Gallup Independent

RECA needs some common-sense changes.

By Kathy Helms
Dine Bureau

Friday, November 16, 2007

WINDOW ROCK - It's time Congress rolled up its sleeves and made necessary amendments to the Radiation Exposure Compensation Act so that it assists the Navajo people in a better way, according to Keith Killian with the firm of Killian, Guthro and Jensen in Durango.

Speaking at last week's Uranium Roundtable in Washington, Killian outlined changes proposed by the Navajo Nation to fix the act, including allowing the use of affidavits to establish residency, allowing the combination of work history between miners, millers and ore haulers, and expanding the list of compensable diseases for miners.

Other recommendations are to broaden the act to add core drillers - not now included - and to compensate on-site nuclear test participants and downwinders equally with uranium workers, plus give them medical benefits, which they do not have.

Additional changes would expand the covered downwind counties to include portions of New Mexico and extend the timeframe of coverage beyond 1971 to include Post-71 miners.

Regarding the use of affidavits, Killian said currently under 20CFR affidavits may be used only to substantiate the claimant's uranium mining employment history.

"Right now you cannot use an affidavit to prove a downwind claim. You can use it to prove mining, but you can't use it to prove hours of work for millers or ore haulers, and of course, core drillers aren't even included. On-site participants and downwinders can't use it," he said.

An allowance for the combination of work history also is needed, he explained. "The Department of Justice has recently changed the way they interpret this regulation. The current regulation is the following: 'Any claim that does not meet all of the criteria for even one category that is set forth in Paragraph A of this section must be denied.'

"If you buy that regulation as it's written, if you are a miner with 11 months of mining and you also have 11 months of mill-working and have a diagnosis of renal cancer, there's no way you can qualify. Why is that? Because if you're a miner, renal cancer is not covered, and even if you have a total of 22 months and you only need to qualify a year, you're going to be denied," he said.

An expanded list of compensable diseases is needed, he said, because in 1990, when RECA was enacted, it only provided for protection for miners. In 2000, it included millers and ore transporters.

"In 2000, the act said that if you have kidney cancer or chronic renal disease, and you're a miller or ore hauler, you get compensated. If you have the same disease and you're a miner, you don't get compensated.

"Now, these miners drank (mine) water. We have countless stories of them doing that. It can cause kidney problems and cancers.

"If you're an ore transporter and you transport the ore from the mine and you have a kidney disease, you get compensated. If you're a miner, you don't. It doesn't make sense. We can fix that," Killian said, adding that the list also should be expanded for miners to include renal cancer and kidney disease.

Core drillers should be included, he said, because they were "constantly exposed to dust clouds and radon daughters" while taking core samples for uranium. "You can have the same diseases a miner, miller or ore hauler have, yet you're not eligible for compensation. We can fix that."

Regarding downwinders and on-site nuclear test site participants, Killian said, "Let's say you're the widow of a man who was exposed to downwind radiation in southern Utah. As a result, your husband has died. You're entitled to $50,000 vs. $150,000 if he had been a miner - the same thing with on-site participants. Let's treat on-site participants and downwinders the same way as far as compensation as we do the uranium workers."

Additionally, a downwinder with lung cancer or one of the other qualifying cancers is not entitled to health treatment. "Why is that?" Killian asked. "If you're exposed to radiation just like the millers, and you're on your deathbed, you're not entitled to health care. Can't we fix that or consider fixing that?"

He also made a case for expanding the list of covered downwind counties. "Right now, if you're in specified counties in the state of Nevada, the state of Utah, or the state of Arizona, and you're exposed to nuclear test site radiation from Nevada Test Site, you would qualify.

"But let's say, Congressman Udall, you live in central New Mexico and you're exposed to fallout from the Trinity test - one of the dirtiest ones ever exploded - you're not qualified for downwind. The dosimetry maps show there was a great deal of contamination in central New Mexico," Killian said.

Though the maps indicate "a great deal of radiation" from fallout trailing from Santa Fe to Roswell, residents are not entitled to compensation, he said. "If you happened to be on-site for the Trinity test, you would be compensated, but if you're downwind from that test site, you can't be compensated."

Dosimetry maps from Nevada Test Site done in the 1950s show that fallout traveled over Utah and on to Colorado, but Colorado is not covered, Killian said. Similarly, the maps show that Idaho and Montana were heavily irradiated, yet they too, are not included. Legislation is pending to add them as downwind states.

Downwind counties currently compensated are in portions of Nevada, Utah and Arizona. "If you happen to live in Window Rock and you've been exposed to compensable cancers, you can qualify. But if your sister lives across the border in New Mexico, you don't qualify. That's kind of hard because the Navajo Nation is in both states," he said.

Gerard W. Fischer of U.S. Department of Justice said that since the first roundtable in 2004, he has seen an increase in RECA compensable cases.

"Before we started this process, the Navajo claims were about 50 percent approval, 50 percent denial, depending on the year," he said. Currently, "We're at about 68 percent approval. We're incredibly proud of that."

Five or 10 years ago, "RECA was really the only show in town," Fischer said. Over that time, the Energy Employees Occupational Injury Compensation Act was added. "We have people coming into RECA who really should be going into the Department of Labor program" because they don't fit the RECA criteria, he said.

Another argument for RECA change, according to Fischer, is "The downwinder area on the Navajo Nation doesn't cover the entire Navajo Nation. Part of New Mexico is not covered. We get a lot of claimants who apply for benefits, they've lived and worked their entire lives on the Navajo Nation, but they're not going to qualify unless there's a change in the act."