Saturday, July 11, 2015

July 11, 1983: Al Gore's Mercury Pollution Hearing in Oak Ridge, Tennessee -- Largest Mercury Pollution Event in World History (4.2 Million Pounds)

July 11, 1983 was a fun day in American history. If Hollywood made a film and asked about music, I would suggest, "The times they are a-changin," and "the world stood upside down" (played when Cornwallis surrendered to George Washington).

32 years ago this afternoon, shortly after lunch, I was in the Oak Ridge Museum of Atomic Energy auditorium, on stage. I was testifying in the heart of East Tennessee's Oak Ridge Oligarchy of Atomic Blunderers: I was testifying before then-Reps. Al Gore, Jr. and Marilyn Lloyd about the recently-declassified Oak Ridge Y-12 Nuclear Weapon Plant mercury pollution. Workers were forbidden to talk about health problems, mercury was promiscuously consumed and recklessly emitted, a scientist was fired for taking "unauthorized soil samples" and asking questions, and the 1977 Elwood inventory report was stamped "Business confidential" by Union Carbide (later perpetuator thousands of poisoning deaths and injuries in Bhopal, India).

That's the way it was, until our tiny Appalachian Observer weekly newspaper's FOIA and declassification request was granted by DOE on May 17, 1983. Gore swore in all the witnesses, conducting an investigative hearing. Yet no one ever went to prison or jail for even a day for putting 4.2 million pounds of mercury into local creeks and groundwater, and into workers’ lungs and brains, without signs, fences, respirators, warnings or basic protections. Half the free world’s mercury was in Oak Ridge: Union Carbide and the Atomic Energy Commission and successor agencies “LOST” 10% OF IT.

Years after the hearings and billions were spent on cleanup, mercury levels are rising.

Thanks to activists and U.S. Senator Lamar Alexander (R-Tenn.), DOE will in a few years spend another $125 million to keep mercury from entering East Fork Poplar Creek, which is still being contaminated daily by mercury that is still leaching out from the Y-12 Nuclear Weapons Plant.

"It is the function of the citizen to keep the government from falling into error." Those are the words of Justice Robert Houghwot Jackson, America's prosecutor at the Nuremberg Trials.

As I wrote in the St. Augustine Record on November 8, 2014:

On Nov. 21, 1974, our United States Senate enacted the Freedom of Information Act, joining the House in voting to override a veto by President Gerald Ford (whose veto was pushed on him by then-DOJ lawyer, Antonin Scalia, and White House aides Richard Cheney and Donald Rumsfeld, who wanted government to remain secretive).

I was 17, a “hick from the sticks” — first-semester Georgetown University freshman, an intern known for my walking/working speed in Senator Ted Kennedy’s office as “Fast Eddie.” I carried three stacks of Senator Kennedy’s legal-sized, stapled, freshly-mimeographed press release to three Senate press galleries, cheering the veto override and enactment of the Freedom of Information Act.

I read it on the Senate/Capitol subway, promising transparency. I walked up a marble staircase, past a gigantic painting of Lincoln with his cabinet, signing the Emancipation Proclamation. My heart leaped with joy.

Eight years later, as Appalachian Observer editor, I used FOIA to ask for government data on mercury pollution; a long kept secret by Union Carbide’s Y-12 nuclear bomb builders in Oak Ridge, Tennessee. We won, and on May 17, 1983, the largest mercury pollution event in world history was declassified — 4.2 million pounds of mercury emitted into the environment and workers’ lungs and brains, which continues leaking into creeks and groundwater today (subject of a new $125 million mercury cleanup plant advocated by Senator Lamar Alexander).

Nuclear weapons plants cleanup may be achieved by circa 2057, by my 100th birthday, at a cost that may top $300 billion.

Forty years after FOIA, Americans work to hold our governments accountable, seeking to breathe life into open records laws.

As Ben Franklin said in Philadelphia after our Constitutional Convention in 1787, we have “a republic, if [we] can keep it.” Will we?

We Americans ended slavery, but can we ever stop being slaves to secrecy?

We Americans eradicated smallpox and polio, but can we ever eradicate political corruption?

Enough flummery.

We must make our governments more transparent.

… Let us have a government truly “of the people, by the people, and for the people,” as Lincoln promised at Gettysburg.

Let us have what [Mayor] Nancy Shaver calls a “no surprises” government. Now.

In 1977, I was a 20 year old staffer for Senator Jim Sasser, assigned to cover as a legislative research assistant the creation of the Department of Energy under President Carter, among other issues. We had no idea at that time what DOE had done to Tennesseans and other Americans. No one but DOE knew that.

Six years after that, and less than nine years after carrying Ted Kennedy's FOIA press release to the Senate press galleries, the mercury losses in Oak Ridge were declassified on May 17, 1983, at request of Appalachia Observer Publisher Ernest F. Phillips and me, the editor.
The Al Gore hearing followed. I was the only witness to call for criminal prosecution. All witnesses were sworn in at the request of Anderson County Attorney David A Stuart and me (Stuart, then 26, was later my co-counsel in whistleblower cases and was a member of the group who humorously referred to themselves as "the Gang of Four" -- two District Attorneys and two County Attorneys contemplating filing a sworn public nuisance complaint against DOE and Union Carbide under Tennessee nuisance law. Alas, the State Attorney General and the Legal Environmental Assistance Counsel filed first, and the "Gang of Four" did not go ahead with their inchoate plans).

Other disclosures around the country, sought by activists from all walks of life, have shown the Nation a picture of sublime ugliness: the Cold War took tens of thousands of Americans as unwilling victims, without informed consent. Now we know all too well that our Nation faces a moral crisis involving DOE, truly the “moral equivalent of war,” one that will test who we are as a people.

Dr. Susan Arnold Kaplan wrote in 2005:

The public first learned of DOE environmental releases in 1983 when the agency announced the release of mercury from the Y-12 Plant in Oak Ridge, Tennessee. The announcement, which was prompted by a Freedom of Information Act (FOIA) request by Ed Slavin,1 marked the beginning of DOE’s Environmental, Safety, and Health (ES&H) projects nationwide.2

Former Department of Energy Oak Ridge Operations Manager Joe Ben LaGrone told me in a 2012 telephone conversation after I read his oral history interview that I was indeed "the crowbar" who got the mercury pollution declassified and forced action. Mr. LaGrone stated that Department of Energy officials sent him to Oak Ridge the new Manager without telling them of the expected declassification.

Not only that, but the Presidential libraries of President Jimmy Carter and Ronald Reagan show that two Presidents were never briefed on the scandal.

Last year, former Department of Energy Deputy Assistant Secretaryb Robert Alvarez wrote of Y-12:

The mercury threat. Activities at Y-12 have produced multiple environmental challenges; perhaps the largest is mercury pollution.

During the crash program to build thermonuclear weapons in the 1950’s and early 1960’s, Y-12 purchased about 24 million pounds of mercury to purify lithium. Of that amount, about 10 percent (2.4 million pounds) was released into the environment or could not be accounted for inside buildings. To put the problem in perspective, Y-12 mercury losses are about eight times the annual mercury emissions estimated by the Environmental Protection Agency for the entire United States during the years 1994 and 1995.

Despite the well-recognized hazards of mercury, a neurological poison, workers were not provided with adequate protection from it. People living nearby, including hundreds of school children, were exposed for years to an estimated 73,000 pounds of mercury released to the air. In 2012, the Agency for Toxic Substances and Disease Registry concluded that “elemental mercury carried from the Y-12 plant by workers into their homes could potentially have harmed their families (especially young children).” A rough measure of harm to workers can be found in compensation statistics maintained by the Department of Labor. Nearly 9,000 Y-12 workers have received some $417 million for exposure to non-radioactive substances.

The Upper East Fork Poplar Creek and Bear Creek continuously transport about 500 pounds of mercury from heavily contaminated soil on the site to downstream areas. The contaminated creeks then feed into the lower Watts Bar reservoir of the Tennessee River and the Clinch River, where tens of tons of mercury have accumulated in sediments. In 2002, nearly 40 percent of the anglers using the Watts Bar Reservoir continued to eat mercury-contaminated fish, despite a public ban on consumption. African-Americans were the least aware of the ban and were the most vulnerable to potential harm.

After recognizing the magnitude of the mercury problem at least 35 years ago, the Energy Department is just beginning to construct a water treatment plant to remove mercury from the contaminated creeks and to reduce offsite mercury run-off. The total cost of mercury cleanup at Y-12 has not been determined. However, it may rival the cleanup costs of profoundly contaminated areas such as the Hanford Site in southeastern Washington state.

The DOE Nuclear Weapons complex, to paraphrase Lincoln, is guilty of “idolatry that practices human sacrifices.” DOE’s American victims must be compensated fully, fairly and swiftly. It may be cleaned up by the year 2047, at which time I will be 90 years young.

Cleanup of the entire nuclear weapons complex may eventually be achieved for as little as $400 billion. In the immortal words of the late Senator Everett McKinley Dirksen (R-Ill.), "A billion dollars here, a billion dollars there, and pretty soon you're talking about real money."

I was honored to testify before then-Rep. Al Gore at his July 11, 1983 hearing on the Oak Ridge mercury pollution crisis, which was a classified secret (kept even from President Jimmy Carter and President Reagan according to their Presidential libraries). (I was a deeply closeted, self-denying Gay man of 24: more here). I wish that Al Gore had done more than hold the hearing -- he never investigated the Environmental Justice issues I raised (moving an entire segregated African-American community next to the creek). Gore lost interest in mercury after he was elected to the U.S. Senate. He lost Tennessee in 2000, largely because he lost interest in Tennessee issues (as well as obstructing I-40 traffic every Friday afternoon as his entourage drove from the airport to Carthage, his ancestral home).

The month after the hearing, I went on to Memphis State University Law School, clerkships with Judges Charles P. Rippey and Chief Judge Nahum Litt at the U.S. Department of Labor Office of Administrative Law Judges, work at the AFL-CIO Occupational Health Legal Rights Foundation and Government Accountability Project and private practice, including Oak Ridge matters. I was honored to represent environmental and nuclear and trucking whistleblowers, across America, only to have my license taken in retaliation for zealous advocacy for workers during the George W. Bush Administration.

Today, I am waiting for the Levin College of Law University of Florida to respond re: my fifth application to its Environmental and Land Use Planning Law (ELUPL) LL.M. program. I have been filed age, disability and retaliation complaints against the Levin College of Law at the University of Florida, which refuses to meet or interview me. Yesterday, an Assistant Vice President at the University of Florida e-mailed PDF copies of my 52 letters of recommendation to some two dozen people outside the University, including the New York Times, local newspapers, et al. This massive distribution of my educational records by UF (15.7 MB worth) would appear to violate federal protections for student and applicant privacy. I await an explanation, and my admission to UF's high-calibre environmental law graduate program. We had a mediation before a Federal Mediation and Conciliation Service mediator on August 25, 2014; our mediator and I were in the conference room at the City Financial Services Building. UF Associate Dean for Academic Affairs Alison Flournoy and a UF attorney were in Gainesville; they phoned it in.

In the immortal words of the soccer cheer invented some 16 years ago by a former African-American Naval Academy midshipman, a current over-30 Memphis law student: "I believe that we will win!"

Pope Francis' "Laudato si" encyclical expresses the same thoughts I had 32 years ago today, about humankind turning this frail planet into "a pile of filth."

With your help, "We SHALL overcome!

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