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The inadvertent disclosure of a U.S. Air Force F-117A technical manual specifying hazardous byproducts of burning wreckage has rekindled the hopes of plaintiffs seeking compensation for injuries and death from alleged exposure to toxic fumes at a secret government facility. The widows of civilian employees Robert Frost and Walter Kasza and several surviving former co-workers tried unsuccessfully for more than a decade to make the Air Force tell them what substances they were exposed to while working at a classified facility in southern Nevada that the Air Force refers to as “an operating location near Groom Dry Lake.” More popularly known as “Area 51,” one of the facility’s alleged uses is the testing and development of such aerodynamic high-tech wizardry as the Lockheed F-117A Nighthawk stealth fighter. The technical manual, or “safety supplement,” as it appeared last month on the public Web site of Robins Air Force Base in Georgia, was labeled “Aerospace Emergency Rescue and Mishap Response Information (Emergency Services).” It was marked “Approved for public release; distribution unlimited.” Intended for emergency and rescue personnel, the document listed more than a dozen specific “hazardous byproducts of burning wreckage,” among which are hydrogen cyanide and nitrogen and sulfur oxides, phosgene and formaldehyde, released when the F-117A’s adhesives, sealants, paint and coatings burn. Jonathan Turley, a George Washington University law professor who represented Area 51 workers in two earlier actions, said that two of his clients died and others sustained serious injuries from hazardous fumes released from materials burning in open pits in violation of federal environmental law. Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998). Although the lawsuits prompted courts to order the Environmental Protection Agency (EPA) to conduct annual inspections of the site, the courts also have held that the military and state secrets privilege means that the Air Force does not have to disclose any information about what goes on there because it is classified. Turley alleges that in violating federal environmental laws in Area 51, “the U.S. government has committed crimes that it has prosecuted private companies for. It may have killed two people and injured others-and Congress has never investigated it.” He claims that the unintended disclosure highlights his contention that the government has misused the military and state secrets privilege “for tactical purposes to avoid the admission of federal crimes.” The disclosure is also part of a larger body of evidence that has been building over the years about classified activities at Area 51-evidence that is becoming harder for the government to keep under wraps, he said. Turley is considering another lawsuit on the workers’ behalf, but said that first he wants to see how the courts handle the class action against the major telecommunications companies over their alleged sharing of customer information with the National Security Agency. Heptin v. AT&T Corp., No. 06-cv-0672 (N.D. Calif.). As in Turley’s two earlier cases, the outcome of the wiretap/data-mining class action will rely crucially upon whether the government will be able to persuade the court that it is entitled to the military and state secrets privilege, which can prove an absolute bar to the plaintiffs for obtaining discovery. Turley said that he also asked Nevada’s U.S. congressmen to look into the causes of the deaths of Frost and Kasza. Several calls for comment to the office of Senator Harry Reid, D-Nev., were not returned. A Web-posting error Major Ann M. Stefanek, a U.S. Air Force spokeswoman, said that the Air Force is not aware of any litigation currently pending that relates to people who claim to have worked for the Air Force in the “operating location near Groom Dry Lake.” The information that appeared should have been posted on one of the Air Force’s restricted sites, not on a public Web site, because it was not intended for use by the general public, Stefanek said. She added that the Air Force has since corrected the problem by removing the supplement. Frost and Kasza’s previous citizen actions under the Resource Conservation and Recovery Act (RCRA) sought information on the nature of hazardous waste produced at Area 51, and the methods used for its disposal convinced federal courts to order the EPA to conduct annual inspections of Area 51. The EPA inspected the facility, but classified its report and inventory. This conflicted with the RCRA’s public-disclosure requirement and prompted the court to order the EPA either to declassify the report or seek a presidential exemption. Since 1996, presidents annually have exempted the facility from the RCRA disclosure requirements.

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