Albert0 Gonzales

Attorney General of the United States

United States Department of Justice

Room 4400

Washington, DC 20530

Dear Mr. Attorney General:

We are writing to recommend that the Office of Legal Counsel (OLC) withhold issuance of any

written legal opinions regarding the feasibility of estimating radiation dose under the Energy

Employees Occupational Illness Compensation Program Act (EEOICPA) where it involves

classified information, until the full ramifications of such an opinion are explored. We

understand that OLC has instructed the Secretary of Health and Human Services (HHS) to refrain

from determining that, in the context of a Special Exposure Cohort (SEC) petition, it is not

feasible to estimate dose with sufficient accuracy because information is classified.

Due process and transparency are matters of significant sensitivity. It is well documented that

defense nuclear workers were often put in harm’s way without their knowledge or consent. The

government used the guise of state secrets on nuclear weapons production activities to withhold

information needed by workers to secure workers’ compensation claims, to thwart demands for

hazard duty pay and to avoid adverse publicity and embarrassment.

For example, a 1947 memo from the AEC Director of Oak Ridge operations to the AEC General

Manager stated:

Papers referring to levels of soil and water contamination surrounding Atomic

Energy Commission installations, idle speculation on future genetic effects of

radiation and papers dealing with potential process hazards to employees are

definitely prejudicial to the best interests of the government. Every such release is

reflected in an increase in insurance claims, increased difficulty in labor relations

and adverse public sentiment.

9,2005

The Honorable 

HOLLEN. Maryland

June 

SMITH, Washington

CHRIS VAN 

ADAM

SANCHEZ, California

California

LINDA T. 

AOAM 8. SCHIFF, 

Nm York

Florid,

ANTHONY 0. WEINER, 

ROBERT WEXLER,

WILLlAM D. GELAHUNT. M.ss.chuee,,n MARTIN T. MEE”AN, M....chu,etta

C.lifomi. Tex,,

MAXINE WATERS, 

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SHEILA JACKSON LEE. 

ZOE LOFGREN. 

WATT. Nor,h Carolina

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MELVIN L. 

ROBERT C. SCO?T,

JERROLG N-R, New York

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Miii~an

RANKING MINORITY MEMBER

HOWARD L BERMAN, California

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JOHN CONMRS, JR., 

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MIKE PENCE, Indiana

J. RANDY FORBES. Virginia

STEVE KING, 

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RIC KELLER, Florid,

DARRELL 

HOSTETTLER, Indiana

MARK GREEN, 

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BOB INGLIS. South 

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BOB GOOGLATI’E.

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HENRY J. HYDE, 

F. JAMES SENSENSRENNER. JR., 
Alamos workers’ blood because it fell within the field of “open

research.” The AEC Insurance Branch called for “very careful study” before making the report

public:

We can see the possibility of a shattering effect on the morale of the employees if

they become aware that there was substantial reasons to question the standards of

safety under which they are working. In the hands of labor unions the results of

this study would add substance to demands for extra hazardous pay knowledge of

the results of this study might increase the number of claims of occupational

injury due to radiation and place a powerful weapon in the hands of a plaintiff’s

attorney.

A March 11, 1960, memo by AEC biomedical officials stated “possibly 300 people at Paducah

should be checked out” for neptunium-237 contamination, but noted that there was hesitation to

“proceed to intensive studies because of the union’s use of this as an excuse for hazard pay.”

This policy persisted through the Cold War. At the time EEOICPA was enacted, the Secretary

of Energy admitted that claims for occupational illness were routinely challenged by Energy and

its contractors-without regard to merit.

Because official secrecy was used to withhold the truth about the dangers to workers’ well being

at government atomic facilities, transparency and due process for claimants is a necessary

component of any adjudication under this program. Congress created an Advisory Board which

operates in the sunshine to oversee the work of government scientists who are conducting

radiation dose reconstruction for compensation decisions, as a way to facilitate transparency.

Congress created a non adversarial adjudication process to ensure that information would be

shared more freely than in a traditional adversarial proceeding.

declasstjication.

In 1948, the AEC Declassification Branch recommended declassification of a study of the effect

of gamma radiation on Los 

and/or its contractors are closely

associated with statements and information which would invite or tend to

encourage claims against the Atomic Energy Commission or its contractors such

portions of articles to be published should be reworded or deleted. The effective

establishment of this policy necessitates review by the Insurance Branch as well

as the Medical Division prior to 

9,2005

Page 2

In October 1947 Oak Ridge recommended to AEC Headquarters that the AEC Insurance Branch

routinely review declassification decisions for liability concerns:

Following consultation with the Atomic Energy Commission Insurance Branch,

the following declassification criteria appears desirable. If specific locations or

activities of the Atomic Energy Commission 

Albert0 Gonzales

June 

The Honorable 
12,2000, floor statement involving the enactment of

EEOICPA, Senator Jeff Bingaman stated that “infeasibility” could entail lack of relevant

not estimate dose with sufficient accuracy. The Board received a non-classified

presentation from this investigation, and voted unanimously to reverse the NIOSH scientists

recommendation.

Claimants in Iowa were fortunate to have a rigorous review undertaken on their behalf, because

they lack Q clearances, and classification had barred their ability to credibly challenge

contentions by government scientists. We think it is most unlikely that this petitioning group

would have seen the same result if these same government scientists were in control of the

presentation of their case to a judge exparte and in camera without any claimant rebuttal. Even

this procedure does not guarantee due process for claimants who wish to appeal an adverse

decision involving classified information.

OLC should take note that the concept of “feasibility” extends beyond the technical ability to

reconstruct a radiation dose. In an October 

OLC’s position in “power point”

slides. One slide explained that classified information could not be used to justify that “it is not

feasible to estimate radiation dose with sufficient accuracy” as part of a Special Exposure Cohort

evaluation. The presentation maintained that claimant’s due process rights could be preserved in

a limited form, where classified information is involved. It suggested that in an appeals hearing,

classified information could be reviewed with government officials in an ex parte

communication with the judge in camera. The negative effect is that claimants would be in the

dark about the scientific basis for a radiation dose estimate, and unable to challenge the technical

basis. Their approach could place claimants in a situation where they must depend on the

government’s word without a public vetting. It also requires them to have faith that the

government scientists, who are the defendants, will present information to a judge in a way

which fully represents the interests of the claimant.

This is not to say that the withholding of classified information necessitates the frustration of due

process, or that the only remedy is a SEC. In many cases, claims involving classified

production or process information can still be reconstructed, since individual dosimetry records

are generally not classified. Moreover, classified information will not always be central to

reaching a credible compensation decision.

However, in older facilities where inadequate radiation dosimetry records are the rule, classified

records may be the only data source. For example, NIOSH scientists recently asserted in their

“SEC Evaluation Report” that it was feasible to estimate dose with sufficient accuracy at the

Iowa Army Ammunition Plant (IAAP) using classified information. As such they recommended

that the petition be denied. However, an independent probe of the classified information by Q

cleared Board members and consultants found the government scientists were in error and that

they could 

26,2005, meeting of the Advisory Board on Radiation and Worker Health

(Advisory Board) in Cedar Rapids, Iowa, NIOSH presented the 

9,2005

Page 3

At the April 

Albert0 Gonzales

June 

The Honorable 
&*Lb

F. JAMES

Chairman

CHRISTOPHER S. BON

United States Senator

D

Totten court.

In the face of OLC’s recent verbal opinion to HHS, NIOSH recently declared at the Cedar Rapids

meeting that transparency is no longer a “necessary” part of their program. It is merely a

program“value”. We strongly urge that any written opinion rendered by OLC comply with the

legislative and policy objectives of EEOICPA. Otherwise, there is a risk that the OLC’s opinion

will further conflict with the purposes and intents of the program.

Please feel free to contact me or Phil Kiko on my staff at 225-5727 if you have any questions.

Sincerely,

Totten, that there is no due process right attached to

contracts with the President of the United States involving clandestine employment relationships.

By contrast, EEOICPA claimants are left unable to contest what they are not allowed to know.

EEOICPA did not diminish due process rights when classified information is involved. The law

provides a relief mechanism when the feasibility of a transparent dose reconstruction is simply

not possible: a Special Exposure Cohort. Moreover, individuals with claims under EEOICPA

did not enter into a special employment relationship with the Government in any way similar to

the type addressed by the 

9,2005

Page 4

radiation dose records, that records are missing altogether, that it would be prohibitively

expensive to reconstruct dose, or it might take so long that the workers would have died by the

time the job was completed. Congress did not limit “feasibility” to only technical issues, and

OLC should not officially sanction a definition of feasibility contrary to that which Congress

prescribed and which conflicts with legislated objectives.

Tenet v. Doe is not applicable in relation to EEOICPA, nor does it serve as a reasoned basis for

limiting due process under EEOICPA. In Tenet v. Doe, both the plaintiff and defendant parties

had knowledge of the state secrets at issue in a contractual dispute over compensation for

espionage services. The Court found, citing 

Albert0 Gonzales

June 

The Honorable