Ruling favors downwinders
In a major decision for Hanford downwinders, a federal judge has ruled that plutonium-making in the mid-1940s was an “abnormally dangerous” activity that put thousands of people in Eastern Washington at risk for thyroid disease after being exposed to radioactive iodine-131.
“The Court concludes that the I-131 emissions could result in potentially serious illness with serious consequences,” U.S. District Judge William F. Nielsen’s Nov. 3 order says.
Nielsen’s ruling means that plaintiffs alleging harm from Hanford’s radiation emissions won’t have to prove that government contractors DuPont de Nemours Inc. and General Electric Co. acted recklessly when they chemically separated uranium to make plutonium for nuclear bombs.
“This is a major ruling for the downwinders. It will also simplify the trial and bring the litigation closer to a conclusion,” said Louise Roselle of Cincinnati, lead attorney for the plaintiffs. At trial, attorneys will now only have to prove whether the releases of radioactive iodine-131 actually harmed specific individuals, Roselle said.
“We believe this decision is fundamentally wrong and merits appeal,” said Kevin Van Wart of Chicago, lead attorney for the Hanford contractors. “We still have years of litigation ahead of us.”
A March 2005 trial is scheduled for 11 “bellwether” cases – six for the plaintiffs and five for the defendants – an initial effort to determine an outcome for thousands of other plaintiffs who first sued in 1991 after a government study said the Hanford releases were large enough to increase health risks to people living downwind.
Washington state law imposes strict liability for abnormally dangerous or ultra-hazardous activities, Nielsen wrote in his order.
“If the activity is abnormally dangerous, then the defendants may be held strictly liable for plaintiffs’ damages, regardless of whether defendants exercised the utmost care in the conduct of their activities at Hanford,” the order says.
Other hazardous activities where strict liability is applied in Washington include fireworks displays, pile driving, aerial spraying of crops and the transport of large quantities of gasoline, the order says.
While the entire nation benefited from Hanford’s role in developing the nuclear bombs that were dropped on Japan and ended World War II, all the risk arising from the dangerous manufacture of plutonium was borne by those living downwind, Nielsen wrote.
“The innocent people who can prove they suffered harm should be compensated by the entire nation who benefited from the activity,” Nielsen’s order says.
Most of the releases of an estimated 740,000 curies of iodine-131 from Hanford’s plutonium plants occurred from December 1944 to December 1947, before the plant stacks were filtered, Hanford studies say.
Scientists working for the World War II Manhattan Project, the top-secret U.S. mission to develop an atomic bomb, knew by 1943 that iodine-131 could damage or destroy the human thyroid gland, Nielsen wrote. They also knew that they could protect the thyroid gland by administering potassium iodide pills, which block the uptake of the radioactive iodine.
No pills were ever administered to people living near Hanford. In the 1970s, Herbert Cahn, the former Benton-Franklin County health officer, suggested distributing the pills to protect people against a Hanford accident, but was told by his supervisors to drop the idea or be fired, according to a Spokesman-Review interview with Cahn.
Last year, the American Academy of Pediatrics recommended that the pills should be kept at day-care centers, schools and homes to protect the thyroid glands of children living near nuclear power plants. Tri-Cities officials again declined to act, saying a decision to stockpile the pills should be left up to individual families.
Scientists also knew as early as 1925 that iodine in cows’ diets was transferred to their milk – the main exposure pathway for people living near Hanford, Nielsen wrote in his order.