Apollo nuclear plant case drags on

By Mary Ann Thomas
For the Tribune-Review

Sunday, July 29, 2007

One of western Pennsylvania's longest-running federal lawsuits -- alleging that Babcock & Wilcox's nuclear operations in the Apollo area caused cancer and other illnesses to area residents -- has been scheduled for retrial early next year.

The new trial, set for Jan. 14 in Pittsburgh, is another legal milestone in complicated litigation now in its 13th year.

In 1998, a federal court awarded $36.7 million to eight Apollo-area residents who claimed the Babcock & Wilcox nuclear fuel-processing plants in Armstrong County gave them cancer and caused property damage. There are about 235 claims involving personal injury or wrongful death and another 140 claims for property damage from two nuclear fuel processing facilities in Apollo and Parks Township. More plaintiffs may be added to the suit.

B&W had no comment for this story. The company has, however, long contended that its nuclear processing plants in Armstrong County did not cause the illnesses or damages alleged in the lawsuits.

The format of the new trial will likely drag out legal proceedings for years to come, according to plaintiffs' attorney Fred Baron, of Baron & Blue, a law firm headquartered in Dallas.

The new trial will explore only if enriched uranium can cause certain diseases. If it is ruled uranium does cause those diseases, a second trial will commence to address individual claims, liability and/or damages.

There would be another trial on plutonium exposures from B&W's former processing facility in Parks Township. "If we win, none of our clients receive anything and it is likely that it will be many, many, many, many years from now that the issues in this case will be decided," Baron said.

The trial is "in the abstract," and questions well-accepted scientific findings that exposure to uranium can cause cancer, Baron said.

Baron describes B&W's arguments in the new trial as "breathtaking." According to a July 28 court filing, B&W objected to the assertion that enriched uranium is capable of causing cancer in humans.

"The government already determined that certain kinds of cancers are caused by uranium," he said, citing the U.S. Department of Labor's Energy Employees Occupational Illness Compensation Program.

"It's the height of arrogance that in B&W's filings to regulatory agencies and previous court filings, they have routinely described the hazards of enriched uranium," Baron said. "This not only destroys their credibility, but it should be investigated by the federal government before they allow B&W to be involved in activities in the nuclear industry."

B&W requested the trial format, which was accepted in a May 14 order by Donetta Ambrose, chief U.S. district judge for the Western District of Pennsylvania.

While still preparing for the January trial in federal court in Pittsburgh, Baron is challenging the trial format.

The recent legal actions add to a string of non-conclusive events, including:

Throughout the legal twists and turns, plaintiffs have waited for closure and vindication.

"I'm like anybody else. Sure I'm frustrated," said Patty Ameno, the Leechburg environmental activist and plaintiff who has sustained two brain tumors. "But because of Fred Baron and the truth of what happened here, which is clearly documented, the enormous amount of cancers and illnesses in this valley, I can only say the race is not to the swift, nor the strong, but the one who endures 'til the end," she said, paraphrasing Ecclesiastics.

The long and winding road

The lawsuit alleges some Apollo area residents died from cancer or were injured by the radioactive pollution from the uranium fuel processing plant in Apollo and the plutonium facility in Parks Township.

Nuclear Materials and Equipment Corp. (NUMEC) originally owned and operated the sites, starting in 1957. The Atlantic Richfield Co. and B&W succeeded NUMEC. The plants closed in 1986.

The original lawsuit was filed in 1994 after years of resident protests and environmental activism, which resulted in the removal and clean up of the Apollo plant for about $70 million in the mid-1990s.

Ameno pursued legal action and found Baron through Bill Silkwood, father of the late Karen Silkwood, a union activist at the Kerr-McGee nuclear plant in Oklahoma who died in a car crash, some say mysteriously, in 1974. Baron took the Apollo case on a contingency basis.

The original case was overturned because of errors in admitting evidence and some testimony.

Baron said he hoped that the case would be quickly appealed so they could settle any legal issues sooner rather than later.

"Issues of whether the defendants were responsible or whether the exposures caused the injuries were of great controversies," Baron said.

When B&W filed for bankruptcy in 2000, active prosecution of the case ceased, according to Baron. But all parties, included the second defendant, the Atlantic Richfield Co., tried to settle the case in U.S. Bankruptcy Court.

In court documents, B&W asserts that the Bankruptcy Court presiding over its case declined to enforce a settlement agreement. But Baron says that a settlement was never consummated and was hampered by B&W's insurance carrier's refusal to pay.

When B&W emerged from bankruptcy in 2006, the Apollo case moved from bankruptcy court back to federal court.

"We're very discouraged not to have been able to re-establish settlement discussions," Baron said.

And now with the new trial, B&W is in a position to "starve us out unless we can change the trial plan," he said. "It looks like they (B&W) won't get hit with a verdict -- they won't have to pay for a long period of time."

As Baron prepares for the new trial in January, he's trying to open up the lawsuit to new plaintiffs. He filed a request with Judge Ambrose on June 29 for additional plaintiffs, which names eight new residents seeking damages.

"We continue to review new claims," he said.

Ambrose has not ruled on permitting additional plaintiffs.

While there are a number of potential outcomes for the lawsuit, which will expend more time and money, Baron said, "The case will never be dropped as long as I'm alive."