Committee on the Judiciary Mr. Chairman, thank you and the members of the subcommittee for the opportunity to appear here today. My name is Dan Guttman. I am an attorney in private practice and a Fellow at the Center for the Study of American Government at Johns Hopkins University. My office address is 1155 15th Street, N.W., Suite 410, Washington, D.C. 20005; tel.no.202-638-6050; email:dguttman@ari.net.
United States House of Representatives
Subcommittee on Immigration and Claims
Statement of Dan Guttman
September 21, 2000
on
Nuclear Workers CompensationIn 1994-95 I was privileged to serve as Executive Director of the Presidential Advisory Committee on Human Radiation Experiments (ACHRE). I am testifying on my own behalf based on my experience with the Advisory Committee. I believe it is useful and important to place the nuclear weapons worker compensation measures before this Committee today in the context of prior research and findings.1
Summary As the Cold War recedes into history, there have been continued revelations about the treatment of "Cold War Veterans," those workers, servicemen, and further citizens who served in the development, production, and testing of nuclear weapons. It is important to place recent disclosures regarding the nuclear weapons workers in the context of that which has previously been learned regarding the government’s conduct towards "atomic veterans," uranium miners, and subjects of government sponsored human radiation experiments.
The President’s Advisory Committee was not directly tasked to review nuclear weapons worker exposures (save where workers were subjects of experiments). However, it found facts and made findings of direct relevance to the still unfolding story of the nation’s nuclear weapons workers.
In a nutshell:2
1. From the 1942-43 dawn of the Manhattan Project, the government, its contractors, and biomedical researchers were well aware that radiation posed potential risk to weapons workers, and that such risk had to be understood and monitored;
2. At its 1947 creation, the Atomic Energy Commission and its contractors engaged in a long hidden policy and practice of hiding risks from affected citizens to avoid liability and embarrassment -- even where national security itself did not require secrecy. The Committee recommended, and the Administration accepted, that where such coverup occurred, research subjects (or survivors) be compensated even in the absence of physical injury.
3. The Advisory Committee found that the hidden policy and practice of keeping secrets to avoid embarrassment and liability applied to workers, and their communities, as well as to experimental subjects. Ongoing disclosures show that the policy and practice was not effectively countermanded, and continued well past mid-century.
4. The Advisory Committee found that government and its contractors were well aware that radiation risks might be latent for years, with injury occurring long after exposure. However, they failed to provide for monitoring and recordkeeping sufficient to assure that risk would be minimized and that its dimensions could be known at years remove. This finding, recent disclosures show, applies to weapons workers as well.
The country has rightly seen fit to address harms caused to servicemen, uranium miners, and experimental subjects. It has yet to directly address the harms caused to the nuclear weapons workers, the largest, and, along with the uranium miners, the most continuously and severely exposed, of all "Cold War Veterans." Today, at many years remove from initial exposures, and given the limits of scientific understanding, any effort to redress wrong and harm will likely be imperfect. In this context, the findings of the Advisory Committee, when coupled with ongoing revelations regarding exposures to nuclear weapons workers, suggest that the burden of proof in cases where data on worker exposure is inadequate must be on the government and its contractors, and not on workers with demonstrable ills.
Background: The Advisory Committee on Human Radiation Experiments
In November, 1993 journalist Eileen Wellsome gave names and real life histories to 18 hospitalized patients who had been injected, at the direction of the United States government and with the assistance of university researchers, with plutonium, a material key to the atomic bomb. In January,1994 President Clinton appointed the Advisory Committee on Human Radiation Experiments (ACHRE) to unearth and tell the story of government sponsored human radiation experiments that took place in the 1944-74 period (prior to the introduction of broadbased rules to govern federally funded human experiments) and to advise on the retrospective evaluation of, and response to, this past conduct.
The Committee plunged into the reconstruction of government programs, some long secret, ranging from the administrations of Franklin Roosevelt to Gerald Ford. The Committee reviewed thousands of documents, interviewed dozens of surviving researchers, officials and participants, held 31 days of public hearings, and surveyed ongoing government-sponsored human subject research (non-radiation as well as radiation) to assess the effect of current federal regulations.
In its October 1995 report to the President, the Committee found a basic failure on the part of the government and the biomedical research community to inform research subjects of the risks that they were being exposed to, and to seek their consent.3
Significantly, the Committee further found that at the dawn of the Cold War era atomic energy officials and biomedical researchers were aware that, even in wartime, citizens should not be subjected to experiments without their informed consent. Nonetheless, this principle was not put into practice. The Committee therefore found the government and its researchers to be "morally responsible" and "blameworthy" for their failure to effectuate known principle, at least in cases where experiments were not conceived to directly benefit subjects (i.e.,nontherapeutic experiments).4 Fortunately, the Committee further found, the vast majority of human radiation experiments (which were performed at numerous universities, hospitals, and other research centers, employed AEC produced radioisotopes, but typically had no military or governmental purpose and were not secret) involved adult subjects and were unlikely to have caused physical harm. 5 The Committee found that the greatest harm among those studied was to uranium miners (who were subjected to government research while they continued to work); several hundred have died of lung cancer and survivors remain at elevated risk. 6
It is often said that the conduct of the government and its contractors towards experimental subjects, uranium miners, atomic veterans, and, now weapons workers, must be placed in the context of the limited understanding of radiation risk during the early Cold War years. This, of course, is so. However, the Advisory Committee found that while the government and its experts may not have then been aware of the full dimensions of radiation risk, they were well aware that risk was potentially omnipresent and that precautionary measures had to be taken. By 1940, radiation researchers were keenly aware of the tragedy of the radium dial painters (women who licked radium dipped paintbrushes and suffered gruesome jaw disease by consequence), similar cases of those who took radium as a nostrum, and the sicknesses that befell early radiation researchers.7The Government Knew From the Onset of the Manhattan Project That Workers were Exposed to Potential Risk That Required Understanding, Protective Measures, and Monitoring
Thus, a 1946 secret history of the Manhattan Project’s biomedical program explained:8
To their great credit, Manhattan Project biomedical researchers undertook extensive data collecting and experimentation to determine the human effects of radiation. The "clinical study of the personnel," Manhattan project researcher Robert Stone wrote in 1943, "is one vast experiment. Never before has so large a collection of individuals been exposed to so much radiation."9 Numerous experiments involving animals were conducted to learn how radioactive materials course through the human body, so that measurements taken from weapons workers could be better understood. Some experiments, including the now infamous plutonium injections and the handful of other classified human experiments, were conducted on unknowing human subjects.The memory of this [radium dial painters] tragedy was very vivid in the minds of the people, and the thoughts of potential dangers of working in areas where radiation hazards existed were intensified because of the deleterious effects of radiation could not be seen or felt and the results of over-exposure might not become apparent for long periods after such exposure.
High level radiation exposure, as occurred in some weapons project accidents, was known to cause immediate radiation sickness and terrible death. However, most nuclear weapons workers were exposed to radiation at levels whose injurious consequences (if any) would take years to manifest themselves. The government’s experts knew by mid-century that radon exposures to underground uranium miners were excessive and likely hazardous. The government also knew that a remedy -- adequate ventilation -- was at hand. But, in the absence of deaths, the government undertook study -- and not action. 10
In the case of beryllium exposure, by contrast, the government was on early notice that the hazard to workers and even surrounding community members was actual and severe, and not just potential. By 1949 there had been at least twenty-seven deaths attributable to beryllium in plants where the AEC had contracts. Among the fatalities in Lorain, Ohio were five residents living near the Beryllium Corporation plant. Indeed, the epidemic was the subject of press reports.11
When the Advisory Committee began its work in 1994, many assumed that Cold War era national security considerations were the basis on which the government and its contractors kept health and safety information secret from affected citizens. Surprisingly, the Committee found that health, safety, and environmental information was kept secret to avoid embarrassment and liability -- even where officials knew national security did not preclude its release. 12The Government and its Researchers Kept Secrets from Experimental Subjects to Avoid Liability and Embarrassment: The Advisory Committee Recommended Compensation Even in the Absence of Harm in Such Cases
For example, the Committee found that in 1946, just as the Atomic Energy Commission (AEC) was created, a report on the plutonium experiments was declassified. When the AEC began operations, however, the report was reclassified to "restricted." A February, 1947 memo vividly recorded internal AEC concerns:13
In November 1947, the AEC internally concluded that "the matter of human experimentation" would remain classified where certain "conditions" were not be met. Remarkably, these conditions included "informed consent."14 Thus, the AEC simultaneously recognized that disclosure was imperative but that, to protect the government and its contractors, disclosure should not be had where the result could be injurious. Even though plutonium subjects were followed up by the government, and even though the research began to be reported in public technical journals in the 1950's, the subjects (or their survivors) were not told of the experiments until the 1970's. 15The [plutonium research report] appears to be the most dangerous since it describes experiments performed on human subjects, including the actual injection of plutonium metals into the body...Unless, of course, the legal aspects were covered by the necessary documents, the experimenters and the employing agencies, including the U.S., have been laid open to a devastating lawsuit which would, through its attendant publicity, have far reaching results.
The Committee concluded that -- even in the absence of demonstrable injury -- the plutonium subjects, and other victims of secretkeeping to avoid embarrassment and liability, were entitled to compensation. The Committee recommended:16
On receipt of the report in October, 1995 President Clinton provided a broad apology to experimental subjects. 17 In March,1997 the Administration reported that it was in agreement with the financial compensation component of the recommendation as well and would implement it.18that the government deliver a personal, individualized apology and provide financial compensation to the subjects (or their next of kin) of human radiation experiments in which efforts were made by the government to keep information secret from these individuals or their families, of from the public, for the purpose of avoiding embarrassment or potential legal liability, or both, and where the secrecy had the effect of denying individuals the opportunity to pursue potential grievance.
Documents uncovered and made public in the course of the Committee’s work revealed that the suppression of health and safety information was directed at the government’s nuclear weapons workers and their communities, as well as at experimental subjects. A 1947 memo from the AEC Director of Oak Ridge operations to the AEC General Manager stated:19The Government and its Contractors Hid Risk From Workers, As Well as Other Citizens, To Avoid Embarrassment and Liability
In October,1947 Oak Ridge recommended to AEC Headquarters that the AEC Insurance Branch routinely review declassification decisions for liability concerns:20Papers referring to levels of soil and water contamination surrounding Atomic Energy Commission installations, idle speculation on future genetic effects of radiation and papers dealing with potential process hazards to employees are definitely prejudicial to the best interests of the government. Every such release is reflected in an increase in insurance claims, increased difficulty in labor relations and adverse public sentiment.
In late 1948, the AEC Declassification Branch found that a study of the effect of gamma radiation on Los Alamos workers’ blood could be declassified as it fell within the fields of "open research."21 Nonetheless, the AEC Insurance Branch called for "very careful study" before making the report public:22Following consultation with the Atomic Energy Commission Insurance Branch, the following declassification criteria appears desirable. If specific locations or activities of the Atomic Energy Commission and/or its contractors are closely associated with statements and information which would invite or tend to encourage claims against the Atomic Energy Commission or its contractors such portions of articles to be published should be reworded or deleted. The effective establishment of this policy necessitates review by the Insurance Branch as well as the Medical Division prior to declassification.The Advisory Committee reported that the practice of keeping information secret on grounds of embarrassment or potential liability should have ended no later than 1951, and perhaps as early as 1949.23 In its 1949 "Policy on the Control of Information," the AEC stated that "Information about a public enterprise of such consequence as the atomic energy programs should be concealed only for reasons soundly based upon the common defense and security." In 1951, President Truman issued an Executive Order that limited the reasons for classification to national security.We can see the possibility of a shattering effect on the morale of the employees if they become aware that there was substantial reasons to question the standards of safety under which they are working. In the hands of labor unions the results of this study would add substance to demands for extra-hazardous pay…knowledge of the results of this study might increase the number of claims of occupational injury due to radiation and place a powerful weapon in the hands of a plaintiff’s attorney.
However, it is now clear that -- in regard to weapons workers -- the practice of secretkeeping to avoid liability and embarrassment was not effectively countermanded. Recent revelations show that the policy of worker directed coverup continued well past mid-century. For example, attention to the Paducah, Kentucky site flowing from Joby Warrick’s Washington Post series brought to the fore a March 11,1960 AEC memo which shows that top AEC biomedical officials recognized that "possibly 300 people at Paducah should be checked out" for neptunium contamination, but that there was hesitation to "precede to intensive studies because of the union’s use of this as an excuse for hazard pay.24 " Most recently, Peter Eisler’s USA Today investigation (reported in September, 2000) shows that weapons workers at contractor owned sites were routinely exposed to hazards and not warned -- or followed up when contracts ended.25
The President’s Committee found that the government did not keep records sufficient to assure that those exposed to radiation in secret programs were protected against the hazard. The Committee found (Finding 19):26The Government and its Contractors Failed to Keep Requisite Exposure Records And Provide Requisite Followup
This finding, recent press revelations and worker and expert testimony before Congressional committees indicate, applies in significant respect to nuclear weapons workers as well as to subjects of human radiation experiments.the government did not routinely undertake to create records needed to ensure that secret programs could be understood and accounted for in later years and that it did not adequately maintain such records where they were created. The Committee further finds that many important record collections (including records that were not initially classified) have been maintained in a manner that renders them practically inaccessible to those who need them...
Indeed, documents reported on by the Advisory Committee regarding the Harshaw Company dovetail disturbingly with the recent USA Today reports.
The Advisory Committee reported on the deception illustrated in a 1955 exchange between the University of Rochester (a major AEC worker health and safety research contractor) and the AEC regarding a proposed study of lung cancer in workers at the Harshaw Company (an AEC Cleveland based uranium processor).27 The Rochester researcher wrote:
The documents reported by the Committee showed that the AEC opted for subtle deception:You will have to find a good excuse so as not to worry the person you are contacting...perhaps you could say in some convincing way that you, or rather the person conducting the study, represents a life insurance company studying the health of people employed by the Harshaw Company.
The documents uncovered by the Committee, as just quoted, indicate that the deception at Harshaw reflected benign intent. However, USA Today now reports that the AEC and Harshaw knew that hazard was excessive as early as 1948 and knew that continued worker followup for late developing disease was essential. Nonetheless, USA Today found that, "after Harshaw’s work for the nuclear weapons program ended in the mid-1950's, no one returned to check the workers’ health or tell them of the risk."28The attack which we are going to start the study will be to inform the old Harshaw employees that our interest in them is only part of an overall program to make sure that the safety controls in the atomic energy business are absolutely perfect. To be sure, such an approach might cause some alarm, but this would not be too great...the Commission is sure that there will be no injury to its workers but it needs to document this fact.
During the course of the Cold War, hundreds of thousands of Americans were enlisted to serve our country in activities related to the development, production, and testing of nuclear weapons:The Government Has Provided Redress to Basic Groups Enlisted on Behalf of the Nation’s Nuclear Weapons Programs -- Save the Nuclear Weapons Workers
-- From 1945 to 1962 about 220,000 servicemen participated in the testing of nuclear weapons at the Nevada and South Pacific test sites. (Most were exposed to a single test.) In the 1980's Congress acted to provide compensation for "atomic veterans" who sustained illness.
--- Several thousand uranium miners worked for private companies mining uranium for the Atomic Energy Commission. In 1990 Congress acted to provide compensation for miners with lung cancer or non-malignant respiratory disease.
-- In the late 1990's, following the report of President Clinton’s Advisory Committee on Human Radiation Experiments, the government provided compensation for citizens unknowingly used as subjects in government sponsored human radiation experiments. The Committee recommended, and the Administration agreed, that in cases where the government intentionally withheld information to avoid liability or embarrassment, the citizen (or next of kin) should be compensated even in the absence of demonstrable physical injury.
From the World War II Manhattan Project to the present, hundreds of thousands of Nuclear weapons workers have been employed to develop, build, and test nuclear weapons. The government has not acted to provide redress to these workers
Members of all of these groups deserve to be honored for their service, and provided with appropriate remedy where the government has done them harm.
Thank you very much for the opportunity to appear before you today.