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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program 2 Legislation and Compensation The legislation on radiation exposure compensation, screening, education and outreach is complex and extensive. In this chapter, we describe the Radiation Exposure Compensation Act (RECA), including a brief history which led to its creation and recent revisions. We focus on the topic of compensation as provided by RECA. Chapter 9 includes a description of screening as required by the Radiation Exposure Screening and Education Program (RESEP). Chapter 11 examines RESEP’s legislative requirements with respect to education and outreach to RECA stakeholders. THE RADIATION EXPOSURE COMPENSATION ACT Events Leading to Legislation RECA (1990, 2000, 2002) is one of four existing radiation exposure compensation programs1 that emerged from a variety of legal, political, and social actions in mid-1970s (Walchuk, 2002). During that period, the organized efforts of citizens presumably affected by the government’s activities in uranium-mining areas and in areas downwind of the Nevada Test Site (NTS)—100 miles north- 1 These include, in order of enactment, the Veterans Dioxin and Radiation Exposure Compensation Act (1984), the Radiation-Exposed Veterans Compensation Act of 1988 (REVCA), RECA (origin 1990; amended 2000, 2002), and the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) of 2000. The Department of Veteran Affairs administers the first two; RECA, the one at issue in this report, is administered by the Department of Justice. EEOIPCA is administered by the Department of Labor.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program west of Las Vegas, Nevada—encouraged members of Congress to advance compensation legislation. The actions and testimony of labor unions, Native American uranium miners, interest groups, and downwinders constitute the background of the RECA legislation. Among these groups are the Oil Chemical and Atomic Workers International, the Office of Navajo Uranium Miners, the Eastern Navajo Agency Uranium Workers, the Northern Arizona Navajo Downwinders, and the Utah Navajo Downwinders. Some organizations, such as Dine Citizens Against Ruining Our Environment (Dine Care) as late as 1998 claimed that “we have been involved in bringing relief to victims of radiation exposure on the Navajo Nation, and in the fight to prevent future mining. Our biggest victory so far has been the reform of the Radiation Exposure Compensation Act” (http://dinecare.indigenousnative.org/about_us.html, accessed December 23, 2004). Those organizations “approached radiation exposure as a social justice issue, righting government wrongs to the constituent group” (Walchuk, 2002). They have hired Washington, DC, lobbyists to support their efforts in Congress. Active citizen organizations continue to inform their constituents about RECA and its amendments. Many of the groups, such as the Western States RECA Reform Coalition and the Mohave Downwinders, continue to seek further legislative remedies. While miners and downwinders were organizing around compensation legislation in the late 1970s, lawsuits on behalf of workers were filed against mining companies and the federal government. They met with little success because, in the case of mining companies, worker’s compensation precluded suits against employers for on-the-job injury or illness. Most of the worker’s compensation claims were denied or never filed. With few exceptions, mining companies have not been held liable (Brugge and Goble, 2002). A suit was brought against the Atomic Energy Commission (AEC) by John Begay to seek redress for alleged harm from uranium mining activities in Begay v. United States. Begay’s petitioners argued that the government’s special trust responsibilities toward Native Americans should not allow the normal exceptions to apply to negligence toward Navajo uranium miners. Nevertheless, the US District Court in Arizona ruled that there was no subject-matter jurisdiction to proceed because the federal government was shielded from prosecution and any later tort liability by the discretionary-function exception to the Federal Tort Claims Act (FTCA, 28 U.S.C. § 2674 ; 28 USC § 2680). The court also ruled that national-security interests overrode any claim to restitution. “The court concludes that all the actions of various governmental agencies complained of by plaintiffs were the result of conscious policy decisions made at high government levels based on considerations of political and national security feasibility factors. All such decisions, including the PHS epidemiological study, were carried out as directed. Therefore this court lacks … subject matter jurisdiction to proceed in these cases. Because the discretionary function exception is disposi-
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program tive, there is no need to discuss the other legal theories of plaintiffs or defendant” (John N. Begay v. United States, 591 F. Supp. 991, 1984). In its decision, the court mentions compensatory legislation in concluding (John N. Begay v. United States, 591 F. Supp. 991, 1984) on the basis of information presented to the court that “this tragedy of the nuclear age, however, cries for redress. Such relief should be addressed by the Congress as it was in the case of the Texas City explosion following the decision of the Supreme Court in Dalehite, supra; 69 Stat. 707.” The case that opened the door for a legislative remedy for downwinders was Allen v. United States. The US district court for the District of Utah, 588 F. Supp 247 (D. Utah 1984), entered judgment against the government on nine of the claims, and the United States appealed. However, downwinder claims against the government for damages under the federal tort act were definitively denied by the US Court of Appeals for the 10th District. On January 11, 1988, the US Supreme Court refused to hear the writ of certiorari filed by Irene Allen and others to overturn the federal appeals court decision. Earlier, on April 20, 1987, the US Court of Appeals for the 10th Circuit argued that “while we have great sympathy for the individual cancer victims who have borne alone the costs of the AEC’s choices, their plight is a matter for Congress. Only Congress has the constitutional power to decide whether all costs of government activity will be borne by all the beneficiaries or will continue to be unfairly apportioned, as in this case. Until Congress amends the discretionary function exception to the Federal Tort Claim Act (FTCA) or passes a specific relief bill for individual victims, we have no choice but to leave them uncompensated” (Allen v. United States, 816 F. 2d 1417 [10th Cir. 1987] cert. denied, No. 87-316 [Jan. 11, 1988], p. 9). By that time, attempts were already under way to seek redress through Congress rather than through tort law and the court system. Legislative History of the Radiation Exposure Compensation Act The legislative history of RECA spans several decades. It dates back at least to April 19, 1979, in joint hearings on “Health Effects of Low-Level Radiation” before the Subcommittee on Oversight and Investigations of the House Interstate and Foreign Commerce Committee, the Subcommittee on Health and Scientific Research of the Senate Labor and Human Resources Committee, and the Senate Judiciary Committee. The joint hearings, held in Salt Lake City, Utah, included Governor Scott Matteson’s criticism of federal agencies, particularly AEC, for suppressing information and failing to investigate health dangers posed by nuclear-test fallout; the hearings also involved a description of nuclear fallout deposited materials and health effects in Utah and advocacy of independent research on the fallout problem. The general counsel for what was then called the Department of Health, Education and Welfare and later the Department of Health
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program and Human Services (DHHS), the chairman of the Interagency Task Force on Health Effects of Ionizing Radiation, and the director of the National Institutes of Health explained the Carter administration’s efforts to address Utah residents’ concerns over radiation health effects, focusing on task-force establishment and expansion of research programs. Sheep ranchers and an agricultural agent from Iron City, Utah, described the death and disease incidence among sheep exposed to radiation during nuclear tests, criticized the government’s failure to warn the public of nuclear dangers, and described the AEC’s explanation of sheep losses. Testimony was heard from residents of St. George, Utah, who were potentially exposed to radiation and were allegedly experiencing radiation-related health problems. Again in 1979, congressional hearings were held in Grants, New Mexico, against the backdrop of attempts to create legislation modeled on black-lung benefits, that is, a small monthly stipend. On June 10, 1980, a joint hearing before the Subcommittee on Health and Scientific Research and the Senate Judiciary Committee was held to consider S. 1865, the Radiation Exposure Compensation Act of 1979, to provide federal compensation to cancer victims and their survivors for damages attributable to radiation from nuclear tests in Nevada and to provide compensation to uranium miners. Senator Pete V. Domenici (R-NMex) testified on the difficulties of uranium miners and survivors in obtaining just compensation for their losses. Survivors of cancer victims gave personal accounts of cancer cases and deaths that allegedly resulted from uranium mining and nuclear-test fallout, and they described their problems with delayed or denied compensation benefits under worker compensation and other programs. Department of Justice (DOJ) representatives and former Secretary of the Interior Stewart Udall testified to the need to compensate those harmed by exposure to radiation (United States Congress, 1980). For more than a decade, during the period 1978-1990, hearings focused on the federal government’s discretionary-function immunity. Government representatives cited the merits of Federal Tort Claims Act limitations on government liability for personal injury or death claims. During that period, the National Research Council Committees on the Biological Effects of Ionizing Radiations (BEIR) published reports on the risks related to exposure to radiation (NRC, 1980; 1988; 1990). The reports identified cancers that are found at higher rates among uranium workers and downwinders. BEIR IV and BEIR V also helped established standards of proof to be used in legislation in determining eligibility for compensation (NRC, 1988, 1990). As late as 1989, Stuart Gerson, assistant attorney general in the Civil Division of DOJ, in testimony before the Subcommittee on Administrative Law and Governmental Relations, denied any causal relationship between radiation exposure from US nuclear testing and cancer disorders (United States Congress, 1989). During the same period, most of the hearings occurred in response to various versions of a radiation exposure compensation act introduced in the Senate or House of Representatives in the following congressional sessions:
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program 1979-1981:96 S. 1827, 96 S. 1865. 1981-1983:97 S. 1483. 1985-1987:99 H.R. 1338. 1985-1987:99 S. 2454. 1987-1989:100 H.R. 1341 100 H.R. 3872, 100 H.R. 5022, 1987-1989:100 S. 612. 1989-1991:101 S. 982, 101 S. 2466, 1988-1991: H.R. 2372. Representative Wayne Owens (D-Utah) with 172 cosponsors in the House of Representatives and Sen. Orrin Hatch (R-Utah) with 133 cosponsors in the Senate were among those supporting or sponsoring such an act. On House acceptance of several amendments made by the Senate, H.R. 2372, the bill introduced by Representative Owens, became Public Law 101-426, the Radiation Exposure Compensation Act on October 15, 1990. The Original Radiation Exposure Compensation Act of 1990 RECA provided for compassionate payments to people in specific classes who had contracted the following diseases: lung cancer (with eligibility modified by smoking behaviors); leukemia (other than chronic lymphocytic leukemia), provided that initial exposure occurred after the age of 20 years and the onset of disease was between 2 - 30 years of first exposure; and, provided that onset was at least 5 years after first exposure, multiple myeloma, lymphomas (other than Hodgkin’s disease), primary cancer of: the thyroid (provided that initial exposure occurred by the age of 20 years), the female breast (provided that initial exposure occurred before the age of 30 years), the esophagus (provided that the person had low alcohol consumption and was not a heavy smoker), the stomach (provided that initial exposure occurred before the age of 20 years), the pharynx (provided that the person was not a heavy smoker), 2 Hansen R-UT, Schroeder D-CO, Skaggs D-CO, Richardson D-NM, Bilbray D-NV, Vucanovich R-NV, Kaptur D-OH, Walsh R-NY, Robinson R-AR, Fazio D-CA, Foglietta D-PA, Frost D-TX, Fauntroy D-DC, Condit D-CA, Hatcher D-GA, Gilman R-NY,Slaughter D-NY, and Fuster D-PR. 3 Hatfield R-OR, Kennedy D-MA, Garn R-UT, DeConcini D-AZ, Reid D-NV, Bryan D-NV, Bingaman D-NM, Domenici R-NM, Pell D-RI, Wirth D-CO, McCain R-AZ, Inouye R-HI, and Gore D-TN.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program the small intestine, the pancreas (provided that the person was not a heavy smoker and had low coffee consumption), the bile ducts, the gall bladder, and the liver (except if cirrhosis or hepatitis B was indicated) (PL 101-426). nonmalignant respiratory disease, including fibrosis of the lung, pulmonary fibrosis, cor pulmonale related to fibrosis of the lung, and “if the claimant, whether Indian or non-Indian, worked in a uranium mine located on or within an Indian reservation, the term shall also include moderate or severe silicosis or pneumoconiosis” (PL 101-426). Those diseases were already covered by the Radiation-Exposed Veterans Compensation Act of 1988 (REVCA). They were identified originally on the basis of the findings in the BEIR 1980 report (BEIR III, NRC, 1980) and later modified based on the findings of BEIR IV (NRC, 1988) and BEIRV (NRC, 1990). The eligible classes designated by RECA included occupations in the mining of uranium ore, specific groups onsite during an aboveground nuclear detonation, and downwinders residing in specific counties of specific states (See Map 2.2). RECA required persons in those classes to provide proof that they met eligibility requirements regarding exposure to radiation. Among the requirements were exposure levels among uranium workers, presence during specific periods when aboveground detonations took place, and residence in downwind counties. After the enactment of the original version of RECA, DOJ published regulations governing its implementation in the Federal Register on April 10, 1992 and again on March 22, 1999, “establishing procedures to resolve claims in a reliable, objective, and non-adversarial manner, with little administrative cost to the United States or the person filing the claim.” (DOJ Web site http://www.usdoj.gov/civil/torts/const/reca/about.htm, accessed December 23, 2004). Those regulations were the subject of considerable debate among various constituencies. Period Between the Original and Amended Versions of the Radiation Exposure Compensation Act From October 15, 1990, to July 10, 2000, complaints were registered with congressional offices regarding the scope and implementation of RECA. The complaints were in three categories: the limited number of diseases and their narrow definitions, narrow or overtechnical DOJ regulations, and exclusion of other mining-industry workers (House Report 106-697). Many highly organized citizens’ groups worked behind the scene with lobbyists to change the 1990 RECA. Among the changes sought were expanding coverage of uranium workers to include ore transporters and additional mining and milling occupations;
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program lowering the standard of proof of exposure of uranium miners from 200 working level months (WLMs) to 40 working level months (WLMs); removing the distinction between smokers and nonsmokers; offering some (albeit lower) compensation payments to injured, deceased, or research-subject uranium workers whose employment-related diseases were not compensable; doubling compensation for eligible uranium workers; expanding the diseases for downwinders; and expanding the geographic areas covered (Brugge and Goble, 2003). The House Judiciary Committee, which examined the amendments to RECA on June 27, 2000, was convinced by Chapter 18 of the President’s Advisory Committee on Human Radiation Experiments report (ACHRE, 1995).4 The importance of ACHRE’s report is that it led the House Judiciary Committee to accept the advisory committee’s recommendation to lower the stringent requirements for compensation of exposed miners, eliminating the distinction between smokers and nonsmokers and using length of employment instead of exposure levels to verify eligibility. Length of employment gained support because of the lack of exposure measurements and the uncertainty associated with extrapolations needed to calculate reconstructed exposure times. The expert testimony of Arthur C. Upton, formerly director of the National Cancer Institute (chairman, Department of Environmental Medicine, New York University Medical Center, and chair of the BEIR V Committee), Jonathan M. Samet (then professor and chairman of the Department of Epidemiology, Johns Hopkins University and chair of the BEIR VI Committee), and Duncan C. Thomas (then professor in the Department of Preventive Medicine, University of Southern California, Los Angeles and member of the BEIR V Committee) was another factor that influenced the proposed amendment to expand the list of diseases and eliminate or change exposure levels, age limits, length of latency periods, and alcohol, caffeine, and smoking restrictions among downwinders. DOJ responded to many of the proposed amendments (Robert Raben, assistant attorney general, DOJ letter to Congressman Henry J. Hyde, R-Ill, January 24, 2000). Although DOJ supported some amendments—including the addition of some diseases, expansion of proof of disease or employment, and the ability to use American Indian law, tradition, and custom in processing claims—the department also expressed concern on three areas. First, DOJ argued that expanding compensation to millers and ore transporters was premature and should await the results of the National Institute for Occupational Safety and Health (NIOSH) study commissioned by Congress in 1993. The 4 The final report of the Advisory Committee on Human Radiation Experiments (stock number 061-000-00-848-9), the supplemental volumes to the final report (stock numbers 061-000-00850-1, 061-000-00851-9, and 061-000-00852-7), and copies of the Executive Summary (stock number 061-000-00849-7) may be purchased from the Superintendent of Documents, US Government Printing Office. Available at http://www.eh.doe.gov/ohre/roadmap/achre/index.html, accessed December 28, 2004.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program House Judiciary Committee claimed in response that the passage of amended legislation should not be delayed and that “furthermore, given the extremely small group of millers being studied, it is projected that the data will have limited statistical significance and will therefore be merely anecdotal in nature” (House Rpt.106-697–Radiation Exposure Compensation Act Amendments of 1999). Second, DOJ disagreed with the expansion of downwinder regions not defined by the National Cancer Institute (NCI). It stated that “Section 3(b) of S. 1515 would also add several new ‘Downwinder’ and ‘Onsite Participant’ diseases. Similarly, S. 1515 would increase the Downwinder ‘affected area’ to include Wayne and San Juan counties in Utah and the counties of Coconino, Yavapai, Navajo, Apache, and Gila in Arizona. The National Cancer Institute (NCI), the experts in the field, advises us that, at this time, NCI cannot offer any scientific support for the expansion of the RECA program to include these additional diseases, nor are there radiodosimetric studies or other scientific findings to support the inclusion of the proposed areas” (Robert Raben, assistant attorney general, DOJ letter to Congressman Henry J. Hyde, R-Ill., January 24, 2000). The House Judiciary Committee dismissed that objection, stating that NCI had no current studies monitoring downwinder cancer epidemiology. It asserted that “to ignore the written and personal testimonies of the hundreds of victims themselves or survivors concerning their illnesses is unwarranted. The strong evidence they have supplied is sufficient to provide relief” (House Rpt.106-697–Radiation Exposure Compensation Act Amendments of 1999). Third, DOJ argued that lowering the radiation exposure of uranium millers from 200 WLM to 40 WLM was not based on a sound, scientific approach. DOJ suggested instead, according to the House report, “implementation of a [sic] multi-scale criteria using either the exposure-based or duration of employment models. These models involve computing the WLMs, age, time since exposure, smoking habits, and other factors for each individual prior to evaluating the disease status of the claimant” (House Rpt.106-697–Radiation Exposure Compensation Act Amendments of 1999). The House Judiciary Committee rejected that suggestion, claiming that for most of the claimants, such data would be incomplete. Such burdens would be contrary to the intent of the original RECA. The Radiation Exposure Compensation Act Amendments of 2000 S. 1515 became Public Law 106-246 known as the Radiation Exposure Compensation Act Amendments of 2000, on July 10, 2000. Stated reasons for the amendments to the earlier RECA include: “Regulatory burdens have made it too difficult for some deserving individuals to be fairly and efficiently compensated.” “Reports of the Atomic Energy Commission and the National Institute for Occupational Safety and Health testify to the need to extend eligibility to States
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program in which the Federal Government sponsored uranium mining and milling from 1941 through 1971.” “Scientific data resulting from the enactment of the Radiation-Exposed Veterans Compensation Act of 1988 (38 USC 101 note), and obtained from the Committee on the Biological Effects of Ionizing Radiations, and the President’s Advisory Committee on Human Radiation Experiments provide medical validation for the extension of compensable radiogenic pathologies.” “Above-ground uranium miners, millers and individuals who transported ore should be fairly compensated, in a manner similar to that provided for underground uranium miners, in cases in which those individuals suffered disease or resultant death, associated with radiation exposure, due to the failure of the Federal Government to warn and otherwise help protect citizens from the health hazards addressed by the Radiation Exposure Compensation Act of 1990 (42 USC 2210 note).” “It should be the responsibility of the Federal Government in partnership with State and local governments and appropriate healthcare organizations, to initiate and support programs designed for the early detection, prevention and education on radiogenic diseases in approved States to aid the thousands of individuals adversely affected by the mining of uranium and the testing of nuclear weapons for the Nation’s weapons arsenal” (PL 106-246 [S. 1515] Jul 10, 2000 Radiation Exposure Compensation Act Amendments of 2000 106 PL 246; 114 Stat. 501). On August 7, 2002, DOJ issued regulations to implement the RECA amendments (Department of Justice, Part IV 28 CFR Part 79 “Claims Under the Radiation Exposure Compensation Amendments of 2000; Final Rule and Proposed Rule” 79.3). The Health Resources and Services Administration, an agency of DHHS, followed suit on April 30, 2002, with its announcement of a grant program to fund projects designed to carry out Congress’s intent to partner with state and local governments in providing screening, referrals for service, and education (PL 107-206). Continuing Legislative Reforms of the Radiation Exposure Compensation Act Since the enactment of the RECA 2000 amendments, additional amendments have been introduced into the House and the Senate. These include H.R. 1131, the Paul Hicks Memorial Act. H.R. 1132, Ensuring Timely Payments Under the Radiation Exposure Compensation Act. S. 898 (no title), to make technical amendments to RECA (42 USC 2210 note), to provide compensation to some claimants under the act, and for other purposes.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program S. 1438, the Defense Reauthorization Act. H.R. 2215, the 21st Century Department of Justice Appropriations Authorization. The Defense Reauthorization Act was signed into law on December 13, 2001 (Public Law 107-107). It authorized appropriations for FY 2002 for military activities. Section 1063 of this broad bill also appropriates to the Radiation Exposure Compensation Trust Fund such sums as may be necessary, not to exceed specified maximums, in FY 2002-2011. H.R. 2215 was enacted on November 2, 2002, as PL 107-273, the 21st Century Department of Justice Appropriations Authorization Act. It provides technical amendments to RECA, including the reinsertion of a downwinder area in Mohave County, Arizona (which had been inadvertently removed from the 2000 amendments), and a change in eligibility requirements for uranium miners from 40 working levels months (WLMs) of radiation to either the 40 WLMs exposure standard or the 1-year duration-of-employment standard already applicable to uranium millers and ore transporters. It also removed a requirement (presumably a drafting error) that uranium workers with lung cancer submit evidence of a nonmalignant respiratory disease (a requirement that excluded most lung cancer claimants who did not also suffer from a nonmalignant respiratory disease). DOJ issued a final rule—28 CFR Part 79 Part II—on March 23, 2004. It constitutes a revision of its existing regulations governing RECA. It is based on both the RECA amendments of 2000 and the 21st Century Department of Justice Appropriations Authorization Act. In it, DOJ responds to many comments, including nearly 50 letters it received on its proposed rule, issued August 7, 2002 (DOJ, 2002), regarding implementation of the 2000 amendments. DOJ also incorporates some technical revisions stemming from the Defense Reauthorization Act. Some public comments suggested clarification, and others requested substantive changes. DOJ makes the important point that it does not have the authority to change a statute in its rule-making. Hence, DOJ could not act on many suggestions, for example, to include additional diseases, because it had (ostensibly) no discretion in this matter. In the final rule, DOJ examined a question that arose for this committee in its hearings in St. George, Utah: Could exploratory drillers and core drillers be included among uranium miners for compensation for diseases presumably resulting from exposure to radiation? In introducing such distinctions as in the mine and at the mine, in defining employment at an aboveground mine, and in examining extraction as a function of core drilling as well as mining, DOJ concluded that to include core drillers would be to effectively change legislation through regulation. DOJ states that “Extracting uranium ore from within a mine is one of the strict definitional limits that cannot be expanded by regulation.” At the same time, DOJ clarified that because the 2000 amendments expanded the
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program definition of uranium mine to include aboveground mines, miners who worked aboveground stockpiling ore and operating dump trucks would be eligible for compensation, assuming that they satisfy other eligibility criteria (DOJ, 2004, p. 13629). In its hearing in Window Rock, Arizona, this committee heard persons testifying about their failed attempts at using affidavits in establishing proofs of eligibility. DOJ also clarified that matter in 79.4 of the final rule. Miners can substantiate uranium-mining employment history under some circumstances by affidavit, but millers or ore transporters are not permitted to use affidavits for these purposes (DOJ, 2004, pp. 13630-1). Nor is an affidavit allowed as proof of presence for downwinder claimants (DOJ responses to the committee’s questions, March 16, 2004). The final rule went into effect on April 22, 2004. In sum, the rule (DOJ, 2004, p. 13628): “Describes the documentation required to establish proof of employment in a uranium mine or mill or as an ore transporter.” “Describes the medical documentation necessary to establish the existence of renal cancer and chronic renal disease.” “Revises the provision concerning attorney representation of claimant before the Department of Justice with respect to claims brought under the Act.” “Incorporates the following revisions to the regulations: inserts a portion of Mohave County, Arizona, previously covered under RECA and erroneously stricken from the 2000 Amendments, as a radiation-effected (sic) area for downwinder claimants; clarifies the requirement that lung cancer be primary for all claimant categories;5 adds a duration of employment standard as an alternative to a minimum radiation exposure standard for uranium miners; amends the documentation required to establish lung cancer for uranium miner, miller, and ore transporter claimants; and makes other minor revisions consistent with the Appropriations Authorization Act.” COMPENSATION IN THE RADIATION EXPOSURE COMPENSATION ACT Under RECA, a person is to be compensated if he or she meets two criteria: the person is in a specific class defined by RECA, and the person has developed one of the specific cancers or other diseases specified by RECA. As noted above, the criteria for both the classes of persons and the specific compensable diseases have been modified since the original enactment of RECA in 1990. 5 All cancers covered by RECA are primary cancers.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program ach, pharynx, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary bladder, brain, colon, ovary, or liver (except if cirrhosis or hepatitis B is indicated). (See Table 2.1). Classes of Diseases Covered As noted above, the compensable-claim categories of RECA are further defined by whether members of the five populations contracted specific diseases related to their exposures, which are defined by the pathologic conditions that are recognized by NCI. The age of a claimant at the time of initial exposure is relevant in some diseases. The number of years after which onset of disease occurred is also relevant.6 All the specific diseases for each claimant category covered by RECA are represented in Table 2.1. Nature and Amount of Compensation The compensation provided by Congress that is nontaxable is described as partial. “Partial” is undefined in the legislation. Congress may have intended to state that the compensation offered constitutes to only partial restitution. Restitution or rectification is part of the ethical framework that undergirds RECA and, although judged only partial, may function as part of a large package of full restitution. We discuss that in Chapter 8. The partial compensation is provided in the form of “compassionate payments” or monetary awards. RECA does not cover direct delivery of medical services or payment for medical services, medical insurance premiums, or insurance deductibles. However, certain people who are eligible for compensation under RECA may also be eligible for medical care under other auspices, including other compensation legislation that we discuss below. Table 2.2 lists the compensatory amounts that an eligible person receives under RECA. A person may receive compensation under only one subpart of the regulations for the illness that he or she contracted. A person who contracted more than one of the eligible diseases or contracted a separate disease under different circumstances (for example, was a miner and also worked in a uranium mill) may be compensated only once. If a person eligible for compensation under a compensable claim category is deceased, his or her surviving beneficiaries may apply to receive compensation on his or her behalf. Those beneficiaries include, in the following order (if a prior beneficiary is deceased), the spouse, a child, a parent, a grandchild, and a grandparent. The benefit is shared equally among the members of each class of benefi- 6 See 28 CFR Part 79 for the details regarding age of claimant and years to onset for each disease.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program TABLE 2.2 Partial Compensation under RECA by Population Population Partial Compensation Uranium miners $100,000 Uranium miller $100,000 Uranium ore transporter $100,000 Onsite participant $75,000 Downwinder $50,000 ciaries. If the spouse is deceased, compensation is shared among the surviving children; if all the children are deceased, compensation is split between the parents; if both parents are deceased, the grandchildren divide the compensation among themselves; finally, if grandparents outlive all the other beneficiaries, they share the compensation among themselves. If any beneficiary refuses the relevant portion, it is returned to the trust fund rather than being distributed among the remaining beneficiaries in the class (28 CFR Part 79.71). If a person is both a claimant because he or she contracted one of the diseases in a compensable claim category and a claimant as an eligible survivor, the person may receive more than one payment—one payment for his or her own illness and one payment for each instance of qualifying as an eligible surviving beneficiary (28 CFR Part 79.75). Claims to Date The absolute sizes of the five compensable populations are difficult to know. NIOSH and DOJ estimate that 20,000 underground uranium miners may have worked during the period covered by RECA. The current committee is unaware of any published estimates of the sizes of the other four populations or the number of aboveground uranium miners. The relative sizes of the populations likely to file for compensation can be gauged by using the claims processed. Table 2.3 shows the numbers of claims filed to November 21, 2004 for the four occupational categories of eligible persons and the downwinder exposure category; the numbers of claims approved, denied, and pending for each category; and the amounts of approved compensation. The table shows that uranium miners and especially onsite participants have higher rates of denial than the entire group of claimants and lower rates of approval; ore transporters have a notably high percentage of pending claims. Downwinders have a substantially higher rate of approved claims and lower rate of denied claims than the entire group. The 2000 amendments require a report to Congress from the Government Accountability Office (GAO), formerly the General Accounting Office, every 18 months that contains a detailed accounting of DOJ’s administration of RECA. The
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program TABLE 2.3 Total Numbers and Percentages of RECA Claims Approved, Denied, and Pending as of November 21, 2004a Population Total Claimsb Claims Approved (% of total) Claims Denied (% of total) Claims Pending (% of total) Total Amount of Approved Compensationa Uranium miner ($100,000) 5,824 (28%) 3,130 (54%) 2,089 (36%) 605 (10%) $312,391,500 (37%) Uranium miller ($100,000) 670 (3%) 409 (61%) 124 (19%) 137 (20%) $40,900,000 (5%) Ore transporter ($100,000) 155 (1%) 96 (62%) 33 (21%) 26 (17%) $9,600,000 (1%) Onsite participant ($75,000) 2,130 (10%) 758 (36%) 1,095 (51%) 277 (13%) $54,437,350 (7%) Downwinder ($50,000) 12,047 (58%) 8,361 (69%) 2,546) (21%) 1,140) (9%) $418,020,000 (50%) Total 20,826 12,754 (61%) 5,887 (28%) 2,185 (10%) $835,348,850 aSource: http://www.usdoj.gov/civil/omp/omi/Tre_SysClaimsToDateSum.pdf, accessed November 21, 2004. bPercentages in first and last columns refer to column totals; percentages in middle columns refer to claims by claim type. report must contain an analysis of claims, awards, and administrative costs and a budget for DOJ RECA activities or the Radiation Exposure Compensation Program (RECP). GAO submitted its first report on September 17, 2001 (GAO, 2001). GAO then conducted a review of DOJ’s administration of RECA from August 2002 through February 2003 and produced a report in April 2003 (GAO, 2003). In the April 2003 report, GAO noted that pending claims, processing time, and payments of awards had all increased dramatically, in some cases by 300%. Both the Congressional Budget Office (CBO) and DOJ estimated that the trust fund used to cover these costs was underfunded. GAO recommended that the attorney general develop a strategy to address the underfunding for current and projected claims over the period 2003-2011 (GAO, 2003). In 2004, Congress passed the Consolidated Appropriations Act, 2005, which provided an additional $27.8 million to the Radiation Exposure Compensation Trust Fund in FY 2005, and beginning in FY 2006, makes funding for the Trust Fund a mandatory and indefinite appropriation (PL 108-447).7 7 This sentence was added and a quote from the 2003 GAO report was deleted from the report after the prepublication draft was released, to acknowledge the provisions of the Consolidated Appropropriations Act, 2005.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program OTHER COMPENSATION PROGRAMS At least four pieces of federal legislation concerning radiation exposure and the development of nuclear weapons have been enacted in the last two decades that provide some form of compensation. It is helpful to present information about those programs together. Those programs may apply to people who fall into the RECA’s compensable-claim categories. Hence, additional compensation in the form of payments or medical services is available to some of the same classes of people through other programs. And in some instances RECA compensation is offset by other claims, awards, and payments, including compensation program payments.8 Offset payments do not include claims for worker’s compensation. Two compensation programs apply to military veterans. They sprang from the Veterans Dioxin and Radiation Exposure Compensation Act of 1984 (PL 98-542) and Radiation Exposure Veterans Compensation Act (REVCA) of 1988 (PL 100-321). They are administered by the Department of Veterans Affairs and the Defense Threat Reduction Agency of the Department of Defense. The populations that these programs cover include the onsite participants described by RECA. The magnitude of the awards is described as based on a “complex award formula, not amenable to simple monetary quantification” (Walchuk, 2002; NRC, 2003b). Payments to a military veteran may include disability payments or compensation benefits and any dependency and indemnity compensation payments to survivors. Those awards, settlements, or payments9 will be subtracted, according to their actuarial present value, from payment under RECA. Additionally, “under certain conditions, veterans who are retroactively awarded service connection may qualify for reimbursement of certain medical expenses (a family member could file on behalf of the deceased veteran) back to the date of the original claim filing. These cases would be referred to as “not previously authorized” claims and must meet generally three conditions: 1) treatment was for a service connected condition or for a condition held to be aggravating an adjudicated service connected disability; 2) a medical emergency; and 3) VA or other 8 These claims must be based on adverse health effects incurred by the claimant on account of the radiation exposures defined above. A claim “includes but is not limited to any request or demand for money made or sought in a civil action or made or sought in anticipation of the filing of a civil action, but shall not include requests or demands made pursuant to life insurance or health insurance contract.” (28 CFR Part 79.75). Any such award or settlement payment is subtracted from the payment under RECA. 9 Those payments do not include active-duty pay; retirement pay; retainer pay; survivor-benefits plan payments, such as death gratuities, or mortgage, life, or health insurance payments, burial benefits or reimbursement for burial expenses, loans or loan guarantees, education benefits and payments, vocational rehabilitation benefits and payments, medical, hospital and dental benefits, or commissary and post exchange privileges.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program federal facilities not feasibility available” (correspondence with Department of Veterans Affairs, March 31, 2005). A third compensation program, based on the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) applies to Department of Energy workers and contractor employees. The Department of Labor (DOL) administers the program. DOJ provides information about the program to those classes of people who are also covered by RECA who might be eligible. If a person or his or her survivor had been approved under RECA and was awarded $100,000 in compensation, the recipient must separately file an EEOICPA claim form with DOL. RECA-eligible people do not have to meet the dose requirements (having already met the WLM or 1 year employment criteria), based on the probability of causation and an assigned share, as do other energy employees filing directly with EEOICPA. However, under EEOICPA (but not RECA) a uranium miner, miller, or ore transporter may be eligible for medical benefits related to the condition for which he or she had been approved under RECA. Those benefits begin on the date of filing with DOL and, unlike REVCA, “medical payments are made only to a living energy employee if the claim is approved; no reimbursement is made for prior expenses, and no medical payments are made to survivors if the energy employee is deceased” (correspondence with Department of Labor, April 6, 2005). Downwinders and onsite participants who have been awarded compensation through RECA are not eligible for compensation under EEOICPA. Table 2.4 illustrates the relationship between RECA compensation payments and those provided by other compensation programs that are also available to some classes of people covered by RECA When presented together as in the table below, one can easily see the similarities and differences between four radiation exposure compensation programs as well as the relations among the programs. For example, in the area of medical benefits, a uranium worker may elect to claim medical benefits under EEOICPA. Some uranium workers and the class of downwinders do not receive medical benefits under any of the exposure compensation plans. They may receive them directly from the Indian Health Service or through other medical-services delivery mechanisms that may be covered by private medical insurance (for which they would have to pay premiums, copays, deductibles or coinsurance). Clearly, some people who are eligible for RECA’s compassionate payments are likely to lack coverage or be underinsured for RECA disease-related medical care.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program TABLE 2.4 Comparison of United States Radiation Exposure Compensation Programs Properties Radiation Exposure Compensation Act (RECA 1990) Veterans Dioxin and Radiation Exposure Veterans Compensation Act (1984) and Radiation Exposure Compensation Act (REVCA 1988) Energy Employees Occupational Illness Compensation Program (EEOICPA 2000) Legislation/Dates Public Law 101-426, October 1990; PL 101-510, PL 106-246, July 2000; PL107-107, December, 2001; PL 107-273, November, 2002 Public Law 98-542, January 1984; PL 100-321, May 1988; and PL 102-578, January 1992 PL106-398, October 30, 2000; PL 108-375, October 28, 2004 Administration Department of Justice Department of Veterans Affairs Department of Labor, Energy and Health and Human Services Specified Diseases Depending on populations, diseases of leukemia (other than chronic lymphocytic leukemia), cancer of the brain, bile duct, breast, colon, esophagus, gall bladder, liver, lung, multiple myeloma, non-Hodgkin’s lymphomas, ovary, pancreas, pharynx, renal cancer, salivary gland, small intestine, stomach, thyroid, urinary bladder, and chronic renal disease, cor pulmonale, pneumoconiosis, pulmonary fibrosis, fibrosis of the lung, silicosis Presumptive Diseases: leukemia (other than chronic lymphocytic leukemia), cancer of the bile ducts, bone, brain, breast, bronchioloalveolar, colon, esophagus, gall bladder, small intestine, liver, lung, lymphomas (except Hodgkin’s disease), multiple myeloma, ovary, pancreas, pharynx, thyroid, salivary glands, stomach, cancer of the urinary track (kidneys, renal pelvis, ureter, urinary bladder and urethra. VA regulations cover a few additional conditions for medical-care access Non-Presumptive Disease: “VA regulations define all cancers as possibly caused by radiation.a Other non-malignant conditions might be caused by radiation. These conditions include, posterior subcapsular cataracts; non-malignant thyroid nodular disease; parathyroid adenoma; and tumors of the brain and central nervous system.”b A specified disease, as that term is defined in section 4(b)(2) of the Radiation Exposure Compensation Act, including diseases of leukemia (other than chronic lymphocytic leukemia), cancer of the brain, bile duct, breast, colon, esophagus, gall bladder, liver, lung, multiple myeloma, non-Hodgkin’s lymphomas, ovary, pancreas, pharynx, renal cancer, salivary gland, small intestine, stomach, thyroid, urinary bladder, and chronic renal disease, cor pulmonale, pneumoconiosis, pulmonary fibrosis, fibrosis of the lung, silicosis; also chronic beryllium disease
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program Properties Radiation Exposure Compensation Act (RECA 1990) Veterans Dioxin and Radiation Exposure Veterans Compensation Act (1984) and Radiation Exposure Compensation Act (REVCA 1988) Energy Employees Occupational Illness Compensation Program (EEOICPA 2000) Exposure Eligibility Criteria Section 4: Based on residency in a designated county if downwinder; based on employment during specified nuclear detonation periods if onsite participant Section 5: Working Level Month or length of employment For presumptive diseases, based on exposure in certain situations (see below); For non-presumptive diseases, the upper 99 percent interval of the probability of causation at 0.5 plus other considerations; an assessment as to the size and nature of the radiation dose or doses to be considered in determining exposure to ionizing radiation include: the probable dose, taking into account any known limitations in the dosimetry devices used, the relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology, the veteran’s gender and pertinent family history, age at time of exposure; the time-lapse between exposure and onset of the disease; and the extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease Based on the radiation dose received by the employee(s) at facility and the upper 99 percent interval of the probability of causation at 0.5 in the radioepidemiological tables published under section 7(b) of the Orphan Drug Act (42 U.S.C. 241 note), as such tables may be updated under section 7(b)(3) of such Act from time to time; If, and only if, the cancer specified was at least as likely as not related to employment take into consideration health-related factors (for example, smoking) Eligible Populations Uranium miners Uranium millers Uranium ore transporter Onsite participant Downwinder For presumptive Diseases: Veterans who participated in atmospheric nuclear tests by the U.S., as well as certain underground tests at Amchitka Island, Alaska, prior to January 1, 1974, who served with the U.S. occupation forces in Hiroshima or Nagasaki, Japan, between August 1945 and July 1946, who were prisoners of war in Japan, or some who served at the gaseous diffusion plants in Paducah, KY, Portsmouth, OH, and area K25 at Oak Ridge, TN. Non-Presumptive Diseases: Radiation-exposed veterans with exposure situations or conditions other than mentioned above may be eligible for compensation. Employees of the Department of Energy or Department of Energy contractors or subcontractors; RECA eligible populations under Section 5, including uranium miners, millers and ore-transporters and certain individuals under Section 4, including onsite participants and downwinders Special Exposure Cohort
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program Also, some veterans who received nasopharyngeal (NP) radium therapy have enhanced eligibility for medical care for cancers of head and neck but not for presumptive compensation Amount of Compensation $50,000-$100,000 depending on population The amount of money provided in the monthly payments depends on the degree of disability (and loss of the ability to work). The degrees range from 0 to 100 percent. They are expressed in 10 percent rating increments. A veteran with an 80 percent rating would receive considerably more than one with a 50 percent rating and much less than a veteran with a 100 percent rating. Compensation rates change frequently, and are set by Congress. The monthly rate in 2004 for a 50 percent disability rating was $646; for 80 percent, $1,195, and for 100 percent, $2,239.”c For deaths in 1993 and after, survivors are paid a flat rate; additional amounts are based on other factorsf $150,000 lump sum payment Federal payments instead of worker’s compensation (see Part E of EEOICPA) $50,000 added to RECA eligible populations under Section 5 and certain individuals under Section 4 of RECA Multiple Programs May also receive under EEOICPA Veterans who were onsite participants may also receive compensation under RECA May not receive full compensation under both RECA and EEOICPAe Diagnostics Costs Not covered Covered Not covered
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program Properties Radiation Exposure Compensation Act (RECA 1990) Veterans Dioxin and Radiation Exposure Veterans Compensation Act (1984) and Radiation Exposure Compensation Act (REVCA 1988) Energy Employees Occupational Illness Compensation Program (EEOICPA 2000) Medical Benefits for Approved Condition No Eligible for VA treatment, including hospital care, medical services, and nursing home care under Priority Category 6, not subject to copayments. Veterans who received nasopharyngeal (NP) radium therapy are also eligible for VA treatment as related to cancers of the head and neck but cannot enroll under Priority Category 6. For other veterans with occupational exposures, there is no special eligibility for VA treatment but they may receive VA treatment under the VA health care system. Yes—the services, appliances, and supplies prescribed or recommended by a qualified Physician, including transportation and other incidental expenses, for specified occupational illnesses; Beryllium sensitivity monitoring A covered uranium employee shall receive medical benefits for the illness for which that employee received $100,000 under section 5 of RECA Medical Benefit Provider Not applicable Department of Veteran Affairs United States medical officers and hospitals, or, at the individual’s option, by or on the order of physicians and hospitals designated or approved by the President. Offset of Compensation by: Final awards or settlement on a claim against any person, not including worker’s compensation. Final Awards or settlement on a claim against any person; “Payment to any individual under the provisions of the Radiation Exposure Compensation Act (RECA) based upon disability or death resulting from a specific disease shall bar payment, or further payment, of compensation or dependency and indemnity compensation to or on behalf of that individual based upon disability or death resulting from the same disease.” Final awards or settlement on a claim against any person, not including worker’s compensation and insurance payments
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program Survivor Benefits Yes; no age or dependency restriction Yes. Age and dependency restrictions apply Yes; age and dependency restrictions apply Total $ Awarded by 12/31/2004 $853,081,387f Not available $975,640,617g aRadiogenic disease shall not include polycythemia vera. bIonizing Radiation Review, Vol 1, No. 1, February, 2004 at http://www1.va.gov/irad/docs/IRADnewsletterFeb04.pdf, accessed Janu ary 5, 2005. cVA RADIATION PROGRAMS INFORMATION for Veterans Health Administration (VHA) Environmental Health Clinicians/ Coordinators, April 15, 2003 at http://www1.va.gov/irad/docs/VARADPROGRAMSINFORMATION.doc, accessed January 5, 2005. d38 CFR 3.715, page 298 (Authority: 42 U.S.C. 2210 note) [58 FR 25564, Apr. 27, 1993] eElection to accept payments under section 4 of RECA (either $50,000 for “downwinders” or $75,000 for “onsite participants”) will disqualify one from receiving any benefits under EEOICPA for which one may be eligible. If a “downwinder” or “onsite participant” claimant accepts payment under section 4 of RECA, he or she will not be eligible to receive any payments under the EEOICPA. fDOJ http://www.usdoj.gov/civil/omp/omi/Tre_SysClaimsToDateSum.pdf, accessed January 5, 2005. gDOL http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/WeeklyStats.htm, accessed January 5, 2005.
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Assessment of the Scientific Information for the Radiation Exposure Screening and Education Program CONCLUSION This concludes our description of the background and historical development of RECA and our description of the various aspects of compensation that it includes. In an upcoming chapter (Chapter 8) we explore the ethical framework that undergirds the compensation legislation. Such issues as equity in compensation and the ethics of screening are treated, along with other ethical concerns that surfaced in our public meetings with stakeholders. We insert this discussion after our recommendations regarding the most recent scientific information related to radiation exposure and associated cancers or other diseases (Chapters 4 and 7) and whether other groups of people or additional geographic areas should be covered under the Radiation Exposure Compensation Act (RECA) program (Chapters 5 and 6). Those recommendations are based in sound science. Those in Chapters 9, 10 and 11 are grounded in evidence-based medical practice and studies regarding effective educational strategies. We turn now to the scientific matters about which the committee has been charged.
Representative terms from entire chapter: