Trisha Pritikin: Okay. It is January 15th, 2019, and we are in Lynnwood, Washington. I am interviewing Tom Foulds. Tom, would you please spell your name?
Tom Foulds: Yeah. Tom T-o-m, Foulds F as in Frank, o-u-l-d-s.
Pritikin: Okay. Thank you very much. Now, Tom I’m going to ask you a set of questions, but feel free to add something else if you think of something as we go along.
I’ll be asking you some questions, and Karen [Dorn Steele] will be asking you some questions.
Foulds: Sure.
Pritikin: So, the first thing I’d like for people to know is a little bit about your background, before you became one of the plaintiff’s counsel in the Hanford [Nuclear Reservation] litigation.
Foulds: Okay. I used to have a very, very profitable law practice, solo, where I represented the property carriers on major losses. You see, the insurance liability carriers go to great lengths for big investigations. But the property half of the insurance company, the ones that insure the property—not liability—the property. When they have a loss, they just go ahead and pay it, and close their books. On really large losses, you could have a two-million-dollar loss, and they’d close their books.
What I would do on these very large losses—and fortunately, you don’t have too many of those in the State of Washington—but if it’s a million-dollar loss or more. And it could be hotels, it could be other big structures worth millions of dollars. When I find out about it, I would go to that area and then get ahold of the carrier that was going to pay that loss or already paid it, and asked them if they wanted to try to get their money back.
Virtually all major losses are insured. They have, in most cases—unless it’s their policy holder themselves—but it’s usually a third party that’s potentially responsible for this big property loss. It’s either a device manufacturer or a contractor, or the people that were operating the facility, but they were not the owners. They would have a potential liability. I would go and find out who their liability carrier was, and then I’d get ahold of these liability carriers and tell them, “I’m going to bring suit.” In most cases, I would file suit, just get it on record and let them know I was serious. In most cases, I could get a settlement.
Their client was the insurer that paid the loss. Now, the normal practice in the industry, they’ve paid a loss, and that’s part of being in the insurance business. Then they go on to the next situation. But when I approached them and they were sued, their attitude was, anything they could get at all was like finding money.
Because you have to recall or remember, the practice in the industry in those days was to pay these big losses, and then go on to the next one. Because that was part of the insurance business. Now, if I could bring them a recovery, even 20% recovery was like finding money. They were delighted. Of course, I would normally do a much better job than just 20%. If I could get 60 or 70 or 80%, they were delighted.
I had a practice that I established doing that. Nobody else was doing that same thing at the time, getting money back for these property carriers. My practice extended to the Pribilof Islands and the Aleutian chain.
I had a big dock problem up there. All the way back to the States, and all the way to hotels in Puerto Rico. San Juan [Puerto Rico] DuPont Plaza Hotel was one of those things I worked on. I really practiced nationally, because these occurrences that were suitable for what I was doing were all over.
Pritikin: When did you first become involved representing Hanford downwind plaintiffs?
Foulds: What happened there: I was on an airplane and a guy I knew, I had worked with one way or another, a guy, Stan Chesley, he said, “You’re from Washington. Have you ever investigated what’s going on in the Tri-Cities?”
I said, “I have no idea.”
I checked that out. I was originally oriented towards property losses. Then I realized, that was not the real problem. That Tri-City area had these massive—a great number of thyroid illness, and it was very, very prevalent. For some reason or other, I forget the circumstances, the fact that I was looking into a potential recovery for these people ignited a great deal of interest.
See, normally, if you’re not dealing with insurance companies, if you’re dealing with individuals, it’s not professionally correct to go out and try to obtain law business and law representation of individuals. But the fact that I was checking into this got some publicity, and I had all sorts of these people calling me up or writing in a letter, wanting to be represented. That’s how I got representing Hanford thyroid individuals.
Pritikin: Was this about the mid-1980s?
Foulds: I’d say so.
Pritikin: For people who are not familiar with the Hanford downwind litigation, could you say a few words about that, what it was about?
Foulds: Yes.
Pritikin: Just to summarize that? Thanks.
Foulds: Well, what it was about was—first of all, there was about 25,000 people in the State of Washington that had been affected by releases from Hanford. Now, the type of releases of Hanford—first of all, Hanford was a facility for the purpose of producing plutonium, and the plutonium was there for the purpose of creating plutonium bombs for national defense. The Hanford facility was owned by the Department of Energy. The purpose of the Hanford facility was to produce and create plutonium for what was deemed by our authorities “necessary for national defense.”
Pritikin: For people who are still trying to learn about the Hanford downwinder litigation, this was litigation against the contractors, correct? That had run the facility?
Foulds: Yes, it was. There was two. DuPont built the facility, and after it was all done, DuPont decided that, “We’ve done our work,” they’d built this thing. They left, and then the contract from that point on was handled by General Electric. General Electric was the operator of the Hanford facilities—as far as I know, up to recent dates. But especially during all of the years when most of the plutonium was being produced, General Electric was the contractor.
Pritikin: This lawsuit was against the contractors rather than against the government. It was filed under Price-Anderson [Nuclear Industries Indemnity] Act. Is that correct? Public liability action?
Foulds: Yes and no. It was filed against General Electric, but the actual responses to the litigation and the opposition to any recovery came fundamentally from the Department of Energy. The Department of Energy was really telling General Electric what they wanted. That’s the best answer I can give you on that.
Now, I think Price-Anderson, that act really did not cause or enable the litigation control. You see, as long as any recovery effort was going to be made, it would have to be made against the operator, General Electric. Because technically, you weren’t permitted to bring a suit directly against the U.S. government. But even though you brought the suit against General Electric, it was the Department of Energy that controlled their response. Any negotiations to do anything had to be approved by the Department of Energy.
Karen Dorn Steele: In 1988, I believe it was, a big nuclear case, a big toxic tort case, the Allen case, was rejected by the Supreme Court. Many lawyers decided to back out of the Hanford case at that time. Why did you not back out? Why did you continue to want to represent the downwinders?
Foulds: First of all, I felt that I could circumvent any legal opposition. That’s number one. I forget the rationale in this case that you mentioned, but I did not believe that that would prevent my effort. There was a number of legal defenses that were raised. Every one of them, upon analysis—in fact, I had a whole part of this summary, but I didn’t bring it today—but I could give you chapter and verse why every one of those legal defenses that were raised could be circumvented and were.
Pritikin: In the beginning, when the individual personal injury cases were filed before everything was consolidated, how many clients did you represent?
Foulds: It’d be hard for me to tell you how many. I’d say this: I had several thousand plaintiffs that just suffered hypothyroidism. Not thyroid cancer, hypothyroidism. I was able to get a recovery for between two to three thousand of those persons. There were many, many more that suffered from the releases that never did come far enough to be represented by anyone. They didn’t get ahold of me or anyone else.
But I do know, just based on the understanding of how widespread and how serious it was that—as I think I mentioned before—there was estimated about 25,000 individuals that were affected by the releases from Hanford.
Now, the releases I’m talking about: in the production of the plutonium, one of the very first steps is dissolving the fuel rods out of the fuel cells in nitric acid. To explain what happened, let me make [inaudible] there. I think I can do a better job if I tell you a little bit about how they made, because that explains where this thyroid problem came from.
To make a reactor, the first thing they do is build a giant block of graphite. It’s about 25 feet high and 30 feet long and about 30 feet deep. Now, in the face of that were over 2,000 tubes through this block of graphite. They were laid parallel, close to one another, so you had a series of 2,000 of these tubes going all the way through, from the face of the reactor to the rear. Now, the so-called fuel cells that were loaded into these tubes were aluminum cylinders about eight inches in length and nearly two inches in diameter.
In each, they were aluminum. They were forced into these tubes that I told you about from the face of the reactor all the way to the rear. Each one of these fuel cells, as I said—about eight inches long and about two inches in diameter—it was loaded with uranium-238 and also an isotope of uranium that they had discovered, 234, which itself emitted neutrons.
Foulds: Gradually, a neutron flux was developed. The initiation of the original neutrons would cause the rest of the uranium-238 to start activating and creating what you call a neutron flux. As I mentioned earlier, the tubes that they were in were close to one another, the parallel tubes. The neutron flux in one horizontal tube full of fuel cells would also be affected, to some degree, to the near, adjoining fuel cells. They reinforced one another.
What happened is, the uranium-238 was gradually transmuted into plutonium-239. That was the end product. Now, I want to get around to the releases. After these fuel cells were left to do their work for the requisite time it took to really make sure that the process from uranium into plutonium was completed, then the fuel cells from the face—there would be this real powerful jack. It would start pushing the fuel cells out of these tubes from the front, pushing them out. They would come out the rear, and drop into water that was there to cool them. Then they were transmitted to the plant that was going to process the material in the fuel cells into the product that they were looking for.
The first thing that happened was, after they were pushed out of the reactor. Incidentally, there were nine of these reactors during the maximum production. You can imagine how much stuff was being created. After they were pushed out the back into this water bath, then they were taken and dumped into nitric acid, and that melted or dissolved the aluminum jacket on these fuel cells and released plutonium nitrate.
Also a number of other isotopes that were created in this process—they were isotopes, not what they were looking for. It was just plutonium that they wanted, but this nuclear process that converted the 238 into plutonium also created a number of other isotopes, one of which was iodine-131, which is a radioactive gas that deposits downwind.
This radioactive gas, iodine-131—as I’m sure you both are aware—that was the primary danger, health effect, as a result of this operation. There was all sorts of other isotopes and radionuclides created, particles that they have never been able to quantify how many or what kind of a problem they created—but they certainly existed, in great numbers. But the one thing they were able to quantify was the amount of iodine-131.
When this whole operation was first developed, the objective was—in the producing plant, they knew these releases from the dissolving in nitric acid, when they dissolved these fuel cells, they knew there was going to be a release of other products such as iodine-131. The operations were designed so their exhaust was put into a chimney 200 feet high, and tremendous pressure from enormously powerful blowers push the plume up the 200 feet.
They wanted to get it high enough so when it would release, the plume would be high enough and under enough pressure, that it would travel before it fell to ground, it would travel beyond the site. They sent it down to where all the downwinders lived, in fact. But their objective was really to protect the site. They wanted it moving fast enough and far enough to clear the site, because they were concerned about the danger to workmen. That part of the design, they were not concerned with the downwind pollution that resulted.
Pritikin: Was there an estimate to how much radioactive iodine was released out the stacks?
Foulds: They empirically discovered that if you had a release from the facility of over one curie per day, that you would have a health problem. They knew, going back, how they made that determination. That was essentially also empirical.
Among other things, they realized that a certain amount of iodine-131 would damage the thyroid of sheep. Based on that knowledge and other knowledge they had concerning the health effects of iodine-131, they recognized that the safe limit of operation would be one curie a day.
In actual fact—and the records show this—over about a 25-year period, they had releases vastly in excess of one curie per day. Many days, they might have 30 curies, 40 curies, 50 curies, 10 curies. That went on for a number of years, and they knew that was happening.
Just a small digression: they also realized that if the person—and they knew this from the animals, and they also knew from personal exposure. If the person in the downwind area that was vulnerable to this deposition, if they had taken thyroid iodine, if they had taken non-radioactive iodine—regular iodine like you might buy at your store, iodine salt that is not radioactive. If they had publicized to the population that everyone should start taking iodine salt, because they knew that that reduced their exposure by about 80%.
But even though they discussed this idea of publicizing this for caution to the public, they decided against it. Because they were so concerned about the public being outraged or very upset by finding out what was going on.
Dorn Steele: In these years of very high emissions that exceeded their own safety standards, was there ever a public warning?
Foulds: No, there was never a public warning. It was not until the Freedom of Information Act forced a disclosure of these Hanford operating documents. That was the first time there was an admission to the public of what was really going on, because the documents proved what was really happening.
Karen, I believe you were responsible, or at least partially responsible, for getting those documents released. That’s what told the story for the first time.
Pritikin: Tom, can you talk about how far the airborne radiation traveled? Did it just go into Washington State or was it beyond that?
Foulds: Yeah, it was into Montana. I can’t really tell you anything beyond the Montana exposure, because eventually, the iodine-131—first of all, it had a half-life of just something like eight days. It would gradually have diminished what was 100% down to 1 or 2% in a relatively short time.
Of course, even with short half-lives, if you’re producing new iodine every day, 131, that short half-life does not protect the downwinders. It wasn’t until they stopped these major releases that the short half-lives really eliminated any danger in the future from the iodine-131.
Pritikin: Tom, are children at a higher risk than adults for these exposures? Can you talk about that just a little?
Foulds: Yes, they were. In the charts that they made of the exposures, to compute the dose to a child, you used a methodology that took into account the increased vulnerability that a child might have.
Foulds: There was two problems from this iodine-131. One was the air concentration, and the other was the deposition. The deposition—meaning, deposits on the surface—went on the pastures that were used by cows, and it ended up getting into their milk.
But at Hanford, a guy named [Joe] Soldat developed the amount of exposure from deposition on the ground. Someone else—this was from another DOE facility in South Carolina, I believe—they developed: if you’ve got so much on the ground, what would be the ratio that was in the cow’s udder? They were able to put those two different mathematical models together, and come up with the result of how much was supposed would be in the cow’s udder. They had a figure that they could directly compute the dose to anyone drinking milk, just from knowing those various two factors that I mentioned.
Dorn Steele: Tom, you mentioned that there was no public warning of these big releases. But did Hanford officials secretly look for deposition patterns in animals or test any human thyroids during this period? Or do any secret tests of the population?
Foulds: Yes, they definitely tested the sheep. That was their main test protocol was, what happened to the sheep and their sheep thyroids. The DOE facility had empirically determined the equilibrium ratio of ground deposition to milk in cows.
The other equilibrium ratio empirically determined by a guy named Simpson at Westinghouse Savannah River DOE facility was a ratio of air concentration to ground deposition. When you combine these two empirical ratios, you get the third one, which is the amount of air concentration to the amount in the udders of milk cows. In other words, if you knew what the air concentration was, you could determine, based on these ratios—which were all empirically established—how much was going to be in that milk.
Pritikin: I want to broaden the focus for just a second, because I would assume there were some people who came to you with other health issues, not just thyroid disease or thyroid cancer. Did you have other people coming to you saying they’d been exposed, more than likely? And they had other forms of cancer, or perhaps they were exposed to the Columbia River?
Foulds: Yes, yes. First of all, I should say this. There were numerous people with other types of cancer. The problem that I had as an attorney was that I didn’t have an accumulation of study specifically concerning—you needed two things: the health effect, a specific cancer—not thyroid, but another kind of cancer to a certain radioactive exposure.
I’m certain that these other cancers were created in many cases by the radioactivity, but I didn’t have the study that would say, “This kind of cancer”—let’s say lung cancer—“We have is caused by a certain radionuclide.” Of course, that’s not enough. “And, we can also show there was a wide exposure to that specific radionuclide.” These other cancers could not be quantified and analyzed. The only one that we could for sure was the thyroid damage from iodine-131.
Interestingly enough, there was a guy that made a study. It never got much publicity, but he studied the rate of cancers of any sort to persons that lived on counties that were adjoining the Columbia River, and who were using Columbia River water for their irrigation and for their own ingestion.
He determined that those counties that were doing that had a significantly higher rate of all sorts of cancers, not specific, but general rate of how many cancers per 100,000 people that they were able to develop. These counties were downriver from Hanford along the Columbia. They had significant greater incidence of cancers of all sorts. He was able to establish that quite definitely.
Pritikin: Did that help in the river cancer exposure plaintiffs? Did that help their recovery?
Foulds: Yes, I’m sure it would’ve helped. The river cancers—well, first of all, there was far greater number of curies released in the water than there was released in the atmosphere. Far, far greater. I did not have any clients that I represented seeking recovery for river exposures. Those persons certainly existed. I don’t know if they ever got any representation. But there was unquestionably a serious exposure to very damaging radionuclides.
Well, first of all, it was conceded there were over two million curies released in the Columbia River from Hanford. Where that came from was these fuel cells in these horizontal tubes that I was telling you about that were undergoing radiation flux, converting into uranium into plutonium. They also created a great deal of radioactivity in the cooling water that was adjoining these tubes to keep them cool. The cooling water was taken in from the river, put through these reactors, and then dumped back into the river.
The problem with that is, when this cooling water would cool the exterior of these horizontal tubes that held these radioactive cells, there were elements in the cooling water. Normal elements of very small, discrete amounts, of various elements that we don’t pay any attention to, because they’re harmless in their normal state. But they happened to be in the cooling water.
The problem with the cooling water is that when it was forced through the reactor to cool the tubes, these elements that were in the cooling water—normally harmless—were made into new radioactive isotopes. As a result, there was an enormous amount of curies, of radioactivity, released in the water. I can tell you this: there was over two million curies released during the operation of Hanford. The radionuclides: sodium, phosphorous, arsenic, etc., etc. Ruthenium, iodine, cerium, strontium, barium, plutonium.
Now, the operators knew this was going on at one time. In the mid-‘50s, [Herbert] Parker, who was the chief health physicist at Hanford—he estimated there was 8,000 curies of radioactive materials per day being released in the river. That’s per day. At the peak year for releases, the discharges averaged 14,500 curies per day.
Now, going back to what I think I mentioned earlier, that the limit, before danger would be affected to ground contamination, would be anything from the operation more than one curie a day. Now, here we’ve got the releases of water containing an average of 14,000 curies per day. The first figure was back in 1954. By 1960, it was up to 14,500 curies a day.
What happened is, in the food chain, the stuff that’s most immediately affected are the tiny, virtually invisible little larvae in the water. But that gets eaten by a small fish, and the small fish gets eaten by a bigger fish.
There was what you call a bioconcentration. It goes up in the food chain. What would be harmless stuff just on the bottom—little tiny invisible organisms, like plankton, for instance—by the time it went through this food chain, you would end up with a high concentration in fish that people ate. They would go to the river and fish, and of course, they would eat that fish not realizing how many radioactive isotopes were in the fish.
Pritikin: Were there any warnings given to anyone to not be going in the river for recreation, or to not eat the fish coming out of the river at any time?
Foulds: No, no. First of all, you have to realize the operators knew what was going on, but there was no public warning, until this Freedom of Information Act disclosed what was going on. Everything, all this stuff I’m telling you about, was all kept totally secret.
Pritikin: I’ve heard that some of the Native Americans would eat the entire fish, just because that was a cultural practice. Would that have given even higher exposure to those individuals?
Foulds: I can’t tell you. But the phosphorous-32 and zinc-65 have the greatest significance, and they contribute most of the dose to people drinking river water.
Pritikin: It’s my understanding that there were people with other autoimmune diseases and perhaps some people whose children had birth defects who came to you trying to get recovery as well. Do you recall any of those cases?
Foulds: No, I don’t. Because unless I felt I had the science already established of the connection between their exposure to a certain radionuclide and the result of a certain type of cancer or illness—unless I could show that, I could not properly accept their case. I couldn’t take it just on. “We’ll see what we can do.” Because I really had an obligation to work on cases that I felt I could represent to the court that there was legitimate existing evidence to support the claims. I necessarily had to avoid taking any cases that I didn’t believe I could prove.
Dorn Steele: Tom, turning to the case itself that started in 1990 and ended in 2015, that’s a quarter of a century. Why did it take so long?
Foulds: A number of problems developed. First of all, the defendants were represented by a law firm in Chicago called Kirkland and Ellis. They had a stonewall defense to begin with. Then even after they realized that that was not tenable, they were willing to make payments for thyroid disease up to a certain amount and eventually, make payment for thyroid cancer. But it took a long time to get a recovery just for the hypothyroid cases.
Then after that, I had thyroid cancer cases, which were much more serious. I tried to successfully negotiate—you have to have a trial date, because the defendant has to know that down the road there’s a potential for a real train wreck of sorts. However, Judge [William Fremming] Nielsen would not give me a trial date.
As a matter of fact, he wrote comments that the case should be brought to a halt. He also ordered me to pass those comments on to my clients. Well, I had to agree to that order, I passed on the comments. But then I had a number of clients would say, “We’re going to stick with you. We don’t care what this judge says.”
That really happened. I’ve got records of all that back and forth. I remember one client said—who was apparently someone experienced in other legal proceedings—he said, “I’ve never seen an order from a judge like we just got from Nielsen, trying to force this thing to a close.”
As I said, Nielsen would not give me a trial date. Without a trial date, I could not get the defendants to come up with what I thought was an adequate recovery per person. Now, I did make recoveries, ultimately. But they were not adequate, in my opinion, but that’s the best I could get absent a trial date. Because they stuck to that, and they didn’t—until a mediator finally worked out some kind of a settlement—they did raise their overall offer by about six million more dollars. But it was not really enough, in my opinion. It was not an adequate remedy for these people that had thyroid cancer.
Now, the mediator that finally came in—there were several mediators, but the one that really finally came in, he was able—see, another problem that existed was that over the years a lot of money had been invested in this case with various experts, which I won’t go into now, but very expensive. The mediator had to tell a lot of these attorneys—I was not operating totally by myself. There were about six or seven different law firms that were helping support the case.
Now, they weren’t doing any of the legal work, but they were supporting the case with money. They wanted their money back out of any settlement. That created a real problem for this mediator. He was finally able to persuade them to take some kind of a discount, but at least get a recovery to save face. That’s how he got rid of this enormous weight of past expenses. Then he was able to find me a recovery of my expenses and a fee that I could live with.
But that mediator was a very creative guy, and he came from a mediation service that did that work professionally. His name was Charlie Burdell, and he finally came up with this very creative methodology. There was this attorney in Philadelphia that had put up a lot of money. He [Burdell] schmoozed all these guys to be happy with what he was going to do for them. Eventually, he got them all squared away, then he was able to come to me and square me away. That’s how the case finally ended. But all that took that whole process, including the termination.
By the way, I should add this. If it hadn’t been for the judge—despite the good job this mediator was able to do—I would not have accepted. I would’ve gone ahead. But I knew I was dealing with a judge that was really hostile to the case. Most certainly, if I forced him to finally give me a trial date, I would have a judge on the bench that was really down on the case.
I’ll be quite honest with you. I thought having an adverse judge and plus the benefit, such as it was, from what this mediator created, that I could legitimately go ahead and settle. But it wasn’t until I reached that point and then had to send a recovery.
The hardest part was I had 300 plaintiffs, thyroid cancer, and getting them enough individually to take home after any charge for expenses or fee or anything else. Their actual take-home pay was enough that they would be—in fact, to my knowledge, they were all delighted. Although it was not as much as I thought they should’ve gotten, period.
Pritikin: Tom, you mentioned when you found out about Judge [Ala] McDonald and you filed the brief, the motion for recusal, talk about that a little bit. Because that also took quite a bit of time, and we were on appeal for a while prior to that.
Foulds: Right. I had read someplace, just a comment that somebody—at the time, we had Judge McDonald, who incidentally was personally very friendly to me. He was really a rough and tough fellow. We would all appear and I would say, “Your Honor, I’m sorry I didn’t bring this up before.”
He’d say, “Don’t worry about that, Tom.” He was very friendly to me. I don’t know the real reason, if he just liked me or whatever. He would’ve been a great judge to keep—except that I had read someplace, some remark, “How did a judge on an ordinary judge’s salary”—they don’t pay federal judges, at least in those days, it was less than $200,000 a year. Probably three times that much now, but way back then, that was a good salary. But even so, what I read was some complaint that somebody wrote in a newspaper, “How did a judge just on his regular salary end up with an estate worth $50 million?”
When I read that, I thought, “If that’s true, how could a judge ever work that kind of a deal on his salary? There’s no way he’s going to do it.”
I checked him, out and I went to the county assessor’s office. See, the Hanford domain where all these releases occurred was a 500-square-mile property that was all part of the Hanford reservation. But around that 500-mile property was all these counties. I went to the assessor’s office in every county, and in every single one of them I found that McDonald had been in there. Judge McDonald had been doing various property transfers and purchases, which all had to go through the assessor’s office.
He was investing in property in all of these counties around the reservation. Incidentally, there was a little farmer’s loan act. He was borrowing this money, or seeking their funding. They had a little extra part of their act that the borrower had to provide an indemnity agreement, including a statement that they had individually examined the property that’s being put up as security for the loan, that that was free of any contamination.
This guy, McDonald, had signed these statements that he had personally examined the property that’s being put up for security and is free of any contaminant.
Pritikin: Specifically radiological contamination?
Foulds: Yeah. Yes. Thank you, yeah. That’s what the farmer’s loan outfit was concerned about, it was free of any radiological contamination. Of course, you have to ask yourself, since everybody knew what was going on Hanford, why they would ever think that they should have that in their agreement, but they did.
Here this guy had signed up there was no radiological contamination of this property that he’s trying to use as security for a loan.
Pritikin: And that was a year after he dismissed our case.
Foulds: The problem with that, the very property he was talking about being free from contamination, I was trying to prove that there was contamination. There was this deposition on the ground, there was this radioactive iodine-131 etc., that I’d been talking about. That all this stuff was going on. Here’s a guy, a judge in my own case, he was going to be my judge, making these statements and promises. Once I realized that, I obviously had to get rid of him.
What I did, I made a motion for him to recuse, to get out of the case. Once you get a federal judge appointed on your case, no matter how nasty or how bad he treats you or how outrageous he does, you have no remedy. You can’t run down to the 9th Circuit and say, “Hey, this judge is a very bad guy, unfair.” It’s impossible to get rid of a federal judge in most cases.
I put this whole thing together of one misrepresentation after another concerning these properties, and I sent it down to the 9th Circuit, along with my motion that he recuse himself. He realized he was trapped. He did recuse himself and he wrote a long thing, primarily an attack on me. Among other things, he even said that I was just a stooge for some kind of a conspiracy that wanted to defame him. No kidding, this is what a federal judge wrote.
Pritikin: He never admitted that he had a conflict of interest?
Foulds: No. He never admitted that. As a matter of fact, he went so far as to say, “These statements, they were true at the time I made them, but they’re not true anymore.”
Dorn Steele: The timing is interesting, because ’98, he dismisses your case, which is later reinstated. Then ’99, he bought this property that you picked up on, and you filed the recusal in December of 2002. Three months later, he stepped down. It was very fast, what happened.
Foulds: Yeah.
Pritikin: Tom I wanted to get your thoughts on the amount of money that the defense spent in order to try to defeat the Hanford downwinders’ personal injury claims.
Foulds: I never really thought about how much they spent, because I really didn’t know how much they spent. I’m sure that the defense counsel, Kevin Van Wart, was highly paid. I don’t know how much per hour those guys were getting.
Everything’s on a kilter because it was so long ago, in the ‘50s. I have no idea what they were earning. I’m sure, compared in dollars in the 1950s, it was very substantial what they were paid. Because they’re a big defense firm, Kirkland and Ellis. You see their name pop up periodically. They specialize in defending big corporations. They were probably charging whatever the traffic would bear. That’s my only thought.
Dorn Steele: The records show that the law firms defending the contractors, all of them, earned about $80 million, were reimbursed about $80 million for the Hanford case.
Foulds: Yes.
Dorn Steele: How does that compare to how much the plaintiffs’ attorneys spent?
Foulds: If I recall right, that originally there were so many defense firms that it was decided to consolidate the defense just to one firm. I have no idea what that one firm had been paid, at Kirkland and Ellis. I’m sure it was very substantial. I never gave that a second thought. I don’t care what they were paid.
Dorn Steele: I know one of the things during the long trial is that the lawyers for DuPont and General Electric were there, at least in the early days of the trial. Why were they so interested in the outcome of this trial?
Foulds: Now that you mention it, I had forgotten all about that. That was a waste of taxpayer money. Their own defense counsel was doing an adequate job. The fact that they had to bring other counsel in there just as observers, and they were getting paid the full going hourly rate, I thought that was a waste of taxpayer money. They were totally unnecessary, and they didn’t contribute anything to the defense that I could determine.
Dorn Steele: You know, we talked already about you getting Judge McDonald recused. That was a dramatic moment in this trial when he had to step away. Another dramatic moment was the documents that you found in discovery that showed that Kirkland and Ellis and Department of Energy attorneys were apparently sitting in on at least some of the dose reconstruction studies. They considered those studies part of litigation defense.
Foulds: Yes.
Dorn Steele: What happened there?
Foulds: What was decided once these documents were disclosed, somebody decided that it would be a good idea to have an environmental dose reconstruction to find out for sure what really happened to all these people over the years. Those discussions were actually managed by the Department of Energy. I discovered, and I presented to the court, documents that stated unequivocally, “We want to make this study to serve the purposes of defense, to help us defend these cases that are going to occur.”
They were quite concerned over making sure that they had a study that would be assisting the defense, although it was cloaked publicly as being an independent study. I remember the defense attorney would stand up and say, “This study is going to be the gold standard.” Well, actually, the only gold standard that it was good for was for the defense.
One of the persons that was in charge of the study was at the same time being paid by the defense firms. In other words, instead of being paid as an independent expert, he was getting that money, but he was also getting paid through the Kirkland defense firms.
I raised that point, and somehow—Karen, I think you might’ve been the person that pointed it out—there were documents showing that this was for the purpose of self-defense. Kevin Van Wart then got up and made a big speech to the court that he should get a change of venue, because this outrageous misstatement that Karen Dorn Steele got printed in the newspaper made it impossible for the defense to get a fair trial.
Dorn Steele: The public was promised the gold standard scientific study with HEDR [Hanford Environmental Dose Reconstruction]. Did they get it?
Foulds: They never got that. The Environmental Dose Reconstruction, I have a point-by-point recital of all the things that were wrong with it, which I didn’t bring here. I had so much stuff that I left more notes at home than I brought.
But just to give you an idea, they created a model to mathematically estimate the deposition path of the radioactive elements. To do so, their model assumed that the exposure area was a flat area. Mathematically, they modeled this on the basis that it was one big flat desert.
Well, actually, it makes quite a bit of difference when you take into account that it was really a complex terrain. The complex terrain would create very, very high concentrations in some areas; in other areas, there would be virtually none. It made a big difference. That was one of the things wrong with it.
Another one was the amount of releases. They used a methodology for demonstrating the amount of releases that was admittedly insufficient and underestimating. They used an underestimated amount of releases. That’s another thing wrong with that study.
Dorn Steele: That was the conclusion of Thomas Pigford, too, in the report that Judge McDonald sealed, the Thomas Pigford report.
What were your thoughts about that?
Foulds: There’s nothing I could do once they sealed it. As a matter of fact, that report was never unsealed, to my knowledge, in time for the court to have it properly considered. I think Pigford did think that the HEDR model was insufficient, but they never utilized his opinion.
Dorn Steele: One other question about HEDR then. If it was so bad and it wasn’t good science, why did the plaintiffs’ attorneys stipulate to the use of the HEDR doses in the trial? Your plaintiffs’ attorneys said that it was okay for the bellwether cases to go ahead. What’s your opinion of that?
Foulds: Very negative, extremely. I had no part in that decision. In fact, I opposed that whole admission on their part, and that whole idea of using the defense estimation of doses in the trial. In fact, when you think about it, it’s really ridiculous on its face. It’s kind of like, “You’re in a trial about the value of your property,” which would be a very complicated thing if you were a landowner of vast tracts of property. But what they stipulated to, would be like taking the lowest estimate on your property and using that as the fact. When really, the HEDR doses were as low as you could possibly get and still have something that’s arguably or culpably something you can peddle to the court as being appropriate. It was terrible.
The lead plaintiff attorney—who I disagreed with quite strongly, and I never signed that agreement that you referenced, where they accepted those doses. I never signed that. I was against it. That’s all I can tell you. She was really a good attorney in many aspects. She was an assistant to a very capable attorney from Cincinnati called Stan Chesley, and she was his sidekick, so to speak. But she had no true understanding of the technical aspects of this case, like what happens to the dose under certain circumstances, etc., and all the other technical points. She was a good attorney in other matters, probably, but that was not within her area of expertise.
Dorn Steele: Tom, one last question. You were the last holdout then for all the attorneys, in terms of settlement.
Foulds: Yeah.
Dorn Steele: In terms of the settlement, how do you feel about that now? What you were able to get for your clients?
Foulds: Here’s how I feel. I feel that the case should’ve been tried, period. I feel that the remedy that was obtained was something that you could live with, with regret. Because the case should have been tried.
See, their conduct was a lot more than just being responsible for the releases that came out. There was a great deal of outrageous conduct on their part. They knew that, for example, over periods of time that they were releasing excess amounts of radiation. They took no steps to warn the public, which they could’ve.
As I said before, they could’ve put everybody on a non-radioactive iodine diet, which would’ve made a tremendous difference. They could’ve done a number of things. I thought their conduct was really outrageous. Knowing what they did, and knowing that the releases that they were permitting were certain to cause disease troubles. They knew that empirically. They knew that it had already happened to the sheep.
Pritikin: They knew it as far back as the 1930s. Remember, we found the documentation that in the 1930s, they knew radioactive iodine was harmful to the thyroid.
Foulds: Yeah.
Pritikin: They knew before they even started the Hanford site.
Dorn Steele: At the end, when all was said and done, when there was a settlement, did the government ever apologize for its conduct?
Foulds: Never to my knowledge. Never once.
Dorn Steele: How do you feel about that?
Foulds: They were an agency trying to protect themselves, fundamentally. One thing I did learn—you have to keep this in mind—that you can have a government agency, which theoretically, since it’s part of the U.S. government, its orientation would be to protect the public or to at least assist the public in every possible situation. But in this case, it was essentially a rogue agency to this extent.
They were so determined to meet their goals in producing plutonium, that they felt totally unhindered, totally unfettered to go ahead and allow all these releases to go downwind, which they knew would damage people. They knew that. That, in my opinion, is outrageous conduct.
There’s so many ways they could’ve minimized things, the simplest of which is, when they pushed the fuel cells out and dumped them in the water, before they put them into the nitric acid—if they had just let them cool for every eight days, half of the radioactive iodine would be gone. Then the next eight days, half of that remainder would be gone. You can see, it’s a very short period of time in which they could take the problem and reduce it from 100% down to 5%. They didn’t do that. I think that was outrageous conduct on their part.
By the way, even though they were in a so-called Cold War, if they just had a delay period automatically applied before they dissolved this stuff and let it go up the stack. Sure, we would’ve gotten behind the race for that 30-day period. But after that, it wouldn’t make any difference, right? Once they accepted the startup date as being later, then from that point on they could match our adversaries—namely, the Russians—dissolver-by-dissolver, bomb-by-bomb, with no problem.
Dorn Steele: What you just said about how they could have managed routine releases and didn’t is one important discussion. The other is a deliberate release—at least one of them that we know about—the Green Run in 1949.
Foulds: Yes.
Dorn Steele: That was in that original batch of documents that was released in 1986. I wrote the first story of the Green Run. How were you struck by this, a deliberate military experiment that was secret?
Foulds: I thought it was terrible, very reckless. It turned out in the so-called Green Run there was far more contamination released than what they thought they were doing. There was much more. I don’t have the numbers now fresh in my mind, but I can tell you, they were much more. It was a much greater release than they bargained for.
Dorn Steele: And apparently, it was dispersed far and wide, but it also fell down on the town of Richland, where the scientists lived.
Foulds: Well, in addition, when they dissolved these fuel cells in nitric acid, in addition to the iodine-131, there were numerous other radionuclides that were radioactive. They were released. They ended up as what they call hot particles around the site. The so-called hot particles—one of their top guys, who I have a lot of respect for, he said, “It’s going to be impossible to quantify what’s happened. It’s just out here.”
Foulds: The DOE, when they decided they were going to create the Hanford Environmental Dose Reconstruction, one of their letters to one another said, “I suggest that a meeting be set in the Pacific Northwest, so that the DOE-Battelle and the Department of Justice may fully discuss study parameters, etc., etc., openly and frankly. I believe it’s essential that Battelle be present, so the litigation elements can be considered and worked into the study.”
The National Academy of Sciences said a whole bunch of things that they needed to be advised about before they could approve what these studies, what the defense was claiming. “It’s important for credibility in the final results to outline how quality assurance and quality control were applied, and what, if any, modifications resulted.” “That puts the whole model computation into a stance of isolation from reality.” In other words, the National Academy of Sciences decided that all their model computations, like the HEDR dose reconstruction, were isolated from reality.
There was an effort made of what to do about the HEDR reports of deposition and concentration—concentration as air, deposition as ground—in separate independent studies by two separate scientists, one of which I had discovered and put to work. Another was put to work by some of the other guys. They reached the same conclusion that to apply HEDR, you needed a correction factor of 10 to 12 times.
One thing I want to mention: the Hanford reports of their operation, they made very regular, daily, or at least weekly reports of their operations internally for their own management purposes. These reports over all the years numbered in the thousands.
There was a PhD historian named Michele Gerber, who I employed to look into this. She went through all of these reports and isolated out just the reports that concerned offsite operations, not the stuff that concerned engineering problems inside operations, just offsite. She was able to discover that in the ‘50s and early ‘60s, the safe limit of one curie per day was being grossly violated, day after day.