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National Institute of Occupational Safety and Health Opposes LANL Special Exposure Cohort Petition

By Mark Schiller

Longtime readers of La Jicarita News are aware that we’ve written numerous articles regarding the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). This program, enacted by Congress in 2000, is supposed to provide financial compensation and medical benefits for workers at federal nuclear facilities who have been made ill by exposure to radiation and other toxins in the workplace, but in fact has provided benefits for only about 28 percent of claimants nationally and less than 20 percent of claimants from Los Alamos National Laboratory (LANL). Moreover, claimants have to undergo a lengthy bureaucratic process, which testimony before Congressional committees has demonstrated is often tainted by incompetency and insensitivity by government administrators. Knowing all that I was still surprised by the seeming indifference to sick workers’ suffering displayed by number crunching bureaucrats from the National Institute of Occupational Safety and Health (NIOSH) and the Department of Labor (DOL), which administers EEOICPA, at the February 17-19 meeting of the Advisory Board on Radiation and Worker Health (ABRWH) in Albuquerque.

I attended the February 17 afternoon and early evening sessions primarily to hear NIOSH respond to a petition by contract workers (security guards, firemen, custodians, welders, etc.) at LANL to extend Special Exposure Cohort (SEC) status to that class of workers for the years 1976-2005. SEC status is a concession by the government that it does not have enough reliable information to “reconstruct” the exposure of workers at a specific facility during a specific time period. Gaining SEC status grants blanket benefits to all workers at that facility who have contracted one or more of twenty-two specified cancers during the specified time period, without having to go through the lengthy and scientifically questionable dose reconstruction program (LANL already has two SECs that cover the years 1943-1975; see the February 2009 issue of La Jicarita News for more specific information regarding the latest SEC petition). The dispassionate and sometimes glib manner in which NIOSH and DOL employees reported on the program generally, and the LANL SEC specifically, seemed to totally ignore the fact that the lives of people, who the government knowingly placed in harm’s way, are held in the balance. It was simply scientific data and statistical information to them.

Before NIOSH gave its presentation about the LANL SEC petition to the Advisory Board that will make a recommendation to Congress, both NIOSH and DOL gave presentations regarding issues of general concern. The NIOSH presentation outlined new, more restrictive rules for access to “classified” and “controlled” government documents essential for claimants to substantiate their claims and for the Advisory Board’s independent contractor, Sanford Cohen and Associates (SC&A), to evaluate SEC petitions and audit NIOSH’s dose reconstruction program. In essence, NIOSH, sounding the never ending call for increased national security, added additional layers of bureaucracy to the process of obtaining these documents, which will not only delay an already protracted process but also add increased costs to a program whose administrative costs are equal to 32 percent of benefits (compare this to Social Security Disability Insurance, whose administrative costs amount to approximately 2.5 percent of benefits).

In a response to these new policies the Alliance of Nuclear Worker Advocacy Groups (ANWAG) requested clarification of statements included in the “security plan” that NIOSH could withhold documents if it determines that the information contained in them has the “potential to damage governmental, commercial or private interests if disseminated,” or if persons requesting documents “do not need to know the information to perform their jobs or other authorized activities.” ANWAG pointed out that these statements, obviously open to broad interpretation, “failed to incorporate” President Obama’s recent memorandum stating, “The government should not keep information confidential merely because officials might be embarrassed by disclosure, because errors and failure might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interest of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA [Freedom of Information Act], executive branch agencies should act promptly and in the spirit of cooperation . . . .”

In addition, ANWAG took issue with NIOSH’s assertion that Sanford Cohen and Associates (SC&A) is NIOSH’s contractor rather than the Advisory Board’s contractor because funding for SC&A is funneled through NIOSH. ANWAG pointed out that SC&A “was awarded a contract to audit . . . NIOSH and its [NIOSH's] contractor, Oak Ridge Associated Universities’ (ORAU) technical documents and scientific assumptions” and therefore is only answerable to the independent Advisory Board and the President who appoints its members. Board members Dr. James Malcolm Melius and Bradley P. Clawson were vehement in their denunciations of NIOSH’s claim that SC&A was NIOSH’s rather than the Advisory Board’s contractor, as well as the new security plan. They claimed both issues jeopardized the Advisory Board’s ability to make informed, unbiased recommendations to the President and Congress.

Next up was a Powerpoint presentation by the new Director of the Division of Energy Employees Occupational Illness Compensation, Rachel Leiton, that glossed over an enormous amount of statistical information about EEOICPA at a speed that I felt intentionally precluded comprehension. Let me cite just a few examples from the spreadsheets that accompanied the presentation. Of 64,889 cases filed with DOL under Part B of EEOICPA (which grants $150,000 in compensation as well as medical benefits to workers whose cancer, Silicosis, or Beryllium disease NIOSH has determined was caused by exposure to toxins in the workplace), 28,654, approximately 44 percent, were actually referred to NIOSH for evaluation. A small percentage of the approximately 36,000 claims not sent to NIOSH were Beryllium and Silicosis claims that do not undergo dose reconstruction through NIOSH, but the majority of other claims were eliminated for other, unexplained reasons and statistically ignored. Of the 28,654 cases that were referred to NIOSH, 19,503 went through the dose reconstruction process administered by NIOSH’s contractor ORAU, which, in theory, determined the “probability” of claimants’ cancer(s) being caused by workplace exposures to radiation. More than 2,700 were unaccountably withdrawn from NIOSH without going through dose reconstruction. Of the 19,503 cases that did go through dose reconstruction, DOL has made final decisions in 16,876 cases, approving 6,091 and denying 10,785. Final decisions on approximately 2,200 other cases are pending. 6,403 cases are currently undergoing dose reconstruction, nearly half of which are “reworks”, meaning there was a significant basis for the claimant’s initial dose reconstruction to be redone. Bear in mind that many of the cases for which there were final decisions also had to be redone at a cost of $12,000 to $15,000 per case. Finally, the average time from submission of a Part B claim to a final decision was 1,090 days or approximately three years. These are pretty disturbing numbers and account for only a small fraction of the information given in an approximately fifteen minute presentation. It took me an hour to distill the above information from the spreadsheets and a call to Ms. Leighton for explanation and clarification. Yet the entire presentation went unquestioned by the Advisory Board and only one member commented that the three-year processing period was excessive.

Next on the agenda was NIOSH’s response to the LANL SEC petition delivered by Dr. Gregory V. Macievic, a health physicist, who was part of the NIOSH team that drafted the recommendation to deny the petition.

The claimants’ petition noted that NIOSH itself conceded in its recommendation to approve the 1943-1975 SEC “potential dose reconstruction issues may exist for the post-1975 period.” Specifically, the SEC petition asserted ancillary (contract) workers were given no or inadequate protective equipment; went unmonitored when they were first-responders to accidental exposures; were excluded from the urine sampling and the whole-body counting program; were often monitored inadequately because they worked in multiple facilities during the course of a day and the dosimeters they were given could not adequately account for the magnitude or mixed activation effects of their exposures; and they were exposed to a broad spectrum of radioactive elements for which the dosimeters did not monitor.

Dr. Macievic’s response not only attempted to counter all of these claims but further asserted that if NIOSH knew what it had learned since the confirmation of 1943-1975 SEC, it would have recommended denying that petition for the years after 1970 as well. Interestingly, he didn’t directly deny many of the petitioners’ claims, but suggested there were ways around them. For instance, if a worker was unmonitored while in a specific area, Dr. Macievic suggested NIOSH’s monitoring contractor ORAU could use data collected from co-workers who were monitored to estimate the unmonitored worker’s exposure. Similarly, he noted that while there was a wide spectrum of “exotic” radionuclides used at LANL for which there was no specific monitoring, these so-called exotics, he claimed, behaved similarly to the more common radionuclides for which there was monitoring. He therefore suggested that by using the monitoring records for the more common nuclear elements, ORAU could accurately extrapolate exposure to the exotics.

In a telephone interview after the meeting, Alliance of Nuclear Workers Advocacy Groups member and long time public health doctor Maureen Merritt, called this “specious reasoning”, pointing out that there’s very little hard data on the effects of exotic radionuclides and extrapolating information regarding their effects from data regarding the effects of more common radionuclides was not good science. Moreover, she asserted estimating exposure based on general data failed to account for the unique circumstance of each worker’s exposure, particularly the interaction of multiple radionuclides in facilities such as Area G – the so called “hot dump” – where workers were exposed to the waste and by-products from projects throughout the Lab.

Following Macievic’s presentation, Andrew Evas-kovich, who drafted the SEC petition and had only two weeks to craft a response to NIOSH’s recommendation for denial, made an incisive rebuttal detailing what he asserted were the many false presumptions and oversights contained in the NIOSH presentation. Evaskovich was followed by representatives from Senators Udall and Bingaman and Congressman Ben Ray Lujan’s offices, who also raised questions about Macievic’s presentation and expressed the Senators’ and Congressman’s complete support for the petition.

The Advisory Board has indicated that it will request a full audit of the petition and NIOSH’s response to it by its contractor Sanford Cohen and Associates. However, in the past only four petitions not recommended by NIOSH have succeeded in gaining SEC status, and advocates I spoke with conceded that if the NIOSH recommendation is overturned the new SEC will probably not include the entire 1976-2005 time period. To date, 37 petitions have been granted SEC status, while 61 petitions have been denied.

I’d like to thank Dr. Maureen Merritt and Terrie Barrie of the Alliance of Nuclear Workers Advocacy Groups for their help in sorting through many of these complicated scientific and bureaucratic issues.