Begay v. United States, Civ. 80-982 Pct. WPC

• Decision Date: 16 July 1984
• Docket Number: No. Civ. 80-982 Pct. WPC,Civ. 81-1057 Pct. WPC.,Civ. 80-982 Pct. WPC
• Citation: 591 F. Supp. 991
• Parties: John N. BEGAY, et al., Plaintiffs, v. UNITED STATES of America, Defendant. Phillip ANDERSON, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Arizona

591 F. Supp. 991

John N. BEGAY, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Phillip ANDERSON, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Nos. Civ. 80-982 Pct. WPC, Civ. 81-1057 Pct. WPC.

United States District Court, D. Arizona.

July 10, 1984.

As Amended July 16, 1984.

Stewart L. Udall, William P. Mahoney, Jr., Gilbert T. Venable, Phoenix, Ariz., Albert Hale, Window Rock, Ariz., Thomas S. Udall, Santa Fe, N.M., for plaintiffs.

A. Melvin McDonald, U.S. Atty., James Loss, Asst. U.S. Atty., Phoenix, Ariz., Paul Figley, Trial Atty., Torts Branch, U.S. Dept. of Justice, I. Avrum Fingeret, Edward Jiran, Laura Rockwood, Trial Attys., U.S. Dept. of Energy, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

COPPLE, Senior District Judge.

BACKGROUND

The controversy involved in these two consolidated cases can be said to have had its first stirrings almost five hundred years ago in two small isolated villages in Europe.

In 1952 an Interim Report of a Health Study of the Uranium Mines and Mills by the Federal Security Agency, Public Health Service, the Division of Occupational Health and the Colorado State Department of Public Health (Def.Ex. 118) summed up the "European Experience":

In the mines of the Erz Mountains, on both the Bohemian and Saxon sides, it has been known for centuries that the miners die in the prime of life with symptoms of damaged lungs and rapidly progressing ill health. These conditions, especially well known at the Schneeberg mines in Saxony, have been mentioned or described by many writers, including Agricola in 1500, Matthesius in 1559, and Pansa in 1814. It was not until 1879, however, that certain European investigators, through clinical and anatomical research, proved the affliction to be a malignant tumor of the lungs.

On the Bohemian side of the Erz Mountains in Czechoslavakia, about 30 kilometers south and east of Schneeberg, is Jachymov. This small mining town of about 8,000 inhabitants has been world famous as a source of radium from the beginning of the present century, but the history of the mines dates from the 1500's. Early in 1516, rich veins of silver were found in the Jachymov area. Exploitation was then begun but owing to the wasteful methods of mining at that time, the veins were almost exhausted by the end of the 16th century. Later, these mines were exploited for cobalt, nickel, bismuth, and arsenic. In the second half of the 19th century the exploitation began of uranium ore, found chiefly in the form of pitchblende. After Madam Curie's discovery of radium, the pitchblende in the Jachymov mines was processed for radium.

In Jachymov, as in Schneeberg, there has been a high mortality among the miners from pulmonary diseases, notably lung cancer. The similarity between the diseases developed by the miners in these two mining areas was not definitely established until about 1926. Environmental studies have shown that both mines have rather high concentrations of radon because of the presence of radioactive ores.

The causative agent for the lung cancers in these two mining areas has been controversial for a number of years. The etiological agent has been variously attributed to be cobalt, nickel, or arsenic. Others have expressed the view that radon and its decay products are responsible for the cancer of the lungs. It is probable, however, that no single agent can be blamed for this high incidence but a number of combined effects of environmental factors which are difficult to evaluate.

Information available in the medical literature of this country indicates there was an attack rate of about 1 percent per year of lung carcinoma among the miners working in these mines. It is also reported that 50 to 70 percent of all the deaths of the workers in these mines were due to a primary cancer of the respiratory system. This information was the only material available which indicated the health hazards associated with uranium mining.... It must be pointed out, however, that this disease usually has developed only after an average exposure of seventeen years. Moreover, in any attempt to use these findings as a guide, cognizance must be taken of the fact that, in contrast to European practices, American operations are more intermittent. According to the Atomic Energy Commission, generally only one shift is employed, and the mines are not worked on a round-the-clock basis.

Also quoting from defendants' Exhibit 118 as to Radon, its Biological and Physical Properties:

Uranium ores contain uranium plus all the other members of the radioactive family, of which uranium is the parent. Included in this list is radium, which is transformed into radon gas.

Radon is the heaviest gas known, being about seven times as dense as air. It is absolutely inert chemically and will react with no other material. As it is a gas, it will diffuse from the rocks or be released by drilling and blasting operations and will become dispersed throughout the atmosphere of the mine. It is radioactive and has a half life of about four days, which means that in this period of time one-half of the radon will transmute into other radioactive elements.

The radiation hazard involved in the mining of uranium ores comes from the radioactive gas, radon, and two of its most important daughters, RaA and RaC1. All of these elements emit alpha particles which are very energetic and will damage body cells with which they interact.

As radon is a gas, it is breathed in along with the air in the mine and while in the lungs will continue to decay, emitting alpha particles and producing RaA, RaB, RaC, and RaC1. The daughters of radon will also decay in the lungs, likewise emitting alpha particles besides gamma and beta. Furthermore, some of the radon enters the blood stream. Potential hazard to the lung tissue arises mainly from the alphas from Rn, RaA, and RaC1.

Under usual mine conditions, large numbers of dust particles and water droplets are present in the atmosphere to which the solid decay products of radon will become attached. This dust will be inhaled and carried into the lungs where a portion of it will be retained and decay as outlined above, thus delivering additional radiation to the lungs. The amount of this dust-borne radioactivity that is present in mine atmospheres will depend on the ventilation, air turbulance, and probably other factors.

Case No. Civ. 80-982 Pct. WPC was filed in 1980 with ultimately 144 plaintiffs. In 1981 case No. Civ. 81-1057 Pct. WPC was filed with 61 plaintiffs. These cases were consolidated for all further proceedings. All plaintiffs are Navajo Indians residing on the reservation in Arizona. They are either Navajo miners who formerly worked in the underground uranium mines in Utah, Colorado, New Mexico and Arizona, both on and off the Navajo reservation, or survivors of such deceased Navajo uranium miners.

This trial involved eleven miners or their survivors, as a representative group, selected from Civ. 80-982, to-wit:

Zane Gray James Garnenez Horace Ben Dan T. Benally Roy Bekis Roy Benally Lee C. Coty Clarence Frank Will Tuni Kee Yazzie Robert Yazzie

Plaintiffs allege jurisdiction pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. The identical claims are based on injuries allegedly caused by excess exposure to ionizing radiation in the uranium mines from 1948 through 1961. Plaintiffs allege various legal theories in support of their complaints and the government asserts various defenses which will be discussed later in this opinion.

For easy reference and identification of abbreviations used hereinafter, a Glossary of Abbreviations is attached as Appendix A.

FINDINGS OF FACT

Because the facts and chronology of relevant acts and events are largely undisputed, the court has borrowed liberally from the government's very detailed and complete statements contained in its proposed findings of facts. Also see the court's tentative findings and conclusions as summarized at the end of the trial. (Tr. 2233-2248) The legal consequences flowing from those acts and events are very much in dispute.

Mining of uranium-vanadian bearing ores in the United States began at the turn of the century in the Uravan Mineral Belt portion of the Colorado Plateau in western Colorado and Eastern Utah. The ores were first mined for uranium for use as a ceramic coloring agent and for radium, which is associated with uranium. Most of the mines were closed in 1923 because of competition from foreign sources of higher grade radium. In the 1930's, mining was resumed, this time for vanadium. The relatively small domestic supply of uranium obtained for the nuclear weapons developed by the Manhattan Project was derived from vanadium mill tailings. Mining of uranium for AEC use started in the late 1940's and grew rapidly during the 1950's. For example, in 1950, about 650,000 pounds of uranium oxide were purchased and in 1959, over 30 million pounds were purchased. (Pl.Ex. 115, pp. 155-156) Contraction in the industry began when demand reduced in 1956. Many mines closed and the size of the industry steadily decreased. (Pl.Ex. 115, pp. 157-158)

There was a wide range in the size of individual uranium mines and in the types of mines in the various states. Wyoming had a large number of small mines mainly underground. New Mexico developed most of the large underground mines, but also the largest open pit mine. A comparatively few large mines produced most of the ore. (Pl.Ex. 115, p. 156)

Size of the work forces varied as widely as the size of the mines. A comparatively few large mines employed most of the underground labor. In the mid-1960's, New Mexico mines employed about one-half of all uranium miners, although they represented only 5 percent of the total number of uranium mines. Mines in Colorado and Utah employed less than 8 percent of the miners, although they represented about 50 percent of the total number of uranium mines at that time. (...