Environmental Defense Institute
News on Environmental Health and Safety Issues
 

March 2005 Volume 16 Number 2

Idaho Legislators Pass Downwinders Compensation Bill

The Idaho Legislature unanimously passed a non-binding "Memorial" bill that asks Congress and Idaho's Republican Congressional Delegation to include Idaho in the national Radiation Exposure Compensation Act (RECA). This action was a direct response to massive local outrage over the fact that regional public experience and government reports show Idaho counties received the highest doses of radioactive fallout from nuclear bomb detonations in Nevada over the last five decades. In contrast to recent Utah Legislature unanimous bill blocking any new nuclear weapons detonations, Idaho politicians remain relatively complacent.

Unfortunately, the Memorial bill only covers (admittably the most radiated) four Idaho counties - Blaine, Gem, Custer and Lemhi when all of Idaho received significant fallout in addition to western Montana and Wyoming.

If Congress approves expansion of RECA, these four Idaho counties are to be added to a list of 21 other counties in Arizona, Nevada and Utah already included in the 1990 Radiation Exposure Compensation Act. Another major shortcoming in the legislation is that only thyroid cancer is covered, contrary to downwinder demands that the nearly two-dozen radiogenic diseases, caused by exposure to radioactive fallout and identified by the National Cancer Institute be compensated.

Congressional approval of including even this limited Idaho downwinder compensation initiative is uncertain. Continued public pressure at the national level remains crucial.

In a 2/18/05 Idaho Downwinder letter to Idaho Legislators Senator Brad Little, Kathy Skippen, Carlos Bilbao, and Bruce Newcomb, the downwinders write:

"We are Idaho downwinders who firmly believe all Idaho downwinders deserve the same treatment as downwinders in other states who are already qualified for compensation under the Radiation Exposure Compensation Act (RECA). We want to express our strong support for the Idaho Legislature's House Joint Memorial No. 2 introduced last week by Rep. Skippen and others.

"We believe that, as has happened in the other states where atmospheric bomb testing created downwinders whose lives have been painful and tragic, a resolution by the state legislature will encourage the national delegation to press for revision of RECA to include Idahoans. Thus we earnestly hope the Idaho Joint Memorial passes unanimously.

"There are a few changes of wording that would make the resolution clearer and more specific. Please find enclosed the original resolution with our suggested wording. To summarize, here are the main points we are concerned:

1. Idahoans from all counties have been affected, and Idahoans from all counties should be compensated.

2. Downwinders in other states receive not only compassionate payments but free medical screenings for radiogenic diseases; Idaho downwinders deserve the same.

3. It is already clear that Idaho downwinders have suffered damages equal to or greater than those suffered by downwinders from other states; thus any further judgment by the National Academy of Sciences Board of Radiation Effects Research, while it may strengthen Idaho downwinders' position, should not be the determining factor regarding Idaho downwinder compensation. There is no reason to require Idahoans to meet a higher standard of eligibility than that applied to other downwinders.

4. While we appreciate the sympathy and promises of help from Idaho's national delegation, the delegation has yet to take any substantive steps; therefore we would like your resolution to encourage the delegation to take such steps in the future.

"We have been active on this issue since the summer of 2004 and are in contact with numerous other Idaho downwinders and activists with whom we have discussed these proposed changes." (1)

Idaho Downwinders Commentary

Valerie Brown, writer, researcher and Pocatello, Idaho Downwinder during the height of nuclear bomb detonations in Nevada and now living in Portland, OR, offers the following 2/12/05 comments.

Idaho downwinders of radioactive fallout from US nuclear bomb detonations of over 928 aboveground and underground (many of which released significant radiation into the atmosphere) tests at the Nevada Test Site during the past four decade period are working to get themselves covered by the Radiation Exposure Compensation Act (RECA), which already covers downwinders in certain counties of Utah, Arizona and Nevada. (2)

RECA awards one-time "compassionate compensation" of $50,000 to people (or their children or grandchildren) who can demonstrate that they were downwind of the NTS during the relevant period and have contracted any of 18 diseases recognized as radiogenic in the Act. A loose coalition of Idaho downwinders and activists is using various approaches to try to effect beneficial policy changes.

According to the 1997 National Cancer Institute report on I-131 exposure, Idaho received as much or more fallout from the NTS as most of the covered counties in other states. Four of the five counties receiving the highest doses are in Idaho. We are working to get the Idaho congressional delegation, and principally Idaho's senior senator, Larry Craig (R), to push an amendment to RECA through Congress.

We've had good press coverage. The New York Times Sarah Kershaw did a story last summer, and the Idaho Statesman in Boise has consistently covered downwinder events; see Dan Popkey 's columns in the Statesman for further information. The Emmett, Idaho Messenger-Index, which covers Gem County, one of the hardest-hit counties, has also run news and editorials advocating justice for downwinders. I have written two op-eds for the Messenger-Index. The Idaho State Journal in Pocatello and the Magic Valley Times in Twin Falls have also done significant coverage.

We have a long way to go. The delegation has dragged its feet since 1997, and most observers believe this is because the Idaho political establishment does not want to rock the boat with the Idaho National Laboratory, the Hanford-like site holding the Three Mile Island core, radioactive trash from Rocky Flats, and plenty of other hot materials in the lava desert about 60 miles north of Pocatello. INL pumps a lot of money into Idaho's economy and into the campaign coffers of its politicians.

Nonetheless, this has been a good week. Idaho state representative Kathy Skippen (R-Gem County) and a bipartisan panel of other legislators introduced a 'memorial' in the legislature expressing sympathy and solidarity with downwinders and encouraging the national delegation to get going on RECA amendment. This memorial is similar to one passed unanimously by the Utah legislature, which Utah downwinders credit with increasing the pressure on Utah Sen. Orrin Hatch to expand RECA.

The Idaho state epidemiologist has agreed to do a study of an MS cluster around Shoshone, which is a small town north of Twin Falls. Shoshone's population is 1,400. Twenty of its residents have officially been diagnosed with MS, and there are many other anecdotal reports. This development could be of great import to Hanford downwinders. I know of at least one native of the Kennewick area who has MS.

Idaho downwinders were also successful in getting the Board of Radiation Effects Research (BRER) of the National Academy of Sciences to hold a hearing in Boise on November 6, 2004. The BRER will issue recommendations on RECA expansion this spring. We don't expect the BRER to come out with anything but the same old story and say there's no reason to do further study, or to recommend an inadequate study that will show no association between radiation and a variety of diseases. However, the hearing was an incredible recitation of the diseases and suffering of hundreds of Idahoans, whose litany includes thyroid, breast, brain, pharyngeal, laryngeal, prostate, and numerous other cancers, non-Hodgkin's lymphoma, multiple myeloma, and various blood disorders including aplastic anemia, chronic lymphocytic leukemia, and others - not to mention various non-cancer thyroid problems, as well as MS and other autoimmune diseases. We hope to see more epidemiological work done to clarify the incidence of these diseases, as the Idaho Cancer Registry continues to emphasize that for most of them the incidence is not unexpected. But of course there's no real control group.

We continue to try to find more Idaho downwinders, so we would like to hear from anybody who grew up or lived in Idaho between 1950 and 1992 who have had any of the above-mentioned diseases or others that may be radiogenic. We're especially interested in family disease histories.

There have also been encouraging developments in Utah and Arizona, news of which is available at J. Preston Truman's website, www.downwinders.org (along with lots of Idaho information). I look forward to the day when downwinders from the entire West join together; Idaho downwinders are not quite ready, as most of us have just learned that we ARE downwinders. Although most of us also recognize that there are broader issues and many other victims of the nuclear energy and weapons establishment, for the time being we are focusing on RECA and the Idaho situation.

Downwinders ask for same settlement -
New rule changes standard
for cancer risk

Karen Dorn Steele, Staff writer for the Spokane, Washington Spokesman Review reports (January 13, 2005) the following commentary,
The federal government has recently changed its rules for compensating cancer-stricken nuclear workers, and the new standard of proof should also apply to others exposed to radiation from Hanford starting in the 1940s, attorneys for Hanford downwinders argued Wednesday in Spokane.

The U.S. Department of Energy's old rule barred sick workers from qualifying for a $150,000 compensation payment unless they could prove that they wouldn't have gotten cancer "but for" their on-the-job exposure.

Now, the Energy Department and the U.S. Department of Labor, which announced this week that it will take over the workers' compensation program, use a less stringent compensation standard -- that the radiation the workers were exposed to was a 'significant factor' in increasing their cancer risk.

"This whole field has evolved. Any radiation will create some risk to human cells," attorney Tom Foulds of Seattle told U.S. District Judge William F. Nielsen. "That is the burden of proof that should be used in the upcoming Hanford downwinders' trial that starts April 11," said Spokane attorney Dick Eymann after the hearing before Nielsen. Eymann will be the lead trial attorney in the case.

"Downwinders are entitled to the same standard. How can you have one standard for workers and a stricter one for the general public? It's inconsistent for the nuclear contractors to be arguing this because the government is indemnifying them," Eymann said.

Thousands of people exposed to emissions of radioactive iodine-131 from Hanford have sued the major Hanford contractors. Attorneys representing the contractors argued that a strict burden of proof should still be used to determine who stays in and who is eliminated from the big toxic tort case.

"If a lesser standard is used, we are going to be here for decades sorting through these cases," said Kevin Van Wart of Kirkland & Ellis of Chicago, lead attorney for the Hanford contractors, including General Electric and Dupont.

Van Wart also called for the burden of proof to focus on epidemiological studies and statistics to determine which plaintiffs "more likely than not" were harmed by Hanford emissions.

"This case turns on epidemiology. A slight increase in risk doesn't prove Hanford more likely than not caused their problem," Van Wart said.

"It's absurd to say the burden of proof should be limited to epidemiology, which focuses on population groups and not on individuals," said attorney Peter Nordberg of Philadelphia, arguing for the plaintiffs.

"There is no requirement in Washington law that requires the plaintiffs to use statistical or mathematical proof," Nordberg said. He called that approach "the wave of the past."

"Hanford studies that attempted to reconstruct the iodine-131 doses to exposed people who drank tainted milk were based on spotty data and unreliable memories of milk consumption, and the burden of proof should also include clinical information on individual plaintiffs," Nordberg said. Iodine-131 accumulates in the thyroid gland, where it can cause cancer or nodules.

It will be up to Nielsen to decide which standard of proof applies to the case. It was filed in 1991 by thousands of people who claim they developed thyroid cancer and other diseases after being exposed to radiation from Hanford's plutonium factories. Some of the burden of proof issues have already been heard by the 9th U.S. Circuit Court of Appeals, which in 2002 overruled a decision by U.S. District Judge Alan McDonald to disqualify hundreds of plaintiffs who couldn't prove they'd received a radiation dose that doubled their cancer risk.

McDonald recused himself from the complex case in 2003 after a dispute over an orchard he'd purchased at Ringold in one of the areas most heavily exposed to Hanford's radiation clouds. Nielsen took over the case last year.

Gwen Klein of Spokane, a plaintiff in the 14-year-old case, spent hours on Wednesday listening to the complex courtroom arguments. She grew up on a wheat farm in Dusty, Wash., and had thyroid disease as a child. Six years ago, the 53-year-old singer said she was diagnosed with thyroid cancer. "I've had a rollercoaster of symptoms, but I'm one of the lucky ones because I survived and I'm getting better. I was so discouraged by this case, but now I'm encouraged because it's getting a lot of attention again," Klein said.

She said her cousin Shannon Rhodes, who also grew up on a farm near Dusty, is one of the 11 "bellwether" cases scheduled for trial April 11. That trial is likely to determine the outcome of the case for over 2,000 other plaintiffs.

DOE Allows Robbing of Cleanup Funds

USDOE Office of Inspector General (IG) issued an Audit Report 5/20/03 titled "Idaho National Engineering and Environmental Laboratory's Strategic Initiative Fund." The auditors state: "We found that Bechtel BWXT Idaho, LLC (Bechtel) used the [Environmental Cleanup Management] Strategic Initiative Fund to supplement the Laboratory Directed Research and Development (LDRD) Program; pay for activities that should have been direct funded; and, pay for questionable activities such as advertising, marketing, and direct selling, that did not directly benefit the site's predominate [environmental management] activity, environmental cleanup efforts. Also the associated costs were not appropriately allocated to benefiting [sic] programs. Based on the amount [of funding] contributed and the benefits received ... [environmental management] EM spent about $4.6 million to, in essence, subsidize [nuclear energy] mission development activities for other INEEL program offices. We found similar results for FY-2001." (3)

Robert Alvarez, (4) a former Senior Advisor to three U.S. Energy Secretaries during the Clinton Administration and former aid to Senator John Glenn, D-Ohio, notes: "The IG report indicates that ~74% of EM's funds on Bechtel's 'Strategic Initiative Fund' went to illegally subsidize other DOE programs repeatedly.

"This appears to be a serious violation of the Anti-Deficiency Act, which bars an agency from spending and or diverting funds for purposes, which the Congress did not authorize. Such illegal forms of 'budget augmentation' are quite serious and can lead to criminal sanctions, (which have rarely been invoked).

"In the past, behavior like this resulted in a senior DOE and contractor officials losing their jobs. For instance in 1998, Terry Lash, Director of the Office of Nuclear Energy (NE) was fired after Congressional appropriators found that NE was diverting its Research & Development funds to NE's Russian nuclear safety efforts. In 1990, a DOE IG investigation found that DOE was taking funds from Defense Program (DP) projects at DOE's Savannah River Site to stem cost overruns associated with DP's Tritium Replacement Facility. This led to the firing of top contractor personnel and a front page story in the NY Times. In this case, the diversions are even more egregious because funds from separate DOE programs, as opposed to within a given program, were illegally diverted. Funds for separate DOE programs (EM, NE, NNSA etc) are supposed to have even greater 'fire-walls' than those within the programs, to prevent illegal diversion.

"I find it interesting that this report was the product of an audit rather than an investigation. Audits have far less weight and seriousness than investigations. An Investigation requires people to be put under oath, and criminal referrals are made. The DOE Inspector General's recommendation to fix this serious financial misconduct is inadequate. At the minimum, the IG should have recommended that DOE disallow all funds illegally diverted by Bechtel and to return them to the DOE. However, there hasn't been a single instance where DOE has disallowed costs at INEL.

"This is a clear indication of how the IG has been weakened within DOE and that Congress has failed to carry out its oversight responsibilities to ensure the IG is doing its job, laws aren't broken and the taxpayers' money isn't being illegally wasted. But, unfortunately, this is what happens when the Executive Branch and the Congress are at the bidding of corporations."

While more than three-quarters of the total INEEL Congressional funding is for environmental cleanup, only 17% was actually spent on cleanup. The DOE/IG auditors further note: "The lack of Department policy governing the establishment and use of mission development funds and activities was recognized in 2000, when Congress directed the Department to conduct a review of overhead expenditures at its sites, including INEEL. Among other things, the review highlighted $7.6 million of program/business development costs at INEEL as an area where spending guidance may be needed and where direct funding would improve accountability."

The IG auditors state that, "In our opinion, the $24 million spent on the Strategic Initiative Fund between FY 2000 and FY 2002 could have been used ... to meet [other] mission requirements. Also, some or all of the $24 million spent on fund activities appear questionable according to contract terms and Federal Acquisition Regulation. Finally, it appears that INEEL exceeded its Laboratory Directed Research and Development (LDRD) administrative limit of $23.5 million for FY 2001 and $21 million in FY 2002 by augmenting its LDRD funds with expenditures charged to the [cleanup] Strategic Initiative Fund.

"The Federal Acquisition Regulation (FAR) requires that any cost that can be identified specifically with a final cost objective shall be directly charged to that objective. We [the auditors] identified instances, however, in which the Strategic Initiative Fund paid for activities that, based on the work performed, directly benefitted a specific program or project" unrelated to cleanup. In short, this miss-appropriation of funding is illegal under FAR regulations and the federal government's "Cost Accounting Standards." [emphasis added] (5)

David McCoy's analysis of this IG Audit notes; "DOE must account for the inappropriate shift in Environmental Management cleanup funds to [Research and Development] R & D activities for the numerous projects slated for INEEL. DOE allowed money for environmental cleanup to be robbed for nuclear development. For example, 'INEEL paid $755,000 for 'road-mapping' of a Nuclear Energy project from the Strategic Initiative Fund in FYs 2001 and 2002.' In 2003, The DOE Inspector General announced an audit would be performed to determine whether 'Environmental Management (EM) is funding research and development activities at the INEEL that do not contribute to EM's mission of reducing risk and accelerating cleanup funding for mission development activities at INEEL.' " (6)

McCoy's analysis further reveals that " Under the Purpose Statute and Anti Deficiency Act (31 USC 1301 and 1341), the DOE is prohibited from using funds appropriated for purposes other than what the funds had been appropriated for. Such misappropriation constitutes grounds for a criminal investigation and indictment by the US Attorney General. DOE should be required to halt work, terminate contracts, and freeze spending or programs which resulted from this misappropriation of tens of millions of dollars."

McCoy continues; "The May 2003 DOE Inspector General Audit of the Strategic Funding Initiative was not readily available so I had to call the DOE IG's office directly to obtain the actual audit that linked up with the code (A031D030) which was for the proposed audit. It shows DOE has been misappropriating funds for environmental cleanup to use for nuclear energy development. In earlier documents I claimed that the INL 'Mission Change' was a major commitment of federal funds for nuclear development without the performance of an Environmental Impact Statement or Assessment.

"Well, here is the smoking gun- funds taken out of the $25 million dollars of misappropriated funds. While DOE was supposed to be cleaning up the INL they were busy ripping off the funds for more projects. No wonder we are now getting their accelerated 'quick and dirty' cleanup." (7)

Radiation study set up
as defense,
records show it was supposed to be neutral probe into Hanford's
effects on public

Karen Dorn Steele, Staff writer and consummate investigative reporter for nearly two decades on Hanford environmental health and safety issues for Spokane, WA Spokesman Review wrote on February 13, 2005 the following commentary.
A $27 million Hanford study that was the first to estimate radiation doses to the public from a U.S. weapons complex was touted as unbiased and scientifically neutral when it got under way in 1988.

But documents recently obtained for a federal trial show the Hanford Environmental Dose Reconstruction study was actually set up at least in part to defend the government against lawsuits by exposed people.

The records were obtained by lawyers for more than 2,000 people who sued Hanford contractors starting in 1990 over their exposure to radioactive iodine-131 releases during World War II and the Cold War. The first phase of their trial starts April 11 in Spokane. The documents, part of the massive Hanford Nuclear Reservation downwinders' case file, show significant conflicts of interest in the taxpayer-funded dose reconstruction study. They show that:

After the secret Hanford releases were finally made public in 1986, the U.S. Department of Justice opposed a dose study as useless "public relations" - but changed its mind as soon as the first lawsuit for radiation damages was filed.

The Energy Department and the Justice Department set up the study in 1988 to provide "litigation defense" to fight claims by exposed people, according to a highly placed government attorney.

Some of the Battelle Pacific Northwest Laboratories staff in Richland who worked on the study also worked for the Justice Department and for Kirkland & Ellis, the Chicago law firm hired to defend Hanford contractors against radiation injury claims.

Battelle changed its conflict-of-interest policy in 1992 to prohibit HEDR staff from also working for lawyers defending the government. But Battelle's chief records manager continued to work both for the study and for the government's litigation defense team.

The documents provide "startling evidence" that the study was shaped to "support the litigation positions that the government and Hanford defendants anticipated," including choosing radiation dose estimates that minimize the estimated radiation exposures, Seattle lawyer Tom Foulds said in a court motion.

Kevin Van Wart, of Kirkland & Ellis in Chicago, lead attorney for the Hanford contractors, denied that HEDR was set up to favor the defense. Plaintiffs' lawyers also wanted a dose reconstruction study in the 1980s as a guide to future litigation, he said.

"It's absurd. This is all smoke. At trial, each side is going to present their own best estimates of the doses the plaintiffs received," Van Wart said.

Thyroid study criticized

The HEDR radiation dose estimates, compiled in a complex computer program, were also used by a second group of scientists at the Fred Hutchinson Cancer Research Center in Seattle for the $21 million Hanford Thyroid Disease Study, an epidemiological study that explored the possibility of a link between the Hanford releases and thyroid disease in 3,440 people exposed as children. In 1999, that study concluded it could find no link between Hanford's radiation clouds and excess thyroid death and disease downwind. But if the HEDR "source code" - radiation data fed into a computer program to determine estimated doses - were skewed or inaccurate, that would affect the outcome of the Hanford thyroid study, which stands as an anomaly among other studies in the Marshall Islands and Ukraine that show clear associations between iodine-131 exposures and an increase in thyroid cancers and disease at higher doses.

The National Academy of Sciences has criticized the thyroid study for its weak statistical power - its ability to detect a radiation effect.

Die was cast in 1986

Lawyers for the downwinders will critique the two Hanford studies at the April trial, while the defense will present them as sound science. The HEDR study has long been suspect, said Bob Alvarez, a prominent nuclear critic and former aide to Sen. John Glenn, D-Ohio. Alvarez served in the Clinton administration as deputy assistant secretary for planning and security at the Energy Department.

Washington and Oregon pressed for a dose study totally independent of the Energy Department after documents released in March 1986 showed massive clouds of radioactive iodine-131 escaped from Hanford in the 1940s and early '50s during the production of plutonium for nuclear bombs. The states lost that battle because the Energy Department refused to pay for an independent study, Alvarez said. "The die was cast in 1986 when DOE bestowed on Battelle the responsibility for dose reconstruction at Hanford. The primary motivation was to stave off liability associated with these large releases," Alvarez said.

Lawyers representing thousands of Hanford downwinders were barred by the case's previous judge, U.S. District Judge Alan McDonald, from pursuing any discovery about HEDR until the mid-1990s in a "hands off" order that allowed the scientists to finish their work without interruption. The study was finished in 1994.

Meanwhile, the Energy Department was portraying the study as independent and unbiased. The HEDR study "will answer the questions of Northwest citizens regarding the facts of Hanford's past operations with hard, scientific evidence that has been fully and completely reviewed by independent, outside experts," DOE said in a Jan. 27, 1988, press release.

After the study was finished, plaintiffs' lawyers encountered resistance to their renewed records requests. The Energy Department claimed "privilege" over 16 of the documents requested, but eventually released 14 of them.

The lawyers also learned they'd been denied 18 boxes of other HEDR project records that Battelle had designated as "non-records." Many of the "non-records" were from the files of project manager Dilbert "Dil" Shipler and Shirley Gydesen, Battelle's information resources task leader. Those records show that litigation defense was central to the government's plans for the Hanford study. In May 1986, when the Justice Department was first considering such a study, Avrum Fingeret, DOE's assistant general counsel in Washington, D.C., requested a meeting in the Pacific Northwest.

"I believe that it is essential that Battelle be present so the litigation elements can be considered and worked into the study at its inception," Fingeret said in a letter to Energy Department deputy litigation counsel Henry A. Gill Jr.

In another memo to Gill a year later, Fingeret said Justice initially opposed a dose study but changed its mind - after a Colville Confederated Tribes member filed suit for radiation damages.

"Indeed, DOJ now considers the study as coming within the definition of 'reasonable' litigation support," Fingeret said. In a planning memo for a June 17, 1987, meeting with Battelle, Fingeret said the Justice Department wanted input into the study "to support the ongoing and anticipated litigation involving alleged injuries from emissions."

Defense lawyers hired HEDR workers

Two people working for HEDR, Walt Haerer and documents expert Shirley Gydesen, also worked for the defense lawyers, the records show. Haerer, Battelle's former environmental monitoring manager, ran HEDR from 1988 until his retirement in 1990. When he left Battelle, he went to Halliburton NUS Environmental Co. in 1991 and then to Golder Associates, where he continued to work as a consultant to Battelle on HEDR's iodine-131 computer code. At the same time, he was a consultant to the Justice Department and Kirkland & Ellis. Haerer had a limited role with the law firm, Van Wart said. "We hired him to get up to speed on the (HEDR) project," he added.

Haerer met with David Bernick of Kirkland & Ellis and called Battelle on behalf of the law firm to discuss the iodine-131 computer code on several occasions in 1991. Bernick, who also represents W.R. Grace in its Chapter 11 bankruptcy and Big Tobacco in recent national litigation, said he still has some involvement in the Hanford case. He said his 1991 meetings were to collect historical documents about Hanford operations - not to influence the iodine-131 source code that Haerer was working on. "I'm not aware that anything was ever done to compromise the HEDR study," Bernick said.

By May 1991, the frequent contacts between the HEDR managers and the defense lawyers had ruffled some feathers at Hanford. Meeting notes that month refer to a query about Gydesen working for the defense lawyers. "Wrong - improper - looks bad - Shirley working for lawyers," the notes say.

John Till, a South Carolina scientist appointed to lead the project's Technical Steering Panel, also called about the controversy, the meeting notes show. "Policy - no HEDR staff to work on litigation," the notes say.

In a recent deposition for the downwinders' trial, Till said he wasn't aware that some Battelle staff had dual roles, and he defended the independence of his project steering panel.

Till has been hired as an expert witness for the defense in the upcoming trial. "I'd prefer not to comment on this," Till said last week when contacted.

New guidelines created

As a result of the controversy, HEDR's project management plan was revised in 1992. HEDR staff was directed to follow new guidelines about ongoing lawsuits to "preclude misunderstandings or conflicts of interest and maintain public confidence," the plan says.

However, Gydesen continued to serve a dual role. In 1993, according to her signed job description, Gydesen's goals were to provide documents to Till's panel and the public "to ensure public credibility." Her other job: "Through a contract with Golder or through other approved methods, provide historical information essential to the U.S. Department of Justice and other litigation teams, in their preparation of defense to the numerous cases filed against the DOE, duPont and General Electric Company and other named Hanford contractors. Develop unique approaches to these legal information requirements through your in-depth knowledge of the materials."

Now retired in the Tri-Cities, Gydesen said she left Battelle in 1992 but continued to work part time on document retrieval. She said she provided documents to Kirkland & Ellis "if requested." "But they got nothing from me but publicly available documents," Gydesen said.

Haerer's resume mentions his work for HEDR, but not his consultation for the Hanford defense. But in a deposition taken by Seattle attorney Foulds on Jan. 28 in Spokane, Haerer admitted his dual role. Now semi-retired and living in Spokane, Haerer didn't return a reporter's phone calls last week. Randy Squires, of Seattle, a Hanford defense attorney who represented Haerer at the recent deposition, refused to let him answer questions about his meetings with the defense lawyers, saying those conversations are privileged.

Foulds asked Haerer whether Shipler, the HEDR manager he reported to at Battelle, knew he was working both for HEDR and for Kirkland & Ellis. "Yes", Haerer said.

Shipler, reached Thursday on Kauai, said he didn't remember Haerer's dual role as a consultant. "I'm not aware of any conflict of interest," Shipler said.

While Battelle was working on the $27 million HEDR project, the company was doing $7 billion to $8 billion in other business worldwide, said company spokesman Geoff Harvey. "For us to jeopardize our credibility by marginalizing the science, it just wouldn't happen," Harvey said.

The credibility of the Hanford study will be a central focus in the upcoming downwinders' trial. During the trial of seven "bellwether" cases, the plaintiffs' lawyers will submit their own version of dose reconstruction. Some of their experts argue that the Hanford iodine-131 doses - especially in outlying areas like Spokane - could have been up to 12 times higher than the HEDR estimates.

U.S. District Court Judge William Fremming Nielsen, who took over the case in 2003, ruled last week that the plaintiffs can present their alternative dose reconstruction analysis. Lawyers for the contractors had argued the analysis should be rejected. Hearings over which scientific experts will be allowed to present evidence to the jury continue Tuesday in Nielsen's courtroom in Spokane.

Karen Dorn Steele, in 1986, compiled one of the first comprehensive Freedom of Information Act requests related to Hanford radioactive emission documents that was submitted by the Spokesman Review. Her subsequent reporting, using the FOIA documents and extensive downwinder interviews, was the first to reveal, in the regional media, the massive Hanford releases and the tragic impact on those living in Hanford's shadow. Steele is generally considered the most knowledgeable journalist on Hanford issues and continues to report extensively of the impact on radioactive fallout from the nuclear bomb detonations at the Nevada Test Site.

Update on High-Level Radioactive Waste Litigation

The Natural Resources Defense Council (NRDC), along with Yakama and Shoshone Bannock Native American Tribes and several public interest groups, filed in 2001 a major litigation case against the Department of Energy (DOE) challenging the Department's reclassifying formerly high-level radioactive waste as "incidental" and non-high-level waste. Initially, the U.S. District Court for the District of Idaho ruled in favor of NRDC. DOE then appealed to the U.S. Ninth Circuit Court of Appeals.

"The [US] court of appeals reversed a judgment of the [Idaho US] district court. The appeals court found that a case was not ripe to determine whether the Nuclear Waste Policy Act (NWPA) applies to the United States Department of Energy's (DOE) defense waste disposal decision.

"Appellees including the Natural Resources Defense Council (NRDC) brought suit in district court to obtain a declaration that DOE Order 435.1 - which provided a process for determining whether certain radioactive waste streams were waste incidental to reprocessing that were not considered high-level waste - was at least partially invalid. The district court granted summary judgment in favor of NRDC concluding the there was no reason to wait until DOE actually applied the Order and its contemplated processes to some particular situation existing at some particular site, in so doing, had actually come into conflict with NWPA." DOE appealed the District Court ruling.

The final Ninth Circuit Court of Appeals ruling states: "We then determined that we did not have jurisdiction, and transferred the petition together with all issues of standing, ripeness, and of course, the merits to the district court [id. at 747-18] The district court determined that the case was ripe and decide the merits against DOE. We do not agree with the ripeness determination and, therefore, vacate the district court's judgment and remand with directions to dismiss." (8)

The public can be justifiably outraged when DOE is spending tens of millions of taxpayer money in these extensive legal attempts to obfuscate its statutory and regulatory obligations to cleanup its monumental mess that continues to threaten current and future generations as waste continues to contaminate groundwater, and at the same time (see previous article above) shifting funding away from cleanup!

Risks and Alternatives of New Plutonium Production Must be Fully Analyzed

DOE's new Plutonium Production Environmental Impact Statement must fully disclose the relative risks related to plutonium-238 production as well as the ultimate use this plutonium will be put to in the space nuclear power programs. Included also should be the accident scenarios related to plutonium dispersion when these units reenter the Earth. To date, three out of the twenty-six U.S. space missions involving nuclear material have ended in mishaps which is a 12% failure rate.

Karl Grossman writes: "Further, the plutonium used in space devices - Plutonium-238 - is 280 times more radioactive than Plutonium-239, the plutonium used as fuel in atomic bombs and built up as a by-product in the operation of nuclear power plants. Plutonium-238 does not fission (split in a nuclear reaction) like plutonium-239. It has a far shorter 'half-life' (the period in which half of its radioactivity is expended) of 87.8 years - compared to 24,500 years for plutonium-239. This more rapid decay is what causes plutonium-238 to be 280 times more radioactive than plutonium-239 - and also to produce considerable heat as it breaks down. When nuclear scientists looked for uses for plutonium in addition to fuel in atomic weapons, they saw plutonium-238 and the heat it produces is a source of electrical power. The concept: translate the heat of plutonium-238 into electricity. The downside: this quick decay and 280 times the radioactivity make plutonium-238 an even more intensely toxic nuclear poison.

"But just how likely is such an accident? To date, three out of the twenty-six U.S. missions involving nuclear material have ended in mishaps. The most serious U.S. accident happened on April 21, 1964, when a U.S. navigational satellite, Transit 5BN-3, powered by an [INEEL] SNAP-9A plutonium-fueled [2.1 pounds] radioisotope thermoelectric generator (RTG), failed to achieve orbit and fell from the sky, disintegrating as it burned up in the atmosphere."

"As a result of this major accident that spread plutonium in the atmosphere, NASA used solar panels to power satellites. NASA is now back to nuclear power despite the tragic history that presumably the agency is hoping the public has forgotten.

"Of special interest - and concern - in Europe was the way the U.S. has limited its financial liability in the event of an accident involving one of its nuclear space systems. In 1991, NASA and the DOE entered into a 'Space Nuclear Power Agreement' to cover U.S. space nuclear activities under the Price-Anderson Act. That law, passed in 1957, supposedly on a temporary basis to spur the development of commercial nuclear power in the U.S., limits liability for property damage, illnesses or death caused by a nuclear accident. The liability limit was raised amid the controversies through the decades as the Price-Anderson Act was renewed, three times so far. It is currently $8.9 billion, still a fraction of what a Chernobyl-level nuclear plant accident, or worse is projected by the U.S. Nuclear Regulatory Commission as causing in damage. But that's only for damage within the U.S. The limit for all damages to other countries and their people was set at $100 million in 1962 - and remains unchanged." (9)

DOE must present accident scenarios related to both launch and reentry of these RTG's as well as viable alternatives such as previously developed NASA solar power for its space nuclear radioisotope thermoelectric generator (RTG) program into the new EIS.

Website Endnotes:

1. 1 Tona Henderson,Valerie Brown, David Vahlberg, Dr. Peter Rickards DPM, Preston Truman, and Chuck Broscious, Letter to Idaho Senator Little, 2/18/05

2. 2 Estimated Exposures and Thyroid Doses Received by the American Public from Iodine-131 in Fallout Following Nevada Atmospheric Nuclear Bomb Tests, A Report by the National Cancer Institute, October 1997, page 2.8 documents 119 aboveground (1951-1958) and the 809 underground, many of which released significant radiation into the atmosphere (1961-1992). It must be noted that Department of Energy released previously classified documents on a significant number of secret nuclear detonations that were not included in the NCI exposure analysis. For more information see EDI's website.

3. 3 US Department of Energy, Office of Inspector General, Office of Audit Services, Audit Report May 2003, "Idaho National Engineering and Environmental Laboratory's Strategic Initiative Fund," DOE/IG-0601, May 2003. http://www.ig.doe.gov/pdf/ig-0601.pdf

4. 4 Robert Alvarez is currently Senior Scholar at the Institute for Policy Studies, and Board member at the Environmental Defense Institute.

5. 5 DOE/IG-0601, pages 5 and 6.

6. 6 DOE's shifting funding is NOT new but a continuation of past transgressions. A detailed DOE budget analysis for FY-92 by Heart of America Northwest in The Dirt in the USDOE's Nuclear Waste Clean-up Budget. INEEL's "clean-up" construction projects supporting defense production missions for FY-92 is $12,995,000; and $91,600,000 over the complete multi-year construction schedules. [Dirt @ 33]

7. 7 David McCoy email to EDI January 11, 2005, and February 20, 2005

8. 8 In the United States Court of Appeals for the Ninth Circuit, Natural Resources Defense Council, et al., v. Spencer Abraham, Secretary; Department of Energy, No. 03-35711, Petition for Panel Rehearing.

9. 9 Grossman, Karl, The Wrong Stuff, pages 14, 17-18 and page 198, citing "Memorandum of Understanding between Department of Energy and the National Aeronautics and Space Administration Concerning Radioisotope Power Systems for Space Missions" signed July 26,1991, by then NASA Administrator Richard Truly and former DOE Secretary James Wakins.