View this article online: https://www.claimsjournal.com/news/west/2016/08/10/272707.htm
As of last week, 219 current or former Wah Chang employees or their survivors had received more than $35 million in benefits as compensation from the federal government for cancers contracted through radiation exposure at the Millersburg, Ore., metals refinery.
Most of them owe a debt of gratitude to Mark Backer, whose petition on behalf of his late father, Roy Backer, was the basis for establishing “special exposure cohort” status for the plant, a designation that made it much easier for claimants to qualify for benefits.
The Backer family, however, has yet to see a dime in compensation. Even though it was Mark Backer’s petition that created the special exposure cohort covering hundreds of Wah Chang employees, his father’s claim has never been approved by the U.S. Department of Labor.
“I have fought with them since Clinton was president,” Backer says today.
“I’m glad somebody got something out of all this hard work, but this whole thing is crazy.”
The Wah Chang plant in Millersburg (now officially called ATI Specialty Alloys and Components but still widely known by its original name) began operations in 1956 to produce zirconium using a process developed by the U.S. Bureau of Mines’ Albany Research Center. The facility just outside Albany remains a major refiner of zirconium, used in fuel assemblies for nuclear reactors, as well as other exotic metals such as hafnium, niobium, tantalum and vanadium.
Many of the metals that come out of Wah Chang have military applications, and for a brief period – Jan. 1, 1971, to Dec. 31, 1972 – the company had a contract to melt down and reprocess depleted uranium for the U.S. nuclear weapons program.
While there are multiple sources of radiation at the 110-acre plant, the uranium was potentially much more dangerous. Wah Chang officials have not disclosed how much depleted uranium went through the plant over that two-year span, but the company’s state-issued radioactive materials license authorized it to have up to 50,000 pounds of the stuff on site at any one time.
According to the company’s current license, roughly 5 pounds of depleted uranium remains on the site inside a mothballed electron-beam furnace.
Because the radiation hazard was connected to nuclear weapons production, Wah Chang was covered as an atomic weapons employer under the Energy Employees Occupational Illness Compensation Program Act, or EEOICPA for short. Congress passed the law in 2000 to provide cash compensation and medical benefits to workers at hundreds of privately owned factories and government laboratories involved in the nation’s Cold War nuclear weapons buildup, many of whom were exposed to cancer-causing radiation without their knowledge or consent.
Part B of the program provides compensation of $150,000 and covers medical expenses for qualifying atomic weapons workers who develop one of 22 types of cancer as a result of workplace radiation exposure.
Mark Backer learned about the program shortly after it went into effect, and on July 29, 2002, he filed a claim for benefits on behalf of his mother, Melva Backer. The claim sought compensation for the death of her husband, Roy, who worked at the Bureau of Mines’ Albany Research Center at 1450 Queen Ave. S.W. from 1951 to 1956 and at the Wah Chang plant in 1956 to 1979.
Roy Backer, a chemical engineer, was involved with the Wah Chang plant in Millersburg from the very beginning, when it first spun off from the Bureau of Mines. As his son puts it, “He built that plant.”
He became superintendent of the plant’s separations division, a job that frequently left him covered in grime. As Mark Backer recalls, he would come home so filthy that his wife wouldn’t let him in the door.
“My mom made him get undressed before he came into the house,” he said. “The next day, the bushes where he hid his clothes were dead.”
Later, the family would wonder whether something Roy Backer was exposed to at work led to his own early death.
In 1974 he was diagnosed with melanoma, a type of skin cancer. Despite years of chemotherapy treatments, his illness grew progressively worse, eventually metastasizing into lung cancer. He died on Nov. 3, 1981, at the age of 59.
“He never cashed a single Social Security check,” Mark Backer said.
While Backer was convinced that his father’s death was connected to his work, proving it is another matter.
Obtaining benefits through EEOICPA hinged on a process called dose reconstruction, which attempts to document how much radiation someone was exposed to on the job and what the health effects of that exposure might have been. If the dose reconstruction team determines it is “at least as likely as not” that workplace radiation exposure was the cause of a covered cancer, the claim is approved. If the likelihood is less than 50 percent, the claim is denied.
It’s a tricky process, especially when it needs to be done long after the fact. In Roy Backer’s case, more than six years elapsed from the time a claim was filed until his son was notified that “sufficient information has been gathered from the available records sources to initiate reconstruction for your claim.”
That was in March 2010, and Mark Backer was at his wits’ end.
“This thing has been nothing but an exercise in frustration and anxiety,” he said.
But then Backer learned about another option. Someone familiar with the EEOICPA told him about the special exposure cohorts that had been set up at certain atomic weapons employers. For job sites covered by a special exposure cohort, no dose reconstruction is required. The presumption is that anyone who was employed for a certain amount of time at an special exposure cohort site – typically 250 work days, a standard work year – and developed one of the specified illnesses is eligible for benefits.
There was no special exposure cohort for Wah Chang at the time, but Backer didn’t let that stop him. He asked the government to create one.
On June 9, 2010, Backer submitted a special exposure cohort petition to the National Institute of Occupational Safety and Health, which handles dose reconstructions for EEOICPA benefits. In the NIOSH petition, he argued that attempting to perform a dose reconstruction for his father’s radiation exposure based on workplace records was impractical because “there was no monitoring for internal or external exposure and there was no protection (gear or working environment).”
The petition asked that a special exposure cohort be created for all employees who worked at Wah Chang during two specific time periods: Jan. 1, 1971, through Dec. 31, 1972, when depleted uranium was being reprocessed at the plant, and Jan. 1, 1973, through Jan. 11, 1979, when Backer’s father left Wah Chang to go to work for another company.
A NIOSH advisory board evaluated the petition and recommended that a special exposure cohort be created for anyone who worked at Wah Chang for at least 250 days between Jan. 1, 1971, and Dec. 31, 1972, when the depleted uranium work was being done. The designation was formally approved on April 29, 2011. (A residual exposure period was also established for employees who worked at Wah Chang between Jan. 1, 1973, and March 1, 2011. Those workers could still establish a claim for benefits but would still have to go through dose reconstruction.)
Mark Backer won that battle, but he still lost the war.
Even though his father worked at Wah Chang during the special exposure cohort period and was ultimately diagnosed with a covered condition – lung cancer – shortly before his death, his claim was eventually denied on what Backer claims is a technicality.
The doctor who treated Backer’s father specified that he had cancer of the pleura, the membrane that wraps around the outside of the lungs. For that reason, he said, the claim was rejected.
“My father’s cancer spread to his arms, then to the body cavities and finally to his lungs,” Mark Backer said. “But because his surgeon said it had spread to the pleura of the lungs, they said it wasn’t a covered cancer.”
While it may not have helped the Backers, the creation of the special exposure cohort has been a godsend to other Wah Chang claimants.
Of the 465 Wah Chang workers who have filed claims for benefits under the EEOICPA, less than half – 228 – were covered by the special exposure cohort. But almost 72 percent of those claims have been approved, compared to just 24 percent of claims that required dose reconstruction.
Among the people who have received compensation is the family of Roy Backer’s brother Leo, who worked at Wah Chang and later died of cancer. A number of other family members have also worked at the Millersburg plant and could ultimately benefit from the compensation program, including Mark’s brother Greg Backer, who worked for 10 years as an electron-beam furnace operator.
Mark Backer himself spent some time as a Wah Chang employee, working there in the summers to pay his way through college.
“My job was checking scrap metal with a Geiger counter,” he said.
Garry Steffy, an ex-Wah Chang employee who has led the charge to spread the word about the EEOICPA despite the company’s refusal to provide contact information for former workers, said Backer’s special exposure cohort petition laid the groundwork for that success.
“His filing was great for everybody else,” Steffy said.
But while he’s sympathetic to the Backer family’s plight, he’s also concerned with the hundreds of other former Wah Chang employees whose claims have been denied.
“I’m grateful they filed this claim and got the whole thing going,” Steffy said. “But if they weren’t eligible for it, there were a whole lot of other people who weren’t eligible either.”
Meanwhile, Mark Backer has continued to press his father’s claim. From his home in the San Francisco Bay area, he has fired off letters to Labor Department hearings officers, U.S. senators and anyone else he thinks may be able to help his cause. So far, nothing has worked.
He also filed a claim seeking compensation for the death of his maternal grandfather, Fearn Jordan, who worked as a janitor at the Bureau of Mines’ Albany Research Center and died of cancer at age 63. That claim, too, was denied, although some workers at the facility have received compensation under the EEOICPA.
At this point, Backer says, it’s not really about the money. If his 90-year-old mother were to receive compensation, it would go to help cover the costs of her healthcare, which would quickly use up all the funds.
But it would provide a kind of validation.
“It would mean acknowledgment of my grandfather and my father’s contributions to our nation’s defense,” Backer said.
Both men served in the military during wartime, and both went on to jobs with Department of Energy contractors involved in atomic weapons work that may have exposed them to hazardous radiation. And both, Backer said, made the ultimate sacrifice.
“I believe consequently, as a result of that, they both died prematurely,” he said. “And that should be acknowledged.”
The family has received one thing from a grateful nation.
In 2009, Congress designated Oct. 30 as a national day of remembrance to honor the sacrifices made by the thousands of atomic weapons workers who helped build up America’s nuclear arsenal during the Cold War. A year later, Mark and Melva Backer received a handwritten letter from Denise Brock, an ombudsman with the National Institute for Occupational Safety and Health, thanking them for “the selfless service that your loved one gave in defense of our Country.”
Enclosed was a small bronze lapel pin commemorating the Manhattan Project, which developed the atomic weapons dropped on Japan to end World War II.
For Mark Backer, it was a slap in the face for a woman who lost both her father and her husband.
“They sent my mom an atomic bomb pin,” he said. “I wish I was making this up, but I’m not.”