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A 404 VOLUME 110 | NUMBER 7 | July 2002 • Environmental Health Perspectives

Spheres of Influence

COLD WARCANCERS

Compensating ffoorr

When the Energy Employees Occupational Illness Compensation ProgramAct (EEOICPA) became law on 30 October 2000, it was widely regarded as a landmarkpiece of legislation. After years of fighting workers’ claims of occupational illness in court, the government had

decided to acknowledge its responsibility for decades of unsafe working conditions in Cold War nuclear

weapons factories. The law promised a lump sum payment of $150,000 plus medical benefits in compensation

to individual workers or families of workers who had developed job-related illnesses.

However, another challenge lay ahead: how to equitably award the payments to the deserving workers. To do

so, government administrators have developed a mathematical model using information about cancer risks from

radiation exposure to determine which claims are likely to be job-related. However, the precise numerical results

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Spheres of Influence • Compensating for Cold War Cancers

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belie numerous assumptions and uncer-tainties, and the details of the plan havegenerated substantial debate.

The Equity DilemmaOver a 50-year period from the late 1940s tothe 1990s, the U.S. Department of Energy(DOE) and its contractors employed over600,000 men and women at various sites inthe production of nuclear weapons. Theseworkers were exposed to a variety of radia-tion sources, including radon and X rays.The government had long denied that theworking conditions could lead to disease, butthat position finally changed in early 2000.Bill Richardson, energy secretary at the time,in announcing an early version of the com-pensation plan for workers, said that “thegovernment is done fighting workers, andnow we’re going to help them.”

Responsibility for administering theEEOICPA’s compensation program wasassigned by President Clinton to the U.S.Department of Labor (DOL). Normallysuch duties would have been under thepurview of the U.S. Department of Justice(DOJ), which oversees several other majorcompensation schemes including, for exam-ple, the September 11 Victim CompensationFund, the National Vaccine InjuryCompensation Program, and the RadiationExposure Compensation Act, which com-pensates residents of Utah and Nevadaexposed to radioactive fallout from nucleartesting. But worker advocates argued that inthis case the agency had a conflict of interestbecause of its role in defending the govern-ment against worker claims.

Funds are appropriated for the programeach year. For fiscal year 2002 the programreceived $597 million for benefits and $136million for administration. But the legislationis written so that payments cannot be deniedbecause of lack of funds in the DOL budget.

The EEOICPA provides compensationfor illnesses related to three hazardous occu-pational exposures: radiation, beryllium, andsilica. The victims of beryllium and silicaexposure are relatively easy to identify,because they develop diseases specific to expo-sure to those agents. Beryllium is a light,highly rigid metal that withstands heat welland is used in nuclear weapons components.Some workers who were exposed to berylliumdeveloped chronic beryllium disease, a diseaseof the lungs. Workers who mined tunnels inNevada and Alaska for underground nucleartests were exposed to silica dust, which causeschronic silicosis (nonmalignant lung disease).

But identifying the radiation victims isnot so easy. The EEOICPA limits claims tovictims who have developed cancer. Thisincludes all types of cancer except chroniclymphocytic leukemia, which is not believed

to be caused by radiation. But cancer is acommon disease, even among those who havenever gone near a nuclear weapons plant, andit is likely that many of the nuclear workerswill develop cancers that are not job-related.Compensation administrators are left with adaunting challenge—how to decide whodeserves to be compensated.

There is no foolproof test to determinewhether a worker’s lung cancer was causedby radiation or by, say, cigarette smoke. Inoccupational injury disputes involving can-cer, administrators and courts are forced torely on probabilities. Nicholas Ashford, aprofessor of technology and policy at theMassachusetts Institute of Technology,explains that, in such cases, decisions are

made “not from theindividual injurywhich is sustained,but from epidemio-logical evidence,which is largely statis-tical evidence.” Inother words, a doctorcannot identify thecause of a cancer byexamining the patient,but information fromepidemiologic studies

and the patient’s radiation exposure candetermine whether it is likely that the cancerwas caused by radiation.

The EEOICPA requires that compensa-tion for cancer be granted only if the diseaseis “at least as likely as not related to employ-ment.” This translates into a probability of50% or greater, a cutoff that has been usedin other compensation systems and in tortlaw. The principle here is that some individ-uals’ cancers are more likely to be job-relatedthan others, depending on how much radia-tion exposure they received, their age, andother factors. While the DOL will overseethe compensation program, the NationalInstitute for Occupational Safety and Health(NIOSH) was charged with developing a sci-entifically based model to assign to eachclaimant a probability that his or her diseaseis job-related.

Models and AssumptionsThe centerpiece of the NIOSH final ruleon the probability of causation in radiationworkers, which was promulgated on 2 May2002, is a computer program known as theInteractive Radio-Epidemiological Program(IREP). The IREP was originally developedby the National Cancer Institute (NCI) toaid the Department of Veterans Affairs inadjudicating claims of atomic veterans(U.S. veterans exposed to radiation from anuclear blast in World War II or duringnuclear bomb tests during the Cold War),

but NIOSH made some modifications inadapting it for the nuclear workers.

While the NIOSH–IREP model containssome highly technical bells and whistles, thebasic calculation relies on one crucial piece ofdata: for any given radiation dose, how muchdoes it increase a worker’s risk of developing aparticular type of cancer? The program con-tains a large database of cancer risk estimatesfor different types of cancer based on type ofradiation, dose, sex, history of smoking, ageat exposure, and age at which the cancer wasdiagnosed. However, these estimates of low-level radiation risk have been the subject ofongoing scientific controversy.

The NCI group that developed the origi-nal IREP model, led by radiation statisticianCharles Land, primarily relied upon studiesof 82,000 Japanese atomic bomb survivors,the richest data source available, to generatethe risk model. However, some scientists havequestioned the application of the Japanesesurvivor studies to American nuclear workers.While the Japanese at Hiroshima andNagasaki were exposed to a single intenseblast of radiation, the nuclear workers wereexposed to smaller doses, sometimes over aperiod of decades, which, some experts say,could result in different biologic effects. Saysepidemiologist David Richardson of theSchool of Public Health at the University ofNorth Carolina at Chapel Hill (UNC), “Thequestion is whether [the cancer risk values]are valid, and the validity is partly a questionof extrapolating from a bomb blast to chronicexposures. That’s probably the main source ofuncertainty.”

Richardson argues that the risk modelshould also incorporate findings from studiesin U.S. nuclear workers. In a study publishedin the August 1999 issue of EHP, Richardsonand UNC colleague Steve Wing studied14,000 Cold War workers at Oak RidgeNational Laboratory and found substantiallyhigher cancer risks at low-level exposures thanwould have been predicted based on datafrom the atomic bomb survivors study.(Wing published an earlier paper on thissame topic with similar results in the 20March 1991 issue of the Journal of theAmerican Medical Association.)

But results from other worker studieshave been inconsistent. Other scientists main-tain that because most workers are exposed tovery low levels of radiation, it is difficult todistinguish between a small adverse effect andno effect at all. “The worker studies have a lotless information than the survivor studies,”says statistician Daniel Stram of theUniversity of Southern California.

Most radiation scientists do agree, how-ever, that the same radiation dose has a dif-ferent effect when it is given over a longertime interval. Says John Boice, scientific

A 406 VOLUME 110 | NUMBER 7 | July 2002 • Environmental Health Perspectives

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director of the International EpidemiologyInstitute and a member of the InternationalCommission on Radiological Protection,“There’s a wealth of animal and cellular andbiological data that indicate that if youspread the dose over time, the effect is less.”This is because human DNA is able torepair small amounts of damage.

In predicting risks for long-term expo-sures, major radiation protection organiza-tions such as the National Council onRadiation Protection and Measurements, anongovernmental group of radiation andhealth experts, recommend using a correctionfactor called a dose rate effectiveness factor(DREF). This factor represents how muchthe effectiveness of a dose of radiationdecreases when it is given over a long timeperiod (as a slower dose rate). A higher DREFnumber means that exposure over a longertime will be much less effective than the sameexposure over a short time. The council (aswell as other radiation protection authorities)suggests that the correct number to be usedhere is somewhere between 2 and 10, butthey settled on 2 as the most prudent choicebecause it assumes the highest risk. Yet theappropriate value of this correction factor isuncertain. William Beckner, executive direc-tor of the council, says, “That number isbased on a scientific judgment; it’s not basedon scientific data that it is a number of two.”

NIOSH has adopted the recommendedcorrection factor in their risk valuationmodel, though the agency has received criti-cism from both sides of the debate for doingso. Richardson and Wing maintain that theirworker studies contradict the theory that adose given over a longer time is less effective,and suggest that no correction is necessary. Atthe other extreme, Harvard physics professorand radiation expert Richard Wilson advo-cates for an even stronger correction factor.“Whoever chose the dose rate [effectiveness]factors was an extreme pessimist,” he says.

Nevertheless, there is broad agreementon one point—the uncertainties in theN I O S H – I R E Pmodel are numerousand substantial. Themodel actually pro-vides a range of pos-sible values to reflectthis uncertainty, andthe EEOICPA requires that administratorsuse the value most favorable to the worker.Says Larry Elliott, director of the NIOSHOffice of Compensation Analysis andSupport, “We give the benefit of the doubtto the claimant, using science to the fullestextent possible in doing so.”

The Politics of CompensationLand insists that the model works exactly as

intended. “If you are not compensated,” hesays, “it must be just about impossible not tohave had a probability of causation less thanfifty percent. It’s an extremely generous stan-dard of proof.”

But worker advocates maintain thatinequities persist. For instance, theNIOSH–IREP model treats smokers differ-ently than nonsmokers when consideringclaims for lung cancer, imposing more strin-gent requirements for compensation. KnutRingen is a consultant who provided publiccomment to NIOSH on the proposed com-pensation rule on behalf of the Center toProtect Workers’ Rights, part of the AFL-CIO based in Silver Spring, Maryland. He isconcerned that because 80% of the workerswere smokers, very few will be eligible forcompensation for lung cancer. “On one levelthis makes sense, but it leads to a totallyabsurd result,” he says. “A smoker has tohave up to thirty times the exposure in orderto get the same compensation as a nonsmok-er. We think that’s just plain wrong.”

Ultimately, some critics would like tosee the burden of proof rest on the govern-ment, not on the worker. For example,physicist Marvin Resnikoff of WasteManagement Associates, a New York Cityconsulting company that provides dose esti-mates and other technical information onbehalf of workers in litigation, opposes therequirement for exposure estimation. “Theyshift the burden on the workers to deter-mine what these levels are,” he says. “Thepresumption should be that there was stuffin the air and that the workers wereexposed.”

Indeed, the greatest uncertainty in adju-dicating claims comes not from the scientificdebate about radiation risks but from thelack of adequate records of worker exposures.Record-keeping practices for radiation safetywere woefully deficient at many sites, partic-ularly for intermittent and temporary work-ers such as those doing construction andmaintenance work. NIOSH will do the workof dose reconstruction itself, based on DOErecords and interviews with workers, accord-ing to a second final rule released at the sametime. Exposures will have to be estimatedbased on job descriptions and measurementsfrom comparable work settings. However, insome cases, the records may be so poor as toprevent any realistic estimation.

James Melius, a member of the AdvisoryBoard on Radiation and Worker Health,which provides oversight of NIOSH’s rulemaking under the EEOICPA, maintains thatmissing records pose a major challenge.Administrators will be forced to strike a bal-ance between scientific accuracy and expedi-ence, he says: “How far do you go in tryingto find dose information or to reconstruct? I

think that is a key issue. It may cost morejust to do that than to award compensation.”

The EEOICPA does provide for excep-tions when exposure records are especiallypoor. The law singles out workers at a fewnotorious sites, including the gaseous diffu-sion plants at Paducah (Kentucky), Ports-mouth (Ohio), and Oak Ridge (Tennessee)

as “special exposurecohorts.” Workers inthis group simplyhave to show thatthey worked in anexposed job for atleast 250 days. Under

the EEOICPA, additions to the specialexposure cohorts can be created for groupsof workers where the radiation dose cannotbe determined “with sufficient accuracy.”NIOSH is still working on developingguidelines by which it will make thesedeterminations.

The Advisory Board on Radiation andWorker Health will be a key player in all ofthis. The board provides independentadvice to NIOSH with members reflecting“a balance of scientific, medical, and workerperspectives.” Currently, though, the 12-member advisory board includes only oneworker as well as one labor union physician.In February, advisory board chairman PaulZiemer wrote to Department of Health andHuman Services secretary TommyThompson asking that this imbalance berectified, but so far no other workers havebeen added. The next advisory board meet-ing, to be held in Denver on 1–2 July 2002,will be the first held outside Washington,D.C., and board members hope that thiswill allow more input from former workers.

So far about $200 million has been paidout, mostly to uranium miners and membersof the special exposure cohorts. About 4,000cancer claims are currently awaiting assess-ment by the NIOSH–IREP model, afterwhich they will forwarded to the DOL for afinal decision. While the NIOSH rule pre-scribing the compensation model is nowfinal, it allows for revisions to theNIOSH–IREP model under the oversight ofthe advisory board. Thus, disputes over themodeling assumptions are likely to continue.

However, Stram is quick to point outthat, despite scientific differences, a lot isknown about how to calculate radiation risks.“We probably know more about radiationthan we do about any other exposure,” hesays. “Despite all of the uncertainties, weknow that there is a bound on the risks.”That may be small compensation to workerswho fail the probability test and are left withthe legacy of cancer.

Mark J. Parascandola

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