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.
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