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30–840 PDF








NOVEMBER 15, 2006

Serial No. 109–157

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Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


30–840 PDF






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NOVEMBER 15, 2006

Serial No. 109–  

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
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BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California

JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
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ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on Immigration, Border Security, and Claims

JOHN N. HOSTETTLER, Indiana, Chairman

BOB INGLIS, South Carolina
DARRELL ISSA, California

HOWARD L. BERMAN, California
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ZOE LOFGREN, California
LINDA T. SÁNCHEZ, California
MARTIN T. MEEHAN, Massachusetts

CINDY BLACKSTON, Professional Staff
NOLAN RAPPAPORT, Minority Counsel


NOVEMBER 15, 2006

    The Honorable John N. Hostettler, a Representative in Congress from the State of Indiana, and Chairman, Subcommittee on Immigration, Border Security, and Claims

    The Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims


Mr. Laurence Fuortes, M.D., Professor, Department of Occupational and Environmental Health, University of Iowa
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Oral Testimony
Prepared Statement

Mr. John Mauro, Project Manager, Dose Reconstruction Consulting Services, Advisory Board on Radiation and Worker Health Under EEOICPA, Sanford Cohen & Associates
Oral Testimony
Prepared Statement

Ms. Kathy Bates, Surviving Claimant Under the Energy Employees Occupational Illness Compensation Program Act
Oral Testimony
Prepared Statement

Mr. Richard Miller, Senior Policy Analyst Government Accountability Project
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John N. Hostettler, a Representative in Congress from the State of Indiana, and Chairman, Subcommittee on Immigration, Border Security, and Claims

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    Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims

    Memorandum from Morton Rosenberg, Specialist in American Public Law, American Law Division, Congressional Research Service

    Prepared Statement of Robert Alvarez, Senior Scholar, Institute for Public Studies

    Office of Management and Budget Memorandum

    Prepared Statement of Paula Graham, Member, Advisory Board to the Health Researchers of the University of Iowa, Department of Energy

    Response to Post-Hearing Questions from Laurence Fuortes, M.D., Professor, Department of Occupational and Environmental Health, University of Iowa

    Response to Post-Hearing Questions from John Mauro, Project Manager, Dose Reconstruction Consulting Services, Advisory Board on Radiation and Worker Health Under EEOICPA, Sanford Cohen & Associates

    Response to Post-Hearing Questions from Kathy Bates, Surviving Claimant Under the Energy Employees Occupational Illness Compensation Program Act

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    Response to Post-Hearing Questions from Richard Miller, Senior Policy Analyst Government Accountability Project

    Prepared Statement of Sandra Wolff Baldridge

    Significant documents and communications related to the Subcommittee's oversight of the Energy Employees Occupational Illness Compensation Program Act



House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:09 p.m., in Room 2141, Rayburn House Office Building, the Honorable John Hostettler (Chairman of the Subcommittee) presiding.

    Mr. HOSTETTLER. The Subcommittee will come to order. Today's hearing is the fourth in a series of oversight hearings the Subcommittee has been holding on the Energy Employees Occupational Illness Compensation Act, or EEOICPA. The point of this hearing and the fifth hearing to follow in December is to review what the Committee's oversight efforts have revealed as weaknesses in the program, the status of any reforms made to address those weaknesses and discussion of any emerging issues that may need to be addressed in the next Congress.
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    Because of their complexity, the Subcommittee is compelled to make an effort to create as much of a roadmap of a program and its problems as possible for those who would provide future oversight. The Judiciary Committee's oversight did not begin with investigation on implementation of the OMB passback options. This Committee has taken an active role in policing its program from the start. And I sincerely hope that rigorous oversight by this Committee will continue in the 110th Congress and future Congresses until we can all say with confidence that, yes, we are fulfilling the promise we made to these veterans of the Cold War when we created this program.

    I would have liked to have been able to say that already, but the record created by these hearings tells us that it is just not so.

    Shortly after assuming the chairmanship of this Committee, I sent a letter to the General Accounting Office asking that they examine the key components of the program. That was May 2003. As time went on, the Subcommittee heard several complaints on the way the program was functioning and the behavior of officials involved in the program.

    That prompted a November 2004 request to the Department of Health and Human Services for extensive documents and information concerning the functioning of the program, the Advisory Board of Radiation and Worker Health, and that board's audit contractor.

    Subsequently, after the initial review of their submissions a request was made for GAO to expand the scope of their review of subtitle B, which they agreed to. During 2005, the Committee sent letters to various agencies regarding concerns with different actions taken with regard to the program.
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    One letter to the Attorney General concerned the use of classified information to decide a claim under the program and asserted that congressional intent was that transparency and the processing of claims be an essential principle of this program. A second letter concerned the removal of two board members, a worker and a doctor. No resolution to either of those concerns was forthcoming.

    In the case of the request by Chairman Sensenbrenner that the removed board members be offered reinstatement so that the board would not lose their expertise and experience with the program, the Committee received a one-sentence letter thanking us for our comments.

    On October 18, 2005 the White House announced the appointment of three new board members, one of whom had major conflicts of interest issues since a company he founded and whose employees included immediate family members had been contracted to do dose reconstructions for NIOSH. Only one new worker representative was included in the new appointments. When the OMB passback memo surfaced, the Subcommittee began planning hearings. Those hearings were, at a minimum, to include Department of Labor and the Office of Management and Budget.

    The Committee's invitation was met with resistance by DOL and HHS. But they both eventually provided witnesses. That was not the case with OMB. Administration officials suggested that an exchange of letters between OMB and the Committee containing appropriate assurances and stating good faith actions that would be taken to assure the claimant community of the Administration's rejection of the passback options would be a more appropriate response than OMB testifying.
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    There were several exchanges of draft letters between OMB and Committee staff as well as a meeting between myself and the Administration to personally express the need for specific actions and/or statements that OMB had to make in lieu of testifying.

    One of those actions was to either offer reappointment to the board members removed without cause, or provide a plausible explanation why they had been removed, while other less qualified members who had made their support of DOE management very clear, had been retained. When it became clear that action was not—was nonnegotiable for the Committee, OMB took the broad nonspecific letter of explanation with regard to the OMB passback and used it as the basis for letters responding to Senate and House Member offices. They refused to consider reversing the actions of the Administration with regard to the 2 pro worker Advisory Board members.

    During the first week of August 2006, NIOSH was notified by the White House office of personnel that Wanda Munn and Roy Dehart had been retired from the board effective immediately, as part of the ongoing activity of rotating board members.

    Dr. Dehart had filled one of the medical slots on the advisory board, Ms. Munn, an engineer and strong supporter of the DOE complex does not appear to have been qualified to fill any of the statutorily required board slots, medical, scientific or worker.

    It was brought to the Subcommittee's attention that Ms. Munn was unhappy with her retirement and hoped to utilize a means to get back on the board. Amazingly on August 11, 2006, NIOSH was notified by the White House that Dr. Dehart and Ms. Munn were to be reappointed for another 3-year term. While Dr. Dehart declined reappointment, Ms. Munn, not surprisingly, accepted.
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    When the White House was asked why reappointment was so quickly offered to an individual who didn't even meet the statutory qualifications for serving on the board after the request of the Chairman of the Judiciary Committee for the reappointment of two qualified board members was ignored, the Administration never provided an explanation.

    The board currently has only two worker representatives and a reappointed member who has stated her position that none of these workers are sick because of their exposure to radiation.

    Obviously, an impartial review of the validity of the science used to determine whether to approve claims for radiation exposure won't be forthcoming from that particular board member.

    I strongly encourage those who police this program in the future to aggressively pursue balancing this board and legislation to provide for a more transparent appointment process appears to be the only real solution.

    A February 22, 2006 letter requested that DOL's Employment Standards Administration or ESA provide all documents related to the 5 options outlined in the OMB passback prior to the Subcommittee hearing on March 1, 2006. The Subcommittee received a box of about 4,500 pieces of paper from DOL on March 17, 2006. None of them substantive information related to the request.

    After DOL complained that the request was overly broad, the Subcommittee reduced its request of the documents of 25 key DOL ESA staff. No further documents were received until the beginning of July. No documents or communications were received regarding the OMB passback, and no communications between Labor and OMB were forthcoming.
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    The Committee was informed on July 21 that the office within DOL that handles the EEOICPA claims indicated to the Legislative Affairs Office that there was no need to provide any of the communications with OMB because they constituted internal budget negotiations—privileged documents not available to anyone.

    Labor was told by the Committee that ESA had misinformed them.

    In support of that position, the Subcommittee requested and received a congressional research analysis of the appropriateness of the document requests made to the Labor Department, which makes it clear that no privilege could be assigned to the documents in communications that were part of the Committee's inquiry.

    On the eve of a vote to authorize a subpoena to DOL, high level assurances were made to the Committee to provide all but a few documents to the Committee, and the rest were made available in a reading room for Committee viewing.

    HHS had withheld several binders and allowed all but one to be reviewed by Committee staff.

    It is the Committee's understanding that the binder withheld contained HHS's communication with OMB regarding the passback. So much resistance from these agencies fortifies the argument that their actions would not bear well under scrutiny. Those involved in this backroom manipulation of the program have destroyed the Government credibility again.

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    This program was supposed to ensure workers that the deceit was over and the Government was finally going to do right by them. Those tasked with implementing the program have failed that purpose miserably, and they need to be exposed for what they have done.

    I will be including a record of the Committee's correspondence on our concerns in the hearing record as well as other pertinent documents that provide a clear view of the actions of those running this program.

    Under oath, the OMB witness on July 20, 2006 rejected each of these 5 options and assured us they were not pursuing any of them. We received the same assurances under oath on March 1st, 2006, in DOL. Evidence included in both DOL and HHS-submitted documents or included in the documents withheld and only viewable to the Committee staff do not support those statements, and the hostile attitude of those running this program toward the claimants and their advocates gives me little confidence that there is any sincere efforts to change by these officials.

    Obviously, the babysitting of these individuals must continue and I encourage it wholeheartedly. Time is of the essence for fulfilling our promise to this quickly aging population of atomics weapons employees. Perhaps soon those who run this program will do the right thing and take care of these workers and their families competently and with an attitude of respect that is clearly not present at this time.

    At this time, the Chair recognizes the gentlelady from Texas, Ms. Jackson Lee, for purposes of an opening statement.

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    Ms. JACKSON LEE. Thank you, Mr. Chairman. Let me, first of all, thank you for joining me in persisting on what I think is a call for the restoring of the integrity of this program. Thank you for joining me and insisting that the Federal Government do the right thing. And thank you for your leadership on this issue.

    I echo and join the Chairman in announcing publicly that it is my fear that the Energy Employees Occupational Illness Compensation Program's integrity is in jeopardy.

    Mr. Chairman, I want to indicate to you that over the recess, I went to Texas City in Texas and saw the faces of individuals who have been impacted by the failure of this particular program to function.

    I looked in the faces of elderly persons who asked—and begged frankly—that we would come to their area and hear their stories and find out that they are nothing but great patriots, and good Americans, and they love their country, and they entrusted their hopes and dreams for their families, for their livelihood, and for their longevity to this great nation.

    I think it is a besmirching of the commitment that we make to Americans when they rise to the highest call, calling, and that is to serve America, that we have found ourselves in this quagmire.

    So I join you in the level of frustration that your accounting has generated. And I am hoping and I view and feel that our collective effort before we end the 109th Congress, will see fruition. And so I begin by thanking the witnesses for being here. It looks like we are climbing up the rough side of the mountain, but I do believe that we have a collective body of interested Members of Congress who are willing to pursue the Federal Government doing the right thing.
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    The Department of Energy and its predecessor, the Atomic Energy Commission, have employed tens of thousands of workers to develop, build and test nuclear weapons. The Energy Employees Occupational Illness Compensation Program Act of 2000 provides compensation for workers who have contracted radiation related cancers, beryllium disease or silicosis disease from exposure to radiation at these work sites.

    They may be eligible for a lump sum payment of $150,000 and prospective medical benefits. In processing radiation-related cancer claims, the National Institute for Occupational Safety and Health is required to estimate a workers exposure to radiation, which is referred to as a radiation dose.

    Sometimes this is not possible. During the early years of the nuclear weapons program, some of the workers were not monitored for radiation exposure, and records have been lost. We found these cases in similar situations of compensation requests throughout the other history of the United States.

    Remember, folks, we did not always have the Internet or the computer. We didn't always have the Blackberry. People were either writing things down or assuming that the immediate supervisor knew the story.

    And of course, we have not yet found the cure for aging and loss of life through aging. And people have passed on who knew the stories, companies have closed who had the information, documents have been either lost, displaced or disposed of because history has marched on.
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    The Act provides a remedy for cases in which it is not feasible to estimate radiation doses. But it is clear that the health of workers may have been in danger by radiation exposure. They can petition to be designated as members of a Special Exposure Cohort which provides an unrebuttable assumption certain cancers are work related. Members of a Special Exposure Cohort may be eligible for benefits if they have 1 of 22 specified radio sensitive cancers, and they must have worked as a covered facility for at least 1 year in a job that exposed them to radiation.

    I deviate for a moment and cite as an example Agent Orange, recognizing that we first challenged the existence of Agent Orange disease after Vietnam and after long studies and determinations in lost records and misinformation, we have discovered that that is a valid disease, or exposure that Vietnam vets had and Mr. Chairman, while I was home in the District again, a Vietnam vet who was in Thailand has now raised the specter that that group was left out, and those Agent Orange planes landed on those airfields, and he is, of course, by his medical doctor, determined to be 100 percent disabled, but yet paperwork and lack of designation has him as a case that we have to pursue in front of the Veterans' Affairs.

    I use that as an example because this is what these cohorts have been facing. In an internal passback memorandum from the Office of Management and Budget to the Department of Labor, OMB states that the Administration will convene a White House-led interagency work group to develop options for administrative procedures to contain the growth in the costs of the program, cost over patriotism and the service of these patriots.

    OMB states further that the discussions would include but not be limited to a requirement for the Administration's clearance, of Special Exposure Cohort determination, addressing imbalances in the membership of the Advisory Board, requiring an expedited review by outside experts of the Special Exposure Cohort recommendations by NIOSH, requiring NIOSH to apply a conflict of interest rules and constraints to the Advisory Board's contractor, which we see by the Chairman's remarks, that has not been done, and requiring that NIOSH demonstrate that its site profiles and other dose reconstruction guidances are balanced.
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    I am concerned that such cost cutting measures would conflict with the Special Exposure Cohort review procedures established by the Compensation Program Act and that it would result in unwarranted denials of compensation applications.

    Instead of cost-cutting measures, the Administration should be considering whether measures are needed to increase the number of applications that are granted. On average, approximately 70 percent of the applications are denied.

    We are not serious. We are playing at the game of responding to the needs of the faces that I saw in Texas City, Texas this past fall.

    Government witnesses have testified that cost containment is not a factor in deciding which claims to pay. But this has not eliminated concern. The Subcommittee asked DOL to provide all documents related to the 5 options outlining the OMB passback. The Subcommittee received a box of about 4,500 pieces of paper from DOL, but none of these documents provided the necessary information.

    When this was brought to DOL's attention, its response was that the request was overly broad. The Subcommittee reduced its requests to the documents of 25 key DOL ESA staff. But the Government still would not cooperate fully. The debate reached a point at which a subpoena was considered. Most documents were made available to the Subcommittee, but the integrity of the application process is still in doubt.

    I have introduced a bill to address these problems. The Energy Employees Occupational Illness Compensation Program Improvement Act of 2006, H.R. 5840. Among other things, it would shift the authority from making Advisory Board appointments to the Congress. It would require HHS Secretary to abide by the recommendations of the Advisory Board unless there is a clear error. It would establish enforceable conflict of interest requirements with respect to NIOSH's dose reconstruction contractors.
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    Also, it would eliminate unfairness by making benefits available to some subcontractor employees who worked at atomic weapons employer facilities, but presently are not covered by the Act.

    I know that we want to do the right thing. I would imagine, Mr. Chairman, if we interviewed individual members of the Administration, I give them the benefit of the doubt, they would know that they have not been completely forthright in doing the right thing, and they would acknowledge that we have been asking the important and hard questions, and our questions need to be answered, documents need to be produced, and as well, we need to move forward on a reconstructive program.

    I would ask prospectively as my colleagues are listening that we would begin to hold hearings on H.R. 5840, a field hearing as well, but more importantly, that we move forward and address the concerns of patriotic Americans.

    Mr. Chairman, thank you again for your leadership and I yield back.

    Mr. HOSTETTLER. I thank the gentlelady. At this time, I will introduce members of our distinguished panel of witness.

    Laurence Fuortes is professor of occupational and environmental health at the college of public health at the University of Iowa.

    Dr. Fuortes received his B.S. In biophysics at Northern Illinois University and his M.D. At the University of Illinois. He has published dozens of article on a wide range of medical subjects, though much of his research has focused on occupational health hazards and the development of potential policy solutions.
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    John Mauro is the project manager for Dose Reconstruction Consulting Services for the Advisory Board on Radiation and Worker Health under EEOICPA. He has personally performed eight dose reconstruction reviews and directed 60 other reviews. Dr. Mauro has appeared before the Advisory Board at every public bimonthly meeting of the board and has presented and defended the audit reports of the audit contractor, Sanford Cohen & Associates.

    He has served as the principal investigator for the preparation of the environmental and safety analysis reports for 10 commercial nuclear power plants.

    Kathy Bates is a surviving claimant under the Energy Employees Occupational Illness Compensation Program Act. She attended the University of Tennessee and graduated with honors in 1984 with a degree in computer science. She has 22 years of experience as an information technology professional. Mrs. Bates is married and has two children and she resides in Knoxville, Tennessee.

    Richard Miller is a senior policy analyst at the Government Accountability Project. Mr. Miller has led that group's efforts to reform EEOICPA as part of the fiscal year 20O5 Defense Authorization Act.

    Mr. Miller is an expert on the program, having been actively involved in creating the original EEOICPA law. He has testified before this panel on the OMB passback document on containing the cost of EEOICPA.

    In 2003, he appeared before the Senate Committee on Energy and Natural Resources where he testified on the flawed implementation of EEOICPA by the Department of Energy. He holds a B.A. in industrial and labor economics from the University of Massachusetts.
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    Lady and gentlemen, you will see that we have a time system. We respectfully ask that you limit your oral statements to 5 minutes or as close as possible to that.

    Without objection, your entire written statement will be made a part of the record.

    Dr. Fuortes, you are recognized for 5 minutes for an opening statement.


    Dr. FUORTES. Thank you. I have been working with several AEC DOE sites in Iowa for about 5 years and it has been one of the most changing—life-changing experiences of my life. I have been very affected by this work.

    On behalf of these workers and the families of those who are deceased, I would like to thank you very much for this oversight of the policies in response to the health risks and resultant diseases experienced by this workforce.

    They labored under a weight of secrecy and uncertainty regarding the health risks of nuclear weapons work. We owe these workers a debt of gratitude and as you have suggested, a fair and open system.

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    When this program began, the workers in Iowa said that their Government was just waiting for them to die. And sadly some of our actions appear to bear this out.

    On a positive note, scores of workers' lives have been saved by the early detection of cancers and other diseases through the DOE medical screening process.

    Unfortunately, the tone of the OMB memo that led to these hearings is that some feel the risks to these early era workers have been overstated. Worker protections may have been interpreted as adequate in the early era, but they are clearly not adequate by today's standards. This was prior to the studies of Hiroshima and Nagasaki survivors and radium dial painters and prior to decades of biological studies of cancerous effects of radiation.

    It was also prior to technologic advances in radiation monitoring before the OSHA Act.

    These workers are disadvantaged in the SEC anddose reconstruction processes, by a lack of transparency and a lack of access to expertise.

    In the SEC process, the petitioners are asked to prove the negative, something that cannot be proven. All the while, they are not given access to the same data that NIOSH and its contracts have. And the petitioners have to rely on a cumbersome FOIA process to try to get dose information.

    It took 3 1/2 years just for the SEC rules to be written. Meanwhile many of these elderly workers died. In the Iowa case after the Advisory Board went on record in April of 2005 agreeing that accurate, defensible, and timely dose reconstructions could not be performed, there was a flurry of activity, which seemed to be designed to frustrate these workers.
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    SEC and claimed decisions should not be based on financial implications, but on a fair balanced scientific judgment. The petitioners are further disadvantaged by the dense technical aspects and jargon of health physics and typically are asked to take, at face value, the dose calculations made by NIOSH contractors.

    The petitioners deserve a process independent of bias or political pressure. The board must be scientifically based and its judgments must be impartial and there must be a representation of environmental and radioepidemiology expertise.

    The SEC process has also not addressed risks from residual radiation. At the Ames lab, one worker described to us his tasks in the 1960's of tearing out the exhaust ventilation systems and the building materials of one of the most highly contaminated areas. All of his co-workers are now deceased from cancer. When we shared this information with the Ames laboratory, their director and health and safety staff helped us immediately to amend our SEC petition, submit it to NIOSH to extend the period of coverage.

    This issue of residual risk is pertinent in all of the DOE sites probably that we are dealing with radionuclide processing.

    As regards the dose reconstruction claims processes, there is a perceived problem of this being litigious which places unfair burdens of proof on the claimants. Although the dose reconstructions developed by NIOSH give the numerical appearance of precision, the process is often not exact or scientifically defensible.

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    Take, for example, an Iowa worker who received a probability of causation of 48 percent for a radiogenic cancer and imagine his disbelief when he amended his claim based on a newly-diagnosed radiogenic cancer and the NIOSH recalculated probability of causation is now 32 percent.

    Despite the best intentions of claimant friendliness, this DOE claims process operates disturbingly like a conventional insurance claims process, functionally placing obstacles in the claimants path. This claims process must also be made transparent and subject to review and oversight.

    I know of several cases of people whose claims were denied based on faulty assumptions by the Department of Labor. Examples include a Kansas City native from the Bendix plant whose proof of employment came from the headquarters in New Jersey. He was denied. Another employee whose proof of disease came from a CT scan was denied because under the language of the Act they required a CAT, CAT scan. Others denied because diseases such as Polycythemia Rubra Vera were decided by the claims examiners not being covered under the Act, where as, in fact, they are. There are numerous such examples.

    These workers are typically elderly and not well versed in health, physics, medical or legal terminology, and they are easily frustrated and dissuaded from pursuing valid claims. Cases such as these, I mentioned, suggest a need of a systematic review of denied claims and a change in policy from placing the burden of proof entirely on claimants to a system which claimants are assisted in identifying and locating requisite information.

    All of these workers who were exposed to radiation Beryllium and related toxins in our atomic weapons industry deserve no less than an equitable, just and open approach to the evaluation of causality and compensation for work-related disease. Thank you very much.
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    Mr. HOSTETTLER. Thank you, Dr. Fuortes.

    [The prepared statement of Dr. Laurence Fuortes follows:]


    Honorable Members of the Subcommittee on Immigration, Border Security and Claims, thank you for the opportunity to share with you my perspectives on the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) and the Special Exposure Cohort process. My name is Laurence Fuortes, I am a physician and Professor of Occupational and Environmental Health and of Internal Medicine at the University of Iowa (UI). For approximately five years, my staff and I have been working with former Atomic Bomb assembly workers and more recently Uranium and Thorium processing workers in Iowa and surrounding states. Through a Department of Energy program, UI provides medical screening examinations and medical care to former workers, and we have gotten to know many of these workers quite well.

    On behalf of these former Atomic Energy Commission and Energy Department workers and the families of those no longer alive I thank you for addressing questions of appropriate policy in response to recognized health risks and disease experienced by this workforce. These workers labored under a great weight of secrecy, as well as significant uncertainty, in regards to health risks associated with employment in the nuclear weapons industry. We owe these workers a tremendous debt of gratitude for their patriotism, placing themselves in harms way in defense of our country during both World War 2 and subsequently during the Cold War.
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    One of the primary things I hope to convey at these hearings is a sense of the effect of these programs on individuals as well as the community. I have spent hours with grown women and men in tears as they helped me identify those of their coworkers who are deceased. Without the benefit of a funded scientific study, I would have to say that anecdotally we are seeing a higher than expected rate of cancers and lung disease in this population, (as compared to what I have experienced in other medical screenings). These workers and their families said at first that the government was only waiting for them to die. Sadly the facts and history appeared to bear this out. The impression among many workers and their families is that the workers had been put at risk, made ill, and died as a result of their work, yet the government was merely going to stall and deny. Throughout our and other Former Worker Programs scores of former workers lives have fortunately been saved as a result of early detection of cancers and other conditions.

    The approval of the SEC for the atomic weapons workers at the Iowa Army Ammunition Plant has rekindled the faith and participation in government.

    To adequately understand the significance of these programs, it is first necessary to understand that safe working conditions in the earliest years of nuclear weapons production were severely lacking. Worker protection in terms of radiation shielding and monitoring—although state of the art for the time—was not adequate. Production was the primary focus for the operating contractors. The Health and Safety staff at these facilities used the best available knowledge and directives from the AEC to address and minimize workers' health risks. This was prior to the epidemiologic data that resulted from follow up studies of Hiroshima and Nagasaki victims and the radium dial painters. This was prior to decades of biological study which enlightened the field significantly as regards risks of ionizing radiation. There have also been dramatic technologic improvements in radiation monitoring. The measures taken to minimize exposures to these early workforces would clearly be deemed inadequate and inappropriate today. This was decades previous to the Occupational Health and Safety Act and the protections it brought to the nations workforces. Under an oath of secrecy, there was little opportunity or incentive for complaints despite a real sense of uncertainty regarding their risks.
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    I am concerned that in addition to having been placed at historical risk in defense of our country, these workers are now at bureaucratic risk of being frustrated and disadvantaged by the processes for implementing EEOICPA. Both in the SEC process and in the dose reconstruction process there is a lack of transparency and access to expertise, which places petitioners and claimants at a tremendous disadvantage.

    SEC. In the SEC case petitioners are tasked with proving the negative—that something cannot by definition, be proved. As a logical or philosophic process this is quite difficult and workers and petitioners need assurances that this process is workable and transparent. Workers and their representatives often have to rely on a cumbersome FOIA process and are unable to obtain the same data which is used by NIOSH and it's contractors in the creation of Site Profiles and Dose Reconstructions.

    Dose Reconstructions. There is at least a perceived problem of this being a litigious process and one can understand why workers feel wronged by the unfair burdens of proof placed upon them. The Dose Reconstructions developed by NIOSH provide the appearance of precision, but this process is not exact nor at times defensible. As an example, a worker at the Iowa Army Ammunition Plant was determined to have a 48% probability of causation of a radiogenic cancer attributable to exposures at the plant. Imagine this worker's disbelief, when amending their filing based on a second and newly diagnosed radiogenic cancer, on being told that the newly calculated probability of causation dropped to 32%.

    As background, allow me to describe the industrial processes, exposures, historical health and safety procedures and reflections on the SEC petition experiences at the two facilities I know best.
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    In the case of the Iowa Army Ammunition Plant, in Burlington, Iowa, workers were exposed to ionizing radiation from enriched and depleted uranium, plutonium, and tritium in the course of assembly and disassembly of nuclear weapons from 1949 until 1975. Workers routinely handled the radioactive components directly in their hands with only cotton gloves and without lead aprons. They had little or no radiation monitoring and little or no shielding from the radiation.

    There are no reports documenting the internal doses of radionuclides in this workforce at any time. Only limited external dosimetry was provided to record the doses of external penetrating radiation to which such workers were exposed.

    A Special Exposure Cohort petition was submitted on behalf of these workers on the basis of a near total lack of relevant exposure or estimated dose data. The SEC petition process was long and frustrating to the community. It took 3 1/2 years just for the rules for evaluating SEC petitions to be developed. The argument was made by contracted Health Physicists that despite the lack of individual exposure data, doses could be reconstructed based upon classified information. All the subsequent cancer claims, even those considered radiogenic, resulted in denials initially. Statements were made by NIOSH contractors that this was a low exposure workplace despite a lack of records and without the benefit of worker interviews. This perceived a priori position seemed to permeate the actions and statements made early on by NIOSH and their contractors and may have resulted in resistance to take in to account information from workers which contradicted the a priori assumptions noted. NIOSH had stated that they could reconstruct the doses of workers at IAAAP despite a near total lack of exposure data by dint of theoretical models and data from workers at another worksite, Pantex, handling different warheads, in a different era. Petitioners are further disadvantaged by the technical nature and jargon of health physics and typically must take at face value the more technical calculations made by NIOSH. The Radiation Advisory Board is beset with complicated decisions and would benefit from the addition of persons recognized for strong environmental epidemiology skills. The functions of the Radiation Advisory Board and of their technical contractor, SC&A, must be guaranteed to be independent of any real or perceived bias of involved federal agencies. SEC and claims decisions should not be based on financial implications but fair and balanced on scientific judgment.
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    There were significant weaknesses in NIOSH's assumptions that they could reconstruct dose without worker exposure data. Examples include NIOSH's use of ambient outdoor levels of radon gas for calculating respired doses experience by underground workers in Iowa despite the fact that Iowa has among the highest geologic sources and reported indoor air concentrations of radon. NIOSH assumed that those badged had the highest exposures. Production workers reported a less than systematic radiation monitoring program and a pattern of inspectors and engineers with less hands on responsibility for assembling weapons were more likely than others to be monitored. It turns out that those workers exposed to the greatest numbers of warheads at any time and for whom the area monitoring reflected the highest exposure, (guards), were never monitored.

    In April 2005 the President's Advisory Board on Radiation and Worker Health went on record agreeing with the workers' petition that asserted that accurate, defensible and timely dose reconstructions could not be performed.

    The approval of the SEC has rekindled the faith and participation in government.

    At the Ames Laboratory, former workers processed African pitchblende ores and radioactive thorium for use in the nuclear weapons program from 1942–1955. The scientific, technical, and administrative workers at the Ames Lab were involved in a heavy industry processing tons of uranium and thorium. This process generated large quantities of radioactive dust, and workers performed their duties without personal protection, engineering controls or radiation monitoring to protect them from radionuclide exposures and risks. Exposure data are available for small subsets of the workforce from very limited points in time, and without supporting documentation regarding both work and dosimetry protocols and methods. Review of Ames Lab medical records from individual workers involved in these processes has revealed no personal dosimetry records. Workers were exposed to extremely high levels of airborne uranium and thorium dusts, radon and thorium, even relative to the standards in effect during the time. In fact, some workers were excreting hundreds of micrograms of uranium per day in their urine.
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    My impression from the tone of the OMB memo that led to these hearings is that there is a sense among some that the risk to these workers has been over stated or that their employment resulted in minimal risk. Unfortunately, because of a severe lack of exposure records and the deaths of many potential claimants, it is not feasible to conduct valid dose reconstructions for the Iowa Army Ammunition Plant, IAAAP, facility or Ames Laboratory workers. At IAAP workers were in intimate contact with strong sources of radiation, handling the fissile central components of these weapons inches from their bodies without lead aprons. Work histories of Ames workers include reports of ''blow-outs'' with dissemination of both uranium and thorium from uncontrolled exothermic reactions occurring on a routine basis. These exposures would not be tolerated by any means under today's expectations of acceptable risk. Throughout our and other Former Worker Programs scores of former workers lives have fortunately been saved as a result of early detection of cancers and other conditions.

    The SEC process has not fully addressed the risk of residual radiation among the workers performing maintenance and repair of these facilities. Recently an Ames Lab worker described to me his tasks including tearing out all the equipment, ceilings and exhaust ventilation in the building in which tons of thorium had been smelted and refined. The Ames Laboratory health and safety staff assisted in submitting an update to the Ames SEC petition to address this issue and to ask NIOSH to extend the period of coverage of the Ames SEC and add this subset of workers. The question of residual radiation risk is relevant to many of the AEC/DOE sites involved in manufacture and refining of radionuclides.

    As regards the DOL claims process, despite the best of intentions for claimant friendliness, it operates at times disturbingly like a conventional property or health insurance claims process and functionally places obstacles in the paths of claimants. The claims process should also be as transparent as possible given any confidentiality constraints.
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    I know of at least ten people whose claims were denied and whom upon review of their cases and a letter of clarification to the Director of the DOL Division of EEOICP resulted in these denials being promptly rescinded. These denials resulted from such things as:

 Proof of employment coming for a DOE site worker coming from the parent company headquarters in New Jersey instead of the plant site in Kansas City.

 Evidence of disease coming from a 'CT' scan and being denied because the term used was not 'CAT' scan.

 Statements that specific diseases—Polycythemia Vera, MAST cell lymphoma, myelodysplasia—are not covered under the SEC list of presumptive cancers when in fact they are.

    These workers are typically elderly and not well versed in medical or legal terms and are unfortunately easily frustrated and dissuaded from pursuing valid claims. Cases such as those above suggest that there would be a benefit to a systematic review of denied cases and a change in policy from placing the burden of proof entirely on the claimants to a system in which claimants are assisted in identifying and locating missing information.

    All the workers who were exposed to radiation, Beryllium and related toxins as part of our Atomic weapons industry deserve no less than a fair and open approach to the evaluation of causality and compensation for work related disease.

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    Mr. HOSTETTLER. Dr. Mauro.


    Mr. MAURO. Thank you very much. Good afternoon. My name is John Mauro. I am an employee at Sanford Cohen & Associates located in Vienna, Virginia.

    For the past 3 years, SC&A has served as the technical support contractor for the Advisory Board on radiation worker health. I serve at the SC&A as project manager for that contract.

    I would like to thank the Subcommittee for inviting me here today to discuss two topics. The first pertains to emerging issues related to the review of SEC petitions. And the second is to respond to allegations made during the March 1st, 2006 hearing regarding the possibility that SC&A may have a conflict of interest with respect to the, some of the work we are performing for the Advisory Board.

    With respect to the first topic, I have prepared a written statement that addresses four separate issues. However, for the sake of expediency, it is convenient to combine these issues into a single issue that has to do with finding and then dealing with inadequacies in the radiation protection records for workers at DOE and AWE facility.

    When all is said and done, one of the most important responsibilities we all have under the Act is to identify the nature and extent of the deficiencies of the radiation protection and other records at each facility and determine if it is scientifically plausible to find a way to deal with these deficiencies and reconstruct the doses to all workers in a manner that is scientifically robust and claimant favorable. If we cannot do this for any group of workers, we must recommend an SEC petition.
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    To date, SC&A has reviewed numerous SEC petitions and NIOSH evaluation reports of those petitions. The single most important issue that continues to emerge is gaining a complete understanding of the myriad operations that occurred at a facility over time and understanding where the gaps exist in the records that challenge our ability to reconstruct doses.

    I don't think anyone realized that this program, when it began, how difficult it was going to be to identify those gaps. For example, at the Y-12 and Mallinckrodt facilities, we all knew that uranium exposures were important and a highly concerted effort was made to understanding the uranium exposures that occurred at these facilities. However, during our review of these petitions for these facilities, it became apparent that there were many more radionuclides and activities that took place at these facilities that needed to be understood.

    It is essential that we all recognize the complexity of these facilities and make sure we do not overlook potentially important sources of exposures and exposure scenarios, especially during the early years.

    We need to have complete and unfettered access to all DOE historical records in order to achieve a level of confidence that we have not missed anything important.

    I believe the single most important issue that has emerged to date is the recognition that it is very difficult to gain a full understanding of the myriad activities that took place at these facilities, and that NIOSH, the board and their contractors, SC&A, must accept this reality and the challenges that go with it.

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    Once we understand the extent and complexity of the activities that took place at a given facility, and the magnitude of the deficiencies and the gaps, we must develop robust decision criteria for determining when we can develop end develop methods that can fill the gaps in a scientifically defensible and claimant favorable manner and when we cannot. I do not believe we have yet reached the point where we all agree on the process by which this best can be accomplished.

    With respect to the second issue, I disagree with the statement—the second issue being the conflict of interest statements that were made at the—during the previous hearings. I disagree with the statements made by Mr. Hallmark at the March 2006 hearing that SC&A has a conflict of interest.

    In my prepared statement, I explain why I believe Mr. Hallmark's statements are not correct.

    The bottom line is, and I am looking for one way to convince the Subcommittee, is that when you review our record of findings, just about 40 percent of our findings are that the dose reconstruction deficiencies have either—have underestimated and about 60 percent have found overestimated. So I believe we have been very objective with respect to how we approach the problem. And we do not have a conflict of interest. I am not going to go into the details. They are all in my record.

    There are a couple of other matters I would like to discuss, but I can see that my time is running out. And I would like to thank you for the opportunity to speak to you.

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    Mr. HOSTETTLER. Thank you, Dr. Mauro.

    [The prepared statement of John Mauro follows:]


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    Mr. HOSTETTLER. Mrs. Bates.


    Ms. BATES. I would like to thank Chairman Hostettler and Ranking Member Jackson Lee for inviting me to testify today. My name is Kathy Bates, and I am representing my mother Mildred Gore, my brothers James and Gregory Gore and myself with respect to our EEOICPA claim under subtitle B for my father, James Gore.

    My father worked at Y-12 in Oak Ridge, Tennessee as a production engineer in nuclear weapons fabrication from August 1988 to October 1994. He was diagnosed with basal cell carcinoma in July 1992. He was diagnosed with ocular melanoma in July 1997 and died in April 2001.

    My testimony briefly summarizes our experience with the claims process and the apparent lack of quality control in NIOSH and DOL. My mother filed a survivor claim in January 2003. In July 2005, she received a draft dose reconstruction from NIOSH and a recommended decision from DOL in November 2005 stating the claim was denied. Both the draft reconstruction and DOL's recommended decision contained significant errors. The first major errors that the draft dose reconstruction stated that there were no records of monitoring for my father and no information relating to his job title, job responsibilities or locations where he worked.
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    My mother told NIOSH that he was a monitored employee but this was given no credit. Nonetheless, he was assigned a dose based on NIOSH's assumption that he was not regularly monitored.

    The second major error which I identified for NIOSH in February 2006 is that NIOSH mistyped my father's Social Security number when they requested records from DOE. As a result DOE, found no records for my father. The third major error is that the recommended decisions stated ''the probability of causation for the primary colon cancer was determined to be 25 percent.'' Ny father did not have colon cancer nor was he diagnosed with colon cancer.

    We filed an appeal with DOL in January 2006 based upon the fact that NIOSH stated they had no records or information for my father, and thus any dose estimate would have been in error. I spoke at the Advisory Board public session in January 2006. At that meeting, we were pleased to meet senior administrators from DOL NIOSH and ORAU who gave us their personal assurances that these problems would be corrected. This level of attention certainly exceeded our expectations.

    In June of 2006, we received a letter from DOL stating our appeal was approved. I had filed a Freedom of Information Act to DOE and did obtain records for my father, including his radiation exposure records, which I e-mailed to NIOSH in August 2006. I also provided contact information on co-workers and identified the building he worked in.

    I obtained an e-mail acknowledgement of receipt and NIOSH indicated they would put this information into the administrative file. I thought the problem was on track and it would be fixed.
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    On November 22nd 2006, we received the second draft dose reconstruction from NIOSH. The report stated there were no radiation exposure records for my father end quote, Mr. Gore's work location is not known. NIOSH's dose reconstruction report stated ''external electron radiation not considered in this dose reconstruction because Mr. Gore did not work directly with radioactive materials and any external doses would have been attributable primarily to photons.''

    Despite sending NIOSH's radiation exposure records, NIOSH continued to contend that he did not work directly with radioactive materials. The net result of course is that his dose reconstruction is not correct again. To quote my mother, ''it is as if your father never existed.''

    I do not know if NIOSH is going to immediately address these problems and start their dose reconstruction for the third time. Even if a dose reconstruction is completed for my father using the records available, I can honestly say at this point that we have little or no faith in the validity of the results.

    Is our claim experience an aberration or are there real and systemic problems with the EEOICPA claims process that may have resulted in the unwarranted denial of other claims? We hope this Subcommittee will continue its oversight and enact legislative reforms such as those in Representative Jackson Lee's bill.

    In this context, we have several recommendations. We urge you to extend the responsibility for the DOL's office of the ombudsman to include subtitle B and authorize the ombudsman to act as an advocate on behalf of claimants seeking benefits. The Special Exposure Cohort provision should continue to receive the highest level of attention. For many claimants, the SEC process may be the only hope of receiving a fair assessment. We recommend that the role of the Advisory Board should be extended to execution of the claims process itself. At present, it does not appear that there is an external organization not controlled by the agencies which is responsible for overall administrative and claimant process audits.
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    I hope that my testimony today will be of value. We mourn the loss of my father every day. We were blessed to have such an extraordinary man as our father. We are proud of his service to our country as a U.S. Navy veteran and of his service, however small, in ensuring the safety and security of the United States of America as a DOE employee for so many years. On behalf of my family and myself, I thank you again for your efforts to support key improvements in this program and allowing me to testify here today. Thank you.

    Mr. HOSTETTLER. Thank you Mrs. Bates.

    [The prepared statement of Kathy Bates follows:]


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    Mr. HOSTETTLER. Mr. Miller.


    Mr. MILLER. Before I begin my testimony, I would like to just take an informal moment to offer a personal thank you to the Chairman and to the Ranking Member for your efforts this session of Congress to unmask the problems facing nuclear workers seeking justice from a Government that had put them in harm's way.
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    And Mr. Chairman, I realize that you will not be returning next year, but your willingness to pursue two additional oversight hearings in this lame-duck session of Congress is particularly noteworthy and it serves an important role in laying the groundwork, and I believe creating momentum for legislative reforms next year. And we genuinely thank you both.

    Today my testimony will assess the Department of Labor's efforts to pursue initiatives that would reduce benefits to sick nuclear workers, particularly new Special Exposure Cohorts, two, to review the Administration's failure to constitute the Advisory Board on radiation and worker health in conformance with the law, and three, to highlight emerging issues that are threatening the integrity of the audit process.

    At the Subcommittee's March 1 hearing regarding the OMB passback to DOL, a document which outlined five options for limiting Special Exposure Cohort, the Department of Labor's witness, Shelby Hallmark, stated, and I quote, ''cost containment is not part of any strategy or involvement that the Department of Labor has had in this process.'' Excerpts of e-mails under preparation for the Office of Management and Budget to use in the passback, which were made available to me by the Subcommittee in preparing for this hearing state, ''the single most effective way to prevent billions of dollars in spending is by requiring HHS to clear its determinations to add additional employees to the SEC, with the OMB, after an opportunity for interested agencies, such as the Department of Labor, to comment on the analysis and determination.''

    The Department of Labor has actively led lobbying efforts to reduce benefits paid out under NIOSH's Special Exposure Cohort regulations, with respect to Special Exposure Cohort bills covering facilities in Iowa, Missouri, New York and Colorado, Mr. Hallmark says in an e-mail, ''we should do everything possible to oppose these SEC amendments.'' and his entire logic is budget driven without regard to the data deficiencies.
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    The Department of Labor has also disparaged the Advisory Board on Radiation and Worker Health. Excerpts of an e-mail state, and I quote, ''the Advisory Board has totally failed to take a balanced approach to examining NIOSH activities.'' And an October 2005 memo under preparation for the Office of Management and Budget the Department of Labor recommended that the Advisory Board be ''refreshed.''

    Excerpts from the e-mail state ''we believe replacing these members could provide an opportunity to add board members willing and able to advocate a scientifically valid approach in carrying out NIOSH's responsibilities under EEOICPA.'' And given DOL's stated agenda, this appears to be a simple case of desiring to pack the courts in order to oppose SEC designations all wrapped up in the pretext of scientific validity.

    In sum, Mr. Hallmark's words in the March hearing, cost containment is not part of any strategy or involvement that the Department of Labor has had in its process are contradicted by documents uncovered by this Subcommittee.

    More damaging is the DOL's loss of credibility as an impartial claims administrator. Austin Smythe, acting Deputy Director of OMB, testified before the Subcommittee on July 20, 2006, ''we are not pursuing any of these items that were listed in the passback.'' It was inappropriately leaked. It has now been inappropriately characterized as Administration policy which it is not. And yet, despite Mr. Smythe's testimony, the OMB passback was put on the agenda for a joint NIOSH DOL meeting held in January 2006, months after the OMB passback was issued.

    There were indications that Mr. Hallmark may have moved forward with a sequel to the OMB passback. Judiciary Committee notes from an early February 2006 e-mail communication from Shelby Hallmark to Melissa Benton at the Office of Management and Budget raises a red flag. An excerpt states ''I am uncomfortable with even an unofficial sharing of my briefing piece for today's meeting with my second floor people,'' which is the Secretary of Labor. ''but if you promise not to spread it and if you don't use the language in your document such that NIOSH will know where the verbiage came from, I will share it, but I am still smarting from your citation of your ideas in the budget passback as having been suggested by the employment standards Administration.'' and he asks, ''is that agreeable?''
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    Well, we would urge the Subcommittee to secure this briefing paper and to ascertain its implementation status so we know what he was referring to.

    The Department of Labor's benefits containment agenda has found its way into the day-to-day adjudication of claims. In October of 2005, the Department of Labor began sending certain compensable claims back to NIOSH, ''based on increasing DOL management concern over a potential increase in compensable claims for cancers perceived as normally or previously not compensable.''

    The Director of the Department of Labor's final adjudication branch remanded cases back to DOL without ever telling claimants their cases were being second-guessed by DOL. In fact, one DOL e-mail says, when we send remand orders to claimants, I don't want them to know they are part of a ''management plan.''

    To the extent there are errors, such as work history or incorrect cancer diagnoses that are within the ambit of the Labor Department's regulations, then DOL clearly has a role here. But an internal DOL e-mail by a health physicist concedes that NIOSH dose reconstructions have not been overestimating dose as Mr. Hallmark has contended. In fact, this DOL e-mail says, ''now that I think about it, most of the dose reconstructions for the special cancers we are reviewing that resulted in a probability of over 50 percent are appropriately performed by NIOSH and no rework is required.''

    However, ''the need for maintaining secrecy seems to be a concern.'' This DOE e-mail added ''I hope no one is mentioning the fact that we took another look at these dose reconstructions and said it was fine in the recommended or final decisions.'' But the concern is that documents show that the DOL's final adjudicative branch cooperated in advancing this management plan to reduce the payment of claims and thus they compromised their independence as an adjudicator.
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    There may be a need for legislative reforms to separate the adjudicative branch from control of program officials and OMB.

    I notice my time is close to wrapping up. I just have one other point.

    The OMB passback called for changing the membership of the President's Advisory Board on Radiation and Worker Health, which audits the scientific quality of dose reconstructions and reviews SEC petitions.

    Today the composition of the board as the Chairman noted is not in compliance with EEOICPA, which requires a balance of scientific, medical and worker perspectives. There are only two of the four required worker slots, and only two of the four required medical slots.

    The Board also lacks the balance and diversity of viewpoints that is called for under the Federal Advisory Committee Act, thus compromising its independence. We recommend that Congress enact legislation to shift the appointing authority from the President to Congress.

    And on November 3, 2006, NIOSH compensation program director Larry Elliott—and this is just an emerging issue—unilaterally suspended all access by the Advisory Board and its audit contractor to the claimant database.

    As of November 13th—2 days before this hearing—the Advisory Board's access to the electronic database of records was reinstated—although the constraints are unknown. However, Mr. Elliott told the board that access of the claims filed by Sanford Cohen & Associates or any contract entity must be granted on a case-by-case basis with an established purpose as authorized by the manager of the system of records, which is Mr. Elliott. The board's audit contractor is now reduced to a mother-may-I situation where the entity is audited. Mr. Elliott's actions raise questions about the degree to which there is a conflict of roles.
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    In November 2004, Mr. Elliott was removed as the designated Federal official to the Advisory Board due to his conflict of roles as manager of both the dose reconstruction program and controlling the board.

    The GAO's recent report to this Subcommittee warned NIOSH to be alert for a conflict of roles in managing the program, yet this conflict has resurfaced.

    We recommend legislation to ensure that the Advisory Board and the audit contractor have full and unfettered access to all NIOSH files they deem necessary to carry out their responsibilities under that Act consistent with the Privacy Act. Thank you for your time.

    Mr. HOSTETTLER. Thank you, Mr. Miller.

    [The prepared statement of Richard Miller follows:]


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    Mr. HOSTETTLER. At this time, the Subcommittee will turn to questions.

    Dr. Fuortes, what specific recommendations would you offer to improve this program, either administratively or legislatively?
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    Dr. FUORTES. Thank you.

    Well, there are several issues. I think that one of the issues that comes up is—has come up repeatedly is the independence and the ability of the board and the auditor to do their functions.

    I think that that could be done legislatively or by a variety of mechanisms. But I think that is certainly the functions of the Board and the functions of the auditor need to be recognized as very valuable functions to the claimants and petitioners. They have no other access to that sort of expertise. And I don't think that that request falls into the line of requesting worker advocacy. I think it is access to scientific acumen.

    There are several issues, I guess, as regards the SEC process and the SEC cancers, but one issue would be that the SEC process should be facilitated I think and if it is NIOSH that can help petitioners, if it is an agency such as the Advisory Board, if it is another agency that is fine. But I think that former workers and their families are disadvantaged. They don't know what their exposures were. So somebody has to assist them in educating them. This was the situation historically. Maybe it is the Department of Energy's responsibility. But that should be looked at.

    Another issue, I raise just briefly is that the list of SEC cancers itself might be reviewed. And I think that there is probably—this is a point in time in which MCI or NIOSH or some other agency could get involved in examining that list. I think that there is—there are some deficiencies in the inclusion of that list. You asked a very broad question and maybe this is something that I am rambling on about.
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    Mr. HOSTETTLER. Appreciate it. Thank you.

    Dr. Mauro, a DOL memo prepared for OMB states the following, ''the Advisory Board has totally failed to take a balanced approach to examining by NIOSH activities. This unwillingness to fulfill their statutory responsibility by carefully examining issues such as whether so-called claimant friendly devices increasingly adopted by NIOSH are overestimating or overcompensating claimants has been magnified by NIOSH's decision to provide technical support through a contractor, Sanford Cohen & Associates, rather than through its own staff. SC&A has relentlessly pursued an agenda that appears to be designed to result in maximizing payments to claimants regardless of scientific validity.''

    Please explain how SC&A does its auditing work. For example, does SC&A only examine underestimates, or does it also assess overestimates of doses that would lead to inappropriate compensation decisions?

    Likewise, has SC&A actually identified such overestimates and pointed this out to NIOSH or the Board?

    Mr. MAURO. To answer the question, first, it must be understood that the cases that we review are given to us by the Advisory Board. They select the ones to make sure they get a good cross section that represents as many different facilities, different types of cancers, different time periods, as possible. And we receive these cases from them.

    Then we have a process of systematically checking each and every dose reconstruction to give an individual for every year we check how they calculate, how NIOSH has calculated that dose.
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    And we determined whether or not they followed their own procedures, whether or not the procedures they followed were appropriate.

    The bottom line is for each dose reconstruction that we audit, we prepare a list of findings and identify deficiencies.

    Now, it turns out we have completed 60 such audits. We have 249 findings out of the 60 audit reports.

    Out of those, we found 102 had errors that resulted in underestimates of the dose. And we have we had, we found 84 that resulted in an overestimate of the dose. And we found 63 that were errors but they really didn't affect the dose one way or the other.

    We are virtually—when we approach the process, we are really blind to whether or not the outcome is going to be over or under. We just look for errors in science, errors in the ability for them to access the proper data and use the proper procedures. And what falls out of that is the finding. And then at the end, you can make a determination, well, does that finding have the effect of resulting in an underestimate or the overestimate in the dose?

    We then sort all that out in our database, and I just sort of summarize for you so the outcome of this is one that we do both. We identify places where the science and the procedures are flawed and where it needs to be fixed.

    Mr. HOSTETTLER. Thank you. Thank you, Dr. Mauro.
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    Ms. Jackson Lee.

    Ms. JACKSON LEE. Thank you very much, and thank you all for your testimony, and please know that this Committee remaining constituted as it is in terms of its jurisdiction will continue to work to solve this problem, and I think this injustice to many who have served so well.

    Let me, Mrs. Bates, start with you, and thank you and thank your mother and brothers and also thank your late father for not only his service to the Department of Energy but to the United States Navy.

    And I, frankly, just want to get on the record the fact that you relate to us a painstaking effort on your behalf, on behalf of your family.

    The good news is that there was a family member who had the wherewithal to engage.

    Many of those these individuals who are themselves victims are elderly. Many of them may not have the wonderful support system that you provide.

    Just tell me how you felt going through all of this and then ultimately seeing your Social Security number mistyped? You know we always say to err is human. But putting the burden on you to get all of these activities in order and then to see a representation of a cavalier approach or attitude of a misprinted Social Security number.
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    Ms. BATES. Well, I can tell you, it is very frustrating from a personal standpoint. And I will honestly admit for the first few years of the process I was kind of disengaged. My mother had all the correspondence, filled out the forms and you would occasionally have a follow-up call with a case worker.

    When she got the original dose reduction, after a series of other errors which are outlined in my statement, she called me and said, I can't read this, what does it say? And that is when I really sat down and looked at it. And I couldn't read it either. And I had to sit down and I have spent hundreds of hours of my time reading thousands of pages. I did know what the Code of Federal Regulations was and so I knew where to go on the Internet, look it up. And that is how I came to be able to read 42 CFR part 82 for the dose reconstruction once required.

    I think my biggest frustration has been not knowing what to do or where to do for help, because you don't get any help out of calling the agency directly and saying I need help. The common answer I would get—even when trying to get a status was—it is in the process. That is not an answer. I felt like I was being blown off.

    And I think in your bill, the position of the ombudsman, I might not be here today if that position existed and there was an effective mechanism for people to go to and ask for help, at all levels. And many of the claimants I am sure are elderly, and many don't have the wherewithal to read these documents and even know where to go. So I think that would be one of the most effective things you could go do for the process.

    And the claim process itself, not the dose reconstruction, not the technical, the scientific part of it but you know as a claimant, I give information, there is this magic black box and out spits an answer. If it is right or wrong, I don't know. If it is not right, I don't know how to get help. I don't know even know who to ask.
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    Ms. JACKSON LEE. Would you say then that elderly senior citizens who don't have a support system can be completely frustrated by this process?

    Ms. BATES. Absolutely. My mother's comments to me when we received the recommended decision which is sent to you after the dose reconstruction was that if I did not have you to help me, I would have simply thrown it in the garbage and been done with it. Because what do you do? You are not even sure what it says. You are really not even sure what it says. You do get to the end and it says you will not be compensated if the claim is denied. But reading between, you know, dear Mrs. Gore, and you will not be compensated, the 6 or 7 pages is incomprehensible for many people, I would imagine.

    Ms. JACKSON LEE. I do understand Government documents.

    Might I also say that it is a challenge for individuals who are living with the disease. Tragically, your father passed. But I imagine if you had to entertain those elderly—those who are trying to be compensated it must be a piquing frustration.

    Ms. BATES. I can just imagine. I can just imagine. My mother is an educated woman. She is not uneducated. But knowing, having someone to ask questions of, is I think a primary responsibility of the program. And if that is the role of the ombudsman and that is the mechanism you can put in place as a help system, I don't know how you would approach helping people who don't have the wherewithal. How many people that are elderly have Internet access and use it regularly and know where to go and what to do?

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    So to the extent that these mechanisms are available you have a very broad and probably varied audience with different levels of capability to even understand or even use the office or use the tool.

    Ms. JACKSON LEE. Dr. Mauro, I wonder why your, the integrity of the auditor has now been challenged. And I wonder would you describe your work as a free for all for any claimant to claim that they are entitled, or do you do the appropriate vetting and research that is necessary to do the dose reconstruction?

    Mr. MAURO. The process that we—our contract is very well defined in how it works.

    We are really part of a large process. The Advisory Board has a mandate under the Act to independently provide oversight of the dose reconstruction process.

    We serve them in a technical capacity. They will deliver to us the cases that they would like us to look at. The only cases that we formally audit are the ones that are delivered to us by the Advisory Board.

    Then we follow procedures that have been developed and that we are held accountable to that have been approved by the Advisory Board. We have checklists. And everything we do, I would have to say, is very deliberative. It is not a free for all. It is—what we are—very often there are many, many people who would like us to look at their cases. But we have—our mandate is very well defined. Our role is to support the Board and review those audit, those cases that are given to us by the Board and report back to them.
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    Ms. JACKSON LEE. What is your explanation that you are being charged, having followed the rules by the book with wanting to give everyone money or to approve every case? How do you answer that? What is behind that?

    Mr. MAURO. I don't have an answer. I don't have a ready answer.

    Ms. JACKSON LEE. You feel you are following the rules?

    Mr. MAURO. Our rules are laid out before us very clearly and we are following them.

    Ms. JACKSON LEE. It may be the accusations are made by individuals who want no one to be compensated or don't view this as a realistic claim that so many people are suffering. It might be the case.

    Mr. Miller, I might throw this to you and thank you for the leadership you have given on these issues.

    My legislation, H.R. 5840, I think, answers Mrs. Bates's questions and some of the points you have made. Might you share how 5840 can get us started, at least in answering the question I posed to Dr. Mauro? Why is his integrity being challenged? He has argued that he is following the rules and he has nowhere to go in terms of raising his defense because he is being charged with a free for all in this process.

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    Mr. MILLER. Well, first, if I might say, having been to, I think, 41 of the Advisory Board meetings and watched the deliberations, I would assume that if there were technical acumen provided to claimants in order to assess whether, in fact, their claims may have been, the dose may have been underestimated or that an SEC might be warranted, and you viewed your role over in the Department of Labor as second guessing that, and that your job was to engage in cost containment measures, and that appealing to the office of management and budget's natural inclination to look at budget issues and to curry favor accordingly, and then to pursue an agenda where you reshape the program, not as Congress has intended it, but as you wished Congress had done it, and to do so in secrecy might explain why these nonpublic documents which the Subcommittee has been so capably obtaining and now making public for the first time, I think illustrate a larger overarching agenda to undermine congressional intent.

    And really, I think the Labor Department is undermining the integrity of the program by attacking Sanford Cohen & Associates with really—without an iota of substance or credibility.

    And I say that because the Labor Department has not once come before the Advisory Board and said technically we disagree with the finding of the audit contractor, or we disagree with the conclusion on a special cohort that the Board voted out. Instead they do this in secret with the Office of Management and Budget seeking to undercut this process or working with the White House to stack the Advisory Board.

    This is the problem that we are facing is that there is a back-door operation underway here that is undermining what goes on in public. And I certainly hope that we can continue to explore this further.
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     With respect to your legislation, I think it makes an excellent start. It captured a number of the ideas that both Congressmen Tom and Mark Udall presented before this Subcommittee in their testimony, and I was pleased to see you incorporate some of their recommendations as well, and I will also note that they cosponsored your legislation, but this legislation, I think the most important and central part is that congressional intent has got to be reinstated in this program. How do we go about doing that.

    Well, I think the first step that your legislation takes is let us have Congress make directed appointments. Let us take this out of the Administration. There is too much temptation by OMB and the green eye shades to undermine congressional intent here. Let us have Congress on a bipartisan basis make directed appointments consistent with the statutory criteria of medical, scientific and worker perspectives.

    So I think that is a first and important start, and we have other suggestions as well.

    Ms. JACKSON LEE. Mr. Chairman, may I just make this point? I am not sure if you are going on a second round. I have a military briefing that I am being called to, and so if I depart and the Chairman is having a second round, I am not sure.

    Mr. HOSTETTLER. I am having a second round, yes.

    Ms. JACKSON LEE. If I move, then you will know where I am going. If I am still here, I am getting word that I can stay a little bit longer, but Mr. Chairman, I just wanted to say that with your leadership and the opportunity for another hearing to finish this out when we return, please accept our commitment that this is not going to be left undone. There are too many patriots that we have to respond to, and I will—listen, I might be here for the second round, and I thank the witnesses very much.
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    Mr. HOSTETTLER. I thank the gentlelady. We will now go to a second round of questions.

    Ms. Bates, you have spoken on this at some length, but more directly do you feel the process today is claimant-favorable?

    Ms. BATES. From the claimant perspective, no, because—and I think we have addressed this—I felt the burden of proof was on me, and when I say ''claimant-favorable,'' I know there is a lot of language in 42 CFR 82 that addresses claimant-favorable with respect to the dose reconstruction, but from the claimant's perspective of how is the process going, not when I have to literally prove to NIOSH that records do exist and that this was his job and this is the building where he worked, that cannot be perceived as claimant-favorable.

    Mr. HOSTETTLER. Thank you.

    Mr. Miller, your testimony indicated that the NIOSH program's staff had cut off access to claims data for the board and the audit contractor. We understand that NIOSH has restored board access to data. However, the audit contractor has not had access to the claims database. How would you recommend that this problem be resolved?

    Mr. MILLER. Well, Mr. Chairman, I certainly know that the Director of NIOSH has now been made aware of this problem. John Howard has received communications on this. Secondly, I think that the situation that NIOSH has taken has told the audit contractor—and they are here to confirm it for themselves—that they must provide a rationale and a justification for the records they want to look at when they do an audit, which to me seems to be placing the audited entity in the position of putting up obstacles, and it certainly leads to the inefficiency of the process, and I would argue it deters the depth and breadth with which the auditor can pursue his job or her job.
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    My recommendation is that either something be done in the appropriations bills this year or in some legislative vehicle that provides full and unfettered access for the board and the audit contractor based on what they deem is necessary, not what NIOSH deems is necessary. That is point one and, two, that, you know, obviously the usual constraints of the Privacy Act and national security in terms of dealing with classification would apply, but they need to be able to see and access those documents without any interference whatsoever, and I think Congress needs to provide crystal clear authority for that to happen.

    One would have thought that with a program where its leadership boasts of its transparency that it would not engage in this kind of activity, but it is going on, and I do not know what is really driving it, but there is something motivating this that is not entirely transparent, Mr. Chairman.

    Mr. HOSTETTLER. Thank you.

    Dr. Mauro, in pursuing that, that notion of access and the lack thereof, has lack of access been a challenge in meeting deadlines in carrying out your work?

    Mr. MAURO. Well, this new—the new set of ground rules were only instituted about a week ago, and the nature of the ground rules are that we have to inform or request access to specific information, which we have done. Normally, we would have had directly accessed that information and have already gotten the information we need and we would have gotten the work done, but right now we have requests in under this process, waiting for the material to be released to us. So, in the respect of the past week, I would say, yeah, there has been—because of the process, there are records that we have not looked at yet that we normally would have if this access was not restricted.
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    I would like to point out, however, on my way here today I did receive a phone call from the contracting officer, Mr. David Stout, who informed me that they are taking a real close look at this and that there is a good possibility that SC&A will be granted free and unfettered access to the records, but they are discussing that right now and looking into that further.

    But to answer your question, the degree to which it will prevent us from getting our job done, there is no doubt it is an inconvenience. It will slow down the process. It already has to a certain degree. As I mentioned, there are certain documents we would have liked to have looked at today that we really have not been able to look at.

    Mr. HOSTETTLER. So free and unfettered access would probably be the optimal arrangement with regard to access for your work?

    Mr. MAURO. Yes.

    Mr. HOSTETTLER. And this is what it was for how long prior to this recent evolution in the process?

    Mr. MAURO. Well, when we first started the program about 3 years ago, we had some serious difficulties gaining access to the records we needed, and it made it very, very difficult, and it was a painful process to get to the point where we did have access. So the machinery—they are these large computer programs containing tons of information. Little by little we were granted access to the point where we did have what I considered to be very good access to the records, and that may have gone on. I would say for the past 6 months things were in pretty good shape, but now with this new policy we sort of took a step back.
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    Mr. HOSTETTLER. Thank you.

    The Chair now recognizes the gentlelady from Texas for 5 minutes.

    Ms. JACKSON LEE. Let me just again conclude by indicating that you have given us a great deal of insight on how we can expand H.R. 5840 and also some insight, Mr. Chairman, possibly on working with the Appropriations Committee to at least get, maybe, points that we agree with particularly on the advisory committee aspect.

    Dr. Mauro, could you just give an example of where you have identified significant omissions or holes in the data that were generated by your access to the material? Do you have like one example or have you discovered something? If you had not had any access, you would not have been able to secure that information?

    Mr. MAURO. Yes. I guess the most important one is what is happening right now. Right now we are in the middle of reviewing the Rocky Flats SEC petition. There are some very serious issues before us on whether or not the record is complete with regard to the doses to workers. Are there significant gaps? There are some questions of falsification of records and destruction of records deliberately. All of these are part of the record of the petition's concern.

    Now, in order for us to investigate these matters, not only us but also NIOSH, the only way to determine whether the seriousness of these gaps and the statements made in the petition is to go into the records. Without having access to those records, these questions cannot be answered, and to place certain constraints on, you know, the degree to which we can access our protocol, it is going to make it difficult, and we do not know how difficult it will be, and let us say we do have to live with this new set of ground rules. It will make it difficult for us to do the investigations that we would like to be able to do, but of course if those are the ground rules, that is what we will do.
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    So that is one very important example of where having access to records is important. I hope that answers your question.

    Ms. JACKSON LEE. And so, in essence, it is a question of fairness. Do you have any access to determine what is right, what is wrong, what is a fact, what is not a fact?

    Mr. MAURO. In the end the records is what the whole program is about.

    Ms. JACKSON LEE. Not your favoritism. You are not in the business of favoritism, I take it?

    Mr. MAURO. No, of course not.

    Ms. JACKSON LEE. You are in the business of independent research and auditing——

    Mr. MAURO. Yes.

    Ms. JACKSON LEE.—and I think, Mr. Chairman, that this is one of the harshest discoveries that we have made, and it is interesting that the call was made to reconsider this, but a fact finder cannot be a true transparent fact finder without having access to documents.
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    Dr. Fuortes, do you have any quick suggestion on this issue that you raised that was dealing with any improvements to the Special Exposure Cohort process?

    Dr. FUORTES. Well, as I said, I think workers need some assistance or sites need some assistance, and as I said, I think this could be in several fashions, but that is one issue.

    Ms. JACKSON LEE. An ombudsman or someone advocating?

    Dr. FUORTES. Well, most of what I have been working with has in fact been claims-oriented, and the ombuds-—I work a bit with the ombudsperson's office, and I think that that—what you have suggested of expanding that role would be fantastic. The claimants are elderly. They do have a great deal of difficulty in collecting and interpreting medical information. They have the responsibility of collecting all of this information, and if you can, imagine somebody without Kathy to help them. I think that we can see that there is a real need for some assistance in this process. I do not know if the resource centers are supposed to do this work or not, but I believe that the ombudsperson's office being expanded to fulfill that role of claims assistance and, in particular, assistance with the evaluation or the auditing of the denied claims by DOL would be very, very helpful.

    So this is not exactly answering your question of problems with the SEC but how I view improvement of the overall program.

    Ms. JACKSON LEE. Let me just say that the two devils in the details are the DOL acting as the handmaiden of the OMB as it relates to doing their job and cost-cutting, and what we have found is that cost-cutting seems to have carried the day as opposed to fact finding. When you find the facts, you will define the pool of applicants that are legitimate, and then you begin to make the case for how they are compensated, but if you start out with an OMB cost-cutting challenge, then you are cutting the edges in terms of finding out the truth, and I hope that that is not what my understanding of the Advisory Board and this process was to be about.
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    So I, again, think this is my second expression of appreciation. Thank you for the insight that has been given and some of the additions, Ms. Bates—Mrs. Bates—that we would like to add to the existing legislation, issues that you have given us for consideration. Again, thank you.

    Thank you, Mr. Chairman.

    Mr. HOSTETTLER. I am going to ask a couple more questions. First of all, Dr. Fuortes, what is your view on the current balance of the Advisory Board?

    Dr. FUORTES. My impression is that even the term ''balance'' is confusing. To me, it is very confusing because, from documents that were made available to me, it appears that people view the balance on the Advisory Board being a balance of the employer's perspective and worker advocacy.

    I think the Advisory Board is tasked with making scientific judgments, so worker's perspective is important in terms of knowing the worker's language, knowing about the processes involved in facilities, not worker advocacy, and so I am very disturbed by that terminology in those documents. I think that I would prefer people follow through with the concept of difficulty in ascertaining risk and determining how to fulfill the language and intent of the EEOICPA Act on the basis of scientific judgments.

    In that case, I would say that instead of balance the skill sets reflected on the—which is what you are getting at—the skill sets reflected on the Advisory Board would suggest to me that they probably need a little bit more medical epidemiology/radioepidemiology background. The one radioepidemiologist is, I think, very, very overburdened with the current tasks, and I would say that I would look at skill sets instead of balance because, to me, the concept of ''balance'' really implies advocacy roles and antagonism between two separate advocacy roles.
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    Mr. HOSTETTLER. With the notion of skill sets, how would that be redundant with the task of the contractor itself, or would it be?

    Dr. FUORTES. Oh. Well, I do not know that the contractors are medical epidemiologists per se. I would say that their skill sets lie more in radiophysics dose ascertainment, and medical epidemiology was—certainly, there is an overlap between the fields, but I would say that they are separate areas.

    Mr. HOSTETTLER. Okay. Thank you.

    Mr. Miller, has it been your experience that the shoddy processing of Ms. Bates' survivor claim is unique or is it systemic?

    Mr. MILLER. The circumstance that Ms. Bates brings up certainly brings to mind for me several other recent cases where the mechanics of the claims processing is deficient. Let me give you an example from the Nevada test site, for example. The Nevada test site—they are—NIOSH concedes that in their site profile documents that they cannot reconstruct dose for a whole group of workers who were out at this nuclear weapons test facility. When they did certain underground tests, the tests did not stay contained. They blew out. They vented, so to speak, euphemistically. Some of these ventings went on for 30 hours and traveled all the way to Utah. So, when we say ''venting,'' we mean a large amount of particulate debris that was forced into the atmosphere over a protracted period of time. Huge amounts of pressure built up underground. The workers around it were not necessarily monitored or monitored adequately, and NIOSH does not have a clear way to estimate their dose, but what they put is—they say that workers will self-identify if they have been in these events. They assume that claimants will self-identify and survivors will self-identify, that one of these ten out of—you know, over the hundreds and hundreds and hundreds of tests that have been conducted there that they will flag that and that NIOSH will know it, and then, if they know that, they will set it aside.
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    Well, the fact is claimants are not even asked if they were involved in these tests by NIOSH, so NIOSH just goes ahead willy-nilly and is reconstructing doses while omitting these events that they cannot reconstruct dose for. So you are supposed to be setting these aside and either pending them or perhaps putting them in another special cohort.

    Instead, what is happening is due to the administrative failures of NIOSH in its claimant interview process the failure to obtain the information that these workers should not be dose-reconstructed, because NIOSH already admits they lack the data and the wherewithal to do it, and yet they are running it through the process. How is a claimant, when they get this gibberish back in their dose reconstruction report, ever going to fathom that their case was so grossly mishandled? And I have had the privilege of working with the Senator's office from Nevada who has fed me a number of these cases, and I am astounded at the degree of ineptitude in the basic bureaucratic processing of the claims by NIOSH.

    Mr. HOSTETTLER. Thank you.

    Those are all the questions I have.

    The gentlelady from Texas.

    Ms. JACKSON LEE. I am prepared to yield, and I think that we have made a very, very good record particularly by all of the witnesses coming from different perspectives, and I would appreciate, Mr. Chairman, if we could collaborate in this period between now and the close of this session to see how—at least the strengthening of the Advisory Board subtitle (B), but the integrity of Dr. Mauro's process, I think, is key. He must be unfettered, and he must be able to view documents with integrity. There will be several elements that will help move these cases along, and I thank you very much, and I yield back my time.
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    Mr. HOSTETTLER. I look forward to working with the gentlelady from Texas.

    Without objection, all Members will have 5 legislative days to make additions to the record. The Chair will also notify the witnesses that we will have a set of a few questions. I have some questions for some of the witnesses that are here today that I was not able to ask, and so I would request that the witnesses would respond to those questions in a timely fashion, and that time frame will be made known in correspondence that we will make with you.

    The business before the Subcommittee being completed today without——

    Ms. JACKSON LEE. I will join you in written questions as well. Thank you.

    Mr. HOSTETTLER. Without objection, the Subcommittee is adjourned.

    [Whereupon, at 3:30 p.m., the Subcommittee was adjourned.]


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