Abstract
Will the legislation do the job?
MAKING IT WORK
On December 6, 2000, a reception was held on Capitol Hill for Republican and Democratic senators and representatives, labor union leaders, environmentalists, and Clinton administration officials to celebrate passage of the nuclear weapons worker compensation law. It was a rare occasion to see normally bitter political adversaries patting one another on the back and singing each other's praises.
Six months later, things aren't so rosy. The Bush administration budgeted $597 million for fiscal year 2002 to compensate eligible workers. Although the workers can begin filing claims this month, the administrative elements necessary to carry out the law won't be in place for more than a year.
Three federal agencies share responsibility for implementing the law: the departments of Labor, Energy, and Health and Human Services.
Although it has the experience and resources necessary to implement the new program, there are some serious concerns about whether Labor will be able to fairly process claims. For example, will claimants be given a swift and fair process that produces timely decisions and offers independent appeals of adverse determinations without prolonged bureaucratic delays? There is already a backlog of more than a thousand federal worker compensation appeals, many of which have been waiting for years. What impact will this have on nuclear workers' claims?
And how will Labor be held accountable for its decisions? The new law allows for judicial review of department decisions. But under the proposed rules, those administering the appeals process will be able to close any case that has been pending for more than a year, regardless of the status of the appeal. Labor will also be allowed to change a final decision at any time. Other federal compensation programs provide formal due process before an administrative law judge, where medical opinions are provided by doctors not employed by the Labor Department. Since the federal government is ultimately the one being held responsible for the injuries covered by the program, there will be pressure to reduce the government's liability. Also, the compensation fund is an entitlement that comes out of the National Defense Account of the Treasury, meaning it will compete with defense spending. What kinds of checks and balances will be put in place to ensure that agencies will not interfere with and unduly influence claims decisions?
Above: Retired workers outside the nowabandoned Harshaw Chemical plant in Cleveland, Ohio, where plutonium-laced uranium was processed in the 1940s and 1950s. Below: Sen. Jeff Bingaman at the December 6, 2000, reception on Capitol Hill celebrating passage of the nuclear workers compensation law.
Niosh will also identify other workers who should be placed in the “Special Exposure Cohort,” where the presumption is in the claimant's favor. The concept of shifting the burden of proof to the government was first established in 1990 under the Radiation Exposure Compensation Act (reca). More recently, the concept was incorporated into a compensation program for victims of human radiation experiments. A special advisory committee will be impaneled to oversee this politically sensitive process. Congress will also have a 180-day window to review niosh's recommendations.
Claims filed by people who are not members of the Special Exposure Cohort will be judged using a complicated statistical formula called the Radio-Epidemiological Risk Tables. The tables are designed to provide probability estimates about an individual's risk of contracting a radiation-induced cancer. The model is meant to compensate for the serious deficiencies in the government's worker exposure data. However, for those workers about whom there is no exposure data, it will be impossible to use the formula equitably.
Because many individual exposure records are incomplete or nonexistent, a more effective scientific approach would be to define exposures and risks to groups of workers by interviewing workers and reconstructing site histories. At some sites, the Energy Department collected ambient airborne concentration levels in the workplace. These data could help niosh identify and estimate exposures and risks. An example of this type of information is the “mass balance” study recently released by the Energy Department, which assessed workplace exposure to uranium contaminated with plu-tonium and neptunium (see below). Although individual workers' exposures were not measured, air concentration data allowed experts to estimate group exposures.
While making the world's most destructive weapons, workers were exposed to a panoply of some of the world's most toxic substances, many of which are not covered by the compensation law. To redress this problem, Congress required the Energy Department to establish an Office of Worker Advocacy, which is responsible for assisting workers with state worker compensation claims.
Energy is also supposed to set up a process, to be approved by a niosh panel of physicians, to separately evaluate workers' claims for all illnesses except those caused by beryllium, radiation, and silica. If the panel finds the claims justified, Energy will urge contractors and state worker compensation programs not to challenge them.
Sen. Fred Thompson at the December 6 Capitol Hill reception.
“Mass balance”
On March 29, the Energy Department released a groundbreaking “mass balance” study of the movement of recycled uranium through the nuclear weapons complex during the past 50 years. It revealed one of the last largely unknown “flow sheets” of the U.S. nuclear arms industry, in which uranium was reused for nuclear explosives and component production. The study, which was initially spurred by news reports in 1999 that workers at the Energy Department's three gaseous diffusion plants handled uranium contaminated with plutonium and neptunium, suggests that many more workers and members of the public were put at risk than was previously thought. The study also demonstrates the need to add other sites to the “Special Exposure Cohort” established by the worker compensation program. Currently, the program covers only the three gaseous diffusion plants and the Amchitka test site.
The study's purpose was to determine the origins and quantities of the recycled uranium, where it was processed, where it ended up, and the various health and environmental risks it posed. Some 250,000 tons of uranium contaminated with plutonium 239, neptunium 237, technetium 99, and other fission products were recycled and processed between 1952 and 1999 at more than two dozen facilities. The uranium was often sent to private facilities, universities, and military bases throughout the United States and the rest of the world. Most of these sites lacked the proper worker or environmental standards for handling these materials.
Early government records cited in the study show that workers at some facilities who handled recycled uranium were knowingly overexposed to radioactive contaminants. For example, the Harshaw Chemical Company in Cleveland, Ohio, processed recycled uranium from the Hanford weapons production reactors to reduce the plutonium content so that it could be accepted at the government's uranium enrichment plants, where stricter standards were in place.
Several of these facilities, like the Sylvania-Corning processing plant in Hicksville, New York, were located in or near residential areas. New York's Department of Environmental Control and the company that now owns the Hicksville site recently announced that they will excavate four large areas on the property and put in monitoring wells to see if the radioactive plume is traveling off site. The state health department will assess whether the number of cancer cases in the nearby neighborhood has been excessive.
The mass balance study also uncovered major inventory discrepancies regarding recycled uranium and the quantities of plutonium and other radioisotopes in the material. The Energy Department has taken the position that there were no health and environmental problems and that no further action is necessary. The National Nuclear Security Administration will review the inventory discrepancies under strict secrecy without public scrutiny. We may never know what happened to the missing plutonium and neptunium processed by unknowing workers.
This process may work in some cases. But state laws—statutes of limitations, requirements to oppose claims to minimize poor “experience ratings,” absence of presumptions where data doesn't exist, multiple-employer liability questions—will inevitably handicap the process and result in unfair judgments.
The Energy Department and its contractors are also concerned that the compensation program will cut into appropriations for defense and cleanup. This is the same conflict of interest issue that caused workers to be made sick in the first place. By contrast, the federal worker compensation system is structured so that entitlement money does not compete with other Energy Department programs.
Finally, Energy is charged with providing data to help niosh's dose reconstruction program. Most exposure data, work history information, and medical records remain in the possession of Energy or its contractors. In many cases, exposure and medical data are still secret. And because there were no consistent, uniform exposure or record-keeping requirements at nuclear weapons sites, the quality of the data varies widely. The current trend back toward excessive secrecy within the Energy Department will further impede niosh's efforts to produce adequate exposure estimates.
Despite former Energy Secretary Bill Richardson's sweeping admission early last year that the production of nuclear weapons harmed workers, department officials and contractor representatives remain hostile to addressing worker health issues. Energy's half-century record of putting workers at risk and fighting compensation claims will not be easily reversed.
Refining legislation
The nuclear workers compensation law requires refining legislation to address issues that Congress was unable to resolve last year. Legislation submitted to Congress in early January by the outgoing Clinton administration was “dead on arrival.” As of this writing in late May, no alternative legislation had been submitted.
One of the issues requiring further refinement is that the law's definition of chronic silicosis—a progressive and terminal lung disease caused by inhalation of silica dust in mines and underground tunnels—is not consistent with medical and scientific consensus. This definition was put in the legislation at the last minute at the behest of the hard rock mining and asbestos industry. As a result, the definition allows compensation in only the most severe and terminal cases.
There is also a need to convert RECA into an entitlement program. Because Congress appropriates the money for this program each year, it often runs out of money—as it did this year—and miners or their survivors are left holding ious.
In addition, Congress was unable to agree on the issue of wage replacement for disabilities, the most common form of worker compensation. The current compensation program offers a lump sum payment of $150,000, which in many cases is dwarfed by the amount of back wages disabled workers lost after being forced into early retirement.
For the many people who fought during the past two decades to pass a nuclear worker compensation law, it is now clear that enacting the legislation was only the beginning. The process of implementing the law will be just as difficult and complex.
The sites
On January 10 the Energy Department published a list of sites covered by the Energy Employees Occupational Illness Compensation Act of 2000. The list includes three types of facilities:
Activities for the Naval Nuclear Propulsion program are not covered.