SPEAKERS CONTENTS INSERTS
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67–346
2000
COMPENSATION FOR ILLNESSES REALIZED BY DEPARTMENT OF ENERGY WORKERS DUE TO EXPOSURE TO HAZARDOUS MATERIALS
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
ON
H.R. 675, H.R. 3418, H.R. 3478, H.R. 3495, H.R. 4263 and H.R. 4398
SEPTEMBER 21, 2000
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Serial No. 132
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
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LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
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Subcommittee on Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
BILL McCOLLUM, Florida
ELTON GALLEGLY, California
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
JOE SCARBOROUGH, Florida
SHEILA JACKSON LEE, Texas
HOWARD L. BERMAN, California
ZOE LOFGREN, California
BARNEY FRANK, Massachusetts
MARTIN T. MEEHAN, Massachusetts
GEORGE FISHMAN, Chief Counsel
JIM WILON, Counsel
LORA RIES, Counsel
CINDY BLACKSTON, Professional Staff
LEON BUCK, Minority Counsel
C O N T E N T S
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HEARING DATE
September 21, 2000
TEXT OF BILLS
H.R. 675
H.R. 3418
H.R. 3478
H.R. 3495
H.R. 4263
H.R. 4398
OPENING STATEMENT
Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Berkley, Hon. Shelley, a Representative in Congress From the State of Nevada
Elisburg, Donald, former Assistant Secretary of Labor for Employment Standards
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Guttman, Dan, former executive director, President's Advisory Committee on Human Radiation Experiments
Harding, Clara, Paducah, KY
Kanjorski, Hon. Paul E., a Representative in Congress From the State of Pennsylvania
Kaptur, Hon. Marcy, a Representative in Congress From the State of Ohio
Lampson, Hon. Nick, a Representative in Congress From the State of Texas
Ledwidge, Lisa, Institute for Energy and Environmental Research
Lopez, Pete, Amarillo, TX
Markowitz, Steven B., director, Center for the Biology of Natural Systems, Queens College, Flushing, NY
Michaels, David, Ph.D., MPH, Assistant Secretary, Office of Environment Safety and Health, United States Department of Energy
Miller, Richard D., policy analyst, Paper, Allied-Industrial, Chemical and Energy Workers International Union
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Orick, Ann H., Knoxville, TN
Ray, Sam, Lucasville, OH
Repsher, Lawrence, M.D.
Richardson, Bill, Secretary, United States Department of Energy
Rosenman, Kenneth D., M.D., professor of medicine, Michigan State University, East Lansing, MI
Slaughter, Ray O., Las Vegas, NV
Strickland, Hon. Ted, a Representative in Congress From the State of Ohio
Udall, Hon. Tom, a Representative in Congress From the State of New Mexico
Udall, Hon. Mark, a Representative in Congress From the State of Colorado
Voinovich, Hon. George V., a U.S. Senator From the State of Ohio
Wamp, Hon. Zach, a Representative in Congress From the State of Tennessee
Whitfield, Hon. Ed, a Representative in Congress From the State of Kentucky
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LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Berkley, Hon. Shelley, a Representative in Congress From the State of Nevada: Prepared statement
Conyers, Hon. John, Jr., a Representative in Congress from the State of Michigan: Prepared statement
Elisburg, Donald, former Assistant Secretary of Labor for Employment Standards: Prepared statement
Guttman, Dan, former executive director, President's Advisory Committee on Human Radiation Experiments: Prepared statement
Harding, Clara, Paducah, KY: Prepared statement
Harding, Joe, Paducah, KY: Letter to the Department of Energy dated August 25, 1979
Jackson Lee, Hon. Sheila, a Representative in Congress From the State of Texas: Prepared statement
Kanjorski, Hon. Paul E., a Representative in Congress From the State of Pennsylvania: Prepared statement
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Kaptur, Hon. Marcy, a Representative in Congress From the State of Ohio: Prepared statement
Ledwidge, Lisa, Institute for Energy and Environmental Research: Prepared statement
Lopez, Pete, Amarillo, TX: Prepared statement
Markowitz, Steven B., director, Center for the Biology of Natural Systems, Queens College, Flushing, NY: Prepared statement
Michaels, David, Ph.D., MPH, Assistant Secretary, Office of Environment Safety and Health, United States Department of Energy: Prepared statement
Miller, Richard D., policy analyst, Paper, Allied-Industrial, Chemical and Energy Workers International Union: Prepared statement
Orick, Ann H., Knoxville, TN: Prepared statement
Ray, Sam, Lucasville, OH: Prepared statement
Repsher, Lawrence, M.D.: Prepared statement
Rosenman, Kenneth D., M.D., professor of medicine, Michigan State University, East Lansing, MI: Prepared statement
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Slaughter, Ray O., Las Vegas, NV: Prepared statement
Smith, Hon. Lamar S., a Representative in Congress From the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
Strickland, Hon. Ted, a Representative in Congress From the State of Ohio: Prepared statement
Udall, Hon. Tom, a Representative in Congress From the State of New Mexico: Prepared statement
Udall, Hon. Mark, a Representative in Congress From the State of Colorado: Prepared statement
Voinovich, Hon. George V., a U.S. Senator From the State of Ohio: Prepared statement
Wamp, Hon. Zach, a Representative in Congress From the State of Tennessee: Prepared statement
Whitfield, Hon. Ed, a Representative in Congress From the State of Kentucky: Prepared statement
APPENDIX
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Material submitted for the record
COMPENSATION FOR ILLNESSES REALIZED BY DEPARTMENT OF ENERGY WORKERS DUE TO EXPOSURE TO HAZARDOUS MATERIALS
THURSDAY, SEPTEMBER 21, 2000
House of Representatives,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:17 a.m., in Room 2237, Rayburn House Office Building, Hon. Lamar S. Smith (chairman of the committee) presiding.
Present: Representatives Lamar S. Smith, Edward A. Pease, Chris Cannon, Sheila Jackson Lee, and John Conyers, Jr.
Staff present: George Fishman, chief counsel; Cindy Blackston, professional staff; Kelly Dixon, clerk; Leon Buck, minority counsel; and Nolan Rappaport, minority counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
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Mr. SMITH. The Subcommittee on Immigration and Claims will come to order. We are going to begin with opening statements and then we will go immediately to our first panel. It is obvious at the outset that this is a very important hearing. It is also going to be a long hearing about a very serious subject. I am going to recognize myself for an opening statement.
Our hearing today is on six pieces of legislation that would compensate workers whose health has suffered because of their employment at facilities that participated in the manufacture of nuclear weapons. These bills attempt to compensate workers who were exposed to toxic and radioactive materials. Nuclear weapons production involves unique dangers, including exposure to radioactive and hazardous substances, such as beryllium, that even in small amounts can cause great physical harm.
[The bills, H.R. 675, H.R. 3418, H.R. 3478, H.R. 3495, H.R. 4263 and H.R. 4398 follow:]
106TH CONGRESS
1ST SESSION
H. R. 675
To provide jurisdiction and procedures for affording relief for injuries arising out of exposure to hazards involved in the mining and processing of beryllium.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 10, 1999
Mr. KANJORSKI introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
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A BILL
To provide jurisdiction and procedures for affording relief for injuries arising out of exposure to hazards involved in the mining and processing of beryllium.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Beryllium Exposure Compensation Act''.
SEC. 2. FINDINGS, PURPOSE, AND APOLOGY.
(a) FINDINGS.—The Congress finds that—
(1) hazards involved in the mining and processing of beryllium and its compounds are presumed to have caused injury, disease, and disability among those who worked in the beryllium processing industry;
(2) workers who were exposed to beryllium hazards were subjected to increased risk of injury and disease to serve the national security interests of the United States; and
(3) the United States should recognize and assume responsibility for the harm done to these workers.
(b) PURPOSE.—It is the purpose of this Act to establish a procedure to provide relief to the workers described in subsection (a) for the burdens they have borne for the Nation as a whole.
(c) APOLOGY.—The Congress apologizes on behalf of the Nation to the workers described in subsection (a) and their families for the hardships they have endured.
SEC. 3. TRUST FUND.
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(a) ESTABLISHMENT.—There is established in the Treasury of the United States, a trust fund to be known as the Beryllium Exposure Compensation Trust Fund, which shall be administered by the Secretary of the Treasury.
(b) INVESTMENT OF AMOUNTS IN THE FUND.—Amounts in the Fund shall be invested in accordance with section 9702 of title 31, United States Code, and any interest on, and proceeds from any such investment shall be credited to the Fund.
(c) AVAILABILITY OF THE FUND.—Amounts in the Fund shall be available only for disbursement by the Attorney General under section 5.
(d) TERMINATION.—The Fund shall terminate 30 years after the date of the enactment of this Act. If all of the amounts in the Fund have not been expended by the end of that 30-year period, investments of amounts in the Fund shall be liquidated and receipts thereof deposited in the Fund and all funds remaining in the Fund shall be deposited in the miscellaneous receipts account in the Treasury.
(e) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Fund such sums as may be necessary to carry out its purposes, which may remain available until expended.
SEC. 4. CLAIMS.
(a) IN GENERAL.—A beryllium worker described in subsection (b) shall receive $100,000 if—
(1) the claim for such payment is filed with the Attorney General by or on behalf of such individual; and
(2) the Attorney General determines, in accordance with section 5, that the claim meets the requirements for payment under this Act.
(b) ELIGIBLE BERYLLIUM WORKER.—A beryllium worker described in this subsection is an individual who—
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(1) at any time during the period beginning January 1, 1930, and ending December 31, 1980, was employed at a beryllium industry site;
(2) was exposed to significant beryllium hazards in the course of such employment; and
(3) after such exposure developed a condition known to be related to beryllium exposure.
(c) CONFORMITY WITH SECTION 5.—Payments under this section may be made only in accordance with section 5.
SEC. 5. DETERMINATION AND PAYMENT OF CLAIMS.
(a) ESTABLISHMENT OF FILING PROCEDURES.—The Attorney General shall establish procedures whereby claims may be submitted under this Act.
(b) REQUIRED PROCEDURES.—The procedures established pursuant to subsection (a) shall provide that a claim meets the requirements for payment under this Act only if the claim includes—
(1) adequate documentation that the individual satisfies the requirements of paragraphs (1) and (2) of section 4(b); and
(2) written medical documentation that the individual satisfies the requirements of paragraph (3) of section 4(b).
(c) DETERMINATION OF CLAIMS.—
(1) IN GENERAL.—The Attorney General shall determine, in accordance with the guidelines established pursuant to this subsection, whether each claim filed under this Act meets the requirements for payment under this Act.
(2) CONSULTATION ON GUIDELINES.—The Attorney General shall establish guidelines in consultation with—
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(A) the Secretary of Defense, the Secretary of Energy, and the Secretary of Labor, for determining what constitutes adequate documentation that an individual satisfies the requirements of paragraph (1) of section 4(b);
(B) the Director of the National Institute for Occupational Safety and Health, for determining what constitutes significant beryllium hazards within the meaning of paragraph (2) of section 4(b) and what constitutes adequate documentation that an individual satisfies the requirements of such paragraph; and
(C) the Surgeon General, for determining what constitutes written medical documentation that an individual satisfies the requirements of paragraph (3) of section 4(b).
(3) CONSULTATION ON DETERMINATIONS.—The Attorney General may consult with—
(A) the Secretary of Defense, the Secretary of Energy, and the Secretary of Labor in making determinations pursuant to the guidelines established under paragraph (2)(A);
(B) the Director of the National Institute for Occupational Safety and Health in making determinations pursuant to the guidelines established under paragraph (2)(B); and
(C) the Surgeon General in making determinations pursuant to the guidelines established under paragraph (2)(C).
(d) PAYMENT OF CLAIMS.—
(1) IN GENERAL.—Subject to section 12, the Attorney General shall pay, from amounts available in the Fund, claims filed under this Act which the Attorney General determines meet the requirements for payment under this Act.
(2) OFFSET FOR CERTAIN PAYMENTS.—A payment under this Act to an individual, or to a survivor of that individual, on a claim under section 4 shall be offset by the amount of any payment made pursuant to a final award or settlement on a claim (other than a claim for worker's compensation), against any person, that is based on injuries incurred by that individual on account of exposure to significant beryllium hazards at any time during the period referred to in section 4(b)(1).
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(3) RIGHT OF SUBROGATION.—Upon payment of a claim under this Act, the United States Government is subrogated for the amount of the payment to a right or claim that the individual to whom the payment was made may have against any person on account of injuries referred to in paragraph (2).
(4) PAYMENTS IN THE CASE OF DECEASED PERSONS.—
(A) IN GENERAL.—In the case of an individual who is deceased at the time of payment under this Act, such payment may be made only as follows:
(i) If the individual is survived by a spouse who is living at the time of payment, such payment shall be made to such surviving spouse.
(ii) If there is no surviving spouse described in clause (i), such payment shall be made in equal shares to all children of the individual who are living at the time of payment.
(iii) If there is no surviving spouse described in clause (i) and if there are no children described in clause (ii), such payment shall be made in equal shares to the parents of the individual who are living at the time of payment.
(iv) If there is no surviving spouse described in clause (i), and if there are no children described in clause (ii) or parents described in clause (iii), such payment shall be made in equal shares to all grandchildren of the individual who are living at the time of payment.
(v) If there is no surviving spouse described in clause (i), and if there are no children described in clause (ii), parents described in clause (iii), or grandchildren described in clause (iv), then such payment shall be made in equal shares to the grandparents of the individual who are living at the time of payment.
(B) INDIVIDUALS WHO ARE SURVIVORS.—If an individual eligible for payment under section 4 dies before filing a claim under this Act, any survivor of that individual described in subparagraph (A) may file a claim for such payment under this Act.
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(C) DEFINITIONS.—For purposes of this paragraph—
(i) the spouse of an individual is a wife or husband of that individual who was married to that individual for at least one year immediately before the death of that individual;
(ii) a child includes a recognized natural child, a stepchild who lived with an individual in a regular parent-child relationship, and an adopted child;
(iii) a parent includes fathers and mothers through adoption;
(iv) a grandchild of an individual is a child of a child of that individual; and
(v) a grandparent of an individual is a parent of a parent of that individual.
(e) ACTION ON CLAIMS.—The Attorney General shall complete the determination on each claim filed in accordance with the procedures established under subsection (a) not later than 12 months after the claim is so filed.
(f) PAYMENT IN FULL SETTLEMENT OF CLAIMS AGAINST UNITED STATES.—The acceptance of payment by an individual under this Act shall be in full satisfaction of all claims of or on behalf of that individual against the United States, or against any person with respect to that person's performance of a contract with the United States, that arise out of exposure to significant beryllium hazards at any time during the period referred to in section 4(b)(1).
(g) ADMINISTRATIVE COSTS NOT PAID FROM FUND.—The costs incurred by the Attorney General in carrying out this Act may not be paid from the Fund or set off against, or otherwise deducted from, any payment under this Act to any individual.
(h) TERMINATION OF DUTIES OF ATTORNEY GENERAL.—The duties of the Attorney General under this Act shall cease when the Fund terminates.
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(i) CERTIFICATION OF TREATMENT OF PAYMENTS UNDER OTHER LAWS.—Amounts paid to an individual under this Act—
(1) shall be treated for purposes of the internal revenue laws of the United States as damages for human suffering; and
(2) shall not be included as income or resources for purposes of determining eligibility to receive benefits described in section 3803(c)(2)(C) of title 31, United States Code, or the amount of such benefits.
(j) USE OF EXISTING RESOURCES.—The Attorney General should use funds and resources available to the Attorney General to carry out his or her functions under this Act.
(k) REGULATORY AUTHORITY.—The Attorney General may issue any regulations necessary to carry out this Act.
(l) ISSUANCE OF REGULATIONS, GUIDELINES, AND PROCEDURES.—Regulations, guidelines, and procedures to carry out this Act shall be issued not later than 180 days after the date of the enactment of this Act.
SEC. 6. CLAIMS NOT ASSIGNABLE OR TRANSFERABLE; LIMITATION OF REMEDIES.
(a) CLAIMS NOT ASSIGNABLE OR TRANSFERABLE.—A claim cognizable under this Act may not be assigned or transferred.
(b) LIMITATION OF REMEDIES.—An individual may not receive more than one payment under this Act.
SEC. 7. STATUTE OF LIMITATIONS.
A claim to which this Act applies shall be barred unless the claim is filed within 20 years after the date of the enactment of this Act.
SEC. 8. ATTORNEY FEES.
It shall be unlawful for an amount exceeding 10 percent of the value of any payment made under this Act to be paid to, or received by, any agent or attorney for any service rendered in connection with the claim for payment. Any person who violates this section shall be guilty of an infraction, and shall be subject to a fine in the amount provided in title 18, United States Code.
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SEC. 9. CERTAIN CLAIMS NOT AFFECTED BY AWARDS OF DAMAGES.
A payment made under this Act shall not be considered as any form of compensation or reimbursement for a loss for purposes of imposing liability on any individual receiving such payment, on the basis of such receipt, to repay any insurance carrier for insurance payments, or to repay any person on account of worker's compensation payments, and a payment under this Act shall not affect any claim against an insurance carrier with respect to insurance or against any person with respect to worker's compensation.
SEC. 10. DEFINITIONS.
For purposes of this Act, the following definitions shall apply:
(1) BERYLLIUM INDUSTRY SITE.—The term ''beryllium industry site'' means a site that—
(A) was owned, operated, or supervised by the Federal Government for the mining or processing of beryllium or a beryllium compound; or
(B) produced mined or processed beryllium or beryllium compound under contract with the Federal Government.
(2) FUND.—The term ''Fund'' means the Beryllium Exposure Compensation Trust Fund under section 3(a).
SEC. 11. REPORT.
The Secretary of Health and Human Services shall submit to the Congress not later than September 30, 2003, a report on the incidence of beryllium-related illness among workers employed at beryllium industry sites.
SEC. 12. BUDGET ACT COMPLIANCE.
The authority under this Act to enter into contracts or to make payments shall not be effective in any fiscal year except to such extent or in such amounts as are provided in advance in appropriations Acts.
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106TH CONGRESS
1ST SESSION
H. R. 3418
To establish a compensation program for employees of the Department of Energy, its contractors, subcontractors, and beryllium vendors, who sustained a beryllium-related illness due to the performance of their duty; to establish a compensation program for certain workers at the Paducah, Kentucky, gaseous diffusion plant; to establish a pilot program for examining the possible relationship between workplace exposure to radiation and hazardous materials and illnesses or health conditions, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 17, 1999
Mr. KANJORSKI (for himself, Ms. KAPTUR, Mr. WAMP, Mr. WHITFIELD, Mrs. BIGGERT, Mr. KLINK, Mr. BROWN of Ohio, Mr. UDALL of Colorado, Mr. BRADY of Pennsylvania, Mr. HOLDEN, and Ms. SLAUGHTER) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To establish a compensation program for employees of the Department of Energy, its contractors, subcontractors, and beryllium vendors, who sustained a beryllium-related illness due to the performance of their duty; to establish a compensation program for certain workers at the Paducah, Kentucky, gaseous diffusion plant; to establish a pilot program for examining the possible relationship between workplace exposure to radiation and hazardous materials and illnesses or health conditions, and for other purposes.
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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
TITLE I—ENERGY EMPLOYEES' BERYLLIUM COMPENSATION ACT
SEC. 101. SHORT TITLE.
This title may be cited as the ''Energy Employees' Beryllium Compensation Act''.
SEC. 102. FINDINGS.
The Congress finds that—
(1) employees of the Department of Energy and its predecessor agencies and employees of its contractors and vendors have been and currently may be exposed to harmful substances, including dust particles or vapor of beryllium, while performing duties uniquely related to the Department of Energy's nuclear weapons production program;
(2) while linking exposure to occupational hazards with the development of occupational disease is sometimes difficult, scientific evidence supports the conclusion that occupational exposure to dust particles or vapor of beryllium uniquely related to the Department of Energy's nuclear weapons production program can cause beryllium sensitivity and chronic beryllium disease;
(3) existing information indicates that state workers' compensation programs have failed to provide efficient, uniform, and adequate compensation to remedy the concerns addressed by this title;
(4) the civilian men and women who performed duties uniquely related to the Department of Energy's nuclear weapons production program over the last 50 years should have efficient, uniform, and adequate compensation for beryllium-related health conditions for which sufficient scientific proof exists of casual connection to occupational exposure;
(5) this situation is sufficiently unique to the Department of Energy's nuclear weapons production program that it is appropriate for Congressional action; and
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(6) this action is not intended to have any precedential effect beyond this program.
SEC. 103. DEFINITIONS.
For the purpose of this title—
(1) ''beryllium vendor'' means:
(A) Atomics International;
(B) Brush Wellman, Inc.;
(C) General Atomics;
(D) General Electric Company;
(E) NGK Metals Corporation and its predecessors: Kawecki-Berylco, Cabot Corporation, BerylCo, and Beryllium Corporation of America;
(F) Nuclear Materials and Equipment Corporation;
(G) StarMet Corporation, and its predecessor, Nuclear Metals, Inc.;
(H) Wyman Gordan, Inc.; or
(I) any other vendor, processor, or producer of beryllium or related products designated as a beryllium vendor for the purposes of this title in regulations issued by the Secretary pursuant to section 104 of this title;
(2) ''compensation'' means the money allowance payable under this title and any other benefits paid for from the Energy Employees' Beryllium Compensation Fund including the retroactive compensation payable pursuant to section 111 of this title;
(3) ''covered employee'' means—
(A) an employee of any contractor that contracted with the Department of Energy to provide management and operation, management and integration, or environmental remediation of a Department of Energy facility or an employee of any subcontractor that provided services, including construction, at such a facility;
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(B) an employee of a beryllium vendor during a period of time when that entity was engaged in activities related to beryllium that was produced or processed for sale to, or use by, the Department of Energy; or
(C) an individual defined as an employee in section 8101(1) of title 5, United States Code, who may have been exposed to beryllium at a Department of Energy facility or at a facility owned, operated, or occupied by a beryllium vendor;
(4) ''covered illness'' means any of the following conditions:
(A) Beryllium Sensitivity, established by an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells;
(B) Chronic Beryllium Disease, established by—
(i) beryllium sensitivity, as defined in subparagraph (A), and
(ii) lung pathology consistent with Chronic Beryllium Disease, such as—
(I) a lung biopsy showing granulomas or a lymphocytic process consistent with Chronic Beryllium Disease,
(II) a computerized axial tomography scan showing changes consistent with Chronic Beryllium Disease, or
(III) pulmonary function or exercise testing showing pulmonary deficits consistent with Chronic Beryllium Disease; or
(C) any injury or illness sustained as a consequence of a covered illness as defined in subparagraph (A) or (B) of this paragraph;
(5) ''Department of Energy'' includes the predecessor agencies of the Department of Energy;
(6) ''Department of Energy facility'' means any building, structure, or premises, including the grounds upon which they are located, in which operations are conducted by, or on behalf of, the Department of Energy and with regard to which the Department of Energy has a proprietary interest or has entered into a contract with an entity to provide management and operation, management and integration, or environmental remediation;
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(7) ''monthly pay'' means the monthly pay at the time of injury, or the monthly pay at the time disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 6 months after the covered employee resumes regular full-time employment, whichever is greater, except when otherwise determined under section 8113 of title 5, United States Code;
(8) ''Secretary'' means the Secretary of Energy.
(9) ''time of injury'' means the last date on which a covered employee was exposed to beryllium in the performance of duty as specified in section 106 of this title; and
(10) the following terms have the meaning given those terms in section 8101 of title 5, United States Code:
(A) ''physician'';
(B) ''medical, surgical, and hospital services and supplies'';
(C) ''widow'';
(D) ''parent'';
(E) ''brother'' and ''sister'';
(F) ''child'';
(G) ''grandchild'';
(H) ''widower'';
(I) ''student'';
(J) ''price index'';
(K) ''organ''; and
(L) ''United States medical officers and hospitals''.
SEC. 104. REGULATORY AUTHORITY TO REVISE DEFINITIONS.
(a) Additional vendors, processors, or producers of beryllium or related products may be designated as beryllium vendors for the purposes of this title in regulations issued by the Secretary, upon finding that such entities have been engaged in activities related to beryllium that was produced or processed for sale to, or use by, the Department of Energy in a manner similar to the entities listed in section 103(l) of this title.
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(b) Additional criteria by which a claimant may establish the existence of a covered illness, as defined in section 103(4) (A) or (B), may be specified in regulations issued by the Secretary, after consultation with the agency that contracts to administer this title.
SEC. 105. ADMINISTRATION.
(a) The Secretary shall administer this title and may enter into an agreement with another agency of the United States to utilize its services and facilities for the administration of this title, and to compensate them for such use. An agency of the United States may enter into a reimbursable agreement with the Secretary for the administration of this title. The Secretary may delegate to any officer or employee, or to any agency of the United States, all powers and duties necessary for carrying out the purposes of this title.
(b) To assist and facilitate administration of this title, the Secretary shall—
(1) ensure the ready availability, in paper or electronic format or in both formats, of forms necessary for making claims and providing information under this title;
(2) provide assistance to employees in connection with this title.
(c) Upon a notification that a claimant has made a claim for benefits under this title, the Secretary shall provide information concerning the claim to the officers or employees with delegated responsibility for administering this title.
(d) The Secretary may require a beryllium vendor to provide information concerning a claim filed under this title to the officers or employees with delegated responsibility for administering this title.
SEC. 106. EXPOSURE TO BERYLLIUM IN THE PERFORMANCE OF DUTY.
(a) In the absence of substantial evidence to the contrary, a covered employee, as defined in section 103(3) (A) or (C) of this title, shall be determined to have been exposed to beryllium in the performance of duty for the purposes of this title if, and only if, the covered employee was employed at a Department of Energy facility, or was present at the facility or at a facility owned or operated by a beryllium vendor, because of employment by the United States or a contractor or subcontractor of the Department of Energy, for any period of time, during a time period when beryllium dust particles or vapor may have been present at that facility.
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(b) In order to be determined to have been exposed to beryllium in the performance of duty for the purposes of this title, a covered employee, as defined by section 103(3)(B) of this title, must establish by substantial evidence that he or she may have been exposed to dust particles or vapor of beryllium that was produced or processed for sale to, or use by, the Department of Energy.
SEC. 107. COMPENSATION FOR DISABILITY OR DEATH, MEDICAL SERVICES, AND VOCATIONAL REHABILITATION.
(a) Except as otherwise provided in this title, in accordance with the provisions of the following sections, and subject to the availability of funds in the Energy Employees' Compensation Fund, the United States is authorized to—
(1) pay the compensation specified in sections 8105–8110, 8111(a), 8112–13, 8115, 8117, 8133–8135, and 8146a(a) and (b) of title 5, United States Code, for the disability or death from a covered illness, of a covered employee who was exposed to beryllium while in the performance of duty as determined in accordance with section 106 of this title;
(2) furnish the services and other benefits specified in section 8103 of title 5, United States Code, to a covered employee who sustains a covered illness as a result of exposure to beryllium while in the performance of duty as determined in accordance with section 106 of this title; and
(3) direct a permanently disabled individual whose disability is compensable under this title to undergo vocational rehabilitation and shall provide for furnishing vocational rehabilitation service pursuant to the provisions of section 8104 and 8111(b) of title 5, United States Code
unless the covered illness or death was caused by one of the circumstances set forth in subsections (a)(1)–(3) of section 8102 of title 5, United States Code.
(b) All compensation under this title shall be paid from the Energy Employees' Beryllium Compensation Fund and shall be limited to the amounts available in the Fund.
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(c) No payment of compensation may be made under this title for any period prior to the effective date of this title, except for the retroactive compensation specified in section 111 of this title.
SEC. 108. COMPUTATION OF PAY.
(a) Except as otherwise provided by this title or by regulation, computation of pay under this title shall be determined in accordance with section 8114 of title 5, United States Code.
(b) If either of the methods of determining the average annual earnings specified in section 8114(d)(1) and (2) of title 5, United States Code, cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the covered employee in the employment in which the employee was working at the time of injury having regard to the previous earnings of the employee in similar employment, and for other employees of the same employer in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the covered employee earned in the employment during the days employed within 1 year immediately preceding the time of injury.
SEC. 109. LIMITATIONS ON RECEIVING COMPENSATION.
(a) While a covered employee as defined in section 103(3)(C) is receiving compensation under this title, or if the covered employee has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, the covered employee may not receive salary, pay, or remuneration of any type from the United States, except—
(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or Air Force;
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(3) other benefits administered by the Department of Veterans Affairs unless such benefits are payable for the same covered illness or the same death; and
(4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed service.
However, eligibility for or receipt of benefits under subchapter III of chapter 83 of title 5, United States Code, or another retirement system for employees of the Government, does not impair the right of the employee to compensation for scheduled disabilities specified by section 8107 of title 5, United States Code.
(b) An individual eligible to receive benefits under this title because of a covered illness, or because of the death of a covered employee as defined in section 103(3)(C), who also is entitled to receive from the United States under a provision of statute other than this title payments or benefits for that covered illness or death (except proceeds of an insurance policy), because of service by the covered employee (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary. The election when made is irrevocable, except as otherwise provided by statute.
(c) While a covered employee is receiving compensation under this title, or if the covered employee has been paid a lump sum commutation of installment payments until the expiration of the period during which the installment payments would have continued, the covered employee may not receive payment of any benefits under any other Federal workers' compensation system for the same covered illness or the same death. Such an individual shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary. The election when made is irrevocable.
(d) An individual eligible to receive benefits under this title because of a covered illness or death of a covered employee who is also entitled to receive benefits because of the covered illness or death of the covered employee from a State workers' compensation system shall elect which benefits to receive, unless—
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(1) at the time of injury workers' compensation coverage for the covered employee was secured by a policy or contract of insurance; and
(2) the Secretary waives the requirement to make such an election.
(e) An individual required to make the election specified in subsection (d) of this section shall make the election within the time allowed by the Secretary. The election when made irrevocable.
(f) A widow or widower who is eligible for benefits under this title derived from more than one husband or wife shall elect one benefit to be utilized.
SEC. 110. COORDINATION OF BENEFITS.
(a) A claimant, except as specified in subsection (b) of this section, awarded benefits under this title as a result of a covered illness or death of a covered employee who has received benefits because of the covered illness or death from any other State or Federal workers' compensation system and who has elected benefits under this title pursuant to section 109(c) or (d) of this title shall receive compensation as specified in this title for the covered illness or death, reduced by the amount of any workers' compensation benefits, that the claimant has received or will receive on account of the covered illness or death under any State or Federal workers' compensation system, after deducting the reasonable costs, as determined by the Secretary, of obtaining such benefits.
(b) A claimant awarded benefits under this title as a result of a covered illness or death of a covered employee who has received benefits from a State Workers' compensation system because of the covered illness or death and who has received a waiver, pursuant to section 109(d)(2) of this title, of the requirement to elect between benefits under this title and benefits under a state workers' compensation system shall receive compensation as specified in this title for the covered illness or death, reduced by eighty percent of the net amount of any workers' compensation benefits that the claimant has received or will receive on account of the covered illness or death under a state workers' compensation system, after deducting the reasonable costs, as determined by the Secretary, of obtaining such benefits.
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SEC. 111. RETROACTIVE COMPENSATION.
(a) A covered employee, who was exposed to beryllium in the performance of duty, as determined in accordance with section 106 of this title, and who, in addition—
(1) was diagnosed, prior to October 1, 1999, as having a beryllium-related pulmonary condition, whether or not based upon the criteria necessary to establish the existence of a covered illness under section 103(4) of this title, that was determined, either contemporaneously or at any time later, to be consistent with Chronic Beryllium Disease, as defined in section 103(4)(B) and
(2) demonstrates the existence of a beryllium-related pulmonary condition, and its diagnosis, by medical documentation created during the covered employee's lifetime or at the time of death or autopsy,
may elect to receive retroactive compensation in the amount of $100,000, in lieu of any other compensation to which the covered employee or the employee's survivors might otherwise be awarded under this title.
(b) If a covered employee who would have been eligible to make the election provided by this section dies before the effective date of this title, or before making the election, whether or not the death is the result of a beryllium-related condition, the employee's survivor or survivors may make the election to receive retroactive compensation in the amount of $100,000 in lieu of any other compensation that either the covered employee or the employees survivors might otherwise have been awarded under this title. The right to make an election pursuant to this section shall be afforded to survivors in the order of precedence set forth in section 8109 of title 5, United States Code.
(c) The election to receive retroactive compensation in lieu of other compensation under this statute shall be made within 30 days after the date of a decision determining an award of compensation for total disability or partial disability under this title or the date that the Secretary informs the employee or the employee's survivor of the decision to make such an election, whichever is later, unless the time is extended. The election when made by a covered employee or survivor is irrevocable and binding on all survivors.
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(d) When a covered employee, or the employee's survivor, has made an election to receive retroactive compensation pursuant to this section, no other payment of compensation under this title may be made on account of the same or any other covered illness or beryllium-related pulmonary condition of that employee.
(e) A determination that a covered employee or a survivor of a covered employee has established a beryllium-related pulmonary condition, pursuant to subsection (a) of this section, does not constitute a determination that the covered employee, or a survivor of the covered employee, has established the existence of a covered illness.
(f) The retroactive compensation payable under this section shall not be subject to the cost-of-living adjustment set forth in section 8146a(a) of title 5, United States Code.
SEC. 112. EXCLUSIVITY OF REMEDY AGAINST THE UNITED STATES, CONTRACTORS, AND SUBCONTRACTORS.
(a) The liability of the United States or an instrumentality of the United States under this title with respect to a covered illness, beryllium-related pulmonary condition, or death of a covered employee is exclusive and instead of all other liability—
(1) of—
(A) the United States;
(B) the instrumentality;
(C) a contractor that contracted with the Department of Energy to provide management and operation, management and integration, or environmental remediation of a Department of Energy facility;
(D) a subcontractor that provided services, including construction, at a Department of Energy facility; and
(E) an employee, agent, or assign of an entity specified in subparagraphs (A)–(D)—
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(2) to—
(A) the covered employee;
(B) the covered employee's legal representative, spouse, dependents, survivors, and next of kin; and
(C) any other person, including any third party as to whom a covered employee has a cause of action relating to the covered illness or death, otherwise entitled to recover damages from the United States, the instrumentality, the contractor, the subcontractor, or the employee, agent, or assign of one of them,
because of the covered illness, beryllium-related pulmonary condition, or death in any proceeding or action including a direct judicial proceeding, a civil action, a proceeding in admiralty, or a proceeding under a tort liability statute or the common law.
(b) This section applies to all cases in which a final judgment that is not subject to any further judicial review has not been entered on or before the date of enactment of this title.
(c) This section does not apply to an administrative or judicial proceeding under a state or federal workers' compensation statute subject to sections 109 and 110 of this title.
SEC. 113. ELECTION OF REMEDY AGAINST BERYLLIUM VENDORS.
(a) If an individual elects to accept payment under this title with respect to a covered illness, beryllium-related pulmonary condition, or death of a covered employee, that acceptance of payment shall be in full settlement of all claims—
(1) against—
(A) a beryllium vendor, and
(B) an employee, agent, or assign of a beryllium vendor,
(2) by—
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(A) that individual;
(B) that individual's legal representative, spouse, dependents, survivors, and next of kin; and
(C) any other person, including any third party as to whom a covered employee has a cause of action relating to the covered illness or death, otherwise
entitled to recover damages from the beryllium vendor or the employee, agent, or assign of the beryllium vendor,
that arise out of the covered illness, beryllium-related pulmonary condition, or death in any proceeding or action including a direct judicial proceeding, a civil action, a proceeding in admiralty, or proceeding under a tort liability statute or the common law.
(b) This section does not apply to an administrative or judicial proceeding under a State or Federal workers' compensation statute subject to sections 109 and 110 of this title.
SEC. 114. CLAIM.
A claim for compensation under this title shall be made in the manner specified in section 8121 of title 5, United States Code.
SEC. 115. TIME LIMITATION ON FILING A CLAIM.
(a) A claim for compensation under this title must be filed within the later of—
(1) seven years after the effective date of this title, or
(2) seven years after the date the claimant first becomes aware of—
(A) a diagnosis of a covered illness or a beryllium-related pulmonary condition, and
(B) the causal connection of that illness or condition to exposure to beryllium in the performance of duty as a covered employee.
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(b) A new limitations period commences with each later diagnosis of a covered illness or beryllium-related pulmonary condition different from that previously diagnosed.
SEC. 116. REVIEW OF AWARD.
The action of the Secretary, or his or her designee, including an agency that provides services in the administration of this title pursuant to an agreement, in allowing or denying a payment under this title is—
(1) final and conclusive for all purposes and with respect to all questions of law and fact, and
(2) not subject to review by another official of the United States or by a court by mandamus or otherwise.
SEC. 117. ASSIGNMENT OF CLAIM.
An assignment of a claim for compensation under this title is void. Compensation and claims for compensation are exempt from claims of creditors.
SEC. 118. ADJUDICATION.
(a) A claimant may obtain reconsideration of a decision awarding or denying coverage under this title after the promulgation by the Secretary, pursuant to section 104 of this title, of new criteria for establishing coverage of a covered illness by submitting evidence that is relevant and pertinent to the new criteria.
(b) Except to the extent specified in this title, the adjudication of issues under this title shall be conducted in accordance with the provisions of sections 8123–8127, 8128(a), and 8129 of title 5, United States Code.
SEC. 119. SUBROGATION OF THE UNITED STATES.
(a) If a covered illness, death, or beryllium-related pulmonary condition for which compensation is payable under this title is caused under circumstances creating a legal liability in a person other than the United States to pay damages, sections 8131 and 8132 of title 5, United States Code, shall apply, except to the extent specified in this statute.
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(b) For purposes of this section, references in sections 8131 and 8132 of title 5, United States Code, to the Employees' Compensation Fund shall mean the Energy Employees' Beryllium Compensation Fund.
(c) For the purposes of this title, the provision in section 8131 of title 5, United States Code, that provides that an employee required to appear as a party or witness in the prosecution of an action described in that section is in an active duty status while so engaged shall only apply to a covered employee, as defined in section 103(3)(C) of this title.
SEC. 120. ENERGY EMPLOYEES' BERYLLIUM COMPENSATION FUND.
(a) To carry out this title, there is hereby created in the Treasury of the United States the Energy Employees' Beryllium Compensation Fund which shall consist of—
(1) sums that are appropriated for it,
(2) amounts that are transferred to it from other Department of Energy accounts pursuant to section 125(a), and
(3) amounts that would otherwise accrue to it under this title.
(b) Amounts in the Energy Employees' Beryllium Compensation Fund are authorized to be used for the payment of compensation and other benefits and expenses authorized by this title and for payment of all expenses incurred in administering this title. Such funds are authorized to be appropriated to remain available until expended.
(c)(1) Within 45 days of the end of every quarter of every fiscal year, the Secretary shall determine the total costs of benefits, administrative expenses, and other payments made from the Energy Employees' Beryllium Compensation Fund during the quarter just ended; the end-of-quarter balance in the Fund; and the amount anticipated to be needed during the immediately succeeding two quarters for the payment of benefits and administrative expenses under this title.
(2) Each cost determination made in the last quarter of the fiscal year under paragraph (1) shall show, in addition, the total costs of benefits and expenses and other payments from the Fund during the preceding twelve-month expense period and an estimate of the expenditures from the Energy Employees' Beryllium Compensation Fund for the payment of benefits and expenses and other payments for each of the immediately succeeding two fiscal years.
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SEC. 121. FORFEITURE OF BENEFITS BY CONVICTED FELONS.
(a) Any individual convicted of a violation of section 1920 of title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefit under this title or under any other Federal or State workers' compensation Act, shall forfeit (as of the date of such conviction) any benefit such individual would otherwise be awarded to under this title for any covered illness for which the time of injury was on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary may take pursuant to the provisions of sections 8106 or 8129 of title 5, United States Code.
(b)(1) Notwithstanding any other provision of law (except as provided under paragraph (3)), no benefits under this title shall be paid or provided to any individual during any period during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to that individual's conviction of an offense that constituted a felony under applicable law.
(2) Such an individual shall not receive the benefits forfeited during the period of incarceration under paragraph (1), after the period of incarceration ends.
(3) If an individual has one or more dependents as defined under section 8110(a) of title 5, United States Code, the Secretary may, during the period of incarceration, pay to these dependents a percentage of the benefits that would have been payable to such individual computed according to the percentages set forth in section 8133(a) (1) through (5) of title 5, United States Code.
(c) Notwithstanding the provision of section 552a of title 5, United States Code, or any other provision of Federal or State law, any agency of the United States Government or of any State (or political subdivision thereof) shall make available to the Secretary, upon written request, the names and Social Security account numbers of individuals who are confined in a jail, prison, or other penal institution or correctional facility under the jurisdiction of that agency, pursuant to the individuals' conviction of an offense that constituted a felony under applicable law, which the Secretary may require to carry out the provisions of this section.
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SEC. 122. REGULATIONS—BERYLLIUM COMPENSATION APPEALS PANEL.
The Secretary may prescribe regulations necessary for the administration and enforcement of this title including regulations for the conduct of hearings under this title. The regulations shall provide for a Beryllium Compensation Appeals Panel of three individuals with authority to hear and, subject to applicable law and the regulations of the Secretary, make final decisions on appeals taken from determinations and awards with respect to claims of covered employees. Members of the Panel may be appointed by another agency of the United States to provide these appellate decision-making services pursuant to agreement with the Secretary.
SEC. 123. CIVIL SERVICE RETENTION RIGHTS.
In the event that a covered employee, as defined in section 103(3)(C) of this title, resumes employment with the Federal Government, the individual shall be entitled to the rights set forth in section 8151 of title 5, United States Code.
SEC. 124. ANNUAL REPORT.
The Secretary shall, at the end of each fiscal year, prepare a report with respect to the administration of this title.
SEC. 125. AUTHORIZATION OF APPROPRIATIONS.
(a) There is hereby authorized to be appropriated to the Department of Energy for deposit into the Energy Employees' Beryllium Compensation Fund such sums as are necessary to carry out the purposes of this Act. In addition, the Department is authorized, to the extent provided in advance in appropriations Acts, to transfer amounts to the Fund from other Department of Energy appropriations accounts, to be merged with amounts in the Fund and available for the same purposes.
(b) In any fiscal year, the Secretary shall limit the amount of the compensation and benefits payments to an amount not in excess of the sum of the appropriations to the Fund and amounts made available by transfer to the Fund. Notwithstanding any other provision of this Act, if in any fiscal year the Secretary finds that estimates of amounts contained in reports pursuant to section 120(c)(1) for the payment of compensation, other benefits, and administrative activities authorized by this Act will exceed the amounts in the Fund, the Secretary is required to reduce compensation and benefits payments to the extent necessary to make up any amounts by which benefits and other costs authorized by this Act exceed the amount in the Fund calculated on a fiscal year basis.
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(c) The Secretary shall promulgate regulations to implement this section within 180 days of enactment.
SEC. 126. CONSTRUCTION.
References in this title to a provision of another statute shall be considered references to such provision, as amended and as may be amended from time to time.
SEC. 127. CONFORMING AMENDMENTS.
(a) Section 1920 of title 18 is amended by inserting in the title ''or Energy employee's'' after ''Federal employee's'' and by inserting ''or the Energy Employees' Beryllium Compensation Act'' after ''title 5''.
(b) Section 1921 of title 18 is amended by inserting in the title ''or Energy employees' '' after ''Federal employees' '' and by inserting ''or the Energy Employees' Beryllium Compensation Act'' after ''title 5''.
(c) Section 1922 of title 18 is amended by—
(1) inserting in the title ''or Energy employees' '' after ''Federal employees' '';
(2) inserting ''(a)'' before ''Whoever,'';
(3) striking '', neglects,'' after ''willfully fails''; and
(4) inserting a new subsection as follows:
''(b) Whoever is charged with the responsibility for providing information pursuant to sections 105(c) and 105(d) of the Energy Employees' Beryllium Compensation Act and who willfully fails or refuses to provide this information, or knowingly provides false information, or induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under the Energy Employees' Beryllium Compensation Act or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under that Act or any extension or application thereof, or regulations prescribed thereunder, shall be fined under this title or imprisoned not more than one year, or both.''.
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SEC. 128. EFFECTIVE DATE.
This title is effective upon enactment, and applies to all claims, civil actions, and proceedings pending on, or filed on or after, the date of the enactment of this title.
TITLE II—ENERGY EMPLOYEES PILOT PROJECT ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ''Energy Employees Pilot Project Act''.
SEC. 202. PILOT PROJECT.
The Secretary of Energy shall conduct a pilot program to examine the possible relationship between workplace exposures to radiation, hazardous materials, or both, and occupational illness or other adverse health conditions.
SEC. 203. PHYSICIANS PANEL.
Under section 202, a panel of physicians who specialize in diseases and health conditions related to occupational exposure to radiation, hazardous materials, or both selected by the contractor that managed the Department of Energy's East Tennessee Technology Park (referred to in this title as the ''facility'') shall prepare a report concerning medical examinations of not more than 55 current and former employees of the facility. The report shall address whether each of these employees may have sustained any illness or other adverse health condition as a result of their employment at the facility.
SEC. 204. SECRETARY OF ENERGY FINDING.
The contractor shall provide the report of the penal completed under section 203 to the Secretary of Energy. The Secretary of Energy shall make a finding as to whether an employee covered by the report sustained an illness or other adverse health condition as a result of exposure to radiation, hazardous materials, or both as part of employment at the facility.
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SEC. 205. AWARD.
If the Secretary of Energy makes a positive finding under section 204 regarding an employee, the Secretary may make an award to the employee of $100,000. If the employee is eligible for an award under the Energy Employees' Beryllium Compensation Act, the employee may elect to receive payment under this title in place of compensation under that Act.
SEC. 206. ELECTION.
The election to receive an award under section 205 of this title, in lieu of compensation under the Energy Employees' Beryllium Compensation Act, shall be made within 30 days after the date of a decision by the Secretary of Energy determining to award compensation for total disability or partial disability under the Energy Employees' Beryllium Compensation Act or the date that the Secretary of Energy informs the employee of the decision to make such an election, whichever is later, unless the time is extended by the Secretary of Energy. This election when made is irrevocable and binding on all survivors.
SEC. 207. SURVIVOR'S ELECTION.
If an employee who would have been eligible to make the election provided by this section dies before making this election, a survivor of the employee may make the election to receive an award pursuant to section 206 of this title, in lieu of any compensation to which either the employee or the employee's survivor might otherwise have been awarded under the Energy Employees' Beryllium Compensation Act. The right to make an election pursuant to this section shall be afforded to survivors in the order of precedence set forth in section 8109 of title 5, United States Code, as amended, and as may be amended from time to time.
SEC. 208. STATUS OF AWARD.
The award specified in section 205 of this title shall not be considered income for purposes of the Internal Revenue Code.
SEC. 209. PAYMENT IN FULL SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES, CONTRACTORS, AND SUBCONTRACTORS.
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(a) If an individual elects to accept payment under this title, that acceptance of payment shall be in full settlement of all claims—
(1) against—
(A) the United States;
(B) the Department of Energy;
(C) a contractor that contracted with the Department of Energy to provide management and operation, management and integration, or environmental remediation at the facility;
(D) a subcontractor that provided services, including construction, at the facility; and
(E) an employee, agent, or assign of an entity or individual specified in subparagraphs (A)–(D)
(2) by—
(A) that individual;
(B) that individual's legal representative, spouse, dependents, survivors, and next of kin; and
(C) any other person, including any third party as to whom a covered employee has a cause of action relating to the covered illness or death, otherwise entitled to recover damages from an entity or individual specified in subsection (1),
that arise out of the condition for which the payment was made, in any proceeding or action including a direct judicial proceeding, a civil action, a proceeding in admiralty, or an administrative or judicial proceeding under a tort liability statute, the common law, or another Federal workers' compensation statute.
(b) This section does not apply to an administrative or judicial proceeding under a State workers' compensation statute.
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(c) A claimant who is awarded benefits under this title for an illness or other adverse health condition and who has received any payment made under a final award or judgment or settlement on a claim, including a claim under any State or other Federal workers' compensation system, because of the same illness or adverse health conditions, shall receive compensation as specified in this title for the illness or adverse health conditions, reduced by the amount of any such payment, excluding payments for medical expenses under a workers' compensation system.
SEC. 210. SUBROGATION.
Upon making an award under this title, the United States is subrogated for the amount of the award to a right or claim that the employee to whom the award was made may have against any person on account of the same illness or adverse health condition that was the cause of the award.
SEC. 211. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary to carry out this title and these funds shall remain available until expended. Authority under this title to make payments is effective in any fiscal year only to the extent, or in the amounts, provided in advance in an appropriations Act.
TITLE III—PADUCAH EMPLOYEES EXPOSURE COMPENSATION ACT
SEC. 301. SHORT TITLE.
This title may be cited as the ''Paducah Employees' Exposure Compensation Act''.
SEC. 302. DEFINITIONS.
For purposes of this title—
(1) ''Department of Energy'' includes the predecessor agencies of the Department of Energy;
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(2) ''Paducah employee'' means an individual employed at the Paducah, Kentucky, gaseous diffusion plant by—
(A) the Department of Energy, or
(B) an entity that contracted with the Department of Energy to provide management and operations, management and integration, or environmental remediation at the plant; and
(3) ''specified disease'' means—
(A) leukemia (other than chronic lymphocytic leukemia), provided that the initial exposure occurred after the age of 20 and the onset of the disease was between two and 30 years after first exposure; and
(B) the following diseases, provided onset was at least five years after first exposure:
(i) multiple myeloma,
(ii) lymphomas (other than Hodgkin's disease), and
(iii) primary cancer of the bone, lung (provided not a heavy smoker), thyroid (provided initial exposure occurred by the age of 20), male or female breast (provided initial exposure occurred prior to age 40), esophagus (provided low alcohol consumption and not a heavy smoker), stomach (provided initial exposure occurred before age 30), pharynx (provided not a heavy smoker), small intestine, pancreas (provided not a heavy smoker), bile ducts, gall bladder, or liver (except if cirrhosis or hepatitis B is indicated)
SEC. 303. PADUCAH EMPLOYEES' EXPOSURE COMPENSATION FUND.
(a) ESTABLISHMENT.—There is established in the Treasury of the United States the Paducah Employees' Exposure Compensation Fund (referred to in this title as the ''Fund'').
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(b) PURPOSE.—The amounts in the Fund are available only for disbursement by the Attorney General under section 305.
(c) TERMINATION.—The Fund shall terminate 22 years after the date of enactment of this title. If all of the amounts in the Fund have not been expended by the end of that 22-year period, amounts remaining in the Fund shall be deposited in the miscellaneous receipts account in the Treasury.
(d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Fund such sums as may be necessary to carry out the purposes of this title. Amounts appropriated to the Fund remain available until expended or until deposited in the Treasury under subsection (d).
(e) AUTHORITY.—Authority under this title to enter into contracts or to make payments is effective in any fiscal year only to the extent, or in the amounts, provided in advance in an appropriations Act.
SEC. 304. ELIGIBLE EMPLOYEES.
A Paducah employee who—
(1) was employed at the Paducah, Kentucky, gaseous diffusion plant for at least one year during the period beginning on January 1, 1953, and ending on February 1, 1992;
(2) during that period—
(A) was monitored through the use of dosimetry badges for exposure at the plans of the external parts of the employee's body to radiation from gamma rays, or
(B) worked in a job that, as determined by regulation, led to exposure to radioactive contaminants, including plutonium contaminants; and
(3) submits written medical documentation as to having contracted a specified disease after beginning employment under paragraph (1) and after beginning being monitored or beginning work at a job as specified under paragraph (2),
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is authorized to receive $100,000, if the claim for payment is filed with the Attorney General by or on behalf of the Paducah employee and the Attorney General determines, in accordance with section 305, that the claim meets the requirements of this title.
SEC. 305. DETERMINATION AND PAYMENT OF CLAIMS.
(a) FILING PROCEDURES.—The Attorney General shall establish procedures under which an individual may submit a claim for payment under this title.
(b) DETERMINATION.—
(1) In accordance with this subsection, the Attorney General determines whether each claim filed under this title meets the requirements of this title.
(2) The Attorney General shall—
(A) in consultation with the Surgeon General, establish guidelines for determining what constitutes written medical documentation, under section 304(3), that an individual contracted a specified disease; and
(B) in consultation with the Secretary of Energy, establish guidelines for making determinations of employment under section 304(1) and exposure under section 304(2).
(3) The Attorney General may consult with the Surgeon General and the Secretary of Energy in making determinations of eligibility for compensation.
(c) PAYMENT.—
(1) the Attorney General is authorized to pay, from amounts available in the Fund, claims filed under this title that the Attorney General determines meet the requirements of this title.
(2) Upon payment of a claim under this section, the United States is subrogated for the amount of the payment to a right or claim that the individual to whom the payment was made may have against any person on account of a specified disease contracted following employment and exposure as set out in section 304.
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(3)(A) In the case of a Paducah employee who is deceased at the time of payment under this section, the payment may be made only as follows:
(i) If the Paducah employee is survived by a spouse who is living at the time of payment, the payment shall be made to the surviving spouse.
(ii) If there is no spouse living at the time of payment, the payment shall be made in equal shares to all children of the Paducah employee who are living at the time of payment.
(iii) If there are no spouse or children living at the time of payment, the payment shall be made in equal shares to the parents of the Paducah employee who are living at the time of payment.
(iv) If there are no spouse, or parents living at the time of payment, the payment shall be made in equal shares to all grandchildren of the Paducah employee who are living at the time of payment.
(v) If there are no spouse, children, parents, or grandchildren living at the time of payment, the payment shall be made in equal shares to the grandparents of the Paducah employee who are living at the time of payment.
(B) If a Paducah employee eligible for payment under this title dies before filing a claim under this title, a survivor of that employee who may receive payment under subparagraph (A) may file a claim for payment under this title.
(C) For purposes of this paragraph—
(i) the ''spouse'' of a Paducah employee is a wife or husband of that
employee who was married to that employee for at least one year immediately before the death of that employee;
(ii) a ''child'' includes a natural child, a stepchild in a regular parent-child relationship, and an adopted child;
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(iii) a ''parent'' includes fathers and mothers through adoption;
(iv) a ''grandchild'' of a Paducah employee is a child of a child of that employee; and
(v) a ''grandparent'' of a Paducah employee is a parent of a parent of that employee.
(d) ACTION ON CLIAM.—
(1) The Attorney General shall complete the determination on each claim filed in accordance with the procedures established under subsection (a) not later than twelve months after the claim is so filed.
(2) The Attorney General may request from a claimant, or from an individual or entity on behalf of a claimant, additional information or documentation necessary to complete the determination on the claim in accordance with the procedures established under subsection (b). The period of time from the Attorney General's request for additional information or documentation until the time the information or documentation is provided, or the requested party informs the Attorney General the information or documentation cannot or will not be provided, is not counted toward the twelve month time-limit established under this subsection.
(e) PAYMENT IN FULL SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES, CONTRACTORS, AND SUBCONTRACTORS.—(1) If an individual elects to accept payment under this title, that acceptance of payment shall be in full settlement of all claims—
(A) against—
(i) the United States;
(ii) the Department of Energy;
(iii) a contractor that contracted with the Department of Energy to provide management and operation, management and integration, or environmental remediation at the Paducah facility;
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(iv) a subcontractor that provided services, including construction, at the Paducah facility; and
(v) an employee, agent, or assign of an entity or individual specified in clauses (i)–(iv)
(B) by—
(i) that individual;
(ii) that individual's legal representative, spouse, dependents, survivors, and next of kin; and
(iii) any other person, including any third party as to whom a covered employee has a cause of action relating to the covered illness or death, otherwise entitled to recover damages from an entity or individual specified in subparagraph (A),
that arise out of the illness for which the payment was made, in any proceeding or action including a direct judicial proceeding, a civil action, a proceeding in admiralty, or an administrative or judicial proceeding under tort liability statute, the common law, or another Federal workers' compensation statute.
(2) This section shall not apply to an administrative or judicial proceeding under a state workers' compensation statute.
(3) A claimant who is awarded benefits under this title for a specified illness and who has received any payment under a final award or judgment or settlement on a claim, including a claim under any State or other Federal workers' compensation system, because of the same specified illness shall receive compensation as specified in this title for the specified illness, reduced by the amount of any such payment, excluding payments for medical expenses under a workers' compensation system.
(4) An individual may receive no more than one payment under this title. An individual may not receive compensation under this title and under the Radiation Exposure Compensation Act (42 U.S.C. 2210 note), or under the Radiation-Exposed Veterans Compensation Act (38 U.S.C. 112(c)).
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(f) COSTS OF ADMINISTERING THE ADJUDICATIONS—
(1) Costs incurred by the Attorney General in carrying out this section shall not be paid from the Fund or set off against, or otherwise deducted from, a payment under this section to an individual.
(2) The Department of Energy shall reimburse the Department of Justice for the costs incurred by the Department of Justice in connection with establishing and administering the program established by this title until the duties of the Attorney General terminate under subsection (g).
(g) TERMINATION OF ATTORNEY GENERAL DUTIES.—The duties of the Attorney General under this section ceases when the Fund terminates.
(h) PAYMENTS UNDER OTHER LAWS.—An amount paid to an individual under this section—
(1) shall not be subject to Federal income tax under the internal revenue laws of the United States;
(2) shall not be included as income or resources for purposes of determining eligibility to receive benefits described in section 3803(c)(2)(C) of title 31, United States Code or the amount of those benefits; and
(3) shall not be subject to offset under section 3701 et seq. of title 31 United States Code.
(i) REGULATORY AUTHORITY.—The Attorney General may issue regulations to carry out this title.
(j) ISSUANCE OF REGULATIONS, GUIDELINES, AND PROCEDURES.—Regulations, guidelines, and procedures to carry out this title shall be issued not later than 270 days after the date of enactment of this title.
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(k) ADMINISTRATIVE APPEALS PROCEDURE AND JUDICIAL REVIEW.—
(1) A decision denying a claim under this title may be appealed to an Appeals Officer designated by the Attorney General. Before seeking judicial review of a decision denying a claim under this title, an individual first must seek review by the designated Appeals Officer.
(2) If the designated Appeals Officer affirms the decision denying a claim, the individual whose denial of claim was affirmed on appeal may seek judicial review in a district court of the United States. The court shall review the denial of claim based solely on the administrative record and shall set aside the denial only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
SEC. 306. CLAIMS NOT ASSIGNABLE OR TRANSFERABLE.
CLAIMS.—A claim cognizable under this title is not assignable or transferable.
SEC. 307. LIMITATION ON CLAIMS.
A claim to which this title applies is barred unless the claim is filed within 20 years after the date of the enactment of this title.
SEC. 308. ATTORNEY FEES.
Notwithstanding any contact, the representative of an individual may not receive, for services rendered in connection with the claim of an individual under this title, more than 10 per centum of a payment made under this title on the claim. A representative who violates this section shall be fined not more than $5,000.
SEC. 309. CERTAIN CLAIMS NOT AFFECTED BY AWARDS OF DAMAGES.
A payment made under this title shall not be considered as any form of compensation or reimbursement for a loss for purposes of imposing liability on the individual receiving the payment, on the basis of this receipt, to repay any insurance carrier for insurance payments. A payment under this title does not affect any claim against an insurance carrier with respect to insurance.
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106TH CONGRESS
1ST SESSION
H. R. 3478
To establish a compensation program for the contractors of the Departments of Energy and Defense and beryllium vendors who sustained a beryllium-related illness due to the performance of their duty, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 18, 1999
Ms. KAPTUR (for herself, Mr. KANJORSKI, Mr. GILLMOR, and Mr. HANSEN) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce, and Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To establish a compensation program for the contractors of the Departments of Energy and Defense and beryllium vendors who sustained a beryllium-related illness due to the performance of their duty, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
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(a) SHORT TITLE.—This Act may be cited as the ''Federal Beryllium Compensation Act''.
(b) TABLE OF SECTIONS.—The table of sections of this Act is as follows:
Sec. 1. Short title and table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
Sec. 4. Regulatory authority to revise definitions.
Sec. 5. Exposure to beryllium in the performance of duty.
Sec. 6. Compensation for disability or death, medical services, and vocational rehabilitation.
Sec. 7. Computation of pay.
Sec. 8. Limitations on right to receive compensation.
Sec. 9. Coordination of benefits.
Sec. 10. Retroactive compensation.
Sec. 11. Exclusivity of remedy.
Sec. 12. Claim.
Sec. 13. Responsibilities of the Secretary of Energy and the Secretary of Defense.
Sec. 14. Review of award.
Sec. 15. Assignment of claim.
Sec. 16. Administration and adjudication.
Sec. 17. Subrogation of the United States.
Sec. 18. Federal employees' beryllium compensation fund.
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Sec. 19. Forfeiture of benefits by convicted felons.
Sec. 20. Regulations—Beryllium Compensation Appeals Panel.
Sec. 21. Civil service retention rights.
Sec. 22. Annual report.
Sec. 23. Appropriations.
Sec. 24. Construction.
Sec. 25. Conforming amendments.
Sec. 26. Effective date.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Employees of the Departments of Energy and Defense and their predecessor agencies and employees of its contractors and vendors have been and currently are exposed to harmful substances, including beryllium, while performing their duties in the furtherance of the national interest.
(2) While linking exposure to occupational hazards with the development of occupational disease is sometimes difficult, scientific evidence supports the conclusion that occupational exposure to beryllium causes, in certain individuals, beryllium sensitivity and chronic beryllium disease.
(3) This Nation owes the men and women who sustained our national defense for the last 50 years efficient, uniform, and adequate compensation for beryllium-related health conditions for which clear scientific proof exists of causal connection to occupational exposure.
SEC. 3. DEFINITIONS.
For the purposes of this Act:
(1) BERYLLIUM VENDOR.—The term ''beryllium vendor'' means—
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(A) Atomics International;
(B) Brush Wellman, Inc.;
(C) General Atomics;
(D) General Electric Company;
(E) NKG Metals Corporation and its predecessors: Kiwiki-Berylco, Cabot Corporation, BerylCo, and Beryllium Corporation of America;
(F) Nuclear Materials and Equipment Corporation;
(G) StarMet Corporation, and its predecessor, Nuclear Metals, Inc.;
(H) Wyman Gordan, Inc.; or
(I) any other vendor, processor, or producer of beryllium or related products designated as a beryllium vendor for the purposes of this Act in regulations issued by the Secretary of Energy pursuant to section 4.
(2) COMPENSATION.—The term ''compensation'' means the money allowance payable under this Act and any other benefits paid for from the Federal Beryllium Compensation Fund including the retroactive compensation payable pursuant to section 10.
(3) CONFIRMED POSITIVE BLOOD BERYLLIUM LYMPHOCYTE PROLIFERATION TEST.—The term ''confirmed positive blood beryllium lymphocyte proliferation test'' means a blood beryllium lymphocyte proliferation test that was determined to be positive at 2 different laboratories from the same blood draw or at the same laboratory on consecutive blood draws.
(4) COVERED EMPLOYEE.—The term ''covered employee'' means—
(A) an employee of any contractor that contracted with the Department of Energy or
Department of Defense to provide management and operation, management and integration, or environmental remediation of a Department of Energy or Department of Defense facility or an employee of any subcontractor that provided services, including construction, at such facility;
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(B) an employee of a beryllium vendor during a period of time when that entity was engaged in activities related to beryllium that was produced or processed for sale to, or use by, the Department of Energy; or
(C) an individual defined as an employee in section 8101(1) of title 5, United States Code, who may have been exposed to beryllium at a Department of Energy or Department of Defense facility or at a facility owned, operated, or occupied by a beryllium vendor.
(5) COVERED ILLNESS.—The term ''covered illness'' means the following conditions:
(A) Beryllium sensitivity, established by 1 or more of the following criteria:
(i) A confirmed positive blood beryllium lymphocyte proliferation test.
(ii) An unconfirmed positive blood beryllium lymphocyte proliferation test with more than 1 additional borderline, or a single positive, result.
(iii) 3 or more unconfirmed positive blood beryllium lymphocyte proliferation tests.
(iv) a beryllium skin-patch test that is positive.
(B) Chronic beryllium disease, established by 1 or more of the following criteria:
(i) A confirmed positive blood beryllium lymphocyte proliferation test, a positive lung beryllium lymphocyte proliferation test, and evidence of lung pathology, such as—
(I) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;
(II) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or
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(III) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.
(ii) A confirmed positive blood beryllium lymphocyte proliferation test, a negative lung beryllium lymphocyte proliferation test, and a lung biopsy showing either granulomas or other findings consistent with chronic beryllium disease.
(iii) A negative blood beryllium lymphocyte proliferation test, a negative lung beryllium lymphocyte proliferation test, a beryllium skin-patch test that is positive, and a lung biopsy showing either granulomas or other findings consistent with chronic beryllium disease.
(C) Any injury or illness sustained as a consequence of a covered illness as defined in section 3(5)(A) or (B).
(6) DEPARTMENT OF ENERGY.—The term ''Department of Energy'' includes the predecessor agencies of the Department of Energy.
(7) DEPARTMENT OF DEFENSE.—The term ''Department of Defense'' includes the predecessor agencies of the Department of Defense.
(8) DEPARTMENT OF ENERGY FACILITY.—The term ''Department of Energy facility'' means any building, structure, or premises, including the grounds upon which such buildings or structures are located, in which operations are conducted by, or on behalf of, the Department of Energy and with regard to which the Department of Energy has a proprietary interest or has entered into a contract with an entity to provide management and operation, management and integration, or environmental remediation.
(9) DEPARTMENT OF DEFENSE FACILITY.—The term ''Department of Defense facility'' means any building, structure, or premises, including the grounds upon which such buildings or structures are located, in which operations are conducted by, or on behalf of, the Department of Defense and with regard to which the Department of Defense has a proprietary interest or has entered into a contract with an entity to provide management and operation, management and integration, or environmental remediation.
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(10) MONTHLY PAY.—The term ''monthly pay'' means—
(A) the monthly pay at the time of injury,
(B) the monthly pay at the time disability begins, or
(C) the monthly pay at the time compensable disability recurs if the recurrence begins more than 6 months after the covered employee resumes regular full-time employment,
whichever is greater, except when otherwise determined under section 8113 of title 5, United States Code;
(11) TIME OF INJURY.—''time of injury'' means the last date on which a covered employee was exposed to beryllium in the performance of duty as specified in section 5.
(12) OTHER TERMS.—The following terms have the meaning given those terms in section 8101 of title 5, United States Code:
(A) physician;
(B) medical, surgical, and hospital services and supplies;
(C) widow;
(D) parent;
(E) brother, sister;
(F) child;
(G) grandchild;
(H) widower;
(I) student;
(J) price index;
(K) organ; and
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(L) United States medical officers and hospitals.
SEC. 4. REGULATORY AUTHORITY TO REVISE DEFINITIONS.
(a) Additional vendors, processors, or producers of beryllium or related products may be designated as beryllium vendors for the purposes of this Act in regulations issued by the Secretary of Energy or the Secretary of Defense, after consultation with the Secretary of Labor, upon finding that such entities have been engaged in activities related to beryllium that was produced or processed for sale to, or use by, the Departments of Energy or Defense in a manner similar to the entities listed in section 3(1).
(b) Additional criteria by which a claimant may establish the existence of a covered illness, as defined in subparagraph (A) or (B) of section 3(5), may be specified in regulations issued by the Secretary of Labor, after consultation with the Secretaries of Energy and Defense.
SEC. 5. EXPOSURE TO BERYLLIUM IN THE PERFORMANCE OF DUTY.
(a) In the absence of substantial evidence to the contrary, a covered employee, as defined in subparagraph (A) or (C) of section 3(4), shall be determined to have been exposed to beryllium in the performance of duty for the purposes of this Act if, and only if, the covered employee was employed at the Department of Energy facility or Department of Defense facility, or was present at the facility or at a facility owned or operated by a beryllium vendor, because of employment by the United States or a contractor or subcontractor of the Department of Energy or Department of Defense, for any period during which beryllium dust, particles, or vapor may have been present at that facility.
(b) In order to be determined to have been exposed to beryllium in the performance of duty for the purposes of this Act, a covered employee, as defined by section 3(4)(B), must establish by substantial evidence that the covered employee may have been exposed to dust, particles, or vapor of beryllium that was produced or processed for sale to, or use by, the Department of Energy or the Department of Defense.
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SEC. 6. COMPENSATION FOR DISABILITY OR DEATH, MEDICAL SERVICES, AND VOCATIONAL REHABILITATION.
(a) Except to the extent specified in this Act, and in accordance with the provisions of the following sections, the United States—
(1) shall pay the compensation specified in sections 8105–8110, 8111(a), 8112–8113, 8115, 8117, 8133–8135, and 8146a (a) and (b) of title 5, United States Code, for the disability or death from a covered illness, of a covered employee who was exposed to beryllium while in the performance of duty as determined in accordance with section 5;
(2) shall furnish the services and other benefits specified in section 8103 of title 5, United States Code, to a covered employee who sustains a covered illness as a result of exposure to beryllium while in the performance of duty as determined in accordance with section 5; and
(3) may direct a permanently disabled individual whose disability is compensable under this Act to undergo vocational rehabilitation and shall provide for furnishing vocational rehabilitation services pursuant to the provisions of sections 8104 and 8111(b) of title 5, United States Code,
unless the covered illness or death was caused by one of the circumstances set forth in paragraphs (1) through (3) of section 8102(a) of title 5, United States Code.
(b) All compensation under this Act shall be paid from the Federal Beryllium Compensation Fund.
(c) No payment of compensation may be made under this Act for any period prior to the effective date of this Act, except for the retroactive compensation specified in section 10.
SEC. 7. COMPUTATION OF PAY.
(a) Except as otherwise provided by this Act, or by regulations of the Secretary of Labor, computation of pay under this Act shall be determined in accordance with section 8114 of title 5, United States Code.
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(b) If either of the methods of determining the average annual earnings specified in paragraphs (1) and (2) of section 8114(d) of title 5, United States Code, cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the covered employee in the employment in which the employee was working at the time of injury having regard to the previous earnings of the employee in similar employment, and of other employees of the same employer in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the covered employee earned in the employment during the days employed within 1 year immediately preceding the time of injury.
SEC. 8. LIMITATIONS ON RIGHT TO RECEIVE COMPENSATION.
(a) While a covered employee as defined in section 3(4)(C) is receiving compensation under this Act, or if the covered employee has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, the covered employee may not receive salary, pay, or remuneration of any type from the United States, except—
(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or Air Force;
(3) other benefits administered by the Department of Veterans Affairs unless such benefits are payable for the same covered illness or the same death; and
(4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed service, subject to the reduction of such pay in accordance with section 5532(b) of title 5, United States Code.
However, eligibility for or receipt of benefits under subchapter III of chapter 83 of title 5, United States Code, or another retirement system for employees of the Government, does not impair the right of the employee to compensation for scheduled disabilities specified by section 8107 of title 5, United States Code.
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(b) An individual entitled to benefits under this Act because of a covered illness, or because of the death of a covered employee as defined in section 3(4)(C), who also is entitled to receive from the United States under a provision of a statute other than this Act payments or benefits for that covered illness or death (except proceeds of an insurance policy), because of service by the covered employee (or in the case of death, by the deceased) as an employee or in the Armed Forces, shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor. The election when made is irrevocable, except as otherwise provided by statute.
(c) While a covered employee is receiving compensation under this Act, or if the covered employee has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued, the covered employee may not receive payment of any benefits under any other Federal workers' compensation system for the same covered illness or the same death. Such an individual shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor. The election when made is irrevocable.
(d) An individual entitled to receive benefits under this Act because of a covered illness or death of a covered employee who is also entitled to receive benefits because of the covered illness or death of the covered employee from a State workers' compensation system shall elect which benefits to receive, unless—
(1) at the time of injury workers' compensation coverage for the covered employee was secured by a policy or contract of insurance; and
(2) the Secretary of Labor waives the requirement to make such an election.
(e) An individual required to make the election specified in subsection (d) shall make the election within the time allowed by the Secretary of Labor. The election when made is irrevocable.
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(f) A widow or widower who has entitlements to benefits under this Act or under subchapter I or III of chapter 81 of title 5, United States Code, derived from more than 1 husband or wife shall elect 1 entitlement to be utilized.
SEC. 9. COORDINATION OF BENEFITS.
(a) A claimant, except as specified in subsection (b), entitled to receive benefits under this Act as a result of a covered illness or death of a covered employee who has received benefits because of the covered illness or death from any other State or Federal workers' compensation system and who has elected benefits under this Act pursuant to subsection (c) or (d) of section 8 shall receive compensation as specified in this Act for the covered illness or death, reduced by the amount of any workers' compensation benefits, that the claimant has received or will receive on account of the covered illness or death under any State or Federal workers' compensation system, after deducting the reasonable costs, as determined by the Secretary of Labor, of obtaining such benefits.
(b) A claimant entitled to receive benefits under this Act as a result of a covered illness or death of a covered employee who has received benefits from a State workers' compensation system because of the covered illness or death and who has received a waiver, pursuant to section 8(d)(2), of the requirement to elect between benefits under this Act and benefits under a State workers' compensation system shall receive compensation as specified in this Act for the covered illness or death, reduced by 80 percent of the net amount of any workers' compensation benefits that the claimant has received or will receive on account of the covered illness or death under a State workers' compensation system, after deducting the reasonable costs, as determined by the Secretary of Labor, of obtaining such benefits.
SEC. 10. RETROACTIVE COMPENSATION.
(a) A covered employee, who was exposed to beryllium in the performance of duty, as determined in accordance with section 5, and who, in addition—
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(1) was diagnosed, before the date of enactment of this Act, as having a beryllium-related pulmonary condition, whether or not based upon the criteria necessary to establish the existence of a covered illness under section 3(5); and
(2) demonstrates the existence of the diagnosis and condition by medical documentation created during the covered employee's lifetime or at the time of death or autopsy,
may elect to receive retroactive compensation in the amount of $200,000, in lieu of any other compensation to which the covered employee or the employee's survivor may be entitled under this Act and payment of medical expenses for the beryllium-related pulmonary condition.
(b) If a covered employee who would have been eligible to make the election provided by this section dies before the effective date of this Act, or before making the election, whether or not the death is the result of a beryllium-related condition, the employee's survivor or survivors may make the election to receive retroactive compensation in the amount of $200,000 in lieu of any other compensation to which either the covered employee or the employee's survivors might otherwise have been entitled under this Act. The right to make an election pursuant to this section shall be afforded to survivors in the order of precedence set forth in section 8109 of title 5, United States Code.
(c) The election to receive retroactive compensation in lieu of other compensation under this statute shall be made within 30 days after the date of a decision by the Secretary of Labor determining an entitlement to an award of compensation for total disability or partial disability under this Act or the date that the Secretary of Labor informs the employee or the employee's survivor of the entitlement to make such an election, whichever is later, unless the time is extended by the Secretary of Labor. The election when made by a covered employee or survivor is irrevocable and binding on all survivors.
(d) When a covered employee, or the employee's survivor, has made an election to receive retroactive compensation pursuant to this section, no other payment of compensation under this Act may be made on account of the same or any other covered illness or beryllium-related pulmonary condition of that employee for any period of time or for any service received before the date of enactment of this Act.
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(e) Determination by the Secretary of Labor that a covered employee or a survivor of a covered employee has established a beryllium-related pulmonary condition, pursuant to subsection (a), does not constitute a determination that the covered employee, or a survivor of the covered employee, has established the existence of a covered illness.
(f) The retroactive compensation payable under this section shall not be subject to the cost-of-living adjustment set forth in section 8146a(a) of title 5, United States Code.
SEC. 11. EXCLUSIVITY OF REMEDY.
(a) The liability of the United States or an instrumentality thereof under this Act or any extension thereof with respect to a covered illness, beryllium-related pulmonary condition, or death of a covered employee is exclusive and instead of all other liability of the United States, the instrumentality, or of any employer that employed a covered employee to—
(1) the covered employee;
(2) the covered employee's legal representative, spouse, dependents, and next of kin; and
(3) any other person otherwise entitled to recover damages from the United States, the instrumentality, or of any employer that employed the covered employee,
because of the covered illness, beryllium-related pulmonary condition or death in any proceeding or action including a direct judicial proceeding, a civil action, a proceeding in admiralty, or an administrative or judicial proceeding under a workers' compensation statute, a tort liability statute, or the common law.
(b) For the purposes of this section, the employer of a covered employee shall be any corporation, person, organization, or other entity that employed the covered employee when the employee was exposed to beryllium in the performance of duty as specified in section 5 and any corporation, person, organization, or other entity that hired, contracted, or employed the immediate employer of the covered employee when the covered employee was exposed to beryllium in the performance of duty as specified in section 5 and any employees, agents, or assigns of such persons, corporations, organizations, or other entities.
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SEC. 12. CLAIM.
A claim for compensation under this Act shall be made in the manner specified in section 8121 of title 5, United States Code, except that a claim for compensation under this Act may be filed by a claimant at any time.
SEC. 13. RESPONSIBILITIES OF THE SECRETARY OF ENERGY AND THE SECRETARY OF DEFENSE.
(a) To assist and facilitate administration of this Act, the Secretaries of Energy and Defense shall—
(1) ensure the ready availability, in paper or electronic format, of forms necessary for making claims and providing information under this Act;
(2) provide assistance to workers in connection with this Act; and
(3) inform the Secretary of Labor of advances in testing, diagnosis, and treatment of chronic beryllium disease and beryllium sensitivity.
(b) Upon receipt of notification from the Secretary of Labor that a claimant has made a claim for benefits under this Act, the Secretary of Energy or the Secretary of Defense shall provide information concerning the claim, as requested by the Secretary of Labor, and provide such additional information as the Secretary of Labor deems necessary.
(c) The Secretary of Energy or the Secretary of Defense may require a beryllium vendor to provide the Secretary of Energy or the Secretary of Defense with information concerning the claim requested by the Secretary of Labor under subsection (b).
(d) The alleged failure of the Secretary of Energy or the Secretary of Defense to comply with this section shall not provide a basis for review of any action of the Secretary of Energy, the Secretary of Defense, or the Secretary of Labor by another official of the United States or by a court by mandamus or otherwise.
(e) Powers conferred upon the Secretary of Energy or the Secretary of Defense by this Act may be delegated to any employee of the Department of Energy or Department of Defense.
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SEC. 14. REVIEW OF AWARD.
The action of the Secretary of Labor, or the Secretary's designee, in allowing or denying a payment under this Act is—
(1) final and conclusive for all purposes and with respect to all questions of law and facts; and
(2) not subject to review by another official of the United States or by a court by mandamus or otherwise.
SEC. 15. ASSIGNMENT OF CLAIM.
An assignment of a claim for compensation under this Act is void. Compensation and claims for compensation are exempt from claims of creditors.
SEC. 16. ADMINISTRATION AND ADJUDICATION.
(a) The Secretary of Labor shall administer, and decide all questions arising under, this Act, except to the extent that specific authority is accorded to the Secretary of Energy or the Secretary of Defense by section 4. The Secretary of Labor may appoint employees to administer this Act.
(b) Powers conferred upon the Secretary of Labor by this Act may be delegated to any employee of the Department of Labor.
(c) A claimant may obtain reconsideration of a decision of the Secretary of Labor awarding or denying coverage under this Act after the promulgation by the Secretary of Labor, pursuant to section 4, of new criteria for establishing coverage of a covered illness by submitting evidence that is relevant and pertinent to the new criteria.
(d) Except to the extent specified in this Act, the administration and adjudication of this Act shall be conducted in accordance with the provisions of section 8123–8127, 8128(a), and 8129 of title 5, United States Code.
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(e) For the purposes of this Act, references in section 8124(a)(1) of title 5, United States Code, to the report furnished by the immediate superior shall be considered references to the information furnished to the Secretary of Labor by the Secretary of Energy pursuant to section 13.
SEC. 17. SUBROGATION OF THE UNITED STATES.
(a) If a covered illness, death, or beryllium-related pulmonary condition for which compensation is payable under this Act is caused under circumstances creating a legal liability in a person other than the United States to pay damages, sections 8131 and 8132 of title 5, United States Code, shall apply, except to the extent specified in this Act.
(b) For purposes of this section, references in sections 8131 and 8132 of title 5, United States Code, to the Employees' Compensation Fund shall mean the Federal Beryllium Compensation Fund.
(c) For purposes of this Act, the provision in section 8131 of title 5, United States Code, that provides that an employee required to appear as a party or witness in the prosecution of an action described in such section is in an active duty status while so engaged shall only apply to a covered employee, as defined in section 3(4)(C).
SEC. 18. FEDERAL BERYLLIUM COMPENSATION FUND.
(a) There is created in the Treasury of the United States the Federal Beryllium Compensation Fund which shall consist of sums that, from time to time, may be appropriated for or transferred or advanced to it, and amounts that may otherwise accrue to it under this Act or any other statute. Notwithstanding any other provision of law, funds in the Federal Beryllium Compensation Fund remain available until expended for the payment of compensation and other benefits and expenses authorized by this Act or any extension or application thereof, and for payment of all expenses of the Department of Labor in administering this Act.
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(b) The Secretary of Energy shall assure that the Federal Beryllium Compensation Fund contains sufficient funds for the Secretary of Labor to make all required payments from such Fund. Upon receipt of a quarterly statement furnished under subsection (e)(1) by the Secretary of Labor reporting a projected deficiency in the balance of the Federal Beryllium Compensation Fund, the Secretary of Energy is authorized to and shall—
(1) cause a transfer or advance of funds to the Federal Beryllium Compensation Fund from any Department of Energy appropriation;
(2) cause a transfer to the Federal Beryllium Compensation Fund to be charged to the subsequent year appropriation; or
(3) cause any combination thereof, of such amounts as may be necessary to eliminate said projected deficiency.
(c) The Federal Beryllium Compensation Fund is authorized to receive for deposit any funds transferred or advanced by or through the Secretary of Energy under subsection (b) and any amounts that may otherwise accrue to it under this Act or any other statute. The Federal Beryllium Compensation Fund is authorized to and shall repay all advances under subsection (b) upon enactment of its next annual appropriation and receipt of sufficient funds for the payment of benefits and expenses, and of all expenses of the Department of Labor in administering this Act through the end of the quarter immediately following the quarter in which the repayment is approved.
(d) The Secretary of Labor is authorized to draw upon and expend any funds in the Federal Beryllium Compensation Fund to make any payments authorized pursuant to subsection (a).
(e) QUARTERLY STATEMENTS.—
(1) Within 45 days of the end of every quarter of every fiscal year, the Secretary of Labor shall furnish to the Secretary of Energy a statement showing—
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(A) the total costs of benefits and other payments made from the Federal Beryllium Compensation Fund during the quarter just ended;
(B) the end-of-quarter balance in such fund;
(C) the anticipated draw of the Secretary of Labor upon such Fund during the immediately succeeding 2 quarters; and
(D) any resulting projected deficiency in the balance of such Fund during the immediately succeeding 2 quarters.
(2) Each such statement issued in August shall show, in addition, the total costs of benefits and expenses and other payments from such Fund during the preceding July 1 through June 30 expense period and an estimate of the expenditures from the Federal Beryllium Compensation Fund for the payment of benefits and expenses and other payments for each of the immediately succeeding 2 fiscal years.
(3) Within 30 days of receipt of any quarterly statement under subsection (a) showing such a resulting projected deficiency, the Secretary of Energy shall—
(A) eliminate such projected deficiency in accordance with subsection (b); and
(B) furnish a statement to the Secretary of Labor which includes a record of the amounts transferred or advanced to the Federal Beryllium Compensation Fund from Department of Energy appropriations or transferred to the Federal Beryllium Compensation Fund to be charged to the subsequent year appropriation.
SEC. 19. FORFEITURE OF BENEFITS BY CONVICTED FELONS.
(a) Any individual convicted of a violation of section 1920 of title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefit under this Act or under any other Federal or State workers' compensation Act, shall forfeit (as of the date of such conviction) any entitlement to any benefit such individual would otherwise be entitled to under this Act for any covered illness for which the time of injury was on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary of Labor may take pursuant to the provisions of section 8106 or 8129 of title 5, United States Code.
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(b)(1) Notwithstanding any other provision of law (except as provided under paragraph (3)), no benefits under this Act shall be paid or provided to any individual during any period during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to that individual's conviction of an offense that constituted a felony under applicable law.
(2) Such individual shall not be entitled to receive the benefits forfeited during the period of incarceration under paragraph (1) after such period of incarceration ends.
(3) If an individual has one or more dependents as defined under section 8110(a) of title 5, United States Code, the Secretary of Labor may, during the period of incarceration, pay to such dependents a percentage of the benefits that would have been payable to such individual computed according to the percentages set forth in section 8133(a)(1) through (5) of title 5, United States Code.
(c) Notwithstanding the provision of section 552a of title 5, United States Code, or any other provision of Federal or State law, any agency of the United States Government or of any State (or political subdivision thereof) shall make available to the Secretary of Labor, upon written request, the names and Social Security account numbers of individuals who are confined in a jail, prison, or other penal institution or correctional facility under the jurisdiction of such agency, pursuant to such individuals' conviction of an offense that constituted a felony under applicable law, which the Secretary of Labor may require to carry out the provisions of this section.
SEC. 20. REGULATIONS—BERYLLIUM COMPENSATION APPEALS PANEL.
The Secretary of Labor may prescribe rules and regulations necessary for the administration and enforcement of this Act, including rules and regulations for the conduct of hearings under this Act. The rules and regulations shall provide for a Beryllium Compensation Appeals Panel of 3 individuals designated or appointed by the Secretary of Labor with authority to hear and, subject to applicable law and the rules and regulations of the Secretary of Labor, make final decisions on appeals taken from determinations and awards with respect to claims of covered employees.
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SEC. 21. CIVIL SERVICE RETENTION RIGHTS.
In the event that a covered employee, as defined in section 3(4)(C), resumes employment with the Federal Government, such individual shall be entitled to the rights set forth in section 8151 of title 5, United States Code.
SEC. 22. ANNUAL REPORT.
The Secretary of Labor shall, at the end of each fiscal year, prepare a report with respect to the administration of this Act. Such report shall be submitted to Congress in accordance with the requirement with respect to submission under section 42 of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 942).
SEC. 23. APPROPRIATIONS.
(a) There is authorized to be appropriated to the Department of Energy for deposit into the Federal Beryllium Compensation Fund the sum of $200,000,000 for fiscal year 2001, which, notwithstanding any other provision of law, shall remain available until expended.
(b) For succeeding fiscal years there are authorized to be appropriated to the Department of Energy for deposit into the Federal Beryllium Compensation Fund such sums as may be necessary to carry out this Act, which, notwithstanding any other provision of law, shall remain available until expended.
(c) Budget estimates for the Department of Energy submitted to the Committees on Appropriations shall—
(1) request amounts for the Federal Beryllium Compensation Fund required to make all payments authorized by section 18 for the period covered by the budget estimate; and
(2) report all amounts deposited in the Energy Employee's Compensation Fund under subsection (b) of section 18 since submission of the prior budget estimates.
SEC. 24. CONSTRUCTION.
References in this Act to a provision of another statute shall be considered references to such provision, as amended and as may be amended from time to time.
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SEC. 25. CONFORMING AMENDMENTS.
(a) Section 1920 of title 18 is amended by inserting ''or the Federal Beryllium Compensation Act'' after ''of title 5''.
(b) Section 1921 of title 18 is amended by inserting ''or the Federal Beryllium Compensation Act'' after ''of title 5''.
(c) Section 1922 of title 18 is amended by—
(1) inserting ''(a)'' before ''Whoever,''; and
(2) inserting a new subsection as follows:
''(b) Whoever, being charged with the responsibility for providing information pursuant to section 13(b) of the Federal Beryllium Compensation Act, willfully fails, neglects, or refuses to provide such information, or knowingly provides false information, or induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under the Federal Beryllium Compensation Act or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under that Act or any extension or application thereof, or regulations prescribed thereunder, shall be fined under this title or imprisoned not more than 1 year, or both.''.
SEC. 26. EFFECTIVE DATE.
This Act is effective upon enactment, and shall apply to all claims, civil actions, and proceedings pending on, or filed on or after, the date of the enactment of this Act.
106TH CONGRESS
1ST SESSION
H. R. 3495
To establish a compensation program for Department of Energy employees injured in Federal nuclear activities.
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IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 18, 1999
Mr. STRICKLAND (for himself, Mr. GORDON, Mr. UDALL of Colorado, Mr. WHITFIELD, Mrs. TAUSCHER, Mr. BAIRD, Mr. BROWN of Ohio, Mr. PHELPS, Mr. FORBES, Mr. PALLONE, and Ms. KAPTUR) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To establish a compensation program for Department of Energy employees injured in Federal nuclear activities.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Department of Energy Nuclear Employees Exposure Compensation Act''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Federal nuclear activities have long been explicitly recognized by the Government as an ultra-hazardous activity under law.
(2) Since the inception of the Federal nuclear weapons program, the Department of Energy and its predecessors have self-regulated worker safety and health, which places a unique responsibility upon the Department to ensure a safe working environment.
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(3) Since the inception of the nuclear weapons program, nuclear workers at sites operated by the Department of Energy and its predecessor agencies were put at risk of exposure to harmful substances without the knowledge or consent of the workers.
(4) For decades the Department of Energy and its predecessor agencies withheld information about worker health risks for reasons that were not in the national interest—while actively resisting efforts by workers to seek compensation.
(5) The Department of Energy currently does not have accurate and complete records of exposure to radioactive and hazardous substances—which unfairly places the burden of proof of harm upon workers.
(6) Current remedies under State compensation programs are ill-suited to address chronic diseases and those that have long latency periods which are associated with exposure to radioactive and hazardous substances at Department of Energy facilities.
(7) Scientific evidence shows that ionizing radiation is a carcinogenic substance and that specific types of cancer are considered radiogenic by the scientific and medical community.
SEC. 3. DEFINITIONS.
For purposes of this Act:
(1) DEPARTMENT OF ENERGY.—The term ''Department of Energy'' includes the predecessor agencies of the Department.
(2) DOE NUCLEAR EMPLOYEE.—The term DOE nuclear employee'' means an individual employed by—
(A) the Department of Energy;
(B) an entity that contracted with the Department of Energy to provide management and operations, management and integration, production, testing, research, development, environmental remediation, or waste management at facilities at locations, including the following:
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(i) Portsmouth, Ohio;
(ii) Paducah, Kentucky.
(iii) O.R. K-25, Tennessee;
(iv) O.R. Y-12, Tennessee;
(v) O.R. X-10, Tennessee;
(vi) Hanford, Washington;
(vii) Idaho National Engineering Laboratory;
(viii) Rocky Flats, Colorado;
(ix) Fernald, Ohio;
(x) Miamisburg, Ohio;
(xi) Los Alamos National Laboratory, New Mexico;
(xii) Pinellas, Florida;
(xiii) Pantex, Texas;
(xiv) Nevada Test Site;
(xv) Brookhaven, New York;
(xvi) Lawrence Livermore National Laboratory;
(xvii) Sandia National Laboratory, New Mexico
(xviii) Burlington, Iowa;
(xix) Fermi Nuclear Facility, Illinois;
(xx) Weldon Spring, Maryland; or
(xxi) Savannah River, South Carolina
(xxii) Argonne National Lab, Illinois
(C) a supplier that supplied uranium conversion or manufacturing services, including Allied Signal Facility in Metropolis, Illinois, Nuclear Fuels Services in Erwin, Tennessee, Linde Air Products, Tonowanda, New York, and Reactive Metals in Ashtabula, Ohio.
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(3) SPECIFIED DISEASE.—The term ''specified disease'' means—
(A) leukemia (other than chronic lymphocytic leukemia);
(B) the following diseases;
(i) multiple myeloma;
(ii) lymphomas (other than Hodgkins disease); and
(iii) primary cancer or a pre-cancerous condition of the bone, lung, thyroid, male or female breast, esophagus, kidney, salivary gland, skin, urinary bladder, stomach pharynx, small intestine, pancreas, bile ducts, gall bladder, or liver; and
(C) additional diseases covered by the Nuclear Claims Tribunal of the Marshall Islands.
SEC. 4. DOE NUCLEAR FACILITY EMPLOYEES' EXPOSURE COMPENSATION FUND.
(a) ESTABLISHMENT.—There is established in the Treasury the DOE Nuclear Employees' Exposure Compensation Fund (hereafter in this Act referred to as the ''Fund'').
(b) PURPOSE.—The amounts in the Fund are available only for disbursement by the Attorney General under section 6.
(c) TERMINATION.—The Fund shall terminate 22 years after the date of enactment of this Act. If all of the amounts in the Fund have not been expended by the end of the 22-year period, amounts remaining in the Fund shall be deposited in the miscellaneous receipts account in the Treasury.
(d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Fund such sums as may be necessary to carry out this Act. Amounts appropriated to the fund shall remain available until expended or deposited in the Treasury.
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(e) AUTHORITY.—Authority under this Act to enter into contracts or to make payments is effective in any fiscal year only to the extent, or in the amounts, provided in advance in an appropriation Act.
SEC. 5. ELIGIBLE EMPLOYEES.
A DOE nuclear employee who—
(1) was employed at a DOE nuclear facility for at least a year;
(2) during the employees' employment period—
(A) was or should have been monitored through the use of dosimetry badges for exposure of the employees's body to radiation at the facility, and
(B) submits written medical documentation as to having contracted a specified disease after beginning employment as described in paragraph (1) and after beginning being monitored or beginning work,
is authorized to receive $100,000 and first dollar coverage for all medical and diagnostic costs related to a claim for a specified disease, including complicating factors, if the claim for payment is filed with the Attorney General and the Attorney General determines, in accordance with section 6, that the claim meets the requirements of this Act.
SEC. 6. DETERMINATION AND PAYMENT OF CLAIMS.
(a) FILING PROCEDURES.—The Attorney General shall establish procedures under which an eligible employee may submit a claim for payment under this section.
(b) DETERMINATION.—The Attorney General shall determine if each claim filed under this section meets the requirements of this Act. In making a determination of eligibility for compensation, the Attorney General may consult with the Surgeon General and the Secretary of Energy. The Attorney General shall—
(1) in consultation with the Surgeon General, establish guidelines for determining what constitutes written medical documentation under section 5 that an individual contracted a specified disease; and
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(2) in consultation with the Secretary of Energy, establish guidelines for determinations of employment and exposure, as described in section 5.
(c) PAYMENT.—
(1) IN GENERAL.—The Attorney General is authorized to pay, from amounts available in the Fund, claims filed under this section that the Attorney General determines meets the requirements of this Act.
(2) SUBROGATION.—Upon payment of a claim under paragraph (1), the United States is subrogated for the amount of the payment to a right or claim that the individual to whom the payment was made may have against any person on account of a specified disease contracted following employment and exposure as described in section 5.
(3) DECEASED OR DYING EMPLOYEE.—
(A) DECEASED.—In the case of a DOE nuclear employee who is deceased at the time of payment under this section, the payment may be made only as follows:
(i) If the DOE nuclear employee is survived by a spouse who is living at the time of payment, the payment shall be made to the surviving spouse.
(ii) If there is no surviving spouse at the time of payment, the payment shall be made in equal shares to all the children of the DOE nuclear employee who are living at the time of payment.
(iii) If there is no spouse or children living at the time of payment, the payment shall be made in equal shares to the parents of the DOE nuclear employee who are living at the time of payment.
(iv) If there are no spouse, children, or parents living at the time of payment, the payment shall be made in equal shares to all grandchildren of the DOE nuclear employee who are living at the time of payment.
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(v) If there are no spouse, children, parents, or grandchildren living at the time of payment, the payment shall be made in equal shares to the grandparents of the DOE nuclear employee who are living at the time of payment.
(vi) If there are no spouse, children, parents, grandchildren, or grandparents living at the time of payment, the amount of the payment shall remain in the Fund for future claimants.
(B) DIES.—If the DOE nuclear employee eligible for payment under this section dies before filing a claim under this Act, a survivor of that employee who may receive payment under subparagraph (A) may file a claim for payment for such employee.
(C) DEFINITIONS.—For purposes of subparagraph (A)—
(i) the term ''spouse'' of a DOE nuclear employee is a wife or husband of that employee who was married to that employee for at least one year immediately before the death of that employee;
(ii) the term ''child'' includes a natural child, a step-child in a regular parent-child relationship, and an adopted child;
(iii) the term ''parent'' includes fathers and mothers through adoption.
(iv) the term ''grandchild'' of a DOE nuclear employee is a child of a child of that employee;
(v) the term ''grandparent'' of a DOE nuclear employee is a parent of a parent of that employee.
(d) ACTION ON CLAIM.—
(1) DETERMINATION PERIOD.—The Attorney General shall complete the determination of each claim filed under subsection (a) not later than 12 months after the date the claim is filed.
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(2) ADDITIONAL INFORMATION AND DOCUMENTATION.—The Attorney General may request from a claimant, or from an individual or entity on behalf of a claimant, additional information or documentation necessary to complete the determination of the claim under subsection (b). The period of time from the Attorney General's request for additional information or documentation until the time the information or documentation is provided, or the requested individual or entity informs the Attorney General the information or documentation cannot or will not be provided, is not counted toward the 12-month period established under paragraph (1). A claimant may sue the Department of Energy or its contractor in a district court of the United States to compel the production of information or documentation requested by the Attorney General if (A) it is more than 60 days after the date the Attorney General's request was made, and (B) the information or documentation has not been provided.
(3) PAYMENTS UNDER OTHER ACTS LIMITED.—An individual may not receive payment under this Act and under the Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act (38 U.S.C 354 note).
(e) COSTS OF ADMINISTERING THE ADJUDICATIONS.—
(1) LIMITATION.—Costs incurred by the Attorney General in carrying out this section shall not be paid from the Fund or set off against, or otherwise deducted from, a payment under this section.
(2) REIMBURSEMENT.—The Department of Energy shall reimburse the Attorney General for the costs incurred by the Attorney General in connection with establishing and administering the program of compensation under this Act until the duties of the Attorney General terminate under subsection (f).
(f) TERMINATION.—The duties of the Attorney General under this section terminate when the Fund terminates.
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(g) TREATMENT OF PAYMENTS UNDER OTHER LAWS.—An amount paid to an individual under this section—
(1) shall not be subject to Federal income tax under the Internal Revenue Code of 1986;
(2) shall not be included as income or resources for purposes of determining eligibility to receive benefits described in section 3803(c)(2)(C) of title 31, United States Code; and
(3) shall not be subject to the offset under chapter 37 of title 31, United States Code.
(h) REGULATORY AUTHORITY.—The Attorney General may issue regulations to carry out this Act.
(i) ISSUANCE OF REGULATIONS GUIDELINES, AND PROCEDURES.—Regulations, guidelines, and procedures to carry out this Act shall be issued not later than 180 days after the date of enactment of this Act.
(j) ADMINISTRATIVE APPEALS PROCEDURE AND JUDICIAL REVIEW.—
(1) DECISION DENYING CLAIM.—A decision denying a claim under this Act may be appealed to an appeals officer designated by the Attorney General.
(2) If the designated appeals officer affirms a decision denying a claim under this Act, the individual who submitted such claim may seek review of such affirmation by a district court of the United States.
SEC. 7. CLAIMS NOT ASSIGNABLE OR TRANSFERABLE.
A claim cognizable under this Act is not assignable or transferable.
SEC. 8. LIMITATIONS ON CLAIMS.
A claim to which this Act applies is barred unless the claim is filed within 20 years after the date of enactment of this Act.
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SEC. 9. ATTORNEY FEES.
Notwithstanding any contract, the representative of an individual filing a claim under this Act may not receive for services rendered in connection with such claim more than 10 percent of a payment made for such claim. A representative who violates this section shall be fined not more than $5,000.
SEC. 10. CLAIMS NOT AFFECTED BY AWARDS OF DAMAGES.
A payment made under this Act shall not be considered as any form of compensation or reimbursement for a loss for purposes of imposing liability on the individual receiving the payment to repay any insurance carrier for insurance payments made. A payment under this Act does not affect any claim against any insurance carrier with respect to insurance.
106TH CONGRESS
2D SESSION
H. R. 4263
To establish a compensation and health care program for employees and survivors at the Department of Energy facility in Los Alamos, New Mexico who have sustained beryllium, radiation-related, asbestos, and hazardous substances injury, illness, or death due to the performance of their duties, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
APRIL 12, 2000
Mr. UDALL of New Mexico (for himself and Mr. UDALL of Colorado) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce, and Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
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A BILL
To establish a compensation and health care program for employees and survivors at the Department of Energy facility in Los Alamos, New Mexico who have sustained beryllium, radiation-related, asbestos, and hazardous substances injury, illness, or death due to the performance of their duties, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ''Atomic Workers' Compensation Act''.
(b) TABLE OF CONTENTS.—The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I—ENERGY EMPLOYEES' BERYLLIUM COMPENSATION
Sec. 101. Definitions.
Sec. 102. Regulatory authority to revise definitions.
Sec. 103. Administration.
Sec. 104. Exposure to beryllium in the performance of duty.
Sec. 105. Compensation for disability or death, medical services, and vocational rehabilitation.
Sec. 106. Computation of pay.
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Sec. 107. Limitations on receiving compensation.
Sec. 108. Coordination of benefits.
Sec. 109. Alternative compensation.
Sec. 110. Payment in full settlement of claims against the United States and the employee's employer.
Sec. 111. Filing of claim.
Sec. 112. Time limitation on filing a claim.
Sec. 113. Determination and award of claims.
Sec. 114. Review of award.
Sec. 115. Appeal.
Sec. 116. Reconsideration of denial of claim.
Sec. 117. Resolution of issues in the award or denial of compensation; costs of administration.
Sec. 118. Representation; fees for services.
Sec. 119. Status of award; certain claims not affected.
Sec. 120. Assignment of claim.
Sec. 121. Subrogation of the United States.
Sec. 122. Energy employees' beryllium compensation fund.
Sec. 123. Forfeiture of benefits by convicted felons.
Sec. 124. Civil service retention rights.
Sec. 125. Annual report.
Sec. 126. Authorization of appropriations.
Sec. 127. Regulations.
Sec. 128. Construction.
Sec. 129. Conforming amendments.
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Sec. 130. Effective date.
TITLE II—NUCLEAR EMPLOYEES RADIATION COMPENSATION
Sec. 201. Definitions.
Sec. 202. Administration.
Sec. 203. Occupational exposure to radiation and other hazardous substances.
Sec. 204. Compensation for disability or death, medical services, and vocational rehabilitation.
Sec. 205. Computation of pay.
Sec. 206. Limitations on receiving compensation.
Sec. 207. Coordination of benefits.
Sec. 208. Right to alternative compensation.
Sec. 209. Payment in full settlement of claims against the United States and the employee's employer.
Sec. 210. Filing of claim.
Sec. 211. Time limitation on filing a claim.
Sec. 212. Determination and award of claims.
Sec. 213. Review of award.
Sec. 214. Appeal.
Sec. 215. Reconsideration of denial of claim.
Sec. 217. Representation; fees for services.
Sec. 218. Status of award; certain claims not affected.
Sec. 219. Assignment of claim.
Sec. 220. Subrogation of the United States.
Sec. 221. Nuclear employees' radiation compensation fund.
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Sec. 222. Forfeiture of benefits by convicted felons.
Sec. 223. Civil service retention rights.
Sec. 224. Annual report.
Sec. 225. Authorization of appropriations.
Sec. 226. Regulations; regulatory authority.
Sec. 227. Construction.
Sec. 228. Conforming amendments.
Sec. 229. Effective date.
TITLE III—ASBESTOS COMPENSATION
Subtitle A—Establishment and Procedure
Sec. 301. Establishment of the Office of Asbestos Compensation.
Sec. 302. Medical eligibility review.
Sec. 303. Election of administrative process; settlement offers.
Sec. 304. Claimant's choice of forum.
Sec. 305. Administrative adjudication.
Sec. 306. Appeals; judicial review.
Sec. 307. Gathering and maintenance of information.
Sec. 308. Legal assistance program.
Sec. 309. Time limits for dispositions.
Subtitle B—Law Applicable to Asbestos Adjudications
Sec. 310. Medical eligibility.
Sec. 311. Damages.
Sec. 312. Statute of limitations or repose.
Sec. 313. Come back rights.
Sec. 314. Class actions, aggregations of claims and venue.
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Sec. 315. Joint and several liability.
Sec. 316. Core claims.
Sec. 317. Special rules applicable to section 305 adjudications.
Sec. 318. Special rules applicable to the trustee.
Subtitle C—Eligible Medical Categories
Sec. 320. Eligible medical categories.
Sec. 321. Asbestos-related nonmalignant conditions with impairment.
Sec. 322. Asbestos-related mesothelioma.
Sec. 323. Asbestos-related lung cancer.
Sec. 324. Asbestos-related other cancer.
Sec. 325. Medical testing reimbursement.
Subtitle D—Funding
Sec. 330. Assessment and enforcement.
Sec. 331. Fiscal and financial management of the asbestos compensation fund.
Sec. 332. Authorization for appropriations and offsetting collections.
Subtitle E—Transition
Sec. 335. Applicability; transitional civil actions.
Subtitle F—Definitions
Sec. 340. Definitions.
Subtitle G—Miscellaneous Provisions
Sec. 345. Relationship to other laws.
Sec. 346. Annual reports.
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Sec. 347. Enforcement.
Sec. 348. Qualifying national settlement plan.
Sec. 349. Severability.
Sec. 350. Settlements.
TITLE IV—EMPLOYEES EXPOSED TO TOXIC SUBSTANCES AND HEAVY METALS
Sec. 401. Eligibility of employees exposed to other toxic substances and heavy metals.
Sec. 402. Establishment of a physicians panel by the Secretary of Health and Human Services.
Sec. 403. Eligibility determination.
Sec. 404. Establishment of occupational disease presumptions.
Sec. 405. Panel shall report determination to Secretary of Labor.
SEC. 2. FINDINGS.
The Congress finds that—
(1) Since World War II Federal nuclear activities have been explicitly recognized by the United States Government as an a ultra-hazardous activity under Federal law. Nuclear weapons production involved unique dangers, including potential catastrophic nuclear accidents that private insurance
carriers would not cover, as well as chronic exposures to radioactive and hazardous substances, such as beryllium, that even in small amounts could cause medical harm.
(2) Since the inception of the nuclear weapons program and for several decades afterwards, large numbers of nuclear weapons workers at Department of Energy sites and at vendors who supplied the Cold War effort were put at risk without their knowledge and consent for reasons that, documents reveal, were driven by fears of adverse publicity, liability, and employee demands for hazardous duty pay.
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(3) Numerous previous secret records documented unmonitored radiation, beryllium, heavy metals, and toxic substances' exposures and continuing problems at the Department of Energy and vendor sites across the country, where since World War II the Department of Energy and its predecessors have been self-regulating with respect to nuclear safety and occupational safety and health. No other hazardous Federal activity has been permitted to have such sweeping self-regulatory powers.
(4) The Department of Energy policy to litigate occupational illness claims regardless of merit has deterred workers from filing workers compensation claims and imposed major financial burdens for workers who sought compensation. Department of Energy contractors have been held harmless, even for acts of negligence, while the Department of Energy workers were denied workers compensation coverage for occupational disease. The policy to avoid legal liabilities at all costs has been in place for decades.
(5) Over the past 20 years more than two dozen scientific findings have emerged that indicate that Department of Energy workers are experiencing increased risks of dying from cancer and nonmalignant diseases at numerous facilities that provided for the nation's nuclear deterrent. Several of these studies also establish a correlation between excess diseases and exposure to radiation and beryllium.
(6) While linking exposure to occupational hazards with the development of occupational disease is sometimes difficult, scientific evidence supports the conclusion that occupational exposure to dust particles or vapor of beryllium, even where there was compliance with the standards in place at the time, can cause beryllium sensitivity and chronic beryllium disease. Furthermore, studies indicate than 98 percent of radiation induced cancers within the Department of Energy complex occur at dose levels below existing legal thresholds for proof. Further, that workers at Department of Energy sites were exposed to heavy metals and toxic substances at levels that will lead or contribute to illness and diseases.
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(7) Existing information indicates that State workers' compensation programs are not a uniform means to provide adequate compensation for the types of occupational illnesses and diseases related to the prosecution of the Cold War effort.
(8) The civilian men and women who performed duties uniquely related to the Department of Energy's nuclear weapons production program over the last 50 years should have efficient, uniform, and adequate compensation for beryllium-related health conditions, radiation-related health conditions, asbestos-related health conditions, and toxic substances-related health conditions in order to assure fairness and equity.
(9) This situation is sufficiently unique to the Department of Energy's nuclear weapons production program that it is appropriate for Congressional action.
TITLE I—ENERGY EMPLOYEES' BERYLLIUM COMPENSATION
SEC. 101. DEFINITIONS.
For the purpose of this title:
(1) DEPARTMENT OF ENERGY.—The term ''Department of Energy'' includes the predecessor agencies of the Department of Energy.
(2) SECRETARY.—The term ''Secretary'' unless otherwise specified means the Secretary of Energy.
(3) DEPARTMENT OF ENERGY FACILITY.—The term ''Department of Energy facility'' means any building, structure, or premises, including the grounds upon which they are located, in which operations are conducted by, or on behalf of, the Department of Energy in Los Alamos, New Mexico and with regard to which the Department of Energy has a proprietary interest or has entered into a contract with an entity to provide management and operation, management and integration, or environmental remediation.
(4) COMPENSATION.—The term ''compensation'' means the money allowance payable under this title and any other benefits paid for from the Energy Employees' Beryllium Compensation Fund, including the retroactive compensation payable pursuant to section 109.
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(5) COVERED EMPLOYEE.—The term ''covered employee'' means—
(A) an employee of any entity in Los Alamos, New Mexico, that contracted or subcontracted with the Department of Energy to provide management and operations, management and integration, production, testing, research, development, environmental remediation, waste management, construction, uranium enrichment, or other services at a Department of Energy facility or any entity that supplied uranium conversion or manufacturing services to, for, or on behalf of, the Department of Energy, including, those entities identified at section 201(3); or
(B) an individual defined as an employee in section 8101(1) of title 5, United States Code, who may have been exposed to beryllium at a Department of Energy facility in Los Alamos, New Mexico.
(6) COVERED ILLNESS.—The term ''covered illness'' means any of the following conditions:
(A) Beryllium Sensitivity, established by an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells.
(B) Chronic Beryllium Disease, established by—
(i) beryllium sensitivity, as defined in subparagraph (A), and
(ii) lung pathology consistent with Chronic Beryllium Disease, such as—
(I) a lung biopsy showing granulomas or a lymphocytic process consistent with Chronic Beryllium Disease,
(II) a computerized axial tomography scan showing changes consistent with Chronic Beryllium Disease, or
(III) pulmonary function or exercise testing showing pulmonary deficits consistent with Chronic Beryllium Disease; or
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(C) any injury or illness sustained as a consequence of a covered illness as defined in subparagraph (A) or (B).
(7) MONTHLY PAY.—The term ''monthly pay'' means—
(A) for covered employees employed at the time of injury or inception of disability, the monthly pay at the time of injury, the monthly pay at the inception of disability, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 6 months after the covered employee resumes regular full-time employment, whichever is greater, except when otherwise determined under section 8113(a) of title 5, United States Code;
(B) for covered employees who are unemployed at the inception of disability, the monthly pay of the employee's last covered employment calculated as if the employee were still employed, or the monthly pay of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, whichever is greater.
(8) TIME OF INJURY.—The term ''time of injury'' means the last date on which a covered employee was exposed to beryllium in the performance of duty as specified in section 104.
(9) INCEPTION OF DISABILITY.—The term ''inception of disability'' means the date on which the covered employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the covered illness, and the death or disability.
(10) MISCELLANEOUS TERMS.—The following terms have the meaning given those terms in section 8101 of title 5, United States Code:
(A) ''physician'';
(B) ''medical, surgical, and hospital services and supplies'';
(C) ''widow'';
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(D) ''parent'';
(E) ''brother'' and ''sister'';
(F) ''child'';
(G) ''grandchild'';
(H) ''widower'';
(I) ''student'';
(J) ''price index'';
(K) ''organ''; and
(L) ''United States medical officers and hospitals''.
SEC. 102. REGULATORY AUTHORITY TO REVISE DEFINITIONS.
(a) IN GENERAL.—Additional vendors, processors, or producers of beryllium or related products may be designated as beryllium vendors for the purposes of this title in regulations issued by the Secretary, upon finding that such entities have been engaged in activities related to beryllium that was produced or processed for sale to, or use by, the Department of Energy in a manner similar to the entities listed in section 101(4).
(b) ADDITIONAL CRITERIA.—Additional criteria by which a claimant may establish the existence of a covered illness, as defined in subparagraph (A) or (B) of section 101(7), may be specified in regulations issued by the Secretary, after consultation with the agency that contracts to administer this title.
SEC. 103. ADMINISTRATION.
(a) IN GENERAL.—Within 120 days of enactment of this title, the Secretary of Energy shall enter into an agreement with the Secretary of Labor for the administration of this title, including utilization of Department of Labor services and facilities and for the compensation by the Department of Energy for such administration from the Energy Employees Beryllium Compensation Fund established pursuant to section 122. The Secretary of Labor is authorized to enter into a reimbursable agreement with the Secretary of Energy for the administration of this title. Upon entry into such agreement, the Secretary of Labor may delegate to any officer or employee of the Department of Labor all powers and duties necessary for carrying out the purposes of this title.
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(b) JOINT AUTHORITY.—To assist and facilitate administration of this title and the adjudication of claims, the Secretary of Energy and the Secretary of Labor shall—
(1) provide assistance to employees and claimants in connection with this title, including assistance in securing medical testing and diagnostic services necessary to determine the existence of a covered illness as defined in section 101(7);
(2) ensure the ready availability, in paper and electronic format, of forms necessary for making claims, and provide employees and claimants with necessary information under this title including, inter alia, medical protocols necessary for medical testing and diagnosis to determine the existence of a covered illness, lists of approved vendors for use in obtaining necessary laboratory services related to such medical testing and diagnosis, and vouchers to cover costs outlined in the medical protocols;
(3) provide such further assistance to employees and claimants as necessary for the development of the facts pertinent to the employee's claim or potential claim;
(4) upon a notification that a claimant has made a claim for benefits under this title, provide such information to the authority with delegated responsibility for the determination and award of claims under section 113, or review thereof under sections 114 and 115, as the authority may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto.
In carrying out paragraph (1), the examination of workers who believe they have ailments related to the environmental conditions at their places of work in Los Alamos shall be conducted free of charge at the Veterans' Administration hospital nearest to their place of residence and such workers shall receive free treatment for ailments and illnesses identified by such physicians as potentially work-related. Such workers shall also receive reimbursement for travel and lodging expenses.
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(c) INFORMATION.—The Secretary of Energy may require a Department of Energy contractor to provide information concerning a claim filed under this title to the officers or employees with delegated responsibility for administering this title.
(d) PENALTY.—Failure or refusal to provide information, or knowingly providing false information, in response to a request pursuant to subsections (b) and (c) this section may result in fine or imprisoned, or both, pursuant to section 1922 of title 18, United States Code, as amended by section 129(c).
(e) PENALTY.—Whoever induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under this title or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under this title or any extension or application thereof, or regulations prescribed thereunder, may be subjected to fine or imprisonment, or both, pursuant to section 1922 of title 18, United States Code, as amended by section 129(c).
SEC. 104. EXPOSURE TO BERYLLIUM IN THE PERFORMANCE OF DUTY.
In the absence of substantial evidence to the contrary, a covered employee, as defined in subparagraphs (A), (B), or (C) of section 101(6), shall be determined to have been exposed to beryllium in the performance of duty for the purposes of this title if, and only if, the covered employee was employed at a Department of Energy facility, or was present at the facility because of employment by the United States or a contractor or subcontractor of the Department of Energy, for any period of time, during a time period when beryllium dust particles or vapor may have been present at that facility.
SEC. 105. COMPENSATION FOR DISABILITY OR DEATH, MEDICAL SERVICES, AND VOCATIONAL REHABILITATION.
(a) COMPENSATION.—In accordance with, and except as otherwise provided in, this title, the United States is authorized to—
(1) upon application for compensation pursuant to section 111, furnish the costs of all medical testing and diagnostic services necessary for the claimant to determine the existence of a covered illness as defined in section 101(7), and reimburse claimant for any additional reasonable medical expenses incurred in establishing the claimant's claim;
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(2) pay the compensation specified in sections 8105–8110, 8111(a), 8112–13, 8115, 8117, 8133–8135, and 8146a (a) and (b) of title 5, United States Code, for the disability or death from a covered illness of a covered employee who was exposed to beryllium while in the performance of duty as determined in accordance with section 104;
(3) furnish the services and other benefits specified in section 8103 of title 5, United States Code, to a covered employee who sustains a covered illness as a result of exposure to beryllium while in the performance of duty as determined in accordance with section 104;
(4) pay alternative compensation pursuant to section 109, and attorneys fees as specified in section 118; and
(5) advise a permanently disabled individual whose disability is compensable under this title of the availability of vocational rehabilitation and provide for furnishing vocational rehabilitation service pursuant to the provisions of section 8104 and 8111(b) of title 5, United States Code;
unless the covered illness or death was caused by one of the circumstances set forth in paragraphs (1) or (3) of subsection (a) of section 8102 of title 5, United States Code.
(b) PAYMENT FROM FUND.—All compensation and awards under this title shall be paid from the Energy Employees' Beryllium Compensation Fund.
(c) PAYMENT AND EFFECTIVE DATE.—No payment of compensation may be made under this title for any period prior to the effective date of this title, except for the alternative compensation specified in section 109.
SEC. 106. COMPUTATION OF PAY.
(a) IN GENERAL.—Except as otherwise provided by this title, computation of pay under this title shall be determined in accordance with section 8114 of title 5, United States Code.
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(b) AVERAGE ANNUAL EARNINGS.—If either of the methods of determining the average annual earnings specified in sections 8114(d) (1) and (2) of title 5, United States Code, cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the covered employee in the employment in which the employee was working at the time of injury or inception of disability, whichever is greater, having regard to the previous earnings of the employee in similar employment, and for other employees of the same employer in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the covered employee earned in the employment during the days employed within 1 year immediately preceding the time of injury or inception of disability, whichever is greater.
SEC. 107. LIMITATIONS ON RECEIVING COMPENSATION.
(a) IN GENERAL.—While a covered employee as defined in section 101(6)(C) is receiving compensation under this title, or if the covered employee has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued pursuant to section 8135 of title 5, United States Code, the covered employee may not receive salary, pay, or remuneration of any type from the United States, except
(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or Air Force;
(3) other benefits administered by the Department of Veterans Affairs unless such benefits are payable for the same covered illness or the same death;
(4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed service; and
(5) retirement benefits under subchapter III of chapter 83 of title 5, United States Code, or other retirement system for employees of Federal or State government.
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However, eligibility for or receipt of benefits under subchapter III of chapter 83 of title 5, United States Code, or another retirement system for employees of Federal or State government, does not impair the right of the employee to compensation for scheduled disabilities specified by section 8107 of title 5, United States Code.
(b) ELECTION.—An individual eligible to receive benefits under this title because of a covered illness or death of a covered employee as defined in section 101(6)(C), who also is entitled to receive from the United States under a provision of statute other than this title payments or benefits for that covered illness or death (except proceeds of an insurance policy), because of service by the covered employee (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, except as otherwise provided by statute, or unless the level of compensation and other benefits under the other statutory provision or under this title changes, in which event the individual is entitled to make a new informed election.
(c) ELECTION.—While a covered employee is receiving compensation under this title, or if the covered employee has been paid a lump sum commutation of installment payments until the expiration of the period during which the installment payments would have continued, the covered employee may not receive payment of any benefits under any other Federal workers' compensation system for the same covered illness or the same death. Such an individual shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, unless the level of compensation and other benefits under the other Federal program or under this title changes, in which event the individual is entitled to make a new informed election.
(d) ELECTION.—An individual eligible to receive benefits under this title because of a covered illness or death of a covered employee who is also entitled to receive benefits because of the same covered illness or death of the covered employee from a State workers' compensation system shall elect which benefits to receive, unless—
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(1) at the time of injury the State workers' compensation coverage for the covered employee was secured by a policy or contract of insurance; and
(2) the Secretary waives the requirement to make such an election.
An individual required to make the election specified in this subsection shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, unless the level of compensation and other benefits under the State program or under this title changes, in which event the individual is entitled to make a new informed election.
SEC. 108. COORDINATION OF BENEFITS.
Except where the Secretary issues a waiver pursuant to section 107(d)(2), a claimant awarded benefits under this title as a result of a covered illness or death of a covered employee who receives benefits because of the same covered illness or death from any other State or Federal workers compensation system and who has elected benefits under this title pursuant to subsection (c) or (d) of section 107, shall receive compensation as specified in this title for the covered illness or death, reduced by the amount of any workers' compensation benefits that the claimant receives or will receive on account of the covered illness or death under any State or Federal workers' compensation system during the period that awarded benefits are provided under this title, after deducting the reasonable costs, as determined by the Secretary of Labor by regulation, of obtaining such benefits.
SEC. 109. ALTERNATIVE COMPENSATION.
(a) IN GENERAL.—A covered employee, who was exposed to beryllium in the performance of duty, as determined in accordance with section 104, and who, in addition—
(1) was diagnosed as having a beryllium-related pulmonary condition, whether or not based upon the criteria necessary to establish the existence of a covered illness under section 101(7), that was determined, either contemporaneously or at any time later, to be consistent with Chronic Beryllium Disease, as defined in section 101(7)(B), and
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(2) demonstrates the existence of a beryllium-related pulmonary condition, and its diagnosis, by medical documentation created during the covered employee's lifetime or at the time of death or autopsy,
may elect to receive alternative compensation in the amount of $200,000, subject to adjustment pursuant to section 8146a(a) of title 5, United States Code, together with those medical services and benefits specified in section 8103 of title 5, United States Code, in lieu of any other compensation to which the covered employee or the employee's survivors might otherwise be awarded under this title.
(b) DEATH OF COVERED EMPLOYEE.—If a covered employee who would have been eligible to make the election provided by this section dies before the effective date of this title, or before making the election, whether or not the death is the result of a beryllium-related condition, the employee's survivor or survivors may make the election to receive the alternative compensation specified in subsection (a) of this section in lieu of any other compensation that either the covered employee or the employee's survivors might otherwise have been awarded under this title. The right to make an election pursuant to this section shall be afforded to survivors in the order of precedence set forth in section 8109 of title 5, United States Code.
(c) ELECTION TO RECEIVE RETROACTIVE COMPENSATION.—The election to receive retroactive compensation under this section in lieu of other compensation under this title shall be made at any time subsequent to filing a claim pursuant to section 111, up to and including 30 days after either the date of a decision determining an award of compensation for total disability or partial disability under this title or the date that the Secretary informs the employee or the employee's survivor of the right to make such an election, whichever is later, unless the time is extended upon request by the employee or his or her survivor. The election when made by a covered employee or survivor is irrevocable and binding on all survivors.
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(d) LIMITATION.—When a covered employee, or the employee's survivor, has made an election to receive alternative compensation pursuant to this section, no other payment of compensation under this title may be made on account of the same or any other covered illness or beryllium-related pulmonary condition of that employee.
(e) DETERMINATION.—A determination that a covered employee or a survivor of a covered employee has established a beryllium-related pulmonary condition pursuant to subsection (a) of this section does not constitute a determination that the covered employee, or a survivor of the covered employee, has established the existence of a covered illness.
SEC. 110. PAYMENT IN FULL SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES AND THE EMPLOYEE'S EMPLOYER.
(a) IN GENERAL.—If an individual elects to accept payment under this title with respect to a covered illness, beryllium-related pulmonary condition, or death of a covered employee, that acceptance of payment shall be in full settlement of all claims against the United States under chapter 171 of title 28, United States Code (relating to tort procedures), or against the covered employee's employer (with the exception of intentional torts), that arise out of the employee's exposure to beryllium in the performance of his or her duties within the meaning of section 104.
(b) APPLICATION.—This section does not apply to an administrative or judicial proceeding under a State or Federal workers' compensation statute subject to sections 107 and 108, nor to any litigation, whether arising out of the employee's exposure to beryllium in the performance of the employee's duties or not, in State or Federal court as of the effective date of this title.
SEC. 111. FILING OF CLAIM.
A claim for compensation under this title shall be submitted to the Secretary of Labor, or the Secretary of Labor's designee, in the manner specified in section 8121 of title 5, United States Code, for determination pursuant to section 113.
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SEC. 112. TIME LIMITATION ON FILING A CLAIM.
(a) IN GENERAL.—A claim for compensation under this title must be filed within the later of—
(1) 7 years after the effective date of this title, or
(2) 7 years after the date the claimant first becomes aware of—
(A) a diagnosis of a covered illness or a beryllium-related pulmonary condition, or death resulting from such illness or condition; and
(B) the causal connection of that illness, condition, or death to exposure to beryllium in the performance of duty as a covered employee.
(b) NEW LIMITATION PERIOD.—A new limitations period commences with each later diagnosis of a covered illness or beryllium-related pulmonary condition different from that previously diagnosed.
(c) TIMELY FILING.—The timely filing of a disability claim because of a covered illness or beryllium-related pulmonary condition will satisfy the time requirements for a death claim based on the same illness or condition.
SEC. 113. DETERMINATION AND AWARD OF CLAIMS.
(a) IN GENERAL.—Upon entry into the agreement with the Secretary of Energy authorized by section 103(a), the Secretary of Labor, or the Secretary's designee, shall determine and make findings of fact and make an award for or against payment of compensation under this title within 120 days of the filing of a claim pursuant to section 111, after—
(1) considering the claim presented by the beneficiary, the results of any medical test or diagnosis undertaken to determine the existence of a covered illness, and any report furnished by the Department of Energy; and
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(2) completing such investigation as the Secretary or the Secretary's designee considers necessary.
(b) CONSTRUCTION.—Except as otherwise specified in this title, the determination of a claim for compensation, and any award and payment of compensation under this section shall be made in accordance with section 8124(a) of title 5, United States Code. Unless a hearing is requested pursuant to section 114(a), the determination, findings, and any award rendered hereunder shall become final and conclusive at the expiration of the thirtieth day after the date of the Secretary of Labor's decision and service thereof upon claimant.
SEC. 114. REVIEW OF AWARD.
(a) IN GENERAL.—A claimant for compensation is entitled to a hearing on his or her claim before an administrative law judge qualified under section 3105 of title 5, United States Code, upon request made by claimant within 30 days after the date of issuance and service of the Secretary of Labor's findings and decision under section 113, and to the presentation at such hearing of evidence in further support of the claim. The administrative law judge may extend the period for requesting a hearing under this section upon petition of the claimant and good cause shown.
(b) HEARING.—The administrative law judge shall, in the conduct of a hearing requested pursuant to subsection (a) of this section and in the evaluation and determination of claimant's claim, have those powers, duties and responsibilities vested by section 8124(b) of title 5, United States Code, in the Secretary of Labor, provided however, that the hearing shall be conducted in accordance with the provisions of section 554 of title 5, United States Code. Parties to a proceeding under this subsection shall be strictly limited to the claimant and the Secretary of Labor as represented by his or her designee.
(c) ORDERS.—The administrative law judge shall have power to preserve and enforce order during any proceeding under this section; to issue subpoenas for, to administer oaths to, and to compel the attendance and testimony of witnesses, or the production of books, papers, documents, and other evidence, or the taking of depositions before any designated individual competent to administer oaths; to examine witnesses; and to do all things conformable to law which may be necessary to enable the administrative law judge effectively to discharge his duties under this title.
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(d) PENALTY.—If any person in proceedings before an administrative law judge under this section disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the administrative law judge shall certify the facts to the district court having jurisdiction in the place in which he is sitting (or to the United States District Court for the District of Columbia if the administrative law judge is sitting in such District) which shall thereupon in a summary manner hear the evidence as to the acts complained of, and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.
(e) RECORD.—The record shall close at the conclusion of the hearing, except where the administrative law judge grants, for good cause, an extension not to exceed 30 days for the submission of additional evidence and argument.
(f) DECISION NOTICE.—Within 45 days of the closing of the record, and no later than 180 days after receipt of claimant's request for hearing, the administrative law judge shall notify the claimant in writing of the administrative law judge's decision and any award the administrative law judge may make, and of the basis for such decision and award. In accordance with the facts found on review, the administrative law judge may end, decrease, or increase the compensation previously awarded, or award compensation previously refused or discontinued.
(g) EFFECT OF DECISION.—Unless appealed to the Benefits Review Board as provided in section 115, the decision by the administrative law judge, and any award rendered as a result thereof, shall become effective upon filing with the Secretary of Labor, or the Secretary of Labor's designee, and service upon the claimant, and shall become final and conclusive at the expiration of the thirtieth day thereafter.
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SEC. 115. APPEAL.
(a) IN GENERAL.—Within 30 days of the effective date of a decision rendered by an administrative law judge under section 114, an aggrieved claimant may seek review of such determination before the Benefits Review Board established pursuant to section 921(b) of title 33, United States Code. The Benefits Review Board may extend the period for requesting review under this section, not to exceed an additional 30 days, upon petition of the claimant and good cause shown.
(b) AUTHORITY OF BENEFITS REVIEW BOARD.—The Benefits Review Board is authorized to hear and determine an appeal under this section in accordance with and pursuant to the authority vested in the Board by section 921(b) of title 33, United States Code. The Board shall make its final determination with regard to such appeal within 240 days following receipt of claimant's request for review. Parties to a proceeding under this subsection shall be strictly limited to the claimant and the Secretary of Labor as represented by the Secretary of Labor's designee.
(c) COURT REVIEW.—A claimant adversely affected or aggrieved by a final determination and order of the Benefits Review Board may obtain review thereof in the United States court of appeals for the circuit in which the claimant resides pursuant to section 921(c) of title 33, United States Code.
SEC. 116. RECONSIDERATION OF DENIAL OF CLAIM.
(a) IN GENERAL.—Notwithstanding any other provision of this title, a claimant or eligible surviving beneficiary may obtain reconsideration of a decision denying coverage under this title after the promulgation by the Secretary, pursuant to section 102, of regulations designating additional processors or producers of beryllium or related products, or regulations identifying additional criteria for establishing the existence of a covered illness.
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(b) RECONSIDERATION.—Notwithstanding any other provision of this title, a claimant or eligible surviving beneficiary may obtain reconsideration of a decision denying coverage under this title based on new evidence or amendment in the laws governing disposition of claims for benefits under this title.
SEC. 117. RESOLUTION OF ISSUES IN THE AWARD OR DENIAL OF COMPENSATION; COSTS OF ADMINISTRATION.
(a) IN GENERAL.—Failure to render a determination on a claim within any time period prescribed in sections 113, 114 or 115 shall result in the award of the claim as a matter of law.
(b) RESOLVING DOUBT.—All reasonable doubt with regard to whether a claim for compensation meets the requirements of this title shall be resolved in favor of the claimant.
(c) PHYSICIAN.—In securing medical testing and diagnostic services to determine the existence of a covered illness compensable under this title, the claimant may utilize a physician of the claimant's choice, or a Department of Energy funded or sponsored medical program or employer-provided program, if available.
(d) APPLICATION OF TITLE 5.—Except as otherwise specified in this title, the provisions of sections 8123, 8125–8127, 8129, 8133, 8134 and 8146a(a) of title 5, United States Code, shall govern the adjudication, award and payment of claims, and the resolution of issues under this title.
(e) SUIT.—A claimant may sue the Department of Energy or its contractors in a district court of the United States to compel the production of information or documentation requested by the Secretary of Labor, an administrative appeals judge, or the Benefits Review Board, as the case may be, where the information or documentation requested is not provided within 60 days from the date the request is made. Upon successful resolution of any suit brought pursuant to this subsection, the court shall award claimant reasonable attorney's fees and costs, which shall be considered costs incurred by the Secretary of Energy and shall not be paid from the Energy Employees Beryllium Compensation Fund, or set off against, or otherwise deducted from any payment to claimant under this title.
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(f) CONSTRUCTION.—Sections 114 and 115 do not confer the right to a hearing or of appeal on the Secretary of Labor or the Secretary of Energy, although the Secretary of Labor or the Secretary of Labor's designee may appear before the administrative law judge, the Benefits Review Board, or court, as the case may be, in explanation of the Secretary of Labor's initial determination under section 113 where the claimant has appealed therefrom.
(g) PAYMENT OF COSTS.—The costs incurred by the Secretary of Labor, an administrative law judge, or the Benefits Review Board in the administration of this title and adjudication of claims thereunder are chargeable against, and shall be paid from, the Energy Employees Beryllium Compensation Fund established pursuant to section 122.
SEC. 118. REPRESENTATION; FEES FOR SERVICES.
(a) IN GENERAL.—A claimant may authorize an attorney to represent the claimant in any proceeding under this title.
(b) AMOUNT.—If the Secretary of Labor, or the Secretary of Labor's designee, declines to pay compensation, in whole or in part, under section 113, and the person seeking benefits under this title thereafter utilizes the services of an attorney at law in the successful prosecution of the claimant's claim under section 114 or 115, there shall be awarded, in addition to the award of compensation, a reasonable attorney's fee, and costs, for the services provided by the attorney under sections 113 and 114, in an amount approved by the administrative law judge, the Benefits Review Board, or court, as the case may be. The award of attorney's fees under this subsection shall be paid by the Secretary from the Energy Employees' Beryllium Compensation Fund directly to the attorney for the claimant in a lump sum after the compensation order becomes final.
(c) ARBITRARY OR CAPRICIOUS CONDUCT.—In the event an administrative law judge, the Benefits Review Board, or the court, as the case may be, sets aside the denial of a claim under this title as arbitrary and capricious, claimant shall be awarded, separate and apart from and in addition to any award of attorney's fees under subsection (b) of this section, reasonable attorney's fees and costs incurred with respect to the appeal and review necessitated thereby. In the event that claimant subsequently prevails upon remand on the claimant's claim, claimant shall be awarded, in addition to the award to which the claimant is otherwise entitled under this title, 10 percent per annum on the claimant's claim from the date of the original denial of the claim. Attorney's fees, costs, and interest awarded pursuant to this subsection shall be considered costs incurred by the Secretary of Labor and shall not be paid from the Energy Employees Beryllium Compensation Fund, or set off against, or otherwise deducted from any payment to claimant under this title.
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(d) LIMITATION.—Where an award of attorney's fees for services is allowed under this section, the attorney receiving such award shall be prohibited from charging claimant, directly or indirectly, for the same services. A violation of this subsection shall result in a fine of not more than $5,000 assessed by the Secretary against the offending attorney.
SEC. 119. STATUS OF AWARD; CERTAIN CLAIMS NOT AFFECTED.
(a) IN GENERAL.—Any award ordered or amount paid pursuant to this title—
(1) shall not be considered income for purposes of the Internal Revenue Code of 1986 and shall not be subject to Federal income tax under the Internal Revenue Code of 1986;
(2) shall not be included as income or resources for purposes of determining eligibility to receive benefits described in section 3803(c)(2)(C) of title 31, United States Code, or the amount of those benefits; and
(3) shall not be subject to offset under chapter 37 of title 31, United States Code.
(b) PAYMENT UNDER THIS TITLE.—A payment made under this title shall not be considered as any form of compensation or reimbursement for a loss for purposes of imposing liability on the individual receiving the payment to repay any insurance carrier for insurance payments made. A payment under this title does not affect any claim against an insurance carrier with respect to insurance.
SEC. 120. ASSIGNMENT OF CLAIM.
A claim cognizable under this title is not assignable or transferable. Any assignment or transfer of a claim for compensation under this title is void. Compensation and claims for compensation are exempt from claims of creditors.
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SEC. 121. SUBROGATION OF THE UNITED STATES.
(a) IN GENERAL.—If a covered illness, death, or beryllium-related pulmonary condition for which compensation is payable under this title is caused under circumstances creating a legal liability in a person other than the United States to pay damages, sections 8131 and 8132 of title 5, United States Code, shall apply, except to the extent specified in this title.
(b) REFERENCES.—For purposes of this section, references in sections 8131 and 8132 of title 5, United States Code, to the Employees' Compensation Fund shall mean the Energy Employees' Beryllium Compensation Fund.
(c) APPLICATION.—For the purposes of this title, the provision in section 8131 of title 5, United States Code, that provides that an employee required to appear as a party or witness in the prosecution of an action described in that section is in an active duty status while so engaged shall only apply to a covered employee, as defined in section 101(4)(C).
SEC. 122. ENERGY EMPLOYEES' BERYLLIUM COMPENSATION FUND.
(a) IN GENERAL.—To carry out this title, there is established in the Treasury of the United States the Energy Employees' Beryllium Compensation Fund, which shall consist of
(1) sums that are appropriated for it,
(2) amounts that are transferred to it from other Department of Energy accounts pursuant to section 126(a), and
(3) amounts that would otherwise accrue to it under this title.
(b) USE.—Amounts in the Energy Employees' Beryllium Compensation Fund are authorized to be used for the payment of compensation and other benefits and expenses authorized by this title and for payment of all expenses incurred in administering this title. Such funds are authorized to be appropriated to remain available until expended.
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(c) DETERMINATIONS.—
(1) QUARTERLY.—Within 45 days of the end of every quarter of every fiscal year, the Secretary shall determine the total costs of benefits, administrative expenses, and other payments made from the Energy Employees' Beryllium Compensation Fund during the quarter just ended, the end-of-quarter balance in the Fund, and the amount anticipated to be needed during the immediately succeeding 2 quarters for the payment of benefits and administrative expenses under this title.
(2) CONTENT.—Each cost determination made in the last quarter of the fiscal year under paragraph (1) shall show, in addition, the total costs of benefits and expenses and other payments from the Fund during the preceding 12-month expense period and an estimate of the expenditures from the Energy Employees' Beryllium Compensation Fund for the payment of benefits and expenses and other payments for each of the immediately succeeding two fiscal years.
SEC. 123. FORFEITURE OF BENEFITS BY CONVICTED FELONS.
(a) IN GENERAL.—Any individual convicted of a violation of section 1920 of title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefit under this title or under any other Federal or State workers' compensation Act, shall forfeit (as of the date of such conviction) any benefit such individual would otherwise be awarded to under this title for any covered illness for which the time of injury was on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary may take pursuant to the provisions of sections 8106 or 8129 of title 5, United States Code.
(b) LIMITATION.—
(1) IN GENERAL.—Notwithstanding any other provision of law (except as provided under paragraph (2)), no benefits under this title shall be paid or provided to any individual during any period during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to that individual's conviction of an offense
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that constituted a felony under applicable law. Such an individual shall not receive the benefits forfeited during the period of incarceration described in this paragraph, after the period of incarceration ends.
(2) EXCEPTION.—If an individual has one or more dependents, as defined under section 8110(a) of title 5, United States Code, the Secretary may, during the period of incarceration, pay to these dependents a percentage of the benefits that would have been payable to such individual computed according to the percentages set forth in section 8133(a) (1) through (5) of title 5, United States Code.
(c) INFORMATION.—Notwithstanding the provision of section 552a of title 5, United States Code, or any other provision of Federal or State law, any agency of the United States Government or of any State (or political subdivision thereof) shall make available to the Secretary, upon written request, the names and Social Security account numbers of individuals who are confined in a jail, prison, or other penal institution or correctional facility under the jurisdiction of that agency, pursuant to the individuals' conviction of an offense that constituted a felony under applicable law, which the Secretary may require to carry out the provisions of this section.
SEC. 124. CIVIL SERVICE RETENTION RIGHTS.
In the event that a covered employee, as defined in section 101(4)(C), resumes employment with the Federal Government, the individual shall be entitled to the rights set forth in section 8151 of title 5, United States Code.
SEC. 125. ANNUAL REPORT.
The Secretary shall, at the end of each fiscal year, prepare a report with respect to the administration of this title.
SEC. 126. AUTHORIZATION OF APPROPRIATIONS.
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(a) IN GENERAL.—There is authorized to be appropriated to the Department of Energy for deposit into the Energy Employees' Beryllium Compensation Fund such sums as are necessary to carry out the purposes of this title, including the administration thereof. In addition, the Department is authorized, to the extent provided in advance in appropriations Acts, to transfer amounts to the Fund from other Department of Energy appropriations accounts, to be merged with amounts in the Fund and available for the same purposes.
(b) LIMITATION.—In any fiscal year, the Secretary of Labor shall limit the amount of the compensation and benefits payments under this title to an amount not in excess of the sum of the appropriations to the Energy Employees' Beryllium Compensation Fund and amounts made available by Department of Energy transfers to the Fund. Notwithstanding any other provision, if in any fiscal year the Secretary of Labor finds that estimates of amounts contained in reports pursuant to section 122(c)(1) for the payment of compensation, other benefits, and administrative activities authorized by this title will exceed the amounts in the Fund, the Secretary of Labor is required to reduce compensation and benefits payments to the extent necessary to make up any amounts by which benefits and other costs authorized by this title exceed the amount in the Fund calculated on a fiscal year basis.
(c) REGULATIONS.—The Secretary of Energy, in consultation with the Secretary of Labor, shall promulgate regulations to implement this section within 120 days of enactment.
SEC. 127. REGULATIONS.
Not later than 120 days after the date of enactment, the Secretary of Labor shall prescribe such rules and regulations as may be necessary for the administration and enforcement of this title.
SEC. 128. CONSTRUCTION.
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References in this title to a provision of another statute shall be considered references to such provision, as amended and as may be amended from time to time.
SEC. 129. CONFORMING AMENDMENTS.
(a) SECTION 1920.—Section 1920 of title 18, United States Code, is amended by inserting in the title ''or Energy employee in Los Alamos, New Mexico,'' after ''Federal employee's'' and by inserting ''or the Energy Employees' Compensation Act'' after ''title 5''.
(b) SECTION 1921.—Section 1921 of title 18, United States Code, is amended by inserting in the title ''or Energy employees in Los Alamos, New Mexico,'' after ''Federal employees'' and by inserting ''or the Energy Employees' Compensation Act'' after ''title 5''.
(c) SECTION 1922.—Section 1922 of title 18, United States Code, is amended—
(1) by inserting in the section title ''or Energy employees in Los Alamos'' after ''Federal employees'';
(2) by inserting ''(a)'' before ''Whoever,'';
(3) by striking '', neglects,'' after ''willfully fails''; and
(4) by inserting a new subsection as follows:
''(b) Whoever refuses to provide the information referred to in subsection (a), or knowingly provides false information, or induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under the Energy Employees' Compensation Act or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under that Act or any extension or application thereof, or regulations prescribed thereunder, shall be fined under this title or imprisoned not more than one year, or both.''.
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SEC. 130. EFFECTIVE DATE.
This title is effective upon the date of its enactment.
TITLE II—NUCLEAR EMPLOYEES RADIATION COMPENSATION
SEC. 201. DEFINITIONS.
For purposes of this title:
(1) DEPARTMENT OF ENERGY.—The term ''Department of Energy'' includes the predecessor agencies of the Department of Energy.
(2) SECRETARY.—The term ''Secretary'' unless otherwise specified means the Secretary of Energy.
(3) DEPARTMENT OF ENERGY FACILITY.—The term ''Department of Energy facility'' means any building, structure, or premises, including the grounds upon which they are located, in Los Alamos, New Mexico, in which operations are conducted by, or on behalf of, the Department of Energy and with regard to which the Department of Energy has a proprietary interest or has entered into a contract with an entity to provide management and operation, management and integration, or environmental remediation.
(4) DEPARTMENT OF ENERGY CONTRACTOR.—The term ''Department of Energy contractor'' means—
(A) an entity in Los Alamos, New Mexico, that contracted or subcontracted with the Department of Energy to provide management and operations, management and integration, production, testing, research, development, environmental remediation, waste management, construction, or other services at a Department of Energy facility.
(5) COVERED EMPLOYEE.—The term ''covered employee'' means—
(A) an employee of any Department of Energy contractor; or
(B) an individual defined as an employee in section 8101(1) of title 5, United States Code, who may have been exposed to radiation at a Department of Energy facility or at a facility owned, operated, or occupied by a Department of Energy contractor.
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(6) COMPENSATION.—The term ''compensation'' means the money allowance payable under this title and any other benefits paid for from the Nuclear Employees' Radiation Compensation Fund, including the compensation payable pursuant to section 208.
(7) COVERED ILLNESS.—The term ''covered illness'' means—
(A) the following medical conditions or diseases, if the onset of the condition or disease was at least 2 years after first exposure:
(i) leukemia (other than chronic lymphocytic leukemia), multiple myeloma, or lymphoma;
(ii) primary cancer of the bone, thyroid, male or female breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary bladder, brain, colon, ovary, liver (except if cirrhosis or hepatitis B is indicated), larynx, prostate, kidney, or lung (other than in situ lung cancer that is discovered during or after a post-mortem exam);
(iii) for employees exposed to uranium or uranium compounds, chronic renal disease (including nephritis and kidney tubal necrosis);
(B) other medical conditions or illness associated with exposure to radiation or other hazardous substances as determined by the Secretary of Health and Human Services pursuant to title III;
(C) any other medical condition or illness whereby the claimant can establish, pursuant to title III, that radiation or a hazardous substance significantly contributed to their illness, disease or condition; or
(D) any injury or illness sustained as a consequence of a covered illness as defined in subparagraph (A), (B), or (C).
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(8) HAZARDOUS SUBSTANCES.—The term ''hazardous substances'' is used interchangeably with hazardous materials and includes heavy metals, chemicals, and other toxic substances to which covered employees are exposed at Department of Energy facilities in Los Alamos.
(9) MONTHLY PAY.—The term ''monthly pay'' means—
(A) for covered employees employed at the time of injury or inception of disability, the monthly pay at the time of injury, or the monthly pay at the inception of disability, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 6 months after the covered employee resumes regular full-time employment, whichever is greater, except when otherwise determined under section 8113(a) of title 5, United States Code; or
(B) for covered employees who are unemployed at the inception of disability, the monthly pay of the employee's last covered employment calculated as if the employee were still employed, or the monthly pay of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, whichever is greater.
(10) TIME OF INJURY.—The term ''time of injury'' means the last date on which a covered employee was exposed to radiation or other hazardous substance in the performance of duty as specified in section 203.
(11) INCEPTION OF DISABILITY.—The term ''inception of disability'' means the date on which
the covered employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the covered illness, and the death or disability.
(12) MISCELLANEOUS TERMS.—The following terms have the meaning given those terms in section 8101 of title 5, United States Code:
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(A) ''physician'';
(B) ''medical, surgical, and hospital services and supplies'';
(C) ''widow'';
(D) ''parent'';
(E) ''brother'' and ''sister'';
(F) ''child'';
(G) ''grandchild'';
(H) ''widower'';
(I) ''student'';
(J) ''price index'';
(K) ''organ''; and
(L) ''United States medical officers and hospitals''.
SEC. 202. ADMINISTRATION.
(a) IN GENERAL.—Within 120 days of enactment of this title, the Secretary of Energy shall enter into an agreement with the Secretary of Labor for the administration of this title, including utilization of Department of Labor services and facilities, and for the compensation by the Department of Energy for such administration from the Nuclear Employees Radiation Compensation Fund established pursuant to section 221. The Secretary of Labor is authorized to enter into a reimbursable agreement with the Secretary of Energy for the administration of this title. Upon entry into such agreement, the Secretary of Labor may delegate to any officer or employee of the Department of Labor all powers and duties necessary for carrying out the purposes of this title.
(b) AUTHORITY.—To assist and facilitate administration of this title and the adjudication of claims, the Secretary of Energy shall—
(1) provide assistance to employees and claimants in connection with this title, including assistance in securing medical testing and diagnostic services necessary to determine the existence of a covered illness as defined in section 201(7);
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(2) ensure the ready availability, in paper and electronic format, of forms necessary for making claims, and provide employees and claimants with necessary information under this title including, medical protocols necessary for medical testing and diagnosis to determine the existence of a covered illness, lists of approved vendors for use in obtaining necessary laboratory services related to such medical testing and diagnosis, and vouchers to cover costs outlined in the medical protocols;
(3) provide such further assistance to employees and claimants as necessary for the development of the facts pertinent to the claimant's claim or potential claim; and
(4) upon a notification that a claimant has made a claim for benefits under this title, provide such information to the authority with delegated responsibility for the determination and award of claims under section 212, or review thereof under sections 213 and 214, as the authority may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto.
In carrying out paragraph (1), the examination of workers who believe they have ailments related to the environmental conditions at their places of work in Los Alamos shall be conducted free of charge at the Veterans' Administration hospital nearest to their place of residence and such workers shall receive free treatment for ailments and illnesses identified by such physicians as potentially work-related. Such workers shall also receive reimbursement for travel and lodging expenses.
(c) INFORMATION.—The Secretary of Energy may require a Department of Energy contractor to provide information concerning a claim filed under this title to the officers or employees with delegated responsibility for administering this title.
(d) PENALTY.—Failure or refusal to provide information, or knowingly providing false information, in response to a request pursuant to subsections (b) and (c) this section may result in fine or imprisonment, or both, pursuant to section 1922 of title 18, United States Code, as amended by section 228(c).
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(e) PENALTY.—Whoever induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under this title or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under this title or any extension or application thereof, or regulations prescribed thereunder, may be subjected to fine or imprisonment, or both, pursuant to section 1922 of title 18, United States Code, as amended by section 228(c).
SEC. 203. OCCUPATIONAL EXPOSURE TO RADIATION AND OTHER HAZARDOUS SUBSTANCES.
(a) IN GENERAL.—In the absence of substantial evidence to the contrary, a covered employee, as defined in subparagraph (A) or (B) of section 201(5), shall be determined to have been exposed to radiation in the performance of duty for the purposes of this title if the individual was employed at a Department of Energy facility, or was present at the facility because of employment by the United States or a contractor or subcontractor of the Department of Energy, for a period of at least one year and—
(1) the individual was monitored through the use of dosimetry badges for exposure to radiation or should have been monitored for radiation exposure based on requirements or standards in existence as of the date of enactment of this title; or
(2) worked in a job that, as determined by regulation, resulted in exposure to radiation.
(b) CONSTRUCTION.—In the absence of substantial evidence to the contrary, a covered employee, as defined in section 201(5) (A) or (B), shall be determined to have been exposed to a hazardous substance or hazardous material in the performance of duty for the purposes of this title if—
(1) the individual was employed at a Department of Energy facility, or was present at the facility because of employment by the United States or a contractor or subcontractor of the Department of Energy, for a period of at least one year; and
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(2)(A) the individual was monitored for exposure to hazardous substances or hazardous materials or should have been monitored for such exposure, or
(B) provides a work history that, if verified, demonstrated exposure to hazardous substances or hazardous materials.
SEC. 204. COMPENSATION FOR DISABILITY OR DEATH, MEDICAL SERVICES, AND VOCATIONAL REHABILITATION.
(a) IN GENERAL.—In accordance with this title and except as otherwise provided in this Act, the United States is authorized to—
(1) upon application for compensation pursuant to section 210, furnish the costs of all medical testing and diagnostic services necessary for the claimant to determine the existence of a covered illness as defined in section 201(7) and reimburse claimant for any additional reasonable medical expenses incurred in establishing the claimant's claim;
(2) pay the compensation specified in sections 8105–8110, 8111(a), 8112–13, 8115, 8117, 8133–8135, and 8146a (a) and (b) of title 5, United States Code, for the disability or death from a covered illness of a covered employee who was occupationally exposed while in the performance of duty as determined in accordance with section 203;
(3) furnish the services and other benefits, specified in section 8103 of title 5, United States Code, to a covered employee who sustains a covered illness as a result of occupational exposure while in the performance of duty as determined in accordance with section 203;
(4) pay alternative compensation pursuant to section 208 and attorneys fees as specified in section 217; and
(5) advise a permanently disabled individual whose disability is compensable under this title of the availability of vocational rehabilitation and provide for furnishing vocational rehabilitation service pursuant to the provisions of section 8104 and 8111(b) of title 5, United States Code;
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unless the covered illness or death was caused by one of the circumstances set forth in paragraph (1), (2), or (3) of subsection (a) of section 8102 of title 5, United States Code.
(b) FUND.—All compensation and awards under this title shall be paid from the Nuclear Employees' Radiation Compensation Fund.
(c) COMPENSATION BEFORE EFFECTIVE DATE.—No payment of compensation may be made under this title for any period prior to the effective date of this title, except for the alternative compensation specified in section 208.
SEC. 205. COMPUTATION OF PAY.
(a) IN GENERAL.—Except as otherwise provided by this title, computation of pay under this title shall be determined in accordance with section 8114 of title 5, United States Code.
(b) AVERAGE ANNUAL EARNINGS.—If either of the methods of determining the average annual earnings specified in sections 8114(d) (1) and (2) of title 5, United States Code, cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the covered employee in the employment in which the employee was working at the time of injury or inception of disability, whichever is greater, having regard to the previous earnings of the employee in similar employment, and for other employees of the same employer in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the covered employee earned in the employment during the days employed within 1 year immediately preceding the date of injury or inception of disability, whichever is greater.
SEC. 206. LIMITATIONS ON RECEIVING COMPENSATION.
(a) IN GENERAL.—While a covered employee as defined in section 201(5)(B) is receiving compensation under this title, or if the covered employee has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued pursuant to section 8135 of title 5, United States Code, the covered employee may not receive salary, pay, or remuneration of any type from the United States, except—
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(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or Air Force;
(3) other benefits administered by the Department of Veterans Affairs unless such benefits are payable for the same covered illness or the same death;
(4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed service; and
(5) retirement benefits under subchapter III of chapter 83 of title 5, United States Code, or other retirement system for employees of Federal or State government.
However, eligibility for or receipt of benefits under subchapter III of chapter 83 of title 5, United States Code, or another retirement system for employees of Federal or State government, does not impair the right of the employee to compensation for scheduled disabilities specified by section 8107 of title 5, United States Code.
(b) ELECTION OF BENEFITS.—An individual eligible to receive benefits under this title because of a covered illness or death of a covered employee as defined in section 201(5)(B), who also is entitled to receive from the United States under a provision of statute other than this title payments or benefits for that covered illness or death (except proceeds of an insurance policy), because of service by the covered employee (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, except as otherwise provided by statute, or unless the level of compensation and other benefits under the other statutory provision or under this title changes, in which event the individual is entitled to make a new informed election.
(c) LIMITATION.—While a covered employee is receiving compensation under this title, or if the covered employee has been paid a lump sum commutation of installment payments until the expiration of the period during which the installment payments would have continued, the covered employee may not receive payment of any benefits under any other Federal workers' compensation system for the same covered illness or the same death. Such an individual shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, unless the level of compensation and other benefits under the other Federal program or under this title changes, in which event the individual is entitled to make a new informed election.
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(d) ELECTION OF BENEFITS.—An individual eligible to receive benefits under this title because of a covered illness or death of a covered employee who is also entitled to receive benefits because of the same covered illness or death of the covered employee from a State workers' compensation system shall elect which benefits to receive, unless—
(1) at the time of injury, the State workers' compensation coverage for the covered employee was secured by a policy or contract of insurance; and
(2) the Secretary waives the requirement to make such an election.
An individual required to make such an election shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, unless the level of compensation and other benefits under the State program or under this title changes, in which event the individual is entitled to make a new informed election.
SEC. 207. COORDINATION OF BENEFITS.
Except where the Secretary issues a waiver pursuant to section 206(d)(2), a claimant awarded benefits under this title as a result of a covered illness or death of a covered employee who receives benefits because of the same covered illness or death from any other State or Federal workers compensation system and who has elected benefits under this title pursuant to subsection (c) or (d) of section 206, shall receive compensation as specified in this title for the covered illness or death, reduced by the amount of any workers' compensation benefits that the claimant receives or will receive on account of the covered illness or death under any State or Federal workers' compensation system during the period that awarded benefits are provided under this title, after deducting the reasonable costs, as determined by the Secretary of Labor by regulation, of obtaining such benefits.
SEC. 208. RIGHT TO ALTERNATIVE COMPENSATION.
(a) IN GENERAL.—A covered employee, who was exposed to radiation or other hazardous substance in the performance of duty, as determined in accordance with section 203, and who, in addition, demonstrates the existence of a covered illness, and its diagnosis, by medical documentation created during the covered employee's lifetime or at the time of death or autopsy, may elect to receive compensation in the amount of $200,000, subject to adjustment pursuant to section 8146a(a) of title 5, United States Code, together with those services and benefits specified in section 8103 of title 5, United States Code, in lieu of any other compensation to which the covered employee or the employee's survivors might otherwise be awarded under this title.
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(b) COVERED EMPLOYEE DIES.—If a covered employee who would have been eligible to make the election provided by this section dies before the effective date of this title, or before making the election, whether or not the death is the result of a covered illness, the employee's survivor or survivors may make the election to receive the compensation specified in subsection (a) of this section in lieu of any other compensation that either the covered employee or the employee's survivors might otherwise have been awarded under this title. The right to make an election pursuant to this section shall be afforded to survivors in the order of precedence set forth in section 8109 of title 5, United States Code.
(c) TIME FOR ELECTION.—The election to receive compensation under this section in lieu of other compensation under this title shall be made at any time subsequent to filing a claim pursuant to section 210, up to and including 30 days after either the date of a decision determining an award of compensation for total disability or partial disability under this title or the date the Secretary informs the employee or the employee's survivor of the right to make such an election, whichever is later, unless the time is extended upon request by the employee or the employee's survivor. The election when made by a covered employee or survivor is irrevocable and binding on all survivors.
(d) LIMITATION.—When a covered employee, or the employee's survivor, has made an election to receive compensation pursuant to this section, no other payment of compensation under this title may be made on account of the same or any other covered illness of that employee.
SEC. 209. PAYMENT IN FULL SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES AND THE EMPLOYEE'S EMPLOYER.
(a) IN GENERAL.—If an individual elects to accept payment under this title with respect to a covered illness, or death of a covered employee, that acceptance of payment shall be in full settlement of all claims against the United States under chapter 171 of title 28, United States Code (relating to tort procedures), or against the covered employee's employer (with the exception of intentional torts), that arise out of the employee's exposure to radiation or other hazardous substances in the performance of the employee's duties within the meaning of section 104.
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(b) APPLICATION.—This section does not apply to an administrative or judicial proceeding under a State or Federal workers' compensation statute subject to sections 206 and 207, nor to any litigation, whether arising out of the employee's exposure to radiation or other hazardous substances in the performance of his or her duties or not, in any state or Federal court as of the effective date of this title.
SEC. 210. FILING OF CLAIM.
A claim for compensation under this title shall be submitted to the Secretary of Labor, or the Secretary of Labor's designee, in the manner specified in section 8121 of title 5, United States Code, for determination pursuant to section 212.
SEC. 211. TIME LIMITATION ON FILING A CLAIM.
(a) IN GENERAL.—A claim for compensation under this title must be filed within the later of—
(1) 7 years after the effective date, or
(2) 7 years after the date the claimant first becomes aware of—
(A) a diagnosis of a covered illness, or death resulting from such illness; and
(B) the causal connection of that illness, condition, or death to exposure to radiation of other hazardous substance in the performance of duty as a covered employee.
(b) LIMITATIONS PERIOD.—A new limitations period commences with each later diagnosis of a covered illness different from that previously diagnosed.
(c) TIMELY FILING.—The timely filing of a disability claim because of a covered illness will satisfy the time requirements for a death claim based on the same illness or condition.
SEC. 212. DETERMINATION AND AWARD OF CLAIMS.
(a) IN GENERAL.—Upon entry into the agreement with the Secretary of Energy authorized by section 202(a) of this title, the Secretary of Labor, or the Secretary of Labor's designee, shall determine and make findings of fact and make an award for or against payment of compensation under this title within 120 days of the filing of a claim pursuant to section 210 after—
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(1) considering the claim presented by the beneficiary, the results of any medical test or diagnosis undertaken to determine the existence of a covered illness, and any requested report or data furnished by the Department of Energy or a Physicians Panel under title IV; and
(2) completing such investigation as the Secretary or the Secretary's designee considers necessary.
(b) CLAIM DETERMINATION.—Except as otherwise specified in this title, the determination of a claim for compensation, and any award and payment of compensation under this section shall be made in accordance with section 8124(a) of title 5, United States Code. Unless a hearing is requested pursuant to section 213(a), the determination, findings, and any award rendered hereunder shall become final and conclusive at the expiration of the thirtieth day after the date of the Secretary of Labor's decision and service thereof upon claimant.
SEC. 213. REVIEW OF AWARD.
(a) IN GENERAL.—A claimant for compensation is entitled to a hearing on the claimant's claim before an administrative law judge qualified under section 3105 of title 5, United States Code, upon request made by claimant within 30 days after the date of issuance and service of the Secretary of Labor's findings and decision under section 212, and to the presentation at such hearing of evidence in further support of the claim. The administrative law judge may extend the period for requesting a hearing under this section upon petition of the claimant and good cause shown.
(b) ADMINISTRATIVE LAW JUDGE.—The administrative law judge shall, in the conduct of a hearing requested pursuant to subsection (a) of this section and in the evaluation and determination of claimant s claim, have those powers, duties and responsibilities vested by section 8124(b) of title 5, United States Code, in the Secretary of Labor, if the hearing is conducted in accordance with the provisions of section 554 of title 5, United States Code. Parties to a proceeding under this subsection shall be strictly limited to the claimant and the Secretary of Labor as represented by the Secretary of Labor's designee.
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(c) The administrative law judge shall have power to preserve and enforce order during any proceeding under this section, to issue subpoenas for, to administer oaths to, and to compel the attendance and testimony of witnesses, or the production of books, papers, documents, and other evidence, or the taking of depositions before any designated individual competent to administer oaths, to examine witnesses, and to do all things conformable to law which may be necessary to enable the administrative law judge effectively to discharge the administrative law judge's duties under this title.
(d) PENALTY.—If any person in proceedings before an administrative law judge under this section disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the administrative law judge shall certify the facts to the district court having jurisdiction in the place in which the administrative law judge is sitting (or to the United States District Court for the District of Columbia if the administrative law judge is sitting in such District) which shall thereupon in a summary manner hear the evidence as to the acts complained of, and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.
(e) RECORD.—The record shall close at the conclusion of the hearing, except where the administrative law judge grants, for good cause, an extension not to exceed 30 days for the submission of additional evidence and argument.
(f) DECISION NOTICE.—Within 45 days of the closing of the record, and no later than 180 days after receipt of claimant's request for hearing, the administrative law judge shall notify the claimant in writing of his decision and any award he may make, and of the basis for such decision and award. In accordance with the facts found on review, the administrative law judge may end, decrease, or increase the compensation previously awarded, or award compensation previously refused or discontinued.
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(g) EFFECTIVE DATE OF DECISION.—Unless appealed to the Benefits Review Board as provided in section 214, the decision by the administrative law judge, and any award rendered as a result thereof, shall become effective upon filing with the Secretary of Labor, or the Secretary of Labor's designee, and service upon the claimant, and shall become final and conclusive at the expiration of the thirtieth day thereafter.
SEC. 214. APPEAL.
(a) IN GENERAL.—Within 30 days of the effective date of a decision rendered by an administrative law judge under section 213, an aggrieved claimant may seek review of such determination before the Benefits Review Board established pursuant to section 21(b) of the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 921(b)). The Benefits Review Board may extend the period for requesting review under this section, not to exceed an additional 30 days, upon petition of the claimant and good cause shown.
(b) BOARD AUTHORITY.—The Benefits Review Board is authorized to hear and determine an appeal under this section in accordance with and pursuant to the authority vested in the Board by section 921(b) of title 33, United States Code. The Board shall make its final determination with regard to such appeal within 240 days following receipt of claimant s request for review. Parties to a proceeding under this subsection shall be strictly limited to the claimant and the Secretary of Labor as represented by the Secretary of Labor's designee.
(c) JUDICIAL REVIEW.—A claimant adversely affected or aggrieved by a final determination and order of the Benefits Review Board may obtain review thereof in the United States court of appeals for the circuit in which the claimant resides pursuant to section 21(c) of the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 921(c)).
SEC. 215. RECONSIDERATION OF DENIAL OF CLAIM.
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(a) IN GENERAL.—Notwithstanding any other provision of this title, a claimant or eligible surviving beneficiary may obtain reconsideration of a decision denying coverage under this title after the promulgation by the Secretary, pursuant to section 226(b), of regulations identifying additional criteria for establishing the existence of a covered illness.
(b) RECONSIDERATION.—Notwithstanding any other provision, a claimant or eligible surviving beneficiary may obtain reconsideration of a decision denying coverage under this title based on new evidence or amendment in the laws governing disposition of claims for benefits under this title.
SEC. 216. RESOLUTION OF ISSUES IN THE AWARD OR DENIAL OF COMPENSATION; COSTS OF ADMINISTRATION.
(a) IN GENERAL.—Failure to render a determination on a claim within any time period prescribed in section 212, 213, or 214 shall result in the award of the claim as a matter of law.
(b) DOUBT.—All reasonable doubt with regard to whether a claim for compensation meets the requirements shall be resolved in favor of the claimant.
(c) MEDICAL SERVICES.—In securing medical testing and diagnostic services to determine the existence of a covered illness compensable under this title, the claimant may utilize a physician of the claimant's choice, or a Department of Energy funded or sponsored medical screening program or employer-provided program, if available.
(d) CONSTRUCTION.—Except as otherwise specified in this title, the provisions of sections 8123, 8125–8127, 8129, 8133, 8134 and 8146a(a) of title 5, United States Code, shall govern the adjudication, award and payment of claims, and the resolution of issues under this title.
(e) SUIT.—A claimant may sue the Department of Energy or its contractors in a district court of the United States to compel the production of information or documentation requested by the Secretary of Labor, an administrative appeals judge, or the Benefits Review Board, as the case may be, where the information or documentation requested is not provided within 60 days from the date the request is made. Upon successful resolution of any suit brought pursuant to this subsection, the court shall award claimant reasonable attorney's fees and costs, which shall be considered costs incurred by the Secretary of Energy and shall not be paid from the Nuclear Employees Radiation Compensation Fund, or set off against, or otherwise deducted from any payment to claimant under this title.
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(f) CONSTRUCTION.—Sections 213 and 214 do not confer the right to a hearing or of appeal on the Secretary of Labor or the Secretary of Energy, although the Secretary of Labor or the Secretary of Labor's designee may appear before the administrative law judge, the Benefits Review Board, or court, as the case may be, in explanation of the Secretary of Labor's initial determination under section 212 where the claimant has appealed therefrom.
(g) COSTS.—The costs incurred by the Secretary of Labor, an administrative law judge, or the Benefits Review Board in the administration and adjudication of claims thereunder are chargeable against, and shall be paid from, the Nuclear Employees Radiation Compensation Fund established pursuant to section 221.
SEC. 217. REPRESENTATION; FEES FOR SERVICES.
(a) IN GENERAL.—A claimant may authorize an attorney to represent the claimant in any proceeding under this title.
(b) FEE AWARD.—If the Secretary of Labor, or the Secretary of Labor's designee, declines to pay compensation, in whole or in part, under section 212, and the person seeking benefits under this title thereafter utilizes the services of an attorney at law in the successful prosecution of the claimant's claim under section 213 or 214, there shall be awarded, in addition to the award of compensation, a reasonable attorney's fee, and costs, for the services provided by the attorney under section 213 or 214, in an amount approved by the administrative law judge, the Benefits Review Board, or court, as the case may be. The award of attorney's fees under this subsection shall be paid by the Secretary from the Nuclear Employees' Radiation Compensation Fund directly to the attorney for the claimant in a lump sum after the compensation order becomes final.
(c) DENIAL SET ASIDE.—In the event an administrative law judge, the Benefits Review Board, or the court, as the case may be, sets aside the denial of a claim under this title as arbitrary and capricious, claimant shall be awarded, separate and apart from and in addition to any award of attorney's fees under subsection (b) of this section, reasonable attorney's fees and costs incurred with respect to the appeal and review necessitated thereby. In the event that claimant subsequently prevails upon remand on the claimant's claim, claimant shall be awarded, in addition to the award to which the claimant is otherwise entitled under this title, 10 percent per annum on the claimant's claim from the date of the original denial of the claim. Attorney's fees, costs, and interest awarded pursuant to this subsection shall be considered costs incurred by the Secretary of Labor and shall not be paid from the Nuclear Employees Radiation Compensation Fund, or set off against, or otherwise deducted from any payment to claimant under this title.
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(d) AWARD OF FEES.—Where an award of attorney's fees for services is allowed under this section, the attorney receiving such award shall be prohibited from charging claimant, directly or indirectly, for the same services. A violation of this subsection shall result in a fine of not more than $5,000 assessed by the Secretary against the offending attorney.
SEC. 218. STATUS OF AWARD; CERTAIN CLAIMS NOT AFFECTED.
(a) IN GENERAL.—Any award ordered or amount paid pursuant to this title—
(1) shall not be considered income for purposes of the Internal Revenue Code of 1986 and shall not be subject to Federal income tax under the Internal Revenue Code of 1986;
(2) shall not be included as income or resources for purposes of determining eligibility to receive benefits described in section 3803(c)(2)(C) of title 31, United States Code, or the amount of those benefits; and
(3) shall not be subject to offset under chapter 37 of title 31, United States Code.
(b) PAYMENT.—A payment made under this title shall not be considered as any form of compensation or reimbursement for a loss for purposes of imposing liability on the individual receiving the payment to repay any insurance carrier for insurance payments made. A payment under this title does not affect any claim against an insurance carrier with respect to insurance.
SEC. 219. ASSIGNMENT OF CLAIM.
A claim cognizable under this title is not assignable or transferable. Any assignment or transfer of a claim for compensation under this title is void. Compensation and claims for compensation are exempt from claims of creditors.
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SEC. 220. SUBROGATION OF THE UNITED STATES.
(a) IN GENERAL.—If a covered illness or death for which compensation is payable under this title is caused under circumstances creating a legal liability in a person other than the United States to pay damages, sections 8131 and 8132 of title 5, United States Code, shall apply, except to the extent specified in this title.
(b) FUND REFERENCE.—For purposes of this section, references in sections 8131 and 8132 of title 5, United States Code, to the Employees' Compensation Fund shall mean the Nuclear Employees' Radiation Compensation Fund.
(c) APPLICATION OF SECTION 8131.—For the purposes of this title, the provision in section 8131 of title 5, United States Code, that provides that an employee required to appear as a party or witness in the prosecution of an action described in that section is in an active duty status while so engaged shall only apply to a covered employee as defined in section 201(5)(B).
SEC. 221. NUCLEAR EMPLOYEES' RADIATION COMPENSATION FUND.
(a) IN GENERAL.—To carry out this title, there is established in the Treasury of the United States the Nuclear Employees' Radiation Compensation Fund, which shall consist of—
(1) sums that are appropriated for it;
(2) amounts that are transferred to it from other Department of Energy accounts pursuant to section 225(a); and
(3) amounts that would otherwise accrue to it under this title.
(b) FUND USE.—Amounts in the Nuclear Employees' Radiation Compensation Fund are authorized to be used for the payment of compensation and other benefits and expenses authorized by this title and for payment of all expenses incurred in administering this title. Such funds are authorized to be appropriated to remain available until expended.
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(c) QUARTERLY DETERMINATIONS.—
(1) IN GENERAL.—Within 45 days of the end of every quarter of every fiscal year, the Secretary shall determine the total costs of benefits, administrative expenses, and other payments made from the Nuclear Employees' Radiation Compensation Fund during the quarter just ended; the end-of-quarter balance in the Fund; and the amount anticipated to be needed during the immediately succeeding two quarters for the payment of benefits and administrative expenses under this title.
(2) DETERMINATION IN LAST QUARTER.—Each cost determination made in the last quarter of the fiscal year under paragraph (1) shall show, in addition, the total costs of benefits and expenses and other payments from the Fund during the preceding twelve-month expense period and an estimate of the expenditures from the Nuclear Employees' Radiation Compensation Fund for the payment of benefits and expenses and other payments for each of the immediately succeeding two fiscal years.
SEC. 222. FORFEITURE OF BENEFITS BY CONVICTED FELONS.
(a) IN GENERAL.—Any individual convicted of a violation of section 1920 of title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefit under this title or under any other Federal or State workers' compensation Act, shall forfeit (as of the date of such conviction) any benefit such individual would otherwise be awarded to under this title for any covered illness for which the time of injury was on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary may take pursuant to the provisions of sections 8106 or 8129 of title 5, United States Code.
(b) LIMITATIONS.—
(1) IN GENERAL.—Notwithstanding any other provision of law (except as provided under paragraph (2)), no benefits under this title shall be paid or provided to any individual during any period during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to that individual's conviction of an offense that constituted a felony under applicable law. Such an individual shall not receive the benefits forfeited during such period of incarceration, after the period of incarceration ends.
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(2) EXCEPTION.—If an individual has one or more dependents as defined under section 8110(a) of title 5, United States Code, the Secretary may, during the period of incarceration, pay to these dependents a percentage of the benefits that would have been payable to such individual computed according to the percentages set forth in paragraphs (1) through (5) of section 8133(a) of title 5, United States Code.
(c) INFORMATION.—Notwithstanding the provision of section 552a of title 5, United States Code, or any other provision of Federal or State law, any agency of the United States Government or of any State (or political subdivision thereof) shall make available to the Secretary, upon written request, the names and Social Security account numbers of individuals who are confined in a jail, prison, or other penal institution or correctional facility under the jurisdiction of that agency, pursuant to the individuals' conviction of an offense that constituted a felony under applicable law, which the Secretary may require to carry out the provisions of this section.
SEC. 223. CIVIL SERVICE RETENTION RIGHTS.
In the event that a covered employee, as defined in section 201(5)(B), resumes employment with the Federal Government, the individual shall be entitled to the rights set forth in section 8151 of title 5, United States Code.
SEC. 224. ANNUAL REPORT.
The Secretary shall, at the end of each fiscal year, prepare a report with respect to the administration of this title.
SEC. 225. AUTHORIZATION OF APPROPRIATIONS.
(a) IN GENERAL.—There is authorized to be appropriated to the Department of Energy for deposit into the Nuclear Employees' Radiation Compensation Fund such sums as are necessary to carry out the purposes of this title, including the administration thereof. In addition, the Department is authorized, to the extent provided in advance in appropriations Acts, to transfer amounts to the Fund from other Department of Energy appropriations accounts, to be merged with amounts in the Fund and available for the same purposes.
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(b) COMPENSATION AND BENEFITS LIMITATION.—In any fiscal year, the Secretary of Labor shall limit the amount of the compensation and benefits payments under this title to an amount not in excess of the sum of the appropriations to the Nuclear Employees Radiation Compensation Fund and amounts made available by Department of Energy transfers to the Fund. Notwithstanding any other provision, if in any fiscal year the Secretary of Labor finds that estimates of amounts contained in reports pursuant to section 221(c)(1) for the payment of compensation, other benefits, and administrative activities authorized by this title will exceed the amounts in the Fund, the Secretary of Labor is required to reduce compensation and benefits payments to the extent necessary to make up any amounts by which benefits and other costs authorized by this title exceed the amount in the Fund calculated on a fiscal year basis.
(c) SECRETARY OF ENERGY REGULATIONS.—The Secretary of Energy, in consultation with the Secretary of Labor, shall promulgate regulations to implement this section within 120 days of enactment.
SEC. 226. REGULATIONS; REGULATORY AUTHORITY.
(a) IN GENERAL.—Not later than 120 days after the date of enactment of this title, the Secretary of Labor shall prescribe such rules and regulations as may be necessary for the administration and enforcement of this title.
(b) ADDITIONAL CRITERIA.—Additional criteria by which a claimant may establish the existence of a covered illness, as defined in subparagraph (A), (B), or (C) of section 201(7), may be specified in regulations issued by the Secretary, after consultation with the agency that contracts to administer this title.
SEC. 227. CONSTRUCTION.
References in this title to a provision of another statute shall be considered references to such provision, as amended and as may be amended from time to time.
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SEC. 228. CONFORMING AMENDMENTS.
(a) SECTION 1920.—Section 1920 of title 18, United States Code, is amended by inserting in the title ''or Energy employee's'' after ''Federal employee's'' and by inserting ''or the Energy Employees' Compensation Act'' after ''title 5''.
(b) SECTION 1921.—Section 1921 of title 18, United States Code, is amended by inserting in the title ''or Energy employees'' after ''Federal employees'' and by inserting ''or the Energy Employees' Compensation Act'' after ''title 5''.
(c) SECTION 1922.—Section 1922 of title 18, United States Code, is amended—
(1) by inserting in the title ''or Energy employees'' after ''Federal employees'';
(2) by inserting ''(a)'' before ''Whoever,'';
(3) by striking '', neglects,'' after ''willfully fails''; and
(4) inserting a new subsection as follows:
''(b) Whoever is charged with the responsibility for providing information pursuant to sections 302(b) and 302(c) of title III of the Energy Employees' Compensation Act and who willfully fails or refuses to provide this information, or knowingly provides false information, or induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under the Energy Employees' Compensation Act or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under that Act or any extension or application thereof, or regulations prescribed thereunder, shall be fined under this title or imprisoned not more than one year, or both.''.
SEC. 229. EFFECTIVE DATE.
This title is effective upon the date of its enactment.
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TITLE III—ASBESTOS COMPENSATION
Subtitle A—Establishment and Procedure
SEC. 301. ESTABLISHMENT OF THE OFFICE OF ASBESTOS COMPENSATION.
(a) ESTABLISHMENT OF PROGRAM; ADMINISTRATOR.—There is established in the Department of Labor the Office of Asbestos Compensation (OAC) to be headed by an Administrator. The Administrator shall be appointed by the President by and with the advice and consent of the Senate. The Administrator shall serve for a term of 10 years, and may be removed by the Attorney General only for good cause. The Administrator shall have authority to promulgate all procedural and substantive rules necessary to administer this title. All claims and other filings under this title shall be lodged with the office designated by the Administrator.
(b) EXCLUSIVE JURISDICTION.—Except as otherwise provided in this title, the OAC shall have exclusive jurisdiction over proceedings to determine if a claimant in Los Alamos, New Mexico, is entitled to compensation for an asbestos claim and the amount of such compensation. The foregoing shall not apply to any claim brought under any workers' compensation law or veterans' benefits program.
(c) MEDICAL DIRECTOR.—The Administrator shall appoint the Medical Director and may remove the Medical Director for good cause. The Medical Director shall, under the supervision of the Administrator, manage the medical review process under section 302 and shall have the authority to appoint or to contract for the services of claims examiners, physicians, and such other personnel as may be necessary or appropriate for the efficient conduct of the medical review process and to create the exceptional medical claims panel.
(d) ASBESTOS COMPENSATION FUND.—There is established in the OAC an Asbestos Compensation Fund for the purpose of providing payments to claimants in Los Alamos, New Mexico, under this title. The Administrator shall appoint the Trustee of the Asbestos Compensation Fund and may remove the Trustee for good cause.
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(e) OFFICE OF ADMINISTRATIVE LAW JUDGES.—There is established in the OAC an Office of Administrative Law Judges for the purpose of providing expedited administrative adjudication of asbestos claims pursuant to section 305. The Administrator shall have authority to appoint Administrative Law Judges on a temporary or emergency basis and to remove such judges for good cause.
(f) MEDICAL ADVISORY COMMITTEE.—The Administrator shall appoint a Medical Advisory Committee which shall periodically evaluate this title's medical review process and medical eligibility criteria. The Administrator shall set a term of appointment for members of the Medical Advisory Committee. The Committee shall make appropriate recommendations as and when it deems appropriate and shall submit an annual report to the Administrator and the Congress.
SEC. 302. MEDICAL ELIGIBILITY REVIEW.
(a) DETERMINATION OF ELIGIBILITY.—All claims when filed shall be immediately referred to the Medical Director. The Medical Director shall determine whether the claimant meets the requirements for medical eligibility in section 320 or the requirements for medical testing reimbursement in section 325.
(b) INFORMATION FOR MEDICAL REVIEW.—The Administrator shall issue rules for the expeditious conduct of the medical review process. Such rules at a minimum shall provide for the following:
(1) Submission of the following information where relevant and feasible: smoking history; occupational history; description of the circumstances, intensity, time, and duration of exposure; medical test results necessary for a decision as to whether an exposed person meets the requirements for one or more medically eligible categories under sections 320, 321, 322, 323, 324, or 325, including all of the supporting data for any pulmonary function tests on which the claimant relies (including all flow volume loops, spirographs, and any other tracings for any test that is performed). The claimant shall also provide such medical releases as the Administrator may require allowing the OAC to obtain any and all medical information relevant to the determination of medical eligibility.
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(2) The Medical Director may require additional noninvasive medical tests at the expense of the OAC if necessary for a determination of medical eligibility.
(c) PROCEDURES.—Upon receipt of a complete medical application, the Medical Director shall send notice to the claimant confirming the OAC's receipt of the claim. The Medical Director shall make an initial decision within 30 days of such receipt. If the application is initially denied, the claimant shall be so notified and, at the claimant's request, the application shall be immediately referred to—
(1) a review panel of 2 qualified physicians, with a third qualified physician available to resolve any disagreement between the initial 2 qualified physicians; or
(2) an exceptional medical claims panel.
The Medical Director shall be bound by a panel's decision. The rules shall also provide for the prioritization of claims, including enhanced priority for claimants who have mesothelioma, and set a time limit for a determination by the review panel.
(d) EXCEPTIONAL MEDICAL CLAIMS.—The rules of the medical review process shall provide the claimant with an opportunity to apply to an exceptional medical claims panel for a determination of whether the exposed person meets the requirements under section 320(b) for an exceptional medical claim for any category. This opportunity shall be provided both at the initial filing of a claim and after a claim has been denied under this subsection. The exceptional medical claims panel shall decide whether the claimant qualifies as an exceptional medical claim within 30 days of receipt of the claim. This time limit may be extended by the Administrator only for good cause. The Medical Director shall be bound by the decision of the exceptional medical claims panel. The Medical Director shall issue a final denial, along with a brief statement of reasons, if the claimant is found ineligible following an opportunity to submit the claim to a medical review panel and an exceptional medical claims panel.
(e) MEDICAL EXAMINATIONS.—Assistance shall be provided to employees and claimants in connection with this title, including assistance in securing medical testing and diagnostic services necessary to determine the existence of a covered illness. In carrying out this subsection, the examination of workers who believe they have ailments related to the environmental conditions at their places of work in Los Alamos shall be conducted free of charge at the Veterans' Administration hospital nearest to their place of residence and such workers shall receive free treatment for ailments and illnesses identified by such physicians as potentially work-related. Such workers shall also receive reimbursement for travel and lodging expenses.
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(f) MONITORING ACCURACY OF DETERMINATIONS.—The Medical Director shall establish audit and personnel review procedures for evaluating the accuracy of medical eligibility determinations, including both erroneous approvals and erroneous denials.
(g) OPT-OUT.—After receiving a certificate of eligibility, a claimant may opt out of settlement proceedings provided for under sections 303 and 304 and elect to file suit in any State or Federal court of competent jurisdiction.
SEC. 303. ELECTION OF ADMINISTRATIVE PROCESS; SETTLEMENT OFFERS.
(a) NAMING AND NOTIFICATION OF DEFENDANTS.—Medically eligible claimants, other than those who elect to file suit in court under section 302(f), shall name defendants. Defendants shall receive notice from the Administrator.
(1) IDENTIFICATION OF DEFENDANTS ASSOCIATED WITH WORK SITES.—At the claimant's request, the Administrator will provide information concerning any person in Los Alamos, New Mexico who may have provided asbestos or asbestos-containing products or materials to work sites named by the claimant and when such asbestos or asbestos-containing products or materials may have been provided as well as the time such products or materials were located at the named work sites. The Administrator may implement this paragraph through rulemaking.
(2) VERIFIED PARTICULARIZED STATEMENT.—Within such time after receiving a certificate of medical eligibility as may be provided by rule, a claimant shall provide, with respect to each person that the claimant alleges is responsible for the injury claimed, a verified particularized statement of the basis for the allegation that the person is or may be responsible for the injury. The particularized statement shall include such information as the Administrator may require for the purpose of providing the defendant with a reasonable basis for making an offer of settlement. The claimant may incorporate by reference any information required by this paragraph that may already have been submitted to the OAC.
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(3) NOTICE.—Upon finding that the claimant's particularized statement meets the requirements of paragraph (2), the Administrator shall provide notice to each named defendant. The defendant shall at the same time be furnished with a copy of all particularized statements submitted by the claimant under paragraph (2) and, subject to reasonable rules protecting the confidentiality of information provided by the claimant, a copy of all information submitted by the claimant, records and other information obtained by the Medical Director relating to the claim and the results of any medical tests administered at the direction of the Medical Director. Any defendant may provide any information relevant to the amount of any recommended settlement under subsection (b), including information regarding product identification, exposure, and damages.
(4) THIRD-PARTY PRACTICE.—Defendants may assert third-party claims in accordance with rules adopted by the Administrator. Third-party claimants shall provide a verified particularized statement, meeting the requirements of paragraph (2), substantiating the allegation that the third-party defendant may be liable to the third-party plaintiff, wholly or in part, for the claimant's injury. For good cause shown and subject to reasonable limitations, an Administrative Law Judge may allow discovery for the purpose of obtaining information necessary to allow the claimant or any third-party plaintiff to provide a particularized statement under paragraph (2) or this paragraph.
(b) SETTLEMENT OFFERS; OFFER OF COMPENSATION BY THE TRUSTEE.—
(1) MANDATORY OFFER FROM DEFENDANTS.—Within 21 days following the naming of all defendants, each defendant shall provide to the claimant in writing a good faith settlement offer, and shall provide a copy to the Trustee.
(2) MANDATORY OFFER FROM ASBESTOS COMPENSATION FUND.—Within 10 days of receiving all of the defendants' offers, the Trustee shall make an offer of compensation to the claimant, based on a compensation grid which shall be established and regularly revised by rule.
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SEC. 304. CLAIMANT'S CHOICE OF FORUM.
(a) IN GENERAL.—The claimant shall notify each defendant and the Trustee whether the claimant accepts or rejects the defendant's settlement offer under section 303(b)(1). If the claimant accepts any such offer, or any other settlement offer, the Trustee's offer of compensation shall be automatically reduced by the amount of such settlements.
(b) NOTICE.—The claimant shall notify the Trustee and any defendant within 60 days whether the claimant accepts or rejects an offer that has been provided pursuant to section 303(b)(1) or 303(b)(2).
(c) ORPHAN SHARES.—The Trustee shall not make an offer to the claimant under section 303(b) if no solvent defendant has been named.
(d) ACCEPTANCE.—If the claimant accepts the Trustee's offer of compensation, the Trustee shall assume the claim. The Trustee may accept any defendant's settlement offer under section 303(b)(1) or may prosecute the claim against any defendant as provided in section 305, or may prosecute the claim in any State or Federal court.
(e) REJECTION.—If the claimant rejects any defendant's settlement offer and also rejects the Trustee's offer of compensation, the claimant may elect an administrative adjudication under section 305 or opt out of further administrative proceedings and file suit in a State or Federal court.
SEC. 305. ADMINISTRATIVE ADJUDICATION.
If a claimant elects adjudication under this section, the OAC shall assign an Administrative Law Judge to conduct a hearing on the record and to determine whether compensation is to be provided and the amount of such compensation. The Administrative Law Judge shall adhere to the law applicable to asbestos adjudications as contained in sections 310 through 318. The Administrative Law Judge shall issue a decision, containing findings of fact and conclusions of law, as expeditiously as possible, but not later than 90 days after the case is assigned.
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SEC. 306. APPEALS; JUDICIAL REVIEW.
Any person aggrieved by a final decision of the Administrator under section 305 or a final denial by the Medical Director under section 302, may seek review of that decision or denial in the United States Court of Federal Claims, which shall uphold the decision or denial if it is supported by substantial evidence and is not contrary to law. A decision by the Medical Director that a claimant has an eligible medical condition is not a final decision under this section. Decisions of the United States Court of Federal Claims are appealable, without regard to the amount in controversy or the citizenship of the parties, to a United States Court of Appeals for a judicial circuit.
SEC. 307. GATHERING AND MAINTENANCE OF INFORMATION.
(a) PRODUCT IDENTIFICATION.—The OAC shall collect and regularly update information regarding product identification and shall make such information publicly available. The data base maintained by the OAC under this section is for information purposes only, and the presence of information in that database shall not lead to any presumption.
(b) SETTLEMENTS, JUDGMENTS, AND AWARDS.—The OAC shall collect data on settlements, judgments, and awards in connection with asbestos claims and shall make such data publicly available. The OAC may require this data to be reported in such form as it may prescribe.
(c) SUBPOENA POWER.—The OAC may compel, by subpoena or other appropriate process, information from any person regarding past settlements or product identification for purposes of developing and maintaining a compensation grid under section 303(b)(2) and maintaining a database for purposes of naming defendants under section 303(a)(1). In addition, the subpoena power under this subsection may be used by the OAC in order to secure financial information from any defendant.
(d) CONFIDENTIALITY.—Any information or documentary material concerning settlements which is specific to a company, law firm, or plaintiff that is provided to the OAC pursuant to subsection (b) or (c), whether by subpoena or otherwise, shall be exempt from disclosure under section 552 of title 5, United States Code, and the disclosure of such information by the OAC or any person is prohibited.
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SEC. 308. LEGAL ASSISTANCE PROGRAM.
(a) IN GENERAL.—The OAC shall implement a legal assistance program for the purpose of providing legal representation to claimants. The OAC shall maintain a roster of qualified counsel who agree to provide services to claimants under rules, practices, and procedures established by the Administrator.
(b) FREE CHOICE OF COUNSEL.—Claimants shall not be required to use counsel provided or recommended by the OAC, but shall retain their right to be assisted by counsel of their choice.
(c) LEGAL ASSISTANCE.—The OAC shall adopt rules concerning the reasonableness of fees, and all legal representation of persons asserting asbestos claims shall comply with such rules.
SEC. 309. TIME LIMITS FOR DISPOSITIONS.
(a) IN GENERAL.—If the Medical Director fails to meet the time limits for an initial decision provided under this title with respect to more than 30 percent of claims, then the Administrator shall take such action as may be necessary, including increasing staff and administrative assessments under section 330, to ensure compliance with such time limit with regard to at least 70 percent of claims.
(b) NO OFFER.—If the Trustee fails to make an offer within 120 days after the Administrator's receipt of a complete application under section 302 with respect to more than 30 percent of claims, then the Administrator shall take such action as may be necessary, including increasing staff and administrative assessments under section 330, to ensure compliance with such time limit with regard to at least 70 percent of claims.
(c) DUTIES.—The duties established by subsections (a) and (b) shall be nondiscretionary and enforceable by an order of mandamus from any judge of the United States Court of Federal Claims.
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(d) EXCEPTIONS.—The Administrator may by rule establish exceptions to the time limits in this section. Such rules shall take into consideration the complexity of the case, the extent to which delays are attributable to the fault or neglect of the claimant or the claimant's attorney and other factors that are beyond the control of the OAC.
Subtitle B—Law Applicable to Asbestos Adjudications
SEC. 310. MEDICAL ELIGIBILITY.
A claimant may recover compensation for damages caused by an eligible medical condition only if the claimant presents a certificate of medical eligibility establishing its existence. A certificate of medical eligibility shall be conclusive unless rebutted by clear and convincing evidence. However, a certificate of medical eligibility shall not be conclusive as to allegations regarding exposure to asbestos or when medical eligibility is established pursuant to section 323(b).
SEC. 311. DAMAGES.
A claimant who establishes an eligible medical condition shall be entitled to compensatory damages to the extent provided by applicable law, including damages for emotional distress, pain and suffering, and medical monitoring where authorized. Such damages shall not include punitive damages or damages solely for enhanced risk of a future condition, except as provided in section 308(d).
SEC. 312. STATUTE OF LIMITATIONS OR REPOSE.
No defense to an asbestos claim based on a statute of limitations or statute of repose, laches, or any other defense based on the timeliness of the claim shall be recognized or allowed, unless such claim was untimely as of the date of enactment of this title. No claim shall be deemed to have accrued until and unless the claimant's condition would have qualified as an eligible medical condition under section 321, 322, 323, or 324.
SEC. 313. COME BACK RIGHTS.
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Notwithstanding any other provision of law, a judgment or settlement of an asbestos claim for a nonmalignant disease shall not preclude a subsequent claim with respect to the same exposed person for an eligible medical condition pursuant to section 320(b), 322, 323, or 324.
SEC. 314. CLASS ACTIONS, AGGREGATIONS OF CLAIMS AND VENUE.
(a) CONSOLIDATIONS.—No joinder of parties, aggregation of claims, consolidation of actions, extrapolation, or other device to determine multiple asbestos claims on a collective basis shall be permitted without the consent of all parties, except as provided in subsection (b) or unless the court, pursuant to an exercise of judicial authority to promote the just and efficient conduct of asbestos civil actions, orders such procedures, including the transfer for consolidation, to determine multiple asbestos claims on a collective basis.
(b) CLASS ACTION SUITS.—In any civil action asserting an asbestos claim, a class action may be allowed without the consent of all parties if the requirements of Rule 23, Federal Rules of Civil Procedure are satisfied.
(c) VENUE.—At the election of the claimant, an asbestos claim may be filed in any jurisdiction where the claimant is alleging that the claimant was exposed to asbestos or where the claimant is currently domiciled.
(d) REMOVAL.—Any party in a civil action that involves a violation of subsection (a), (b) or (c) of this section may remove such action to an appropriate district court of the United States. The district courts of the United States shall have jurisdiction of all civil actions removed pursuant to this section without regard to diversity of citizenship or amount in controversy.
(e) ADMINISTRATIVE PROCEEDINGS.—In any proceeding under section 105, the Administrative Law Judge may order adjudication of claims on a collective basis.
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SEC. 315. JOINT AND SEVERAL LIABILITY.
This title shall not be construed to limit joint and several liability under applicable Federal or New Mexico law. In any core claim that is successfully asserted against a defendant, such defendant shall be held jointly and severally liable for full compensatory damages to the claimant notwithstanding any contrary provision of law.
SEC. 316. CORE CLAIMS.
In any core claim, the issues to be decided shall be limited to—
(1) whether the exposed person with respect to whom a claim is made has or had an eligible medical condition;
(2) whether the exposure of the exposed person to the product of the defendant was a substantial contributing factor in causing that eligible medical condition; and
(3) the amount of compensation to be provided.
SEC. 317. SPECIAL RULES APPLICABLE TO SECTION 305 ADJUDICATIONS.
(a) APPLICABLE LAW.—Unless otherwise provided in this title, in claims based on New Mexico law, the Administrative Law Judge shall, with respect to each defendant, apply the substantive law of New Mexico.
(b) FULL COMPENSATORY DAMAGES IN WRONGFUL DEATH CASES.—Notwithstanding any contrary provision of New Mexico law, full compensatory damages, including damages for noneconomic loss, shall be awarded in wrongful death claims involving mesothelima. In all other cases, damages for noneconomic loss may be awarded to the extent that they are available pursuant to applicable law.
(c) PENALTY FOR INADEQUATE OFFER.—In any proceeding against a defendant by a claimant under section 305, and in any proceeding by the Trustee, if the final offer made by any defendant is less than the share of the total liability awarded against that defendant, a penalty shall be added to the award equal to 100 percent of the difference between the defendant's settlement offer under section 303(b) and the lesser of—
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(1) the defendant's share of the offer made by the Trustee under section 303(b); or
(2) the defendant's share of the award made under section 305.
(d) PUNITIVE DAMAGES.—Punitive damages may be awarded against a defendant if the claimant establishes by clear and convincing evidence that the conduct carried out by the defendant with a conscious, flagrant indifference to the rights or safety of others was the proximate cause of the harm that is the subject of the asbestos claim. Punitive damages may not exceed 3 times the amount of the award pursuant to a section 305 adjudication plus any penalties added to that award pursuant to subsection (c).
SEC. 318. SPECIAL RULES APPLICABLE TO THE TRUSTEE.
In an action by the Trustee as assignee of the claimant, the award under section 304(c) shall include compensatory damages for the claimant's injury and all punitive damages under section 317(d), any penalties for inadequate offers by defendants, and the Trustee's costs in establishing the claim, including reasonable attorneys' fees and expenses and an allowance for interest on the amount paid by the Fund to the claimant under section 304. Interest shall be calculated from the time of such payments, and in accordance with subtitle D. All economic and noneconomic damages recovered by the Fund in excess of 200 percent of the amount paid to the claimant pursuant to section 304 and all punitive damages under section 317(d) shall be paid to the settling claimant. The fact that the claimant has accepted an offer of compensation by the Trustee, and the amount and terms of such offer, shall not be admissible in any adjudication of a claim brought by the Trustee against any defendant.
Subtitle C—Eligible Medical Categories
SEC. 320. ELIGIBLE MEDICAL CATEGORIES.
(a) IN GENERAL.—The eligible medical categories under this title are asbestos-related nonmalignant conditions with impairment, asbestos-related mesothelioma, asbestos-related lung cancer, and asbestos-related other cancer.
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(b) ESTABLISHING EXISTENCE.—A claimant may establish the existence of an eligible medical condition either by demonstrating that the exposed person meets the standard criteria provided in sections 321, 322, 323, and 324 or by demonstrating to an exceptional medical claims panel, through reliable evidence, that the exposed person has an asbestos-related impairment that is substantially comparable to the condition of an exposed person who would satisfy the requirements of a given medical category. The Administrator, after consultation with the Medical Advisory Committee, may adopt rules consistent with this section to assure consistency and efficiency in the designation of claims as exceptional medical claims.
SEC. 321. ASBESTOS-RELATED NONMALIGNANT CONDITIONS WITH IMPAIRMENT.
(a) IN GENERAL.—The standard criteria for asbestos-related nonmalignant conditions with impairment shall include—
(1) clinical evidence of asbestosis,
(2) pathological evidence of asbestosis, or
(3) evidence of bilateral pleural thickening with impairment.
(b) OBSTRUCTIVE LUNG DISEASE.—A claimant shall not be disqualified from compensation under this category solely because an exposed person who otherwise meets the requirements for impairment has a reduced FEV1/FVC ratio indicating obstructive lung disease. In that event, the exceptional medical claims panel shall determine, giving due regard to the evidence that any impairment is related to obstructive disease and taking into consideration all available evidence, whether an asbestos-related restrictive disease substantially contributes to the impairment of the exposed person. Such a contribution shall be presumed if the panel concludes, based upon the findings of a certified B-reader, that the exposed person's chest x-ray is ILO Grade 2/1 or more.
SEC. 322. ASBESTOS-RELATED MESOTHELIOMA.
The standard criteria for asbestos-related mesothelioma shall include a diagnosis by a qualified physician of a malignant mesothelioma caused or contributed to by exposure to asbestos with a primary site in the pleura, peritoneum, or like tissue, or reasonably equivalent clinical diagnosis in the absence of adequate tissue for pathological diagnosis.
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SEC. 323. ASBESTOS-RELATED LUNG CANCER.
(a) IN GENERAL.—The standard criteria for asbestos-related lung cancer shall include—
(1) a diagnosis by a qualified physician of lung cancer that the physician concludes was caused or contributed to by exposure to asbestos;
(2) a latency period of at least 10 years; and
(3) either—
(A) evidence of asbestosis or bilateral pleural thickening with impairment sufficient to meet the requirements of section 321 or to qualify as an exceptional medical claim under section 320(b); or
(B) chest x-rays which, in the opinion of a certified B-reader, demonstrate asbestos-related bilateral pleural plaques or thickening, and 7.5 equivalent-years of exposure to asbestos-containing materials in employment regularly requiring work in the immediate area of visible asbestos dust.
(b) HISTORY OF SMOKING.—If a finding of asbestos-related lung cancer is made pursuant to paragraph (3)(B) and the exposed person has a substantial history of smoking, which shall be defined by rule, the claimant shall be medically eligible for compensation, but the finding of asbestos-related lung cancer shall not be conclusive as to causation for purposes of section 310.
SEC. 324. ASBESTOS-RELATED OTHER CANCER.
The standard criteria for asbestos-related other cancer shall include a diagnosis by a qualified physician of a malignant primary tumor of the larynx, oral-pharynx, gastro-intestinal tract, or stomach, caused or contributed to by exposure to asbestos, together with evidence of a condition sufficient to meet the requirements of section 321 or to qualify as an exceptional medical claim under section 320(b).
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SEC. 325. MEDICAL TESTING REIMBURSEMENT.
(a) LEVEL A.—A claimant with at least 4 equivalent-years of heavy exposure to asbestos, whose chest x-ray shows either small irregular opacities of ILO Grade 1/0 or bilateral pleural thickening of ILO Grade B/2, shall be eligible for reimbursement of 100 percent of out-of-pocket expenses for any medical testing required under section 302, up to a ceiling of $1,500. Level A claimants shall be eligible at 3 year intervals for similar reimbursement of future medical testing expenses for up to 2 additional occasions. Level A reimbursements shall be treated as administrative expenses of the OAC and paid for by defendants under section 401.
(b) LEVEL B.—The Administrator shall, subject to the availability of appropriated funds, reimburse up to 100 percent of the out-of-pocket expenses for any medical testing required under section 102, up to a ceiling established by rule, with the approval of the Trustee, for any claimant with at least one equivalent-year of heavy exposure to asbestos who meets the medical but not the exposure requirements of Level A. Level B claimants may be eligible for similar reimbursement of future medical testing expenses for up to 2 additional occasions at least 3 years apart. The Administrator shall adjust periodically the amount of the cash payment to reflect changes in medical costs. Level B reimbursements shall be treated as administrative expenses of the OAC and paid for by defendants under section 401.
(c) CERTIFIED LABS.—The Administrator is authorized to establish a program for the certification of laboratories to provide medical testing under this section.
(d) EXPOSURE VERIFICATION.—The Administrator shall establish audit and other procedures to provide reasonable assurance that statements concerning exposure made by claimants seeking medical testing reimbursement under this section are accurate.
Subtitle D—Funding
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SEC. 330. ASSESSMENT AND ENFORCEMENT.
(a) RULES.—The Administrator shall adopt rules for calculating and collecting from defendants all costs associated with the determination of claims and payments to claimants.
(b) TRUSTEE.—The Trustee shall have authority to bring an action in the district courts of the United States to enforce any obligation imposed on any person by this section and such courts shall have exclusive jurisdiction of such actions without regard to the amount in controversy or citizenship of the parties. The district court shall not entertain any defense other than lack of jurisdiction in any action by the Trustee under this subsection.
(c) TRUSTEE PREVAILS.—In any action under subsection (b) in which the Trustee prevails, the Trustee shall be entitled to costs, including reasonable attorneys' fees, and interest on any unpaid amount.
(d) JUDICIAL REVIEW.—A defendant may challenge the legality or amount of any assessment only by seeking judicial review in the United States Court of Federal Claims after paying the disputed amount. If successful, the defendant shall be awarded interest.
SEC. 331. FISCAL AND FINANCIAL MANAGEMENT OF THE ASBESTOS COMPENSATION FUND.
(a) APPLICABILITY OF CREDIT REFORM ACT PRINCIPLES; FISCAL MANAGEMENT RULES.—Except as provided in this section, the operations of the Fund related to settlement payments under section 304, and associated recoveries from defendants, shall be governed by the Federal Credit Reform Act of 1990 (2 U.S.C. 661 et seq.), notwithstanding the status of the Fund as a governmental entity. The Administrator shall promulgate rules, approved by the Office of Management and Budget, for the fiscal management of the Fund. Such rules and their application shall not be subject to judicial review and shall, as regards payments under section 304—
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(1) provide all reasonable assurance that, over an appropriate time period, the subsidy rate associated with the net litigation risk of the Fund is zero;
(2) provide all reasonable assurance that, in any given year, the subsidy rate associated with the net litigation risk of the Fund is no more than 2 percent;
(3) provide for the allocation of receipts from defendants to various Fund accounts, including the Fund's financing account, program account, and an account for salaries and expenses (which shall include litigation costs); and
(4) provide specific instructions for the Trustee to reduce payments by the Fund when necessary to meet the solvency requirements of this subsection.
(b) FINANCING OF THE FUND, SETTLEMENT PAYMENTS TO CLAIMANTS.—
(1) CREDIT REFORM PRINCIPLES.—The Fund is authorized to receive from defendants, as offsetting receipts, any amounts related to settlements or judgments, including damages, interest, litigation costs, specific administrative costs that may be required by the Administrator through rulemaking, and interest costs incurred by the Fund in connection with payment of settlement offers made under section 103. Amounts received from defendants as interest shall be sufficient to pay interest costs due to the United States Treasury from the financing account, plus the subsidy costs of the program account, provided that the latter amounts may not exceed 3 percent of the amount of any settlement or award. Recoveries on a claim by the Fund in excess of the settlement amount paid to the claimant and other costs of the Fund which are not paid to the claimant under section 209 shall be available to the program account as a reduction to subsidy costs in the current or any subsequent year.
(2) AUTHORITY.—The program account shall have permanent indefinite authority, not subject to further appropriation, to transfer funds to the finance account in accordance with principles of the Credit Reform Act.
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SEC. 332. AUTHORIZATION FOR APPROPRIATIONS AND OFFSETTING COLLECTIONS.
(a) IN GENERAL.—There are authorized to be appropriated—
(1) to the OAC such sums as may be required to perform responsibilities under this title;
(2) to the United States Court of Federal Claims, such sums as may be required to carry out its responsibilities under this title; and
(3) to the OAC an amount not to exceed $100 million, for a one-time loan to the Fund in connection with startup expenses, such loan to be repaid by the Fund with interest;
The total of appropriations provided under this subsection in the first year after the date of enactment not exceed $250 million and in any subsequent year not exceed $150 million.
(b) OFFSETTING COLLECTIONS OF ADMINISTRATIVE ASSESSMENTS.—The OAC is authorized to receive and to expend in any year, as offsetting collections, all administrative assessments or prepaid administrative assessments and all costs and penalties paid to it.
Subtitle E—Transition
SEC. 335. APPLICABILITY; TRANSITIONAL CIVIL ACTIONS.
(a) IN GENERAL.—This title shall be effective upon its date of enactment with respect to any civil action asserting an asbestos claim in which trial has not commenced as of that date.
(b) PENDING CLAIM.—A claimant with a pending civil claim on the date of enactment shall not be required to obtain a certificate of medical eligibility or otherwise exhaust the procedures set forth in subtitle A if trial commences within 6 months of the date of enactment of this title. This 6-month period may be extended by the Attorney General for up to an additional 6 months if required for the orderly implementation of this title, and after reporting to the Congress the reasons for any such extension.
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(c) RIGHT TO SUE LETTER.—If a claimant with—
(1) a pending civil action on the date of enactment of this title, and
(2) a scheduled trial date within one year after the date of enactment of this title
does not receive an initial decision on medical eligibility within the time period prescribed in section 302(c), the claimant may request a right-to sue letter from the Administrator at any time prior to the issuance of that initial decision. If the Attorney General determines that the 6-month period in subsection (b) should be extended, the one-year period in the preceding sentence shall be similarly extended. The Administrator shall issue a right-to-sue letter or an initial decision under section 102 within 10 days following the receipt of the claimant's request. A claimant who receives a right-to-sue letter may assert the claimant's asbestos claim in any competent forum notwithstanding section 301(b).
(d) CLAIM IN ANOTHER FORUM.—Any claimant who asserts his claim in a forum other than the OAC under subsections (b) or (c) must demonstrate that the exposed person has qualified for medical eligibility under section 320, 321, 322, 323, 324, or 325.
Subtitle F—Definitions
SEC. 340. DEFINITIONS.
In this title:
(1) ASBESTOS CLAIM.—The term ''asbestos claim'' means any claim for damages or other relief, arising out of, based on, or related to the health effects of occupational exposure to asbestos, including any claim for personal injury, death, mental or emotional injury, risk of disease or other injury, or the costs of medical monitoring or surveillance, and including any claim made by or on behalf of any exposed person or any representative, spouse, parent, child, or other relative of any exposed person. The term does not include any claim for workers' compensation benefits, or any claim by an employer or insurer for reimbursement from a third-party for benefits paid under a workers' compensation plan, or any claim for benefits under a veterans' benefits program.
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(2) ASBESTOS TRUST.—The term ''asbestos trust'' means a court-supervised trust established to resolve asbestos claims arising directly or indirectly from exposure to asbestos or asbestos-containing products, including a trust created pursuant to the bankruptcy laws of the United States or Rule 23 of the Federal Rules of Civil Procedure.
(3) CERTIFICATE OF MEDICAL ELIGIBILITY.—The term ''certificate of medical eligibility'' means a certificate issued to a claimant pursuant to this title certifying that an exposed person meets the requirements of one or more eligible medical categories or qualifies as an exceptional medical claim.
(4) CERTIFIED B-READER.—The term ''certified B-reader'' means an individual qualified as a ''final' or ''B-reader'' under 42 C.F.R. 37.51(b) (1997) (and any subsequent revisions thereof) whose certification is current.
(5) CHEST X-RAYS.—The term ''chest x-rays'' means chest radiographs taken in at least 2 views (Posterior-Anterior and Lateral) and graded quality 1 for reading according to the criteria established by the ILO. If the claimant is unable to provide quality 1 chest x-rays because of death or because of an inability to have new chest x-rays taken, chest x-rays graded quality 2 will be acceptable.
(6) CIVIL ACTION.—The term ''civil action'' means any action, lawsuit, or proceeding in any New Mexico, Federal, or tribal court, but does not include—
(A) a criminal action; or
(B) an action relating to New Mexico or Federal workers' compensation laws, or a proceeding for benefits under any veterans' benefits program.
(7) CLAIMANT.—The term ''claimant'' means any exposed person in Los Alamos, New Mexico, or the person's legal representative, and any relative of an exposed person or their legal representative, who asserts an asbestos claim.
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(8) CLINICAL EVIDENCE OF ASBESTOSIS.—The term ''clinical evidence of asbestosis'' means a diagnosis of pulmonary asbestosis by a qualified physician based on the minimum objective criteria of—
(A) Chest x-rays for which a B-reader report is furnished showing small irregular opacities of ILO Grade 1/0 and pulmonary function testing and physical examination that show either—
(i) FVC <80% of predicted value with FEV1/FVC 75% (actual value); or
(ii) TLC <80% of predicted value, with either DLCO 76% of predicted value or bilateral basilar crackles, and also the absence of any probable explanation for this DLCO result or crackles finding other than the presence of asbestos lung disease; or
(B) Chest x-rays for which a B-reader report is furnished showing small irregular opacities of ILO Grade 1/1 or greater and pulmonary function testing that shows either—
(i) FVC <80% of predicted value with FEV1/FVC 72% (actual value) or, if the individual tested is at least 68 years old at the time of the testing, with FEV1/FVC 65% (actual value); or
(ii) TLC <80% of predicted value.
(9) COMPENSATORY DAMAGES.—The term ''compensatory damages'' means damages awarded for economic loss, such as medical expenses, as well as noneconomic loss. Noneconomic loss includes subjective, nonpecuniary loss, such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, and loss of consortium.
(10) CORE CLAIM.—The term ''core claim'' means an asbestos claim against a defendant who either—
(A) manufactured any asbestos-containing product which released asbestos fibers to which the exposed person was exposed, and paid out $50,000,000 in respect of such claims cumulatively over the 10 year period preceding the filing of the claim; or
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(B) was not a manufacturer but paid out $100,000,000 in respect of such claims cumulatively over the 10 year period preceding the filing of the claim; provided that the alleged liability is not based upon the control or ownership of property.
(11) DEFENDANT.—The term ''defendant'' means any person in Los Alamos, New Mexico, who is or may be responsible for the asbestos-related condition of the exposed person and who is so notified by the Administrator pursuant to subtitle A. The term does not include—
(A) an asbestos trust in existence as of the date of enactment of this title unless the trust elects to be covered by this title under section 345(b); or
(B) the United States Government or the government of New Mexico.
(12) DLCO.—The term ''DLCO'' means single-breath diffusing capacity of the lung (carbon monoxide), which is a measure of the volume of carbon monoxide transferred from the alveoli to blood in the pulmonary capillaries for each unit of driving pressure of the carbon monoxide.
(13) EQUIVALENT-YEAR.—The term ''equivalent-year'' means a measure of exposure to asbestos adjusted to reflect varying exposure levels typical of different occupations. Each year of exposure in which an exposed person's primary occupation involved the direct installation, repair, or removal of asbestos-containing products, shall count as one year. Each year of such occupational exposure in which the exposed person's primary occupation involved either the direct manufacture of asbestos-containing products using raw asbestos fiber or the direct installation, repair, or removal of asbestos-containing products shall count as 2 years. Each year of exposure in occupations not described above shall count as one-half year.
(14) EVIDENCE OF BILATERAL PLEURAL THICKENING WITH IMPAIRMENT.—The term ''evidence of bilateral pleural thickening with impairment'' means a diagnosis of bilateral pleural thickening by a qualified physician based on the minimum objective criteria of either—
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(A) Chest x-rays for which a B-reader report is furnished showing bilateral pleural thickening of ILO Grade B/2 with pulmonary function testing and physical examination that show either—
(i) FVC <80% of predicted value with FEV1/FVC 75% (actual value); or
(ii) TLC <80% of predicted value, with either DLCO 76% of predicted value or bilateral basilar crackles, and also the absence of any probable explanation for this DLCO result or crackles finding other than the presence of asbestos lung disease; or
(B) Chest x-rays for which a B-reader report is furnished showing bilateral pleural thickening of ILO Grade C/2 or greater; and pulmonary function testing that shows either—
(i) FVC <80% of predicted value with FEV1/FVC 72% (actual value) or, if the individual tested is at least 68 years old at the time of the testing, with FEV1/FVC 65% (actual value); or
(ii) TLC <80% of predicted value.
(15) EXPOSED PERSON.—The term ''exposed person'' means any person who has been exposed in Los Alamos, New Mexico to asbestos or to asbestos-containing products.
(16) FEV1.—The term ''FEV1'' means forced expiratory volume (1 second), which is the maximal volume of air expelled in one second during performance of the spirometric test for forced vital capacity (FVC).
(17) FUND.—The term ''Fund'' means the Asbestos Compensation Fund.
(18) FVC.—The term ''FVC'' means forced vital capacity, which is the maximal volume of air expired with a maximally forced effort from a position of maximal inspiration.
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(19) ILO.—The term ''ILO'' means the International Labour Organization.
(20) ILO GRADE.—The term ''ILO grade'' means the radiological ratings for the presence of lung or pleural changes by chest x-ray as established from time to time by the ILO.
(21) LATENCY PERIOD.—The term ''latency period'' means the period from the date of the exposed person's first exposure to asbestos or an asbestos-containing product to the date of manifestation of the condition claimed.
(22) LUNG CANCER.—The term ''lung cancer'' means a primary malignant bronchogenic tumor, of any cell type, caused or contributed to by exposure to asbestos.
(23) MANIFESTATION.—The term ''manifestation'' means either the date of the actual diagnosis of the condition claimed, or the date upon which the clinical records and available tests indicate that the condition could reasonably have been diagnosed by a qualified physician.
(24) NET LITIGATION RISK.—The term ''net litigation risk'' means the risk to the Asbestos Compensation Fund that amounts paid out to claimants, plus associated interest and litigation expenses, will exceed amounts recovered from defendants, expressed as a percentage of sums expended, and estimated for a specific cohort of transactions. Losses on particular claims are netted against excess recoveries on other claims.
(25) OAC.—The term ''OAC'' means the Office of Asbestos Compensation.
(26) OCCUPATIONAL HISTORY.—The term ''occupational history'' means a listing of all employment positions, providing for the dates and location of employment, the employer, and a description of job responsibilities and activities.
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(27) PARTY.—The term ''party'' does not include the United States Government or the government of New Mexico.
(28) PATHOLOGICAL EVIDENCE OF ASBESTOSIS.—The term ''pathological evidence of asbestosis'' means diagnosis of pulmonary asbestosis by a qualified physician based on a finding that more than one representative section of lung tissue otherwise uninvolved with any other process (e.g., cancer or emphysema) demonstrates a pattern of peribronchiolar or parenchymal scarring in the presence of characteristic asbestos bodies, and also that there is no other more likely explanation for the presence of the fibrosis.
(29) PERSON.—The term ''person'' means an individual, trust, firm, corporation, association, partnership, or joint venture. The term does not include—
(A) an asbestos trust in existence as of the date of enactment of this title unless the trust elects to be covered by this title under section 345(b); or
(B) the United States Government or the government of New Mexico.
(30) PHYSICIAN.—The term ''physician'' means a medical doctor or doctor of osteopathy currently licensed to practice medicine in any State who has not, within the 5-year period prior to the date of enactment of this title, spent more than one half of the doctor's professional time, or derived more than one-half of the doctor's professional income, either annually or in total, either reviewing or testifying in any forum on medical-legal issues related to asbestos.
(31) PREDICTED VALUE.—The term ''predicted value'' means a published reference to the normal breathing capacity of healthy populations based on age, height, and gender, as approved by the Medical Director, pursuant to a rule, issued within 120 days of the date of enactment. For the purposes of this title, the use of any published, predicted values that are generally accepted in the medical community shall be acceptable and such values may not be adjusted for race.
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(32) PULMONARY FUNCTION TESTING.—The term ''pulmonary function testing'' means tests for forced vital capacity, lung volume, and diffusing studies using equipment, tests and standards generally accepted in the medical community, as approved by the Medical Director, pursuant to a rule, issued within 120 days of enactment of this title. Such pulmonary function test shall not be adjusted for race.
(33) PUNITIVE DAMAGES.—The term ''punitive damages'' means damages, in addition to compensatory damages, awarded against any person to punish past conduct or deter that person, or others, from engaging in similar conduct in the future.
(34) QUALIFIED PHYSICIAN.—The term ''qualified physician'' means, with respect to a diagnosis or other medical judgment or procedure under this title, an internist, pulmonary specialist, pathologist, radiologist, oncologist, or specialist in occupational medicine with an appropriate subspecialty, as appropriate, who is certified by the relevant medical specialty board.
(35) QUALIFYING NATIONAL SETTLEMENT PLAN.—The term ''Qualifying National Settlement Plan'' means a written agreement or related series of written agreements with claimants or with attorneys or law firms representing claimants, pursuant to which a person who is or may be responsible for such claims has resolved or agreed to resolve at least 50 percent of the asbestos claims that were pending against such person.
(36) TLC.—The term ''TLC'' means total lung capacity, which is the volume of air in the lung after maximal inspiration.
(37) TRUSTEE.—The term ''Trustee'' means the Trustee of the Asbestos Compensation Fund.
(38) VETERANS' BENEFITS PROGRAM.—The term ''veterans' benefits program'' means any program for benefits in connection with military service administered by the Veterans' Administration under Title 38, United States Code.
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(39) WORKERS' COMPENSATION LAW.—The term ''workers' compensation law'' means a law respecting a program administered by New Mexico or the United States to provide benefits, funded by a responsible employer or its insurance carrier, for occupational diseases or injuries or for disability or death caused by occupational diseases or injuries. The term includes the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901–944, 948–950), but does not include the Employer's Liability Act (45 U.S.C. chapter 2).
Subtitle G—Miscellaneous Provisions
SEC. 345. RELATIONSHIP TO OTHER LAWS.
(a) APPLICABILITY OF OTHER FEDERAL LAWS.—The OAC may, with the approval of the Director of the Office of Management and Budget, waive the applicability in whole or in part of personnel and procurement laws and regulations, provided that any such waiver must be specific, must be subject to periodic review and evaluation, and must be reasonably related to the goals of expeditious, professional, efficient, cost-effective and fair resolution of asbestos claims.
(b) APPLICATION TO EXISTING ASBESTOS TRUSTS.—
(1) IN GENERAL.—This title shall not apply to any asbestos trust in existence as of the date of enactment of this title, except as provided in paragraph (2).
(2) ELECTION.—An asbestos trust may elect to be subject to this title by providing written notice of such election to the OAC, in which case the trust will have the same rights and responsibilities under this title as any person who is not a trust. A valid election under this paragraph shall be irrevocable.
(c) SETTLEMENTS PRESERVED.—Nothing in this title—
(1) invalidates any settlement of asbestos claims entered into prior to the date of enactment of this title; or
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(2) revokes or negates any asbestos defendant's standing offer to settle existing asbestos claims.
(d) OTHER COMPENSATION.—This title shall not be construed to affect the scope or operation of any workers' compensation law or veterans' disability benefit program, to affect the exclusive remedy provisions of any such law, or to authorize any lawsuit which is barred by any such provision of law.
(e) SUCCESSOR LIABILITY.—Nothing in this title is intended to displace otherwise applicable law governing any liability arising from the defendants' status as transferee or successor with respect to a change in ownership of corporate assets.
SEC. 346. ANNUAL REPORTS.
The Administrator shall submit an annual report to the President and Congress.
SEC. 347. ENFORCEMENT.
The Administrator may enforce any obligation imposed on any person by this title in a district court of the United States, and such courts shall have exclusive jurisdiction over such actions without regard to the amount in controversy or citizenship of the parties. The Administrator, if successful, shall be entitled to costs, including attorney's fees.
SEC. 348. QUALIFYING NATIONAL SETTLEMENT PLAN.
Any defendant which is party to a Qualifying National Settlement Plan may elect to defer the application of this title (other than sections 310 through 316 and section 335) to asbestos claims against that defendant for a period not exceeding 7 years from a date relative to the commencement of the Qualified National Settlement Plan. The Administrator shall, by rule, adopt procedures for processing requests for deferral under this section. If the request for deferral is accepted, the deferred defendant and any asbestos claims or third party asbestos claims against the deferred defendant shall not be subject to the provisions of this title (other than sections 310 through 316 and section 335).
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SEC. 349. SEVERABILITY.
If any provision of this title or the application of such provision to any person or circumstance is held invalid, it is the intent of Congress that the remainder of this title and application of such provision to other persons or circumstances shall not be affected thereby.
SEC. 350. SETTLEMENTS.
For a period of 7 years after the date of enactment of this title, a claimant or a defendant may specifically enforce, in any applicable Federal or State court where the claimant is alleging that the claimant was exposed to asbestos or where the claimant is currently domiciled, any written settlement agreement which was agreed to by the claimant or the claimant's attorney and the defendant before such date of enactment.
TITLE IV—EMPLOYEES EXPOSED TO TOXIC SUBSTANCES AND HEAVY METALS
SEC 401. ELIGIBILITY OF EMPLOYEES EXPOSED TO OTHER TOXIC SUBSTANCES AND HEAVY METALS.
(a) IN GENERAL.—A claim may be submitted under this title for compensation for illnesses, impairments, diseases, or death for which the claimant can establish that exposure to a hazardous substance occurred while a covered employee, as defined under section 201(5), while employed at a Department of Energy facility listed under section 201(4), and that such exposure was a contributing factor to the illness, disease, or death. Claims shall be submitted in the manner specified under section 8121 of title 5, United States Code, for a determination pursuant to section 212. Except as provided in this title, claims shall be administered and compensation paid pursuant to the terms and conditions of this title. Claims for occupational illness, disease or death shall not be covered under this title which are specifically covered under title I (beryllium diseases), title II (radiogenic diseases), or title III (asbestos diseases).
(b) QUESTIONNAIRE.—The Secretary of Labor shall develop a questionnaire for the claimant to identify the history of employment hazards to a covered employee at a Department of Energy facility and to provide documentation to support the claim. The Secretary of Labor shall provide the claimant with an opportunity to identify documents and information in the possession of the Department of Energy or its contractors which the claimant believes will support their claim.
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SEC 402. ESTABLISHMENT OF A PHYSICIANS PANEL BY THE SECRETARY OF HEALTH AND HUMAN SERVICES.
(a) IN GENERAL.—The Secretary of Health and Human Services shall, in consultation with the Association of Occupational Health Clinics, appoint one or more 3-member Physicians Panels, depending on geographic needs and the size of the caseload, composed of physicians with experience and competency in diagnosing occupational illnesses. Each member shall be paid at the rate of pay payable for Level III of the Executive Schedule for each day (including travel time) the member is engaged in the work of the panel. The Secretary shall also provide necessary administrative support for the panel to conduct its work.
(b) DEEMED EXPERT PANEL.—The Secretary of Labor shall deem the panel appointed under subsection (a) to be an expert panel for purposes of medical recommendation. However, a claimant may seek and present a second opinion to the Secretary of Labor in the event that a claimant disputes a determination or recommendation by a panel.
(c) COSTS.—Costs of operating the panels shall be reimbursed by the Secretary of Energy from the Energy Employees Occupational Illness Act Fund.
SEC. 403. ELIGIBILITY DETERMINATION.
(a) IN GENERAL.—The Secretary of Labor shall forward claims to the Secretary of Health and Human Services when there is a need for a determination whether occupational exposure to a hazardous substance was a contributing factor to the illness, impairment, disease, or death of a claimant, and the Secretary of Labor is unable to make an affirmative determination based on the information submitted by the claimant.
(b) PANEL AND CLAIMS.—Upon receipt of a claim from the Secretary of Labor, the Secretary of Health and Human Services shall forward such claims within 7 days to a physicians panel. The Secretary shall, upon passage, develop procedures for receiving, tracking, and returning recommendations to the Secretary of Labor, and for employing and providing services to the panels.
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(c) PANEL ACTION.—The panels shall promptly review claims, including medical records and work history, submitted by the Secretary of Labor, and determine whether exposure to a hazardous substances was a contributing factor to the employee s illness, disease, or death. Claims shall be reviewed and determinations issued, whenever practical, within 60 days. If a determination shall take more than 60 days, the Secretary of Labor and the claimant shall be notified of the date by which a determination shall be issued.
(d) EXPOSURE INFORMATION.—Where exposure information is insufficient or non existent, the panels shall evaluate exposure risks by determining the nature of the job hazards by identifying job titles held by the employee, length of employment, type of work activities, types of occupational hazards, length of time exposed to these hazards, whether there was adequate protective equipment, whether there was full knowledge by employee of exposure to hazards, whether more than one hazard presents an additive or multiplicative effect, whether employee was involved in accidental release or accident, and whether similarly situated employees have contracted similar diseases that are attributable to occupational exposure.
(e) ADDITIONAL INFORMATION.—Upon request, the claimant shall have the opportunity to present additional medical or exposure information to the panel through the Secretary of Labor. If additional information is required to render a recommendation, the panel may request, through the Secretary of Labor, that a claimant undergo specified diagnostic tests, or that the Department of Energy or its contractors supply additional information. A copy of the recommendation shall be provided to the claimant by the Secretary of Labor upon request.
(f) MEDICAL EXAMINATIONS.—The Secretary of Labor shall provide assistance to employees and claimants in connection with this title, including assistance in securing medical testing and diagnostic services necessary to determine the existence of a covered illness. In carrying out this subsection, the examination of workers who believe they have ailments related to the environmental conditions at their places of work in Los Alamos shall be conducted free of charge at the Veterans' Administration hospital nearest to their place of residence and such workers shall receive free treatment for ailments and illnesses identified by such physicians as potentially work-related. Such workers shall also receive reimbursement for travel and lodging expenses.
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SEC 404. ESTABLISHMENT OF OCCUPATIONAL DISEASE PRESUMPTIONS.
(a) IN GENERAL.—In addition to the occupational disease presumptions established in titles I and II, the Secretary of Health and Human Services shall direct that a panel establish a list of illnesses and diseases which, based on occupational exposure to certain hazardous substances or based on employment in certain industrial or laboratory processes, are potentially attributable to employment at Department of Energy facilities. This list of presumptions shall serve as guidance to the panels in expediting and improving the quality of recommendations, and shall be provided to the Secretary of Labor for use in developing guidance for making claims determinations. Such list shall be published 12 months after the establishment of this program, updated on an annual basis thereafter, and provided as a report to Congress.
(b) LIST OF PRESUMPTIONS.—In establishing a list of presumptions, a panel shall—
(1) identify and categorize the types and patterns of diseases which are potentially attributable to employment at a listed Department of Energy facility, including those illnesses, impairments, diseases, and deaths identified through medical screening programs conducted through the Department of Energy's Office of Environment, Safety and Health, (including the former worker medical program authorized under Section 3162 of the Fiscal Year 93 Defense Authorization Act (42 USC 7274(i))), National Institute of Occupational Safety and Health health studies, peer reviewed epidemiology studies, and Department of Energy medical programs;
(2) identify and apply presumptions that are supported in the scientific and medical literature and in standards established by the Committee on the Biological Effects of Ionizing Radiation of the National Academy of Sciences, and where there are biological indicators that can be used, a panel shall specify diagnostic tests required to establish a presumption that exposure or ingestion of a particular substance or compound will significantly contribute to illness, impairments, disease, or death;
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(3) evaluate site specific history of working conditions at certain types of facilities (such as gaseous diffusion plants, calcining facilities, reactors, etc.), and the adequacy of protective measures provided to exposed workers over the history of operations;
(4) determine whether patterns of diseases exist that are potentially attributable linked to workplace exposures;
(5) determine whether workers were adequately informed of exposure hazards;
(6) determine whether there are presumptions of workplace causation that have been established for workers similarly exposed in other hazardous industries or occupations (such as firefighters);
(7) determine whether workers were involved in accidents where excessive exposures occurred;
(8) determine whether workers exposed to hazardous substances received adequate follow-on emergency medical treatment and monitoring and subsequent medical attention to determine health impairment; and
(9) evaluate other factors that a panel deems prudent and necessary.
Moreover, in addition to the 9 forgoing factors, a panel shall evaluate those circumstances where covered employees, without their knowledge and consent, were placed at undue risk to hazardous substances without adequate protections or monitoring and shall recommend whether fairness and equity require that a presumption be established in favor of employees for eligibility for compensation for illnesses, impairments and diseases. Such recommendation shall be incorporated in the annual report and transmitted to Congress.
(d) REVIEW OF DATA.—The Department of Energy shall submit reports to the Secretary of Health and Human Services who shall, in turn, provide panels with information on (1) historic exposure assessments and (2) reports on ES&H practices, and (3) medical findings and data on the Department of Energy Medical Surveillance Program carried out under section 3162 of the 1993 Defense Authorization Act.
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SEC. 405. PANEL SHALL REPORT DETERMINATION TO SECRETARY OF LABOR.
Once a panel has made a recommendation on a claim referred by the Secretary of Labor, it shall report its recommendation to the Secretary of Labor within 7 days of approving a recommendation with an outline of the reasons for the determination. The panel shall make its recommendation on the basis of whether workplace exposures to hazardous substances were a substantial contributing factor to the illness, impairment, disease, or death.
106TH CONGRESS
2D SESSION
H. R. 4398
To establish a compensation and health care program for employees of the Department of Energy, its contractors, subcontractors, and certain vendors, who have sustained beryllium and radiation-related injury, illness, or death due to the performance of their duties, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 9, 2000
Mr. WHITFIELD (for himself, Mr. STRICKLAND, Mr. KANJORSKI, Mr. LUCAS of Kentucky, Mr. UDALL of Colorado, Mr. UDALL of New Mexico, Mr. GIBBONS, Mr. BROWN of Ohio, Mr. GORDON, Mr. CLEMENT, and Mr. HALL of Ohio) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce, Ways and Means, Transportation and Infrastructure, and Banking and Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
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A BILL
To establish a compensation and health care program for employees of the Department of Energy, its contractors, subcontractors, and certain vendors, who have sustained beryllium and radiation-related injury, illness, or death due to the performance of their duties, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ''Energy Employees Occupational Illness and Compensation Act of 2000''.
(b) TABLE OF CONTENTS.—The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I—ENERGY EMPLOYEES' BERYLLIUM COMPENSATION
Sec. 101. Definitions.
Sec. 102. Regulatory authority to revise definitions.
Sec. 103. Administration.
Sec. 104. Exposure to beryllium in the performance of duty.
Sec. 105. Compensation for disability or death, medical services, and vocational rehabilitation.
Sec. 106. Computation of pay.
Sec. 107. Limitations on receiving compensation.
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Sec. 108. Coordination of benefits.
Sec. 109. Alternative compensation.
Sec. 110. Payment in full settlement of claims against the United States and the employee's employer.
Sec. 111. Filing of claim.
Sec. 112. Time limitation on filing a claim.
Sec. 113. Determination and award of claims.
Sec. 114. Review of award.
Sec. 115. Appeal.
Sec. 116. Reconsideration of denial of claim.
Sec. 117. Resolution of issues in the award or denial of compensation; costs of administration.
Sec. 118. Representation; fees for services.
Sec. 119. Status of award; certain claims not affected.
Sec. 120. Assignment of claim.
Sec. 121. Subrogation of the United States.
Sec. 122. Energy Employees' Beryllium Compensation Fund.
Sec. 123. Civil Service retention rights.
Sec. 124. Annual report.
Sec. 125. Authorization of appropriations.
Sec. 126. Regulations.
Sec. 127. Construction.
Sec. 128. Conforming amendments.
Sec. 129. Effective date.
TITLE II—NUCLEAR EMPLOYEES' RADIATION COMPENSATION
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Sec. 201. Definitions.
Sec. 202. Administration.
Sec. 203. Occupational exposure to radiation and other hazardous substances.
Sec. 204. Compensation for disability or death, medical services, and vocational rehabilitation.
Sec. 205. Computation of pay.
Sec. 206. Limitations on receiving compensation.
Sec. 207. Coordination of benefits.
Sec. 208. Right to alternative compensation.
Sec. 209. Payment in full settlement of claims against the United States and the employee's employer.
Sec. 210. Filing of claim.
Sec. 211. Time limitation on filing a claim.
Sec. 212. Determination and award of claims.
Sec. 213. Review of award.
Sec. 214. Appeal.
Sec. 215. Reconsideration of denial of claim.
Sec. 217. Representation; fees for services.
Sec. 218. Status of award; certain claims not affected.
Sec. 219. Assignment of claim.
Sec. 220. Subrogation of the United States.
Sec. 221. Nuclear Employees' Radiation Compensation Fund.
Sec. 222. Civil Service retention rights.
Sec. 223. Annual report.
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Sec. 224. Authorization of appropriations.
Sec. 225. Regulations; regulatory authority.
Sec. 226. Construction.
Sec. 227. Conforming amendments.
Sec. 228. Effective date.
TITLE III—EMPLOYEES EXPOSED TO TOXIC SUBSTANCES AND HEAVY METALS
Sec. 301. Eligibility of employees exposed to other toxic substances and heavy metals.
Sec. 302. Establishment of a physicians panel by the Secretary of Health and Human Services.
Sec. 303. Eligibility determination.
Sec. 304. Establishment of occupational disease presumptions.
Sec. 305. Panel shall report determination to Secretary of Labor.
TITLE IV—COMPENSATION FUND
Sec. 401. Energy Employees' Occupational Illness Compensation Fund.
TITLE V—ECONOMIC DEVELOPMENT ASSISTANCE
Sec. 501. Eligibility of communities containing Department of Energy defense nuclear facilities.
SEC. 2. FINDINGS.
The Congress finds that—
(1) Since World War II Federal nuclear activities have been explicitly recognized by the United States Government as an a ultra-hazardous activity under Federal law. Nuclear weapons production involved unique dangers, including potential catastrophic nuclear accidents that private insurance carriers would not cover, as well as chronic exposures to radioactive and hazardous substances, such as beryllium, that even in small amounts could cause medical harm.
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(2) Since the inception of the nuclear weapons program and for several decades afterwards, large numbers of nuclear weapons workers at Department of Energy and at vendor sites who supplied the Cold War effort were put at risk without their knowledge and consent for reasons that, documents reveal, were driven by fears of adverse publicity, liability, and employee demands for hazardous duty pay.
(3) Numerous previous secret records documented unmonitored radiation, beryllium, heavy metals, and toxic substances' exposures and continuing problems at the Department of Energy and vendor sites across the country, where since World War II the Department of Energy and its predecessors have been self-regulating with respect to nuclear safety and occupational safety and health. No other hazardous Federal activity has been permitted to have such sweeping self-regulatory powers.
(4) The Department of Energy policy to litigate occupational illness claims regardless of merit has deterred workers from filing workers compensation claims and imposed major financial burdens for workers who sought compensation. Department of Energy contractors have been held harmless, even for acts of negligence, while the Department of Energy workers were denied workers compensation coverage for occupational disease. The policy to avoid legal liabilities at all costs has been in place for decades.
(5) Over the past 20 years more than two dozen scientific findings have emerged that indicate that Department of Energy workers are experiencing increased risks of dying from cancer and non-malignant diseases at numerous facilities that provided for the nation's nuclear deterrent. Several of these studies also establish a correlation between excess diseases and exposure to radiation and beryllium.
(6) While linking exposure to occupational hazards with the development of occupational disease is sometimes difficult, scientific evidence supports the conclusion that occupational exposure to dust particles or vapor of beryllium, even where there was compliance with the standards in place at the time, can cause beryllium sensitivity and chronic beryllium disease. Furthermore, studies indicate than 98 percent of radiation induced cancers within the Department of Energy complex occur at dose levels below existing legal thresholds for proof. Further, that workers at Department of Energy sites were exposed to heavy metals and toxic substances at levels that will lead or contribute to illness and diseases.
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(7) Existing information indicates that State workers' compensation programs are not a uniform means to provide adequate compensation for the types of occupational illnesses and diseases related to the prosecution of the Cold War effort.
(8) The civilian men and women who performed duties uniquely related to the Department of Energy's nuclear weapons production program over the last 50 years should have efficient, uniform, and adequate compensation for beryllium-related health conditions and radiation-related health conditions in order to assure fairness and equity.
(9) This situation is sufficiently unique to the Department of Energy's nuclear weapons production program that it is appropriate for Congressional action.
TITLE I—ENERGY EMPLOYEES' BERYLLIUM COMPENSATION
SEC. 101. DEFINITIONS.
For the purpose of this title:
(1) DEPARTMENT OF ENERGY.—The term ''Department of Energy'' includes the predecessor agencies of the Department of Energy.
(2) SECRETARY.—The term ''Secretary'' unless otherwise specified means the Secretary of Energy.
(3) DEPARTMENT OF ENERGY FACILITY.—The term ''Department of Energy facility'' means any building, structure, or premises, including the grounds upon which they are located, in which operations are or were conducted by, or on behalf of, the Department of Energy and with regard to which the Department of Energy has a proprietary interest or has entered into a contract with an entity to provide management and operation, management and integration, or environmental remediation, but shall not include any Naval Reactors facility.
(4) BERYLLIUM VENDOR.—The term ''beryllium vendor'' means:
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(A) Atomics International.
(B) Brush Wellman, Inc. and its predecessor, Brush Beryllium Company.
(C) General Atomics.
(D) General Electric Company.
(E) NGK Metals Corporation and its predecessors: Kawecki-Berylco, Cabot Corporation, BerylCo, and Beryllium Corporation of America.
(F) Nuclear Materials and Equipment Corporation.
(G) StarMet Corporation, and its predecessor, Nuclear Metals, Inc.
(H) Wyman Gordon, Inc.
(I) Any other vendor, processor, or producer of beryllium or related products designated as a beryllium vendor for the purposes of this title in regulations issued by the Secretary pursuant to section 104.
(5) COMPENSATION.—The term ''compensation'' means the money allowance payable under this title and any other benefits paid for from the Energy Employees' Beryllium Compensation Fund, including the retroactive compensation payable pursuant to section 109.
(6) COVERED EMPLOYEE.—The term ''covered employee'' means—
(A) an employee of any entity that contracted or subcontracted with the Department of Energy to provide management and operations, management and integration, production, testing, research, development, environmental remediation, waste management, construction, uranium enrichment, or other services at a Department of Energy facility or any entity that supplied uranium conversion or manufacturing services to, for, or on behalf of, the Department of Energy, including, those entities identified at section 201(3);
(B) an employee of a beryllium vendor during a period of time when that entity was engaged in activities related to beryllium that was produced or processed for sale to, or use by, the Department of Energy; or
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(C) an individual defined as an employee in section 8101(1) of title 5, United States Code, who may have been exposed to beryllium at a Department of Energy facility or at a facility owned, operated, or occupied by a beryllium vendor.
(D) an individual who was a resident of Lorain County, Ohio, before 1950 in the area
in which the Brush Beryllium Company was located and who has been diagnosed with a covered illness.
An individual described in subparagraph (D) shall for purposes of section 109 be considered to have been exposed to beryllium in the performance of duty.
(7) COVERED ILLNESS.—The term ''covered illness'' means any of the following conditions:
(A) Beryllium Sensitivity, established by an abnormal beryllium lymphocyte proliferation test performed on either blood or lung lavage cells.
(B) Chronic Beryllium Disease, established by—
(i) beryllium sensitivity, as defined in subparagraph (A), and
(ii) lung pathology consistent with Chronic Beryllium Disease, such as—
(I) a lung biopsy showing granulomas or a lymphocytic process consistent with Chronic Beryllium Disease;
(II) a computerized axial tomography scan showing changes consistent with Chronic Beryllium Disease; or
(III) pulmonary function or exercise testing showing pulmonary deficits consistent with Chronic Beryllium Disease;
(iii) for covered employees diagnosed before 1993, the presence of subclause (I) and at least 2 others—
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(I) occupational or environmental history or epidemiologic evidence of beryllium;
(II) characteristic chest radiographic (or computer tomography (CT)) abnormalities;
(III) restrictive or obstructive lung physiology testing of Diffusing Lung Capacity (Dlco) defect;
(IV) lung pathology consistent with Chronic Beryllium Disease;
(V) clinical course consistent with a chronic respiratory disorder; or
(VI) immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).
(C) Any injury or illness sustained as a consequence of a covered illness as defined in subparagraph (A) or (B).
(8) MONTHLY PAY.—The term ''monthly pay'' means—
(A) for covered employees employed at the time of injury or inception of disability, the monthly pay at the time of injury, the monthly pay at the inception of disability, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 6 months after the covered employee resumes regular full-time employment, whichever is greater, except when otherwise determined under section 8113(a) of title 5, United States Code;
(B) for covered employees who are unemployed at the inception of disability, the monthly pay of the employee's last covered employment calculated as if the employee were still employed, or the monthly pay of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, whichever is greater.
(9) TIME OF INJURY.—The term ''time of injury'' means the last date on which a covered employee was exposed to beryllium in the performance of duty as specified in section 104.
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(10) INCEPTION OF DISABILITY.—The term ''inception of disability'' means the date on which the covered employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the covered illness, and the death or disability.
(11) MISCELLANEOUS TERMS.—The following terms have the meaning given those terms in section 8101 of title 5, United States Code:
(A) ''physician'';
(B) ''medical, surgical, and hospital services and supplies'';
(C) ''widow'';
(D) ''parent'';
(E) ''brother'' and ''sister'';
(F) ''child'';
(G) ''grandchild'';
(H) ''widower'';
(I) ''student'';
(J) ''price index'';
(K) ''organ''; and
(L) ''United States medical officers and hospitals''.
SEC. 102. REGULATORY AUTHORITY TO REVISE DEFINITIONS.
(a) IN GENERAL.—Additional vendors, processors, or producers of beryllium or related products may be designated as beryllium vendors for the purposes of this title in regulations issued by the Secretary of Labor, upon finding that such entities have been engaged in activities related to beryllium that was produced or processed for sale to, or use by, the Department of Energy in a manner similar to the entities listed in section 101(4).
(b) ADDITIONAL CRITERIA.—Additional criteria by which a claimant may establish the existence of a covered illness, as defined in subparagraph (A) or (B) of section 101(7), may be specified in regulations issued by the Secretary of Labor, after consultation with the agency that contracts to administer this title.
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SEC. 103. ADMINISTRATION.
(a) IN GENERAL.—Within 120 days of enactment of this title, the Secretary of Energy shall enter into an agreement with the Secretary of Labor for the administration of this title, including utilization of Department of Labor services and facilities and for the compensation by the Department of Energy for such administration from the Energy Employees Beryllium Compensation Fund established pursuant to section 122. The Secretary of Labor is authorized to enter into a reimbursable agreement with the Secretary of Energy for the administration of this title. Upon entry into such agreement, the Secretary of Labor may delegate to any officer or employee of the Department of Labor all powers and duties necessary for carrying out the purposes of this title.
(b) JOINT AUTHORITY.—To assist and facilitate administration of this title and the adjudication of claims, the Secretary of Energy and the Secretary of Labor shall—
(1) provide assistance to employees and claimants in connection with this title, including assistance in securing medical testing and diagnostic services necessary to determine the existence of a covered illness as defined in section 101(7);
(2) ensure the ready availability, in paper and electronic format, of forms necessary for making claims, and provide employees and claimants with necessary information under this title including, among other things, medical protocols necessary for medical testing and diagnosis to determine the existence of a covered illness, lists of approved vendors for use in obtaining necessary laboratory services related to such medical testing and diagnosis, and vouchers to cover costs outlined in the medical protocols;
(3) provide such further assistance to employees and claimants as necessary for the development of the facts pertinent to the employee's claim or potential claim;
(4) upon a notification that a claimant has made a claim for benefits under this title, provide such information to the authority with delegated responsibility for the determination and award of claims under section 113, or review thereof under sections 114 and 115, as the authority may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto.
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(c) INFORMATION.—The Secretary of Energy may require a beryllium vendor or Department of Energy contractor to provide information concerning a claim filed under this title to the officers or employees with delegated responsibility for administering this title.
(d) PENALTY.—Failure or refusal to provide information, or knowingly providing false information, in response to a request pursuant to subsections (b) and (c) this section may result in fine or imprisoned, or both, pursuant to section 1922 of title 18, United States Code, as amended by section 129(c).
(e) PENALTY.—Whoever induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under this title or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under this title or any extension or application thereof, or regulations prescribed thereunder, may be subjected to fine or imprisonment, or both, pursuant to section 1922 of title 18, United States Code, as amended by section 129(c).
SEC. 104. EXPOSURE TO BERYLLIUM IN THE PERFORMANCE OF DUTY.
In the absence of substantial evidence to the contrary, a covered employee, as defined in subparagraphs (A), (B), or (C) of section 101(6), shall be determined to have been exposed to beryllium in the performance of duty for the purposes of this title if, and only if, the covered employee was employed at a Department of Energy facility, or was present at the facility or at a facility owned or operated by a beryllium vendor because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of the Department of Energy, for any period of time, during a time period when beryllium dust particles or vapor may have been present at that facility.
SEC. 105. COMPENSATION FOR DISABILITY OR DEATH, MEDICAL SERVICES, AND VOCATIONAL REHABILITATION.
(a) COMPENSATION.—In accordance with, and except as otherwise provided in this title, the United States is authorized to—
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(1) upon application for compensation pursuant to section 111, furnish the costs of all medical testing and diagnostic services necessary for the claimant to determine the existence of a covered illness as defined in section 101(7), and reimburse claimant for any additional reasonable medical expenses incurred in establishing the claimant's claim;
(2) pay the compensation specified in sections 8105–8110, 8111(a), 8112–13, 8115, 8117, 8133–8135, and 8146a(a) and (b) of title 5, United States Code, for the disability or death from a covered illness of a covered employee who was exposed to beryllium while in the performance of duty as determined in accordance with section 104;
(3) furnish the services and other benefits specified in section 8103 of title 5, United States Code, to a covered employee who sustains a covered illness as a result of exposure to beryllium while in the performance of duty as determined in accordance with section 104;
(4) pay alternative compensation pursuant to section 109, and attorneys fees as specified in section 118; and
(5) advise a permanently disabled individual whose disability is compensable under this title of the availability of vocational rehabilitation and provide for furnishing vocational rehabilitation service pursuant to the provisions of section 8104 and 8111(b) of title 5, United States Code;
unless the covered illness or death was caused by one of the circumstances set forth in paragraph (1) or (3) of subsection (a) of section 8102 of title 5, United States Code.
(b) PAYMENT FROM FUND.—All compensation and awards under this title shall be paid from the Energy Employees' Beryllium Compensation Fund.
(c) PAYMENT AND EFFECTIVE DATE.—No payment of compensation may be made under this title for any period prior to the effective date of this title, except for the alternative compensation specified in section 109.
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SEC. 106. COMPUTATION OF PAY.
(a) IN GENERAL.—Except as otherwise provided by this title, computation of pay under this title shall be determined in accordance with section 8114 of title 5, United States Code.
(b) AVERAGE ANNUAL EARNINGS.—If either of the methods of determining the average annual earnings specified in sections 8114(d) (1) and (2) of title 5, United States Code, cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the covered employee in the employment in which the employee was working at the time of injury or inception of disability, whichever is greater, having regard to the previous earnings of the employee in similar employment, and for other employees of the same employer in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the covered employee earned in the employment during the days employed within 1 year immediately preceding the time of injury or inception of disability, whichever is greater.
SEC. 107. LIMITATIONS ON RECEIVING COMPENSATION.
(a) IN GENERAL.—While a covered employee as defined in section 101(6)(C) is receiving compensation under this title, or if the covered employee has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued pursuant to section 8135 of title 5, United States Code, the covered employee may not receive salary, pay, or remuneration of any type from the United States, except
(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or Air Force;
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(3) other benefits administered by the Department of Veterans Affairs unless such benefits are payable for the same covered illness or the same death;
(4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed service; and
(5) retirement benefits under subchapter III of chapter 83 of title 5, United States Code, or other retirement system for employees of Federal or State government.
However, eligibility for or receipt of benefits under subchapter III of chapter 83 of title 5, United States Code, or another retirement system for employees of Federal or State government, does not impair the right of the employee to compensation for scheduled disabilities specified by section 8107 of title 5, United States Code.
(b) OTHER FEDERAL BENEFITS RELATED TO ARMED FORCES.—An individual eligible to receive benefits under this title because of a covered illness or death of a covered employee as defined in section 101(6)(C), who also is entitled to receive from the United States under a provision of statute other than this title payments of benefits for that covered illness or death (except proceeds of an insurance policy), because of service by the covered employee (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, except as otherwise provided by statute, or unless the level of compensation and other benefits under the other statutory provision or under this title changes, in which event the individual is entitled to make a new informed election.
(c) OTHER WORKERS' COMPENSATION BENEFITS.—While a covered employee is receiving compensation under this title, or if the covered employee has been paid a lump sum commutation of installment payments until the expiration of the period during which the installment payments would have continued, the covered employee may not receive payment of any benefits under any other Federal workers' compensation system for the same covered illness or the same death. Such an individual shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, unless the level of compensation and other benefits under the other Federal program or under this title changes, in which event the individual is entitled to make a new informed election.
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SEC. 108. COORDINATION OF BENEFITS.
Except where the Secretary issues a waiver pursuant to section 107(d)(2), a claimant awarded benefits under this title as a result of a covered illness or death of a covered employee who receives benefits because of the same covered illness or death from any other State or Federal workers compensation system and who has elected benefits under this title pursuant to subsection (c) or (d) of section 107, shall receive compensation as specified in this title for the covered illness or death, reduced by the amount of any workers' compensation benefits that the claimant receives or will receive on account of the covered illness or death under any State or Federal workers' compensation system during the period that awarded benefits are provided under this title, after deducting the reasonable costs, as determined by the Secretary of Labor by regulation, of obtaining such benefits.
SEC. 109. ALTERNATIVE COMPENSATION.
(a) IN GENERAL.—A covered employee, who was exposed to beryllium in the performance of duty, as determined in accordance with section 104, and who, in addition—
(1) was diagnosed as having a beryllium-related pulmonary condition, whether or not based upon the criteria necessary to establish the existence of a covered illness under section 101(7), that was determined, either contemporaneously or at any time later, to be consistent with Chronic Beryllium Disease, as defined in section 101(7)(B), and
(2) demonstrates the existence of a beryllium-related pulmonary condition, and its diagnosis, by medical documentation created during the covered employee's lifetime or at the time of death or autopsy,
may elect to receive alternative compensation in the amount of $200,000, subject to adjustment pursuant to section 8146a(a) of title 5, United States Code, together with those medical services and benefits specified in section 8103 of title 5, United States Code, in lieu of any other compensation to which the covered employee or the employee's survivors might otherwise be awarded under this title.
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(b) DEATH OF COVERED EMPLOYEE.—If a covered employee who would have been eligible to make the election provided by this section dies before the effective date of this title, or before making the election, whether or not the death is the result of a beryllium-related condition, the employee's survivor or survivors may make the election to receive the alternative compensation specified in subsection (a) of this section in lieu of any other compensation that either the covered employee or the employee's survivors might otherwise have been awarded under this title. The right to make an election pursuant to this section shall be afforded to survivors in the order of precedence set forth in section 8109 of title 5, United States Code.
(c) ELECTION TO RECEIVE RETROACTIVE COMPENSATION.—The election to receive retroactive compensation under this section in lieu of other compensation under this title shall be made at any time subsequent to filing a claim pursuant to section 111, up to and including 30 days after either the date of a decision determining an award of compensation for total disability or partial disability under this title or the date that the Secretary informs the employee or the employee's survivor of the right to make such an election, whichever is later, unless the time is extended upon request by the employee or his or her survivor. The election when made by a covered employee or survivor is irrevocable and binding on all survivors.
(d) LIMITATION.—When a covered employee, or the employee's survivor, has made an election to receive alternative compensation pursuant to this section, no other payment of compensation under this title may be made on account of the same or any other covered illness or beryllium-related pulmonary condition of that employee.
(e) DETERMINATION.—A determination that a covered employee or a survivor of a covered employee has established a beryllium-related pulmonary condition pursuant to subsection (a) of this section does not constitute a determination that the covered employee, or a survivor of the covered employee, has established the existence of a covered illness.
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SEC. 110. PAYMENT IN FULL SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES AND THE EMPLOYEE'S EMPLOYER.
(a) IN GENERAL.—If an individual elects to accept payment under this title with respect to a covered illness, beryllium-related pulmonary condition, or death of a covered employee, that acceptance of payment shall be in full settlement of all claims against the United States under the tort claims procedures of chapter 171 of title 28, United States Code or against the covered employee's employer (with the exception of intentional torts), that arise out of the employee's exposure to beryllium in the performance of his or her duties within the meaning of section 104.
(b) APPLICATION.—This section does not apply to an administrative or judicial proceeding under a State or Federal workers' compensation statute subject to sections 107 and 108, nor to any litigation, whether arising out of the employee's exposure to beryllium in the performance of the employee's duties or not, in State or Federal court.
SEC. 111. FILING OF CLAIM.
A claim for compensation under this title shall be submitted to the Secretary of Labor, or the Secretary of Labor's designee, in the manner specified in section 8121 of title 5, United States Code, for determination pursuant to section 113.
SEC. 112. TIME LIMITATION ON FILING A CLAIM.
(a) IN GENERAL.—A claim for compensation under this title must be filed within the later of—
(1) 7 years after the effective date of this title, or
(2) 7 years after the date the claimant first becomes aware of—
(A) a diagnosis of a covered illness or a beryllium-related pulmonary condition, or death resulting from such illness or condition; and
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(B) the causal connection of that illness, condition, or death to exposure to beryllium in the performance of duty as a covered employee.
(b) NEW LIMITATION PERIOD.—A new limitations period commences with each later diagnosis of a covered illness or beryllium-related pulmonary condition different from that previously diagnosed.
(c) TIMELY FILING.—The timely filing of a disability claim because of a covered illness or beryllium-related pulmonary condition will satisfy the time requirements for a death claim based on the same illness or condition.
SEC. 113. DETERMINATION AND AWARD OF CLAIMS.
(a) IN GENERAL.—Upon entry into the agreement with the Secretary of Energy authorized by section 103(a), the Secretary of Labor, or the Secretary's designee, shall determine and make findings of fact and make an award for or against payment of compensation under this title within 120 days of the filing of a claim pursuant to section 111, after—
(1) considering the claim presented by the beneficiary, the results of any medical test or diagnosis undertaken to determine the existence of a covered illness, and any report furnished by the Department of Energy; and
(2) completing such investigation as the Secretary or the Secretary's designee considers necessary.
(b) CONSTRUCTION.—Except as otherwise specified in this title, the determination of a claim for compensation, and any award and payment of compensation under this section shall be made in accordance with section 8124(a) of title 5, United States Code. Unless a hearing is requested pursuant to section 114(a), the determination, findings, and any award rendered hereunder shall become final and conclusive at the expiration of the thirtieth day after the date of the Secretary of Labor's decision and service thereof upon claimant.
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SEC. 114. REVIEW OF AWARD.
(a) IN GENERAL.—A claimant for compensation is entitled to a hearing on his or her claim before an administrative law judge qualified under section 3105 of title 5, United States Code, upon request made by claimant within 30 days after the date of issuance and service of the Secretary of Labor's findings and decision under section 113, and to the presentation at such hearing of evidence in further support of the claim. The administrative law judge may extend the period for requesting a hearing under this section upon petition of the claimant and good cause shown.
(b) HEARING.—The administrative law judge shall, in the conduct of a hearing requested pursuant to subsection (a) of this section and in the evaluation and determination of claimant's claim, have those powers, duties and responsibilities vested by section 8124(b) of title 5, United States Code, in the Secretary of Labor, provided however, that the hearing shall be conducted in accordance with the provisions of section 554 of title 5, United States Code. Parties to a proceeding under this subsection shall be strictly limited to the claimant and the Secretary of Labor as represented by his or her designee.
(c) ORDERS.—The administrative law judge shall have power to preserve and enforce order during any proceeding under this section; to issue subpoenas for, to administer oaths to, and to compel the attendance and testimony of witnesses, or the production of books, papers, documents, and other evidence, or the taking of depositions before any designated individual competent to administer oaths; to examine witnesses; and to do all things conformable to law which may be necessary to enable the administrative law judge effectively to discharge his duties under this title.
(d) PENALTY.—If any person in proceedings before an administrative law judge under this section disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the administrative law judge shall certify the facts to the district court having jurisdiction in the place in which he is sitting (or to the United States District Court for the District of Columbia if the administrative law judge is sitting in such District) which shall thereupon in a summary manner hear the evidence as to the acts complained of, and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.
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(e) RECORD.—The record shall close at the conclusion of the hearing, except where the administrative law judge grants, for good cause, an extension not to exceed 30 days for the submission of additional evidence and argument.
(f) DECISION NOTICE.—Within 45 days of the closing of the record, and no later than 180 days after receipt of claimant's request for hearing, the administrative law judge shall notify the claimant in writing of the administrative law judge's decision and any award the administrative law judge may make, and of the basis for such decision and award. In accordance with the facts found on review, the administrative law judge may end, decrease, or increase the compensation previously awarded, or award compensation previously refused or discontinued.
(g) EFFECT OF DECISION.—Unless appealed to the Benefits Review Board as provided in section 115, the decision by the administrative law judge, and any award rendered as a result thereof, shall become effective upon filing with the Secretary of Labor, or the Secretary of Labor's designee, and service upon the claimant, and shall become final and conclusive at the expiration of the thirtieth day thereafter.
SEC. 115. APPEAL.
(a) IN GENERAL.—Within 30 days of the effective date of a decision rendered by an administrative law judge under section 114, an aggrieved claimant may seek review of such determination before the Benefits Review Board established pursuant to section 921(b) of title 33, United States Code. The Benefits Review Board may extend the period for requesting review under this section, not to exceed an additional 30 days, upon petition of the claimant and good cause shown.
(b) AUTHORITY OF BENEFITS REVIEW BOARD.—The Benefits Review Board is authorized to hear and determine an appeal under this section in accordance with and pursuant to the authority vested in the Board by section 921(b) of title 33, United States Code. The Board shall make its final determination with regard to such appeal within 240 days following receipt of claimant's request for review. Parties to a proceeding under this subsection shall be strictly limited to the claimant and the Secretary of Labor as represented by the Secretary of Labor's designee.
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(c) COURT REVIEW.—A claimant adversely affected or aggrieved by a final determination and order of the Benefits Review Board may obtain review thereof in the United States court of appeals for the circuit in which the claimant resides pursuant to section 921(c) of title 33, United States Code.
SEC. 116. RECONSIDERATION OF DENIAL OF CLAIM.
(a) IN GENERAL.—Notwithstanding any other provision of this title, a claimant or eligible surviving beneficiary may obtain reconsideration of a decision denying coverage under this title after the promulgation by the Secretary, pursuant to section 102, of regulations designating additional vendors, processors or producers of beryllium or related products, or regulations identifying additional criteria for establishing the existence of a covered illness.
(b) RECONSIDERATION.—Notwithstanding any other provision of this title, a claimant or eligible surviving beneficiary may obtain reconsideration of a decision denying coverage under this title based on new evidence or amendment in the laws governing disposition of claims for benefits under this title.
SEC 117. RESOLUTION OF ISSUES IN THE AWARD OR DENIAL OF COMPENSATION; COSTS OF ADMINISTRATION.
(a) IN GENERAL.—Failure to render a determination on a claim within any time period prescribed in sections 113, 114 or 115 shall result in the award of the claim as a matter of law.
(b) RESOLVING DOUBT.—All reasonable doubt with regard to whether a claim for compensation meets the requirements of this title shall be resolved in favor of the claimant.
(c) PHYSICIAN.—In securing medical testing and diagnostic services to determine the existence of a covered illness compensable under this title, the claimant may utilize a physician of the claimant's choice, or a Department of Energy funded or sponsored medical program or employer-provided program, if available.
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(d) APPLICATION OF TITLE 5.—Except as otherwise specified in this title, the provisions of sections 8123, 8125–8127, 8129, 8133, 8134 and 8146a(a) of title 5, United States Code, shall govern the adjudication, award and payment of claims, and the resolution of issues under this title.
(e) SUIT.—A claimant may sue the Department of Energy or its contractors in a district court of the United States to compel the production of information or documentation requested by the Secretary of Labor, an administrative appeals judge, or the Benefits Review Board, as the case may be, where the information or documentation requested is not provided within 60 days from the date the request is made. Upon successful resolution of any suit brought pursuant to this subsection, the court shall award claimant reasonable attorney's fees and costs, which shall be considered costs incurred by the Secretary of Energy and shall not be paid from the Energy Employees Beryllium Compensation Fund, or set off against, or otherwise deducted from any payment to claimant under this title.
(f) CONSTRUCTION.—Sections 114 and 115 do not confer the right to a hearing or of appeal on the Secretary of Labor or the Secretary of Energy, although the Secretary of Labor or the Secretary of Labor's designee may appear before the administrative law judge, the Benefits Review Board, or court, as the case may be, in explanation of the Secretary of Labor's initial determination under section 113 where the claimant has appealed therefrom.
(g) PAYMENT OF COSTS.—The costs incurred by the Secretary of Labor, an administrative law judge, or the Benefits Review Board in the administration of this title and adjudication of claims thereunder are chargeable against, and shall be paid from, the Energy Employees Beryllium Compensation Fund established pursuant to section 122.
SEC. 118. REPRESENTATION; FEES FOR SERVICES.
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(a) IN GENERAL.—A claimant may authorize an attorney to represent the claimant in any proceeding under this title.
(b) AMOUNT.—If the Secretary of Labor, or the Secretary of Labor's designee, declines to pay compensation, in whole or in part, under section 113, and the person seeking benefits under this title thereafter utilizes the services of an attorney at law in the successful prosecution of the claimant's claim under section 114 or 115, there shall be awarded, in addition to the award of compensation, a reasonable attorney's fee, and costs, for the services provided by the attorney under sections 113 and 114, in an amount approved by the administrative law judge, the Benefits Review Board, or court, as the case may be. The award of attorney's fees under this subsection shall be paid by the Secretary from the Energy Employees' Beryllium Compensation Fund directly to the attorney for the claimant in a lump sum after the compensation order becomes final.
(c) ARBITRARY OR CAPRICIOUS CONDUCT.—In the event an administrative law judge, the Benefits Review Board, or the court, as the case may be, sets aside the denial of a claim under this title as arbitrary and capricious, claimant shall be awarded, separate and apart from and in addition to any award of attorney's fees under subsection (b) of this section, reasonable attorney's fees and costs incurred with respect to the appeal and review necessitated thereby. In the event that claimant subsequently prevails upon remand on the claimant's claim, claimant shall be awarded, in addition to the award to which the claimant is otherwise entitled under this title, 10 percent per annum on the claimant's claim from the date of the original denial of the claim. Attorney's fees, costs, and interest awarded pursuant to this subsection shall be considered costs incurred by the Secretary of Labor and shall not be paid from the Energy Employees Beryllium Compensation Fund, or set off against, or otherwise deducted from any payment to claimant under this title.
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(d) LIMITATION.—Where an award of attorney's fees for services is allowed under this section, the attorney receiving such award shall be prohibited from charging claimant, directly or indirectly, for the same services. A violation of this subsection shall result in a fine of not more than $5,000 assessed by the Secretary against the offending attorney.
SEC. 119. STATUS OF AWARD; CERTAIN CLAIMS NOT AFFECTED.
(a) IN GENERAL.—Any award ordered or amount paid pursuant to this title—
(1) shall not be considered income for purposes of the Internal Revenue Code of 1986 and shall not be subject to Federal income tax under the Internal Revenue Code of 1986;
(2) shall not be included as income or resources for purposes of determining eligibility to receive benefits described in section 3803(c)(2)(C) of title 31, United States Code, or the amount of those benefits; and
(3) shall not be subject to offset under chapter 37 of title 31, United States Code.
(b) PAYMENT UNDER THIS TITLE.—A payment made under this title shall not be considered as any form of compensation or reimbursement for a loss for purposes of imposing liability on the individual receiving the payment to repay any insurance carrier for insurance payments made. A payment under this title does not affect any claim against an insurance carrier with respect to insurance.
SEC. 120. ASSIGNMENT OF CLAIM.
A claim cognizable under this title is not assignable or transferable. Any assignment or transfer of a claim for compensation under this title is void. Compensation and claims for compensation are exempt from claims of creditors.
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SEC. 121. SUBROGATION OF THE UNITED STATES.
(a) IN GENERAL.—If a covered illness, death, or beryllium-related pulmonary condition for which compensation is payable under this title is caused under circumstances creating a legal liability in a person other than the United States to pay damages, sections 8131 and 8132 of title 5, United States Code, shall apply, except to the extent specified in this title.
(b) REFERENCES.—For purposes of this section, references in sections 8131 and 8132 of title 5, United States Code, to the Employees' Compensation Fund shall mean the Energy Employees' Beryllium Compensation Fund.
(c) APPLICATION.—For the purposes of this title, the provision in section 8131 of title 5, United States Code, that provides that an employee required to appear as a party or witness in the prosecution of an action described in that section is in an active duty status while so engaged shall only apply to a covered employee, as defined in section 101(4)(C).
SEC. 122. ENERGY EMPLOYEES' BERYLLIUM COMPENSATION FUND.
(a) IN GENERAL.—To carry out this title, there is established in the Treasury of the United States the Energy Employees' Beryllium Compensation Fund, which shall consist of
(1) sums that are appropriated for it,
(2) amounts that are transferred to it from other Department of Energy accounts pursuant to section 126(a), and
(3) amounts that would otherwise accrue to it under this title.
(b) USE.—Amounts in the Energy Employees' Beryllium Compensation Fund are authorized to be used for the payment of compensation and other benefits and expenses authorized by this title and for payment of all expenses incurred in administering this title. Such funds are authorized to be appropriated to remain available until expended.
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(c) DETERMINATIONS.—
(1) QUARTERLY.—Within 45 days of the end of every quarter of every fiscal year, the Secretary shall determine the total costs of benefits, administrative expenses, and other payments made from the Energy Employees' Beryllium Compensation Fund during the quarter just ended, the end-of-quarter balance in the Fund, and the amount anticipated to be needed during the immediately succeeding 2 quarters for the payment of benefits and administrative expenses under this title.
(2) CONTENT.—Each cost determination made in the last quarter of the fiscal year under paragraph (1) shall show, in addition, the total costs of benefits and expenses and other payments from the Fund during the preceding 12-month expense period
and an estimate of the expenditures from the Energy Employees' Beryllium Compensation Fund for the payment of benefits and expenses and other payments for each of the immediately succeeding two fiscal years.
SEC. 123. CIVIL SERVICE RETENTION RIGHTS.
In the event that a covered employee, as defined in section 101(4)(C), resumes employment with the Federal Government, the individual shall be entitled to the rights set forth in section 8151 of title 5, United States Code.
SEC. 124. ANNUAL REPORT.
The Secretary shall, at the end of each fiscal year, prepare a report with respect to the administration of this title.
SEC. 125. AUTHORIZATION OF APPROPRIATIONS.
(a) IN GENERAL.—There is authorized to be appropriated to the Department of Energy for deposit into the Energy Employees' Beryllium Compensation Fund such sums as are necessary to carry out the purposes of this title, including the administration thereof. In addition, the Department is authorized, to the extent provided in advance in appropriations Acts, to transfer amounts to the Fund from other Department of Energy appropriations accounts, to be merged with amounts in the Fund and available for the same purposes.
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(b) LIMITATION.—In any fiscal year, the Secretary of Labor shall limit the amount of the compensation and benefits payments under this title to an amount not in excess of the sum of the appropriations to the Energy Employees' Beryllium Compensation Fund and amounts made available by Department of Energy transfers to the Fund. Notwithstanding any other provision, if in any fiscal year the Secretary of Labor finds that estimates of amounts contained in reports pursuant to section 122(c)(1) for the payment of compensation, other benefits, and administrative activities authorized by this title will exceed the amounts in the Fund, the Secretary of Labor is required to reduce compensation and benefits payments to the extent necessary to make up any amounts by which benefits and other costs authorized by this title exceed the amount in the Fund calculated on a fiscal year basis.
(c) REGULATIONS.—The Secretary of Energy, in consultation with the Secretary of Labor, shall promulgate regulations to implement this section within 120 days of enactment.
SEC. 126. REGULATIONS.
Not later than 120 days after the date of enactment, the Secretary of Labor shall prescribe such rules and regulations as may be necessary for the administration and enforcement of this title.
SEC. 127. CONSTRUCTION.
References in this title to a provision of another statute shall be considered references to such provision, as amended and as may be amended from time to time.
SEC. 128. CONFORMING AMENDMENTS.
(a) SECTION 1920.—Section 1920 of title 18, United States Code, is amended by inserting in the title ''or Energy employee'' after ''Federal employee's'' and by inserting ''or the Energy Employees' Compensation Act'' after ''title 5''.
(b) SECTION 1921.—Section 1921 of title 18, United States Code, is amended by inserting in the title ''or Energy employees'' after ''Federal employees'' and by inserting ''or the Energy Employees' Compensation Act'' after ''title 5''.
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(c) SECTION 1922.—Section 1922 of title 18, United States Code, is amended—
(1) by inserting in the section title ''or Energy employees'' after ''Federal employees'';
(2) by inserting ''(a)'' before ''Whoever,'';
(3) by striking '', neglects,'' after ''willfully fails''; and
(4) by inserting a new subsection as follows:
''(b) Whoever refuses to provide the information referred to in subsection (a), or knowingly provides false information, or induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under the Energy Employees' Compensation Act or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under that Act or any extension or application thereof, or regulations prescribed thereunder, shall be fined under this title or imprisoned not more than one year, or both.''.
(d) WHISTLEBLOWERS.—Section 211(a)(1) of the Energy Reorganization Act of 1974 (42 U.S.C. 5851(a)) is amended—
(1) in subparagraph (E), by striking ''or''
(2) in subparagraph (F), by striking the period and inserting ''; or''; and
(3) by inserting after subparagraph (F) the following:
''(G) filed an application for benefits or assistance under title XXXI of the Energy Policy Act of 1992.''.
SEC. 129. EFFECTIVE DATE.
This title is effective upon the date of its enactment.
TITLE II—NUCLEAR EMPLOYEES' RADIATION COMPENSATION
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SEC. 201. DEFINITIONS.
For purposes of this title:
(1) DEPARTMENT OF ENERGY.—The term ''Department of Energy'' includes the predecessor agencies of the Department of Energy.
(2) SECRETARY.—The term ''Secretary'' unless otherwise specified means the Secretary of Energy.
(3) DEPARTMENT OF ENERGY FACILITY.—The term ''Department of Energy facility'' means any building, structure, or premises, including the grounds upon which they are located, in which operations are conducted by, or on behalf of, the Department of Energy and with regard to which the Department of Energy has a proprietary interest or has entered into a contract with an entity to provide management and operation, management and integration, or environmental remediation, but shall not include any Naval Reactors Facility covered under Executive Order 12344.
(4) DEPARTMENT OF ENERGY CONTRACTOR.—The term ''Department of Energy contractor'' means—
(A) the U.S. Enrichment Corporation (or any successor thereto) which has contracted or subcontracted with the Department of Energy to provide management and operations, management and integration, production, testing,
research, development, environmental remediation, waste management, construction, or other services at a Department of Energy facility, including the following:
(i) Portsmouth Plant, Piketon, Ohio.
(ii) Paducah Plant, Paducah, Kentucky.
(iii) K–25 (now ETTP), Oak Ridge, Tennessee.
(iv) Y–12, Oak Ridge, Tennessee.
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(v) X–10, Oak Ridge, Tennessee.
(vi) Hanford Works, Richland, Washington.
(vii) Idaho National Engineering Laboratory, Idaho Falls, Idaho.
(viii) Rocky Flats Plant, Golden, Colorado.
(ix) Fernald Feed Materials Production Center (now FEMP), Fernald, Ohio.
(x) Mound Facility, Miamisburg, Ohio.
(xi) Los Alamos National Laboratory, Los Alamos, New Mexico.
(xii) Pinellas Plant, St. Petersburg, Florida.
(xiii) Pantex Plant, Amarillo, Texas.
(xiv) Nevada Test Site, Mercury, Nevada.
(xv) Brookhaven National Laboratory, Upton, New York.
(xvi) Lawrence Livermore Laboratory, Livermore, California.
(xvii) Sandia National Laboratory, New Mexico.
(xviii) Iowa Army Ammunition Plant (AEC portion), Burlington, Iowa.
(xix) Fermi Nuclear Laboratory, Batavia, Illinois.
(xx) Weldon Spring, Weldon Spring, Missouri.
(xxi) Savannah River, South Carolina.
(xxii) Argonne National Laboratory, Illinois and Idaho.
(xxiii) Amchitka Island Test Site, Amchitka, Alaska.
(xxiv) Santa Susanna Facilities, Santa Susanna, California.
(xxv) Marshall Island's Nuclear Weapons Test Site, Hawaii (Post-1958 environmental remediation workers).
(B) an entity that supplied uranium conversion or manufacturing services, including the following:
(i) Honeywell Uranium Hexaflouride Facility, Metropolis, Illinois.
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(ii) Nuclear Fuels Services, Erwin, Tennessee.
(iii) Linde Air Products, Tonowanda, New York.
(iv) Reactive Metals, Ashtabula, Ohio.
(v) Malinckrodt Chemical Works, St. Louis, Mo.
(5) COVERED EMPLOYEE.—The term ''covered employee'' means—
(A) an employee of any Department of Energy contractor; or
(B) an individual defined as an employee in section 8101(1) of title 5, United States Code, who may have been exposed to radiation at a Department of Energy facility or at a facility owned, operated, or occupied by a Department of Energy contractor.
(6) COMPENSATION.—The term ''compensation'' means the money allowance payable under this title and any other benefits paid for from the Nuclear Employees' Radiation Compensation Fund, including the compensation payable pursuant to section 208.
(7) COVERED ILLNESS.—The term ''covered illness'' means—
(A) the following medical conditions or diseases, if the onset of the condition or disease was at least 2 years after first exposure:
(i) leukemia (other than chronic lymphocytic leukemia), multiple myeloma, lymphoma, or Hodgkins disease;
(ii) primary cancer of the bone, thyroid, male or female breast, esophagus, stomach, pharynx, small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary bladder, brain, colon, ovary, liver (except if cirrhosis or hepatitis B is indicated), larynx, prostate, kidney, or lung (other than in situ lung cancer that is discovered during or after a post-mortem exam);
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(iii) for employees exposed to uranium or uranium compounds, chronic renal disease (including nephritis and kidney tubal necrosis);
(B) chronic silicosis if—
(i) a covered employee working or worked for at least one year at a Department of Energy facility where the covered employee is or was employed in a work setting with known or probable silica exposure and 10 years have elapsed since initial exposure, whenever that exposure occurred; and
(ii) a chest X-ray with the following findings according to the International Labor Organization classification system: any combination of rounded opacities of type p/q/r, with or without irregular opacities, present in at least both upper lung zones and of profusion 1/0 or greater;
(C) other medical conditions or illness associated with exposure to radiation or other hazardous substances as determined by the Secretary of Health and Human Services pursuant to title III;
(D) any other medical condition or illness whereby the claimant can establish, pursuant to title III, that radiation or a hazardous substance significantly contributed to their illness, disease or condition; or
(E) any injury or illness sustained as a consequence of a covered illness as defined in subparagraph (A), (B), or (C).
(8) HAZARDOUS SUBSTANCES.—The term ''hazardous substances'' is used interchangeably with hazardous materials and includes heavy metals, chemicals, minerals, and other toxic substances to which covered employees are exposed at Department of Energy facilities.
(9) MONTHLY PAY.—The term ''monthly pay'' means—
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(A) for covered employees employed at the time of injury or inception of disability, the monthly pay at the time of injury, or the monthly pay at the inception of disability, or the monthly pay at the time compensable disability recurs, if the recurrence begins more than 6 months after the covered employee resumes regular full-time employment, whichever is greater, except when otherwise determined under section 8113(a) of title 5, United States Code; or
(B) for covered employees who are unemployed at the inception of disability, the monthly pay of the employee's last covered employment calculated as if the employee were still employed, or the monthly pay of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, whichever is greater.
(10) TIME OF INJURY.—The term ''time of injury'' means the last date on which a covered employee was exposed to radiation or other hazardous substance in the performance of duty as specified in section 203.
(11) INCEPTION OF DISABILITY.—The term ''inception of disability'' means the date on which the covered employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the relationship between the employment, the covered illness, and the death or disability.
(12) MISCELLANEOUS TERMS.—The following terms have the meaning given those terms in section 8101 of title 5, United States Code:
(A) ''physician'';
(B) ''medical, surgical, and hospital services and supplies'';
(C) ''widow'';
(D) ''parent'';
(E) ''brother'' and ''sister'';
(F) ''child'';
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(G) ''grandchild'';
(H) ''widower'';
(I) ''student'';
(J) ''price index'';
(K) ''organ''; and
(L) ''United States medical officers and hospitals''.
SEC. 202. ADMINISTRATION.
(a) IN GENERAL.—Within 120 days of enactment of this title, the Secretary of Energy shall enter into an agreement with the Secretary of Labor for the administration of this title, including utilization of Department of Labor services and facilities, and for the compensation by the Department of Energy for such administration from the Nuclear Employees' Radiation Compensation Fund established pursuant to section 221. The Secretary of Labor is authorized to enter into a reimbursable agreement with the Secretary of Energy for the administration of this title. Upon entry into such agreement, the Secretary of Labor may delegate to any officer or employee of the Department of Labor all powers and duties necessary for carrying out the purposes of this title.
(b) AUTHORITY.—To assist and facilitate administration of this title and the adjudication of claims, the Secretary of Energy shall—
(1) provide assistance to employees and claimants in connection with this title, including assistance in securing medical testing and diagnostic services necessary to determine the existence of a covered illness as defined in section 201(7);
(2) ensure the ready availability, in paper and electronic format, of forms necessary for making claims, and provide employees and claimants with necessary information under this title including, medical protocols necessary for medical testing and diagnosis to determine the existence of a covered illness, lists of approved vendors for use in obtaining necessary laboratory services related to such medical testing and diagnosis, and vouchers to cover costs outlined in the medical protocols;
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(3) provide such further assistance to employees and claimants as necessary for the development of the facts pertinent to the claimant's claim or potential claim; and
(4) upon a notification that a claimant has made a claim for benefits under this title, provide such information to the authority with delegated responsibility for the determination and award of claims under section 212, or review thereof under sections 213 and 214, as the authority may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto.
(c) INFORMATION.—The Secretary of Energy may require a Department of Energy contractor to provide information concerning a claim filed under this title to the officers or employees with delegated responsibility for administering this title.
(d) PENALTY.—Failure or refusal to provide information, or knowingly providing false information, in response to a request pursuant to subsections (b) and (c) this section may result in fine or imprisonment, or both, pursuant to section 1922 of title 18, United States Code, as amended by section 228(c).
(e) PENALTY.—Whoever induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under this title or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under this title or any extension or application thereof, or regulations prescribed thereunder, may be subjected to fine or imprisonment, or both, pursuant to section 1922 of title 18, United States Code, as amended by section 228(c).
SEC. 203. OCCUPATIONAL EXPOSURE TO RADIATION AND OTHER HAZARDOUS SUBSTANCES.
(a) IN GENERAL.—In the absence of substantial evidence to the contrary, a covered employee, as defined in subparagraph (A) or (B) of section 201(5), shall be determined to have been exposed to radiation in the performance of duty for the purposes of this title if the individual was employed at a Department of Energy facility, or was present at the facility because of employment by the United States or a contractor or subcontractor of the Department of Energy, for an aggregate period of at least one year and—
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(1) the individual was monitored through the use of dosimetry badges for exposure to radiation or should have been monitored for radiation exposure based on requirements or standards in existence as of the date of enactment of this title; or
(2) worked in a job that, as determined by regulation, resulted in exposure to radiation.
(b) CONSTRUCTION.—In the absence of substantial evidence to the contrary, a covered employee, as defined in section 201(5) (A) or (B), shall be determined to have been exposed to a hazardous substance or hazardous material in the performance of duty for the purposes of this title if—
(1) the individual was employed at a Department of Energy facility, or was present at the facility because of employment by the United States or a contractor or subcontractor of the Department of Energy, for a period of at least one year; and
(2)(A) the individual was monitored for exposure to hazardous substances or hazardous materials or should have been monitored for such exposure, or
(B) provides a work history that, if verified, demonstrated exposure to hazardous substances or hazardous materials.
SEC. 204. COMPENSATION FOR DISABILITY OR DEATH, MEDICAL SERVICES, AND VOCATIONAL REHABILITATION.
(a) IN GENERAL.—In accordance with this title and except as otherwise provided in this Act, the United States is authorized to—
(1) upon application for compensation pursuant to section 210, furnish the costs of all medical testing and diagnostic services necessary for the claimant to determine the existence of a covered illness as defined in section 201(7) and reimburse claimant for any additional reasonable medical expenses incurred in establishing the claimant's claim;
(2) pay the compensation specified in sections 8105–8110, 8111(a), 8112–13, 8115, 8117, 8133–8135, and 8146a (a) and (b) of title 5, United States Code, for the disability or death from a covered illness of a covered employee who was occupationally exposed while in the performance of duty as determined in accordance with section 203;
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(3) furnish the services and other benefits, specified in section 8103 of title 5, United States Code, to a covered employee who sustains a covered illness as a result of occupational exposure while in the performance of duty as determined in accordance with section 203;
(4) pay alternative compensation pursuant to section 208 and attorneys fees as specified in section 217; and
(5) advise a permanently disabled individual whose disability is compensable under this title of the availability of vocational rehabilitation and provide for furnishing vocational rehabilitation service
pursuant to the provisions of section 8104 and 8111(b) of title 5, United States Code;
unless the covered illness or death was caused by one of the circumstances set forth in paragraph (1), (2), or (3) of subsection (a) of section 8102 of title 5, United States Code.
(b) FUND.—All compensation and awards under this title shall be paid from the Nuclear Employees' Radiation Compensation Fund.
(c) COMPENSATION BEFORE EFFECTIVE DATE.—No payment of compensation may be made under this title for any period prior to the effective date of this title, except for the alternative compensation specified in section 208.
SEC. 205. COMPUTATION OF PAY.
(a) IN GENERAL.—Except as otherwise provided by this title, computation of pay under this title shall be determined in accordance with section 8114 of title 5, United States Code.
(b) AVERAGE ANNUAL EARNINGS.—If either of the methods of determining the average annual earnings specified in sections 8114(d) (1) and (2) of title 5, United States Code, cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earning capacity of the covered employee in the employment in which the employee was working at the time of injury or inception of disability, whichever is greater, having regard to the previous earnings of the employee in similar employment, and for other employees of the same employer in the same or most similar class working in the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the covered employee earned in the employment during the days employed within 1 year immediately preceding the date of injury or inception of disability, whichever is greater.
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SEC. 206. LIMITATIONS ON RECEIVING COMPENSATION.
(a) IN GENERAL.—While a covered employee as defined in section 201(5)(B) is receiving compensation under this title, or if the covered employee has been paid a lump sum in commutation of installment payments until the expiration of the period during which the installment payments would have continued pursuant to section 8135 of title 5, United States Code, the covered employee may not receive salary, pay, or remuneration of any type from the United States, except—
(1) in return for service actually performed;
(2) pension for service in the Army, Navy, or Air Force;
(3) other benefits administered by the Department of Veterans Affairs unless such benefits are payable for the same covered illness or the same death;
(4) retired pay, retirement pay, retainer pay, or equivalent pay for service in the Armed Forces or other uniformed service; and
(5) retirement benefits under subchapter III of chapter 83 of title 5, United States Code, or other retirement system for employees of Federal or State government.
However, eligibility for or receipt of benefits under subchapter III of chapter 83 of title 5, United States Code, or another retirement system for employees of Federal or State government, does not impair the right of the employee to compensation for scheduled disabilities specified by section 8107 of title 5, United States Code.
(b) ELECTION OF BENEFITS.—An individual eligible to receive benefits under this title because of a covered illness or death of a covered employee as defined in section 201(5)(B), who also is entitled to receive from the United States under a provision of statute other than this title payments or benefits for that covered illness or death (except proceeds of an insurance policy), because of service by the covered employee (or in the case of death, by the deceased) as an employee or in the armed forces, shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, except as otherwise provided by statute, or unless the level of compensation and other benefits under the other statutory provision or under this title changes, in which event the individual is entitled to make a new informed election.
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(c) LIMITATION.—While a covered employee is receiving compensation under this title, or if the covered employee has been paid a lump sum commutation of installment payments until the expiration of the period during which the installment payments would have continued, the covered employee may not receive payment of any benefits under any other Federal workers' compensation system for the same covered illness or the same death. Such an individual shall elect which benefits to receive. The individual shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, unless the level of compensation and other benefits under the other Federal program or under this title changes, in which event the individual is entitled to make a new informed election.
(d) ELECTION OF BENEFITS.—An individual eligible to receive benefits under this title because of a covered illness or death of a covered employee who is also entitled to receive benefits because of the same covered illness or death of the covered employee from a State workers' compensation system shall elect which benefits to receive, unless—
(1) at the time of injury, the State workers' compensation coverage for the covered employee was secured by a policy or contract of insurance; and
(2) the Secretary waives the requirement to make such an election.
An individual required to make such an election shall make the election within the time allowed by the Secretary of Labor by regulation. The election when made is irrevocable, unless the level of compensation and other benefits under the State program or under this title changes, in which event the individual is entitled to make a new informed election.
SEC. 207. COORDINATION OF BENEFITS.
Except where the Secretary issues a waiver pursuant to section 206(d)(2), a claimant awarded benefits under this title as a result of a covered illness or death of a covered employee who receives benefits because of the same covered illness or death from any other State or Federal workers compensation system and who has elected benefits under this title pursuant to subsection (c) or (d) of section 206, shall receive compensation as specified in this title for the covered illness or death, reduced by the amount of any workers' compensation benefits that the claimant receives or will receive on account of the covered illness or death under any State or Federal workers' compensation system during the period that awarded benefits are provided under this title, after deducting the reasonable costs, as determined by the Secretary of Labor by regulation, of obtaining such benefits.
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SEC. 208. RIGHT TO ALTERNATIVE COMPENSATION.
(a) IN GENERAL.—A covered employee, who was exposed to radiation or other hazardous substance in the performance of duty, as determined in accordance with section 203, and who, in addition, demonstrates the existence of a covered illness, and its diagnosis, by medical documentation created during the covered employee's lifetime or at the time of death or autopsy, may elect to receive compensation in the amount of $200,000, subject to adjustment pursuant to section 8146a(a) of title 5, United States Code, together with those services and benefits specified in section 8103 of title 5, United States Code, in lieu of any other compensation to which the covered employee or the employee's survivors might otherwise be awarded under this title.
(b) COVERED EMPLOYEE DIES.—If a covered employee who would have been eligible to make the election provided by this section dies before the effective date of this title, or before making the election, whether or not the death is the result of a covered illness, the employee's survivor or survivors may make the election to receive the compensation specified in subsection (a) of this section in lieu of any other compensation that either the covered employee or the employee's survivors might otherwise have been awarded under this title. The right to make an election pursuant to this section shall be afforded to survivors in the order of precedence set forth in section 8109 of title 5, United States Code.
(c) TIME FOR ELECTION.—The election to receive compensation under this section in lieu of other compensation under this title shall be made at any time subsequent to filing a claim pursuant to section 210, up to and including 30 days after either the date of a decision determining an award of compensation for total disability or partial disability under this title or the date the Secretary informs the employee or the employee's survivor of the right to make such an election, whichever is later, unless the time is extended upon request by the employee or the employee's survivor. The election when made by a covered employee or survivor is irrevocable and binding on all survivors.
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(d) LIMITATION.—When a covered employee, or the employee's survivor, has made an election to receive compensation pursuant to this section, no other payment of compensation under this title may be made on account of the same or any other covered illness of that employee.
SEC. 209. PAYMENT IN FULL SETTLEMENT OF CLAIMS AGAINST THE UNITED STATES AND THE EMPLOYEE'S EMPLOYER.
(a) IN GENERAL.—If an individual elects to accept payment under this title with respect to a covered illness, or death of a covered employee, that acceptance of payment shall be in full settlement of all claims against the United States under chapter 171 of title 28, United States Code, relating to tort procedures, or against the covered employee's employer (with the exception of intentional torts), that arise out of the employee's exposure to radiation or other hazardous substances in the performance of the employee's duties within the meaning of section 104.
(b) APPLICATION.—This section does not apply to an administrative or judicial proceeding under a State or Federal workers' compensation statute subject to sections 206 and 207, nor to any litigation, whether arising out of the employee's exposure to radiation or other hazardous substances in the performance of his or her duties or not, in any state or Federal court.
SEC. 210. FILING OF CLAIM.
A claim for compensation under this title shall be submitted to the Secretary of Labor, or the Secretary of Labor's designee, in the manner specified in section 8121 of title 5, United States Code, for determination pursuant to section 212.
SEC. 211. TIME LIMITATION ON FILING A CLAIM.
(a) IN GENERAL.—A claim for compensation under this title must be filed within the later of—
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(1) 7 years after the effective date, or
(2) 7 years after the date the claimant first becomes aware of—
(A) a diagnosis of a covered illness, or death resulting from such illness; and
(B) the causal connection of that illness, condition, or death to exposure to radiation of other hazardous substance in the performance of duty as a covered employee.
(b) LIMITATIONS PERIOD.—A new limitations period commences with each later diagnosis of a covered illness different from that previously diagnosed.
(c) TIMELY FILING.—The timely filing of a disability claim because of a covered illness will satisfy the time requirements for a death claim based on the same illness or condition.
SEC. 212. DETERMINATION AND AWARD OF CLAIMS.
(a) IN GENERAL.—Upon entry into the agreement with the Secretary of Energy authorized by section 202(a) of this title, the Secretary of Labor, or the Secretary of Labor's designee, shall determine and make findings of fact and make an award for or against payment of compensation under this title within 120 days of the filing of a claim pursuant to section 210 after—
(1) considering the claim presented by the beneficiary, the results of any medical test or diagnosis undertaken to determine the existence of a covered illness, and any requested report or data furnished by the Department of Energy or a Physicians Panel under title III; and
(2) completing such investigation as the Secretary or the Secretary's designee considers necessary.
(b) CLAIM DETERMINATION.—Except as otherwise specified in this title, the determination of a claim for compensation, and any award and payment of compensation under this section shall be made in accordance with section 8124(a) of title 5, United States Code. Unless a hearing is requested pursuant to section 213(a), the determination, findings, and any award rendered hereunder shall become final and conclusive at the expiration of the thirtieth day after the date of the Secretary of Labor's decision and service thereof upon claimant.
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SEC. 213. REVIEW OF AWARD.
(a) IN GENERAL.—A claimant for compensation is entitled to a hearing on the claimant's claim before an administrative law judge qualified under section 3105 of title 5, United States Code, upon request made by claimant within 30 days after the date of issuance and service of the Secretary of Labor's findings and decision under section 212, and to the presentation at such hearing of evidence in further support of the claim. The administrative law judge may extend the period for requesting a hearing under this section upon petition of the claimant and good cause shown.
(b) ADMINISTRATIVE LAW JUDGE.—The administrative law judge shall, in the conduct of a hearing requested pursuant to subsection (a) of this section and in the evaluation and determination of a claimant's claim, have those powers, duties and responsibilities vested by section 8124(b) of title 5, United States Code, in the Secretary of Labor, if the hearing is conducted in accordance with the provisions of section 554 of title 5, United States Code. Parties to a proceeding under this subsection shall be strictly limited to the claimant and the Secretary of Labor as represented by the Secretary of Labor's designee.
(c) The administrative law judge shall have power to preserve and enforce order during any proceeding under this section, to issue subpoenas for, to administer oaths to, and to compel the attendance and testimony of witnesses, or the production of books, papers, documents, and other evidence, or the taking of depositions before any designated individual competent to administer oaths, to examine witnesses, and to do all things conformable to law which may be necessary to enable the administrative law judge effectively to discharge the administrative law judge's duties under this title.
(d) PENALTY.—If any person in proceedings before an administrative law judge under this section disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the same, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take the oath as a witness, or after having taken the oath refuses to be examined according to law, the administrative law judge shall certify the facts to the district court having jurisdiction in the place in which the administrative law judge is sitting (or to the United States District Court for the District of Columbia if the administrative law judge is sitting in such District) which shall thereupon in a summary manner hear the evidence as to the acts complained of, and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.
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(e) RECORD.—The record shall close at the conclusion of the hearing, except where the administrative law judge grants, for good cause, an extension not to exceed 30 days for the submission of additional evidence and argument.
(f) DECISION NOTICE.—Within 45 days of the closing of the record, and no later than 180 days after receipt of claimant's request for hearing, the administrative law judge shall notify the claimant in writing of his decision and any award he may make, and of the basis for such decision and award. In accordance with the facts found on review, the administrative law judge may end, decrease, or increase the compensation previously awarded, or award compensation previously refused or discontinued.
(g) EFFECTIVE DATE OF DECISION.—Unless appealed to the Benefits Review Board as provided in section 214, the decision by the administrative law judge, and any award rendered as a result thereof, shall become effective upon filing with the Secretary of Labor, or the Secretary of Labor's designee, and service upon the claimant, and shall become final and conclusive at the expiration of the thirtieth day thereafter.
SEC. 214. APPEAL.
(a) IN GENERAL.—Within 30 days of the effective date of a decision rendered by an administrative law judge under section 213, an aggrieved claimant may seek review of such determination before the Benefits Review Board established pursuant to section 21(b) of the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 921(b)). The Benefits Review Board may extend the period for requesting review under this section, not to exceed an additional 30 days, upon petition of the claimant and good cause shown.
(b) BOARD AUTHORITY.—The Benefits Review Board is authorized to hear and determine an appeal under this section in accordance with and pursuant to the authority vested in the Board by section 921(b) of title 33, United States Code. The Board shall make its final determination with regard to such appeal within 240 days following receipt of claimant's request for review. Parties to a proceeding under this subsection shall be strictly limited to the claimant and the Secretary of Labor as represented by the Secretary of Labor's designee.
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(c) JUDICIAL REVIEW.—A claimant adversely affected or aggrieved by a final determination and order of the Benefits Review Board may obtain review thereof in the United States court of appeals for the circuit in which the claimant resides pursuant to section 21(c) of the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 921(c)).
SEC. 215. RECONSIDERATION OF DENIAL OF CLAIM.
(a) IN GENERAL.—Notwithstanding any other provision of this title, a claimant or eligible surviving beneficiary may obtain reconsideration of a decision denying coverage under this title after the promulgation by the Secretary, pursuant to section 226(b), of regulations identifying additional criteria for establishing the existence of a covered illness.
(b) RECONSIDERATION.—Notwithstanding any other provision, a claimant or eligible surviving beneficiary may obtain reconsideration of a decision denying coverage under this title based on new evidence or amendment in the laws governing disposition of claims for benefits under this title.
SEC 216. RESOLUTION OF ISSUES IN THE AWARD OR DENIAL OF COMPENSATION; COSTS OF ADMINISTRATION.
(a) IN GENERAL.—Failure to render a determination on a claim within any time period prescribed in section 212, 213, or 214 shall result in the award of the claim as a matter of law.
(b) DOUBT.—All reasonable doubt with regard to whether a claim for compensation meets the requirements shall be resolved in favor of the claimant.
(c) MEDICAL SERVICES.—In securing medical testing and diagnostic services to determine the existence of a covered illness compensable under this title, the claimant may utilize a physician of the claimant's choice, or a Department of Energy funded or sponsored medical screening program or employer-provided program, if available.
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(d) CONSTRUCTION.—Except as otherwise specified in this title, the provisions of sections 8123, 8125–8127, 8129, 8133, 8134, and 8146a(a) of title 5, United States Code, shall govern the adjudication, award and payment of claims, and the resolution of issues under this title.
(e) SUIT.—A claimant may sue the Department of Energy or its contractors in a district court of the United States to compel the production of information or documentation requested by the Secretary of Labor, an administrative appeals judge, or the Benefits Review Board, as the case may be, where the information or documentation requested is not provided within 60 days from the date the request is made. Upon successful resolution of any suit brought pursuant to this subsection, the court shall award claimant reasonable attorney's fees and costs, which shall be considered costs incurred by the Secretary of Energy and shall not be paid from the Nuclear Employees' Radiation Compensation Fund, or set off against, or otherwise deducted from any payment to claimant under this title.
(f) CONSTRUCTION.—Sections 213 and 214 do not confer the right to a hearing or of appeal on the Secretary of Labor or the Secretary of Energy, although the Secretary of Labor or the Secretary of Labor's designee may appear before the administrative law judge, the Benefits Review Board, or court, as the case may be, in explanation of the Secretary of Labor's initial determination under section 212 where the claimant has appealed therefrom.
(g) COSTS.—The costs incurred by the Secretary of Labor, an administrative law judge, or the Benefits Review Board in the administration and adjudication of claims thereunder are chargeable against, and shall be paid from, the Nuclear Employees' Radiation Compensation Fund established pursuant to section 221.
SEC. 217. REPRESENTATION; FEES FOR SERVICES.
(a) IN GENERAL.—A claimant may authorize an attorney to represent the claimant in any proceeding under this title.
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(b) FEE AWARD.—If the Secretary of Labor, or the Secretary of Labor's designee, declines to pay compensation, in whole or in part, under section 212, and the person seeking benefits under this title thereafter utilizes the services of an attorney at law in the successful prosecution of the claimant's claim under section 213 or 214, there shall be awarded, in addition to the award of compensation, a reasonable attorney's fee, and costs, for the services provided by the attorney under section 213 or 214, in an amount approved by the administrative law judge, the Benefits Review Board, or court, as the case may be. The award of attorney's fees under this subsection shall be paid by the Secretary from the Nuclear Employees' Radiation Compensation Fund directly to the attorney for the claimant in a lump sum after the compensation order becomes final.
(c) DENIAL SET ASIDE.—In the event an administrative law judge, the Benefits Review Board, or the court, as the case may be, sets aside the denial of a claim under this title as arbitrary and capricious, claimant shall be awarded, separate and apart from and in addition to any award of attorney's fees under subsection (b) of this section, reasonable attorney's fees and costs incurred with respect to the appeal and review necessitated thereby. In the event that claimant subsequently prevails upon remand on the claimant's claim, claimant shall be awarded, in addition to the award to which the claimant is otherwise entitled under this title, 10 percent per annum on the claimant's claim from the date of the original denial of the claim. Attorney's fees, costs, and interest awarded pursuant to this subsection shall be considered costs incurred by the Secretary of Labor and shall not be paid from the Nuclear Employees' Radiation Compensation Fund, or set off against, or otherwise deducted from any payment to claimant under this title.
(d) AWARD OF FEES.—Where an award of attorney's fees for services is allowed under this section, the attorney receiving such award shall be prohibited from charging claimant, directly or indirectly, for the same services. A violation of this subsection shall result in a fine of not more than $5,000 assessed by the Secretary against the offending attorney.
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SEC. 218. STATUS OF AWARD; CERTAIN CLAIMS NOT AFFECTED.
(a) IN GENERAL.—Any award ordered or amount paid pursuant to this title—
(1) shall not be considered income for purposes of the Internal Revenue Code Of 1986 and shall not be subject to Federal income tax under the Internal Revenue Code of 1986;
(2) shall not be included as income or resources for purposes of determining eligibility to receive benefits described in section 3803(c)(2)(C) of title 31, United States Code, or the amount of those benefits; and
(3) shall not be subject to offset under chapter 37 of title 31, United States Code.
(b) PAYMENT.—A payment made under this title shall not be considered as any form of compensation or reimbursement for a loss for purposes of imposing liability on the individual receiving the payment to repay any insurance carrier for insurance payments made. A payment under this title does not affect any claim against an insurance carrier with respect to insurance.
SEC. 219. ASSIGNMENT OF CLAIM.
A claim cognizable under this title is not assignable or transferable. Any assignment or transfer of a claim for compensation under this title is void. Compensation and claims for compensation are exempt from claims of creditors.
SEC. 220. SUBROGATION OF THE UNITED STATES.
(a) IN GENERAL.—If a covered illness or death for which compensation is payable under this title is caused under circumstances creating a legal liability in a person other than the United States to pay damages, sections 8131 and 8132 of title 5, United States Code, shall apply, except to the extent specified in this title.
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(b) FUND REFERENCE.—For purposes of this section, references in sections 8131 and 8132 of title 5, United States Code, to the Employees' Compensation Fund shall mean the Nuclear Employees' Radiation Compensation Fund.
(c) APPLICATION OF SECTION 8131.—For the purposes of this title, the provision in section 8131 of title 5, United States Code, that provides that an employee required to appear as a party or witness in the prosecution of an action described in that section is in an active duty status while so engaged shall only apply to a covered employee as defined in section 201(5)(B).
SEC. 221. NUCLEAR EMPLOYEES' RADIATION COMPENSATION FUND.
(a) IN GENERAL.—To carry out this title, there is established in the Treasury of the United States the Nuclear Employees' Radiation Compensation Fund, which shall consist of—
(1) sums that are appropriated for it;
(2) amounts that are transferred to it from other Department of Energy accounts pursuant to section 225(a); and
(3) amounts that would otherwise accrue to it under this title.
(b) FUND USE.—Amounts in the Nuclear Employees' Radiation Compensation Fund are authorized to be used for the payment of compensation and other benefits and expenses authorized by this title and for payment of all expenses incurred in administering this title. Such funds are authorized to be appropriated to remain available until expended.
(c) QUARTERLY DETERMINATIONS.—
(1) IN GENERAL.—Within 45 days of the end of every quarter of every fiscal year, the Secretary shall determine the total costs of benefits, administrative expenses, and other payments made from the Nuclear Employees' Radiation Compensation Fund during the quarter just ended; the end-of-quarter balance in the Fund; and the amount anticipated to be needed during the immediately succeeding two quarters for the payment of benefits and administrative expenses under this title.
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(2) DETERMINATION IN LAST QUARTER.—Each cost determination made in the last quarter of the fiscal year under paragraph (1) shall show, in addition, the total costs of benefits and expenses and other payments from the Fund during the preceding twelve-month expense period and an estimate of the expenditures from the Nuclear Employees' Radiation Compensation Fund for the payment of benefits and expenses and other payments for each of the immediately succeeding two fiscal years.
SEC. 222. CIVIL SERVICE RETENTION RIGHTS.
In the event that a covered employee, as defined in section 201(5)(B), resumes employment with the Federal Government, the individual shall be entitled to the rights set forth in section 8151 of title 5, United States Code.
SEC. 223. ANNUAL REPORT.
The Secretary shall, at the end of each fiscal year, prepare a report with respect to the administration of this title.
SEC. 224. AUTHORIZATION OF APPROPRIATIONS.
(a) IN GENERAL.—There is authorized to be appropriated to the Department of Energy for deposit into the Nuclear Employees' Radiation Compensation Fund such sums as are necessary to carry out the purposes of this title, including the administration thereof. In addition, the Department is authorized, to the extent provided in advance in appropriations Acts, to transfer amounts to the Fund from other Department of Energy appropriations accounts, to be merged with amounts in the Fund and available for the same purposes.
(b) COMPENSATION AND BENEFITS LIMITATION.—In any fiscal year, the Secretary of Labor shall limit the amount of the compensation and benefits payments under this title to an amount not in excess of the sum of the appropriations to the Nuclear Employees' Radiation Compensation Fund and amounts made available by Department of Energy transfers to the Fund. Notwithstanding any other provision, if in any fiscal year the Secretary of Labor finds that estimates of amounts contained in reports pursuant to section 221(c)(1) for the payment of compensation, other benefits, and administrative activities authorized by this title will exceed the amounts in the Fund, the Secretary of Labor is required to reduce compensation and benefits payments to the extent necessary to make up any amounts by which benefits and other costs authorized by this title exceed the amount in the Fund calculated on a fiscal year basis.
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(c) SECRETARY OF ENERGY REGULATIONS.—The Secretary of Energy, in consultation with the Secretary of Labor, shall promulgate regulations to implement this section within 120 days of enactment.
SEC. 225. REGULATIONS; REGULATORY AUTHORITY.
(a) IN GENERAL.—Not later than 120 days after the date of enactment of this title, the Secretary of Labor shall prescribe such rules and regulations as may be necessary for the administration and enforcement of this title.
(b) ADDITIONAL CRITERIA.—Additional criteria by which a claimant may establish the existence of a covered illness, as defined in subparagraph (A), (B), or (C) of section 201(7), may be specified in regulations issued by the Secretary, after consultation with the agency that contracts to administer this title.
SEC. 226. CONSTRUCTION.
References in this title to a provision of another statute shall be considered references to such provision, as amended and as may be amended from time to time.
SEC. 227. CONFORMING AMENDMENTS.
(a) SECTION 1920.—Section 1920 of title 18, United States Code, is amended by inserting in the title ''or Energy employee's'' after ''Federal employee's'' and by inserting ''or the Energy Employees' Compensation Act'' after ''title 5''.
(b) SECTION 1921.—Section 1921 of title 18, United States Code, is amended by inserting in the title ''or Energy employees'' after ''Federal employees'' and by inserting ''or the Energy Employees' Compensation Act'' after ''title 5''.
(c) SECTION 1922.—Section 1922 of title 18, United States Code. is amended—
(1) by inserting in the title ''or Energy employees'' after ''Federal employees'';
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(2) by inserting ''(a)'' before ''Whoever,'';
(3) by striking '', neglects,'' after ''willfully fails''; and
(4) inserting a new subsection as follows:
''(b) Whoever is charged with the responsibility for providing information pursuant to sections 302(b) and 302(c) of title III of the Energy Employees' Compensation Act and who willfully fails or refuses to provide this information, or knowingly provides false information, or induces, compels, or directs an injured employee to forego filing of any claim for compensation or other benefits provided under the Energy Employees' Compensation Act or any extension or application thereof, or willfully retains any notice, report, claim, or paper which is required to be filed under that Act or any extension or application thereof, or regulations prescribed thereunder, shall be fined under this title or imprisoned not more than one year, or both.''.
(d) WHISTLEBLOWERS.—Section 211(a)(1) of the Energy Reorganization Act of 1974 (42 U.S.C. 5851(a)) is amended—
(1) in subparagraph (E), by striking ''or''
(2) in subparagraph (F), by striking the period and inserting ''; or''; and
(3) by inserting after subparagraph (F) the following:
''(G) filed an application for benefits or assistance under title XXXI of the Energy Policy Act of 1992.''.
SEC. 228. EFFECTIVE DATE.
This title is effective upon the date of its enactment.
TITLE III—EMPLOYEES EXPOSED TO TOXIC SUBSTANCES AND HEAVY METALS
SEC 301. ELIGIBILITY OF EMPLOYEES EXPOSED TO OTHER TOXIC SUBSTANCES AND HEAVY METALS.
(a) IN GENERAL.—A claim may be submitted under this title for compensation for illnesses, impairments, diseases, or death for which the claimant can establish that exposure to a hazardous substance occurred while a covered employees, as defined under section 201(5), while employed at a Department of Energy facility listed under section 201(4), and that such exposure was a contributing factor to the illness, disease, or death. Claims shall be submitted in the manner specified under section 8121 of title 5, United States Code, for a determination pursuant to section 212. Except as provided in this title, claims shall be administered and compensation paid pursuant to the terms and conditions of this title. Claims for occupational illness, disease or death shall not be covered under this title which are specifically covered under title I (beryllium diseases) or title II (radiogenic diseases).
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(b) QUESTIONNAIRE.—The Secretary of Labor shall develop a questionnaire for the claimant to identify the history of employment hazards to a covered employee at a DEPARTMENT OF ENERGY facility and to provide documentation to support the claim. The Secretary of Labor shall provide the claimant with an opportunity to identify documents and information in the possession of the Department of Energy or its contractors which the claimant believes will support their claim.
SEC 302. ESTABLISHMENT OF A PHYSICIANS PANEL BY THE SECRETARY OF HEALTH AND HUMAN SERVICES.
(a) IN GENERAL.—The Secretary of Health and Human Services shall, in consultation with the Association of Occupational Health Clinics, appoint one or more 3-member Physicians Panels, depending on geographic needs and the size of the caseload, composed of physicians with experience and competency in diagnosing occupational illnesses. Each member shall be paid at the rate of pay payable for Level III of the Executive Schedule for each day (including travel time) the member is engaged in the work of the panel. The Secretary shall also provide necessary administrative support for the panel to conduct its work.
(b) DEEMED EXPERT PANEL.—The Secretary of Labor shall deem the panel appointed under subsection (a) to be an expert panel for purposes of medical recommendation. However, a claimant may seek and present a second opinion to the Secretary of Labor in the event that a claimant disputes a determination or recommendation by a panel.
(c) COSTS.—Costs of operating the panels shall be reimbursed by the Secretary of Energy from the Energy Employees Occupational Illness Act Fund.
SEC. 303. ELIGIBILITY DETERMINATION.
(a) IN GENERAL.—The Secretary of Labor shall forward claims to the Secretary of Health and Human Services when there is a need for a determination whether occupational exposure to a hazardous substance was a contributing factor to the illness, impairment, disease, or death of a claimant, and the Secretary of Labor is unable to make an affirmative determination based on the information submitted by the claimant.
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(b) PANEL AND CLAIMS.—Upon receipt of a claim from the Secretary of Labor, the Secretary of Health and Human Services shall forward such claims within 7 days to a physicians panel. The Secretary shall, upon passage, develop procedures for receiving, tracking, and returning recommendations to the Secretary of Labor, and for employing and providing services to the panels.
(c) PANEL ACTION.—The panels shall promptly review claims, including medical records and work history, submitted by the Secretary of Labor, and determine whether exposure to a hazardous substances was a contributing factor to the employee's illness, disease, or death. Claims shall be reviewed and determinations issued, whenever practical, within 60 days. If a determination shall take more than 60 days, the Secretary of Labor and the claimant shall be notified of the date by which a determination shall be issued.
(d) EXPOSURE INFORMATION.—Where exposure information is insufficient or non existent, the panels shall evaluate exposure risks by determining the nature of the job hazards by identifying job titles held by the employee, length of employment, type of work activities, types of occupational hazards, length of time exposed to these hazards, whether there was adequate protective equipment, whether there was full knowledge by employee of exposure to hazards, whether more than one hazard presents an additive or multiplicative effect, whether employee was involved in accidental release or accident, and whether similarly situated employees have contracted similar diseases that are attributable to occupational exposure.
(e) ADDITIONAL INFORMATION.—Upon request, the claimant shall have the opportunity to present additional medical or exposure information to the panel through the Secretary of Labor. If additional information is required to render a recommendation, the panel may request, through the Secretary of Labor, that a claimant undergo specified diagnostic tests, or that the Department of Energy or its contractors supply additional information. A copy of the recommendation shall be provided to the claimant by the Secretary of Labor upon request.
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SEC 304. ESTABLISHMENT OF OCCUPATIONAL DISEASE PRESUMPTIONS.
(a) IN GENERAL.—In addition to the occupational disease presumptions established in titles I and II, the Secretary of Health and Human Services shall direct that a panel establish a list of illnesses and diseases which, based on occupational exposure to certain hazardous substances or based on employment in certain industrial or laboratory processes, are potentially attributable to employment at Department of Energy facilities or Department of Energy vendors listed in section 201. This list of presumptions shall serve as guidance to the panels in expediting and improving the quality of recommendations, and shall be provided to the Secretary of Labor for use in developing guidance for making claims determinations. Such list shall be published 12 months after the establishment of this program, updated on an annual basis thereafter, and provided as a report to Congress.
(b) LIST OF PRESUMPTIONS.—In establishing a list of presumptions, a panel shall—
(1) identify and categorize the types and patterns of diseases which are potentially attributable to employment at a listed Department of Energy facility, including those illnesses, impairments, diseases, and deaths identified through medical screening programs conducted through the Department of Energy's Office of Environment, Safety and Health, (including the former worker medical program authorized under Section 3162 of the Fiscal Year 93 Defense Authorization Act (42 U.S.C. 7274(i))), National Institute of Occupational Safety and Health health studies, peer reviewed epidemiology studies, and Department of Energy medical programs.
(2) identify and apply presumptions that are supported in the scientific and medical literature, and where there are biological indicators that can be used, a panel shall specify diagnostic tests required to establish a presumption that exposure or ingestion of a particular substance or compound will significantly contribute to illness, impairments, disease, or death.
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(3) evaluate site specific history of working conditions at certain types of facilities (such as gaseous diffusion plants, calcining facilities, reactors, etc.), and the adequacy of protective measures provided to exposed workers over the history of operations;
(4) determine whether patterns of diseases exist that are potentially attributable linked to workplace exposures;
(5) determine whether workers were adequately informed of exposure hazards;
(6) determine whether there are presumptions of workplace causation that have been established for workers similarly exposed in other hazardous industries or occupations (such as firefighters);
(7) determine whether workers were involved in accidents where excessive exposures occurred;
(8) determine whether workers exposed to hazardous substances received adequate follow-on emergency medical treatment and monitoring and subsequent medical attention to determine health impairment; and
(9) evaluate other factors that a panel deems prudent and necessary.
Moreover, in addition to the 9 forgoing factors, a panel shall evaluate those circumstances where covered employees, without their knowledge and consent, were placed at undue risk to hazardous substances without adequate protections or monitoring and shall recommend whether fairness and equity require that a presumption be established in favor of employees for eligibility for compensation for illnesses, impairments and diseases. Such recommendation shall be incorporated in the annual report and transmitted to Congress.
(d) REVIEW OF DATA.—The Department of Energy shall submit reports to the Secretary of Health and Human Services who shall, in turn, provide panels with information on (1) historic exposure assessments and (2) reports on ES&H practices, and (3) medical findings and data on the Department of Energy Medical Surveillance Program carried out under section 3162 of the 1993 Defense Authorization Act.
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SEC. 305. PANEL SHALL REPORT DETERMINATION TO SECRETARY OF LABOR.
Once a panel has made a recommendation on a claim referred by the Secretary of Labor, it shall report its recommendation to the Secretary of Labor within 7 days of approving a recommendation with an outline of the reasons for the determination. The panel shall make its recommendation on the basis of whether workplace exposures to hazardous substances were a substantial contributing factor to the illness, impairment, disease, or death.
TITLE IV—ECONOMIC DEVELOPMENT ASSISTANCE
SEC. 401. ELIGIBILITY OF COMMUNITIES CONTAINING DEPARTMENT OF ENERGY DEFENSE NUCLEAR FACILITIES.
Section 302(a) of the Public Works and Economic Development Act of 1965 (42 U.S.C. 3161(a)) is amended by adding at the end the following:
''(4) DEPARTMENT OF ENERGY DEFENSE NUCLEAR FACILITIES.—The area contains a Department of Energy defense nuclear facility, as defined by section 3163 of the National Defense Authorization Act for Fiscal Year 1993 (42 U.S.C. 7274j).''.
Mr. SMITH. For several decades, many workers involved in our nuclear weapons program were exposed to these hazardous materials without their knowledge and consent. Substantial documentation shows that these workers were exposed to radiation, beryllium, heavy metals, and toxic substances at the Department of Energy and other sites across the country. Evidence supports the conclusion that DOE workers incurred increased risk of both cancer and non-malignant disease at numerous facilities.
Several studies have established a correlation between diseases and exposure to radiation and beryllium. Workplace exposure to dust particles or vapor of beryllium, even where there was compliance with standards in place at the time, can cause serious diseases. It appears workers also were exposed to heavy metals and toxic substances at levels that can contribute to illness.
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Because of the Department of Energy's policy to litigate occupational illness claims, workers were discouraged from filing Workers' Compensation claims. Because State Workers' Compensation program standards are not uniform, many do not provide adequate compensation for those workers who have developed beryllium disease. In States like Pennsylvania, for example, people cannot get compensation because they do not become ill until after the statute of limitations for filing a claim based on their employment has expired.
When it comes to illnesses caused by radiation exposure, approximately 99 percent of the workers cannot receive Workers' Compensation in any State because they cannot meet the high dosage standards. The DOE failed to monitor workers adequately and the dose records maintained by DOE are of questionable value, so it is difficult for workers to prove they have a legitimate Workers' Compensation claim.
Today, we will hear from House and Senate members on their proposals to compensate these workers. Also testifying are representatives of the administration, experts on these illnesses and on the legal and administrative processes involved, and individuals who have lost their health as a result of their work for the government.
No one disputes the need to provide adequate compensation to these individuals. This hearing will address the different approaches in these bills, how they would work, how they compare with other government compensation programs for workers, and what is the proper response of the Federal Government.
[The prepared statement of Mr. Smith follows:]
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PREPARED STATEMENT OF HON. LAMAR S. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
Our hearing today is on six pieces of legislation that would compensate workers whose health has suffered because of their employment at facilities that participated in the manufacture of nuclear weapons.
These bills attempt to compensate workers who were exposed to toxic and radioactive materials.
Nuclear weapons production involved unique dangers, including exposure to radioactive and hazardous substances, such as beryllium, that even in small amounts can cause physical harm. For several decades, many workers involved in our nuclear weapons program were exposed to these hazardous materials without their knowledge and consent.
Substantial documentation shows that these workers were exposed to radiation, beryllium, heavy metals, and toxic substances at the Department of Energy and other sites across the country.
Evidence supports the conclusion that DOE workers incurred increased risks of both cancer and non-malignant diseases at numerous facilities. Several studies have established a correlation between diseases and exposure to radiation and beryllium.
Workplace exposure to dust particles or vapor of beryllium, even where there was compliance with standards in place at the time, can cause serious diseases. It appears workers also were exposed to heavy metals and toxic substances at levels that can contribute to illness.
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Because of the Department of Energy's policy to litigate occupational illness claims, workers were discouraged from filing workers compensation claims and those who did have been hit hard financially.
Because state workers' compensation programs' standards are not uniform, many do not provide adequate compensation for those workers who have developed beryllium disease. In states like Pennsylvania, for example, people can't get compensation because they don't become ill until after the statute of limitations for filing a claim based on their employment has expired.
When it comes to illnesses caused by radiation exposure, approximately 99% of the workers can not receive workers compensation in any State because they cannot meet the unreasonably high dosage standards. The DOE failed to monitor workers adequately and the dose records maintained by DOE are of questionable value so it is difficult for workers to prove they have a legitimate worker compensation claim.
Today we will hear from House and Senate Members on their proposals to compensate these workers. Also testifying are representatives of the Administration, experts on these illnesses and on the legal and administrative processes involved, and individuals who have lost their health as a result of their work for the government.
No one disputes the need to provide appropriate compensation to these individuals. This hearing will address the different approaches in these bills; how they would work; how they compare with other government compensation programs for workers; and what is the proper response of the Federal Government.
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Mr. SMITH. Let me add a couple of things here before I recognize the ranking member from Texas, and that is because we have a long hearing and because we have over 20 witnesses, we are going to adhere strictly to the 5-minute rule. I also want to say that out of concern and deference to the victims themselves, we have set aside a specific time this afternoon at 1 o'clock when we will hear their testimony. This will avoid them having to wait unduly this morning, not knowing when they would be called upon to be witnesses.
Also before we go further, I would like to acknowledge the work of two staff members. Cindy Blackston to my immediate right has been working night and day on this hearing for the last 2 weeks and is in surprisingly good spirits this morning for that work that she has put in. Also, Kelly Dixon on the Immigration staff who has been assisting Cindy Blackston. We appreciate all the work she has done, as well.
With that, I will recognize the gentlewoman from Texas, Ms. Jackson Lee, for her opening statement.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and thank you for holding this hearing. I am not sure, Mr. Chairman, how many more hearings this subcommittee will be able to hold in the time frame that we have, but might I say to you that this will probably go down in the history of this particular subcommittee as one of the most important hearings that we could have, and I personally would like to thank you for your leadership and thank you for your leadership over the past 6 years of this committee and, as well, the opportunity to have worked with you over these 2 years and to say to all who are listening, it has been certainly an honor to find common ground on many issues. I think we take humor in the fact that we disagreed on many other issues, but the opportunity to work and to come to common ground. I think if we can raise the specter of light on this issue, this may be one of this committee's finest moments and I thank you very much for your leadership.
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I am very proud to say that I heard the sound of, the cry of those who raised their voices early on and am a cosponsor of several pieces of legislation that are led in particular by a member who is here, Mr. Kanjorski, and others, and so I appreciate the leadership of all of these members.
Citing the USA Today expose on this on September 6, 2000, the opening quote says, ''There is no telling how much health or environmental damage may or may not have been done at the scores of sites where companies secretly worked for the nuclear weapons program. During the course of the Cold War, hundreds of thousands of Americans were enlisted to serve their country in activities related to the development, production, and testing of nuclear weapons. They are our heroes. They were serving their country and they were mostly civilians. The government and its contractors hid risks from workers to avoid embarrassment and liability and failed to keep records that might provide assurance which is now needed.''
Jonathan Turley, Director of George Washington University's Environmental Advocacy Center, says there is also the matter of trust. He states that the Department of Energy has done truly horrible things to workers who have sought compensation in the past. They refused to acknowledge virtually any job-related illnesses. Workers who questioned their own safety and health were often harassed. He also stated that workers will be reluctant to believe that the Department of Energy now wants to help them. I am gratified, however, that the Congress has risen to the challenge.
As I look at the members of this panel, I see my distinguished colleagues who share with me a deep passion for this issue and I see a bipartisan commitment. They have constituents who suffer from these various illnesses who are desperately seeking relief.
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The issues to be addressed at this hearing will be who should be eligible for compensation? How does an employee prove that his or her illness was caused by workplace exposure to hazardous conditions when the government has failed to keep complete records of the extent to which such exposure occurred? To what extent should people be helped with State Workmans' Compensation claims, and who should administer the compensation program, and should compensation be given for exposure to other types of hazardous materials, such as toxic waste or asbestos dust? We hope members will help us answer these questions.
I believe that the Senate amendments are very much in consideration, or should be in consideration, to allow us to move forward. The Senate provision is not open-ended. It is not a blank check. It is a way that we can respond immediately as it is proposed in the Senate defense authorization bill. I hope it will run its course.
This issue has strong merit and strong bipartisan support. These workers must be compensated. Let me also thank my staff, Leon Buck and Nolan Rappaport, for their assistance, Mr. Chairman. I am looking forward to the testimony, and again, gratified both for the members, the legislation, but most importantly, the courage of the heroes that have served us and served their country whose testimony we will hear today.
I yield back the balance of my time and I would ask that my complete statement be submitted into the record.
Mr. SMITH. Without objection, the complete opening statement will be made a part of the record. I thank you, Ms. Jackson Lee, both for your opening statement and for your personal comments, as well.
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[The prepared statement of Ms. Jackson Lee follows:]
PREPARED STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
During the course of the Cold War, hundreds of thousands of Americans were enlisted to serve their country in activities related to the development, production, and testing of nuclear weapons.
In the 1980s Congress acted to provide compensation for ills sustained by ''atomic veterans'' who participated in ''training exercises'' at nuclear weapon tests. In 1990, Congress acted to provide compensation for uranium miners who suffer lung cancer or respiratory ills who worked at contractor owned facilities.
In the late 1990s, following the report of President Clinton's Advisory Committee on Human Radiation Experiments, the government provided compensation for citizens unknowingly used as subjects in government sponsored human radiation experiments.
From the World War II Manhattan Project to the present, hundreds of thousands of Nuclear weapons workers have been employed to develop, build, and test nuclear weapons, and to perform related cleanup. The government has not acted to provide redress to workers who became ill as a result of this work.
By contrast to the Atomic Veterans and the subjects of human radiation experiments, the weapons workers were intimately exposed to radioactive and further toxic hazard day after day, and in many cases for years or decades. By contrast to the uranium miners—who were also daily exposed to excess and unwarranted risk—the vast majority of nuclear workers worked at facilities that were owned and were operated under the direct regulatory control of the United States government.
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The government and its contractors hid risk from workers to avoid embarrassment and liability and failed to keep records that might provide assurance which is now needed.
Finally, we come to this hearing today. In April of this year, The Clinton Administration came forth with a proposal that would compensate thousands of sick nuclear-weapons-plant workers who became seriously ill because of exposure to radiation and beryllium on the job.
Jonathan Turley, Director of George Washington University's Environmental Advocacy Center, says there's also the matter of trust. He states that ''The Department of Energy has done truly horrible things to workers who have sought compensation in the past. They refused to acknowledge virtually any job-related illnesses. Workers who questioned their own safety and health were often harassed. He also stated that workers will be reluctant to believe the Energy Department wants to help them now.
According to an article in the U.S. News and World Report in April 24, 2000, over the past decade, nuclear plants have adopted more protective measures to safeguard both the environment and worker health and safety. Experts say workers face new health risks as they clean up the tens of thousands of barrels of toxic radioactive and hazardous waste and the million of gallons of toxic sludge that litter the nation's nuclear weapons sites.
As I look at the Members Panel, I see my distinguished colleagues who share with me, a deep passion for this issue. They have constituents who suffer from these various illnesses who are desperately seeking relief. The issues to be addressed at this hearing will be:
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Who should be eligible for compensation?
How does an employee prove that his or her illness was caused by workplace exposure to hazardous conditions when the government has failed to keep complete records of the extent to which such exposure occurred?
To what extent should people be helped with State workman's compensation claims?
Who should administer the compensation program? and
Should compensation be given for exposure to other types of hazardous materials such as toxic chemicals or asbestos dust?
These answers have already been supplied by the Members who have come before this committee in various forms.
I strongly support the Senate amendment—its costs are reasonable and its coverage addresses major—although not all equities that could and ultimately should be addressed. The Senate provision, according to the Congressional Budget Office is projected to spend $60 billion over the same period to clean up soil, contaminated facilities and to stabilize nuclear and hazardous wastes. It's time that people who were exposed to some of the most dangerous materials in the world to be given priority.
The Senate provision is not an open-ended blank check. The US government's nuclear weapons production complex are now losing their jobs, or retiring. Over the next ten years, the proposed compensation legislation in the Senate Defense Authorization bill will run its course, and is finite.
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We now have before us, in the Senate version of the Defense Authorization bill, comprehensive provision for DOE workers that is fair, equitable and consistent with decades of worker compensation law. I am very interested to see what my colleagues who come before us today, views are on this subject.
This is an issue which has strong merit and strong bi-partisan support. While this Committee has not, until today addressed nuclear weapons workers compensation, there is an extensive Congressional record of hearings and proposed legislation to address the problems of nuclear workers going back for twenty years. This issue is not new to the Congress. What is new and unique Mr. Chairman is the fact that we have finally reached a point where the majority of the Congress agrees on the need to provide justice to those hard working and patriotic Americans who in the course of providing for our nation's defense during the Cold War, sacrificed their health and their lives.
Thank-you Mr. Chairman.
Mr. SMITH. We will now go to the first panel and I will introduce them. They are Senator George Voinovich, Congressman Paul Kanjorski, Congresswoman Marcy Kaptur, Congressman Ted Strickland, Congressman Ed Whitfield, Congressman Mark Udall, Congressman Zach Wamp, and Congressman Tom Udall.
I know that all Members of Congress are extremely busy, especially on days like this, but I would like to have two members testify first because of not only conflicts but immediate conflicts at 9:30, and those two would be Senator Voinovich and Congressman Zach Wamp. So if the others do not mind, we will begin with those.
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Ms. JACKSON LEE. Mr. Chairman, may I indicate at your generosity that Congressman Nick Lampson and Shelley Berkley, through procedures, will be allowed to make remarks, as well.
Mr. SMITH. That is correct.
Ms. JACKSON LEE. Thank you very much.
Mr. SMITH. Senator Voinovich, if you will begin. Thank you for being here.
STATEMENT OF HON. GEORGE V. VOINOVICH, A U.S. SENATOR FROM THE STATE OF OHIO
Mr. VOINOVICH. Thank you, Mr. Chairman, and thank you for holding this hearing. I have a longer statement and I will ask it be made part of the record.
Mr. SMITH. Without objection.
Mr. VOINOVICH. Mr. Chairman and members of the subcommittee, I appreciate this opportunity to testify before you this morning on a proposal that will allow us to right a wrong that has been perpetrated against a brave and loyal segment of our Nation's veterans, the civilian victims of the Cold War. Your former colleague Jim Bunning, no bleeding-heart liberal, said to me yesterday, ''We have lied to these people for 50 years and it is about time we did something for them.'' I agree. They have been treated disgracefully by a country that has violated the second great commandment of our Judeo-Christian tradition, love of fellow man.
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In the last year, four different Senate committees have addressed the issues of worker exposure, inadequate protection taken by management, and the resulting worker sickness at the Department of Energy's facilities. The administration has also addressed this subject in this past spring's National Economic Council report.
In May, I introduced legislation which went significantly further to make these workers whole than the administration's proposal, and no fewer than six bills, as you mentioned, Mr. Chairman, have been introduced in the House of Representatives. I have worked on a bipartisan basis with my Senate and House colleagues, the administration, workers, and other interested parties on this topic and I helped develop the Thompson amendment that is being considered today in the conference committee of the defense authorization conference committee.
In short, Mr. Chairman, there has been a lot of discussion about this subject during the last year and a half or so. During the Senate Governmental Affairs hearing we held this past spring and the Department of Energy public meetings in Piketon, I was moved by the heart-wrenching stories of men and women from my State and from across the Nation that had been made sick by their own government, made sick simply by going to work and doing their job, people like Sam Ray and Ann Orrick, and you are going to be hearing from some of the victims here later on and I am pleased that they are here. I hope that more of your members can hear their stories because I think that they will fully appreciate why I am so concerned about doing something and why our country should be doing something for them.
These men and women and thousands like them are heroes, in my opinion. Now, in their time of need and in their individual moments of crisis, we cannot disavow their claim that their work has made them ill. I have heard over and over again that we cannot pass legislation to compensate these victims because by doing so, we would create a brand new entitlement program.
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Mr. Chairman, I have not been in the Senate that long, but I have seen plenty of instances where our government spends money where it should not. As one of the Senate's most outspoken debt hawks, I can tell you, in my opinion, it is crystal clear that this Nation has an obligation, indeed, a moral obligation to provide assistance to these victims. They are entitled to an entitlement.
They are entitled to an entitlement, and I think our best opportunity to compensate these individuals for what happened to them is with the Senate-passed Thompson amendment to the Department of Defense Authorization Act. This amendment creates a Federal program for workers suffering from beryllium disease, silicosis, and cancer due to radiation exposure, diseases and exposure levels which are unique to the Department of Energy's nuclear weapons complex. Workers suffering from illness due to other chemical exposures would be covered under State Workers' Compensation programs.
In addition, this amendment provides for a sound science-based system that requires the reconstruction of doses if the DOE is able to construct those records. If the Department is unable to find an employee's records or adequately estimate dose history, then the burden of proof is shifted to the Department rather than to the person that is making the claim. We have concluded that that information is not available at the three gaseous diffusion plants that we have in the country. So, in effect, the burden of proof would be on the Department to prove that the employee's illness was not caused by his or her work. If they worked in the Department and had been exposed to certain things, the employee would not have to prove suffering because of their work experience.
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Mr. Chairman, many of these individuals had no idea that they were being made sick by their job. They did not. They saw their work as important to the defense of this Nation and the freedoms we Americans hold dear. In many instances, and you should have heard the testimony, even if they knew what was happening, they would have continued to do their job. They felt it was part of their patriotic duty. These were patriotic people. They got sick and they kept going to work. A compassionate and grateful Nation does not turn its back on its heroes.
We as Congress must not disprove this premise. With each passing day, these brave men and women get a little sicker, get a little weaker, and some lose the battle altogether. We know what has been done to them. We finally have the unbiased facts. We can no longer claim ignorance that we do not know what happened. We now know what happened. What is clear is that we have a responsibility to do it. If we do not do anything, we will have tarnished the dignity of our great Nation.
We must pass legislation in this session of Congress while we and they still have time. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Senator.
[The prepared statement of Senator Voinovich follows:]
PREPARED STATEMENT OF HON. GEORGE V. VOINOVICH, A U.S. SENATOR FROM THE STATE OF OHIO
Mr. Chairman and members of the Subcommittee, let me first express my gratitude to you for holding this hearing this morning. The issue the Subcommittee is addressing today, compensation for workers at Cold War weapons facilities, is extremely important in my home state of Ohio as well as in many states and communities in our nation.
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Mr. Chairman, as the guns of the Second World War fell silent, post-war politics and ideological divisions set the stage for the beginning of the Cold War—a forty-five year military stalemate between the United States and the Soviet Union. In order to assure that neither side gained a strategic edge over the other, both the United States and the Soviet Union engaged in massive build-ups of nuclear weaponry.
At facilities all across America—there are over 200 sites in 37 states across the country—tens of thousands of dedicated men and women in our civilian federal workforce helped keep our military fully supplied and our nation fully prepared to face any threat from the Soviet Union or any of our adversaries around the world. The hard work and patriotism exhibited by these individuals paid wonderful dividends, in that, their success in meeting the challenge of our potential rival partly can be attributed with the end of the Cold War and the collapse of the Soviet Union.
However, for many atomic weapons workers, their success came at a high price. To preserve our liberty, they sacrificed their health and some men and women even sacrificed their lives—in many instances without knowing the risks they were facing. These individuals have paid a high price for our freedom, and in their time of need, this nation has a moral obligation to provide financial and medical compensation to these Cold War veterans.
In the last year, four different Senate Committees have addressed the issues of worker exposure, inadequate protection taken by management and the resulting occupational illnesses at the Department of Energy's weapons facilities. The Administration has addressed this issue in the National Economic Council Report which was released this past spring. I introduced legislation in May which did more to make these workers whole than the Administration's proposal and I worked closely with a bipartisan group of Senators, the Administration and other interested parties to develop the Thompson Amendment which was included in the Senate passed National Defense Authorization bill. I am hopeful that that amendment, or a similar amendment, will be included in the Defense Authorization Conference Report and signed into law by the President.
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Under the Thompson Amendment, a program is created for all workers who are due compensation because of an illness suffered due to the nature of a person's job. This amendment creates a federal program for workers suffering from beryllium disease, silicosis and cancer due to radiation exposure, many of these exposures are unique to the Department of Energy's nuclear weapons complex. Workers suffering from illnesses due to other chemical exposures would be covered under state workers compensation programs. The Department of Energy's Office of Workers' Compensation Advocate—created by this amendment—will help employees apply for compensation with their particular state's worker compensation program.
In addition, this amendment provides for a sound, science-based system that requires the reconstruction of doses if the department is able to reconstruct those records. If the Department is unable to find an employee's records, or, adequately estimate dose history, then the burden of proof threshold established is lowered and it is required that the government would have to disprove whether this worker's illness was caused by work or not. At the nation's three gaseous diffusion plants and Alaska's Amchitka Island test facility, it is assumed by this amendment that doses cannot be reconstructed.
Some of my colleagues may question whether or not the federal government should be making an expenditure of this amount of money. Some may ask how we will know which worker or family member has a bona fide claim for compensation. These are legitimate concerns. However, the nature of the illnesses involved suggests more than a coincidental relationship with their victims.
For example, beryllium disease is a ''fingerprint'' disease. That means it is particularly identifiable and cannot be mistaken for any other disease, leaving no doubt as to what caused the illness of the sufferer. Additionally, the processing of the beryllium metals that cause Chronic Beryllium Disease is singularly unique to our nuclear weapons facilities.
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In cases of radiation exposure at DoE facilities, it is understandable that some may question whether a person was exposed to radioactive materials from another source, primarily because records may not reflect that an employee was exposed to such materials. The Department of Energy's independent investigation at Portsmouth which was released in May, showed that, in some cases, the destruction and alteration of Department of Energy workers' records occurred. There have been anecdotes indicating similar occurrences at other DoE facilities around the nation.
Additionally, dosimeter badges, which record radiation exposure, were not always required to be worn by DoE workers. And when they were required, they were not always worn properly or consistently. Workers at the Piketon plant also have stated that plant management not only did not keep adequate dosimetry records, in some cases, they changed the dosimetry records to show lower levels of radiation exposure. There have been reports that DoE plant management would even change dosimeter badges to read ''zero''—which means the level of exposure to radiation would be officially recorded as zero, regardless of the exposure level that actually registered on the badge.
In too many instances, records do not exist, and where they do exist, there is adequate reason to doubt their accuracy. The amendment offered by Senator Thompson recognizes that this is the case at the Department of Energy's three Gaseous Diffusion Plants—Piketon, Ohio; Paducah, Kentucky; and Oak Ridge, Tennessee—and takes the unusual step of placing the burden of proof on the government to prove that an employee's illness was not caused by workplace hazards.
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This amendment allows for sound science where it is available. Specifically, if it is possible to adequately and accurately estimate radiation doses, and scientifically assure that a worker's cancer is work-related or not. However, if it is not reasonably possible to adequately and accurately reconstruct doses, then ill workers covered under this amendment would be eligible for compensation that is based on criteria that already exists for workers at our nation's Gaseous Diffusion Plants.
To be clear, Mr. Chairman, under normal circumstances, I do not advocate a ''guilty until proven innocent'' approach. I firmly believe that we should use sound science to determine exposure levels and relationship to illness. Yet, these are not normal circumstances, and the reason Senator Thompson and I offered this amendment was because in too many instances, sound science either does not exist in DoE facility records, or it cannot be relied upon for accuracy.
For example, in my own state of Ohio, at the Portsmouth Gaseous Diffusion Plant—a plant that enriched uranium for use in nuclear weapons—workers had little or no idea that they had been exposed to dangerous levels of radioactive material. As the Department of Energy's own independent investigation has shown, such exposure went on for decades.
The independent investigation at Portsmouth also demonstrated that until recently, proper safety precautions were rarely taken to adequately protect workers' safety. Even when precautions were taken, the use of protective standards was inconsistent and in some instances were deemed only ''moderately effective.''
If consistent, reliable and factual data is not available, Mr. Chairman, then it will be quite difficult if not impossible to utilize sound science in order for employees to prove their claims.
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Similar situations like those that have been documented at the Portsmouth Gaseous Diffusion Plant have been reported at other Ohio facilities including the Fernald Feed Materials Production Center in Fernald, Ohio and the Mound Facility in Miamisburg, Ohio, not to mention a host of other facilities nationwide. At this time, the Department of Energy is only acknowledging that these situations existed at the gaseous diffusion plants.
In addition to shoddy or non-existent record keeping, the DoE has admitted that at some facilities, workers were not told the nature of the substances they were handling. They weren't told about the ramifications that these materials may have on their future health and quality of life. It is truly unconscionable that DoE managers and other individuals in positions of responsibility could be so insensitive and uncaring.
Last year, the Toledo Blade published an award-winning series of articles outlining the plight of workers suffering from Chronic Beryllium Disease (CBD). While government standards were met in protecting the workers from exposure to beryllium dust, many workers still were diagnosed with CBD. Were the standards too low? Was the protective equipment faulty? Whatever the cause, it is estimated that 1,200 people across the nation have contracted CBD, and hundreds have died from it, making CBD the number-one disease directly caused by our Cold War effort.
Mr. Chairman, there may be some who think that the Senate amendment costs too much, and therefore we shouldn't do it. I vehemently disagree. It is my contention that the federal government would not be responsible for these costs—nor would Congress be discussing such costs—if adequate protections had been taken at these facilities over the last fifty years.
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Congress appropriates billions of dollars annually on things that are not the responsibility of the federal government—and I have voted against a number of the bills that include this kind of funding. Here we have a clear instance where the federal government is responsible for the actions it has taken and the negligence it has shown against its own people. Peoples' health has been compromised and lives have been lost. In many instances, these workers didn't even know that their health and safety were in jeopardy. It is not only a responsibility of this government to provide for these individuals, it is a moral obligation.
My belief that we have a moral obligation to these Cold War veterans was strengthened last October when I attended a public meeting of workers from the Portsmouth Gaseous Diffusion Plant. I learned an incredible amount about the integrity of the hard-working men and women and what they have been through.
I heard heart-wrenching stories from people like Ms. Anita George, a 23 year employee at Piketon who testified that ''I only know of one woman that works in my department that has not had a hysterectomy and other reproductive problems.'' Ms. George described a situation where she and two of her colleagues were exposed to an ''outgassing'' on a ''routine'' decontamination job.
Afterwards, the women started to experience health problems, including heavy bleeding, elevated white blood cell counts and kidney infections. Plant physicians told them they should ''just lie down and rest'' if they had any problems while they were working. Three years after the exposure, all three women had had hysterectomies. Incredibly, the plant's managers fought their workers' compensation claims.
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I also heard from people like Mr. Jeff Walburn, another 23 year plant employee and former councilman and vice mayor of the city of Portsmouth, who testified that while working in one of the buildings, he became so sick, that his lungs ''granulated.'' When he went to the infirmary, they said he was ''okay for work.'' Later that day, he went to the hospital because in his words, ''my face was peeling off.'' According to Mr. Walburn, he couldn't speak, his hair started falling out, his lungs started ''coming out'' and his bowels failed to function for more than 6 days. When he went to get his records to file his worker's compensation claim, he was told that his diagnosis had been ''changed, been altered.''
The Department of Energy has held similar public meetings at facilities across the nation and these stories are not unique to the Portsmouth Gaseous Diffusion Plant.
Mr. Chairman, it is unfortunate that the amendment we offered is necessary in the first place; the compensation it will provide is little consolation for the pain, health problems and diminished quality of life that these individuals have suffered. These men and women won the Cold War. Now, they simply ask that their government acknowledge that they were made ill in the course of doing their job and recognize that the government must take care of them.
Many of these workers have tried to seek restitution through their state bureaus of workers' compensation. Unfortunately, the vast majority of these claims have been denied—denied because the Department of Energy fought the claims, denied because state bureaus of workers' compensation do not have the facilities and/or resources necessary to adequately respond to the occupational illnesses unique to our defense establishment.
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Until recently, the only way many of these employees believed they would ever receive proper restitution for what the government has done to them is to file a lawsuit against the Department of Energy or its contractors. But, in the time that I have been involved in this issue in the Senate, the Department of Energy has come a long way from its decades-long stance of stonewalling and denial of responsibility. Today, they admit that they have wronged our Cold War heroes. Still, we must do more.
All those who have served our nation fighting the Cold War have a right to know if the federal government was responsible for causing them illness or harm, and if so, to provide them the care and compensation that they need and deserve. That is the least we can do and that is the purpose of our amendment. I believe we must pass this or similar legislation in this session of Congress—while we and they still have time—in order to provide the proper level of assistance to these Cold War veterans.
Thank you, Mr. Chairman.
Mr. SMITH. Representative Wamp?
STATEMENT OF HON. ZACH WAMP, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE
Mr. WAMP. Chairman Smith, Ranking Member Jackson Lee, members of the subcommittee, thank you all for your courtesy. I am going to an interior appropriations conference committee trying to wrap up this morning.
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More than 10 years ago, we witnessed the end of a war unlike any ever seen in history, the Cold War. Costing billions of dollars and lasting almost half a century, this decade-long struggle ended when American democracy triumphed over communism. But that does not mean that we did not endure severe casualties.
In the heart of America, workers in Oak Ridge's Department of Energy facilities labored to boost this country's nuclear arsenal. You will hear from some of our workers this afternoon. Their loyalty and dedication played a significant role in the victory over tyranny. Working in sensitive areas exposed some of our workers to high levels of radiation and other harmful substances. Hundreds of employees at DOE sites have been diagnosed with a wide range of illnesses. A decade after the end of the Cold War, they suffer from debilitating health problems that have reduced their quality of life immeasurably. Indeed, these men and women are soldiers and veterans of the Cold War. They deserve not only our respect but care. Withholding support and neglecting their needs would be a national travesty.
I urge you to support a permanent Workers' Compensation benefits package that alleviates the burden these Cold War warriors and their families endure on a daily basis. Mr. Chairman, it is the right thing to do, given their enormous sacrifice. As we enjoy these times of peace and prosperity, let us not forget that an honorable group of Americans gave their longevity and health to secure our national security. Show them your gratitude by approving this much-needed benefits package so that we can finally ease their suffering and right this wrong.
Mr. Chairman, I know that we are short on time in this session, but these workers are also short on time. As a matter of fact, time is of the essence. Compromise is essential, but a reasonable benefits package is a must for these dedicated civilians who should be treated more like veterans of the Cold War.
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I would yield the balance of my time to the gentlelady from Nevada, Shelley Berkley.
Mr. SMITH. Thank you, Representative Wamp.
[The prepared statement of Mr. Wamp follows:]
PREPARED STATEMENT OF HON. ZACH WAMP, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE
Chairman Lamar Smith, Ranking Member Sheila Jackson Lee, and members of the Subcommittee:
More than ten years ago, we witnessed the end of a war unlike any ever seen in history, the Cold War. Costing billions of dollars and lasting almost half a century, this decade long struggle ended when American democracy triumphed over communism. But that does not mean we did not endure severe casualties.
In the heart of America, workers in Oak Ridge's Department of Energy (DOE) facilities labored to boost this country's nuclear arsenal. Their loyalty and dedication played a significant role in the victory over tyranny. Working in sensitive areas exposed some of our workers to high levels of radiation and other harmful substances. Hundreds of employees at DOE sites have been diagnosed with a wide range of illnesses. A decade after the end of the Cold War they suffer from debilitating health problems that have reduced their quality of life immeasurably.
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Indeed, these men and women are ''soldiers'' and ''veterans'' of the cold war. They deserve not only our respect, but care. Withholding support and neglecting their health needs would be a national travesty. I urge you to support a permanent worker's compensation benefits package that alleviates the burdens these cold war warriors and their families endure on a daily basis. Mr. Chairman, it is the right thing to do given their enormous sacrifice.
As we enjoy these times of peace and prosperity, let us not forget that an honorable group of Americans gave their longevity and health to secure our national security. Show them your gratitude by approving this much-needed benefits package, so that we can finally ease their suffering, and right this wrong.
Mr. SMITH. We do welcome Representative Berkley's comments, as well.
STATEMENT OF HON. SHELLEY BERKLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA
Ms. BERKLEY. Thank you, Congressman Wamp, for yielding time, and I would like to thank the chairman and the ranking member for holding this hearing. I ask that my full written testimony be made a part of the record.
I am here today to strongly urge my colleagues to pass legislation that will fairly compensate former DOE employees, including workers in my home State of Nevada, who suffer debilitating diseases because of their exposure without their knowledge to radiation, beryllium, silica, and other deadly toxins.
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I am here today on behalf of Mr. Fred Love, who worked at the Nevada Test Site as a helicopter pilot, sometimes flying with his eyes unprotected and wide open through nuclear blasts. He lost his right eye to a rare form of cancer associated with radiation exposure.
I am here today on behalf of Dorothy Clayton, who lost her husband, Glen, after he suffered from five—five—different types of cancer, eventually dying a slow and painful death. Glen Clayton worked at the Nevada Test Site for almost 30 years. Declassified records establish at times Mr. Clayton was exposed to triple the Atomic Energy Commission's established guidelines for radiation exposure.
And I am here for Yvonne Flowers, who lost her father, and Clara Brooks, her husband, after he succumbed to cancer after working at the Nevada Test Site for over 20 years. These people and thousands of others toiled in secrecy to defend America and now suffer from cancer, silicosis, and other diseases or have already passed away from them.
I was raised in Las Vegas. I went to school with many of the Nevada Test Site workers' children. I knew them well. Perhaps the most disquieting event of my freshman tenure here in Congress was when I attended a hearing of the Nevada Test Site workers in Las Vegas. There were over 200 of them, and when they were asked that those who were suffering from lung diseases caused by silicosis or any cancer caused by radiation to please stand up, every single Nevada Test Site worker sitting there, over 200 of them, stood up. It was a very emotional moment for all of us.
I am an original cosponsor of H.R. 5189, which reflects the more inclusive Senate-passed amendment for compensation. I urge this panel, this committee, and the House of Representatives to pass this version of compensation. These men and women deserve our national thanks and recognition and the only way to come close to doing this is by giving fair and just compensation. Thank you very much.
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Mr. SMITH. Thank you, Representative Berkley.
[The prepared statement of Ms. Berkley follows:]
PREPARED STATEMENT OF HON. SHELLEY BERKLEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA
Thank you for the opportunity to share my views. I write to strongly urge my colleagues that we have an opportunity and the responsibility to recognize the sacrifices that former Department of Energy workers have made. These workers, and their families, suffer because of radiation-, Beryllium-, or Silica-exposure, and other toxic chemical exposure, due to the nature of their jobs. These victims of cancer, and other occupational illnesses made the ultimate sacrifice to help America win the Cold War, and now look to us to fulfill our moral responsibility and fairly compensate them.
This issue is very personal for me. My district has a large population of former Nevada Test Site workers, where from 1951 to 1992, the federal government tested nuclear weapons above and below ground. Growing up in southern Nevada, I was friends with many children of Nevada Test Site workers. These workers now suffer debilitating diseases, horrific cancers, and many have died as a result of their service to this great country. The people who worked at the test site were never made aware of the potential danger this exposure to radiation and toxic chemicals might pose to their health. But now we know the hazards that were faced, and now we have the responsibility to do the right thing.
We are currently considering many different proposals that would compensate Department of Energy workers and contractors who sustained illness due to the nature of their jobs at DOE facilities. Some of this legislation is very limited, as it includes workers only in places such as Paducah, Kentucky, and Oak Ridge, Tennessee. These workers certainly deserve compensation, but it is essential that compensation is not done piecemeal, so that where you were exposed becomes more important then the fact that you were exposed. To do so, as one of my constituents would say, would be ''akin to such a statement as, ''if you live in Mississippi, you do not qualify for social security.''
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That gentleman is Mr. Fred Love, who worked at the Nevada Test Site as a helicopter pilot in 1985 and 1986, and didn't know that his job with the DOE would cost him his career. Mr. Love's duty included flying through a radioactive cloud when a nuclear blast went awry. In March, 1997, doctors removed his right eye due to a tumor caused by a rare form of cancer that is associated with radiation exposure. Even before the loss of his eye, he was having problems with his vision, and lost his pilot's license . . . his very livelihood. He was a skilled and dedicated professional who gave his career, and his health, for the defense of America, and must be compensated. I have included his statement for the record.
I was recently in contact with another of my constituents, Ms. Dorothy Clayton. Her husband Glenn, worked at the Nevada Test Site for almost 30 years, excavating tunnels so a nuclear bomb could be blown up inside. He also led a re-entry team back into the tunnel to recover vital equipment, immediately after a nuclear blast. Declassified records demonstrate that at times Mr. Clayton was exposed to triple the Atomic Energy Commission's established guidelines for radiation exposure. After fighting 5 different types of cancer, Mr. Clayton died a slow and painful death. I have included Dorothy Clayton's statement for the record.
In 1997, Yvonne Flowers lost her father, and Clara Brooks her husband, to cancer. John Brooks worked at the Nevada Test Site for over twenty years, as a laborer and as a foreman of construction crews. After beginning his job in the early 1960s, John Brooks started to become sick. At first, it was colon cancer. Then the cancer spread to his lungs, and finally throughout his whole body. The doctors said that the cancer was undoubtably caused by exposure to radiation and toxic chemicals.
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Fred Love, Glenn Clayton, John Brooks, and others, sacrificed everything in the name of our national defense. They, and a legion of dedicated Americans, spread throughout the country, did not flinch from the heavy demands . . . and the dangers . . . of their work. They toiled in secrecy, without thanks from the nation.
Now, after the enormous medical expenses and hospital bills that drain, and continue to drain, family savings, we have a responsibility to say we will compensate you for your sacrifice. But this is not solely about money. It is also about national thanks. We all know about the ''people on the walls,'' our military, keeping America safe. Now it is time to also recognize the people in the tunnel, who most likely never had a gun fired at them, but nonetheless, gave their lives to keep America safe.
We have an opportunity with title XXXV of H.R. 4205, to make a statement that we are in favor of justice and fair play. The support for this compensation package is widespread. I have received dozens of letters and calls calling on the House to include this compensation provision in the final bill, and finally, fairly compensate former DOE workers. Both my hometown newspapers, the Las Vegas Sun, and the Las Vegas Review-Journal have been active advocates on this topic, as has the Washington Post. I have included three excellent editorials from these papers with my statement. Additionally, we are aware that the Honorable Bill Richardson, and the Department of Energy fully support this compensation plan.
We owe it to Fred Love to fairly compensate Nevada Test Site workers. We owe it to the widows and families of Glenn Clayton and John Brooks, for the pain and suffering they were forced to deal with because of the loss of their loved one. But most of all, we owe it to our sense of fairness to compensate the workers who put America first, not knowing until too late they were putting America before their own health, and in the worst scenarios, their own lives.
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We need to properly recognize all the victims by providing them the compensation that justice demands we provide. It is our moral obligation.
Mr. SMITH. We will go now to Representative Kanjorski.
STATEMENT OF HON. PAUL E. KANJORSKI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. KANJORSKI. Thank you very much, Mr. Chairman. Mr. Chairman, thank you and Ms. Jackson Lee for convening this hearing. It is most timely, since, as you know, the end of this Congress we are determining what measure, if any, can be passed into law. I only ask that the United States Government provide fair and equitable compensation for a group of Cold War warriors who sacrificed their health, and in some cases their lives, to build the nuclear arsenal that won the Cold War.
This matter first came to my attention several years ago. Through observation and with meeting with people that worked in the beryllium industry, I learned that there were 1,200 people in my district who worked in the beryllium plant from 1957 until 1981, when the plant closed. We have known something about this material that the workers were exposed to, but now we know a lot more about it. It is something that has been used for 50 years in the nuclear reactors and nuclear weapons research facilities across this country. Beryllium is one of these materials and it is a killer. It is a light metal that if a high intensity of exposure occurs to some people, they are destined for lung disease to take over and eventually the loss or their death.
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I had the experience in a prior life of being an administrative law judge and I know that there are several issues that the Congress in conference is considering. One focuses on the model of my first bill, which was designed after the response to radiation exposure to downwind people and people that worked in the radiation industry in the 1950's, 1960's, 1970's, and 1980's in the Western States of the United States. But I know two things that is happening in the Justice Department and the administration with that act.
One, it is very difficult for the Department to handle the process. They have very few people to administer that act, and less than 50 percent appearing before them are receiving their compensation. Now, as my experience as an administrative law judge, I want to tell you that it would be grossly unfair if we passed a statute allowing $100,000 worth of compensation and attorneys and medical fees to eat up that $100,000 to prove the standard through which these people would justify their recovery. It can happen. It happens every day in our administrative law system and in Workmans' Compensation regarding related diseases across this country.
The intention here is to compensate the injured party and to do it as quickly and as fairly as possible. In beryllium, particularly, there are tests that are very clear that they can identify 90 percent of the cases that are beryllium-related. These people should not be tortured any longer, and I agree with the Senator. The presumption should be in favor of the claimants where there is a question of lost records or inability to catch the relationship between the exposure and the disease. We should not make this into another harrowing experience of the people who, to a large extent, are very late in their life. They are in their 50's, 60's, 70's, and 80's. Many of them are dying. Let us not pass a program that gives them hope and then frustration for the rest of their lives without adequate compensation.
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So I urge this committee and the conferees to consider the legislation that the Senator has talked about and using the compensation methodology as in Workmans' Compensation, and for two reasons, which are already established in the Department of Labor. You can handle it swiftly. It can be expedited. And two, you may ask, why are they not getting Workmans' Compensation? Well, very simply, Workmans' Compensation in most States, there is an end to the jurisdictional issue after 500 weeks and these diseases do not come on for ten, 20, 30 years. So most of the people, although if they were on notice that they had this disease when they left their employment, within the 500-week period, they could have filed. Most of them have lost that opportunity.
So what we are trying to do is take corrective legal action to justify their recovery now, but we want to make it simple, swift, and just. I think that I would just urge the Judiciary Committee to be sensitive to the issue of jurisdiction, not get in the war of jurisdiction that so often happens in this town.
We have had a lot of good people in the Department of Energy, from the Secretary on down, that have really reversed a 40-year trend of denial. It has been, up until this last year, the policy of the Energy Department to absolutely deny any responsibility for these tragedies. Now, we at least have this enlightened leadership. We worked for the last year and a half to develop legislation. The legislation that the Senator cites is a part of that legislation, which would properly process and proceed with workers' claims and allow options of Workmans' Compensation on a continuing basis for those people that have a much longer period of life to go through, with medical benefits and an option to take a sole payment and opt out with medical benefits.
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There are differences between what the administration supports and what various committees of the House and the Senate support. We have extensive legislation and the only caveat I would ask—I know there are those people in the Congress that would like to have another study. Mr. Chairman, we have studied this issue to death. We do not need to spend hundreds of thousands or millions of dollars to continue on that path of putting off today what should be done, which we all know should be done, and the scientific evidence is there. All we are looking for is to enact good legislation to provide the legal process to do the right thing by this government to responsible people. As my colleagues have testified, these people came to work, were Cold War Warriors of the highest degree, and are probably more responsible for the success of this country in the Cold War than any other group of civilians in the United States and many in the military.
We cannot afford to allow the opportunity today in the fleeting moments of the 106th Congress to find some excuse for further study or for delay, to put off what should have been done much sooner than now. But clearly, we have bipartisan support. I think we have 103 Members of Congress as cosponsors of this legislation.
Mr. Chairman, I want to say something at these closing moments of the 106th Congress. We tend to, as we move and the clock starts to tick out, to become more partisan. This is an opportunity really to show that this Congress is very bipartisan. I want to thank some of my members on the Republican side that I have worked with. We disagree philosophically. We disagree politically. But on this issue, I found them to be most outstanding and upstanding and I urge this subcommittee to recommend that the job get done now in the proper way with proper legislation, as the Senator has suggested. Thank you.
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Mr. SMITH. Thank you, Representative Kanjorski.
[The prepared statement of Mr. Kanjorski follows:]
PREPARED STATEMENT OF HON. PAUL E. KANJORSKI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Chairman, Ranking Member Jackson-Lee, and Members of the Subcommittee, thank you for convening this long overdue hearing. Today, I am extremely pleased to testify in favor of the U.S. Government providing fair and equitable compensation for a group of Cold War warriors who sacrificed their health and in some cases their lives to build the nuclear arsenal that won the Cold War. This matter has attracted considerable attention in recent months, and before the 106th Congress completes its work, I hope that we can find a bipartisan consensus to provide compensation for the individuals who helped keep our nation strong.
For some time, I have worked to help 1,200 people in my district who worked with beryllium at a plant in Hazle Township, Luzerne County, from 1957 until 1981, when the plant closed. Beryllium, as you may know, is a super-light, super-strong metal used for more than 50 years in our nuclear reactors and nuclear weapons research facilities to control fission reactions. Beryllium is also a key component of strategic weapons and is still used extensively at several U.S. Government sites around the nation.
As a result of their work, some employees contracted chronic beryllium disease, an incurable, progressive, debilitating disease that attacks the lungs of about 3 percent of those exposed to beryllium dust. Chronic beryllium disease may take many years to develop and in some cases is fatal. Over time, a chronic inflammatory reaction leads to tissue destruction, formation of scarring, nodules, and eventually, to impaired lung function. Moreover, even a brief exposure to very low levels of beryllium dust can lead to this disease.
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The plight of our forgotten Cold War soldiers suffering from chronic beryllium disease was first brought to my attention by one of my constituents, Alfred Matusick. For a number of years, Al has informed me about the declining health of his fellow workers as a result of their work at the Hazle Township plant. He has also been tenacious in raising this issue with other legislators across the country. Al, who also suffers from chronic beryllium disease, was invited to testify before you today, but unfortunately he had several medical appointments that he could not miss.
After Al brought this problem to my attention, I researched the issue, consulted experts, and learned that chronic beryllium disease would begin to affect the human body long after the statute of limitations ran out on state workers' compensation programs. I also learned that records from the federal Atomic Energy Commission revealed that one air sample taken from the Hazle Township plant in 1958 contained beryllium dust levels 330 times above the Commission's limit for short-term exposure. As late as 1971, an independent researcher from the Massachusetts Institute of Technology found beryllium concentrations in the plant 52 times the legal limit for short-term exposure.
Not only did these facts trouble me, but because of my previous experience as an administrative law judge for workers' compensation cases I decided to introduce legislation to rectify this situation. Using the Radiation Exposure Compensation Act of 1990 as a model, I introduced H.R. 675 in February 1999. H.R. 675 provides compensation of $100,000 to victims of chronic beryllium disease. Because that legislation was the first bill in the 106th Congress to address this issue, I consequently became a leader in the debate to compensate our ailing Cold War soldiers.
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During the last two years, I have taken other actions on this issue, and I would briefly like to outline some of them for you. On June 17, 1999, for example, I joined a bipartisan coalition of Senators and Members of Congress in requesting a General Accounting Office study on the evolution of our understanding of the hazards of beryllium as a hazardous material and on the controls over exposure to its use. GAO issued its response in May 2000 and found a number of interesting points. One, beginning in the 1940s, scientists linked exposure to beryllium with an inflammatory lung condition now called chronic beryllium disease. Two, national and international organizations now consider beryllium a human carcinogen. And three, the federal government has been slow in recognizing and addressing the occupational risks of beryllium within federal laboratories, at Department of Energy vendors, and in private corporations.
Additionally, our efforts on Capitol Hill attracted the attention of the Clinton Administration. In June 1999, Energy Secretary Bill Richardson announced that the department would propose legislation to establish an occupational illness compensation program for workers at nuclear weapon-producing facilities as an alternative to current state systems. Additionally, Secretary Richardson noted that the proposal would reverse the Energy Department's past practice of opposing and litigating most worker health compensation claims. Al Matusick spoke at that announcement and explained why we should provide assistance to help those suffering from chronic beryllium disease.
After several months of work, the Clinton Administration developed legislative language to implement this proposal, and I introduced that bill in the House of Representatives on November 17, 1999. Since then, a diverse and bipartisan coalition of Members has decided to cosponsor H.R. 3418. The legislative proposal covers employees of the Energy Department and its predecessor agencies, Energy Department contractors and subcontractors, and beryllium vendors who sold beryllium to the Energy Department. Under H.R. 3418, affected individuals would be eligible to receive reimbursement for medical costs, assistance for impairment or vocational rehabilitation, and compensation for lost wages. Workers with sensitivity to beryllium could also be reimbursed for medical costs involved in tracking their condition.
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Importantly, employees of beryllium vendors were included in H.R. 3418 for two reasons. One, the Energy Department's contracts with vendors through the early 1960s generally required them to apply the same worker safety provisions that the federal government used in its own facilities. Additionally, the vendors manufactured beryllium parts to government specifications and for the sole use of the government. By including beryllium vendors in any legislation we enact, we will make sure that we can help Al and his colleagues who once worked at the Hazle Township plant.
Shortly after I introduced H.R. 3418, President Clinton included $12.8 million in his budget proposal for Fiscal Year 2001 to implement the plan to compensate those workers who contracted chronic beryllium disease as a result of working with beryllium throughout the Department of Energy complex. Moreover, throughout 2000 many of my colleagues in the House and Senate have introduced or decided to cosponsor a number of bills to compensate victims of chronic beryllium disease, as well as radiological diseases, radiological cancers, and silicosis who performed work at Department of Energy facilities or vendor sites.
The Senate also acted on this issue on June 29, 2000 by voting to include a compensation provision in its version of the Defense Authorization bill for fiscal 2001. This proposal has strong, bipartisan support in the House. As you know, I joined with 103 of my colleagues in recently sending a letter to the Chairmen and Ranking Members of the appropriate committees serving on the conference on that bill. That letter urges them to include this proposal in the final version of the bill.
Additionally, my colleague, Congressman Mark Udall of Colorado, has now introduced legislation in the House, numbered H.R. 5189, which is similar to the amendment that passed the Senate in June. Like the other workers' compensation bills for our Cold War warriors, the House leadership referred H.R. 5189 to the Judiciary Committee for review. From my perspective, this proposal represents a well-crafted, reasonable, and fair compensation system that has been thoroughly discussed and unanimously approved by the Senate.
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Mr. Chairman, since the beginning of the Cold War, an estimated 20,000 workers may have been exposed to beryllium at Energy Department sites. Thousands of others were also exposed to radiation and silica. Our workers who did their part to end the Cold War deserve fair compensation for their work in protecting national security. People like Al Matusick are now dying from the diseases they developed as a result of their selfless efforts to win the Cold War. Before Al and others like him breathe their last breath, I would hope that we would follow through on the our commitment to act this year to provide ''efficient, uniform and adequate compensation for beryllium-related health conditions, radiation-related health conditions and silica-related health conditions.''
In closing, Mr. Chairman, thank you again for holding this hearing on this important issue. In order to honor our Cold War veterans who sacrificed so much in the defense of their country, I urge you to pass legislation that President Clinton can sign into law this year.
Mr. SMITH. Representative Strickland?
STATEMENT OF HON. TED STRICKLAND, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Mr. STRICKLAND. Thank you, Mr. Chairman and members of the subcommittee. I represent Southern Ohio, which is home to one of this Nation's two operating uranium enrichment facilities. I know that the Piketon workers suffered greatly, sacrificed to help this Nation win the Cold War. I have heard from many of my constituents who are now sick and rightfully question if their employment at the enrichment facility led to their illness and I am proud to welcome one of those constituents, Mr. Sam Ray, who will testify later today.
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I have also been contacted by past and present workers from sites throughout the DOE complex, including Colorado, New Mexico, Tennessee, and Washington State. These individuals are asking this Congress to acknowledge that workers are ill as a result of their dedication to our nuclear weapons mission and to act in a manner which recognizes this tragedy. Our response will be a test of our patriotism.
Earlier this year, the Department of Energy undertook an investigation at the Portsmouth plant to determine whether historical environmental safety and health activities at that plant since it began operating in 1954 met regulatory standards. The report from the investigation was released in May, and I quote from that report. ''Due to weaknesses in the monitoring program, such as the lack of extremity monitoring, exposure limits may have unknowingly been exceeded. In addition, communication of hazards, the rationale for and use of protective measures, accurate information about radiation exposure, and the enforcement of protective equipment use were inadequate.'' The summary of the report concludes, ''Management also failed to ensure that hazard controls were implemented by supervisors and workers, resulting in additional and higher exposures to personnel and continuing unnecessary radioactive contamination.''
Mr. Chairman, I would like to enter for the record a copy of that study that was done by the Department of Energy.
Mr. SMITH. Without objection, we will make that a part of the record.
[The report of the Department of Energy is not reprinted here but is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
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Mr. STRICKLAND. I would also like to include a copy of a letter signed by 104 bipartisan members of the House asking this committee to accede to the Senate language.
Mr. SMITH. Both will be made a part of the record.
[The information referred to is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims]
Mr. STRICKLAND. Even prior to DOE's investigation, we learned that workers at my site handled radioactive and other hazardous materials without knowledge and without proper safeguards. In fact, last summer, the public was shocked to find that some of the workers at the Piketon site processed plutonium-laced uranium with no warnings and no special training or safety equipment. If these workers were put in harm's way because of the production of nuclear weapons, that was important to their health, their family's health, and even their lives, then I believe we must follow Secretary Richardson's lead by acknowledging employees were, in fact, harmed while performing work for our government.
We must pass legislation that establishes this Federal Workers' Compensation program for these nuclear warriors. We can no longer pretend that the people working to build our Nation's nuclear weapons complex experienced no exposure to deadly substances. We may know far more now about these materials and heavy metals than we did in the 1950's, but no excuse should be accepted as an explanation for our failure to pass a Federal workers' program this year.
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I know the Department of Energy has conducted an investigation at a number of other sites and they have found that records are incomplete, workers were not adequately protected, and if they were, they may not have been properly monitored so that these levels of exposure are unclear at best and unknown at worst. Whether we neglected to provide appropriate protection for our workers or failed to maintain complete exposure data or both, the time is now to admit these errors and to act responsibly.
I cannot overstate the urgency for creating a Federal compensation program for these Cold War veterans before this Congress draws to a close. At the end of the last session, I introduced H.R. 3495, which would compensate DOE nuclear employees who were exposed to radiation on the job and have since become ill. In the spring of this year, my colleague from Kentucky, my dear friend, Mr. Whitfield, and I took the lead on a more comprehensive compensation package and introduced H.R. 4398. I am pleased for what Senator Voinovich and Republican Senator DeWine have done in the Senate. This is truly a bipartisan effort.
We cannot fail these people. I beg of this committee that we do what we need to do and do what these workers so desperately need and deserve, and I thank you for this hearing, Mr. Chairman.
Mr. SMITH. Thank you, Representative Strickland.
[The prepared statement of Mr. Strickland follows:]
PREPARED STATEMENT OF HON. TED STRICKLAND, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
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Thank you Mr. Chairman and Members of the Subcommittee for the opportunity to offer my testimony today on one of the most important issues facing this Congress—the establishment of a federal compensation program for those workers who became ill as a result of exposure to radiation, beryllium, silica, and other toxic and hazardous substances while working to build our nuclear weapons arsenal. I represent Southern Ohio which is home to one of this nation's two operating uranium enrichment facilities. I know that the Piketon workers sacrificed greatly to help this nation win the Cold War. I have heard from many constituents who are now sick and rightfully question if their employment at the uranium enrichment facility led to their illness. I am proud to welcome one of my constituents, Sam Ray, who will testify before the committee a little later today.
I have also been contacted by past and present workers from sites throughout the DOE complex including Colorado, New Mexico, and Washington state. These individuals are asking for this Congress to acknowledge that workers are ill as a result of their dedication to our nuclear weapons mission and act in manner which recognizes this tragedy.
Early this year, the Department of Energy undertook an investigation at the Portsmouth uranium enrichment plant to determine whether historical environment, safety and health activities at the plant, since it began operations in 1954, met regulatory standards. The report from the investigation was released in May and it states, ''Due to weaknesses in monitoring programs, such as the lack of extremity monitoring, exposure limits may have unknowingly been exceeded. In addition, communication of hazards, the rationale for and use of protective measures, accurate information about radiation exposure, and the enforcement of protective equipment use were inadequate.'' The summary of the report concludes, ''Management also failed to ensure that hazard controls were implemented by supervisors and workers, resulting in additional and higher exposures to personnel and continuing unnecessary radioactive contamination.'' (UC Agreement to submit the Independent Investigation of the Portsmouth Gaseous Diffusion Plant for the record)
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Even prior to DOE's investigation, we learned that workers at my site handled radioactive and other hazardous materials without knowledge and without the proper safeguards in place. In fact, last summer the public was informed that some of the workers at the Piketon, Ohio site processed plutonium-laced uranium with no warning and no special training or safety equipment. If these workers were put in harm's way because the production of nuclear weapons was more important than their health, their families health and even their lives, then we must follow Secretary Richardson's lead by acknowledging employees were harmed while performing work for the U.S. Government. Then, we MUST pass legislation that establishes a federal workers' compensation program for these nuclear warriors.
We can no longer pretend that the people working to build our nation's nuclear weapons complex experienced no exposure to harmful and deadly substances. We may know far more about radioactive materials and heavy metals than we did in the 1950s, but no excuse should be accepted as an explanation for our failure to pass a federal workers' compensation program this year.
I know the Department of Energy has conducted investigations at a number of other sites and they have found that records are incomplete, individuals were not adequately protected and, if they were, they may not have been properly monitored so that exposure levels are unclear at best or unknown at worst. Whether we neglected to provide appropriate protection for our workers or we failed to maintain complete exposure data, or both, the time is NOW to admit these errors and act responsibly. I cannot overstate the urgency for creating a federal compensation program for our Cold War veterans before this Congress draws to a close.
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At the end of last session, I introduced H.R. 3495, which would compensate Department of Energy nuclear employees who were exposed to radiation on the job and have since become ill. In the Spring of this year, my colleague from Kentucky, Mr. Whitfield and I took the lead on a more comprehensive compensation package and introduced, H.R. 4398. I am pleased to say that Senator Voinovich took the lead in the Senate along with Senator DeWine to introduce a companion bill, S. 2519. Since this Spring, the Senate, under Senator Thompson and Senator Bingaman's leadership, adopted a modified compensation package as part of the Defense Authorization bill. Following the Senate action, the House adopted a Sense of the Congress amendment calling on the House to pass legislation this year. I share this with you today, because there is NO question that this issue enjoys bipartisan support.
I am hopeful that the Senate provision in the Defense Authorization bill will be retained in conference and signed into law. Secretary Richardson has expressed the Administration's support for the compensation proposal in the Defense Authorization bill and specifically calls for a compensation program funded through mandatory spending. I would like to underscore the importance of ensuring that the compensation program should be mandatory funding and it is with urgency that I express my strongest support for passing legislation THIS YEAR.
Mr. SMITH. Representative Kaptur, are you ready to testify?
Ms. KAPTUR. Chairman Smith, I certainly am.
Mr. SMITH. You are recognized and may do so.
Ms. KAPTUR. I have been ready to testify for a very long time. [Laughter.]
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STATEMENT OF HON. MARCY KAPTUR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Ms. KAPTUR. I want to thank you for hosting these hearings today, and the chairman of the committee and your ranking member, Congresswoman Jackson Lee of Texas, and all of the other members who will be involved in reviewing our testimony. I will submit my full statement for the record.
Mr. SMITH. Without objection, so ordered.
Ms. KAPTUR. But what comes to my mind as I testify on this serious issue of compensation for the citizens of our country who assisted us in the defense industry as civilians, I view as veterans, no different than a veteran who fought in combat on foreign soil, and I have had the privilege of representing many of these individuals in my own career.
One of the companies in my district, Brush-Wellman, processes beryllium, which is, as you know, a strategic metal that is used largely inside our guided missile systems. It is highly reactive, it is very light, and it is very deadly.
I testify first today in memory of a man named Galen Lemke (now deceased), who first came to see me with a breathing machine. He came to my office, in my Toledo district office, and I can still see him as I sit here this morning. He said, ''Congresswoman, I want to tell you what happened to me. I worked in the beryllium industry for many, many years and I am coming to you because I cannot work anymore and I am not covered by any compensation,'' and under Ohio law at that time, he was not getting benefits even under Ohio law that were sufficient to live on. I could not believe it.
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We began to try to help, and ultimately, it required a court case where the Ohio Workers' Compensation laws were modified to at least pay him something. But all that I could think of is, how would I have his composure and dignity if I were dying and I had to go see a Member of Congress as a result of my service to the people of the United States? I could not believe with what respect he treated me. I would have been so angry, I would have been outside with a sign demonstrating with my family and friends.
What I came to learn over the years was how an entire group of Americans has literally been forgotten and ignored. Frankly, if it were up to me and I had the power to dictate, I would just declare them all veterans, eligible to be treated by our hospital systems, eligible for compensation. I do not have the power to do that, and so I come before this subcommittee with all of my friends to say, please look at the bills we are submitting to you.
The bill I am submitting and has filed is only different in that it specifically mentions the Department of Defense and it mentions contractors, because the company in my district was not a government-owned facility, yet 100 percent of its work was being done for the Department of Defense and Department of Energy and over the years it shifted. Sometimes it was more defense, sometimes more energy, and vice-versa. It was the major employer in the town of Elmore. We have another facility we are cleaning up in Lucky, Ohio, that was a beryllium facility where beryllium is now leaching into the wells in the region.
We sit in this institution, and I know words are important, but I really get tired of words. I just wish that we could produce a bill that we could pass on suspension and get every single member of this institution to vote for. Because I have people dying in my district today because of this illness and we at the national level, in the cause of the Nation's defense, still continue to choose to ignore them.
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You obviously have not done that, and we thank you for these hearings today, but with each passing day, the moments of life tick off for people in my district. It is really time for this Congress to act, and I thank you very much and will be open to questions.
Mr. SMITH. Thank you, Representative Kaptur.
[The prepared statement of Ms. Kaptur follows:]
PREPARED STATEMENT OF HON. MARCY KAPTUR, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO
Chairman Smith, Rep. Jackson-Lee, Members of the Subcommittee, good morning. I appreciate having the opportunity to testify before you today on the extremely important matter of responding to the needs of some of our Cold War veterans. I say ''veterans'' because the Americans who sacrificed their lives and health in the development of our nation's nuclear weapons, while being civilians, served their country as fully as members of the Armed Services.
To begin, I want to express my general support for the several pieces of legislation sponsored by other Members that are pending before this subcommittee which deal with providing some form of workers' compensation benefits for the employees of Department of Energy. As Secretary Richardson has said, the historical indifference of the Department of Energy and its predecessors in response to the incidence of occupational diseases among its employees and those of DOE contractors and vendors has been shameful. Our nation not only owes these workers an apology; it owes them compensation, and it owes them the best medical treatment we can provide.
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That the bulk of my testimony today will address the issues of beryllium and chronic beryllium disease should not be taken as an indication that I am not just as strongly supportive of proposals to provide compensation to those who suffer from radiation-related, or other diseases contracted in the course of national defense work. My focus on beryllium reflects the importance of that issue to my constituents and to my district.
I will focus on three main points:
First, in order to assure equity and fairness to all who have contracted these devastating diseases while working under national defense contracts, the legislation must include coverage for the contractors and vendors of both the Departments of Defense and Energy. To do otherwise would not only be patently unfair but could create an administrative quagmire.
Second, the worker's compensation approach to providing relief to these stricken workers is the appropriate approach. The federal government has a responsibility to these people. We owe them the best medical care we can provide, and we owe them for wages lost because of their disease. The proven method for meeting these responsibilities is a workers' compensation system. We have them in place. The Federal Employees Compensation Act is a straightforward workers' compensation program. Basically, all my legislation and these other bills do is extend that coverage to the employees of Department of Energy and Department of Defense contractors and vendors.
Third, the only practical compensation program for these workers is a federal program. The numerous differences between state compensation programs would result in inequitable treatment of workers in similar situations. For fairness sake, a federal workers' compensation program for these workers is imperative.
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Chronic beryllium disease (CBD) is a disease of the lungs analogous to brown lung disease or silicosis. It is an inflammation reaction to exposure to beryllium dust, powder, or fumes which occurs in a small percentage of the population who demonstrate an allergic reaction to beryllium. We are told that approximately one person in ten will develop a sensitivity to beryllium on exposure. Of those, one or two will develop chronic beryllium disease. However, for those who do develop the disease, it can be severely disabling and eventually fatal. Chronic beryllium disease can have a devastating effect on its victims who experience a slow, progressive loss of lung function even when removed from continued exposure.
A number of my constituents suffer from chronic beryllium disease, and some have died. Most of them contracted the disease while working for a company that supplied beryllium products to both the Department of Energy and the Department of Defense. As you may know, beryllium is not only an essential component of nuclear weapons; it is also an important aerospace metal providing very light yet very strong structural components for military aircraft and missiles.
This fact leads to the crux of my bill, H.R. 3874. The essential and important difference between the legislation I have introduced and all the other bills is that it specifically provides federal workers' compensation coverage for the employees of contractors and vendors to the Department of Defense as well as to those of the Department of Energy. This distinction can be crucial to my constituents and to those of many other Members.
A little history is required to explain why it was necessary for me to introduce separate legislation. When Secretary Richardson announced in June 1999 the intention of the Department of Energy to accept responsibility to provide compensation for DOE contractor and vendor employees suffering from CBD, I was elated. I had been working on beryllium disease issues for a number of years, including trying to get appropriate compensation for its victims at the state level. Between June and the introduction of the DOE bill in November 1999, I worked closely with the Department of Energy, my friend and colleague Mr. Kanjorski, and other Members to develop the legislation. During those discussions, we made it clear to the DOE that coverage for DOD contractor and vendor employees who also suffer from CBD was essential. In the end, however, the legislation that the DOE sent to the Hill and that Rep. Kanjorski, introduced, H.R. 3418, did not include the DOD.
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Consider the incongruities of this position. Should H.R. 3418 become law, the federal government would provide compensation for workers who contracted chronic beryllium disease while working under contracts for one federal agency, the Department of Energy, but would not provide compensation for a similarly situated worker working under a contract for another federal agency, the Department of Defense. For my constituents, this might mean that one worker with CBD whose disease could be traced to a Department of Energy contract would be eligible for compensation and his workmate who worked on Department of Defense contracts would not.
Besides the obvious inequities of this situation, consider the administrative nightmare of determining which employees are covered and which are not.
For those reasons, it was necessary for me to introduce more comprehensive legislation that extended compensation coverage to Department of Defense contractors and vendors. That bill is H.R. 3478.
As this subcommittee considers the various pieces of legislation before you, please keep in mind that the same logic that compels the recognition of our government's responsibility to Department of Energy contractor and vendor employees suffering from chronic beryllium disease also compels equivalent consideration for the employees of Department of Defense contractors and vendors.
Let me address a couple of other important issues raised by the series of bills before you. First, why is workers' compensation the appropriate remedy and second, why is federal compensation necessary?
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It has been suggested that the appropriate response of the federal government to individuals who have developed occupational diseases as a result of work critical to our national security is to provide them with a lump-sum payment of some kind as we have done in other, somewhat analogous circumstances.
To me the idea that our government should, in effect, say to these people, ''We know you have a problem. Here is $200 thousand dollars. Now go away and leave us alone,'' is a dereliction of our responsibility. We would not say that to the veterans of our Armed Forces. These are people who have served our nation faithfully and willingly and have contracted terrible diseases because of that service.
These diseases are chronic, progressively debilitating, and lead in many cases to a prolonged and difficult death. The development and progression of these diseases, however, will vary from individual to individual. With chronic beryllium disease, for instance, one individual diagnosed with the disease may suffer no discernable symptoms for years while another may experience a rapid progression of the disease and become disabled prior to or relatively soon after diagnosis.
The difference in the effects of the disease on different individuals argues for a case-by-case determination of what appropriate compensation and what medical services are needed. My bill, H.R. 3478 and most of the bills under consideration provide, as least prospectively, for a workers' compensation program for these workers, and that is certainly the most appropriate remedy.
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How Congress approaches retrospective compensation, however, is a more complicated question. The determination of appropriate retroactive compensation under workers' compensation programs generally requires a specific showing of past wages and medical expenses. For many of the victims of these diseases, these records may be unavailable or finding them might well be an insurmountable burden. For that reason my legislation, as do most of the other bills before the subcommittee, provides the victims of these diseases with an option of accepting a lump-sum payment in lieu of a benefit calculated on the specific circumstances of the individual's case.
The purpose of this lump-sum provision is not to relieve the government of any administrative or financial burden that the legislation might impose, but rather to provide the victims of these dreadful diseases with an opportunity to receive equitable compensation without meeting a difficult or impossible threshold for eligibility.
The option of a lump-sum retroactive payment is to provide a measure of equity to disease victims in situations where there is a presumption that the disease is linked to their employment but detailed records either do not exist or are not available.
In regard to why this should be a federal workers' compensation program, I think my experience with beryllium victims and the Ohio workers' compensation programs is illustrative. My constituents who suffer from chronic beryllium disease have encountered certain obstacles when they apply to the Ohio Bureau of Workers' Compensation for benefits. The first problem they encounter results from the long latency period that is sometimes characteristic of CBD. Often people discover that they suffer from CBD years after they left the job on which they were exposed and the statute of limitations has run. If they get over that hurdle, they most likely receive benefits based on a decades old employment record and the benefits are often inadequate. I fought for years to improve the Ohio workers' compensation statute to provide adequate benefits for those suffering from CBD. We have had some success in Ohio in that regard although the Ohio statute is still inadequate.
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For the employees of DOD and DOE contractors and vendors, the Ohio problems are really magnified 50 times. The Ohio law on occupational illness is different from Pennsylvania law that is different from Arizona law and on and on. Each state has different statutes of limitations, different replacement wage calculations, different standards of medical care, etc., etc. The workers suffering from these diseases are a federal responsibility. They worked in our national defense industry. They suffer because of that work.
These Cold War heroes deserve to be compensated for their suffering and their loss, and they should be compensated equitably. That cannot be done if their compensation is determined under 50 different state laws. Equity demands federal jurisdiction.
Thank you Mr. Chairman.
Mr. SMITH. Representative Whitfield, you are recognized.
STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY
Mr. WHITFIELD. Mr. Chairman, thank you very much, and members of the subcommittee. We appreciate very much your having these hearings.
I represent Paducah, Kentucky, the site of one of two gaseous diffusion plants in the United States. I can tell you, along with other members of this panel, that all of us are delighted to be here to testify on behalf of thousands of men and women around the country who have worked at DOE facilities as a subcontractor employee and who have been exposed to radiation, beryllium, silica, and other hazardous materials. All of us at this table and everyone who has testified so far have cosponsored or introduced legislation to establish a Federal compensation program for these employees, and all of us are anxious to do whatever is necessary to see to it that before Congress adjourns this year, that some action is taken.
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Investigative reports by the Washington Post, the Paducah Sun, USA Today, and other periodicals around the country have revealed conclusively that workers at these facilities, and certainly at the Paducah gaseous diffusion plant in my district, were unknowingly exposed to these hazardous materials, without their knowledge, to sustain America's Cold War nuclear arsenal.
It was those reports and the follow-up investigations by the Department of Energy which prompted, and I must say to his credit, Secretary Richardson's initial proposal to establish a Federal compensation program for some of these employees. In fact, to his credit, he acknowledged that these workers were not properly protected until at least 1990, when new safeguards were put in place.
Later today, you are going to hear from one of my constituents, Mrs. Clara Harding. Her husband, Joe, worked at the Paducah plant for 18 years. He died of cancer in 1980. For 9 years, he made effort after effort to be compensated and to receive medical treatment. He wasted away to 70 pounds. He ended up losing his job, losing his insurance, losing his Workmen's Compensation claim, and his wife ended up settling a claim for $12,000.
Since my election to Congress nearly 6 years ago, I have been immersed in a lot of problems relating to these plants—the clean-up, long-term viability of these plants. However, no issue is more important than the need to compensate those who have or will suffer illnesses directly attributable to the work they performed to sustain us through the Cold War.
There is something wrong with a system that will compensate Federal employees, under the Federal Employee Compensation Act, working at these sites, but if you are working for a subcontractor at the site doing the same work, then you must rely on the State compensation programs, which are much less generous.
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I realize there are those who would simply like to study this matter further rather than establish a compensation program. I also realize there are some who question the cost, as we all do, associated with an entitlement program. But I would remind the members of the subcommittee and others that our government has acknowledged that this exposure at DOE nuclear plants is causing illnesses among the employees. We owe it to the workers and their survivors throughout the DOE complex to provide a fair level of compensation to combat illnesses resulting from their service to our country. Money alone cannot compensate a person or a loved one for a protracted illness or death, but the least we can do is cover long-term health care costs, which is clearly the most important benefit we can provide.
I urge the subcommittee to adopt a meaningful compensation program that acknowledges the damage done and treats the claims in a timely and equitable manner. Our constituents do not understand legislative jurisdictional disputes and they do not understand why the government will not step up to the plate and assume its responsibilities for something that it acknowledges that it caused.
So I would urge this subcommittee's immediate approval of a substantive compensation program, certainly to at least consider adopting the Senate plan that is in the defense authorization bill. Thank you very much for giving us this opportunity.
Mr. SMITH. Thank you, Representative Whitfield.
[The prepared statement of Mr. Whitfield follows:]
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PREPARED STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY
Mr. Chairman and Members of the Subcommittee:
I appreciate the opportunity to appear in support of legislation to compensate Department of Energy contract and vendor employees who have or will suffer work-related illnesses due to exposure to beryllium, silica, radiation and other hazardous materials.
As the sponsor of my own bill on this subject, I am anxious to do whatever I can to insure final approval of a compensation plan for these workers before we adjourn for the year. Anything less would be a gross miscarriage of justice.
My direct involvement in this issue began last August, when a series of WASHINGTON POST investigative reports revealed that workers at the Paducah Gaseous Diffusion Plant in my District were unknowingly exposed to plutonium and other highly radioactive metals for over twenty years as they enriched uranium to sustain America's Cold War nuclear arsenal.
It was those reports and the follow-on investigations by the Department of Energy which prompted Secretary Richardson's initial proposal to establish a federal compensation system for workers at the Paducah Plant who developed specific cancers related to radiation. Those same reports prompted the Secretary's acknowledgment that uranium workers were not properly protected until at least 1990 when new safeguards were put in place. To further address the situation, the Secretary proposed an expanded medical monitoring program for the workers at all three diffusion plants—a program that is still ongoing.
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Later today, you will hear from one of my constituents, Mrs. Clara Harding. Clara is the widow of Joe Harding who worked at the Paducah Plant for 18 years and who died of cancer in 1980. For nine years, Joe's claims that his illnesses resulted from radiation exposure were challenged by the contractors who operated the Paducah Plant for DOE and by DOE itself. As a matter of fact, a 1981 DOE study attributed Mr. Harding's death to a combination of smoking and eating country ham. And yet, in 1983, twelve years after Mr. Harding had been discharged from the Plant, a test performed on his remains proved that his body still contained uranium levels up to 133 times higher than is normally found in bones. Because uranium is slowly purged by the body over time, the levels in Mr. Harding's bones would have been even higher during the time he was employed.
And how was Mr. Harding compensated? He was denied a disability pension by the contractors and he lost his medical insurance. Clara's efforts to reclaim the pension were opposed by lawyers for the contractor. She settled her claim for $12,000.
Data at the Paducah Plant about who was exposed and to what degree is sketchy at best. DOE audits confirm extensive problems with monitoring programs and equipment. Formal investigations by DOE inspectors cited numerous weaknesses in environmental programs and criticized federal managers and cleanup contractors for a ''lack of discipline, formality and oversight'' in the plant's management of radiation risks. Immediate upgrades in safety practices, including enhanced training for workers, were ordered.
Since my election to Congress nearly six years ago, I have dedicated myself to addressing the numerous problems relating to the operation, clean-up, and long-term viability of the Paducah Gaseous Diffusion Plant. But no issue is as important to me as the safety of the men and women who work there and the need to compensate those who have or will suffer illnesses directly attributable to the work they performed to sustain us through the Cold War.
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Federal employees are eligible for compensation under the provisions of the Federal Employees Compensation Act. But workers performing the same job for the government-chosen contractor at the 57 DOE sites throughout the country must rely solely on state workers compensation programs. Compensation levels under these state programs are historically low and claims can take years to process.
I realize there are those who would simply like to study this matter further rather than moving ahead with the compensation program as passed by the Senate. I also realize there are some who question the costs associated with the establishment of a new federal entitlement program.
But I would remind the Members of the Subcommittee that our government has acknowledged that radiation exposure at DOE nuclear plants is causing illness among the employees. In the cases of the gaseous diffusions plants, workers were exposed without their knowledge, and the medical monitoring results thus far confirm that employees at Paducah, Portsmouth and Oak Ridge are suffering from work-related illnesses stemming from the uranium enrichment process.
We owe it to these workers and their survivors throughout the DOE complex to try and provide them a fair level of compensation to combat illnesses resulting from their service to our country. No amount of money can compensate a person or loved one for a protracted illness or death, but the least we can do is try and cover long-term health care costs, which is clearly the most important benefit we can provide. A $100,000 lump-sum payment might be an acceptable option for a surviving relative who is not ill and has no medical expenses. But for the sick worker who may have been forced to leave his or her job due to work-related illness, a wage-based option plus medical expenses is the only fair alternative.
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I urge the Subcommittee to give these sick workers or their families a meaningful compensation package that acknowledges the damage done and treats their claims in a timely and equitable manner by a government agency that has experience in processing these types of claims. They earned it through their hard work and they earned it through their sacrifice.
My constituents don't understand jurisdictional problems and they don't understand why their government seems reluctant to compensate them for illnesses resulting from exposure to hazardous materials they had no knowledge of or control over. This is not some abstract problem. This effects hundreds of families with significant health problems. The government must assume its responsibility.
I urge your immediate approval of a substantive compensation program that expedites the claims process, covers health care expenses, and allows claimants the right to appeal any denial. It's the responsible thing to do and it's the right thing to do.
Mr. SMITH. Representative Udall of Colorado?
STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO
Mr. UDALL OF COLORADO. Thank you, Mr. Chairman and members of the subcommittee. I appreciate having the opportunity to testify today on behalf of this very important group of legislation.
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I am proud to be here with my colleagues and I hope to be even more proud when the Congress does the right thing by creating a Federal compensation program for these workers. We have heard much this morning about them.
Earlier this year, the House adopted the Whitfield amendment to the defense authorization bill. The amendment clearly stated that the Congress needs to act this year to make good on the promise of a fair deal for the people who helped us win the Cold War. It is an important matter for our country. It is also particularly important for the State of Colorado, where we have the Rocky Flats site, which for decades was a key part of the nuclear weapons complex. Now that site's military mission has ended and we are working hard to have Rocky Flats cleaned up and closed.
But as we work hard to take care of the site, we need to work just as hard to take care of the people who worked there. The people who worked at Rocky Flats and the other nuclear weapons sites were part of our country's defense just as much as those who wore the uniform and fought in the hot wars. They may not have been exposed to hostile fire, but they were exposed to radiation and beryllium and other very hazardous substances, and because of that, many of them have developed very serious illnesses.
I want to acknowledge my constituent Mr. Michael Jackson, who is here from Colorado, who has made the long trip to testify later on today, when you will hear his personal story.
As my colleague, Mr. Whitfield, suggested, many of these workers have not been eligible for veterans' benefits and they have been excluded from Federal programs because they technically worked for DOE's contractors. For far too long, the government has not been on their side. That has changed, I am glad to say, because of the Department of Energy's reversal of its decades-old policy of opposing workers claims. Now we in the Congress need to finish the job by passing legislation and we need to do the job right.
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I want to submit my full testimony for the record——
Mr. SMITH. Without objection.
Mr. UDALL OF OHIO [continuing]. But I wanted to just conclude by drawing attention to some testimony prepared for this hearing by Dr. Lee Newman. He is an expert in the problems caused by beryllium and he said in his report that the workers in the nuclear weapons complex were failed by the Federal Government in at least eight ways, and I would remind all of us that the Federal Government is us. The government is ''we the people,'' and the government failed our workers by not adequately warning them, by not adequately protecting these workers. We failed to institute medical monitoring for these workers. We failed to support investigation of a beryllium disease epidemic. We failed to support compensation claims. We failed to do enough to reduce exposure, provide education, and detect early disease. We failed to support adequate research on treatment. And we failed to study and act on other occupational diseases besides those caused by beryllium.
My colleague, Ms. Berkley, talked about meeting with workers from the State of Nevada. I went out to the Rocky Flats facility, Mr. Chairman, just a few weeks ago and met with over 200 workers out there and I could see in their eyes, when I said I believe that Congress is going to act this year, that they thought it is another hollow promise. I think we have the opportunity to act now, and so I echo my colleagues' pleas here today, this bipartisan group of members who believe that now is the time to act.
At this point, I would like to yield my remaining time to my colleague, Mr. Lampson.
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Mr. SMITH. Thank you, Representative Udall.
[The prepared statement of Mr. Udall of Colorado follows:]
PREPARED STATEMENT OF HON. MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO
THE TIME HAS COME TO COMPENSATE POISONED NUCLEAR WORKERS
Thank you, Mr. Chairman and Members of the Subcommittee.
I appreciate having this opportunity to testify today in support of legislation to provide an effective system of compensation and care for current and former nuclear-weapons workers made sick as a result of their on-job exposure to radiation, beryllium, and other dangers.
Earlier this year, the House adopted the Whitfield amendment to the Defense Authorization bill. That amendment clearly stated that Congress needs to act this year to make good on the promise of a fairer deal for these people who helped America win the Cold War. I supported that amendment because that is my view of the matter.
This is a very important matter for our country. It's particularly important for many Coloradans because our state is home to the Rocky Flats site, which for decades was a key part of the nuclear-weapons complex. Now that site's military mission has ended, and we are working hard to have Rocky Flats cleaned up and closed.
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But while we work to take care of the site, we need to work just as hard to take care of the people who worked there.
The people who worked at Rocky Flats and the other nuclear-weapons sites were part of our country's defense just as much as those who wore the uniform of an armed service. They may not have been exposed to hostile fire, but they were exposed to radiation and beryllium and other very hazardous substances—and because of that some have developed serious illnesses while others will develop such illnesses in the future.
Unfortunately, they haven't been eligible for veterans' benefits and have been excluded from other federal programs because they technically worked for DOE's contractors—and for far too long the government was not on their side. That has changed, I'm glad to say—the Department of Energy has reversed its decades-old policy of opposing workers claims.
Now we in the Congress need to finish the job by passing legislation. And we need to do the job right.
The importance of this was well put by Len Ackland, a constituent of mine who is an expert on the subject. As he put it in an article in the DENVER POST, ''The shape of such legislation will determine whether or not this nation, through its political leadership, will finally accept responsibility for the physical harm to thousands of the 600,000 workers recruited to fight the cold war by producing nuclear weapons.''
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I very much agree with that judgment, Mr. Chairman. In the past, the government has not done all it should, and has not accepted its full responsibility.
In that connection, I want to draw your attention to testimony prepared for this hearing by Dr. Lee Newman.
Dr. Newman is a Professor at the University of Colorado medical school and also is the Director of the Division of Environmental and Occupational Health Sciences at the National Jewish Medical and Research Center in Denver. As you know, while he was on the original witness list for this hearing he is unable to be here today. I know your staff has received his prepared statement, and I ask that it be included in the hearing record in full.
As noted in his statement, for the past 16 years Dr. Newman has focused his research, clinical practice, and teaching on the health of people exposed to dust and fumes of beryllium—including people who would be covered by the legislation we are discussing today.
In his prepared statement, Dr. Newman says these people—nuclear-weapons workers—were ''failed by the Federal Government in at least eight ways,'' and he lists them:
The government failed to adequately warn these workers;
The government failed to adequately protect these workers;
The government failed to institute medical monitoring for these workers;
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The government failed to support investigation of a beryllium-disease epidemic among these workers;
The government failed to support compensation claims by these workers;
The government failed to do enough to reduce exposure, provide education, and detect early disease among these workers;
The government failed to support adequate research on treatment for these workers; and
The government failed to study and act on other occupational illnesses besides beryllium disease, including those that would be covered by the legislation under consideration.
Mr. Chairman, I think this expert testimony deserves to be given great weight and I suggest that it will lead you—as it has led me—to a fuller understanding of the importance of this legislation.
And, Mr. Chairman, when you consider that testimony you can understand why I was encouraged when the House adopted the Whitfield amendment and went on record as saying that now is the time the Congress to do the right thing and to accept our responsibility for these workers.
By adopting that amendment, the House signaled that we recognize this is a matter of high priority and that it is important for Congress to pass legislation this year to create an efficient, uniform, and adequate system of compensation for these workers.
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Since then, Mr. Chairman, both chambers have completed initial action on the defense authorization bill—and as you know that bill as passed by the Senate includes a separate title, Title 35, that would set up a compensation system for these workers.
That title, and the other differences between the House and Senate versions of the defense authorization bill, are now being considered by a conference committee.
I am sure that this Senate-passed legislation could be further refined. But we are rapidly nearing the end of this Congress, and time is of the essence.
That is why, along with more than 100 of our colleagues, I have strongly urged the House's conferees to agree to this part of the Senate bill.
Of course, as everyone here understands, that is not the only legislation on this subject. Along with other Members who are testifying today, I am a cosponsor of several bills, notably H.R. 4398, introduced by our colleague from Kentucky, Mr. Whitfield.
In addition, along with 16 colleagues, last week I introduced H.R. 5189, which includes the provisions of Title 35 of the Senate's version of the defense authorization bill.
I did that, Mr. Chairman, so that you and the other members of the Judiciary Committee would have full opportunity to review those provisions—and, I hope and urge, that you will agree that they are appropriate for inclusion in the conference report on the defense authorization bill.
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I remain convinced that having the Senate-passed legislation included in the conference report on the defense authorization bill would be the very best way to take the essential first step toward the vital goal of doing justice to these workers.
That is because I think the defense authorization bill is a bill that is very likely to pass and to be signed into law. The Senate's approval of the language of Title 35 indicates that the Senate is prepared to accept a conference report that includes those provisions—and I think they would enjoy very broad support in the House as well.
In short, I think retaining the Senate language in the defense conference report presents the best opportunity to achieve enactment this year of an essential first step toward providing a long- overdue measure of justice.
I know that more will remain to be done, but enactment of those provisions will lay a good foundation on which to build further in the near future—something that I hope we can do beginning next year.
Thank you, Mr. Chairman.
DIGEST OF PROVISIONS OF H.R. 5189 AND ITLE 35 OF SENATE AMENDMENT TO H.R. 4205
Title: Energy Employees Occupational Illness Compensation Act of 2000
Background: After decades of denials, the Administration has conceded that workers who helped make nuclear weapons were exposed to radiation and chemicals that caused cancer and early death. Secretary of Energy Bill Richardson is leading the Administration's efforts to pass as comprehensive a bill as possible in this Congress. The Administration offered a preliminary bill in November 1999 (HR 3418) through Representative Paul Kanjorski. After releasing a National Economic Council Report in April 2000 which outlined the science and policy reasons for implementing a federal workers comp system for nuclear weapons workers, Representative Whitfield, and many cosponsors, introduced HR 4398, a comprehensive bill which covers radiation, beryllium silica, hazardous chemicals and heavy metals.
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New Bill/Senate Amendment:
The Udall of Colorado bill incorporates the provisions of the Energy Employees Occupational Illness Compensation Act of 2000, which was adopted on the Senate floor as an amendment to the Defense Authorization Act for fiscal year 2001. It provides for payment by the Federal government of lost wages and /or medical costs for employees who died or whose health was damaged by exposure to beryllium, radiation or silica while working for the defense of the United States through defense nuclear programs of the Department of Energy (DOE) and its predecessor agencies. These health hazards were special to DOE and to nuclear weapons, which require both beryllium-containing components and radioactive materials and drilling of tunnels under the Nevada Test Site.
The compensation in this bill is modeled on the coverage federal employees can receive in the Federal Employees Compensation Act. Compensation decisions are to be based on science and expert judgment, and dose information is to be used where it is known or can be estimated. As with FECA, compensation under this bill would be mandatory spending and benefits are tax exempt.
CBO has scored Title 35 of the Senate's Defense Authorization bill at $2.3 billion over 5 years and $3.7 billion over 10 years.
Three federal agencies would be involved in the program. The Department of Labor, which already administers FECA, would handle the administrative processing of claims, appeals, and payments. The Department of Health and Human Services (HHS), which currently oversees radiation and beryllium health effects research at DOE sites, would oversee the scientific decisions that must be made. The DOE, which has the detailed information on and access to workers, is to play an advocacy role in informing workers of the programs and facilitating information flow to the Department of Labor.
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Hazards and Coverage:
Beryllium: Beryllium is a non-radioactive metal that can cause an allergic reaction that severely scars the lungs. Beryllium lung damage has unique characteristics and can be traced specifically to beryllium exposure. The first sign of the allergic reaction is beryllium sensitivity, which sometimes progresses to chronic beryllium disease. Beryllium sensitivity must be medically monitored, but is not disabling. Chronic beryllium disease can disable or kill. Under Title 35 and this bill:
Workers who can show beryllium sensitivity (or who have chronic beryllium disease but are not disabled) would be eligible to have the medical costs of monitoring their condition paid by the Federal government.
Workers who contract chronic beryllium disease and who die or are disabled could also receive lost wage benefits, in addition to medical costs.
Radiation: Radiation in high doses has been linked to elevated rates of some types of cancer. Unlike beryllium illness, it is not possible to look at a tumor and know for sure that radiation in the workplace caused it. Scientists have determined the doses at which certain cancers in workers in certain age groups can be confidently be said to be radiation caused. These data on radiation dose and cancer form the basis in the bill for compensating workers who have adequate dose records, as follows.
Workers who have a specified radiogenic cancer that is determined to be work-related under HHS guidelines, but who are not disabled, could have their medical costs of their cancer treatment paid by the Federal government.
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Workers who have a work related cancer, as established under the HHS guidelines, and who are disabled or dead, could also receive lost wage benefits, in addition to medical costs.
Silicosis: Miners at the Nevada Test site drilled underground tunnels through hard rock for the placement of nuclear weapons devices that were subsequently tested. DOE failed to adequately control exposure to silica dust and 20% of the workers screened by a DOE medical screening program at the Nevada Test Site have found silicosis, a disease that causes irreparable scarring of the lungs.
Workers with Non-Existent Radiation Records. Many worker dose records in DOE are flawed, but this amendment requires HHS to estimate dose, where records exist and it is feasible to do so. In some cases, though, it is not feasible to reconstruct what radiation dose a group of workers received, even though it is clear from their job types that their health may have been endangered by radiation. For these special exposure situations, the bill provides that workers can be placed by the HHS into a ''special exposure cohort'' that can be compensated for certain types of cancer enumerated in the amendment. Members of the ''special exposure cohort'' are eligible for the same compensation as workers in the previous section. Because of the unmeasured, probably large, internal radiation doses which they received, and the lack of monitoring, protection, or even warning given by DOE to them, certain employees at the DOE gaseous diffusion plants are placed in the ''special exposure cohort'' by law under the bill. It was the public outcry over the deliberate deception of these employees by the DOE and its contractors concerning workplace radiation risks that led the Administration to propose the bill on which Title 35 and this bill are patterned.
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Lump Sum Payment Option. All of the above classes of workers, if they are disabled, and their survivors, if the workers die before being compensated, would be able to choose a one-time $200,000 lump plus medical benefits in lieu of lost wages and ongoing medical benefits described above. This option is intended mostly for elderly, retired workers, or for survivors of deceased workers.
Administrative Provisions. There are provisions in the bill against receiving lost wages or lump sum payments for more than one disability or cause of death. Benefits under other Federal or state worker compensation statutes for the same disability or death would be deducted from any benefits under the bill. Title 35 and the bill also contain language making payment under the amendment the exclusive remedy for all liability by DOE and its contractors. For vendors, acceptance of payment under this program would waive the right to sue, but employees who seek court relief would have to file within 180 days of the onset of a beryllium or radiation related disease.
Other Toxic Substances The bill does not provide federal compensation for health effects from exposure to other toxic substances in the DOE workplace, but does authorize DOE to work with States to get workers with these health effects into State worker compensation programs. DOE will maintain an office to review claims and advise contractors not challenge claims deemed meritorious by DO
Mr. SMITH. Mr. Lampson will be recognized.
STATEMENT OF HON. NICK LAMPSON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
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Mr. LAMPSON. Thank you, Mr. Chairman. I appreciate you giving me the opportunity to speak, and ranking member and members of the committee. I would like to submit my statement for the record.
Mr. SMITH. Without objection, so ordered.
Mr. LAMPSON. I will be brief, but there are three points that I feel that must be addressed when considering compensation to our Nation's nuclear weapons workers and they all focus on the 150 sites around the Nation that I call the forgotten nuclear weapons facilities, their past workers, and the associated local communities. Specifically, I urge the committee to do these following things.
One, require that any compensation program include contractor sites, not just governmental facilities.
Two, include within the scope of compensation legislation the workers of the more than 150 forgotten nuclear weapons facilities that have been recently made known to the public and are not under scrutiny by the Department of Energy.
And three, either legislate or press for administrative action to fully disclose information about these 150 forgotten sites. Establish health monitoring programs for these sites, former workers, and the associated local communities and press for Federal investigation of past activities at theses sites to determine the extent of any health or environmental consequences.
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I strongly urge the committee to provide the robust legislation with adequate funding that authorizes the compensation of nuclear weapons workers. Such legislation is critical to those suffering the health consequences, as we have already heard from all of the members here, resulting from their work in the past decades. It is just just.
However, as most of us have recently learned, the Federal Government failed to track the health and environmental legacy of those 150 former nuclear weapons-related sites across the Nation. They were effectively forgotten by the Federal Government. Many do not appear on the DOE lists of former nuclear sites. They also do not appear on any other Federal or State agency and none of them are tracking their status.
This information was made known, obviously, by the USA Today newspaper and we appreciate their work. I want to compliment the investigative staff of that newspaper and the service that they have granted in revealing these former sites. For too long, they have been neglected by the Federal Government.
I am especially concerned about the sites that are located in Texas. The former Amoco Chemical Company, which is located in Texas City in my Congressional district, and the Olin-Mathison Chemical Corporation in Pasadena, which is right on the very edge, both very near Houston, they were involved in the production of uranium fuel for nuclear weapons. And despite their part in the Nation's nuclear weapons history, neither facility has garnered the attention or the support from DOE for health or environmental concerns. They are not listed on the DOE information.
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And there is the Medina facility in your district, Mr. Chairman, which is a major support facility for nuclear operations. It is now the Lachman Air Force Base training annex. It was only one of four civilian sites that was involved in the assembly and maintenance of nuclear weapons. It was closed in the 1960's and the operation shifted to Pantex facility. And despite a significant nuclear weapons accident in the 1960's there, even the Medina site and its workers were virtually forgotten by DOE. I can supply the committee this information if you would like. It has been garnered by my staff.
The other two facilities in Texas, Dallas and Fort Worth, also demand that attention. I have written the Secretary of Energy requesting some steps that can be taken without waiting for legislative action and I hope the subcommittee will join me in pressing the administration for those steps.
I thank you for letting me have this time and I look forward to working with the subcommittee in passing the legislation in the coming weeks.
Mr. SMITH. Thank you, Representative Lampson.
[The prepared statement of Mr. Lampson is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
Mr. SMITH. We will go now to Representative Udall of New Mexico.
STATEMENT OF HON. TOM UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW MEXICO
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Mr. UDALL OF NEW MEXICO. Thank you. Thank you very much, Mr. Chairman. I did not know when I arrived this morning we were going to have a meeting of the Udall caucus here. [Laughter.]
Mr. Chairman, I would like to include my full statement for the record.
Mr. SMITH. Without objection.
Mr. UDALL OF NEW MEXICO. Thank you. Let me first of all thank you and Ranking Member Jackson Lee. I know that this is a very busy time for you, but this is also a very important issue, I think to all of us, as you have heard.
I would like to start in my testimony by first of all applauding Secretary Richardson, because these workers are people who were injured and many of them have fought the Federal Government for many, many years and the Federal Government has come back very vigorously with a defense. Secretary Richardson is the first Secretary to step forward and say, we have done wrong by these people. We have to make this right. He has assigned one of his top people to this issue, who you will hear from later, Dr. Michaels. Dr. Michaels has been all over the country holding hearings and he will tell you about that. But the sentiment from those hearings has been very, very emotional and it has been to the point that we need to do something about this.
I have been working on these issues now for over 20 years. I have represented uranium miners who worked in the uranium mines, were sent into the mines to get uranium ore in the Cold War years, not knowing the dangers in those mines and then later contracting at epidemic levels lung cancer. The downwinders, who lived downwind of the atomic bombs, those individuals were sprinkled in the 1950's and early 1960's with radiation and we now have epidemics of leukemia and other types of cancer.
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Congress acted under those circumstances to do justice to that situation by passing RECA, the Radiation Exposure Compensation Act. That act moved a long way forward. What we are asking you to do today is move forward with the atomic workers that are working in the plants that have been exposed.
One thing that I think is very significant here is that the RECA legislation set the operation up for compensation in the Department of Justice. I have had extensive experience working with the Department of Justice on these issues and I would urge you in setting up a compensation system to set it up in the Department of Labor. They have familiarity with compensation systems. I think it is very, very important that we lodge this in the Department of Labor.
I would like to talk a little bit about the workers, because I attended a hearing on March 18 of this year in my district in New Mexico, and with me were my U.S. Senator, Jeff Bingaman, and Dr. David Michaels, and we heard from over 200 people. We had a small room. We did not expect as big a turnout. It was an overflow turnout and many of them told their stories. I think it is really the best way to tell to you the heart-wrenching things that have happened to these people.
First of all, Mr. Jonathan Garcia, who worked at Los Alamos National Laboratory for over 16 years. Mr. Garcia has radiation-induced leukemia. He has been robbed of his health, but as we could see in that hearing, not robbed of his dignity. He needs your help.
Glen Westerhold worked for over 44 years cleaning up plutonium and hazardous chemicals for Los Alamos National Laboratory. Mr. Westerhold was told at one point he was prohibited from working in certain areas due to his high radiation exposures. Yet when he sought information of his exposure history after he retired, he was told all of his records were lost. He is a survivor. He wanted to consult with his doctors to find out what his health condition was. He has no records. That is why we shift the burden of proof to the government. He needs your help.
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Ms. Darleen Ortiz, whose father died of cancer after having spent his life cleaning up toxic materials at Los Alamos, is a survivor.
Ms. Hugette Sirgant, a widow of a Los Alamos National Laboratory employee, has bravely taken on the role and responsibility as an advocate for both victims and survivors.
And lastly, Mr. Tomas Archuleta was exposed to beryllium, plutonium, asbestos, solvents, toxic metals, and hazardous chemicals. Mr. Garcia, Mr. Westerhold, Mr. Archuleta, and Ms. Ortiz and Ms. Sirgant all need your help.
You have before you, Mr. Chairman, a number of bills. We have all introduced bills that fit our district and have argued. I think the quickest way to make a big step forward is to accede to the Senate language—it is the proposal that was put forward by the administration—and to do that and then come back and take a look at it. I think it is enormously important that we do something this year. This is long overdue. These workers are some of the most patriotic people. They came out in my district to the Manhattan Project to serve the country and serve there and did it very patriotically and now they have illnesses and they need to be helped.
I thank you very much and am happy to answer any questions.
Mr. SMITH. Thank you, Representative Udall.
[The prepared statement of Mr. Udall of New Mexico follows:]
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PREPARED STATEMENT OF HON. TOM UDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW MEXICO
Mr. Chairman and members of the subcommittee:
Since the end of World War II many workers at the Department of Energy have been exposed to ultra hazardous conditions while working in support of federal nuclear activities. Nuclear weapons production involves unique dangers, and there is a growing realization that illnesses among current and former DOE workers are directly related to their service at our nuclear weapons sites. The workers to whom I refer are known as our nations atomic veterans.
On March 18th of this year, I attended a hearing in the community of Espanola, New Mexico. Present at the hearing were myself, Sen. Jeff Bingaman, who is the Ranking Member on the Senate Energy Committee, and Dr. David Michaels, Assistant Secretary of Environmental Safety and Health for the Department of Energy. Also present were over 200 of my constituents who testified about their illnesses which they believe are a direct result of their experiences working at the Los Alamos National Laboratory. They talked about how patriotic they were, how they served their country for many years, and how they hoped they would receive a just compensation for illnesses such as cancer, beryllium disease, and asbestosis. The testimony of these atomic veterans and their families was heart wrenching. I was appalled at the stories I heard during the hearing that day. Especially upsetting was the fact that in many cases records of worker exposures at Los Alamos had been lost or destroyed.
For many of you it may be hard to fully understand the revelations that we heard and saw that day. Let me introduce you to the stories of a few people who shared their experiences with us in a continued pursuit for reparation.
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Mr. Jonathan Garcia, who worked at Los Alamos National Laboratory for over 16 years. Mr. Garcia has radiation-induced leukemia. Mr. Garcia has been robbed of his health, but not his dignity.
Gene Westerhold worked for over 44 years cleaning up plutonium and hazardous chemicals for Los Alamos National Laboratory. Mr. Westerhold was told at one point that he was prohibited from working in certain areas due to his high radiation exposures. Yet, when he sought information of his exposure history, he was told his records were lost, Mr. Westerhold is a survivor.
Ms. Darleen Ortiz, whose father died of cancer after having spent his life cleaning up toxic materials at Los Alamos, is a survivor. Ms. Hugette Sirgant, a widow of a Los Alamos National Laboratory employee, has bravely taken on the role and responsibility as an advocate for both victims and survivors.
And lastly, Mr. Tomas Archuleta was exposed to beryllium, plutonium, asbestos, solvents, toxic metals and hazardous chemicals. Mr. Garcia, Mr. Westerhold, Mr. Archuleta, Ms. Oritz, and Ms. Sirgant are survivors.
I introduced HR 4263 in order to compensate atomic veterans like those whom I just mentioned. My bill is broad in scope and attempts to cover all illnesses due to occupational exposure from working for the nuclear weapons program at LANL. This includes exposure to radiation, asbestos, beryllium, and any other toxic substance that causes illness or death to an employee.
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In brief, my bill would establish a medical coverage program to compensate workers who suffer from radiogenic cancers and other diseases causally connected to the toxic exposures sustained while working in the nuclear program. Medical care would be provided for workers who believe they have ailments related to the environmental conditions at their places of work. Victims would be examined free of charge by physicians at a federally sponsored medical facility, such as a military or VA hospital, nearest to their place of residence.
Responsibility of administration would fall under jurisdiction of the Department of Labor. The Department, in conjunction with the Department of Energy, would provide employees and claimants with assistance in connection with this title. This includes assistance in securing medical testing and diagnostic services necessary to determine the existence of a covered illness. Moreover, employees and claimants would also be provided with the help necessary for the development of the facts pertinent to a claim or potential claim. In all, the process would be similar to the workers compensation program that is in place for the federal government.
H.R. 4263 also places the burden of proof upon the government, not the victims. Many of these workers knew there were exposures and when asking for their medical records at the end of their period of employment, were told that their files were lost. Under those circumstances it is only right that the burden of proof be placed on the government. Furthermore, in many cases the latency period of radiogenic illness is greater than the statute of limitations. This bill will allow a generous period between exposure, onset of disease or inception of disability, and filing of claims. To this end, claims for compensation under this title may be filed within ten years of a diagnosis of a covered illness or condition. Moreover, my bill would provide that during the 180-day period that a claim is pending, health care will be provided free of charge to these individuals.
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Mr. Chairman, I have introduced this bill in the hope of providing a comprehensive compensation program for the many atomic veterans of Los Alamos National Laboratory. There are numerous occupational exposures to which the atomic veteran became ill. It is right that we compensate them for their injuries. However, this is not just an issue exclusive to New Mexico—this is an issue that is felt by atomic workers exposed to ultra hazardous conditions at other DOE sites across the country. Therefore, I think this is a great issue in which both parties can join together in a bipartisan way to craft a solution to this problem. For this reason, I also support other measures that seek to compensate the atomic veteran for exposure to beryllium and other toxic substances. It is imperative that these workers be compensated and I am hopeful that an appropriate compensation package will pass this Congress. These people love their country and care deeply about it. When asked to serve their country they gave freely and served proudly. Now that they have sacrificed their health and life for the good of our nations nuclear weapons work—this country should recognize their commitment and be there for them.
Mr. Chairman, these patriots have waited long enough for compensation. I believe that passage of this legislation is a proper step in providing a solution.
Mr. SMITH. Before I get to a couple of questions, let me thank you all collectively for your leadership on the issue. Every one of you all has introduced major pieces of legislation, cosponsored other pieces of legislation, and we would not be here today if you all had not done that and if there had not been such a recognition led by you all of the need to compensate these individuals for the ill health that has been caused by their work for the government. So thank you all for that.
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My first question is not directed to any particular individual but to anyone who would like to answer it and it is really to pick up on a point that Mr. Kanjorski made before he left. He said that he hoped that the administrative cost and legal fees would not eat up a lot of the compensation that we hope these individuals will receive. Would you all favor a limit or a cap on administrative fees and on attorneys' fees to make sure that the individuals who have been harmed get as much as possible?
Ms. KAPTUR. I can render an opinion on that. I represent other companies in my district that have been involved in asbestos-related construction and so forth and fiberglass and other very fine particles that people have breathed in and cases have been filed now almost for a decade and every single dime that has been spent has been spent in legal fees, not a dime in compensation to victims.
So I think you have raised an important issue, Chairman Smith, and I would hope that the assistance could go to the individuals who are ill and obviously those who have lost their lives, if there could be any kind of lump sum benefit to families. I know my bill really talks about Workers' Compensation and making them eligible for that Federal program, but I would like to see the attorneys' fees limited myself.
I just did want to mention one other matter. Though my testimony says this, I did not reference it in my initial remarks. The bill I have introduced, which is H.R. 3478, which is different than the Senate bill in that it does highlight Department of Defense, contractor, and vendor workers. For example, in my district, if we had construction workers that went in and cleaned out a furnace and that was their job and they were on contract, they would not be covered in the Senate bill. Or, for example, if you worked in the credit union that was housed in the building, the credit union just happened to be collocated on site but the staff is dying, do we cover them or not?
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So I just wanted to mention to you, this is a situation I face in my district. How can I say no to them, and I know there has to be some kind of mechanism for a determination, but because we were not a direct Department of Energy or Department of Defense owned facility, we have these unique situations that do face us. Thank you.
Mr. SMITH. Does anyone else care to respond to the suggestion that we cap the administrative fees, which I would favor? Yes, Mr. Udall?
Mr. UDALL OF NEW MEXICO. Mr. Chairman, I would submit with all due respect that at this point in time, the best thing to do is to accede to that Senate language, which does not contain a cap. The thing that I think would comfort you about the Senate language that you——
Mr. SMITH. It is not me, it is the victims that I intend to comfort.
Mr. UDALL OF NEW MEXICO. Well, I agree. Your concern about attorneys is a concern for the victims. I understand that, and the idea that the attorneys are going to get all the money. Under the scheme that is in the Senate that was proposed by the Secretary, there is very little role for attorneys. It is an expedited process. It is a process where there are very specific deadlines put on the Department of Labor to make judgments. I think if we put that into place, I do not think you would see the problem that you are raising here.
Mr. SMITH. Mr. Udall, even though there is a very little role for attorneys, you and I know that does not necessarily stop attorneys from trying to take a larger part of the pie, and that is my concern. But I understand and appreciate your point, as well.
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Any other comments on that?
[No response.]
Mr. SMITH. My last question is this, and perhaps Mr. Udall of New Mexico might want to comment on it, as well. Several of you have bills that provide for $200,000 in compensation for the victims. We also have had past legislation that would have compensated, for example, the uranium miners at $100,000. How do we justify that discrepancy when both have, in fact, worked in our nuclear weapons programs? Mr. Udall?
Mr. UDALL OF NEW MEXICO. Chairman Smith, the way I would—the Senate language, I believe, has $200,000, and what you are saying is the injustice that would be done would be to previous victims. I have legislation in the Congress right now to increase the compensation to the Navajo miners and the downwinders to $200,000. I believe that is the fair thing to do. I think if we had a $200,000 fee for everyone, a $200,000 award, I think that is the way to be fair.
So I think you have raised a very important issue, but I think the way to resolve it is not to push it down. I think it is to bring it up to a level.
Many of these people, and the point—you know, you may say, well, this is a Democrat here, a tax-and-spend Democrat, spend more money. If these people had gone into court and brought a lawsuit, they probably for their injuries could win millions of dollars. We are limiting their ability. We are limiting their ability. And so $200,000 is not a huge amount of money for working in a plant and getting these deadly cancers by being exposed to beryllium and plutonium.
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Mr. SMITH. Thank you, Mr. Udall.
Representative Strickland?
Mr. STRICKLAND. Mr. Chairman, I have been told that the answer to the question is relevant to the fact that the miners can get the lump sum and also apply for compensation in addition to that lump sum, whereas this group of individuals would not be able to do so.
Mr. WHITFIELD. Mr. Chairman, may I make a comment, as well?
Mr. SMITH. Yes, Mr. Whitfield?
Mr. WHITFIELD. In our bill, and there are lots of them like this, we based it on the Federal Employees Compensation Act and they have precise amounts of compensation for particular illnesses or accidents. For example, under FECA, if you lose an arm, for example, you get $180,000. So we felt like that because of the protracted length of many of these illnesses and the impact that it had, the $200,000 was reasonable based on the Federal Employees Compensation Act.
Mr. SMITH. Thank you, Representative Whitfield.
Ms. Kaptur?
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Ms. KAPTUR. Mr. Chairman, I wanted to make a comment when members are finished answering your question.
Mr. SMITH. I think we are finished and my time is up. Are there any other comments you would like to make before we go on?
Ms. KAPTUR. Very quickly. I just wanted to say for the record, I want to compliment, as my colleagues have, Secretary Richardson in coming forward, but I cannot tell you the difficulty our offices had with the Department of Defense. It is obvious they are not at the table. I have letters I would like to submit to you and to members of the subcommittee that we have received from the Department of Defense. Congressman Strickland just said to me, ''Marcy, how could our country have been this negligent?'' I think our Department of Defense is still negligent. I have dealt with them on many matters. I cannot believe they have not been more forthcoming, and we have tried.
Mr. SMITH. Those letters will be made a part of the record when you submit them to us.
[The letters from the Department of Defense follow:]
| Committee on Armed Services, |
| U.S. House of Representatives, |
| Washington, DC, March 2, 2000. |
Hon. MARCY KAPTUR,
House of Representatives, Washington, DC.
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DEAR MARCY: Please find a copy of the report received from the Department of Defense on your legislation, H.R. 3478.
I trust you will find this information useful.
With warmest regards, I am
Sincerely,
| Floyd D. Spence, Chairman. |
| General Counsel of the |
| Department of Defense, |
| Washington, DC, February 29, 2000. |
Hon. FLOYD D. SPENCE, Chairman,
Committee on Armed Services,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Defense on H.R. 3478, a bill ''To establish a compensation program for the contractors of the Departments of Energy and Defense and beryllium vendors who sustained a beryllium-related illness due to the performance of their duty, and for other purposes.''
H.R. 3478 would establish a program administered by the Secretary of Labor to make compensation payments to contractor employees of the Departments of Energy and Defense who contracted chronic beryllium disease. These individuals would receive workers' compensation payments or, in the case of a worker who was diagnosed before enactment of this bill as having a beryllium-related pulmonary condition, a retroactive payment of $200,000. Payments would be made from a Federal Beryllium Compensation Fund with money appropriated to the Department of Energy.
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The Department of Defense does not support H.R. 3478, but prefers the Administration's bill, H.R. 3418. The Department is particularly concerned that this bill, unlike H.R. 3418, would extend coverage to Department of Defense employees, contractor employees and vendor employees as ''covered employees.'' Applicable Federal and State law providing compensation for work-related injuries and illnesses for Departmental employees and contractor personnel is well settled. While the history of the Department of Energy's nuclear weapons program provides a sufficient basis for congressional action, as proposed in H.R. 3418, this rationale does not extend to Department of Defense facilities.
With respect to H.R. 3478, the Department supports the portion of the bill limiting the coverage solely to beryllium-related problems. We have specific concerns about the following provisions in the bill:
Section 3(9) regarding the definition of Department of Defense facility. This definition is extremely broad in scope. It could be interpreted to encompass employees of a remediation subcontractor to the Corps of Engineers, where the Corps is functioning merely as a general contractor to the US EPA for remediation work at a Superfund site that has no historical relationship to the Department of Defense. Under such a scenario, the Superfund site could be construed as ''premises . . . in which operations are conducted by . . . the Department of Defense and with regard to which the Department of Defense has . . . entered into a contract with an entity to provide . . . environmental remediation.'' If such a site could be construed as a Departmental facility, then a subcontractor employee at the site could be a ''covered employee'' under its definition at Section 3, paragraph (4)(A). If the legislation does not intend to reach such people, we would suggest adding language at the end such as: ''except where the contract to provide environmental remediation is related to services being provided by a Department of Defense entity to another federal agency under the Economy Act (31 U.S.C. 1535) or any other provision of law.''
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Section 10(a) increases the lump-sum retroactive award from the $ 100,000 cited in earlier drafts to $200,000 without an accompanying rationale for this increase. This change significantly increases the costs of the bill. The Department recommends that the amount be reduced to $100,000, as in H.R. 3418.
Section 12 does not contain a statute of limitations for the filing of claims. The open-ended nature of this provision is of great concern to the Department. We recommend that a statute of limitations of seven years be inserted into the language.
While the Department opposes adding DoD components to the bill, sections 18 and 23, which require the Department of Energy to request appropriations and assume other funding responsibilities for both Departments, are complex and wasteful.
Additionally, the Department notes that section 8(a)(4) of this bill refers to retired or equivalent pay subject to the reduction called for in section 5532(b) of title 5, United States Code. Section 5532 was repealed by section 651 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65; 113 Stat. 664). We recommend that section 8(a)(4) be stricken from the bill.
Finally, we are concerned that section 11 of H.R. 3478, relating to exclusivity of remedy, is too narrow and should be replaced with sections 112 and 113 of H.R. 3418, the Administration bill. Such an amendment would refine the bill so that the Government could not possibly be held liable twice for the same illness of the same individual. Otherwise, the individual might recover from the Government under the enacted authority and from a contractor, subcontractor, or beryllium vendor in another proceeding, with that entity then seeking reimbursement from the Federal government.
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The Office of Management and Budget advises that from the standpoint of the Administration's program, there is no objection to the presentation of this report for the consideration of the Committee.
Sincerely,
| Douglas A. Dworkin, Acting General Counsel. |
cc:
The Honorable Ike Skelton
Ranking Minority
| Congress of the United States, |
| House of Representatives, |
| Washington, DC, April 30, 1999. |
Hon. J. DENNIS HASTERT, Speaker of the House,
The Capitol, Washington, DC.
DEAR MR. SPEAKER: I am writing to ask your assistance on a matter of utmost importance to me and my constituents, as well as many other Members and which spans both jurisdictional and party lines within this Congress.
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As you may know, beryllium is a metal that has long been used as a component of nuclear and other weapons and defense equipment due to its lightness and strength. While this metal has served our country well in keeping our borders free of threat, it has left a distressing legacy of disease and death for many of the workers exposed to its dust. Chronic beryllium disease (CBD) is an incurable debilitating and often deadly disease that attacks the lungs of a small percentage of people exposed to beryllium dust or fumes. Far too many people suffer as a result of exposure to beryllium, and I ask your help in finding a way to address this domestic threat to worker safety and to combat CBD.
Recently, our colleague, Representative Paul Kanjorski, who represents one of the affected districts, wrote to Chairman Shays of the National Security, Veterans Affairs and International Relations Subcommittee to request Congressional hearings on beryllium disease in the defense industry. I second his call for such hearings and ask for your cooperation for productive Congressional hearings of national impact.
In addition, I will shortly introduce legislation, after consultation with Energy Secretary Bill Richardson, that will help our government to meet its responsibilities to those who sacrificed to win World War II and the Cold War and will provide appropriate compensation for federal and federal contractor employees stricken by CBD. I request your assistance in assuring that this legislation is swiftly considered by the House.
My effort over the last few years to increase funding to the National Institute of Environmental Health Sciences for its study of chronic beryllium disease was a start. It has resulted in a recently announced multi-agency research initiative of the health effects of the metal and its production. This initiative will further our understanding, help identify individuals who are genetically sensitive to beryllium and lead to effective methods of prevention and hopefully, effective treatment.
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This study offers hope. We need your leadership to bring together Members from both parties, such as Representatives Jim Kolbe, Jim Hansen, Paul Gillmor, Tim Holden, and Paul Kanjorski, to learn about this issue and work hand-in-hand to help potentially thousands of Americans who are touched by this disease.
I am writing today to ask you to use your office to make addressing chronic beryllium disease a priority in the 106th Congress. It is my hope that our cooperative efforts will lead to productive Congressional hearings and effective bipartisan legislation on this critical issue.
Thank you for your consideration. I look forward to discussing ways in which we might convene other Members with an interest in beryllium issues along with the chairmen and ranking members of the key committees to develop a comprehensive effort to pass this legislation. Please contact me or George Wilson of my staff to discuss this matter.
Sincerely,
| Marcy Kaptur, Member of Congress. |
cc: The Honorable Richard Gephardt
Mr. UDALL OF COLORADO. Mr. Chairman?
Mr. SMITH. The gentleman from Colorado?
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Mr. UDALL OF COLORADO. Just a brief housekeeping request. I would ask unanimous consent that the study that I referenced from Dr. Newman be made part of the record.
Mr. SMITH. Without objection.
Mr. UDALL OF COLORADO. Thank you.
[The information from Mr. Udall of Colorado is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
Mr. SMITH. The gentlewoman from Texas, Ms. Jackson Lee, is recognized for her questions.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I think it was appropriate that Congresswoman Kaptur mentioned the Department of Energy under the leadership of Secretary Bill Richardson because I was not sure that he or his staff would be able to apprise him that during the testimony of many of the witnesses, they were very appreciative that the Department of Energy was willing to step up to the bar, if you will, and to acknowledge and to fight for some resolution, and he will be our next witness and I think that is appropriate.
And thank you, Congresswoman Kaptur, for at least framing in this hearing the importance of acknowledging the difficulty with the Department of Defense. I hope that this hearing, along with maybe some other oversight committees, will address that issue because they do great works. There are a lot of good things the Department of Defense does, but I think it is important when there is an issue to be resolved, to save lives or to compensate Americans, that we cannot let them escape their obligation and responsibility.
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I have a few questions that I would pose and any of the members can answer them. First of all, I would like to again acknowledge the work this committee did and the fact that I appreciate the chairman working with me and my interest in this area and of having this hearing, and, as well, the PACE union, if you will, that many of these workers went to to provide assistance and leadership. I think they have done great work.
Two-hundred-thousand dollars is certainly, I would say, both reasonable and not enough, but that is where we are and I think we should make the statement to these workers that we understand the pain they have gone through.
Congresswoman Kaptur, you made a point and I think the point was made by another member, as well. Just hit hard for us, if you will, the need to include other contractors. I think that is a point—I think, Congressman Lampson, you may have made that point. Might I make this a double question, this whole issue of the 150 sites. I think that is key that we not be narrow in our response, but this is a more expansive issue than we might think. The contractor inclusion is something I am very interested in, the importance of making sure that is included, and the idea of the 150 sites that have not been particularly in the limelight. Congresswoman?
Ms. KAPTUR. Yes. Thank you so very much, Congresswoman Jackson Lee, for raising that, because I feel sometimes when we began raising this issue federally, I felt like a lamb out in the wilderness. When some of the proposals came forward, I kept saying, but wait a minute. I kept trying to catch up to the crowd. You are not including us.
You are not including us. Certainly because we were a contract plant, and a Department of Defense contractor many times as opposed to Department of Energy, and I even said to Secretary Richardson, I think what you are doing is incredibly important and can we not do something with the other part of the government, the Department of Defense? And he said, ''Well, you know, that goes beyond my job description, but we could use all the help that we could get within the executive branch.''
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Then in my own district, I found people who were coming up to me from the building trades. They said, ''Marcy, we did not work for the plant. We were on contract. We were technically vendors to the plant. So we would go in and we would construct furnace ducts, etc.'' One man was cleaning—he is very ill—cleaning the ducts in the plant before, I think, anyone really realized how reactive this material was.
They are not covered and so that is the reason that we introduced——
Ms. JACKSON LEE. The language is not in the Senate amendment, as well?
Ms. KAPTUR. It is not. It is not contractors and vendors. That is our plant. I have been trying to find a common ground among these various facilities and the workers who worked inside the facilities or who came to the facilities to perform this work. I had not heard the term ''downwinders'' that the Udalls squared brought to us this morning. We are very fortunate to have these two men in the Congress. But, of course, we have that question mark in our community, as well, for people who lived adjacent to the site. To what extent are they able to bring a claim forward? I cannot answer their question.
So I just thank you for picking up on that and for making it a part of this record. It seems to me that if they served this country or they were harmed by something our country did, they ought to be eligible for inclusion. I thank you for the question.
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Ms. JACKSON LEE. Congressman, anyone else?
Mr. LAMPSON. A couple of things. Just to clarify your question quickly, it is in the Senate bill in the section that deals with definitions, the term atomic weapons employer facility means a facility owned by an atomic weapons employer that is or was used to process, produce for use, et cetera, et cetera. It goes into a number of different vendors listed specifically and it is an example of what happened in the Texas City plant, where a building where much of this material was processed and handled was destroyed during a storm. Well, they hired a contractor to come in, without doing any checking to find out what kind of contamination existed there, to begin to use shovels and bulldozers to pile the material up, haul it off, and to take it someplace without any tracking of either the people that worked on the site or what contamination was carried elsewhere. We believe that it is contained adequately within the Senate legislation.
Ms. JACKSON LEE. So once we clarify or reaffirm, and as you have stated, it is in there, that seems to cover the contractor position or need and, therefore, expand it to this issue of the 150 sites that may not have been covered.
Do I get a general consensus, because we are toward the end of the legislative process, that the members here would accede to the Senate language, that we could move that language? Do we need to then have a whole House process or do we need to move forward with the Senate language? Does anyone wish to comment?
Mr. STRICKLAND. Congresswoman, I think what we should do in the short term, and we can do. I think, immediately, that is to accede to the Senate language. That does not mean that these other individuals and problems should go unaddressed, but we are dealing with a very short time frame and it seems to me that that would be the initial first step that we could take that is justified under the circumstances.
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Ms. JACKSON LEE. Further, let me ask, do we need language that suggests judicial review of any of the rejected claims? How do we respond or handle rejected claims if that ultimately occurs?
Mr. WHITFIELD. Well, I know in our legislation, there is judicial review of rejected claims eventually.
Ms. JACKSON LEE. So long-range, we may have that option if we look at this in the next session?
Ms. KAPTUR. Congresswoman Jackson Lee, might I just comment additionally, since what I said may have been misinterpreted. If you read the Senate language and you go to the section dealing with contractors and vendors, in the vendors section, which my plant is, it does not include construction workers. That is in the previous section, but it does not include the people that I have described to you who worked for the vendors performing these various tasks. They were not in the plant all the time. But the Senate bill does not include construction workers.
Mr. WHITFIELD. Ms. Jackson Lee, may I make one comment? You were talking about the Senate version. In working the Paper, Allied Industry, Chemical, and Energy Workers, PACE, they came up with some minor changes to the Senate version that CBO has said would be $1.7 billion over 10 years, which seems to be a reasonable dollar amount.
Ms. JACKSON LEE. Thank you very much. Mr. Chairman, let me thank you and——
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Mr. UDALL OF NEW MEXICO. Ms. Jackson Lee, I just wanted to go to your question on judicial review. There are judicial review provisions in the Senate bill and I would say accede to the Senate bill.
Ms. JACKSON LEE. Thank you very much. Let me close, Mr. Chairman—I see the time is up—to again thank these members for their leadership and their compassion on this issue.
I might just inquire on the record, Mr. Chairman, I know there is now DOD legislation, just to inquire of the presence or lack of presence of representatives from the Department of Defense. Our committee might not, as I know that we were deliberating on witnesses, might not have inquired of their presence, but I would like to know their response to any inquiries to be present at this hearing today, witnesses from the Department of Defense. Thank you very much.
Mr. SMITH. Thank you, Ms. Jackson Lee.
We appreciate the presence of the gentleman from Indiana, Mr. Pease, and recognize him for his questions.
Mr. PEASE. Thank you, Mr. Chairman. I have no questions for the panel. I know we have a number of witnesses still to be heard from, but I would like to publicly make this observation.
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As an attorney, I know all of our training is that we are to be detached and dispassionate when we are representing those that are depending on us in order that we can do our best professional job, and I know that these members of this panel have tried very hard to do that. I believe they are doing that. But I also know, because a number of them have spoken to me personally, that this is more than a professional thing for them because many of them have told me about individuals, by name, that they have spoken to.
Trying to find that balance, I know is a tough thing, and I have the most tremendous admiration for the folks on this panel and Representative Kanjorski, who has also spoken to me about this but who is not here right now, trying to do the right thing in their professional responsibility but knowing from the looks on their faces and the conversations that it is a whole lot more than that. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Pease.
I thank all the witnesses for their contribution—very helpful—and appreciate your being here.
I would like to welcome our second panel. They include the Honorable Bill Richardson, Secretary, U.S. Department of Energy, and Dr. David Michaels, Assistant Secretary of the Office of Environment Safety and Health, U.S. Department of Energy.
Secretary Richardson, we appreciate your being here and look forward to your testimony, and you are recognized for that purpose.
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STATEMENT OF BILL RICHARDSON, SECRETARY, UNITED STATES DEPARTMENT OF ENERGY
Mr. RICHARDSON. Mr. Chairman, thank you for accommodating my schedule, for being so gracious and letting me come and discuss this issue with your subcommittee. Let me also commend you for the very outstanding work you do on immigration issues and the great work the subcommittee does on a multiplicity of problems that affect people around this country.
Mr. SMITH. Thank you.
Mr. RICHARDSON. Mr. Chairman, I wanted to come here myself to underscore the administration's commitment to this issue, and I appreciate, too, what Congressman Pease just said about how this is something that affects people.
Mr. Chairman, on any given day, there are workplaces in America where thousands of Americans invest their time and toil in dismantling the most vivid reminders of our Nation's commitment to winning the Cold War, and that is the aging nuclear weapons. It is dangerous, it is time-consuming work. It is staggeringly expensive work and clear evidence of the tremendous commitment we made to develop the weapons needed to keep our Nation safe and secure.
But beyond the billions of dollars that America invested in building up our stockpile and it now spends in taking it apart, there remains a lasting debt that the Federal Government wants to repay, compensating thousands of workers who may have become ill from designing, testing, and building those weapons.
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Mr. Chairman, this Nation shares a shameful legacy of neglect, a legacy a half-century in the making. Today we have a chance to change that. Today I think together we can say enough, and that is that America does stand behind its workers.
For years, Mr. Chairman, the Government told these workers that they had no illnesses, that they should go to the State compensation office, that the Government was not going to stand behind them. These were heroes and heroines of the Cold War that built our weapons that had us win the Cold War, and we turned our backs on them. And that, Mr. Chairman, is not right.
Mr. Chairman, I came personally because I wanted to emphasize to this committee and all who are listening that this issue is of the utmost priority for this administration and one of the most important things that Congress can do before it adjourns.
Dr. Michaels is here with me today and would be available to answer any questions. He is with the Department of Energy. He has been the tireless worker on this issue. And as we saw earlier, he also seems to be staffing many Members of Congress besides myself.
Mr. Chairman, I am glad that you are here today to listen, not just to Secretaries and politicians or policy experts, but most importantly the workers themselves. And I think there are some here today. I know you will find their stories compelling, as we all have.
When I joined the Department of Energy, one of the first meetings I ever had was with a group of sick workers in Oak Ridge, Tennessee, at our plant there. After that meeting, it was clear to me that this was a problem that had to be solved, not just for workers in Tennessee but for all the workers involved in the nuclear weapons production process for the past 50 years.
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We learn more and more every day about how the weapons were produced and how worker health and environmental protection often took second place to the imperative to produce weapons quickly and economically. After that trip to Oak Ridge, I was convinced that the Government had to change its policy of fighting these workers and their health claims. I was convinced that with the end of the Cold War, it was time to step up and do the right thing.
This past April, I was privileged to be joined by a number of my former colleagues, many of whom spoke to you earlier, some of whom you just heard from, to announce that not only would the Government stop fighting these workers and their families but would try to help them. That was a major policy change. We knew we couldn't do it alone, so we made a proposal to compensate workers who became ill with cancer or beryllium disease as a result of their work in the nuclear weapons complex.
We also announced that we would establish an Office of Worker Advocacy to help workers with illnesses not specifically addressed in the legislative proposal to make sure that they obtained State workers' compensation benefits.
Mr. Chairman, I would like to focus the rest of my remarks today on these points because I know that you have a long day ahead of you, and the workers are the ones that are the best testimony for why we need to move this legislation.
Mr. Chairman, again, it is imperative that Congress act this year to compensate sick workers. Let me add that the defense bill is the appropriate vehicle given the contributions these workers made toward winning the Cold War. There are workers and families of deceased workers out there who have waited a long time for the Government to hear their message. Many are getting older. These are hard-working, loyal Americans who came to work for the Government with the expectation that the Government would be straight with them about the risks that they faced.
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Mr. Chairman, I have learned that the Government and the contractors were all almost in many cases not always straight with the workers about their illnesses. And that is wrong, and as a Government, we need to redress that grievance. Let me give you a couple of examples.
When I was in Oak Ridge, again, just last week, I had the privilege of meeting with people like Leon Mead and his daughter, Vicky Hatfield, who is here in the audience. Leon struggles with chronic lung disease, which he developed from work at the Y–12 nuclear weapons plant. Vicky has been a tireless advocate for her dad, and as a result, we have been able to start getting her family some help with paying future medical bills. But that won't make a dent in the medical costs her family has already paid nor the family farm that they have already lost.
I also see Clara Harding here. I also talked with Mac and Ann Orick, who you will hear from later today. The Oricks have been real leaders in drawing attention to worker illnesses, long before it became a more popular issue. Mac himself is suffering from beryllium disease, and Ann will describe to you the hardships and suffering they have endured over the past decades.
Leon Mead and Mac Orick and the thousands of other sick workers in similar positions are not looking for a handout. They have no regrets about where they worked or what they did. They only regret that their Government put them in harm's way without their knowledge or their consent.
These are not statistics, Mr. Chairman. These are real people with real stories. These are the people whose work led to our victory in the Cold War. Just what did they get? They have lost their jobs, they have lost their homes, they have lost their ability to provide for their children and their children's children. They have suffered tremendously, and it would be wrong for the Congress to continue the delay.
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In the Federal executive branch, Mr. Chairman, we recognize this chronic injustice. Hopefully, the Congress will do the same. The Government should honor these people just as we honor our military veterans.
Secondly, Mr. Chairman, respectfully, we don't need more studies or more hearings. As the committee knows, this issue has been examined and studied for many years, going back to the middle 1980's. The time for study is over, and the time to act is now, the way you did for those Navajo veterans that over the years had radiation and were my constituents, too.
We have had two Senate hearings on this issue, and you will hear the same stories and points of view today that were expressed in those hearings. We have had the National Economic Council at the White House assemble some of the best minds in the country to develop what ultimately became the administration proposal as reflected in the Thompson-Bingaman amendment in the Senate.
We also went around the country to hear from hundreds of workers and their families, from Amarillo, Texas, and Piketon, Ohio, to Rocky Flats, Colorado, and Hanford, Washington. More than 2,000 workers and family members, some in oxygen tanks, some in wheelchair, came to talk with us. And more than 330 shared their stories, including some of the witnesses that will testify later here today.
Mr. Chairman, I am here to ask you not to let concern with committee jurisdiction and other issues stand in the way of doing the right thing. As you have done in the past, Mr. Chairman, you always seem to do the right thing.
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Mr. Chairman, third, the amendment proposed by Senators Thompson and Bingaman carries out the principles the administration announced in April and clearly supports our goals. I want to commend these two Senators, along with Senators Kennedy, Voinovich, and many others, and the more than 100 House Members who have helped push this issue on a totally bipartisan basis. I want to commend them for their leadership, their creativity, their passion, and their willingness to work on a bipartisan basis to develop a consensus solution.
Further, the administration firmly agrees with Senators Thompson and Bingaman that all eligible workers should be guaranteed compensation and that program funding should be mandatory.
Mr. Chairman, I understand that the defense conferees are considering a proposal that would make the funding for the program subject to future congressional action. I urge the Congress not to take this approach. The legislation should provide the authority to pay sick workers the compensation they deserve. I only need to remind you what has happened to that great Navajo program. It has run out of money because it was not a mandatory program. And those Navajo workers that contributed so much to the Cold War, too, on the reservation need somebody once again to stand up for them.
Mr. Chairman, I also understand that there have been discussions about replacing the Thompson-Bingaman proposal with a much narrower program model after the Radiation Exposure Compensation Act and administered by the Department of Justice. I hope the subcommittee understands that there are significant and substantial differences between this RECA program that was designed to make a one-time payment to uranium miners as an apology and the more comprehensive workers' compensation approach in the Thompson-Bingaman amendment and supported by the administration.
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The Department of Justice will tell you that they are not equipped nor experienced with handling medical claims or any of the many other responsibilities involved in a workers' compensation program. The program could be much more easily and effectively handled by the Department of Labor, along with the Department of Energy and HHS, as proposed by Thompson-Bingaman. These are the agencies that have the resources and experience needed to manage a workers' compensation program.
Mr. Chairman, that concludes my remarks. I regret that my schedule—as you know, I have a few problems—prohibits my staying longer. I urge you to listen carefully to what the workers have to say later this afternoon. I guarantee you they will change the way that many feel about this issue, and Dr. Michaels would be ready to answer any of your questions. But I am most grateful for your courtesy.
Mr. SMITH. Secretary Richardson, thank you for your testimony and for your very good points that you made. We appreciate your being here.
We appreciate representatives of the other agencies being here. I just was going to ask you to come forward, so I am glad you have. We have representatives from the Department of Justice, HHS, and Labor—and Defense as well? Or not Defense?
Dr. Michaels, if you will proceed, please. Thank you.
STATEMENT OF DAVID MICHAELS, PH.D., MPH, ASSISTANT SECRETARY, OFFICE OF ENVIRONMENT SAFETY AND HEALTH, UNITED STATES DEPARTMENT OF ENERGY
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Mr. MICHAELS. Thank you. I would just ask that my statement be included for the record. I think I need not add to what the Secretary said.
Mr. SMITH. Your complete testimony will be made a part of the record.
[The prepared statement of Mr. Michaels follows:]
PREPARED STATEMENT OF DAVID MICHAELS, PH.D., MPH, ASSISTANT SECRETARY, OFFICE OF ENVIRONMENT SAFETY AND HEALTH, UNITED STATES DEPARTMENT OF ENERGY
Thank you, Mr. Chairman and members of the Subcommittee. I appreciate the opportunity to discuss the Administration's views on legislation before the Committee to compensate current and former workers in the Nation's nuclear weapons complex who have become ill due to hazardous workplace exposures unique to the production of nuclear weapons (H.R. 675, H.R. 3418, H.R. 4263 and H.R. 4398). This is an issue that has been discussed and debated for many years. Now it is time to act to take care of the men and women whose courage and hard work brought us victory in the Cold War.
In April of this year, the Administration announced a proposal for legislation to compensate certain former and current DOE contract workers. Subsequently, a program based on the principles in this proposal was adopted as Title XXXV of S. 2549, the National Defense Authorization Act for Fiscal Year 2001, which was subsequently incorporated into the Senate version of H.R. 4205. I will focus my remarks today on this amendment.
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The Administration strongly supports legislation that would provide compensation for workers exposed to radiation or beryllium. The men and women who worked for the Department of Energy and served our Nation in the nuclear weapons industries over the last 50 years labored under difficult and dangerous conditions, exposed to some of the most hazardous materials known to mankind. These workers should not have to wait to be compensated. It is time for Congress to act to ensure that they get the help they have long deserved. Further, the Administration believes that eligible workers should be guaranteed compensation, and therefore agrees that program funding should be mandatory. It is our hope that Congress completes action this year.
NEED FOR LEGISLATIVE ACTION
For more than 60 years, the Department of Energy and its predecessor agencies operated a massive and extensive industrial enterprise to build and test nuclear weapons. DOE has owned, and its contractors have operated, a nationwide network of heavy industrial plants and research facilities involved in every aspect of weapons production—ranging from the refining of raw materials to the testing of the bombs, and, ultimately, to weapons stockpile management and environmental cleanup made necessary by nuclear production and testing. Also, as recently highlighted in the media, before the federal facilities were constructed to do this work, the government contracted with private corporations to process nuclear weapons materials. It has been estimated that, since 1949, the United States has spent $5.5 trillion dollars on U.S. nuclear weapons and weapons-related programs and that more than 600,000 workers were involved in the construction, maintenance, operations, and scientific activities carried out at DOE-owned facilities. We know that many of these workers faced serious hazards that today's safety regulations protect against. We know that, largely because of national security concerns, many workers were not adequately informed of the health risks they faced. We have evidence that worker safety issues sometimes took second place to the production goals of the nuclear weapons program. There is no longer any doubt that there are workers—at both government-owned and private facilities—who were made sick by workplace exposures to beryllium and radiation unique to atomic weapons production, and it is the clear policy of this Administration that it is the Government's responsibility to take care of and compensate these workers suffering from cancer and beryllium disease as a result of these exposures.
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Wearing overalls as their uniforms, these workers faithfully served the Nation in the Cold War. They faced risk to their health, and many became very sick. But since most of DOE's workers were employed by private contractors who operated the Department's weapons plants, these workers are not eligible for federal civilian or military disability benefits.
We have found that DOE contract workers with occupational illnesses can have a difficult time receiving compensation at the state level. It is not always readily apparent that occupational illnesses, especially those with long latency periods such as cancer or lung disease, are directly related to workplace exposures. And because diseases can have long latency periods before workers become disabled or need medical care, illnesses may not be compensable under state workers' compensation programs. This problem has been exacerbated by the Department's former policy—a policy that has recently been changed by Secretary Richardson—of actively opposing claims and not encouraging its contractors to support the claims of workers with occupational illness who sought state benefits. Finally, adequate records are not always available to establish a link between an occupational exposure and a disease.
SUMMARY OF ADMINISTRATION ACTION
In a historic announcement in July 1999, Secretary Richardson, joined by Members of Congress, announced that the Administration would propose legislation to provide compensation for victims of beryllium disease. A separate provision to compensate certain workers at the Paducah Gaseous Diffusion Plant was included because workers there had been exposed to radioactive materials without their full knowledge or adequate protections and monitoring—and, as a result, faced risk to their health. This proposal was the first recognition by the federal government that workers who contracted illnesses from exposures in the nuclear weapons complex should be compensated for their illnesses. The Administration proposal was subsequently introduced in the Congress as H.R. 3418 and S. 1954.
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At the same time, President Clinton issued a memorandum to the Secretaries of Defense, Labor, and Energy, the Attorney General, the Director of the Office of Management and Budget, and the Assistant to the President for Economic Policy directing an interagency review to determine whether other illnesses warranted inclusion in this program and how this should be accomplished.
The Administration undertook a number of activities to support that effort. First, the National Economic Council assembled an interagency panel of experts in the fields of public and occupational health to review and assess available scientific evidence to determine if there are occupational illnesses contracted by current and former contract DOE workers from exposures to occupational hazards unique to nuclear weapons production. The panel concluded that there is evidence that suggests that some current and former contractor workers at DOE nuclear weapons production facilities may be at increased risk of illness from occupational exposures to ionizing radiation and other hazards associated with the production of nuclear weapons. Some studies indicate an increased risk of adverse health outcomes with increased levels of exposure to ionizing radiation.
The second task directed by the President was to review state workers' compensation programs for DOE contract workers and evaluate how they compare with the Federal Employees' Compensation Act (FECA) program. Among the working group findings:
There are potentially large disparities among states and between states and the FECA system in wage replacement.
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Differences exist in how states define eligibility for compensation, such as statute of limitation provisions. Many occupational diseases, such as some cancers, manifest years after exposure to the hazardous agent. This ''latency'' problem can present an insurmountable barrier to a worker receiving compensation in a state with particular statutes of limitations.
Many workers who believe they have an occupational illness do not file claims, making it difficult to rely solely on existing data or currently reported cases to fully characterize the degree to which workers with occupational illnesses in the DOE workforce are eligible for and receiving workers' compensation benefits. In response to a DOE-sponsored survey questionnaire, workers gave a variety of reasons for not filing, including: not believing they could establish the work-relatedness of their illness; not knowing eligibility rules; pursuing claims under other benefits systems such as disability insurance and Medicare; and believing that the company discouraged them from filing.
Another important activity was the conduct of public meetings at several of our major DOE sites to hear directly from current and former workers. To date, we have held meetings in: Paducah, Kentucky; Piketon, Ohio, Oak Ridge, Tennessee, Rocky Flats, Colorado; Hanford, Washington; Nevada Test Site, Nevada; and Los Alamos, New Mexico. Approximately 2,300 current and retired workers and/or their family members attended the meetings. More than 330 shared their stories, including many of the witnesses here today.
We heard from DOE contractor employees who are proud of the work they have done to protect our national security. Most have no regrets about their work, but some feel betrayed that the Government may have made them sick through needless exposures to the wide variety of hazards found at DOE facilities. We saw many workers who are very ill, yet courageously gave testimonies on their work, health, and workers' compensation histories. We heard from workers who arrived at the meetings with oxygen tanks. We heard from many workers who reported diagnoses of cancers, including kidney, bone, lymphomas, multiple myelomas, and leukemias. Consistent with the results of the survey described above, the vast majority of workers told us that they would not file for workers' compensation because they believed that claims would be routinely denied.
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Based on these activities, on April 12 of this year Secretary Richardson announced that the Administration would expand its original proposal. The expanded Administration proposal would compensate workers with a range of work-related illnesses from beryllium and radiation exposure throughout the Energy Department's nuclear weapons complex. In addition, the program for Paducah workers would be expanded to include workers from all three gaseous diffusion plants. Finally, the Department would establish an Office of Worker Advocacy within the Office of Environment, Safety and Health to help workers with illnesses not specifically addressed in the legislative proposal obtain state workers' compensation benefits. This Office has been established and is already working closely with state offices to compensate workers whose illnesses were clearly identified as being work-related by occupational physicians. In addition, Secretary Richardson has directed all DOE contractors to reverse its policy of opposing the valid claims made by these workers.
Mr. Chairman, that concludes my testimony. I commend the Subcommittee for holding this important hearing and urge the Congress to continue to act expeditiously to put a program in place this year. These men and women have suffered for many years and waited a long time for justice. To delay further would be a great disservice both to them and also to the government which now recognizes its responsibilities and obligations. I would be pleased to answer any questions from the Subcommittee members.
Mr. SMITH. Did I misunderstand you? Are you prepared to testify, or was that the testimony we were going to hear?
Mr. MICHAELS. That was the testimony of the administration. We ask that my testimony be entered into the record, and we are here to answer your questions.
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Mr. SMITH. Very good. Thank you.
Let me direct, in fact, my first couple questions to you, and then I will direct them to the other administration witnesses as well. The first question I have, Dr. Michaels, is: How many individuals do you estimate will be eligible for compensation?
Mr. MICHAELS. We estimate that there are approximately 4,000 individuals or surviving family members of deceased individuals who would be eligible for compensation immediately, slightly under 1,000 in the beryllium disease category, another 3,000 who developed or died of cancer related to radiation exposure. In addition, there will be another 60 to 100 every year who develop new cases, so approximately 4,000 now.
Mr. SMITH. Okay. Thank you. In your prepared remarks on page 4, you said, ''The panel concluded that there is evidence that suggests that some current and former contractor workers at DOE nuclear weapons production facilities may be at increased risk . . .'' I was very much aware that there were many former employees. Tell me the situation with current workers and why they are continuing to be exposed to dangerous and toxic substances.
Mr. MICHAELS. Well, there are two issues. There are current workers who were formerly exposed and who have developed illness or may in the future, and Michael Jackson, who is in this room, is an example. He currently works at Rocky Flats. He has chronic beryllium disease.
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We are doing everything we can to ensure that current workers no longer have hazardous exposures. I am also the chief safety officer of the Department of Energy, so it is my responsibility to do that.
I wish I could guarantee you that no future hazardous exposures will occur. We work with the most dangerous chemicals known to man. We continue to use beryllium. We use it in a very controlled environment, but we use beryllium. We use plutonium and we dispose of plutonium. We have had some very serious accidents where we had large radiation intakes.
I think it is safe to say there will be very few cases of disease occurring from exposures now and into the future, but there are people who still work for us who have been exposed in the past, and they will continue, unfortunately, to get sick and we have to take care of them.
Mr. SMITH. That answers my question. I appreciate that. Let me go to a clarification that I would like to get from you. It is my understanding that DOE workers cannot receive workers' compensation. Is that a correct statement?
Mr. MICHAELS. No. Federal—are we talking about Federal employees or contractor employees?
Mr. SMITH. Let's see. DOE workers with illnesses caused by radiation, 99 percent, we understand, cannot receive workers' compensation because they can't meet the high damage level——
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Mr. MICHAELS. Well, DOE Federal employees are eligible under the Federal Employees Compensation Act to apply for workers' comp. The people this legislation is most concerned about are our contractor employees, not the Feds. But the contractor employees who work at our facilities, when they apply for workers' compensation, for many reasons, some of which Congressman Kanjorski talked about, they can't—they usually don't receive workers' compensation. One of the reasons is we fought them for many years, but workers' compensation systems really are set up for injury and they don't do very well with chronic diseases, especially related to radiation exposure.
They can theoretically receive it, but in virtually every case, they are not successful in receiving it, and that is why we need this program.
Mr. SMITH. Okay. A related question I have is for the Department of Labor, and for the record, let me say that from the Department of Labor we have Miss——
Ms. DUDEO. Dudeo.
Mr. SMITH. Ms. Dudeo, thank you. From HHS, Mr. Rosenstock, and from the Department of Justice, Mr. Jerome.
Ms. Dudeo, my question goes to the same subject that I asked Dr. Michaels about, and that is, what is actually provided to an individual who qualifies for Federal employee worker compensation when they are disabled? And if these workers were included in the program, upon their death would their families receive any type of death benefit.
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Ms. DUDEO. Certainly, Chairman Smith, under the Federal Employees Compensation Act, workers are compensated for injuries that result from their performance of duty. Now, if a worker is exposed to radiation, contracts cancer, and can demonstrate that he contracted that in the performance of duty, he would be entitled to wage loss replacement benefits if he can't work anymore and for medical benefits. All medical benefits would be paid related to the illness.
If the worker died as a result of that illness contracted in the performance of duty, then his survivors—his or her survivors would be entitled to benefits.
Mr. SMITH. Okay.
Ms. DUDEO. And that would be true also under the Senate amendment.
Mr. SMITH. Okay. Thank you. And a question for Mr. Jerome from the Department of Justice. There is some question as to which agency would be the best agency to oversee this program, this compensation program, the Department of Justice or the Department of Labor. There are arguments on both sides. Why should it not be the Department of Justice given its experience and given the somewhat straightforward approach this program would have?
Mr. JEROME. Well, I think the main reason is because the way the program is set up, as the administration proposes and in the Senate bill, is essentially a workers' compensation-based program where benefits are provided for lost wages and medical benefits. So that is a continuing relationship with the claimant. It is not just a one-time payment and a one-time determination, as it is, for example, under RECA. Here we are talking about providing workers over time with medical benefits that may change based on determinations of disability that may change over time, and the Justice Department is not really the one equipped to make determinations based on workers' compensation.
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Mr. SMITH. Okay. And so the Department of Labor is expecting to oversee the program?
Ms. DUDEO. Well, Chairman Smith, the Department of Labor has worked very closely in the last 18 months with advocates of this proposal to try to develop a program that would provide compensation to employees who really need it.
Mr. SMITH. Would the Department of Labor administer the program?
Ms. DUDEO. We have been working to develop a structure that would ensure that it could be fairly, effectively, and efficiently administered by the Department of Labor.
Mr. SMITH. Thank you. I don't have any other questions, and the gentlewoman from Texas is recognized for hers.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. I posed an earlier question, and I think we were both reading our witness lists incorrectly. I pose the question again, which is the absence of the Department of Defense and would inquire as to the reason for their absence, as I know that our committee extended an invitation. I yield to the gentleman for a response.
Mr. SMITH. The answer is that the Department of Defense was invited to have a witness present, and they declined. In my judgment—and I think you and I share the same sentiments here—I wish they had provided a witness. We have lots of questions to ask them, and I am disappointed that they are not here.
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Ms. JACKSON LEE. Mr. Chairman, because we have not collaborated on this inquiry or request that I am going to make, I will not include you, but I would ask for you to join me. I would like a letter to the Secretary of the Department of Defense asking for written testimony and comment on the testimony that has been presented here today. And if any of us would add any of our individual questions, meaning myself and you, to specifically be included before this record is closed of this hearing.
Mr. SMITH. If the gentlewoman would yield?
Ms. JACKSON LEE. I would be happy to yield.
Mr. SMITH. I will be happy to join you in signing that letter.
Ms. JACKSON LEE. I thank the gentleman very much, and let me add my consternation and complete shock that the Department of Defense is not here at this hearing. And I thank you for joining me, and we will proceed on that.
I thank the witnesses and the Secretary of Energy for his testimony, which I heard in absentia, carrying on two hearings at once, and I do appreciate the tolerance of being able to move from one room to the next. But let me move to the witnesses, and I thank you, Dr. Michaels. Why don't you share with me why you decided to adopt the workers' compensation model for this program? I think there were some comments being made by the members earlier, and I always like to make sure the record is full with your answer. So you probably had it in your statement, but I would like to hear it again to assure us that that might work and not be bogged down with administrative entanglement.
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Mr. MICHAELS. Thank you very much, Congresswoman Jackson Lee. The decision to take a workers' compensation model and specifically to model this after the program that covers all of us. Everybody sitting at this table and those of you behind the lectern are covered by the Federal Employee Compensation Act, the FECA program. If one of us were injured today, God forbid, we would be covered and we would be provided with medical payments for any of our medical costs and lost wages if we couldn't come to work tomorrow or the next day because of our injury or our illness.
The day I was sworn in, Secretary Richardson asked me to go to Oak Ridge and meet with the sick workers there, and my first meeting, a day later, some of the workers said to me: ''Why aren't we offered the same thing that you are offered?'' And it seemed like a very good question and a question of equity.
We have a good Federal employee compensation program that covers Federal employees. It is a generous program. It is certainly more generous than any State program. But it is not a wasteful program. It doesn't give away tremendous amounts of money. It is run efficiently without a lot of overhead. And within the administration we thought this is very fair. We say we are offering our Federal workers the same thing we are offering our contractor workers. It is an accident of history, frankly, that at Oak Ridge, at Los Alamos, at Hanford, at Paducah, at Porstmouth, we used private contractors to do work for the Federal Government. The work making nuclear weapons is Federal work.
Now, if someone is working in Washington State or Tennessee or Texas, they have very different rights. They have different benefits under the law, and in most States they have some difficulty getting workers' compensation. When we looked at this, we said we could offer our contractor workers who get sick the same benefits we offer our Federal workers and let's make sure we do it in a way that they won't have to go through great barriers to get there. That seemed the most equitable way to do it, and that is what we have done.
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Ms. JACKSON LEE. So this obviously was done to aid the elimination of bureaucracy.
Mr. MICHAELS. Exactly.
Ms. JACKSON LEE. Particularly as it may relate to individual State efforts that may delay the compensation.
Now, did I hear you say that this would also adhere to those workers who were at contractor-type facilities that were doing Government work? Did I hear you say that?
Mr. MICHAELS. That is correct and we specifically thought about several categories of workers beyond the obvious ones. The contractor—you know, our full-time workers at Oak Ridge are pretty obviously covered, but we did—we knew about and we specifically included workers at the sorts of facilities Congressman Lampson talked about today in Texas City, which were private contractors at facilities that were privately owned but that did work with uranium and other radiation-related materials for the Federal Government in the early days especially of the atomic weapons program. And they are included in our proposal and all of our cost estimates.
In addition, we recognized the needs expressed by Congresswoman Kaptur that we have vendors who made materials out of beryllium, and we have some responsibility toward them as well, and we included them as well.
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Ms. JACKSON LEE. Thank you very much.
Let me understand that the Department of Justice, in either its wisdom or acceding, had no problem with not functioning as the conduit for this program. Is that my understanding? I heard you say it, but I just want to understand it. You are here to say that DOL can handle this and there will be no agency fight about this issue?
Mr. JEROME. That is correct.
Mr. MICHAELS. The entire administration strongly feels this way. This is not coming just from any one agency but from the White House and all agencies.
Ms. JACKSON LEE. This is not an indictment of the Department of Justice. They are conceding the point and we appreciate it.
Mr. MICHAELS. That is right.
Ms. JACKSON LEE. The Department of Labor is accepting the challenge.
Ms. DUDEO. That is right.
Ms. JACKSON LEE. Let me also then raise the concern. We are trying to finish this. I am hoping and feel that the chairman has a great compassion for the problem that we are facing and we have an end to this legislative process. What is the response to anyone that would argue on the floor or argue when this might ultimately come that this is an open-ended entitlement program? Dr. Michaels, give me your construction of it.
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Mr. MICHAELS. We have worked very hard at the Department of Energy currently to control the exposures that occur. We no longer make nuclear weapons. We are dismantling them. We are closing down our facilities.
The big exposures have occurred in the past. We feel that they are under control. We have very small numbers of people, you know, who get significant radiation exposure now. The number of workers last year that exceeded our radiation standard for the year was five. So we think we have very few cases that are going to occur based on current exposure into the future, but we have a lot of people out there who have been exposed to radiation and beryllium that are getting sick now. That will stop soon, but we have to take care of them now.
Ms. JACKSON LEE. Finally, my last question. Do you believe that you can work effectively to get those exposed to the beryllium and cancer into the State workmen's compensation system, and how do we do that?
Mr. MICHAELS. Well, we have tried very hard, and I think you will hear from workers a lot of the problems they faced getting into State workers' compensation programs. We will work very hard and we have some success with people with other diseases, but for radiation and beryllium, diseases occur far many years after exposure. And they are unique to nuclear weapons. No one else deals with beryllium like the Government does.
Radiation is really—you know, it is the Energy Department. We should take responsibility ourselves for those and not put those people into State workers' comp.
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Ms. JACKSON LEE. I thank the chairman. It seems that the agencies are collaborating and cooperating. They are ready to go forward, and they are just waiting for us to give them the marching orders to get this problem at least addressed at this time.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Ms. Jackson Lee.
I have one additional question in a minute, but before I ask that question, I would like to recognize the ranking member of the full Judiciary Committee, Mr. Conyers, for any comments he might have.
Mr. CONYERS. That is very kind of you, Mr. Chairman. I am going to put my statement in the record. These are important hearings, and I tried desperately to get here earlier.
Mr. SMITH. Without objection, your complete statement will be made part of the record.
Mr. CONYERS. Thank you.
[The prepared statement of Mr. Conyers follows:]
PREPARED STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
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I strongly support legislative efforts to provide compensation to Department of Energy and contractor employees who become dreadfully sick due to exposure to beryllium, radiation and other toxic substances after working to create and maintain our Country's nuclear weapons complex. In many respects we should be ashamed of our Government's past efforts to protect the health of these American heroes of World War II and the Cold War.
Numerous Investigative Reports clearly demonstrate that the U.S. Government and its contractors knew that its workers were being exposed to potentially deadly levels of radiation and the Government did nothing about it. Here is one small example—according to a March 1960 memo from senior officials at the Atomic Energy Commission:
''There are possibly 300 people at Paducah who should be checked out [for Neptunium contamination], but [the contractor is] hesitant to proceed to intensive studies because of the union's use of this as an excuse for hazard pay.''
The memo also acknowledges that the masks designed to keep dust particles from being inhaled were ''the very worst size'' for purposes of protecting workers from inhaling Neptunium. To my amazement, the U.S. Government was aware of the problems at the time and affirmatively chose to remain silent.
Let me note that there are former workers in Adrian, Battle Creek, Detroit, Farmington, Flint and Saginaw, Michigan, including some who may very well reside in my district, that were contaminated by the Government's or contractor's weapons work and who are deserving of immediate assistance. It is time we act to provide compensation and medical benefits to these workers.
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Prior Administrations have failed to address this issue. I therefore commend Secretary Richardson for forcing the Government to accept responsibility for its past actions and tirelessly leading the Clinton Administration's efforts to enact assistance legislation this year.
I certainly respect the Subcommittee Chairman's right to hold a hearing to explore what type of legislation may be appropriate to help these workers. However, we all know that behind the curtain of this hearing, the Senate and House Conferees are considering the National Defense Authorization Act for Fiscal Year 2001 which provides compensation to many of the same people represented here today. I hope that this hearing does not provide an excuse for inaction.
Despite comprehensive hearings in the Senate, a bipartisan Senate bill, a bipartisan request by 104 House Members to accept the Senate plan, and the Judiciary Committee's representation at the Conference, the Republican Leadership has requested that the compensation program provisions be removed from the Defense Authorization Act to allow for further consideration. In my view, this is a serious mistake.
If this body does not act—and does not act soon—there is no doubt that thousands of families will face further hardship. And this is a mistake that will not be ignored.
Mr. CONYERS. Now, it is important that we are holding these hearings to explore the type of legislation that might be appropriate to help these workers. But behind the curtain of this hearing, the Senate and House conferees are considering the National Defense Authorization Act for Fiscal Year 2001, which provides compensation to many of the same people represented here today. And I am hoping that these hearings facilitate that as opposed to provide an excuse for inaction. That is to me very critical.
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We have had comprehensive hearings in the Senate, but to me, we have got to act now. There are those in this body that are trying to remove the compensation provision programs from the Defense Authorization Act. A wake-up call. I don't think we really want to move in that direction at all, and that is the heart of my sentiments here this morning, and I thank the chairman.
Mr. SMITH. Thank you, Mr. Conyers. It is always good to have you at our hearing.
My last question, Dr. Michaels, is this: Some proposals, including the Senate version of the defense authorization bill, contain language to compensate workers for chronic silicosis. Since it is not mentioned in your statement, what is the position of the administration in regard to these workers?
Mr. MICHAELS. The administration hasn't yet sent a formal position up on that question.
Mr. SMITH. On whether or not workers with silicosis should be compensated?
Mr. MICHAELS. Correct.
Mr. SMITH. Okay. That answers the question. I don't have any other questions. I thank you all for your testimony. It is very helpful.
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We will stand in recess for about 15 minutes and then go to our third panel.
[Recess.]
Mr. SMITH. The Subcommittee on Immigration and Claims will reconvene, and I will now introduce the third panel as they will please come forward and take their seats.
Lisa Ledwidge, Institute for Energy and Environmental Research; Steve Markowitz, Director, Center for the Biology of Natural Systems; Richard D. Miller, Policy Analyst, Paper, Allied-Industrial, Chemical and Energy Workers International Union; Ken Rosenman, M.D., Michigan State University; Dan Guttman, former Executive Director, President's Advisory Committee on Human Radiation Experiments; Lawrence Repsher, M.D.; and Donald Elisburg, former Assistant Secretary of Labor for Employment Standards.
I thank you all for being here, and before you start, let me say for the benefit of those who might be in the room and are curious about the schedule of the committee, I am hoping that we finish with this panel by noon for two reasons: one, so that individuals can take a lunch break, but also because we are expecting a vote shortly after noon; and then we will recess until 1 o'clock, and the fourth and last panel will be scheduled for 1 o'clock this afternoon.
So let's proceed with this panel, and, Ms. Ledwidge, we will begin with you.
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STATEMENT OF LISA LEDWIDGE, INSTITUTE FOR ENERGY AND ENVIRONMENTAL RESEARCH
Ms. LEDWIDGE. Thank you. My name is Lisa Ledwidge. I am with the Institute for Energy and Environmental Research. I am here representing Dr. Arjun Makhijani, who is the president of the institute and who is out of town.
Dr. Makhijani as well as his colleague, Bernd Franke, are among the authors of the studies that I will be discussing. They each have worked in the radiation and health field for approximately 20 years.
I prepared this testimony under Dr. Makhijani's guidance. In the event that you have questions that I am not able to answer, we will get answers to you as soon as possible after this hearing.
Dr. Makhijani and I appreciate this opportunity to present to the subcommittee some of the findings of the institute's radiation- and health-related work.
Recently, IEER completed a study for the newspaper USA Today. It assessed internal radiation doses of workers at three privately owned facilities that processed nuclear materials during the 1940's and 1950's. I have submitted our report to the committee for the record.
We have found that the working conditions at these three facilities were extremely poor, that many workers were severely overexposed to radioactive substances, even for then-prevailing standards, and that radiation protection standards of that time were routinely violated.
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The data and our calculations suggest that the highest exposed workers had a high probability of dying from cancer. Kidney damage would also be likely from their exposure among certain workers.
We also found that plant managers and Atomic Energy Commission officials were aware of these overexposures. What is more is that there is evidence that they deliberately misled the workers by providing them with false reassurances of safety. For instance, in a January 1948 memo to the vice president of Harshaw Chemical Company, which was one of the three plants that we assessed, the plant's medical manager wrote, ''. . . it is obvious that concentrations considerable above the preferred level are common in Area C''—Area C being a work area at the Harshaw plant—and also that ''. . . a distinct hazard does exist in Area C.''
In the same letter, he states that the medical office ''still believes'' that the ''logical method of approach'' is to continue telling the employees at Area C ''that all of our records indicated that no unusual hazard existed.''
In 1994, IEER performed a study of worker doses at the Fernald uranium processing plant near Cincinnati, Ohio. I also have submitted this for the committee's files. We found that, similar to the three facilities that we evaluated for the USA Today report, the working conditions at Fernald were also appalling, especially in the 1950's and 1960's. Further, the Fernald workers also were not informed of their overexposures by DOE nor by the contractor.
Specifically, we found that the internal dose measurements of the Fernald workers—in other words, their urine and lung counting data—had never been converted into radiation dose estimates. This means that the assurances given to the Fernald workers that they were, on the whole, well protected were based only on partial information, in other words, on external dose measurements only.
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So the assurances did not take into account the most important route of exposure of Fernald, which was inhalation of uranium dust. The Department of Energy's failure to include internal dose estimates in worker dose records, which was a practice that started at the very beginning of the nuclear era and continued until 1989, means that the workers' records—the records of the workers who were at risk most for internal exposure-systematically understate their actual exposures. The Department itself has criticized the quality of its worker dose records, both internal and external.
IEER also did an independent study of the radiation releases to the air from the Fernald plant. We found that the Department of Energy underestimated off-site uranium releases by nearly 100 percent, and these findings were corroborated by a subsequent independent assessment that was commissioned by the Centers for Disease Control.
IEER has found that when these issues are carefully and independently studied, the results indicate that worker exposure and environmental releases of radioactivity are larger than officially acknowledged. These and other findings over the past many years have led to the announcement finally made in April by the Energy Department, after decades of denial, that nuclear weapons production harmed workers.
I will conclude with three recommendations for your consideration.
First, health monitoring, treatment, and, where appropriate, compensation of the affected workers is an urgent priority because many of them are very sick and dying. Practical recognition of the role of Government and its contractors in their suffering is long overdue.
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Second, it is important to not force workers to prove to the last decimal point their exposure. The burden of proof should be on the Government and its contractors which failed to keep good records, failed to make sufficient measurements, and all too often assured workers of their safety when conditions were unsafe.
And, third, a process should be created for fairly and responsibly addressing the entire Cold War health legacy. There is a lot of information out there about the harm to human health and the environment from nuclear weapons production, and this is typical of all nuclear weapons States. The United States, to its credit, has been more forthcoming about this problem, but the problems do continue to fester and come to light still in haphazard ways, through congressional investigations, through media stories, efforts of public interest groups, as well as lawsuits.
Those who were affected should be centrally involved in creating this process. This would include workers who were, on the whole, the most exposed group of people. But it should be acknowledged that non-workers were also exposed, including the worker's family members, downwinders, those downstream, and other affected populations.
The process for deciding how community exposures can be fairly and responsible addressed without the anguish and expense of lawsuits like the one at Fernald should begin.
Thank you.
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[The prepared statement of Ms. Ledwidge follows:]
PREPARED STATEMENT OF LISA LEDWIDGE, INSTITUTE FOR ENERGY AND ENVIRONMENTAL RESEARCH
My name is Lisa Ledwidge. I am the Outreach Coordinator of the Institute for Energy and Environmental Research and editor of its quarterly newsletter Science for Democratic Action. IEER is a non-profit technical institute that provides the public and policy-makers with thoughtful, clear, and sound scientific and technical studies on a wide range of issues. Our aim is to bring scientific excellence to public policy issues to promote the democratization of science and a healthier environment.
My education includes Masters' degrees in environmental science and public affairs, and a Bachelor of Science in Biology. I am here representing Arjun Makhijani, the president of IEER, who is away. Dr. Makhijani, as well as his colleague Bernd Franke, are among the authors of the studies and articles that I will be discussing in this testimony, and have worked in the radiation and health field for about 20 years each.
I prepared this testimony under Dr. Makhijani's guidance. You may have questions that I am not able answer here. I that case, I or other IEER staff will provide answers to the subcommittee for the record as soon as possible after this hearing.
Dr. Makhijani and I appreciate this opportunity to present some of the findings of the work of the Institute for Energy and Environmental Research before you.
I will be discussing 3 IEER studies of nuclear worker exposures and off-site radiation releases. I will conclude with recommendations.
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USA TODAY STUDY
IEER recently completed a study for USA Today newspaper. We would like to request that our report of this study be made part of the record.
This study assessed internal radiation doses of workers at three nuclear materials processing facilities, two in New York and one in Ohio. The plants were selected, in part, because they all were privately owned and performed a variety of uranium processing operations during portions of the 1940s and 1950s. The study was a preliminary and partial evaluation of worker exposure. Its purpose was to perform screening-type calculations to ascertain whether the doses to workers in at least some locations or job categories were high enough to cause serious health concerns. We used government and contractor records of workers and workplace conditions. Further details about the study's methodology used can be found in the written report.
I will describe 3 of IEER's main findings:
1) We found that working conditions at these three plants were extremely poor. Workers were severely overexposed, even for then-prevailing standards. Based on our screening calculations, doses to many workers are likely to have exceeded the dose limit which was then about 15 rem per year. This chart [slide #1] shows the cumulative lung dose per worker as it relates to the number of months exposed (i.e. on the job), and also to different multiples of the then-prevailing Maximum Allowable Concentration (MAC) of uranium in the air. It shows that the more months a worker was exposed, the higher the cumulative lung dose, and the higher the level of uranium in the workplace air (i.e. the higher the number of multiples of MAC), the higher the dose.
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The data and our calculations suggest that the highest exposed workers had a high probability of dying from cancer as a result of the exposure. The estimated mean lung dose in the highest exposure category (8,400 rem) would be equivalent to an effective dose (or ''whole body'' dose) of approximately 1,000 rem. Using the International Council for Radiation Protection (ICRP) cancer risk factor of 0.04%, this corresponds to about a 40% risk of dying from cancer. This is a 200 percent increase in fatal cancer risk compared to unexposed persons.
Other types of health problems, including kidney damage, would also be likely among those workers exposed to the more soluble forms of uranium. We found that the government and the contractors seem to have completely ignored the air concentration limit established for protecting the kidney from uranium toxicity—we found no evidence that the contractors followed it, or that the government enforced it. Plant documents indicate that kidney damage among workers was in fact reported.
We have arrived at these conclusions even though our dose calculations are partial and do not cover the entire periods of plant operation and all types of doses. It also should be noted that the amount of material processed does not necessarily correspond to individual worker exposure level. In other words, the plant that processed the smallest amount of uranium did not necessarily have the lowest worker doses.
2) IEER's study also found evidence that plant authorities and the Atomic Energy Commission (AEC), which contracted with these private companies to process material for its nuclear weapons program, were aware that workers at these plants were being overexposed over prolonged periods of time. Furthermore, there is no indication that the authorities shared this overexposure information with the plant workers. In fact, there are documents that indicate that plant authorities and AEC personnel lied to the workers about the levels of radiation to which they were being exposed. For example, in a January 1948 letter to the Vice President of Harshaw Chemical Co., Harshaw's Medical Manager wrote: ''...it is obvious that concentrations considerably above the preferred level are common in Area C.'' (Area C is an area in the Harshaw plant.) He also wrote, ''. . . a distinct hazard does exist in Area C.'' In the same letter he states that the Medical office ''still believes'' that the ''logical method of approach'' is to continue telling the employees at Area C ''that all of our records indicated that no unusual hazard existed . . .''
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3) One of the most surprising outcomes of our findings is that they call into question whether the doses to these workers were less than their Soviet counterparts. Until now, we have assumed, based on available evidence, that worker exposures were far higher in the Soviet Union than in the United States. But the partial estimates that we have made in this study are so high that this assumption may need to be revisited for many of the workers at these nuclear weapons plants. A comparative evaluation of US and Soviet nuclear materials processing plants of that era should be done.
FERNALD WORKER STUDY
In 1994, IEER performed a study of worker doses at the Feed Materials Production Center, located in Fernald, Ohio, near Cincinnati. The Fernald plant is similar to the three facilities that IEER analyzed for USA Today in that uranium processing took place there. This study was completed as part of expert testimony in a class action lawsuit filed by Fernald workers against National Lead of Ohio, the Department of Energy's contractor there until 1985. The aim of the study was to examine whether then-prevailing dose limits had been violated. This study was, to our knowledge, the first independent assessment of internal radiation doses based on raw data from official DOE and contractor records of the workers. We are submitting this study and request that it be part of the record.
I'll describe 2 findings of IEER's Fernald worker study:
1) Similar to the 3 aforementioned facilities, IEER found that the working conditions at the Fernald uranium processing plant were appalling, especially in the 1950s and early 1960s. They were typified by high air concentrations of uranium in many areas of the plant. They often exceeded the Maximum Allowable Concentration (MAC) by tens, hundreds, even thousands of times. One 1960 plant document lists the air dust concentration in the breathing zone of a worker cleaning under a certain piece of equipment as 97,000 times the MAC. I am submitting this document for the record.
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This chart [slide #2] shows the proportion of workers at the Fernald plant who were exposed to more than the allowable limits due to lung burdens of uranium. It summarizes IEER's conclusions: that doses due to uranium inhaled by workers between 1952 and 1962 were above then-allowable limits (15 rem per year to the lung) in more than half the cases in every year but one. In 1955, the worst year for worker exposure, IEER estimated that almost 90 percent of workers were exposed to more than the allowable lung dose limit. As you can see, significant proportions of workers continued to suffer overexposure after 1962.
2) Similar to our analysis of worker doses at the 3 private uranium processing facilities, Fernald workers were not told about their internal radiation overexposures by AEC and its successor agencies nor by contractor officials until at least 1989. One of the most startling findings in the course of this study was that the urine and lung counting data (in other words, internal dose measurements) of the Fernald workers had never been converted into radiation dose estimates. Worker radiation dose records—that is, the records actually given to workers when they ask for them—contained only external radiation doses, such as those recorded on film badges worn by workers. Therefore, we found that the assurances given to workers by that they were, on the whole, well protected, were based on very partial information. In the case of Fernald, these assurances did not even take account of the most important route of exposure: inhalation of contaminated dust.
Just after the presentation of IEER's findings in court in 1994, the Department of Energy settled the lawsuit on behalf of National Lead of Ohio, providing workers with lifetime medical monitoring and other benefits.
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Our suspicion that the situation at Fernald may not have been an exception in this regard was confirmed when, three years later, the Department of Energy finally admitted that from the beginning of the nuclear era until 1989, radiation doses from radioactive materials inhaled or ingested by workers were not calculated or included in worker dose records, even though the data had been collected and was available to the DOE and its contractors.
While there was no regulatory requirement until 1989 for DOE to actually calculate worker doses, the lack of internal radiation dose estimates in worker dose records means that the records of workers who were at risk of internal exposures are incomplete, misleading, and inaccurate. The overall result is that large numbers of workers have received information about their radiation exposures systematically understating their actual exposures.
The state of the external dose records is also troubling. For instance, in a 2 1/2 page document titled ''Deficiencies in Reporting of Worker Exposure to Radiation and Toxic Material,'' the DOE admitted that:
''The type, use, and positioning of dosimetry was poor in some cases, resulting in inaccurate determination of radiation exposures.''
''In some cases, occupational radiation exposure records are missing years of radiological dose data.''
''Radiation exposure data stored on electronic media did not accurately reflect the data on the original record.''
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''Employee files do not contain the required information related to occupational radiation exposure and radiological working conditions.''
''Internal and external occupational exposure records were found to be incomplete.''
''Because of inadequate administrative procedures and practices employees that had lost their dosimetry badges were able to enter radiation areas before obtaining replacement dosimetry.''
According to the document, this information was obtained from Technical Safety Appraisals conducted during the period 1989 to 1992. It was submitted by the Department of Energy at a hearing of the House Subcommittee on Oversight and Investigations on March 17, 1994.
This photo [slide #3] further illustrates some possible flaws in external worker dose data. This worker is stamping a label on a uranium ingot, a job that was done routinely throughout the history of the Fernald plant. The external dose to the worker's gonads, and hence the effective whole body dose equivalent that might be calculated from that, are likely to be far in excess of what was recorded on the film badge. First, the film badge is not facing the radiation source, which allows some of the radiation to escape detection. Second, the distance between the radiation source and his gonads is shorter than that between the source and his film badge. Because radiation deposits its energy relative to distance, the dose to this worker's gonads is likely much greater than what his film badge would indicate.
FERNALD OFF-SITE RELEASE STUDY
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The Fernald worker study was actually the second Fernald study performed by IEER. The first one, completed in the late 1980's, was done as part of expert work in a lawsuit filed by neighbors of the Fernald plant. This study was the first ever independent assessment of radiation releases form a nuclear weapons plant. IEER focused its work on estimating uranium losses because uranium was the main material processed there and because data on other materials released to the air were scarce or non-existent.
IEER found that radioactive releases of uranium from Fernald were at least double the official calculations by the Department of Energy and its contractors. After the study was released, the Centers for Disease Control and Prevention commissioned an independent study of the radiation doses to the public arising from Fernald's operation. That study, done by John Till, corroborated IEER's findings in regard to uranium releases. As shown in this table [slide #4], the official sources (NLO and Westinghouse) had greatly and systematically underestimated releases.
These underestimates were largely due to scientific flaws in the estimates and in the way in which the records were kept and the measurements were made (or not made). For example, for a number of years, many entries showed zero releases when no measurements had actually been made. As another example, the plant made an assumption that scrubbers, designed to remove uranium from highly acidic exhaust, always operated within manufacturer specified efficiency, despite internal plant data to the contrary. The formula used by the contractor to calculate releases from the scrubber was wrong under conditions of variable efficiency and resulted in high release estimates when actual releases were low and low release estimates when actual releases were high. Moreover, this method was known to plant officials to be wrong, since it was described in a 1971 plant document as ''inherently deceptive.''
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The DOE, which defended the lawsuit on behalf of the contractor, National Lead of Ohio, settled the suit for $78 million in mid-1989, but admitted no wrong-doing or even any technical problems in its own or its contractors' work. (Under the terms of its contract with the government, National Lead of Ohio was immune from all liability, including that arising from negligence or violations of regulations.)
These two Fernald studies are summarized in IEER's newsletter from October 1996, which I am submitting for the record. Information on the serious flaws in Department of Energy worker data is described in the November 1997 issue of Science for Democratic Action, which I am also submitting for the committee's record.
In conclusion, IEER has found that when worker exposures and off-site releases are carefully and independently studied, the results indicate that worker overexposure and environmental releases of radioactivity are larger than officially acknowledged. These, as well as other, similar findings over the past several years have been important pieces leading up to the official announcement that was made in April by Energy Secretary Bill Richardson—after decades of denial by the US government—that the production of nuclear weapons has harmed workers.
I will conclude with 3 recommendations for your consideration:
1. First, health monitoring, treatment, and where appropriate compensation of the affected workers, is an urgent priority because many are very sick and dying. Practical recognition of the role of the government and its contractors in their suffering is long overdue.
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2. It is important to not force workers to prove their exposure to the last decimal point. The burden of proof should be on the government and its contractors, which failed to keep good records, failed to make sufficient measurements, and all too often assured workers of their safety when conditions were unsafe. Where there are large uncertainties due to lack of sound data, the benefit of the doubt should be given to the sick workers.
There also is limited understanding about the health effects of exposure to chemicals used in nuclear weapons production. Examples include fluorine gas, carbon tetrachloride, tricloroethylene (TCE), hydrofluoric acid, nitric acid, chlorine trifluoride, and beryllium. According to the Agency for Toxic Substances and Diseases Registry, high exposures to these substances, which might be expected for at least some workers, can cause lung, liver, kidney and central nervous system damage, cancer, impaired heart function, impaired fetal development, and in some cases death. Exposure to toxic substances could also aggravate the health effects of radiation exposure (and vice versa) yet there is little or no research on the possible synergisms.
3. A process should be created for fairly and responsibly addressing the Cold War health legacy. There is a lot of information out there about the harm to human health and the environment from nuclear weapons production, and this is typical of all nuclear weapons states. To its credit, the United States so far has been more forthcoming about this problem, but problems continue to fester and many are still coming to light in a haphazard fashion, through efforts of public interest groups, media stories, congressional investigations, and lawsuits. Workers should be centrally involved in creating this process, because they were, on the whole, the most exposed group of people. But it should be acknowledged that non-workers were also exposed, including workers' family members, downwinders, those downstream, and other neighbors. The process for deciding how community exposures can be fairly and responsibly addressed, without the anguish and expense of lawsuits like the one at Fernald, should begin.
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Attachments:
[NOTE: Attachments are not reprinted here but are on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
Slide #1: Estimated Cumulative Lung Doses at Harshaw for Different Multiples of Maximum Allowable Air Concentration and Differing Times of Exposure
Slide #2: Percent of workers with an Inferred Annual, Average Uranium Lung Burden Corresponding to a Lung Dose of 15 Rem or More (Fernald) (Can be found on-line at http://www.ieer.org/sdafiles/vol—5/5–3/fernwork.html#chart)
Slide #3: Worker Sitting on Depleted Uranium Metal Ingot (Photograph by Robert Del Tredici)
Slide #4: Summary of Estimates of Uranium Releases (Fernald) (Can be found on-line at http://www.ieer.org/sdafiles/vol—5/5–3/fern–res.html#table)
Arjun Makhijani, Bernd Franke and Hisham Zerriffi, Preliminary Partial Dose Estimates from the Processing of Nuclear Materials at Three Plants during the 1940s and 1950s. Prepared by the Institute for Energy and Environmental Research under contract to USA TODAY, 6 September 2000. (Can be found on-line at http://www.usatoday.com/news/poison/uranium.htm)
B. Franke and K.R. Gurney, Estimates of Lung Burdens for Workers at the Feed Materials Production Center, Fernald, Ohio, (Takoma Park, Maryland: IEER), July 1994.
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Memo from F.J. Klein to R.H. Starkey, ''Subject: Cleaning Under Burnout Oxide Conveyors—Plant 5,'' National Lead Company of Ohio, December 7, 1960.
Science for Democratic Action, volume 5 number 3, October 1996 (Takoma Park, Maryland: IEER) (Can be found on-line at http://www.ieer.org/sdafiles/vol—5/v5n3—1.html)
Science for Democratic Action, volume 6 number 2, November 1997 (Takoma Park, Maryland: IEER) (Can be found on-line at http://www.ieer.org/sdafiles/vol—6/v6n2—1.html)
Mr. SMITH. Thank you, Ms. Ledwidge.
Dr. Markowitz?
STATEMENT OF STEVEN B. MARKOWITZ, DIRECTOR, CENTER FOR THE BIOLOGY OF NATURAL SYSTEMS, QUEENS COLLEGE, FLUSHING, NY
Mr. MARKOWITZ. Thank you, Mr. Chairman. My name is Steven Markowitz. I am a physician specializing in occupational medicine, that is, identifying and reducing workplace exposures that impair human health. I currently serve as professor and director of the Center for Biology and Natural Systems at the City University of New York and also adjunct professor at the Mount Sinai School of Medicine in New York. I have a longer written testimony that I would like to submit, but I will summarize it now.
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I direct the Worker Health Protection Program at the three Department of Energy gaseous diffusion plants: Paducah, Portsmouth, and at Oak Ridge K–25. This is a medical screening and education program created by the United States Congress and supported through the Department of Energy. It is implemented as a collaboration between the City University of New York and PACE, the Paper, Allied-Chemical and Energy Workers Union. We have the full cooperation of the employers at the facilities.
The goal of the Worker Health Protection Program is simple. It is to detect at an early stage selected work-related illnesses among DOE workers. For the first time in the 50 years of the existence of the gaseous diffusion plants, workers at these facilities have the opportunity to obtain an independent, objective assessment of their health in relation to their prior workplace exposures.
We use local clinical facilities. We set the common national medical protocol for these programs. This is not a research activity. It is a clinical service with direct benefit to the participants, the former and now the current workers at the three gaseous diffusion plants.
In addition, we have a 2-hour workshop in which we inform the former and current workers about past exposures, for the first time really telling them the truth as we know it. These workshops are run by current and former workers, one of whom is here today, Mr. Sam Ray.
We have had an outstanding response to our program. We began screening 17 months ago, and we have received over 3,000 telephone calls to our national toll-free number. These are from people who want to participate. These are former workers, mostly, and increasingly, current workers who want to participate in our screening program.
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We have screened 1,800 mostly former gaseous diffusion workers to date, and I would like to share some of the results from our program with you. But let me first say that we have had an outstanding response. We have not advertised our program at all. We simply let our national toll-free number be known, and through word of mouth, we have had several thousand phone calls, and now several thousand people go through our screening program. And the reason is quite simple: Our Worker Health Protection Program answers the question that workers at DOE plants have, which is: What exposures have I had in the past, and how have they affected my health?
For the first 1,317 workers that we have examined, let me give you our results: 10 percent have scarring in the chest, which is consistent with an occupational history of exposure to asbestos; 20 percent have chronic bronchitis or emphysema, to which their prior exposure to hydrofluoric acid and other powerful lung irritants at the gaseous diffusion plants played a significant role; about 3 percent have confirmed beryllium sensitivity, and an additional multiple of that have an initial positive beryllium test and we will have to see what that means in the future; and, finally, we test for hearing loss, which is near universal among the workers because of the high levels of noise at the plant.
Now, this year we have expanded our current program thanks to support from Congress. We have included current workers, and we are doing something really new, which is the introduction of the use of CAT scan, CT scanning for the early detection of lung cancer.
The study showing the use of the CT scan for detection of lung cancer was published just a year ago, and now we will introduce it in Paducah and Portsmouth and Oak Ridge K–25. Over the next year, we expect to screen 2,000 workers for lung cancer, and we expect to find very small malignant nodules, and we will be able to cure these people through surgical resection of those nodules.
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Having screened 1,800 gaseous diffusion plant workers and knowing also the full extent of the studies that have been done, we can now say with confidence that there are sizable numbers of former DOE workers—and, to some extent, current workers—who are still alive, who have had significant occupational exposures in their lifetimes, who now have occupational illnesses, and are not receiving compensation for those illnesses.
We asked our participants about their compensation experience, and we found reported to us the many barriers about why DOE workers are not getting compensated. Let me list a few of these for you.
First, their physicians failed to recognize their problems as being occupational. In fact, their physicians, usually their primary care providers, don't even ask them about their history of occupational exposures and, therefore, couldn't even make the link with illnesses that they have.
There is a lack of availability of objective, independent occupational medicine physicians in places like Paducah, Portsmouth, and Oak Ridge. Chronic occupational illnesses usually occur years and years after onset of exposure to chemicals and radiation, and, therefore, the link is never made.
My time is——
Mr. SMITH. It is getting close here. If you could conclude, please.
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Mr. MARKOWITZ. Okay. DOE workers do not know about their rights to workers' compensation. They can't find attorneys who will represent them because the cases are unlikely to succeed. And, finally, of course, the insurance companies deny them their compensation.
So we have found that no part of the compensation system works for former DOE workers. It is not a question of identifying the weakest link and addressing that link. It is really a question of designing a new system that will address their legitimate compensation needs.
[The prepared statement of Dr. Markowitz follows:]
PREPARED STATEMENT OF STEVEN B. MARKOWITZ, DIRECTOR, CENTER FOR THE BIOLOGY OF NATURAL SYSTEMS, QUEENS COLLEGE, FLUSHING, NY
My name is Steven Markowitz, MD. I am a physician specializing in occupational medicine, that is, identifying and reducing workplace exposures that impair or threaten human health. After receiving my undergraduate degree from Yale University and my medical degree from Columbia University, I completed five years of training in internal medicine and occupational medicine in New York City. I had the excellent fortune of training under the late Dr. Irving Selikoff, the noted asbestos researcher at Mount Sinai School of Medicine. I currently serve as Professor and Director of the Center for the Biology of Natural Systems of Queens College and Adjunct Professor of Mount Sinai School of Medicine, both in New York City.
My research interests center on the surveillance and identification of occupational and environmental disease. I co-authored a book entitled Costs of Occupational Injuries and Illnesses that was published this month by the University of Michigan press. It was based on a study commissioned by the National Institute for Occupational Safety and Health concerning the extent and costs of occupational disease and injury in the United States.
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I thank you for the opportunity to speak before this committee today. I wish briefly to highlight two central problems in occupational health at the gaseous diffusion plants of the Department of Energy (DOE), at Oak Ridge, Tennessee; Portsmouth, Ohio; and Paducah, Kentucky. Furthermore, I will discuss our response to those problems through the initiation of the Worker Health Protection Program. I will start first with our response and then briefly elucidate the core problems.
A. THE WORKER HEALTH PROTECTION PROGRAM
In 1996, we initiated the Worker Health Protection Program (WHPP) at the three Department of Energy gaseous diffusion plants. It is a medical screening and education program established as collaboration between Queens College of the City University of New York and the Paper Allied-Industrial Chemical and Energy (PACE) International Union with the full cooperation of the employers at the plants. This program developed as a result of Congressional passage of Section 3162 of the National Reauthorization Defense Act of 1993. Section 3162 required that the Department of Energy to conduct a medical surveillance program for former DOE workers who a) were at significant risk for work-related illness as a result of prior occupational exposures at DOE facilities, and b) would benefit from early medical intervention to alter the course of those work-related illnesses. We received a contract from the DOE through a competitive, merit-based review process and conducted a careful needs assessment and planning process. We then instituted the Worker Health Protection Program at the three gaseous diffusion plants in Paducah, Portsmouth, and Oak Ridge as well as the Idaho National Engineering and Environmental Laboratory.
The goal of the Worker Health Protection Program is to detect selected work-related illnesses at an early stage when medical intervention can be helpful. At a broader level, the goal of our program is to help former DOE workers understand whether they have had exposures in the past that might threaten their health and to ascertain whether, in fact, an injury has resulted from these exposures. For the first time, former workers of the DOE gaseous diffusion plants have the opportunity to obtain an independent, objective assessment of their health in relation to their prior workplace exposures by a physician who is expert in occupational medicine. We screen for chronic lung diseases, such as asbestosis and emphysema, hearing loss, and kidney and liver disease. We have not heretofore emphasized cancer screening, because the screening tests available to date for the principal cancers of concern have been inadequate, and because the gaseous diffusion plants were historically been considered sites of high radiation exposure. We implement the program based on a common medical protocol through local clinical facilities in Oak Ridge, Portsmouth and Paducah. This is not a research activity, but a clinical service program, intended to be of direct and immediate benefit to participants.
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In addition, we provide a two hour educational workshop during which former DOE workers have the opportunity to learn about past exposures and their possible impact on present health. These workshops are run by current and former DOE workers, because they have credibility and expertise. We also believe that a participatory model of education is in and of itself health-promoting. The direct and full involvement of current and former DOE workers in designing and conducting our program has been a key to its success.
B. RESULTS OF THE WORKER HEALTH PROTECTION PROGRAM
The Worker Health Protection Program has received an outstanding response from former gaseous diffusion plant workers. Since beginning the screening program only 17 months ago, we have received nearly 3,000 telephone calls from former and current workers to our national toll-free number to request participation in the Worker Health Protection Program. We have medically evaluated approximately 1,800 former gaseous diffusion plant workers during the past 17 months. All of these participants volunteered for the screening program. We have not publicized our program, except for a single initial press conference in each community. We have not conducted any significant outreach, nor have we pro-actively invited individual workers for screening. Yet, thousands of gaseous diffusion plant workers have called us to ask to participate.
Why have we received such a positive response? Without question, the newspaper coverage of the contamination of the Portsmouth and Paducah gaseous diffusion facilities by transuranic materials has helped. More fundamentally, though, the chord that we have struck relates to our mission. Workers in the Department of Energy complex want an answer to a simple set of questions: Have my years of work for the Department of Energy affected my health? Has my exposure to radiation and chemicals at the gaseous diffusion plant, which I performed as a service to my country, caused any illness or injury that I might have? If so, what can I do about this illness or injury? This is a simple yet powerful set of questions, and they deserve a truthful and appropriate response.
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Our Worker Health Protection Program is beginning to provide a response to these questions. We have results available for report on 1,317 former gaseous diffusion workers in total at the three sites, Paducah, Portsmouth, and Oak Ridge. Approximately 10% of participants show scarring of the chest that is consistent with significant occupational exposure to asbestos. Approximately 20% of former gaseous diffusion plant workers have chronic bronchitis and/or emphysema, to which their exposure to hydrofluoric acid and other powerful lung irritants in the gaseous diffusion process played a significant contributing role. Fifteen of the first 544 former Oak Ridge K–25 workers, or 3%, have confirmed beryllium sensitivity based on repeat lymphocyte proliferation testing. Fifty of these 544 workers (9.2%) had an initial positive beryllium lymphocyte proliferation test. There is a very high rate of hearing loss, mostly moderate or severe, which is hardly surprising, given high occupational noise levels at the gaseous diffusion plants. We have seen minimal rates of clinically significant kidney and liver disease among the workers tested to date, and most appears to be readily explained by the presence of other disease such as hypertension or diabetes.
In addition, the educational arm of our program has also been enormously successful. Our current and former worker educational coordinators have conducted more than 80 two hour workshops in 17 months, through which over 1,000 former workers actively participated.
It is essential to understand that the Worker Health Protection Program is not a comprehensive screening program for all potentially work-related conditions of former DOE workers. Section 3162, which established the Former Worker Medical Surveillance Program, directed the Department of Energy to establish a medical screening program for potentially work-related health conditions for which early diagnosis and intervention would be beneficial. Despite medical advances in screening, however, many health problems are not amenable to screening on a population basis and do not necessarily lead to medically beneficial interventions. Neurologic symptoms, for example, are usually complex and require a careful in-depth diagnostic work-up to provide insight into the nature of the illness. Screening techniques for selected cancers, such as leukemia or lymphoma, have not yet been developed. Thus, for reasons of program design, limited budget, and current medical science, the Worker Health Protection Program does not address all health conditions about which former gaseous diffusion plant workers may be concerned.
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There is an important caveat in interpreting our current program results. The former gaseous diffusion plant worker population is large, numbering in the tens of thousands. The first screening program participants are a self-selected group and may not reflect the broader health or exposure experience of the former DOE workforce. They may be more or less ill than the former worker population as a whole. We expect to develop an improved sense of the health of this larger population as we screen additional workers in the coming years.
C. THE ENHANCED WORKER HEALTH PROTECTION PROGRAM
In the current program year, the Worker Health Protection Program has received increased funding from Congress: a) to accelerate our medical testing and education program; b) to include current workers in the program; and c) to begin screening for the early detection of lung cancer through the use of low-dose computerized tomography (CT) scanning. We are highly appreciative of Congress and of the Department of Energy for giving us an enhanced capacity to meet the needs of DOE workers. Since we estimate that there are at least 15,000 former or current workers who could benefit from our program, we clearly have much work ahead of us.
Lung cancer is the most important specific cancer risk for workers at the gaseous diffusion plants of the Department of Energy. Occupational exposure to lung carcinogens at the gaseous diffusion plants, including asbestos, uranium, plutonium and beryllium produce excess risk of lung cancer. If early detection of lung cancer is achievable as a result of medical screening, its implementation should be accorded the highest priority among gaseous diffusion plant workers, especially for those at the highest risk of lung cancer. I am pleased to report that in October 2000 we will begin to offer such screening in the Worker Health Protection Program.
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Our lung cancer program is based principally on the results of the Early Lung Cancer Action Project, undertaken by Henschke and colleagues at Cornell University and New York University Medical Schools, and published in Lancet in July, 1999. Their results have been confirmed by other similar studies that were reported at the Second International Conference on Screening for Lung Cancer at Cornell University Medical School in New York in February, 2000. Seven studies have now been undertaken in 4 different countries and have screened over 13,000 people for lung cancer. Approximately 75% of the cancers identified through screening were early (Stage I) cancers and, therefore, amenable to surgery and presumably cure.
With the support of Congress, we will offer such an early lung cancer detection program to screening participants of the Worker Health Protection Program at the gaseous diffusion plants of the Department of Energy. We have leased a state of the art CT scanner, which is being installed on a large mobile unit. The unit will be ready next week, and we will begin screening in Paducah in mid-October, 2000. We will transport it on a regular basis between Portsmouth, Oak Ridge, and Paducah. This component of our program will be offered to individuals, both current and former workers, who meet pre-determined criteria for lung cancer risk, as constituted by age, duration and likelihood of exposure to occupational lung carcinogens, and history of cigarette smoking. This program component is being integrated into the existing protocol of the Worker Health Protection Program and, thereby, achieve considerable efficiency and costs savings, especially in participant recruitment, baseline testing, follow-up, and overall program administration. We expect to screen at least 2,000 former and current gaseous diffusion plant workers in the next 12 months.
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This medical advance is beginning to be offered in metropolitan areas of the United States such as New York, San Francisco, and Chicago. We are proud that we will now make Paducah, Portsmouth and Oak Ridge among the first communities in the nation to receive the potentially enormous benefits of this life-saving screening technique. The United States Congress and the Department of Energy will accrue enormous gratitude from the current and former gaseous diffusion plant workers as a result of literally saving the lives of a significant number of such workers through its support of lung cancer screening and the Worker Health Protection Program.
D. WHY DOE WORKERS NEED COMPENSATION FOR OCCUPATIONAL DISEASES
Having screened 1,800 gaseous diffusion workers in the Worker Health Protection Program, we can now say with confidence that there are sizable numbers of former DOE workers who have had significant occupational exposures in their lifetime, who have occupational illnesses, and who are not receiving compensation for these illnesses. The barriers to compensation have been reported to us by participants in our screening program. These barriers are many. They include:
1. Failure of the personal physician to recognize the illness as occupational in origin;
2. Failure of the physician to ask and understand the occupational exposures of the patients;
3. Lack of availability of objective, expert occupational medicine physicians to diagnose occupational illnesses;
4. Chronic occupational Illnesses may begin years after cessation of work for DOE;
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5. Lack of knowledge by DOE workers that their condition might be covered by workers' compensation;
6. Lack of knowledge by DOE workers that workers' compensation might pay for medical bills;
7. Disinterest of attorneys in pursuing cases of workers' compensation for occupational illnesses;
8. Refusal by insurance carriers to recognize occupational illnesses.
In summary, no part of the current workers' compensation system works for former workers at DOE's gaseous diffusion plants. It is not the case that the weakest link deters overall progress in remedying the problem of lack of compensation for occupational illness among DOE workers. There are only weak links in this system, and a piecemeal approach to addressing the needs of DOE workers for compensation will not work.
Let me expand on two of the more difficult issues facing workers as they ask whether their illnesses might be occupational, the first step in determining the need for compensation.
The first core problem in occupational health at the gaseous diffusion plants of the Department of Energy problem is the lack of access of former and current DOE workers to objective, expert, independent care in occupational medicine. When any of us develop a heart arrhythmia, a neurologic syndrome, or cancer, we fully expect to see a physician who will give us his or her candid, specific, expert opinion that is the distillation of many years of specialized training and clinical experience. We further expect that this opinion will be unencumbered by any conflict of interest of the physician, such as a financial interest in a particular medical tool or laboratory, which would influence the opinion of that physician, sometimes to our detriment. These conditions frame a basic standard of care that we have come to expect in our country.
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These conditions, however, do not currently exist, and indeed have never existed, for the workers at the three gaseous diffusion plants of the Department of Energy, or probably throughout much of the DOE complex. Such workers have never as a rule had an opportunity for this simple encounter: to have a potentially work-related illness evaluated by a physician who has the knowledge to determine whether the illness is work-related and is free to make that determination without concern about ramifications to the employer. Instead, workers in Paducah, Portsmouth, and Oak Ridge raise their health concerns with their primary care providers who do not ask about or know about occupational hazards. Or their health concerns arise with physicians who are employed by or under the influence of DOE contractors and thereby have dual loyalties. It is little wonder, therefore, that workers, who are very proud of the service that they have performed for the past 5 decades, nonetheless feel that they have been treated unfairly with reference to occupational illness.
Two immediate consequences result from this failure to provide a basic standard of occupational health care. First, occupational illness is not properly diagnosed and treated. This harms the individual. It also harms co-workers and future workers, because it prevents the return of vital information to the workplace, information that could be used to prevent other workers from becoming ill.
The second consequence is that workers and their families will form their own opinions about whether the workplace is the source of their ills. In the absence of external expert knowledge, workers will use their own expertise to decide about the work-relatedness of their problems. Often they will be correct. Indeed, the history of occupational medicine is replete with examples of occupational diseases first identified by workers and later confirmed by physicians. Sometimes, however, workers will not be correct in attributing their symptoms to the workplace. The result of this error is that the DOE facility may be falsely targeted as the source of a spectrum of diverse and quite unrelated illnesses. We cannot blame people who make this judgment: they do so in a vacuum. The underlying problem is the structural lack of a system that can authoritatively and credibly confirm or refute workers' suspicions about workplace exposures as the source of their ill health.
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Let me turn to a second core problem in occupational health at the gaseous diffusion plants: the lack of proper, accurate information about exposures that have occurred at the gaseous diffusion plants over the past four or five decades. Ultimately, in occupational medicine, we are called upon to make a judgment about whether a health problem of a particular individual is work-related. The equation that rules this decision is quite simple. On the one side is information about the exposure or workplace factor. On the other side of the equation is the delineation of the illness. The latter is usually straightforward given the armamentarium of medical tools that we now have to conduct medical investigations.
The weak link in this equation is often the level and quality of knowledge about the workplace exposures. Chronic occupational illness today results from exposures that occurred in the past. We are therefore subject to whatever actions that people who were responsible for the workplace did or did not take to measure those exposures. In 1996–1997, as part of the Worker Health Protection Program, we conducted a one year needs assessment of workplace exposures and the rationale for medical screening at the gaseous diffusion plants. We concluded, as have others, that workplace exposures have been poorly documented in general at the gaseous diffusion plants, either through failure to measure properly, or through failure to document measurements in a manner that can be properly interpreted. This applies to radiation measurements, but even more so to assessment of hazardous chemical agents such as asbestos, silica, and beryllium.
One important consequence of this failure is that it makes the decision-making about causality between workplace exposures and health problems that occur many years later difficult and complex. When a gaseous diffusion plant worker, or more likely, retiree, develops lung cancer, the likelihood that his prior occupational exposures to asbestos contributed to the development of the lung cancer depends very much on the intensity, duration, and timing of his exposures to asbestos. If information on this exposure does not exist, the amount of judgment that must be used to decide on work-relatedness of that lung cancer increases. And, so too does room for disagreement in formulating that judgment.
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A cynical means to ''eliminate'' occupational disease now becomes apparent. First, on a prospective basis, fail to document exposures in a thorough, reliable, and interpretable manner. Second, overlook communicating meaningful information about those exposures to workers. Finally, decades later, when chronic occupational diseases of long latency appear, claim retrospectively that insufficient data on exposure preclude proper assessment of the causal role of such exposures in the development of the extant illnesses. Note that the premature deaths and diseases suffered by workers do not disappear under such a scheme. But the occupational attribution vanishes.
Let me provide an example relevant to the ''discovery'' of plutonium, neptunium, and other transuranics at the Paducah gaseous diffusion plant. The same lesson applies to the Oak Ridge and Portsmouth gaseous diffusion plants. A memorandum from 1960 has been discovered, entitled ''Neptunium\237\ Contamination Problem, Paducah, Kentucky, February 4, 1960.'' It was written by Dr. C. L. Dunham, a physician who directed the Division of Biology and Medicine of the Atomic Energy Commission (AEC), the predecessor to DOE, and a physician colleague from the same Division (Attachment A). Dr. Dunham was therefore the chief physician of the AEC and presumably took the same Hippocratic Oath that every physician takes upon entering the profession. In this memo, they discuss in some detail how neptunium arrives in Paducah, how it deposits on the inner barrier tubes that are the central component of the gaseous diffusion process, and how workers are exposed to the neptunium. They then refer to urine neptunium levels taken in some workers. These physicians further specify that up to 300 Paducah workers should be tested but that, referring to management personnel ''they hesitate to proceed to intensive studies because of the union's use of this as an excuse for hazard pay (p. 3).'' Dr. Dunham and colleague further argue in favor of the need to obtain post mortem tissue samples, but state that this was difficult due to ''unfavorable public relations.'' Dr. Dunham and colleague conclude: ''Thus, it appears that Paducah has a neptunium problem but we don't have the data to tell them how serious it is.'' There is a striking absence of any formulation of a plan of how to collect those data and how to reduce neptunium exposure at Paducah.
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And now, forty years later, we are asked to judge how significant that exposure might have been, who was the population at risk, and whether a retiree's cancer was caused by that unquantified and, presumably, uninvestigated exposure to neptunium, plutonium, and other materials. And at the end of the current spate of urgent investigations, news reports and hearings, there will be some who will conclude ruefully that ''we simply do not have the data to tell them how serious it is'' and will thereby be paralyzed by this ignorance. I cannot think of a better way to make occupational disease ''disappear.''
I. CONCLUSION
Clearly, our present obligations to workers who built and maintained our nuclear weapons stockpile require that we move beyond paralysis. Through our Worker Health Protection Program, Congress has provided an immediate response to the need of gaseous diffusion plant workers for appropriate and timely medical screening for work-related disease. It is now time for Congress to take the next step: establishing a simple and effective system that will meet the need and right of DOE workers for just compensation. For the past decade, Congress has supported a sustained and costly program to clean-up the environment at the gaseous diffusion plants and through the DOE complex in general. Are DOE workers who served us for decades worth any less?
Mr. SMITH. Thank you, Dr. Markowitz.
Mr. Miller?
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STATEMENT OF RICHARD D. MILLER, POLICY ANALYST, PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION
Mr. MILLER. Thank you, Mr. Chairman. Thank you for holding this hearing today. Ms. Jackson Lee and I met a little over a year ago at a press conference of Secretary Richardson when she first stepped up to the plate, and I want to recognize and tell you that we appreciate all the fine work you have been doing to try and bring justice to these workers.
I work for the Paper, Allied-Industrial, Chemical and Energy Workers Union, which has 320,000 members. We are fortunate to represent workers at 11 Department of Energy nuclear weapons facilities and a number of the vendor and atomic weapons facilities, such as the one Mr. Lampson spoke about earlier. A good example might be the Kawecki Berylco facility in Hazleton, Pennsylvania, which closed in 1980, and the Linde facility in Tonawanda, New York. There are many of these small vendor facilities where we have had a role in as well.
Behind me today I also have Mark Griffon, a health physicist, so if you have any technical questions you would like to ask about radiation science, he is here and perhaps can elaborate.
What I would like to do is to focus on what are the major barriers to justice for nuclear workers compensation and why a Federal remedy may be in order.
The first question sometimes people ask is, Well, why are the Feds getting involved in something where the State generally has had a predominant role? And as others have said today, it is a uniquely Federal problem because in some cases we are working with uniquely Federal materials.
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We also have talked to and worked with a number of the State worker comp programs, and interestingly enough, at a Senate Labor Committee hearing that was held in May, the director of the Bureau of Worker Compensation for the State of Ohio testified in which he said that he believed that in this case, where ordinarily the State would view this as an incursion on States' rights and was extremely sensitive to that, they found that this particular circumstance warranted Federal intervention. And allow me just to tell you what the reasons were that they gave, and I will be glad to supply their testimony for the record if you are interested.
The first, they said, is the lack of documentation and the significant amount of time that has passed since many of these workers first contracted or died from their occupational diseases. Adding more confusion to the situation is the growing concern that some former employees may have altered, falsified, or even destroyed medical documentation providing such exposure. The lack of documentation makes it nearly impossible and delayed claim filing could make it nearly impossible for a worker to make their way through the State systems. So, in sum, the statute of limitations is a major barrier for long latency diseases.
The second factor deals with a multiplicity of multiple sites and States and competing laws that will create jurisdictional questions. In Ohio, as they were pointing out, we are dealing with multiple sites and multiple employers. Some of the employers were covered by the State worker comp systems. Others were self-insured. Many of these employers that are subcontractors could have worked in multiple sites in multiple States. What happens to the subcontractor employee who worked in Paducah, Kentucky, for 6 months, then assigned to Piketon for 6 months, and followed 2 years in a third State with another employer? Where was the point of last injurious exposure? Who was he or she working for? Which State benefit system does the worker fall under? These are the kinds of questions that the injured worker should not have to face and that can be avoided under a Federal compensation. Doing so ensures uniformity of procedure.
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Well, when we look at the obstacles at the State level to worker compensation, let me just point to four of them that stand out from our experience in terms of trying to advocate. The first is that most radiation-related cancers aren't even compensable under the existing burdens of proof. And as I think you noted in your opening statement, Mr. Chairman, the doubling dose, which is commonly used as the threshold for establishing whether it is more probable than not that radiation is the exclusive cause for a particular given cancer to the exclusion of all others, you wind up eliminating 99 percent of all occupationally induced cancers.
This was laid out in a detailed report which we have provided to the committee done under contract to the Department of Energy's general counsel's office by Nick Ashford. Dr. Ashford found, after looking at all of the DOE worker compensation claims that had been filed and the posture that the Government took—which also included, I might add, challenging claims regardless of merit—that nonetheless, even if the Government had not resisted so forcefully, 99 percent of those claims still wouldn't have been eligible because of the burdens of proof are just so much higher than the biological level at which the disease is induced.
The second major issue, as many have said, is how incredibly flawed the radiation dose records are, and Dr. Michaels is right. Today he can't guarantee that the bioassay programs and the radiation detection programs are working adequately, and we are still confounded with bad dosimetry programs.
As a consequence, let me just cite for you a memo that was pulled out of the files actually by Dr. Michaels' investigative team when they went to Paducah, Kentucky. This memo focused on the fact that workers were not told what materials they were working with and that they weren't going to be monitored or protected. This was a conscious decision. Let me quote for you: ''The Atomic Energy Commission from February of''——
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Mr. SMITH. If you could conclude——
Mr. MILLER. I am sorry, Mr. Chairman. I apologize. Let me just summarize the point. It says there are possibly 300 people at Paducah who should be checked out for neptunium, which is similar to plutonium. But they are hesitant to proceed to intensive studies because of the union's use of this as an excuse for hazardous duty pay.
So that was a conscious decision, Mr. Chairman, to put people in harm's way because it would make people uncomfortable or cost money.
We would urge you, because time is running out in this session of Congress, to move forward with a compensation system this year. Thank you.
[The prepared statement of Mr. Miller follows:]
PREPARED STATEMENT OF RICHARD D. MILLER, POLICY ANALYST, PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND ENERGY WORKERS INTERNATIONAL UNION
I am Richard Miller, a Policy Analyst for the Paper, Allied-Industrial, Chemical and Energy Workers Union (''PACE''), which represents 320,000 workers nationwide in oil, chemical, pulp, paper, auto parts and nuclear industries. PACE's address is 1155 15th Street, NW, Suite 405, Washington, DC 20005. Phone number: 202/293–7939. PACE represents workers at 11 DOE sites in the Department of Energy's (DOE's) nuclear complex, and workers at a number of current and former beryllium and at other atomic weapons suppliers.
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There is growing bipartisan interest in securing a compensation remedy for workers employed in the nuclear weapons complex and by beryllium vendors under contract to DOE and its predecessors. We appreciate the advocacy by Secretary of Energy Bill Richardson and the leadership of many members of the House and Senate who have been outspoken in favor of securing justice for those who served their country and were made ill. These Cold War veterans often worked in secrecy and were exposed to extremely toxic materials, such as plutonium, often without their knowledge or consent. These DOE plants were not subject to external health and safety oversight from agencies such as the Nuclear Regulatory Commission or OSHA, and investigations make it plain that workers paid a steep price.
1 INTRODUCTION
Our testimony will evaluate the difficulties of establishing claims for occupational disease under the existing state worker compensation regimen, review the perspective of a state worker compensation program on the need for a federal remedy, and evaluate the two main proposals before the House which best addresses the needs of those who toiled in nuclear weapons and beryllium factories. These proposals include(see footnote 1)
(1) HR 4398—a comprehensive bipartisan proposal co-sponsored by Representatives Whitfield, Strickland, Wamp, Kanjorski, Gibbons, Mark Udall, Jenkins, Tom Udall, Tancredo and Kaptur.
(2) HR 5189—the Thompson-Bingaman Amendment which was adopted as part of the FY 2001 Senate Defense Authorization Act (S.2549).
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DOE has held 8 public hearings across the country, including: Piketon, OH; Paducah, KY, Oak Ridge, TN, Amarillo, TX, Rocky Flats, CO; Hanford, WA; Nevada Test Site, NV and Burlington, IA that have elicited reports from hundreds of atomic workers and their families about the thick clouds of radioactive gases, contamination being tracked home, criticality events, questionable radiation monitoring, and debilitating and painful illnesses. These hearings have signaled that it is permissible, even desirable, to make public information that was deemed improper to discuss publically.
2 BARRIERS TO JUSTICE FOR NUCLEAR WORKERS COMPENSATION ARE UNIQUE AND CRY OUT FOR A FEDERAL REMEDY
DOE workers with occupational diseases face exceptionally difficult hurdles to establish a workers compensation claim for several reasons:
1) According to a DOE-sponsored report, only 1% of all radiation-related cancers attributable to workplace exposure occur at exposure levels at or above the legal threshold for proof: the ''doubling dose''(see footnote 2). The ''doubling dose'' is the amount of radiation that doubles the probability that the affected organ would develop a cancer. That means that 99% of all radiation-related cancers attributable to workplace exposures are not even eligible for workers compensation under the existing regimen—a truly unjustifiable state of affairs.
2) DOE's radiation and hazardous material dose records are, in many cases, incomplete, deeply flawed, non-existent, or substantially understate exposure, and thus cannot be relied upon to support claims based on workplace exposure. The April 2000 report from the National Economic Council underscores this concern(see footnote 3)
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3) Workers were, in many cases, not told what materials they were working with, nor were they monitored or adequately protected. For example, workers at the uranium enrichment plants were not told or tested for exposure to transuranic elements such as plutonium or neptunium for 40 years.(see footnote 4) AEC memo stated:
There are possibly 300 people at Paducah who should be checked out [for Neptunium], but they are hesitant to proceed to intensive studies because of the union's use of this as an excuse for hazard pay.(see footnote 5)
With respect to the adequacy of respiratory protection, the AEC doctor stated:
I don't have too much faith in masks, and the dust particles here are about 0.5 micron, the very worst size biologically speaking.
The memo urged Union Carbide to:
get post mortem samples on any of these potentially contaminated men for correlation of tissue content with urine output, but I'm afraid the policy at this plant is to be wary of the unions and any unfavorable public relations.
The AEC doctor concluded his memo stating:
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''Thus, it appears Paducah has a neptunium problem, but we don't have the data to tell them how serious it is.''
The failure to disclose these hazards to the workers, to monitor the workforces, was not a happenstance thing—it was a calculated decision. The memo said if the AEC does the conscionable thing and performs the studies, it will cause the government discomfort or impose costs. National security was not the logic. The AEC and its contractor faced a simple question: are we willing to risk lives or pay money.
4) DOE and its contractors frequently engage in interminable litigation and appeals to defeat occupational illness claims for workers comp, oftentimes regardless of merit. Joe Harding, a Paducah uranium enrichment worker, died of cancer in 1980. His bones were exhumed by his widow and found with sharply elevated levels of uranium. Yet for 15 years DOE battled his widow's survivors comp claim brought under the Kentucky worker compensation system, and expended what the media estimates was in excess of $1 million in defense costs, only to settled for $12,500 in 1997.
3. THE POOR QUALITY OF DOE'S OCCUPATIONAL EXPOSURE MONITORING DATA IS WELL DOCUMENTED, A CIRCUMSTANCE FOR WHICH STATE WORKER COMP PROGRAMS ARE NOT WELL EQUIPPED
Establishing that an individual's illnesses is work related depends on having complete and reliable exposure data. But the poor condition of DOE's records, in many cases, imposes a virtually insurmountable hurdle.
Since 1992, DOE has conceded the inadequacy of its overall radiation dosimetry and the quality of its records. Recent investigative reports at Paducah and Portsmouth confirm this as well. A 1992 summary of Technical Safety Appraisals, including those associated with Tiger Teams directed by former Energy Secretary Watkins, was submitted by DOE to the House Energy and Commerce Committee in May 1994. The key findings with respect to radiation include:
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Monitoring for airborne radionuclides was not performed at all location and jobs which had the potential to exceed the limit at which monitoring is required.
Internal and external occupational [radiation] exposure records were found to be incomplete.
Some employees that had potential for significant internal radiation exposure were not included in routine bioassay programs
Radiation exposure data stored on electronic media did not accurately reflect the data on the original record.
With respect to chemical, biological and physical agents:
Surveillances of potential workplace exposures to biological chemical and physical agents were not performed at the required frequency or were limited in scope.
Records were not kept of employees working with regulated carcinogens.
Personnel were not provided adequate information on their exposure to hazardous materials.
External penetrating radiation is measured through ''film badges''. Internal doses are usually measured through the use of bioassay samples (usually urine) or whole body counters. Although measurements were taken at many DOE sites to determine if an employee's excreta exceeded an ''action level,'' until 1989 there was no requirement to calculate committed effective dose equivalents, which is a computation of the biological effects of internal and external doses added together over a 50-year period. Even if the data were collected, this leaves a vast hole in many workers' dose history.
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DOE Assistant Secretary David Michaels contributed to the 1992 book Dead Reckoning, which was a critical review of the DOE's epidemiological research(see footnote 6). That report found that DOE's radiation dose records were unreliable for purposes of conducting epidemiology. It stated:
There appear to be major inaccuracies, and serious questions as to the consistency and reliability, in the measurement and recording of the radiation exposures of nuclear weapons complex workers.
In one case spurious ''correction factors'' were invented to lower exposure figures and give some workers a ''negative radiation dose'', something that does not exist in nature.
One research team has concluded that there is ''no constant relationship between recorded doses . . . and actual doses.''
At one site involved in a study of all workers exposed to more than 5 rem [the annual limit] of external radiation in any one year, records are so confused that the true number of workers exposed at that level may be three times greater than the number included in the study, and the number exposed to 4 to 5 rem (many of whom may in fact have had higher exposures) is ten times greater.
The degree of incompleteness will vary from worker to worker and site to site. But the overall result is that contractors have compiled records on a large number of workers which systematically understates their actual exposures. As a result, worker compensation cases have been dependent upon incomplete or inaccurate internal dose data that underestimated exposure levels. Likewise, epidemiology studies have relied upon flawed data. As such, workers compensation cases may, in many cases, have been unjustly denied.
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4 EXAMPLES OF WORKING CONDITIONS
An analysis by Institute for Environment and Energy Research revealed that in all years between 1952 and 1962 (except one), more than 50% of the workers who were measured were exposed to more than the then-allowable limits of 15 rem per year to the lung.(see footnote 7) In one year, 90% received in excess of 15 rem to the lung.
Working conditions at the Fernald uranium processing plant, especially in the 1950s and 1960s, were typified by high air concentrations of uranium in many areas of the plant which often exceeded the Maximum Allowable Concentration (MAC) by tens of times, hundreds of times, and even thousands of times. One 1960 plant document lists the air dust concentration in the breathing zone of an operator cleaning under a burnout conveyor as 97,000 times the MAC.2 Work procedures also contributed to the high air dust concentrations in the plants. For example, a 1968 plant document described the procedure for emptying a dust collector:
The dust is emptied from the collector on the second floor and falls down a chute to a nonventilated drum on the first floor. The operator on the first floor signals to the operator on the second floor that the drum is full by pounding on a metal beam with a hammer. Because of the noisy conditions prevalent in the plant, the second floor operator does not always hear the signal. This results in an overflowing drum of dusty material causing a cloud of radioactive dust to fill the area which also goes up the stairwell into the second floor.3
Due a severely flawed radiation monitoring program at the Mound facility in Ohio in the mid 1990s, DOE's operating contractor concluded that ''an unacceptable risk exists of not detecting (in a timely manner) all personnel exposures.'' In 1991, workers exposed to actinium-227 had their samples left to sit on a shelf for three years. The outside laboratory was deemed unreliable after half the workers came back elevated. Then a second lab found elevated actinium-227 readings. Management dismissed these findings as well.
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Subsequently, thousands of lab samples backlogged at the site, and workers were unable to know whether they should be restricted from hot areas or not. After a dozen workers filed suit in 1985 on behalf of a class of workers, DOE produced internal memos indicating that its contractors were aware of how disfunctional the radiation program had become. Two fines were levied against EG&G (1997) and then Babcock & Wilcox (1998) for violations of the DOE's Price Anderson Act rules related to failure to maintain an adequate bioassay program.
Workers were never told, of course, how badly the radiation protection program had degenerated. In June 1996, Senator John Glenn and Representative Tony Hall obtained a commitment from DOE to expend some $6.5 million to buy equipment to better protect workers and to reconstruct doses of all people who received in excess of 20 rem lifetime.
That reconstruction project will take 5 years to complete, with a June 2001 estimated date of completion, for approximately 2,500 workers at a cost of approximately $9.0 million.
The dose reconstruction project will clearly provide valuable data (and some preliminary data shows some workers had large doses of plutonium and polonium), but given the large cost and a 5-year time frame, it does not appear to be a model Congress should replicate in legislation to ascertain eligibility for workers compensation. If sick workers have to wait 5 years for the reconstruction of their doses in prove a workers compensation claim, this delay will lead to the unpleasant reality that many claimants will expire before ever receiving a decision on their claim.
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5 LEGISLATIVE REMEDIES
Today we are reconsidering the concept of securing a federal workers compensation remedy for nuclear workers after a 40 year hiatus.(see footnote 8) We review two comprehensive proposals before the House of Representatives.
A) ''The Energy Employees Occupational Illness Compensation Act of 2000''
(HR 4398)
HR 4398 sets the high water mark—the gold standard—for assuring equitable treatment of all defense nuclear workers for beryllium disease, radiation related illnesses and exposure to hazardous substances.
The U.S. Department of Labor's Office of Worker Compensation Programs would administer this program, and pay benefits equivalent to those afforded under the Federal Employees Compensation Act (''FECA'')—approximately 66 2/3% of the former weekly wage and medical benefits for the illnesses. However, an alternative compensation remedy could be elected by the claimant, which would pay a $200,000 lump sum with health care. Benefits would be non-taxable. This program is funded by ''direct spending.'' The concept of lump sum is derived from worker compensation laws which provide for scheduled payments for the loss of limbs. For example, the maximum benefit under FECA for a lost arm at the shoulder is 312 weeks payment up to $454,038.
HR 4398 builds upon the part of DOE's earlier legislation (HR 3418) that shifted the burden of proof for radiogenic tumors for Paducah workers (due to failure to monitor workers). Under HR 4398, the burden of proof for causation shifts to the government for workers who contract a radiogenic cancer at all DOE nuclear facilities. That presumption—which was borrowed from the Radiation Exposure Compensation Act (''RECA'') because of the near impossibility of establishing an accurate radiation dose—provides that if (1) the employee was employed at a DOE nuclear facility more than one year, and (2) was given a dosimetry badge or should have been provided one, and (3) they contract a specified disease, then the claim is compensable ''in the absence of substantial evidence to the contrary.'' Under HR 4398, workers at all covered nuclear facilities would be eligible for benefits based on this formula(see footnote 9), instead of only the gaseous diffusion plant workers as outlined in the Senate Title and the informal Administration approach.
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Beryllium exposed workers who can show they are ''sensitized'' through a lymphocyte proliferation test (''LPT'') will receive medical benefits pertaining to their condition. Those who contract chronic beryllium disease would receive the option of FECA benefits or the $200,000 lump sum alternative with health care. Claimants would have costs of diagnosis covered by DOL, even if a claimant sought a second medical opinion.
For hazardous substances and minerals, the DOL would utilize medical expertise from standing panels of occupational physicians who would be retained by the Department of Health and Human Services. Doctors would determine whether workplace exposure is a substantial contributing factor to the illnesses. DOE and its contractors would be obligated to provide data and studies, but be precluded from participating in the claims determination process.
DOL claims examiners review applications for benefits, and appeals would proceed through an administrative law judge, the Benefits Review Board and final appeals, if any to the Court of Appeals.(see footnote 10)
B) The Thompson-Bingaman Amendment included in the Title 35 of the Senate Defense Authorization Act (S.2549) and the Udall Bill (HR 5189)
The Senate Title and HR 5189 represents a large and important step forward which we strongly support for adoption this year.
Under the Thompson-Bingaman Amendment, a worker compensation program is established to cover radiation, beryllium and silicosis, wherein the Labor Department provides eligibility for FECA level of benefits through its current Office of Worker Compensation Programs, with several exceptions.
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Title 35 provides for claimants to elect alternative compensation of $200,000 with medical benefits or wage replacement with medical benefits.
Title 35 creates a special cohort where the burden of proof shifts back to the government at the three uranium enrichment plants and the Amchitka Island Test site if the claimant worked at the facility for a cumulative period of 1 years prior to 1992 (when DOE began testing workers for exposure to transuranics). For radiation workers at all other sites, Title 35 requires the Department of Health and Human Services—through NIOSH—to establish ''guidelines'' for determining whether the disease is ''at least as likely as not'' work related, based on a model established by the Veterans Administration. To address problems with inadequate dosimetry, the Title directs HHS to reconstruct doses if the workers were monitored. For situations where it is not feasible to reconstruct a dose and the affected workers may have been endangered, they may to petition the Secretary of HHS to be placed in the ''special cohort'' where the burden of proof shifts to the government. This approach represents a carefully structured compromise that combines the use of good science where it exists and, where it does not, provides a process to overcome situations where workers face insurmountable burdens of proof because the government failed to monitor them.
For hazardous substances other than radiation, beryllium and silicosis, a new DOE's Occupational Illness Compensation Office would select panels of doctors from a list supplied by HHS to review claims. If a doctors' panel determines that exposure ''arose out of the course of employment'' the Office Director will assist claimants with state worker compensation filing and recommend to the Secretary of Energy that the DOE and its contractors not contest the claim. Claims payments would be funded out of the DOE program office (cleanup, defense programs).
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This Title provides coverage for workers at DOE-owned contractor-operated facilities, beryllium vendors and other types of vendors who supplied radioactive materials to the DOE (or its predecessors). Many of these facilities were featured in a three day series in USA Today on September 6–8, 2000. This compensation program is structured as an exclusive remedy with respect to future direct claims by employees against employers, while protecting a plaintiff's right to maintain suits against employers or the federal government that were brought through July 31, 2000. For third party tort claims, victims would be able to bring tort actions and bring a worker compensation claim. However, once payment has been accepted under this Title, they would not be able to proceed with a tort claim.
FECA's existing appeals body, the Employee Compensation Appeals Board, is two years backlogged. Title 35 creates a new Energy Employees Appeals panel. We believe there is no need to create a new appeals body when the DOL's Benefits Review Board is available and is not seriously backlogged. Title 35 provides a right of judicial review for adverse determinations by the Department of Labor. A right of judicial review is absolutely essential in any compensation program to assure accountability.
Finally, Title 35 is funded through direct spending. Worker compensation programs must be structured to provide benefits when workers are hurt and in need. Making a program subject to annual appropriations would put the administrative agency in the position of announcing that an award is merited and then telling the claimant to line up and wait in line if there aren't enough funds appropriated in any given year.
Analysis
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Title 35 is less comprehensive than HR 4398, because it does not cover hazardous chemicals and heavy metal exposures—exposures which have taken a demonstrable toll on worker health. However, Title 35 provides an important building block in remedying some of the most widespread impediments related to proof of work-relatedness, statutes of limitations, burdens of proof, the quality of exposure data, and multi-state jurisdiction issues for beryllium-, radiation- and silica-related occupational illness. We support some improvements to the Senate provisions that would add a requirement for HHS to evaluate whether there should be coverage for chronic renal diseases for workers exposed to uranium, illnesses related to drinking water contaminated with heavy metals at Oak Ridge, and workers exposed to uranium at the Linde facility in Tonowanda, New York after it ceased processing uranium for the AEC.
The State of Ohio Bureau of Workers Compensation testified before the Senate that a unique set of circumstances warranted federal intervention. They noted two particular factors(see footnote 11)
The first is lack of documentation and the significant amount of time that has passed since many of these workers first contracted or died from their occupational diseases. Adding more confusion to this situation is the growing concern that some former employers may have altered, falsified or even destroyed medical documentation proving such exposure. The lack of documentation make it nearly impossible and delayed claim filing could make it nearly impossible for a worker to make their way through state systems.
The second factor deals with the complexity of multiple sites, states and competing laws that will create jurisdictional questions. In Ohio, we are dealing with multiple sites and multiple employers. Some of the employers were covered by these state workers' compensation system, others were or are self-insured. Many of these employers or their subcontractors could have worked in multiple sites in multiple states. What happens to the subcontracted employee who worked at Paducah, Kentucky plant for six months and then was assigned to the Piketon, Ohio plant for six months, followed by two years with a third state with another employer? Where was the point of last injurious exposure that caused the illness? Who was he or she working for? Which state benefits system should the worker fall under? These are types of questions that the injured worker should not have to face and that could be avoided under a federal compensation system. Doing so ensures uniformity of procedure.
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The need for federal workers compensation is evident from many perspectives. Attempting to place this program in agency other than the Department of Labor could lead to lengthy start up delays and hurt those who are most deserving. The DOL already has the basic regulations, dispute resolution mechanisms, nationwide structure of offices to receive claims, and policies to implement a worker compensation program. Asking another agency replicate this infrastructure is inherently wasteful.
CONCLUSION
We urge the support the Senate Title 35 (HR 5189) as part of the FY 2001 Defense Authorization Act (DAA) as an essential building block. We urge the Committee to support this approach in the conference of the DAA.
Mr. SMITH. Thank you, Mr. Miller.
Dr. Rosenman?
STATEMENT OF KENNETH D. ROSENMAN, M.D., PROFESSOR OF MEDICINE, MICHIGAN STATE UNIVERSITY, EAST LANSING, MI
Mr. ROSENMAN. Thank you, Mr. Chairman. Thank you for the invitation to speak today. My name is Kenneth Rosenman. I am a physician and professor of medicine at Michigan State University. In conjunction with colleagues at Emory University, the University of Cincinnati, and the University of Pennsylvania, we have been conducting medical screening of workers from two former beryllium processing plants in Hazleton and Reading, Pennsylvania. The Reading plant closed this year. I believe you have heard some testimony before about the Hazleton plant, which closed in 1978. Both plants extracted beryllium from ore to make beryllium oxide, and various alloys. Both facilities were major suppliers to the nuclear agencies that preceded the DOE.
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To date, we have examined 1,370 of the workers from these two sites. There were a total of 5,286 individuals who have worked there. Half of them have died; 323 could not be located; 907 have declined testing; and another 74 are scheduled to be tested. I will come back to the reason why many of these individuals have declined the testing because it relates to the whole compensation issue.
Among the 1,370 individuals we tested, we diagnosed 72, or 5.3 percent, with chronic beryllium disease and 73, another 5.3 percent, with sensitization to beryllium.
Let me just briefly summarize what I mean when I say chronic beryllium disease and sensitization. Chronic beryllium disease is primarily a lung disease from scarring in lung caused by breathing in beryllium. Patients present with cough, shortness of breath, fatigue, weight loss. Less commonly it affects the skin and other organs, particularly the liver. Beryllium is also a direct irritant and can cause acute beryllium disease. Acute beryllium disease occurs with ongoing high-level exposure. Chronic beryllium disease, on the other hand, typically occurs with repeated exposure 20 or 30 years after the initial exposure, and even after exposure has ceased.
Chronic beryllium disease is caused by an immunological reaction where blood and tissue cells in the exposed individual become sensitized to beryllium, and scarring occurs in the body in response to this sensitization.
Individuals who have the immunological reaction without evidence of scarring are considered to be sensitized. Although there are low levels of beryllium reported in the soil and general environment, disease has only occurred in relationship to work, either among the workers, among their family members where they have brought dust or material home on their clothes or shoes, or around these beryllium facilities from emissions from these factories.
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Beryllium disease can occurs years, as I said, after exposure has ended because the beryllium inhaled remains in the lung and the body continues to react to the beryllium. Individuals with beryllium disease continue to have progression of their scarring, even with cessation of exposure.
With progression, there is increased shortness of breath, increasing impairment which can lead to being too short of breath to leave one's bed, and finally to death. Treatment consists of high doses of prednisone, a steroid used to reduce the immunological reaction, to try and prevent the progression of scarring. Once scarring has occurred, it cannot be reversed. As the disease progresses, treatment consists of oxygen therapy and possibly lung transplant.
Since 1988, there has been a blood test which allows doctors to determine if a patient has this immunological reaction to beryllium. The blood test can be positive before the scarring has occurred in the lungs. Although they show the same immunological reaction as someone with chronic beryllium disease, they don't have the scarring. It is estimated that approximately 10 percent of individuals each year with sensitization will develop scarring in their lungs.
When we talk to and examine the former workers at Hazleton and Reading, none of them have received compensation for beryllium disease, no matter what severity, including death. This is because in Pennsylvania—well, some of the reasons that Dr. Markowitz has enumerated, such as difficulty with physicians making the diagnosis, but even more clear-cut in Pennsylvania is the problem with their worker compensation law, which excludes individuals from applying for compensation more than 5 years after their employment and exposure has ended.
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At the same time, workers who we have diagnosed with chronic beryllium disease have been denied health benefits from their regular health insurance because they have a work-related illness. These individuals have been left without any avenue to obtain funds for medical care. Denied workers' compensation and health insurance, some workers have tried to sue, but, again, Pennsylvania's workers' compensation law precludes them from suing their employer and they are unable to sue the beryllium ore supplier because the beryllium was provided by the Federal Government.
These individuals have clearly been left with no option and are in dire need of the proposed legislation.
I previously mentioned that approximately 900 individuals have declined the free medical testing we are offering. There are a number of reasons for this, but the major one is a problem with insurance coverage. Some individuals have decided they are better off not knowing if their lung disease is caused by beryllium because they would lose their medical coverage for their lung problem. This legislation is needed.
I have some more specific comments about the legislation, but I will end there and be happy to answer any questions.
[The prepared statement of Dr. Rosenman follows:]
PREPARED STATEMENT OF KENNETH D. ROSENMAN, M.D., PROFESSOR OF MEDICINE, MICHIGAN STATE UNIVERSITY, EAST LANSING, MI
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SUMMARY
Chronic Beryllium Disease primarily affects the lungs. It is a progressive, potentially fatal disease with few treatment options, that may occur years after beryllium exposure has ended.
Among 1,370 individuals tested at two beryllium extraction facilities in Eastern Pennsylvania, 72 (5.3%) people were diagnosed with Chronic Beryllium Disease and 73 (5.3%) were diagnosed with sensitization.
Pennsylvania Workers' Compensation Law precludes filing a workers' compensation claim more than five years after cessation of exposure. Most individuals we have diagnosed with Chronic Beryllium Disease or sensitization have been precluded from filing by this statute of limitation. Some have been denied medical coverage by their existing health insurance plan because they have a work-related disease. Accordingly, they have been left to fend for themselves to pay their medical bills.
Thank you for the invitation to speak today before the Subcommittee on Immigration and Claims of the Committee on the Judiciary.
My name is Kenneth Rosenman. I am a physician and Professor of Medicine at Michigan State University. In conjunction with colleagues at Emory University, the University of Cincinnati, and the University of Pennsylvania, we have been conducting medical screening of workers from two former beryllium processing plants in Hazleton and Reading, Pennsylvania. The Reading plant closed this year and the Hazleton plant closed in 1978. Both plants extracted beryllium from ore to make beryllium oxide and various alloys. Both facilities were major suppliers to the nuclear agencies that preceded the DOE. To date we have examined 1,370 workers from these two sites. There were a total of 5,286 individuals who ever worked at the these two locations beginning in 1935 in Reading and 1958 in Hazleton: 2,312 have died; 323 could not be located; 1,370 have been tested; 907 have declined medical testing; and 74 are scheduled to be tested (Table I). Many individuals declined to be tested because of the compensation issue and I will come back to that point shortly.
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Among the 1,370 individuals tested, we diagnosed 72 (5.3%) with Chronic Beryllium Disease and 73 (5.3%) with sensitization to beryllium (Table II).
What is Chronic Beryllium Disease and what is sensitization to beryllium?
Chronic Beryllium Disease is primarily a lung disease from scarring in the lungs caused by breathing in beryllium dust or fumes. Patients may present with symptoms of cough, shortness of breath, fatigue and/or weight loss. Less commonly, it also affects the skin and other organs including the liver. Beryllium is a direct irritant and can also cause acute beryllium disease with conjunctivitis, dermatitis, nasopharyngitis, and/or pneumonitis. Acute beryllium disease occurs with ongoing high levels of exposure. Chronic Beryllium Disease, on the other hand, typically occurs after repeated low level exposure and may not occur until 20–30 years after all exposure has ceased. Chronic Beryllium Disease is caused by an immunological reaction where blood and tissue cells in the exposed individual become sensitized to beryllium and scarring occurs in response to the body's immunological reaction to the beryllium. Individuals who have the immunological reaction without evidence of scarring are considered to be sensitized. Although low levels of beryllium dust have been reported in the soil and general environment, disease has only occurred in relation to work: (1) workers; (2) family members of workers who brought beryllium home on their clothes/shoes; or (3) individuals living around beryllium facilities who have been exposed to emissions.
Chronic Beryllium Disease can occur years after exposure has ended because the beryllium inhaled can remain in the lung and the body can continue to react to the beryllium. Individuals with beryllium disease can have progression of their scarring even with cessation of exposure. With progression there is increased shortness of breath with increasing impairment which can lead to being too short of breath to leave one's bed, and finally to death. Treatment consists of high doses of prednisone, a steroid used to reduce the immunological reaction, to try and prevent the progression of the scarring. Once scarring has occurred it cannot be reversed. As the disease progresses treatment consists of oxygen therapy and possibly a lung transplant.
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Since 1988 there has been a blood test which allows doctors to determine if a patient has an immunological reaction to beryllium. This blood test can be positive before scarring has occurred in the lung. These people are considered to be sensitized. They show the same immunological reaction as someone with Chronic Beryllium Disease but they don't have scarring. It is estimated that approximately 10% of individuals each year with sensitization will develop scarring in their lungs and therefore develop Chronic Beryllium Disease.
The former workers at Hazleton and Reading have received no compensation for their beryllium disease no matter what its severity, including death. This is because Pennsylvania workers' compensation law excludes individuals from applying for compensation more than five years after their employment and exposure ended. At the same time workers who we have diagnosed with Chronic Beryllium Disease have been denied health benefits from their regular health insurance because they have a work-related illness. These individuals have been left without any avenue to obtain funds for medical care. Denied workers' compensation and health insurance, some workers have tried to sue but Pennsylvania workers' compensation law precludes them from suing their employer and they are unable to sue the beryllium ore supplier because the beryllium was provided by the federal government. These individuals have clearly been left with no options and are in dire need of the proposed legislation.
I previously mentioned that approximately 900 individuals have declined the free medical testing we are offering. There are a number of reasons for this but a major one is the problem with insurance coverage. Some individuals have decided they are better off not knowing if their lung disease is caused by beryllium because they would lose their medical coverage for their lung problem.
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I have two specific comments on the proposed legislation as it relates to covered beryllium illness.
The criteria for radiographic studies after January 1, 1993 should be the same as for radiographic studies prior to January 1, 1993. Requiring the CT scan for a diagnosis made after 1993 increases the costs of medical screening without improving the diagnostic specificity of the testing.
Beryllium is considered a human carcinogen. Individuals with chronic exposure to beryllium are at increased risk of lung cancer. Compensation for individuals with beryllium exposure who develop lung cancer is missing from the proposed legislation.
Thank you. I would be happy to answer any questions.
Mr. SMITH. Thank you, Dr. Rosenman.
Mr. Guttman?
STATEMENT OF DAN GUTTMAN, FORMER EXECUTIVE DIRECTOR, PRESIDENT'S ADVISORY COMMITTEE ON HUMAN RADIATION EXPERIMENTS
Mr. GUTTMAN. Thank you, Mr. Chairman and members of the subcommittee, for the opportunity to testify here. I am an attorney in private practice and in 1994–95 was privileged to serve as executive director of the President's Advisory Committee on Human Radiation Experiments. As this committee is aware, that committee was initially formed in response to revelations about Cold War-era injections of plutonium into 18 hospitalized patients without their knowledge or consent. In addition, we looked extensively, as this committee is well aware, at the uranium miners and the tragedies they suffered.
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While the committee didn't look directly at the weapons complex workers, save where workers were direct subjects of experiments, it made four findings that I think are highly relevant to this committee's consideration of the compensation measures before it.
First, I read in the USA Today that there are some people who think, well, back then in the 1940's and 1950's, we didn't know much about radiation risk. And so whatever happened, however tragic, to workers, uranium miners, really there is a comprehension to it. The reality, as the President's Advisory Committee found through review of thousands and thousands of Cold War-era documents, is that, in fact, at the dawn of the Cold War, at the dawn of the atomic bomb project, the Manhattan Project, scientists and Government officials were keenly aware that radiation was potentially of a tremendous risk and had to be looked at very carefully. We knew this because there had been tragedies that the researchers had documented with, for example, the women who had painted the radium dials. And in 1946, the committee found a secret history of the Manhattan Project medical program saying the memory of this radium dial painter tragedy was very vivid in the minds of the Manhattan Project and the thought of potential dangers of working in areas where radiation hazards existed were intensified because the deleterious effects of radiation could not be seen or felt and the results of overexposure might not become apparent for long periods after such exposure. This is 1946.
Second, the most stunning finding I think the committee made was people had thought secrets were kept for reasons of national security. In the case of the things we are talking about, health and safety, we found that at the dawn of the Atomic Energy Commission's creation in 1947, our Government kept secrets to avoid embarrassment and liability to the United States Government and its contractors. The committee recommended in the case of the plutonium subjects that they be compensated as well as apologized to because of this coverup. Even in the absence of physical injury, the administration agreed to this recommendation.
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The committee found that this coverup, extended coverup for reasons of liability and basic embarrassment, covered workers and their communities as well as experimental subjects. In 1947, the director of the AEC's, the DOE's predecessor, Oak Ridge operations, wrote to the headquarters here in Washington, ''papers referring to levels of soil and water contamination surrounding Government installations, idle speculation and future genetic effects of radiation, and papers dealing with potential process hazards to employees are definitely prejudicial to the best interest of the Government. Every such release is reflected in an increase in insurance claims, increased difficulty in labor relations and adverse public sentiment.''
The committee found that, following this expression of internal concern, not for national security but for liability and embarrassment, our Government instituted a practice of having materials that affected workers in their communities reviewed after they were found to be acceptable for release under national security grounds, reviewed for the possible liability effect by the Atomic Energy Commission insurance branch.
The President's Committee thought this policy should have ended by 1951 when President Truman issued an order making clear that national security was the only grounds for keeping secrets from affected citizens and workers about risks they were exposed to. It now turns out it is clear from what you are hearing today, from the Washington Post, USA Today, Paducah Sun, Nashville Tennessean, this policy of keeping secrets, not for national security but to prevent people from knowing what they were exposed to, continued for periods that we—maybe decades after the 1950's.
Fourth, the committee found that when secrets were kept, secrets about risks people were exposed to were kept, the Government failed to keep the records and do the monitoring necessary to assure that decades later, when these risks could bear fruit in actual injury, as they have here, the people behind us today will testify, that there be records so that people who were affected in their communities and their survivors could know what happened. This is now clearly a problem that we see having occurred in relation to thousands of workers before you.
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So, in conclusion, I would say, as this committee is well aware, the country has seen fit to address the harms to servicemen, atomic veterans, uranium miners, and experimental subjects. It has yet to address directly the harms caused to the nuclear weapons workers, the largest, the most daily and continuously exposed, and perhaps, and we don't know—because the uranium miners tragedy was just extraordinary—perhaps in that magnitude of severity. We still don't know.
Today, many years removed from initial exposures and given the limits of scientific understanding, any effort to redress harm will likely be imperfect. In this context, the findings of the Advisory Committee, when coupled with the disclosures in the press and the witnesses before this Congress, show that any remedy for workers requires that the burden of proof where the data is inadequate must be on the Government and cannot be on the workers.
I will just conclude by noting that Senator Voinovich said in his opening statement that the Senate bill provides that where the Government has good data, science can do its job, but when the Government doesn't have good data and it appears that it has not kept the data and failed to do what it knew it should have done because it knew there was risk, then the burden should be on the Government, not on those who have come down with injuries that by scientific analysis clearly have been related to their experiences and their exposures in service to their country.
Thank you very much.
[The prepared statement of Mr. Guttman follows:]
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PREPARED STATEMENT OF DAN GUTTMAN, FORMER EXECUTIVE DIRECTOR, PRESIDENT'S ADVISORY COMMITTEE ON HUMAN RADIATION EXPERIMENTS
Mr. Chairman, thank you and the members of the subcommittee for the opportunity to appear here today. My name is Dan Guttman. I am an attorney in private practice and a Fellow at the Center for the Study of American Government at Johns Hopkins University.
In 1994–95 I was privileged to serve as Executive Director of the Presidential Advisory Committee on Human Radiation Experiments (ACHRE). I am testifying on my own behalf based on my experience with the Advisory Committee. I believe it is useful and important to place the nuclear weapons worker compensation measures before this Committee today in the context of prior research and findings.(see footnote 12)
SUMMARY
As the Cold War recedes into history, there have been continued revelations about the treatment of ''Cold War Veterans,'' those workers, servicemen, and further citizens who served in the development, production, and testing of nuclear weapons. It is important to place recent disclosures regarding the nuclear weapons workers in the context of that which has previously been learned regarding the government's conduct towards ''atomic veterans,'' uranium miners, and subjects of government sponsored human radiation experiments.
The President's Advisory Committee was not directly tasked to review nuclear weapons worker exposures (save where workers were subjects of experiments). However, it found facts and made findings of direct relevance to the still unfolding story of the nation's nuclear weapons workers.
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In a nutshell:(see footnote 13)
1. From the 1942–43 dawn of the Manhattan Project, the government, its contractors, and biomedical researchers were well aware that radiation posed potential risk to weapons workers, and that such risk had to be understood and monitored;
2. At its 1947 creation, the Atomic Energy Commission and its contractors engaged in a long hidden policy and practice of hiding risks from affected citizens to avoid liability and embarrassment—even where national security itself did not require secrecy. The Committee recommended, and the Administration accepted, that where such coverup occurred, research subjects (or survivors) be compensated even in the absence of physical injury.
3. The Advisory Committee found that the hidden policy and practice of keeping secrets to avoid embarrassment and liability applied to workers, and their communities, as well as to experimental subjects. Ongoing disclosures show that the policy and practice was not effectively countermanded, and continued well past mid-century.
4. The Advisory Committee found that government and its contractors were well aware that radiation risks might be latent for years, with injury occurring long after exposure. However, they failed to provide for monitoring and recordkeeping sufficient to assure that risk would be minimized and that its dimensions could be known at years remove. This finding, recent disclosures show, applies to weapons workers as well.
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The country has rightly seen fit to address harms caused to servicemen, uranium miners, and experimental subjects. It has yet to directly address the harms caused to the nuclear weapons workers, the largest, and, along with the uranium miners, the most continuously and severely exposed, of all ''Cold War Veterans.'' Today, at many years remove from initial exposures, and given the limits of scientific understanding, any effort to redress wrong and harm will likely be imperfect. In this context, the findings of the Advisory Committee, when coupled with ongoing revelations regarding exposures to nuclear weapons workers, suggest that the burden of proof in cases where data on worker exposure is inadequate must be on the government and its contractors, and not on workers with demonstrable ills.
BACKGROUND: THE ADVISORY COMMITTEE ON HUMAN RADIATION EXPERIMENTS
In November, 1993 journalist Eileen Wellsome gave names and real life histories to 18 hospitalized patients who had been injected, at the direction of the United States government and with the assistance of university researchers, with plutonium, a material key to the atomic bomb. In January,1994 President Clinton appointed the Advisory Committee on Human Radiation Experiments (ACHRE) to unearth and tell the story of government sponsored human radiation experiments that took place in the 1944–74 period (prior to the introduction of broadbased rules to govern federally funded human experiments) and to advise on the retrospective evaluation of, and response to, this past conduct.
The Committee plunged into the reconstruction of government programs, some long secret, ranging from the administrations of Franklin Roosevelt to Gerald Ford. The Committee reviewed thousands of documents, interviewed dozens of surviving researchers, officials and participants, held 31 days of public hearings, and surveyed ongoing government-sponsored human subject research (non-radiation as well as radiation) to assess the effect of current federal regulations.
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In its October 1995 report to the President, the Committee found a basic failure on the part of the government and the biomedical research community to inform research subjects of the risks that they were being exposed to, and to seek their consent.(see footnote 14) Significantly, the Committee further found that at the dawn of the Cold War era atomic energy officials and biomedical researchers were aware that, even in wartime, citizens should not be subjected to experiments without their informed consent. Nonetheless, this principle was not put into practice. The Committee therefore found the government and its researchers to be ''morally responsible'' and ''blameworthy'' for their failure to effectuate known principle, at least in cases where experiments were not conceived to directly benefit subjects (i.e.,nontherapeutic experiments).(see footnote 15) Fortunately, the Committee further found, the vast majority of human radiation experiments (which were performed at numerous universities, hospitals, and other research centers, employed AEC produced radioisotopes, but typically had no military or governmental purpose and were not secret) involved adult subjects and were unlikely to have caused physical harm. (see footnote 16) The Committee found that the greatest harm among those studied was to uranium miners (who were subjected to government research while they continued to work); several hundred have died of lung cancer and survivors remain at elevated risk. (see footnote 17)
The Government Knew From the Onset of the Manhattan Project That Workers were Exposed to Potential Risk That Required Understanding, Protective Measures, and Monitoring
It is often said that the conduct of the government and its contractors towards experimental subjects, uranium miners, atomic veterans, and, now weapons workers, must be placed in the context of the limited understanding of radiation risk during the early Cold War years. This, of course, is so. However, the Advisory Committee found that while the government and its experts may not have then been aware of the full dimensions of radiation risk, they were well aware that risk was potentially omnipresent and that precautionary measures had to be taken. By 1940, radiation researchers were keenly aware of the tragedy of the radium dial painters (women who licked radium dipped paintbrushes and suffered gruesome jaw disease by consequence), similar cases of those who took radium as a nostrum, and the sicknesses that befell early radiation researchers.(see footnote 18)
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Thus, a 1946 secret history of the Manhattan Project's biomedical program explained:(see footnote 19)
The memory of this [radium dial painters] tragedy was very vivid in the minds of the people, and the thoughts of potential dangers of working in areas where radiation hazards existed were intensified because of the deleterious effects of radiation could not be seen or felt and the results of over-exposure might not become apparent for long periods after such exposure.
To their great credit, Manhattan Project biomedical researchers undertook extensive data collecting and experimentation to determine the human effects of radiation. The ''clinical study of the personnel,'' Manhattan project researcher Robert Stone wrote in 1943, ''is one vast experiment. Never before has so large a collection of individuals been exposed to so much radiation.''(see footnote 20) Numerous experiments involving animals were conducted to learn how radioactive materials course through the human body, so that measurements taken from weapons workers could be better understood. Some experiments, including the now infamous plutonium injections and the handful of other classified human experiments, were conducted on unknowing human subjects.
High level radiation exposure, as occurred in some weapons project accidents, was known to cause immediate radiation sickness and terrible death. However, most nuclear weapons workers were exposed to radiation at levels whose injurious consequences (if any) would take years to manifest themselves. The government's experts knew by mid-century that radon exposures to underground uranium miners were excessive and likely hazardous. The government also knew that a remedy—adequate ventilation—was at hand. But, in the absence of deaths, the government undertook study—and not action. (see footnote 21)
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In the case of beryllium exposure, by contrast, the government was on early notice that the hazard to workers and even surrounding community members was actual and severe, and not just potential. By 1949 there had been at least twenty-seven deaths attributable to beryllium in plants where the AEC had contracts. Among the fatalities in Lorain, Ohio were five residents living near the Beryllium Corporation plant. Indeed, the epidemic was the subject of press reports.(see footnote 22)
The Government and its Researchers Kept Secrets from Experimental Subjects to Avoid Liability and Embarrassment: The Advisory Committee Recommended Compensation Even in the Absence of Harm in Such Cases
When the Advisory Committee began its work in 1994, many assumed that Cold War era national security considerations were the basis on which the government and its contractors kept health and safety information secret from affected citizens. Surprisingly, the Committee found that health, safety, and environmental information was kept secret to avoid embarrassment and liability—even where officials knew national security did not preclude its release. (see footnote 23)
For example, the Committee found that in 1946, just as the Atomic Energy Commission (AEC) was created, a report on the plutonium experiments was declassified. When the AEC began operations, however, the report was reclassified to ''restricted.'' A February, 1947 memo vividly recorded internal AEC concerns:(see footnote 24)
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The [plutonium research report] appears to be the most dangerous since it describes experiments performed on human subjects, including the actual injection of plutonium metals into the body. . . . Unless, of course, the legal aspects were covered by the necessary documents, the experimenters and the employing agencies, including the U.S., have been laid open to a devastating lawsuit which would, through its attendant publicity, have far reaching results.
In November 1947, the AEC internally concluded that ''the matter of human experimentation'' would remain classified where certain ''conditions'' were not be met. Remarkably, these conditions included ''informed consent.''(see footnote 25) Thus, the AEC simultaneously recognized that disclosure was imperative but that, to protect the government and its contractors, disclosure should not be had where the result could be injurious. Even though plutonium subjects were followed up by the government, and even though the research began to be reported in public technical journals in the 1950's, the subjects (or their survivors) were not told of the experiments until the 1970's. (see footnote 26)
The Committee concluded that—even in the absence of demonstrable injury—the plutonium subjects, and other victims of secretkeeping to avoid embarrassment and liability, were entitled to compensation. The Committee recommended:(see footnote 27)
that the government deliver a personal, individualized apology and provide financial compensation to the subjects (or their next of kin) of human radiation experiments in which efforts were made by the government to keep information secret from these individuals or their families, of from the public, for the purpose of avoiding embarrassment or potential legal liability, or both, and where the secrecy had the effect of denying individuals the opportunity to pursue potential grievance.
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On receipt of the report in October, 1995 President Clinton provided a broad apology to experimental subjects. (see footnote 28) In March,1997 the Administration reported that it was in agreement with the financial compensation component of the recommendation as well and would implement it.(see footnote 29)
The Government and its Contractors Hid Risk From Workers, As Well as Other Citizens, To Avoid Embarrassment and Liability
Documents uncovered and made public in the course of the Committee's work revealed that the suppression of health and safety information was directed at the government's nuclear weapons workers and their communities, as well as at experimental subjects. A 1947 memo from the AEC Director of Oak Ridge operations to the AEC General Manager stated:(see footnote 30)
Papers referring to levels of soil and water contamination surrounding Atomic Energy Commission installations, idle speculation on future genetic effects of radiation and papers dealing with potential process hazards to employees are definitely prejudicial to the best interests of the government. Every such release is reflected in an increase in insurance claims, increased difficulty in labor relations and adverse public sentiment.
In October,1947 Oak Ridge recommended to AEC Headquarters that the AEC Insurance Branch routinely review declassification decisions for liability concerns:(see footnote 31)
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Following consultation with the Atomic Energy Commission Insurance Branch, the following declassification criteria appears desirable. If specific locations or activities of the Atomic Energy Commission and/or its contractors are closely associated with statements and information which would invite or tend to encourage claims against the Atomic Energy Commission or its contractors such portions of articles to be published should be reworded or deleted. The effective establishment of this policy necessitates review by the Insurance Branch as well as the Medical Division prior to declassification.
In late 1948, the AEC Declassification Branch found that a study of the effect of gamma radiation on Los Alamos workers' blood could be declassified as it fell within the fields of ''open research.''(see footnote 32) Nonetheless, the AEC Insurance Branch called for ''very careful study'' before making the report public:(see footnote 33)
We can see the possibility of a shattering effect on the morale of the employees if they become aware that there was substantial reasons to question the standards of safety under which they are working. In the hands of labor unions the results of this study would add substance to demands for extra-hazardous pay—knowledge of the results of this study might increase the number of claims of occupational injury due to radiation and place a powerful weapon in the hands of a plaintiff's attorney.
The Advisory Committee reported that the practice of keeping information secret on grounds of embarrassment or potential liability should have ended no later than 1951, and perhaps as early as 1949.(see footnote 34) In its 1949 ''Policy on the Control of Information,'' the AEC stated that ''Information about a public enterprise of such consequence as the atomic energy programs should be concealed only for reasons soundly based upon the common defense and security.'' In 1951, President Truman issued an Executive Order that limited the reasons for classification to national security.
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However, it is now clear that—in regard to weapons workers—the practice of secretkeeping to avoid liability and embarrassment was not effectively countermanded. Recent revelations show that the policy of worker directed coverup continued well past mid-century. For example, attention to the Paducah, Kentucky site flowing from Joby Warrick's Washington Post series brought to the fore a March 11,1960 AEC memo which shows that top AEC biomedical officials recognized that ''possibly 300 people at Paducah should be checked out'' for neptunium contamination, but that there was hesitation to ''precede to intensive studies because of the union's use of this as an excuse for hazard pay.(see footnote 35)—Most recently, Peter Eisler's USA Today investigation (reported in September, 2000) shows that weapons workers at contractor owned sites were routinely exposed to hazards and not warned—or followed up when contracts ended.(see footnote 36)
The Government and its Contractors Failed to Keep Requisite Exposure Records And Provide Requisite Followup
The President's Committee found that the government did not keep records sufficient to assure that those exposed to radiation in secret programs were protected against the hazard. The Committee found (Finding 19):(see footnote 37)
the government did not routinely undertake to create records needed to ensure that secret programs could be understood and accounted for in later years and that it did not adequately maintain such records where they were created. The Committee further finds that many important record collections (including records that were not initially classified) have been maintained in a manner that renders them practically inaccessible to those who need them . . .
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This finding, recent press revelations and worker and expert testimony before Congressional committees indicate, applies in significant respect to nuclear weapons workers as well as to subjects of human radiation experiments.
Indeed, documents reported on by the Advisory Committee regarding the Harshaw Company dovetail disturbingly with the recent USA Today reports.
The Advisory Committee reported on the deception illustrated in a 1955 exchange between the University of Rochester (a major AEC worker health and safety research contractor) and the AEC regarding a proposed study of lung cancer in workers at the Harshaw Company (an AEC Cleveland based uranium processor).(see footnote 38) The Rochester researcher wrote:
You will have to find a good excuse so as not to worry the person you are contacting . . . perhaps you could say in some convincing way that you, or rather the person conducting the study, represents a life insurance company studying the health of people employed by the Harshaw Company.
The documents reported by the Committee showed that the AEC opted for subtle deception:
The attack which we are going to start the study will be to inform the old Harshaw employees that our interest in them is only part of an overall program to make sure that the safety controls in the atomic energy business are absolutely perfect. To be sure, such an approach might cause some alarm, but this would not be too great . . . the Commission is sure that there will be no injury to its workers but it needs to document this fact.
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The documents uncovered by the Committee, as just quoted, indicate that the deception at Harshaw reflected benign intent. However, USA Today now reports that the AEC and Harshaw knew that hazard was excessive as early as 1948 and knew that continued worker followup for late developing disease was essential. Nonetheless, USA Today found that, ''after Harshaw's work for the nuclear weapons program ended in the mid-1950's, no one returned to check the workers' health or tell them of the risk.''(see footnote 39)
The Government Has Provided Redress to Basic Groups Enlisted on Behalf of the Nation's Nuclear Weapons Programs—Save the Nuclear Weapons Workers
During the course of the Cold War, hundreds of thousands of Americans were enlisted to serve our country in activities related to the development, production, and testing of nuclear weapons:
From 1945 to 1962 about 220,000 servicemen participated in the testing of nuclear weapons at the Nevada and South Pacific test sites. (Most were exposed to a single test.) In the 1980's Congress acted to provide compensation for ''atomic veterans'' who sustained illness.
Several thousand uranium miners worked for private companies mining uranium for the Atomic Energy Commission. In 1990 Congress acted to provide compensation for miners with lung cancer or non-malignant respiratory disease.
In the late 1990's, following the report of President Clinton's Advisory Committee on Human Radiation Experiments, the government provided compensation for citizens unknowingly used as subjects in government sponsored human radiation experiments. The Committee recommended, and the Administration agreed, that in cases where the government intentionally withheld information to avoid liability or embarrassment, the citizen (or next of kin) should be compensated even in the absence of demonstrable physical injury.
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From the World War II Manhattan Project to the present, hundreds of thousands of Nuclear weapons workers have been employed to develop, build, and test nuclear weapons. The government has not acted to provide redress to these workers
Members of all of these groups deserve to be honored for their service, and provided with appropriate remedy where the government has done them harm.
Thank you very much for the opportunity to appear before you today.
Mr. SMITH. Thank you, Mr. Guttman.
Dr. Repsher?
STATEMENT OF LAWRENCE REPSHER, M.D.
Mr. REPSHER. Thank you, Chairman Smith and members of the subcommittee, for inviting me here today. My name is Lawrence Repsher. I am a pulmonary physician who has specialized in environmental and occupational lung disease for 26 years in the Denver, Colorado, area. My curriculum vitae has already been supplied.
I have diagnosed and treated patients with chronic beryllium disease, or CBD, since 1974. I have followed the clinical course of two patients for over 30 years and several patients for more than 25 years. I have either seen in person or reviewed extensive records, medical records, of approximately 150 patients who have some form of CBD. This experience has given me an unusual degree of insight with regard to the diagnosis, clinical course, prognosis, and potential response to therapy of patients with CBD. I will deal with these aspects of CBD during the rest of my presentation.
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It is important to distinguish three related but clearly separate conditions: beryllium sensitization, subclinical CBD, and clinical CBD. Beryllium sensitization indicates that the patient has only a positive lymphocyte proliferation test, LPT, but no symptoms or evidence of functional impairment and no evidence of granulomas on lung biopsy. Subclinical CBD means that there are granulomas on biopsy in addition to a positive LPT, but no symptoms or pulmonary function impairment. A diagnosis of clinical CBD requires all of the above, a positive LPT, granulomas on lung biopsy, as well as respiratory symptoms, along with objective evidence of pulmonary impairment.
There has been some suggestion that there has been a marked increase in the number of patients diagnosed with CBD since the early 1990's. However, the vast majority of these recent cases have either been workers with beryllium sensitization or subclinical CBD and not true clinical CBD. There has probably been no actual increase in the number of true clinical CBD cases because the apparent increase has consisted primarily of workers and other potentially exposed individuals who have been identified through screening programs, utilizing the now reasonably sensitive and reasonably consistent LPT. Prior to this time patients with CBD were identified primarily because of symptoms or abnormal screening X-rays and/or pulmonary function tests; that is, these were patients who had clinical CBD. Attachment A, which is on the exhibit to my left, summarizes these three conditions, how they are diagnosed, and the advances in medical and diagnostic technology that have made the detection of subclinical CBD and beryllium sensitization possible.
It is true that some workers and other exposed individuals did become seriously ill and even die from CBD as a result of very heavy exposures to beryllium prior to 1950. However, my experience with CBD patients who were exposed at Coors Porcelain Company during the 1960's and early 1970's and the Rocky Flats nuclear weapons plant beginning in the late 1950's has not been nearly so pessimistic. Indeed, although I have had patients die with CBD, I have not had any patients that clearly died of CBD. Further, it has been my experience that only a few patients will progressively deteriorate. This is particularly true of the beryllium sensitization and subclinical CBD patients. Rather, the vast majority of patients with clinical CBD will present with a wide range of physiologic impairment, some severe, however that remain stable. Finally, although there may be a modest initial improvement of function with steroid therapy, this is usually not maintained, and this is consistent with the findings of Dr. Gainsler of Boston back in 1959, which is the last actual study of the prognosis of clinical disease found in the literature. However, pulmonary function will generally remain stable, regardless of therapy.
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Having some form of CBD does not protect one from developing other lung and/or heart diseases which can cause or contribute to shortness of breath, other chest symptoms, and may ultimately even cause death. Thus, the evaluation of individual patients and workers must take into account these comorbid conditions.
There are especial difficulties in the diagnosis of beryllium sensitization. Despite the significant improvements in the LPT, it remains a biologic test, subject to all the potential vagaries of any biologic test. Potential problems include minor variations in testing protocol and varying viability of the lymphocytes, as well as comorbid conditions. These have resulted in the well-documented frequent discrepancies between laboratories and even between sequential tests in the same laboratory, which is summarized in the article by Deubner, et al, in Attachment B. Thus, it has generally been accepted that one must have two clearly positive LPTs to reliably diagnose beryllium sensitization.
Thank you, sir.
[The prepared statement of Dr. Repsher follows:]
PREPARED STATEMENT OF LAWRENCE REPSHER, M.D.
My name is Lawrence Repsher. I am a pulmonary physician, who has specialized in environmental and occupational lung disease for 26 years. My curriculum vitae has already been supplied. I have diagnosed and treated patients with chronic beryllium disease or CBD since 1974. I have followed the clinical course of two patients for over 30 years and several patients for more than 25 years. I have either seen in person or have reviewed extensive records of approximately 150 patients, who have some form of CBD. This experience has given me an unusual degree of insight with regard to the diagnosis, clinical course, prognosis, and potential response to therapy of patients with CBD. I will deal with these aspects of CBD in order during the rest of my presentation.
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It is important to distinguish three conditions: beryllium sensitization, subclinical CBD, and clinical CBD. Beryllium sensitization indicates that the patient has only a positive lymphocyte proliferation test (LPT), but no symptoms or evidence of functional impairment and no evidence of granulomas on lung biopsy. Subclinical CBD means that there are granulomas in addition to a positive LPT, but no symptoms or impairment. A diagnosis of clinical CBD requires positive LPT, granulomas on lung biopsy, and respiratory symptoms, along with evidence of pulmonary impairment.
There has been some suggestion that there has been a marked increase in the number of patients diagnosed with CBD since the early '90s. However, the vast majority of the recent cases since the early '90s have either been workers with beryllium sensitization or subclinical CBD and not true clinical CBD. There has probably been no actual increase in the number of true clinical CBD cases, because the apparent increase has consisted primarily of workers and other potentially exposed individuals, who have been identified through screening programs, utilizing the now reasonably sensitive and reasonably consistent LPT. Prior to this time patients with CBD were identified primarily because of symptoms or abnormal screening x-rays and/or pulmonary function tests; that is, only those patients with clinical CBD. Attachment A summarizes these three conditions, how they are diagnosed, and the advances in medical diagnostic technology that made the detection of subclinical CBD and beryllium sensitization possible.
It is true that some workers and other exposed individuals did become seriously ill and even die from CBD as a result of the very heavy exposures to beryllium prior to 1950. However, my experience with CBD patients, who were exposed at Coors Porcelain Co. during the '60s and early '70s and the Rocky Flats nuclear weapons plant beginning in the late '50s, has not been so pessimistic. Indeed, although I have had patients die with CBD, I have not had any patients die of CBD. Further, it has been my experience that only a few patients will progressively deteriorate. Rather, the vast majority will present with a wide range of physiologic impairment that remains stable. Finally, although there may be a modest initial improvement of function with steroid therapy, this is usually not maintained. However, pulmonary function will generally remain stable, regardless of therapy.
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Having some form of CBD does not protect one from developing other lung and/or heart diseases, which can cause or contribute to shortness of breath and other chest symptoms and may ultimately even cause death. Thus, the evaluation of individual patients must take into account these comorbid conditions.
There are especial difficulties in diagnosing beryllium sensitization. Despite the significant improvements in the LPT, it remains a biologic test, subject to all the potential vagaries of any biologic test. Potential problems include minor variations in testing protocol and varying viability of the lymphocytes, as well as possible comorbid conditions. These have resulted in the well documented frequent discrepancies between laboratories and even between sequential tests in the same laboratory, which is summarized in the article by Deubner, et al. in Attachment B. Thus, it has generally been accepted that one must have two clearly positive LPT's to reliably diagnose beryllium sensitization.
Mr. SMITH. Thank you, Dr. Repsher.
Mr. Elisburg?
STATEMENT OF DONALD ELISBURG, FORMER ASSISTANT SECRETARY OF LABOR FOR EMPLOYMENT STANDARDS
Mr. ELISBURG. Good morning, Mr. Chairman, members of the subcommittee. Thank you for the invitation to testify. My name is Donald Elisburg. I am an attorney in Washington, DC, practicing in the field of occupational safety and health and environmental law, on regulatory and policy issues. I am not here representing any of the parties involved in the transactions, although I have some familiarity with the issues. I was invited largely because of my prior experience in both dealing with Federal and State workers' compensation issues as well as having been in my former capacity at the Department of Labor administering the Federal Employees Compensation Act program.
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I am also currently a member of the Workers' Compensation Steering Committee for the National Academy of Social Insurance. I did have prior experience with some of these issues some 15 years ago with the Occupational Health Foundation, so I am familiar with the background of what you are dealing with here.
I would also like to request permission to submit a statement to the committee, a formal statement. I was invited just late yesterday and I do not have a formal written statement.
Mr. SMITH. Without objection, both your formal statement and others will be made a part of the record.
Mr. ELISBURG. There are three points I would like to cover, one very briefly. The first one is the case for doing something is going to be dramatically made by the witnesses this afternoon, has already been dramatically made by the record before you and by the witnesses this morning. I don't believe I need to dwell on that. I don't believe that is an issue.
The second point I would like to briefly touch on is why this doesn't fit with the workers' compensation systems of the many States, and that is because you are dealing—as has been presented in testimony across the board this morning, you are dealing with some 56 jurisdictions, more or less, 50 States, the Territories, the Commonwealth of Puerto Rico. Everyone has their own workers' compensation system. Everyone has their own definition of occupational disease. Everyone has a different definition of the burden of proof. Trying to deal with all of these many States on these kinds of issues has proven impossible for the many claimants who have tried. I think there is a consensus that it would not work for all of these reasons. The transaction costs would be very high—that includes legal fees—for trying to fight your way into the system.
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The Federal Government does not have leverage over the States with regard to their workers' compensation systems. There were efforts to do that some 30 years ago, in which I was involved. That did not work either. And so I believe you are left with a remedy here in trying to deal at the Federal level.
There are several other reasons for trying to deal at the Federal level. The records are going to be very difficult. The kind of case that is typically in a compensation system, even a disease case with long latency, is not going to be here. The exposure records aren't understood or they don't exist. The employment records, in fact, are going to be difficult. You are going to be dealing with contractors, subcontractors, sub-subcontractors. You are going to be dealing with 50 years' worth of employment issues. And that lends itself really toward the Federal solution because these are the Federal Government's weapons complex, when all is said and done, and there are some very special problems that go with that, including some issues that I suspect have not even been discussed such as dealing with the ongoing security of what is left of the weapons complex when you start to explore what happened to people and what were they working on. There are still products and processes from the Manhattan Project of the 1940's that are still classified information. So the Federal level is I think, where this thing starts to go.
The third point I wanted to make was why is the Department of Labor as opposed to the Department of Justice. Obviously, Congress can put a program anywhere, but you are going to be dealing here with complicated employment issues, complicated medical issues. They picked the agency at the Department of Labor because they have had 84 years to deal with this. They have been in business since 1916. They have the infrastructure. They have the background of dealing with complicated Federal problems. They have, for the workers' compensation system generally, a pretty good background of dealing with occupational exposure and occupational disease. They have worked their way through on the asbestos in the shipyards. They have worked their way through on many of these issues. So, you have the ability to deal with these complicated issues and an agency in place so you don't have these enormous start-up costs and reinventing the wheel that would go with trying to put it someplace else.
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That is the point that I can carry to you. In terms of my former colleagues at the Department of Labor, I would have to say when you give them this kind of program, you should give them the people and money to run it. But that is also understood.
With that, I would be glad to answer any questions that you might have.
[The prepared statement of Mr. Elisburg follows:]
PREPARED STATEMENT OF DONALD ELISBURG, FORMER ASSISTANT SECRETARY OF LABOR FOR EMPLOYMENT STANDARDS
Mr. Chairman and members of the Subcommittee:
Thank you for providing me with the invitation to testify on the legislation before the Committee to compensate current and former workers who have become ill due to their exposure while working at various sites in the Department of Energy Nuclear Weapons Complex.
My name is Donald Elisburg. I am an attorney practicing in the Washington, D.C. area and I reside in Potomac, Maryland. My practice is generally in the field of occupational and environmental safety and health matters, largely related to regulatory and public policy issues. I am here at the invitation of the Committee and I am not here on behalf of any of the parties to this legislation. I have been involved in many of the issues relating to disability and workers' compensation matters for more than 30 years. I was on the staff of the Senate Committee on Labor and Public Welfare during its consideration of a number of these Federal compensation programs. I was also Assistant Secretary of Labor for Employment Standards (1977–81) with responsibility for administration of the FECA and LHWCA compensation programs. A copy of my resume is attached to my testimony.
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I believe that there are three points to be made with respect to the pending legislation. First, the evidence before the Congress and the Administration is crystal clear that there are employees (current and former) who have become ill from exposure to radiation and toxic chemicals during their employment at these various facilities comprising the nuclear weapons complex of the Department of Energy. There is further evidence that in a significant number of instances, these workers have been unable to obtain workers' compensation payments at the state level for the illnesses relating to these exposures. In my view, the question is not whether there have been such exposures, but how best to provide a compensation program.
The various legislative recommendations before this Committee provide for programs to compensate these workers. Each of these proposals have different components, but all of them attempt to deal with the fact that these workers have potential claims arising from their work at these facilities.
The second point I would like to make is that the current system of state-based workers' compensation systems makes it virtually impossible to provide a program at the state level. If it is to be rational and fair, any proposed compensation program must be administered at the federal level.
There are several reasons for this observation. The most significant reason is that in the United States there are more than 56 separate compensation programs. Each state has its own workers' compensation program as does each territory and the Commonwealth of Puerto Rico. Additionally, the federal government administers the Longshore & Harborworkers' Compensation Act which covers employees of private employers not otherwised covered under state laws, and the Federal Employees' Compensation Act which covers federal workers. There are also separate compensation statutes for railroad workers and for seamen.
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The issues surrounding the exposure of these workers at the nuclear weapons complex deal with complicated matters of exposure, causation, records, evidence and many other legal and factual issues. All the reasons why these workers could not get their claims adequately considered at the state level over these last decades are still present. The federal government would have significant difficulty in today's political climate in mandating that these workers be compensated under the state systems. There have been proposals to have federal standards for state workers' compensation systems for many years, but they have been uniformly unsuccessful.
There are also very significant issues of causation and employment relationships that could result in decisions of uneven quality based on very different interpretations of law and policy. The workers in question are located throughout the United States and possibly now in other countries.
There are factual issues, security issues and serious issues of record keeping involved in these potential claims. There also will be a wide variation in the medical monitoring required for many of these workers. In short, attempting to operate such a system at the state level would be costly, create a significant problem with the potential lack of uniformity of the decision process, and would in all likelihood involve very extensive transaction costs such as legal fees.
The third point I would like to address is where in the federal system a federally administered program should reside. There are proposals to locate such a system in the Department of Labor which deals which administers the Federal Employees Compensation Act Program or the Department of Justice which is where the current program for compensating the ''downwinders'' is located.
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Obviously Congress has a choice in the placement of this proposed compensation program. The major difference between the proposed locations is one of infrastructure and experience. In the case of the Department of Labor, there is an existing infrastructure to deal with the issues of claims management, coverage, medical evaluations, medical case management, employment records and a host of similar data. The Department of Labor's FECA program has been processing claims from Federal employees for 84 years. There is the experienced workforce to evaluate initial claims and an expertise in managing ongoing medical programs. Developing a comparable program at the Department of Justice will require a substantial and costly lead time to build the infrastructure and develop the claims and medical case management expertise required by these claims.
These potential claimants have been waiting for Congress to recognize their plight for many years. It would be most prudent to utilize those agencies and existing systems that are in place and could be adapted to this new compensation program in the most expedient fashion. That would argue for the Department of Labor as the manager of the program that you are considering. Other options will be more costly and time consuming to develop.
I will be pleased to answer any questions that you may have.
Mr. SMITH. I do have some questions, and if you would, may I ask you to give me very brief answers just so we can get through these in the next few minutes.
Ms. Ledwidge, I would like to reiterate the point I believe you made but also ask you a question. I think the point of your testimony was that the Government knew a lot more than it said it did or led others to believe that it did about the dangers of this exposure of the various toxic materials to workers back in the 1950's and 1960's and maybe even in the 1940's. My question is this: We didn't know as much then as we know today. Do you think that there was a deliberate effort by the Government to mislead the workers?
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Ms. LEDWIDGE. Based on the data that we have seen, yes.
Mr. SMITH. Based upon the current knowledge back then in the 1950's and 1960's, did the Government withhold information that they had that was relevant?
Ms. LEDWIDGE. Yes, we found evidence of that.
Mr. SMITH. Okay. Well, that was a good brief answer. Thank you.
Ms. LEDWIDGE. And I can provide you documents even today.
Mr. SMITH. We will take anything that you want to provide. That would be great.
Dr. Markowitz, why were such poor records kept for so many years of occupation exposure to dangerous substances in the nuclear arms plants?
Mr. MARKOWITZ. My impression from my review of this is that what was done was done because it was an administrative or managerial type of decision. It wasn't——
Mr. SMITH. Does that mean they didn't want to be bothered or they didn't want to take the time or what?
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Mr. MARKOWITZ. I don't think the impetus really was medical surveillance or the health assessment of the workers. I think it was done as an administrative decision. It didn't focus necessarily on the most exposed. It didn't include people who were most exposed. It wasn't what we would do today, let me put it that way.
Mr. SMITH. Okay. Thank you, Dr. Markowitz.
Mr. Miller, some people say that there were national security reasons why these workers were not told about the dangers that they were exposed to. Were those national security arguments justified, in your opinion?
Mr. MILLER. Well, I think two things: One, Mr. Guttman's testimony recites the history of why. Concerns about liability, concerns about embarrassment, concerns about demoralizing the workers, concerns that there will be demands for hazardous duty pay were the overriding concerns, for example, why workers were not tested or told about trans-uranic compounds at the three uranium enrichment plants. So my sense of this from reviewing an awful lot of documents is that very rarely was the need to know, which was the basic system, the security system, the answer.
Secondly—and I would offer this for the record as well—the Toledo Blade did a Pulitzer Prize-winning series called ''Deadly Alliance: How the Government and Industry Chose Weapons over Workers.'' This also documents that point.
Mr. SMITH. Mr. Miller, I think you have answered my question. I thank you. And you referenced Mr. Guttman's answer, which I was just going to ask him about, those three different reasons that the employees were given why they couldn't be told about the dangers. My question, Mr. Guttman, is: At how high a level in the Government were those decisions made not to tell the workers?
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Mr. GUTTMAN. This is the stunning thing. This is an important question. What we found is—first of all, to put the positive spin, the country won the Cold War. These people did great things, and there was a lot going on. But we also found that at the highest levels it appears that there was a simultaneous knowledge of what was right and what should be done, but that it wasn't done. And why that happened—and in the case of plutonium experiments, because we studied that in-depth, at the highest levels of the Atomic Energy Commission, there was a simultaneous awareness that you don't inject people with plutonium without telling them, and you sure as heck should tell them, but the recognition of, holy smokes, we did it so we shouldn't tell them because we are going to get sued. So it is a stunning testament. These weren't naive—your predecessors, our predecessors were extremely sophisticated, extremely principled, extremely moral. They knew what to do, but for some reason—if we were in their shoes, we might have done the same—they didn't do what they had to do and they knew they should do to tell people.
Mr. SMITH. Thank you, Mr. Guttman, for that response.
Let me say to all of you that your testimony has been most helpful. I am afraid I have to leave, but I am going to recognize the gentlewoman from Texas for her questions, and then recognize the gentleman from Utah, Mr. Cannon, for his questions, and ask Mr. Cannon when he finished his questions if he would recess the subcommittee until 1 o'clock when the last panel will be testifying.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, for your graciousness. I think everyone realizes that we are in between and in betwixt. And I appreciate the testimony of the witnesses here, but the line of questioning of Mr. Smith draws me to the inquiry and the very pointed inquiry, and gentlemen and lady, I would like a direct answer. Coverup or haplessness?
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The tragedy of this situation—and I appreciate where we are today—is that the American people deserve more. The American people deserve a resolution out of this hearing that speaks not only to addressing the needs of the existing victims, but also leads us to our resolution or our acting upon prospective tragedies such as this where the Government is engaged.
So, Mr. Miller, coverup or haplessness or inadvertence? And how do we resolve that?
Mr. MILLER. Well, I think both the Atomic Energy Commission, and its successor is the DOE, and its contractors faced a very simple question: Are we willing to risk lives or pay money? That was the boiled-down question for them. They were aware and conscious when they made these decisions.
Has there been a coverup? Frankly, nobody told us about all these memos until they get released either through litigation or congressional investigations or DOE oversight investigations recently. So from my perspective, people were put in harm's way without their knowledge and consent. Is that a coverup? It is certainly malice.
Ms. JACKSON LEE. Ms. Ledwidge, we thank you for your work. How do we solve this? And you might respond to my initial inquiry, but how do we move to the next step?
Ms. LEDWIDGE. I can't say what was in these people's heads, so I can't say coverup or—I don't know what the intent was. It is not clear from the documents. But I do know that based on the documents that we have seen, it seems that these workers were deliberately misled into thinking that they were in safe conditions when the conditions were not safe.
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Ms. JACKSON LEE. How do we——
Ms. LEDWIDGE. What should be done? We believe that the workers should be offered and given medical monitoring. We also believe that the workers who are showing identifiably radiogenic diseases should be given medical treatment.
Compensation, more difficult question. We haven't looked into this. We haven't studied it technically. We haven't developed a position on it, therefore, so we would defer to the other folks on this panel who have delved into that more deeply. And that is on the worker question.
There is also a community question which I addressed. That is more complicated.
Ms. JACKSON LEE. Can you just summarize that?
Ms. LEDWIDGE. In terms of the community exposures, we believe that a process needs to be created. The process should be outside of DOE, perhaps in the Health and Human Services Department, that would involve the community members in a process for—at least one of the critical questions is identifying the affected population. It is a critical question. It is a very difficult question.
In the Fernald lawsuit, as far as I know, they kind of drew a line of 5 miles around the plant to identify the affected population. At other sites it is going to be more difficult than that because you have releases into the river, so you have people downstream that were affected, probably more than 5 miles. So it should be done probably on a site-by-site basis.
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Ms. JACKSON LEE. Thank you.
Mr. Elisburg, is the need for continuing of care one of the contributing factors to go to the workmen's compensation system?
Mr. ELISBURG. Yes. The continuing care, continuing medical monitoring, and continuing medical treatment is certainly what pushes it toward that kind of a system.
Ms. JACKSON LEE. I note in the USA Today articles they cited 24 States, but in those States, several sites. Is it also warranted that because of the multitude of diversity, almost, and the different State systems, that we would be better able to assist victims through this system that we are offering?
Mr. ELISBURG. That is correct because it is not only where all of these facilities are all over, you know, aside from the major facilities, all these others that have been disclosed, you have now workers, former workers that are probably in every State and Territory and halfway around the world.
Ms. JACKSON LEE. Thank you. My closing question, simply—and I thank Mr. Cannon—is to Dr. Repsher and Mr. Guttman. There was some suggestion, Dr. Repsher, at least, that there are CBD-induced illnesses. You may have it; you may not die from it. Science is imperfect. Can we at least conclude that there are people who have been injured by the impact of their exposure of which we now called CBD and that there is a necessity for compensation and relief?
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Mr. REPSHER. Yes, ma'am. People have been injured and have even died in the past from clinical CBD. But I think it is important to distinguish sensitization and subclinical CBD from clinical CBD where the patient is actually sick and may require treatment.
The first two really don't require treatment because they don't have any real disease, but they probably should have medical monitoring.
Ms. JACKSON LEE. Does anyone else want to comment as I close?
Mr. GUTTMAN. I just want to add one—this is another—the advisory committee, one of the stunning things that has come out in this recent set of revelations, we found that in 1948 people had died from beryllium around Cleveland, Ohio, plants. This was public knowledge, and so to see Dr. Repsher and others here testifying that 30 or 40 years later you still have the problem is to realize that this is not something that we just didn't know about.
Ms. JACKSON LEE. Thank you.
Mr. ROSENMAN. If I could just comment on the workers I have dealt with in Pennsylvania, given the current status of the compensation issue, they are not seeking medical care; they don't have access to medical care; and if we are diagnosing them, they don't have access to any insurance for ongoing medical care. So something needs to be done. They do need some type of medical follow-up.
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Ms. JACKSON LEE. Thank you very much for your testimony.
Mr. CANNON. [Presiding.] Thank you, Ms. Jackson Lee.
I would like to apologize to the panelists for not having been here earlier. I was actually testifying before another committee and I have another ongoing hearing now, but this matter is, in fact, very important to me. I noticed that you had my friends Mark Udall and Tom Udall who testified earlier. Tom was the sponsor of the RECA, the Radiation Exposure Compensation Act, which I actually managed on the floor. And Tom and I have another thing in common which is actually interesting to what I think you were saying, Mr. Guttman, and that is that his father was the lawyer who brought the first downwind cases, and I worked for him about a quarter of a century ago and read, incredulous, the debate between Edward Teller and the generals about whether or not we should just tell people to stay indoors. If you just stay indoors, you will avoid this.
I was raised in Utah, and my father would go out, and he thought it was sort of a patriotic duty to watch the bombs go off. And we told people when we were going to do it, and he would go down to southern Utah and watch these things. He ultimately died of leukemia and prostate cancer. So I am very sympathetic with the idea that in the process of this Cold War—which we won and we need to recall that—we did things which we now have the luxury and the money to reconsider. And as we do that, we need to be thoughtful about the process so we actually solve the problems and do not create more.
There has been a lot of media coverage on chronic beryllium disease, and this has undoubtedly been an impetus for legislation such as we are considering today; furthermore, the linkage between beryllium manufacturing and CBD is better defined medically than that between the radiation and cancer.
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If you take this media coverage at face value, you get the impression that there are a large number of people suffering from the clinical effects of CBD. However, as I read and listened to the testimony today—and I don't wish to minimize the seriousness of CBD—it appears to refute much of the writings in the media. I have the impression that with the modern diagnostic tools which the medical profession has developed over the last 10 or 15 years, that we are finding more people affected by beryllium manufacturing, but most of them do not exhibit serious physical impairment. Therefore, to put this disease in the proper perspective, I would like to ask a couple of questions from the experts on our panel.
Dr. Repsher, in your testimony you carefully differentiate between beryllium sensitivity and chronic beryllium disease. It is my understanding that, in the case of beryllium sensitivity, the patient displays a reaction of blood cells to beryllium but shows no other symptoms or medical changes whatsoever.
Is my understanding correct on that?
Mr. REPSHER. Yes, sir, it is.
Mr. CANNON. Dr. Repsher, again, in your testimony you differentiate between subclinical and clinical CBD. As I understand the situation, an individual diagnosed with subclinical CBD does not currently exhibit clinical impairment and may never do so. Furthermore, my impression is that there are many more cases of subclinical than clinical disease. Is that correct?
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Mr. REPSHER. Maybe not in total, but of the new cases that are being diagnosed in the last 10 years, that is true. The subclinical disease predominates quite a bit over the clinical beryllium disease.
Mr. CANNON. Dr. Rosenman, you stated that it has been estimated that approximately 10 percent of individuals each year with sensitization will develop scarring in their lungs and, therefore, chronic beryllium disease. Could you give us a bit of your factual basis and understanding, help us understand the factual basis for that estimate
Mr. ROSENMAN. These are individuals that Dr. Lee Newman out in Colorado have been following who he has identified with sensitization from Rocky Flats, and then following them up over the years, seeing how many of them develop scarring and lung disease.
Also, if I could just address your issue of how many people get beryllium disease from exposure to beryllium, in the Hazleton facility we are running 7 percent have chronic beryllium disease; overall, between Hazleton and Reading, 5 percent.
I take a little exception to this definition of subclinical versus clinical. I mean, people have chronic beryllium disease, and they have different degrees of severity, and they all need close medical follow-up. And, really, if you look in the literature, you see chronic beryllium disease. You don't see the term ''subclinical,'' and I would, you know, take exception to categorizing some people that way.
Mr. CANNON. Certainly you will have degrees. My sense is that the identification of subclinical is something that has developed from recent advances. Maybe, Dr. Repsher, you could respond to that. Do we know more about it now and, therefore, we are able to create grades of severity?
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Mr. REPSHER. Well, the reason that there is not much in the literature about subclinical pulmonary disease, which is a concept that Dr. Lee Newman does accept, is that we couldn't diagnose subclinical pulmonary disease until we had the LPT test, because previous to that, all we could diagnose were people who had objective evidence of illness, that is, symptoms and either radiographic and/or pulmonary function impairment. So you are exactly right.
Mr. CANNON. Dr. Repsher, when was the LPT test developed?
Mr. REPSHER. Well, it was actually developed by Dr. Deodhar in the mid-1970's at the Cleveland Clinic, but it was not a reliable test back then. And it wasn't until Dr. Newman and Dr. Saltini and others in the mid-1980's began working on the test with more modern immunologic methods, and it was about 1988 when we had—at least in the Denver area with Dr. Newman, we had a reasonably reliable test. It is far from perfect, but it is reasonably reliable and specific since the late 1980's.
Mr. CANNON. And is that essentially the same test that we are using today, or has it been improved over time?
Mr. REPSHER. Well, it has been more standardized. It is not 100 percent standardized, but as a result of a conference here in Washington several years ago, all the five major labs that are doing the test have agreed to essentially do it the same way. There still may be some minor differences in the way they interpret it, but it is a much better standardized test now.
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Mr. CANNON. Great. Thank you.
Dr. Rosenman, in what percentage of cases has scarring developed into permanent pulmonary impairment in your experience?
Mr. ROSENMAN. Well, we have 5 percent of our population that has chronic beryllium disease. I don't have the actual numbers in front of me. The majority of them have some degree of impairment manifested by decreased breathing function on a pulmonary function test and manifested by symptoms where they are limited by their activity.
We have one person who had lung transplants and died from the condition, but we do have some individuals with biopsy evidence and are relatively unsymptomatic.
Mr. CANNON. Help me understand that 5 percent because, I apologize, I missed your testimony. You may have done this. But 5 percent of the population means 5 percent of the people who have been exposed to beryllium?
Mr. ROSENMAN. There were 5,000 individuals who worked at these two facilities. Half of them have died. We have provided medical testing to 1,370 of them, so 5 percent of those 1,370 have been diagnosed with chronic beryllium disease.
Mr. CANNON. That is all the questions that I have, and so consistent with the chairman's request, we will recess until 1 p.m. today. Thank you.
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[Recess.]
Mr. SMITH. [Presiding.] The Subcommittee on Immigration and Claims will reconvene, and we welcome this afternoon our last panel, which is comprised of a group of very special individuals. And let me say to you all, as I think you know, that you represent today not only yourselves but literally thousands of others who have been directly and adversely impacted themselves or who have family members who have been directly and adversely impacted. So we especially appreciate what you are about to tell us today. We appreciate your coming forward and sharing with us your personal experiences. I know it can't be easy, but at the same time it is necessary and helpful.
So, with that, we will proceed to hear your testimony, and we will begin with Ann Orick of Knoxville, Tennessee.
STATEMENT OF ANN H. ORICK, KNOXVILLE, TN
Ms. ORICK. Good afternoon. I am a Southern woman so I talk slow, so don't hit that hammer until I get through talking here. [Laughter.]
Mr. SMITH. Ms. Orick, we do this by the word, so you will get more than 5 minutes.
Ms. ORICK. Thank you very much. I would just like to say that I represent my husband and myself along with the other workers not only at the K–25 site but at the facilities from across this country that I have watched become sick, some die, become disabled, to the point that we have lost everything that we ever worked for. We no longer own a house. We don't have a job. We don't have any wages. We have nothing. We don't have much medical insurance because they don't want to cover these things that they feel are occupational illnesses. So, therefore, we are just kind of left out in the cold to fend for ourselves, and we try to live on a measly disability check, which took us several years to get after we applied for it. No worker compensation for us has come through. As far as I know, no worker at the K–25 site has had any other compensation from the State okayed or even gone to court or anything else. So we are certainly without funds.
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DOE has publicly admitted they made us sick, and upon saying that, the Secretary took a big step, and what he has done, he has rebuilt a little bit of trust that has fallen apart with these workers over this country because we have seen what has happened. In a rush to create a bomb and to keep our country peaceful and secure—and that means you and everybody in this room, not just me. But we hurriedly put these things together, and we dropped that bomb on a nation, and we destroyed it and we injured some people. And I understand that we compensate them very well for their illnesses.
We haven't seen any compensation of any type for our illnesses. We haven't even really been recognized for the illnesses that we bear, which are numerous, and some are called mysterious. You can call them what you want. We are sick.
In February, the doctor gave me 3 to 6 months to live, so you are lucky that I am here today to talk to you. I couldn't die because this fight wasn't over, and I am not going to give up and die until this fight is finished. And this fight will be finished when you pass this bill that is right now on the plate. It is not perfect, but it is a good starting point and we have got to start somewhere.
Now, money should never become an issue, and this has really bothered me because I have heard that different Representatives have a problem with the money. And I can't understand that because when I picked up the Sunday paper a few days ago——
Mr. SMITH. Ms. Orick, let me interrupt you there for a second because I don't know that anybody on this committee has a problem with fairly compensating individuals for ill health as a result of their work for the Government. So I wouldn't make that assumption, if I can suggest that.
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Ms. ORICK. Okay. Very well, but we have heard that money has been a problem, that nobody wanted to see the money aspect, nobody wanted to rush into anything. Well, it is not rushing into anything when you are dying and sick. We are sick. We don't have many days for you to postpone these bills and come back next year and start all over again. We are sick. So money to us has been an issue because that is what has filtered down to us. Also, the rush into a compensation package that you didn't want to do has been an issue.
Also, we heard that behind the scenes there are a lot of issues between—you know, the fight between let's keep this going, let's put this out, let's postpone this until later. We don't have any laters. We have postponed now until many people are in the situation that I am in, and that is facing death. If you keep postponing it much longer, you are going to have to put some type of entitlement in there for funeral expenses because that is where a lot of us are going to be.
This is extremely unfair because we went to work every day with this country at heart, and believe me, I was proud to do my job as best I could do it. But I did not realize the things that I was going into every day. I was not offered a respirator. I was not offered a Tyvek suit. I was not offered the knowledge to know what those materials were that I was told to go in there and clean up. So I have become ill.
I have problems with my eyesight. I am losing my eyesight. I have three different problems with my eyes: peripheral vision, glaucoma, and then I have cataracts that have formed. I have had six breast tumors, and I always carried material up next to me because it was so heavy. This was the best way for me to carry it. So I have had six breast tumors. I didn't even go for a mammogram this year because I didn't want them to tell me I had a seventh, because I am dying, anyway, so I just skipped it.
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I don't believe I would have had six breast tumors. I have shortness of breath. I have a vocal cord dysfunction. My voice comes and go. You can tell that. And for somebody like me that grew up in church and sung all her life, that hurts because that is part of my life that has filtered away. It may not be worth anything to anybody, but to me it was a big part of my life. And it is gone.
I have problems with my stomach. I have already had one surgery to open up my stomach cavity because the hole closed up and my food couldn't pass through. Well, it has closed up again, and that is my problem now. In order to save me, if they can get the right surgeon to do it, they would have to remove my entire stomach cavity and most of my intestines, which would leave me virtually with some intestines stretched up to reach my esophagus and anything I drank or ate would go straight through my body, which I would become malnourished, anemic, become a free bleeder, couldn't go out and eat or couldn't do anything like that anymore. You have a dumping syndrome which causes cramps and extreme fainting spells.
So would I be better off to have that surgery and be in that shape on top of the other things that I am experiencing like the loss of eyesight and the vocal cord problem and the breathing problems? So I have some big decisions in front of me, and the surgery may not even work. So the doctors are surprised that I am even still here.
Now, this bill would not compensate me in any way, nor would it provide for any medical relief for me. But I look across this country, and I see other people that it would benefit. My husband would benefit. He has chronic beryllium disease. He worked at K–25 for 27 years. Not only does he have chronic beryllium disease, but he has also just recently been diagnosed by three doctors hired by DOE, and they have told him he has peripheral neuropathy, he has brain dysfunction, he has loss of eyesight, loss of hearing, chemical encephalopathy. He has all of these other things on top of having the chronic beryllium disease.
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So our plate has run over when it comes to suffering—suffering for this country. And it is not fair that we should even have to come here today to plead for a bill to pass. I don't understand why we are at a stalemate. I don't understand why we would have to beg when we so readily deserve some kind of help. And we are not asking for the moon. We are just asking for some help, some simple basic help.
And you can give us that.
Mr. SMITH. Thank you, Ms. Orick.
Ms. ORICK. You can give us that if you just will.
Mr. SMITH. We are hoping to do just that, and thank you for your testimony.
[The prepared statement of Ms. Orick follows:]
PREPARED STATEMENT OF ANN H. ORICK, KNOXVILLE, TN
SUMMARY
Ill workers at K–25 Site in Oak Ridge, TN., have been 5 years seeking help on health issues. Health problems consist of neurological, pulmonary, cardiac, gastrointestinal, as well as bone and muscular problems. Pain and suffering has overtaken our lives. Trust in the United States Government disintegrated until recently when Sec. Of Energy Bill Richardson assumed the Department and assigned a staff to handle the serious health issues. Sen. Fred Thompson and the Senate Committee on Governmental Affairs held a hearing in March of this year. A bill was unanimously voted on by the Senate to provide help to ill workers. It is not a perfect bill, but then, when can something so complicated as health issues for a secret work force, ever be perfect? It is, however, a good starting point, a good first step, and would help a lot of seriously ill people. Other illnesses, such as exposures to chemicals and toxic and hazardous wastes, could then be covered by a new bill, and should be top priority for Congressional leaders in their next session. To refuse the current bill is to kill the ill worker. Too much time has already passed. Serious illnesses and progressive diseases do not freeze in time—they simply proceed, usually at a rapid rate. Money should not be a concern. Congress constantly approves money for overseas projects from health to food to rebuilding war torn countries, but are hesitant to supply the health and food needs of America's silent hero's, the ill worker of the Government Nuclear Superfund Sites. Tests for such diseases as chronic beryllium disease cost thousands of dollars. Insurance doesn't want to pay these tests as they view these diseases as occupational. Due to disabilities, workers have lost their jobs which have resulted in lost wages, lost savings, and lost homes—all our life's work has gone up in a flash—a life that was dedicated to protecting this country, to guarantee the national defense and freedom that only the United States of America knows. Congress has a duty to do the right thing. This bill must be passed so that immediate help can be given to some people. A second bill must be drafted to cover those illnesses caused by other exposures such as chemicals, and toxic and hazardous wastes. This bill must also be passed rapidly so that other ill workers can be helped. Congress must take the focus off money, and place it on the people. A price cannot be placed on a human life, especially one that has been dedicated to serving this country so that all people can live free.
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STATEMENT
The Oak Ridge K–25 Site ill workers have been five (5) years this month in seeking help on health issues. These five years have been devastating as workers have become sicker, become inactive and disabled, resulting in lost jobs, lost wages, lost homes and lost lives. In seeking answers, we have discovered how our own American Government, in a race against time and other nations of the world to develop the atomic bomb, chose to keep secret the health hazards of the materials they were utilizing and the diseases and illnesses they were beginning to see their employees experience.
These past five years for us has been a nightmare of cruel and unusual punishment. We have been subjected to harassment, rude and harsh words and treatment by our own Government, but especially by the Government contractors who have managed the Oak Ridge Sites. Our trust in all parties totally dissolved as all attempts for a resolution failed before our eyes.
Five years, five long, hard years have passed and the pain and suffering have taken over the lives of the K–25 ill workers. We saw and heard from many who filled the shoes of top DOE officials and the office of Secretary of Energy, but none of these people ever followed through with or kept a promise until Bill Richardson took over the office as Energy Secretary, and we found him responding to our call with a personal visit to Oak Ridge. Within three months Assistant Secretary of Health Dr. David Michaels and staff were sent to Oak Ridge to continue discussions and hear each worker's personal plight. Talks lasted until the morning hours, and have sparked numerous follow-up meetings and discussions with Dr. Michaels and staff. Due to the fact that finally someone in the Government has been true to their word by honoring our requests for meetings while allowing us to be completely honest and outspoken on the issues, some trust has begin to be reformed by the ill workers. Most importantly, however, is the fact that DOE has publicly admitted to making workers sick and want the Government to right a serious wrong by compensating ill workers and assisting with medical help. In March of this year, the Senate Committee on Governmental Affairs, chaired by Senator Fred Thompson, held a hearing on the issues. Oak Ridge ill workers had pleaded for a hearing on the issues all five years, and we felt that finally we had reached the ending point. In a few short weeks, a bill was unanimously voted on by the Senate to give help to ill Government workers. Our spirits soared as we saw progress being made. It wasn't a perfect bill, but then, when can something so complicated as health issues for a secret work force, ever be perfect? It was to us a great starting place, and would mean help now for a lot of people. Other illnesses could be expanded upon and added or included in time as new legislation or amendments, and as information is made available. We can have immediate help for some, and help for others in the near future.
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But what we are hearing is quite disturbing . . . that the House of Representatives doesn't want this bill to be voted on, and this committee doesn't want to ''Rush'' into anything . . . they want to postpone the vote so they can take their time to look at all the options. Well, Gentlemen, I am here to tell you that after five years we don't feel like anything is being rushed into. To remove this bill from vote is equal to cutting the heart out of the Oak Ridge sick workers, and the trust that has been built up by the Secretary of Energy and his staff will self-destruct before your very eyes, as workers will never believe you have any intentions of looking further at any bill for aiding them. Five years in the life of a disabled worker is sufficient time in anybody's book for creating and executing a plan of action. Every day now lost is a day less in the life of America's silent hero's. Many of us do not have time left on this earth . . . we need your action now . . . this week . . . this very day.
We also hear about the money itself. Some think it's too much, some think we don't deserve anything at all, some say ''Let's make it harder for them to qualify''. We've already given our life . . . how much harder can you make it? And the money . . . what kind of price can you put on a human life? How can we say any amount is ''too much''? The proposed $200,000 would not cover over 2 or 3 visits to a major lung hospital like National Jewish in Denver. These tests needed for lung diseases are very expensive, and a victim of Chronic Beryllium Disease would find this money completely gone after only making these few visits . . . so if anything, it's not enough, but for the purpose of passage of a first bill with good intent and immediate help for some very sick workers, it is a good bill.
It's amazing how little thought we give to dollar amounts when it comes to other issues, such as the recent pay raise Congress voted for itself. No one questioned the money involved in the long run, which is forever, or even on a short term basis. Neither did anyone want to ''take a longer look at the proposal' or take time to ''be sure'' it was the correct bill to be voted on . . . everyone just went right ahead and voted for Congress to have a pay raise. Sick workers haven't had a pay raise in 5 years . . . remember, most lost their jobs and wages, and are now on disability and have been reduced to minimum incomes. No homes, No jobs, No wages, No health . . . NO HELP. Too much time, too little respect!
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Congress has a way of spending money and much of the time the American people are left confused as to why. We see our Congress over and over bailing out some nation overseas . . . for instance, just recently we read where the U.S. was funding a program on Aids in Africa. While this is an important issue, why did Congress rush to Africa, and leave the American worker out in the cold? Money didn't seem to be an issue here either . . . and there has been money squandered on such frivolous things as the man who has received Government grant money for years to work on the project ''How fast ketchup runs'' and what brand is slower. He has actually made his living on this money. Then there are the money spenders like rebuilding entire cities and countries after a war, whether we were involved in that war or not.
Then there is this recent article in a Sunday paper where House leaders were considering to follow up on a $1.3 Billion aid package designed to help Colombia's military combat the narcotics tract with $99.5 million more . . . a Representative saw a ''possible need'' for additional help when he ''accompanied President Clinton to Columbia on August 31st for the symbolic delivery of the first package. Republican Rep. Hastert ''went down there and saw a need'' . . . I believe if he would come to Oak Ridge he could also see a need, and it wouldn't have cost half so much as this bill and package or the trip to South America did!
I could go on and on . . . but I should not have to do so. Too much money . . . take more time . . . ? You have a bill before you . . . not a perfect bill, but a decent one. You have the opportunity to make a decision which will impact thousands of lives. You have the opportunity to actually do what you have been elected to do . . . serve the American people. I came here today to plead with you to go ahead immediately and pass this bill. You will have successfully made a difference in the lives of a disabled American worker, and you can go home at the end of the day and feel proud of what you have done, and that's a pride that only an American knows and feels about his Country and his fellow man. We felt that pride when we went to work each day to protect this country and helped to guarantee the national defense and freedom that only the United States of America knows, but our pride faded as we suffered the losses and tragedies we've suffered these past five years. Our hearts grew heavy with an overwhelming sadness as our nations leaders and elected officials turned their backs on us, and the illnesses overtook our lives. Lost and forgotten, left to die, not from an external war, but from an internal peace, a peace that we the workers, made for you.
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You have a duty to do the right thing. You hold the key to whether this nation's ill worker has a future. Please let this bill pass through Congress with all the support you can muster, then take your time off, and come back in full force and write a second bill which will encompass other areas of worker illness such as chemical exposures, and exposures to toxic hazardous wastes, so that other workers can be covered, and in that second bill, address such issues as these Superfund Sites, and do something about them. You can start with placing a padlock on each gate of these Sites until these health issues are resolved. By doing so you will protect other workers and innocent people from becoming sick as we have.
You must take the focus off the money and place it on the people. You cannot put a price on a human life, especially one that's been as dedicated as ours have been. You must remember that each passing day is a day closer to death for most of these workers. You must act now, we have no time to wait.
Gentlemen, without a major surgical intervention which may or may not work, I am going to die soon. My stomach cavity has closed and I have no opening for my food to pass through. Doctors are surprised that I have lived this long. I have already had one major surgery for this problem. Doctors say my stomach looks like someone who has received radiation treatments for cancer, all burned, scarred up and ruined. It is most likely I got this dose of radiation while working at the K–25 Superfund Site. I have had 6 breast tumors. My eyes are affected . . . I have peripheral vision loss, cataracts, and glaucoma. My balance is severely affected. I walk with a cane and wear a brace on my right foot which has dropped 2'' and causes me to fall. I have severe migraine headaches, and upon leaving the site in 1996 I had a severe rash (shown in these photographs) which took months to clear up. I have vocal chord dysfunction, shortness of breath, rapid heart rate, and other problems.
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My husband, who worked 27 years at the site, suffers from chronic beryllium disease as well as peripheral neuropathy and chemical neuropathy, which means he has damaged nerves from his brain into his right arm and leg from frontal/subcortial brain dysfunction and including some brain lesions, severe headaches, vocal chord dysfunction, and reactive airway disease. Many workers have these same illnesses. Oak Ridge, Tennessee deserves better. We burn hazardous waste and toxic materials on site in an incinerator from all other nuclear and superfund sites across this country, and it is admitted that no monitors are in existence to detect what is being emitted out of that stack.
We were the major site for the development of the bomb. That bomb was dropped and it destroyed a nation and its people. We have worked all these years in those same materials that was experimented with and used to make this bomb . . . literally tons of it. We have gotten sick.
Please do what is right. Please sign this bill that the Senate and the Secretary of Energy and his staff, and the White House, support, and have worked so hard to produce. It is a good bill. It is a good first step . . . a good starting point. We need relief for as many workers as we can get, and we need it now. You are the deciding factor. You hold the lives of many people in your hands. Can you honestly turn away and reject us now. Please act today. Please come back from your recess and begin to work on a bill that would include those harmed by the chemicals and toxic wastes. We deserve a chance to live as much as anyone does.
Thank you for your time and the opportunity to represent the ill workers. I have done my best to convince you. I pray I did not fail.
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Mr. SMITH. We will now go to Sam Ray of Lucasville, Ohio. Mr. Ray?
STATEMENT OF SAM RAY, LUCASVILLE, OH
Mr. RAY. Mr. Chairman, hopefully you can understand me. I want to thank you for the opportunity to be here and address the committee.
Mr. SMITH. I can hear you, Mr. Ray, but if you will put that microphone just a little bit closer to your mouth, I think everybody else will be able to hear you better, too.
Mr. RAY. Is this better?
Mr. SMITH. Yes, it is.
Mr. RAY. I am Sam Ray, a former uranium enrichment worker at the Porstmouth, Ohio, uranium enrichment plant. I was hired in 1954 and worked as a production operator and instrument mechanic. In May 1994, I was diagnosed with a rare type of bone cancer—chondrosarcoma. As a result, I had to have my larynx removed. At that point I had no option but to take a disability retirement. My understanding is that there are two things that can cause my type of cancer. One is Paget's disease, which I didn't have, and the other is radiation exposure, which I did have. It is well documented that radiation exposure can cause this type of cancer, and I have a letter with me today from my physician that states he believes my cancer was caused by exposure to radiation at the plant.
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I might add I have never smoked a day in my life. Smoker's cancers arises from the lining of the larynx. My type of cancer arises from the cartilage, the bony structure of the larynx.
But I am not here today to talk about myself. I am here to describe how with the benefit of Cold War secrecy the Government and its contractors made decisions that trade off our well-being for the conveniences of production, and I am here to ask for your help in passing legislation to help eliminate some of these wrongs.
Portsmouth operated a facility that converted highly enriched uranium—HEU—oxides into feed material from 1957 to 1978. A good friend of mine, Robert Elkins, worked in the oxide plant from 1962 to 1965. By 1965, he was placed on permanent work restriction due to high internal body counts of radiation. He had enriched uranium, technetium ,neptunium, potassium, and cesium in his body. When he retired in 1985, he was still on permanent restriction. In the 15 years since his retirement, the plant management has never contacted him to check on his health or suggest that he receive post-retirement monitoring.
But you might say the Government didn't entirely forget him. Mr. Elkins was contacted by an individual from Hanford, Washington, presumably the transuranium registry, who wanted to pay him $500 for his body so the Government could study what happened to the radiation in his body after he passed away. His wife would receive the $500 upon his death. They both declined the offer. It appears that the Government is more interested in what happens to Mr. Elkins after he is dead than what happens to him while he is still alive.
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This facility contaminated workers throughout its life and perhaps was the most dangerous operation at the plant. A Federal report states, ''the oxide conversion facility was not able to maintain adequate containment of the radioactive material during operating periods.''
''As such, the decision was made in 1977 time frame to shut down that facility pending modifications to provide adequate containment measures. These modifications were never funded, and the facility has not operated since.''
When I was hired in 1954, process operators were not allowed to wear coveralls or safety shoes. If clothing became contaminated, we took this contamination home with us on our clothing and shoes. As of the mid-1970's, our respirator protection consisted of World War II army assault masks. It was years later that we learned that these were not adequate to block radionucleides or toxic chemicals.
Due to the lack of a contamination control programs, certain buildings were becoming more contaminated. Goodyear Atomic issues a ''Health Physics Philosophy as a Guide for Housekeeping Problems in the Process Areas,'' which it distributed to all supervisors on August 27, 1962. While management assured workers there was no hazard at the plant, it warned supervisors: ''We don't expect or desire that the philosophy will be openly discussed with bargaining unit employees. Calculations of contamination indices should be handled by the General Foreman and kept as supervisional information in deciding the need for decontamination.''
Why were workers kept in the dark? What were the former workers exposed to unknowingly or perhaps even knowingly? We only know that they are having many health problems, such as cancers and respiratory problems, and in numbers far greater than would be expected.
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Currently, I am a retiree representative for the Worker Health Protection Program, which is funded under section 3162. This program gives former workers a one-time complete physical. When I talk to former workers and retirees, I find out how little they knew about what they were exposed to. I get calls from widows whose husbands have passed away with cancers. They want to know if their spouse's exposure in the workplace caused their illnesses.
In summary, I would like to offer several recommended actions for Congress.
Number one, we need a Federal worker compensation program for those nuclear workers because the State programs will not work for many of our occupational illnesses.
Number two, worker compensation legislation to be of real value must shift the burden of proof to the Government in determining causation whenever there is a doubt about completeness or accuracy of radiation exposure data. The Government's failure to properly monitor for radiation and toxic hazards eliminates the evidence with which to prove causation unfairly imposes an insurmountable burden of proof on a victim.
Number three, workers with cancers such as mine would not be eligible under the recent proposal being circulated in Congress. We need a list of diseases. We need to add larynx cancer as well. In saying that, my type of cancer would fall under the bone category. A study in New York has shown a strong relationship between larynx cancer and working at a nuclear facility. The Thompson-Bingaman amendment passed in the U.S. Senate included larynx cancer, but some seem to be wanting to drop this disease.
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Number four, workers at Portsmouth and Paducah face a unique problem with retiree health care benefits. Since USEC was privatized, it has assumed responsibility for the Lockheed Martin retiree health care benefits program. However, these benefits could be in jeopardy if USEC, as many predict, will fall into bankruptcy in a few years or be liquidated even sooner. Unlike pensions, retiree health care benefits are not guaranteed under ERISA. We need legislation to guarantee that these health care benefits will be delivered as intended.
I thank you very much.
[The prepared statement of Mr. Ray follows:]
PREPARED STATEMENT OF SAM RAY, LUCASVILLE, OH
INTRODUCTION
I am Sam Ray, a uranium enrichment worker formerly employed at the Portsmouth Gaseous Diffusion Plant in Portsmouth, Ohio. I reside at 128 Overlook Drive, Lucasville, OH.
I was hired at Portsmouth in 1954 when the Atomic Energy Commission's uranium enrichment plant first commenced operations. I worked as a production operator and instrument mechanic until May 1994 when I contracted a rare type of bone cancer—chondrosarcoma. As a result, I had to have my larynx removed. My understanding is that there are two things that can cause my type of cancer. One is Paget's Disease, which I didn't have, and the other is radiation, which I did have. I have never smoked a day in my life. It is well documented that certain uranium and transuranic compounds are bone seekers, and I encountered these in my job. I realize, however, that I am more fortunate than many of my former co-workers and friends, who have passed away from different types of cancers, respiratory problems, and other work related illnesses. After my surgery, I was forced to stop work and take a disability retirement.
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SUMMARY
DOE investigation reports show that workers have not been adequately protected from radiation exposure in many parts of the Portsmouth plant. This led to the ingestion of enriched uranium, fission products such as technetium-99, and transuranics such plutonium and neptunium. Exposure to heavy metals such as mercury, ingestion of highly corrosive chemicals such as uranium hexafluoride, and inhalation of asbestos and solvents have taken their toll, as well. Even though certain areas had very high levels, workers were not routinely tested for exposure to transuranic elements such as neptunium and plutonium until the 1990s. Radiation exposures were systematically undercounted, due to improper bioassay procedures, in vivo body counting techniques that could not detect transuranics, and failure to conduct extremity monitoring for 30 years. Even in 1990s, there is confirmed evidence of a worker having his radiation dose records ''zeroed out'' due to liability concerns, doses being arbitrarily assigned, and neutron doses never being monitored. DOE continues to be exempted from external regulation by agencies such as the Occupational Safety & Health Administration and the Nuclear Regulatory Commission. DOE has functioned as a self-regulating enterprise, and this lack of accountability facilitated a well documented pattern of placing production ahead of safety.
If and when a worker gets cancer that could be considered work related, few will bother to file state worker compensation claims because the burdens of proof are nearly insurmountable, and admitting that an illness is occupationally related could jeopardize health insurance coverage for the costs of treating the occupational disease. Medical benefit plans uniformly exclude coverage for occupational illnesses and injuries. For those of us who were made ill, or suffered an untimely death, legislation is needed to cover 100% of medical costs, lost income or a lump sum payment. Nuclear workers were placed in harms way to help win the Cold War. A federal remedy is needed for harms created by the federal government. I hope your Committee will see to it that we are not left out in the Cold and that legislation will be enacted this year. At a minimum, such legislation should mirror that adopted by the Senate in the Defense Authorization Act at HR 5189. This will provide a building block for more comprehensive coverage in the future.
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1. PORTSMOUTH FAILED TO PROVIDE WORKERS WITH ADEQUATE PROTECTION FROM RADIATION, HEAVY METALS & TOXIC CHEMICALS
In prosecuting the Nation's cold war mission, workers were kept in the dark about the hazards they faced. Information was provided based on a ''need to know'' basis—and production imperatives determined what you needed to know. Breach of secrecy, even where safety was at issue, could result in the loss of a security clearance. Even to this day, we don't know what we confronted. For example, when we started feeding irradiated recycled uranium back into the process system, we never knew we were introducing contaminants (e.g., technetium, plutonium, neptunium, etc.), nor were we adequately protected. Over 400 releases of uranium process gases or fluorine have been documented and many more went undocumented.
A. The Portsmouth Oxide Conversion Plant (705–e) Caused Massive Internal Radiation Doses
The Oxide conversion facility, which operated from 1957–1978, converted highly enriched uranium (HEU) oxides into feed material. This was considered one of the most hazardous operations at Portsmouth. Unacceptably high levels of radiation exposures were documented when the Oak Ridge Operations Office made one of its infrequent inspections to this plant, including high airborne contamination in the work areas, employees allowed to eat in the contaminated cold trap room, lack of respirator protection and increasing radiation lung burdens for chemical operators. A DOE reports notes:
''The operating contractor was aware of safety problems in X–705–E; however, production schedules were viewed as more important.''
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Health physics concerns prompted the contractor to install gloveboxes in 1967 to isolate workers from ingesting the fine uranium oxide powders, however, even these glove boxes failed to protect workers adequately, as the gloves deteriorated from exposure to corrosive fluorides. Airborne uranium contamination problems continued caused by the ''burn through'' of the fluorination tower, leaks from cold traps and product withdrawal and breaches into the system. Two workers were put on permanent work restriction due to ingestion of insoluble forms of uranium and had measured lung burdens over 50% of the allowable limits many years later.
A good friend of mine—Robert Elkins—worked in the X705–E oxide plant from 1962–65. By 1965 he was placed on permanent work restriction due to high internal body counts of radiation. He had enriched uranium, technetium-99, neptunium-237, potassium and cesium in his body. When he retired in 1985 he was still on permanent restriction. In the 15 years since his retirement, the plant management has never contacted him to check on his health or suggest that he be monitored after retirement.
However, the government didn't ignore Mr. Elkins. He was contacted by an individual from Hanford (presumably the transuranium registry) who wanted to pay him $500 for his cadaver so the government could study what happened to the radiation in his body after he passed away. He wife was also offered $500. They both declined the offer. It appears that the government is more interested in what happens to Mr. Elkins after he is dead than what happens to him while he is still alive.
Mr. Elkins' over exposures to radiation were not the exception, they were the rule. A 1985 DOE report states:
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''the oxide conversion facility was not able to maintain adequate containment of the radioactive materials during operating periods.''
''As such, the decision was made in the 1977 time frame to shut down that facility pending modifications to provide adequate containment measures. These modifications were never funded, and the facility has not operated since.''
In vivo body counts (an insensitive method of measuring the amounts of radiation in the lung) taken after 1965 found eight employees with radiation counts above DOE's 15 rem lung standard and two other employees had more than 7.5 rem (50% of the maximum permissible body burden). Since 1972, another 7 were found with more than 7.5 rem. Of the 17 employees listed above, 11 had worked in the oxide conversion facility, underscoring the point that workers in the oxide conversion facility were subjected to intolerable, if not barbaric working conditions.
B. Neutron Doses Were Not Measured Between 1954 and 1992
The Portsmouth plant's radiation dosimetry programs were woefully inadequate. NIOSH discovered that between 1954 and 1992 the site never measured for neutron exposures. Worker dose records, consequently, do not exist for neutrons. ''Slow cooker'' effects from the concentration of uranium deposits in the cascade, as well as in uranium storage and feed operations results in chronic low level neutron exposures. Workers who were called in to clean-out ''freeze ups'' of uranium inside of the cascade would be particularly at risk. When high dose readings were found on badges, they were routinely determined to be equipment failures and summarily discarded.
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C. Workers Ingested Technetium-99
Technetium-99 (Tc-99), a fission product, was introduced into the cascades beginning in 1955 from recycled uranium reactor tails, most which had been first processed at Paducah. Worker urine dose records from CY 1976, 1977 and 1978 indicate that 27% of the chemical operators at Portsmouth tested positive for Tc-99 (66% tested positive for uranium). In vivo lung monitoring established that 2 of the 45 maintenance mechanics had positive confirmed doses of Tc-99 to the lungs. Curiously, 563 mechanics were tested for uranium over a three year period, but only 45 were tested for Tc-99 or neptunium-237. Depending on whether the Tc-99 was in a vapor or solid form, special personal protective equipment (such as supplied air respirators) was required, but not provided until the early 1980s. One pregnant worker had a calculated dose 800 millirem to the fetal thyroid of her 10–11 week old fetus, providing further evidence of inadequate worker protection. Although workers were likely exposed to Tc-99, a beta emitter, beginning in 1955, DOE has found that workers were not monitored until 1975. In 1979, a Tc-99 release in the convertor maintenance area caused the internal contamination of six workers as high as five times the plant restriction levels.
D. Exposures to Neptunium and Plutonium were not Monitored or Disclosed Until The 1990s
At the production level, we were never told about or tested for exposure to plutonium, neptunium or other transuranics until the 1990s, even though recycled reactor were fed into the Portsmouth cascade beginning in 1955, and the AEC knew that the reactor ''tails'' at Paducah contained neptunium in 1957. It is disturbing that workers were not tested until 40 years after plant operations commenced. DOE's own reports reveal that ''transuranics were a special problem in 1965, 1966, 1975 and 1976 when recycled foreign reactor feed in the form of uranyl nitrate was converted to oxide in the calciner.'' A 1979 analysis of two cascade deposits revealed relative high concentration of neptunium-237 (55 and 60 percent of total alpha activity), however, DOE notes that there was no change in procedure to protect workers. Management was basing its radiation protection program on worker exposure to uranium even though the specific radioactivity of neptunium is 2000 times higher than depleted uranium.
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E. Dose Records Have Been 'Zeroed' Out Over Liability Concerns
A Senate Government Affairs hearing held in March 2000 confirmed that management directed that a guard's radiation dose records be ''zeroed'' out after he had an uptake and was hospitalized, because of the concern that he would bring a worker comp claim. We have no idea if this was an isolated case or a regular management practice on the part of Lockheed; however a DOE report stated, ''an internal Lockheed martin Utility Services investigation concluded improprieties may have existed in the Plant's dosimetry program that resulted in the assignment of inaccurate exposures.''
F. Radiation Doses Were Arbitrarily ''Assigned'' (Instead of Being Counted), and Significant Radiation Doses were Never Counted
OSHA was called into Portsmouth after complaints filed by OCAW and the Guards union disputed the accuracy of radiation doses. OSHA has jurisdiction over USEC, the government corporation that took over enrichment operations in 1993. Doses were administratively ''assigned'' when the health physics staff had trouble reading dose badges. One practice involved pinning a dose badge to the wall and running a scanner over it and assigning this dose to any person whose dose badge didn't read out on a scanner. A settlement of this OSHA complaint resulted in a reconstruction of doses between 1993–1995. While management was generally conservative in assigning doses, at least 103 doses were undercounted. We have no idea how far back management was simply administratively ''assigning'' doses, instead of counting them.
Goodyear Atomic failed to perform any extremity monitoring for radiation exposure until the 1980s, even though operators handled valves with beta emissions as high as 1 rad/hour and feed production plant ash receiver areas had floor readings of 5/rad per hour beta. DOE's investigators found that we were not tested in a timely fashion for uptakes of uranium during the 1950's and 1960's and concluded that ''some uranium uptakes were likely not identified or properly investigated.'' Air sampling methods for radioactivity were also found deficient by DOE.
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G. Workers Were Overexposed to Mercury, Arsenic, Fluorine and Trichloroethylene
Between 1981 and 1990, decontamination workers in the 705 building were exposed to mercury at up to 175 times the OSHA threshold limit values, largely from open vats of solvents. A 1990 DOE investigation found ''workers were exposed at least once per shift, after sodium hydroxide was added tanks'' and that Martin Marietta's plant doctor trivialized the hazards of ingesting mercury.
Arsenic contaminated feed was fed into the Portsmouth cascades in the late 1980's. Arsenic, which is a known carcinogen, migrated towards copper instrument lines causing them to plug up. Air samples detected arsenic in excess of OSHA limits. In 1993 inorganic arsenic was discovered, and the union subsequently requested a health hazard evaluation over concern that there were inadequate controls.
Fluorine gases from the fluorine plant stack were frequent and resulted in numerous complaints from workers in the area, especially during temperature inversions, fog, rain or when the vented gases are forced to ground level.
Trichloroethylene (TCE) was used as a degreaser and chiller. A 1986 special survey found levels of TCE in excess of the OSHA permissible levels in a process building (X–326).
H. Respiratory Protection Depended on WWII-Era Gas Masks for Many Years, Contamination Was Widespread and Vented to the Atmosphere
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I worked at the Extended Range Product (ERP) station on and off for a number of years. On one occasion while connecting the production process into an empty cylinder, the copper tubing pigtail ruptured. Although I immediately valved off the system, the room was filled with a thick fog of uranium oxide gases. I donned an army assault mask for protection. After the all clear signal, management sent me to the hospital for urinalysis. Today, we know that you should wait for 3–4 hours to give the material time to get into your system before urinalysis. For that reason, my dose records from this accident is going to be suspect, at best.
Indeed, until the mid 1970's, our respirator protection consisted of World War II army assault masks. It was years later that we learned that these were not adequate to block radionuclides or toxic chemicals.
In the late 50's and early 60's, we had big layoffs. As a result, the preventative maintenance program went down hill, causing the equipment to not be properly maintained. Prior to this layoff, the lab handled all sampling equipment, and assured that there was <10 ppm uranium hexafluoride in the system—called a ''negative''—prior to it being opened up for maintenance work.
Due to cutbacks, operators had to take over this work of the lab technicians, however, we were required to use a new system for testing that consisted of pulling a sample through a tube of salicylic acid (white powder). If the powder didn't change color in three (3) minutes, then it was assumed the system was <10 ppm UF6. We now know this was never an approved method, and there was no research done on this approach. Consequently, we put maintenance workers in harm's way when we issued a hazardous work permit stating that system was safe to enter (<10 ppm UF6).
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Process gases were routinely vented to the atmosphere to obtain ''negatives'' to prepare the cascade cells for maintenance. Records show 23,000 lbs of uranium and 27 curies of technetium-99 were released to the atmosphere, and many more releases went unrecorded because vent emissions were not continuously recorded until the mid 1980s.
I. Workers Were Kept in The Dark on Contamination Controls
Early on, we were told that the buildings would be so clean, we could eat off the floors. In reality, some eating areas became so contaminated that management had to build designated lunch rooms that were surveyed on a regular basis and kept clear (1980's).
Due poor contamination control, certain buildings were becoming more contaminated. For example, leaks from the ERP station had spread contamination in the X–326 building. Compressors would malfunction and process gases (UF6) would leak to the atmosphere. On one occasion, it was so bad that it looked like a fog moving up the mile long building. When I working as an instrument mechanic, I had to work in areas that I knew or suspected were contaminated. I often felt we should have radiation surveys to see if the area was contaminated, but at the time it was a hassle to get your supervisor to request a survey. Today, the story is different.
We have had many small releases which were never reported, as well as documented large releases. Inside of the withdrawal room we had a major release. There were green ''icicles'' hanging in the room from crystalized uranium Hexafluoride. Management had declined to install safety measures to prevent this release.
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Goodyear Atomic issued a Health Physics Philosophy as a Guide for Housekeeping Problems in the Process Areas, which it distributed to all supervisors on August 27, 1962. While management assured workers there was no hazard at the uranium enrichment facility in Portsmouth, Ohio, it warned supervisors:
''We don't expect or desire that the philosophy will be openly discussed with bargaining unit employees. Calculations of contamination indices should be handled by the General Foreman and kept as supervisional information in deciding the need for decontamination.''
Until the 1980's, there were few or no personal radiation monitors (frisking devices). This technology was available, but apparently for DOE the cost outweighed the risk. In the 90's, this all changed. In certain buildings and certain areas, you have to monitor clothing and shoes. Without a doubt, if we tried to operate today, as we did the first 25 to 30 years, NRC would have cited the plant for violations.
When I was hired in 1954, process operators were not allowed to wear coveralls or safety shoes. If clothing became contaminated, we took this contamination home with us on our clothing and shoes. To my knowledge, crafts (such as electricians, maintenance mechanics, etc) were allowed to wear coveralls and safety shoes. Sometime in the 60's, coveralls became optional for process operators like myself; however, it wasn't until the 90's when contamination controls were implemented that coveralls became mandatory. In reality, they should have always been mandatory.
Current workers benefit greatly by the present safeguards in place. Primarily, the problem lies in the first 35 years. What were the former workers exposed to unknowingly or may be knowingly? We know that they are having many health problems, such as cancers, respiratory problems, etc. and in numbers far greater than would be expected.
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2. INSPECTIONS WERE INFREQUENT UNDER DOE'S POLICY OF SELF REGULATION
A July 1980 Comptroller General report, Department of Energy's Safety and Health Program for Enrichment Plant Workers Is Not Adequately Implemented (EMD–80–78), found that DOE's Oak Ridge Office, which had oversight responsibility for health and safety, had not conducted a safety inspection at Portsmouth for 3 years and was not adequately responding to worker safety complaints. Unannounced safety inspections were supposed to occur annually at each plant, but even when they were inspected, the Oak Ridge Office ''does not, as part of an inspection or any other visit to an enrichment plant, monitor for radiological contamination.'' Oak Ridge explained the absence of inspections on a staff shortage, which the Comptroller General noted was attributable to Oak Ridge paying safety inspectors at a lower grade than elsewhere in the DOE complex.
3. HEALTH EFFECTS ARE ON THE MINDS OF MANY CURRENT AND FORMER WORKERS
Currently, I am a retiree representative for the Worker Health Protection Program. Funded by DOE, this program gives former workers a one-time complete physical, and lung cancer screening will be added this fall. When I talk to former workers and retirees, I find out how little they knew about what they were exposed to. I get calls from widows whose husbands have passed away with cancers. They want to know if their spouse's exposure in the workplace caused their illness.
In 1987 NIOSH reported that Portsmouth workers had experienced excess stomach cancer and hematopoietic cancers (including leukemia). In 1992, the study was updated, in part due to a request from Senator John Glenn. In 1996, the study summary was presented to the workforce. It indicated that there were no statistically significant elevations of any cancer deaths and the elevations of stomach and hematopoietic cancers identified in the 1987 study had diminished. These results were presented to the media in September 1999. However, the NIOSH officials releasing this information apparently chose to delete the page explaining the study's limitations Moreover these workers are protected by some other factors associated with their employment at this facility, such as lower alcohol and smoking rates as a consequence of their security clearance requires. This further complicates the interpretation of any harmful effects there might have been suffered.''. We obtained the deleted text from another source. One of the key uncertainties is the fact that the population is still relatively young and that the poor quality of exposure data makes it difficult to establish cause and effect relationships. What motivated this apparent censorship is beyond our knowledge. What is clear is that the study is far from conclusive.
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4. RECOMMENDED ACTIONS FOR CONGRESS
Congressmen Ed Whitfield and 23 others introduced HR 4398, a comprehensive bill that provides a federal worker compensation remedy for those exposed to radiation, beryllium and toxic chemicals at DOE nuclear facilities and suppliers. It stands out amongst other bills seeking compensation for radiation exposed workers because, unlike the Administration's bill (HR 3418), it expands coverage beyond the Paducah workforce and 55 workers in Oak Ridge to cover the entire DOE nuclear complex.
HR 5189, which was introduced by Representative Mark Udall, covers radiation, beryllium and silicosis through a program administered by the Department of Labor. It is funded as ''direct spending'' and replicates Title 35 to the FY 2001 Defense Authorization Act (S.2549) that was adopted by the Senate is before the House-Senate Conference Committee. While Title 35 is not as comprehensive as HR 4398, Title 35 is a very, very important building block that addresses some of the most glaring problems confronted by nuclear workers in the worker compensation system. Allow me to be clear: this provision should be included in the House-Senate Conference Report. Waiting another year to take action—as some have suggested—is not fair to those who are suffering today.
Any successful bill must shift the burden of proof to the government in determining causation where the exposure data is missing or of poor quality, because the failure to properly monitor for radiation and toxic hazards unfairly imposes an insurmountable burden of proof on a victim. HR 5189 and Title 35 create a special category of workers at Portsmouth, Paducah and Oak Ridge K–25 sites where the dose data cannot be reconstructed to establish proof. Some types of dose estimation to compensate for missing data can be useful, but the threshold for establishing ''proof'' must take account of the wide errors inherent in even the best dose estimates. Good science relies upon good data. As NIOSH noted in a 1993 report, that ''prior to 1981, the amount of quantitative industrial hygiene data is scant to non existent.''
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A single agency, such as the Labor Department's Office of Worker Compensation Programs, should administer a federal workers comp program. An ideal program provides one-stop shopping for addressing occupational illnesses regardless of whether it is beryllium, radiation, toxic chemicals or heavy metals. Shifting claims for toxic exposures to the states is ill-advised. HR 5189 and the Title 35 provide for a report to Congress by the GAO to evaluate whether state programs can be made to work in cooperation with an Office of Worker Advocacy with DOE. Again, we would prefer a comprehensive bill to be passed this year, but the approach provided in the Senate lays a foundation upon which Congress can build in the future.
The current medical screening program carried out by DOE under Section 3162 of the FY 93 Defense Authorization Act should go even further, with lifetime annual medical screening, and fully paid medical insurance for displaced or retired workers. A Medigap supplement should be fully funded by the government for nuclear workers.
Workers at Portsmouth and Paducah face a unique problem with retiree health care benefits. Since USEC was privatized, it has assumed responsibility for the Lockheed Martin retiree health care benefits program. However, these benefits could be in jeopardy if USEC, as many predict, will fall into bankruptcy or be liquidated in several years. Unlike pensions, retiree health care benefits are not guaranteed under ERISA. We need legislation to guarantee that the funds which the DOE has already transferred to USEC to cover the retire health care liability are placed in a safe harbor and these benefits will be delivered as intended.
SUMMARY
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On January 29th of this year, the New York Times reported: ''After decades of denial, the government is conceding that workers who helped make nuclear weapons . . . were exposed to radiation and chemicals that produced cancer and early death.'' In the article, Energy Secretary Bill Richardson said, ''In the past, the role of government was to take a hike, . . . and I think that was wrong.'' Nuclear workers have paid a price and deserve a fair remedy. The Senate has passed a provision that would spend a portion of the budget surplus to help those made ill in the service to our national security. We urge your Committee to help make that provision become law this year.
Mr. SMITH. Thank you, Mr. Ray.
We will go now to Clara Harding of Paducah, Kentucky.
STATEMENT OF CLARA HARDING, PADUCAH, KY
Ms. HARDING. I am Clara Harding. I am from Paducah, and I live in Paducah, Kentucky. I have lived there since my husband, Joe Harding, began working at the Union Carbide plant in 1952. He worked there for 18 and a half years. He was terminated because he was too ill to work. Then he had his pension, his Social Security, his health, his insurance taken from him by the company. I have pictures here to show you to make sure that I am not telling you——
Mr. SMITH. Good. And, Ms. Harding, if you would pull that microphone a little bit more close to your mouth.
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Ms. HARDING. Is that fine now?
Mr. SMITH. Yes. Thank you.
Ms. HARDING. Am I speaking loud enough?
Mr. SMITH. Now you are, yes.
Ms. HARDING. I want to thank you all for having me here today. I have longed for it for 20 years now to come to Washington, DC, and let people know what I have been through with.
He had a very bad time with his health from the age of 40. He had 35 percent of his stomach removed. He had sores all over his body. He was very anemic. He had fingernails growing out of the palms of his hands, soles of his feet, his elbows, his wrists. Finally he died in March 1980 of stomach cancer at age 58.
Fifty men were on this list before Joe died that had been having trouble. After he was terminated in 1971, he tried to tell the world he knew he was one of the only workers who would talk about how bad things were. He was so smart and knew so much; very few would listen. He even came to Washington in 1973 and talked to Congress and to the White House and to the Secretary of Energy and to the press. It turns out he was right and we should have believed.
After Joe died, I filed a workmen's comp case in Kentucky. DOE Carbide fought me for 15 years. DOE must have spent a million dollars to fight my claim worth $50,000. In 1997, I ended up getting $12,000 of workmen's comp. The judge said I should have filed my widow's claim 15 years before he died. I never heard of filing such a claim before somebody died. I didn't know he was going to die. The paperwork shocked us. It is taller than me, over 6,000 documents, five and a half feet of paper.
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Joe's bones were analyzed for this case. The doctors found that Joe's bone were full of uranium. We couldn't even afford to have them analyzed for all the other toxins. His Carbide record said he got less radiation in 18 years than he was allowed to get in 1 year, but the doctor said he had thousands of times more than he should have had. I think this legislation could help widows like me. Money can't replace what he has lost, but it would give us the assurance in our later years. I also strongly believe that sick workers who are still alive should get medical insurance and lost wages. I would hate to think they would be treated like Joe was treated, kicked out and left high and dry.
Mr. Chairman, I believe a gold medal of 1 year from Secretary Richardson which says—read this inscription. I would like to give you this medal to show the Department of Energy—''In appreciation for you personally, contributions, and reminding us of the human face of the men and women who contributed to the Nation's efforts and winning the Cold War.'' I would like to give this medal to you and ask you and your boss, Henry Hyde, to hold it for me until this legislation is passed. Then you can give it back. If you don't pass it, you can keep this medal and hang it on the wall to remind you that this bill was killed. You can call it the Joe Harding memorial legislation because it has been killed just like DOE killed my husband. I hope it doesn't come to that. Do you?
Thank you.
[The prepared statement of Ms. Harding follows:]
PREPARED STATEMENT OF CLARA HARDING, PADUCAH, KY
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Clara Harding is a resident of Paducah, KY, having moved there in 1951 as a young married woman after her husband, the late Joe T. Harding, got a job working for Union Carbide Nuclear Division in the Paducah Gaseous Diffusion Plant (PGDP). Mrs. Harding raised her two daughters, Martha and Clara Jo, working as an assistant to Dr. Curley, an oral surgeon to help make family ends meet when her husband's health deteriorated. She worked longer hours when he was abruptly terminated after 18 years of work by Carbide because of his illnesses. He was fired without insurance, disability or pension benefits.
For the next ten years, Mrs. Harding struggled to help her husband survive, watching his health decline rapidly, and finally losing him to stomach cancer in March, 1980. She has been a first-hand witness to Joe Harding's on-going struggle to bring to light the truth about the terrible conditions suffered by nuclear weapons workers throughout the country. She and their daughter, Martha Alls, carried on his fight after his death. Clara brought a state workers compensation case for widows benefits in 1983, only to have it dismissed 12 years later for failure to meet the statue of limitations. The order stated that for her to meet the filing deadline, under Kentucky law, she would have had to file her widows case five years before her husband died. In 1997, after fifteen years of legal battle, she settled her claim for a nuisance value of $12,000.
In September of 1999, Secretary of Energy Bill Richardson, came to Paducah and presented her with the Secretary's Gold Medal, saying that she had put a face on the Cold War. Clara Harding continues to live alone in Paducah on a fixed income, babysitting and doing volunteer work in the community. She enjoys needlepoint and watching C–SPAN. She attends Broadway Church of Christ in Paducah.
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SUMMARY
Clara Harding's testimony will cover her life with her late husband, Joe T. Harding, who worked at the Paducah Gaseous Diffusion Plant in Paducah, Kentucky, before dying in 1980 of what he and she allege were work-related illnesses. Because of his disabilities and his ''trouble-making'' in reporting health and safety problems at the plant, Joe Harding was terminated by Union Carbide in 1971. Clara Harding will testify about her husband's subsequent fight for his life and his tireless exposition of DOE's cover-ups right up until the day of his death, including trips to meet the Secretary of Energy Charles Duncan in 1979, as well as her own meeting with Secretary of Energy Richardson in 1999. Her testimony will also detail her struggle after Joe Harding's death with the Department of Energy and Union Carbide, regarding a workers compensation widows benefits case she filed in 1983, as well as her feelings about the current proposed nuclear workers compensation legislation now before this Subcommittee.
STATEMENT
Mr. Chairman and other honorable subcommittee members, I thank you for allowing me to speak today not only in memory of my husband, Joe Harding, but on behalf of all workers like him, and on behalf of all the surviving families who have experienced what we—my daughter, Martha, and I—have experienced. We need Congress to do the right thing, after putting it off for over forty years, and passing a law to compensate workers and their families who have been killed cell by cell, atom by atom, by work we were told was to further the national interest and protect all of our children from harm.
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My name is Clara Harding and I lived in Paducah, Kentucky. I have lived there ever since 1952 when my husband got a job as a chemical operator working for Union Carbide in the Paducah Gaseous Diffusion Plant. He did not know what was in store for him, and neither did I. He was so proud of getting a job like that, working for the government on such an important mission. He thought the work sounded big and fantastic. He was a very healthy, handsome man when he went to work for Carbide.
Within two years, Joe started having strange symptoms. He got sores on his legs which wouldn't heal, and which moved higher and higher on his body throughout his work years. He began to have stomach problems within a year of his starting work. He vomited a lot, earning the nickname ''Joe Erp'' and could eat very little. He first heard from a doctor in 1959 that his stomach problems were probably due to his work exposures to classified substances. You see, Joe could not tell me or his doctor what he was working with, although I guess everyone had a general idea of what ''nuclear'' meant. When Joe told his boss what the doctor had said, Joe said the boss called the doctor a ''quack.'' Joe told me later he was so brainwashed by Carbide, he believed it. The training he got insinuated that Carbide ''wrote the book'' on radiation, and all of the information which he could tell us was comforting and reassuring. Still, I know this doctor quietly left town within a year or so. As long as he lived, no doctor would ever go on the record to say what might have caused his conditions, although they would speak candidly to us that it was likely work-related.
Joe was a hard worker, and continued on at the plant in spite of his worsening stomach problems. In 1961, he had 95% of his stomach removed, along with all of his duodenum and two feet of small intestines. The surgeon found no ulcers, just what he called a ''strange rawness.'' His health continued to decline and he had to have expensive medicines and more and more treatment by specialists. Joe was also seeing what became an ever-growing list of coworkers begin dying of leukemia and cancers. Joe kept what he called a ''death list'' of these workers until he died (Attachment 1). We discovered this past year that the Company also kept a secret list of workers who had died of leukemia (Attachment 2).
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In the next ten years, Joe continued to have sores on his body, including lip sores which were called highly unusual and pre-cancerous. He had what we called ''fingernails'' growing out of his palms and joints, which he kept clipped himself. His blood tests began coming back abnormal and he began having lung problems (Attachment 3). He also began earning the reputation at work of a ''troublemaker'' because he found too many things wrong and tried to report them so the problems could be corrected. He took too much time to double check radiation readings, and would not sign false reports just to make the records look good. One story he told me after they fired him was when his supervisor asked him to do a radiation reading in a certain spot, using some sort of instrument. He did so, and came back to report the detected levels. His supervisor said, ''Well Joe, I think you must have read that wrong. Why don't you go back and do it again?'' Joe did, but got the same levels. When he reported again, the supervisor again told him to ''Try one more time.'' Joe understood finally what was being asked of him. Joe would not cooperate. He felt he was being pressured into quitting because he would try to do right, and noticed that all the hot, dirty work was thrown his way.
I also wonder whether he was treated this way because of the large amount of medical benefits Carbide had to pay out for him while he was working. It is really expensive to get medical care for serious illness, especially when the doctors and the company are pretending they don't know what is causing the problems. Of course, now I know that Carbide had all this money for workers benefits reimbursed to them by the Department of Energy.
In any event, Carbide terminated him when he was at his sickest, in early 1971. Joe had been warned by his doctor that this was coming, and the doctor told him that he considered Joe disabled from his knee alone, not to even mention all the other health problems he had. Joe had injured his knee in a fall from a truck in 1953, and it had gotten steadily worse, requiring surgeries and physical therapy through the years. The doctor told him in 1971 that he judged him to be totally 100% disabled if Carbide required Joe to do his regular work crawling around in all those pipes and valves, and sent a strongly worded letter to Carbide to that effect. A little later, the managers called Joe in to terminate him. Joe said if they would acknowledge his 100% disability he would take a medical retirement, and Carbide agreed. Joe would have had approximately $900 a month to live on, including his social security disability of about $200 a month, plus all medical insurance and life insurance premiums paid. All the papers were signed, and were sent to the corporate headquarters for what they told him was routine approval. After seven months, there was still no word from Carbide, and Joe had to do some very light work, sitting and fixing air conditioners, to help us make ends meet. Joe said that you can drop a man off in the middle of the Pacific Ocean and tell him that if he will be real still, some help will come in seven months. Even knowing that if he tries to swim, he won't get very far, and knowing that if he tries to swim, he won't get anything, nevertheless he will start swimming and swim until he dies. Joe had no choice but to swim. In another month or so, we heard from Carbide that they would not approve Joe's disability retirement, yet they would not hire him back! They just lied to him, pure and simple.
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This left him at age 50 with no job, with a crippled knee, no stomach, bad lungs, anemia, plus incurable skin conditions. No way to get a job, no way to make a living, no income from Carbide or from Social Security, no way to pay medical expenses, no insurance and uninsurable. That is a pretty bleak picture for a man whose health has gone from perfect to rotten in 18 1/2 years in a Carbide death trap. Then they throw him in the trash pile with nothing when the best of him is used up, and grab other young men to do the same way. I can only imagine somebody made some money off this practice. It could be that the reason this compensation bill seem so high is because the costs have been built up for quite a while, with the government appearing to have no costs for what they have done, and it has now come due.
After Joe was fired, I continued to work even more. Joe filed a workers compensation case to try to get some of his medical expenses covered. It took until May of 1973 to get the case to court. He and his attorney went into the courtroom and there was a plant attorney, a plant doctor, a Paducah attorney hired by Carbide, my last supervisor, and at least ten Carbide people from Oak Ridge, including attorneys, doctors, and officials—all together, fourteen. After a huddle with the attorneys, the Judge announced that Carbide needed more time to prepare. In the end, the Judge dismissed the case without prejudice to bring it again. After a few weeks, Joe's attorney withdrew, saying a law partner had died and he was covered up. Joe used to tell me that fighting Carbide and DOE was like fighting a tiger with a toothpick in its own den. It is true that no worker I knew of ever won their workers compensation case. We have heard of some being settled out of court, in exchange for a vow of silence. After Joe's case was dismissed, Paducah workers knew better than to even try to sue.
Joe became sicker and realized that he had to get this story out to the American public some how, some day. By this time, on top of all his other health problems, he had toe-nails growing under the arches of his feet, coming out of his ankle bones, and coming out of his knee caps. As I described earlier, he continued to have fingernails growing through his fingers and thumbs and coming out on the balls of his fingers where his fingerprints were. They also grew out of his knuckle joints, wrists, and elbows. He tried to keep them clipped and then bandaged them up, they were so sore. He was still keeping track of his coworkers who were dying of cancer, heart attack at a young age, and other diseases.
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He began to have tremors in 1978 which got progressively worse. More and more coworkers were dying of cancer. This was a relatively small group of workers who had all hired on together in 1952 when the plant first opened. We knew everyone. The children of these workers died too, just like our own youngest daughter died of a strange ulcerated stomach condition in 1976 at age 32, leaving us to raise her 8 year old son. There is not that much difference between the worker and the family when the worker comes home with plant dust all over him, and the family lives and plays near the plant.
Around the time of the Three-Mile Island incident, Joe decided that his story had to come out to the public. Joe was a very smart man, and had an amazing recall, as well as being very attentive to detail and documents. He kept every check he ever wrote, even every report card he ever got in school. He began gathering information and making calls. Joe began talking into a tape player in 1979. Before he died in March, 1980—in fact up to the night before he died—he recorded his story, talking well over 16 hours jam-packed with information. I would be happy to provide the Subcommittee with a copy of the transcript. A Swedish film crew was in the process of interviewing him on camera just before he died. They came to the house to continue the interview and found out Joe had died in the night.
He wanted to get in touch with the news media, newspapers, radio, TV and get this dirty story to all the American public because he believed that they would care about what had happened and be horrified by it, just like us. He told me, ''Let's spearhead this and demand justice and fair recompense for our suffering.'' He called on all decent, serious and thoughtful American citizens to put pressure on all our Senators and Representatives to keep the ball rolling and have some true investigations. He did not want these crimes to continue. Some people in Paducah thought he was a kook or anti-nuclear, just because he would dare to talk against Carbide and DOE. They were afraid because they knew Joe was telling the truth, but they also knew their security badges could be pulled and they would be out of a job if they ever spoke up.
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He made contact with the Department of Energy, which had just been created by President Jimmy Carter, and which had all the records of accidents and exposures at all the plants. He also contacted a family in Nashville, Tennessee, the Honickers, who helped us with getting more information from the government, and helped to introduce Joe to others who had been exposed working in the nuclear plants, or serving in the military and having to watch nuclear bombs explode or fly airplanes through the mushroom clouds, or exposed by just having been little kids playing in the fallout from bomb test, which looked like summer snow. Letters began to come in, from sick workers, from widows. Joe began writing Freedom of Information requests to the DOE in Oak Ridge. He wrote to the Governor of Kentucky (Attachment 4) and the Kentucky Department of Environment (Attachment 5) , warning them they better look into the Paducah plant and see what was going on. All these letters were written by hand and while Joe was in great pain. Yet, in a way, I feel that doing this kept him alive longer than he would have lived if he had just lain down and given up.
In one of the letters to DOE, he said:
''I feel sure the Lawmakers who enacted the Atomic Energy Act, with its provisions for security and secrecy, intended for the security rules to be used to safeguard our Atomic Energy knowledge, materials, methods, processes, equipment . . . from Foreign Countries and potential enemies, but they did not intend for the corporations operating the Atomic Energy Facilities, the AEC, Security, or the FBI to use these security provisions as a cloak behind which to hide personal work records, medical records, termination records, and working conditions, radiation hazards and exposures and any other plant records concerning employees.'' (Attachment 6)
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Twice in the fall of 1979, Joe and I went to Washington, despite his recurring pneumonia. We met with DOE officials in Washington, DC, at the Forrestal Building to discuss Joe's disclosures about the plant and his own health. We had help from other victims of DOE's operations and their advocates, along with some ethical DOE employees like Tina Hobson, Director of the Office of Consumer Affairs. Joe would always say, ''I only have one story, the truth, so I have no fear of telling it to everyone.'' Joe had hours of meetings with DOE officials, and met with Secretary Charles Duncan (Attachments 7, 8, and 9).
We had faith in the DOE's intentions at first. They discussed how to investigate what he was telling them about all the cancer deaths at the Paducah plant, and the shoddy safety and health practices which put the lives of workers and the public at risk. The investigation was to address both the adequacy of the radiation safety practices at the Paducah plant between 1952 and 1971, the years Joe worked there, and whether or not Joe's medical conditions were related to the radiation he was exposed to. This investigation went on with my cooperation after Joe died.
As far as I could tell, the investigation into the Plant was unimportant to them. If it had been important, they could have found the problems uncovered in 1999 back in 1979. It soon became clear to me that the most important thing for DOE was to ''prove'' that Joe was not harmed by radiation. DOE figured that Joe had been exposed, over his entire 18 years of work, to 4.95 rem of radiation. This is less than workers are allowed in one year of work. The ''proof'' was in his exposure records, which showed how year after year, he was exposed to nothing whatsoever at the Paducah plant.
I carried on this fight, with my toothpick, after Joe's death. My husband died on March 1, 1980, after having been diagnosed less than two months before with a massive inoperable cancer of the stomach (Attachment 10). Of his ninety pounds, at least a third of it must have been cancer. Joe was closed up and allowed to come home to die. His death certificate stated that he had died of heart failure.
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In 1983, my attorney, Robert Hager, filed a workers compensation case on my behalf. I allowed my husband's body to be exhumed so that some of his bones could be analyzed for uranium found at the Paducah plant. The analysis was done at a Canadian lab with no ties to DOE. The report on his bones done by a respected and independent physician (Attachment 11), stated that he had from 1700 to 34,000 times the expected concentration of uranium in human bones. The normal concentration results in an annual dose of 18 millirems, while the amount in my husband's bones gave him a dose of 30 rems to 600 rems per year from uranium alone. Now I know, after all the publicity, that he was also exposed to plutonium and neptunium, as well as many chemicals including highly toxic fluoride and chloride compounds. My husband tried to warn DOE and other workers about what was happening at that plant but no one listened. If they had, maybe not as many would be sick or dead now.
All through the twelve years the company fought my claim, it felt like they were mostly fighting a public relations battle. My husband had, by the time of his death, become well-known. If DOE had admitted the problem, they would have had to admit tremendous liability overall, as much as they have admitted this past year. Only twenty years ago, they just weren't ready to do that, I suppose. Instead of just letting Union Carbide fight the battle, which would have been bad enough, DOE got their own attorney, Mr. Jake Chavez from Albuquerque, on the case. He came to all the proceedings and signed his name to all the legal papers. I was told that Mr. Chavez specialized in fighting people who claimed to be hurt from DOE operations, and that he had a huge file of material out in Albuquerque which he used to fight all the claims. Normally the DOE lawyers don't reveal themselves but just stay in the background. This DOE attorney took over the case in my workers compensation case. It makes me wonder how much DOE spent to win this case. All I could have gotten was $50,000 if I had won everything. It makes sense when you know that DOE pays all the legal expenses and all losses of companies who work for them like Carbide (Attachment 12). I have been told that the amount of legal paperwork in my case, if we stacked it up, would be 5 feet high, taller than me. I have a CD-Rom of the complete record if the Subcommittee would like to see it.
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At the end of twelve years, the Kentucky Workers Compensation Board ruled that I filed my widow's claim too late. They said that I would have had to file my case five years before my husband died, five years before we knew he had cancer. My attorney appealed the decision, but the Kentucky Court of Appeals upheld it. My case finally settled in 1997 for $12,000 because the company and DOE thought it would be a nuisance to fight the appeal to the Kentucky Supreme Court. My lawyers did not take any of it, except $2000 to cover some of the expenses. So I ended up with $10,000 after 15 years of legal battles.
Please try to imagine yourself in the survivors' place, knowing our government is using every resource at its disposal to do everything that they can to deny you justice. As a matter of fact, while Congress and even the Secretary sincerely apologize, the DOE and Department of Justice lawyers continue to scorch the earth in denying us any kind of realistic, well-deserved relief.
The best bill you could write would include a way to add to the list of compensable diseases. I think it is clear by now, the government has done its medical studies in secret and have only communicated what will help them in a lawsuit. Physicians and medical researchers simply do not know all the ways their patients can become sick if we are exposed to these toxic materials.
Mr. Chairman, for a decade now, we have heard that the Cold War is over and that we won. How can we say we as a nation have won unless those wounded in the battle are given the respect they deserve?
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For his long battle for workers health, and twenty years after his death, my husband was finally called a Cold War Hero, after being called nearly every name in the book by those who fought him. Just last year, I was given a gold medal and a kiss on the cheek by the Clinton Administration for ''putting a human face on the Cold War'' as Secretary Richardson said. Mr. Chairman, I would gladly trade that gold medal for the best compensation bill this honorable Congress can create.
[NOTE: The attachments are not reprinted here but are on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
Mr. SMITH. Thank you, Mrs. Harding.
We will go now to Ray Slaughter of Las Vegas, Nevada. Mr. Slaughter?
STATEMENT OF RAY O. SLAUGHTER, LAS VEGAS, NV
Mr. SLAUGHTER. Thank you, Mr. Chairman and members of the subcommittee. My name is Ray Slaughter, and I have silicosis, a lung disease that affects my ability to breathe and in all likelihood will shorten my life. I am before you today as a representative of the men and women in the building trades from Las Vegas and here who have asked me to come and speak to you today in the hopes that the silicosis part of this bill is passed.
My understanding is that some of the Members of Congress don't believe silicosis should be a part of this bill.
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Mr. SMITH. Mr. Slaughter, I can't speak for other members of this committee, but I can say to you—and I don't know if you heard the testimony by the Government this morning, but they are as of now not considering silicosis to be one of the diseases or adverse health consequences of your exposure. So I think you are going to find support in Congress. We now need to persuade the administration.
Mr. SLAUGHTER. Well, I certainly hope so. I know that in my opinion silicosis is even worse than cancer and there is no known cure for silicosis and some cancers can be cured, but silicosis can't. I have generations of miners in my family, many of whom have died of silicosis, and I know that when I went to work at the test site in 1958 I didn't have silicosis because I passed a rigid physical before I could go to work there. And in 1998, a Government-funded study, they found that I did have silicosis, and I really didn't know it until then, although I suspected it because I really had to curtail the last 10 years of my life. I used to bowl, I used to golf, I used to hike, I used to fish, I used to hunt. I can't do any of those things anymore, haven't been able to do them for some time because of the—I am sure it is because of the silicosis.
I have a cousin who lives in Las Vegas named Dave Eddards who started at the same time I did at the Nevada test site, and he and I both found out at the same time that we had silicosis. That was in 1998. And both of us requested our medical records through the Bechtel Corporation, who is now the prime contractor at the Nevada test site, but at the time that we worked there, it was Reynolds Electric and Engineering Company, REECO, and they produced documents for Dave. I never saw these in my file. But I would like to briefly read what it says here on my cousin Dave's file. This is a report that was done in 1962, 38 years ago. It says that he had—the chest shows an essentially normal bony skeleton. The trachea is in the midline. The diaphragm is smooth and both catastratophrenic angles and clear. The heart shadows within normal limit. It is noted that there are some areas of increased density in the right and left of the heart shadow, respectively, which are suggestive of silicotic deposits. The upper lung fields are well aerated. Impression, normal chest with the exception of early silicosis.
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And here it says small calcified granuloma in the right apex, the chest is otherwise not remarkable.
In other words, in 1962, they knew he had silicosis, allowed him to work, and never told him. And now Dave, he is worse off than I am. He can't do anything, so to speak. He has had to curtail all his private activity.
But there were other things they did to us at the test site, you know, radiation, and I have another—of course, this is Dave's. I have one just like it. This is a radiation report. In 1958, the year we went to work there, we got zero rems, you know, for the year. In 1961, we got 4,140—he got 4,140. Mine is something like 3,800, 3,900. We got that in 3 days. And the way that happened was we were working in a tunnel. We were in a tunnel we had had a nuclear event in, and it was so hot they took miners from every other tunnel and every other area at the Nevada test site and worked them there for 3 days. And then you got your maximum dose.
Some of the miners, afraid of being laid off, would leave their badges outside so that they wouldn't contract that radiation, which I thought was extremely stupid. And I didn't, of course, but some of them did. They didn't want to get laid off. They were afraid if they got their maximum dose in a year there wouldn't be any use for them at the test site, so they would leave their badges out. Next year we got 1,290, 4,240, and then 00, it says. You know, but I don't know how much radiation we actually got from those events.
To give you an example, one night coming back from the tunnels, the Area 12 camp was here, the tunnels were up on the hill a mile or two away, various tunnels. They stopped the buses at 1 o'clock in the morning—well, after the midnight shift. We worked 7 days a week, 24 hours a day. They stopped the buses, pulled us off, took our clothes away from us, stripped us naked at 1 o'clock in the morning, cold. Had a portable shower set up, showered us, gave us some paper coveralls, took us down to the dairy at 12 and fed us beer. Drink all you can drink. You got to flush yourself out. That was never made known public, to my knowledge. Even the Mormon guys were drinking beer, you know, that is how scared they were.
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That has never been made public to my knowledge. But there are a couple, three of us still left that remember that. Most of them are dead, but there are a few left who can testify to that.
But this was the way it went. I ran a mucking machine. Before I went to work at the Nevada test site, I worked in production mines, metal mines, where profit was the motive. And I never had them do the things in the metal mine that they did to us at the test site. In the metal mines, when we would drill and we would blast, we would wet down. We would bar down. You know, we would bar it back to keep the thing safe. Then we would wet it down, and while we were mucking with the mucking machine, which I later became a mucking machine operators, that is when I finished at the test site, what I was doing was an operating engineer, running underground equipment. They would wet it down to keep the dust level down.
Well, at the Nevada test site, they didn't do that. You know, they would blast and they would run us back into the smoke and into the gas and into the—you know, let you wet a little bit, and then they would tell you to get out. Well, as soon as you take the top crust off, there is all the dust and you are throwing it in your face, you are throwing it in everybody's face, and that is the way they operated. That is why we got silicosis. Never got it in the metal mines. Got it in the Nevada test site. Didn't have it when I started there, but I had it when I left there.
In one area in particular that we worked, we stuck a shaft down about 1,200, 1,400 feet, and then we tunneled in for the event, place called Area 15. Now, when we would get off the skip at Area 15—and elevator, we called it skip—there was a quart jar of aspirin on the station, where we first got off like the landing out here where the elevators stop, like a area there. Every 8 hours they would have a quart jar of aspirin. A new shift would bring down their quart. We would take seven, eight aspirin in order to keep our heads from flying off. We would go back in, we would work maybe two or 3 hours, and we would have to go back to the station, take another seven or eight. By the end of the shift, that big aspirin jar would be empty. There would be many 30, 40 of us working, and by the end of that shift, that is the way we functioned.
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We did that for months until finally we got enough. The air was blue, the dust was everywhere. You couldn't breathe hardly. And we walked out. We had what we call a wildcat strike, and we stayed out for two or 3 days, and BOE and AEC and everybody come in and they cleaned it up. Took them a couple of days to clean it up. Could have done this 7 months before. Then maybe some of us would still be alive if we hadn't had to go through that. But that is the kind of stuff they did to us out there, and they did it continuously. And I left in '71. I said, well, I have had enough. You know, if I am going to die, I will go jump off a building. I am not going to let them kill me. So that is kind of why I got out of there.
But it seems to me, you know, when they are saying they had no knowledge of this, you know, they have knowledge. We have got reports in our files, like our hearing, three of us—well, there is a number of us filed with the State compensation to have our hearing addressed because all of us, our hearing has been impaired. And all of us found in our record that they knew about this, and they never told us this. So when we approached the State they said, ''Well, when did you find out about this?'' And we said, ''Well, '98 when we got the test done.'' They said, ''Well, you had 90 days to file a claim. If you don't file a claim within 90 days''—we didn't know this was part of the State law. We have been fighting this for about 2 years now.
And I have got a hearing in October, a trial, but every time you go before the State with a compensation request, it is like they treat you like you are a criminal with a gun, trying to get something for nothing. That is just kind of the way it is. ''Well, you know, you are old. That is why your hearing is bad.'' Well, my hearing was bad when I was young; wasn't bad when I left the test site. Been ringing in the ears since I left the test site. And they never give us any ear protection, nothing. And they said, ''Well, you should have known better. You should have got your own.'' Well, if you saved your ears, you got your own, because they sure didn't furnish it. And this is the way it is with our State compensation. It is like they have lawyers. Then they fight you every step of the way. They call you a liar every time you present something. And, you know, it is ridiculous.
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So we are kind of hoping that this compensation bill goes through and we get, you know—and we hope that silicosis is part of it, because we are sure all going to die younger.
[The prepared statement of Mr. Slaughter follows:]
PREPARED STATEMENT OF RAY O. SLAUGHTER, LAS VEGAS, NV
Mr. Chairman and members of the Subcommittee, my name is Ray Slaughter and I have silicosis. It is a lung disease that affects my ability to breathe normally and will, in all likelihood, substantially shorten my life. I am here before you today as a representative of all the men and women who have contracted silicosis as a result of their work at Department of Energy facilities during the Cold War.
I was diagnosed with this disease two years ago by doctors from the University of Boston and the University of San Francisco. It was caused by inhaling dust fibers while digging tunnels for the testing of nuclear weapons.
Between 1958 and 1971, I worked at the Nevada Test Site off and on for many years. The contractor for the United States Government at that facility was Reynolds Electric and Engineering Company (REECO).
I started as a miner and then worked as an operator of a mucking machine. Like most of my colleagues, I was attracted to the job at the Test Site by the prospect of stable employment, good income and job security. We were also attracted by the fact that our work was critical to our country's defense and the collective well-being of all or our citizens. We were proud to play a role in helping our country win the Cold War.
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To give you a little understanding of what work at the Test Site involved, let me give you a brief description. We bore tunnels under the earth where the Government conducted tests on—and detonated—nuclear devices. In Area 15, where I worked, we tunneled down 12 to 1400 feet, and then would tunnel horizontally from a ''station.'' The work involved drilling and blasting in the direction of the dig, barring the tunnel to prevent cave-ins or collapses, wetting the loose debris, and removing the muck.
Unlike other mining operations I have worked in, at the Test Site no respirator protection was provided. The dust was so thick, you couldn't see your hand in front of your face. Whether to save costs or water, the company seldom wet the debris down enough to keep dust levels tolerable. We were under tremendous pressure to hurry, and hurry even faster.
As soon as we got off the elevator going down into the mine, we would get an immediate headache caused by the dust, smoke and gases that we were breathing. They kept a quart jar of aspirin at the station and we would take 6 or 7 tablets at a time, several times each shift. The only way we could survive down there was by taking the aspirin. The quart jar was replaced on a daily basis.
After a test was conducted, we would go into our ''recovery'' dig. We would drive a tunnel into the area of the test and, on top of the usual exposure to dust, smoke and gases, we would accumulate radiation doses and work in hot conditions. The amount of exposure was so high that workers were only allowed to work a total of three days there for the entire year. After working the three days, we were then sent back to our regular work assignments. However, some workers were afraid of being laid off and would purposely remove their film badges to return and continue the work.
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One night coming back from working in the tunnels something happened. They never did tell us what happened if there was a radiation leak or not, but on the company bus ride back from the Test Site at Area 12, they made us all get off the bus and shower in the open air. They gave us beer to drink and told us it would hopefully wash out any radiation from our bodies. A lot of those guys are dead now.
We knew of the importance of this work but were never informed of the long-term risks to our own health. For some the risk might be cancer from radiation, for others it might be silicosis, or chronic beryllium disease, and for others still it might be a combination of two or more of these deadly illnesses. This much is sure—the quality and length of our lives has been irrevocably changed. For me, my activity level has been reduced significantly and I have to rest a lot. There's no known treatment for what I am going through except for using oxygen during the latter stages of the illness.
It is clear now, from records that have been discovered and released, that Reynolds Electric and Engineering Company clearly knew of the risks we faced. The company even knew that some workers had contracted diseases but remained silent about it. They chose instead to allow these workers to go back into the tunnels and be subject to further exposures.
I went to work for REECO at the Test Site about the same time as my cousin, David Eddards, and my best friend, Henry Peluaga. All three of us underwent periodic medical tests by physicians hired by and under the direction of REECO. It wasn't until we underwent the screening in 1998, by the doctors from Boston and San Francisco Universities, that we were given access to our medical records from those REECO tests. My cousin David discovered in 1998 that REECO knew that he had silicosis some thirty years ago but never told him about it. I have documentation of this here with me. Today, all three of us know we have the disease.
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I belong to a retiree group that meets each month for breakfast. There is hardly a month that goes by where we don't learn of another colleague who has been diagnosed with an illness we know is related to our work. You can tell when someone's illness is getting worse because they come to the breakfast wheeling an oxygen tank. There is hardly a month that goes by where we don't find that another of our group is in the hospital or has died.
I can't emphasize enough the immense frustration and despair felt by those of us who worked on these projects. Many of us, like myself, have to seek medical care from the Veterans Administration for our illnesses. Some try to get coverage under Medicare. In almost all cases there have been substantial costs that we, or our families, have borne. Some have come close to or have exhausted their life savings. Most of us have chosen not to file workers' compensation claims in Nevada because of direct experience with being denied with previous claims or being ignored when we tried. We all know of other workers who have been treated poorly by the state system.
The problems that I have described today are not new or unknown to you. I am here today because the Congress finally has a chance to reach out to help my brothers and sisters who toiled at great personal risk and sacrifice to make this world safer for all of us.
I congratulate Secretary Richardson and the Department of Energy for finally admitting the responsibility of the Federal Government to the workers who took these risks and made these sacrifices.
I congratulate the members of the Senate who have put together the legislation that addresses this problem—particularly my friends Harry Reid and Dick Bryan. I also thank Representatives Shelley Berkley and Jim Gibbons for their efforts to get this through the House.
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I hope this committee will step-up to the plate and support the Thompson-Bingaman Amendment.
Thank you.
Mr. SMITH. Mr. Slaughter, speaking of lawyers—and thank you for your testimony—but that does take us to our next witness, Pete Lopez of Amarillo, Texas, who has a tale to tell about lawyers and lawyer fees. Mr. Lopez?
STATEMENT OF PETE LOPEZ, AMARILLO, TX
Mr. LOPEZ. Mr. Chairman, thank you so much for letting me appear before you today.
My name is Pete Lopez. I am a production technician at Pantex Plant in Amarillo, Texas. I have worked at Pantex for 28 years. I have worked on at least ten weapon systems. One of those systems that I worked on, the majority of the parts were beryllium.
In January Pantex started testing the workers for beryllium. I was the first one there to test positive to be sensitized for beryllium. In February they told me that I had tested positive on my first test. In March they told me I had tested positive on all three tests. I am sensitized to beryllium. To this date they have tested 209 workers, and out of those 209 workers, 12 of us are sensitized to beryllium.
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When they first found out that I was sensitized to beryllium, they were shocked, as I was. They felt like nobody at Pantex would be in this position. They offered to send me to Denver for further testing under Dr. Newman. They told me to think about it because it was a surgery, to talk to my doctor and talk to my family. I did. Two weeks later I went back and told them that I had decided to go to Denver to get further testing. They told me there was no money to send me.
I asked Dr. Morton, who is the head of the Medical Department at Pantex, what this meant, that I was sensitized to beryllium. He told me that it meant that the beryllium was in my body, but that in his opinion, the beryllium had not started affecting my body yet. He said that I would most likely end up with the beryllium disease in my latter years. What are my latter years? I am 50-years-old. Dr. Morton gave me two options. He said I could go to the National Jewish Laboratory in Denver, Colorado under Dr. Newman if I would file a Workman's Comp. claim.
So I did. I went and filed for a Workman's Comp. claim. Without a hearing or without a meeting—this was in April of this year—in May of this year they denied my Workman's Comp. claim. These are the three reasons they denied my claim. They said, number one: ''The employee did not receive this disease, or we feel like he didn't receive this disease in the course of his employment at Pantex.'' Sir, Pantex is the only place I have ever been exposed to beryllium.
Number two: they said they were denying my claim because beryllium is an ordinary disease of life that the whole general public is exposed to. I feel like that is a lie. If that is true, why aren't the doctors in town—why don't they know about beryllium? Why don't they know about this disease if it is an ordinary disease of life?
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Number three: they said that the insurance carrier felt like they might have not been the carrier when I was exposed to beryllium. So one side I have my HMO insurance saying, ''We won't pay for any testing because that is an occupational disease'', and on the other side I have Workman's Comp. saying, ''We won't pay for the testing because that is an ordinary disease of life.'' You know, I have a big problem, and my family has a big problem.
When I told my wife, she was shocked, as were my sons. My wife felt like I was hiding something from her, that I wasn't telling her the whole story. But I was telling her everything I knew, everything they told me. They told me this was the start of the beryllium disease.
I feel like I have started drowning in a circle of lifeguards, and they saying, ''Hey, if you keep drowning, we are not going to save you.''
I am frustrated at all the dead ends and walls I have hit in trying to get something done for my situation. And it's not only me, it is all the other people at Pantex too.
I have served my country in Vietnam, and I am proud of it. And after seeing what happened to people that aren't free and living under communism, I was proud to go there and serve. And after seeing what happens to these people that aren't free, I was glad and proud to work at a place where weapons were made to keep this country free. Unfortunately, the weapons they had kept and helped to keep this country free, have put the workers in bondage. They are in bondage to illnesses, sicknesses and disease. I have seen documents where the government knew about the dangers of beryllium back in the '40's and the '50's. But you know what? All that information never did get down to the workers at Pantex. We were never protected against beryllium. We were never told about it. The protection for workers at Pantex for beryllium was zero. They knew the dangers, but they didn't tell us. Now I must pay the consequences of that job.
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In the coal mines they use canaries to find out if there was gas leaks. They would put canaries out there. And if the canary dropped dead, it would signal that there was a gas leak and the workers could get out. We, in the nuclear weapon industry, we are those canaries. We might not drop dead immediately, but somewhere, like the canaries, somewhere down the line, some of us must pay the same price those canaries paid.
I heard all kind of terms, medical terms this morning, but when you are the one told that you are sensitized to beryllium and this could very well develop into a disease, who cares what they call it? It starts with being sensitized to beryllium, and it ends with CBD. And I ask you, Mr. Chairman, that you all pass this bill to help not only me, but all the workers, all the workers at Pantex, all the workers at all the sites. It is not only about money. It is about our medical bills that are going to be super high. Please help us.
[The prepared statement of Mr. Lopez follows:]
PREPARED STATEMENT OF PETE LOPEZ, AMARILLO, TX
My name is Pete Lopez. I am fifty years old and have tested positive for ''beryllium sensitivity''. I have been employed by the Day Zimmermann/Mason & Hanger at the Department of Energy's Pantex Plant in Amarillo, Texas for approximately twenty eight years. The Pantex facility is responsible for the assembly and disassembly of nuclear weapons.
Due to the requirements set forth by the Department of Energy , 10 CFR Part 850, which mandates that contractors implement a chronic beryllium disease prevention program (CBDPP) and establish medical surveillance requirements to ensure early detection of disease, Mason & Hanger began testing workers for beryllium in January, 2000. I received initial testing in February, 2000 and received notification of a positive confirmatory beryllium lymphocyte proliferation test (Be–LPT) on March 2000. At that time the Pantex Medical Doctor recommended that I file a workers compensation claim in order to cover the costs of further testing. I filed a workers compensation claims, and without a hearing or any type of meeting, my claim was denied.
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My claim was filed in April of 2000 and I received a notice of refusal for the disputed claim on May 31, 2000. On this notice, the workers compensation carrier stated that payment was refused or disputed for the following reason:
Carrier is filing a formal denial that the employee has sustained an injury or occupational disease within the course and scope of employment or has sustained a work related injury or disease. Carrier further denies the occupational disease in that it is an ordinary disease of life, to which the general public is exposed. Also the carrier denies this claim based on the fact that it may not have been the carrier that carried the workers compensation insurance for this employer at the time of the last alleged injurious exposure.
I am unsure as to the current status of this claim. Four other Pantex employees have also filed and subsequently been denied workers compensation. To date, two hundred and nine employees have been tested for beryllium sensitivity, with twelve initial positive results and nine confirmed positive. I know that the Pantex Plant is the only place where I could have been exposed to beryllium. Beryllium levels have been found above the ''housekeeping levels'' in the plant. I am frustrated at all the dead-ends and walls I have hit in trying to get something done on this situation. And I know my frustration is shared by all of the others who have tested positive for beryllium at the Pantex Plant. Current scientific information concerning beryllium sensitivity indicates that approximately 10% of those who have a positive BeLPT test will develop chronic beryllium disease each year. The diagnosis of chronic beryllium disease could lead to a protracted, painful illness as the lungs gradually fail to exchange oxygen. During my tenure at Pantex, I have been a Production Technician for twenty two years. As a Production Technician I have responsibility for assembly/disassembly of numerous weapons programs. During the process, we work with various weapons components. Some are composed of beryllium metals while other components contain radioactive materials such as uranium, depleted uranium, thorium, plutonium, and tritium. The weapons components also consist of other hazardous/toxic materials such as lead, cadmium, chromium, mercury, silver, selenium, asbestos, 4,4'Methylenedianlline (MDA), and barium. Added to the list of materials used during assembly/disassembly, is the list of chemicals shown below:
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Acetone
Thinner
MEK
Dichlorodifluoromethane
Sylgard
Isopropyl Alcohol
Trichlcrotrifluoroethane
Lacquers
Xylene
Alodine
Freon
Trichloroethane
This list is not all inclusive. It is intended to give an estimation of the materials used to support weapons' work. Through my efforts as a Production Technician I have been, to a great extent, involved in the success of the Cold War. I served my country in Vietnam, and am proud of my service. After observing what can happen to people who are not free, I was proud and glad to work in a place where weapons were made to keep this country liberated. Now, my family and I must suffer the consequences of that job. The government knew the dangers of beryllium since the early fifties but never communicated that vital information to the workers. There was zero protection against this deadly dust.
Now I'm asking you to help all of us. I would ask of my government ''What are you going to do for me and my family?'' My illness is due to an exposure at our nation's only nuclear weapons assembly/disassembly plant.
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The Energy Employees Occupational Illness Compensation Act was passed by the United States Senate as part of the FY 2001 Defense Authorization Act (S. 2549). That legislation establishes a presumption of work relatedness for beryllium disease or beryllium sensitivity if beryllium were present in the DOE facility or by a vendor that supplied beryllium. Since I am defined as a ''covered beryllium employee'' under that law, I would be eligible for worker compensation to cover my costs of additional medical care, and if I were to lose my health, it would replace my wages or pay me a lump sum. My family is deeply concerned that I have been diagnosed with this beryllium condition, and we have no security knowing that this diagnosis will not be compensated by my employer's worker compensation policy.
In the closing weeks of Congress, I hope you will agree to pass the legislation in the House of Representatives that had been approved in the Senate so that people like myself are not left hitting dead-ends.
Mr. SMITH. Thank you, Mr. Lopez.
And let me thank you all now for your very compelling, moving and firsthand accounts of your encounters and your families' encounters with exposure to toxic materials that have obviously led to ill health, and in some cases, death.
It is important, I think, for you all to know, that I believe that there is broad-based support in Congress for compensating the victims and the workers who have been employed by the government and by their vendors, and I think that we should do that sooner rather than later, which of course, means hopefully by the end of this congressional session. So do know you have widespread support for that solution.
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You all have been so comprehensive in your answers and have answered most of my questions. Mr. Ray, I do have a couple more questions I would like to ask you on the basis of your prepared testimony, which we didn't get a chance to get into with your oral testimony, but I think they symbolize a lot of the problems that many of us have with the way the programs have been run in the past.
My first question is: you mentioned in your prepared testimony that the radiation dose records were zeroed out. When did that happen, and why do you think that happened?
Mr. RAY. That happened in the '90's. There was an individual that was working in an area, and he was exposed to something. And I believe the company—said it may have been something that would have registered on his dosimeter badge, when probably—now this is my opinion—that it was probably something that he ingested. They were in a process of doing conditioning work, using a conditioning gas, CLF–3, and that whatever he got into affected him internally, and he was in the hospital, had tremendous problems, and he is still having problems.
Now, his badge, the dosimeter badge became involved in it, but nothing—apparently, my opinion, they were trying to say that there was nothing in that area that could have caused his type of illness. And then his dosimeter badge came into issue, and then the union safety rep became involved in it, and that is when they came up with a zeroing of the badge, of the dosimeter badge. It is something they denied. It is something that they tried to explain away.
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I think that I am going to get too windy on this thing. Somebody brought up something on one of the earlier panels. I forget exactly how you quoted it, cover-up, some word that you used, was it happenstance or cover-up? But I think what happens, it begins, when they don't have enough qualified people, they cannot maintain contamination control in these areas. That is why this gentleman is talking about the same thing in the mine. They can't maintain proper contamination control, and it is rampant overall in the industry. And then when they do have an incident that is involved, that is when the cover-up comes in. They go to any measure to try to cover it up, but eventually it comes out. It may take months, it may take years, but eventually it comes out. Boy, I have really been windy now.
Mr. SMITH. Mr. Ray, you have answered my question, sir, and very well, I might add. So thank you for your comments and thank you all for your testimony today as well.
I am now going to recognize the gentlewoman from Texas, Ms. Jackson Lee for her questions.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me add my appreciation to all of the panelists, and might I also acknowledge Mr. Jackson of Colorado. I understand his testimony has been included in the record, or I should ask.
Mr. SMITH. If it hasn't been, it is now.
[The prepared statement of Mr. Jackson is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
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Ms. JACKSON LEE. And might I see Mr. Jackson? Are you still here? Thank you, Mr. Jackson, for being here. Stand up so we can see. We thank you very much.
We know from the public documentation, the expose done by USA Today, and I guess their name has been called quite frequently, that they cited 24 States with a number of locations, but we know that there may be more, so we are sorry that we couldn't hear from every single aspect, but we are gratified for the people who are present here.
And, Mr. Ray, let me thank you for a very lucid and clear response or expanded response to my question. I think you highlight something that we should take away from this hearing that is in addition to the compensation question, which is: competent, qualified people to contain these kinds of nuclear materials, which we are going to continue to utilize, so even with this whole effort of nonproliferation, we have to realize that tomorrow there may be some other chemical or some other type of radioactive material that we have to contend with, and I think it is very important.
I would like, with your indulgence, Mr. Chairman, just to show Ms. Harding something quickly, and I have a series of questions here.
May I just ask, Ms. Orick, do you have children? I am sorry I was delayed on the floor.
Ms. ORICK. Yes, I have two daughters.
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Ms. JACKSON LEE. Any impact?
Ms. ORICK. Yes. They have rheumatoid arthritis and some other problems with tissues and headaches and this type of thing, yes, ma'am.
Ms. JACKSON LEE. I am going to come to Ms. Harding in just a moment, if the staff person could stay there.
Mr. Ray, you have children?
Mr. RAY. Yeah, but they are a lot older. Yeah, I have children, grandchildren.
Ms. JACKSON LEE. You see any impact with——
Mr. RAY. You mean as a result of that?
Ms. JACKSON LEE. Yes, sir.
Mr. RAY. But they are—I don't mean to—they are more fortunate than Mrs. Harding or Mrs. Orick. I am in good health. The only problem I really have is that I have to use this little gizmo, but other than that, I am in good health and everything.
Ms. JACKSON LEE. You are very kind to say that, and the attitude that you have is very, very positive, and I thank you for that.
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Ms. Harding, I just want you to identify—is that your husband's letter?
Ms. HARDING. Yes, ma'am.
Ms. JACKSON LEE. And the writing that talks about the young person that died, 23-years-old, is that his writing or whose writing is that? Is that his writing as well, the list that has a list of people who are deceased?
Ms. HARDING. Yes, yes.
Ms. JACKSON LEE. May I just have that back? I just want to have that whole—at least the letter—the letter as well, I need the letter. The letter was written, I believe, in 1979, if I am not correct, and I would just like to ask the chairman if the letter written by Joe Harding to the Freedom of Information Office or the Department of Energy, dated August 25th, 1979, be submitted officially in the record.
Mr. SMITH. Without objection, that will be made a part of the record.
[The information referred to follows:]
67346a.eps
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67346b.eps
67346c.eps
67346d.eps
67346e.eps
67346f.eps
67346g.eps
Ms. JACKSON LEE. Thank you very much. I raise that because Ms. Harding indicated that Mr. Harding passed away in 1980, and this letter documents that he tried his very best to act on behalf of others who either could not speak or who had already passed away. At least this initial list in his handwriting notes individuals that died, Mr. Chairman, in 1972, 23-years-old, in 1978 at 50, '75 at 46, '74 at 50. I would just ask that this first sheet in his handwriting would also be submitted into the record.
Mr. SMITH. Without objection.
[The information referred to is on file with the House Judiciary Committee's Subcommittee on Immigration and Claims.]
Ms. JACKSON LEE. And I think the story of this testimony, of Ms. Harding's testimony, is to show how imperative it is that we focus and bring about resolve to those who live and those who die, but as well to finding solutions.
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I want to just—again, Ms. Harding, if you could refresh our memory. It seems as if you said he was terminated, your husband, and lost all of his benefits.
Ms. HARDING. Right.
Ms. JACKSON LEE. And the key that we are trying to focus on is the idea of compensation and past compensation. I believe you made mention of that.
Ms. HARDING. Yes.
Ms. JACKSON LEE. Would you just state that again for me?
Ms. HARDING. They had a meeting with him, and he knew that he was total disability because the doctors had told him that. So when he went up to meet with them, they told him that they would pass a thing that he would get, you know, he would be terminated, but he—well, his benefits. So every one of them signed it. After they signed it, Joe said, ''Where is mine, please?'' And they said, ''Well, we'll have to send it to the home office and you will get yours later.'' He never got it. I never got it. We didn't get a penny period, no penny, for that many years. And on his writing, now he was writing with a tape on the bed and him sitting in a wheelchair after he come home from Memphis Hospital. He was sitting in there doing his book work at that. So, I mean, he just kept that going all the time.
Ms. JACKSON LEE. Well, you certainly need not apologize. This is very legible, but I think the point is, is that Mr. Harding was working from 1979—I am sure it was before that—trying to help others, trying to get information. This letter is about 10 pages long. And it is certainly hard for any of us to write longhand, but this is how dedicated he was.
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The compensation, what is your reaction to the Armed Services Staff recommendation of $100,000 compensation. Ms. Orick, and if you give me a yes or no answer.
Ms. ORICK. It is no. There is no way that a person with CBD could go to a place like National Jewish Hospital more than one, one and a half times, and get the necessary tests and so forth. It would eat it up.
Ms. JACKSON LEE. Thank you. Would you indulge me, Mr. Chairman. I see the light. I am trying to get down to the rest of the members.
Mr. Ray, the $100,000 compensation offer from the Armed Services Staff, is that—if you just give me a yes—they offered $100,000 to the victims. Would you say that was adequate?
Mr. RAY. No, I wouldn't.
Ms. JACKSON LEE. Mrs. Harding, would you say it was adequate?
Ms. HARDING. No, ma'am, no, ma'am.
Ms. JACKSON LEE. Mr. Lopez, if you—let me just pursue your unfortunate circumstances. I am just at a loss to understand when you were offered to go to Denver, why there was a response, when you said yes, that there was no money. I guess I'm at a loss. You tested on site three times to be sensitive to beryllium. Did anyone explain why there was no money to send you for further testing, which might have helped educate the company, might have helped educate them on what further to do? I am unsure of that. What did they say the reason there was no money to send you?
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Mr. LOPEZ. They gave me no reason. They just told me there was no money.
Ms. JACKSON LEE. Many people wonder why the Federal Government has engaged in this, and I agree with the chairman that so many of us in Congress are committed to resolving this matter. I think you represent just a key example. You seem to be caught between a rock and a hard place. What I am hearing you say is you were denied Workman's Comp when you tried your best to follow procedures. Your HMO said no, and the insurance carrier for the Workman's Comp. carrier of your company said no. Is that what I am understanding?
Mr. LOPEZ. Yes. In talking with Dr. Morton, who is the head of the medical department at Pantex, you know, he brought up what my—First Care is my HMO, and he said, ''Well, they are not going to pay for it because it is an occupational disease.'' And the Workman's Comp is not going to pay because they are saying, ''Hey, it is an ordinary disease of life.'' You know, so that puts it back on to the HMO, and the HMO says—no one wants to cover it.
But I do want to say that right before I left to—right before I came here, I did get an appointment at National Jewish Laboratory, and I am going to be tested.
Ms. JACKSON LEE. I appreciate that very much.
And, Mr. Slaughter, let me—I guess the most straightforward point that I want to make is just an apology that we have not captured the entirety of the problem, and commit to you that this hearing will generate the interest and concern to look into it, because you detailed some circumstances that raise the question of the broader community, broader extenuating circumstances. And I would just like for you to—I think you were sort of at the end. Again, this speaks to the question of why there needs to be Federal involvement. It seems to me that they engaged in some self-doctoring, and the self-doctoring was the complete showering—I don't want to repeat it. Why don't you repeat it for me? And that is, the beer was the flushing out, so there seemed to be an acknowledgement that something was awry. Did you all have any sessions after that? Did they direct you to physicians? Did they put up a OSHA announcement on the wall? Why don't I just let you respond, Mr. Slaughter. Thank you.
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Mr. SLAUGHTER. No. We never did find out what the radiation lead was, where it came from or anything about it. It must have been something pretty severe. That's the only thing we knew. And to encourage us to drink this beer and then most of the miners were wondering the next day where more free beer was.
Ms. JACKSON LEE. What would be your argument to include your present health status in this effort, sir?
Mr. SLAUGHTER. Well, my back, I have got three ruptured disks. I can't hear, and I have silicosis. I am pretty well done, I think. It is a matter of trying to make the last few years as comfortable as I can, but I know there is going to be massive medical bills. I belong—I go to the VA now, and I can't afford—and I have Medicare, and that is what I rely on. I am sure it is going to get worse and worse, so all—we have a breakfast in Las Vegas the first Wednesday of every month, and all the former workers meet there. It is very seldom a month goes by that somebody isn't dead or somebody is in the hospital with cancer, somebody. They wheel our oxygen modules in there, and we eat breakfast, and we talk. That is really what it is all about. Not very many of us left.
Ms. JACKSON LEE. Let me thank the witnesses, Mr. Chairman, and thank you. Let me close by simply again picking up on this expose and exclusive report that I hope will help educate people around the country, a simple statement that I think is accurate that causes us to thank those who have been working on this for a very long period of time. This is not something that we should applaud this hearing as the hearing that opened up the knowledge. There have been those of you who have been working and I think in tribute to Mr. Harding and to the loved ones that have been lost, of which, Ms. Orick, you represent and others, that we should pay tribute. And I just simply want to say that this was, again, in the article in USA Today, the opening words, I believe. The U.S. Government secretly hired hundreds of private companies during the 1940's and 1950's to process huge volumes of nuclear weapon material, leaving a legacy of poisoned workers and contaminated communities that linger to this day.
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And though I know that there are many good-intentioned individuals in the Government, I think it is now time that we make good on our promise for those individuals who served their country.
I thank the witnesses for their testimony.
Mr. SMITH. Thank you, Ms. Jackson Lee, and thank you all again. And I just want to say I think this hearing has been very useful. I think it will be educational to other Members of Congress and to the general public, and hopefully it will serve to expedite the process of fair compensation for the victims as well. So thank you all for your testimony.
[Whereupon, at 2:16 p.m., the subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
NOTE: The following submitted materials are not reprinted here but are on file with the House Judiciary Committee's Subcommittee on Immigration and Claims:
Special Report: ''Deadly Alliance'';
Statement of Hon. Harry Reid;
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Additional materials provided by Ann Orick.
PREPARED STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA
Mr. Chairman and distinguished members of the Subcommittee, I offer this statement for the record on behalf of the tens of thousands of current and former workers at the Nevada Test Site. I strongly urge you, my colleagues, to end the suffering and the exhaustive quest to obtain just compensation for those ill and injured in the production and testing of our Nation's nuclear deterrent.
The Nevada Test Site lies to the north and west of Las Vegas and is in the heart of Nevada's Second Congressional District. This lonely and beautiful desert was the proving ground for the most destructive forces ever unleashed by Man. This vital work was carried out over the years by dedicated workers, citizens toiling with exotic and toxic substances. These brave and patriotic men and women labored in the hot sun and deep within the bowels of the earth so that the rest of the Nation may rest assured in security from foreign nuclear attack. Mr. Ray Slaughter, a 13 year veteran of the Cold War efforts at the Nevada Test Site, in his testimony before this Subcommittee, eloquently describes these hellish work conditions.
The detonations on and under the Nevada desert did more than scar the landscape. It also left lasting scars on and within the Test Site workers. The silica dust created during the hard rock drilling and tunneling for the blasts permanently scarred the lungs of those working, often unprotected, in the shafts. Imagine the feeling, the shortness of breath and the extremely reduced ability to function normally, with which these injured workers are burdened for the rest of their lives. And unfortunately, these lives are often shortened drastically. Lung cancers from the dust, chronic beryllium disease scarring lungs in a terrible way, and numerous cancers from radiation exposure, exotic transuranic materials, residues and other toxic substances have haunted the Nevada Test Site workers. The pain of denial of compensation for their illness and injury, on top of the physical pain, is all the worse. However, we are on the road to at least alleviating that injustice.
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This spring the Administration ended decades of official opposition to these workers' cause. While this was great news, there were numerous obstacles to final enactment of this vital legislation. The proposal brought to me by the Department of Energy barely mentioned silicosis and the Nevada Test Site was merely one line in a long list of covered facilities. After detailed discussions with Dr. Michaels and his staff, silicosis was finally made as prominent as other deadly diseases. I then joined a bipartisan group of legislators to move this program from proposal to reality.
I offered the newly revised compensation program as an amendment during markup of the Fiscal Year 2001 Department of Defense Authorization bill. Parliamentary and procedural concerns, however, forced its withdrawal. In a colloquy with the Chairmen of the full Committee and the Procurement Subcommittee, I obtained their commitments to hold hearings on this vital and much deserved compensation program.
The next phase was to keep momentum for the program. We crafted a Sense of Congress Resolution as an amendment on the Floor to the Defense Authorization bill. Our bipartisan working group then worked with the Rules Committee to rule our resolution in order. We then entered into a colloquy with the Chairmen of the committees of jurisdiction. They too committed to hold hearings on a Department of Energy workers' compensation program.
The Senate, not being bound by the procedural rules of the House of Representatives, then passed their version of the Defense Authorization bill. This version had a compensation program attached and a Conference Committee was named. With only a day and a half of notice, the same bipartisan working group and I obtained 104 signatures on a letter to House Conferees asking them to include the Senate language establishing the compensation program. Members of our working group have also met with House leadership on this subject as well. We now await the final Conference Report, fervently hoping that our months long efforts will see fruition in a viable compensation program.
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Today, in this forum, you are hearing testimony about several bills that would also establish such a program. I am a proud original cosponsor of two of them: H.R. 4398 and H.R. 5198. The latter is exactly the same as the Senate language now under consideration in the Armed Services Conference Committee. I urge you, my colleagues, to ensure that in whatever program emerges from your Subcommittee, that it includes the Nevada Test Site and the industrial diseases particular to it, namely silicosis. The Test Site is unique in its role in ensuring our victory in the Cold War. The injured and ill Nevada Test Site workers still remain prisoners of that war, trapped with their scarred lungs, their tumors, their loss of life. I will not rest until these American citizen-soldiers of the Cold war are adequately compensated. And I plead: neither should you.
(Footnote 1 return)
There are a number of additional compensation bills that were filed, but they have been overtaken by the two bills discussed above: HR 3418, the Administration's first proposal introduced by Paul Kanjorski; HR 3478, a version introduced by Marcy Kaptur, which encompasses the department of defense beryllium vendors; HR 3498, a bill introduced by Ted Strickland to expand coverage under HR 3418 to cover all DOE facilities, and HR 675, a bill filed by Kanjorski to provide beryllium coverage.
(Footnote 2 return)
Worker Compensation for Radiation Induced Illness: A Re-Examination of Past Practices and Options for Change, Ashford and Associates, July 1996, pp. 39
(Footnote 3 return)
The Link Between Exposure to Occupational Hazards and Illnesses in the Department of Energy Contractor Workforce, National Economic Council, April, 2000, pp. 2–4
(Footnote 4 return)
Neptunium-237 Contamination Problem, Paducah, Kentucky, February 4, 1960, by C.L. Dunham, MD, the Director of the Atomic Energy (''AEC'') Commission's Division of Biology and Medicine, and H.D. Bruner, MD, Chief of Medical Research Division of Biology and Medicine.
(Footnote 5 return)
Neptunium-237 has a radioactive half-life of 2,140,000 years. Once in the body it concentrates in the bones and liver.
(Footnote 6 return)
Dead Reckoning, A Critical Review of the Department of Energy's Epidemiologic Research, Jack Geiger, MD and David Rush, MD with David Michaels, PhD, 1992, pp.10
(Footnote 7 return)
Fernald Workers' Radiation Exposure, Science for Democratic Action, Vol. 5, No.3
(Footnote 8 return)
Six days of hearings were held on Employee Radiation Hazards and Workmen's Compensation during March 10–12 and 17–19, 1959 regarding a federal nuclear workers compensation bill, S. 1358, before the Joint Committee on Atomic Energy. Three days of hearings were held on the Radiation Workers Compensation Act on Jan. 29–31 and Feb. 1, 1962 before House Committee on Education and Labor, Select Subcommittee on Labor.
(Footnote 9 return)
Many states establish presumptions of work relatedness for respiratory and heart diseases for certain high hazard occupations, such as fire fighting.
(Footnote 10 return)
The Longshore and Harbor Workers Act pays out $621 million per year to more than 84,000 worker comp cases, but fewer than 100 cases were appealed to the Court of Appeals in 1999. Thus, this appeals mechanism will not clog the courts with individual cases, while providing a check and balance on administrative decision making. Of those cases appealed to the Courts, the Benefits Review Board is sustained approximately 85% of the time.
(Footnote 11 return)
Testimony of Sandy Blunt, Chief of Employer Operations, Ohio Bureau of Workers Compensation, Senate Health, Education, Labor and Pensions Committee, May 15, 2000
(Footnote 12 return)
I note that as a private attorney I advise PACE, the union that has been the primary representative of the hourly workers at the nation's nuclear weapons complex, on nuclear weapons complex related matters.
(Footnote 13 return)
The Committee's Report is available as The Human Radiation Experiments: Final Report of the President's Advisory Committee (Oxford, 1996)(''Final Report''). The Final Report contains a ''Citizen's Guide'' to accessing the documents and other materials reviewed by the Committee. Page references in this testimony are to the Oxford edition.
(Footnote 14 return)
See Final Report Findings,4, 5, 7,8.
(Footnote 15 return)
See Final Report Findings 10–11.
(Footnote 16 return)
In some nontherapeutic experiments involving children, exposures were associated with increases in potential lifetime risk for developing cancer that could be considered unacceptable. The Committee could not conclude that any individual was or was not physically harmed as a result of the plutonium experiments; however, the Committee found evidence of kidney damage in experiments with uranium. See Final Report, Findings 1, 2, 16.
(Footnote 17 return)
In addition to experiments performed on patients and institutionalized children, the Committee studied experimentation involving prisoners (Chapter 9), servicemen in connection with atomic bomb tests (Chapter 10), communities potentially effected by radiation intentionally released into the environment for (non-human) research (Chapter 11), and uranium miners exposed to radon while the government studied them (chapter 12).
(Footnote 18 return)
The National Council on Radiation Protection, the predecessor to the Congressionally chartered National Council on Radiation Protection and Measurements, began its work in 1928. One prominent radiation researcher, Robley Evans, was drawn into the field in 1932 by the highly publicized death of a socialite following consumption of the nostrum radiothor. Evans' study of radium treatments provided an anchor in human data for understanding of the effect of radiation. See Final Report, at 3–5. Manhattan Project researchers raced to apply what was known about radium and its human effects to plutonium, uranium, polonium—atomic bomb materials.
(Footnote 19 return)
Manhattan District Program, 31 December 1946 (Book 1, ''General,'' volume 7, ''Medical Program,'' (ACHRE No. NARA–052495–A–1), 2.2. Documents referenced here by ''ACHRE No.,'' are available from the National Archives in the ''ACHRE Research Document Collection.'' ''A Citizens' Guide to the Nation's Archives,'' appended to the Committee's Final Report, explains how to access these documents.
(Footnote 20 return)
See, Robert Stone, 10 May 1943 (''Health Radiation and Protection'')(ACHRE No.DOE–01195–B–1).
(Footnote 21 return)
By 1990, 410 lung cancer deaths had occurred among 4,100 miners in a Colorado Plateau study group (about 75 more deaths than would have normally been expected). The President's Advisory Committee found ''no evidence that national security or related economic considerations were relied on by officials as a basis for not taking action to ventilate the mines.'' The Advisory Committee found that had the miners been better informed of the hazards they were exposed to, they might have taken actions that would have led to their protection. See Final Report, Chapter 12 (''Observational Data Gathering''), quotation at 365.
(Footnote 22 return)
See Final Report, Chapter 12, at 357–358.
(Footnote 23 return)
The Committee did not find any documentation indicating that national security was thought to provide a basis for avoiding disclosure and consent.To the contrary, in Feburary,1953, during the Korean War, Eisenhower Secretary of Defense Charles Wilson issued a ''top secret'' directive that, in essence, provided that the Nuremberg Code requirements for consent applied by the Allied Tribunal to judge Nazi doctors must govern military research related to atomic, biological, or chemical warfare. See Final Report, at Finding 8, page 501 and pages 56–63 on the implementation of the Wilson directive.
(Footnote 24 return)
See undated document (''CH–3607 . . . Excerpts from statements of reviewers'') (ACHRE No.113094–B–9), 1.
(Footnote 25 return)
See letter of Carroll Wilson, General Manager, AEC, to Robert Stone, University of California, 5 November 1947)(ACHRE No. DOE–052295–A–1).
(Footnote 26 return)
Final Report at 155–158.
(Footnote 27 return)
Final Report, at 512.
(Footnote 28 return)
President Clinton's Statement is reprinted in the Final Report (Oxford edition).
(Footnote 29 return)
See ''Building Public Trust:Actions to Respond to the Report of the Advisory Committee on Human Radiation Experiments,'' Human Radiation Interagency Working Group, March, 1997.
(Footnote 30 return)
See memo from J.C.Franklin, Manager, Oak Ridge Operations to Carroll L. Wilson, AEC General Manager, 26 September 1947 (''Medical Policy'')(ACHRE No. DOE–113094–B–3).
(Footnote 31 return)
See Memorandum to Advisory Board on Medicine and Biology, 8 October 1947 (''Medical Policy'')(ACHRE No. DOE–051094–A–149),8.
(Footnote 32 return)
See Anthony C. Vallado, Deputy Declassification Officer, Declassification Branch, to Clyde Wilson, Insurance Branch, 8 December 1948 (''Review of Document by Knowlton'')(ACHRE No.DOE–120894–E–32),1.
(Footnote 33 return)
See Clyde E.Wilson, Chief Insurance Branch, to Anthony C.Vallado, Deputy Declassification Officer, Declassification Branch, 20 December 1948 (''Review of Document by Knowlton'')(ACHRE No.DOE–120894–E–32),1.
(Footnote 34 return)
See Final Report at 397, and footnotes 48–51 therein.
(Footnote 35 return)
See March 11,1960 AEC Memo to Files Re: Neptunium 237 Concentration Problem, Paducah, Kentucky, reprinted at pages 119–122 of the ''Department of Energy's Management of Health and Safety Issues at its Gaseous Diffusion Plants in Oak Ridge, Tennessee and Piketon, Ohio,'' Hearing before the Committee on Governmental Affairs, United States Senate, March 22, 2000.
(Footnote 36 return)
See Peter Eisler, ''Poisoned Workers and Poisoned Places,'' September 6–8, 2000.
(Footnote 37 return)
See Final Report at 508.
(Footnote 38 return)
See Final Report at 400 and letters from Louis Hempelmann, University of Rochester School of Medicine and Dentistry to Charles Dunham, Director, AEC Division of Biology and Medicine, 2 June 1955 (ACHRE No. DOE–0092694–A), 1 and from Roy Albert, Assistant Chief of the Medical Branch of the Division of Biology and Medicine to Louis Hempelmann, 23 June 1955 (ACHRE No. DOE–092694–A), 1.
(Footnote 39 return)
See, ''On the job risks were off the record,'' USA Today, September 7, 2000.