Red tape ties claims of test site employees

Claims for at least $150,000 apiece in illness compensation by hundreds of former Nevada Test Site workers and their families continue to hang in limbo nine years after the program was launched and 20 months after Sen. Harry Reid, D-Nev., said their exposures to radioactive materials should be given special consideration.

That consideration, known as "special cohort status," would give those who worked at the test site during years of below-ground nuclear weapons tests the benefit of doubt that their illnesses were probably caused by radioactive materials without having government contractors estimate the exposures through a costly process called "dose reconstruction."

By granting the special exposure status, qualified workers would then be entitled to compensation if they had suffered from illnesses covered by the program.

Formally known as the Energy Employees Occupational Illness Compensation Program, critics say the program run by the Department of Labor is snarled in layers of bureaucracy and red tape that so far has cost the government at least $391 million to administer. The program has resulted in more than $2.47 billion in compensation to claimants.

One critic, the wife of a former Nevada Test Site and Sandia National Laboratories worker, said she is dismayed because the Department of Labor recently denied a request to reopen the claim of her husband, Michael L. Fisher, a 61-year-old software engineer who worked in top secret areas.

Since his claim was filed in 2005, a hair sample has confirmed that he was exposed to uranium, and three experts have linked that exposure to his medical problems, including a bout with congestive heart failure.

Case workers "left out a four-page toxicologist report on the effect uranium has on the body," said his wife, Ronni Fisher.

"I'm ready to fight this. I'm so angry they did this to us," she said. "We need the benefits."

The Department of Energy was in charge of the program in its first few years but Congress stripped DOE of the program's administration in 2004 in hopes the Labor Department could catch up on a backlog of cases.

More than three dozen Cold War nuclear weapons facilities in other states have been granted special cohort status for certain classes of employees after a tedious review-and-decision process involving a branch of the National Institute of Occupational Safety and Health (NIOSH) -- the Office of Compensation Analysis and Support -- and an advisory board to the Department of Health and Human Services appointed by the president.

Only Nevada Test Site workers during atmospheric nuclear testing years, 1951 to 1962, have succeeded in their petition for special status. The 12-member board, officially called the Advisory Board on Radiation and Worker Health, is not expected to act at its meeting this month on the petition to give the special status to test site workers during the years of underground nuclear tests, 1963 to 1992, because the review process hasn't been completed, said Ted Katz, the board's designated federal official.

That petition was submitted in April 2007 and NIOSH reported in September 2007 that it has sufficient information to reconstruct doses. Dose reconstruction is a process of going back in time and trying to determine about how much radiation a particular worker was exposed to.

Later analysis by an independent contractor, Sanford Cohen and Associates, found that a model for dose reconstruction is flawed.

Last month, Reid spokesman Jon Summers said the senator wants the advisory board "to strike the right balance" between quickly making its decision on granting special status and weighing the petition.

Summers noted the concerns raised by Sanford Cohen and Associates.

"The board should heed those concerns," he wrote in an e-mail.

In January 2008, Reid told the advisory board that dose reconstructions performed by NIOSH contractors are based on "flawed and inadequate science."

Reid wrote the advisory board five months later expressing "strong support" for the test site workers' petition.

A NIOSH evaluation, however, suggested special status wasn't necessary because there was enough information for estimating how much radiation the workers were exposed to from inhaling or ingesting materials.

Later, a pair of studies by Sanford Cohen and Associates found that records and data about exposures were either flawed or missing, and the NIOSH model for dose reconstruction based on records of 100 co-workers was found not defensible because they weren't representative of all areas of the test site.

"The NIOSH investigators have not demonstrated that they can reliably reconstruct occupation environmental doses for the NTS (Nevada Test Site) workers," wrote Lynn Anspaugh, a health physicist from Henderson and a Sanford Cohen associate who authored the October 2008 white paper.

"The fundamental assumptions in the approach contain serious flaws and cannot be considered as valid," Anspaugh wrote in the 47-page report funded by the Centers for Disease Control and Prevention.

The flaws include data from air monitors that were at cafeterias and dispensaries far from where workers might have been exposed to radioactive materials.

In the report, Anspaugh noted that NIOSH initially assumed that contamination stopped in 1962 at the test site, 65 miles northwest of Las Vegas, when above-ground nuclear tests ceased. In fact, a chart in the report shows there were 225 below-ground shots that vented radioactive materials between 1963 and 1970.

In March, Sanford Cohen and Associates issued a second white paper that concluded there is "considerable evidence" that data from the 100 co-workers "cannot be used to construct a claimant-favorable" model for Nevada Test Site workers after 1962.

In other words, the model based on those who worked in tunnels, who may not have been exposed to levels of radiation that workers in other areas were exposed to, doesn't fit for most of the exposed workers.

Thus, NIOSH can't defend the dose reconstructions without more data, according to Anspaugh.

"There is compelling evidence that the members of the NIOSH-100 do not represent the bulk of the workers at the NTS, as the tunnel shots were rather rare," the second white paper concludes.

In a recent interview, Anspaugh said, "The problem as I see it is NIOSH has never done two things they said they were going to do. ... NIOSH has never delivered ... this critical co-worker model, and shown how they are going to deal with occupational environmental dose.

"The thing that is holding this up is that NIOSH is not delivering the products they promised," Anspaugh said.

On Tuesday, he said the questionable data for developing a co-worker model for reconstructing radiation doses for inhaling or ingesting materials is "very significant."

"If NIOSH does not come up with a defensible Nevada Test Site co-worker model for internal dose, then I would guess that the special exposure cohort might be approved," he said.

In August, a NIOSH spokeswoman, Shannon Bradford, said in an e-mail that the white paper was a "pre-decisional" document that after nearly a year is still under review by a work group that consists of a small set of advisory board members.

"Until the review process is concluded, we do not know if there will be any effect on completed dose reconstructions," Bradford said. "If there are changes that need to be made to the dose reconstruction methodology, NIOSH will issue a program evaluation report" that details the effect, if any, from new information on dose reconstructions.

NIOSH estimates there are about 500 cases of former Nevada Test Site workers that could potentially be covered by the special exposure cohort petition.

Reid's staff believes the number of former Nevada Test Site workers benefiting from the petition could be hundreds more because past denied cases would have to be re-examined and more new claims will be filed in the future.

In 2007, an estimated 700 cases of Nevada Test Site workers were reopened and returned to NIOSH after an audit found flaws in documents used to assess them.

A Government Accountability Office report on the compensation program that Reid and at least six other senators requested last year won't be released until December, according to Reid's office.

John Funk, chairman of Atomic Veterans and Victims of America, a nonprofit group that represents Nevada Test Site claimants, said the compensation program under the Department of Labor is no better now than when the Department of Energy first ran it nine years ago.

"NIOSH doesn't have anything more than DOE had in the beginning," Funk said. "They don't have an environmental occupational intake co-worker model. ... There's just a bunch of blank forms in people's medical files."

Contact reporter Keith Rogers at krogers or 702-383-0308.