Suffolk Closeup: Brookhaven National Laboratory to be tested in court

Next month, a 20-year-old class action lawsuit charging Brookhaven National Laboratory (BNL) with contaminating neighborhoods adjacent to its sprawling campus will be heard again in New York State Supreme Court in Riverhead.

Since it was first brought in 1996, the matter has gone back and forth between the State Supreme Court and the Appellate Division several times, as BNL has tenaciously fought the suit.

Last July the Appellate Division — the judicial panel over the Supreme Court in New York — ruled the case can move to trial.

BNL was set up by the federal government in 1947 to conduct research into atomic science and develop civilian uses of nuclear technology. In 1989 it was designated a high-pollution, “Superfund” site by the federal government, which triggers remediation efforts. In 1997, after 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 U.S. Department of Energy.

A smaller reactor, found to be leaking tritium, too, was later closed. There are now no operating nuclear reactors at BNL.
Originally brought by 21 families, the long-standing class action lawsuit now has 180 families as plaintiffs. The attorneys representing them are led by A. Craig Purcell of Stony Brook, 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 litigation.

That successful lawsuit in 1980 took on the massive contamination in the Love Canal neighborhood of Niagara Falls caused by the Hooker Chemical Company. Because the chemical company’s actions were found to have resulted in widespread, serious health problems to residents of the area, the federal Superfund program was created.

The case against BNL getting a new hearing next month is titled Osarczuk v. Associated Universities, Inc. Associated Universities is the entity that managed BNL, first for the U.S. Atomic Energy Commission, which set up the laboratory on a former U.S. Army base in Suffolk, and then the DOE, which replaced the AEC after the agency was disbanded by Congress in 1974. (It was eliminated for having a conflict of interest with its mission of both regulating and at the same time promoting nuclear technology in the U.S.)

Associated Universities Inc. — which included Harvard, Yale, Princeton, Columbia, Cornell and Johns Hopkins, among other universities — managed BNL from the laboratory’s start in 1947 until 1998 when it was fired by the DOE because of widespread contamination. The DOE replaced Associated Universities with a partnership of Stony Brook University and Battelle Memorial Institute of Ohio.

The lawsuit is named for Barbara Osarczuk, who lived just outside the BNL boundary in North Shirley and developed breast and thyroid cancer that she attributes to BNL pollution. Mrs. Osarczuk has now moved off Long Island but remains a party to the legal action against the laboratory.

The lawsuit charges that “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 further accuses BNL of “failure to observe accepted industry standards in the use, storage and disposal of hazardous and toxic substances” and BNL of being “improperly located on top of an underground aquifer, which supplies drinking water to [a] large number of persons.”

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 “the lab was supposed to monitor anything escaping from it — and didn’t do it.”

The attitude of BNL, he added, 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.”