[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 757 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 757
To amend the Energy Employees Occupational Illness Compensation Program
Act of 2000 to expand the category of individuals eligible for
compensation, to improve the procedures for providing compensation, and
to improve transparency, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 31, 2009
Mr. Udall of Colorado (for himself, Mr. Bennet, and Mr. Udall of New
Mexico) introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Energy Employees Occupational Illness Compensation Program
Act of 2000 to expand the category of individuals eligible for
compensation, to improve the procedures for providing compensation, and
to improve transparency, 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 ``Charlie Wolf
Nuclear 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; purpose.
Sec. 3. Specified disease.
Sec. 4. Definitions for program administration.
Sec. 5. Change in presumption for finding of cancer.
Sec. 6. Distribution of information to claimants and potential
claimants.
Sec. 7. Enhancement of site profiles of Department of Energy
facilities.
Sec. 8. Clarification of covered illnesses.
Sec. 9. Payment of compensation to survivors and estates of contractor
employees.
Sec. 10. Wage loss resulting from exposure.
Sec. 11. Expansion of toxic substance exposure for covered illnesses.
Sec. 12. Extension of statute of limitations for judicial review of
contractor employee claims.
Sec. 13. Expansion of authority of Ombudsman of Energy Employees
Occupational Illness Compensation Program.
Sec. 14. Payment for transportation and personal care services.
Sec. 15. Enhancement of transparency in claims process.
Sec. 16. Extension of time for claimants to respond to requests for
information.
SEC. 2. FINDINGS; PURPOSE.
(a) Findings.--Congress finds that--
(1) the Energy Employees Occupational Illness Compensation
Program Act of 2000 (42 U.S.C. 7384 et seq.) (referred to in
this subsection as the ``Act'') was enacted to ensure fairness
and equity for the civilian men and women who, for more than 50
years, have performed duties uniquely related to the nuclear
weapons production and testing programs of the Department of
Energy (including predecessor agencies of the Department of
Energy) by establishing a program to provide efficient,
uniform, and adequate compensation for--
(A) beryllium-related health conditions; and
(B) heavy metal-, toxic chemical-, and radiation-
related health conditions;
(2) the Act (42 U.S.C. 7384 et seq.) provides a process for
the consideration of claims for compensation by individuals who
were employed at relevant times and at various locations, which
includes provisions to designate employees at certain other
locations as members of a special exposure cohort the claims of
whom are subject to a less-detailed administrative process;
(3) the Act (42 U.S.C. 7384 et seq.) authorizes the
President, upon a recommendation by the Advisory Board on
Radiation and Worker Health established under section
3624(a)(1) of the Act (42 U.S.C. 7384o(a)(1)), to designate
additional classes of employees at facilities under the
jurisdiction of the Department of Energy as members of a
special exposure cohort if the President determines that--
(A) it is not feasible to estimate with sufficient
accuracy the magnitude of the radiation dose that the
cohort received; and
(B) there is a reasonable likelihood that the
radiation dose may have endangered the health of
members of the cohort;
(4) it is not feasible to estimate with sufficient accuracy
the magnitude of radiation doses received by employees at
facilities under the jurisdiction of the Department of Energy
because--
(A) many radiation exposures by employees were
unmonitored or were not monitored adequately over the
lifetime of each facility, as demonstrated in 2004,
when an individual employed during the 1950s agreed to
be scanned under the former radiation worker program of
the Department of Energy and was found to have a
significant internal deposition of radiation that had
been undetected and unrecorded for longer than 50
years;
(B) lung counters used for the detection and
measurement of plutonium and americium in the lungs of
the employees were not available at some facilities
until the late 1960s, thus--
(i) preventing the very insoluble oxide
forms of plutonium from being detected; and
(ii) leading to a result in which a large
number of employees experienced inhalation
exposures that went undetected and unmeasured;
(C) exposure to neutron radiation was not monitored
at some facilities until the late 1950s, and most of
the measurements taken at the facilities from the
period beginning in the late 1950s and ending in 1970
have been found to be in error;
(D) in some areas of the facilities, neutron doses
were 2 to 10 times as great as the gamma doses received
by employees, although only gamma doses were recorded;
(E) the radiation exposures of many employees at
certain facilities were not measured, and in some cases
estimated doses were assigned, while some records for
doses have been destroyed or lost;
(F) as a result of the practices described in
subparagraph (E), the available exposure histories and
other data are not adequate to properly determine
whether employees qualify for compensation under the
Act (42 U.S.C. 7384 et seq.); and
(G) the model that has been used for dose
reconstruction by the National Institute for
Occupational Safety and Health in determining whether
certain workers qualify for compensation under the Act
(42 U.S.C. 7384 et seq.) contains errors because--
(i) the default values used for particle
size and solubility of internally deposited
plutonium in employees are in error; and
(ii) the use of those erroneous default
values to calculate internal doses for
claimants can result in dose calculations that
may be 3 to 10 times below the calculations as
indicated by the example of the records and
autopsy data of the Rocky Flats Environmental
Technology Site of the Department of Energy;
(5) the administrative costs arising from claims have been
disproportionately high relative to the number of claims that
have been approved;
(6) many employees, despite working with tons of plutonium
and having known exposures that have lead to serious health
effects, have been denied compensation under the Act (42 U.S.C.
7384 et seq.) as a result of--
(A) potentially flawed calculations based on
records that are incomplete or in error; and
(B) the use of incorrect models;
(7) the purposes of the Act (42 U.S.C. 7384 et seq.) are
more likely to be achieved if claims by the employees described
in this subsection are subject to administrative procedures
applicable to members of the special exposure cohort;
(8) Charlie Wolf, an employee at the nuclear weapons
facilities of the Savannah River Site, the Fernald Site, and
the Rocky Flats Environmental Technology Site of the Department
of Energy, died in 2009 from complications due to glioblastoma
multiform brain tumors;
(9) the difficulties of Mr. Wolf in securing compensation
for the illness that he likely incurred from exposures to toxic
and radioactive materials at the nuclear weapons facilities
described in paragraph (8) reinforce the need to ensure that
the Act (42 U.S.C. 7384 et seq.) will be carried out more
efficiently and humanely for employees similar to Mr. Wolf;
(10) Mr. Wolf's first tumor was discovered after he had
worked for several years at the Rocky Flats Environmental
Technology Site of the Department of Energy, during which he
served as the director of buildings numbered 771 (which was
once considered the most dangerous nuclear facility in the
United States), 774, and 779, 3 facilities at which toxic and
radioactive materials were present and handled by employees;
(11) prior to working at the Rocky Flats Environmental
Technology Site of the Department of Energy, Mr. Wolf ran
plutonium metal production lines at the Savannah River Site of
the Department of Energy;
(12) Mr. Wolf and his family spent almost 7 years of their
lives seeking compensation under the Act (42 U.S.C. 7384 et
seq.), although, due to the requirements of the Act (42 U.S.C.
7384 et seq.) and the manner by which the regulations and
procedures were carried out, the claims of Mr. Wolf were
subjected to lengthy and repeated delays and complications that
resulted from the difficulties associated with establishing the
reconstruction of radiation doses;
(13) as a result of the experiences of Mr. Wolf, and many
others like him, there is a need to reform the Act (42 U.S.C.
7384 et seq.), and the program carried out in accordance with
the Act (42 U.S.C. 7384 et seq.), to improve the processing of
claims; and
(14) the reforms established through the amendments made by
this Act broaden the list of specified cancers, broaden the
membership of the special exposure cohort, and change the
presumption of cancer due to work-related exposures to help
streamline the claims process and help workers like Mr. Wolf
and their survivors.
(b) Purpose.--The purpose of this Act is to amend the Energy
Employees Occupational Illness Compensation Program Act of 2000 (42
U.S.C. 7384 et seq.) to improve the processing of claims for work-
related illnesses at facilities under the jurisdiction of the
Department of Energy.
SEC. 3. SPECIFIED DISEASE.
Section 4(b)(2) of the Radiation Exposure Compensation Act (42
U.S.C. 2210 note; Public Law 101-426) is amended--
(1) by striking ``(other than chronic lymphocytic
leukemia)'' and inserting ``(including chronic lymphocytic
leukemia)'';
(2) by inserting ``posterior subcapsular cataracts,
nonmalignant thyroid nodular disease, parathyroid adenoma,
malignant tumors of the brain and central nervous system,
brochio-alveolar carcinoma, benign neoplasms of the brain and
central nervous system,'' after ``disease),''; and
(3) by striking ``or lung'' and inserting ``lung, skin,
kidney, salivary gland, rectum, pharynx, or prostate''.
SEC. 4. DEFINITIONS FOR PROGRAM ADMINISTRATION.
(a) Atomic Weapons Employee.--Section 3621(3)(A) of the Energy
Employees Occupational Compensation Program Act of 2000 (42 U.S.C.
7384l(3)(A)) is amended by inserting ``, or an individual employed by a
contractor or subcontractor of an atomic weapons employer,'' after
``atomic weapons employer''.
(b) Established Chronic Beryllium Disease.--Section 3621 of the
Energy Employees Occupational Compensation Program Act of 2000 (42
U.S.C. 7384l) is amended by striking paragraph (13) and inserting the
following:
``(13) Established chronic beryllium disease.--The term
`established chronic beryllium disease' means chronic beryllium
disease, as established by--
``(A) an occupational or environmental history, or
epidemiological evidence of beryllium exposure; and
``(B) any 3 of the following criteria:
``(i) Characteristic chest radiographic (or
computed tomography) abnormalities.
``(ii) Restrictive or obstructive lung
physiology testing or a diffusing lung capacity
defect.
``(iii) Lung pathology consistent with
chronic beryllium disease.
``(iv) A clinical course consistent with a
chronic respiratory disorder.
``(v) An immunologic test demonstrating
beryllium sensitivity (with preference given to
a skin patch test or a beryllium blood
test).''.
(c) Member of Special Exposure Cohort.--
(1) In general.--Section 3621(14) of the Energy Employees
Occupational Illness Compensation Program Act of 2000 (42
U.S.C. 7384l(14)) is amended by adding at the end the
following:
``(D) The employee--
``(i) is not covered under subparagraph
(A), (B), or (C); and
``(ii) was employed by the Department of
Energy, or a contractor or subcontractor of the
Department of Energy, before January 1,
2006.''.
(2) Reapplication.--A claim for which an individual
qualifies, by reason of paragraph (14)(D) of section 3621 of
the Energy Employees Occupational Illness Compensation Program
Act of 2000 (42 U.S.C. 7384l) (as added by paragraph (1)), for
compensation or benefits under that Act (42 U.S.C. 7384 et
seq.) shall be considered for compensation or benefits
notwithstanding any denial of any other claim for compensation
with respect to the individual.
(d) Specified Cancers.--
(1) In general.--Section 3621(17) of the Energy Employees
Occupational Compensation Program Act of 2000 (42 U.S.C.
7384l(17)) is amended--
(A) in subparagraph (D), by striking ``(other than
chronic lymphocytic leukemia)''; and
(B) by adding at the end the following:
``(E) Basal cell carcinoma.
``(F) Skin cancer.''.
(2) Reapplication.--A claim for which an individual
qualifies, by reason of subparagraph (E) or (F) of paragraph
(17) of section 3621 of the Energy Employees Occupational
Illness Compensation Program Act of 2000 (42 U.S.C. 7384l) (as
added by paragraph (1)), for compensation or benefits under
that Act (42 U.S.C. 7384 et seq.) shall be considered for
compensation or benefits notwithstanding any denial of any
other claim for compensation with respect to the individual.
SEC. 5. CHANGE IN PRESUMPTION FOR FINDING OF CANCER.
Section 3623(b) of the Energy Employees Occupational Compensation
Program Act of 2000 (42 U.S.C. 7384n(b)) is amended by striking ``if,
and only if, the cancer specified in that subclause was at least as
likely as not related to'' and inserting ``, unless it is determined,
by clear and convincing evidence, that such cancer was not sustained as
a result of''.
SEC. 6. DISTRIBUTION OF INFORMATION TO CLAIMANTS AND POTENTIAL
CLAIMANTS.
(a) Independent Physicians for Performance of Medical and
Impairment Screenings.--Section 3631(b)(2) of the Energy Employees
Occupational Illness Compensation Program Act of 2000 (42 U.S.C.
7384v(b)(2)) is amended--
(1) in subparagraph (A), by striking ``; and'' and
inserting a semicolon;
(2) by redesignating subparagraph (B) as subparagraph (C);
and
(3) by inserting after subparagraph (A) the following:
``(B) lists that contain descriptions of physicians
who are--
``(i) qualified to perform medical and
impairment screenings on matters relating to
the compensation program; and
``(ii) identified for purposes of this
subparagraph by 1 or more independent medical
associations, institutions of higher education,
or both that are selected by the President for
purposes of this subparagraph; and''.
(b) Notice of Available Benefits.--Section 3631 of the Energy
Employees Occupational Illness Compensation Program Act of 2000 (42
U.S.C. 7384v) (as amended by subsection (a)) is amended by adding at
the end the following:
``(d) Notice to Claimants Regarding Available Benefits.--The
President shall provide to an individual who files a claim for
compensation under this subtitle or subtitle E a written notice that
contains a description of the benefits for which the individual may be
eligible under this Act.''.
SEC. 7. ENHANCEMENT OF SITE PROFILES OF DEPARTMENT OF ENERGY
FACILITIES.
(a) Inclusion of Trade Names of Chemicals in Site Profiles.--
Section 3633 of the Energy Employees Occupational Illness Compensation
Program Act of 2000 (42 U.S.C. 7384w-1) is amended by striking
subsection (c) and inserting the following:
``(c) Definition of Site Profile.--In this section, the term `site
profile' means an exposure assessment of a facility that--
``(1) identifies the toxic substances or processes that
were commonly used in each building or process of the facility,
and the time frame during which the potential for exposure to
toxic substances existed; and
``(2) includes the trade name (if any) of any substance
described in paragraph (1).''.
(b) Public Access to Site Profiles and Related Information.--
Section 3633 of the Energy Employees Occupational Illness Compensation
Program Act of 2000 (42 U.S.C. 7384w-1) (as amended by subsection (a))
is amended by adding at the end the following:
``(e) Public Access to Site Profiles and Related Information.--The
Secretary of Labor shall make available to the public--
``(1) each site profile prepared under subsection (a);
``(2) any other database used by the Secretary of Energy to
evaluate claims for compensation under this Act; and
``(3) statistical data regarding the number of claims
filed, the illnesses claimed, the number of claims filed for
each illness, the number of claimants receiving compensation,
and the length of time required to process each claim, as
measured from the date on which the claim is filed to the final
disposition of the claim.''.
SEC. 8. CLARIFICATION OF COVERED ILLNESSES.
(a) Definition of Covered Illness.--Section 3671 of the Energy
Employees Occupational Compensation Program Act of 2000 (42 U.S.C.
7385s) is amended by striking paragraph (2) and inserting the
following:
``(2) Covered illness.--The term `covered illness' means an
illness or death resulting from exposure to a toxic substance,
including--
``(A) all forms of cancer;
``(B) silicosis;
``(C) asbestosis;
``(D) mesothelioma;
``(E) lung fibrosis;
``(F) chronic obstructive pulmonary disease;
``(G) chronic renal insufficiency;
``(H) peripheral neuropathy;
``(I) chronic encepathalopathy;
``(J) occupational asthma; and
``(K) pneumoconiosis.''.
(b) Reapplication.--A claim for which an individual qualifies, by
reason of section 3671(2) of the Energy Employees Occupational
Compensation Program Act of 2000 (42 U.S.C. 7385s(2)) (as amended by
subsection (a)), for compensation or benefits under that Act (42 U.S.C.
7384 et seq.) shall be considered for compensation or benefits
notwithstanding any denial of any other claim for compensation with
respect to the individual.
SEC. 9. PAYMENT OF COMPENSATION TO SURVIVORS AND ESTATES OF CONTRACTOR
EMPLOYEES.
Section 3672 of the Energy Employees Occupational Illness
Compensation Program Act of 2000 (42 U.S.C. 7385s-1) is amended to read
as follows:
``SEC. 3672. COMPENSATION.
``(a) Contractor Employees; Survivors.--
``(1) Contractor employees.--
``(A) In general.--In accordance with section 3673,
a covered contractor employee of the Department of
Energy shall receive contractor employee compensation
under this subtitle.
``(B) Compensation after death of contractor
employee.--Except as provided in paragraph (2)(B), if
the death of a contractor employee described in
subparagraph (A) occurs after the date on which the
contractor employee applies for compensation under this
subtitle, but before the date on which such
compensation is paid, the amount of compensation that
the contractor employee would have received under this
paragraph shall be paid to--
``(i) a survivor of the contractor employee
in accordance with section 3674; or
``(ii) if, as of the date of the death of
the contractor employee, no survivor of the
contractor employee exists, the estate of the
contractor employee.
``(2) Survivors.--
``(A) In general.--Except as provided in
subparagraph (B), a survivor of a covered contractor
employee of the Department of Energy shall receive
contractor employee compensation under this subtitle in
accordance with section 3674.
``(B) Election of contractor employee compensation
or survivor compensation.--A survivor of a contractor
employee described in subparagraph (A) who is otherwise
eligible to receive compensation pursuant to
subparagraph (A) and paragraph (1)(B) shall--
``(i) receive compensation pursuant to
subparagraph (A) or paragraph (1)(B), as
elected by the survivor of the contractor
employee; and
``(ii) not receive compensation pursuant to
both subparagraph (A) and paragraph (1)(B).
``(b) Applicability.--Subsection (a) is subject to each other
provision of this subtitle.''.
SEC. 10. WAGE LOSS RESULTING FROM EXPOSURE.
Section 3673(a)(2)(A)(i) of the Energy Employees Occupational
Compensation Program Act of 2000 (42 U.S.C. 7385s-2(a)(2)(A)(i)) is
amended by inserting ``that contributed to the wage loss of the
employee'' after ``that employee''.
SEC. 11. EXPANSION OF TOXIC SUBSTANCE EXPOSURE FOR COVERED ILLNESSES.
Section 3675(c)(1) of the Energy Employees Occupational
Compensation Program Act of 2000 (42 U.S.C. 7385s-4(c)(1)) is amended--
(1) in subparagraph (A), by inserting ``(including
radiation or a combination of a toxic substance, including
heavy metals, and radiation)'' after ``toxic substance''; and
(2) in subparagraph (B), by inserting ``(including
radiation or a combination of a toxic substance and
radiation)'' after ``toxic substance''.
SEC. 12. EXTENSION OF STATUTE OF LIMITATIONS FOR JUDICIAL REVIEW OF
CONTRACTOR EMPLOYEE CLAIMS.
Section 3677(a) of the Energy Employees Occupational Illness
Compensation Program Act of 2000 (42 U.S.C. 7385s-6(a)) is amended, in
the first sentence, by striking ``within 60 days'' and inserting ``not
later than 1 year''.
SEC. 13. EXPANSION OF AUTHORITY OF OMBUDSMAN OF ENERGY EMPLOYEES
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM.
Section 3686 of the Energy Employees Occupational Illness
Compensation Program Act of 2000 (42 U.S.C. 7385s-15) is amended--
(1) by striking subsection (c) and inserting the following:
``(c) Duties.--The Office shall--
``(1) assist individuals in making claims under this
subtitle and subtitle B;
``(2) provide information regarding--
``(A) the benefits available under this subtitle
and subtitle B; and
``(B) the requirements and procedures applicable to
the provision of the benefits described in subparagraph
(A);
``(3) function as an advocate on behalf of individuals
seeking benefits under this subtitle and subtitle B;
``(4) make recommendations to the Secretary regarding the
location of centers (to be known as `resource centers') for the
acceptance and development of claims for benefits under this
subtitle and subtitle B; and
``(5) carry out such other duties as the Secretary may
require.'';
(2) in subsection (d), by inserting ``and subtitle B''
after ``this subtitle'';
(3) in subsection (e), by inserting ``and subtitle B''
after ``this subtitle'' each place it appears; and
(4) by striking subsection (g) and inserting the following:
``(g) Contract Authority.--The Ombudsman may enter into 1 or more
service contracts with individuals who possess expertise in any matter
that the Ombudsman considers appropriate for the performance of the
duties of the Office, including matters relating to health physics,
medicine, industrial hygiene, and toxicology.''.
SEC. 14. PAYMENT FOR TRANSPORTATION AND PERSONAL CARE SERVICES.
(a) Definition of Covered Individual.--In this section, the term
``covered individual'' means an individual who receives medical
benefits under section 3629(a) of the Energy Employees Occupational
Illness Compensation Program Act of 2000 (42 U.S.C. 7384t(a)).
(b) Regulations.--Not later than 90 days after the date of
enactment of this Act, the Secretary of Labor shall promulgate
regulations to provide for the direct payment to providers of the costs
to covered individuals of--
(1) personal care services (as that term is used in section
30.403 of title 20, Code of Federal Regulations (as in effect
on the day before the date of enactment of this Act))
authorized pursuant to section 3629 of the Energy Employees
Occupational Illness Compensation Program Act of 2000 (42
U.S.C. 7384t); and
(2) necessary and reasonable transportation expenses
incident to securing medical services, appliances, or supplies
pursuant to section 3629(c) of the Energy Employees
Occupational Illness Compensation Program Act of 2000 (42
U.S.C. 7384t(c)).
SEC. 15. ENHANCEMENT OF TRANSPARENCY IN CLAIMS PROCESS.
(a) Information Provided on Denial of Claim; Requirements Relating
to Correspondence.--Not later than 90 days after the date of enactment
of this Act, the President shall promulgate regulations to ensure
that--
(1) any notification to an individual making a claim under
the Energy Employees Occupational Illness Compensation Program
Act of 2000 (42 U.S.C. 7384 et seq.) that the claim of the
individual has been denied, and all other correspondence with
the individual relating to the claim, are written in language
that is clear, concise, and easily understandable; and
(2) any notification described in paragraph (1) contains--
(A) an explanation of each reason for the denial of
the claim described in that paragraph; and
(B) a description of the information, if any, that
the individual could have submitted that could have
resulted in approval of the claim.
(b) Document Retention.--Not later than 90 days after the date of
enactment of this Act, the Secretary of Labor and the Secretary of
Energy shall jointly promulgate regulations to ensure that the
Department of Labor and the Department of Energy--
(1) retain each original document in the possession of the
Department of Labor or the Department of Energy relating to a
facility under the jurisdiction of the Department of Energy
if--
(A) any employee of the facility might reasonably
be expected to file a claim for compensation under the
Energy Employees Occupational Illness Compensation
Program Act of 2000 (42 U.S.C. 7384 et seq.); and
(B) the document might reasonably be expected to be
used by any employee described in subparagraph (A) in
making a claim for compensation under the Energy
Employees Occupational Illness Compensation Program Act
of 2000 (42 U.S.C. 7384 et seq.); and
(2) provide each employee described in paragraph (1)(A)
with access to each document described in that paragraph.
SEC. 16. EXTENSION OF TIME FOR CLAIMANTS TO RESPOND TO REQUESTS FOR
INFORMATION.
If the Secretary of Labor submits to an individual who has filed a
claim for compensation under the Energy Employees Occupational Illness
Compensation Program Act of 2000 (42 U.S.C. 7384 et seq.) a request for
information that relates to the claim for compensation, the individual
shall be required to respond to the request by not earlier than 120
days after the date on which the individual receives the request.
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