May 16, 2007

Is Help On the Way?

Evidence suggests that the Labor Department is seeking to limit federal compensation payouts to victims of Cold War-era nuclear contamination.

Audrey Dutton | May 16, 2007 | web only

In the desert of southeastern Idaho, there is a sprawling nuclear complex named the Idaho National Engineering and Environmental Laboratory (INEEL). It's a smattering of boxy buildings surrounded by about 900 miles of sagebrush and sand. The facility was built at the very beginning of the Cold War, when the Atomic Energy Commission peppered the country's most desolate areas with power plants and nuclear testing sites.

In 1951, the INEEL was the first in the United States to produce electricity using atomic energy. Ten years later, it was the site of the country's first and only fatal nuclear power plant accident.

On January 3, 1961, three workers were sent in for routine maintenance on a low-power reactor at the edge of the INEEL campus. That night, two of the men hovered near the reactor, while the third stood on top, bracing his legs to hoist a 90-pound control rod. But he pulled too fast, triggering a nuclear reaction that burst the vessel. The violent explosion killed all three men -- impaling one in the ceiling -- and pumped their bodies so full of radiation that they would later be buried in lead caskets.

Wilford Anderson was one of the first men at the scene. He and his wife Betty had been on their way to bed that night when the phone rang, and Wilford heard about the accident. Radiation was leaking from the reactor at levels beyond what INEEL equipment could measure; Wilford's job at the plant was to monitor radiation exposure. He headed out the door, and didn't come home for a week.

In the fall of that year, Wilford got sick. Within a few years, Betty says, her husband was visiting the plant's infirmary two or three times a week with headaches and chronic colds. He later learned he had developed lymphoma and thyroid cancer. The cancers killed him in 1993.

Betty says the federal government denied until last year that Wilford had been exposed to fatal doses of radiation. She spent five years trying to convince the Department of Labor that Wilford's cancers were linked to the INEEL disaster. She filed seven Freedom of Information Act requests that yielded heavily blacked-out copies of her husband's employment records. It was only after hiring chemists, physicists, and attorneys to help make her case that she won compensation for her husband's death.

“They took us in circle after circle,” Betty said. “It’s so unfair, and what really, really disturbs me is I know this is still going on.”

Her frustration is echoed by chronically and terminally ill people who worked at nuclear facilities across the country during the Cold War. Men with radioactive particles lodged in their sinuses, welders who remember iodine spills and crane operators who breathed cesium -- these people, or their surviving family members, say the government is betraying its promise to compensate them for decades of radiation overdoses.

Indeed, evidence suggests that the Labor Department and Bush administration have sought to limit payouts through a federal compensation program by delaying or blocking the approval of eligible compensation claims. Cold War nuclear workers and their advocates point to a series of e-mails and memos circulated within the DOL and between it and the White House Office of Management and Budget (OMB) -- documents that sparked a series of under-noticed congressional hearings last year. Former nuclear workers and their families hope that those hearings will not mark the end of congressional investigations into the program.

But the program’s administrators maintain that their only goal is to pay claims fairly, and that critics are misinterpreting the documents that sparked hearings.


In the eleventh hour of his presidency, Bill Clinton acknowledged tens of thousands of cases like Anderson's when he approved the Energy Employees Occupational Illness Compensation Program Act of 2000. The Act had won bipartisan support on Capitol Hill and was presented as an expression of contrition for decades of government-sponsored radiation overdoses. It recognized that, for decades, Cold War workers were kept in the dark about the dangers of chemicals and radioactive materials they handled each day. In his statement accompanying the Act, Clinton told administrators of the program to be "compassionate, fair, and timely."

The Act mandates that the federal government give lump-sum payments of $150,000 to ailing nuclear workers or their surviving spouses and children, pay medical bills, and make up for lost wages. But first, claimants must prove that their work at Department of Energy facilities made them sick.

Most claims are decided by a lengthy technical process -- sometimes taking as long as three years -- that calculates how likely it is that an illness was caused by work in Cold War facilities. Many claimants have died while awaiting payments from the Labor Department.

A select group of facilities are part of a "special exposure cohort," whose retirees are automatically granted compensation if they have one of 22 types of cancer and worked at the facility within a set timeframe. There are currently 18 sites in the cohort, and legislators (including New York Senators Chuck Schumer and Hillary Clinton) have jockeyed to get the coveted cohort status for their states' facilities.

The INEEL belongs to the former group, putting the burden of proof on claimants. Retirees who have applied for benefits outside of the cohort describe a losing battle -- denials followed by years of appeals.

One of these claimants is Darrell Hanni, a 77-year-old grandfather who ran the bulldozers that razed the INEEL wreckage and buried the contaminated debris in the desert, far from human contact. Hanni started that job on July 1, 1961. He finished on July 1, 1962. He said his records show that he got nearly 70 times the average American's annual radiation during that year. According to the Department of Energy's guidelines, a nuclear employee's acceptable dose of radiation in a calendar year is 2,000 mrem. If you're going to push it, the DOE says you can get away with 5,000, under strict monitoring. Hanni said the medical records he got from INEEL when he retired show a total dose of more than 13,000 for the 12 months he worked at the radioactive site.

Hanni was diagnosed with bladder cancer in 2001. Faced with piles of medical bills and suspecting a link to the INEEL cleanup -- or to the 40 years prior that he spent working in radioactive danger zones at INEEL -- he applied for compensation under the Act, but was denied. In Hanni's denial letter, the Labor Department told him that a computerized calculation showed only a 41.83 percent chance his job gave him cancer -- not the 50 percent likelihood required to get paid. He would need to come up with proof of that extra 8.17 percent.

Another claimant who was denied, Harold Rothwell, worked as a welder at INEEL. One of many accidental radiation exposures he recalled happened in the 1950s. He woke the next day with a blistered mouth, swollen throat, and loose teeth, he said. He continued working as a welder at INEEL, where he frequently went into the heart of nuclear reactors to finish welding jobs. Now he is wheelchair-bound from lung and joint problems, including an elbow whose cartilage has fallen out of the joint and hangs loose in his skin.

Shirley Codding is another Idaho worker whose claims were denied. Codding processed uranium byproducts from spent fuel rods from 1981 until last year. Codding’s first tumor appeared in her head 20 years ago, when she was 39. Three more tumors followed. Codding has gone through radiation treatments, and doctors removed her ear to extract the tumors. She is now deaf in her right ear, which is sewn shut and missing an eardrum. Codding says she loved her job at the plant, but wishes the government would answer her plea for medical coverage. “The last time they denied me, I said, you know, I’ve been arguing with them for three years, [and] I finally just dropped it,” she said, adding that most people who ask for compensation “don’t stand a chance.”

Former INEEL workers and their families filed more than 4,300 claims under the Act since 2000. To date, about 300 have been paid. Nationally, nearly 62,000 Cold War veterans have asked for compensation, and of their 146,000 claims, roughly one in five were paid. Nearly 60,000 claims came back with a rejection letter marked "final."

Though standards for compensation have been stringent from the beginning of the program in 2000, matters have worsened under the Bush administration. Program mismanagement by the Labor Department and joint efforts between the DOL and the White House Office of Management and Budget to limit pay-outs are the reasons for high rates of denial, according to claimants and advocates. They said an effort to lower federal spending by a conservative administration, combined with a lack of real interest in paying former Cold War workers, created fertile ground for malfeasance in the Labor Department.

“This is a culture, a trajectory, a set of initiatives,” said Richard Miller, a nuclear worker advocate who had testified during hearings on behalf of the Government Accountability Project, a watchdog group. “We were fighting constantly, not knowing this whole hidden agenda was going on … or the degree of contempt they held claimants, members of Congress.”

Starting in October 2005, less than a year after the Labor Department began adjudicating claims under program director Shelby Hallmark, the DOL began sifting through eligible claims and sending them back through the claims process to be "reworked." According to Miller’s testimony from the fourth hearing, a DOL e-mail written during that time said, "When we send remand orders to claimants, I don't want them to know they are part of a management plan."

Hallmark said the e-mail was written by someone “down at the staff level” and doesn’t mean that the Labor Department was hiding a management plan. “That was inadroit language,” Hallmark told the Prospect earlier this month.

Also that October, an e-mail from the OMB to Hallmark praised him for alerting the OMB to efforts by workers' advocates and legislators to add more nuclear plants to the automatically-compensated special exposure cohort. The e-mail encouraged Hallmark to present "programmatic reforms" that "we could potentially tee up for our policy officials."

The subsequent memo from OMB to Hallmark, for the White House's proposed 2007 budget, listed five ideas to "contain growth in the cost of benefits provided by the program." One option was to give the White House authority to decide which claims qualified for compensation. Hallmark brought up budget and cost-containment in a number of e-mails subpoenaed by the House subcommittee that held hearings on the program last year. Despite this, the OMB and DOL have maintained during congressional hearings and interviews that there are no plans to restrict claims.

"The OMB document they're talking about raised options for internal debate within the administration, and obviously there was a lot of internal debate that was going on," Hallmark said during an interview on the Hill last December. He said the DOL's only plans were to fairly compensate nuclear veterans.

In an interview earlier this month, Hallmark said he understands why some veterans are angry at the Labor Department for rejecting their claims. “Many people get cancer. Forty, 50 percent of the population is going to get cancer at one time or another, regardless of what they’re exposed to. And if I were a worker at one of these sites, and I got cancer, I would … think that my cancer was caused by exposure at the work site,” Hallmark said. “The science doesn’t necessarily work out that way.”

Hallmark said the memo opened a floodgate of “20,000 e-mails” subpoenaed by the committee that he has “spent the last two years having to dig up,” and that his words have been misinterpreted. (The White House has never disavowed its memo suggesting ideas for cost-containment.)

The five-part series of hearings on the Hill occurred following the leaking of the OMB memo to the Associated Press in the spring of 2006. Ousted Republican Representative John Hostettler chaired the hearings. He brought in officials from the OMB and Labor Department, scientists, claimants, and the Government Accountability Office -- which found a need for “diligent” program oversight. The hearings provoked outraged statements from elected officials across the country, including Senators Schumer, Clinton, and Obama.

Cindy Blackston, then a House Judiciary Committee staffer who worked on the investigation, spent at least 16 hours poring over Labor Department communications after the OMB memo was leaked. Blackston said the e-mails she read showed a deeply rooted bias in the administration against paying Cold War survivors.

“The only way to make [the program’s payment record] somewhat reasonable is to basically police it 24/7, and that’s a problem because you have to have a concerted effort by a lot of people with influence or visibility,” she said. “Nobody from the new majority or minority is banging the drum.”

Meanwhile, the movement against the program is gaining momentum outside of Capitol Hill. Six workers from Colorado, New Mexico, and Ohio filed the first class action lawsuit against the administration last month. The men sued the DOL over withholding payments for in-home nursing care. There would have been eight men named as plaintiffs in the suit -- but two of them died, both of whom were waiting for the Labor Department to pay for healthcare services ordered by their doctors.

But Hostettler’s successor, Democrat Zoe Lofgren of California, has not committed to picking up where Hostettler left off investigating the program -- though she said in an e-mail to the Prospect that she is "deeply distressed" by the DOL's payment record.

With investigations at a standstill in Washington, claimants and their surviving family members are struggling to figure out just who are the compensation program's true beneficiaries. "Once you get into it deep, and see all the politics, it makes you wonder," Betty Anderson said. "The people who were exposed out there, most of them are dead now because they were in their 80s. It seems [Labor Department administrators] were just waiting for people to die so they wouldn't have to pay them."

Audrey Dutton is a reporter for The Gazette in Montgomery County, Maryland.

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