Advisor
U.S. Health Physicist
William J. Brady
Operation Castle
A Radiological Safety Nightmare.
Vol. 20 No. 4, 1999 NAAV, Atomic Veterans Newsletter
" William J. (Jay) Brady retired in 1991 as Principal Health Physicist of Reynolds Electrical & Engineering Co., Inc., prime support contractor to the Department of Energy and its predecessor from 1952 through 1955, after thirty-five years in radiological safety at the Nevada Test Site. "Rights are reserved by William J. Brady, former technical advisor of NAAV."
Section 111: OPERATION CASTLE
- A RADIOLOGICAL NIGHTMARE
Could Clarkson as a representative of the government be sued to obtain compensation for radiation injury? Yes, but not successfully. Congress had passed the Federal Tort Claims Act of 1946, which allowed suits against the govemment, with specified exceptions. The Supreme Court added another exception known as the Feres doctrine, or the doctrine of intramilitary immunity, which made the government immune from liability for injuries related to military service. The courts included radiation injury in the Feres doctrine in 1980.
Could the AEC and its successor agencies be sued? Again, yes, but not successfully. Civilian Nevada Test Site (NTS) workers and so-called "downwinders" living in fallout areas downwind from NTS have sued the Department of Energy claiming radiation injuries, but another exception in the Tort Claims Act has been used for legal defense, the discretionary function exception. This exception maintains the government can make its own policy decisions without question and the courts have decided this also applies to policy decisions regarding nuclear testing.
Both military veterans and civilians might sue the contractors to the AEC and its successors, who provide support operations for nuclear testing, and any other agents, such as consultants working for the government on nuclear testing. This possibility was avoided by Senator Warner, who attached an amendment to the defense appropriations bill in 1985 protecting contractors and agents from such lawsuits and treating them as part of the government agency they worked for.
Thus, it appears CASTLE and other nudear test series participants had no avenues available for obtaining radiation injury compensation, with the exception of compensation laws passed by Congress. After all, Congress provided a fund of $950,000 in 1964 to compensate Marshall Islanders exposed to high levels of radiation from BRAVO fallout. Since 1977, any native who needed thyroid surgery could receive up to $25,000 and relatives of any native who died of a radiogenic disease could receive up to $100,000. In 1983, an agreement between the U.S. and the Republic of the Marshall Islands provided a perpetual $150 million trust fund to compensate displaced and injured Marshallese. Lawsuits totaling almost six billion dollars were dropped as well as future claims against the U S.
The widow of the Japanese fisherman that died had received the meager amount of $2,778, in U.S. dollars, from the State Department and the U.S. gave the Japanese government two million dollars compensation for the contaminated tuna fish scandal. The remaining fishing boat crew members received only $151,000 of this, or an average of only $6,864, but more than twice what the widow received. The U.S. government did not admit to liability in these compensations, only moral responsibility. Then, why not compensate Amencan atomic veterans?
With intense lobbying by the National Association of Radiation Survivors, the National Association of Atomic Veterans, and the larger veterans organizations, Congress did intend compensation of atomic veterans, but has been frustrated by implementing government agencies and their contractors. The 1981 Veterans' Health Care, Training, and Small Business Loan Act promised atomic veterans medical care from the Veterans Administration (VA, later the Department of Veterans Affairs) if veterans could prove service connection of their illnesses. Very few could. Even scientists talk only of probability of causation. The Veterans' Dioxin and Radiation Exposure Compensations Act of 1984, P.L. 98-542 listed fifteen so-called radiogenic diseases to make proof easier, but required a dose of five rem to be awarded compensation. DNA and its dose reconstruction contractor provided dose information to the VA that seldom met the test.
Dose reconstruction contractor Science Applications International Corporation (SAIC) published internal dose screens with false parameters that effectively almost eliminated internal dose assignments for atomic veterans. This in turn kept atomic veterans from having recorded total external plus internal doses of five rem required by P.L.98-542. In most dose reconstruction cases, SAIC studiously decreased the assigned doses of atomic veterans, even though DNA and VA espoused the principle that veterans would be given the benefit of the doubt. When SAIC employees ran low on necessary dose reconstructions, where there were no recorded doses or those were missing, they attacked dose reconstructions already on record and lowered them. Their next targets were the film badge records themselves. Documents show it was the intent of SAIC to minimize doses of veterans who might claim compensation if given the benefit of the doubt, or even doses from reconstructions veterans had paid others to provide.
SAIC apparently acted on its own agenda with impunity because it had political connections through its board of directors straight to the Department of Defense. Because DNA answered to an undersecretary of defense while contracting to SAIC, a clear conflict of interest existed. In some cases, the Secretary of Defense, William Perry for example, or a nominee, Bobby Inman for example, were former members of SAIC's board of directors and one board member, Melvin Laird, was a former Secretary of Defense. A GAO auditor, rebuffed when he attempted to audit an SAIC contract with the Pentagon, was quoted in the newspapers as stating that it was difficult to distinguish between employees of SAIC and the Department of Defense. SAIC, a very large government contractor, was convicted of Federal felony fraud in 1992 regarding a contract with the Environmental Protection Agency, has performed questionably and been involved in lawsuits regarding other government contracts, but has remained unquestioned regarding its dose reconstruction contract with DNA.
In 1988, Congress passed the Radiation-exposed Veterans Compensation Act, P.L. 100-321, which is called the presumptive law because it is presumed an atomic veteran's radiogenic cancer was caused by his presence at a nuclear test, without Considering radiation dose. The law has a list of cancers different from the 98-542 list, and VA time constraints and other technicalities, make obtaining compensation difficult. For example, if a widow filed for compensation in 1978 and her husband died of a disease not on the 98-542 list but on the 100-321 list, she was not compensated until she filed again in 1988 after 100-321 was passed. If her husband died from a disease on the 98-542 list, but was not assigned the required five rem, she is not compensated until it is added to the 100-321 list, and even then is not compensated from the time she filed under 98-542. Such inequities have not been resolved, however strange it is that a cancer caused by radiation under one law is not under another. Some progress has been made in adding cancers to the lists. Claimants' still must compete with unlimited government legal resources to file claims and appeals in lengthy processes where death often occurs before claim resolution. Of more than 15,000 claims filed, benefits have been granted to less than 50 claimants under 98-542 and just over 400 claimants, about one-third of them widows, under 100-321. Was this extremely poor VA benefit award record and lack of compassion intended by congress?
[ED: final segment to appear in next issue.]
Vol. 20 No. 4, 1999 NAAV, Atomic Veterans Newsletter
William J. Brady
August, 1998
Scientific Advisor
National Association of Atomic Veterans