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Radiation study set up as defense, records show

SUNDAY, FEB. 13, 2005

It was supposed to be neutral probe into Hanford’s effects on public

A $27 million Hanford study that was the first to estimate radiation doses to the public from a U.S. weapons complex was touted as unbiased and scientifically neutral when it got under way in 1988.

But documents recently obtained for a federal trial show the Hanford Environmental Dose Reconstruction study was actually set up at least in part to defend the government against lawsuits by exposed people.

The records were obtained by lawyers for more than 2,000 people who sued Hanford contractors starting in 1990 over their exposure to radioactive iodine-131 releases during World War II and the Cold War. The first phase of their trial starts April 11 in Spokane.

The documents, part of the massive Hanford Nuclear Reservation downwinders’ case file, show significant conflicts of interest in the taxpayer-funded dose reconstruction study. They show that:

After the secret Hanford releases were finally made public in 1986, the U.S. Department of Justice opposed a dose study as useless “public relations” – but changed its mind as soon as the first lawsuit for radiation damages was filed.

The Energy Department and the Justice Department set up the study in 1988 to provide “litigation defense” to fight claims by exposed people, according to a highly placed government attorney.

Some of the Battelle Pacific Northwest Laboratories staff in Richland who worked on the study also worked for the Justice Department and for Kirkland & Ellis, the Chicago law firm hired to defend Hanford contractors against radiation injury claims.

Battelle changed its conflict-of-interest policy in 1992 to prohibit HEDR staff from also working for lawyers defending the government. But Battelle’s chief records manager continued to work both for the study and for the government’s litigation defense team.

The documents provide “startling evidence” that the study was shaped to “support the litigation positions that the government and Hanford defendants anticipated,” including choosing radiation dose estimates that minimize the estimated radiation exposures, Seattle lawyer Tom Foulds said in a court motion.

Kevin Van Wart, of Kirkland & Ellis in Chicago, lead attorney for the Hanford contractors, denied that HEDR was set up to favor the defense. Plaintiffs’ lawyers also wanted a dose reconstruction study in the 1980s as a guide to future litigation, he said.

“It’s absurd. This is all smoke. At trial, each side is going to present their own best estimates of the doses the plaintiffs received,” Van Wart said.

Thyroid study criticized

The HEDR radiation dose estimates, compiled in a complex computer program, were also used by a second group of scientists at the Fred Hutchinson Cancer Research Center in Seattle for the $21 million Hanford Thyroid Disease Study, an epidemiological study that explored the possibility of a link between the Hanford releases and thyroid disease in 3,440 people exposed as children.

In 1999, that study concluded it could find no link between Hanford’s radiation clouds and excess thyroid death and disease downwind.

But if the HEDR “source code” – radiation data fed into a computer program to determine estimated doses – were skewed or inaccurate, that would affect the outcome of the Hanford thyroid study, which stands as an anomaly among other studies in the Marshall Islands and Ukraine that show clear associations between iodine-131 exposures and an increase in thyroid cancers and disease at higher doses.

The National Academy of Sciences has criticized the thyroid study for its weak statistical power – its ability to detect a radiation effect.

‘Die was cast in 1986’

Lawyers for the downwinders will critique the two Hanford studies at the April trial, while the defense will present them as sound science.

The HEDR study has long been suspect, said Bob Alvarez, a prominent nuclear critic and former aide to Sen. John Glenn, D-Ohio. Alvarez served in the Clinton administration as deputy assistant secretary for planning and security at the Energy Department.

Washington and Oregon pressed for a dose study totally independent of the Energy Department after documents released in March 1986 showed massive clouds of radioactive iodine-131 escaped from Hanford in the 1940s and early ‘50s during the production of plutonium for nuclear bombs.

The states lost that battle because the Energy Department refused to pay for an independent study, Alvarez said.

“The die was cast in 1986 when DOE bestowed on Battelle the responsibility for dose reconstruction at Hanford. The primary motivation was to stave off liability associated with these large releases,” Alvarez said.

Lawyers representing thousands of Hanford downwinders were barred by the case’s previous judge, U.S. District Judge Alan McDonald, from pursuing any discovery about HEDR until the mid-1990s in a “hands off” order that allowed the scientists to finish their work without interruption. The study was finished in 1994.

Meanwhile, the Energy Department was portraying the study as independent and unbiased.

The HEDR study “will answer the questions of Northwest citizens regarding the facts of Hanford’s past operations with hard, scientific evidence that has been fully and completely reviewed by independent, outside experts,” DOE said in a Jan. 27, 1988, press release.

After the study was finished, plaintiffs’ lawyers encountered resistance to their renewed records requests. The Energy Department claimed “privilege” over 16 of the documents requested, but eventually released 14 of them.

The lawyers also learned they’d been denied 18 boxes of other HEDR project records that Battelle had designated as “non-records.” Many of the “non-records” were from the files of project manager Dilbert “Dil” Shipler and Shirley Gydesen, Battelle’s information resources task leader.

Those records show that litigation defense was central to the government’s plans for the Hanford study.

In May 1986, when the Justice Department was first considering such a study, Avrum Fingeret, DOE’s assistant general counsel in Washington, D.C., requested a meeting in the Pacific Northwest.

“I believe that it is essential that Battelle be present so the litigation elements can be considered and worked into the study at its inception,” Fingeret said in a letter to Energy Department deputy litigation counsel Henry A. Gill Jr.

In another memo to Gill a year later, Fingeret said Justice initially opposed a dose study but changed its mind – after a Colville Confederated Tribes member filed suit for radiation damages.

“Indeed, DOJ now considers the study as coming within the definition of ‘reasonable’ litigation support,” Fingeret said.

In a planning memo for a June 17, 1987, meeting with Battelle, Fingeret said the Justice Department wanted input into the study “to support the ongoing and anticipated litigation involving alleged injuries from emissions.”

Defense lawyers hired HEDR workers

Two people working for HEDR, Walt Haerer and documents expert Shirley Gydesen, also worked for the defense lawyers, the records show.

Haerer, Battelle’s former environmental monitoring manager, ran HEDR from 1988 until his retirement in 1990. When he left Battelle, he went to Halliburton NUS Environmental Co. in 1991 and then to Golder Associates, where he continued to work as a consultant to Battelle on HEDR’s iodine-131 computer code. At the same time, he was a consultant to the Justice Department and Kirkland & Ellis.

Haerer had a limited role with the law firm, Van Wart said. “We hired him to get up to speed on the (HEDR) project,” he added.

Haerer met with David Bernick of Kirkland & Ellis and called Battelle on behalf of the law firm to discuss the iodine-131 computer code on several occasions in 1991.

Bernick, who also represents W.R. Grace in its Chapter 11 bankruptcy and Big Tobacco in recent national litigation, said he still has some involvement in the Hanford case. He said his 1991 meetings were to collect historical documents about Hanford operations – not to influence the iodine-131 source code that Haerer was working on.

“I’m not aware that anything was ever done to compromise the HEDR study,” Bernick said.

By May 1991, the frequent contacts between the HEDR managers and the defense lawyers had ruffled some feathers at Hanford. Meeting notes that month refer to a query about Gydesen working for the defense lawyers. “Wrong – improper – looks bad – Shirley working for lawyers,” the notes say.

John Till, a South Carolina scientist appointed to lead the project’s Technical Steering Panel, also called about the controversy, the meeting notes show.

“Policy – no HEDR staff to work on litigation,” the notes say.

In a recent deposition for the downwinders’ trial, Till said he wasn’t aware that some Battelle staff had dual roles, and he defended the independence of his project steering panel.

Till has been hired as an expert witness for the defense in the upcoming trial. “I’d prefer not to comment on this,” Till said last week when contacted.

New guidelines created

As a result of the controversy, HEDR’s project management plan was revised in 1992.

HEDR staff was directed to follow new guidelines about ongoing lawsuits to “preclude misunderstandings or conflicts of interest and maintain public confidence,” the plan says.

However, Gydesen continued to serve a dual role.

In 1993, according to her signed job description, Gydesen’s goals were to provide documents to Till’s panel and the public “to ensure public credibility.”

Her other job: “Through a contract with Golder or through other approved methods, provide historical information essential to the U.S. Department of Justice and other litigation teams, in their preparation of defense to the numerous cases filed against the DOE, duPont and General Electric Company and other named Hanford contractors. Develop unique approaches to these legal information requirements through your in-depth knowledge of the materials.”

Now retired in the Tri-Cities, Gydesen said she left Battelle in 1992 but continued to work part time on document retrieval. She said she provided documents to Kirkland & Ellis “if requested.”

“But they got nothing from me but publicly available documents,” Gydesen said.

Haerer’s resume mentions his work for HEDR, but not his consultation for the Hanford defense. But in a deposition taken by Seattle attorney Foulds on Jan. 28 in Spokane, Haerer admitted his dual role.

Now semi-retired and living in Spokane, Haerer didn’t return a reporter’s phone calls last week.

Randy Squires, of Seattle, a Hanford defense attorney who represented Haerer at the recent deposition, refused to let him answer questions about his meetings with the defense lawyers, saying those conversations are privileged.

Foulds asked Haerer whether Shipler, the HEDR manager he reported to at Battelle, knew he was working both for HEDR and for Kirkland & Ellis.

Yes, Haerer said.

Shipler, reached Thursday on Kauai, said he didn’t remember Haerer’s dual role as a consultant. “I’m not aware of any conflict of interest,” Shipler said.

While Battelle was working on the $27 million HEDR project, the company was doing $7 billion to $8 billion in other business worldwide, said company spokesman Geoff Harvey. “For us to jeopardize our credibility by marginalizing the science, it just wouldn’t happen,” Harvey said.

The credibility of the Hanford study will be a central focus in the upcoming downwinders’ trial.

During the trial of seven “bellwether” cases, the plaintiffs’ lawyers will submit their own version of dose reconstruction. Some of their experts argue that the Hanford iodine-131 doses – especially in outlying areas like Spokane – could have been up to 12 times higher than the HEDR estimates.

U.S. District Court Judge William Fremming Nielsen, who took over the case in 2003, ruled last week that the plaintiffs can present their alternative dose reconstruction analysis. Lawyers for the contractors had argued the analysis should be rejected.

Hearings over which scientific experts will be allowed to present evidence to the jury continue Tuesday in Nielsen’s courtroom in Spokane.

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