[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4388 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 4388

To amend the Energy Employees Occupational Illness Compensation Program 
 Act of 2000 to include certain nuclear weapons program workers in the 
 Special Exposure Cohort under the compensation program established by 
                               that Act.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 18, 2004

   Mr. Udall of New Mexico introduced the following bill; which was 
  referred to the Committee on the Judiciary, and in addition to the 
     Committee on Education and the Workforce, 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 amend the Energy Employees Occupational Illness Compensation Program 
 Act of 2000 to include certain nuclear weapons program workers in the 
 Special Exposure Cohort under the compensation program established by 
                               that Act.

    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 ``Special Exposure Cohort Fairness Act of 
2004''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Since World War II, hundreds of thousands of men and 
        women have served in building the Nation's nuclear defense and, 
        in the course of this work, have been exposed to beryllium, 
        ionizing radiation, and other hazards unique to nuclear weapons 
        production and testing, including tens of thousands of workers 
        in New Mexico. The purpose of the Energy Employees Occupational 
        Illness Compensation Program Act of 2000 (in this section 
        referred to as the ``Act''), which was enacted on October 30, 
        2000, is to provide for timely, uniform, and adequate 
        compensation of covered employees and, where applicable, 
        survivors of such employees, suffering from illnesses incurred 
        by such employees in the performance of duty for the Department 
        of Energy and certain of its contractors and subcontractors.
            (2) Executive Order No. 13179 required the Secretary of 
        Health and Human Services to carry out the Act's statutory 
        requirement to issue and implement procedures for conducting 
        radiation dose reconstruction, to establish the scientific 
        basis for compensation, and to issue regulations under which 
        classes of workers could petition to become members of a 
        Special Exposure Cohort and under which such petitions could be 
        evaluated. Pursuant to the Act, workers may petition to be 
        members of a Special Exposure Cohort when it is not feasible to 
        estimate dose with sufficient accuracy and there is a 
        reasonable likelihood that exposures to radiation may have 
        endangered the health of the class of workers. Special Exposure 
        Cohort status provides an automatic presumption of causation 
        for 22 radiation-related cancers without the need for 
        attempting to estimate radiation dose, and is intended to 
        remove an otherwise insurmountable burden of proof. Such 
        Special Exposure Cohorts have been designated by Congress at 
        Paducah, Kentucky, Portsmouth, Ohio, the K-25 facility at Oak 
        Ridge, Tennessee, and the Amchitka Island Test site in Alaska.
            (3) The National Institute for Occupational Safety and 
        Health was tasked with conducting radiation dose 
        reconstructions under the Act. As of April 16, 2004, the 
        Institute has completed 15 out of 571 radiation dose 
        reconstructions for covered workers at Los Alamos, New Mexico. 
        The Institute has completed only 18 out of 765 dose 
        reconstructions in New Mexico. Sick workers are dying while 
        awaiting a determination on their claims, and in many cases the 
        delays have caused them to lose hope.
            (4) Congressional intent undergirding the statutory 
        requirement to allow additional Special Exposure Cohorts was 
        explained by Senator Jeff Bingaman, an original cosponsor, as 
        part of the floor debate on the enactment of the Act on October 
        12, 2000. He stated that this provision was added ``for a 
        significant minority who were exposed to radiation but for whom 
        it would be infeasible to reconstruct their dose. There are 
        several reasons why . . . this infeasibility might exist. First 
        relevant dose records might be missing or might not exist 
        altogether. Second there might be a way to reconstruct the 
        dose, but it would be prohibitively expensive to do so. Finally 
        it might take so long to reconstruct a dose for a group of 
        workers that they will all be dead before we have an answer 
        that can be used to determine their eligibility.''.
            (5) Dose reconstruction is being interminably delayed for 
        claimants at Los Alamos National Laboratory. A May 5, 2004, 
        report to Congress by the Centers for Disease Control regarding 
        obstacles to records recovery needed for radiation dose 
        reconstruction states that: ``Los Alamos National Laboratory 
        has not submitted individual bioassay data, nor detailed 
        external dosimetry data. The submittals consist of derived dose 
        quantities, which cannot readily be used in dose 
        reconstructions because they use a different methodology than 
        NIOSH uses for dose reconstructions''.
            (6) Hearings and investigations reveal that there was not 
        appropriate worker monitoring for mixed neutron and gamma 
        radiation for certain time periods, doubtful reliability of 
        radiation dosimetry reports provided to claimants for certain 
        time periods, and for some claimants, access has been denied to 
        particular monitoring records. One of the workers who testified 
        at a Department of Energy hearing in Espanola, New Mexico, in 
        2000 described how he could fall through the cracks of a system 
        that operated solely on dose histories. He was a supervisor at 
        what was called the ``hot dump'' at Los Alamos. Environmental 
        restoration reports indicate that more than 80 different 
        radionuclides were taken there to be disposed of, making it 
        very difficult to resconstruct dose amounts for each worker.
            (7) Over the course of the atomic weapons program at Los 
        Alamos, health-related documents were withheld from the workers 
        and public in order to shield the Government and its 
        contractors from public criticism, concerns about union demands 
        for hazardous duty pay, and real or perceived liability.
            (8) Memoranda indicate that air concentrations of 
        radionuclides at Area G of Los Alamos were systematically 
        underreported in environmental surveillance reports issued to 
        the public in the late 1980's and early 1990's, according to 
        the Pueblo Office of Environmental Protection in 1992.
            (9) During the 2003 and 2004 regular sessions, the New 
        Mexico legislature, through the leadership of State 
        Representative Ray Ruiz, enacted Joint Memorials calling upon 
        the United States Congress to enact comprehensive reforms to 
        subtitle B and subtitle D of the Act to remedy the injustices 
        to workers made sick from employment by contractors and 
        subcontractors at Los Alamos. House Joint Memorial 16 (2003) 
        and House Joint Memorial 20 (2004) state in relevant part: 
        ``those employees who are unable to obtain records establishing 
        past exposures and employees whose claims of radiation exposure 
        are in jeopardy of being denied due to scientific uncertainty 
        in causation determinations should receive the benefit of the 
        doubt and be compensated under the federal act''.
            (10) The memorial also urges that, in enacting Federal 
        reform legislation with respect to the Act: ``special exposure 
        cohorts be established for employees in area G and the linear 
        accelerator at Los Alamos national laboratory, and for security 
        guards and all construction workers, due to the impossibility 
        of accurately reconstructing past radiation doses.''.
            (11) The predicates for a Special Exposure Cohort for Los 
        Alamos workers have been met. For some, dose records are 
        missing or are incomplete; for others, it is requiring a costly 
        research effort, the reliability of the Institute's dose 
        estimates may be open to question, and for virtually all Los 
        Alamos claimants, the Institute is taking so long to estimate 
        dose that claimants are dying off before they ever receive a 
        determination. Justice has been denied through interminable 
        delays. New Mexico's large population of potentially eligible 
        claimants at Department of Energy facilities should not have to 
        wait another generation or more to be compensated for their 
        occupational illnesses.

SEC. 3. DEFINITION OF MEMBER OF SPECIAL EXPOSURE COHORT TO INCLUDE 
              WORKERS AT LOS ALAMOS NATIONAL LABORATORY, LOS ALAMOS, 
              NEW MEXICO.

    (a) In General.--Section 3621(14) of the Energy Employees 
Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 
7384l(14)) is amended--
            (1) by redesignating subparagraph (C) as subparagraph (D); 
        and
            (2) by inserting after subparagraph (B) the following:
                    ``(C) The employee was so employed for a number of 
                work days aggregating at least 250 work days during the 
                period 1945 through 2000 at Los Alamos National 
                Laboratory, Los Alamos, New Mexico, as a cohort-
                eligible Los Alamos worker (as defined in paragraph 
                (18)) for work carried out under contract to the 
                Department of Energy, and, during such employment--
                            ``(i) was monitored through the use of--
                                    ``(I) dosimetry badges for exposure 
                                at the plant of the external parts of 
                                employee's body to radiation; or
                                    ``(II) biossays, in vivo 
                                monitoring, or breath samples for 
                                exposure at the plant to internal 
                                radiation; or
                            ``(ii) worked in a job that had exposures 
                        comparable to a job that is monitored, or 
                        should have been monitored, under standards of 
                        the Department of Energy in effect on the date 
                        of the enactment of this subparagraph through 
                        the use of dosimetry badges for monitoring 
                        external radiation exposures, or bioassays or 
                        in vivo monitoring for internal radiation 
                        exposures.''.
    (b) Cohort-Eligible Los Alamos Workers.--Section 3621 of such Act 
is further amended by adding at the end the following new paragraph:
            ``(18) The term `cohort-eligible Los Alamos worker' applies 
        to employment--
                    ``(A) in Area G or at the linear accelerator;
                    ``(B) as a security guard or construction worker; 
                or
                    ``(C) in any area of Los Alamos National Laboratory 
                and in any capacity, if all records necessary for 
                radiation dose reconstruction under this Act with 
                respect to that employee have not been received by the 
                National Institute for Occupational Safety and Health 
                from the Department of Energy or its contractors within 
                200 days after receipt of the claim under this Act with 
                respect to that employee.''.
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