A class action lawsuit begun 20 years ago charging Brookhaven National Laboratory, an offshoot of America’s atomic bomb-building Manhattan Project, with contaminating communities adjacent to it will be moving ahead this month.
After World War II there was a push in the United States to build upon the secret government laboratories involved in the Manhattan Project crash program to build atomic bombs. A drive was on to develop other uses of nuclear technology and perpetuating the atomic establishment created during the war on which $2 billion was spent and 125,000 employed. .
Also, elite Northeast U.S. universities, such as Harvard, Yale and Princeton, were not involved during the war in the Manhattan Project. Concerned about coastal invasion, the U.S.kept Manhattan Project facilities inland. A key facility, Los Alamos Laboratory with the University of California its manager, rose in New Mexico, for example.
Brookhaven National Laboratory (BNL) was set up on Long Island, New York in 1947 by the U.S. Atomic Energy Commission (AEC), an entity the Manhattan Project morphed into. Its missions were atomic research and developing nuclear technology for civilian purposes—particularly nuclear power plants. It would be managed by Harvard, Yale and Princeton, among other universities, on a former Army base, Camp Upton, 67 miles east of Manhattan.
As BNL literature states: “At the end of World War II, the need was seen to continue the teamwork of Government and scientific institutions that had proven effective in wartime work in order to ensure the continued progress of nuclear science in peacetime. The wartime programs under the Manhattan [Project] District had given rise to centers of research and nuclear science that continue to be active…but no similar center had been developed in the Northeast…The establishment of a new laboratory near New York City was therefore proposed. As a result, Brookhaven National Laboratory was founded.”
This happened despite Long Island being one of the few well-populated areas of the U.S. dependent on an underground water for potable water. Thus, BNL nuclear facilities would be built on this sole-source aquifer. And, it was done despite the surrounding population.
The result: a radioactive mess at BNL involving Long Island water and serious health impacts on people in the communities near BNL.
The class action lawsuit charges the “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 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.”\
The defendant is Associated Universities, Inc. which managed BNL first for the AEC and then for the agency that succeeded it, the U.S. Department of Energy (DOE).
Associated Universities—which continues with other U.S. government contracts—is composed of Harvard, Yale, Princeton, Columbia, Cornell and Johns Hopkins Universities, University of Pennsylvania and University of Rochester and Massachusetts Institute of Technology.
Its management of BNL ended in 1998 when it was fired by the DOE because of widespread contamination at BNL and DOE’s determination that Associated Universities was a bad overseer of BNL operations. Two nuclear reactors at BNL were found to have been leaking radioactive tritium into Long Island’s underground water table for many years. BNL management was then switched to a partnership of Long Island’s Stony Brook University and Battelle Memorial Institute of Ohio.
Radioactive contamination caused by BNL is documented in the 2008 book “Welcome to Shirley: A Memoir from an Atomic Town” and an award-winning 2012 documentary “The Atomic States of America.”
Since it was first brought in 1996, the lawsuit has gone back and forth between the New York State Supreme Court and the Appellate Division, the judicial panel over the Supreme Court in York.
BNL lawyers have used delaying tactics—apparently in the hope that the “class” of those suing as victims, originally 21 families, would be reduced. But only one person has died and now the “class” has grown to 180 persons suing.
In July the Appellate Division 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.”
But, outrageously, the four Appellate Division judges ruled that radioactive contamination caused by BNL can no longer be part of the case. They accepted the argument of lawyers for BNL that, as they put it in their July decision, “the nuclear radiation emitted by BNL did not exceed guidelines promulgated by the federal Nuclear Regulatory Commission.” Thus the plaintiffs will now only be able to sue for other forms of BNL pollution, mainly chemical.
The U.S. Nuclear Regulatory Commission (NRC) was the other agency in addition to the DOE that the AEC was split into after the U.S. Congress in 1974 eliminated the AEC for having a conflict of interest in being as both a promoter and regulator of nuclear power. The promotion role was given to the DOE, the regulatory role to the NRC. However, the NRC has continued to boost nuclear power. It, like the AEC, for instance, has never denied a construction or operating license for any nuclear plant anywhere, anytime in the U.S.
Moreover, the BNL radioactive pollution will not be allowed to be considered despite the U.S. government in recent years paying out millions of dollars to BNL employees in compensation for their getting cancer after exposure to radioactivity at BNL. Also, families of 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 U.S. government’s “Energy Employees Occupational Illness Compensation Program.”
It covers not only BNL but the other U.S. national nuclear laboratories including Los Alamos, Livermore, Oak Ridge labs, as well as other U.S. government nuclear facilities among them its Savannah River Plant and Hanford Site.
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 at BNL and consequent cancer.
Joseph B. Frowiss, Sr., based in Rancho Santa Fe, California has been handling many of the cases involving former workers at BNL—and other U.S. government nuclear facilities—and their families. As he says on his website—http://www/frowiss.org/—“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 class action suit originally included damages caused by BNL radioactivity. It is titled Ozarczuk v. Associated Universities, Inc. for Barbara Osarczuk who lived just outside the BNL boundary in North Shirley and developed breast and thyroid cancer which she attributes to BNL.
The attorneys representing the plaintiffs 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 U.S. 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. In 1997, the large amounts of radioactive tritium—H30 or radioactive water—were found to have been leaking from BNL’s High Flux Beam Reactor. That reactor was closed by the DOE and then a smaller reactor was found to have also been leaking tritium and shut down.
There are now no operating nuclear reactors at BNL. But 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. https://www.bnl.gov/nst/
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,”
BNL’s involvement in promoting nuclear power has included its joining with the Long Island Lighting Company (LILCO) in a plan advanced between the 1960s and 1980s to build seven to 11 nuclear power plants on Long Island. BNL scientists worked hand-in-hand with LILCO attorneys at federal hearings on the scheme. One plant was completed, Shoreham Nuclear Power Station 1, but blocked from going into commercial operation by opposition by people on Long Island and local and state governments. Meanwhile, for many of those years, Phyllis Vineyard, the wife of BNL’s director, George Vineyard, was a paid member of the LILCO board, and William Catacosinos, a former BNL assistant director, CEO and chairman of LILCO.
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 is an assistant professor and director of publishing studies at Hofstra University on Long Island.
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. Its reviews included Variety noting that Shirley “was in unhappy proximity” to BNL “around which skyrocketing cancer rates were written off as coincidence or an aberrant gene pool.” The review cited 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.” It said “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.”