OPINION: Could Scientific Decisions on Energy Worker Petitions Be Influenced by Inquiries?

Updated 2 years ago by Terrie Barrie
OPINION: Could Scientific Decisions on Energy Worker Petitions Be Influenced by  Inquiries?
Since when did political interest become a consideration for the National Institute for Occupational Safety and Health’s (NIOSH) Division of Compensation and Analysis Support (DCAS) Special Exposure Cohort (SEC) petition process?  Whew, that's certainly a mouthful.  But apparently DCAS had a concern with Congress following the progress of SEC petitions in December, 2010.

About 15 months ago, I advised the Special Exposure Cohort (SEC) petitioner for the Hooker Electrochemical Company to file a Freedom of Information Act (FOIA) request for all emails from NIOSH where that site was discussed.   She was a bit reluctant at first because she did not know how those emails would help convince the Advisory Board on Radiation and Worker Health (the Board) to recommend that site for inclusion in the SEC.  I reminded her of the emails I found when I first FOIA’d emails from DCAS for the Rocky Flats SEC petition.  I explained that there might be just one piece of paper that would prove beneficial to her cause.  Unfortunately, the petitioner did not receive the thousand or so pages until after the Board voted not to include Hooker Electrochemical in the SEC.

But she has diligently been reviewing the emails DCAS sent.  A few days ago she sent me this message,

“Can you imagine someone like Mr. Stu H. asking Mr. Ted K. for him to let him know the political interest in the companies that were going to be considered by the Board at one point in the emails? He told him to rate them as high, med. etc. Now isn't that telling?”

You bet it’s telling!

She graciously provided the email stream so I could see for myself.  You can find the stream here:

http://www.eecap.org/PDF_Files/NIOSH/NIOSH_priorities_emails.pdf

To summarize the conversation, Dr. Gregory Macievic advised Ted Katz, Designated Federal Official (DFO), that a Los Alamos Lab Work Group meeting needed to be postponed.  Mr. Katz responded that he would postpone the meeting but that Dr. Macievic should remember this SEC petition “has substantial political heat growing behind it.  DCAS may get more fan mail from Congress over the pace.” 

Stuart Hinnefeld, Director of DCAS was copied on this email.  He, in turn, asks Mr. Katz to prioritize the SEC petitions then under evaluation or with the Board.  Mr. Hinnefeld basically wanted to know which SEC petitions he can expect “fan mail” from Congress.

It appears that Mr. Katz realized his blunder about mentioning the heat from Congress and cautions Mr. Hinnefeld that political considerations should not be a factor in scheduling Board meetings.  I find the caution ironic because it was Mr. Katz who raised the concern in the first place.  If Mr. Katz had stopped with the cautionary advice I would not be posting this blog.  

However, Mr. Katz then proceeded to rate the petitions as Mr. Hinnefeld requested!

These emails raise some serious concerns.   Let’s start off with the role of a DFO.  (In the interest of full disclosure, I must mention that ANWAG has concerns with Mr. Katz’s role as the DFO and raised this issue on a number of occasions. Mr. Katz helped develop the Final Rules for SEC petitions and DCAS’s dose reconstruction.  The advocates feel that there is the potential of bias if not the outright professional conflict of interest.)

The Code of Federal Regulations explains the role of a DFO:

              102-3.120 What are the responsibilities and functions of a Designated Federal Officer (DFO)?

The agency head or, in the case of an independent Presidential advisory committee, the Secretariat, must designate a Federal officer or employee who must be either full-time or permanent part-time, to be the DFO for each advisory committee and its subcommittees, who must:

(a) Approve or call the meeting of the advisory committee or subcommittee;

(b) Approve the agenda, except that this requirement does not apply to a Presidential advisory committee;

(c) Attend the meetings;

(d) Adjourn any meeting when he or she determines it to be in the public interest; and

(e) Chair the meeting when so directed by the agency head.

http://cfr.regstoday.com/41cfr102-3.aspx#41_CFR_102d3p120

It was proper for Dr. Macievic to inform Mr. Katz about the need to postpone the LANL Work Group meeting. That is Mr. Katz’s responsibility as a DFO.

But why is Mr. Hinnefeld asking Mr. Katz to rate the petitions?  Wouldn’t it have been more appropriate for Mr. Hinnefeld to forward this email to his boss, Dr. John Howard, Director of NIOSH, and ask Dr. Howard's for his guidance?  Why is Mr. Hinnefeld concerned about Congressional inquiries to begin with?  Is DCAS not performing its duties responsibly?

And, so what if legislators are making inquiries? It’s their job! Congress represents the people who live in their state.  Part of their responsibility is to provide help to their constituents.  I think it’s safe to say that every legislator has a button on their website marked, “Get Help with a Federal Agency.” I personally appreciate the long-standing support from the Colorado delegation for the Rocky Flats claimants.  But, does this mean that DCAS will push for a quick resolution to an SEC petition only if the legislators make a big stink?  Does DCAS let the other petitions lanquish?

One would think that the prioritization would be based on the first in, first out model.  Yes, I understand that there could be obstacles that DCAS encounters which could delay a Work Group’s meeting.  For instance, DCAS may not having a security cleared individual readily available to review classified documents or interview workers.  Another example would be if the Department of Energy is slow to release records.  But I think a Congressional office would understand these delays.

Another concern is why DCAS was short on help.  Are they still experiencing a shortage of qualified personnel?  They have and have had a $55 million budget since at least 2011. With this kind of budget one would think that adequate staffing would not be an issue. 

http://www.cdc.gov/fmo/topic/Budget%20Information/appropriations_budget_form_pdf/FY2013_CDC_CJ_Final.pdf

This discussion of political heat, and rating SEC petitions based on that pressure, taints the entire SEC process.  Does this political heat filter down to whether DCAS should recommend approval of an SEC petition to the Board?  Would the reason that the Hooker Electrochemical petition was denied inclusion in the SEC was that petition did not have any inquiries made by the legislators?

For the record, I think every site should be included in the SEC if there are no, inadequate, or possibly fraudulent monitoring records.  The Charlie Wolf Act would have accomplished this.

There’s only one solution to this problem.  Congress must become more involved in this program.  They need to hold oversight and investigative hearings as soon as possible.  The claimants, petitioners and, indeed, the United States taxpayers must be assured that this program is administered in a fair manner, based on sound science and that monies and resources are allocated wisely.

Terrie Barrie is an advocate for and one of the founders of ANWAG. The column first appeared on their page.

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