[Senate Hearing 108-732]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-732

                      HARBERT AND SHAW NOMINATIONS

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   TO

  CONSIDER THE NOMINATIONS OF KAREN ALDERMAN HARBERT TO BE ASSISTANT 
 SECRETARY FOR THE OFFICE OF POLICY AND INTERNATIONAL AFFAIRS AND JOHN 
SPITALERI SHAW TO BE ASSISTANT SECRETARY FOR THE OFFICE OF ENVIRONMENT, 
                           SAFETY AND HEALTH

                               __________

                           SEPTEMBER 21, 2004


                       Printed for the use of the
               Committee on Energy and Natural Resources


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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma                JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho                DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee           RON WYDEN, Oregon
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri            MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana                EVAN BAYH, Indiana
GORDON SMITH, Oregon                 DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky                CHARLES E. SCHUMER, New York
JON KYL, Arizona                     MARIA CANTWELL, Washington

                       Alex Flint, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel




                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     2
Bunning, Hon. Jim, U.S. Senator from Kentucky....................     3
Domenici, Hon. Pete V., U.S. Senator from New Mexico.............     1
Harbert, Karen Alderman, Nominee To Be Assistant Secretary for 
  the Office of Policy and International Affairs, Department of 
  Energy.........................................................     4
Shaw, John Spitaleri, Nominee To Be Assistant Secretary for the 
  Office of Environment, Safety and Health, Department of Energy.     7

                                APPENDIX

Responses to additional questions................................    13

 
                      HARBERT AND SHAW NOMINATIONS

                              ----------                              


                      TUESDAY, SEPTEMBER 21, 2004

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10 a.m., in room 
SD-366, Dirksen Senate Office Building, Hon. Pete V. Domenici, 
chairman, presiding.

          OPENING STATEMENT OF HON. PETE V. DOMENICI, 
                  U.S. SENATOR FROM NEW MEXICO

    The Chairman. The hearing will please come to order.
    Senator Bingaman, I understand that there is just an awful 
lot of simultaneous hearings this morning, and that probably 
accounts for the fact that there are not so many Senators here.
    So we are going to start with a chairman's remark.
    Anybody on the committee that has questions will submit 
them in writing and then you all will answer those. What is a 
reasonable time for the submission of questions? 5 days?
    Senator Bingaman. The end of the week.
    The Chairman. End of the week, all right. By the end of the 
week, staff, would you inform your Senators that if they have 
questions, they should get them in?
    Let me welcome both of you: Karen Harbert and John Shaw. 
Ms. Harbert will be Assistant Secretary for International 
Affairs and Domestic Policy. We wish you the best.
    Ms. Harbert. Thank you.
    The Chairman. John Shaw will be Assistant Secretary of 
Energy for the Environment, Safety and Health. Both of them are 
important jobs. As I said, we hope that you have the very best.
    Mr. Shaw. Thank you.
    The Chairman. Now, before we begin the statements, I would 
ask each of you three questions. You have to stand up and raise 
your right hands.
    Do you solemnly swear that the testimony you are about to 
give to the Senate Committee on Energy and Natural Resources 
shall be the truth, the whole truth, and nothing but the truth?
    Mr. Shaw. I do.
    Ms. Harbert. I do.
    The Chairman. Thank you. Sit down.
    Before you begin your statements, I will ask each of you 
three questions addressed to each of you. I will begin with Ms. 
Harbert. Will you be available to appear before this committee 
and other congressional committees to represent the 
Department's position and to respond to issues of concern to 
the Congress?
    Ms. Harbert. I will.
    The Chairman. Mr. Shaw?
    Mr. Shaw. I will, sir.
    The Chairman. Are you aware of any personal holdings, 
investments, or interests that could constitute a conflict or 
create the appearance of such a conflict, should you be 
confirmed and assume the office to which you have been 
nominated by the President?
    Ms. Harbert?
    Ms. Harbert. Mr. Chairman, my investments, personal 
holdings, and other interests have been reviewed both by myself 
and the appropriate ethics officials and counselors within the 
Federal Government. I have taken appropriate action to avoid 
any conflicts of interest. There are no conflicts of interest 
or appearances thereof to my knowledge.
    The Chairman. Thank you.
    Mr. Shaw.
    Mr. Shaw. Mr. Chairman, my investments, personal holdings, 
and other interests have been reviewed by both myself and the 
appropriate ethics counselors within the Federal Government. I 
have taken appropriate action to avoid any conflicts of 
interest. There are no conflicts of interest or appearances 
thereof to my knowledge, sir.
    The Chairman. Are you involved or do you have any assets 
held in blind trust?
    Ms. Harbert. No, Mr. Chairman.
    The Chairman. Mr. Shaw?
    Mr. Shaw. No, Mr. Chairman.
    The Chairman. Thank you.
    Now, we are going to move on. If the Senators have some 
brief opening statements, if you would like to give them, we 
will do that.
    Senator Bingaman.

         STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Bingaman. Mr. Chairman, thank you very much for 
recognizing me. Let me just say that I intend to support both 
of the nominees based on what I am advised. These are both very 
important positions and they have particular relevance to our 
State, as you know, in several regards.
    I do have some statements that I will submit in writing. I 
have another hearing going on in the Finance Committee that I 
am required to attend as well. So I do appreciate them being 
here and I wish them both well.
    Mr. Shaw. Thank you, Senator.
    Ms. Harbert. Thank you.
    The Chairman. Before I yield to Senator Bunning, I 
understand that each of you has some relatives here. That seems 
to me to be important because it means that you consider it 
important, important enough to have your family here. Ms. 
Harbert, would you have your family stand up and quickly 
introduce them?
    Ms. Harbert. Yes, thank you, Mr. Chairman. I am pleased to 
introduce my mother, Josephine Hailey, who hails from the great 
State of Tennessee and who raised me to put integrity first. My 
husband, Michael Mitchell, and my mother-in-law and father-in-
law, Helen and Jerry Mitchell, all three of them from the great 
State of Pennsylvania. Thank you.
    The Chairman. Mr. Shaw.
    Mr. Shaw. Yes, Mr. Chairman. Thank you very much for this 
opportunity. Today I am joined by my wife, Hilary Shaw. My 
daughters, Isabelle and Charlotte, are here with me today. My 
mother is here as well, Patricia Spitaleri, and I am joined by 
my father-in-law, Jim Holman. My mother-in-law and father could 
not make it here today. They are traveling on business. Thank 
you, Mr. Chairman.
    The Chairman. That little one over there is one of them?
    Mr. Shaw. Yes, sir, the little redhead is mine.
    [Laughter.]
    The Chairman. You have her close to the door so if 
something happens, they can run out.
    [Laughter.]
    The Chairman. Senator Bunning.

          STATEMENT OF HON. JIM BUNNING, U.S. SENATOR 
                         FROM KENTUCKY

    Senator Bunning. Thank you, Mr. Chairman. Obviously, we 
have two nominees: Karen Harbert, the nominee to be Assistant 
Secretary of Energy for International Affairs and Domestic 
Policy; and Mr. John Shaw, nominated to be Assistant Secretary 
of Energy for Environment, Safety and Health.
    The nomination of Mr. Shaw is especially important, given 
the problems we have had that have plagued the DOE operation in 
its energy employees compensation program. Many of the workers 
at the Paducah gaseous diffusion plant have already received 
compensation for their illnesses due to the radiation and 
beryllium under subtitle B, the portion of the program run by 
the Department of Labor. DOL has processed more than 90 percent 
of the nearly 60,000 claims under the energy employment 
program.
    In contrast, however, more than 3,200 Kentuckians have 
requested help from DOE under subtitle D. These are Paducah 
workers exposed to toxic substances. These workers are still 
waiting to have their cases heard. None--that is zero--Kentucky 
workers have received compensation for their illnesses under 
DOE's portion of this program. As the Assistant Secretary for 
Environment, Safety and Health, it will be Mr. Shaw's job to 
oversee DOE's responsibilities under the energy program.
    As you are no doubt aware, I, along with bipartisan 
supporters of more than 20 Senators, drafted the Bunning-
Bingaman amendment to the defense authorization bill. The 
amendment moves the majority of the DOE operation to DOL for 
prompt claim processing and assures payment of benefits to 
deserving workers. The DOE has opposed these important reforms. 
I have worked hard and long with many of my Senate colleagues 
on this amendment and am hopeful it will stay in the 
conference.
    This is a big job and I expect Mr. Shaw will be receptive 
to suggestion and comments by Members of Congress. I hope that 
if the Senate confirms Mr. Shaw, he will work hard to make sure 
that DOE effectively manages the part of the energy employees 
program that they retain, such as record retrieval from the DOE 
facilities. I also hope he can assure a smooth transfer of 
operations if the program is moved to DOL.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    Now, as you can tell, things are getting rather slim up 
here. So what we are going to do is ask that you make your 
statements, and they are both made a part of the record right 
now. So they are part of this transcript. I would ask each of 
you to summarize them as briefly as you can. I understand they 
are brief, but maybe make the statements even briefer. Let us 
start with you, ma'am.

 TESTIMONY OF KAREN ALDERMAN HARBERT, NOMINEE TO BE ASSISTANT 
 SECRETARY FOR THE OFFICE OF POLICY AND INTERNATIONAL AFFAIRS, 
                      DEPARTMENT OF ENERGY

    Ms. Harbert. Yes, thank you, Mr. Chairman and members of 
the committee.
    I am honored to appear today before you as President Bush's 
nominee for Assistant Secretary for International Affairs and 
Domestic Policy, and I am grateful for the opportunity to serve 
President Bush and Secretary Abraham to build upon the 
excellent relations that DOE currently enjoys with the members 
of this committee.
    The Assistant Secretary is DOE's principal liaison to the 
Federal Government, other agencies, and other nations to ensure 
a unified policy voice on our energy sector. We live in a time 
when national security issues such as energy are no longer 
either domestic or international in nature. Fortunately, I have 
excellent road maps to guide my efforts, President Bush's 
National Energy Policy and National Security Strategy. The 
experience and knowledge I have gained throughout my career and 
by serving in senior positions in the Federal Government and 
the private sector will be a strong foundation to lead the 
Department's efforts to keep energy issues at the forefront of 
our national agenda here and abroad.
    Currently, as you may know, I serve at the United States 
Agency for International Development in charge of overseeing 
our foreign assistance programs in South America and the 
Caribbean. With an increasing appreciation for development 
assistance as an invaluable tool in achieving our national 
security objectives, I have established relationships across 
the foreign affairs agencies of the executive branch that will 
afford a ready-made interagency network, should I be confirmed.
    In my current position, I viewed USAID's relationships with 
Congress as a high priority and have expended significant 
effort to keep members and staff apprised of our programs, our 
budget needs, our successes, and our shortcomings. If 
confirmed, I can assure you that I will also endeavor to 
continue the development of a good working relationship with 
this committee and be proactive in keeping you abreast of DOE 
initiatives.
    I have lived and worked abroad all of my professional life 
with an emphasis on Latin America and the Caribbean. My job now 
is to improve people's lives and improve U.S. relationships 
with countries in the hemisphere. During my tenure at a private 
energy firm, it was my job to liaison with host governments and 
demonstrate to them the necessity of making their energy sector 
a priority for improvement. As Assistant Secretary, my job 
would be to find that common ground where we can improve our 
energy relationships around the world, make the energy sector a 
priority, and do it in a way that improves people's lives, 
protects our national assets, and protects the environment for 
generations to come.
    My experience with countries in this hemisphere is both 
broad and deep. As both the chairman and the ranking member 
know, our energy relationships within this hemisphere are 
growing in importance. In the private sector, I have also 
worked on energy issues in Asia, the Middle East, and Africa, 
and I have been a part of pioneering privatization programs 
around the world, opening up other sectors to private sector 
investment. I look forward to returning to these parts of the 
world, if confirmed as Assistant Secretary.
    I have witnessed firsthand the value that DOE offers in 
commercializing environmentally friendly technologies to help 
us and other committed countries address global climate change. 
Should I be confirmed, I want to assure you that our work on 
global climate change will continue and be an expanding part of 
our international dialog.
    Our government has some of the most experienced 
professionals in their specific career areas around the world. 
I currently oversee about 1,000 employees, extremely capable 
and committed individuals, at USAID. And at DOE I have met the 
International and Domestic Policy staff, and I would be very 
privileged to lead that great team. Sound management practice 
is an important part of an Assistant Secretary's mandate, and 
you have my assurance that, if confirmed, I will attend to the 
management needs of the office to allow the talents and 
contributions of the office to be fully realized.
    In conclusion, as you know, we face many great challenges 
in further expanding our national energy mix. Internationally, 
we see countries such as China and India vastly increasing 
their energy demands, and at home we must protect and modernize 
our energy infrastructure and promote the use of technology to 
ensure a constant, fairly priced supply of environmentally 
friendly energy.
    Mr. Chairman, it is a rare occurrence when an opportunity 
presents itself that allows you to bring forth all of your 
experience and knowledge for one job. I thank the President and 
the Secretary for this opportunity and I thank the members of 
this committee for considering my nomination.
    This concludes my statement and I would be happy to address 
any questions the committee may have. Thank you.
    [The prepared statement of Ms. Harbert follows:]
 Prepared Statement of Karen Alderman Harbert, Nominee To Be Assistant 
     Secretary for the Office of Policy and International Affairs, 
                          Department of Energy
    Chairman Domenici, Senator Bingaman and members of the Committee, I 
am honored to appear before you today as President Bush's nominee for 
Assistant Secretary for International Affairs and Domestic Policy. I am 
grateful for the opportunity to serve President Bush and Secretary 
Abraham and to build upon the excellent relations that the Department 
of Energy (DOE) enjoys with the members of this Committee.
    First, Mr. Chairman, please allow me to introduce two important 
people here with me today. My mother Josephine Hailey here from Senator 
Alexander's home state who raised me to put integrity first, and my 
husband Michael Mitchell, my most valued and cherished partner in life.
    The Assistant Secretary for International Affairs and Domestic 
Policy is DOE's principal liaison to other nations and to other Federal 
agencies to ensure a unified voice for our energy policy. We live in a 
time when national security issues such as energy are no longer either 
domestic or international in nature. On both the domestic and 
international components of the office's portfolio, I have excellent 
road maps to guide my efforts, President Bush's National Energy Policy 
and the National Security Strategy. The experience and knowledge I have 
gained throughout my career and by serving in senior positions in the 
Federal government and in the private sector will be a strong 
foundation to lead the Department's efforts to keep energy issues at 
the forefront of our national agenda here and abroad.
    Currently, I serve at the U.S. Agency for International 
Development, charged with overseeing our foreign assistance programs in 
South American and the Caribbean. With increasing appreciation for 
development assistance as an invaluable tool in achieving our national 
security objectives, I have established relationships across the 
foreign affairs agencies of the executive branch that will afford a 
ready made interagency network should I be confirmed. In my current 
position, I viewed USAID's relationships with Congress as a high 
priority and have expended significant effort to keep members and staff 
apprised of our programs, our budget needs, our successes and our 
shortcomings. If confirmed, I can assure you that I will also endeavor 
to continue the development of a good working relationship with this 
Committee and be proactive in keeping you abreast of DOE initiatives.
    I have lived and worked in the international arena all of my 
professional life, with a particular emphasis on Latin American and the 
Caribbean. I was born in Argentina to American parents during a time 
when the U.S. and Argentina did not see eye-to-eye on many issues, 
which ultimately didn't serve either's interests well. My job now is to 
improve people's lives and improve U.S. relationships with the 
countries in this Hemisphere. During my tenure at a private energy 
firm, it was my job to liaison with host governments and demonstrate to 
them the necessity of making their energy sector a priority for 
improvement. As Assistant Secretary my job would be to find that common 
ground where we can improve our energy relationships around the world, 
make the energy sector a priority and do it in a way that improves 
people's lives and protects the environment for generations to come.
    My experience with countries in this Hemisphere is both broad and 
deep and as both the Chairman and Ranking Member know our energy 
relationships with our hemispheric partners are growing in importance. 
In the private sector I also worked on energy issues in Asia, the 
Middle East and Africa. I have been part of pioneering energy 
privatization programs working with governments to open up to private 
investment. I look forward to returning to these parts of the world to 
solidify and expand U.S. interests.
    In the private sector, I witnessed first hand the value DOE labs 
offer in commercializing environmentally friendly technology to help us 
and other committed countries address global climate change. Should I 
be confirmed, our work on Global Climate Change will continue and be an 
expanding part of our international dialogue.
    Our government has some of the most experienced professionals in 
their specific career areas in the world. I currently oversee almost 
1,000 extremely capable and committed individuals at USAID. DOE is no 
exception. I have met the International and Domestic Policy Staff and 
would be privileged to lead that great team. Sound management practice 
is an important part of the Assistant Secretary's mandate. You have my 
assurance that if confirmed, I will attend to the management needs of 
the office to allow the talents and contributions of the office to be 
fully realized.
    We face many great challenges in further expanding our national 
energy mix. Internationally, we see countries such as China and India 
vastly increasing their energy demands. At home, we must protect and 
modernize our energy infrastructure and promote the use of technology 
to ensure a constant, fairly-priced supply of energy.
    Mr. Chairman, it is a rare occurrence when an opportunity presents 
itself that allows you to bring forth all of your experience and 
knowledge for one job. I thank the President and the Secretary for this 
opportunity and I thank the members of the Committee for considering my 
nomination. This concludes my statement and I would be happy to address 
any questions the Committee may have. Thank you.

    The Chairman. Thank you.
    Mr. Shaw.

        TESTIMONY OF JOHN SPITALERI SHAW, NOMINEE TO BE 
 ASSISTANT SECRETARY FOR THE OFFICE OF ENVIRONMENT, SAFETY AND 
                  HEALTH, DEPARTMENT OF ENERGY

    Mr. Shaw. Mr. Chairman and members of the committee, it is 
my honor and privilege to appear before you today as President 
Bush's nominee to serve as the Assistant Secretary for 
Environment, Safety and Health.
    Mr. Chairman, I can think of no other position in 
government that offers the challenges and potential rewards as 
that of Assistant Secretary for Environment, Safety and Health. 
Should I be confirmed, I will seek to provide leadership and 
help the men and women in EH continue to meet their goal of 
assuring the health and safety of DOE employees and the 
protection of the environment in communities near DOE 
facilities.
    I appreciate your consideration of my nomination and I very 
much look forward to working with you and members of the 
committee. Thank you for the opportunity to appear before you 
today, and I look forward to answering your questions. Thank 
you, Mr. Chairman.
    [The prepared statement of Mr. Shaw follows:]
  Prepared Statement of John Spitaleri Shaw, Nominee To Be Assistant 
Secretary for the Office of Environment, Safety and Health, Department 
                               of Energy
    Chairman Domenici, Senator Bingaman, and members of the Committee, 
it is my honor and privilege to appear before you today as President 
Bush's nominee to serve as the Assistant Secretary of Energy for 
Environment, Safety and Health (EH). As you know, on July 22, 2004, I 
was also appointed Acting Assistant Secretary for Environment, Safety 
and Health in order to fill a position that had been vacant for several 
months.
    Before being appointed Acting Assistant Secretary, I held two 
senior positions at the Department of Energy (DOE)--first as Principal 
Deputy Assistant Secretary for Environment, Safety and Health, and then 
as the Deputy Chief of Staff and White House Liaison. Prior to joining 
DOE, I practiced law in the private sector here in Washington, D.C. and 
also served as Majority Counsel for former Senator Fred Thompson on the 
Senate Committee on Government Affairs during the committee's 1997 
special investigation into alleged illegal and improper campaign 
finance activity.
    As Principal Deputy Assistant Secretary for Environment, Safety and 
Health, I became familiar with the wide range of critical functions 
played by the Office. As the Department's Deputy Chief of Staff, where 
it was my responsibility to coordinate Secretarial initiatives with the 
various program offices, I again saw firsthand how EH serves the DOE 
program offices throughout the Department. In short, it became clear 
that it is the Office of Environment, Safety and Health that the DOE 
community comes to for the help they need not only to do their jobs 
safely, but to do them well.
    Secretary Abraham has made a personal commitment that the safety of 
our workers, respect for the environment, and the protection of the 
public health are paramount in all that we do. The Secretary looks to 
EH to help provide the leadership and tools needed to keep this 
commitment. The Department today has an excellent safety record--for 
example, over the past six years the numbers of workdays lost because 
of safety concerns has been cut in half and is now less than half that 
of private industry.
    While that is a record to be proud of, our data tells us we need to 
do better. Our data tells us that we have to improve our performance in 
two areas in particular--electrical safety and the safety performance 
of subcontractors who come on to our sites for brief periods. As 
Assistant Secretary, one of my top priorities would be to improve the 
Department's performance in these areas.
    In the short time that I have served as the Acting Assistant 
Secretary, I have become familiar with the wide range of 
responsibilities this office entails--from the Office of Facility 
Safety to Office of Health, the Office of Corporate Performance 
Assessment, the Office of Price Anderson Enforcement, and the Office of 
Environment. I know that many of the activities of these offices are of 
great importance to the members of the Committee and I pledge to work 
closely with this Committee and other Members of Congress on each of 
these areas of interest.
    An example of the breadth of EH activities is the Office of 
Environment. The Office conducts independent reviews of Environmental 
Impact Statements prepared by DOE Program offices to ensure they are 
technically adequate, legally sufficient, and compliant with all 
requirements; they ensure radiation protection of the public and 
environment through policies and guidance; and they promote the 
adoption of sound pollution prevention practices through the use of 
environmental management systems. They are providing DOE-wide 
leadership in helping meet the goals of Executive Order 13148, 
``Greening the Government through Leadership in Environmental 
Management'' by having environmental management systems in place at all 
DOE sites by December 31, 2005.
    I know that one of the issues of particular concern to this 
Committee is implementation of Subtitle D of the Energy Employees 
Occupations Illness Compensation Program Act and the Worker Safety and 
Health rule and I look forward to discussing these issues with the 
Committee members.
    Mr. Chairman, I can think of no other position in government that 
offers the challenges and potential rewards as that of Assistant 
Secretary for Environment, Safety and Health. Should I be confirmed, I 
will seek to provide leadership to help the men and women in EH 
continue to meet their goal of assuring the health and safety of DOE 
employees, and the protection of the environment and communities near 
DOE facilities.
    I appreciate your consideration of my nomination, and I very much 
look forward to working with you and members of the Committee. Thank 
you for the opportunity to appear before you today, and I look forward 
to answering your questions.

    The Chairman. Thank you very much, Mr. Shaw.
    Senator Bunning, do you have any questions?
    Senator Bunning. I have got lots of questions, but I do not 
know if I should submit them all. I am going to ask some of Mr. 
Shaw because it is very important.
    The Chairman. Please do. You are in charge now, Senator 
Bunning.
    Senator Bunning. All right. Thank you, Mr. Chairman.
    The Chairman. Thank you very much. We will call a meeting 
to confirm you as soon as possible.
    Mr. Shaw. Thank you, Mr. Chairman.
    Ms. Harbert. Thank you, Mr. Chairman.
    The Chairman. You are welcome.
    Senator Bunning [presiding]. Mr. Shaw, as you know, the 
Department of Energy has many issues with Paducah from cleanup 
to workers' compensation. I helped set up a Kentucky DOE office 
so that headquarters could more efficiently deal with that in 
Lexington, Kentucky.
    Given the complexities at the Paducah plant--have you ever 
been to Paducah?
    Mr. Shaw. Not yet, Senator. I look forward to coming down 
there shortly.
    Senator Bunning. The sooner, the better.
    Mr. Shaw. Yes, sir.
    Senator Bunning. Mr. Shaw, DOE continues to fight against 
the bipartisan workers' compensation amendment. DOE has 
squandered the past 4 years and $90 million of taxpayers' money 
on this program. The result is still zero Kentucky workers and 
only 31 claimants from other States have been paid. What are 
you going to do to assure that ill workers are taken care of 
not only in Paducah but around the country?
    Mr. Shaw. Thank you, Senator. I know that you and other 
members of the committee have worked very hard on this issue 
and that you care very deeply about DOE workers. I know that 
you have been very frustrated with the Department's performance 
in this area. I also know that you know Secretary Abraham and 
his staff and myself are working very hard to improve this 
performance, and his commitment to this program and former DOE 
workers is without question.
    Having said that--and I know this is your amendment, sir--
Congress will soon make a decision on whether to move the 
overall responsibility for this program over to the Department 
of Labor, a change a number of members of this committee, 
including yourself, support. Regardless of what that decision 
is--and I know you know the administration's position is that 
it should stay with DOE--it will be critical during this time 
that DOE maintain a robust and healthy records retrieval 
capability.
    That has been my focus since assuming responsibility as 
acting Assistant Secretary. Based on your statement earlier, I 
want to pledge to you that should the program move to the 
Department of Labor, you will have not only my personal but my 
entire office's full cooperation. The bottom line is my office 
needs to work harder and we need to work together to get the 
workers paid the compensation that they deserve, sir.
    Senator Bunning. Mr. Shaw, DOE has still not identified a 
payor for as many as half of all the claimants who may be ill 
from their DOE work. It is now letting a new contract for all 
of the claims processing activities, and after 4 years, only 6 
percent of the 25,000 claims have made it through the physician 
panels. Given these facts, how will DOE be able to finish 
processing all 25,000 claims within its projected 2-year 
timeframe?
    Mr. Shaw. Well, Senator, to answer your question in two 
parts. First, the current contract that exists is under review 
by procurement because my understanding is that there is an 
awards process going on right now and no final decision has 
been made regarding a contractor to carry out this important 
part of the mission.
    As far as the Department of Energy's ability to continue to 
ramp up production and continue to try to process claims 
through the physicians' panels, I do not want to sit here and 
give you an exact date because I think you have heard exact 
dates from my office before. What I would like to be able to do 
is go back and look at the numbers that we have and give those 
to your office and staff so I have a chance to review them more 
thoroughly in order to give you a better answer.
    Senator Bunning. At the last meeting we had on this 
specific issue, Mr. Card gave us a 2-year. That is why I 
brought it back.
    Mr. Shaw. I understand, sir. I think that it is my 
responsibility, as the acting Assistant Secretary and the 
nominee for this post, to make sure that I review these numbers 
thoroughly and give them to you and assess what I believe they 
are.
    [The information follows:]

    DOE is currently processing approximately 150 cases per 
week through the physician panels. If that rate were to 
continue, we could assume that about 2,500 cases would complete 
physician panel review in approximately a 17 week period.

    Senator Bunning. Mr. Shaw, prior to your being nominated, 
the Department of Energy indicated that the early lung 
screening program that I fought to establish at the gaseous 
diffusion plant was a bad idea and should be stopped. Do you 
share this opinion about this valuable program? If not, what 
are your plans for the future of the program?
    Mr. Shaw. You are referring to the CT scan, Senator?
    Senator Bunning. Yes.
    Mr. Shaw. I met with Dr. Markowitz recently and he brought 
to my attention this program that he works with at several 
locations. Quite frankly, Dr. Markowitz and I had a very good 
conversation. We discussed some of the science and technology 
behind this, what I consider an important avenue for workers to 
have available to them, should they choose to look into 
obtaining these scans. I look forward to working with you and 
your office to see if this is something that should be provided 
in a more efficient fashion to workers. At this point in time, 
I know it is not widely available, but we are looking at ways 
to proceed and see whether or not it is the right thing to 
continue to do.
    Senator Bunning. In other words, you have not made an 
opinion on this program at all?
    Mr. Shaw. No, sir.
    Senator Bunning. It has been in effect for quite a while.
    Mr. Shaw. Yes. I know it has been in effect for quite a 
while, and right now my understanding is that my predecessor 
adopted an opinion that was against this. I certainly am 
willing to meet with all the parties involved and see if this 
is appropriate.
    Senator Bunning. The Department of Energy has asserted that 
its path forward will provide a payor for every claimant. Yet, 
its proposal only indicates the Department will look for a 
payor but does not guarantee a payor for every claimant. What 
steps has the Department taken to ensure that all claims 
approved by the Department of Energy's physician panels for 
illnesses suffered at the Paducah plant will be paid, including 
those who also have employment with USEC and those that could 
affect the Kentucky special compensation fund?
    Mr. Shaw. My immediate answer to you, Senator, is that the 
Department of Energy will continue to work hard to seek willing 
payors. We are not in a position, unfortunately, to order these 
people to pay. We do our best to seek out willing payors and 
have them pay the claims that these people deserve.
    In regards to USEC and the special cadre of workers that 
you mention, I would like to be able to provide those answers 
for you in writing. I am aware of it, but I would prefer, sir, 
if it is OK, to submit those to your staff.
    [The information follows:]

    In Kentucky, specifically at the Paducah Site, DOE has 
identified Bechtel Jacobs as the ``willing payer'' for Paducah 
Plant employees of Union Carbide, Martin Marietta Energy 
Systems or Lockheed Martin Energy Systems who had exposures to 
toxic substances prior to July 1998. Based on the applications 
to date, we estimate that many of these workers will have a 
willing payer for occupational exposures for which DOE will 
issue ``do not contest'' orders, although in some instances 
this will require additional coordination with other state 
agencies. DOE continues to work with the current commissioner 
to identify means for allowing the Kentucky State fund to waive 
their defenses. DOE also continues to investigate mechanisms to 
pay claims without ``willing payers.''

    Senator Bunning. Okay, you can do that.
    Mr. Shaw. Yes, sir.
    Senator Bunning. This will be the last question. The DOE 
just sent a request for proposal, RFP, out for a new contractor 
to replace SEA, the current contractor that the Government 
Accountability Office, GAO, the General Services 
Administration, GSA, Inspector General, and others have found 
significant problems with. How long will it take DOE to 
transition from its current contractor to a new one? How can we 
be sure that the DOE will select a qualified contractor? Have 
any claimant experts, workers comp experts, or State workers 
comp agencies endorsed the DOE's path forward, the DOE's 
request for proposal, RFP, or the small list of companies to 
whom it was sent?
    Mr. Shaw. First, Senator, you raise and the GSA Inspector 
General and the GAO have raised some very serious issues. 
Please be assured that the Secretary takes this matter very 
seriously, and at this time we are responding accordingly. The 
Secretary appointed an internal review group to research the 
history of DOE's relationship with several of the contractors 
that are applying for this, and right now we are going to have 
responses to provide to the GSA by September 24, in a few days.
    One of the things I would also like to do, Senator, is take 
again your question and provide you more thorough answers on 
paper, sir.
    [The information follows:]

    During our market research, DOE did not hear from or learn 
of companies that were interested in participating in this 
procurement that would not be able to participate in a GSA 
schedule procurement, nor had DOE received inquiries from any 
such companies.
    Because of uncertainties concerning the Subtitle D program, 
the Department terminated the procurement in question and 
initiated a short term bridge contract with SEA. DOE is working 
closely with the Department of Labor to best meet the 
programs's needs should the program be transferred to the 
Department of Labor.

    Senator Bunning. OK. You realize that the chairman of the 
Finance Committee is also doing a very intensive study about 
this same program?
    Mr. Shaw. Yes, sir. I am aware of Senator Grassley's 
concerns.
    Senator Bunning. That is all the questions I have. I want 
to thank you both for being here to testify.
    This meeting is adjourned.
    [Whereupon, at 10:24 a.m., the hearing was adjourned.]


                                APPENDIX

                   Responses to Additional Questions

                              ----------                              

                              Department of Energy,
               Congressional and Intergovernmental Affairs,
                                   Washington, DC, October 8, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Mr. Chairman: On September 21, 2004, John Spitaleri Shaw, 
Acting Assistant Secretary for the Office of Environment, Safety and 
Health, testified as President Bush's nominee to serve as the Assistant 
Secretary for the Office of Environment, Safety and Health.
    Enclosed are the answers to questions that were submitted by 
Members of the Committee for the hearing record.
    If we can be of further assistance, please have our staff contact 
our Congressional Hearing Coordinator, Lillian Owen, at (202) 586-2031.
            Sincerely,
                                          Rick A. Dearborn,
                                               Assistant Secretary.
[Enclosures.]
                     Question From Senator Domenici
    Question 1. Please outline the Office of Environment Safety and 
Health's historical, current, and future plans for the Marshall Islands 
Program.
    Answer. Medical Program. On March 1, 1954, 253 people on Rongelap 
and Utrik Atolls were exposed to radiation resulting from fallout 
during the U.S. nuclear test Castle Bravo. Medical care was immediately 
assumed by the Atomic Energy Commission and has continued under 
successor agencies--the Energy Research and Development Agency and DOE. 
DOE is required to pay for a program of ``adequate medical care and 
treatment for any person who has a continuing need for the care and 
treatment of any radiation illness or illness directly related to 
Castle Bravo.'' Public Law 108-188, The Compact of Free Association 
Amendments Act of 2003, continues this commitment into the future.
    The original medical program provided annual medical screening 
examinations, with an emphasis on detection and treatment of radiation 
related illness. Treatment for other diseases and conditions found upon 
examination was and currently is provided by the National Health Care 
System in the Marshall Islands. During the program's early years, 
services were delivered aboard ship. In 1997, the program was changed 
to a land based program with doctors available to see enrolled persons 
in Majuro City and those living on Ebeye Island near Kwajalein Island. 
Quarterly visits to several remote islands filled out the land based 
program.
    During Fiscal Year 2005 execution, DOE will make funds available to 
provide medical screening examinations and treatment for the affected 
population.
    Environmental Program. The DOE environmental monitoring program was 
mandated in Public Laws 96-205 and 99-239 (Section 177). As originally 
authorized, it was to include periodic environmental characterization 
of Bikini, Enewetak, Rongelap, and Utrik Atolls to support decisions 
about resettlement. After more than 20 years of characterization 
activities, the program now answers specific scientific questions 
related to resettlement decision making. The implementing agreement for 
Section 177 included whole body counting and access to DOE scientists 
for consultation and special studies. The historical agricultural and 
environmental studies performed on Bikini Island will be completed in 
FY 2005.
    The current program supports environmental monitoring technical 
support for resettling and settled populations on three of the four 
Atolls. Most activity is directed to Enewetak Island and Rongelap 
Island. This year the environmental contractor, Lawrence Livermore 
National Laboratory, was directed to complete the backlog of studies 
and technical summaries. DOE has exceeded the requirements of the 
Section 177 implementing agreement by building and training local 
technicians to operate three whole body counters in the Marshall 
Islands. These devices are the standard for determining a person's 
actual intake of radioactive materials from locally grown foods. Any 
Marshallese citizen with a concern can arrange to have the procedure. 
Results to date show insignificant exposures.
    During Fiscal Year 2005 execution, DOE will make funds available to 
support a core program of whole body counting and reporting of results 
to the public, active resettlement environmental monitoring for 
Rongelap, and special studies of new food crops.
                    Questions From Senator Bingaman

                  SANDIA NEW MEXICO MEDICAL SCREENING
    Question 1a. The former worker medical screening program at Los 
Alamos has been conducted by occupational physicians from Johns Hopkins 
and University of New Mexico, and is scheduled to be closed down this 
year. DOE has not initiated a former worker medical screening program 
at Sandia Labs in New Mexico.
    Has the DOE's model used over the past 7 years been effective in 
serving the needs of the former workers across the DOE complex?
    Answer. It is my understanding that these pilot projects, which 
have served former workers from 11 DOE sites, have been very effective 
in identifying possible exposures, identifying the appropriate medical 
screening tests for workers with these exposures, conducting outreach, 
and in offering medical screening in convenient locations.
    Question 1b. Has this model been effective in serving the needs of 
former workers at Los Alamos?
    Answer. Yes, it is my understanding that this model has been very 
effective in serving the needs of former workers at Los Alamos.
    Question 1c. Would you support initiating a stand-alone medical 
screening project at Sandia Labs, similar to the model used at Los 
Alamos over the past five years?
    Answer. I am committed to the availability of appropriate medical 
screening for former DOE employees at all sites, including Sandia. 
Before we make a decision on how to best proceed with any change in the 
existing program, I believe we need to undertake a thorough review of 
the Former Worker Medical Screening Program in order to evaluate the 
effectiveness of the program, the results achieved and the operational 
costs associated with the program. One of my first actions as Acting 
Assistant Secretary was to direct that plans to award a contract for a 
national screening program be put on immediate hold, until a thorough 
analysis of existing projects and the needs of DOE sites currently 
without screening programs can be concluded. If confirmed, I would look 
forward to working with you and your staff on this important matter.

          NIOSH-DOE MEMORANDUM OF AGREEMENT ON HEALTH STUDIES
    Question 2a. DOE's Memorandum of Agreement with HHS with respect to 
Health Studies expires at the end of September 2004. This MOA covers 
health studies performed by ATSDR, CEH and NIOSH.
    A key area of concern is the impact of a new MOA on health studies 
on atomic workers by NIOSH's Health Energy Related Branch (HERB). HERB 
performs epidemiological studies with funds transferred under this MOA. 
Congress had contemplated assigning this research function to HHS as 
part of the legislation in the late 1980s and early 1990s, but a 
compromise was struck with the Secretary, Admiral James Watkins, to 
have HHS perform this research through an interagency Memorandum of 
Agreement. For NIOSH to credibly and effectively perform health related 
research, it must have independence from DOE's involvement in the 
selection of research areas, the types of studies, the methods of peer 
review, the establishment of committees, and the types of research 
proposals (extra mural and intramural). We are concerned that NIOSH's 
independence could be eroded by DOE efforts to micromanage NIOSH and 
its energy related research agenda.
    What is your schedule for renegotiating this MOA?
    Answer. The MOU has been renegotiated by the staffs of HHS and DOE 
and is expected to be signed shortly by the Secretary of Energy and the 
Secretary of HHS.
    Question 2b. As a party to the MOA, will you work to assure that 
NIOSH retains the independence which it deems necessary to credibly and 
effectively carry out its research, including the selection of research 
topics, the methods of peer review, the establishment of review 
committees, and the use of both intramural and extramural researchers.
    Answer. Yes, NIOSH independence is one of the factors important to 
the success of this program. The MOU was intended to provide 
independent scientific support as a means of restoring congressional 
and public trust in the results of worker health studies and public 
health activities at DOE facilities and in host communities. HHS and 
DOE agree that the program has been successful. The new MOU, as 
drafted, will continue NIOSH's independence in the conduct of the 
studies, while responsibility for selecting and prioritizing the 
studies will be shared by the two agencies.
    Question 2c. What is the DOE's FY 05 budget for worker health 
studies by NIOSH? For ATSDR studies? For CEH studies?
    Answer. The FY 2005 budget request for these activities is $13.5 
million, which assumes $5.0 million for NIOSH, $5.0 million for ATSDR, 
and $3.5 million for NCEH.
    Question 2d. Are any new studies of DOE sites by ATSDR required by 
CERCLA or otherwise necessary at this point in time?
    Answer. It is my understanding that no new studies of DOE sites by 
ATSDR are required by CERCLA at this time.

   LOS ALAMOS HISTORICAL DOCUMENT RETRIEVAL AND ASSESSMENT, LAHDRA, 
                                PROJECT
    Question 3a. Under the DOE-CDC Memorandum of Understand referenced 
in question 2, the Department of Energy funds the CDC to review 
historical documents at the Los Alamos National Laboratory to assess 
the radiation dosage that may have been released to the surrounding 
public the since the laboratory began operations. This project is a 
continuation of other successful projects carried out at Hanford and 
Oak Ridge's Y-12 facility. There have been some concerns regarding the 
ability of the CDC to access the LANL documents due to security 
classification and funding from the DOE to the CDC to carry forth this 
project.
    Does the Department support this project?
    Answer. Yes, this project is a very high priority for both DOE and 
HHS.
    Question 3b. What is the status of this project?
    Answer. I understand that NCEH will award the contract in the near 
future.
    Question 3c. Has the issue of document access by the CDC and its 
contractors been resolved?
    Answer. Yes, an effective special security procedure to deal with 
access issues has been developed with NNSA support.
    Question 3d. What is the funding for this project in FY2005?
    Answer. FY 2004 funding is $1.0 million and FY 2005 funding is 
expected to be $1.8 million.
                 radiation effects research foundation
    Question 4a. The Department has historically funded the Radiation 
Effects Research Foundation to study the long-term effects of atomic 
bomb survivors in Japan.
    What is the FY2004 funding level?
    Answer. The FY 2004 funding level is $13.5 million.
    Question 4b. What is the FY2005 funding level, and if it has been 
reduced from FY2004 why?
    Answer. The DOE FY 2005 budget request for all Health programs, 
which includes the RERF program, is $45 million. During Fiscal Year 
2005 execution, DOE will make funds available to support RERF 
activities.
 
                       MARSHALL ISLANDS PROGRAM
    Question 5a. The Office of Environment, Safety and Health is 
responsible for providing mandated medical care for the residents of 
Rongelap and Utrik who were exposed to acute radiation from the 
``Bravo'' thermonuclear test in 1954, and for monitoring radiological 
conditions in all of the Northern Marshall Islands in support of 
cleanup and resettlement activities. DOE's budget for these activities 
for FY 2002, FY 2003, and FY 2004 was $6.3 million, but there is no 
longer a line item in FY 2005.
    What is DOE's FY 2005 budget request for the Marshall Islands 
Program?
    Answer. The DOE FY 2005 budget request for all Health programs, 
which includes the Marshall Islands program, was $45 million.
    Question 5b. Please explain the new approach and assure the 
Committee that DOE will continue to help meet our nation's unique 
responsibility to those individuals and communities that were so deeply 
affected by our weapons testing program.
    Answer. DOE will provide appropriate medical screening examinations 
and treatment of cancer for the remaining 109 people who were present 
on Rongelap and Utrik Atolls during the 1954 Castle Bravo test. In 
addition to this group, medical examinations and care are provided to 
about 90 others. The current program supports environmental monitoring 
technical support for resettling and settled populations on three of 
the four Atolls. Most activity is directed to Enewetak Island and 
Rongelap Island. This year the environmental contractor, Lawrence 
Livermore National Laboratory, was directed to complete the backlog of 
studies and technical summaries. DOE has exceeded the requirements of 
the Section 177 implementing agreement by building and training local 
technicians to operate three whole body counters in the Marshall 
Islands. These devices are the standard for determining a person's 
actual intake of radioactive materials from locally grown foods. Any 
citizen of the Marshall Islands with a concern can arrange to have the 
procedure. Results to date show insignificant exposures.
                      Question From Senator Craig
     energy employees occupational illness compensation program act
    Question 1. Mr. Shaw, I am certain that the members of this 
Committee will explore with you their views and concerns regarding the 
Energy Employees Occupational Illness Compensation Program Act. I have 
met with a number of Idahoans--retired workers from the INEEL and 
Argonne West--who have filed claims under this program.
    I believe the DOE has made many efforts under the leadership of 
Secretary Abraham and Deputy Secretary McSlarrow to get this claims 
processing system on track somehow. I understand that some Senators 
feel that the Labor Department will do a better job. It is their right 
to hold that view.
    But when I have met with my constituents, the thing they want most 
of all is just to get access to the information they need, in a timely 
fashion, and to keep the claims process moving. Although I do worry 
that by ``switching horses mid stream'' from Energy to Labor--we might 
slow the system down--I support any solution that will move these 
people through this program with expediency and fairness.
    Whatever ends up happening with the transfer of this program, do 
you commit to working with all of our offices when we have individuals 
workers that cannot get access to their exposure records--or the 
history of what they were exposed to? If workers from Idaho feel they 
are being stonewalled by DOE, or denied access to information about 
their work history, will you work with me to resolve it?
    Answer. I want to assure you and the Members of Congress, along 
with DOE workers and their families, that no matter how the issue of 
overall management of the program is resolved, DOE will aim to maintain 
a healthy and robust program to obtain the worker health and exposure 
records needed to address EEOICPA applications. Should Congress 
transfer responsibility for administering certain EEOICPA 
responsibilities to the Department of Labor, we will work closely with 
them for a seamless transition and effective working relationship. If 
any worker feels stonewalled or denied access to information about 
their work history, my office will work with you to resolve their 
concerns.
                     Question From Senator Kennedy
    Question 1. The Office of Environment, Safety and Health has been 
funding beryllium screening for former employees of DOE's beryllium 
vendors in Massachusetts through the former worker medical screening 
program. Boston University was assigned the responsibility to carry out 
this medical screening program for former employees of Wyman Gordon and 
Norton (now St. Gobain) by DOE with a $250,000 cooperative agreement. 
The program has been very effective and additional beryllium-exposed 
workers have been identified in eastern Massachusetts.
    Will you ensure that additional funding is provided to complete 
this beryllium screening program?
    Answer. It is my understanding that this program has been very 
effective in identifying beryllium disease in former employees of 
beryllium vendors. Should I be confirmed we will complete medical 
screening of former Norton employees and initiate medical screening for 
beryllium-exposed workers in eastern Massachusetts consistent with 
funding availability.
                    Questions From Senator Cantwell
    Question 1. Mr. Shaw, I know you are aware of the screening program 
for former Hanford workers exposed to on-the-job hazards, and I 
appreciate your willingness to meet with my office on this subject. 
While the larger DOE Energy Employees Compensation Program has been 
mired in controversy and mismanagement, at least the Hanford screening 
program has been successful. It has led to the early detection of 
cancers, provided ongoing screening for long-latency illnesses and 
resulted in more than 360 successful compensation claims through the 
State of Washington. Frankly, it is one of the few success stories in 
our effort to take care of those workers the federal government 
inadvertently put in harms way.
    That is why I'm troubled by the notion that DOE now wants to 
reinvent the wheel and dismantle programs that are actually working, in 
favor of a centralized program that could very well offer fewer 
services and less care. Essentially, that's what DOE proposed earlier 
this year before you arrived--with existing programs originally 
scheduled to end on October 1, or in two weeks. While that deadline in 
some cases was extended until next spring, workers are still being left 
with nowhere to go. Since June, the program administered by the 
University of Washington has had to turn away more than 500 former 
Hanford workers who want to be examined. These programs--and the 
workers they serve--have been left in limbo.
    Mr. Shaw, will you commit to extending the Hanford former worker 
program as soon as possible, so these workers on waiting lists can get 
the medical screening, follow-up care and assistance they so richly 
deserve?
    Answer. Recognizing the concerns expressed by you and other Members 
of the House and Senate, one of my first actions as Acting Assistant 
Secretary was to direct that plans to award a cooperative agreement for 
a national screening program be put on immediate hold until a thorough 
analysis of existing projects and the needs of DOE sites currently 
without screening programs could be conducted. If I am confirmed as 
Assistant Secretary, I commit to working with Hanford stakeholders in 
conducting that analysis. I further directed that all existing 
programs, including the former worker medical screening program at 
Hanford, continue offering full services through next Spring. At that 
time, we will have the results from our analysis and a better 
understanding of the financial resources required and availability of 
funds for these important programs.
    Question 2. I am aware that the extension through March of next 
year was issued last month. But even if DOE were to approve a change in 
``scope of work,'' to make it possible for more workers to get exams in 
the next few months, it is my understanding that there would not be 
enough time to provide the follow-up care and assistance for those 
workers. And even if the program were able to ramp up from a stand-
still to granting the maximum number of exams per month, that would 
still leave in limbo more than half of the more than 500 workers now on 
the medical exam waiting list. And that's to say nothing of the more 
than 3,000 who are at an earlier stage in the process, who have been 
identified and have an interest in taking advantage of the screening.
    We believe that, to get through this backlog, the program needs to 
remain in place for three years--and that's even before another 30,000 
workers have been located. But in the very least, can you commit to 
extending this program through all of fiscal year 2005? I see that as 
the only way that this program can continue to function in a way that 
will not result in workers getting the rug pulled out from underneath 
them.
    Answer. As I mentioned previously, I have directed a complete and 
through analysis of the Former Worker medical screening program. When 
we have the results from that analysis, with a better understanding of 
financial resources required to best meet the needs of former workers 
at Hanford and all DOE sites, we will be able to make such a 
determination.
    Question 3. Mr. Shaw, I know that you are also aware of the 
concerns that are being raised about the health and safety of current 
workers at the Hanford tank farms. Earlier this summer, the National 
Institute for Occupational Safety and Health (NIOSH) published a Health 
Hazard Evaluation for the tank farms, and ``determined a potential for 
significant occupational exposures and health effects from vapors 
released from the hazardous waste storage tanks'' at Hanford.
    Obviously, this is of grave concern to all of us concerned about 
Hanford. One of the NIOSH recommendations, in particular, grabbed our 
attention. Specifically, NIOSH recommended medical monitoring for 
current tank farm workers who want it. Already, current worker 
monitoring programs exist at sites in Kentucky, Tennessee and Ohio. And 
in reviewing the legislation that created the existing monitoring 
program, it seems that DOE already has the statutory authority to put 
one in place at Hanford. A few questions on this topic:

   Do you agree with NIOSH that establishing an independent 
        medical monitoring program for current Hanford tank farm 
        workers would be beneficial?
   Do you believe this could be accomplished by expanding DOE's 
        existing cooperative agreement with the University of 
        Washington, which has run the screening program for former 
        production workers at Hanford?
   Would you commit to working with us to put this program in 
        place?

    Answer. I know that this is an important issue your office has been 
following closely over the past several months. I have reviewed the 
NIOSH report and concur with their recommendation that tank farm 
workers ``concerned about possible work-related health problems should 
be fully evaluated by a physician, preferably one familiar with 
occupational conditions . . . and that individuals with definite or 
possible occupational health problems should be protected from 
exposures that are presumed to cause or worsen disease.''
    I understand that AdvanceMed Hanford, the current health care 
provider at Hanford, with input from tank farm workers, has developed a 
comprehensive medical surveillance program for tank farm workers, 
especially those workers with potential exposures to the head space 
gases (waste intrusive workers). A second medical screening program is 
available for workers potentially exposed to mercury. There is also a 
separate program designed for workers in the tank farm area (such as 
maintenance and custodial workers) but who are not identified as 
hazardous waste workers.
    If confirmed as Assistant Secretary, I will work closely with the 
program management at DOE headquarters and the Office of River 
Protection to evaluate the effectiveness of these programs and 
determine if they are adequate to protect the tank farm workers. My 
office will work with you and the Members of Congress, Environmental 
Management, site management, and the affected workers to ensure that 
the occupational medical needs of the tank farm workers are met.
    Question 4. I want to return to DOE's proposal, issued earlier this 
year, to consolidate its existing medical screening programs into a 
single national vendor. The DOE proposal would consolidate sites that 
have not had screening programs (but certainly need them), with those--
such as Hanford--that have had 5 years of program activities.
    I am concerned that this one-size-fits-all screening program, as 
described on the DOE's web site, appears to eliminate some of the most 
desirable elements contained in the existing medical screening 
programs--substantial local presence, independent physicians, active 
involvement of workers in education and outreach, and a credible way to 
tailor medical examinations to the specific hazards at a given site. It 
appears that DOE's national vendor proposal was developed without an 
external review, and without the input of affected stakeholders.
    I have already asked that you take action to ensure that the 
successful Hanford program be continued this year. However, I also 
recognize the fact that DOE may want to extend screening programs to 
other sites that have not yet benefited from them.
    In charting a ``path forward'' for this program, would you agree to 
set up a consultative process to solicit the views of the affected 
workers, occupational medical professionals, the existing screening 
programs and NIOSH?
    Answer. Absolutely. As I mentioned earlier, one of my first 
directives as Acting Assistant Secretary was to postpone plans to award 
a contract to establish a national program until such an analysis can 
be conducted. If confirmed as Assistant Secretary, I will certainly 
consult with affected workers, occupational medical professionals, the 
existing screening programs and NIOSH in conducting that analysis.
    Question 5. Mr. Shaw, as I know you are aware/as I've previously 
mentioned, there has been growing concern about the safety of today's 
Hanford cleanup workers. I have already mentioned the report issued 
this July by NIOSH, which found that ``vapor constituents may be 
present at sufficiently high concentrations to pose a health risk to 
workers.'' Partially as a result of that NIOSH report, more concerns 
have been raised about potential hazards posed to tank farm workers, 
resulting from the presence of a dangerous form of mercury recently 
discovered at Savannah River. And meanwhile, the Chairman of the 
Defense Nuclear Facility Safety Board earlier this month weighed in, 
questioning the effectiveness of DOE's Integrated Safety Management 
System for Hanford. As I understand it, the office you would head has 
oversight of these Integrated Safety Management Systems.
    Mr. Shaw, these are a few of the reasons I've felt like the DOE 
Environment, Health and Safety Office has been missing in action over 
the past few years. If confirmed, what are you going to do differently 
in your approach to safety of Hanford cleanup?
    Answer. I understand your frustrations. As you know, it is the 
mission of the Office of Environment, Safety and Health to provide the 
corporate leadership, performance goals, assistance, policies, programs 
and feedback to enable DOE to excel in mission performance while 
achieving excellence in safety and environmental stewardship. As you 
stated, ISM is an integral part of achieving our goals. A major concept 
of ISM is the integration of safety awareness and good practices into 
all aspects of work so that work is conducted in such a manner that 
protects workers. Safety must be embedded in every element of each 
job--not a stand-alone program or a program that is imposed after the 
fact.
    Under the concept of ISM, safety is the responsibility of line 
management and managers must be accountable. Oversight of ISM is 
provided by the Office of Security and Safety Performance Assurance, an 
independent office that reports directly to the Secretary. If confirmed 
as Assistant Secretary, it will be my responsibility to provide 
corporate leadership for ISM. I will take an aggressive approach to 
assuring full and effective implementation at all DOE sites, including 
Hanford, by being a leader, a hands-on manager, and a motivator. It 
will be my intent to work with the Office of Environmental Management 
and River Protection to augment their technical expertise in the 
development of a comprehensive worker safety and health program 
appropriate to the hazards present at the Hanford Tank Farms. We will 
also bring in any additional technical expertise needed to assure that 
Line Management and the contractor embrace any such program and 
implement it in an efficient and cost effective manner.
    As Acting Assistant Secretary, my philosophy is to work very 
closely with line management at headquarters and the field on the 
implementation of ISM and Quality Assurance programs at DOE sites. EH 
understands the issues facing the entire complex and brings the unique 
ability to bridge program lines and share best practices to correct 
deficiencies. I have worked with line mangers and the Deputy Secretary 
to issue a DOE Policy on environment, safety and health goals that 
establishes a goal of zero injuries and accidents and will require 
goals and metrics for improving safety performance. ISM implementation 
is essential to accomplishing these goals and I am responsible for 
reporting on our progress to the Secretary and Deputy Secretary. Should 
I be confirmed I look forward to reporting our progress to Congress as 
well and being accountable for the overall safety and health program 
for DOE.
    Question 6a. In that same report from this July, NIOSH references a 
previous study it completed in 2000. NIOSH noted in its report this 
summer that DOE has not yet implemented its recommendations from four 
years ago. In it, NIOSH found that, even today:

   Complete rosters of current and former DOE cleanup workers 
        do not exist;
   Accurate and complete chemical exposure, work history and 
        medical records data are not available;
   Individual workers cannot consistently be linked to their 
        exposure and medical data, as DOE has failed to standardize 
        data collection; and that
   At the present time, the necessary information is not 
        available to conduct exposure assessments and hazard studies of 
        cleanup workers.

    Over the past few months, we have debated how to compensate former 
energy employees we inadvertently made sick during the Cold War and 
World War II--and how difficult that is, because of the poor records we 
kept at the time. I would like to think DOE has learned some lessons 
since then about worker health and safety, and how to track 
occupational hazards. Unfortunately, that doesn't seem to be the case.
    Have you reviewed the 2000 NIOSH study, which recommends the 
creation of ``rule-based, enforceable, complex-wide monitoring and data 
collection standards'' for workers at DOE cleanup sites?
    Answer. I have reviewed the 2000 NIOSH study recommending ``rule-
based, enforceable, complex-wide monitoring and data collection 
standards.'' If confirmed as Assistant Secretary, I plan a review of 
activities related to worker safety and health at the Hanford Tank 
Farms. Working with the Congress and other stakeholders, we will create 
a meaningful path forward to address this issue.
    Question 6b. If confirmed, would you commit to developing 
standards, consistent with NIOSH's recommendations?
    Answer. Yes, I believe it is important that appropriate worker 
safety and health standards are developed and enforced. In the course 
of developing our Worker Safety and Health rule (10 CFR 851) we will 
work with OSHA, NIOSH and stakeholders to be sure that the appropriate 
standards are in place to protect workers from these types of chemical 
exposures.
                    Questions From Senator Landrieu
    Question 1. I understand that as part of the reprogramming request 
to Congress, there was a plan proposed to get the program moving 
aggressively. I believe that included a ramping-up of claims processed 
by the contractor and sent to the physician panel at a rate of 200-300 
per week, or clearing the backlog of claims by the end of next year. Is 
the contractor that processes claims currently meeting that 200-300 per 
week promise and on track to meeting that goal?
    Answer. Upon receipt of appropriations transfer funds in June 2004 
in the amount of $23.3 million, DOE authorized the Navy to authorize 
the claims processing contractor to ramp up its operations to process. 
Currently, the contractor is processing more than cases per week. If 
there is continuity of funding into FY2005, we should be able to meet 
out goal.
    Question 2. One of the problems raised over the past year is the 
requirement that there be a ``willing payer'' in each state. In other 
words, someone to cut the check. Can you tell me if the DOE contractor 
that processes claims has anything to do with that problem?
    Answer. The responsibility for paying claims or for identifying 
``willing payers'' for claims does not involve the DOE claims 
processing contractor.
    Question 3. Another issue that has been raised is the piling up of 
processed claims now needing a final decision by a physician panel. Can 
you tell me if the DOE contractor that processes claims has anything to 
do with that problem?
    Answer. Physician Panel activities are not the responsibility of 
the DOE claims processing contractor.
    Question 4. Let me close by then asking you what I asked Mr. Card 
in March. I would be interest in your perspective. Do you believe the 
contractor that processes EEOICPA claims for DOE has performed its 
duties as tasked and directed by the Department?
    Answer. Yes.
                    Questions From Senator Murkowski
    Question 1. Has DOE found a willing payer for Alaskan claimants?

   If yes, please identify the willing payer(s) DOE has found. 
        What percentage of Alaskan claims will each willing payer be 
        responsible for?
   If no, has DOE completed its search for willing payers for 
        Alaskan claimants?
   If DOE has not completed its search for a willing payer for 
        Alaskan claimants, please state when DOE believes it will 
        complete its search.
   Please list all entities (including all levels of 
        subcontractors) that DOE has determined are not available as 
        willing payers for Alaskan claimants.

    Answer. DOE has identified contractual relationships with the 
following contractors in the respective time frames that will allow DOE 
to issue a ``do not contest'' order. DOE can only issue such an order 
if the particular worker was employed by the contractor at the time 
frame specified for the contractor in the chart, and the worker's 
illness was caused by exposures to toxic substances at DOE facilities 
during that timeframe. To date, no such cases have arisen. If such 
cases do arise, DOE will issue appropriate ``do not contest orders.''

 
                               Contractors for whom
            Dates               ``do not contest''      Issue ``Do Not
                               order can be issued:  Contest'' Order to:
------------------------------------------------------------------------
1965-72, 1995................  REECo...............  Bechtel Nevada (BN)
1965-72, 1995................  EG&G Measurements,    Bechtel Nevada (BN)
                                Inc..
1995.........................  Raytheon Services     Bechtel Nevada (BN)
                                Nevada.
1965-72......................  Holmes & Narver.....  Bechtel Nevada (BN)
1965-72......................  Fenix & Scisson of    Bechtel Nevada (BN)
                                Nevada.
1965-72......................  Wackenhut Services,   Wackenhut Services,
                                Inc..                 Inc.
------------------------------------------------------------------------

    DOE has not found a legal way to order contractors other than those 
above to ``not contest'' workers' compensation claims. Although DOE's 
search for ``willing payers'' continues, DOE, at this time, does not 
expect additional ``willing payers'' to be identified for Alaska. The 
following are contractor employers identified on applications for which 
DOE has not identified a legal way to order the companies to ``not 
contest'' State workers compensation claims:

Contractors for whom ``do not contest'' order can not be issued:
        Beck CRK
        Universal Services
        Kiewit Centennial
        Grasle Electric
        S.S. Mullins
        Chris Berg
        Piquniq Management Corp.
        Taywood, Berg, Riedel
        Walsch Co
        Western Marine
        Parco
        AP&H
        J B International Construction
        Alaska Plumbing and Heating
        Alaska State Trooper
        TVA Muscle Shoals
        USI
        Evergreen Helicopters
        City Electric
        Scofield Electric
        ERA Helicopters

    Question 2. A number of Alaskans have had claims pending with the 
DOE for an unacceptably long time. Please explain what DOE is doing to 
expedite the processing of claims for Alaskans.
    Answer. DOE has increased the pace of its EEIOCPA Subtitle D case 
processing operations. As of September 27, 2004, DOE has received 101 
cases that involve employment at an Alaska facility. Of these,

   29 have been completed.
   an additional 28 have been prepared for physician panel 
        review, and are either under panel review or pending assignment 
        to a physician panel.
   38 are under development.
   7 are awaiting development.

    Question 3. Several Alaskans with positive Physician Panel 
determinations have not received any meaningful assistance from DOE in 
pursing their positive determinations with the Alaska Workers 
Compensation Board. Please provide a narrative explanation of what DOE 
believes are its responsibilities to assist claimants who have received 
positive Physician Panel determinations.
    Answer. EEOICPA authorizes DOE to assist workers in seeking State 
workers' compensation for illnesses caused by exposure to toxic 
substances at DOE facilities. That assistance includes helping 
applicants retrieve records from DOE sites and providing those records 
to a panel of physicians appointed by NIOSH. The panels provide 
determinations as to causation and applicants who receive a positive 
determination also may be entitled to have a ``do not contest'' order 
issued to their DOE contractor employers in the State workers' 
compensation proceeding. DOE also assists applicants receiving positive 
physician panel rulings with the State workers' compensation 
application process. DOE cannot, however, provide legal advice or 
represent applicants in State proceedings. In addition, the Alaska 
resource center provides assistance to Subtitle D applicants who have 
received a positive physician panel determination by providing 
information on the Alaska workers' compensation system and processes; 
the workers' compensation forms; and assistance with gathering required 
medical information.
                     Questions From Senator Bunning
    Question 1. According to your DOE web site, 'cases at panel' is the 
number of cases that are currently being reviewed by a Physicians 
Panel. 2,504 cases are currently 'at panel'. On the same site, DOE says 
there are 190 physicians reviewing cases. That means that there are 
more than 13 cases with each and every doctor. At DOE's claimed rate of 
review--20 working days, or one month per case per doctor--there is 
more than a year's backlog currently at panels. It has taken 4 years to 
get the first 1,500 cases through panels, now another 2,500 are 
languishing at panels. How long will these reviews really take?
    Answer. DOE is currently processing approximately 150 cases per 
week through the physician panels. If that rate were to continue, about 
2500 cases would complete physician panel review in approximately a 17 
week period.
    Question 2. According to DOE's web site, as of July, 107 claims had 
been filed in state workers' compensation. What is DOE doing for the 
other 424 claimants with positive panel findings? Has DOE contacted 
these claimants or 'assisted them in filing with the state'? What is 
DOE doing for claimants without 'willing payers'--in states like 
Kentucky?
    Answer. DOE is contacting applicants with positive determinations 
who have not yet filed for State workers' compensation. Resource Center 
staff assists applicants in filing compensation applications, 
particularly in the States where applicants must initiate the process. 
DOE contractors are expediting their filings, reviews, and payments of 
these cases.
    In Kentucky, specifically at the Paducah Site, DOE has identified 
Bechtel Jacobs as the ``willing payer'' for Paducah Plant employees of 
Union Carbide, Martin Marietta Energy Systems or Lockheed Martin Energy 
Systems who had exposures to toxic substances prior to July 1998. Based 
on the applications to date, we believe many of these workers will have 
a willing payer for occupational exposures for which DOE will issue 
``do not contest'' orders. DOE continues to work with Kentucky State 
officials to identify means for allowing the Kentucky State fund to 
waive its defenses. DOE also continues to investigate mechanisms to pay 
claims without existing ``willing payers.''
    Question 3. The DOE's proposed regulations for worker health and 
safety at DOE sites did not follow Congressional intent of DOE having 
similar safety rules as OSHA has. After many Congressional offices, 
including mine, told the DOE this, it agreed to rewrite the 
regulations. Do you know when the DOE plans to issue new proposed 
regulations for worker health and safety at DOE?
    Answer. Recognizing the concerns expressed by you and other Members 
of Congress, as well as the Defense Nuclear Facilities Safety Board and 
other stakeholders, the Secretary directed that the draft rule be 
pulled back and rewritten to better reflect these concerns. I believe 
the revised proposed rule will be issued shortly for public comment. I 
look forward to hearing your views on this revised version once it is 
issued.

                                    

      
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