Gearing Up for Toxic Tort Litigation

HAZARDOUS SUBSTANCES/POLLUTANTS/TOXIC INJURY

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.

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”

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. 

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 
Follow us: @triblive on Twitter | triblive on Facebook

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

FOR IMMEDIATE RELEASE

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.

*                      *                      *

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.

Spreading the word on TI fund

Law clerk's article details father's illness

PAWTUCKET - Lou Wims worked for years at the Metals and Controls division of Texas Instruments Inc. in Attleboro, rising from a plumber's helper to a facilities manager responsible for maintaining the local plant.

When he died from lung cancer in 1998, his family had no reason to suspect his cancer might have stemmed from his employment at the plant, which manufactured fuel for nuclear reactors.

Now his daughter, Jenna Wims Hashway, 49, is using her legal background to spread the word to lawyers, cancer victims and their families that help is available.

As a judicial law clerk to Chief Justice Paul A. Suttell of the Rhode Island Supreme Court, the Pawtucket resident cannot perform legal work on behalf of clients. But recently Wims penned a detailed article for the Rhode Island Bar Journal about her father's and other nuclear workers' cases explaining how to access a federal program designed to help defense workers afflicted with cancer.

The Attleboro plant manufactured nuclear fuel for the Navy from 1952 to 1967 and continued fabricating nuclear fuel for government research reactors until 1981. The TI complex later underwent a massive environmental cleanup and was converted into an industrial park.

Former TI workers who contracted certain types of cancer and meet other criteria can qualify for compensation and medical payments under the Energy Employees Occupational Illness Compensation Program.

However, few workers knew about the program until The Sun Chronicle began publishing stories about the former nuclear site and U.S. Rep. Joseph Kennedy, D-Brookline, raised questions about the company's response.

According to the U.S. Labor Department, which administers the program, at least 400 claims from former TI workers have been approved with payments totaling more than $35 million.

Hashway said neither she nor any members of her family suspected that her father's cancer might be work-connected until they received a letter from Texas Instruments Inc. in February alerting families to the availability of a federal program to aid former atomic workers with cancer.

"I don't think it had occurred to any of us that his employment had put him at risk," Hashway said. "In fact, until the letter arrived from TI and I did some independent research, I had no idea TI worked with nuclear fuel. I thought they made watches and calculators."

Hashway's article explains the working of the federal program set up to compensate defense workers who toiled at dangerous jobs, often without adequate knowledge, on vital Cold War-era weapons projects. The federal law offers compensation up to $150,000 to employees of government contractors, whose illnesses are as likely as not caused by exposure to radiation.

In 2010, the federal government designated the Attleboro plant as a "special exposure cohort" for anyone who worked at the location at least 250 days between 1952 and 1967, making it easier for those workers to obtain compensation.

Hashway and her siblings applied for and obtained approval on a claim they filed on behalf of their late father.

Cancer victims and their families do not need to hire a lawyer to apply for compensation or medical benefits. But Hashway said some families may choose to seek legal advice and guidance from a lawyer. She said she wrote the article to put information about the program into the hands of families and their attorneys.

"My hope is that everyone who qualifies for the fund is made aware of its existence, so that they can decide whether to pursue a claim," she said. "The process is pretty straightforward, but it can be complicated by the passage of time - medical records and other documentation may no longer exist. I hope local attorneys will assist those who may need help in submitting a claim, and I hope my article will provide a useful guide to the process."

Former workers and their families can apply for benefits by contacting the Department of Labor's New York Resource Office.

Compensating Life Downwind of Nevada

Priscilla, a 37-kiloton atom bomb, was detonated June 24, 1957, at the Nevada Test Site. It was one of a hundred atomic bombs detonated at the site, exposing communities across the United States to radioactive fallout. 


Compensating Life Downwind of Nevada 

By Miki Meek

Claudia Peterson has a vivid memory from her 1950s childhood in southern Utah. She remembers watching a glowing orange ball move off the western horizon while she rocked back and forth in her swing set the summer she was four, and walking past piles of dead lambs during lambing season. Some had two heads, and others had no legs.
Peterson remembers men in tidy, black suits visiting her classroom at East Elementary School in Cedar City with Geiger counters—and feeling a sense of pride that she lit up the counter when they waved it in front of her face. They told her it was from dental x-rays, but she knew she had never had one. She recalls sixth grade when one of her schoolmates died of leukemia, and eighth grade when bone cancer took first her friend's leg and then his life.
But there's one thing that doesn't come to mind—the government ever warning communities like hers in Utah, Nevada, Arizona, and much of the United States that they would be heavily exposed to radioactive fallout from atomic bombs detonated at the Nevada Test Site. Between 1951 and July 1962, a hundred atomic bombs were detonated above ground there, 23 of them were larger than the one dropped on Hiroshima.
And nobody told Peterson that the government would one day compensate her family for her father's death from brain cancer, but wouldn't extend that same apology to her sister and her own six-year-old daughter. They didn't get the "right" cancer. Neither melanoma nor neuroblastoma, a rare nervous-system cancer, made the government's list.
After years of failed lawsuits and legislation, the government finally offered compensation to downwinders—radiation victims downwind of the test site—with the Radiation Exposure Compensation Act (RECA). However, since Congress passed the act, in 1990, it has been hotly criticized by those living in states surrounding the site for limiting compensation to certain illnesses, years, and counties. For claimants to pick up their $50,000 compensation check, which barely covers medical bills for some, they must have been physically present in areas around the test site for at least two years between 1951 and 1958, or during 1962. They must also have one of 20 eligible diseases, which are mostly cancers of primary organs.
"It's a slap in the face to think that money will bring back a loved one or a breast after being treated like a guinea pig. But it's a bigger slap in the face to the brother, cousin, or neighbor across the street whose illness didn't qualify," Peterson says.
Dennis Nelson, director of Support and Education for Radiation Victims, has helped downwinders file their RECA claims with the Department of Justice for the past ten years and has seen it become a point of frustration for many families, including his own. Born and raised in St. George, Utah, Nelson was seven when atomic bombs with names like "Charlie" and "Baker" began exploding less than 120 miles from his home. But with safe assurances from the Atomic Energy Commission, his family thought they were unaffected.
They continued to eat vegetables from a garden irrigated with water polluted from fallout dust and drink fresh milk from the farmer up the street. They were unaware that scientists would eventually show that radioactive iodine 131 often entered the food chain through milk from cows that ate contaminated grass or feed, and increased the risk of thyroid cancer.
The Nelsons' health eventually began to unravel. In a family of seven, seven different kinds of cancers were diagnosed, including colon cancer, which claimed his sister Margaret two years after RECA was passed. But it wasn't on the list of compensable diseases at the time. And when Congress did amend the list, adding six other diseases to RECA in 2000, the Department of Justice still had nothing to offer Nelson but a rejection letter. He is ineligible because the law permits only parents, spouses, children, grandparents, grandchildren, and survivors to file. Nelsons' mother died of a brain tumor and his father of lung cancer before his sister, who never married or had children.
"RECA is too little, too late," Nelson says. "They can call it compensation, but people are dying before they can even get it."
Salt Lake City resident Mary Dickson did not die after she was diagnosed with thyroid cancer, but she still won't get compensated. Although it's an eligible cancer, Salt Lake County isn't among 21 qualifying counties in Utah, Arizona, and Nevada, even though fallout hit it harder than some counties within RECA's boundaries, according to the Centers for Disease Control and Prevention (CDC).
"I'm glad that some type of legislation passed, but RECA was still a huge compromise," Dickson says. "The fallout didn't just hit a confined geographic area around southern Utah and stop. You can't put a fence around it."
The first federal reports mapping fallout paths over Salt Lake did not emerge until seven years after RECA passed. However, when the number of eligible counties was increased slightly by the amendments in 2000, Salt Lake County was not added.
Fred Allingham, executive director of the National Association for Radiation Survivors, believes it's because these reports also showed that fallout drifted all over the United States, making room for congressional arguments that expanding the program further would be too costly. The year after the amendments were enacted, 3,828 claims flooded in, compared with 854 in 2000. These new claims quickly exhausted funds, and the Department of Justice issued IOU letters for several months until Congress appropriated more money.
Anyone who has lived in the contiguous United States since 1951 has been exposed to radiation, according to a CDC report. Fallout from the Nevada Test Site, combined with nuclear tests conducted overseas by the U.S. and other countries, could ultimately be responsible for an additional 17,000 cancer deaths. The National Cancer Institute also estimates that the Nevada Test Site alone may be responsible for up to 212,000 cases of thyroid cancer.
The Cold War-era nuclear bombs were only detonated at the test site when the wind was blowing north-northeast, away from major cities in California and toward sparsely populated regions in states like Utah, Montana, and Wyoming.
But fallout wasn't the Cold War's only hazard. Many Americans were left sick and dying of lung cancer and other diseases after working in poorly ventilated uranium mines, contaminated with high levels of radon gas and toxic dust. These miners are eligible for $100,000 under RECA if they have one of six lung diseases linked to radiation exposure and worked between 1942 and 1971 in one of 11 qualifying states.
However, some miners, particularly Navajo, are having difficulty supplying necessary documents, even though declassified reports show that the Atomic Energy Commission knowingly sent them into hazardous conditions. Since the beginning of 2002, Melton Martinez, director of Navajo RECA Reform Working Group, has helped 200 uranium miners file for compensation, but only nine have received it so far.
He says the act "culturally discriminates" against Navajo because it requires claimants to provide detailed medical and work history records that many just don't have. From the 1950s through the ‘70s, many did not utilize Western medicine nor did they receive pay stubs, because employers paid them under the table.
"The government never told us about radiation and now they are making us jump over these hurdles," Martinez says. "But that's hard for these miners to do when they're carrying an oxygen bottle, confined to a wheelchair, or taking 15 different pills a day to keep themselves going."
He also feels that the law is flawed because it doesn't compensate other populations that were exposed to uranium dust. Martinez's own family has been plagued with health problems from living near a uranium mine in Haystack, New Mexico, that remained open for 30 years.
The National Research Council, a branch of the National Academy of Sciences and National Academy of Engineering, is studying whether there is scientific evidence to support expanding illnesses, populations, and geographic regions in RECA, and the report is due on June 30, 2003. However, Claudia Peterson is skeptical that the government will take responsibility for her sister's and daughter's death anytime soon.
It took 39 years after "Able"—the first bomb to go off at the Nevada Test Site, in 1951— for the government to acknowledge some fault. And it took ten years after RECA passed to add amendments that included a few more counties, populations, and diseases. Peterson says she doesn't know how much longer some of her elementary school classmates, family, and friends will be around to wait.
"We've watched how quickly the government has put together compensation for 9/11 victims, and that has been a tough one to swallow," Peterson says. "What happened that day was horrible, but they are so quick to recognize what someone else did and shove under the rug what they've done to their own people. We were considered a low-use segment of the population then, and we still are now."
RELATED LINKSRadiation Exposure Compensation Program
www.usdoj.gov/civil/torts/const/reca/
Go to this site to learn about RECA and download claim forms.
National Cancer Institute: About Radiation Fallout
rex.nci.nih.gov/INTRFCE_GIFS/radiation_fallout/radiation_131.html
This website lists the full 1997 report on exposure to iodine 131 from atomic bombs detonated above ground at the Nevada Test Site, along with fact sheets, a dose calculator, and state and county exposures.
A Feasibility Study of the Health Consequences to the American Population From Nuclear Weapons Tests Conducted by the United States and Other Nations
www.cdc.gov/nceh/radiation/fallout/default.htm
Download the report issued by the Centers for Disease Control and Prevention from this site.
National Association of Radiation Survivors
www.radiationsurvivors.org
This website offers a summary of issues and legislative history regarding radiation victims.
Nevada Test Site
www.nv.doe.gov/news&pubs/publications/historyreports/default.htm
Visit this site to read detailed, historical reports on nuclear testing at the Nevada Test Site.
BIBLIOGRAPHYGallagher, Carole. American Ground Zero. MIT Press. 1993

Miller, Richard L. Under the Cloud: The Decades of Nuclear Testing. Two-Sixty Press. 1999.

Miller, Richard L. The U.S. Atlas of Nuclear Fallout From 1951-1962 Vol. I: Total Fallout. LEGIS Books, 2002.

Ward, Chip. Canaries on the Rim: Living Downwind in the West. Verso Books. 2001