Conclusion

Chapter 12: The Uranium Miners

Some of the mines were large open pits, but most were underground networks of shafts, caverns, and tunnels, shored up by timbers. Because uranium milling and open-pit mining is conducted above ground, radon levels tend to be quite low, as radon is readily dispersed into the atmosphere. However, millers are exposed to uranium dust and thorium 230, both of which may have chemical or radiological toxicity, as well as additional chemicals used in the extraction process. In the remainder of this chapter, we focus on the underground miners who were exposed to much higher levels of the hazards that are the principal cause of lung cancer in the miners.[4]

The American boom followed centuries of experience with uranium mining in Europe, where a mysterious malady had been killing silver and uranium miners at an early age in the Erzgebirge (ore mountains) on the border between what is now the Czech Republic and Germany. In 1879, two researchers identified the disease as intrathoracic malignancy. They reported that a miners' life expectancy was twenty years after entering the mine, and about 75 percent of the miners died of lung cancer.[5] By 1932, both Germany and Czechoslovakia had deemed the miners' cancers a compensable occupational disease.

In 1942, Wilhelm C. Hueper, a German émigré who was founding director of the environmental cancer section of the National Cancer Institute (NCI), one of the National Institutes of Health, published a review in English of the literature on the European miners suggesting that radon gas was implicated in causing lung cancer.[6] He eliminated nonoccupational factors because excess lung cancer showed up only among miners. He also eliminated occupational factors other than radon because these other factors had not caused lung cancer in other occupational settings.[7] Among Hueper's peers, dissenters, such as Egon Lorenz, also of the NCI, focused on contaminants other than radon in the mine, the possible genetic susceptibility of the population, and the calculated doses to the lung, which seemed too low to cause cancer because the role of radon daughters--which the radioactive polonium, bismuth, and lead decay products of radon gas are known as--was not yet understood.[8]

At the time its own program began, the AEC had many reasons for concern that the experience of the Czech and German miners portended excess lung cancer deaths for uranium miners in the United States. The factors included the following: (1) No respected scientist challenged the finding that the Czech and German miners had an elevated rate of lung cancer; (2) these findings were well known to the American decision makers; (3) as Hueper points out, genetic and nonoccupational factors could be rejected; and (4) radon standards existed for other industries, and there was no reason to think that conditions in mines ruled out the need for such standards. Moreover, as soon as the government began to measure airborne radon levels in Western U.S. uranium mines, they found higher levels than those reported in the European mines where excess cancers had been observed.[9] As Public Health Service (PHS) sanitary engineer Duncan Holaday, who spent many years studying the miners, recalled in 1959 congressional testimony, there was early recognition that while there were substantial differences between European and American settings, the exposure levels in U.S. mines were high:

In 1946 our American mines were not as deep as those in Europe. The men did not work long hours. Furthermore, a great many of them were more or less transient miners, in and out of the industry.

However, our early environmental studies in these early American mines indicated that we had concentrations of radioactive gases considerably in excess of those that had been reported in the literature.[10]

One important hole in Hueper's argument was that the calculated dose of radiation from the radon in European mines did not seem high enough to cause cancer.[11]But when William Bale of the University of Rochester and John Harley, a scientist at the AEC's New York Operations Office (NYOO) who was working toward his doctorate at Renssaelear Polytechnic Institute, were able to show and explain in 1951 the importance of radioactive particles that attached to bits of dust and remained in the lung, the discovery had a tremendous impact.[12] When doses to the lung were recalculated using Bale and Harley's models, they increased 76 times,[13] making them high enough to explain the observed cancer rates.[14] Recognizing the importance of radon daughters also explained why animal experiments using pure radon gas had not caused cancer.[15]

In the absence of Atomic Energy Commission willingness to press for relatively safe tolerance levels for radon in U.S. mines and to institute an effective program of mine ventilation to reduce the hazard, and a mixed, but mainly unsatisfactory response from the states, the stage was set for intergovernmental buck passing and decades of study, a course that resulted in the premature deaths of hundreds of miners. An analysis of eleven underground miners' studies published in 1994 by the National Cancer Institute supports the view that radon daughters are responsible for an even greater number of lung cancers than previously believed.[16]

The Advisory Committee heard from many miners and their families about the devastation wrought by the experience in the mines and the government's ability to prevent it. Dorothy Ann Purley, from the pueblo of Laguna in New Mexico, told Advisory Committee members at a public meeting in Santa Fe, "Nowadays people come out and say, 'Did you know so and so died of cancer?' 'I have a brother in law who has got cancer. He worked at the mine.'"[17]

Philip Harrison, a spokesman for Navajo miners and their families, told the Advisory Committee that in New Mexico mines "the working conditions were sometimes unbearable. . . . The government knew all along what the outcome would be and . . . initiated studies on the miners . . . without their knowledge and consent."[18]

A Standard for Beryllium, But Not for Uranium

In 1948, Merril Eisenbud, an industrial hygienist, was recruited by the AEC's New York Operations Office to help set up a health and safety laboratory. The NYOO was responsible for all raw materials procurement for the AEC.[19]At the request of the AEC's Raw Materials Division, Dr. Eisenbud and Dr. Bernard Wolf, a radiologist, reported on potential health hazards in the mines to the NYOO field office in Colorado and to AEC headquarters staff.[20] Dr. Eisenbud and the New York Operations Office recommended that the AEC write requirements for health protection into its contracts with the mine operators.[21]

The AEC had used contract provisions in the case of beryllium, another key (but not radioactive) element in bomb production. One month before Dr. Eisenbud filed his report on the uranium mines, the Cleveland News reported on a conference convened to discuss cases of beryllium poisoning at plants in Massachusetts and Lorain, Ohio.[22] Among the fatalities in Lorain were five residents living near the Beryllium Corporation plant.[23] The plant owner, Dr. Eisenbud recalled in 1995, was eager to have conditions studied "because he wanted to know what his liability was."[24]

That same month, June 1948, responding to the "considerable publicity . . . given by the press to cases of berylliosis among plant workers and residents," the AEC set a tentative standard for the permissible levels of exposure to beryllium. The NYOO, "with the approval of the Division of Biology and Medicine, has insisted that the AEC-recommended tolerance levels be met in all plants processing beryllium or beryllium compounds for the Commission."[25] Despite the fact that by September 1949 there had been at least twenty-seven deaths attributed to beryllium in plants where the AEC had contracts (no one became sick with berylliosis after the tolerance limits had been set in place), the DBM objected to AEC "establishment and enforcement of standards or regulations pertaining to health and safety conditions" and wanted to turn the matter over to the states.[26]Nevertheless, the NYOO enforced standards for beryllium.[27]

The uranium and beryllium situations had much in common. In both cases the AEC was the sole or primary purchaser. In both cases the AEC's New York Operations Office sought to control the hazard. And in both cases there were arguments to be made for inaction: The causation mechanism for the disease was poorly understood, and the legal authority of the AEC to regulate private production was questionable. The essential difference between the two cases was that the illness caused by beryllium appeared shortly after exposure and aroused publicity and associated public concern. By contrast, it would take more than a decade before uranium miners would begin to die of lung cancer, and causality would be harder to infer.

The DBM and the AEC Raw Materials Division rejected Dr. Eisenbud's recommendation for health protection, arguing that the Atomic Energy Act did not give the AEC authority over uranium mine health and safety.[28] While the Committee did not locate the early AEC legal opinions on this question, as discussed in the text, we did find documentation of AEC lawyer reassertion of this position in the late 1950s. The New York Operations Office took the same position that it had taken on beryllium: if it was going to procure uranium, it was going to control radon in the mines.[29] The AEC responded by transferring uranium procurement to a newly created section of the Raw Materials Division in Washington.[30] According to Dr. Eisenbud, the director of the New York Operations Office and many of its employees quit over this move, at least some of them because the shift was intended to keep the AEC out of health-related matters in the uranium mining industry.[31]

Eisenbud's perspective was echoed in at least part of the AEC's Washington office. In May 1949, A. E. Gorman, a sanitary engineer at the AEC, wrote a memo for the files in which he reported on a meeting with Lewis A. Young, director of the Colorado Department of Health's division of sanitation, and Dr. John Z. Bowers, deputy director of the Division of Biology and Medicine. Bowers "indicated that health conditions [on the Colorado Plateau] were not satisfactory," and Mr. Young reported that "conditions under which uranium ore was being mined and processed were not good."[32] Bowers, the memo recorded, said his office did not want to recommend "drastic steps" to require correction of deficiencies, but preferred to gather facts about the hazard and cooperate with mine operators and state agencies to correct unsatisfactory conditions. Gorman, however, recorded:

I expressed the opinion that if the State of Colorado had only two inspectors to cover industrial hygienic conditions in all mines in the state, it would not be realistic to expect very extensive follow up of the hazards problems [sic] involving silicosis and radioactivity; also that since AEC was purchasing a very large percentage of the uranium produced, we had a moral responsibility at least to improve any unsatisfactory condition which was known to exist involving the health of workers. I suggested that this might be taken care of by a clause in our contracts even though it might result in a higher cost of production. I questioned the point that such action might seriously affect the production of uranium.[33]

Gorman's perspective did not win out. By the 1950s occupational standards or guidelines existed not only for radium[34] (a maximum permissible body burden) but also for radon. By 1941 the data from the European mines had been used to establish a radon standard for "air in plant, laboratory, or office [of] 10 picocuries per liter."[35] But when it came to the mines the federal government took nearly two decades to issue enforceable standards and actions to protect all those miners known to be exposed to significant risk. Instead, it debated responsibility for action while it pursued a long course of epidemiological study. The episode, the judge would declare in the Begay case decision in 1984, was a "tragedy of the nuclear age."[36]

The PHS Study

On August 25, 1949, the state of Colorado and U.S. Public Health Service officials met to explore radiation safety in the uranium mines and mills.[37] Colorado was home to about half of the U.S. uranium mines. Because many of them were small mines, they employed less than 10 percent of the country's uranium miners. (New Mexico, with much larger mines on average, had a fraction of the mines, but nearly half of the miners.)[38] The Colorado Department of Health established an advisory panel of federal, state, and uranium industry officials to oversee a comprehensive study. The panel advised the health department that more information was needed on the medical hazards of the uranium mines. In August 1949, the health department, along with the Colorado Bureau of Mines and the U.S. Vanadium Company, formally requested a study of the mines and mills, which the PHS agreed to do.[39] The PHS initiated both environmental studies of the mines[40] and epidemiologic studies of the miners.[41] The environmental study ended in 1956, but the epidemiologic study is ongoing.

In 1949, Henry Doyle, a sanitary engineer who was the chief PHS representative in Colorado, began environmental sampling in the mines.[42] Doyle recruited Holaday to direct the study.[43] The health departments of Utah, New Mexico, and Arizona also participated.[44] The environmental part of the study began first, in 1950. Between 1950 and 1954 medical examinations of uranium miners and millers were done on a "hit-or-miss basis,"[45] but in 1954 a systematic epidemiological study of the miners was begun.

Between 1949 and 1951, PHS investigators took environmental measurements of radon levels in the mines. Like Dr. Eisenbud, they detected high levels of radon.[46] In a February 1950 memo to the PHS Salt Lake City office, Holaday reported on a survey of four mines on the Navajo reservation. He declared that while he "anticipated that the samples would show high radon concentrations, the final results were beyond all expectations." The samples disclosed a "rather serious picture," leading Holaday to conclude "that a control program must be instituted as soon as possible in order to prevent injury to the workers."[47]

On January 25, 1951, representatives from the AEC, the PHS Division of Industrial Hygiene, and other branches of PHS convened to discuss in detail the radon concentrations discovered by the PHS study and what could be done about them.[48] The PHS staff explained that the uranium study demonstrated "radon concentrations . . . in the mines high enough to probably cause injury to the miners. . . ."[49] They also said the hazard could be abated by proper ventilation. The group concluded that the radon concentrations should be reduced to the lowest level possible consistent with good mine ventilation practices, but found it "unrealistic" to set a definite level that mine operators should meet.[50] They recommended further research, especially on ventilation techniques.[51] By this route, "the radon concentrations in the mines would be materially reduced in all cases, and valuable information would be yielded as to the effectiveness of standard ventilation practice in the control of radon."[52] It also was noted at this meeting that the acceptable level of radon in manufacturing was only 10 picocuries per liter, one to three orders of magnitude lower than the observed levels in the mines.[53]

The PHS Progress Report for the second half of 1951 explained that because of the "acuteness of the radon problem it was felt that it was necessary to temporarily put aside our full-scale environmental investigation of this industry and concentrate on the control of this contaminant."[54] The PHS met with the mining companies to discuss the hazards and urged them to undertake ventilation measures.[55] In 1979, Duncan Holaday testified to Congress that "by 1940 I do not believe there was any prominent scientist or industrial hygienist in the United States, except one [presumably Lorenz], who was not thoroughly convinced of the dangers, and it had been demonstrated that the radioactive elements could be removed from a closed area and be completely avoided."[56] However, it appears the mining industry lacked the commitment to improve worker conditions.[57]

The PHS distributed its interim report on a "restricted" basis to state and federal government officials and mining companies in May 1952.[58] A June 26, 1952, press release announcing the completion of the interim report began with the statement that "no evidence of health damage from radioactivity had been found."[59] Mining had been going on for only a few years, and lung cancer has a ten- to twenty-year latency period. The introduction to the report itself noted, however, that "certain acute conditions are present in the industry which, if not rectified, may seriously affect the health of the worker."[60]

Meanwhile, as evidence of hazard mounted, Dr. Hueper, now at the National Cancer Institute, reported continued efforts to limit his speech on the risks involved. Dr. Hueper reported that in 1952 he was invited to speak to the Colorado Medical Society, but declined to attend when ordered by the director of the NCI, at the request of the AEC's Shields Warren, to delete references "to the observation of lung cancer in from 40 to 75 percent of the radioactive ore miners in . . . [Europe] although these occupational cancers had been reported repeatedly since 1879."[61] In a 1952 memo to the head of the Cancer Control Branch of NIH, Hueper reported that an AEC representative had objected that references to occupational cancer hazards in the mines were "not in the public interest" and "represented mere conjectures."[62] After the Colorado episode, according to Hueper, Warren wrote to the director of the NCI, asking for Dr. Hueper's dismissal for "bad judgment." Dr. Hueper kept his job, but was, according to Victor Archer, one of the physicians who ran the uranium miner study, forbidden to travel west of the Mississippi for research purposes.[63]

U.S. officials, including those from the PHS, had no independent authority to enter the privately owned mines--as opposed to those owned by the AEC and leased to private operators--without permission of the mine owners.[64] Duncan Holaday testified in court proceedings that in order to gain access to the mines, an oral agreement was made with mine owners not to directly inform those most affected by their findings, the miners.[65] According to Holaday, "this was routine procedure that was followed in every industrial survey I was aware of . . . this went back for many decades." To gain entry to the mines the researchers agreed that the PHS would not "alarm the miners" by warning them of hazardous conditions.[66] In 1983 Holaday testified in Begay that "you had to get the survey done and you knew perfectly well you were not doing the correct thing . . . by not informing the workers."[67] A medical consent form from the PHS study dated May 1960 says nothing about the risk of lung cancer or any other health risk associated with working in uranium mines.[68] "[T]here would be no overt publicity," Holaday recalled in a 1985 deposition, "and when we reported the information that we found, it would be done in such a way that the facilities where a particular set of samples were taken would not be identified and that we would not inform the individual workers of what data we found."[69]

Holaday told Stewart Udall, a former secretary of the interior who represented the miners in the Begay case, that he did not try to go public because he didn't think that Washington would notice a "little Utah tweet" from him.[70] Eisenbud has suggested that perhaps this was because in the Cold War environment, with nuclear weapons testing under way, no one would pay much attention to the long-term health risks of a small group of miners.[71]

Although the PHS and the AEC already knew the danger of radon in the mines in 1951, and had pressed the states to take action with mixed results, PHS doctors nonetheless began to conduct basic health examinations to collect baseline data against which long-term health effects of radon could be gauged.[72] These medical examinations did not initially find evidence of harm caused from working in the mines. However, one would not have expected to find such effects because few miners had been on the job for more than five years and lung cancer takes ten to fifteen years to appear.

By 1953, the PHS had completed a series of ventilation studies. As early as 1951, federal and state officials meeting with mine owners in Colorado had told them that "ventilation had been tried in other mines and found to be satisfactory."[73] But while some large mines were ventilated during the 1950s and 1960s, most of the small mines were not ventilated until the 1960s or later, and in those mines that had ventilating systems earlier, they were not always properly used.[74]

The uranium miners were discussed at a January 1956 meeting of the AEC's Advisory Committee for Biology and Medicine. The formally secret transcript records that in a "status report on the Colorado plateau," the Division of Biology and Medicine's Dr. Roy Albert stated:

There are no pressing--particularly pressing--problems associated with it now, but there has always been a rumbling of discontent with the status of the health conditions in the uranium mines of the Colorado Plateau because this is a mining industry which is essentially controlled by the Federal Government and by the AEC in terms of how much it can produce and how much it paid for its product.

Albert explained that the tentative decision was to "sit tight" because it would be "an unusual step" for the federal government to enter the mining industry and the AEC could take a "wait and see" approach as the states "took up the cudgel."[75]

Merril Eisenbud responded, to no evident effect, that the federal government should pay to ventilate the mines: "I think here is where our responsibility lies, because I think this industry would not exist except for the fact that we need uranium. If the cost of operating these mines as determined by us does not permit adequate ventilation of those mines, we will have to change the price. It is as simple as that."[76]

In October 1958, LeRoy Burney, the surgeon general of the Public Health Service, wrote to Charles Dunham, director of the AEC's Division of Biology and Medicine, that the "numbers are too small to permit conclusions to be drawn at this time" about whether there were excess lung cancer deaths among the uranium miners. However, he added, "if this proportion of mortality . . . should increase or even continue in the future, then it might be appropriate to conclude that our American experience is not inconsistent" with that in the Czech and German mines. Dr. Burney added:

Although we do not have complete environmental measurements in all mines, it appears that about 1,500 men in some 300 mines are working in uncontrolled or poorly controlled environments. The median level of alpha emitters in the mines of one state is five times the recommended working level, and in some mines the level is exceeded by more than 50 times. . . . It is usually the older, smaller mines in which the workers are still exposed to these high levels.[77]

Burney concluded by suggesting that as the "sole purchaser of ores produced in the mines," the federal government could require mine owners to conform to federal safety standards.

Several months later, Dunham wrote a memo to AEC General Manager A. R. Luedecke, reporting "it is doubtful if the Commission's regulatory Authority could be extended to cover the mines."[78] The same day, March 11, 1959, AEC General Counsel L. K. Olson wrote to Dunham reporting that "there is nothing in the legislative history of the 1954 [Atomic Energy] Act, or the 1946 [Atomic Energy] Act, which indicates that Congress may have intended to permit AEC to regulate uranium mining practices."[79]

Later in 1959, the AEC asked the Bureau of Mines to inspect mines it leased and then made follow-up inspections to see that the bureau's recommendations were followed, closing sections of mines temporarily until corrective measures were completed. In the ten months between July 1959 when the inspections began and May 1960, levels of radon in these mines improved dramatically.[80]

As the judge in the Begay decision found, "the AEC concluded that it could enforce health and safety measures in leased mines [as distinct from privately owned mines] pursuant to the leasing provisions of the Atomic Energy Act" and amended its mines' leases "to contain explicit enforcement language and procedures."[81] The states began to enact standards in 1955,[82] but inspection and enforcement came later and varied greatly. New Mexico began enforcement in 1958.[83] Colorado and Utah did not begin serious enforcement until the 1960s,[84] and Arizona, according to Duncan Holaday, did "nothing outside of take air samples."[85] (3 August 1983), 152.

In late 1959, the miners were provided with the PHS pamphlet that warned them about the hazards of radon exposure. The pamphlet mentioned the possibility of radon causing lung cancer, but said nothing of the experience of U.S. or European miners or the level of risk. It said that "scientists are working hard to get the final answer on how much radon and its breakdown products, known as daughters, you can be exposed to safely."[86] It did not tell the miner the "suggested figures," but suggested bringing "enough clean, fresh air to the face to sweep out the radon gas and dust," as well as several other measures to reduce exposures.[87]

All mining is dangerous, and there is no reason to think that any miners went into the uranium mines unaware of this. Whether the uranium miners had an appreciation of the added cancer risk from radon is another matter. The 1959 pamphlet is the first document we could find that indicated that the federal government tried to warn the miners of the radiation hazards. While the pamphlet mentioned the possibility of radon causing lung cancer, it gave no indication of the level of risk.[88] Duncan Holaday told a congressional hearing in 1979, "We, in the Public Health Service, made every effort to communicate with the men the situation that they were in. We put out pamphlets . . . conducted medical examinations . . . we told them what the story was."[89] This statement is hard to reconcile with Holaday's other statements, as quoted earlier, that the researchers had agreed not to warn the miners as the condition for access to the mines. When Senator Orrin Hatch of Utah suggested to Mr. Holaday that some of the miners "just were not capable of understanding or knowing the dangers to which they were subjected," Mr. Holaday responded, "I understand this perfectly well."[90]

In 1960, the PHS presented to the governors of the mining states what it believed to be conclusive evidence from the PHS study of a correlation between uranium mining and lung cancer. The evidence showed that at least four and a half times more lung cancers were observed than would normally be expected among white miners--for whom comparison data were available--and that there was less than a 5 percent chance that such a difference had appeared by chance. The results of a study of 371 mines (the number of miners surveyed was not stated) in 1959 showed that the number of mines with unacceptable levels of radon had increased from 1958.[91] Yet the federal government continued to defer to the states on rule setting and enforcement in the case of the mines that were not AEC property, and the AEC, the PHS, and the states continued studies and discussions.

Finally, in 1967, Secretary of Labor Willard Wirtz announced the first federally enforceable standard for radon and its daughters in uranium mines that supplied the federal government. "After seventeen years of debate and discussions regarding the respective private, state, and federal responsibilities for conditions in the uranium mines," Wirtz told Congress, "there are today (or were when the hearings were called) no adequate health and safety standards or inspection procedures for uranium mining."[92] The standard was set at 0.3 Working Level (WL).[93] Wirtz established this criterion under the 1936 Walsh-Healy Act, which provided for the regulation of health and safety conditions under government contracts.[94] It is not clear why the authority granted the secretary of labor under this 1936 law was not used earlier to control radon in the mines, but it might have been because most of the mines were privately owned and did not operate under federal contacts, which made the applicability of the act questionable.[95]

The Begay Decision

Begay v. United States was filed on behalf of a group of miners in federal district court in Arizona in 1979; the case came to trial in 1983. During the 1950s, according to the court, the PHS found radiation exposures in some mines higher than the level it recommended, and "even higher than the doses received as a result of the atomic bomb explosion in Japan."[96] But on July 10, 1984, the court decided that the United States was immune from suit,[97] although the judge wrote that the miners' situation "cries for redress."[98]

The decision in the Begay case poses basic questions regarding the responsibility of the government and its researchers. The court found that the government's actions were motivated by strong national security interests:

The government, in making its decision in this area, was faced with the immediate need of a constant, uninterrupted and reliable flow of great quantities of uranium . . . for urgent national security purposes and as an energy source in the future for the growing peacetime nuclear energy industry. . . . [T]he decision makers had to be concerned that there was adequate data available to justify the standards to be set and that labor and management would have the tools to know when they were in violation. . . .[99]

The court is not clear, however, on why or how a standard for radon in the mines would have interrupted the flow of uranium, damaged national security interests, or interfered with the development of peaceful uses of nuclear energy. Ventilating the mines would have been relatively inexpensive, and it would have improved working conditions--this was demonstrated in PHS ventilation studies in 1951[100] --making it more rather than less attractive to a potential work force. In 1960 the deputy commissioner of mines of Colorado is reported as having said that 98 percent of the mines would have to suspend work if forced to abide by a working level standard proposed in 1955: 100 picocuries of radon in equilibrium with 300 picocuries of radon daughters.[101] In any event, the federal government did not invoke national security as a basis for its inaction. For example, in 1986 Duncan Holaday responded in the negative when asked in a deposition, "in all [your] years from 1949 until your retirement, did you ever receive directly or receive indirectly, any document [from the] Public Health Service, from the Atomic Energy Commission, or from any other source, indicating you or directing you that you are to pull punches or nothing was to be done because of national security considerations?"[102] As for the federal government's policy of not regulating the mines, this appears to have involved questions of the AEC's understanding of its authority and political questions relating to the traditional relationship between the states and the federal government.

Was the failure to apply the same approach to the uranium miners as to the beryllium workers a matter of the absence of legal authority, as claimed by the AEC, or of reasoned deference to state regulators, as the court suggested? The court's decision did not address the AEC's action to require its beryllium contractors to comply with hazard standards, nor did it address the fact that radiation standards were enforced in industrial settings. Fragmentation of responsibility - both at the federal level and between the states and the federal government - appears to have provided a convenient opportunity for the federal government to pass the buck among agencies and avoid decisive action until long after such action should have been taken.

Under what conditions should researchers enter into a long-term study where there is reason to suspect at the outset that the subjects are, each day, at continuing and largely avoidable and unnecessary risk?

The Begay decision states clearly the bargain entered into by the government and its researchers, on behalf of the epidemiological study:

. . . it was necessary to obtain the consent and voluntary cooperation of all mine operators. To do this, it was decided by PHS under the surgeon general that the individual miners would not be told of possible potential hazards from radiation . . . for fear that many miners would quit and others would be difficult to secure because of fear of cancer. This would seriously interrupt badly needed production of uranium. . . . [N]o individual mine, or mines, would be publicly identified in connection with that data. Consequently, the voluntary consent of mine operators was secured to conduct the PHS study.[103]

The Begay decision does not address questions such as whether the researchers could have worked more effectively with state agencies that had authority to enter the mines, or whether they could have conducted the study in mines on federal or Navajo land, to which they had access. In any case, there is no obvious national security or other ground on which to justify the continued exposure of miners to the radon hazard.[104]

As to medical examinations of the miners, the court found that the physicians who had conducted them "had the responsibility for dealing only with the examination and the results of that examination."[105] Thus, the court concluded, "it was neither necessary nor proper for those physicians to advise the miners voluntarily appearing for examinations of potential hazards in uranium mines."[106] In the case of the epidemiological study, the court explained:

An epidemiological study deals with group statistics and the conclusions of such a study appropriately cannot be applied to specific participants of a group. . . . The government did not seek volunteers to work in the mines so that they could become part of the study group. . . .[107]

On this point, the Advisory Committee disagrees with the court. In epidemiological studies such as the one under discussion, group conclusions are applicable to the members of the population of which the group is intended to be a representative sample. That is, each individual can be told the probability of developing disease based on his level and conditions of exposure. If the study was poorly designed, then such applicability may not hold, but to the Committee's knowledge, no one has argued this about the PHS study. Moreover, the PHS researchers had opportunities to warn the miners face to face because they examined them periodically over more than twenty years. There is some disagreement about whether any miners were warned of the risk of lung cancer, but even Duncan Holaday, who in one instance indicated that some miners received warnings, acknowledged that very likely these warnings were ineffective.

Radiation Exposure Compensation Act

The Begay decision concluded that the plight of the uranium miners "cries for redress." Because of the doctrine of sovereign immunity, however, the court declared that it could not provide the appropriate remedy. By 1990, 410 lung cancer deaths had occurred among the 4,100 miners in the Colorado Plateau study group; about 75 lung cancer deaths would normally have been expected in a group of miners such as this.[108] In the same year, Congress responded with legislation, the Radiation Exposure Compensation Act (RECA), which provided $100,000 compensation for miners with lung cancer or nonmalignant respiratory disease, subject to certain conditions. In the case of lung cancer, the act requires that the claimant demonstrate an occupational exposure to radon daughters from 200 WLM (working level months) to 500 WLM, depending upon his age and smoking history, the higher figure applying to smokers and older miners. In the case of nonmalignant respiratory disease, the act also requires documentation of disease by a panel of radiologists certified in assessing x-ray evidence of lung disease. In both cases, records of occupational histories and civil records for next-of-kin claimants (such as marriage certificates) are also required--records that are often nonexistent or difficult to obtain, particularly for Navajo miners.

The most recent and authoritative analysis of risks of lung cancer from radon in uranium mining comes from a 1994 NIH publication[109]that reanalyzed all eleven of the major occupational radon studies worldwide. This analysis considerably extends that undertaken by the National Academy of Sciences BEIR IV Committee,[110] which was available in 1986 prior to the enactment of RECA. This report used similar methods of analysis but more recent and more detailed data on a larger set of studies. The most important conclusions of this report are

• that the risk rises approximately linearly with level of exposure, with an average slope that is similar to that estimated by earlier committees, including BEIR IV;[111]
• that the risk per WLM varies strongly by age, latency, mining cohort, and especially by dose rate or duration, the latter being a relatively recent observation, but one that is now widely accepted;[112]
• that there is little evidence that the proportional increase in lung cancer risks is substantially different for smokers and nonsmokers--as a consequence, the probability that a particular lung cancer was caused or contributed to by radon is not materially altered by smoking history;[113]
• that on average more than half of the lung cancers among white miners in the Colorado plateau cohort and the Navajo New Mexico cohort were caused by radon exposures;[114] and
• that there were substantial uncertainties in the actual doses received by miners in different mines.[115]

Thus, the 200 WLM figure that is used in RECA as the criterion for awarding compensation is not unreasonable as a "balance of probabilities" for the miners as an entire group, but (1) is a much higher risk threshold than is required for either the downwinders of the Nevada Test Site or the atomic veterans covered in the same act and (2) ignores substantial variation in age, latency, and other factors and substantial uncertainties in dose estimates for individuals within the group of all miners, so that many miners whose cancers are likely to have been caused by radon would not have attained this criterion. Furthermore, the distinction between smokers and nonsmokers established in the act is not well supported by currently available scientific evidence and tends to deny compensation to many miners, most of whom are smokers but suffered substantial increases in risk due to the synergistic effect of the two carcinogens.

Clearly some miners have a stronger case for compensation than others, and RECA makes an attempt to make such distinctions. In principle, it would be possible to construct a formula for determining the probability of causation that would better reflect the current state of scientific knowledge and a threshold on this scale of probabilities that would treat the miners more equitably vis-á-vis the other groups covered by the act. However, the case of the uranium miners presents insurmountable obstacles in this regard, including the loss of records pertaining to occupational histories and exposures and variations in cultural practices that have made record-keeping burdens on claimants especially onerous. When the difficulty of meeting such bureaucratic requirements is coupled with the strong link between lung cancer and uranium mining, the scheme unjustly places too great a burden on the individual. The Committee is strongly persuaded to propose an adjustment in the criteria so that the evidence of a minimum duration of employment underground would be sufficient to qualify for compensation. Any compensation scheme is necessarily imperfect, but given the strength of causal connection, and the severity of the injury, the time spent in the mines is a rational and equitable basis for determining exposure levels.

Conclusions About the Uranium Miners

The Advisory Committee concludes that an insufficient effort was made by the federal government to mitigate the hazard to uranium miners through early ventilation of the mines, and that as a result miners died. The Committee further concludes that there were no credible barriers to federal action. While national security clearly provided the context for uranium mining, our review of available records reveals no evidence that national security or related economic considerations were relied on by officials as a basis for not taking action to ventilate the mines. Since most of the mines were not ventilated, the federal government should at least have warned the miners of the risk of lung cancer they faced by working underground. We recognize that the miners had limited employment options and might have felt compelled to continue working in the mines, but the information should have been available to them. Had they been better informed, they could have sought help in publicizing the fact that working conditions in the mines were extremely hazardous, which might have resulted in some mines being ventilated earlier than they were.

The court in the Begay decision did not exaggerate when it called the abuse of these miners "a tragedy of the nuclear age."

The Committee believes that after 1951, when William Bale and John Harley's findings on radon daughters established that miners were getting a much larger dose to the lungs than previously suspected, the mine owners, the state governments, and the federal government each had a responsibility to take action leading to ventilation of all mines. There are basic ethical principles to not inflict harm and to promote the welfare of others (as described in chapter 4) under which all the relevant parties ought to have acted to prevent harm to the miners.

The Advisory Committee has found no plausible justification for the failure of the federal government, which is the focus of our inquiry, to adhere to these principles. It is clear that officials of the federal government were convinced by the early 1950s that radon and radon-daughter concentrations in the mines were high enough to cause lung cancer. The federal government's obligation flows from this knowledge and its causal link to the mining activity. Without the federal government to buy uranium, there would have been no uranium mining industry. Since the miners were put at risk by the federal government, a minimal moral requirement would be that the government ensure that the risk was reduced to an acceptable level. Because the federal government did not take the necessary action, the product it purchased was at the price of hundreds of deaths.

The historical record is tangled and incomplete, but legal responsibility for the health and safety of the miners appears to have rested largely, but not exclusively, with the states. At the same time, the resources to implement remedial measures existed mainly within the federal government.

The Atomic Energy Commission, which was the contracting agency of the federal government in its role as sole purchaser of uranium, interpreted the Atomic Energy Act as not providing it with authority over health and safety in the mines. It is not clear to the Committee why the AEC, as in the case of beryllium, could not have made ventilation a requirement of any contract to mine uranium, or, in any event, why the AEC could not have sought clarification of its authority from Congress. The Labor Department appears to have had authority under the 1936 Walsh-Healy Act to ensure safe working conditions in the mines, but for reasons that are again unclear to the Committee, it was not until 1967 that the Department of Labor applied the act.

According to the Begay decision, the United States did not recruit miners to work in the mines, nor did it cause the miners to be exposed to hazard or withhold treatment from any individual. None of the considerations, however, detracts from what was for the Advisory Committee an overarching determinative consideration: without the federal government's initiative and its role as sole purchaser, there would not have been an American uranium industry. Because the government played a pivotal role in putting the miners in harm's way, it follows that the government had a moral obligation to ensure that the harm be controlled, at least to a level of risk that was not in excess of those risks normally associated with underground mining, an argument the government used to act in the case of beryllium.

The uranium mines were not ventilated, however, adding particular significance to a second moral issue raised by this case: Why were the miners not warned about the risk to which they were being exposed, particularly as the likely magnitude of the hazard became clear? Although this question can be properly put to all the relevant parties, including the mine owners, the state governments, and the various federal agencies, most attention has focused on the Public Health Service. Investigators of the PHS were the only federal officials in direct contact with miners as they recruited and then followed the miners in the course of their epidemiological studies. Also, it was in the course of these studies that important evidence about the severity of the risk was accumulated.

When the data collected by the PHS indicated the miners were working in an environment where the threat of lung cancer was significant, which was clearly the case after the Bale-Harley findings, and when the PHS observed in the early 1950s that the states and owners were not ventilating the mines to mitigate the hazard, the PHS was obligated to warn the miners about the implications of its research. This research appears to have been conducted, however, under oral understandings with the mine owners that the PHS researchers would not directly warn the miners of the level of hazard.[116]

The question arises, of course, of whether the PHS should have entered into an agreement to study the miners conditioned on not warning them of the hazard to which they were being exposed. The argument for accepting this condition is that it was the only way the PHS researchers could gain entry to the mines and that ultimately the study results would be valuable and likely save some lives. But acceptance of the condition precluded the PHS from dealing in a straightforward manner with the people they were proposing to study and from providing a warning that had the potential, in this case, for saving at least some lives. The Committee is divided on this issue. Some members concluded that the condition was morally objectionable and should have been rejected, even if this meant that the research could not go forward or could go forward only in a limited way.[117] Others argued that a morally acceptable course would have been to accept the condition and, as the results emerged, warn the miners anyway, because in this case the duty of promise keeping was justifiably overridden by the duty to prevent harm.

The PHS's decision to abide by the agreement not to warn the miners is particularly troubling in light of a regulation, as noted by the court in the Begay decision, in force from 1951 to 1978, that governed the disclosure of information obtained and conclusions reached for PHS surveys, research projects, and investigations. The regulation said, in part, that information "obtained by the Service under an assurance of confidentiality . . . may be disclosed . . . whenever the Surgeon General specifically determines disclosure to be necessary (1) to prevent an epidemic or other grave danger to the public health. . . ."[118] Certainly at some point the potential and eventually realized lung cancer epidemic qualified under this regulation. The PHS's 1952 interim report is clear that "certain acute conditions are present in the industry which, if not rectified, may seriously affect the health of the worker."[119] So, while the PHS had legal as well as moral standing to breach its confidentiality agreement, it did not do so, although it appears to have made efforts to communicate its findings, their implications, and abatement recommendations to health authorities, the AEC, mine operators and owners, and state agencies.[120]

The agreement between the PHS and the mine owners no doubt also affected what PHS investigators were willing to tell the miners about the purpose of their investigations at the time the miners were recruited to participate. The PHS told the miners little more than that they were studying "miners' health."[121] In fact they were studying (1) the relationship between exposure to radon and other conditions in the mines and miners' health and (2) engineering methods (specifically, ventilation techniques) for controlling radiation hazards.[122] Had miners been told the true purpose of the study then, even in advance of any warnings connected with the progress of the research, it is possible the miners could have used this information to advocate for their interests. Even if the miners were not well positioned to seek employment elsewhere or to advocate for improved working conditions, the principle of respect for the self-determination of others would have required a more straightforward disclosure.

Current guidelines for the ethics of epidemiological research, as well as current practices, would not counsel the original bargain with the mine owners, the minimal disclosure made to workers about the purpose of the research, or the failure to warn the workers as the hazard became clear. For example, the current Council for International Organizations of Medical Sciences (CIOMS) guidelines explain: "Part of the benefit that communities, groups and individuals may reasonably expect from participating in studies is that they will be told of findings that pertain to their health."[123] The CIOMS guidelines also specify a duty not to withhold, misrepresent, or manipulate data.[124] Today, it is widely recognized among epidemiologic researchers that they have an obligation to report findings indicating potential or actual harm, along with the uncertainties of those findings, to the people being studied and to the public at large.

Although the Committee believes that the federal government should have acted to ensure that the mines were ventilated and that the PHS should have informed the miners about the severity of the risk it was investigating, the Committee did not have enough information to assess the moral responsibility of individual AEC and PHS employees and officials for these failures. Some effort was made by some investigators to get the states and mine owners to ventilate the mines, and some warnings may have been given to individual miners. But the ventilation effort was inadequate and the warnings ineffectual. We lack the information to evaluate whether officials such as Duncan Holaday, Henry Doyle, and Merril Eisenbud should have done more than they did to protect the miners, granting that their superiors had ultimate responsibility for decisions not to press for ventilation and warnings. Whistleblowing to avert serious harm is an important moral responsibility, but there are personal prudential considerations unknown to us that must be weighed before judging whether these people failed in their duty.[125]

While federal and state agencies may debate internally and with one another the limits of their authority, from the vantage of those exposed to risk by the government, the government should be reasonably expected to do what is needed to sort out responsibility and to ensure that action is taken to address risk. This did not happen. Perhaps the most remarkable aspect of the uranium miners tragedy is that, notwithstanding the national security context, so much of it took place in the open; so many federal and state agencies were participants, often with some formal degree of responsibility or authority in an unfolding disaster that appears to have been preventable from the outset.