“The Cold War Compensation Act” is the first federal workers’ compensation program to be implemented in the last twenty years. The benefit program that will be offered to beryllium workers amounts to a federal bailout of a monopolistic private industry that has hidden behind the cloak of national security and has endangered the lives of workers, their household contacts and innocent bystanders.
Beryllium is a rare, lightweight metal that was discovered in 1798. It is the 32nd most abundant element and makes up approximately 0.005 percent of the earth’s crust. Most of the world’s beryllium is mined in African and South American countries. The United States is the world’s largest consumer. The metal is stronger than steel and lighter than aluminum and has been a critical component of the U.S. nuclear arsenal since the dawn of the atomic age. It is also used in products which range from sporting goods to dental alloys.
Inhalation of the microscopic metal particles into the lungs as very small concentrations of beryllium dust or fumes can result in a myriad of serious, latent, progressive and critical health conditions such as beryllium sensitization, chronic beryllium disease (CBD), skin disease and cancer. These conditions are treatable but not curable. The symptoms may occur from 30 days to 30 years after exposure. CBD develops in workers who have been sensitized to beryllium, and may occur at any time during or following exposure. It has been recognized that between 2% and 17% of workers exposed to beryllium dust develop the allergic sensitization. Beryllium sensitization may be detected by a beryllium lymphocyte proliferation blood test (BeLPT). Common symptoms of CBD are cough, shortness of breath, fatigue, weight loss, loss of appetite, fever or night sweats. Acute beryllium disease (ABD) results in symptoms similar to pneumonia or bronchitis.The International Agency for Research on Cancer (IARC) of the World Health Organization has concluded that beryllium can cause cancer in humans.
In his farewell address to America in 1961, President Eisenhower’s warning against the economic and political alliance of the vast “military industrial complex” was a forecast of the dangers to workers in the years ahead. During the 1940’s and throughout the cold war, the beryllium business became a vital part of the American economy. In order to produce and maintain its nuclear arsenal, the US ended up supporting the exclusive production of beryllium by Brush Wellman, Inc. Since 1949 it has been estimated that the US government purchased $1 billion dollars worth of beryllium for its nuclear weapons and weapons-related programs involving more than 600,000 workers. In order to maintain an accessible supply of this metal, government and industry allegedly made secret deals to prohibit enactment and enforcement of strict OSHA guidelines which would have reduced exposure and resulting disease.
As workers fell ill, State workers’ compensation programs became an ineffective remedy for the injured employees. A few jurisdictions recognized the disease as compensable. Biglioli v Durotest Corporation, 26 N.J. 33, 138 A.2d 529 (N.J. 1958). Some compensation claims were barred by the statute of limitations, others offered minimal benefits due to low wages which set reduced benefit rates; delays in receiving emergent medical care also made prosecution a futile effort. State v. Lemke v. Brush Wellman, Inc., 84 Ohio St.3d 161, 702 N.E.2d 420 (Ohio 1998), Dean v. Atlantic Research Corporation, 1997 WL 221553 (Va. App. 1997). Civilians who were employed by Federal agencies were met with a strict defense of the denial of causation and were additionally hindered by the Federal government’s classification of documents under the veil of national security, making the proof of exposure impossible.
Litigants began to look for alternate means of recovery against the nuclear contractors who produced and used beryllium. Class action lawsuits were filed on behalf of the former workers. Pohl v. NGK Metal Corporation, et al, 117 F. Supp.2d 474 (E.D. Penn. 2000) and Levell v. Monsanto Research Corp., 191 F.R.D. 543 (S.D. Ohio 2000). Employees also attempted to challenge the “exclusivity rule” and sue the employer under the theory of an intentional tort. Kane v. Durotest Corporation, 37 N.J. 552, 182 A.2d 559 (N.J. 1962), Norgard v. Brush Wellman, Inc., 2000 WL 1715025 (Ohio App. 8 Dist. 2000). There was also an ill-fated attempt to hold the US government vicariously liable. Dyer v. United States, 96 F. Supp.2d 725 (E.D. Tenn. 2000).
During the 1990’s the plight of the beryllium workers and the litigation threat to the industry began to glow in the spotlight of public attention. The National Institute for Occupational Safety and Health (NIOSH) issued a report to Congress in September, 1995 which not only recognized beryllium as an identified hazard to employees but also identified incidents of workers’ home contamination. In March of 1999 The Toledo Blade published a 3 part, Pulitzer Prize series, “Deadly Alliance: How the government chose weapons over workers.” In September 1999, the issue was highlighted again when the Occupational Safety and Health Administration (OSHA) issued an Alert to workers exposed to beryllium.
Finally, Federal policy changed. In April, 2000 Secretary of Energy, Bill Richardson, announced that the Clinton/Gore Administration would reverse its past policy of denial of liability to the injured beryllium workers and endorsed the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) (P.L.106-398) which was enacted into law in October, 2000 with strong bipartisan support. EEOICPA establishes a program to provide compensation to employees of the Department of Energy (DOE), its contractors and subcontractors, companies that provided beryllium to DOE, and atomic weapons employers. An atomic weapons employer is defined by EEOICPA as a private company which processed material that emitted radiation and was used in the production of atomic weapons.
President Clinton issued an Executive Order on December 7, 2000 recognizing that existing workers’ compensation programs have failed to provide for the needs of the injured beryllium workers and their families. The President stated that this serious problem was complicated by the fact that the DOE and its predecessors encouraged and assisted the DOE contractors in opposing the claims of workers who sought benefits.
The President directed the Federal government to assist workers in obtaining benefits by providing all pertinent and available information necessary for evaluating and processing the claims. Clinton ordered that this was to be accomplished in a manner that would ease the administrative burden upon the injured workers and their survivors, respecting their dignity and privacy.
In January 2001, the Clinton administration proposed amendments to EEOICPA which would permit the injured workers to elect a lump sum benefit in the amount of $150,000.00 as provided in the current law or compensation for lost wages provided for by the new legislation. The concept of compensation for lost wages is a traditional remedy for workers’ compensation under both Federal and State systems. The payment of medical expenses is provided for under both the current legislation and the new proposals.
The President established an Interagency Working Group composed of representatives from the Office of Management and Budget, The National Economic Council, and the Departments of Labor, Energy, Health and Human Services, and Justice. The Secretary of Labor will have primary responsibility for administering the program and developing the necessary paper and electronic forms to process claims. The Secretary of Health and Human Services will promulgate regulations no later than May 31, 2001 to establish guidelines to determine whether a cancer is causally related to an exposure and to establish a method to estimate radiation doses. The Secretary of Energy and the Advisory Board on Radiation and Worker Health will provide technical assistance and information to assist in identifying and notifying potentially eligible individuals of the availability of compensation benefits. The Department of Energy has already reviewed its records for the past 60 years and has published a list of 317 sites that employed in excess of half a million people in 37 states, the District of Columbia, Puerto Rico and the Marshall Islands. The Attorney General has been charged with the responsibility of developing procedures to notify potential claimants. An Advisory Board on Radiation and Worker Health composed of 20 members who are representative of the scientific and medical communities will assist the Secretary of Health and Human Services in establishing further guidelines.
While the Federal government has recognized the need for a fair and timely compensation program for the energy workers who have sacrificed their health to build the nation’s nuclear defenses, the issue remains whether the program will be administered in a remedial fashion and whether it is simply 40 years too late. Does EEOICPA and the proposals that followed merely shift responsibility from the private sector to government at the expense of the lives of this country’s energy workers who helped win the cold war but who may never enjoy the peace that followed?
Bj Jon L. Gelman, Attorney at Law
Cite: 163 N.J.L.J.844 (February 26, 2001)