Energy Employees Occupational Illness Compensation Program Act (EEOICPA)

Adapted from Shiloh Krupar, Hot Spotter's Report: Military Fables of Toxic Waste (Minneapolis: University of Minnesota Press, 2013), 160-172.Passed in 2000, the U.S. Energy Employees Occupational Illness Compensation Program Act (EEOICPA) symbolically marked the Department of Energy’s (DOE) turn away from a longstanding record of denying claims filed by sick workers who earned livelihoods in government-owned, contractor-operated weapons production plants. After decades of exemption from liability for the purposes of national security, the DOE acknowledged responsibility for unsafe working conditions in the United States’ Cold War weapons facilities, and admitted that nuclear workers had been put at risk by exposure to radiation and other toxic substances. Previously, the DOE had assisted contractors in contesting occupational disease claims. Reading less like a legal document than a confession, the original EEOICPA legislation recognized the harm caused by radiation and toxic chemicals in the bomb factories of the United States, and aimed to facilitate moral and financial recompense to “make workers whole persons again.”

EEOICPA emerged within a national context of mounting distrust and environmental and health concerns about the nuclear weapons complex. The post-Cold War period brought forth a series of revelations about the many kinds of sacrifices people had been unwittingly subjected to in the name of national security: from secret plutonium experiments on people and victims of downwind/downstream exposures, to atmospheric nuclear fallout and the lingering problem of nuclear waste. In response to widespread nuclear worker complaints and mounting worker activism around occupational illnesses and hazards, DOE administrative leaders organized a series of discussions and public hearings around the country, galvanizing public support for a federal program to compensate sick nuclear workers. The meetings aimed to publicly acknowledge the harm done to workers and to correct the DOE’s former culture of secrecy. Just as a production imperative took precedence over worker health and safety during the Cold War, the moral imperative to rectify exposures that had occurred without knowledge or consent and to provide for sick nuclear workers was seemingly made a U.S. national priority.

U.S. Congress held hearings about radiation-induced cancer in atomic workers as early as 1959. However, these efforts were stymied by the problem of “indeterminate causation”: the inability to distinguish radiogenic cancers deserving of compensation from cancers that would have occurred in the absence of occupational exposure to ionizing radiation. Forty years later, the EEOICPA legislation provided an unrebuttable presumption that certain cancers are work-related, and it established two standardized methods for federal agencies to determine compensation claims: radiation dose reconstruction and computer modeling of the “probability of causation.” The 106th Congress adopted this framework in order to yield consistent, scientifically informed causation determinations for cancer claims on a case-by-case basis, with measures for fast-tracking compensation for certain kinds of cancer and disease.

Regardless of the legislation’s original intentions, the implementation of EEOICPA has been so complex and convoluted, that one of the first advocates of the legislation has referred to it as a David Michaels, Doubt is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford and New York: Oxford University Press, 2008), 230.“strange beast” with “weird appendages.” Moreover, the burden of proof largely remains with workers and/or their families, who under conditions of serious illnesses and death must navigate an exceptionally arduous bureaucratic structure that sorts who is deserving or not of compensation and medical benefits. The most relevant parts of EEOICPA are Part B and Part E. Part E replaced the original Part D, which was deemed ineffective. The 2000 law originally sought to create a technical assistance program run by the DOE to help former contractor employees file state workers’ compensation claims for occupational illnesses. Part D covered illnesses that were caused, aggravated, or contributed to by exposure to any toxic substance while working at a DOE facility. Radiation-induced cancers were to be separated out and funneled into part B. By 2004, DOE had granted very few claims under part D, in spite of spending tens of millions on program operations. Government Accountability Office Reports and a series of hearings on the issue revealed serious flaws, including DOE’s failure to provide clear and consistent guidance on establishing the “probability of causation” for occupational illnesses, overloading and underpaying the Physician Panels that had been coordinated to determine causation, stonewalling efforts to find a willing payer for compensation claims, refusing to streamline cases, and subcontracting out the entire Subtitle D claims process to an underqualified contractor.

In response, Congress revamped this section of EEOICPA in the 2005 National Defense Authorization Act, replacing it with Part E and transferring its administration from DOE to the U.S. Department of Labor (DOL). DOE would now only be tasked with record retrieval. Part E provides coverage to DOE contractor or subcontractor employees, or workers covered under section 5 of the Radiation Exposure Compensation Act (RECA), who have developed an illness, including cancer, beryllium disease, and silicosis, as a result of occupational exposure to a toxic substance at a covered DOE facility. U.S. Department of Energy, Office of Environment, Health, Safety and Security, “A Basic Overview of the Energy Employees Occupational Illness and Compensation Program Act: Outreach and Awareness Series,” January 2015, https://www.energy.gov/sites/prod/files/2014/12/f19/EEOICPA%20Pamphlet.pdf.Section 5 of the RECA statute covers uranium miners, uranium mill workers, and uranium ore transporters. Workers eligible under EEOICPA Part E receive payment of their medical expenses for their covered illness and may also be eligible for impairment and/or wage loss compensation. Survivors found eligible under E receive a lump-sum compensation payment and may also be eligible to receive additional compensation. EEOICPA also pays workers who were approved for compensation under section 5 of RECA, or their eligible survivors, an additional $50,000 and future medical benefits for conditions approved for compensation under RECA.

Part B was implemented in 2001 and covers current and former workers who have been diagnosed with cancers, beryllium disease, or silicosis, and whose illnesses were caused by exposure to radiation, beryllium, or silica while working directly for the DOE, the department’s contractors or subcontractors, a designated Atomic Weapons Employers (AWE) are privately owned plants that processed/produced radioactive materials for nuclear weapons. This includes DOE facilities, and any buildings, structures, or premises where radioactive materials and beryllium were handled or over which the DOE had proprietary interest, including certain universities and private companies.Atomic Weapons Employer, or a beryllium vendor. Individuals or their survivors found eligible may receive a lump sum compensation payment of $150,000 and medical expenses for covered conditions. Compensation is supposed to be fast-tracked for beryllium disease or silicosis, and for particular site workers who have any of twenty-two specific cancers (e.g., bone cancer, renal cancer, or leukemia at last two years after exposure; lung cancer; various radiogenic-induced diseases, provided onslaught was at least five years after exposure).

EEOICPA also has provisions for “Special Exposure Cohort” (SEC) status, which allows eligible claims to be compensated without the completion of a radiation dose reconstruction or determination of the probability of compensation. To be considered, claimants need to prove that they worked 250 aggregated days in a class or classes of workers at a designated SEC site, and have any of the twenty-two designated types of cancer. An SEC class is a group of workers who were employed at a particular facility, sometimes a particular building, during a specific time period. A given SEC work site may have classes of employees for only certain dates of operation. For example, at Rocky Flats, the former plutonium production facility near Denver, SEC status is only open to those employees of DOE, its predecessor agencies, or DOE contractors or subcontractors who were were monitored or should have been monitored for neutron exposures (basically anyone working in a building where plutonium was used) at the Rocky Flats Plant for at least 250 workdays from April 1, 1952, through December 31, 1966. The ruling covers buildings 86 (the same as 886), 91 (991), 701, 771, 774, 776, 777, 778, 779, and 881 (added later). Basically, SEC status is a hodge-podge definition that can incorporate disease, building or site, and/or time period. Because SEC status allows for a streamlined compensation claims process (i.e., workers are given the benefit of the doubt and do not have to show that they were exposed), workers employed at Rocky Flats in more recent decades and DOE employees from numerous other sites around the country have organized and petitioned to be included under the SEC provision. SEC designation was designed to address radiation exposures incurred under circumstances that make dose reconstruction scientifically infeasible or morally unnecessary as the basis for compensation claims, such as poor or nonexistent exposure records. Refer to nuclear worker advocacy websites for concerns and grievances regarding the EEOICPA claims process, such as ANWAG and the Cold War Patriots.Many nuclear workers argue that such circumstances are not the exception but the rule within the U.S. nuclear complex.

Cancer claims not covered by SEC are statutorily required to undergo exposure assessment. This mandate was interpreted to entail radiation dose reconstruction and scientifically informed causation determinations per individual cancer claim. Controversial within the scientific community, these procedures are intended to yield reliable results using methods familiar to occupational health professionals and, by extension, toxic tort cases that draw on strategies of epidemiology. Methods involve reconstructing past exposures from interviews and existing documentation, and using confidence intervals to express statistical uncertainty. The National Institute for Occupational Safety and Health (NIOSH) is the key player here, charged with reconstructing radiation doses and site profiles, and gathering information such as recorded radiation dosimetry practices at each DOE site.

NIOSH produced what were considered to be scientific guidelines for determining whether a worker’s cancer was related to occupational exposure to radiation: chiefly, the probability of causation. Using various strategies of estimation and a mathematical model of quantitative risk assessment that determines the probability of compensation and that allows for an increasingly complex analysis of uncertainty, NIOSH has since developed a software system that does the necessary calculations and assigns each claimant a probability that his/her disease is job-related. After data have been collected from various site profiles, workers’ files, radiation monitoring records, and qualitative information from worker interviews, a worker’s “dose” is reconstructed—an estimated type and level of radiation exposure received by the worker and the associated radiation dose to each organ affected by cancer. This information is entered into a set number of data fields of the software known as Interactive RadioEpidemiological Program (IREP).

IREP is based on the radioepidemiological tables originally developed in the 1980s by the National Institute of Health to help adjudicate compensation claims for those living downwind of atmospheric nuclear testing and for those veterans exposed to radiation during nuclear blasts in WWII or bomb tests during the Cold War. Although use of the tables was contentious and ultimately struck down from the downwinders legislation, it provided a foundation for the IREP mathematical model. IREP requires the input of data about a given radiation dose—the type of energy range, as well as information about the work process and the worker, from age at exposure, number of years of exposures, and age at time of diagnosis, to the claimant’s sex, race, and history of smoking. After entering these numbers and other statistical evidence, IREP produces a final figure, a percentage—what’s considered the probability of causation—of the likelihood that the cancer was radiogenic. The results are sent back to the DOL, which handles the final ruling and communication with claimants. The basis of whether one’s claim for compensation is accepted or not is expressed in the terms of whether the cancer was (in the official phrasing) “at least as likely as not” to have been caused by exposure to hazards at work—meaning the claimant must prove 50 percent probability or greater that the illness or death was caused by on-the-job exposure to radiation. Otherwise, no compensation.

The final rulings, methods, and attempt to employ science to guide policy decisions and administer EEOICPA are deeply contested due to institutional mistrust and resentment. EEOICPA requires that a balance be struck between scientific accuracy and expediency in resolving claims, yet, for many workers and their advocates, the methods of dose reconstruction and probability of causation make the entire process arduous, unfair, and likely more costly than simply awarding compensation. As one analyst astutely warned at the outset of EEOICPA’s implementation:

"While this approach seems reasonable on paper, it is impractical and will likely result in widespread injustices. It will take a long time to set up procedures for calculating individual doses, [to] validate models, and extract and validate data. The expense will be great and the results controversial and highly uncertain. At the end of this lengthy process, the government—despite a good faith effort and huge expenditures—may find itself less trusted and embroiled in more litigation than before."
Arjun Makhijani, "The Burden of Proof," Bulletin of Atomic Scientists 57, no. 4 (July/August 2001): 54.— Arjun Makhijani

In many cases, questioning the scientific accuracy of risk assessment is moot: systemic problems in the data, such as insufficient records, fabricated numbers, substituted records between sites, or measurements of infinity, cannot be resolved through scientific methods, only assumptions. How the DOL is to be held accountable for its decisions continues to be unclear; For example, DOL is allowed to change final decisions, and NIOSH can reconstruct doses that have already been completed in order to execute new methods.arbitrariness characterizes much of the administration process. Moreover, calculations of “uncertainty” about exposure and dose obscure the material linkages yet differently inhabited risks that remain from the domestic production of nuclear weapons and geographies of the Cold War.

Sources

“Energy Employees Occupational Illness Compensation Program Act.” Public Law 106.398, 42 U.S.C. 7384-7385.

Flynn, Michael. “A Debt Long Overdue: Nuclear Weapons Work made People Sick—At Last, Workers May Be Compensated.” Bulletin of the Atomic Scientists 57, no. 4 (July/August 2001): 38-48.

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Makhijani, Arjun. "The Burden of Proof." Bulletin of Atomic Scientists 57, no. 4 (July/August 2001): 49-54.

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