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Valley News Dispatch

U.S. Supreme Court ends lawsuit against Apollo nuclear fuels plant operators

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The U.S. Supreme Court refused to hear lawsuits that claim Apollo area residents suffered from cancer caused by radiation from the former Nuclear Materials and Equipment Corp. The NUMEC plant, seen in this photo circa 1961, made nuclear batteries known as radioisotope thermoelectric generators. The plant, which was located just off of the Apollo Bridge, was razed decades later.

More than two decades of legal wrangling over whether a former Apollo nuclear fuels plant caused cancers in Armstrong County has been decided by the U.S. Supreme Court.

The country’s highest court denied hearing an appeal on Feb. 20 to reinstate lawsuits filed by about 70 Apollo-area residents alleging that radioactive emissions from the plant caused cancer.

The Supreme Court’s rejection ends the eight-year federal court case that sputtered and never made it to trial.

That’s unlike the first series of lawsuits filed by several hundred plaintiffs that lingered for 14 years in federal court, ending with a settlement of more than $80 million.

“I just wanted to make these big companies aware they just can’t ruin people’s lives,” said Mary Ann Peace, 68, of North Apollo, a plaintiff who has a rare blood cancer.

Attorneys for the defendants Babcock & Wilcox Power Generation Group and the Atlantic Richfield Co. didn’t immediately return phone calls for comment.

They operated a uranium fuel-processing plant founded by the Nuclear Materials and Equipment Corp., or NUMEC, in Apollo and a plutonium plant in Parks Township. The plants operated from about 1957 to the mid-1980s.

The companies have long maintained that their operations didn’t cause the alleged cancers in Apollo and other surrounding small towns.

The individual lawsuits for the 70-plus area residents were filed by attorneys from Motley Rice’s law firm in Providence, R.I., and a Pittsburgh law firm, Goldberg, Persky and White.

“There are little people here,” Peace said of the low-income, rural communities. “We count, too. We have lives and families, and we hurt.”

Diagnosed in 2010, Peace, like the other plaintiffs, signed onto the lawsuit after the door closed to be included in the first series of lawsuits filed in the 1990s by Fred Baron, a deep-pocketed, Texan attorney who was a pioneer in asbestos litigation.

Peace, who was active much of her life, now reports being fatigued and anemic as she lives with her incurable cancer.

“It robbed me of the freedom to do what I wanted to do,” she said.

One of the lead attorneys on the case, Jonathan Orent, of Motley Rice, agrees.

“We are incredibly disappointed and, quite frankly, devastated by this decision to allow an injustice like this to happen,” he said.

Patty Ameno, 66, of Hyde Park said, calmly, “I’m mad as hell, and I am far from being done with this.”

Ameno, an activist working on local nuclear issues for about 30 years, blames Motley Rice, the firm she recruited, for a “calamity of errors and missteps.”

“The residents’ defeat happened at the hands of ineffective counsel, thus ending these people’s chance to even get before a jury.”

While this is not the first time Ameno has criticized the law firm, Orent had only compliments for Ameno.

“I commend her long-standing commitment to the cause of justice in Apollo,” he said.

He added: “It’s been a great honor in my life to represent the people here.”

What happened?

While Motley Rice secured experts who conducted studies and analysis of the cancer rates as well as the plant emissions, the court simply was not satisfied with their science, according to Steven Baicker-McKee, an associate professor at Duquesne University School of Law.

The case was thrown out by a lower court, but the plaintiffs appealed and eventually lost the appeal. They then tried to get the Third Circuit Court of Appeals to reconsider, then finally a request to the Supreme Court to weigh in on that decision.

The Supreme Court is not an “error-correcting” court, according to Baicker-McKee. It’s not bound to examine decisions from lower court rulings, hearing only slightly more than 2 percent of the requests it receives.

Generally, it’s difficult to prove causation in lawsuits alleging death and personal injury from environmental contamination, he said.

“The science has not caught up with the courts,” Baicker-McKee said.

The lower court rulings on the Apollo case “doesn’t mean they didn’t have legitimate harm. It just means the court system demands a certain amount of proof, and in this case, they didn’t have it. It doesn’t diminish their real injuries; it means they don’t have a cut path for compensation of that.”

Orent said his firm built a case showing that the Apollo nuclear plant routinely had high emissions and that there were higher rates of cancers in the Apollo area. They sampled the dirt, where Orent claimed they could identify the plant’s “fingerprints” in area soils.

“Our clients were exposed to airborne contamination, but over time,” Orent said. The court was not satisfied because “we could show there was an increased risk (of cancer), but we couldn’t put a number to that risk.”

Orent believes that standard of evidence is impossible and not true to the spirit of state and federal law, citing one of the judges on the Third Circuit panel who believed the same.

Natalie Shutt, 58, of West Leech­burg, mother of one of the plaintiffs who has watched her daughter suffer with adrenal cancer, wants to know why, unlike the first series of lawsuits, she won’t get her day in court.

The Baron case, which settled in 2008 and 2009, was considered a milestone because few cases involving alleged injury from radioactive environmental exposure even make it to court, let alone result in a multimillion dollar settlement.

“Why isn’t a second trial allowed, and why aren’t we being given the same chance?” Shutt said.

Orent said he submitted similar evidence but thinks he was given a “different judicial interpretation” on what the law requires to have as evidence to proceed to a trial.

“Sometimes you get bad rulings,” said Orent, who hopes Apollo residents will try to fight to change the laws.

Mary Ann Thomas is a Tribune-Review staff writer. Reach her at 724-226-4691, mthomas@tribweb.com or via Twitter @MaThomas_Trib.

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