Class action lawsuit against Brookhaven National Lab moving ahead

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A class action lawsuit—begun 20 years ago—that charges Brookhaven National Laboratory (BNL) with contaminating neighborhoods adjacent to it will be moving ahead again in New York State Supreme Court this month.

Court action is scheduled for the last week in February. Since it was first brought in 1996, the lawsuit has gone back and forth between the State Supreme Court and the Appellate Division several times, as BNL has fought it.

In July the Appellate Division—the judicial panel over the Supreme Court in New York State —ruled the case can move towards trial. It declared that “the causes of action of the proposed intervenors are all based upon common theories of liability.” In other words, it stated that the plaintiffs could sue for damages.

But, outrageously, the radioactive contamination caused by BNL—documented in the 2008 book “Welcome to Shirley: A Memoir from an Atomic Town” and focused upon by the award-winning 2012 documentary “The Atomic States of America”—can no longer be part of the case.

The argument of lawyers for BNL lawyers was accepted by the Appellate Division which, as it put it in its July decision, ruled that “the nuclear radiation emitted by BNL did not exceed guidelines promulgated by the federal Nuclear Regulatory Commission.”

Further, the BNL radioactive pollution will not be allowed to be considered despite the federal government in recent years paying out millions of dollars to BNL employees in compensation for their getting cancer after exposure to radioactivity at BNL. In addition, families of those BNL workers who died from cancer after exposure to radioactivity have been paid.

The pay-outs to former workers and their families for cancer from BNL radioactive exposure—what neighbors of the lab are now being barred from litigating about—come under the federal government’s “Energy Employees Occupational Illness Compensation Program.”

Instead, the non-employee victims are now being limited in the class action lawsuit to suing for other BNL pollution, largely chemical.

The “Energy Employees Occupational Illness Compensation Program” covers not only BNL but the string of U.S. national nuclear laboratories including Los Alamos, Livermore, Oak Ridge labs, as well as federal nuclear facilities including its Savannah River Plant and Hanford.

According to a Power Point presentation given at BNL in 2012 by the U.S. Department of Labor, some $8.2 billion has been set aside under the program for pay-outs, with $111.7 million of that for exposure to radioactivity and consequent cancer at BNL

Joseph B. Frowiss, Sr., based in Rancho Santa Fe, California has been handling many of the cases involving former workers at BNL—and other government nuclear facilities—and their families. As he says on his website “in the past seven years 1,800 of my clients have received over $300 million and hundreds more are in the pipeline…A diagnosis of one of 23 ‘specified’ cancers and typically 250 work days in a specified timeframe are the basic requirements.”

An “independent claims advocate,” Mr. Frowiss has run full-page advertisements in Long Island newspapers: “Brookhaven National Lab Employees With Cancer,” they are headed. They note that “BNL employees…are likely now eligible for lump sum tax free base awards of $150,000, possibly to $400,000, plus medical benefits.”

The case against BNL by non-employees who are now not being allowed the compensation of BNL employees and their families for exposure from BNL radioactivity originally specified damages caused by BNL radioactivity.   It is titled Ozarczuk v. Associated Universities, Inc.

Associated Universities is the entity that managed BNL, at first for the U.S. Atomic Energy Commission (AEC) which set BNL up in 1947  at Camp Upton, a former Army base on Long Island, to do atomic research and develop civilian uses of nuclear technology.

The AEC was eliminated in 1974 by Congress for having a conflict of interest with its mission of both regulating and at the same time promoting nuclear technology in the United States. Its regulatory function was given to a Nuclear Regulatory Commission (NRC) and promotional activities to a Department of Energy which took over operating BNL and the other federal nuclear labs and the other nuclear facilities.

The defendants in the action—Associated Universities—managed BNL from its start until 1998 when it was fired by the DOE because of widespread contamination at BNL and DOE’s determination that it was a bad overseer of BNL operations. The two nuclear reactors at BNL were found to have, for many years, been leaking radioactive tritium into the underground water table on which Long Island depends for its potable water supply.

Associated Universities—which continues with other activities for the federal government—includes Harvard, Yale, Princeton, Columbia, Cornell and Johns Hopkins Universities, University of Pennsylvania and University of Rochester and Massachusetts Institute of Technology. DOE replaced Associated Universities in running BNL with a partnership of Stony Brook University on Long Island and Battelle Memorial Institute of Ohio.

The lawsuit is named for Barbara Osarczuk who lived just outside the BNL boundary in North Shirley and developed breast and thyroid cancer that she attributes to BNL pollution.

The lawsuit charges that “actions of the defendant were grossly, recklessly and wantonly negligent and done with an utter disregard for the health, safety, well-being and rights of the plaintiffs.” It further accuses BNL of “failure to observe accepted industry standards in the use, storage and disposal of hazardous and toxic substances” and BNL itself of being “improperly located on top of an underground aquifer which supplies drinking water to [a] large number of persons.”

Initially brought by 21 families, the lawsuit now has 180 families as plaintiffs.

The attorneys representing them are led by two prominent lawyers, A. Craig Purcell of Stony Brook, Long Island, a former president of the Suffolk County Bar Association, and Richard J. Lippes of Buffalo who represented Lois Gibbs and the Love Canal Homeowners Association in landmark litigation. That lawsuit took on the massive contamination in the Love Canal neighborhood of Niagara Falls caused by the Hooker Chemical Company which resulted in widespread health impacts to residents of the area. It led in 1980 to the creation of the federal Superfund program to try clean up high-pollution sites in the United States.

Mr. Purcell said that after the many years of back-and-forth court rulings, the plaintiffs have the judicial go-ahead to sue for “loss of enjoyment of life, diminution of property values and the cost of hooking up to public water.”

Mr. Lippes said that “the lab was supposed to monitor anything escaping from it—and didn’t do it.” The attitude of BNL, he said, was that “every dollar spent for safety or on environmental issues was taking away from research.” The lawsuit “should have been resolved years ago, but there has been intransigence of lab administrators not wanting to be held responsible.”

BNL was designated a high-pollution Superfund site in 1989. The large amounts of radioactive tritium—H30 or radioactive water—were found to have been leaking from BNL’s High Flux Beam Reactor in 1997. That nuclear reactor was closed by the DOE and then a smaller reactor was found to be leaking tritium too and was shut down.

There are now no operating nuclear reactors at BNL.

Still, BNL remains closely connected to nuclear technology. In 2010, BNL set up a new Department of Nuclear Science and Technology with a multi-million dollar yearly budget.

BNL’s announcement at the time quoted Gerald Stokes, its associate director for Global and Regional Solutions, as saying: “BNL’s long involvement and considerable experience in nuclear energy make it a natural place to create such an organization.” On BNL’s website currently is a page headed, “Exploring Nuclear Technologies for Our Energy Future” which discusses the department.

Long Island environmental educator and activist Peter Maniscalco says: “The Brookhaven scientific culture still doesn’t understand the interrelationship between humans and the natural world and the lethal consequences their work in nuclear technology imposes on the population and environment of the world. They still don’t understand that nuclear power is a polluting, deadly technology,”

The book “Welcome to Shirley: A Memoir from an Atomic Town” by Kelly McMasters links widespread cancer in neighboring Shirley to radioactive releases from BNL. She taught in the Columbia University writing program and Graduate School of Journalism and is an assistant professor and director of publishing studies at Hofstra University on Long Island.

Her book tells of how the government sought a nuclear facility “built far from any heavily populated areas.” She writes that the AEC “and the scientists themselves could have taken a look around and realized the…homes and neighborhoods sprouting up around their compound were too close to chance the radioactive nature of the work they were conducting…But none of this happened.”

The book was short-listed by Oprah Winfrey. Her magazine, O, said of it: “A loving, affecting memoir of an American Eden turned toxic.”

“The Atomic States of America,” based on the book, received among its honors a special showing at the Sundance Film Festival. It got good reviews.

The review in Variety noted that Shirley “was in unhappy proximity” to BNL “around which skyrocketing cancer rates were written off as coincidence or an aberrant gene pool.” It noted the appearance in “The Atomic States of America” of Alec Baldwin, “a lifelong Long Islander,” who in the documentary calls BNL scientists “liars and worse.” The review said that “in following McMasters’ work, the film builds a convincing case about cancer and nukes,”

In the first book I wrote about nuclear technology, “Cover Up: What You Are Not Supposed to Know About Nuclear Power,” published in 1980, I reprinted pages from BNL’s safety manual as an example of dangers of radioactivity not being taken seriously at BNL.

The manual advised that people “can live with radiation.”

“Is Radiation Dangerous To You?” it starts. It tells BNL employees: “It can be; but need not be.” It states: “If you wear protective clothing, wash with soap and check your hands and feet with instruments, you are perfectly safe.”

Attorney Purcell said that a “conference date” for Ozarczuk v. Associated Universities, Inc. is scheduled for February 22 in New York State Supreme Court in Riverhead, Long Island and a “court date” for February 25.

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