Friday, December 25, 2015

Series on Nuclear Weapons Plant Deaths: Kudos to McClatchy for Revealing Tens of Thousands of Deaths of Americans.


The hidden legacy of 70 years of atomic weaponry: At least 33,480 Americans dead

Will the nation’s new nuclear age yield more unwanted fallout?

Am I still the Department of Energy's bete noir for having raised these concerns commencing in 1981, with the Appalachian Observer, declassification of the world's largest mercury pollution event in 1983 and representing of whistleblowers and sick workers in the DOE nuclear weapons complex?  
As LTC Oliver L. North once said, "I'd do it again."  Read McClatchy series here.

Reminds me of Elia Kazan's film, "On the Waterfront," and the priest played by Karl Malden comparing oppression of workers to the crucifixion, here.

Here's what I wrote about EEOICPA on April 6, 2000:

Why Not the Best Compensation System
For All Nuclear Weapons Victims?

By Ed Slavin
April 6, 2000

Consider the following thirteen cases, twelve of them wrought by the Greatest Democracy on Earth as sequelae of the Cold War, the U.S. Foreign Policy of Mutually Assured Destruction (MAD), and massive nuclear weapons production, testing and transportation:

1. A Y-12 worker develops beryllium disease and dies, leaving a wife and family in danger of losing their home due to medical and funeral expenses.

2. A Vermont Gulf War soldier decorated for bravery is dosed with “depleted” uranium and radioactive fallout as he stands amidst the radioactive DU-contaminated battlefield that he has been assigned to, just short of defeating Sadaam Hussein in 1990.

3. A Utah shepherd guards his flock and finds himself dying of cancer, learning too late that the Government nuclear weapons tests at the Nevada Test Site (NTS) have contaminated him with radiation and caused inoperable cancer.

4. A Hanford baby grows up in a government-built house, crawling on a carpet full of radionuclides and toxics, breathing toxic fumes. The baby dies of childhood leukemia.

5. An Oak Ridge child grows up playing in East Fork Poplar Creek and dies of non-Hodgkins lymphoma at age 38, just as his legal career is taking off.

6. An temporary clerical worker at a DOE site receives no nuclear safety training. Then she finds herself working atop a former nuclear reactor that has never been decontaminated, decommissioned or deactivated, containing large quantities of uranium and hydrogen fluoride, causing her to miscarry twins and develop bipolar disorder.

7. A nuclear weapons courier transporting and protecting nuclear weapons on our highways develops thyroid disease, chronic sleep disorder, and is permanently disabled as a result of DOE’s management bumbling insensitivity in failing to provide radiation detection equipment or proper scheduling or training.

8. An eleven year old girl breathes the radioactively polluted air on her family’s farm, at school and at play, developing thyroid disease, requiring surgery, synthetic thyroid hormone, and a life of fearing cancer.

9. An auto wreck victim thought to be dying is injected with plutonium, and is never asked and never gives consent.

10. A pregnant low-income mother in the ghetto is given a vitamin supplement, in reality an experiment in which she is given radionuclides.

11. A Native American Uranium miner is exposed to cancer-causing radionuclides without warning or fair compensation when he dies of cancer: federal law protects the Government from liability.

12. A South Pacific family is dosed with radiation as a result of a secret U.S. nuclear weapons test, is contaminated, develops cancer, and is offered a minimal amount of money as “compensation,” with no medical benefits.

13. A Tennessee coal miner gets pneumoconiosis. The coal company is taxed on each ton of coal production, paying with its profits for compensation for industrial diseases that are predictable, preventable and all too common among working people in coal mines. Workers have a right to hearings before independent Administrative Law Judges, lifetime compensation, medical expenses, and compensation for widows and orphans. The Supreme Court has upheld the right of the Government to tax coal companies to pay for workers compensation for coal workers’ pneumoconiosis.

The first 12 cases involve vastly different legal rights, if any. In each case, the Government generally tries to deny liability based on “sovereign immunity” or “discretionary function.” Nuclear Weapons industry managers are not prosecuted. They are not found liable. Often, the affected persons do not even sue. They cannot find lawyers.

Under current law, each of these cases is treated differently. Why? DOE and the Justice Department, aided and abetted by an unwitting Congress, have rigged the law to disfavor the victims and to coddle the Government and contractor managers who are responsible for these crimes and torts. They deal with victims one at a time, dismissively, with the New York Times Magazine reporting that they were long called “the crazies” at DOE Headquarters, as if they weren’t real victims. Such ugly pejoratives are still slung today at sick workers and residents and whistleblowers.

There is no principled reason why cases 1-12 should not be treated like case 13, and provided with a Due Process hearing where evidence can be developed before an independent Administrative Law Judge and independent appeals are assured, to the DOL Benefits Review Board and to a Circuit Court of Appeals, with the right to petition the Supreme Court for certiorari. Why should coal miners have greater rights than uranium miners or other DOE victims? Why should veterans get VA compensation but nuclear weapons workers get nothing? Why should dead babies’ deaths not be compensated? Why has the Government never apologized?

There is no principled reason why Native American uranium miners, St. George, Utah shepherds, Oak Ridge K-25, Y-12 and X-10 workers, Hanford area residents, Marshall Islands residents -- all victims of DOE, every single one, whether workers or residents -- should not be compensated.

Current law is splattered all over the map. After lawsuits are lost due to the Federal Tort Claims Act “discretionary function” exemption, workers get Congressman to introduce a bill, providing for lump sum monetary payments. Only one small group gets benefits. Others are left out in the Cold, permanent victims of the Cold War.

President Clinton has defined insanity as “doing the same old things and expecting different results.” Vice President Albert Gore, Jr. wrote in Earth in the Balance that the Exxon Valdez oil spill was “an indictment of our civilization.” What then does he call the Government’s victimization of all of the victims of nuclear weapons, our own Cheylabinsk? When are the polluters going to pay?

DOE’s bill is a proverbial dog with fleas:

* DOE’s bill would only cover a handful of workers. This is unacceptable.
* DOE’s bill does not cover non-workers, like babies and other Downwinders.
* DOE’s bill would deny victims their day in Court. This is unacceptable.
* DOE’s bill would deny victims any right to appeals. This is unacceptable.
* DOE’s bill would reduce benefits by other benefits received. This is unacceptable.
* DOE’s bill would have DOE adjudicate claims, instead of the Labor Department. DOE has a conflict of interest. DOE has no Administrative Law Judges. This is unacceptable.
* DOE’s bill would pay a handful of victims a $100,000 bribe, in return for which they would give up their right to sue, and have to give some of the money back to DOE contractors or health care providers. This is unacceptable.
* DOE’s bill does not provide for independent health insurance, provided by doctors of the workers’ choice. This is unacceptable.
* DOE’s bill does not cover deceased victims. This is unacceptable.
* DOE’s bill does not apologize. This is unacceptable.
* DOE’s bill does not make any of the air, land and water polluters pay, as they do under Black Lung, where there is a 50 cent per ton tax on coal operators to pay pneumoconiosis benefits. This is unacceptable.

The Clinton Administration’s first proposal on nuclear workers compensation is inadequate. The victims selected for the $100,000 bribe have rejected it. So should Congress and the Administration. The offer is unacceptable.

In contrast to the DOE proposal, coal miners receive benefits which over the life of the miner, widow and orphan, amount to some $500,000, including medical benefits. Black Lung attorney fees are paid based on a reasonable hourly rate and a reasonable number of hours. Black Lung attorneys don’t get a percentage of the recovery -- they get paid based on how much they worked. DOE’s bill would give attorneys 10% of the amount recovered, taking the amount of recovery from the victim, while discouraging attorneys from taking complex occupational disease cases. This is unacceptable.

Jimmy Carter wrote in his autobiography, Why not the best? about how Admiral Hyman Rickover asked him if he had always done his best at the Naval Academy. Carter candidly said no. The Administration’s proposal is not even a good first try.

It was 23 years ago tonight that President Carter gave his speech on the energy crisis, calling it the “moral equivalent of war.” I was a 20 year old staffer for Senator Jim Sasser, assigned to cover the Department of Energy. I had no idea at that time what DOE had done to Tennesseans and other Americans. No one but DOE knew that.

Six years later, the mercury losses in Oak Ridge were declassified on May 17, 1983, at my request. Other disclosures around the country, sought by activists from all walks of life, have shown the Nation a picture of sublime ugliness: the Cold War took tens of thousands of Americans as unwilling victims, without informed consent. Now we know all too well that our Nation faces a moral crisis involving DOE, truly the “moral equivalent of war,” one that will test who we are as a people. The DOE Nuclear Weapons complex, to paraphrase Lincoln, is guilty of “idolatry that practices human sacrifices.” DOE’s American victims must be compensated fully, fairly and swiftly.

John Wayne and other actors, extras, producers, directors and film crews on location in Utah were contaminated with radiation. Many paid the price in shortened life spans. The NTS victim, the Gulf War veteran, the uranium miner, the baby, and their grieving families -- why should any of them be treated less favorably by our Government than it treats coal miners under the 1969 Black Lung Benefits Act? Why should they be denied hearings to prove what happened to them? Why should they be denied appeals? Why not the best compensation system, for everyone affected, instead of the worst insult that DOE and Justice Department lawyers can think up?

All Nuclear Weapons victims everywhere in the United States must be covered and be eligible for compensation, without requiring proof of causation, based upon an “interim presumption” of entitlement to benefits based upon exposure and disease, just like under Black Lung. That is the least we can expect. Some skeptics dismiss the Black Lung analogy and say that only miners get Black Lung disease, and that the only diseases that Nuclear Weapons victims get that are limited to workplace exposure are berylliosis, asbestosis and mesothelioma. This misses the point.

Children don’t normally die of leukemia without a toxic exposure. Workers don’t get cyanide exposure at home -- they get it in “dark satanic mills” like the Gaseous Diffusion Plants. Plutonium does not have a naturally occurring background level.

The complex of diseases and deaths in nuclear weapons and testing plant sites must be studied, using real people and not just cold statistics on corpses piled high over the years. People must be given treatment, tests must be done, results must be analyzed.

The point of Black Lung as a model is that Congress saw suffering, and decided to help. It adopted policies, practices and procedures well-developed since 1928. DOE rejected those policies in favor of a closed, secretive model used for federal employees’ workers’ compensation. This is a perverse model of failure, whose failings have been document in House of Representatives oversight hearings.

DOE tries to lead victims down the wrong road again. This is unacceptable.

"Just like the tobacco industry, DOE's minions are adept at portraying uncertainty and ambiguity, when they well know in their hearts what makes workers sick. Unlike the tobacco companies, the DOE weapons complex is owned by all Americans."

Oak Ridge lawyer Gene Joyce, a lifelong family friend of Vice President Albert Gore, Jr., made a wise contribution to the vigorous debate on Oak Ridge illnesses (February 25, 1998 column) by suggesting the adoption of a federal compensation remedy.

Mr. Joyce's apt analogy to Black Lung Benefits Act legislation is well taken. I applaud Mr. Joyce's humanitarian insights. Let’s pass such a law and make it a living memorial to all in Oak Ridge and around the country who have served and sacrificed for their country in the Nuclear Weapons business for 57 years.

Successful DOL workers compensation case claimants get their medical expenses paid. During a single Black Lung case, the total compensation payout, including medical benefits and survivor benefits for widows and orphans, can run as high as $500,000.

Federal workers compensation for nuclear workers was first proposed in Congress in 1958 by then Senator Albert Gore, Sr. It was proposed over again in the 1980s by Rep. David Skaggs of Colorado. Without strong support from unions and DOE, the proposals went nowhere. With unified support from Downwinders, workers, unions, environmentalists, civil libertarians (and as Senator John McCain would say vegetarians) in Hanford, Oak Ridge and other DOE "Company Towns" and Downwinder locations around the country, the proposals for federal workers' compensation for nuclear workers and residents might finally pass. Federal compensation for nuclear victims makes good sense.

The United States Department of Labor (DOL) has adjudicated many special types of workers' compensation cases since the Longshore and Harbor Workers' Compensation Act of 1928. "Extensions" of the Longshore act cover workers at federal military bases, offshore oil platforms, and coal mines. During the Vietnam war, there were contractor employees injured in Vietnam who were covered by "Longshore extensions." The basis of these federal workers' compensation programs is a strong federal interest in protecting workers in the selected occupations and industries. Nuclear weapons plant workers have worked on federal property, with federal tax dollars: they deserve a federal remedy that is free from the vagaries of state courts, where benefit amounts can be small, attorney fees may be taken from workers' awards, and justice can be uncertain. Likewise, downwinders and uranium miners deserve equal dignity and equal benefits because their ailments were caused by federal polices -- nuclear proliferation with atmospheric testing and releases of contaminants into the atmosphere. The Nation benefitted from winning the Cold War. It can well afford to compensate the Cold War’s victims, by placing a tax on Nuclear Weapons industry polluters.

DOL Administrative Law Judges -- who also hear whistleblower cases -- learn an awful lot about disability, as some 75% of their caseload is in Black Lung and Longshore Act cases. State court judges have differing levels of interest and expertise in workers' compensation cases, with cases on their dockets ranging from divorce to estates to criminal justice to auto wrecks to medical malpractice. Busy State court judges' patience with workers varies, as does their interest. State judges may be simply afraid of DOE contractors' political clout, or else snowed by scientific "evidence" bought and paid for by DOE and its contractors, with DOE contractors' litigation budgets at high levels to discourage workers from seeking justice.

Mr. Joyce's creative solution, patterned after Black Lung benefits, is for an "interim presumption" based upon the presence of certain disease patterns and the number of years of employment in the nuclear weapons complex. As in early Black Lung filings, the "interim presumption" could greatly simplify workers' compensation litigation that can take on a life of its own, with costs that are disproportionate to the benefits sought. Today, DOE and its contractors fight every radiation and toxic injury claim tooth and toenail, subject to DOE's longstanding policy of avoiding responsibility, which dates back to General Leslie Groves. DOE spent hundreds of thousands of dollars fighting one Ohio workers' compensation case where the potential payout was a mere widow's mite of some $ 15,000. That is a national disgrace. That is how DOE operates.

No campaign contributions or election campaigns decide who becomes a DOL ALJ. DOL judges are selected as a result of scores on an eight hour written examination, with litigation experience and ratings by judges and lawyers determining who will become a DOL judge.

Nuclear workers could have greater confidence that their case would be decided based solely on the evidence and the law, without fear, favor or prejudice, in a manner that develops one national body of evidentiary case law to apply to all workers and residents hurt by DOE and its facilities.

Rather than letting at least eleven overworked state court systems reach different results on rules of proving causation in complex radiation and toxic injury cases, workers and residents alike would be better served with decisions by independent federal administrative law judges appointed with lifetime tenure subject to good behavior, with review by the Benefits Review

Board. Those decisions could then be appealed to federal appellate courts.

Federal workers compensation for sick workers and residents could be supported by a tax not unlike that assessed on every ton of coal, which goes to pay for Black Lung benefits. What better way to pay for such just compensation than a tax on pollution assessed against corporate polluters?

(An alternative might be an excess profits tax on defense contractors, or a tax on present and former contractors based on the number of weapons grade materials they produced.)

Workers' and residents' fundamental rights to bring other types of civil lawsuits and criminal charges should be preserved inviolate. Full disclosure of all toxic pollution must at last become a reality.

Coal mine dust was known for years to cause disease, but doctors in coal company towns lied to miners and pretended there was no problem. Meanwhile, workers died horrible painful deaths at rates far higher than in Europe. Today history repeats itself in Oak Ridge, with Mr. Joyce noting that there are only ambiguous studies -- studies with conclusions that are ambiguous by DOE's direction, design and control.

Just like the tobacco industry, DOE's minions are adept at portraying uncertainty and ambiguity, when they well know in their hearts what makes workers sick. Unlike the tobacco companies, the DOE weapons complex is owned by all Americans.

The nuclear weapons complex won World War II and the Cold War, and now treats its atomic "veterans" shabbily and disgracefully. Consider the difference between the way we treat combat veterans, compared to veterans of industrial production that supported our war efforts. In World War II, my father jumped out of airplanes and machine-gunned Nazis in Europe as an 82nd Airborne Division paratrooper. He was a war hero, and both America and France gave him medals. At age 86, he still receives VA compensation. He received three Bronze Stars. He is honored in parades. People thanked him for his sacrifice. He speaks to schoolchildren. They named the South Jersey Chapter of the 82nd Airborne Division Association after him (the CPL Edward A. Slavin Chapter).

Hundreds of thousands of men like my dad might have died in hand-to-hand combat in Japan if it were not for the amazing wartime work of Oak Ridge and other sites.

Nuclear weapons plant workers and residents sacrificed their health so that America could win the Cold War and World War II.

Unlike my father, Nuclear Weapons plant workers and Downwinders received no medals, no honors, no thank yous, no compensation -- only layoff slips and concealment (and a double dose of discrimination for those who have the courage to raise environmental, health and safety concerns). Workers and residents who sacrificed their health for the Cold War should be treated as national heroes, to whom our country owes justice (not JUST US), a fair day in a fair court, full appeal rights, just compensation for illness, injury and death, and competent state-of-the-art health care from independent medical professionals of their choice -- not DOE’s choice of doctors.

The President and Vice President have not shown leadership. DOE and DOJ have not shown leadership. They have not shown statesmanship. Instead, they seek to divide and conquer, one group at a time, preventing a global solution, playing favorites, attempting to drive a wedge between its victims, creating separate classes and treating the victims like unruly school children, insulting them, condescending to them, and refusing to talk sense. They should be ashamed of themselves.

DOE’s proposal of a $100,000 bribe payment adds insult to injury: DOE has decided to add payoffs to layoffs. DOE has shown contempt for human rights. Just say no.

DOE and its contractors spent indecent amounts of tax money fighting their just compensation for injuries and discrimination. This is a national disgrace. Nuclear weapons plant victims deserve laws and rules that allow independent and experienced judges, full discovery, and open public trials at reasonable costs, including low-cost access to trial transcripts under the Freedom of Information Act.

With sick, disabled and dead people from Hanford to Utah to New Mexico to Oak Ridge to Portsmouth, Paducah and Mound, afflicted by illnesses reasonably believed to have been caused by toxins flowing from the Nuclear Weapons business, it makes a great deal of sense to let both workers and residents who are injured have a fair remedy, with fair rules, in a neutral DOL forum that adjudicates workers' cases full-time, with greater independence and expertise. Prompt decisions and payments must be assured.

The victims of DOE must unite -- every single one of them. The people are ready now.

As Eleanor Roosevelt once said, “you can take what you want if you are organized.”

Ed Slavin [was] a lawyer who represents DOE site workers and whistleblowers in occupations ranging from technicians to investigators to engineers to judges He was Legal Counsel for Constitutional Rights with the Government Accountability Project, 1989-1993, and clerked for the Hon. Nahum Litt, who was Chief Administrative Law Judge of the U.S. Department of Labor. He was Editor of the Appalachian Observer, a Clinton, Tennessee weekly where he wrote extensively on Oak Ridge pollution, winning declassification of the Oak Ridge mercury losses on May 17, 1983, with the local District Attorney recommending him for a Pulitzer Prize. Ed testified on July 11, 1983 before then-Rep. Albert Gore Jr., endorsing criminal prosecution of Oak Ridge polluters. He has published seven articles in American Bar Association publications on human rights issues and is author of a book on Jimmy Carter for high school students. He is a graduate of the Georgetown University School of Foreign Service and Memphis State University Law School. His mother was in 1930 a victim of an early x-ray radiation experiment at age 11 for putative “cosmetic” purposes: it took her twelve years to bear her only child. (DOE responded to her letter to Secretary O’Leary by stating her exposures were beyond the scope of DOE’s human experimentation disclosures).
Why Not The Best Compensation System For All Nuclear Weapons Victims

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