A Cruel Legacy

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Tuesday, December 16, 2014

Statute of Limitations Not a Bar andCourt reinstates TENORM lawsuit

Court reinstates TENORM lawsuit for deceased pipe yard workers injured by radioactive waste

There is a small amount of natural radioactivity in almost everything natural. However, certain industrial practices can result in radionuclides being concentrated to such a degree that they may pose a health and safety risk to humans and the environment. “Technologically Enhanced Naturally Occurring Radioactive Materials” (or TENORM) refers to materials, such as industrial wastes or by-products that have been enriched with radioactive elements, such as uranium, thorium and potassium and any of their decay products, such as radium and radon.
Varying levels of TENORM can result from such activities as oil and gas exploration, mineral mining, phosphate fertilizer production, water treatment and purification, and paper and pulp production. There is growing concern that some workers have been or will be exposed to potentially dangerous levels of radiation from TENORM. The EPA has stated that it is concerned about TENORM because TENORM has the potential to cause elevated exposure to radiation and because people may not be aware of TENORM materials and need of more information about TERNORM materials.
The Fifth Circuit Court of Appeals has recently reversed the dismissal of claims by the survivors of deceased pipe yard workers in a lawsuit regarding TENORM. Coleman v. OFS, Inc., No. 13-30150, (5th Cir. Oct. 30, 2014), is a class action suit on behalf of pipe yard workers and surviving beneficiaries of pipe yard workers. The claims asserted arise out of the pipe yard workers’ occupational exposure to radioactive oil field waste materials including TENORM and other hazardous substances. The plaintiffs allege that, unknown to the workers, pipe cleaning, pipe maintenance, and yard maintenance resulted in their exposure to TENORM, which caused or contributed to the development of various diseases, health problems, and deaths. The defendants in the lawsuit are oil companies who contracted with employers of the workers, including Atlantic Richfield Company, BP Products North America, Chevron, Exxon Mobil, Shell and others. The lawsuit alleges that the defendants were aware of the dangers of TENORM and were aware of the workers’ exposure, but failed to warn the workers or the public of the environmental and health dangers.
Multiple defendants moved to dismiss the claims of many of the survivors based on the statute of limitations. Under applicable Louisiana law, “[i]f a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of [specified beneficiaries].” La. Civ.Code art. 2315.1. The defendants argued that all survival claims filed more than one year after the decedent’s death were untimely. The district court agreed and dismissed all such claims.
The plaintiffs argued that the one-year limitations period should not begin to run until a plaintiff discovers the connection between the decedents’ deaths and the toxic tort exposure. Louisiana draws a distinction between “peremptive” and “prescriptive” periods to bring legal claims. If the period is “peremptive,” the period is not subject to tolling or interruption and runs regardless of whether a plaintiff had knowledge of his cause of action. On the other hand, if the period is considered “prescriptive,” the period does not begin to run until the plaintiff has actual or constructive knowledge of the facts which would entitle him to bring suit. The plaintiffs argued that the one-year period provided by Article 2315.1 should be considered prescriptive and thus subject to tolling.
On appeal, the Fifth Circuit initially decided that it was unclear whether Article 2315.1 was prescriptive or peremptive and certified the question to the Louisiana Supreme Court. Meanwhile, that court decided the same question in another case. In Watkins v. Exxon Mobil Corp., 2013–1545 (La.5/7/14), 145 So.3d 237, reh’g denied (July 1, 2014), the Louisiana Supreme Court held that the time period in Article 2315.1 is prescriptive and not preemptive.
Accordingly, the Fifth Circuit followed Watkins and held that Article 2315.1 contains a prescriptive period. Coleman v. OFS, Inc., No. 13-30150. The court of appeals reversed the district court’s dismissal of the plaintiffs’ survival claims and remanded the case back to the district court for further proceedings.
- See more at: http://www.hop-law.com/court-reinstates-tenorm-lawsuit-for-deceased-pipe-yard-workers-injured-by-radioactive-waste/#sthash.VCmgUY9c.dpuf

Wednesday, December 10, 2014

Another lawsuit accuses Mallinckrodt of dumping nuclear waste, causing cancers

Another lawsuit accuses Mallinckrodt of dumping nuclear waste, causing cancers

Sep 8, 2014, 2:03pm CDT UPDATED: Sep 8, 2014, 2:33pm CDT

The latest of 28 related federal lawsuits filed against Mallinckrodt alleges that people exposed to a predecessor company’s radioactive waste sites in north St. Louis County became sick with cancers and sometimes died from them.
Mallinckrodt in the 1940s and 1950s transported radioactive materials from its downtown St. Louis facility to a 22-acre site north of Lambert-St. Louis International Airport, according to the Sept. 5 suit, which names eight plaintiffs.
The areas around haul routes, including Coldwater Creek, which runs from St. Ann to the Missouri River, were contaminated, according to the suit.
The suit says two of the plaintiffs who worked near the waste sites — William Frazier and Harold Banovz, both former McDonnell Douglas Corp. employees — contracted cancer and died. They are suing through relatives.
The other plaintiffs — Maureen Kolkmeyer, William Fatherton, Eric Kluempers, Bruce CalvinStephen Kofron and Kurt Zwilling — either lived or worked in the affected areas and have been diagnosed with cancer, according to the suit.
The suit also names as a defendant Cotter Corp., which it says transported radioactive waste in the 1960s to a property at 9200 Latty Ave.
Kenneth Brennan of Torhoerman Law LLC, Collinsville, Illinois, has filed the more than two dozen related lawsuits representing about 150 plaintiffs. The first came in February 2012. None have settled.
“The damages are significant,” Brennan said. “Virtually all involve people who are alleging cancer and/or death.”
Nearly all of those cases have been consolidated, and continue to be heard before U.S. District Judge Audrey Fleissig.
A Mallinckrodt spokeswoman said the company would not comment.
Mallinckrodt has gone through many ownership and name changes since it was founded in the 19th Century.

Wednesday, December 3, 2014

Gearing Up for Toxic Tort Litigation

Toxic Torts:We are all affected and involved
By Lawrence Landskroner
As we all know, the wealthy corporations can take care of themselves. Money enables them to hire very large law firms to take care of all their legal needs. Unfortunately, the common person cannot afford a lawyer unless the lawyer agrees to be paid from a portion of any recovery.

Recognizing a new group of aggrieved victims, there has been a revolution occurring in the law concerning the responsibility for injuries sustained from exposure to hazardous substances or environmental contamination. This new theory of law has been labeled the toxic tort. The critical question is whether a producer of hazardous chemicals is responsible for the reasonable use or misuse of its products beyond the immediate purchasers or people exposed to them. Fortunately, for the innocent victims, an affirmative answer is evolving.

I just returned from the American Trial Lawyers Convention in Seattle, Washington, where I spent a week studying the latest state of the law concerning toxic torts. The up-and-coming new area of responsibility will be the poisoning and the abuse of the public by large corporations concerning the irresponsible dissemination of their products and/or wastes. Most lawyers fail to recognize where the responsibility lies regarding the misuse and use of hazardous products because of their failure to look to the manufacturer, marketer, and retailer of the culprit chemical or product.
Cleanup of hazardous wastes and the legal liability from exposure to such hazardous substances is unquestionably the major environmental problem of our times. There has been much furor over this problem on the federal and state level as a result of the number of lawsuits regarding toxic tort product liability claims.

We all know that corporations, because of improper disposal of hazardous wastes, are contaminating the atmosphere, rivers, and streams. In addition, corporations are causing innocent members of the public to contract a variety of fatal diseases. Recently, the negligent cleanup of a train derailment and the resulting chemical spill caused a jury to render a verdict of $11.3 million compensatory and punitive damages. The award against the railroad was for the terminal lung cancer suffered by a 63 year old man and the damage to his property because of chemical contamination resulting from a train derailment.

Very recently a federal court rendered a judgment against the United States government and all of its agencies for cancer caused by fallout due to a toxic testing in Utah more than 30 years before. Prior to this ruling, one could only go back in time several years before the statute of limitations would terminate the right of recovery. The people downwind of the atomic testing sued in federal court proving that the federal government and its agencies had concealed the facts surrounding their knowledge of the dangers of the radioactive fall out. Investigation showed that the government actively concealed the dangerous nature of the radioactive waste from the public and gave the medical false information concerning the dangers in order to conceal the hazard that they had created. The innocent victims who sustained cancer due to their exposure to the radioactive wastes, dying more than 30 years after the exposure, were able to recovery from the government for its abominable activities.

One of the new dangers arising that is considered to be ultrahazardous is the use of fire-retardant building materials, furniture and fire extinguishers. The fire-retardent chemicals found in these products have been shown to cause extremely toxic effects to people who are exposed to these chemicals. These chemicals are just as deadly as the highly publicized Agent Orange (the most deadly and potent synthetic known to man), which has now been found to cause many side effects. There will be a new stream of litigation in the areas of cancers, birth defects, and other injuries arising from the use of these products.

Billions of dollars are in the process of being disseminated to people injured from contamination by dioxins ranging from accidental spills, domestic herbicide spraying, and other contamination. Some include not only standard claims for medical problems but claims for "cancerphobia." Some 2,300 Vietnam veterans who opted out of a class action over the dioxin-contaminated herbicide are filing separate lawsuits. Some 12 million gallons of the defoliant were sprayed in Vietnam from 1965 to 1970. One of the important considerations raised at the ATLA seminars was that, because of rapid scientific advances in developing human epidemiological studies, more and more diseases are being tied to toxic materials.

The long latency periods for the discovery of cancer and other injuries can no longer be used as a basis for denying legal responsibility. In response to the atomic bomb testing of the 1940's, 2,400 people banded together and brought suit against the U.S. government. Those people had been exposed to the radioactive fallout in the 1940's, but the recognition and extent of their injuries had only recently been discovered. The Court permitted the case to proceed even though the statute of limitations had already lapsed. A statute of limitations sets the time period in which a claim remains valid; once the statute has run, the claim is barred. The court's decision had a great impact in this area in that it decided that the government could not escape liability by invoking a statute of limitations defense, but that the Court would look at the date at which time the injury was discovered.

There are now a number of experts available who have testified that the medical injuries caused by the dioxins were the result of the contamination by this chemical. Many people have different symptoms and susceptibility to these types of chemicals and pesticides, and the harm manifests itself in different ways. Testing done and reported in cases such as the Love Canal case in Niagara Falls, New York, and the Times Beach, Missouri case pinpoint the cause and effect and make more certain the responsibility for the dissemination of these dangerous substances.

The Environmental Protection Agency has cited 19 states where herbicide manufacturing processes created a high probability of dioxin contamination. What is interesting about these cases is that where the company knows, should have known, or conceals testing that shows a danger, and evidence indicates that there was a concealment or knowledge of the hazard, one can obtain punitive (punishment) damages that will penalize the company in favor of the plaintiff or people injured. These awards encompass injuries from people suffering from lung disease, cancer, and other side effects of dangerous toxic agents. One illustrative case is Atkins vs. Monsato Chemicals where 127 plaintiffs asked for damages amounting to over $700 million for the concealment of 2, 4, 5,-T hazards (deadly type toxin) from workers and the continued use of the unsafe products and manufacturing process for over two decades. There is evidence to show in those cases that punishment damages should be awarded.

At the trial, all one has to do is to show the jury that the product was dangerous, that it caused the injury, that the side effects from those exposed were concealed, and then allow a jury to contemplate its award of compensation and punishment. In a case I recently tried. (David L. Shumaker vs. Oliver B. Cannon & Sons, Inc.) decided by a Lake County jury in May of 1984, the jury awarded half a million dollars for lung damage and $250,000 for punishment damages for a carpenter in CEI's atomic reactor in Perry, Ohio, who was sprayed with a substance containing methylene chloride. The jury felt that the company should be punished for failing to exercise the appropriate level of care and as such awarded punitive damages.

Unfortunately, most lawyers overlook the probabilities of an action for personal injuries arising out of exposure to pollutants. Part of the reason for this is the fact that perhaps the area was not previously identified. Now the American Bar Association and the American Trial Lawyers Association have both set up sections on "toxic torts." With the increased amount of litigation to be set forth in the subsequent court cases and settlements, an awareness will generally permeate the trial bar, and more litigation will hopefully cause more polluters and companies manufacturing dangerous chemicals and drugs (because of the economic adversity resulting from the verdicts) to shape up their act. Only through such actions will we all be protected in some way against the further abuse of ourselves and our progeny.

Tuesday, November 25, 2014

US sailors “have won the major battle” in Fukushima lawsuit

US sailors “have won the major battle” in Fukushima lawsuit — Now 200 young Navy and Marines with leukemia, organs removed, brain tumors/cancer, blindness, more — Gov’t: Fukushima a terrible tragedy… Navy ships under threat and didn’t know where to go, some ‘very interesting’ moments… That radiation will kill you like a nuclear weapon (VIDEO)

Oct. 30, 2014: A US federal judge has ruled that a class-action lawsuit filed by about 200 Navy sailors and Marines can proceed against [TEPCO, GE, EBASCO, Toshiba & Hitachi]…. “It is not over, but we have won the major battle,” lawyer Charles Bonner wrote… “THANK GOD!!!!!” responded Lindsay Cooper, the first USS Ronald Reagan sailor to come forward… [The] ruling was a bit of a surprise… [Sailors] alleged that TEPCO’s misinformation coaxed US forces closer… More ailing servicemembers came forward citing exposure-related ailments such as unexplained cancers, excessive bleeding and thyroid issues… [Attorneys] said additional plaintiffs are continuing to come forward with “serious ailments from radiation”

Monday, November 10, 2014

Coldwater Creek Litigation Team Update

Coldwater Creek Litigation Team Update

It certainly looked innocent enough, a creek running through a Missouri town located near soccer fields, golf course and schools.  It was beloved by the neighbors and the children that enjoyed their summer swims.  But, the secrets that this creek held for many years have come to light and the injuries that arose from it are staggering. 
The legacy of nuclear waste in the St. Louis area began when Mallinckrodt Chemical Works (which is now Covidien Pharmaceuticals) was invited to prepare refined uranium for secret work on a war project. Mallinckrodt became the sole supplier for the Manhattan project experiments and then continued to be a leader in the field of uranium ore refining during and after World War II.
When Mallinckrodt’s downtown site ran out of space to store its radioactive waste, it was transported to a site at Lambert International Airport to be stored in bulk on the open ground. Thereafter, the radioactive waste was transported from the Airport site to another site on Latty Avenue in Hazelwood, MO. Sadly, we now understand that the storage, handling and transportation spread the radioactive waste along the haul routes, contaminating the nearby properties including Coldwater Creek.
Residents of communities bordering along Coldwater Creek thought nothing of their proximity to the uranium dump site and had assumed they had only historical connections to uranium. But some perceptive graduates of McCluer North High School dug a little deeper into the unfortunate number of strange health problems that seemed to plague their hometown.  With the help of Facebook and other social media tools, these perceptive residents believed there may be a pattern to the “cancer cluster” surrounding Coldwater Creek - this was just the beginning of an impressively organized community effort to learn the truth behind their Coldwater Creek.
Residents of the communities bordering along Coldwater Creek, including Florissant, Hazelwood, Black Jack, Spanish Lake, St. Ann, Berkeley and Ferguson continue their advocacy on behalf of those injured in their neighborhoods and have since filed lawsuits on behalf of those injured. 

Wednesday, October 15, 2014

Getting Ready for Trial -B&W case one of the very few even to reach the trial stage

B&W case one of the very few even to reach the trial stage

By Mary Ann Thomas
Saturday, April 25, 2009 
The Babcock & Wilcox recent payout of $52.5 million to several hundred claimants in the Kiski Valley is among a handful of nuclear contamination cases throughout the country to even be tried, let alone reach settlement for personal injury and wrongful death, according to scholars and attorneys. 
The defendants, B&W and the Atlantic Richfield Co., collectively have cut checks totaling more than $80 million to about 365 claimants over the course of the 14-year lawsuit. A $27.5 million settlement with ARCO came in in February 2008 and other lesser settlements that reached into the millions. 
The case was filed in federal court in 1994 alleging that radioactive emissions from two nuclear fuel processing plants in Apollo and Parks Township caused illness, death and property damage. 
The plants were operated by the Nuclear Materials and Equipment Corp. (NUMEC) and its successors, the Atlantic Richfield Co., and then Babcock & Wilcox to produce nuclear fuel and other products used in nuclear power plants and nuclear weapons from 1957 to 1986. 
"These cases have always been hard to litigate and go on for a long time," said Bob Alverez, a senior scholar at the Institute for Policy Studies in Washington, D.C. Alverez also is a former senior policy advisor to the Department of Energy's secretary and a deputy assistant secretary for National Security and the Environment. 
Louise Roselle, lead attorney for the plaintiffs for a case in Washington state, explained a common problem in getting cases such giant cases to trial. 
"Normally, the cost of the litigation is a factor that the defendant considers," said Roselle, whose firm is based in Cincinnati. "At some point, they say, 'This is costing too much money. Why don't we settle it?' 
"When the public goes up against the federal government, with it's ability to spend taxpayer dollars to fight taxpayers, you don't have the normal (financial) constraints on the litigation." 
The Apollo lawsuit is unique because it's a case "where taxpayers weren't put on the hook," Alverez said. 
For most such lawsuits, the contractors are exempt from liability because of their contracts with the federal government. 
Wrongful death claim unusual 
The Apollo case is unusual because in addition to property damage, some claimants alleged wrongful death and personal injury. 
A famous personal injury case involves Karen Silkwood, who worked for the Kerr-McGee plutonium fuels plant in Crescent, Okla. She complained of lax safety controls at the plant and was working with her labor union to document and expose alleged dangerous plant conditions. 
When she died in a car crash, her estate sued the company for plutonium contamination in her body. They eventually settled for $1.38 million. 
Personal injury cases caused by nuclear contamination are hard to prove, according to Steve Wodka, Silkwood's representative at the Oil, Chemical and Atomic Workers Union and an attorney in Little Silver, N.J. 
Wodka visited Apollo in the 1990s. 
"The thing that struck me when I came out there was that there was that plant at the bottom of a valley and people lived on the hillsides going up the valley," Wodka said. "There was a very logical pathway for these emissions, for people to be exposed to the emissions. 
"This was not a plant way out in the countryside like Kerr-McGee in Oklahoma, with nothing around it." 
When Leechburg environmental activist Patty Ameno contacted Karen's father, Bill Silkwood for advice, he sent her to Wodka. Wodka realized that the case was far too big, with too many plaintiffs. So he called in Dallas attorney Fred Baron, who had the resources to take on the lawsuit. 
Tough to prove a link 
"I can't think of any case quite like it," Wodka said. One of the problems with personal injury cases claiming cancer from nuclear contamination is that there isn't a unique, "signature" radiation cancer. 
"There's a whole host of cancers that are linked to radiation," Wodka said, "but they all have known causes other than radiation. 
"So it's the job of the attorneys and experts to demonstrate more likely than not that a particular cancer for a particular person was caused by his and her exposure to emissions from a plant. It's an uphill climb." 
Arjun Makhijani, an expert witness for the Apollo case plaintiffs who reviewed the data on uranium releases from the Apollo plant, said reconstructing exposures to the public is difficult. 
"The records for these plants in the 1950s and 1960s are quite poor," he said. "When we looked at the data, we were able to say that emissions were more than this number, but the data was not there for upper boundaries," he said. 
Regardless of the rigors of trying the case, Wodka said, "That's a tremendous outcome for the people out there. The people out in Western Pennsylvania are awfully patient." 
Baron, the attorney most responsible for negotiating the $54.5 million settlement, did not live to see the final settlement with B&W approved by a federal judge April 16. 
Baron died in October, of cancer. 
'Loudmouth' became the voice of the workers 
She's crazy. She's an alarmist. A loudmouth who doesn't know when to shut-up. 
Those are the gentler descriptions that some Kiski Valley residents have reserved for Patty Ameno. 
Ameno is the Leechburg environmental activist who brought in high-powered attorneys who marshaled settlements totaling more than $80 million for residents for wrongful death, personal injury and property damage from the former nuclear fuel works in Apollo and Parks. 
Last week, Babcock & Wilcox settled the 14-year lawsuit, while its co-defendant, Atlantic Richfield Co. settled with the several hundred plaintiffs last year. 
The companies and their predecessor, the Nuclear Materials and Equipment Corp. (NUMEC) operated two plants in Apollo and Parks from 1957-86, producing nuclear fuel to power submarines and nuclear reactors and other nuclear products. 
"I think it is crystal clear that this outcome would not have happened without Patty," said Steve Wodka, an attorney who first came to Apollo in the early 1990s and referred the case to Dallas attorney Fred Baron. 
Before he was an attorney, Wodka was a representative for the Oil, Chemical and Atomic Workers Union, where he represented Karen Silkwood, the activist worker at a nuclear fuels plant that led to recognition that workers were exposed to harmful doses of radiation. 
"To have a community activist willing to spend that kind of time on an issue is absolutely critical to the ultimate success," Wodka said. "Lawyers simply don't have the contacts and don't know the area. I know that if Patty hadn't made that phone call to me, I don't think anything would have happened out there." 
Ameno fought for, and won, special status from the federal government to compensate former employees who became ill from working in those plants. Former NUMEC workers have since received more than $28 million from the government and still counting. 
Ameno grew up across the street from the Apollo plant with her parents operating a deli frequented by the workers. 
A 1969 graduate of Apollo High School, Ameno's classmate Bill Kerr, now Armstrong School District superintendent, remembers. 
"Whether you agree with her or not, she is a fighter and has always fought for what she believed to be right and good. 
"I have to applaud her for her determination," said Kerr, former Apollo mayor and Armstrong County commissioner. 
"In the end, the settlements with ARCO and B&W speak for themselves." 
Leaving Apollo 
Ameno left Apollo in 1971 to join the Navy. She served for a decade and was honorably discharged with a service-connected disability. Among her military duties, she served with the Armed Forces Courier Services and the Naval Investigative Services. 
Ameno suffered severe injuries — including shattered knees and ankles and other factures — after she jumped to escape a helicopter crash while on a search and rescue mission when the USS Kennedy collided with the USS Belknap on Nov. 22, 1975, off the coast of Sicily. 
After Ameno was discharged, she used the G.I. Bill to take undergraduate classes at Indiana University of Pennsylvania for criminology and English. She went on to work as a federal criminal investigator for the Defense Department in Long Beach, Calif. 
Concerns in Apollo 
She returned home in 1998 "to find my father asking questions and making me promise to look into the plant across the street. 
"If I hadn't screamed at those meetings or called (attorneys), we'd still sitting here doing nothing," said the 57-year-old Ameno. 
Ameno's activism has been colorful, from getting arrested in September 1993 for disrupting a public meeting on the Apollo nuclear fuels plant to clogging up U.S. Rep. John Murtha's fax machines — at several locations, including his Washington, D.C. office — for a "fax-a-thon" demanding help for area former nuke workers who became ill several years ago. 
A plaintiff in the residents' lawsuit, Ameno's settlement with B&W, less attorney fees and other expenses, is expected to be about $250,000. 
She has had two brain tumors, one that left Ameno deaf in one ear. She is a survivor of uterine cancer. 
"Patty went from activist to champion," said state Rep. Joe Petrarca, D-Vandergrift. "I think a lot of people wrote Patty off many times." 
He recalled a meeting several years ago between Ameno and Kathleen McGinty, then-secretary for the state Department of Environmental Protection. 
"Patty approached it very professionally, but she was tough and straight-forward," Petrarca said. "In my opinion, the secretary of DEP was with someone on her level who could talk the talk and walk the walk. You don't see that often. She is a tiger." 
On to a new cause 
Last fall, Ameno became junior vice commander of the VFW Post 330 in Leechburg. 
She's making it her next mission. 
Amid a host of problems, Ameno accepted the position to try to improve conditions at the financially strapped club that she described as in "deplorable condition." 
Ameno says she personally cleaned up raw sewage in the basement loaded with mold. 
She occasionally serves as a disc jockey and books blues, country, rock and jazz bands, and now opening up the gigs to the public. 
But again, Ameno finds her detractors. 
Ameno tells a story about being stuck in a room with club men yelling at her, "hoping I would cry and quit." 
"I just throw it back at them," she said with a laugh. "I know that disco move." 
With two decades of dealing with the environment and seeing nothing but disease and death, according to Ameno, the work at VFW has given her a chance to resurrect a local asset. 
"This is much needed in this community, for it honors the dead by serving the living," she said. 
Nuclear waste dump remains 
Ameno says nuclear concerns in the Kiski Valley remain, and so her efforts in that area continue. 
She challenges the cleanup plans for the nuclear waste dump along Route 66 in Parks. 
And she promises a few more surprises. 
"What she has done is bigger than life," said Nedra Ameno, her partner of 21 years. "People have reaped the benefits from her toil. It speaks for itself. 
"And people can see it." 
Additional Information:

Other large cases 

The amounts of court awards in nuclear contamination lawsuits can be staggering. 
Last year, two contractors were ordered to pay about $925 million to homeowners claiming that their property values were diminished by contamination from Rocky Flats, one of the country's major nuclear weapons production facilities outside of Denver, Colo. 
The court decision is under appeal. 
The time its takes to win the awards or to settle are equally as mind-blowing. 
At the Hanford Nuclear Reservation in Washington state, another government weapons site, two plaintiffs won damages totaling $550,000 alleging that radiation releases from the site caused their thyroid cancer. 
About 2,000 other personal injury cases are pending in the case that is almost 20 years old, according to Louise Roselle, lead attorney for the plaintiffs based in Cincinnati, Ohio.

Read more: http://triblive.com/x/valleynewsdispatch/s_622294.html#ixzz3MJxl9iC3 
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Wednesday, July 9, 2014

United States Announces $5.15 Billion Settlement For Environmental And Toxic Tort Liabilities

United States Announces $5.15 Billion Settlement With Anadarko To Pay For Environmental And Toxic Tort Liabilities

Thursday, April 3, 2014

More than $4.4 Billion To Be Available for Environmental Clean-Up and Claims

Largest Payment for the Clean-Up of Environmental Contamination in History

James Cole, Deputy Attorney General of the United States, Preet Bharara, the United States Attorney for the Southern District of New York (“SDNY”), Robert G. Dreher, the Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resource Division (“ENRD”), and Cynthia Giles, Assistant Administrator of the U.S. Environmental Protection Agency, announced today that the United States has entered into a settlement agreement with the Kerr-McGee Corporation and certain of its affiliates (“New Kerr-McGee”), and their parent Andarko Petroleum Corporation, in a fraudulent conveyance case brought by the United States and co-plaintiff Anadarko Litigation Trust (the “Trust”) in the bankruptcy of Tronox Inc. and its subsidiaries (“Tronox”). The bankruptcy court had previously found, in December 2013, that the historic Kerr-McGee Corporation (“Old Kerr-McGee”) fraudulently conveyed assets to New Kerr-McGee to evade its debts, including its liability for environmental clean-up at contaminated sites around the country. Pursuant to the settlement agreement, the defendants agree to pay $5.15 billion to settle the case, of which approximately $4.4 billion will be paid to fund environmental clean-up and for environmental claims. This is the largest payment ever for the clean-up of environmental contamination.
Deputy Attorney General James Cole said: “Kerr-McGee’s businesses all over this country left significant, lasting environmental damage in their wake. It tried to shed its responsibility for this environmental damage and stick the United States taxpayers with the huge cleanup bill. Through a lot of hard work, we uncovered this fraud and recovered over $5 billion dollars for the American people. This settlement demonstrates the Justice Department’s firm commitment to preventing and combating all forms of fraud and to securing environmental justice.”
Manhattan U.S. Attorney Preet Bharara said: “If you are responsible for 85 years of poisoning the earth, then you are responsible for cleaning it up. That’s why this case was brought. And that’s why the defendants are paying a record $5.15 billion -- to fund that colossal cleanup and to make things right. The company tried to keep its rewards and shed its responsibilities by playing a corporate shell game, putting its profitable oil-and-gas business in a new entity and leaving behind a bankrupt shell holding the environmental liabilities of the defunct, polluting lines of business. The company tried to cleanse its valuable business from its toxic legacy liabilities. Now the defendants will pay to cleanse the land and water.”
Acting Assistant Attorney General Robert G. Dreher said: “Today’s settlement is a just resolution of an historic injustice to the American people and our environment. The money recovered will result in clean-ups of a toxic history the Old Kerr-McGee unsuccessfully tried to walk away from.”
EPA Assistant Administrator Cynthia Giles said: “EPA’s vigorous pursuit of this case will have a big return for communities across the country. Companies that pollute can’t escape their responsibility to pay for the cleanup. EPA will continue to fight for those affected by pollution.”
The Fraudulent Conveyance
According to the complaints of the Government and the Trust and the December 12, 2013, written opinion of U.S. Bankruptcy Judge Allan L. Gropper:
Old Kerr-McGee operated numerous businesses, which included uranium mining, the processing of radioactive thorium, creosote wood treating, and manufacture of perchlorate, a component of rocket fuel. These operations left contamination across the nation, including radioactive uranium waste across the Navajo Nation; radioactive thorium in Chicago and West Chicago, Illinois; creosote waste in the Northeast, the Midwest, and the South; and perchlorate waste in Nevada.
In the years prior to 2005, Old Kerr-McGee concluded that the liabilities associated with this environmental contamination were a drag on its “crown jewel” business, the exploration and production of oil and gas. With the intent of evading these and other liabilities, Old Kerr-McGee created a new corporate entity – defendant New Kerr-McGee – and, through a scheme executed in 2002 and 2005, transferred its valuable oil and gas exploration assets to the new company. The legacy environmental liabilities were left behind in the old company, which was re-named Tronox, and spun off as a separate company in 2006. As a result of these transactions, Tronox was rendered insolvent and unable to address its environmental and other liabilities. In 2009, Tronox went into bankruptcy.
The United States and the bankruptcy estate (now represented by the Trust) brought this lawsuit to hold the defendants accountable and require them to repay the value of the assets fraudulently conveyed from Old Kerr-McGee.
In its decision, the Court found that Old Kerr-McGee transferred assets with the intent to hinder or delay creditors, including particularly environmental creditors, and also transferred those assets for less than their fair value, which left Tronox insolvent, unable to pay its debts when they came due, and undercapitalized. Among other things, the Court concluded that:
  • “[T]here can be no dispute that Kerr-McGee acted to free substantially all its assets – certainly its most valuable assets – from 85 years of environmental and tort liabilities.”
  • “[O]verhelming” evidence demonstrated that “Defendants devised, carried out and had complete knowledge that [the transfer of Old Kerr-McGee’s oil and gas exploration and production assets was] part of ‘a single integrated scheme’ to create a ‘pure play’ E&P business [referring to the ‘crown jewel’ oil and gas exploration and production business] free and clear of the legacy liabilities.”
  • “[T]here is no credibility to the uniform testimony of the inner circle [of Old Kerr-McGee management] that isolation of the oil and gas assets from the chemical business had nothing to do with an effort to cleanse the E&P assets from the legacy liabilities.”
  • “The record is replete with evidence that Kerr-McGee misapplied [the] standard [for setting reserves for environmental claims under Generally Accepted Accounting Principles] and thereby understated its liabilities for GAAP purposes.”
  • Statements by former Old Kerr-McGee employees that the cost of this environmental pollution would decline after the spin-off were “not rooted in reality.”
  • Kerr-McGee had failed to conduct any “contemporaneous analysis of the effect of [its] transactions on the legacy liability creditors,” including the effect it would have on the United States’ environmental claims.
The Settlement
Under today’s settlement agreement, the defendants will pay $5.15 billion to the Trust to settle the fraudulent conveyance case. Pursuant to a 2011 settlement between the United States, certain state, local, and tribal governments, and the bankruptcy estate, approximately 88% of the net proceeds of this litigation will be distributed by the trust to the United States, certain state governments, the Navajo Nation, and environmental trusts created to clean up Tronox’s contaminated sites. The 2011 settlement agreement provides specific percentages of this funding that will be made available to each site.
As a result of these agreements, some of the key recoveries for environmental claims and for clean-up of environmental sites are estimated to be the following:
  • $1.1 billion will be paid to a trust charged with cleaning up two dozen other contaminated sites around the country, including the Kerr-McGee Superfund Site in Columbus, Mississippi.
  • $1.1 billion will be paid to a trust responsible for cleaning up a former chemical manufacturing site in Nevada that has led to contamination in Lake Mead. Lake Mead feeds into the Colorado River, a major source of drinking water in the Southwest.
  • Approximately $985 million will be paid to U.S. EPA to fund the clean-up of abandoned uranium mines on land of the Navajo Nation, where radioactive waste remains from Kerr-McGee mining operations.
  • Approximately $224 million will be paid to U.S. EPA for clean-up of thorium contamination at the Welsbach Superfund Site in Gloucester, New Jersey.
  • Approximately $217 million will be paid to the federal Superfund in repayment of costs previously incurred by EPA cleaning up the Federal Creosote Superfund Site in Manville, New Jersey.
Additional amounts will be paid to the United States, states, the Navajo Nation, and environmental trusts for other environmental claims and contaminated sites at issue in this case.
The settlement agreement will be lodged with the United States Bankruptcy Court for the Southern District of New York for a period of at least 30 days before it is submitted for the Court’s approval, in order to provide public notice and to afford members of the public the opportunity to comment on the settlement agreement.
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Mr. Bharara thanked the Trust, its trustee John C. Hueston, and its counsel, Kirkland & Ellis LLP, for their critical work on this case. Mr. Bharara also thanked the many federal, state, and tribal officials who worked tirelessly on this matter. The litigation of this case was assisted by EPA personnel from around the country; the U.S. Fish & Wildlife Service and Bureau of Land Management of the U.S. Department of the Interior; the National Oceanic and Atmospheric Administration of the U.S. Department of Commerce; the U.S. Nuclear Regulatory Commission; the U.S. Forest Service of the U.S. Department of Agriculture; and the U.S. Department of Defense, as well as numerous state governments and the Navajo Nation.
This case was handled by the Environmental Protection Unit and the Tax and Bankruptcy Unit of the SDNY’s Civil Division. Assistant U.S. Attorneys Robert William Yalen and Joseph Pantoja, along with Alan S. Tenenbaum, Katherine Kane, Frederick S. Phillips, Marcello Mollo, and Erica Pencak of ENRD, are in charge of this case.