Weapons of Mass Destruction (WMD)

I am Richard Miller, a Policy Analyst for the Paper, Allied-Industrial, Chemical and Energy Workers Union ("PACE"), which represents 320,000 workers nationwide in oil, chemical, pulp, paper, auto parts and nuclear industries. PACE's address is 1155 15th Street, NW, Suite 405, Washington, DC 20005. Phone number: 202/293-7939. PACE represents workers at 11 DOE sites in the Department of Energy's (DOE's) nuclear complex, and workers at a number of current and former beryllium and at other atomic weapons suppliers.

There is growing bipartisan interest in securing a compensation remedy for workers employed in the nuclear weapons complex and by beryllium vendors under contract to DOE and its predecessors. We appreciate the advocacy by Secretary of Energy Bill Richardson and the leadership of many members of the House and Senate who have been outspoken in favor of securing justice for those who served their country and were made ill. These Cold War veterans often worked in secrecy and were exposed to extremely toxic materials, such as plutonium, often without their knowledge or consent. These DOE plants were not subject to external health and safety oversight from agencies such as the Nuclear Regulatory Commission or OSHA, and investigations make it plain that workers paid a steep price.

1 Introduction

Our testimony will evaluate the difficulties of establishing claims for occupational disease under the existing state worker compensation regimen, review the perspective of a state worker compensation program on the need for a federal remedy, and evaluate the two main proposals before the House which best addresses the needs of those who toiled in nuclear weapons and beryllium factories. These proposals include1:

(1) HR 4398-- a comprehensive bipartisan proposal co-sponsored by Representatives Whitfield, Strickland, Wamp, Kanjorski, Gibbons, Mark Udall, Jenkins, Tom Udall, Tancredo and Kaptur.

(2) HR 5189-the Thompson-Bingaman Amendment which was adopted as part of the FY 2001 Senate Defense Authorization Act (S.2549).

DOE has held 8 public hearings across the country, including: Piketon, OH; Paducah, KY, Oak Ridge, TN, Amarillo, TX, Rocky Flats, CO; Hanford, WA; Nevada Test Site, NV and Burlington, IA that have elicited reports from hundreds of atomic workers and their families about the thick clouds of radioactive gases, contamination being tracked home, criticality events, questionable radiation monitoring, and debilitating and painful illnesses. These hearings have signaled that it is permissible, even desirable, to make public information that was deemed improper to discuss publically.

2 Barriers to justice for nuclear workers compensation are unique and cry out for a federal remedy

DOE workers with occupational diseases face exceptionally difficult hurdles to establish a workers compensation claim for several reasons:

1) According to a DOE-sponsored report, only ~1% of all radiation-related cancers attributable to workplace exposure occur at exposure levels at or above the legal threshold for proof: the "doubling dose"2. The "doubling dose" is the amount of radiation that doubles the probability that the affected organ would develop a cancer. That means that 99% of all radiation-related cancers attributable to workplace exposures are not even eligible for workers compensation under the existing regimen- a truly unjustifiable state of affairs.

2) DOE's radiation and hazardous material dose records are, in many cases, incomplete, deeply flawed, non-existent, or substantially understate exposure, and thus cannot be relied upon to support claims based on workplace exposure. The April 2000 report from the National Economic Council underscores this concern3.

3) Workers were, in many cases, not told what materials they were working with, nor were they monitored or adequately protected. For example, workers at the uranium enrichment plants were not told or tested for exposure to transuranic elements such as plutonium or neptunium for 40 years.4 AEC memo stated:

There are possibly 300 people at Paducah who should be checked out [for Neptunium], but they are hesitant to proceed to intensive studies because of the union's use of this as an excuse for hazard pay.5

With respect to the adequacy of respiratory protection, the AEC doctor stated:

I don't have too much faith in masks, and the dust particles here are about 0.5 micron, the very worst size biologically speaking.

The memo urged Union Carbide to:

get post mortem samples on any of these potentially contaminated men for correlation of tissue content with urine output, but I' m afraid the policy at this plant is to be wary of the unions and any unfavorable public relations.

The AEC doctor concluded his memo stating:

"Thus, it appears Paducah has a neptunium problem, but we don't have the data to tell them how serious it is."

4) DOE and its contractors frequently engage in interminable litigation and appeals to defeat occupational illness claims for workers comp, oftentimes regardless of merit. Joe Harding, a Paducah uranium enrichment worker, died of cancer in 1980. His bones were exhumed by his widow and found with sharply elevated levels of uranium. Yet for 15 years DOE battled his widow's survivors comp claim brought under the Kentucky worker compensation system, and expended what the media estimates was in excess of $1 million in defense costs, only to settled for $12,500 in 1997.

3. The poor quality of DOE's occupational exposure monitoring data is well documented, a circumstance for which state worker comp programs are not well equipped

Establishing that an individual's illnesses is work related depends on having complete and reliable exposure data. But the poor condition of DOE's records, in many cases, imposes a virtually insurmountable hurdle.

Since 1992, DOE has conceded the inadequacy of its overall radiation dosimetry and the quality of its records. Recent investigative reports at Paducah and Portsmouth confirm this as well. A 1992 summary of Technical Safety Appraisals, including those associated with Tiger Teams directed by former Energy Secretary Watkins, was submitted by DOE to the House Energy and Commerce Committee in May 1994. The key findings with respect to radiation include:

Monitoring for airborne radionuclides was not performed at all location and jobs which had the potential to exceed the limit at which monitoring is required.

Internal and external occupational [radiation] exposure records were found to be incomplete.

Some employees that had potential for significant internal radiation exposure were not included in routine bioassay programs

Radiation exposure data stored on electronic media did not accurately reflect the data on the original record.

With respect to chemical, biological and physical agents:

Surveillances of potential workplace exposures to biological chemical and physical agents were not performed at the required frequency or were limited in scope.

Records were not kept of employees working with regulated carcinogens.

Personnel were not provided adequate information on their exposure to hazardous materials.

External penetrating radiation is measured through "film badges". Internal doses are usually measured through the use of bioassay samples (usually urine) or whole body counters. Although measurements were taken at many DOE sites to determine if an employee's excreta exceeded an "action level," until 1989 there was no requirement to calculate committed effective dose equivalents, which is a computation of the biological effects of internal and external doses added together over a 50-year period. Even if the data were collected, this leaves a vast hole in many workers' dose history.

DOE Assistant Secretary David Michaels contributed to the 1992 book Dead Reckoning, which was a critical review of the DOE's epidemiological research6. That report found that DOE's radiation dose records were unreliable for purposes of conducting epidemiology. It stated:

There appear to be major inaccuracies, and serious questions as to the consistency and reliability, in the measurement and recording of the radiation exposures of nuclear weapons complex workers.

In one case spurious "correction factors" were invented to lower exposure figures and give some workers a "negative radiation dose", something that does not exist in nature.

One research team has concluded that there is "no constant relationship between recorded doses...and actual doses."

At one site involved in a study of all workers exposed to more than 5 rem [the annual limit] of external radiation in any one year, records are so confused that the true number of workers exposed at that level may be three times greater than the number included in the study, and the number exposed to 4 to 5 rem (many of whom may in fact have had higher exposures) is ten times greater.

The degree of incompleteness will vary from worker to worker and site to site. But the overall result is that contractors have compiled records on a large number of workers which systematically understates their actual exposures. As a result, worker compensation cases have been dependent upon incomplete or inaccurate internal dose data that underestimated exposure levels. Likewise, epidemiology studies have relied upon flawed data. As such, workers compensation cases may, in many cases, have been unjustly denied.

4 Examples of working Conditions

An analysis by Institute for Environment and Energy Research revealed that in all years between 1952 and 1962 (except one), more than 50% of the workers who were measured were exposed to more than the then-allowable limits of 15 rem per year to the lung.7 In one year, 90% received in excess of 15 rem to the lung.

Working conditions at the Fernald uranium processing plant, especially in the 1950s and 1960s, were typified by high air concentrations of uranium in many areas of the plant which often exceeded the Maximum Allowable Concentration (MAC) by tens of times, hundreds of times, and even thousands of times. One 1960 plant document lists the air dust concentration in the breathing zone of an operator cleaning under a burnout conveyor as 97,000 times the MAC.2 Work procedures also contributed to the high air dust concentrations in the plants. For example, a 1968 plant document described the procedure for emptying a dust collector:

The dust is emptied from the collector on the second floor and falls down a chute to a nonventilated drum on the first floor. The operator on the first floor signals to the operator on the second floor that the drum is full by pounding on a metal beam with a hammer. Because of the noisy conditions prevalent in the plant, the second floor operator does not always hear the signal. This results in an overflowing drum of dusty material causing a cloud of radioactive dust to fill the area which also goes up the stairwell into the second floor.3

Due a severely flawed radiation monitoring program at the Mound facility in Ohio in the mid 1990s, DOE's operating contractor concluded that "an unacceptable risk exists of not detecting (in a timely manner) all personnel exposures." In 1991, workers exposed to actinium-227 had their samples left to sit on a shelf for three years. The outside laboratory was deemed unreliable after half the workers came back elevated. Then a second lab found elevated actinium-227 readings. Management dismissed these findings as well.

Subsequently, thousands of lab samples backlogged at the site, and workers were unable to know whether they should be restricted from hot areas or not. After a dozen workers filed suit in 1985 on behalf of a class of workers, DOE produced internal memos indicating that its contractors were aware of how disfunctional the radiation program had become. Two fines were levied against EG&G (1997) and then Babcock & Wilcox (1998) for violations of the DOE's Price Anderson Act rules related to failure to maintain an adequate bioassay program.

Workers were never told, of course, how badly the radiation protection program had degenerated. In June 1996, Senator John Glenn and Representative Tony Hall obtained a commitment from DOE to expend some $6.5 million to buy equipment to better protect workers and to reconstruct doses of all people who received in excess of 20 rem lifetime.

That reconstruction project will take 5 years to complete, with a June 2001 estimated date of completion, for approximately 2,500 workers at a cost of approximately $9.0 million.

The dose reconstruction project will clearly provide valuable data (and some preliminary data shows some workers had large doses of plutonium and polonium), but given the large cost and a 5-year time frame, it does not appear to be a model Congress should replicate in legislation to ascertain eligibility for workers compensation. If sick workers have to wait 5 years for the reconstruction of their doses in prove a workers compensation claim, this delay will lead to the unpleasant reality that many claimants will expire before ever receiving a decision on their claim.

5 Legislative Remedies

Today we are reconsidering the concept of securing a federal workers compensation remedy for nuclear workers after a 40 year hiatus.8 We review two comprehensive proposals before the House of Representatives.

A) "The Energy Employees Occupational Illness Compensation Act of 2000" (HR 4398 )

HR 4398 sets the high water mark-the gold standard-for assuring equitable treatment of all defense nuclear workers for beryllium disease, radiation related illnesses and exposure to hazardous substances.

The U.S. Department of Labor's Office of Worker Compensation Programs would administer this program, and pay benefits equivalent to those afforded under the Federal Employees Compensation Act ("FECA")-approximately 66 2/3% of the former weekly wage and medical benefits for the illnesses. However, an alternative compensation remedy could be elected by the claimant, which would pay a $200,000 lump sum with health care. Benefits would be non-taxable. This program is funded by "direct spending." The concept of lump sum is derived from worker compensation laws which provide for scheduled payments for the loss of limbs. For example, the maximum benefit under FECA for a lost arm at the shoulder is 312 weeks payment up to $454,038.

HR 4398 builds upon the part of DOE's earlier legislation (HR 3418) that shifted the burden of proof for radiogenic tumors for Paducah workers (due to failure to monitor workers). Under HR 4398, the burden of proof for causation shifts to the government for workers who contract a radiogenic cancer at all DOE nuclear facilities. That presumption--which was borrowed from the Radiation Exposure Compensation Act ("RECA") because of the near impossibility of establishing an accurate radiation dose--provides that if (1) the employee was employed at a DOE nuclear facility more than one year, and (2) was given a dosimetry badge or should have been provided one, and (3) they contract a specified disease, then the claim is compensable "in the absence of substantial evidence to the contrary." Under HR 4398, workers at all covered nuclear facilities would be eligible for benefits based on this formula9, instead of only the gaseous diffusion plant workers as outlined in the Senate Title and the informal Administration approach.

Beryllium exposed workers who can show they are "sensitized" through a lymphocyte proliferation test ("LPT") will receive medical benefits pertaining to their condition. Those who contract chronic beryllium disease would receive the option of FECA benefits or the $200,000 lump sum alternative with health care. Claimants would have costs of diagnosis covered by DOL, even if a claimant sought a second medical opinion.

For hazardous substances and minerals, the DOL would utilize medical expertise from standing panels of occupational physicians who would be retained by the Department of Health and Human Services. Doctors would determine whether workplace exposure is a substantial contributing factor to the illnesses. DOE and its contractors would be obligated to provide data and studies, but be precluded from participating in the claims determination process.

DOL claims examiners review applications for benefits, and appeals would proceed through an administrative law judge, the Benefits Review Board and final appeals, if any to the Court of Appeals.10

B) The Thompson-Bingaman Amendment included in the Title 35 of the Senate Defense Authorization Act (S.2549) and the Udall Bill (HR 5189)

Under the Thompson- Bingaman Amendment, a worker compensation program is established to cover radiation, beryllium and silicosis, wherein the Labor Department provides eligibility for FECA level of benefits through its current Office of Worker Compensation Programs, with several exceptions.

Title 35 provides for claimants to elect alternative compensation of $200,000 with medical benefits or wage replacement with medical benefits.

Title 35 creates a special cohort where the burden of proof shifts back to the government at the three uranium enrichment plants and the Amchitka Island Test site if the claimant worked at the facility for a cumulative period of 1 years prior to 1992 (when DOE began testing workers for exposure to transuranics). For radiation workers at all other sites, Title 35 requires the Department of Health and Human Services-through NIOSH-to establish "guidelines" for determining whether the disease is "at least as likely as not" work related, based on a model established by the Veterans Administration. To address problems with inadequate dosimetry, the Title directs HHS to reconstruct doses if the workers were monitored. For situations where it is not feasible to reconstruct a dose and the affected workers may have been endangered, they may to petition the Secretary of HHS to be placed in the "special cohort"where the burden of proof shifts to the government. This approach represents a carefully structured compromise that combines the use of good science where it exists and, where it does not, provides a process to overcome situations where workers face insurmountable burdens of proof because the government failed to monitor them.

For hazardous substances other than radiation, beryllium and silicosis, a new DOE's Occupational Illness Compensation Office would select panels of doctors from a list supplied by HHS to review claims. If a doctors' panel determines that exposure "arose out of the course of employment" the Office Director will assist claimants with state worker compensation filing and recommend to the Secretary of Energy that the DOE and its contractors not contest the claim. Claims payments would be funded out of the DOE program office (cleanup, defense programs).

This Title provides coverage for workers at DOE-owned contractor-operated facilities, beryllium vendors and other types of vendors who supplied radioactive materials to the DOE (or its predecessors). Many of these facilities were featured in a three day series in USA Today on September 6-8, 2000. This compensation program is structured as an exclusive remedy with respect to future direct claims by employees against employers, while protecting a plaintiff's right to maintain suits against employers or the federal government that were brought through July 31, 2000. For third party tort claims, victims would be able to bring tort actions and bring a worker compensation claim. However, once payment has been accepted under this Title, they would not be able to proceed with a tort claim.

FECA's existing appeals body, the Employee Compensation Appeals Board, is two years backlogged. Title 35 creates a new Energy Employees Appeals panel. We believe there is no need to create a new appeals body when the DOL's Benefits Review Board is available and is not seriously backlogged. Title 35 provides a right of judicial review for adverse determinations by the Department of Labor. A right of judicial review is absolutely essential in any compensation program to assure accountability.

Finally, Title 35 is funded through direct spending. Worker compensation programs must be structured to provide benefits when workers are hurt and in need. Making a program subject to annual appropriations would put the administrative agency in the position of announcing that an award is merited and then telling the claimant to line up and wait in line if there aren't enough funds appropriated in any given year.

Analysis

Title 35 is less comprehensive than HR 4398, because it does not cover hazardous chemicals and heavy metal exposures-exposures which have taken a demonstrable toll on worker health. However, Title 35 provides an important building block in remedying some of the most widespread impediments related to proof of work-relatedness, statutes of limitations, burdens of proof, the quality of exposure data, and multi-state jurisdiction issues for beryllium-, radiation- and silica- related occupational illness. We support some improvements to the Senate provisions that would add a requirement for HHS to evaluate whether there should be coverage for chronic renal diseases for workers exposed to uranium, illnesses related to drinking water contaminated with heavy metals at Oak Ridge, and workers exposed to uranium at the Linde facility in Tonowanda, New York after it ceased processing uranium for the AEC.

The State of Ohio Bureau of Workers Compensation testified before the Senate that a unique set of circumstances warranted federal intervention. They noted two particular factors11:

The first is lack of documentation and the significant amount of time that has passed since many of these workers first contracted or died from their occupational diseases. Adding more confusion to this situation is the growing concern that some former employers may have altered, falsified or even destroyed medical documentation proving such exposure. The lack of documentation make it nearly impossible and delayed claim filing could make it nearly impossible for a worker to make their way through state systems.

The second factor deals with the complexity of multiple sites, states and competing laws that will create jurisdictional questions. In Ohio, we are dealing with multiple sites and multiple employers. Some of the employers were covered by these state workers' compensation system, others were or are self-insured. Many of these employers or their subcontractors could have worked in multiple sites in multiple states. What happens to the subcontracted employee who worked at Paducah, Kentucky plant for six months and then was assigned to the Piketon, Ohio plant for six months, followed by two years with a third state with another employer? Where was the point of last injurious exposure that caused the illness? Who was he or she working for? Which state benefits system should the worker fall under? These are types of questions that the injured worker should not have to face and that could be avoided under a federal compensation system. Doing so ensures uniformity of procedure.

The need for federal workers compensation is evident from many perspectives. Attempting to place this program in agency other than the Department of Labor could lead to lengthy start up delays and hurt those who are most deserving. The DOL already has the basic regulations, dispute resolution mechanisms, nationwide structure of offices to receive claims, and policies to implement a worker compensation program. Asking another agency replicate this infrastructure is inherently wasteful.

Conclusion

We urge the support the Senate Title 35 (HR 5189) as part of the FY 2001 Defense Authorization Act (DAA) as an essential building block. We urge the Committee to support this approach in the conference of the DAA.