Compensation for Illnesses Realized by Department of Energy Workers Due to Exposure to Hazardous Materials

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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    (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