[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
 ENERGY EMPLOYEES WORKERS' COMPENSATION: EXAMINING THE DEPARTMENT OF 
   LABOR'S ROLE IN HELPING WORKERS WITH ENERGY-RELATED OCCUPATIONAL 
                        ILLNESSES AND DISEASES

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                                 of the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                            October 30, 2003

                               __________

                           Serial No. 108-41

                               __________

  Printed for the use of the Committee on Education and the Workforce



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            COMMITTEE ON EDUCATION AND THE WORKFORCE


                    JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California
    Chairman                         Dale E. Kildee, Michigan
Cass Ballenger, North Carolina       Major R. Owens, New York
Peter Hoekstra, Michigan             Donald M. Payne, New Jersey
Howard P. ``Buck'' McKeon,           Robert E. Andrews, New Jersey
    California                       Lynn C. Woolsey, California
Michael N. Castle, Delaware          Ruben Hinojosa, Texas
Sam Johnson, Texas                   Carolyn McCarthy, New York
James C. Greenwood, Pennsylvania     John F. Tierney, Massachusetts
Charlie Norwood, Georgia             Ron Kind, Wisconsin
Fred Upton, Michigan                 Dennis J. Kucinich, Ohio
Vernon J. Ehlers, Michigan           David Wu, Oregon
Jim DeMint, South Carolina           Rush D. Holt, New Jersey
Johnny Isakson, Georgia              Susan A. Davis, California
Judy Biggert, Illinois               Betty McCollum, Minnesota
Todd Russell Platts, Pennsylvania    Danny K. Davis, Illinois
Patrick J. Tiberi, Ohio              Ed Case, Hawaii
Ric Keller, Florida                  Raul M. Grijalva, Arizona
Tom Osborne, Nebraska                Denise L. Majette, Georgia
Joe Wilson, South Carolina           Chris Van Hollen, Maryland
Tom Cole, Oklahoma                   Tim Ryan, Ohio
Jon C. Porter, Nevada                Timothy H. Bishop, New York
John Kline, Minnesota
John R. Carter, Texas
Marilyn N. Musgrave, Colorado
Marsha Blackburn, Tennessee
Phil Gingrey, Georgia
Max Burns, Georgia

                    Paula Nowakowski, Staff Director
                 John Lawrence, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                   CHARLIE NORWOOD, Georgia, Chairman

Judy Biggert, Illinois, Vice         Major R. Owens, New York
    Chairman                         Dennis J. Kucinich, Ohio
Cass Ballenger, North Carolina       Lynn C. Woolsey, California
Peter Hoekstra, Michigan             Denise L. Majette, Georgia
Johnny Isakson, Georgia              Donald M. Payne, New Jersey
Ric Keller, Florida                  Timothy H. Bishop, New York
John Kline, Minnesota                George Miller, California, ex 
Marsha Blackburn, Tennessee              officio
John A. Boehner, Ohio, ex officio





                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on October 30, 2003.................................     1

Statement of Members:
    Norwood, Hon. Charlie, a Representative in Congress from the 
      State of Georgia...........................................     2
        Prepared statement of....................................     3
    Owens, Hon. Major R., a Representative in Congress from the 
      State of New York..........................................     3

Statement of Witnesses:
    Elisburg, Don, Attorney, AFL-CIO, Building and Construction 
      Trades Department..........................................    24
        Prepared statement of....................................    25
    Hallmark, Shelby, Director, Office of Workers' Compensation 
      Programs, Employment Standards Administration, U.S. 
      Department of Labor........................................     7
        Prepared statement of....................................     9
    Howard, Dr. John, M.D., Director, National Institute for 
      Occupational Safety and Health, Centers for Disease Control 
      and Prevention, U.S. Department of Health and Human 
      Services...................................................    12
        Prepared statement of....................................    15

Additional materials supplied:
    Claimant Statements submitted by Ranking Member Major Owens..    45
    Bulletin of Atomic Scientists, July/August 2001, ``A Debt 
      Long Overdue,'' ``The Burden of Proof,'' and ``Making it 
      Work''.....................................................    45



   ENERGY EMPLOYEES WORKERS' COMPENSATION: EXAMINING THE DEPARTMENT OF 
   LABOR'S ROLE IN HELPING WORKERS WITH ENERGY-RELATED OCCUPATIONAL 
                         ILLNESSES AND DISEASES

                              ----------                              


                       Thursday, October 30, 2003

                     U.S. House of Representatives

                  Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 11:14 a.m., in 
room 2181, Rayburn House Office Building, Hon. Charlie Norwood 
[Chairman of the Subcommittee], presiding.
    Present: Representatives Norwood, Kline, Blackburn, Owens, 
Kucinich, and Woolsey.
    Also Present: Representative Wamp.
    Staff Present: Stacey Dion, Professional Staff Member; 
Kevin Frank, Professional Staff Member; Ed Gilroy, Director of 
Workforce Policy; Don McIntosh, Staff Assistant; Christine 
Roth, Professional Staff Member; Deborah L. Samantar, Committee 
Clerk/Intern Coordinator; Kevin Smith, Senior Communications 
Counselor; Maria Cuprill, Minority Legislative Associate/Labor; 
Margo Hennigan, Minority Legislative Assistant/Labor, and Peter 
Rutledge, Minority Senior Legislative Associate/Labor.
    Chairman Norwood. A quorum being present, the Subcommittee 
on Workforce Protections of the Committee on Education and the 
Workforce will now come to order.
    We are meeting today to hear testimony on energy employees' 
Workers' Compensation, examining the Department of Labor's role 
in helping workers with energy-related occupational illness and 
disease.
    Under Committee rule 12(b), opening statements are limited 
to the Chairman and the Ranking Minority Member of the 
Subcommittee. Therefore, if other Members have statements, they 
may be included in the hearing record.
    With that, I ask unanimous consent for the hearing record 
to remain open for 14 days to allow Members' statements and 
other extraneous material referenced during the hearing to be 
submitted in the official hearing record.
    Without objection, so ordered.

 STATEMENT OF HON. CHARLIE NORWOOD, CHAIRMAN, SUBCOMMITTEE ON 
WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE

    I would like to welcome everyone, and thank our 
distinguished witnesses for coming to testify on this very 
important subject.
    We are here today to learn about the energy employees' 
occupational illness compensation program. This program is 
important because it provides compensation to Americans who 
suffer from illnesses as a result of work performed in the 
production and testing of U.S. nuclear weapons.
    Our hearing today will focus on the Department of Labor's 
role in administering important worker benefits under the law.
    The Energy Employees' Occupational Illness Compensation 
Program Act of 2000 is administered today by four agencies, 
including the Departments of Labor, Energy, Health and Human 
Services, and Justice. No wonder it is taking so long. However, 
the Departments of Labor and Energy are responsible for the 
claims and review processes that provide workers with 
compensation and benefits.
    Eligible workers may file a claim for compensation and 
benefits from either of the Departments or both, if they meet 
certain criteria. For the purposes of this hearing, we will 
only examine Subtitle B of the Act, which is administered by 
the Department of Labor.
    The Department of Labor's program provided direct, lump 
sum, $150,000 compensation payments, plus medical benefits, for 
eligible employees of the Department of Energy and its 
contractors and subcontractors who have developed cancer and 
other serious diseases because they were exposed to radiation, 
beryllium, or silica, in the course of doing their jobs.
    Also, lump sum payments of $50,000 and prospective medical 
benefits are paid to some workers who are eligible for benefits 
under the Radiation Exposure Compensation Act. Specified 
survivors of covered employees are also entitled to receive 
compensation.
    The Department of Labor began processing claims on July 31, 
2001. Although the program is complicated, it is important for 
the program to be administered efficiently, and for the claims 
process to be as user-friendly as possible.
    I am pleased to note that the Department of Labor has been 
successful in administering and adjudicating the claims filed 
by thousands of American workers. So far, 48,311 claims have 
been filed with the Department of Labor, and approximately $674 
million in compensation has been paid to employees as of 
October 31, 2003.
    Today's hearing will allow us to examine the overall 
effectiveness of the Department of Labor's role in this 
Workers' Compensation program, and whether the claims 
processing, communication, and payment procedures for eligible 
employees have been sufficient in meeting their needs and 
furthering the goal of this program.
    We have a significant amount of technical information to 
discuss today, so I am anxious to hear from our witnesses. I 
look forward to discussing the issues related to these 
processes with my colleagues on this very important 
compensation program for our dedicated Department of Energy 
employees.
    I will now yield to the distinguished Ranking Minority 
Member from New York, Major Owens, for whatever opening 
statement he may wish to make.
    [The statement of Chairman Norwood follows:]

Statement of Hon. Charlie Norwood, Chairman, Subcommittee on Workforce 
         Protections, Committee on Education and the Workforce

    I'd like to welcome everyone and thank our distinguished witnesses 
for coming to testify on this very important subject. We are here today 
to learn about the Energy Employees' Occupational Illness Compensation 
Program. This program is important because it provides compensation to 
Americans who suffer from illnesses as a result of work performed in 
the production and testing of U.S. nuclear weapons. Our hearing today 
will focus on the Department of Labor's role in administering important 
worker benefits under the law.
    The Energy Employees' Occupational Illness Compensation Program Act 
of 2000 is administered by four agencies, including the Departments of 
Labor, Energy, Health and Human Services, and Justice. However, the 
Departments of Labor and Energy are responsible for the claims and 
review processes that provide workers with compensation and benefits. 
Eligible workers may file a claim for compensation and benefits from 
either the Departments, or both, if they meet certain criteria. For 
purposes of this hearing, we will only examine Subtitle B of the Act 
which is administered by the Department of Labor.
    The Department of Labor's program provides direct, lump sum 
$150,000 compensation payments plus medical benefits for eligible 
employees of the Department of Energy and its contractors and 
subcontractors who developed cancer and other serious diseases because 
they were exposed to radiation, beryllium or silica in the course of 
doing their jobs. Also, lump-sum payments of $50,000 and prospective 
medical benefits are paid to some workers who are eligible for benefits 
under the Radiation Exposure Compensation Act. Specified survivors of 
covered employees are also entitled to receive compensation.
    The Department of Labor began processing claims on July 31st, 2001. 
Although the program is complicated, it is important for the program to 
be administered efficiently and for the claims process to be as user-
friendly as possible. I am pleased to note that the Department of Labor 
has been successful in administering and adjudicating the claims filed 
by thousands of American workers. So far, 48,311 claims have been filed 
with the Department of Labor and approximately $674,000,000 in 
compensation has been paid to employees as of October 23, 2003.
    Today's hearing will allow us to examine the overall effectiveness 
of the Department of Labor's role in this workers' compensation 
program, and whether the claims processing, communication, and payment 
procedures for eligible employees has been sufficient in meeting their 
needs and furthering the goal of this program.
    We have a significant amount of technical information to discuss 
today, so I am anxious to hear from our witnesses. I look forward to 
discussing the issues related to theses processes with my colleagues on 
this important compensation program for our dedicated Department of 
Energy employees.
    And, I now yield to the distinguished Ranking Minority Member from 
New York, Mr. Owens, for whatever opening statement he wishes to make.
                                 ______
                                 

STATEMENT OF HON. MAJOR OWENS, RANKING MEMBER, SUBCOMMITTEE ON 
WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE

    Mr. Owens. Thank you, Mr. Chairman. I also want to thank 
all of today's witnesses for being here this morning. I 
particularly want to thank Don Elisburg. He is here at my 
request, and I know that he has traveled across the country in 
order to be here.
    I want to commend Chairman Norwood and also Committee 
Chairman Mr. Boehner for scheduling this hearing. This is a 
Committee that is supposed to have expertise for Workers' 
Compensation programs generally. As the primary oversight 
Committee for both NIOSH and the Department of Labor, this is a 
Committee that comes the closest to having primary jurisdiction 
for the Energy Employees' Occupational Illness Compensation 
Program Act. I will refer to it from here on as the Act.
    However, beyond unsuccessfully opposing enactment of this 
Act, this Committee had virtually no role in the enactment of 
this legislation, and despite the fact that the Act was passed 
3 years ago today, this is the first hearing on the program, 
and in my view, this kind of recalcitrance borders on 
negligence, so I commend the Chairman for scheduling this 
hearing.
    The Act authorizes compensation for workers who are injured 
as a result of being employed to develop and build nuclear 
weapons. For decades, the U.S. Government has hid and misled 
the extent to which these workers were being poisoned, and 
spent millions of dollars fighting allegations that the 
production of nuclear weapons was jeopardizing workers' health.
    According to the GAO, in 1992 alone, the Energy Department 
spent $40 million defending contractors from litigation brought 
by sick workers. We are talking about workers who literally 
risked their lives defending the nation, but who were lied to, 
misled, and cheated by their government. This is the background 
that led to the enactment of the Energy Employees' Compensation 
Act.
    We routinely refer to this program as a Workers' 
Compensation program, but I think it is a mistake, that 
reference is a mistake. This program has very little in common 
with traditional state Workers' Compensation laws. In my view, 
it makes much more sense to view this as a reparation program, 
because that is what it really is.
    The intent of the Act is to provide a very modest benefit, 
$150,000 and medical benefits, if the injured worker is still 
alive--and too many are not--to all nuclear energy workers 
after the survivors have developed radiation-induced cancers 
and illnesses.
    The program was never intended to be limited only to those 
workers employed at gaseous diffusion plants.
    The real credit for the passage of this landmark 
legislation goes to people like Clara Harding, the widow of Joe 
Harding, who died a slow and painful death from stomach cancer 
in 1980. Joe Harding worked for Union Carbide at the Energy 
Department's uranium enrichment plant in Paducah, Kentucky. 
After 17 years on the job, Joe Harding found himself 50 years 
old with no job, no stomach, a crippled leg, bad lungs, no way 
to get a job, and no compensation for his injuries.
    Clara Harding had to sell her house and supported herself 
by babysitting for 20 years before ever receiving any 
compensation for her husband's death.
    The purpose of this program is to ensure that other 
families, including families in Hanford, Washington; Rocky 
Flats, Colorado; Niagara Falls, New York; and Savannah River, 
South Carolina, as well as those in Paducah, Kentucky and 
Portsmouth, Ohio, do not face the inhuman and horrific 
treatment that the government afforded Mrs. Harding and her 
husband.
    Unfortunately, based on information I have received 
concerning the experiences of workers in Niagara Falls, it 
appears that these workers are still not being treated as they 
deserve.
    Judith Anne Cinelli is a widow of a former atomic worker in 
Niagara Falls, New York. She filed her claim on September 21, 
2001. She has yet to be interviewed by NIOSH. The Department of 
Labor denied her claim because her husband's dates of 
employment were outside the covered period. This is how Mrs. 
Cinelli describes her experience: At the time, it was not 
common knowledge of the dangers of radiation. He died in my 
arms of lung cancer 6 weeks after diagnosis at age 60.
    It is haunting to think of the innocent people only trying 
to make a living with the specter of a silent killer hanging 
over them. So an early death was the ultimate consequence of 
working in buildings contaminated by residue from the Manhattan 
Project just a few years prior.
    Of course, it was devastating to lose the love of your life 
after 39 years of marriage. Frank never even retired after a 
life of working to care for our family of four children who 
adored him.
    It causes a great deal of anguish to think that our 
government won't care for our own. It is not that large of a 
dollar amount for a loss of life, for suffering from untold 
cancers. This compensation needs to be paid for a token justice 
to the losses suffered by those who toiled there year after 
year.
    Losing Frank has brought heartache to me, our four kids, 
and their spouses, and also our 12 grandchildren and many 
friends. That sadness is enough to bear, but to live with the 
knowledge that there are bad people who know that this is the 
right thing to do and are trying everything humanly possible to 
prevent those waiting for years for this to come to closure is 
sickening and disgusting, at best. Those in power trying to 
deny this will probably never experience the frustration and 
loss the likes of us have, and as angry as I am, I pray they 
never do.
    Thomas J. Catanzaro is a former atomic worker at Niagara 
Falls, also. He filed a claim on August 2, 2001. He also has 
not heard from NIOSH. He worked at Lake Ontario Ordnance Works 
in 1957 as a laborer, and has been told by the Department of 
Energy that they are having trouble finding his former 
employers because a few went out of business.
    This is how he describes his experience, and I will close 
after this, Mr. Chairman.
    I got colon cancer and a colostomy done in 1969 at the age 
of 32. The doctors said that was unheard of at my age. I could 
not have any more children. My recovery took a long time. I 
missed out on all the things a father enjoys with his sons and 
the relations a man has with his wife.
    When I called to find out the status of my claim, I was 
told by a worker at DOE there were people that were far more 
deserving than myself. I have been on disability and have been 
living very frugally for a long time.
    To know that there is compensation for wallowing in a 
radioactive dump during that time and being made to wait all 
this time is very frustrating. It is impossible to condense all 
the things that I lost at the age of 32 until now. I couldn't 
provide for my family as I would have liked, watching my wife 
having to work two jobs to supplement our income. The list 
could go on forever. There must be a way to speed this process 
along. I have watched two of my co-workers on that job die this 
year.
    Mr. Chairman, notwithstanding the passage of the Act, these 
workers continue to feel that their government is at best 
ignoring them, and at worst, betraying them.
    This is a problem that must be addressed.
    Mr. Chairman, I have a number of documents I would like to 
submit for the record. These claimant statements that have been 
submitted to me by Congresswoman Louise Slaughter, who 
represents that area of Niagara, and also articles from a July/
August 2001 issue of the Bulletin of Atomic Scientists, 
describing the enactment of the Act and the circumstances that 
led to its enactment.
    Additionally, Mr. Chairman, there are written questions 
that I would like to submit to NIOSH and the Department of 
Labor after the hearing for inclusion in the hearing record.
    I ask unanimous consent to be able to do so.
    Chairman Norwood. Without objection, so ordered.
    Chairman Norwood. Thank you, Mr. Owens.
    Let me make a little point here. This is a very bipartisan 
effort. There are people on both sides of the aisle that are 
particularly interested in this subject, and Mr. Owens has just 
mentioned two Democrats, or at least one, Louise Slaughter, and 
Congressman Strickland is also very interested in this subject. 
I notice my buddy from Tennessee, Congressman Zack Wamp, is 
here. Obviously, he is very interested in this subject with Oak 
Ridge, and your Chairman is extremely interested in this 
subject, in that I represent a lot of people that work at the 
Savannah River site.
    It is always a pleasure for me to be able to deal with a 
subject in which there is bipartisan support. Mr. Owens, I 
think with enough of us pushing, we are going to try to get 
this thing improved greatly.
    I thank you for your opening statement, and I would now 
like to introduce our panel of witnesses for this morning's 
hearing.
    First, we will hear from Mr. Shelby Hallmark. Mr. Hallmark 
was named as the Director of the Office of Workers' 
Compensation Programs--in Washington-speak, OWCP--on June 18, 
2001. He served as acting director on two occasions, February 
1996 through November 1997 and December 1999 through 2001. 
Previously, he has been the OWCP deputy director since February 
1990.
    Mr. Hallmark's career in the Department of Labor began 
actually in 1980. He held a series of positions in the former 
Standards Administration Office of Management Administration 
and Planning, culminating in his service as that of Office 
Director from 1987 to 1990. He was appointed then to the Senior 
Executive Service in 1988.
    Mr. Hallmark, we certainly welcome you and thank you for 
giving us your time.
    Incidentally, Mr. Shelby Hallmark served in a collateral 
capacity as Chair of the Secretary of Labor's strategic and 
performance planning work group in 1998, and led the 
development of the Department's 1999 through 2004 strategic 
plan and its 2000 annual performance plan.
    Our second witness is Dr. John Howard. Dr. Howard is 
Director of the National Institute for Occupational Safety and 
Health in the U.S. Department of Health and Human Services in 
Washington.
    Prior to his appointment as Director of NIOSH, Dr. Howard 
served as Chief of the Division of Occupational Safety and 
Health in the California Department of Industrial Relations 
from 1991 through 2002.
    Dr. Howard is board-certified in internal medicine and 
occupational medicine, and has a list of degrees as long as my 
arm. He is admitted to the practice of medicine and law in the 
State of California and the District of Columbia, and he is a 
member of the U.S. Supreme Court Bar.
    He has written numerous articles on occupational health law 
and policy, and how you had time to get out of school is beyond 
me.
    Our final witness, Don Elisburg--we have met before, 
haven't we? Don Elisburg is an attorney representing the AFL-
CIO and the Building and Construction Trades Department of the 
AFL-CIO. He testified in support of the legislation that 
ultimately became EEOICPA before the Congress, and specifically 
in support of assigning the program to the Secretary of Labor 
while the legislation that became EEOICPA was under 
consideration in the year 2000.
    He was also a member of the Workers' Advocacy Committee of 
the Department of Energy from January 2001 through December 
2002. That advisory committee was appointed to assist the 
Department of Energy in implementing its responsibilities under 
the EEOICPA.
    He was Executive Director of the Occupational Health 
Foundation from 1986 to 1991, and he is former general counsel 
and staff director of the U.S. Senate Committee on Labor and 
Human Resources. Mr. Elisburg was Assistant Secretary of Labor 
from 1977 through 1981.
    We welcome and thank you all. Before the first panel begin 
their testimony, I would like to remind Members that we will be 
asking questions after the entire panel has testified. In 
addition, Committee Rule 2 imposes a 5-minute limit on all 
questions. I ask that none of you embarrass me by going over 5 
minutes. I do not like to ask people to stop. If you will do it 
on your own, I would be grateful.
    The lights in front of you, gentlemen, I think you all 
know, they are red, green, and caution. That is giving you some 
indication as to when your 5 minutes is up, and if you will 
help with that, I will be very grateful.
    With that, I would like to now recognize Mr. Hallmark for 5 
minutes.

  STATEMENT OF SHELBY HALLMARK, DIRECTOR, OFFICE OF WORKERS' 
  COMPENSATION PROGRAMS, EMPLOYMENT STANDARDS ADMINISTRATION, 
                    U.S. DEPARTMENT OF LABOR

    Mr. Hallmark. Thank you, Mr. Chairman, and Members of the 
Subcommittee. I am the Director, as the Chairman indicated, of 
the Office of Workers' Compensation Programs within the 
Employment Standards Administration, within the Department of 
Labor (DOL). Mr. Elisburg was my boss back in 1980 when I came 
to Labor.
    I am pleased to have the opportunity to appear before the 
Subcommittee this morning to discuss the progress DOL has made 
in implementing Part B of the Energy Employees' Occupational 
Illness Compensation Program Act, which we like to call 
EEOICPA.
    It is appropriate exactly 3 years after its passage that we 
review progress to date. DOL was assigned primary 
responsibility for administering and adjudicating claims under 
Part B of the Act, and for getting it up and running by July 
31, 2001.
    We achieved that goal, and the first payment was made to 
Clara Harding, presented by Secretary Chao on August 9, 2001. 
Since then, the Department of Labor has taken in almost 48,000 
claims. We have conducted nearly 600 public meetings around the 
country. We have established ten resource centers jointly with 
the Department of Energy to inform claimants about this program 
and help them file. We have established four district offices 
in Jacksonville, Cleveland, Denver, and Seattle, and the 
infrastructure to support those offices, so that we can process 
cases. We have issued over 34,500 case decisions, and awarded 
almost $700 million in compensation and medical benefits.
    I would like to quickly go through who is eligible under 
the program, and I have a chart over here that diagrams our 
process.
    First of all, there are two fundamental tests. One, you 
must have been employed under what we call a covered employment 
situation, and you must have a covered illness. Covered 
employment means the Department of Energy or related facility, 
during a covered time period when nuclear weapons were being 
produced, and the covered illness means radiation-induced 
cancer, beryllium disease, or for miners at test sites, chronic 
silicosis.
    Walking through the process--there is a copy of this chart 
in your packets, it might make it a little simpler to 
understand this complex process.
    Claims go first to your district offices in Jacksonville, 
Cleveland, Denver and Seattle. They develop the claim to 
determine whether there is covered employment or covered 
medical condition. That is the ``evidence developed'' in the 
far right-hand corner. Once they have determined there is a 
covered condition, that determines the processing. There are 
five different kinds of cases that we deal with.
    The first is beryllium disease. The second is silicosis. 
The third is actually RECA coverage, that is that supplemental 
payment that we make for people who receive benefits from the 
Department of Justice. The fourth is a specified cancer that 
relates to the designated special exposure cohorts, where there 
is a presumption of causation, and the fifth is the radiation-
induced cancer, where there needs to be a causation 
determination by our friends at NIOSH.
    The first four cases we can take immediately from when we 
have that block saying what is the covered condition, to a 
recommended decision in our district offices, that block right 
in the middle of the chart.
    At that point, a decision is issued to the claimant. The 
claimant may agree or object. If they object, we will have a 
hearing, and then a final decision will apply to the case.
    If it's not one of those four types of cases, if it is a 
cancer that requires a causation determination, then the case 
must be prepared and submitted to NIOSH for a dose 
reconstruction to determine what in fact was the nature of 
their cancer, the causation of their cancer.
    Once that decision is made, once NIOSH completes its 
report, it comes back to us, the probability of causation box, 
we determine using a regulation that NIOSH also developed for 
us, whether or not it is at least as likely as not that the 
cancer was in fact caused by the radiation on the job. That 
then flows back to the recommended decision box, and then the 
claim proceeds the same for those cases as it would for the 
others.
    For 2002, we set up our performance goals under GPRA for 
this program to get us to the middle of that chart within 120 
days for simple cases and 180 for the more difficult cases. We 
did not make that because of the backlog we had starting the 
program, but I am happy to say that we got to 48 percent 
instead of 75.
    In 2003, we did meet those goals. We have cleared the 
backlog. There are only approximately 7 weeks of incoming cases 
awaiting processing in the Department of Labor, and I believe 
that is what I consider to be a credible and working system at 
the present moment, and we hope a user friendly one as well.
    The coming year faces us with a challenge of receiving back 
the masses of cases that have been transferred to NIOSH and 
processing them through the recommended and final decision 
process. We will also be working to reach out to the public to 
make sure that everyone who is eligible for this program knows 
about it and can file a claim if they so choose.
    I would be glad to answer questions at the end of this 
session.
    [The prepared statement of Mr. Hallmark follows:]

Statement of Shelby Hallmark, Director, Office of Workers' Compensation 
                   Programs, U.S. Department of Labor

    Mr. Chairman, and Members of the Committee, my name is Shelby 
Hallmark, Director, Office of Workers' Compensation Programs (OWCP), 
part of the Employment Standards Administration (ESA), within the 
Department of Labor (DOL). OWCP is responsible for administering four 
major disability compensation programs which provide wage replacement 
benefits, medical treatment, vocational rehabilitation and other 
benefits to certain workers or their dependents that experience work-
related injury or occupational disease.
    I am pleased to have an opportunity to appear before the 
Subcommittee today to discuss the progress DOL has made in implementing 
Part B of the Energy Employees Occupational Illness Compensation 
Program Act (EEOICPA). It is appropriate, exactly three years after its 
enactment, that we review our progress to date in meeting this 
challenge.
    As you know, under Executive Order 13179, DOL was assigned primary 
responsibility for administering and adjudicating claims for 
compensation for cancer caused by radiation, beryllium disease and 
certain other conditions under Part B of the Act, and for ensuring that 
the program was up and running by July 31, 2001. Since funding for the 
new program was not received until January 2001, DOL faced a major 
initial challenge just to meet the congressionally mandated start date. 
We succeeded in issuing interim final regulations in May of that year 
and established a fully functioning program on schedule. The first 
payment was presented by Secretary Chao on August 9, 2001. Since then, 
DOL has taken in almost 48,000 claims, conducted about 575 public 
meetings to inform potential claimants of the program and help them 
file claims, established 10 permanent resource centers in the locations 
where most potential claimants reside, established four DOL district 
offices and the infrastructure to support them, issued decisions in 
over 34,500 cases and awarded almost $700 million in compensation and 
medical benefits.
    Employees who worked for the Department of Energy (DOE), one of its 
contractors or subcontractors at a DOE facility, or at a facility 
operated by a private company designated as an Atomic Weapons Employer 
or a beryllium vendor, may be eligible for a lump-sum award and future 
medical benefits under Part B of the Act. Survivors of these workers 
may also be eligible for benefits. Part D of the Act established a 
system under which employees whose occupational diseases are found by a 
panel of independent physicians to have been connected to work-related 
exposure to toxic substance receive assistance in obtaining state 
workers compensation benefits.
    Under the Executive Order, four agencies have responsibility for 
administering the Act, DOL, DOE, the Department of Health and Human 
Services (HHS), and the Department of Justice (DOJ). The DOL, as the 
lead agency, determines eligibility for compensation and medical 
expenses for those conditions covered by Part B of the Act. The DOE 
provides employment verification to DOL relevant to claims under Part 
B, provides worker exposure information to the Department of Health and 
Human Services for its use in making estimates of the radiation 
received by a covered worker, administers Part D of the Act, and 
designates private companies as atomic weapons employers and additional 
beryllium vendors. DOL and DOE jointly manage the ten outreach centers 
aimed at informing potentially eligible workers or their survivors 
about the EEOICPA programs.
    HHS establishes procedures for estimating radiation doses, develops 
guidelines to determine the probability that a cancer was caused by the 
exposure to radiation, estimates radiation doses (dose reconstruction), 
determines additions to the Special Exposure Cohort, and provides 
support for the Advisory Board established by the Act. And finally, the 
Department of Justice notifies uranium workers eligible for benefits 
under the Radiation Exposure Compensation Act (RECA) that they may also 
receive compensation from the Department of Labor and provides DOL with 
documentation concerning those claims.
    Several requirements must be met for a claimant to be eligible for 
compensation under the EEOICPA. For a worker (or eligible survivor) to 
qualify for benefits under Part B, the employee must have worked at a 
covered DOE, Atomic Weapons Employer, or beryllium vendor facility 
during a covered time period and developed one of the specified 
illnesses as a result of their exposure to radiation, beryllium or 
silica. Covered medical conditions include radiation-induced cancer, 
beryllium disease, or chronic silicosis (chronic silicosis is only 
covered for individuals who worked in nuclear test tunnels in Nevada 
and Alaska). Covered workers receive a one time lump-sum payment of 
$150,000 as well as medical treatment for the covered condition 
(medical services and evaluations only for beryllium sensitivity). The 
EEOICPA also provides compensation in the amount of $50,000 to 
individuals (or their eligible survivors) awarded benefits by the DOJ 
under Section 5 of the Radiation Exposure Compensation Act (RECA).
    Allow me to briefly explain how claims filed with DOL are 
processed. When a claim is filed, it is assigned to one of our four 
District Offices--Jacksonville, FL; Cleveland, OH; Denver, CO; or 
Seattle, WA--based on geographical location of the covered worker's 
last employment. It is assigned to a claims examiner who will review 
the documentation and determine if the criteria established by the Act 
for covered employment and covered illness are met. The claims examiner 
will work with the claimant, DOE and/or the private employer or 
employers involved to develop the case file as thoroughly and 
completely as possible.
    There are several different types of claims under Part B of the 
Act, which require different processing steps. Claims for the $50,000 
RECA supplement are the least complex, involving verification via the 
Department of Justice that a RECA award has been made, and 
documentation of the identity of the claimant (including survivor 
relationship issues). For claims involving beryllium disease, 
silicosis, or a ``specified cancer'' for workers at a Special Exposure 
Cohort (SEC) facility, the employment and illness documentation is 
evaluated in accordance with the criteria in the EEOICPA. The DOL 
district office will then issue a recommended decision to the claimant. 
The claimant may agree with the recommended decision, or may object and 
request either a review of the written record or an oral hearing (the 
latter will normally be held at a location near the claimant's 
residence). In either case, the Final Adjudication Branch (a separate 
entity within the DOL's Office of Workers' Compensation Programs) will 
review the recommended decision and any evidence/testimony submitted by 
the claimant and will issue a final decision, either awarding or 
denying benefits (or the Branch may remand to the district office if 
further development of the case is necessary). A Final Decision can 
then be appealed to the U.S. District Courts.
    DOL can move directly to a decision on cases involving a 
``specified cancer'' at a Special Exposure Cohort facility because the 
Act provided a presumption that any of the listed cancers incurred by 
an SEC worker was caused by radiation exposure. For cases involving a 
claimed cancer not covered by the SEC provisions (that is, either a 
cancer incurred at a non-SEC facility, or a cancer incurred at an SEC 
facility that is not one of the specified cancers listed in the Act), 
there is an intervening step in the process to determine causation, 
called ``dose reconstruction.'' In these instances, once DOL determines 
a worker was a covered employee and that he or she had a diagnosis of 
cancer, the case is referred to the National Institute for Occupational 
Safety and Health (NIOSH) so that the individual's radiation dose--the 
total amount and character of radiation to which the individual was 
exposed related to his or her employment in the nuclear weapons 
complex--can be estimated. NIOSH will describe the dose reconstruction 
process in detail in their testimony.
    After NIOSH completes the dose reconstruction and calculates their 
dose estimate for the worker, DOL takes this estimate and applies 
methodology also developed by NIOSH in its ``probability of causation'' 
regulations, to determine if the statutory causality test is met--that 
is, whether the individual's cancer was at least as likely as not (at 
least 50 percent probability) related to covered employment. DOL's 
district office then issues a recommended decision on eligibility for 
EEOICPA benefits, which is subject to the same subsequent 
administrative procedures and appeal rights described above with regard 
to other claims.
    The Department of Labor is committed to measuring the 
accomplishment of outcomes and holding ourselves accountable for 
achieving the fundamental goals of all the programs we administer. With 
respect to the Energy Compensation program, we established high 
performance standards focused on moving claims rapidly through the 
initial and secondary adjudication stages. Our Government Performance 
Results Act (GPRA) goals, even for the first full year (fiscal year 
2002), were challenging in light of the large number of first year 
claims and program start-up activities.
    Our goal for initial processing was to make initial decisions in 75 
percent of the cases within 120 days for cases from DOE facilities and 
in RECA claims, and within 180 days for AWE, beryllium vendor, and 
subcontractor cases (for which employment and other critical 
information is generally more difficult to obtain). Because we had 
nearly 30,000 cases on hand to start with, we knew in advance we would 
not meet those goals, which were conceptualized in terms of a normal, 
steady-state flow of incoming claims. However, we knew that the 
customers of this program had been waiting for years for their 
illnesses to be addressed, and establishing rigorous performance goals 
signaled to our own staff and to those potentially eligible for 
benefits that we were committed to efficiently processing claims. In 
fact, we took timely initial actions (either recommended decisions or 
referral to NIOSH for dose reconstruction) in about 48 percent of the 
cases during that first year of operation (fiscal year 2002), despite 
the backlog of aged cases that we brought into the year. The smaller 
number of final decisions completed in fiscal year 2002 met our GPRA 
timeliness goals in 76 percent of cases.
    Although we had received over 47,000 Part B claims by the end of 
fiscal year 2003, we have made recommended decisions or referred to 
NIOSH for dose reconstructions all of our backlogged cases and 
currently have a working inventory of only 1500 cases. Further, we met 
our GPRA goals in fiscal year 2003. Through the efforts of our district 
office and Final Adjudication Branch staff, we made timely initial 
decisions in 79 percent of the cases processed, in excess of the 75 
percent goal. With regard to final decisions, 77 percent of the 
decisions were within the program standards, also in excess of the goal 
of 75 percent. Accomplishment of these goals took the persistent, case-
by-case effort of the entire staff of our Division of Energy Employees 
Occupational Illness Compensation Program, as well as the continuing 
support of our Solicitor's Office.
    DOL has also focused on achieving quality decisions, and on 
providing clear and effective communications to our customers and 
stakeholders. The program instituted an intensive Accountability Review 
process to ensure that samples of case work are scrutinized by 
objective reviewers, and where quality issues are identified in these 
samples, to take strong and immediate corrective action. The 
headquarters staff has developed effective and comprehensive procedural 
and policy guidance, a difficult task in the context of a new and still 
evolving compensation program. Although no workers' compensation 
program is without conflict, the level of appeals has been relatively 
low.
    Since the effective date of the Act, DOL has received 47,844 claims 
which were filed based on 36,597 individual cases or workers. As of 
October 23, 2003, we have made recommended decisions or referred the 
case to NIOSH for dose reconstruction in 95 percent of these cases. 
There have been over 24,000 Final Decisions issued and nearly $675 
million in compensation payments made to over 9000 claimants. 
Additionally, nearly $20 million in medical benefits have been paid. A 
detailed listing of current program statistics is displayed in attached 
Program Status Report.
    In the coming year DOL is prepared to adjudicate the thousands of 
cases that will be returned by NIOSH with completed dose 
reconstructions. We have established a performance goal to issue a 
recommended decision within 21days of receiving a dose reconstruction 
report from NIOSH. We have been exceeding this goal so far. We also 
have made a commitment to conduct significant outreach efforts to reach 
as many potential claimants as possible and inform them of the program. 
These efforts will include a significant number of strategically 
located traveling resource centers to provide assistance to potential 
claimants, as well as coordination with pension funds, unions, and 
other groups which may be able to extend our message about the program 
to retirees and workers or their survivors who no longer live in 
proximity to a DOE facility.
    In summary, I'm pleased to report that all aspects of the EEOICPA 
Part B program are fully operational. We believe that we have 
established a credible program and forged effective working 
relationships with our partner agencies--DOE, HHS, and DOJ as well as 
with the DOE contractors and labor unions. For example, DOL and DOE 
have worked cooperatively to improve the employment verification 
process and have instituted a number of efficiency measures. These 
efforts have resulted in the average time for completion of employment 
verification at DOE facilities to be reduced from nearly 90 days at the 
beginning of fiscal year 2002 to a current average of less than 45 
days. Similarly, the time for corporate verifiers to respond to 
employment verification has been reduced from about 75 days to the 
current average of 24 days. DOL and HHS also work in cooperation to 
improve the efficiency and effectiveness of the transfer of cases and 
case information of referrals for dose reconstruction. These efforts 
have resulted in processes that ensure that recommended decisions are 
issued within 21 days of receipt of the dose reconstruction report from 
NIOSH.
    In addition to the program statistics provided, we have included a 
summary of information for each member relating to the program in 
general and to your District specifically. I'll be pleased to answer 
any questions you may have.
                                 ______
                                 
    Chairman Norwood. Thank you very much, Mr. Hallmark.
    Dr. Howard, we are happy to have your sidekick there, Mr. 
Elliott, with you. I just want to make sure the Committee 
understands he is here at your request to help answer 
questions. You are now recognized for 5 minutes.

 STATEMENT OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL INSTITUTE 
FOR OCCUPATIONAL SAFETY AND HEALTH, CENTERS FOR DISEASE CONTROL 
  AND PREVENTION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

    Dr. Howard. Thank you, Mr. Chairman.
    I am the Director of the National Institute for 
Occupational Safety and Health (NIOSH), and our job, as Mr. 
Hallmark has stated, is to support the Department of Labor in 
their administration of Part B.
    Under Executive Order 13179, issued on December 7, 2000, 
the President charged HHS with specific responsibilities 
related to Part B. First, the President charged HHS with 
assisting a new Federal advisory committee, the advisory board 
on radiation and worker health, to advise HHS on its activities 
under Part B. The advisory board is constituted pursuant to the 
Act, with a balance of scientific, medical, and worker 
perspectives, and has been exceptionally active in assisting us 
under the excellent leadership of Dr. Paul Ziemer.
    Second, HHS was charged with promulgating two regulations 
required under the Act. The first one was to establish methods 
for conducting radiation dose reconstructions for cancer 
claimants. Dose reconstruction is a science based process for 
looking back in time and estimating the amounts and the types 
of radiation doses a person incurred.
    The Act also required a second regulation establishing 
guidelines by which DOL would determine whether the cancer of 
an employee was at least as likely as not related to the 
radiation dose estimated for that employee through dose 
reconstruction.
    HHS promulgated both of these regs in final form in 2002, 
in May of 2002.
    The third responsibility of HHS is the development and the 
administration of the dose reconstruction program for cancer 
claimants. This is the largest task that we have. The scale and 
scientific complexity of the dose reconstruction program 
required by the Act are quite significant in comparison to 
other Federal compensation programs requiring dose 
reconstructions.
    NIOSH began developing this program in the summer of 2002, 
and in the 2 years since then, we have created the scientific 
and management systems and protocols that a program of this 
size and complexity requires, finalized a contract which 
provides NIOSH with the services of more than 300 scientists, 
technicians and administrative support, and made significant 
progress in obtaining and analyzing extension information 
required to support those reconstructions, including the 
development of site surveys, which provide essential 
information on radiation uses, certain radiation exposures, 
monitoring practices for a given site, and provide a basic 
foundation of data for production scale dose reconstructions.
    I think there are two important points to note about the 
development of our program. First, while NIOSH has some of the 
leading expertise in conducting dose reconstructions for 
scientific purposes, the practical challenges of conducting 
dose reconstructions for a compensation program are new to us.
    Second, the Department of Energy has had to develop systems 
for identifying and retrieving records requested by us for 
individual cases. I think over the past year, DOE has greatly 
enhanced its capacity to do this.
    Where we are at in terms of this day, we have received 
about 14,000 cases, as Mr. Hallmark has indicated, from DOL. We 
have made more than 12,000 requests to DOE for data. In 
addition, we have requested data from other sources for 
employees of atomic weapons employers.
    We have completed dose reconstruction interviews for more 
than 9,500 claimants and co-workers. We have assigned 1,800 
cases to health physicists to conduct the dose reconstructions. 
We have drafted 250 dose reconstruction reports that are 
currently being reviewed by the claimants, which have up to 60 
days for their review, and we have completed 774 dose 
reconstructions and returned them to the Department of Labor.
    As the summary indicates, we do have a substantial backlog 
of dose reconstructions to complete. I think this backlog arose 
in large part because we had to begin accepting dose 
reconstruction requests in 2001, long before we had the 
infrastructure or capacity to complete any dose 
reconstructions.
    As of today, we are steadily increasing our capacity to 
complete dose reconstructions on a production scale, because 
nearly all of our program development has been completed. We 
are progressively completing more dose reconstructions each 
month, and we expect greater increases in the months ahead.
    As our capacity for dose reconstruction has increased, the 
number of new cases requiring dose reconstruction has been 
decreasing since the fourth quarter of fiscal year 2002.
    Fourth, I just wanted to mention our responsibility under 
Part B concerns making additions to the special exposure 
cohort. The Department is in final stages of promulgating a 
regulation that will allow us to implement this authority. This 
regulation will set out procedures as required by the Act, by 
which classes of employees can petition HHS for addition to the 
cohort, and by which HHS will consider such petitions.
    In conclusion, HHS and NIOSH are working intensively to 
meet our responsibilities under the Act. The major tasks have 
been challenging because they employ dose reconstruction 
expertise and systems on an unprecedented scale.
    We remain keenly aware, however, that the nuclear weapons 
workforce, their families, are relying on us to accomplish this 
work as quickly as possible. We understand that doing the best 
we can is not good enough from the perspective of our 
claimants, some of whom are dying of cancer or who have lost a 
spouse, a parent, or a sibling to cancer.
    As we proceed, we will try to strive to produce dose 
reconstructions that are as timely as possible, that are fair, 
and that are grounded in the best available science.
    Thank you, Mr. Chairman. I would be happy to answer any 
questions.
    [The prepared statement of Dr. Howard follows:]

 Statement of Dr. John Howard, M.D., Director, National Institute for 
    Occupational Safety and Health, Centers for Disease Control and 
       Prevention, U.S. Department of Health and Human Services 
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                                 ______
                                 
    Chairman Norwood. Thank you, Dr. Howard.
    Now, we would like to go to Mr. Elisburg for 5 minutes.

 STATEMENT OF DONALD ELISBURG, ATTORNEY, AFL-CIO, BUILDING AND 
                 CONSTRUCTION TRADES DEPARTMENT

    Mr. Elisburg. Thank you, Mr. Chairman, Members of the 
Subcommittee. Thank you for the opportunity to testify today. 
We have a detailed statement which we have submitted for the 
record.
    I would like to point out one correction in that statement, 
which is that the special exposure cohorts of the statute also 
include workers from Amchitka Island, Alaska. In the process of 
putting this together, that piece got dropped out.
    The AFL-CIO and its affiliates have a significant interest 
in the implementation of this program because of the 
involvement since the nuclear weapons program began as the 
Manhattan Project in the early 1940's, when members of the 
various affiliate unions built and maintained the many 
facilities used to develop and maintain nuclear weapons. Our 
members have also served as the principal production and 
operating personnel of these weapons facilities.
    For decades, the AFL-CIO, the Building and Construction 
Trades Department, the Metal Trades Department, PACE, and other 
unions have worked to secure safety and health rights and 
protections, and just compensation for these workers, and this 
statement really has been approved and represents the view of 
all these affiliates.
    As we have testified before Congress many times, these 
workers were engaged and continue to be engaged in activities 
vital to the security of the United States. They deserve to be 
treated with fairness and dignity.
    The law was passed in recognition of the fact that the work 
at these facilities put workers at risk of injury, illness and 
death from exposure to radiation and various toxic chemicals 
and materials used in the nuclear weapons program. Secrecy put 
these workers at additional risk. The law was Congress' 
recognition and determination to compensate workers and their 
families, even if it would not make them whole.
    Unfortunately, the experience with the implementation of 
this program is just not what these sick workers or their 
survivors survive, nor does it meet the objectives Congress set 
forth in the Act. Energy workers with radiation induced cancers 
need timely compensation and that is not happening with many 
thousands of claimants.
    Let me point out that there are really two pieces to this 
statute, which is the Part B dealing with the Department of 
Labor and NIOSH, and Subpart D which are the so-called 
Department of Energy claims.
    You have asked that we comment on the Department of Labor 
and NIOSH, but our statement does include some extensive 
analysis and discussion of the other part of the program 
because of those many thousands of claimants who are not being 
promptly dealt with.
    Subpart B provides a lump sum payment if workers meet 
certain criteria of radiation and if cancers are cancers due to 
exposure to silica and beryllium. The statute appears to have 
created two classes of workers, those in special exposure 
cohorts designated by Congress, and those who are otherwise to 
be individually adjudicated.
    If you are designated by Congress, you file your claim, it 
is reviewed for medical sufficiency and employment history, and 
you get paid by my colleague, Shelby Hallmark's group, and I 
must say Shelby was one of our better success stories at the 
Department of Labor. It is presumed that you were exposed to 
sufficient radiation to have caused the cancer.
    If you are not in the special exposure cohort, you are 
subject to the complicated and user unfriendly process of dose 
reconstruction to see if you have enough radiation exposure to 
qualify for compensation.
    The difficulty with this approach is that the records are 
simply not sufficient to ascertain the individual dose 
exposures. NIOSH is proposing a complex formula and 
extrapolation to obtain a reconstructed dose.
    If I may say, with due respect to my friend, Dr. Howard, it 
is a Rube Goldberg device of the finest complexity.
    Aside from whether there is a fundamental fairness issue 
for each individual, it is clear that the process will be time-
consuming and extend the time when these claimants will receive 
their due compensation. Most importantly, we believe that the 
statute does not require NIOSH to proceed with such a difficult 
program that places a much higher burden on these claimants 
than those in the statutorily named cohorts.
    The other part of this is that the process, we feel, aside 
from being complex, it has not been either transparent or 
really participatory by those claimants who have interests 
here.
    NIOSH, for example, went off and decided they were going to 
have a site profile relating to the Savannah River site, which 
they compiled and never bothered to talk to any of the 
represented workers there because they said there were no 
unions. The Building Trades have been at Savannah River for 
more than half a century. They built the place. They still 
maintain the place.
    In short, we think there is a long trail here for a 
claimant to become successful under the way that the program is 
being implemented through these NIOSH dose reconstructions, and 
we think the statute does not require this kind of years and 
years delay.
    Thank you for the opportunity. I will be glad to answer any 
questions.
    [The prepared statement of Mr. Elisburg follows:]

     Statement of Donald Elisburg, Attorney, AFL-CIO, Building and 
                     Construction Trades Department

    Mr. Chairman and Members of the Subcommittee:
    My name is Donald Elisburg and I am appearing today on behalf of 
the AFL-CIO. I have been asked to testify because of my prior 
experience with implementing similar programs in the past. I testified 
in support of the legislation that ultimately became EEOIPCA before the 
Congress, specifically in support of assigning this program to the 
Secretary of Labor when this law was under consideration. I was also a 
member of the Workers Advocacy Advisory Committee of the Department of 
Energy from January 2001 through December 2002. That Advisory Committee 
was appointed to assist the Department of Energy in implementing its 
responsibilities under EEOICPA.
    I want to thank you for the opportunity to testify on the 
implementation of the EEOICPA.
    The AFL-CIO and our affiliates have a significant interest in the 
implementation of this program because our involvement since the 
nuclear weapons program began as the Manhattan Project in the early 
1940's when members of our affiliate unions built, and maintained the 
many facilities used to develop and maintain nuclear weapons. Our 
members have also served as the principal production and operating 
personnel of these weapons facilities. For decades, the AFL-CIO, the 
Building and Construction Trades Department (BCTD), Metal Trades 
Department, PACE, the Laborers and other unions have worked to secure 
safety and health rights and protections and just compensation for 
these workers.
    As we have testified before Congress many times, these workers were 
engaged and continue to be engaged in activities vital to the security 
of the United States. They deserve to be treated with fairness and 
dignity.
    EEOICPA was passed in recognition of the fact that the work at 
these facilities put workers at risk of injury, illness and death from 
exposure to radiation and various toxic chemicals and materials used in 
the nuclear weapons program. Secrecy put these workers at additional 
risk. EEOICPA was Congress' recognition and determination to compensate 
workers and their families even if it would not make them whole.
    Congress directed the President to implement this program. By 
Executive Order the program was assigned to the Departments of Energy, 
Labor and HHS.
    Unfortunately, the experience with the implementation of this 
program is just not what these sick workers or their survivors deserve, 
nor does it meet the objectives Congress set forth in the Act. Energy 
workers with radiation-induced cancers need timely compensation and 
that is not happening with many thousands of claimants.
    Subtitle B of the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA), 42 U.S.C. Sec. Sec. 7384-7385, 
enacted in 2000, established a federal program to compensate workers at 
Department of Energy atomic weapons and contractor facilities for 
illnesses resulting from radiation, beryllium, and silica. The program 
provides a $150,000 lump sum payment and prospective medical benefits 
to covered employees or a lump sum payment to their survivors. To date, 
the Department of Labor has paid over $672 million in benefits. But 
there is a huge backlog of claims pending--more than 14,000--awaiting 
dose reconstruction by the National Institute for Occupational Safety & 
Health (NIOSH). Claims of workers with cancer who are awaiting payment 
because NIOSH has not completed their dose reconstruction arise in 
states throughout the country.
    NIOSH should streamline the procedures for evaluating these claims 
so workers and their survivors can be compensated in a timely manner as 
Congress intended. The fairest and most efficient way to do this is to 
streamline the procedures to add groups of workers to the Special 
Exposure Cohort so their claims can be considered on an expedited 
basis.
Radiation Dose Reconstruction and Special Exposure Cohorts under 
        EEOICPA
    When EEOICPA was passed, the Congress designated certain groups of 
workers with cancers linked to radiation exposure to be included in a 
special exposure cohort (SEC) because DOE's radiation exposure records 
were so poor it was not possible accurately to reconstruct each 
employee's radiation dose. Under the Act, workers employed at DOE 
gaseous diffusion plants in Oak Ridge, Tennessee, Paducah, Kentucky or 
Portsmouth, Ohio were automatically included in the SEC. For these 
employees, compensation is paid without regard to an employee's 
individual radiation dose if the claimant has one of the designated 
cancers and meets the Act's general exposure/employment criteria. These 
claimants receive compensation for cancer promptly.
    But for workers with cancer from all other DOE facilities, or for 
those with cancers other than those specified as presumptively linked 
to radiation exposure, different, complicated procedures were 
established--requiring either individual dose reconstruction or a 
lengthy process to designate additional members of the SEC. NIOSH has 
been given responsibility for both of these activities, but because of 
the complexities involved, has fallen years behind. More than 14,400 
claims are now pending dose reconstruction and no new members have been 
added to the SEC. So far, NIOSH has forwarded completed dose 
reconstructions to DOL for only 700 claims. At the rate NIOSH is going, 
it will be years before these backlogged claims are processed and 
victims receive compensation. Meanwhile, DOE workers with cancer do not 
have the medical or cash benefits Congress provided and their widows 
grow old without the economic security to which they are entitled.
Backlog of Pending Claims at NIOSH Awaiting Dose Reconstruction
    The backlog of pending claims at NIOSH is a problem that affects 
workers throughout the country and is particularly severe at some of 
the larger DOE weapons facilities where large numbers of workers were 
exposed to radiation. These facilities including Rocky Flats (CO), Iowa 
Ordnance Plant (IA), Idaho National Lab (ID), Fernald (OH), Los Alamos 
(NM), Nevada Test Site (NV), Savannah River (SC), Oak Ridge National 
Lab (TN), and Hanford (WA). The table below shows the number of claims 
(and individual cases) from all Department of Energy facilities 
awaiting dose reconstruction at NIOSH by state (for states with more 
than 50 claims).
[GRAPHIC] [TIFF OMITTED] 90178.010

    One of the major reasons for this delay is that for many workers 
DOE radiation exposure records are incomplete, inaccurate or 
nonexistent. When NIOSH reconstructs a radiation dose, it must make 
educated guesses as to what an employee's dose was likely to have been. 
While NIOSH claims that its process is employee friendly, nobody can 
gauge whether NIOSH dose reconstructions bear any reasonable 
relationship to an employee's actual radiation dose. We cannot state 
too strongly the need to be sure that this aspect of the program is 
transparent and credible to the claimants and their families.
    As stated earlier, this entire compensation program has to be 
measured against the very long and well documented history of secrecy 
and deceit on the part of the Department of Energy and its predecessor 
agencies tracing back to the earliest days of the Manhattan Project. 
This long history and the resultant distrust of the DOE requires an 
open and transparent program. This is especially true given the 
technical complexity of dose reconstruction and the reliance on DOE to 
provide the dose data.
    Many thousands of our members served their country in the cold war 
by working at these facilities often under very difficult conditions. 
They deserve to be treated with respect and should have a compensation 
program that they can trust and understand.
    Unfortunately, some of the activities that NIOSH has undertaken 
appear to be at cross purposes with this goal of an open and 
transparent program. As an example, NIOSH has recently implemented a 
plan to develop site profiles for each major site as a framework for 
individual dose reconstructions. These profiles would include the major 
sources of exposure data for the site. However, NIOSH's procedure 
included no opportunity for input into these site profiles by unions, 
interested parties, etc. until after the profiles were complete and 
being used by NIOSH. This procedure only compounds the past mistakes 
made by DOE to hide information from the exposed workers and their 
families. The Advisory Board raised objections to this approach and has 
asked NIOSH to develop a more open process involving the local unions 
and other interested parties in the development and review of these 
site profiles in order to ensure the credibility of the dose 
reconstruction program. The Savannah River Site is a prime example. The 
site profile was released in August without any discussion or review 
with the local unions or other interested parties. NIOSH's initial 
excuse, that there were no unions at SRS, totally missed the fact that 
there have been union workers engaged in building and maintaining the 
SRS facility since the first construction activity a half century ago. 
We would note for the record, that after extensive protest, NIOSH is 
now undertaking a meeting at SRS in November to discuss this profile 
with the local unions and interested parties. These activities should 
not have to be undertaken only after claimant protests.
    Similiar concerns about the uncertainty of dose reconstruction have 
been raised about Department of Defense radiation dose estimates for 
military personnel. Unlike DOE nuclear workers, under veterans' 
compensation benefits, all veterans with specified cancers are presumed 
entitled to compensation. Dose reconstruction is used to determine 
whether to compensate veterans for other diseases. The National Academy 
of Science's Institute of Medicine recently evaluated the DOE dose 
reconstruction process. It concluded:
        Because specific exposure conditions for any individual often 
        are not well known, many participants did not wear film badges 
        during all possible times of exposure, and the available survey 
        data used to input the models often are sparse and highly 
        variable, the resulting estimate of total dose form many 
        participants are highly uncertain.
Problems With Proposed NIOSH SEC Procedures
    There are major problems with the proposed procedures for the 
designation of additional members the SEC. Under EEOICPA, additional 
members of the SEC may be designated when it is not feasible to 
estimate with sufficient accuracy the radiation dose of the affected 
workers. (Section 3626). This spring, NIOSH proposed procedures for 
designating additional members of the SEC. The NIOSH proposal was 
strongly criticized by the Advisory Committee on Radiation and 
representatives of DOE workers. Decisions on adding additional members 
to the SEC can be expected to take at least two more years--almost five 
years from the enactment of EEOICPA. Employees seeking designation as 
members of the SEC will have to meet a high burden of proof--a burden 
not imposed on fellow workers from gaseous diffusion plants who have 
already received compensation for their radiation induced cancers.
    Workers at DOE facilities such as Hanford, Rocky Flats, and 
Savannah River, and other locations, are treated unfairly under 
EEOICPA. Their colleagues at gaseous diffusion plants, like veterans, 
are presumed eligible for compensation if they get certain cancers and 
many have received compensation. Meanwhile, these other workers, whose 
radiation doses likely were just as high and for whom radiation dose 
records are just as sparse, must individually demonstrate their right 
to compensation. The process for doing so, dose reconstruction, is too 
slow and inherently uncertain. Only a handful of workers outside the 
SEC have actually received compensation for their cancers since EEOICPA 
was passed.
Streamlining SEC Procedures and Expediting Compensation for Victims
    EEOICPA needs to be fixed so DOE workers with radiation induced 
cancers or their survivors receive timely compensation. The following 
modifications to the program would accomplish this goal by simplifying 
and streamlining the procedures for adding additional groups of workers 
or facilities to the special exposure cohort. NIOSH has the authority 
to implement each of these policies, but has so far failed to do so:
      Set deadlines for NIOSH to respond to petitions to add 
workers to the Special Exposure Cohort--providing 90 days for response 
and an additional 45 days where NIOSH requests review of the petition 
by the Advisory Committee on Radiation.
      Allow NIOSH to determine which petitions for adding 
groups to the SEC need to be reviewed by the Advisory Committee. 
(Currently all petitions, even those pertaining to small groups of 
workers must be referred to the Advisory Committee.)
      Clarify that NIOSH may add a group of workers to the SEC 
if it determines that representative records of radiation doses for the 
individual are incomplete or missing and that radiation may have caused 
or contributed to specified cancers among members of the group. (These 
were the criteria that were used to designate workers at gaseous 
diffusion plants as members of the SEC in the original Act.) Currently, 
NIOSH attempts to reconstruct doses even if individual monitoring 
records are not available.
      Establish the same criteria for compensation for new 
groups of workers added to the SEC as those set for gaseous diffusion 
workers in the original Act.
    These revised procedures will streamline the process for evaluating 
petitions for expanding the SEC, and for those groups of workers who 
are added, expedite the process for evaluating their individual claims 
for compensation. Once added to the SEC, the same criteria for 
compensation will apply to these workers as applies to workers at the 
gaseous diffusion plants. The recommended procedures do not expand the 
number of workers eligible for compensation, nor should it change the 
anticipated costs of the program. Most of these claimants are already 
eligible for compensation. They are just required to wait far too long 
to receive the compensation they are due. Streamlining the process and 
clarifying the criteria by which these employees may be added to the 
SEC simply changes the procedures by which the merits of their claims 
are judged and speeds up the compensation process.
    Mr. Chairman, our organizations have a longstanding relationship 
with the Department of Labor and with NIOSH. We supported the 
assignment of this program to them. We believe that the Department of 
Labor has done a very commendable job so far in getting its program up 
and running. As the comments submitted by our respective organizations 
to NIOSH make clear, we believe that NIOSH is simply misreading its 
responsibilities under the existing law and has proposed a regulatory 
scheme that will not work and which will result in both a costly 
process and an intolerable wait by claimants for relief. If NIOSH 
persists in interpreting the statute with such restrictive 
requirements, then, we see no alternative but to support changes to the 
law that will ensure equal treatment of all claimants under this 
program.
    Mr. Chairman, I would like now to turn to other serious problems 
with EEOICPA, namely the Subtitle D program administered by the 
Department of Energy.
Background on Subtitle D of EEOICPA
    Subtitle D of the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA) was intended to take DOE out of the 
business of fighting state workers' compensation claims brought by sick 
nuclear workers who were employed at DOE defense nuclear sites. 
Benefits are provided for workplace-related disabilities and medical 
costs. In September 2002--almost two years after the enactment of 
EEOICPA--DOE issued a rule governing the operations of the Physicians' 
Panel (10 CFR Part 852). The rule established the criteria for 
Physician Panels to determine whether an illness or death arose out of 
and in the course of employment by a DOE contractor and exposure to a 
toxic substance. That criteria is whether ``exposure to a toxic 
substance at a DOE facility during the course of employment by a DOE 
contractor was a significant factor in aggravating, contributing to or 
causing the illness or death of the worker at issue.'' (See: 10 CFR 
Part 852.8).
    A simple majority of a Panel (two of three doctors) must agree in 
order to issue a determination. The rule prohibits contractor 
involvement in contesting Physician Panel findings, but allows 
claimants to appeal adverse Physician Panel findings within the DOE's 
Office of Hearings and Appeals. A total of 26 appeals have been decided 
to date. DOE estimated benefits and administrative costs for this rule 
at $130 million/10 years during the rulemaking. Physicians are selected 
by NIOSH--instead of the DOE--in order to provide a measure of 
independence. There are approximately 120 doctors who have been 
approved by NIOSH for the DOE Physicians Panel. Due to the low rates of 
compensation ($55-60/hour), some physicians with clinical practices 
have withdrawn from participation. Once a Physicians' Panel issues a 
positive determination, DOE is required to provide the claimant with 
assistance in filing their claim with a state workers' compensation 
commission.
    Pursuant to EEOICPA, DOE must direct contractors not to contest the 
state workers' compensation claims, to the extent allowable by law, and 
DOE may not reimburse contractors for legal costs of contesting such 
claims. Practically, this means DOE will instruct its contractors to 
send a letter to the state workers' compensation board indicating that 
they will not contest the claim. However, this doesn't necessarily mean 
that the claim will be paid, because some ``payors'' are not under 
DOE's/contractor's control and are unwilling to pay (e.g., exclusive 
state funds and insurers).
    States and insurance companies are not agreeing to be bound by DOE 
Physician Panel determinations. Although DOE entered into Memorandum of 
Agreements (MOA) with 12 states (AK, CA, CO, ID, IA, KY, NM, NV, OH, 
SC, TN, TX) during 2002, none of these agreements require states to 
accept the findings of a Physicians' Panel. All 12 states reserve the 
right to impose their own provisions of state law rather than abide by 
the findings of DOE or its Physicians' Panel.
    For example, the DOE-Alaska Commission Agreement of 9/13/02 says:
        ``A positive determination pursuant to Part 852 [DOE's Rule] 
        has no effect on the scope of State worker compensation 
        proceedings, the conditions for compensation, or the rights and 
        obligations of the participants in the proceeding; provided 
        that consistent with Subtitle D, such a determination will 
        prevent DOE and may prevent a DOE contractor from contesting an 
        applicant workers compensation claim, and DOE may agree to 
        indemnify a DOE contractor/insurer for State of Alaska workers 
        compensation claims.''
    To get valid claims paid, DOE is counting on its current site 
contractors, many of which are self-insured for workers' compensation, 
to pay the claims and the DOE will reimburse them (using appropriated 
funds). At a number of DOE sites in IA, OH, KY, AK and CO, the DOE has 
not identified a ``willing payor.'' A ``willing payor'' is an entity 
which DOE can meaningfully direct to pay claims after a Physicians 
Panel determines that a claim is work related. DOE's General Counsel 
has indicated that up to 50% of valid claims may not have a ``willing 
payor''. DOE has not inventoried those locations where it lacks a 
``willing payor.'' DOE's Worker Advocacy Advisory Committee (WAAC) 
warned the Secretary in August of 2001, and again in June of 2002, that 
the absence of a willing payor was a large, unresolved problem which 
would pose a ``gross inequity'' to claimants (as we are witnessing 
today in Alaska).
    On June 27, 2002 WAAC Chairwoman Emily Spieler (Dean of the 
Northeastern University Law School) wrote on behalf of the Committee:
        ``WAAC Members thought that there was no legal impediment to 
        payment of these claims by DOE. But we also think that if DOE 
        is unwilling or unable to pay these claims, it's absolutely 
        essential for DOE to seek additional appropriations or support 
        alternative legislative solutions that will result in payment 
        of these claims without throwing them into the state workers' 
        compensation systems to be litigated. If the latter occurs, 
        insurers and state funds will not be required to waive any 
        technical or other defenses to these claims, and it is highly 
        likely (after considerable administrative expense) that few, if 
        any, of these claims will be paid.''
    The Advisory Committee accurately described the problem that has 
now arisen in Alaska.
    The Committee concluded:
        These claims should be handled in the same manner as the claims 
        of current contractors, through a central non-risk bearing 
        third party administrator, with a source of payment designated 
        by the Department.
    In response to this recommendation, Assistant Secretary Cook wrote 
(8/9/02):
        ``The issue of mechanisms of payment of claims where there is 
        no current contractor with responsibility for paying a claims 
        remains a concern. We will continue to explore possible 
        remedies with the WAAC, the General Counsel and Congress to 
        correct this inequity.''
    DOE allowed the Advisory Committee's charter to expire 1/1/03. 
Neither DOE nor the Administration has proposed any solutions, despite 
repeated requests from Governors, workers' compensation commissions and 
Members of Congress.
    DOE has received approximately 18,823 claims for assistance as of 
August 29, 2003. In the year since its rule has finalized, DOE has made 
very little progress on its backlog.
    Only 74 (0.3%) have been decided by the Physicians Panel (45 
accepted and 29 rejected) and 132 (0.6%) are in the Physicians Panel 
process. DOE has not even started case development work on 14,434 cases 
(71%). DOE estimates a backlog of 5 years. Others foresee a much longer 
time to process claims. In testimony before the Senate Energy Committee 
in February, Secretary of Energy Spencer Abraham committed to have 100 
claims per week completed by August of 2003. But the DOE failed to meet 
that goal.
    DOE has received a significant amount of funding to run the Workers 
Advocacy Office. The resources have been there, but the ability to get 
the program off the ground is lacking.
Speedup Claims Processing
    There are many possibilities for speeding up claims processing 
including requesting the assistance of the Department of Labor in 
developing claims and using the existing former worker programs to 
assist in developing claims, just to name a few actions.
Willing Payor
    There are several options available to resolve the willing payor 
issues:
    DOE could enter a into cost-reimbursement arrangements with a 
national (or site specific) non-risk bearing Third Party Administrator 
(TPA) to serve as the willing payor where (a) DOE contractors are no 
longer present at DOE sites, (b) where DOE contractors were not self 
insured and an insurance company ``owns'' the claim, or (c) where there 
is an exclusive state fund (OH, NV and WA). Claims payments would be 
subject to appropriations. Levels of benefits would be set by state 
compensation agencies. The TPA would assume full liability in lieu of 
employers, insurers or others who could object to a claim. Presumably 
disability determinations would still have to be made by a state 
compensation panel. The Advisory Committee suggested this approach.
    DOE could enter into contracts with exclusive state funds, insurers 
or TPAs to assume payment of claims in each instance where there is no 
willing payor. Ohio's exclusive state fund has made such a proposal.
Conclusion
    Congress has made a firm promise that each nuclear worker with 
radiation cancer will receive compensation. That promise must be kept. 
We must also work to fix the problems with the DOE program, so those 
with other work-related illnesses caused by toxins at the DOE complex 
will receive workers' compensation payments.
    Thank you.
                                 ______
                                 
    Chairman Norwood. Thank you, sir, very much. I will tell 
you, I do not know who they complained to in the Department of 
Labor, but all of them have talked to me.
    I would like to recognize Congressman Wamp now, for a brief 
statement.
    Mr. Wamp. I just want to thank the Committee, Chairman 
Boehner, Chairman Norwood, the Ranking Member, and everyone for 
taking this important step in a program that has been very 
complicated and difficult to administer. There are a lot of 
questions out there today with the Grassley amendment pending 
in the Senate as to the future of this program. While this 
hearing was not called to discuss that, the timing of the 
hearing is very critical because a lot of people are wanting 
this to be done in a more effective way, and DOL actually has 
done a lot of things very well. There is $170 million that has 
been paid to Oak Ridge workers already, which is very 
significant.
    I just want to thank you all for doing this. This is a 
matter of life or death to a lot of people that I actually 
represent, so this really hits home when you run into these 
people at the grocery store or at church and they talk to you 
about their stories and you know their family members, you know 
that this is a program that is being administered by the 
government, but it has real life consequences.
    Thank you for doing this. I hope we can have more hearings. 
Other Committees with jurisdiction have not been as quick to 
respond to our request for hearings, so thank you very much for 
having this most important hearing.
    Chairman Norwood. Thank you, Congressman Wamp. We 
appreciate your concerns. I have similar concerns as you do. I 
think probably at the end of the day, one has to wonder, we do 
not want to change course maybe after we have spent 2 years 
getting ready to do it right. I am going to ask during my time 
a few of those questions.
    Mr. Hallmark, I would like to start with you. The Savannah 
River site actually is not in my district. It is right across 
the Savannah River in South Carolina. I have a lot of 
constituents who live in my district. I have had more than 300 
of them file claims as a result of their working for the Nation 
and the people of the country at Savannah River site.
    Only a handful of these people have received a final 
decision, and I had hoped maybe you would tell me what I should 
say to them when they ask me why so few have received a final 
decision. If you will tell me that, then they have one other 
question they want me to ask.
    Mr. Hallmark?
    Mr. Hallmark. Thank you, Mr. Chairman.
    Clearly, the major issue associated with the cases that are 
in your district is the NIOSH dose reconstruction process. The 
large number of cases that have come to us must have that 
causation analysis done.
    Chairman Norwood. Do I tell them that is the problem, that 
analysis takes a long time?
    Mr. Hallmark. It does.
    Chairman Norwood. I'm looking for a sensible answer to tell 
people who are concerned.
    Mr. Hallmark. Absolutely. My understanding is that NIOSH 
has published the site profile for Savannah River. They are now 
in a position and in fact have already moved quite a number of 
the Savannah River cases into the final stages of dose 
reconstruction, so it is my anticipation that we will be 
receiving back from NIOSH within the next few weeks and 
months--
    Chairman Norwood. Define ``final number.'' Give me some 
clue what you are talking about when you say a large number has 
been moved over to NIOSH.
    Mr. Hallmark. John probably has the number.
    Chairman Norwood. Anybody.
    Dr. Howard. Mr. Chairman, we have 1,824 claims transferred 
to us from Savannah River, 2,129 interviews scheduled. We have 
completed 173. We have draft reports on 318. Our technical 
basis documents for that, that allows us to complete all of 
them, is done. We are going to Savannah River on November 11th 
to have a meeting with the workforce there. We should see those 
claims coming through the system very shortly.
    Chairman Norwood. Of course, Savannah River is in my 
backyard. There are other members who have similar problems. Is 
that type of percentage occurring across the country, or are we 
doing better than Congressman Wamp at Oak Ridge or Mr. 
Strickland? How is it coming across the nation?
    Dr. Howard. I think from our perspective, when we are 
looking at the dose reconstructions that we have in our system, 
we are primarily dependent, I think, right now, in the next 60 
to 90 days, on completion of our technical basis documents, 
which will allow us to take the dose reconstructions that we 
have pending, for any of those sites. Once our technical basis 
document is done, and we have reviewed it with the workforce 
and DOL has reviewed it, then our claims will start moving 
through the system very rapidly.
    We are averaging about 60 days once we have that 
information done.
    Chairman Norwood. I am going to tell them the problem it is 
taking so long is this is a very complex situation in which we 
have determined dose reconstructions. That is a true statement?
    Dr. Howard. I think I would agree with Don's comment. This 
is a scientifically complex dose reconstruction issue. There is 
complexity to it. In the beginning, when we were looking at 
this, we thought we could take an individual approach. About 
six to 8 months ago, we decided we need technical basis 
documents for an entire site, to look at radiation doses, the 
types of radiation that was used, the sources, et cetera. Those 
are being completed now, so that we can do production scale 
dose reconstructions very quickly.
    Chairman Norwood. I think our folks will understand that. 
They are bright, hard-working people. They are going to 
understand that explanation.
    The next question they want me to ask is OK, we know it is 
difficult. We know it is complex. Give us a timeframe. When can 
we expect an answer? I want to go home and tell them.
    Mr. Hallmark. In any workers' comp system, there are always 
variables, and not every case is going to go through the 
process at exactly the same time. I think my understanding of 
what NIOSH is doing is that the bulk of the cases in Savannah 
River should move within the next three to 4 months through 
their process and coming back to us. Some of those will start 
in the next few weeks and some will take longer in that time 
period.
    I would expect that the majority of the dose reconstruction 
cases will be through their system and through ours by the 
early part of 2004. That is probably a better situation than it 
will be in other sites, because the site profile is in fact 
further along and completed in Savannah River, and they are 
still working on it in other locations.
    Chairman Norwood. I can tell them, the majority of this is 
going to be taken care of by the early part of 2004, and if 
that is not correct, I can say, OK, here is Mr. Hallmark's 
telephone number, call him.
    Mr. Hallmark. I think it is on the Web. I believe you are 
going to be able to do that, sir.
    Chairman Norwood. I can tell Doc Hastings out at Hanford 
the same thing?
    Mr. Hallmark. As I said, the issue of the completion of the 
site profile is critical.
    Chairman Norwood. How are the rest of the folks doing with 
site profiles?
    Mr. Hallmark. John can tell you where they are with 
Hanford, but I know there has been substantial work done at 
Hanford and it is progressing.
    Dr. Howard. We have about ten technical basis documents 
that are in process now that we hope to complete by the end of 
December. Hanford is almost nearing completion.
    Chairman Norwood. Obviously, we have votes going on. Major 
Owens wants to go ahead and ask his questions, and we will do 
that, and then we will recess right after your questions, go 
vote, and we will be right back. Mr. Owens?
    Mr. Owens. To begin, do you contemplate a great deal of 
fraud in this program? The probability of causation is an 
algorithm used to determine if a diagnosis of cancer is or was 
likely than not caused by exposure to radiation while in the 
performance of duty. That is in your chart in terms of 
probability of causation.
    Are people exposed to large amounts of radiation somewhere 
else other than on a work site?
    Mr. Hallmark. There is naturally occurring radiation and 
other sources of radiation.
    Mr. Owens. Enough to be significant in terms of their 
health?
    Mr. Hallmark. Potentially, yes, but this definition that 
you are seeing here is basically extracted from the statute.
    Mr. Owens. What degree of fraud have you come across?
    Mr. Hallmark. I do not think fraud is an issue that we have 
been particularly focused on. Obviously, any system like ours 
has to have criteria and control processes, because if you are 
giving out Federal monies--
    Mr. Owens. What I am trying to get at is why is the process 
so slow and why is it so complicated? Mr. Elisburg?
    Mr. Elisburg. That is the dichotomy I was pointing out in 
my testimony. Savannah River, Hanford, are not part of the 
special exposure cohorts. When Congress designated Portsmouth, 
Paducah, the Oak Ridge gaseous diffusion plant, and Amchitka 
Island, those workers simply if you had the disease, if you had 
the employment, you were presumed to have the radiation 
exposure, and you are getting paid.
    Savannah River, Hanford, many of these other sites--
    Mr. Owens. What about Niagara Falls?
    Mr. Elisburg.--Niagara Falls, they are all the same kinds 
of workers, same kinds of exposures, but they have to go 
through these multiple hoops of establishing exposure in 
situations where there are no records of exposure, or the 
records are poor, or they have been destroyed, or they were 
done 35 or 40 years ago, and you are going into this vast 
morass, and when the NIOSH people said, well, we have to come 
up with some formula, they created this what we call sort of 
nightmare process to try to extrapolate and create a situation 
to show that you could have been exposed. That is not to say 
that eventually they will not come up with some exposure data, 
but it will be a guesstimate. It will be a best guesstimate.
    That is why you are taking years and years for these folks 
who are not in the special exposure cohorts, and a much shorter 
period of time once you have been determined to be in that 
special group.
    There is really no difference as between the workers who 
are at one of the sites or the others, and the reason they were 
put into the special exposure cohorts was there was an 
understanding that they didn't have the records. If they do not 
have the records at these other places, it seems to me that is 
the case for treating them the same.
    Mr. Owens. Questions have been raised about the sense of 
urgency and the efficiency of the way the program is being 
implemented.
    I understand the president of PACE, the Paper Allied 
Chemical and Energy Workers Union, in Hanford, Washington, had 
never met any staff from the Hanford Resource Center, did not 
know where the Resource Center is located, how many employees 
are employed at the Resource Center in Hanford, and what you 
are doing to improve outreach in a place like Hanford.
    Mr. Hallmark. That would the Labor Department. We jointly 
run the resource centers with the Department of Energy in ten 
sites. Hanford is a site where we are keenly aware that we need 
to do a better job.
    We have not received as many claims, given the size of the 
population of the people who have worked in Hanford, as we have 
in other sites, and certainly not as much as we expected, so 
one of the things, as I indicated in my statement, that we are 
going to be doing in 2004 is working very hard to make sure 
that outreach happens, and Hanford is one of the real focuses.
    One of the things we are also doing, Mr. Owens, is we are 
working directly with union groups, with the Committee for the 
Protection of Worker Rights, to find people who may have left 
the Hanford area and are somewhere else.
    We have a multi-faceted approach to try to make those kinds 
of contacts happen and make the program much more transparent.
    Mr. Owens. Representatives of PACE contend that a mobile 
resource center is actually one employee in a hotel room with a 
phone, no computer, little or no background materials, for a 
single day. The question is realistically how many workers can 
be helped with that kind of mobile resource center.
    Mr. Chairman, I would like a second round of questions so I 
can pursue this later.
    Chairman Norwood. Yes, we will do that. What we will do is 
recess now. We have two votes. We ask your indulgence. We will 
be back just as fast as we can and continue this. I think both 
of us have a lot of questions.
    Mr. Hallmark, get ready. I am going to ask you about the 
benefit of doubt for claimants when we get back.
    [Recess.]
    Chairman Norwood. The Committee will come to order.
    Mr. Hallmark, this business of the claimants being given 
the benefit of the doubt in terms of whether or not their 
illness was caused by radiation on the job, explain that policy 
to me a little bit.
    Mr. Hallmark. I believe the reference you are making is in 
the statute itself by establishing an ``as likely as not'' 
criterion, pointed in the direction of benefit of the doubt. I 
believe the real focus of your question is with respect to how 
NIOSH is implementing dose reconstruction and the kinds of 
assumptions they are making as they do that work.
    Dr. Howard. And I think that is correct. What we do in 
terms of reconstructing a dose is to look at all the data that 
is available. In many cases, the data is incomplete in that 
there is missing monitoring data about the dose that the person 
incurred years ago, so the idea of giving the benefit of the 
doubt is making assumptions that give the benefit of the doubt 
to the claimant, assuming circumstances that are likely to over 
estimate the dose that the person would have been exposed to.
    For example, we might assume that all the employees 
involved in a process received the highest levels of radiation 
monitored for any employee in the process, and that we give 
that dose then to everybody.
    It occurs when the data that we get back from DOE is not 
totally complete, so we make those assumptions that benefit the 
claimant.
    Chairman Norwood. How often does that happen, that you do 
not get data back that is complete?
    Dr. Howard. Oftentimes, the data that we get, especially 
for individuals at multiple sites, may have some gaps in it. I 
do not know an exact percentage. I would ask Mr. Elliott if he 
had some idea about how often that occurs.
    Mr. Elliott. Thank you. I think we could honestly say that 
almost on every case, we add dose into the dose record. We 
account for mis-dose, unmonitored dose, instances where a 
particular radionuclide was not monitored, we factor that in 
and put that back into the dose record for our estimation 
purposes and our reconstruction.
    Chairman Norwood. If there were 300 claimants--and forgive 
me for using SRS, I just know a little something about that--if 
there are 300 claimants, it would appear to me that they would 
all be claiming the same thing about the same time, that there 
might have been exposure to radiation. Is that not true?
    Dr. Howard. Yes.
    Chairman Norwood. If you do not have enough information, it 
affects all 300 of them at a particular given time?
    Dr. Howard. Indeed, it may affect an entire group of 
employees or a smaller group at that site.
    Chairman Norwood. You are saying to me that you are trying 
very hard to give these claimants the benefit of the doubt, 
that they should not be held lacking just because there was not 
good records kept?
    Dr. Howard. Exactly. It is not their fault that the records 
are missing or there are gaps in the monitoring records.
    Chairman Norwood. Dr. Howard, tell me, I think it would be 
interesting to the Committee, how do you determine the amount 
of radiation that an employee is exposed to? Tell me a little 
bit about that process.
    Dr. Howard. I think I am going to ask Mr. Elliott to 
expound on that, but clearly, what we are doing is we are 
trying to look at the exposure, the total exposure of radiation 
that employee has received over their working life, and then 
looking at whether or not it is probable that the adverse 
health effect that they are claiming, the cancer, arises from 
that exposure. That is the scientific complexity.
    Larry?
    Mr. Elliott. Thank you. We take into account the type of 
material that was handled by these workers, what kind of 
radionuclide, what kind of radiation exposure they encountered. 
We factor into their dose reconstruction occupationally 
required medical x-rays that were required as a condition of 
employment. We think that is a radiation dose that should be 
accounted for in their record.
    We strive to do the best job we can with the information 
that we have, and when that information is lacking, we look to 
what we call the course term, the type of material that was 
used and what kind of radiation levels came from that 
particular type of material.
    Chairman Norwood. What you are describing is why it is 
difficult, in a roundabout way.
    Mr. Elisburg. Mr. Chairman, can I make one observation 
about that?
    Chairman Norwood. You certainly can.
    Mr. Elisburg. The verdict is kind of out as to whether this 
complex system that NIOSH is trying to put in will work at all, 
because there have not been enough cases to really see.
    If you are familiar with the Savannah River site, for 
example, it's about half the size of Rhode Island, if not 
larger, we have members who may have worked at a given part of 
that facility in one of the many plants there day in and day 
out at the same place, and perhaps you can measure what they 
are talking about.
    We have many, many of the construction workers, for 
example, who may have worked across that site with its many 
different facilities, some of which are located five or eight 
miles apart, with many different kinds of exposures over a 20 
or 30-year period.
    In the absence of the kinds of records that in theory you 
would have of their exposure, and many of them were not even 
monitored for radiation exposure, I think it is going to be a 
very difficult and long-drawn-out process to construct the dose 
reconstructions for these deserving workers.
    Chairman Norwood. Are you saying to me that--I am using my 
example. Are you saying to me that all 300 workers could 
potentially have different amounts of radiation, and it is very 
hard to determine--in other words, they cannot be grouped 
together as a group?
    Dr. Howard. Yes, sir.
    Chairman Norwood. Were you saying they are grouped together 
as a group? If one claimant at SRS is entitled to benefits 
because of what has happened over the past 25 years and 
considering what you do and do not know, does that mean all 300 
of them are entitled?
    Dr. Howard. I think the value that we see with the 
technical basis documents, doing a survey of the entire site, 
figuring out historically what doses have occurred in terms of 
the site and where employees are, the technical basis document 
will largely help us through that process. We see that as an 
important addition to the dose reconstruction process.
    Chairman Norwood. My time has expired. I will get back to 
this shortly. Mrs. Blackburn, we welcome you. You have not had 
any time for questions. You do now. You are recognized for 5 
minutes.
    Mrs. Blackburn. Thank you, Mr. Chairman. I want to thank 
all of you for your testimony, and for the opportunity to 
listen to you today, but also to talk with you. I hope it is 
the beginning of a dialog.
    In my district, Tennessee's 7th Congressional District, we 
have a spot, and from 1949 to 1965, at the Clarksville 
Modification Center, they tested and modified the components of 
nuclear weapons. Dr. Howard, I can see you are nodding your 
head. I am sure you are familiar with this.
    Throughout the course of its operations, hundreds of 
workers were exposed to beryllium, and there have been many 
cancer cases as a result. My constituents worked at this 
facility over 40 years ago, and because their work was 
classified, there are very few records that provide the 
documentation that you all deem necessary for them to receive 
compensation.
    I understand that a person can receive compensation through 
the Department of Labor without having worked for a special 
exposure cohort, but that it is difficult, and it is hard to 
provide the documentation that you require.
    According to DOL stats, people who worked at the 
Clarksville facility have filed over 300 claims, and not one of 
these claims has been approved. I am trying to figure out, 
sitting here listening to you all and listening to the example 
from the Savannah River case--what I am trying to do, and you 
all bear with me now, because I am a freshman, this is my first 
year here, but I want to figure out why my constituents' cases 
have not been approved, and what we need to do so that these 
workers can receive the compensation they deserve.
    I would like to know how many claims has DOL approved for 
an individual who did not work at a special exposure cohort, 
and also, Mr. Hallmark, you used the figure on your handout of 
total number of cases, 36,597. Are my constituents' cases 
included in that number of total cases that have been presented 
to you all, but not resolved?
    The other thing I would like to know is how many other 
places like the bird cage in Clarksville, Tennessee do we have 
here in the United States?
    Mr. Hallmark. There are a number of questions there.
    Mrs. Blackburn. Yes, sir, it is. I am a patient person. I 
will wait for those answers.
    Mr. Hallmark. First of all, the 36,000 cases, I believe, is 
all of the cases that we have received from all over the 
country.
    Mrs. Blackburn. That would include those from the bird 
cage?
    Mr. Hallmark. That would include yours. I do not have the 
exact number for the Clarksville site, although I noted there 
were--
    Mrs. Blackburn. About 350.
    Mr. Hallmark.--quite a number from your district 
specifically. We are able to take beryllium cases to closure. 
They are in that group of four types of claims that I explained 
in my talk, that we can take directly to recommended decision, 
that do not require a NIOSH review.
    I know a number of cases have been approved for employees 
in your district. Mr. Tersick, who is the director of the 
energy program for us, just handed me this document which shows 
21 payments for residents in your district. They may not all 
have worked at the Clarksville facility, because the residents 
could have been someplace else.
    Beryllium cases have been taken to closure. You may have 
seen a number of cases denied because individuals have filed a 
claim with us under Part B which really should have been filed 
under Part D.
    That is an individual who had, let's say, an asbestosis or 
other pulmonary condition not related to beryllium. Those 
claims are not eligible for coverage under the Part B program. 
They are eligible for consideration under the Part D program 
that the Department of Energy runs.
    Of the cases that we have denied, roughly two-thirds fall 
into that category. They are simply, really, people who came 
through the wrong door.
    With regard to beryllium cases, we are moving on those. I 
do not believe there is a significant backlog. Obviously, not 
everyone who presents a claim that they had a beryllium 
condition will be able to in fact prevail. They may not be able 
to show there is documentary evidence that their particular 
medical condition was generated by beryllium.
    If we have a diagnosis, if someone meets the test, which 
involves specific kinds of tests for beryllium sensitivity and 
disease, then their claim would be approved.
    Mrs. Blackburn. Thank you, sir.
    Dr. Howard. We have 51 claims for dose reconstruction from 
the Clarksville facility that we have, sent from DOL. Those are 
moving through our system. Our technical basis document or site 
survey for the Clarksville facility will be completed in 
December, and then those claims will move through our system 
fairly quickly.
    Chairman Norwood. Dr. Howard, do you have to have cancer or 
have been diagnosed with another disease to be a claimant?
    Dr. Howard. I think as Mr. Hallmark reported, the cancer is 
what we--we reconstruct doses for cancer. For beryllium 
exposure, which results in a pulmonary or lung disease, those 
do not come to us under Part B. We only do the dose 
reconstruction to determine the relationship to cancer.
    Chairman Norwood. Any of those that you deal with must have 
been diagnosed with cancer before they can legitimately be a 
claimant?
    Mr. Hallmark. Right. The two tests are the covered 
employment at one of the sites, and as Congresswoman Blackburn 
indicated, there are 324 or so sites all over the country that 
are involved here. You have to have worked at one of those 
sites during the period of time when nuclear weapons were being 
produced, tested, or maintained, and you have to have a 
diagnosis for one of the diseases that we cover, one being 
cancer, one being beryllium disease, and the last being 
silicosis, which only applies to miners who were involved in 
tunneling for the test areas in Nevada and Amchitka.
    Chairman Norwood. We have 36,000 Americans diagnosed with 
cancer or another disease?
    Mr. Hallmark. 36,000 employees have had a claim filed. That 
does not mean they were diagnosed, necessarily. A number of 
them filed a claim who had a diagnosis that would not match one 
of the three that I have mentioned. Those are the ones that 
really should have gone to the other program that the 
Department of Energy runs.
    Chairman Norwood. Mr. Owens, we are into the second round. 
You are recognized for 5 minutes.
    Mr. Owens. While you are on the subject of numbers, can we 
assume that everybody who might possibly be eligible for this 
program has been reached? How much money has DOL spent by state 
on outreach? Has it done any outreach in connection with this 
program?
    Mr. Hallmark. I cannot give you a dollar figure by state, 
certainly, but I know we have spent several million dollars 
each fiscal year on outreach. Part of it is for the resource 
centers that we opened in the ten sites. Also, for the 
traveling resource centers, which, notwithstanding your 
correspondent, are a little bit more than a person in a hotel 
room with a phone, and we have done town hall meetings. We have 
done roughly 600 public meetings around the country in places 
where we thought there would be people who might need to know 
about this program.
    Each time we do one of those programs, we do press 
releases. We contact the local media. We talk to the local 
delegations, congressional delegations, to make sure that we 
get as much information out in that area as we can.
    Mr. Owens. For the record, can we get from you later on a 
more detailed statement as to how the outreach has been 
conducted state by state?
    Mr. Hallmark. Absolutely. I believe, as a matter of fact, 
Congressman, that we have an event going on right now in the 
Buffalo/Niagara area. I think we had an event up there this 
week.
    Mr. Owens. For those individuals who come through the wrong 
door or they come to door B when they should be going to D, 
what do they have to do, go back and start from the bottom of 
the hill? How long does it take to process someone who has 
already started the process but they happened to be in D 
instead of B or B instead of D? Do they have to wait 10 years 
to come back, like immigration?
    Mr. Hallmark. In fact, many of those individuals have filed 
the claim both ways. An individual can actually draw benefits 
from both programs simultaneously. Normally, if a person comes 
to us with a condition that may or may not be covered under 
Part B, they will have been advised to have filed both ways 
simultaneously so their case is already at the Department of 
Energy, as well.
    Mr. Owens. You just said a lot of people have been turned 
down, had their claims processed and delayed, because they were 
in the wrong category.
    Mr. Hallmark. I said they were denied. Most of the denials 
that we have made have been of that category, people who were 
really eligible or potentially eligible to be processed in Part 
D.
    In each case, as we make that determination, you do not 
fall within one of the conditions that we cover, we advise the 
claimant that you may need to go to the Department of Energy if 
you have not already done that.
    Mr. Owens. They have to go and start all over?
    Mr. Hallmark. If they have not already filed, then they 
would start with DOE's program.
    Mr. Elisburg. Mr. Owens, the fact of the matter is that the 
way the Department of Energy processes, trying to take the 
first in, first out process, you could in fact spend several 
years dealing with the Department of Labor, and then have to go 
back to ground zero, start again, and go through some years 
before the Department of Energy would get around to you. That 
is one of the unfortunate parts of the difficulty of this 
program for the claimants.
    If they get into the wrong pew here or the wrong queue, 
they are in deep trouble.
    Mr. Hallmark. Excuse me. I would like to point out that our 
resource centers do attempt to give people information about 
those different options at the front end. That is one of the 
reasons why we jointly operate those resource centers with the 
Department of Energy, because the pool of claimants is shared, 
and people need to get information about both paths.
    Mr. Owens. 36,597 have filed already. Is there any way you 
can estimate what the total eligible number is going to be? Do 
we have some kind of sense or a way of calculating what it is 
likely to be?
    Mr. Hallmark. We had anticipated that by the first 2 years 
of the program, there would be as many as 80,000 claims filed. 
The actual receipts are about 60 percent of what we thought. 
Part of that is because we don't believe we have done good 
enough outreach in areas like Hanford, and that is why we want 
to make an emphasis about that, because we think there are a 
number of individuals who have not come forward who probably 
should and could.
    Mr. Owens. The algorithms and the cohort scrutiny, it just 
seems that there is a spirit here of trying to detect fraud. 
You are moving so slowly, and so many people have to wait so 
long. What is the reason for what looks like cruel and inhuman 
punishment by civil servants, bureaucrats, who administer the 
program? Why is this caution and these complicated formulas so 
necessary? When can workers in the following areas expect to 
have their claims completed through both NIOSH and DOL? This is 
a question that you cannot answer now, but I would like to have 
it submitted for the record.
    Rocky Flats; Iowa Ordnance plant; Idaho National Lab; 
Fernald; Los Alamos; Nevada test site; Oak Ridge; Niagara 
Falls; just a few. I think I would like to know when, in the 
implementation of this, we can expect that to happen.
    Mr. Hallmark. If I could respond in general to your 
comment, Congressman Owens, as I indicated earlier, I do not 
believe there is an expectation on the part of any of the 
agencies involved that fraud is a significant issue or a 
serious concern that we are focused on.
    Mr. Owens. In the algorithm, they say they want to make 
sure the radiation was a problem, and the person was exposed 
while they were on duty. That implies they are worried about 
people who will come in and they got radiation great enough to 
cause cancer while they were off duty or somewhere else, and 
they are trying to blame it on the exposure at the work site.
    Mr. Hallmark. I believe that is driven directly by what the 
statute requires us to do, but the complexity and the delay 
that has been introduced is because determining whether a 
cancer was caused or not caused by radiation is a highly 
complex undertaking, and there is no marker, a given cancer 
does not have a marker, showing this was caused by radiation or 
not.
    Mr. Owens. Is that common knowledge, that radiation is a 
major cause of cancer?
    Mr. Hallmark. It is a cause.
    Mr. Owens. A major cause.
    Mr. Hallmark. It is a probabilistic determination. There is 
no way to tell that a particular cancer was caused or not 
caused by radiation. That is why we have the very complex 
process of dose reconstruction. That is why we have this 
statistical determination of probability of causation, which we 
use, and which is what--
    Mr. Owens. One case was cited where the person had cancer 
of the throat instead of cancer of the esophagus, and they were 
told it was cancer of the esophagus that makes them eligible, 
but cancer of the throat does not. Do we have that kind of 
science which can peg the radiation doses to the DNA of the 
person, people exposed that would respond to any outside 
phenomena based on something inside them, so you have a variety 
of responses, but cancer is cancer?
    Mr. Hallmark. Cancer in this instance is not cancer, 
Congressman. The Congress set up in establishing the special 
exposure cohort a list of specified cancers.
    Mr. Owens. For instance, esophagus?
    Mr. Hallmark. Yes.
    Mr. Owens. Congress set that up?
    Mr. Hallmark. Congress did. Some cancers are on that list 
and some are not. That is in fact what we have to follow, is 
the congressional--
    Mr. Owens. Does science think Congress acted properly 
there, or would science question that kind of labeling?
    Mr. Hallmark. I would defer to the scientists.
    Mr. Owens. Dr. Howard?
    Dr. Howard. If I am a physician and I see a patient with 
cancer, my job is to treat them, not figure out exactly how 
they got there. In a compensation program, that issue is 
extremely important. If your cancer is work-related from your 
job, then you get compensation. Cancer causation is multi-
factorial, and even an individual with radiation exposure, 
there are other causes.
    For lung cancer, smoking, for instance, is a significant 
cause of cancer. Radiation may be there. Radon bubbling up from 
people's floors in certain parts of the country is a radiation 
exposure, but it is not work-related.
    The cancer causation, as Mr. Hallmark said, is 
probabilistic based on the cause. It is a difficult science.
    Mr. Owens. A 32-year-old man could be exposed to enough 
radon from his basement to--
    Dr. Howard. No, but there may be genetic cases in his 
family because early familial colon cancer occurs. As I say, 
there are multi-factorial--
    Mr. Owens. Mr. Elisburg, would you care to comment?
    Mr. Elisburg. When this legislation was first being 
proposed in the last administration, a number of us went to the 
various elected officials and appointed officials and said, 
look, do not do this if you are not going to pay. Do not put 
people to this test if you are not going to see that they get 
paid for what happened to them when they went to work.
    When Congress finally passed this Act and they put the 
special exposure cohorts in for people, as you know, the 
process by which this bill was put together was a bit imperfect 
and a bit, perhaps, speedy. There are some edges to it, such as 
I think the difference between the throat and the esophagus, 
that perhaps could be fixed, and I think some of those, NIOSH 
was trying to fix in its proposal for getting into the special 
exposure cohorts, but the fact of the matter is they did set up 
some presumptions, and those presumptions are working fairly 
well.
    What has happened, of course, is that for those areas where 
there are no presumptions, what is happening is exactly what we 
had all hoped would not happen, that the scientists are trying 
to right a deed here. They are trying to ask workers to prove 
things that they have no ability to prove, and the agencies 
themselves have no way to really establish with the exposure 
levels and what was or was not a cancer.
    I think our view is if you worked at these facilities and 
you became ill with one of these diseases, it is the obligation 
of the government to make you whole, or at least to compensate 
you. They cannot make you whole.
    Having people go through these hoops, multiple hoops, does 
not really get to the point that I think Congress was talking 
about when they said people worked here for many decades, they 
got sick, they should be taken care of.
    Mr. Owens. Thank you. I think I am out of time, Mr. 
Chairman.
    Chairman Norwood. We will start to conclude, but Mr. Owens 
has a lot of questions he would like to submit, and so do I.
    I find this is a very difficult situation. Congress, I 
think, very clearly said that people who have been injured on 
these work sites should be compensated. I totally agree with 
that. I think Congress also said, by the way, we do not care 
for you to compensate people that it is not justified for, so 
you are caught in the middle there trying to--if you start 
paying out millions and millions of dollars to people who 
really have not been injured, we are going to have you right 
back raising hell about that. You are darned if you do and 
darned if you do not.
    My concern about this is that the people in all of our 
districts who have served the country as well as anyone and as 
well as the military, certainly should be compensated if they 
have been made sick, whatever, from this work position.
    We are here to say we hope you will speed this process up. 
We would like to get fruition. We hope you do not deny anybody 
that should not be denied.
    Part of my concern is this came into being in the year 
2000. I do not presume you had the scientists in NIOSH sitting 
there ready to tackle this. I presume that it takes a fairly 
high level of expertise to try to do what Congress asked you to 
do, and I presume you have been working over the last two and a 
half years to get ready so you can do it and do it as fast as 
you can.
    I want us, as Congress, to be a little careful that we do 
not throw all that past effort out now that you are on the 
verge of actually producing at a larger rate right here at the 
time that we should be able to accomplish this goal.
    I am very concerned about amendments and different things 
that might shake this thing up and cause the people who are 
deserving to be compensated to have it delayed for another two 
or three or 4 years.
    Mr. Hallmark, I am looking forward to some finality next 
year in some of our cases. I do not presume to speak as to who 
should or should not be compensated. I guess if you have 36,000 
claims, just real quick, what percentage of that would be of 
the total workforce that have worked at these sites?
    Mr. Hallmark. We do not know the exact totals, because of 
subcontractors and construction workers and others who are not 
necessarily known to us, but DOE estimated roughly 650,000. We 
think with the addition of the atomic weapons employers and 
beryllium vendors, it may be toward 700,000 or more, with 
construction workers.
    It is a fairly large number. The 36,000 cases that we have 
so far represents perhaps 5 percent.
    Chairman Norwood. It is legitimate for the taxpayer, and I 
am very curious, it falls into the category a little bit of 
ergonomics, why only 36,000? Is that because you have not been 
out there reminding people that this program is a program, and 
if you did that better, would it go up to 80,000? If it were 
just 80,000, why did this particular 80,000 end up having a 
disease and the other 575,000 not?
    Those are questions that are very difficult to answer, and 
it makes the determination of the 80,000 or the 36,000 that do 
have disease--
    Mr. Owens. Will the gentleman yield for a minute?
    Chairman Norwood. Certainly.
    Mr. Owens. You have to factor in there, too, how many are 
dead already.
    Mr. Hallmark. There are quite a number of the 700,000 I 
just mentioned, probably more than half are deceased.
    Chairman Norwood. Their families can put in claims.
    Mr. Hallmark. They can, but they may be less likely to be 
knowledgeable about the program. That is why outreach is very 
important.
    Chairman Norwood. There is still a small percentage that do 
have some disease and a large percentage do not. I would think 
that would slow the process down, and that you are trying to 
determine how to get to this.
    I ask on behalf of Major Owens, I kept hearing him say he 
would like to make sure that it is well-known to employees what 
their rights are. If the number is 36,000 and it is anticipated 
it ought to be three times that or four times that, that means 
somebody is not being informed, and we encourage you to do that 
right away, and speed this process on.
    I thank you all--
    Mr. Owens. Will the gentleman yield?
    Chairman Norwood. I certainly will.
    Mr. Owens. One more critical question. Has there been any 
studies done of the 600,000 or 700,000 workers, those who have 
died and the causes of death? Any studies in existence now or 
being planned?
    Mr. Hallmark. There have been numerous studies done in 
these sites. NIOSH, I know, has done quite a number of 
exhaustive studies of a whole range of different events, and 
they may want to talk about it.
    Dr. Howard. There is an enormous body of information, most 
of which came through since the secrecy was lifted, about the 
exposures to these workers, about the illness, about people 
dying from the various toxic exposures at these bomb factories.
    Much of that formed the basis, I think, of Congress acting 
when they did a couple of years ago.
    I just want to point out, Mr. Chairman, that the nature of 
this workforce is very important to understand that these were 
all people who worked in the most stringent security, most 
stringent secrecy. You could not have the lowest level jobs in 
these facilities without a Top Secret Q clearance. These were 
people who were really true patriots, who worked under 
circumstances where they for decades could not even tell their 
doctors what was happening to them.
    That has some impact on kind of where the numbers really 
are, if you could delve back into that kind of ancient history.
    Chairman Norwood. I do not know if it helps you any or not 
to know a lot of those people are my friends and neighbors. I 
do understand what you just said. That has been in my backyard 
all of my life. We have always appreciated the work that was 
being done over there. You are exactly right about what you 
just said.
    Gentlemen, thank you for your testimony and your time. We 
are very grateful. It has been enlightening to the Committee. 
We will look forward to your answers.
    We now stand adjourned.
    [Whereupon, at 1:02 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

Claimant Statements submitted by Ranking Member Major Owens are 
available for inspection in the Committee permanent archive files.

Bulletin of the Atomic Scientists, July/August 2001, ``A Debt Long 
Overdue,'' ``The Burden of Proof,'' and ``Making It Work'' available 
for inspection in the Committee permanent archive files.

                                 
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