"Tragedy in the Uranium Mines: Catalyst for National
Workers' Safety and Health Legislation"
By Judson MacLaury, U.S. Department of Labor Historian
Paper Delivered at Symposium on "Lyndon Baines Johnson's Legacy"
Miami University, Oxford, Ohio, April 27, 1998
Workers' safety and health is now a major social responsibility of the federal government because of the Great Society. The legislative drive culminating in the Occupational Safety and Health Act of 1970 (OSH Act) owed its existence to the progressive outlook of the Johnson Administration. Looking back with the perspective of three decades, and considering the centurylong expansion of the government's role in this area, it would appear that the OSH Act was inevitable. It may well have been so, but the route to legislative action in the 1960s was full of hazardous twists and turns and enactment was often in doubt. Indeed, it took a news driven crisis over a tragedy to the nation's uranium miners and the concerned response of Lyndon Johnson's Labor Secretary, Willard Wirtz, to free up a process that had become bogged down in bureaucratic gridlock.
The germ of action to protect workers from health and safety hazards in their working environments was implicit in the very speech that launched the Great Society. In that May 1964 commencement address at the University of Michigan Johnson called on the nation to become "a place where men are more concerned with the quality of their goals than the quantity of their goods." This expressed a basic ideal of the Great Society, one in which Wirtz passionately believed, namely that human values should supersede economic values. In that speech Johnson said one place in which the Great Society should start to develop was what he called the "countryside," warning that "The water we drink, the food we eat, the very air that we breathe, are threatened with pollution."
Johnson appointed a number of expert task forces, a hallmark of his Administration, to develop legislation on issues such as those raised in that speech. Heading a task force on labor issues was Wirtz, a Kennedy holdover who had replaced Labor Secretary Arthur Goldberg when he was appointed to the Supreme Court in 1962. Experienced in labor law and federal programs, Wirtz had been a close political associate of Adlai Stevenson and shared his liberal and deeply humanitarian outlook. With this background Wirtz was well qualified to lead a Department dedicated to working people and traditionally friendly to organized labor. While never personally close to Johnson, and in fact eventually alienated because of opposition to the Vietnam War, Wirtz was a natural supporter of the Great Society and his speeches were infused with an idealism that was both uniquely his and also reflective of that national effort. For example, in an October 1965 speech to the Federal Safety Council Wirtz stressed that a safety program gives its participants the opportunity to do "something ... for somebody else."
Despite that speech, Wirtz was only dimly aware of occupational safety and health at that time. However, it was becoming a visible issue elsewhere in the government. One of Johnson's speech writers, Robert Hardesty, had a personal interest in the subject and made sure that the President mentioned it regularly. Responding to the nascent environmental movement, to the Great Society concern about pollution of the countryside, and presumably to Johnson's expressed interest in occupational safety and health, the U.S. Public Health Service (PHS) produced a report to the Surgeon General on workers' health titled "Protecting the Health of Eighty Million Americans." This report noted that a new chemical enters the workplace every 20 minutes and that evidence showed a strong link between cancer and the workplace, while old technology problems lingered. To remedy this deplorable situation, the report proposed that the PHS administer a national program to eliminate occupational health hazards and provide health services for workers.
Ironically, this Report was never accepted by the Surgeon General, but organized labor readily took up the cause and urged the White House to adopt the recommendations. Partly as a result, in May 1966 Johnson announced at a meeting of labor reporters that "The time has ... come to do something about the effects of a workingman's job on his health." He directed Secretary John Gardner of the Department of Health, Education and Welfare (HEW) to develop recommendations for eliminating workplace health hazards. Placing this activity clearly within the framework of the Great Society, Johnson said "the measure we apply to our national progress is how much we improve the lot of all, and especially of those who have the least [i.e. working people]."
Johnson also noted that the Administration was already working on legislation to protect the nation's miners from safety and health hazards. Federal safety protections had just been extended to all coal mines and Congress was considering broader mine safety legislation. Enacted a few months later, the Metallic and Nonmetallic Mine (MNM) Act applied to most underground miners.
Although Johnson only asked HEW for ideas on improving occupational health, the Department of Labor (DOL), long involved in improving working conditions, independently began work on its own proposal. In an attempt to coordinate their efforts the two Departments formed a joint task force. Unfortunately they had a 30 year history of feuding on occupational health to overcome. In this case, each believed it should have the primary role in a national job safety and health program and they disagreed fundamentally on the nature and scope of any such effort. HEW wanted a program of research and enforcement of health standards that would apply only to federal contractors. The Labor Department favored a comprehensive program regulating all of the nation's workplaces. Neither agency was willing to compromise. As a result, by late 1966 the task force was unable to agree on a program to recommend to the White House.
At that point each Department pursued its own approach independently. The Department of Labor's strategy was to send a draft bill to the Bureau of the Budget (BoB), which replaced the task force as the arbiter, before HEW could so that the DOL's comprehensive plan would become the starting point for any legislative proposal from the Administration. As of early 1967 the BoB had made no decision on which of these two powerful agencies would prevail. National job safety and health legislation, growing in the womb of the Great Society, was now in danger of being aborted because of bureaucratic pettiness.
Then, on March 9, 1967, Willard Wirtz, still unengaged in the issue, picked up his morning Washington Post. At the top of the front page was the headline "Washington's Air Declared Fourth Dirtiest in Nation," but what really got Wirtz' attention was a little story below the fold. Titled "Hidden casualties of Atom Age emerge; cancer: uranium mine occupational hazard," it told a tragic story built around a uranium miner named John Morrill. Like many of his colleagues, Morrill was dying of lung cancer caused by exposure to the radioactive products of radon gas with the harmless sounding name of "radon daughters." It was also a story of multiple federal agencies failing for decades to come to grips with the problem, even though it was well documented. Furthermore, according to Post reporter John Reistrup, it was a problem that was expected to become even more serious because of an anticipated doubling of uranium production to meet the needs of the expanding nuclear power industry. Reistrup later recalled that even though the problem was well known to the government the news media had never previously publicized it. In his article he charged that: "The problem of the uranium miners just has not caught on." But it did with Wirtz that morning. What struck him about the situation was "the realization that I didn't know anything about it and that I thought I should."
Although the article did not name the Department of Labor among those that had dropped the ball in this crisis, Wirtz' reaction was that "It seemed as though the Department did share a responsibility for it." The same day that his article was published, Reistrup, who continued to investigate the issue, called Wirtz to find out whether the Department had authority over uranium mines. He recalled that Wirtz seemed taken aback at the question. He suggested that Reistrup check with Solicitor of Labor Charles Donahue. He did so immediately and Donahue informed him that the Department did have legal authority. So the reporter was able to write to the Secretary something that few journalists ever have the opportunity to tell a government official: "You have the power."
However, by the time Wirtz read these words he had already learned that much, and more. After talking to Reistrup, Wirtz himself asked about what the Department could do to protect uranium miners like John Morrill. He, too, found out that that inspection authority existed under the Public Contracts Act (PCA) of 1936, a law enforced by the Department of Labor which required companies supplying products to the federal government to assure safe and healthful working conditions. Since virtually every uranium mine was operated under government contract, the PCA gave the Department broad authority to regulate working conditions in the industry.
Wirtz also learned more about the appalling, long term failure of the federal government to deal effectively with a problem that had been apparent since the 1940s. Beginning with World War II, uranium was mined, principally in the Colorado Plateau, to supply the growing atomic weapons program under the oversight of the Atomic Energy Commission (AEC). There was strong pressure for production as the Cold War weapons race wore on and little attention was paid to the health of uranium miners, even though the dangers had long been documented in Central European uranium mines. At the federal level, the AEC only regulated exposure to radiation outside of the mines; worse, it ignored and even suppressed information about the dangers. The Bureau of Mines did not inspect uranium mines because, at least until the MNM Act of 1966, it lacked the authority to do so. The Department of Labor always had the power to inspect them under the PCA but for years it negligently and mistakenly deferred to the AEC and the Bureau of Mines.
Alone among federal agencies, the Public Health Service took some responsibility in this situation and began a study of uranium miners' health in 1950. In March 1959, at hearings of the Congressional Joint Committee on Atomic Energy (JCAE) on hazards in the atomic energy industry, a PHS official testified that uranium miners were being exposed to dangerous levels of radiation and that they suffered an excessively high death rate. In a foreshadowing of the 1967 crisis, the New York Times published an article on this testimony. This was unusual as the news media generally ignored the problem in the PostWorld War II period. Later in 1959 the Department, presumably prodded by the PHS findings and the publicity, began inspecting uranium mines. It lacked expertise in this area and relied on the Bureau of Mines for technical assistance. Unfortunately, these inspections ended in 1962 when the Bureau announced it was seeking authorization to conduct inspections in its own right and would no longer provide assistance to the Department. Meanwhile, in 1960 the PHS reported that veteran uranium miners suffered lung cancer at five times the expected rate. In response to this, Colorado and other states required mines to ventilate to remove radiation contaminated air. Conditions improved somewhat, but enforcement varied and exposure levels remained too high.
In 1966 the dim record of governmental failure falteringly brightened. The MNM Act gave the Bureau of Mines the authority it wanted to conduct its own inspections of uranium mines and to set radiation exposure standards. The Federal Radiation Council (FRC), which included the AEC and the Departments of Labor, HEW, Defense and Interior, had been attempting to foster government efforts in this area since 1959. In 1966 it completed a two year study of uranium mines and started work on a standard that would define a maximum safe level of exposure to radiation. This standard was to serve as the mold for enforceable regulations. However, as of March 1967 it had not decided on a standard and the Bureau of Mines had not yet entered a single uranium mine. The Department of Labor was complicit in the continued futility both as a member of the FRC and by virtue of the fact that Wirtz, although present when Johnson announced his "war" on occupational health hazards in 1966, had yet to become involved in the issue.
After March 9, Wirtz made up for lost time. He asked his Assistant Secretary for Labor Standards, Esther Peterson, a passionate labor advocate, for ideas on how to respond to the crisis. Peterson was one of the highest ranking women in the Johnson Administration. In addition to serving in the Department, she organized and was the first head of the White House's Office of Consumer Affairs. She offered three options: 1) "Do nothing"; 2) immediately and independently of any other federal agency start inspecting uranium mines under the PCA; 3) work with the Interior Department and the PHS and revive the old inspection partnership with the Bureau of Mines. The rationale for the "do nothing" option was that the MNM law gave the Bureau of Mines jurisdiction over uranium mine safety. But, Peterson argued, inaction after the Department had jurisdiction for so many years "cannot continue," especially since the Bureau of Mines would not have an enforceable standard in place for several years. She recommended against independent action because several agencies shared responsibility for the federal failure in the uranium mines and the Department lacked the expertise to do the job on its own.
The third option was Peterson's choice. Both the Labor and Interior Departments shared blame for the crisis and each needed the other. The DOL had an enforceable law but little expertise; Interior had expertise but for the time being lacked an enforceable radiation standard. Peterson pointed out that once the Bureau of Mines issued and began enforcing its own standard the DOL would be able to bow out. She also noted that Secretary of the Interior Stewart Udall's staff was about to recommend virtually the same course of action to him.
Wirtz personally agreed with Peterson, but he found a lack of support within the Department for this approach. The career bureaucrats were reluctant to take any action. They felt that a pattern of government action, or inaction, had been established without the involvement of the Department and, as Wirtz put it, "there was a feeling that we had best leave this alone." Wirtz over ruled the bureaucrats, however, and proposed to Udall that their Departments begin planning for a joint inspection effort. Udall agreed and the agencies quickly developed a working arrangement. The Labor Department decided to rely on its existing, though not very effective, radiation standard until a better one could be adopted.
The shape of a new standard became the most contentious issue in the crisis. On March 9 the FRC's technical staff met with representatives of mining companies, organized labor and others to consider a proposed standard of 12 Working Level Months (WLM, a scientific unit of radiation exposure) per year of exposure to radon daughter radiation. The Reistrup article had mentioned this meeting and publication was timed to coincide with it. Management and union representatives disagreed sharply on the standard. Management agreed with the FRC staff that 12 WLM would be desirable, but argued that 36 WLM was more feasible for the industry and would still provide an acceptable level of safety. The unions went as far the other way, maintaining that the level should be reduced to 4 WLM. The issue was not resolved at this meeting.
The Council set a date of May 4 to meet and decide on a final standard. It was anticipated that this standard, if accepted by the White House, would become the basis for a new Department of Labor rule under the PCA for use in the joint enforcement effort with the Bureau of Mines. Another important date loomed ahead: the JCAE was tracking the uranium mining situation and it planned to begin hearings on May 9. Wirtz and representatives of HEW and the AEC were scheduled to testify. May became the showdown month.
The showdown was driven partly by Wirtz' aroused conscience, but also by the intense glare of publicity from the Washington Post, which escalated the issue into a significant news event. John Reistrup's March 9 article was just the first shot in an expose that involved a series of articles by him (several on the front page) exposing government action and inaction, reinforced with editorials lambasting government agencies for tolerating "death mines." Cong. Chet Holifield (D-CA) of the Joint Committee complained at the hearings about publicizing of the uranium mining situation in the "propaganda pages of the newspapers." Reistrup was later nominated for a Pulitzer Prize.
At the May 4 FRC meeting the main issue was the 12 WLM level. Esther Peterson, representing the Department, urged adoption of 4 WLM (also the choice of organized labor) but was willing to agree to a phase in 18 month period at the higher level. The AEC representative suggested as a compromise that the FRC recommend 4 WLM as a voluntary goal while keeping 12 WLM as a requirement. Some on the Council felt that it would be difficult for mines even to meet 12 WLM. The Labor Department position was put to a vote. Unfortunately for those who wanted a decision that day there was an even number of members voting, and vote was 3 to 3. The AEC proposal also received a tie vote. Once again a government effort to deal with workers' safety and health had resulted in a deadlock. The Council agreed to meet again in 30 days to try to resolve the issue.
What the attendees did not know (except for Peterson) was that Wirtz had anticipated the possibility of a deadlock and, impatient with the long record of federal inaction, already had a PCA standard in his pocket. While he had encountered little direct pressure from organized labor, the publicity generated by the Post series was intense and the radiation standard had become, Wirtz recalled, a "very, very highly charged issue in the Department." The next day he announced that the Department was publishing in the Federal Register a proposed order incorporating a basic radiation level of 3.6 WLM, with an 18month phasein period for approved mines. Public comment was invited and a final order would be issued after 30 days.
This unilateral action proved to be one of the most controversial Wirtz ever took as LBJ's Secretary of Labor. Appearing at the May 9 JCAE hearings, Wirtz explained his decision and faced severe criticism. He noted that the committee had called the hearings out of concern for the plight of uranium miners and the lack of action to protect them, and carefully laid out the basis for the action he took. After outlining the long record of futility, including failure by himself and his Department, Wirtz said that after the FRC failed to act on May 4 he issued the standard immediately because "another delay, even of a few days, is longer, not shorter, after so many years." He said he did this before the hearings started because he believed it would be more useful for the Committee to consider an action taken than a record of inaction. Most of all, in his view, the situation required a "catalyst" to precipitate action.
Wirtz' justification for 3.6 WLM was that, according to the available evidence, at this level a uranium miner was no more likely to contract lung cancer than anybody else. Any additional exposure, however, would raise the likelihood above the average of the general population. This was a heavily contested point at the hearings but Wirtz never wavered. He rejected 12 WLM on the basis that it was not a true health standard and that exposure at that level would result in lung cancer deaths at three times the normal rate.
Wirtz also rejected the contention that the mines would find it too difficult and expensive to comply. He recognized that meeting the DOL standard could be a formidable undertaking and that the effect on the industry was unknown, but rejected letting this limit protection of workers from a hazard whose effects were well known. In this instance of what Wirtz termed "the history old quarrel between economic and human values" he argued that none of the human cost of the industrial revolution could be condoned and that it should not serve as a precedent for the technological revolution. He continued:
"If the setting of a .3 WL [equivalent to 3.6 WLM] standard ... is protested because it will close down a mine, the controlling question will remain of whether a looser standard will close down a man.... [T]he ultimate question here is whether an economic enterprise is to be required to satisfy the human values it affects or whether those values are to be compromised to serve the enterprise. This rarely arises in such clear, sharp outline. When it does, there is no room — or any more time — for compromise."
The Committee was not particularly moved by Wirtz' uncompromising plea for human values, however. Cong. Holifield attacked the rule relentlessly. Noting that members of the Committee had been dealing with the problem of radiation for 20 years, he "congratulated" Wirtz on coming so quickly to a conclusion which none of them had been able to reach. Holifield questioned Wirtz' claim that anything above 3.6 WLM would put miners at increased risk of lung cancer. He agreed with mine operators that it would be difficult to comply and pointed out that uncertainties in measurement of exposure levels would make it impossible to prove either compliance or noncompliance. Further, he criticized Wirtz for acting without waiting either for the FRC to meet again or for the Joint Committee to begin its hearings. Wirtz responded that there was not enough assurance of action to balance the likelihood that, without action, 1,000 more miners could be infected with lung cancer. Sen. John Pastore (D-RI) raised the issue of national security, noting that the rule might close down mines in an industry on which the military depended. Wirtz said he understood that some mines might have to close but there had been no suggestion that this would cause a shortage of uranium. He also told a surprised Committee that Secretary of Defense Robert McNamara personally supported the Labor Department standard, even though McNamara's representative on the FRC had voted against the 3.6 WLM proposal.
After the congressional hearings Wirtz received a great deal of support from organized labor. The AFL-CIO's legislative director and the presidents of the United Mine Workers, the United Steelworkers, and the Oil, Chemical and Atomic Workers unions all warmly endorsed the standard. Support also came from the National Council of the Churches of Christ. The only written expression of industry opposition came from the Kerr-McGee Corporation, one of the principal uranium mining companies. They maintained that it was impossible to reduce radiation levels to 3.6 WLM and that it would take up to three years even to meet the 12 WLM originally considered by the FRC.
Congressional hearings continued and Cong. Holifield remained adamantly opposed to the rule. Others on the Committee became more sympathetic. Meanwhile the White House Office of Science and Technology, a member of the FRC, advised Wirtz to accept 12 WLM because the data supporting 3.6 WLM was not strong enough. On the other hand, the AEC seemed inclined to accept 3.6 WLM if it were phased in over 2 to 3 years.
On June 12 the Department issued its final standard. Wirtz stuck to his guns at 3.6 WLM, which was to go into effect on Jan. 1, 1969. In the meantime the Department would enforce 12 WLM. Wirtz' position may have solidified somewhat when he learned that John Morrill, the uranium miner whose story shocked him so deeply in March, had died. In issuing the rule, he acknowledged that weaknesses in the data he had cited in support of 3.6 WLM made the decision more difficult. However, he still found the data no less conclusive than that supporting any other standard. He also remained unmoved by industry complaints that it was not feasible to reduce airborne radiation to 3.6 WLM, insisting that "Ventilation is a cost item. It doesn't belong on the same balance sheet with cancer."
By August, Bureau of Mines inspectors had investigated radiation levels in the majority of the nation's uranium mines. Most of them exceeded 12 WLM, many by a large amount. The Department reluctantly relied for the time being on voluntary compliance rather than formal enforcement and simply asked the noncompliant operators to report on how they planned to reduce radiation.
While Wirtz held off on enforcement at first, it was clear that he was anxious to proceed more forcefully. On a memo to him regarding the Bureau of Mines investigations he scribbled: "enforcement action not to wait on completion; rather to move ahead as quickly as possible." On another memo, he indicated agreement that all the uranium mines should be inspected but wrote in: "don't hold up enforcement against bad ones as soon as identified" [all emphases are Wirtz'].
Later that summer the Johnson Administration basically endorsed the standard, setting it slightly higher to 4 WLM and delaying its effective date two years, to January 1, 1971. The Nixon Administration weakened the standard a little more with variances for individual mines and set the effective date back six more months. It finally took effect on July 1, 1971. By this time the newly created Environmental Protection Agency had assumed responsibility for enforcement and the Department of Labor was no longer involved. Still, the action Wirtz took in 1967 played a large part in the eventual reduction of radiation in uranium mines to safe levels. This was an important example of the activism of the Johnson Administration as it attempted to use government to solve a problem which government had helped to create.
The radiation standard was not just a remedy for the uranium miners, however. In Wirtz' view, it was an important catalyst in the advancement of safety and health legislation for all workers because it significantly raised awareness of the issue in Washington. It was also a catalyst for Wirtz personally and led him to become involved in the whole issue. He soon put his full weight as a Cabinet Secretary behind the drive for legislation.
That drive had slowed to a crawl by early 1967 as the Department and HEW each sought approval of their plans from the Budget Bureau. Noting a trivial difference in wording that reflected a huge difference over which department should have the primary responsibility, Wirtz recalled that: "They wanted to call it occupational health and safety and we wanted to call it occupational safety and health." In October the logjam broke. Johnson aide Joseph Califano asked the Bureau for an occupational safety and health bill by October 10. The Bureau in turn asked both Departments for new proposals.
The Labor Department repackaged its earlier proposal for a comprehensive plan which it would administer. The Department specifically cited the problem of multiple agencies highlighted by the uranium miners plight in justifying this approach. Esther Peterson soon was able to report to Wirtz that "it appears our paper has had a pronounced effect on BOB." In November she received a jubilant report that "BOB 'bought' our entire package" and that it had been sent to the White House.
At about that time the White House began the annual "State of the Union Speech" process. This involved sifting through legislative ideas developed in the Departments and selecting the best ones to highlight in the speech itself or to present to Congress in separate written messages. The White House was interested in progressive legislation for 1968, but the cost had to be kept down. This reflected the fiscal difficulties into which the government had gotten because of inflation fueled by a rapidly growing economy and budget restraints imposed by the huge and unexpected costs of the Vietnam War. The Department's safety and health proposal was a progressive cause with strong support in Washington, and it could be administered with a relatively small budget.
In Johnson's first message to Congress after the State of the Union Address he proposed "the Nation's first comprehensive occupational health and safety program." Terming it "the shame of a modern industrial nation" that over 14,000 workers died on the job each year, Johnson argued that "an attack must be launched at the source of the evil." The program, based largely on the Labor Department's proposal, would cover the entire workforce: the Department of Labor would set and enforce standards to protect workers engaged in interstate commerce, with assistance from HEW; state governments, with financial assistance from Washington, would protect workers engaged in intrastate commerce. Johnson stressed that "It must be our goal to protect every one of America's ... workers while they are on the job."
The bill was introduced in Congress and hearings began immediately. In his congressional testimony Wirtz cited two casualty lists in the news: military losses in the Vietnam War and an even larger toll in the workplaces at home. He estimated that three out of every four teenagers entering the workforce would suffer at least one disabling workplace injury in their lifetime. He argued that the main issue was "whether Congress is going to act to stop a carnage" which continues because people "can't see the blood on the food they eat, on the things they buy, and on the services they get." To buttress the Administration's efforts, Catholic labor advocate Msgr. George Higgins cochaired a Joint Committee of 30 concerned national organizations to support enactment. However, their support and that of organized labor was not enough to counteract the powerful opposition of industry, led by the U.S. Chamber of Commerce. The bill died in committee.
In early 1969, with Republican Richard Nixon in the White House, Democrats introduced similar legislation, but prospects for success were uncertain. In the meantime, a coal mine explosion in West Virginia that killed 78 in November 1968 and a United Mine Workers strike in early 1969 over another miners' lung disease, black lung, had galvanized public opinion in this area. The result was the Coal Mine Health and Safety Act of 1969. This law provided powerful momentum for broader safety and health legislation, and Nixon himself added a further boost.
After his election Nixon had told aides to sift through his campaign speeches for any promises that he made to voters. As it turned out, in a stump speech in Cincinnati he had called for an occupational safety and health law. Aware that this was important to organized labor, a constituency he continued to court after his election, he directed the Labor Department to prepare a bill which was quickly introduced in Congress. Perhaps mollified by the political source, the Chamber of Commerce led a turn around by industry in support of this bill. Organized labor was less happy with the Nixon approach, which located enforcement outside of the Labor Department.
During a vigorous two year legislative battle the Nixon bill came more and more to resemble the Democratic bill as it centered most responsibilities in the Labor Department, with the addition of an independent board to review enforcement. In one important respect the bill went beyond the Johnson Administration's approach. It placed within the Labor Department the responsibility for protection of virtually all private sector employees, instead of only those in interstate commerce. In that form, the Occupational Safety and Health Act was enacted and signed in December 1970 and the Occupational Safety and Health Administration, "OSHA," was established in the Department of Labor the next year.
This landmark regulatory and humanitarian act was a direct descendant of efforts by the Johnson Administration and, I believe, should take its rightful place as an important legacy of the Great Society.