house was appraised at tens of thousands dollars less than what he bought it for, once news of the leaks became public. He and his wife, Deborah, ultimately sold at a loss. "It's totally unfair," he said. "Something happened and that was a direct cause of property value loss."

With Sophia Chang

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