COMPENSATING AMERICANS’ TOXIC INJURIES FROM U.S. NUCLEAR WEAPONS PRODUCTION:

STATEMENT OF

EDWARD A. SLAVIN, JR.

Before

Subcommittee on Immigration and Claims,

Committee on the Judiciary

U.S. House of Representatives

September 21, 2000

Hearing on the following bills:

• H.R. 675,   Beryllium Exposure Compensation Act;
• H.R. 3418, Energy Employees' Beryllium Compensation Act; H.R. 3478, Federal Beryllium Compensation Act;
• H.R. 3495, Department of Energy Nuclear Employees Exposure Compensation Act;
• H.R. 4263, Atomic Workers' Compensation Act; 

·        H.R. 4398, Energy Employees Occupational Illness And Compensation Act of 2000

·        Senate Amendment 3250 to S. 2549 (Defense Authorization)

      (Sen. Thompson’s DOE-Drafted Floor Amendment,           

·        H.R. 5189, Title: Energy Employees Occupational Illness Compensation Act of 2000 (based on Title 35, Senate Defense Authorization Act, FY 2001)

Table of Contents

INTRODUCTION....................................................................................................................... 1

DOE’s ILLUSORY COMPENSATION BILL: QUESTIONS AND ANSWERS................ 6

Who would pay?  ............................................................................................ 6

Who would receive benefits?  ..................................................................... 6

Who would control the program?  .............................................................. 7

What would be paid? ..................................................................................... 7

What would be taken away?  ....................................................................... 7

Would benefits be reduced based on other benefits?   ........................ 7

Who would decide who gets paid?   .......................................................... 8

Would there be any appeal?  ....................................................................... 9

What physical or mental conditions would be compensated?   ...... 10

How many people would receive benefits?   ......................................... 10

Who would choose physicians?   ............................................................ 11

Who would pay lawyers and how?   ........................................................ 11

Would settlement “gag orders” be allowed?......................................... 11

NUCLEAR WORKER AND RESIDENT COMPENSATION SHOULD FOLLOW BLACK LUNG AND LONGSHORE COMPENSATION LAWS AND PRECEDENTS............................................................................................................................ 12

The public deserves the whole truth about DOE pollution, coverups, disease and death.................................................................................................................. 13

Congress should reject DOE’s PR manipulations and attempts to rush decisionmaking............................................................................................... 18

CONCLUSION................................................................................................. 19

WITNESS BACKGROUND........................................................................... 25

END NOTES.................................................................................................... 26

THREE ATTACHMENTS:  FACT SHEET, SECTION-BY-SECTION ANALYSIS AND TEXT OF PROPOSED LEGISLATION COVERING ALL DOE VICTIMS AND REPEALING FEDERAL TORT CLAIMS ACT (FTCA) DISCRETIONARY FUNCTION LOOPHOLE FOR ULTRAHAZARDOUS ACTIVITIES:

NUCLEAR WEAPONS WORKERS, ATOMIC VETERANS AND RESIDENTS COMPENSATION AND HEALTH ACT (NWWAVARCHA) OF 2000

INTRODUCTION

Chairman Smith, Ms. Jackson-Lee, members of the Subcommittee: Thank you for the honor of asking me to provide testimony.  Just like the tobacco companies, DOE spent years lying to Congress and the American people, saying no one ever got sick from a nuclear bomb factory.  DOE this year admitted workers sickened and died from toxic materials (toxicants).  

DOE is now trying to sell you the legislative equivalent of a recalled Firestone tire. DOE wants a rigged system with DOE in charge, with no juries, no independent judges, no judicial review.  In a perverse variation on the notion of administrative law “expertise,” DOE wants to decide who DOE made sick.  This is like a plan that lets you ask the company that denied it caused your injury if it will change its mind.  DOE proposes a flawed and phony form of “alternative dispute resolution” under the thumb of DOE and DOJ lawyers.  It is bogus.

Both James Madison and William Blackstone would have roundly rejected DOE’s peculiar institution of “old guard” administrative law.  James Madison wrote in The Federalist, Number 10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity .... “   As Blackstone said, “it is unreasonable that any man should determine his own quarrel.”[1]     DOE’s proposal to decide its own cases is, at best facetious and insults your intelligence.  Congress should write its own bill.  DOE cannot be trusted.

Legislation to compensate nuclear weapons plant workers was first proposed four decades ago by Senator Albert Gore, Sr.[2]  While the idea of federal compensation legislation is not new, what is new is that after decades of lying to you, DOE now admits toxic materials have killed workers[3] at its facilities.  Yet in response to the Oak Ridge health crisis, DOE proposes only flummery.  DOE’s proposal is  a Kafkaesque nuclear compensation bill that is defective by design -- long on rhetoric and short on fairness, with no medical benefits, no independent health clinics, no hearings, no Administrative Procedure Act rights, no independent Administrative Law Judges, no appeal rights, and no Due Process.   The Voinovich-Strickland (PACE) bill is a marginal improvement.  

After consultation with affected workers and residents throughout the country, I have drafted and hereby propose an alternative, the Nuclear Weapons Workers, Atomic Veterans and Residents Compensation and Health Act, (NWWAVARCHA).[4]  NWWAVARCHA treats all of DOE’s victims equally, and fairly, emphasizing lifetime health care and benefits --  not just cash payoffs (in the wake of layoffs), all just to make DOE’s victims “go away” and bar them from suing big corporations responsible for ruining their health. 

Rep. John Duncan, Jr. of Knoxville has written workers that “many” of his constituents have been made sick by DOE in Oak Ridge.  DOE would only compensate a few of those “many.”  Rep. Zach Wamp, who represents Oak Ridge, said at the May 12 press conference that sick residents should be covered too: Secretary Richardson’s response was to frown at him.  I think that both Rep. Duncan and Rep. Wamp are correct, and that this legislation needs to compensate the “many” who are sick, including nearby residents (Downwinders) and children in places like the Scarboro community in Oak Ridge, an African-American community located close to the Y-12 nuclear weapons plant.   DOE wants you to ignore these people and pass legislation that helps only a few, not the “many” who are sick.

It has taken a long time for this Subcommittee to address these issues: one is reminded of the Michael Moore Film, Roger & Me: DOE victims have been waiting for four months.[5]  Having waited so long, let me suggest that at this late date in this session, that the bipartisan Members of this Subcommittee kindly work to kill and defeat the Thompson-DOE “Trojan Horse” bill.  DOE’s bill (Senate Amendment 3250 to S. 2549, the Thompson-DOE amendment, also introduced last week as H.R. 5189) does not require:

1.         Coverage of all sick workers and residents hurt by DOE toxicants.

2.         Full funding of lifetime compensation and medical benefits by making the polluters pay.

3.         Open public hearings with testimony under oath before independent DOL administrative law judges, as provided for Black Lung claims (instead, the Thompson amendment uses government doctors to decide claims).

4.         Subpoena power and easy access to documents and answers from DOE and contractor managers (incredibly, Thompson amendment requires a separate federal court lawsuit to force discovery, after first waiting 180 days!).

5.         Appeals to the DOL Benefits Review Board and judicial review by the Court of Appeals, as provided for Black Lung and Longshore workers' compensation claims.

6.         Strict action-forcing deadlines for government action, with claims being granted if the government waits too long.

7.         Payment of full reasonable attorney fees, expert witness fees and other litigation expenses at market rates and a ban on attorney solicitation and percentage contingency fees, as in Black Lung (instead, attorneys would be free to charge contingency fees, reducing the $200,000 lump sum to as little as $100,000 after expenses).

8.         An end to the Federal Tort Claims Act discretionary function exemption for ultrahazardous activities, preserving worker rights to sue.

9.         Coverage for genetic injuries to spouses, families, children and grandchildren of workers and for injuries caused by dangerous chemicals and heavy metals like cyanide, mercury and hydrogen fluoride.

10.       Decisional Independence of DOE in deciding compensation, with independent lifetime medical care and clinical research, free of influence by DOE and its contractors.

Rather than a fitting memorial to sick workers and residents whose suffering made the Cold War victory possible, the DOE-Thompson bill is guaranteed to result in denials and delays. 

DOE wants its polluting contractors unscathed: DOE wants to give them the Colgate invisible shield of immunity.  Congress should reject this indecent demand for immunity, just like it rejected that of the tobacco industry in the first “settlement” of tobacco tort litigation.

DOE wants to make only small payments to a token number of the sick.  As President Clinton said in his Second Inaugural, “no one ever accomplished anything great by being small.” 

DOE’s proposal is small-minded and petty.  Daniel Burnham, architect of Union Station in Washington, D.C., said, “Make no little plans, for they do not inspire people to carry them out.”   Like a bikini that does not quite cover its subject, DOE’s “itsy bitsy teeny weeny” compensation proposal should be rejected on the grounds of public decency.

DOE’s perverse brand of  “tort deform” is unfair.  It fails the “laugh test.”  DOE’s offer is not unlike some insurance companies’ first settlement offer in an auto wreck case -- ludicrous posturing in hopes that it can settle for pennies on the dollar with victims who do not know their rights. 

DOE’s bill is unadorned by the decency of an apology, as Secretary Richardson made and as is set forth in Rep. Kanjorski’s bill, H.R. 674, the proposed Beryllium Exposure Compensation Act.  The DOE bills are a snare and a delusion, not Due Process: no person (and no Chief Justice or agency) may sit in judgment on their own case.[6]  

DOE’s proposals should be rejected by the House.  The House should draft a fair bill modeled on Black Lung and Longshore compensation legislation, while eliminating the FTCA “discretionary function” loophole for ultrahazardous activities.   The House should also reform the whistleblower laws to provide genuine protection, not just empty promises.

For DOE-poisoned sick workers and residents[7], this should be a happy day.  However, hastily passed Senate legislation and the threat of a “Trojan Horse” bill (H.R. 5189) make this a day fraught with danger for the Constitution and for worker rights.   DOE demands to adjudicate its own claims, made by workers that DOE made sick.  This is a conflict of interest, like making Dracula manager of the Blood Bank.   It would be wrong for DOE to “adjudicate” DOE’s own toxic torts and worker compensation claims.[8]  This conflict of interest would violate Due Process.[9]  The Judiciary Committee is wise to learn the ways of DOE before legislating about compensation for DOE’s toxic torts in a manner that would restrict worker rights to sue, as DOE would do, while winking at you on this Committee. 

DOE’s legislation would deprive workers of jury trials and full and fair remedies against DOE and its contractors.  DOE rejects independent adjudications before DOL Administrative Law Judges, who currently hear Black Lung and Longshore cases.  DOE should be asked critical questions: “What is the value of a human life?” “Why not make the polluters pay?” “How many people deserve compensation” “What kind of proof should be required?” “Why no jury trials?”  “What about children and genetic damage in the African-American community of Scarboro and elsewhere in Oak Ridge and other DOE-polluted communities?”  “What about residents (Downwinders?)” “What about justice? 

DOE’s lowball compensation proposal is a snowjob, with a snowball’s chance of achieving justice for injured workers and residents.

Sadly, the DOE proposal vastly undervalues human life.   In any jurisdiction in the United States, a human life is worth more than $100,000 to $200,000.   We know this because that is what juries tell us all the time in personal injury, wrongful death and discrimination cases.   DOE’s demeaning monetization of the life of a human being is less than the annual salary of the Secretary of Energy.   DOE’s petty proposal is, at best, scandalous. 

In the interests of full disclosure, does DOE plan to put its human life dollar value on the signs outside of the K‑25 Gaseous Diffusion Plant or Y‑12 Nuclear Weapons Plant?  (Get sick and die here and your life is worth only $100,000 to DOE).  Where does DOE get its absurdly low value of the worth of a human life?  Certainly not from research on jury verdicts in wrongful death and personal injury cases, which can be for millions of dollars. Members of this Committee should ask DOE about its low  value on human life. DOE cruelly assumes bomb plant workers are “worth more dead than alive,” as the villain told Jimmy Stewart’s character in the movie, “It’s a Wonderful Life.”  The Chicago Tribune has reported earlier about hospitals and others selling human body parts:

One body can yield more than 130 pieces of tissue once it is extracted, sterilized, cut up, packaged and sold. The total worth of all the usable tissue in a body is more than $230,000. Because not all the tissue from a single donor is usually taken, the average market yield per cadaver is closer to $80,000, industry executives say.[10]  (Emphasis added).

Why $100,000? Why not look at jury trial verdicts in wrongful death and personal injury cases for guidance?   DOE lawyers’ thinking is crabbed: be careful because it can be contagious.

Like tobacco companies, DOE managers lied for years.  Now DOE admits it killed and crippled Americans with its nuclear weapons plants.  It just doesn’t want to allow fair procedures or make its contractors pay fair compensation.  What chutzpa.

Seattle plaintiffs’ lawyer Leonard Schroeter writes:

Much like the tobacco industry, the nuclear industry, which was wholly indemnified by the United States government, has a policy of full-scale war against any person with the temerity to suggest that radiation might be bad for their health.  Thus, despite the new O’Leary policy of disclosing what a half century of nuclear secrecy, questions still remained as to whether the United States government continued to be committed to no accountability, no responsibility, and no compensation for the powerless victims. (Emphasis added)[11]

What is this weak DOE-drafted Senate Floor amendment going to accomplish?  Do DOE and Sen. Thompson think that U.S. government doctors lacking in independence could fairly decide cases? He must not remember the Reagan administration's efforts to pressure independent Social Security Administration administrative law judges to deny benefits, sending SSA judges those who found too many workers disabled to what Rep. Frank called "remedial judging school."   As a sound, independent alternative to DOE control and the potential for case-fixing, please consider NWWAVARCHA (attached).

DOE does not want Congress to question DOE’s assumptions.  Instead, DOE wants Congress to pass DOE’s “Trojan Horse” bill, which is exactly what the “other body” did. 

DOE wants Congress to dust off the Radiation Exposure Compensation Act (RECA), a 1990 compromise that monetizes the worth of selected Downwinders and uranium miners at scandalously low amounts, with long delays and unappealable decisions by unaccountable DOJ lawyers in the Torts Branch).  RECA is a perverse model of failure, and its extension to DOE site workers compensation legislation asks too much -- DOE asks Congress to make the same mistake all over again, one more time, with feeling.  DOE asks Congress to value workers’ lives at low values, as if DOE wants to treat them as Third World Country residents.

DOE asks Congress to cut off worker rights to sue DOE contractors and managers.  That is wrong.  Workers’ lives are worth more than DOE wants to pay.  

We must be fair to all nuclear weapons workers and residents.  DOE should not be permitted to rush things, foisting off a “Son of RECA” bill on the American people.  Let’s develop full and fair remedies, with fair procedures (including jury trials and administrative law judges), and lifetime medical care.  Congress should not pass a pig in a poke, or foist off a Trojan Horse on the American people.

In August 1986, I was sworn in as a law clerk for the United States Department of Labor Office of Administrative Law Judges.  After a few months, I was  assigned to spend most of my working and waking hours assisting The Chief Administrative Law Judge, the Honorable Nahum Litt.  Chief Judge Litt  was responsible for assuring that American workers received the full benefit of Due Process adjudications under whistleblower statutes and the DOL compensation system for coal workers’ pneumoconiosis (Black Lung) and Longshore and Harbor Workers.  For three decades, DOL’s Black Lung program has successfully used a per-ton tax on coal to fund disability compensation and health care.  It is self-supporting.  A CBO or GAO study would be helpful to your deliberations.

Other federal agencies -- like the Social Security Administration -- often violated Due Process due to pressures, particularly during the Reagan years.[12]  At DOL, Chief Judge Nahum Litt protected workers’ rights under the Administrative Procedure Act, standing as a bulwark of democracy against the worst that three Administrations had in mind.  He insulated judges from attempted improper political pressures.  One could not ask for a better mentor or for a better introduction to the attempted pressures of agency officials and the need for independent adjudications, guaranteed by the Administrative Procedure Act.   During my clerkship, I met and talked with Administrative Law Judges at  agencies where pressures were constant.  In the early 1990s, I represented seven Department of the Interior Administrative Law Judges subjected to such unseemly pressures.  Such mistreatment of ethical federal employees is all too common.[13]

I have studied the DOE’s proposals on workers’ compensation for nuclear workers and compared it to the rights available to coal miners and Longshore workers. 

The DOE proposal envisions a compensation system like the Office of Workers’ Compensation Programs (OWCP) and its Federal Employees Compensation Act (FECA) cases, which has no Administrative Law Judges and no judicial review.  DOE refuses to agree to legislation that would follow the precedent of the Black Lung and Longshore Programs, which have hearings before independent Administrative Law Judges and full rights to appeal.  

It is my considered opinion that the DOE bills would deny Due Process, and lack protections for worker rights.  The Administration’s proposal is deeply flawed, at best, and fails to guarantee the basic Due Process provided to coal miners and longshoremen. 

There is no principled reason why two East Tennessee brothers should have differing rights when one gets sick from beryllium disease at the Y-12 Nuclear Weapons Plant in Anderson County, and the other gets lung disease from working in  nearby coal mines.  Both brothers suffered diseases of the lung caused by atrocious working conditions found by Congress.  Both brothers’ illnesses were caused by callous employers who failed to take adequate safety precautions.  Both brothers deserve and require full benefits, equal justice, open courts, fair appeals and judicial review.  DOE would have you treat the brothers unequally.  This is cruelly unfair.

Nuclear weapons plant workers and residents (Downwinders) were hurt by intentional acts of DOE contractors.  Those acts were often covered up by DOE using national security classification.  These victims are being offered by their Government a puny one-time cash payment, one without lifetime health care -- instead of a right to a jury trial or to an independent administrative law judge to decide their cases.  Why?

This Committee should demand answers to key questions:  Who pays?  Who gets benefits?  Who controls the program?  What is being paid?  What rights are being taken away? Are benefits reduced based on other workers’ compensation benefits?  Who decides?  Is there any appeal?  What physical and mental conditions are being compensated?  How many would receive benefits.  Answers to these questions ineluctably lead to the conclusion that Congress should write its own proposal, based upon legal principles established in the Longshore and Harbor Workers Compensation Act (LHWCA) of 1928 and in the Black Lung Benefits Act of 1969.

DOE’s ILLUSORY COMPENSATION BILL: QUESTIONS AND ANSWERS 

Who would receive pay? 

Not the polluters who made the workers sick -- companies like Lockheed Martin, Union Carbide and Goodyear Atomic.   DOE does not propose Congress enact a tax on DOE’s contractors to pay for compensation, as Congress did on coal companies in passing Black Lung compensation.  Instead,  the benefits will be paid out of general revenues, making budget concerns tower over public health ab initio, and using the budget mechanism to effectively limit the number of persons awarded benefits. 

This is an unfair, regressive subsidy from every American to DOE’s contractors.  Shame on DOE for its insensitive approach, which makes compensation look more like a bribe or welfare than compensation for workplace injuries.  This sends the wrong message to government contractors: make enough workers sick and the Government creates a bailout.  This is obscene and absurd. 

Vice President Al Gore has long favored a pollution tax to “internalize external costs.”  A pollution tax should be levied upon every DOE operating contractor ever to operate a DOE site.   The tax should be proportionate to the pollution and sick workers left behind.   Funding should be based on taxing DOE’s contractors, not innocent Americans.   Then Congress will be more likely to grant full rights to fair benefits for all injured workers and residents (and less to trying to limit the number of beneficiaries).  The Black Lung program is a pay-as you go program, based on the Longshore and Harbor Workers’ Compensation Act of 1928.[14] 

By making compensation part of DOE’s budget -- instead of taxing its own contractors -- DOE managers ask Congress to create a built-in conflict of interest: DOE budgetary pressures that would be well-known to DOE decisionmakers who lack judicial independence. 

DOE sites have a history of conflict of interest[15] -- environmental monitoring, radiation protection, self-policing -- leading to legislation calling for “external regulation.”  Both Supreme Court Chief Justice Earl Warren and the Bible agree: "A [person] cannot serve two masters."[16]   Conflict of interest standards are intended to “prevent dishonor.”[17]  The DOE budget should not be tapped for nuclear worker benefits, because this would give DOE personnel an incentive to deny benefits for their own agency’s benefit.  DOE contractors should be taxed to pay for the benefits, with a tax system taking its cue from the Black Lung Benefits Act per ton coal tax or Vice President Al Gore’s proposed pollution tax.

Who would receive benefits? 

In DOE’s first draft, only a subset of the most activist sick workers -- the beryllium workers, Oak Ridge and Paducah workers -- would receive benefits. Local residents and all of the workers and residents from all of the other sites are left behind.  Why?

DOE targeted the most vocal workers, hoping it won’t have to do anything if they take its bait.  This is a cynical approach to workers compensation and public health.   Not even the coal industry lobby dared propose such a cynical bill.  No coal company ever proposed that only those persons active in the Black Lung Associations (BLA) should have received compensation in 1969.  Buying off Oak Ridge DOE weapons site pollution critics is not an appropriate basis for writing legislation.  In America, we call it bribery.[18]  The sick workers see through this Oak Ridge critics-only compensation plan, and have rejected it -- every single one of them.  DOE should apologize for this attempted manipulation.

Who would control the workers’ compensation program?  

Under DOE’s “Fantasy Island” approach, it would be DOE and not DOL.  This is the “control game” DOE always plays.  We don’t let tobacco or asbestos companies decide who gets compensated. This control by DOE over its own compensation program is contrary to the now well-established principle of “external regulation” of every aspect of DOE.  What other organization has its own in-house workers’ compensation system?  Would outspoken DOE critics be targeted for benefit denials in retaliation for criticism?  Why should DOE being given a choice by “contracting” with DOL to have DOL run the program.  External regulation should be assured and assumed.

What would be paid?

Depending on the version of the bill, $100,000 or $200,000 per person, taxable or tax-free, with lawyers fees to be paid from the proceeds.  There is no provision for lifetime medical care and treatment.  Legal fees come out of awards, and are limited to 10%.   In contrast, under the Black Lung legislation, monthly benefits are paid to the miner and his or her surviving spouse and children, along with lifetime health care and attorney fees based on hours worked and reasonable hourly rates.  By capping legal fees and making them come out of the awards, DOE seeks to discourage zealous legal representation.  In a true “compensation” system, workers should not have their awards reduced by any percentage for fees -- legal fees should be calculated separately.  (Under the Federal Tort Claims Act, fees are capped at 25% of awards).   Total Black Lung compensation can reportedly reach $500,000, including medical bills, in a typical Black Lung case.

What would be taken away? 

All rights to sue DOE, the United States, DOE contractors and subcontractors and employees, by the employee, representative, spouse, dependents, survivors, next of kin, hospitals, doctors and insurance companies in any civil action.  DOE retains the right to sue whoever made you sick to recover its costs, but you give up all rights.

Would benefits be reduced based on other benefits?   

YES.  Benefits would be reduced by payments under any state or federal workers compensation system, excepting medical expenses. 

Who would decide who gets paid?  

DOE and DOE doctors.  This is a blatant conflict of interest, and “tempts dishonor.”[19]  DOE doctors getting DOE performance reviews will perform what should be an adjudication function performed by independent Administrative Law Judges appointed pursuant to 5 U.S.C. § 3105.  Why should the polluter’s own personnel decide who the polluter has made sick?  This is an outrage.

Under the legislation, DOE could hire DOL to do its decisionmaking for it (presumably, a contract to pay the DOL Office of Workers Compensation Programs to handle paperwork).   In contrast, Black Lung benefits are decided by  independent Administrative Law Judges, protected by lifetime tenure, free to decide cases based on medical evidence and legal precedent.  Government physicians have bosses and would serve on “panels.”  This is reminiscent of the NRC Atomic Safety and Licensing Board (ASLIB), where “panels” of technical “experts” were presided over by “judges” who are not independent Administrative Law Judges.  The purpose of those panels was to approve every nuclear powerplant license ever placed in front of them by the NRC staff.  This is not “science.”  It is “junk science.”[20]   This is not “adjudication.” It is yet another administrative law “kangaroo court.”.  This is not democracy -- it is autocracy, or what Max Weber first called “bureaucracy” or “technocracy.”  Congress should find that it would violate Due Process and reject the DOE bill.  DOE’s bill sets up not an administrative-judicial process but a medical lottery.   Government physicians have been harassed and intimidated in the past for their outspokenness on medical conditions ranging from Gulf War Syndrome to the Tuskegee, Alabama syphilis experiment.  The “panels” could be filled by DOE clone physicians who pretend that there is not enough “data” -- after DOE for years concealed death rates by epidemiological flummery. 

DOE employees should ever be involved in adjudicating compensation decisions.  If DOE decides who gets compensation, it could easily use its power to punish those who are its most vocal public critics, while buying off persons who agree to gag orders.  See infra.  It is a conflict of interest for DOE employees who gets compensation at DOE sites.  DOE’s abusive security clearance adjudication process should give this Subcommittee pause for alarm.

The bill provides no principles of balance or neutrality in selection of government physicians to sit in judgment on workers’ compensation claims, which are ultimately legal, not medical, determinations for Congress to make, just as in the Black Lung interim presumption.  Government physicians vary in quality and integrity.  Dr. Michaels will not always be there: his successor could be someone with very different values and views.   Whoever hires, pays, evaluates and promotes the physicians can influence the number of decisions awarding benefits be paid. 

It is all too common in Government for agencies to try to influence the awarding of benefits to save money.  The Immigration and Claims should investigate this tendency, which too often dangerously borders on “case-fixing,” as in the Social Security and security clearance cases. 

Back in the 1980s, the Social Security Administration kept sending its “independent” judges back to what Rep. Barney Frank of this Subcommittee called “remedial judging school” if they ruled too often for disabled workers.  Congress wrote the Administrative Procedure Act in 1946 to protect citizens’ rights to fair treatment by their Government in administrative law.  Not surprisingly, DOE asks Congress to exempt DOE from these provisions.  This Committee should not only say “no,” but “never” to DOE’s insistence on being exempt from APA.  Poisoning Oak Ridge workers does not come under the military exemption in APA.  No logical basis exists for exempting nuclear worker and resident compensation adjudications from APA.  Any worker seeking compensation for injuries from working at DOE sites should have an absolute right to an open, public hearing before truly independent Administrative Law Judges from DOL -- where workers’ witnesses can testify about actual working conditions while they are all still alive, putting the facts on the record forever.  In contrast, DOE’s bill shows a marked preference for “kangaroo courts,” which is all that federal employees have under the FECA  compensation system.  (Ask a DOE or TVA employee how they like FECA).

Would there be any appeals or judicial review? 

No.  In DOE’s bill, DOE’s decision is final and unappealable.  Why?  DOE wants to maintain control, and avoid lawyers and courts and judges and accountability. 

In contrast, DOL has appeals to the Benefits Review Board (BRB).   BRB is subject to change with administrations, but bases its decision on precedents and evidence.  Anyone dissatisfied with a BRB decision can go to the Court of Appeals and the Supreme Court, which has actually decided a few Black Lung appeals in the past 25 years.  This assures a uniform body of precedents that the Government will have to follow.  DOE’s purpose in denying worker appeals is to “ration justice.”  As Judge Learned Hand said, "If we are to keep our democracy, there must be one commandment: thou shalt not ration justice." 

Under DOE’s unfair “alternative dispute resolution” system for compensating sick nuclear workers, DOE’s porcine contractors would have more Due Process rights to appeal from an unreimbursable party expense than a contractor worker and his/her family would from denial of compensation for sickness and death. 

DOE could deny one worker benefits while giving benefits to another with the same condition from the same plant, with no right of appeal.  This is the litigation system DOE preferred for years in security clearances, eschewing Anglo-American system of precedents for “secret law.”  Unseemly pressures on security clearance adjudicators led to an American Bar Association resolution in 1989, and five days of House oversight hearings on violations of workers’ security clearance Due Process rights.[21]  Until a few years ago, DOE and no body of case law to follow and telling House investigators in 1989-90 that it did not use a system of precedents to decide security clearance cases (in contrast to DOD).  DOE is still using at-will government lawyers instead of Administrative Law Judges to decide security clearance, whistleblower and FOIA cases, among others. DOE’s almost diabolical opposition to appeal rights and judicial review shows that DOE expects “the control game” to continue.  DOE wishes to run the system the same way it runs nuclear weapons plants.  (Of course, under DOE’s no-appeals system if you get cancer or die, you or your heirs could always request reconsideration and reopen your claim.)

What physical or mental conditions would be compensated?  

Only a very few of the conditions known to be associated with nuclear weapons plants, namely certain beryllium disease, leukemia, multiple myeloma, lymphomas (but not Hodgkin’s disease), primary cancer of the bone and lung (except for heavy smokers), and a list of other cancers with other words of limitation.  No mental conditions are listed, not even depression due to chemical exposure.  The bill has, in effect, adopted the idea of an “interim presumption,” entitling people to benefits based on specified conditions, as under the Black Lung benefits law.  Yet not enough conditions are listed. It is a narrow “interim presumption.”  This is a start for discussions, not an end product.

Congress should draft a more humane  “interim presumption” to benefits.  It should be not unlike the early Black Lung “interim presumption,” but applied to a complex set of chemical and radiological conditions.    Physicians should help refine the draft interim presumption contained in the attached proposed Nuclear Weapons Workers, Atomic Veterans and Residents Compensation Act, which is my proposed conceptual approach to the problem, developed in consultation with workers and residents, and deserving of further discussion, comment and testimony from medical experts.

How many people would receive benefits?  

Probably not very many people.   DOE’s proposal is a public relations device without a conscience. It creates false hopes, is intended to divide sick workers into groups with different interests, and to “reward” with minor amounts of money only those who have been most active in raising concerns, apparently in hopes that a real reform will never be adopted.  This bill could help a few workers with a few conditions in a few places.  But it would not help any of the sick local residents.  It would not help most sick workers.  It would not help people in most places.  Meanwhile, the DOE compensation bill would (like zero in math) be a “placeholder.”  This bad bill would occupy the field, and allow DOE lobbyists to say Congress already passed a “reform” when it did no such thing.    This is known as “Election Year political pandering”

Why should two disabled brothers with lung diseases have radically different federal rights and benefits, based merely on the fact that one worked in the coal mines and the other worked at K-25?   DOE has still not answered the question, posed a year ago.  Provincial

DOE would have Congress arrogantly reject 30 years of experience with Black Lung benefits, proposing to give sick nuclear workers unequal rights to benefits without lifetime health care, Due Process, independent judges, a fair appellate process, legal fees and an “interim presumption” based upon medical science.   A fair compensation system would apply the valuable lessons learned from Black Lung disease compensation, rather than invent the proverbial “camel designed by [DOE, DOJ and OMB] committee.”  This is not a reasonable proposal.  DOE’s bill is a political football intended to solve political problems -- environmental concerns about nuclear weapons plants and sick and dying workers.  It is inadequate.

Who would choose physicians?  

Following the DOL OWCP Federal Employee Compensation Act model, doctors under DOE’s proposal would be picked by government employees and government contractors, not workers, and workers would be shuttled on a “Grand Tour” of biased physicians attempting to argue that they should not receive compensation.  In contrast, California law recognizes the right of workers to have medical examinations before doctors of their own choice, with full reimbursement of expenses establishing entitlement to benefits.

Who would pay lawyers and how?  

Lawyers would receive up to a 10% contingency for representing claimants, capping fees at $10,000 under the $100,000 payoff plan.  This reduces workers’ recovery to only $90,000, while paying lawyers very little for what could be development of complex medical evidence and causation.  This provision discourages lawyers from taking DOE workers’ cases while reducing the amount of work that they can afford to do proving occupational disease causation.   On the other hand, the Thompson $200,000 bill has no cap on contingency fees, which would allow lawyers to charge 40% contingency fees in Tennessee, reaping up to $80,000 per claimant, encouraging lawyers to take easy cases and reject hard cases. 

In contrast, under Black Lung and Longshore, DOL orders coal companies and OWCP to pay Claimants’ attorneys a reasonable hourly rate for a reasonable number of hours’ work.  Not one penny of benefits is taken away from workers’ compensation claimants to pay their lawyers.  Lawyers are assured that if they take and win a complex occupational disease case, they will be paid fees that compensate them for their work. That is the preferred alternative, to encourage lawyers to take occupational disease cases.  The other alternatives -- a 20% or 25% contingency as in state workers’ compensation or Social Security disability cases -- is harsh, taking away the workers’ benefits to pay lawyers fees.

Would “gag orders” be allowed on settlements?

There is no provision in the legislation that prohibits DOE from asking for a “gag order” or confidentiality agreement in exchange for receiving benefits.  DOE’s “bait-and-switch” whistleblower scheme has attempted to use “gag orders”to suppress information.  In contrast, gag orders are prohibited by Department of Labor nuclear and environmental whistleblower precedents.[22]  Unless the DOE and the Justice Department want to make the case publicly for why gag orders should be allowed on bomb factory worker and neighbor compensation, Congress should find and declare that gag orders are illegal in nuclear worker compensation settlements, and make them a felony.

NUCLEAR WORKER COMPENSATION SHOULD BE ADJUDICATED BY THE LABOR DEPARTMENT AND FOLLOW EXISTING BLACK LUNG AND LONGSHORE COMPENSATION LAWS AND PRECEDENTS

Based on the foregoing comparisons, there is no contest: DOE nuclear workers should have the protection of the Department of Labor Longshore and Harbor Workers’ Act, which has been applied to offshore oil platforms, defense contractor employees in places like Vietnam, and coal miners who develop coal workers’ pneumoconiosis.  There is no principled reason why an East Tennessee DOE contractor worker who develops lung disease should get nothing but empty promises, and not have equal rights with his brother, a miner who develops Black Lung should have a right to independent judges, administrative judicial appeals, and if found entitled to benefits, compensation for himself, his spouse and his children, and a lifetime of medical care.  

The Department of Labor provides independent Administrative Law Judges, with an appeal to the Benefits Review Board.  Instead of having no precedents under the DOE system, there would be a national system of precedent on who receives nuclear worker compensation, based upon thorough hearings and review of the medical evidence.  Congress must reject DOE’s habitual preference for coverups, no accountability, no jury trials and no adjudicative independence.   DOE reminds me of what Ronald Reagan said about the similarities between a baby and the U.S. Government: “all appetite on the one end and no responsibility on the other.”

The public deserves the whole truth about DOE pollution, coverups, disease and death.

There is a strong public interest in exposing the whole truth about what DOE has done to workers and residents.  The full truth will not come out if DOE adjudicates its own adjudications and if we continue denying jury trials to Americans victimized by DOE.

All Americans should be proud of the way the Oak Ridge, Tennessee workers and other residents around the country have relentlessly worked to find the truth, aided by news reporters and Members of Congress.  These workers and residents who have been hurt by DOE have steadily worked to expose the truth, under threat of criminal prosecution, firing and stigma of scaring jobs away simply for raising environmental, safety and health concerns.  Their path has not been an easy one.  Our Founders would be proud of these workers and residents and news reporters.

For twenty years I have helped Oak Ridge workers try to come to grips with what the Government and its contractors did to them. As Justice Louis Brandeis put it best: sunlight is the best disinfectant.  This Committee’s hearing will further put the sunshine on DOE.  By way of background, I first investigated DOE toxic and radioactive waste articles and started writing articles in 1981, as a recent graduate of the School of Foreign Service at Georgetown University, at age 24, as Editor of the Appalachian Observer in Clinton, Tennessee.  In 1983 we won declassification of the largest mercury pollution event in world history, some 4.2 million pounds of mercury lost into workers’ lungs and brains. 

For over ten years, I have advised/represented DOE and contractor whistleblowers and sick workers, including Mrs. Sherrie Graham Farver of Oak Ridge, I was counsel for the plaintiff, Sherrie Graham Farver, in a medical malpractice case where an Anderson County jury awarded $600,000 last year against DOE’s consultant psychiatrist, for his misdiagnosing an Oak Ridge worker health activist as “paranoid, delusional and psychotic,”[23] with DOE’s psychiatry contractor basing his defamatory opinion partly on her having filed a worker’s compensation claim and the fact that she said her medical records disappeared for a time.  

Delusional behavior by DOE and its contractors is commonplace -- they were deluded into thinking they hurt no one, and fought disclosures that would prove otherwise.  It has been a long struggle.  We are making some progress.  If in 1983, after testifying before then-Rep. Gore’s investigative hearings, someone had tapped me on the shoulder and said, “17 years from now, DOE will admit liability and try to buy these people off for $100,000,” I would have laughed out loud. 

DOE has stonewalled all the way, just like the tobacco and asbestos industries.  DOE has repeatedly lied to Congress

DOE is a snakepit.  Speaking plainly, DOE and its contractors have mindlessly created a toxic, hostile working environment that suppresses employee concerns: they are “meaner than a skilletful of rattlesnakes.”   In the litigation context, DOE’s efforts to control administrative law adjudications (like security clearance cases) are corrupt and about as “crooked as a barrel full of snakes.”   In the “snakepit” of DOE pollution, coverups and adjudication failings, DOE’s approach to compensation is “snake oil,” and should be rejected as such by this Subcommittee and the whole House.  DOE is still concealing facts about toxicants.  DOE’s compensation proposal is puny. It would not make the polluters pay.  It would not even give sick workers a day in court.[24]  Subpoenas need to be issued.  More facts are required before legislation can be finalized to assure that the public interest is protected and all victims are compensated.

The Constitution has worked at last.  At least you are finally sitting here in the Judiciary Committee -- 57 years after commencement of the nuclear weapons industry.  We are sitting here doing what DOE managers always sought to stop at all costs.  Here we are talking like adults in public about litigation and claims for toxic injuries due to nuclear weapons manufacturing, one of the largest industrial enterprises in this country, which operated completely beyond the pale of all decent respect for civilized norms.  

For too long, DOE and its contractors talked to American workers as if they were children, ordering them not to use the word mercury, for example and telling workers that they would be criminally prosecuted for revealing environmental, health and safety problems. 

As I testified before then-Reps. Gore and Lloyd on July 11, 1983, it is DOE and contractor managers who should be prosecuted. DOE and contractor management conspiracy, perjury, obstruction of justice, assault and battery, homicide and environmental crimes need to be investigated and prosecuted.[25]  There is probable cause to believe that DOE and contractor mangers are guilty of crimes, including environmental and workplace air, water and land pollution and routine retaliation against whistleblowers.  Congress long ago identified DOE sites like Oak Ridge as “pockets of resistance” to whistleblower laws.[26]  After years of empty promises, DOE is still a national disgrace.   Oak Ridge’s treatment of whistleblowers has been recognized as at best “sadistic.”[27]  DOE and its Oak Ridge contractors still function as a “hate group,” with a network of blacklisting, intimidation and harassment.   In terming Oak Ridge and other DOE sites “pockets of resistance” to whistleblower law in 1992, Congress was acknowledging the fact that there is a climate of fear and repression at DOE sites.[28]   Eight years later, federal administrative remedies for whistleblower retaliation are not being enforced adequately.  Attempted government intervention in the bomb factory management “culture” of retaliation, intimidation, public relations manipulation, propaganda and surveillance is a model of failure, a farce without force.  Retaliators grow bolder and the chilling effects grow colder as we all grow older.  The DOE complex has not changed.   It is still lying to Congress and the American people. 

DOE and its contractors have co-opted and subsidized environmental activists concerned about DOE sites, influencing them to trim their sails and not to call for criminal prosecution of DOE activities -- which the DOE defenders call “witch hunts.”  Meanwhile, DOE has surveilled workers and citizens, including activists concerned about environmental issues: 

·        During the Manhattan Project, workers’ homes were routinely broken into: some ten percent of the employees in Oak Ridge were spying on the other workers, with security risks, union activists and those raising safety concerns escorted out of town.[29]

·        In 1991, Martin Marietta was found to have illegally had dozens of pieces of illegal surveillance equipment in Oak Ridge, which were required to be turned in after the Inspector General uncovered the scheme.  One does not accumulate surveillance equipment without the intent to use it.[30] 

·        On July 11, 1996, Lockheed overtly videotaped workers speaking in a NIOSH closeout of a confidential health hazard evaluation request.  Two Lockheed Martin video camera operators recorded the faces and voices of workers asking critical questions[31], a number of whom were shortly thereafter laid off by Lockheed Martin in a 300 person layoff.   The tapes were professionally edited, with each speaker shown on-camera.   NIOSH health hazard evaluation report under overt video surveillance, with two video cameras recording the faces of employees who disagreed with the company and NIOSH positions regarding the presence of cyanide at K-25.[32]  The videotape of the overt surveillance was not produced by the employers in discovery.  The tape has professional editing, cutting back and forth between two cameras, one focused and panning on the concerned employees.[33]  

·        A confidential March 23, 1998 meeting between workers and doctors was taped by Lockheed, without permission of any of the workers who were present in the confidential meeting.[34]

·        In April 1999, a former K-25 worker and her lawyer used the DOE Oak Ridge Reading Room: the identity every single one of the documents they viewed was swiftly reported to DOE and Justice Department lawyers, without their consent.[35]

DOE and its contractors routinely invade workers’ privacy.  In the 1996 and 1998 surveillance acts, Lockheed tried to pretend that there was no intent in 1996 and that the 1998 instance was a “mistake.”  As I wrote to Secretary Richardson last year:

Now DOE ORO is caught like the proverbial “hog caught under a gate,” spying on reading room requests, with the evidence contained in a filing with a Federal Judge.[36]

I wrote the Secretary of Energy that:

The Oak Ridge version of Jimmy Breslin’s “The Gang That Couldn’t Shoot Straight -- the ORO regime dominated by ... “hatchetm[e]n,” ... was found by respected University of Tennessee industrial psychologist Professor John Lounsbury, Ph.D. to be the most dysfunctional organization he had ever studied.  Your recent transfer of DOE Oak Ridge Manager Jim Hall was a good thing -- but in one sense not unlike the punchline of the lawyer joke -- “a good start.”  Generations of Americans fought and died for a free country, one that ORO managers would evidently like to shackle and return to a British-style monarchy, where the “king can do no wrong.” 

Citizens using a government reading room have two reasonable expectations -- of privacy in his/her research and identity, and of probity in the government’s and contractor’s handling of confidential records on that research.   Those privacy and free speech rights must never again be violated by DOE Oak Ridge Operations personnel. Nor should such Watergate-style dirty tricks be joined in by the Justice Department.[37]

This surveillance was raised with a DOL judge and with a U.S. District Court Judge in Knoxville. Both judges appallingly looked the other way and did not allow the cases to proceed: the DOL case is on appeal.   Surveillance should be investigated by the Judiciary Committee, with a referral to the Justice Department, with full knowledge that the public interest needs to be protected from influence by Lockheed, DOE and Justice Department lawyers who may have received the fruits of such surveillance.  The purpose of such surveillance is intimidation of potential government witnesses.  It must be halted.

Early on in the 1940s, Government and contractor managers decided to suppress litigation and journalism about nuclear weapons toxicants.  A permanent coverup ensued, one wherein obsessive secrecy and classification were used to conceal deaths and injury.  The awful risks that the Government and its corporate contractors concealed from the American people include what Tennessee environmental regulators long ago called a “witches’ brew” of toxicants.[38]  For years DOE controlled the studies, data and reporting of problems.  DOE retaliated against employees raising concerns in a culture hostile to free speech and dissent.  Now after all these years, DOE suddenly rushes you to pass compensation legislation it hastily cooked up, disrespecfully treating you like short order cooks. 

DOE overt and covert lobbyists are pushing you to do something right now, this session, or else.  DOE’s haste could make waste.[39]  DOE’s haste has more to do with the continuing revelations of DOE sites in USA Today, of contaminated sites across our Nation where workers were exposed to toxicants, more than were previously known to the American people.[40]  Former House Speaker Tip O’Neill said “all politics is local.”  Since people are just finding out about their contaminated local DOE sites, it is way too early for Representatives to vote on a compensation package that could leave their local victims uncompensated, uncovered and without medical care for the rest of their lives.   With many of DOE’s victims not yet knowing they are victims, it is too soon to pass legislation affecting their rights.  In that way, DOE’s legislation is not unlike cramdown class action litigation of the sort that commits victims who don’t know they are victims yet.  Members of Congress in the affected Districts should have the right to hold Town Meetings with victims before being asked to vote on a compensation package, particularly one as exclusionary as the DOE Trojan Horse bill. No one at DOE (or in the other body) has the right to make deals on the front end for people who don’t know they are victims yet, who are still alive, who suffer and have been denied full information on the cause and existence of their disease by DOE.

The Subcommittee should listen to the victims and hear their frustrations with a Government that has let them down, put them down as “paranoid” and “crazy,” finally admitted making people sick and then delayed introducing any compensation legislation so that only a “Trojan Horse bill” could pass this Session. 

This Committee should closely question putative medical and workers' compensation “experts, including those from the Departments of Justice, Labor, Energy and Health and Human Services.  All testifying should be placed under oath.  Efforts to use “risk analysis” techniques to downgrade the probability that illnesses were caused by toxicants should be viewed with a gimlet eye.   In the past, such efforts have been abused.  We know who controls the funding.  We know that DOE has lied and used studies to lie for decades, fearing liability and publicity.  Those chickens have come home to roost and will not be shooed away by cluck-clucking sounds.

Our Constitution is a sacred commitment to a fair civil justice system.   We must compensate all of DOE's nuclear weapons plant victims, not just a few.  Unfortunately, a “Trojan Horse” bill was passed by the Senate, written by DOE ‑‑ an embarrassment.[41]  This bill is ill-advised and should be rejected, along with its cousins, all of which monetize suffering and death and shockingly low levels, without adequate protections for worker rights and remedies.

It is crucial to assure full and fair remedies, independent fair procedures, and independent lifetime medical benefits for all victims of DOE toxicants.  Without these essential elements, legislation would not be a victory but a defeat for the sick workers and residents.   This is a matter of fundamental human rights. This needs to be a product of careful thought and deliberation, not a hastily drafted compromise passed for amoral political purposes. The ill-advised Thompson‑DOE bill is a disaster, not covering all DOE sites, not covering children,  genetic damage and offsite residents (Downwinders).   Worse, we understand OMB and the White House have raised a trial balloon about lump sum compensation with no lifetime medical care. 

In the real world of workers’ compensation, lump sum settlements are not permitted unless approved by a judge.  DOE would make its lump sum proposal a cramdown for all.  This is unreasonable, particularly without lifetime health care.  DOE would be judge, jury and executioner over its victims.  Don’t let DOE get away with this unjust proposal.

Please say no.  This would not be an accomplishment for anyone.  This would be a sellout, and it would adversely affect nuclear weapons workers and residents  Please tell whoever suggested the no health care bill to drop the oyster and leave the wharf.

It would be far better to pass a truly meaningful bill during the first days of the Gore Administration, with a Democratic House ‑‑ with full remedies and fair procedures ‑‑ than to pass a “Trojan Horse” Bill that covers few workers, few toxicants, and rewards DOE and its contractors for their coverup.  We need independent hearings before independent ALJs, not decisions by DOJ lawyers.  We need benefits at least comparable to Black Lung and Longshore compensation.   DOE victims deserve more than crumbs.  DOE victims deserve more than a onetime cash payment to people who are sick and dying due to toxicants.  We need a bill that makes the polluters pay. 

Unfortunately, DOE dragged its heels for years and proposed its defective‑by‑design bill too late to pass this year.  Please don't support a “Trojan Horse” bill.  Let me commend to your attention nonpartisan compensation legislation -- NWWAVARCHA -- that I have drafted with help from sick workers and residents from across the country -- meaningful omnibus legislation that would treat workers, atomic veterans and residents equally ‑‑ a principled approach that the Congress and President should evaluate and support:.[42] 

In one of my favorite movies, "The Hunt for Red October," a U.S. Navy admiral (portrayed by none other than veteran character actor Fred Dalton Thompson) said (I must paraphrase): "The Russians don't (go to the bathroom) without a plan." What is DOE's plan?  DOE wants to prevent workers from using subpoena power to prove their injuries in open public hearings.  DOE wants to conceal wrongdoing while throwing crumbs to its victims.   If the devil is in the details, then the Thompson-DOE Amendment is an energumen: it will not silence the victims or meet their needs.

Congress should reject DOE’s PR manipulations and attempts to rush decisionmaking.

As an act of wisdom and self-restraint, Congress should kill this monstrous piece of DOE-drafted legislation and go back to the drafting stage, with open public discussion instead of attempted end-runs, through closed-door markups and voice-vote floor amendments.[43] 

Congress must thoughtfully and creatively devise a just compensation system to cover all victims with full benefits, making polluters pay. We don't need another farce, written and run by the same DOE that created the ultrahazardous facilities and covered them up for nearly six decades.[44]

Passing a "CONpensation" bill without health care, without covering children, genetic damage and offsite residents (Downwinders) would be contrary to the national interest.  Better no bill than a “Trojan Horse” bill this year.  These are my six suggestions:

1.         Please don’t pass any nuclear weapons compensation legislation this year.  There is not yet a consensus.  Crafty DOE waited too long to present its Trojan Horse bill.  DOE’s bill lacks full remedies and fair procedures.  Some editorial writers demand that Congress pass a bill this year.  That would be a serious mistake, playing directly into DOE’s hands.  What is politically “doable” this year is not enough.

2.         Kindly hold hearings on legislation to repeal the “discretionary function” loophole for ultrahazardous activities (including National Park Service fire-starting and DOE nuclear bomb manufacturing and transportation).

3.         Please hold comprehensive hearings next year on the proposed Nuclear Weapons Workers, Atomic Veterans and Residents Compensation and Health Act (NWWAVARCHA)[45] next year, with joint hearings with other Committees of jurisdiction over health and labor matters.

4.         Please hold hearings in the House Judiciary Committee’s Commercial and Administrative Law Subcommittee on the desuetude of environmental and nuclear whistleblower law enforcement by the United States Department of Labor for twenty years, under three Administrations.[46]   Workers will forever fear to reveal problems if employers go "unwhipped of justice" by DOL.  Rep. Lowe of Kansas said in debate of the 1871 Civil Rights Act (or Ku Klux Klan Act), banning criminal and civil conspiracies to violate citizens’ rights:

While murder is stalking abroad in disguise, while whippings and lynchings and banishments have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective.  Combinations, darker than the night [which] hides them, conspiracies, wicked as the worst felons could devise, have gone unwhipped of justice.  Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress. [47] 

5.         Please hold hearings in the full House Judiciary Committee or the Immigration and Claims, Constitution and Courts and Intellectual Property Subcommittees regarding the “discretionary function” loophole in the Federal Tort Claims Act, which lets DOE get away with murder at nuclear weapons plants.   The compensation legislation is being pushed on sick workers, many of whom have seen conservative federal judges rule for DOE and against their right to have their day in Federal Court.  The “discretionary function” loophole should not cover ultrahazardous activities (like bomb building and firestarting) -- homicide and recklessness by DOE should not be free from scrutiny by American juries.  The Seventh Amendment must be protected from the Justice Department’s special pleadings for the nuclear weapons industry.

6.         Kindly recommend that the full Judiciary Committee or its Subcommittee on Crimes hold a full series of hearings on nuclear weapons pollution, coverups, retaliation, surveillance and other crimes by DOE, its contractors and predecessors, with a series of field hearings.[48]

CONCLUSION

DOE was reckless when it poisoned the workers and residents.  DOE lied. About health effects.  Now DOE proposes not fair compensation, but a con job.   While not proposing to hold DOE’s victim’s in solitary confinement for nine months (like Wen Ho Lee), DOE proposes to make them go through life without the compensation and health care they deserve, based upon DOE’s insensitive approach of deciding its own cases.

There has been enough DOE and contractor toxicant exposure, retaliation and lawbreaking.  There has been enough DOL and DOJ silence in the face of it.   Enough.  The House Judiciary Committee has had its share of heroes in our Nation’s history, people like Fr. Robert Drinan and Chairman Peter Rodino and Barbara Jordan, whom Jimmy Breslin memorialized in How The Good Guys Finally Won, about Watergate.  This Committee should demand answers from DOE and other agencies that are stonewalling you today.   Don’t let Watergate-style manipulation tactics cause you to pass a bad bill that will forever take the place of a good law.

Speaking of stonewalling, I understand that DOL doesn’t want to provide compensation adjudication for DOE and contractor employees.  Apparently, DOL is concerned that hearing rights would embarrass DOL and might be used by federal employee unions to militate in favor of giving hearing rights to federal employees in workers compensation cases, who currently do not have those rights.   Giving DOL jurisdiction over DOE contractor employee sick workers might be akin to a proverbial “shotgun wedding.”  DOL managers who don’t want to protect DOE site workers’ rights should find a new line of work.   DOE’s tatterdemalion Administrative Review Board is a “cave of the winds” that refuses to hold those who retaliat against whistleblowers accountable, finding multiple excuses not to hold DOE, its contractors and their managers responsible, not even allowing individual corporate liability, hardly a novel idea in American jurisprudence, but one that the employer-dominated ARB mocks and trivializes.[49]  Speaking of “Reinventing Government,” DOL needs a purpose besides its underworked employees drawing paychecks.  DOE has been cruelly unfair in dealings with workers for 20 years, delaying cases and distorting decisions.  The time for equivocation is over.    In discussing environmental ills, Vice President Gore has quoted Sir Winston Churchill, who said:

          The Government simply cannot make up their minds, or they cannot get the Prime Minister to make up his mind. So they go on in strange paradox, decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all-powerful to be impotent.... The era of procrastination, of half-measures, of soothing and baffling expedients, of delays, is coming to its close. In its place we are entering a period of consequences.[50] 

Some say the current Administration wants to pass what is admittedly a poorly-conceived compensation plan so the Administration can have more of a “legacy.”  In Oak Ridge and at other DOE sites, the word “legacy” has a different connotation -- it is used to refer to radioactive and toxic waste that someone else must clean up, years later. 

Let’s not leave future generations a “legacy” of per capita bribe payments of $100,000 or $200,000 as the sordid way that our Government responded to a national mass tragedy.  We need simple justice.

The Associated Press has recently reported that “by some estimates, the proposal could cost taxpayers more than $3  billion, and congressional aides have talked about trimming that cost by making it more difficult to qualify for compensation.”[51]  That’s cold.  At the same time, some House members are pondering $3 billion for farm relief from drought during one year.[52] 

The effect of DOE toxicants on the people, land, air, water and natural environment of Tennessee and the rest of this country is incalculable, and certainly far greater than one year of floods.  DOE’s proposing a mere $3 billion -- and then Congressional staffers proposing to cut it -- is too cute by half.  DOE  environmental cleanup is projected to cost $200 billion.  An annual $35.1 billion is what the Brookings Institution says America spends on nuclear weapons. 

In light of these “major league” expenditures, DOE’s “bush league” compensation proposal is unfeeling and penurious to begin with: it says to the sick, here’s some money, now go away and leave us alone.  With no health care.  Imagine that. No health care: shame on DOE. 

Some have always suspected that DOE was not part of the reset of the Federal Government, because it stays in business even when there is a Government shutdown, and it acts like an alien implant (not unlike the troops of King George III) wherever it exists, from Oak Ridge to Hanford.  DOE has always acted like it was above the law -- including environmental laws.[53]

Here, the Clinton Administration has fought for eight years to provide health care for our people, and DOE’s idea is to provide no health care to the victims of its torts.  DOE and DOJ lawyers should go back and hang their heads in shame.

Let’s not insult the memories of these victimized sick workers and residents further, dangling money in their faces (the DOE way).  DOE wants you to pass “CONpensation” legislation that would amount to unilateral disarmament of the workers and residents.  The bill would take away even exsting rights to sue contractors or DOE officials and would not expand those rights.  Instead, to borrow a line from the late Paul Tsongas, it tosses money at the problem in an Election Year “Pander Bear” Move.   This is unacceptable.  We can do better.

DOE’s bill sounds like a great idea until you look at the details.  Then you realize we would just be carving some Assistant General Counsel’s initials in the backs of DOE’s injured victims, in whom it plunges the dagger.  Look how badly DOE has drafted this bill, which is defective-by-design:

·        DOE’s way is to enact criminal penalties for false statements to obtain benefits, but not false statements to deny benefits.

·        DOE’s way is to make up a euphemism for a title and say its bill covers “energy employees,” avoiding the words “nuclear weapons.”  One would think oilwell roughnecking or mud-logging or offshore drilling was involved, not nuclear weapons.

·        DOE’s way is to keep control over adjudications in the hands of the tortfeasor. 

·        DOE’s way is to divide workers against one another. 

·        DOE’s way is to divide workers from residents and uranium miners and Downwinders from plant workers.

·        DOE’s way is to leave compensation for chemical and heavy metal injuries to over a dozen state court systems, instead of placing them in the Department of Labor, where nationwide precedents would prevail, protecting all DOE victims. 

·        DOE’s way is to pander and defer to state compensation systems on chemical and heavy metal injuries. 

Let’s not kid ourselves.  DOE has aiders, abetters and enablers.  DOL has been one in its handling of whistleblowers cases.   For another example, the State of Ohio has implied that the needs of workers in Ohio were different from those in Utah, and that states should  handle most DOE site workers compensation. [54] This is arrant nonsense.  Workers in Tennessee, New Mexico, Washington State, Utah and Ohio alike need food, clothing,  health care, medicine, heat, light, housing, transportation, energy, recreation and entertainment.  Workers in different states are not different species. A DOL compensation system would be an improvement, with national standards.  Yet DOE and its CONpensation bill would leave workers with injuries from chemicals and heavy metals to the not so tender mercies of the likes of the Ohio Workers Compensation Bureau, leaving only  radiation and beryllium injuries to federal law.  This is not a solution: it is a farce.

DOE’s way would make payments a tiny fraction of what DOE spent on pollution, coverups and bomb building. Let’s not be miserly with DOE’s victims.  They did not ask to carry DOE contractors’ cyanide, mercury, hydrogen fluoride and other toxicants in their bodies. They do not deserve the “attitude” from House staffers who may have never even visited a nuclear weapons facility.   DOE’s value on human life is unreasonable.  Once the toxicants are in a human body, it’s awfully hard to get them out. To monetize the pain they cause at a few hundred thousand dollars shows that DOE is in a panic to avoid the true costs of its environmental torts. 

DOE has attempted to divert attention from its desire to protect its contractors from any liability at all.  That is wrong.   Make the polluters pay.

DOE has attempted to divert attention from the outmoded, unfair  “discretionary function” loophole.  Let’s eliminate that loophole for ultrahazardous activities, and allow jury trials in state and federal court against DOE contractors and DOE (and against DOI by the victims of government fire-starting activities).  See Proposed NWWAVARCHA, attached, § 11 (Non‑exclusive Remedy Against Contractors, and Subcontractors; Preservation of Existing Constitutional, Civil and Statutory Rights) and § 20 ( Federal Tort Claims Reform and Seventh Amendment Restoration Act or FTCRASARA of 2000.)

Worker-only nuclear compensation on the cheap, written by DOE in haste, with cynical motives, only adds insult to injury.  DOE’s bill only preserves the “old guard” and the status quo, while not prosecuting the wrongdoers and assuring immunity for crime and torts for major campaign contributors like Lockheed Martin and Union Carbide.   This is an insult to those workers and residents who suffer and have died from our domestic nuclear weapons production and testing since 1943.

DOE never did anything to make it "more difficult" for workers and residents to get sick.  Before we know the full extent of toxic exposures and disease, it is ill advised to "trim that cost by making it more difficult to qualify for compensation."  It is ill-advised to deny lifetime medical care and insist on a $100,000 payout.  Indeed, some of the earliest DOE compensation proposals focus most of the money on some 50 workers in Oak Ridge, who have been outspoken and active in exposing DOE’s toxicants.  That is not compensation -- it is “hush money,“ a bribe for activist workers to keep their mouths shut and go away.[55]   This unseemly tactic is all the more reason for you to investigate DOE and not grant immunity to crimes and torts by DOE and its contractors.

DOE’s “Trojan Horse” bill -- or any unreasonable facsimile thereof -- should be roundly rejected.  These workers need help and they need it real soon.  The first 100 days of the next session of Congress is time enough to finish work and enact meaningful compensation legislation (attached) that would cover all Americans whom DOE has made sick, not just a handful.

As lawyer for the plaintiff Duane Rinde in the Woodies (Woodward & Lothrop) domestic partnership case in the District of Columbia in 1989-90 -- and as a former constituent of Rep. Jackson-Lee in Houston -- I thank Reps. Frank and Jackson-Lee for their thoughtful and heart-felt advocacy on behalf of human rights: you are two of Americans’ favorite Congresspeople.  Keep up the fine work.

I respect Judiciary Committee members including Chairman Hyde for wanting key questions answered.   Sick workers and residents want questions answered, too.  In particular, CBO estimates that DOE’s bill would cost $3.8 billion.  As the late Senate Republican Leader Everett McKinley Dirksen put it best, “a billion dollars here, a billion dollars there, and pretty soon you’re talking about real money.”  Let’s pass a bill that everyone can be proud of, rather than a rush-to-judgment bill that the Judiciary Committee and its members might wish to forget about in the morning.

DOE’s attempt to railroad unwise compensation legislation is unfair to workers.  The polluters should pay.   There should be hearings on making the polluters pay, and how to devise a system that is wise, fair and constitutional.  

DOE tortfeasors should not be delegated to run the Courthouse, violating the Constitution. 

DOE should not decide how much is enough for its victims, let alone forcing on them a system that is like the Procrustean Bed, a one-size-fits all compensation plan that looks like a per capita bribe payment to me, accompanied by DOE’s fix-your-own-case system, which Madison and Blackstone condemned..

All DOE victims, including children and Downwinders and persons with genetic damage, should be covered equally with legislation that does not put an unreasonable, absurdly low value on a human life.  I would be happy to answer any questions or discuss proposed draft legislation with you or your staffs.  Thank you for your time and consideration.

Respectfully submitted,

EDWARD A. SLAVIN, JR.

Tenn. Supreme Court BPR No. 012341

Box 3084

St. Augustine, Florida 32085‑3084

(904) 471‑7023

(904) 471‑9918 (fax)

SEPTEMBER 21, 2000

EDWARD A. SLAVIN, JR. -  BACKGROUND

·        Attorney for DOE and contractor employees in several states. 

·        Previously testified thrice before House subcommittees on DOE-related issues.

·        Have advised the Coalition for a Healthy Environment since 1996.

·        Counsel for the Plaintiff in Farver v. Carpenter, a medical malpractice case where an Anderson County jury awarded $600,000 against DOE’s consultant psychiatrist for misdiagnosing a worker environmental activist as “paranoid, delusional and psychotic, with loss of her job and security clearance.

·        Public critic of Oak Ridge waste disposal practices since 1981.

·        Pioneered use of whistleblower laws to protect Oak Ridge worker rights.

·        Published seven (7) articles on civil rights matters in American Bar Association publications, including two in the ABA Judges’ Journal.

·        Legal Counsel for Constitutional Rights, Government Accountability Project (GAP), 1989-93

·        Law Clerk, Chief Administrative Law Judge, Department of Labor, 1986-1988

·        Editor, Appalachian Observer, 1981-1983, recommended for Pulitzer Prize by DA for exposing Oak Ridge mercury losses.

·        Staffer for United States Senators Edward M. Kennedy, Gary W. Hart and Jim Sasser, 1974-1977.

·        Listed in Who’s Who in American Law, Millennium Edition.

·        Author, Jimmy Carter (Chelsea House Publishers 1989)

·        Early adjunct faculty member of the District of Columbia School of Law clinical program in conjunction with the Government Accountability Project’s legal clinic.

·        Attorney for plaintiff in Rinde v. Woodward & Lothrop, historic 1989 District of Columbia gay and lesbian rights case involving equal discount benefits at department stores, with settlement vindicating rights of Woodward & Lothrop and John Wanamaker employees in Washington, D.C., Baltimore and Philadelphia metropolitan areas.

·        In the early 1980s was appointed a member of Anderson County Commission Special Tax Study Committee.

·        B.S., Foreign Service, Georgetown University

·        J.D., Memphis State University School of Law.

Copyright © 2000 Edward A. Slavin, Jr.

                                                         ENDNOTES