New life for decades-old lawsuit blaming nuclear plant for cancers

Kiski Valley residents continue to pursue legal action

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A forlorn stretch of fenced-in grass along the Kiskiminetas River in Apollo is all that's left of a Cold War relic.

The Nuclear Materials and Equipment Co., which once made nuclear fuel for ships and submarines, is a bad memory for many residents who say the facility gave them cancer and ruined their property values.

Now their dormant class-action suit over its legacy, 16 years old and millions of documents long, is about to start all over.

Texas tort king Fred Baron, the lawyer for Karen Silkwood in the Oklahoma radiation case made famous by the 1983 movie "Silkwood," represents hundreds of Kiski Valley people who claim they or their relatives developed 32 kinds of cancer related to the Apollo plant and a subsidiary in nearby Parks Township.

In addition to 240 personal injury complaints, the suit contains 60 wrongful death complaints and another 120 property damage claims arising from home values that have dropped to almost nothing.

The plaintiffs got a boost last month when one of the corporate defendants, Atlantic Richfield Co., settled for $27.5 million, which includes payments of up to $600,000 to each of a half-dozen families.

But the second defendant, Babcock & Wilcox, has dug in its heels and is headed to trial again, even though it already settled part of the case 10 years ago before a judge overturned the $37 million verdict.

Atlantic Richfield owned NUMEC's stock from 1967 to 1971, when Babcock & Wilcox bought it and began operating the two plants until they shut down in 1983.

The legal action has such a convoluted history that it's hard to keep track of it all without a flow chart.

First filed in 1994, the suit has also been delayed at every turn, most recently by the seven-year Babcock & Wilcox bankruptcy case in New Orleans that itself was disrupted when Hurricane Katrina flooded the bankruptcy court.

The whole thing has been further complicated by a separate proceeding in a New York state court in which American Nuclear Insurers, the insurance company for both corporations, has balked at paying damage awards.

In fact, ANI previously blocked a global settlement for $87 million, according to court papers.

But with Babcock & Wilcox emerging from bankruptcy last year, the case is finally moving forward again here.

The plaintiffs refuse to discuss any aspect of it.

"I'm sorry, but I can't talk about litigation," said Patricia Ameno, of Leechburg, an environmental activist originally from Apollo who blames her cervical cancer and two brain tumors on the Apollo plant. "You'll have to talk to our lawyer."

Mr. Baron, the former finance chairman for John Edwards' presidential campaign and something of a folk hero in Apollo, did not respond to repeated messages seeking comment.

Neither did the San Francisco law firm representing Babcock & Wilcox.

Different this time around

But the new trial will be much different from the one a decade ago, in which U.S. District Judge Donetta Ambrose admitted she made mistakes.

Because of an appellate decision arising from the Three Mile Island radiation case, she'll first hold a special "causation" trial in which scientists will testify about whether exposure to enriched uranium or plutonium can cause various cancers.

The trial is expected to weed out those claims from plaintiffs whose cancers have not been linked to radiation of the type emitted by the nuclear fuels plants.

Mr. Baron objected to the trial format, but Judge Ambrose said "causation can only be established (if at all) from epidemiological studies of populations exposed to ionizing radiation."

Radiation exposure cases are notoriously difficult to prove. The problem is that pinpointing the cause of a specific cancer is almost impossible because so many factors are involved.

The science to date doesn't appear to help the plaintiffs' claims.

Top epidemiologists who will testify, including Dr. Gene Weinberg, of the Pennsylvania Department of Health, say they can't talk because the case is in litigation.

But previous state health studies that he directed found no unusual rates of cancer. The one federal study, conducted by Dr. John Boice Jr., of the International Epidemiology Institute in Maryland, reached a similar conclusion.

"There were no significant increases in the study counties for any cancer when comparisons were made with either the U.S. population or the control counties," Dr. Boice wrote in a 2003 edition of Health Physics.

Dr. Boice, also a witness, said he couldn't discuss his research.

In court papers, however, the plaintiffs maintain his study is tainted because it was funded by American Nuclear Insurers.

They also say the various population studies haven't been specific enough to the Apollo area, relying instead on aggregate numbers from the entire county.

In addition, Mr. Baron points out that the federal government, as part of the Department of Labor's Energy Employees Occupational Illness Compensation Program, has already determined that certain kinds of cancers are caused by uranium.

Under that program, former workers at the plants are eligible for payments of $150,000.

An intriguing history

One of the keys to this case is NUMEC's checkered history, which includes admissions by its own managers of lax safety measures in the 1960s.

The Apollo plant was built in a portion of an abandoned steel mill in 1957. Atlantic Richfield bought it as a subsidiary in 1967 and sold it to Babcock & Wilcox in 1971.

The plant processed fuel for nuclear-powered Navy submarines and ships and for commercial power plants. During the Cold War, it was both a source of pride and jobs in the community.

But in the 1960s, the company was also investigated repeatedly by the FBI, CIA and the now-defunct Atomic Energy Commission because large quantities of uranium kept disappearing.

Government documents have revealed that J. Edgar Hoover suspected that former NUMEC President Zalman Shapiro, a Zionist now in his late 80s and living in Point Breeze, had smuggled the materials to Israel for its nuclear weapons program.

The allegations were never proven and Mr. Shapiro has repeatedly denied them.

But that missing uranium came up again in 1998 at the first "test" trial before Judge Ambrose for eight of the original plaintiffs, who introduced a raft of internal memos and letters relating to NUMEC.

In one 1966 Nuclear Energy Liability Insurance Association letter, for example, an engineer discussed how 30 kilograms of uranium had apparently been lost in the river.

"I would say that the less publicity given to these incidents at this time the better," he wrote. "They would make quite startling tabloid headlines."

Jurors seized on that kind of damning evidence in returning their $36.7 million compensatory verdict.

The award spooked Babcock & Wilcox. Before the jury started deliberating on the punitive damages, which under the law could total up to three times the compensatory amount, the company settled with the eight plaintiffs.

The settlement amount remains secret.

The company probably wished it hadn't settled, however, because the compensatory award didn't stand.

In post-trial motions, the two companies said Judge Ambrose allowed the trial to be conducted in a "highly emotional" environment that largely ignored science.

Babcock & Wilcox lawyer A.H. Wilcox, who has since retired, argued that the plaintiffs were unable to prove NUMEC caused anyone's cancer and that the judge permitted the jury to be swayed by passion rather than logic.

"Small wonder that the jury could not sort out the few grains of wheat from the bushels of chaff," wrote Mr. Wilcox, who also did not respond to several messages.

He also said the judge improperly let the plaintiffs' lawyers mingle compensatory and punitive damage arguments in their closing argument.

"The ultimate result of these multiple errors was a record-breaking verdict for the plaintiffs," Mr. Wilcox wrote.

Judge Ambrose agreed on some of those points.

Two expert witnesses for the plaintiffs, for example, had testified using a study that supposedly showed a high cancer rate in Apollo. But, the judge said, the information had been gathered from raw data and had not been verified by the study's author.

"The testimony was highly prejudicial," she said, and improperly bolstered the cancer claims.

She threw out the verdict and ordered a new trial.

The causation trial should eliminate any such mistakes this time, although it will certainly make for drier courtroom testimony.

After the trial on uranium, the judge will hold a second one on plutonium, which was present at the Parks facility.

The buildings at the sites have long been demolished.

The cleanup at the Apollo site was finished in 1995. Material at the Parks site remains buried there and has been the source of yet another controversy as residents argue that it still poses a risk.


Torsten Ove can be reached at tove@post-gazette.com or 412-263-1510.


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