Lack of RECA benefits ‘a tragedy of the nuclear age’

Part II 

GRANTS – Larry Diaz was a teenager in the mid-1970s when he began working as a helper in an underground uranium mine for Kerr-McGee Corp. Growing up “poor” and lured by the almighty dollar, it wasn’t long before he advanced to miner. “I was real young, I didn’t know the value of money back then,” he said. “I was making these big checks and just spending it as quick as I could. I had credit cards that looked like a stack of playing cards.”

Diaz, now the sheriff of Cibola County, mined for nine years, working in the Kerr-McGee-Ambrosia Lake area. He gained his first mining experience in Section 35, graduated to working on his own in Section 19, and later Section 36. He also spent about a year at Anaconda.

During recent meetings hosted by the Post-’71 Uranium Workers Committee and the Southwest Uranium Miners’ Coalition Post ’71, Diaz shared memories of lax working conditions, special assignments and fatal accidents.

Bad air

Miners would access their work areas via a horizontal passageway known as a drift. The drift was equipped with a main ventilation bag blowing fresh air up to the work area. There the miner was responsible for setting up a secondary bag that would filter in fresh air to the work area throughout the day.

“Underground, it looked like fire ants – everybody working,” Diaz said. “We would take that [bag] everywhere with us in order to keep that fresh air.” When the bag turned black from diesel exhaust, they would change it out.

In addition to daily breathing in cancer-causing radon gas and its radioactive decay products, miners working in the vicinity of diesel powered equipment potentially were exposed to diesel exhaust and diesel particulate matter, classified in 2012 by the International Agency for Cancer Research as a known human carcinogen.

The miners used welloiled hydraulic tools to drill small diameter holes in which dynamite was placed in walls of rock to blast the ore into manageable pieces. “Oil and diesel fumes were constantly going through the work area,” Diaz said.

Then there was the blasting. They didn’t want to blow up anyone, he said, so the shift boss would make sure everybody was in the lunchroom before the dynamite was detonated. “You could hear a blast go off all over the mine,” which was hundreds of feet below ground surface.

After eating their way through a 30-minute lunch, the miners would return to their work areas. “Well, guess what’s up in the work area when we get there? Smoke from the blast. Dynamite smoke,” he said. “Sometimes that smoke would linger in the air for a long time. We were inhaling all these contaminants. We didn’t think nothing of it.”

Diaz now has respiratory issues.

Remedy needed

A class-action lawsuit, Begay v. United States, was filed by Stuart Udall in 1979 in federal district court in Arizona on behalf of a group of Navajo uranium miners. It took the court until July 1984 to decide that the United States was immune from being sued because it had not waived its sovereign immunity.

Although the judge wrote that the miners’ situation “cries for redress,” the court found that the government's actions were motivated by strong national security interests: “The government, in making its decision in this area, was faced with the immediate need of a constant, uninterrupted and reliable flow of great quantities of uranium … for urgent national security purposes and as an energy source in the future for the growing peacetime nuclear energy industry. . . . [T]he decision makers had to be concerned that there was adequate data available to justify the standards to be set and that labor and management would have the tools to know when they were in violation. … “The court is not clear, however, on why or how a standard for radon in the mines would have interrupted the flow of uranium, damaged national security interests, or interfered with the development of peaceful uses of nuclear energy. Ventilating the mines would have been relatively inexpensive, and it would have improved working conditions – this was demonstrated in PHS ventilation studies in 1951 – making it more rather than less attractive to a potential work force.”

The Public Health Service found that radiation exposure in some mines was “even higher than the doses received as a result of the atomic bomb explosion in Japan,” according to the Advisory Committee on Human Radiation Experiments.

The committee was created by President Bill Clinton in 1994 after it was discovered that the U.S. government had carried out radiation experiments on its own citizens.

Philip Harrison, a former miner and proponent of the Radiation Exposure Compensation Act [RECA], spoke to the Advisory Committee in 1995 on behalf of Navajo miners and their families. Harrison said that in New Mexico mines “the working conditions were sometimes unbearable. ... The government knew all along what the outcome would be and … initiated studies on the miners … without their knowledge and consent.”

The Begay lawsuit is one of many cases that gained the attention of the Advisory Committee during nearly 18 months of inquiry into the exposure of human beings to ionizing radiation at the height of the Cold War.

Among the issues examined were whether the U.S. government wronged or harmed uranium miners by exposing them to radiation hazards, failed to inform them about the risk, and failed to mitigate it.

The committee report, requested by the late Sen. John Glenn, D-Ohio, stated that in the case of the miners, the research was conducted despite data from prior European studies clearly indicating that uranium miners were at high risk for lung cancer.

Committee conclusions

The Advisory Committee determined in its final report that an insufficient effort was made by the federal government to mitigate the hazard to uranium miners through early ventilation of the mines, and that as a result, miners died.

It further concluded that there were no credible barriers to federal action.

“While national security clearly provided the context for uranium mining, our review of available records reveals no evidence that national security or related economic consideration were relied on by officials as a basis for not taking action to ventilate the mines,” the report states.

Since most of the mines were not ventilated, the federal government should at least have warned the miners of the risk of lung cancer they faced by working underground, the committee wrote. It also noted that the court in the Begay decision did not exaggerate when it called the abuse of these miners “a tragedy of the nuclear age.”

“According to the Begay decision, the United States did not recruit miners to work in the mines, nor did it cause the miners to be exposed to hazard or withhold treatment from any individual,” the Advisory Committee said.

But in the end, “without the federal government’s initiative and its role as sole purchaser, there would not have been an American uranium industry. Because the government played a pivotal role in putting the miners in harm’s way, it follows that the government has a moral obligation to ensure that the harm be controlled …” it wrote.

The Atomic Energy Commission, the federal government contractor and sole purchaser of uranium prior to 1971, interpreted the Atomic Energy Act as not providing it with authority over health and safety in the mines and did not seek clarification of its authority from Congress, according to the committee.

The Mine Enforcement and Safety Administration, in a 1977 committee report presented to the House of Representatives, indicated that 30 to 40 former uranium miners were contracting lung cancer each year from occupational exposure, and most of them died as a result.

The midnight hour

Because time was money, Diaz acknowledged that it wasn’t unheard of for miners to take occasional shortcuts, such as covering their mouths with handkerchiefs in their rush to start cleaning out the ore that had just been blasted.

“Well, guess what? There came a time they would put these little black chips in our hard hats [to detect exposure],” he said. “If you had high radiation exposure they would put you to work on the surface and continue to test you.” When the reading went down the miner was sent back underground.

“I remember many times my test was high to radiation exposure,” said Diaz, a post-1971 miner.

After his initial training, Diaz found himself being sought out for special assignments in areas of high radon.

“I remember the superintendent telling me, ‘Larry, we’ve got a special project for you. We need so many feet drilled. Can you do it? But you’ll have to come at graveyard because we don’t want OSHA or the state to catch you working.’

“What did I say? ‘Hell yeah! Let’s make that money.’ They would give me a special contract. I’m talking back in those days, in the ‘70s – $30 to $35 an hour. Who’s going to say no? I said, ‘Let’s do it.’” There were times Diaz worked a month or two to complete the special project, after which he would return to his regular stope. 'I think these [radon] chips were a joke,” he said.

Who’s responsible?

RECA, as passed in 1990, states that “radiation released in underground uranium mines that were providing uranium for the primary use and benefit of the nuclear weapons program of the United States Government exposed miners to large doses of radiation and other airborne hazards in the mine environment that together are presumed to have produced an increased incidence of lung cancer and respiratory diseases among these miners.”

In addition to apologizing to the uranium workers, onsite participants and individuals living downwind from atmospheric atomic testing, RECA states that “the United States should recognize and assume responsibility for the harm done to these individuals.”

That responsibility should include uranium workers after the federal government’s cutoff date of Dec. 31, 1971, according to researchers. The air and conditions in underground mines did not magically change on Jan. 1, 1972, simply because the Atomic Energy Commission had acquired a uranium stockpile sufficient to meet the government’s needs and cut off the flow of money to the extraction industry.

“Since 1990, additional scientific information has become available to support the view that radon exposure is responsible for a much higher proportion of the lung cancer cases among the miners than had been previously thought,” the Advisory Committee wrote.

It noted that the criteria for compensation for uranium workers were far more stringent than for atomic veterans and downwinders, despite the fact that the risks were far higher for the miners.

“The grave injustice that the government did to the uranium miners, by failing to take action to control the hazard and by failing to warn the miners of the hazard, should not be compounded by unreasonable barriers to receiving the compensation the miners deserve for the wrongs and harms inflicted upon them as they served their country,” the committee said.

Safety, exposure issues

A 2004 article published in the Journal of Health & Social Policy examined scientific evidence used for the passage of RECA and presented further evidence supporting the inclusion of post-1971 workers.

Gary E. Madsen, Ph.D, and Susan E. Dawson, Ph.D, professors at Utah State University, argued in their article that the post-1971 uranium workers should be included since the federal government did not develop more stringent standards as suggested by its own health and safety agencies. [Unfinished Business: Radiation Exposure Compensation Act (RECA) for Post-1971 U.S. Uranium Underground Miners] They also noted that as “clearly indicated” in a 1980 National Institute for Occupational Safety and Health report, “the actual exposure records on an individual level suffer from problems of validity and reliability.”

The Mine Enforcement and Safety Administration found that, in some cases, company exposure records reflected significantly lower exposures than federal records, possibly due to the large variability in the concentration of radon daughters during any one day. MESA also said the mechanics used by the mine operators to compute cumulative exposures were such that high radiation readings were seldom or never reflected in the records, according to the authors.

The late Margarito Martinez of Grants, president of the Oil, Chemical and Atomic Workers Union for 16 years, had another theory. He alleged the companies “cooked the books.”

Martinez received RECA benefits and felt strongly that post-1971 miners should be eligible for the same compensation. His son began working in the uranium mining industry in 1975 when the population of uranium workers in the Grants area was at an all-time high.

“The radiation exposure during the time he worked for the uranium mines was equal to that of the pre-1971 miners,” Martinez wrote in a September 2007 letter. “The uranium mines flourished until 1985. This time period left the post-1971 miners exposed to radiation for an additional 14 years, leaving these miners with the same radiation effects as the pre-1971 miners. This, as we know through years of study, has the same negative effects on the human body.”

Martinez alleged that during that time the industry was “very lax” when it came to worker safety. “Uranium miners were repeatedly ‘told’ to work without proper equipment or proper ventilation underground. The main goal was to produce the most uranium,” he said. “Safety of the uranium workers was never a concern.”

RECA in limbo

A highly publicized bill to amend RECA, sponsored by Sen. Josh Hawley, R-Mo., is being held up in the House after passing the Senate in July. It would extend the RECA Trust Fund and keep the program running another six years.

The price tag for Hawley’s bill, initially included as an amendment to the 2024 National Defense Authorization Act, was $147 billion. That was a little too rich for some congressional leaders and RECA was cut from the final bill.

“They’re still pulling numbers out of the air,” Linda Evers, co-founder of the Post’71 Uranium Workers Committee, said. “When you look at it [Hawley's bill] on Congress. gov there is zero cost attached to it.”

The amendment, as presented in the NDAA, would extend the geographic area covered to include claims relating to Manhattan Project waste from 21 ZIP Codes in Missouri – Hawley’s home state –14 in Tennessee, two in Alaska and three in Kentucky at a cost of $3.7 billion.

It would expand eligibility and increase benefit amounts for on-site participants and downwinders to $150,000 each ($143.4 billion). It also would include post-'71 uranium workers by extending benefits to people who worked in the industry before Dec. 31, 1990, rather than the current cutoff date of Dec. 31, 1971.

Tina Cordova, who heads up the Tularosa Basin Downwinders Consortium, stated in an email that the current estimate for Hawley’s bill is $50 billion. “The bill that preceded the current bill had health care coverage for the Downwinders and a timeframe of 20 years. That score was $150 billion. The current bill has no health care coverage and is for nine years,” she said.

During a May 4 meeting with the Southwest Uranium Miners Coalition Post ’71 organization at the Pueblo of Laguna, Cordova held up a pie chart produced by Nuclear Watch New Mexico. “When they tell you it's going to cost too much, pull this out and say, 'That is a lie,’” she said.

“We have spent $10 trillion on the nuclear program since its inception. We spend $50 billion every year in this country just maintaining our nuclear arsenal – putting our nukes to bed at night. They have spent $2.6 billion over 34 years on RECA. They would rather put nukes to bed than take care of us.”

Final countdown

During Saturday’s meeting of Post-’71 uranium workers at The Way, Truth & Life Ministries in Grants, Evers read a statement from Jennifer McCall, senior RECA paralegal to J. Keith Killian. The Grand Junction, Colo., law firm of Killian & Davis has been lobbying for amendments to RECA for approximately two decades.

“I wish we had better news regarding Senator Hawley's RECA amendments, but the U.S. House of Representatives has the amendments “held at the desk,” she said. “I know it sounds like a broken record, but now is the time for a push for the amendments in the House.”

She urged the audience to call a list of congressional contacts prepared by Evers. “Have everyone you know call, we need every voice to be heard. In particular, please call, email or text the Speaker of the House, Mike Johnson, and request that the amendments be brought to a vote. Senate Bill number 3853. Time is running out!” Johnson’s number is (202) 225-4000.

Two other legislations also propose RECA amendments, McCall said.

The Uranium Miners and Workers Act, introduced last May by Republican Rep. Harriet Hageman and Sen. Cynthia Lummis of Wyoming, would extend the cutoff period for worker eligibility from December 1971 to December 1978, encompassing post-'71 workers. It would add core drillers to the eligibility list, provide compensation for kidney cancers and other chronic kidney diseases, and extend RECA another four years.

“It does not include changes for downwind or onsite participants,” McCall said. “This bill would only apply to the workers.”

Additionally, the RECA Extension Act of 2024 was introduced in the Senate April 18 by Republican Senators Mike Lee and Mitt Romney of Utah. “Senate Bill 4175 would extend the current program by two years, with no changes to the law,” McCall said.

Without the extension, if the Hawley or Hageman amendments fail, the RECA program will die June 7. “With such a short time before the sunset date, please also support Senate Bill 4175 so the program does not end,” Mc-Call said.

Of the three bills, Evers said she would very much prefer Hawley's bill passes. “It covers everybody and everybody in it gets fairly compensated,” she said. “If we can't get Hawley's bill passed then we definitely need the Lee/Romney bill because we'll need the extension to continue the fight.”

Compensation shouldn't even be a discussion, according to Evers. “It should have been something that was justly done over 20 years ago because it's the right thing to do. They ignored the safety precautions, ignored worker safety, and contaminated and killed us – and they knew they were doing it. So there shouldn't be any conversation about why we need compensated. It's abundantly obvious.”