Hanford judge gets science lesson

Rads, curies, half-lives and thyroid tumors. The language of nuclear physics, atomic bomb-making and human illness was the lesson of the day Thursday as lawyers presented a science lesson to the federal judge in the Hanford downwinders’ case.

The science tutorial was held at U.S. District Judge William F. Nielsen’s request to get him up to speed for the March 2005 trial that pits thousands of ailing people against the Hanford contractors who made plutonium for the government’s nuclear weapons program starting in 1944.

The plaintiffs claim in the 1991 lawsuit that they got thyroid cancer and other illnesses after Hanford released clouds of radioactive iodine-131, which fell on grass and tainted milk in downwind communities from Walla Walla to Spokane.

‘Ultra-hazardous’ debate

Lawyers for both sides clashed in oral arguments on whether Nielsen should declare Hanford’s plutonium-making mission during World War II and the early decades of the Cold War an “ultra-hazardous activity.”

Arguing for the downwinders, attorney Peter Nordberg, of Philadelphia, said there’s precedent for such a ruling from the famous case of Karen Silkwood, the nuclear whistleblower at a Kerr-McGee plutonium fuels plant in Oklahoma who was killed in 1974 in a one-car accident on her way to meet with a New York Times reporter about problems at the plant. The 10th U.S. Circuit Court of Appeals ruled that the Kerr-McGee plant was an ultra-hazardous activity; her case was settled out of court in 1986 for $1.3 million.

If Nielsen rules that Hanford was also an ultra-hazardous facility during its plutonium-making days, the plaintiffs won’t have to prove contractor negligence, Nordberg said in an interview.

“Legal liability would be a given. We’d only have to argue causation” – that the iodine-131 released from Hanford could have caused the downwinders’ thyroid cancers and other illnesses, Nordberg said.

Strict liability might apply if Hanford had had a series of accidents or a major explosion, but not for routine radiation releases, said Randy Squires, an attorney for the defendant contractors, including DuPont de Nemours Inc. and General Electric Co.

“When the plants were built, every effort was made not to cause harm,” Squires said. The contractors argued with the government to delay chemically separating the nuclear fuel to extract plutonium so the unwanted radioactive byproducts, including iodine-131, could decay away to less-harmful levels, but the government refused to delay the production schedule, Squires said.

The plaintiffs’ assertion that an estimated 740,000 of curies of radioactive iodine-131 was released from Hanford is “meaningless,” Squires said. “The question is, how much iodine-131 that went up the stacks actually got to a plaintiff? Our perspective is, very little … You can’t say any release, no matter how small, leads to strict liability,” Squires said.

Nordberg scoffed at that assertion.

“Does that mean that there would be no concern today if Hanford started up again and released the same amount of iodine-131?” he asked.

Radiation released from Hanford “is rivaled only by the explosions of the test weapons themselves,” he said, in a reference to open-air weapons tests in the Pacific and Nevada that exposed hundreds of thousands of people to radioactive fallout.

Later in the day, another lawyer for the contractors, Kevin Van Wart, said Hanford’s plutonium plants weren’t filtered in the mid-1940s and most of the radioactive iodine went up the stacks. But the iodine-131 hazard decreased markedly by the early 1950s when scrubbers were installed in the stacks, he said.

Perspective from downwind

Two dozen Hanford downwinders attended the daylong session, including plaintiff Robin Lowry of Sagle, Idaho, who was there for the first time.

Lowry was born in January 1949 in Walla Walla and was a baby during the December 1949 Green Run, a deliberate release of a large burst of iodine-131 from Hanford in a secret military test to track the dispersion of the radioactive cloud. A rainstorm that day brought much of the radiation down on Walla Walla, documents show.

Lowry, 55, said he was diagnosed with thyroid cancer this year, after a doctor discovered a lump in his throat during a medical exam for an insurance policy.

The public wasn’t told about the Green Run until 1986, when The Spokesman-Review and several Hanford watchdog groups obtained documents on Hanford’s early releases through the Freedom of Information Act. It shocked the public and prompted calls for full disclosure of Hanford’s past.

Priscilla Keim came from Arizona to observe Thursday’s hearing. She said she was appearing on behalf of her first husband, Robert Heath. Heath, born in Walla Walla, died in 1987 at age 59 of bone and liver cancer. He worked in the wheat and pea fields of Walla Walla during the 1940s and 1950s and was exposed to the Green Run, Keim said.

“They didn’t run these plants safely. The Green Run was done on purpose,” said Laverne Kautz, 81, of Ritzville, another plaintiff who said she’s lost 31 cousins, eight aunts and her mother to cancer.

Although the science lesson for Nielsen was supposed to be neutral, the lawyers clashed over the significance of the Hanford Thyroid Disease Study, which concluded in 2000 that it had found no link between Hanford’s radiation releases and thyroid disease.

Van Wart has said the findings will be a tough hurdle for the plaintiffs to overcome before a jury. Brian Depew, of Los Angles, arguing for the plaintiffs, said the Hanford study is statistically weak and other studies have conclusively shown a connection between iodine-131 and thyroid disease.

The next status conference in the Hanford case will be Dec. 14.