Testimony of Gary S. Foster

Gary S. Foster
7408 Palmyra Drive
Knoxville, Tennessee 37918
(423) 925-3293

March 17, 2000

Senator Fred Thompson
Senate Governmental Affairs Committee
523 Dirksen Senate Office Building
Washington, D.C. 20510

Re: Hearing on Health and Safety Issues announced March 2, 2000

Dear Senator Thompson:

I am writing this letter in an attempt to enlighten you on the root cause(s) of the failure of the DOE (Department of Energy) to protect the health and safety of contractor employees at the DOE GOCO (Government Owned Contractor Operated) facilities within the DOE Complex. I am one of the many DOE contractor personnel who has been diagnosed with CBD (Chronic Beryllium Disease).  Quoting your committee’s press release, “If the federal government put workers in harm’s way without their knowledge, we need to know about it and we need to do what we can to make it right.” I feel that my following comments pertain to this subject. I apologize for the lateness of these comments, but I only found out about the hearings yesterday.

Since my diagnosis, in 1996, I have performed extensive research into the history of CBD and have been quite vocal, to the DOE, in my attempts to get the DOE to follow its own mandates which are stated in numerous DOE Directives, and also I have provided extensive written and oral comments during the rule-making procedure associated with 10 CFR 850 (the DOE Beryllium Rule). I was also a member of the DOE Beryllium Rule Advisory Committee, which met twice in 1997. I am also well aware of the Beryllium Worker Compensation Legislation that Secretary Richardson announced in July of 1999, and which you are a Senate sponsor.

Root Cause(s) of DOE’s failure to protect the Health and Safety of Contractor Personnel

1.The DOE, because of legal procedural maneuvering, has taken (and still takes) the position that it has “no legal duty to warn” contractor personnel of the hazards they will encounter at GOCO Facilities.

2.In another legal scheme, the DOE relies on its contractors to monitor and enforce Health and Safety at GOCO Facilities, even though these contractors do not have the information relevant to the hazardous nature of the work, therefore the protection of contractor personnel is based upon faulty information, and thus, doomed to failure.

3. The DOE fails to accept responsibility for the Health and Safety of contractor personnel even though the DOE states explicitly in DOE P 411.1 and DOE M 411.1-1 and DOE M 411.1-1 A that they are responsible and that these responsibilities cannot be delegated to the contractor. In DOE O 440.1A the DOE is required to provide a workplace which is “free of recognized hazards” and they are ignoring that mandate in 10 CFR 850.

4. Although the AEC promised OSHA in 1974 that they would promulgate and enforce health and safety standards equivalent or superior to the OSHA Standards, the AEC (and subsequently the DOE) has continually placed weapons production above Health and Safety of contractor personnel.

5.When the DOE was “caught in the hen-house” on the beryllium issues they proposed a compensation package which is completely inadequate, self-serving, counterproductive of its stated intentions, and basically places all the burden of CBD upon those who are least able to deal with that burden, those affected by beryllium exposure, while allowing the DOE and its beryllium vendors a free ride.

The DOE, because of legal procedural maneuvering, has taken (and still takes) the position that it has “no legal duty to warn” contractor personnel of the hazards they will encounter at GOCO Facilities.

I refer you to a memo found at the DOE Public Reading Room, at Oak Ridge, Be/THS 00091 (attachment 1) which is a 1986 memo from Farrell (then DOE General Counsel) to Mary Walker (then DOE Assistant Secretary of Environment and Health). This memo reflects the position of the DOE that it has “...no legal duty to warn, the breach of which provides a tort remedy. Initiating a program could create precedent for imposing a duty where none now exists.”

In the mid 1980's the DOE, faced with personnel at Rocky Flats recently diagnosed with CBD, began initiating a program to warn both former workers and current workers of the latent hazards of beryllium exposure. Essentially this program was killed because DOE General Counsel would not allow the DOE to warn of the hazards that workers were presented with. To me, this is using the discretionary function exemption of the Federal Tort Claims Act as a tool to inflict harm on contractor personnel. This is also using the discretionary function exemption as an offence instead of the defensive nature in which it was intended. To plan ahead, before harm is even done, and state that they have no legal duty to warn, is definitely a root cause of many of the troubles that the DOE is facing today. The carnage will continue until the DOE accepts its responsibilities, as owner of the facilities, to warn of the hazards inherent to its operations, and also to abate those hazards.

In another legal scheme, the DOE relies on its contractors to monitor and enforce Health and Safety at GOCO Facilities, even though these contractors do not have the information relevant to the hazardous nature of the work, therefore the protection of contractor personnel is based upon faulty information, and thus, doomed to failure.

I refer you to the 10 CFR 850 (the Beryllium Rule) and specifically the Economic Analysis portion of that rule. In Section 1.2 Beryllium Exposure And Market Failure (page 1-6) of this Economic Analysis one can find the root cause of the failure to protect the Health and Safety of contractor personnel in the DOE GOCO facilities, simply because the DOE had information pertaining to the risks involved, yet they did not disseminate those risks to the contractors. The DOE deems their beryllium experience as a “market failure” in paragraph 2 of section 1.2. Specifically, they state:

“As will be discussed below, however, the market fails to allocate compensation for beryllium-related risk because neither workers or their employers have the necessary information. Thus, the absence of information creates a market failure in the market for beryllium-related workers.”

3^rd paragraph:

“Given a wage rate and a risk of developing CBD, only the workers who are willing to accept the risk at the given wage rate would elect to perform beryllium-related work. Clearly, this places a strong informational requirement on the market. First, workers, and employers must know with certainty the risk and costs of developing CBD. Second, workers and employers must be able to tell what the other is willing to accept in terms of wages and risk. Although neither is likely to be satisfied, recent evidence suggests that the first is very unlikely to be satisfied at present.”

Although this section of the Economic Analysis, of 10 CFR 850, in no uncertain terms specifically states that the personnel and the contractors both did not, and presently do not have the information needed to assess the risks of working with beryllium, we must determine if the DOE possesses such information and failed to disseminate that information, thus averting the “market failure” situation. For the purpose of this exercise, I submit another document, from the DOE Public Reading Room at Oak Ridge, Be/USA00838 (Attachment 2) which is entitled Medical Meeting at Luckey, Ohio, March 20, 21, 1951. This meeting was attended by five persons from Brush Beryllium and six persons employed within the AEC. It is obvious that they were experiencing disease at the Luckey Plant (a beryllium production plant owned by the AEC, and operated by Brush Beryllium). The Luckey Plant was designed to produce beryllium without adverse health effects. On page 12 of the report of this meeting, in dialog by AEC employees, we find:

“Mr. Sparks asked if .01 is to protect people who are sensitive to beryllium, and Mr. Harris replied, no, just chronic disease.

Dr. Quigley added that sensitivity is considered to be an important factor.
 

Mr. Harris said that the 2 or less is to minimize chronic disease. It is liable to allow chronic disease, but it is as good a figure as we are able to design the plant for to prevent or minimize chronic disease.

Mr. Smith said that .01 is the only safe figure for the avoidance of chronic disease. This was arrived at from out-plant data.”

The numbers .01 and 2 regard, respectively, .01 µg/m³ and 2 µg/m³, which are the out-plant and in-plant exposure limits for personnel. The .01 µg/m³ limit was derived scientifically from human experience in the neighborhood surrounding the Lorain Ohio beryllium plant in the late 1940's. The 2 µg/m³ limit was not derived from scientific methods and was, at best, a guess as to what level of exposure was possible, in regard to production of beryllium in processing plants. The “market failure” occurs because the DOE knew this information and did not inform contractors, or contractor personnel in GOCO Plants of these very obvious risks to their health. Instead the DOE insisted that the 2 µg/m³ limit was safe. Presently, in 10 CFR 850, the DOE continues to “retain the existing OSHA 8-hr TWA PEL” (Federal Register/ Vol. 64, No. 235, pg. 68873) of 2 µg/m³, even though they have known for approximately 50 years that this level is unsafe. Since the DOE did not inform its contractors, and/or misinformed them, it would seem hazardous to contractor employees for the DOE to delegate the responsibility of beryllium health and safety to its contractors. I feel that for the DOE to delegate this responsibility to its contractors is gross negligence, especially since the DOE has still not provided the contractors with the information they need to protect their employees. In 10 CFR 850, the DOE uses the term “responsible employer” 129 times to delegate this responsibility to the uninformed contractor. In 20 years will anyone ask the question, why are we still experiencing CBD from DOE GOCO operations? Someone probably will, but I have just answered this question. I don’t feel that another 20 (or 50) years should pass before this country demands that the DOE clean up its act,  takes responsibility, and fully informs its contractors and contractor employees of the hazards they are encountering.

The DOE fails to accept responsibility for the Health and Safety of contractor personnel even though the DOE states explicitly in DOE P 411.1 and DOE M 411.1-1 and DOE M 411.1-1 A that they are responsible and that these responsibilities cannot be delegated to the contractor. In DOE O 440.1A the DOE is required to provide a workplace which is “free of recognized hazards” and they are ignoring that mandate in 10 CFR 850.

As I stated in the previous comments, the DOE is responsible for contractor worker health and safety, and this is mandated in DOE Directives, specifically DOE P 411.1(Attachment 3) and DOE M 411.1-1. In a recent court case in the Sixth District of Federal Court, the DOE specifically denied responsibility in its brief and stated that all responsibility was delegated to the contractor. How can we, as contractor employees, expect a workplace free of recognized hazards (DOE 440.1A) when the DOE cannot accept the responsibilities it requires of itself? DOE M 411.1-1 clearly states the DOE responsibilities, but the DOE convinced the Sixth Circuit that all responsibility for contractor worker Health and Safety was delegated to the contractor. As stated in my previous comments, delegated to a contractor that was uninformed and/or misinformed of the true hazards. Health protection will never materialize, within the DOE Complex, until the DOE accepts its responsibility for contractor employee health and safety

Although the AEC promised OSHA in 1974 that they would promulgate and enforce health and safety standards equivalent or superior to the OSHA Standards, the AEC (and subsequently the DOE) has continually placed weapons production above Health and Safety of contractor personnel.

I refer you to a document (Attachment 4), which is a speech by Paul Ziemer, former Assistant Secretary for Environment, Safety and Health, of the DOE. In this speech, before the 1992 Annual Occupational Safety Conference, Mr Ziemer states:

“And DOE management, in the throes of an arms race, sent the clear message in the 1970's and early 1980's that production of nuclear materials took precedence over environment and safety.”

As, you know, we say here in Tennessee, “nuf said.”

When the DOE was “caught in the hen-house” on the beryllium issues they proposed a compensation package which is completely inadequate, self-serving, counterproductive of its stated intentions, and basically places all the burden of CBD upon those who are least able to deal with that burden, those affected by beryllium exposure, while allowing the DOE and its beryllium vendors a free ride.

I do realize that you have sponsored this legislation in the Senate and I appreciate what you are attempting to do, but as you can surely see from my previous comments, the DOE has not been, nor are they presently attempting to address the true hazard of working with beryllium. They are only addressing the symptoms (CBD) with this compensation bill, and it falls far short of just and equitable compensation. Aside from the fact that one or two hospital stays for someone suffering from CBD might possibly cost $100,000 (the amount the DOE is willing to pay in lieu of Worker’s Compensation) and we, in Tennessee, already have a Worker’s Compensation System that recognizes CBD, a major problem with the legislation is that employees with 20-30 years invested in our jobs have been diagnosed with a disease which will probably cause us to lose those jobs, at a time when we don’t qualify for retirement. Also our skills will be unmarketable elsewhere, for the simple reason that we have been diagnosed with a life threatening disease. Once again, I refer you to 10 CFR 850, Economic Analysis, Sect. 4.6.2 which states:

“Medical conditions such as beryllium sensitization and CBD may reduce a worker’s opportunity for employment in non-beryllium DOE work or in work outside the DOE complex. Employers may not be willing to hire workers with these conditions because of the increased insurance costs and the possibility that CBD may leave the workers unable to work.”

Thus, the DOE realizes that those of us diagnosed with beryllium related disease may be un-marketable for further employment opportunities, yet proposes a compensation bill which addresses this, only if we are currently disabled such that we can be compensated for our disability. Anyone who may be laid off (a very real possibility within the DOE complex) will, most probably, be unable to secure meaningful employment and the associated medical coverage for oneself and ones family, and at the same time be in a slowly degrading health situation. This is the time in our lives when we need meaningful employment, with health benefits so we can save for the expenses that our declining health will present us in the future. We need to work while we can. Most of us will probably not live to see retirement, and even if we do, those retirement days will not be as we had previously envisioned them. I, personally have 24 years of service at the Oak Ridge plants, yet I am still seven years away from being eligible for a retirement. If I am laid off within that seven years I would have to wait until I was 62 to collect my vested rights. With CBD I would be very lucky to see 60, much less 62.

Assume this happening and you can understand my concern. I would be forced into poverty simply because the DOE caused my CBD, which left me un-marketable for further meaningful employment. Assume that the compensation bill is so liberal that those of us affected would be able to receive payments even though we were not completely disabled. If we found employment to supplement these payments, I am sure we would lose compensation payments, miring us in a no-win situation. Remember, now is the time for us to be saving all we can for the future time of illness. The compensation bill would be counterproductive for those of us still able to work. Worse case scenario is losing our job, and the retirement, financial security and health care coverage associated with it at a time when the very real threat of CBD looms ever so near to our future. A more workable solution might be found by requiring the DOE to assure our employment until retirement, or until disability manifests itself. Another possibility would be for us to be vested for our retirement benefits (which we have worked all these years for) as if we were retiring at 65 years of age. Just recently it was announced that the retirement fund at Oak Ridge was so flush with funds that Lockheed Martin attempted to siphon off several million dollars until the Secretary of Energy put a halt to this idea. If this retirement option was feasible, those of us still able to work might find some sort of employment to supplement these retirement benefits until we were no longer able to work. Another need would be health insurance, which the DOE could pay for. I really don’t think I deserve to be relegated to the ranks of the homeless because of the negligence of the DOE.

Another counterproductive aspect of the compensation bill and the associated relieving of the DOE and its vendors of liability is that this naturally relieves them of the threat of legal action. This will evolve into a less safe workplace within the DOE complex for the simple reason that absent liability and the DOE can operate beryllium operations any way it wants to. The threat of legal action is the only reason that the DOE has made any effort at all to become safer in its operations. Lose that threat and it will be business as usual very soon, with contractor employees paying the price. Letting the vendors off the hook is also counter to health protection in the DOE complex, as well as in the private sector. Many of the beryllium vendors profited immensely while making their and the DOE contractor employees sick, yet the DOE wants to absolve them of their sins while affected personnel are left with nothing but failing health and poverty. This “exclusive remedy”provision must be stricken from the compensation bill so the vendors, as well as the DOE will have some incentive to provide employees with a safe product to work with. Keep this “exclusive remedy” provision and the number of CBD cases will expand exponentially in the future. The vendors knew as much or more than the DOE of the hazards of working with beryllium (Attachment 2).

I hope I have been able to convince you to at least be very stern with the DOE in these up-coming hearings and to believe only what they can prove without a doubt. The DOE has severely harmed countless personnel because they have not provided accurate information to the contractors and their employees, then they have relied upon uninformed contractors to perform hazardous work, they have denied their responsibility, they have placed production above health, and they fail to compensate those whom they have harmed. It is time for the carnage to end. You can accomplish an equitable solution to this problem. I wonder how Secretary Richardson and Dr. Michaels would feel about 10 CFR 850 and the compensation bill if their office were to be in Building 9201-5E at Y-12?

Respectably,

Gary Foster

Attachments:

1.Memo Farrell to Walker, Oct 1,1986

2.Medical Meeting at Luckey, Mar. 20, 21, 1951

3.DOE P 411.1, Jan. 28, 1997

4.Paul Ziemer speech, Dec. 1992