Real polluters unlikely to pay if government maintains lid on toxic secrets
The U.S. Department of Defense guided the National Security Council’s development of an official Obama administration position on the U.S. Army Corps of Engineers clean-up of toxic waste site in Pennsylvania. U.S. taxpayers will pay up to half a billion to clean up the former Nuclear Materials and Equipment Corporation toxic dump, even as plaintiffs sue NUMEC’s successors for hundreds of millions in wrongful death and health-related lawsuits. Meanwhile, the highest declassification panel in the United States may finally decide to release files confirming what top CIA officials have long claimed – that NUMEC’s sole original purpose was as a smuggling front that illegally diverted U.S. government-owned weapons-grade uranium into the Israeli nuclear weapons program in the 1960s.
US Energy Department documents (PDF) released under FOIA on June 19 reveal new details about secret discussions held by the CIA, DoD, FBI, NSC, and EPA about NUMEC a year ago. The 2012 meetings took place after a contractor ran into unexpected difficulties cleaning up the NUMEC waste dump in Parks Township. Emails coordinating the “scrambled together” Washington meeting reveal surprisingly top-down DoD and Obama administration leadership of the cleanup. “Pentagon is bringing their proposed path forward to NSC staff to discuss admin position…” states one email from Douglas Tonkay of the DOE’s Office of Environmental Management. But why would the DoD and White House be so intimately involved in a mundane toxic cleanup? Because the NUMEC question is anything but mundane.
Beginning in the 1960s, NUMEC received 25 tons of government-owned weapons-grade uranium to process into nuclear fuel for the US Navy and top-secret programs such as nuclear rockets and satellite fuel. NUMEC “lost” more HEU than any government contractor, leading to ongoing FBI, CIA and NSA investigations into whether the plant’s owners had collaborated with Israeli intelligence operatives and nuclear weapons development experts who frequented the plant. According to a Department of Energy report in 2001, the now-shuttered NUMEC now holds the dubious record of "losing" more weapons-grade uranium (PDF) than any other US processing facility. Although CIA officials such as former Tel Aviv Station Chief John Hadden publicly claimed NUMEC was “an Israeli operation from the start,” American presidents from LBJ to Obama successfully quashed all public requests for release of thousands of pages of NUMEC-related top-secret government documents. Official US treatment of NUMEC as a pollution issue, rather than a crime scene and challenge to governance, has punished direct victims sickened by the shoddy smuggling-front’s operations.
Soon the plaintiffs in a group of related wrongful death cases pursuing companies that took over NUMEC’s operations after 1967 could see their damage claims thrown out over use of expert witnesses. The raft of civil cases stem from decades of NUMEC’s toxic operations in Apollo and Parks Township, Pennsylvania. Plaintiffs and their expert witnesses claim ongoing emissions of radiation from the plants, located in defunct steel plant facilities too close to residential areas, led to sickness and early death of plant employees and secondary victims. Plaintiffs have filed testimony from Howard Hu, James Melius and Joseph Ring, a Harvard University radiation safety expert, in reports (PDF) tying NUMEC to victims.
In late May, DC powerhouse law firm and lobbyist Arnold & Porter filed motions seeking dismissals (PDF) under the Daubert standard on behalf of defendants B&W and ARCO. Daubert challenge is a courtroom tactic that – according to one RAND study – has excluded scientific expert testimony in civil cases to the great disadvantage of plaintiffs everywhere. According a court clerk familiar with proceedings, Magistrate Judge Robert C. Mitchell will soon issue a Daubert response for judges presiding over all NUMEC cases in the Western District of Pennsylvania courts. If Mitchell rules in the defendant’s favor – the most likely outcome – it will be only the latest victory excluding relevant facts from forums handling public accountability over ongoing fallout from NUMEC. Arnold & Porter had earlier insisted in court that each plaintiff provide a documented evidence chain (so-called "case management") of their personal toxic exposure to NUMEC. The original organizers of NUMEC/Apollo Industries sold their operations at a massive profit to Atlantic Richfield, which the now-defunct Atomic Energy Agency convinced to take over in exchange for a series of lucrative contracts.
Ironically, even if plaintiffs were allowed access to secret government files allowing them to claim damages as victims of an Israeli smuggling front, they would still likely be dealing with Arnold & Porter, which is also the Israeli government’s longest serving registered foreign agent law firm in the United States. It is no coincidence Arnold & Porter is legally involved in NUMEC suits. Arnold & Porter also recently sought reputational exoneration of NUMEC’s former president by unsuccessfully lobbying for a Presidential award. But the Interagency Security Classification Appeals Panel could soon provide current plaintiffs and other victims in Apollo and Parks Township the standing they need to pursue the real perpetrators. Their most logical target would be Israel’s massive annual US aid package.
ISCAP is the highest arbiter of declassification challenges in the US, and holds perceivable power. ISCAP recently forced the CIA to partially release a damage assessment about Israeli spy Jonathan Pollard. ISCAP now has five declassification challenges on its docket seeking release of highly sensitive NUMEC-related secrets classified at the highest levels. Files the ISCAP must soon rule on include LBJ’s original reactions to reports of NUMEC diversions from his CIA director, FBI and CIA files on smuggler David Lowenthal’s ties to Israeli intelligence and role financing NUMEC/Apollo Industries and Carter administration NSA staff material on how to deal with “Global Issues: Proliferation – Apollo, PA.” Releasing such material would buttress the current administration’s professed commitment to openness.
When President Obama entered office, he issued a directive that government agencies presume openness and no longer hide evidence of embarrassing or questionable information from public watchdogs using FOIA. The Obama administration is in a position to reverse what has been an ongoing cover-up. The NUMEC cover-up has unfortunately forced civil suits to target the wrong culprits – successor companies that took over the NUMEC fiasco in exchange for a series of lucrative contracts dangled by their regulator, the Atomic Energy Commission, rather than the true culprits. After the controversial AEC was shut down, attempts were made at NUMEC prosecutions. In January 2013 the National Archives revealed a previously nonpublic Carter administration Justice Department review of thousands of classified CIA files (PDF) on NUMEC to convict US operatives of the smuggling ring. Although the Carter administration DOJ was never able to anything about NUMEC due to the statute of limitations, the batch of thousands of still-classified CIA files may also soon find their way into ISCAP’s declassification pipeline. But are lawsuits the answer?
Rather than David vs. Goliath cases in court, a more appropriate accountability measure would be the deduction of $1 billion or more from Israel’s $3 billion annual US foreign aid package for the immediate compensation of the nuclear smuggling operation’s direct US victims. (See sample draft bill “To compensate direct victims of Israeli‐NUMEC nuclear material smuggling” PDF ) Unfortunately – rather than slick courtroom maneuvers from Arnold & Porter – direct victims would likely then have to face AIPAC and the Zionist Organization of America (which supplied two directors to the NUMEC front operations) efforts never to allow such overdue and properly targeted compensation to enter Congress. However a fair settlement for victims and immediate declassifications are both long overdue.
Grant F. Smith is the author of the new book Divert! NUMEC, Zalman Shapiro and the diversion of U.S. weapons-grade uranium into the Israeli nuclear weapons program. He is director of the Institute for Research: Middle Eastern Policy in Washington, D.C.