Out in the Cold
They are America's Cold War veterans, who forged weapons from a fearsome energy source and bravely endured years of radiation for a country that pledged to take care of them. Instead, government loopholes and evasions are making sure those promises are never kept.
EEOICPA's purpose is to recognize that nuclear weapons workers with any of 22 kinds of cancers (among them breast, colon, bladder, brain, and non-Hodgkin's lymphoma) are likely to have gotten their illnesses on the job, and that poor record keeping or gross health-safety negligence make it difficult to know exactly who was exposed, and to what extent. EEOICPA says that former weapons workers who are "at least as likely as not" to have gotten cancer from radiation are entitled to medical benefits and a lump-sum payment of $150,000. The law is an antidote to the legal action that workers might otherwise have to take, at their own expense, if they believe they are entitled to worker's comp. A hundred and fifty grand's not exactly pay dirt for people who've drained their bank accounts, taken out loans, or gone bankrupt fighting cancer. But, if nothing else, the measure was a gesture of appreciation. EEOICPA let workers believe that the government's heart was in the right place.
Seven years after the law passed, the crowd of Rocky Flats workers at the Westin saw a government that was heartless. As far as the Flats brothers and sisters were concerned, their piece of star-spangled legislation had been designed with loopholes and engineered to fail them. By now they had learned that EEOICPA was undermined by "dose reconstruction," a procedure that seemed more black magic than sound science.
Dose reconstruction is the responsibility of the National Institute for Occupational Safety and Health, or NIOSH. To reconstruct a radiation dose, NIOSH digs up whatever it can about a claimant—urinalysis, nasal swab results, medical files, DOE "incident" reports, dosimetry records, and personal histories. And therein lies the problem: Like Judy and Tom, everyone has a story. The more time I spent talking to former Rocky Flats employees, the more anecdotes I heard about faulty dosimeters and dubious orders. Two former government officials insisted that medical records "disappeared" during the 1989 FBI raid. A former administrative assistant says she was ordered to illegally shred workers' medical records in the 1990s. Some people I spoke to were still shackled by the culture of secrecy; when I'd press them for details, they'd clam up. One man simply quit talking to me the moment I opened my notebook. Despite overwhelming consistencies among workers' stories of questionable health safety, only a fraction of what they say can be corroborated. It's their word. None of them had the foresight to build a case history while they were producing bombs, cleaning up an environmental disaster, and tending to their lives. And the government's dose reconstruction program dismisses almost any anecdote that a worker cannot prove.
When a claimant's records are missing or incomplete, NIOSH will use "coworker data"—records from a colleague who performed a similar job at a similar point in time. NIOSH also refers to a "site profile"—a multipage report that the agency has created for some of the 79 weapons facilities in the United States, that summarizes which parts of a site were most radioactive, and when. (Site profiles do not exist for all facilities.) In the end, the hard data get sent to the Department of Labor, plugged into a "matrix," and tallied to determine a figure known as "probability of causation," or POC. The POC is the claimant's final score; it informs Labor if the claimant was "at least as likely as not" to have gotten cancer due to work at a nuclear weapons facility. Claimants with a POC of 50 percent or higher are compensated. Claimants with a POC of 49.99 percent or lower are not.
Judy Padilla applied for compensation in August 2001—and waited nearly four years for a response. Her dose reconstruction score was 42.19; she was denied. She appealed the decision to the Department of Labor, explaining that she'd worked around ionizing radiation for the better part of 14 years, and that six of those years were spent chest-to-glove box, handling plutonium. Seven of her remaining eight years, she reminded the DOL, were spent working with thorium-equipped welding gear and completing tasks in the process areas. Like her coworkers, she'd seen or been near more fires and spills and accidents—some reported, some not—than she could count. She was a healthy, exercising nonsmoker, and two genetic tests showed no history of breast cancer in her family. Judy's appeal was denied.
Tom Haverty applied in July 2006. DOL still hasn't issued a decision, but a NIOSH worker recently told him that his prospects weren't good. Speaking by phone, the representative, Brian, told Tom he couldn't give specifics, but he indicated that Tom's score was less than 50. He said that Tom's final answer from DOL could take another eight months. Tom matter of factly stated that he'd likely be dead by then. Brian delivered news to Tom with the detached aplomb of an airline gate agent telling a passenger that his flight's been cancelled. It was clear that Brian had done this before.
Nearly 3,000 Rocky Flats workers have applied for compensation under this portion of EEOICPA; only 626, or 20 percent, have been paid. More than 69,000 weapons workers (or their families) across the country have submitted claims; at least one-third of them have been denied. The reason for their denials boils down to the dose reconstruction results—meaning they couldn't prove that they were "at least as likely as not" to have gotten cancer from radiation. They were given the burden of proof.
Larry Elliott oversees NIOSH's dose reconstruction program, and he defends his agency's work. "What most people don't understand is that dose reconstruction is an accepted scientific program to fill data gaps," he recently told me. "A high percentage of Rocky Flats workers have monitoring records, and NIOSH has those records." But, he went on, not all people were monitored. "We do not have individual monitoring records for every worker." He spoke of "unknown primaries" and "upper ranges." He assured me that dose reconstruction was set up to be as "claimant favorable" as possible.
Outside of NIOSH, it's tough to find anyone who supports the way the agency applies dose reconstruction. Richard Miller has worked as a senior policy analyst for the D.C. watchdog group Government Accountability Project and as a staff representative for DOE employees. Just last year, testifying before a House Judiciary Subcommittee, he said glove-box workers handling radiation at Rocky Flats (and other sites around the country) "were not adequately shielded for many years...[dosimeter] readings did not necessarily capture the neutron dose from leaky glove boxes, since the badges were not positioned near the parts of the glove box that leaked radiation." Tom Haverty's translation: "Radiation can blow up your skirt. It can radiate your skull. We wore dosimeters around our necks, not on our heads."
Even champions of the EEOICPA law acknowledge that the process of dose reconstruction is debatable. They point out that this particular brand of science was originally modeled to study large, unmonitored populations, like survivors of Hiroshima and Nagasaki, who were exposed to a single big blast, or atomic veterans who were involved in early weapons testing—not individuals who were exposed to low levels of radiation over long periods of time.
"When the bill was written, people on the Hill knew that any kind of science was imperfect—the law was even amended a few times to try to address that," Cindy Blackston, a former Judiciary staffer intimate with EEOICPA, recently told me. "But science is only as good as the perspective of the individual interpreting it. Some people within the system have interpreted the law so that claimants are placed on the defensive—which is exactly what the law was supposed to remedy. In many cases, the good intentions of EEOICPA have been abandoned."