[House Hearing, 109 Congress]
[From the U.S. Government Printing Office]


 
  ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 
   FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE 
                     CREATED THIS PROGRAM? (PART I)

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

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 1, 2006

                               __________

                           Serial No. 109-110

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California

                     George Fishman, Chief Counsel

                          Art Arthur, Counsel

                         Allison Beach, Counsel

                  Cindy Blackston, Professional Staff

                   Nolan Rappaport, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 1, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable John N. Hostettler, a Representative in Congress 
  from the State of Indiana, and Chairman, Subcommittee on 
  Immigration, Border Security, and Claims.......................     1
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Ranking Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     5
The Honorable Howard Berman, a Representative in Congress from 
  the State of California, and Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     8
The Honorable Elton Gallegly, a Representative in Congress from 
  the State of California, and Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     8

                               WITNESSES

Mr. Shelby Hallmark, Director, Office of Workers Compensation 
  Programs, U.S. Department of Labor
  Oral Testimony.................................................    10
  Prepared Statement.............................................    11
John Howard, M.D., M.P.H., Director, National Institute for 
  Occupational Safety and Health, Centers for Disease Control and 
  Prevention, U.S. Department of Health and Human Services
  Oral Testimony.................................................    19
  Prepared Statement.............................................    20
James Melius, M.D., DRPH, Administrator, New York State Laborers 
  Health and Safety Trust Fund, Member of the Advisory Board on 
  Radiation and Worker Health
  Oral Testimony.................................................    25
  Prepared Statement.............................................    26
Mr. Richard D. Miller, Senior Policy Analyst, Government 
  Accountability Project
  Oral Testimony.................................................    29
  Prepared Statement.............................................    32

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Subcommittee on Immigration, Border Security, and 
  Claims.........................................................    67
Prepared Statement of John Mauro, Ph.D., CHP, Project Manager, S. 
  Cohen & Associates (SC&A, Inc.)................................    68
Responses of Shelby Hallmark, Director, Office of Workers 
  Compensation Programs, U.S. Department of Labor, to post-
  hearing questions from the Honorable John N. Hostettler........    73
Responses of John Howard, M.D., M.P.H., Director, National 
  Institute for Occupational Safety and Health, Centers for 
  Disease Control and Prevention, U.S. Department of Health and 
  Human Services, to post-hearing questions from the Honorable 
  John N. Hostettler.............................................    81
Responses of James Melius, M.D., DRPH, Administrator, New York 
  State Laborers Health and Safety Trust Fund, Member of the 
  Advisory Board on Radiation and Worker Health, to post-hearing 
  questions from the Honorable John N. Hostettler................    90
Responses of Richard D. Miller, Senior Policy Analyst, Government 
  Accountability Project, to post-hearing questions from the 
  Honorable John N. Hostettler...................................    94
Letter from Sanford Cohen, President, S. Cohen Associates, Inc...   104


  ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 
   FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE 
                     CREATED THIS PROGRAM? (PART I)

                              ----------                              


                        WEDNESDAY, MARCH 1, 2006

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 4:10 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable John N. 
Hostettler (Chairman of the Subcommittee) presiding.
    Mr. Hostettler. The Subcommittee will come to order.
    Today's hearing is the first in a series of oversight 
hearings the Subcommittee will be holding on the Energy 
Employees Occupational Illness Compensation Program Act. The 
focus of today's hearing is twofold. The immediate issue at 
hand is an OMB internal document brought to the Subcommittee's 
attention concerning the granting of special exposure cohort 
status to groups of sick cold war workers.
    The Department of Energy, or DOE, or its contractors often 
either did not properly monitor workers' radiation exposures or 
there are no existing records. So in these cases, this nuclear 
worker compensation program directs the Department of Health 
and Human Services, or HHS, after review and a recommendation 
by the Advisory Board on Radiation and Worker Health, the 
Board, to make such workers members of the Special Exposure 
Cohort, or SEC.
    Under the SEC, benefits are paid to workers with on-the-job 
radiation exposures of at least a year and development of 
cancer after at least 5 years. If designated an SEC member, a 
$150,000 lump sum payment plus medical benefits are provided to 
that member if diagnosed with one of 22 radio-sensitive 
cancers. The lack of legitimate records of exposure to 
radiation is, unfortunately, relatively common for these 
workers, especially in the earlier years of the DOE weapons 
complex. OMB's list of possible actions to be taken to minimize 
costs in this area of the program needs to be dissected 
carefully to determine its potential impact on the Government 
promise made to these veterans of the Cold War in creating this 
program.
    Additionally, strengths, weaknesses, problems and 
improvements in the program will be discussed today. Hopefully 
we will all be better educated about this program by the end of 
the hearing as well as know clearly what the priority issues 
are that need to be addressed in subsequent hearings.
    The findings in the law as enacted state in part that, 
``since the inception of the nuclear weapons program, a large 
number of nuclear weapons workers at sites at the Department of 
Energy and at sites of vendors who supplied the cold war effort 
were put at risk without their knowledge and consent for 
reasons that, documents reveal, were driven by fears of adverse 
publicity, liability, and employee demands for hazardous duty 
pay. To ensure fairness and equity, the civilian men and women 
who over the past 50 years have performed duties uniquely 
related to the nuclear weapons production and testing programs 
should have efficient, uniform, and adequate compensation for 
beryllium-related health conditions and radiation-related 
health conditions.'' That, in fact, was and still is 
congressional intent. This intent was not created out of 
speculation, but out of documented proof of the Government's 
attempt to hide the truth from workers.
    For example, the 1947 Atomic Energy or AEC Director of Oak 
Ridge Operations' memo to the AEC general manager stated, 
``Papers referring to levels of soil and water contamination 
surrounding Atomic Energy Commission installations, idol 
speculation on future genetic effects of radiation, and papers 
dealing with potential process hazards to employees are 
definitely prejudicial to the best interests of the Government. 
Every such release is reflected in an increase of insurance 
claims, increased difficulty in labor relations, and adverse 
public sentiment.''
    Later that year, Oak Ridge recommended that the AEC 
Insurance Branch review declassification decisions for 
liability concerns. Their recommendation stated, ``following 
consultation with the Atomic Energy Commission Insurance 
Branch, the following declassification criteria appears 
desirable: If specific locations or activities of the Atomic 
Energy Commission and/or its contractors are closely associated 
with statements and information which would invite or tend to 
encourage claims against the Atomic Energy Commission or its 
contractors, such portions of articles to be published should 
be reworded or deleted. The effective establishment of this 
policy necessitates review by the Insurance Branch as well as 
the Medical Division prior to declassification.''
    In 1948, the AEC Declassification Branch found that a study 
of Los Alamos workers could be declassified as, ``open 
research.'' The Insurance Branch called for very careful study 
before making the report public and wrote, ``We can see the 
possibility of a shattering effect on the morale of the 
employees if they become aware that there were substantial 
reasons to question the standards of safety under which they 
are working. In the hands of labor unions, the results of this 
study would add substance to demands for extra hazardous duty 
pay. Knowledge of the results of this study might increase the 
number of claims of occupational injury due to radiation and 
place a powerful weapon in the hands of a plaintiff's 
attorney.''
    This secrecy policy was documented again in 1960 by AEC 
biomedical officials where they recognized that, ``possibly 300 
people at Paducah should be checked out'' for neptunium 
contamination, but that there was hesitation to, ``proceed to 
intensive studies because of the union's use of this as an 
excuse for hazard pay.''
    The OMB document sent to the Labor Department sets out a 
plan to effect the current decision-making process and 
independent review on the basis of SEC status of approvals on 
budget concerns rather than on the scientific basis mandated by 
the law. The document commends DOL for informing OMB of a 
potentially large expansion of benefits due to designation of 
SECs and states that a White House-led interagency working 
group will be convened to come up with options to 
administratively contain growth in the cost of benefits paid 
out by the program. It then lists five options for discussion 
in that regard.
    The first option is to require the Administration clearance 
of SEC determinations. This option appears to place budget 
examiners with only a budget focus in the role of making the 
final decisions on approving SEC status for recommended groups 
of claimants without regard for actual health determinations on 
the adequacy or inadequacy of radiation records made for that 
purpose.
    The second option is to, ``address any imbalance in 
membership of the President's Advisory Board on radiation and 
worker health.'' This seems to imply that OMB believes the 
current presidentially-appointed Board has been unbalanced. 
Scientific integrity and processing claims has been maintained 
by this nuclear worker compensation program's requirement that 
the Board be balanced in medical, scientific, and worker 
perspectives and independent in their review process. As a 
result, the Board has been well-balanced; however, when a Board 
member died last year whose voting record favored the position 
of DOL and NIOSH officials responsible for the program, two 
Board members not so predisposed in their voting were removed. 
The reason for their removal was stated to be that their term 
limits had expired; however, other members with the identical 
tenure were not removed, rendering this explanation hollow.
    The Judiciary Committee encouraged the White House to 
maintain balance in the Board's composition and preserve the 
institutional knowledge. The Committee urged that these Board 
members be retained to sustain the Board's independence and 
decision-making quality. The concerns were dismissed and three 
new Board members were recommended by officials running the 
program that is subject to Board review, and were placed on the 
Board. It appears that the balanced Board OMB contemplates may 
be one that will determine the scientific evidence available is 
sufficient to justify denial of the majority of SECs in order 
to contain growth of benefit payment costs. This does not 
coincide with balancing the Board or ensuring independence as 
contemplated in the law passed by Congress.
    Option three calls for an expedited review of SEC 
recommendations by outside experts. The law states, ``the 
President shall establish an independent review process using 
the Advisory Board on Radiation and Worker Health,'' thus 
creating and tasking the Board with providing independent 
review of science used for claims processing. If OMB's concern 
is with costs, adding another layer of costly review makes no 
sense. The indication is OMB doesn't trust the Board which the 
President appointed nor its team of expert health physicists to 
provide cost-containing results. The Committee has yet to find 
evidence during the existence of the current review procedure 
that the Board's advice has been unsound or led to unwarranted 
approvals.
    Option four questions the credibility of the Board's audit 
contractor. This contractor's conflict of interest restrictions 
are more stringent than the restrictions on NIOSH, its 
contractors, or the Board members. Contrary to OMB's view, the 
Committee's review of conflict of interest concerns has found 
that significant conflicts of interest center on individuals 
employed by Oak Ridge Associated Universities, or ORAU, the 
contractor hired by NIOSH to perform dose reconstructions and 
not the Board's contractor hired to review NIOSH and ORAU's 
work.
    The final option is to require that NIOSH demonstrate that 
its site profiles and other dose reconstruction guidances are 
balanced. Again, it is unclear what they mean by balanced. Both 
site profiles and dose reconstructions are to be based on data 
and facts. Data and facts are not a perspective. They are 
either valid, comprehensive, and able to withstand public 
scrutiny, or they are not. One question that must be answered 
is the meaning of the term ``balance'' in this context. 
Hopefully our witnesses will enlighten the Subcommittee in this 
regard.
    OMB's plan to address imbalances in the Board and conflicts 
of interest with the audit contractor seems to be an attempt to 
deny claims based on false realities and accusations. These 
options seem to attempt to replace a statutorily-mandated 
independent review process with a behind-closed-door process to 
cut benefit payments to the claimants who had the least 
knowledge of how hazardous their work conditions really were 
because of the lack of exposure information in their cases. If 
that is the case, their goal to cut costs would override the 
honest validation of a claim due to credible scientific 
evidence or lack thereof, the core purpose of the program.
    Unlike the majority of claims programs administered by the 
Labor Department, compensation provided by this nuclear worker 
compensation program addresses purposeful harm perpetrated on 
innocent employees without their knowledge. That dynamic of 
this program adds a much higher presumption that claims should 
be paid without hesitation or resistance than does a broken 
bone from a fall at the office. This is not the Federal 
Employees Compensation Act or the Longshore Compensation 
Program.
    It is troubling that the document thanks the DOL office 
that administers its nuclear worker compensation program for 
notifying them of the potential increased costs from SECs. That 
coupled with statements by DOL officials on the public record 
and in documents provided to the Committee expressing annoyance 
with the depth of review conducted on NIOSH scientific findings 
and the view that the Advisory Board needs to be brought under 
control by NIOSH on their decisions don't reflect well on the 
underlying attitude of some key officials involved with the 
running of this program.
    DOL was tasked with running a non-adversarial claims 
process here, but at a minimum this document raises questions 
about DOL's objectivity and neutrality as the claims 
administrator. It does not seem to lie in line, once again, 
with the spirit of the law. This plan to override science to 
meet OMB's budget priorities is inappropriate and speaks to an 
institutional mind set at odds with congressional intent. It 
does a disservice to these Cold War veterans. Unless we root 
out this problem, it will undermine Government credibility with 
claimants and the public. Unfortunately this behavior by 
Government officials could, due to reactive demands for 
Congress to legislatively mandate more SECs, potentially by 
this Chairman, be more costly to the Government coffers than 
allowing the independent process originally established by 
Congress to proceed unhindered.
    I hope our witnesses today can speak to each of these 
proposed actions and calm the furor this document has created 
within the claimant community. The purpose of this nuclear 
worker compensation program is as stated in the statute, to 
provide for timely, uniform, and adequate compensation of 
covered employees and, where applicable, survivors of such 
employees. That should be the Government's guiding principle, 
not undermining legitimate claims processing to save what in 
reality is a minuscule fraction of the entire Federal budget.
    At this time, I would like to recognize the gentlewoman 
from Texas, the Ranking Member of the Subcommittee, Ms. Jackson 
Lee for an opening statement.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman, and you 
are to be commended for it is interesting as we have worked on 
the Subcommittee for a number of years, we have found that the 
vast amount of our work has focused on immigration, border 
security, and certainly as it should. Many are not aware that 
this is a Committee of first resort for those who are appealing 
and/or seeking claims against the United States of America. In 
fact, it is a Committee that I think has a very high 
responsibility, and that is to ensure to the American people 
that in spite of the bigness of the Government, the power of 
the Federal Government, that each individual person is special 
and important, that they feel if they have been injured by this 
Government, this Government has the obligation and duty and 
responsibility to be sensitive and responsible to addressing 
that grievance.
    So I would like to repeat the topic of this hearing, the 
``Energy Employees Occupational Illness Compensation Program 
Act: Are We Fulfilling the Promise We Made to These Veterans of 
the Cold War When We Created the Program?''
    I am very grateful that both the Chairman and myself are at 
least in sync on the idea that we should know more. So I 
congratulate you for this hearing.
    Today's hearing will focus on Subtitle B of the Energy 
Employees Occupational Illness Compensation Act. Subtitle B 
covers three types of occupational illness associated with 
making nuclear weapons cancer where it can be shown that the 
cancer is at least as likely as not related to ionizing 
radiation exposure while employed at a nuclear weapons 
facility, the chronic beryllium disease or chronic silicosis 
disease as it is known. Energy Department Federal contractor 
and vendor employees who have contracted one of these illnesses 
or their survivors may be eligible for a lump sum of $150,000 
and prospective medical benefits. The act also provides for a 
$50,000 supplemental payment to uranium miners, millers, or 
their survivors who are eligible to receive $100,000 under the 
Radiation Exposure Compensation Act and seems to be fair 
enough.
    The radiation-related cancer claims at the Department of 
Health and Human Services through the National Institute for 
Occupational Safety and Health is required to estimate a 
worker's radiation dose if dose records are available. However, 
during the earlier years of the nuclear weapons programs, 
especially between the 1940's and 1970's, some workers were not 
monitored and the monitoring that was done sometimes were 
inadequate, I might add may have been lost in these years 
between this time and the time of their claim. Also, some 
records from this period were further destroyed.
    The act provides a remedy for cases where it is not 
feasible to estimate radiation doses with sufficient accuracy 
and it is clear from job types that the worker's health may 
have been endangered by radiation exposures. Friends, it seems 
unlikely to me that anyone would voluntarily suggest that they 
have been exposed to radiation. Who would want to be subjected 
to that kind of danger and unnecessarily make a claim before 
the Federal Government? I can assure you from those who have 
had this experience and who have been harmed it is not a pretty 
picture. It is painful. It is a deadly disease, and it alters 
your life drastically.
    Under these provisions, workers or their unions may 
petition to be administratively designated as a special 
exposure cohort which establishes an unrebuttable presumption 
that certain cancers are work related. Members of a special 
exposure cohort are eligible for the 150,000 lump sum benefit 
if they have one of 22 radio-sensitive cancers and in general 
if they work at a covered facility for at least 1 year in a job 
that exposed them to radiation.
    The HHS Secretary subject to review and recommendation from 
the Advisory Board on Radiation Worker Health makes a special 
exposure cohort designation. To date, the Secretary has denied 
two special exposure cohort petitions and approved six 
involving approximately 1,100 cases. The Administration 
recently declared its intention to reduce the number of special 
exposure cohorts in a memorandum referred to as an Office of 
Management and Budget pass-back. My friends, it saddens me that 
I can characterize that as saving a buck. The pass-back 
provides for establishing a White House-led interagency work 
group to develop options for administrative procedures that 
will contain the growth and the cost of benefits provided by 
the program. My other editorial comment is that is the highest 
level of bureaucracy-ese, meaning language, that confuses and 
of course seeks to eliminate or deny the program.
    Options to be considered include requiring an 
administration clearance for all special exposure cohort 
designations, requiring an expedited review for outside 
experts, addressing any imbalance in the membership of the 
President's Advisory Board on Radiation and Worker Health, and 
imposing constraints on the Advisory Board's audit contractor.
    Let me join the Chairman and ask for the irregularities of 
this particular Advisory Board to be fixed immediately and that 
the fixing of the Board or the changing of the Board members 
not be for the purpose, as it has been perceived, of 
eliminating the benefits of so many. Might I suggest, as I 
listed the various new requirements, that all they represent is 
one bar after another for the innocent victims who offered and 
sacrificed their lives on behalf of their country. The Cold War 
was real. Ask anyone who lived in that period. Ask the children 
of the fifties who responded to the sirens that suggested they 
should go under their desks. Many today don't know of the bomb 
shelters that were built in houses throughout the forties and 
fifties.
    People did it because their Government told them to do it. 
Now we find that the very workers who were willing to put 
themselves on the front lines to say I am a warrior of the Cold 
War, send me, allow me to serve my country, now are getting the 
back hand of America by its Government and being told that 
you'll have to jump over the hoops in order be compensated.
    Currently a special exposure cohort petition goes through 
an initial evaluation by NIOSH and its recommendation is then 
peer reviewed by the Advisory Board before it goes to the 
Secretary for a decision. These reviews are conducted in the 
open and on the record with an opportunity for input from 
experts and the petitioner. We need to be concerned about this 
system if it is broken or HHS is approving special exposure 
cohort petitions that should be denied. We will hear testimony 
on that issue today if that is the case, and, of course, 
certainly if there are fractures in the system, if it doesn't 
work or can be improved, we welcome the opportunity to do so, 
but personally I do not welcome the opportunity for camouflage 
and smoke and mirrors to deny innocent victims their right to 
their claims. Congress intended for these claims to be able to 
be compensated and they set out a very reasonable approach for 
those who are the victims of lost records or destroyed records 
or failed memory, but have the physical ailments and 
opportunity for affirmation of their ailments to be able to be 
compensated.
    Five and a half years have passed since the Energy 
Employees Occupational Illness Compensation Act was enacted 
while I was here in the United States Congress, and the sick 
workers who were supposed to be served by this program, they 
are now dying. The Administration should be doing more to help 
these workers, not trying to make it more difficult for them to 
establish eligibility for compensation. It is too difficult 
already. This is not a time with the returning Iraqi veterans 
themselves suffering from heinous injuries, this is not a time 
to deny those who are willing to serve our country. This is not 
a time to deny their families, those families of those who are 
willing to serve their country. This is not a time to save a 
buck on the patriotism of Americans.
    These workers made a commitment to our country when the 
country needed them. Now it is our turn to help them in their 
time of need. I hope this hearing will generate not only the 
interest, but the information and solutions so that we can get 
back on track so that Americans will know when you offer 
yourself for service and say send me, Americans will stand up 
and applaud and be welcoming you home with the necessary 
response and compensation and nurturing for the injuries you 
suffered in the line of duty.
    I yield back, Mr. Chairman.
    Mr. Hostettler. I thank the gentlelady.
    The Chair now recognizes the gentleman from California for 
purposes of an opening statement.
    Mr. Berman. Thank you very much, Mr. Chairman. I hadn't 
intended to give an opening statement, but unfortunately the 
timing of my own schedule conflicts and I'm not able to stay. I 
will have staff remaining to hear the witnesses; but I just 
want to say I was very pleased and I would say stunned by the 
openings that you and the Ranking Member gave and particularly, 
Mr. Chairman, sort of your reference to the historical 
development of this whole issue, the efforts to hide and 
conceal and the notion that right now you have this process 
that's called an effort to make it fair or balanced that is in 
reality focused on those workers where these historical events 
meant they were the least likely to know what they were being 
exposed to because there was no measurement.
    So I think you made just a number--point after point, you 
were so on the case. The notion that this is a balance, it's a 
balance between justice and trying to save some bucks, a 
balance between exposure and trying to save some bucks, a 
balance between serious illnesses and life-threatening and in 
some cases life-taking illnesses and trying to save some bucks. 
This effort as revealed by the reports of this memo aren't 
about finding balance. It's about tying to bias the entire 
process in defiance of what congressional intent was and I 
think defiance of reasonable compensation.
    One hundred and fifty thousand wasn't an effort to try and 
measure the full extent of the pain and suffering of these 
people. It was a lump sum payment in lieu of that process to be 
done expeditiously for people for whom there was no 
measurements of exposure and they will have no other way to get 
compensated for their clearly employment-related illnesses, and 
I think both of you have called this exactly right. I support 
what you're doing, efforts to create new bureaucratic tiers for 
people to have to jump through in a context, by the way, where 
the process is already very slow. Large number of people who 
have filed claims haven't gotten them adjudicated yet, and as 
Ms. Jackson Lee pointed out, my guess is large numbers of 
people who are eligible aren't even aware that this program 
exists. That's where the efforts should be going, not finding 
ways to stack advisory committees and create new criteria to, 
``make it look better on a budget score sheet.''
    So I look forward to the reports of this hearing and the 
other hearings and both of your excellent efforts to try and 
hopefully keep this from being implemented.
    Thank you very much.
    Mr. Hostettler. I thank the gentleman.
    The Chair recognizes the other gentleman from California 
for purposes of an opening statement when ready.
    [The Chairman confers with counsel.]
    Mr. Hostettler. At that time, we will be ready to hear the 
gentleman's opening statement. At this time, I will introduce 
the witnesses and----
    [The Chairman further confers with counsel.]
    Mr. Hostettler. It seems at this point, he's ready for that 
opening statement, and the Chair recognizes the gentleman from 
California.
    Mr. Gallegly. I appreciate the Chairman's recognition and 
allowing me to make an opening statement. I apologize for being 
a little late. I've been on the Intelligence Committee in a 
briefing that kind of ran over.
    On January 31st of this year, I wrote a letter to Secretary 
Chao expressing concern that a bare few Santa Susana field 
laboratory workers who had filed claims for the Energy 
Employees Occupational Illness Compensation Program had been 
compensated and asking the status of the other requests. I've 
not received a response.
    So today I ask you, A, why is it that only 10 of 434 cases 
for workers who may be eligible for compensation under the 
Energy Employees Occupational Illness Compensation Program Act 
have received benefits? How many claims have been for workers, 
how many claims under EEOICPA by Santa Susana workers has the 
Department of Labor declined benefits on? C, many of Santa 
Susana workers sacrificed their health for the country. They 
are aging in population. When they can expect their final 
determination and payout on their applications for relief?
    On its web site, the Department of Labor indicates that 31 
claims have been referred to NIOSH and returned from NIOSH with 
dose reconstructions, yet when I look at the site profile at 
Santa Susana, the threshold studies, from what I understand, 
for the site have not been completed. The Department of Labor 
lists their status as under development. Can you explain how it 
is that 31 claims have been returned from NIOSH with dose 
reconstruction when the occupational environmental dose, the 
occupational internal dose, and the occupational external dose 
have not been completed?
    Why is it that the Department of Labor requests less 
funding for settlement of these claims in FY 2007 than it did 
in FY 2006 when so many in my district still have seen no 
relief or help for their medical bills whatever?
    I yield back the balance of my time.
    Mr. Hostettler. I thank the gentleman from California.
    At this time, I will introduce our panel--Mr. Shelby 
Hallmark is the Director for the Office of Workers Compensation 
Programs in the United States Department of Labor. Dr. John 
Howard is the Director of the National Institute for 
Occupational Safety and Health, or NIOSH. Dr. James Melius is 
the Administrator for the New York State Laborers Health and 
Safety Trust Fund and is a member of the Advisory Board on 
Radiation and Worker Health. Finally, Mr. Richard Miller is a 
Senior Policy Analyst with the Government Accountability 
Project.
    Gentlemen, thank you for your presence here. As standard 
operating procedure for the Judiciary Committee, I will ask you 
now to stand, raise your right hand, and take the oath.
    [Witnesses sworn.]
    Mr. Hostettler. You may be seated. Let the record show that 
the witnesses responded in the affirmative.
    You will notice a set of lights that will help to aid us in 
the process of expediting the testimony process. You will have 
5 minutes for your testimony. Without objection, your written 
statements will be made a part of the record. I'm going to ask 
you to stay as close to your 5 minutes as possible so that we 
can get to questions by the panel, and you will see a green 
light and then I believe it's an amber light and then a red 
light when the 5 minutes is up. Thank you.
    Mr. Hallmark.

   TESTIMONY OF SHELBY HALLMARK, DIRECTOR, OFFICE OF WORKERS 
        COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR

    Mr. Hallmark. Thank you, Mr. Chairman, for the chance to 
describe the Department of Labor's efforts regarding the 
program we call EEOICPA. I'm proud of what we and other 
agencies have done to build this program.
    First I'd like to say my staff are committed to delivering 
these benefits promptly and accurately. We know that many 
energy workers have been harmed and many are deeply 
disillusioned by their Government's actions and by the long 
wait they've had to have their cases fairly heard. Our goal has 
been to make the Federal compensation program a reality that 
people can count on and quickly.
    In 2001, we worked hard to bring the new Part B program on 
line. Secretary Elaine Chao presented the first check less than 
10 months after enactment. Day one, we had a backlog of 30,000 
cases and that backlog was under control within a year. To 
date, we've paid out $1.4 billion under Part B. Our management 
of Part B has been credible to the served community. We have 
only three cases so far that have been appealed to court. A GAO 
review had no findings with respect to DOL's stewardship, and 
in October 2004, Congress chose to entrust the new Part E 
program to us as well.
    Part E brought a new backlog of 25,000 cases that had been 
pending for years under the old Part D program with the 
Department of Energy. This time, the first check went out 
within less than 2 months and we paid out $57 million under 
Part E before our regulations were even issued--on time--in May 
of 2005. To date, we've paid almost $300 million under Part E, 
which is a good start but only a start, and to demonstrate even 
broader progress, we have committed to making initial decisions 
on at least three-quarters of all the old Part D cases by this 
September. We need to make this a real program.
    We need to move faster on some aspects on computing 
benefits for living employees under this program. The pay-outs 
so far have been largely to survivors since that can be done 
quickly, but all aspects of the program are now fully operable 
and we're monitoring progress daily on wage loss and impairment 
payments for living workers. We will also use the feedback from 
our recent ombudsman's report to sharpen our processes.
    The ombudsman's report also reported concerns regarding the 
dose reconstruction process. While we all agree this process 
has taken longer than we would like, it has been a massive 
undertaking and NIOSH has taken the job very seriously and is 
working very hard to expedite it.
    We hear there are concerns with respect to the process of 
adding special exposure cohort classes, as you have spoken of, 
which conveys presumptive approval bypassing dose 
reconstruction for 22 listed cancers.
    As the lead agency for EEOICPA, we have long supported 
close coordination between all the departments which share its 
administration. We've tried to help NIOSH and the Advisory 
Board in their deliberations on SEC expansions especially in 
terms of the impact that new class designations have on the 
claims process. For example, designation of a class may 
extinguish the chance for benefits for some workers with non-
listed cancers.
    While HHS does the science of reconstructing radiation dose 
and deciding on new SEC classes, DOL must defend those findings 
in Federal Court. It's a key value for us as the adjudicator 
and the entity entrusted with explaining to the public the 
overall workings of EEOICPA that critical action such as 
extension of the SEC are based on fair understandable and 
consistent principles. Under no circumstances does DOL seek to 
cut benefits through our coordination efforts in this matter.
    Determining the size and shape of an SEC class depends not 
only on scientific questions about radiation, but also on more 
mundane issues like placing workers in various locations within 
a facility. DOL has important information and insights with 
respect to those kinds of nonscientific issues. Also, clear 
definition of the boundaries of an SEC class is very important 
in individual case adjudication. DOL has sought input in the 
past designation process to ensure that we'll be able to fairly 
adjudicate those boundaries once a class is established. For 
example, the SEC class for the Oak Ridge Y-12 plant includes 
workers engaged in uranium enrichment operations or other 
radiological activities. Since the latter term has been hard to 
pin down, claims for various categories of work such as 
custodians, guards, construction workers, and so on could be 
judged either to be in or out of the class, which could cause 
adjudicatory problems and concerns for the claimants.
    DOL has a fiduciary responsibility for EEOICPA to make sure 
that payments are in accord with the law as established by 
Congress, but our main focus is that the program is 
administered fairly, accurately, and consistently and that it 
will be understandable to claimants throughout the nuclear 
weapons complex now and for years to come. We've worked hard to 
achieve that result and we'll continue to so.
    I'll be glad to answer questions when that time comes.
    [The prepared statement of Mr. Hallmark follows:]

                 Prepared Statement of Shelby Hallmark

    Mr. Chairman, and Members of the Committee, my name is Shelby 
Hallmark. I am the Director of the Office of Workers' Compensation 
Programs (OWCP), a component of the Employment Standards Administration 
(ESA), Department of Labor (DOL).
    I am pleased to appear before the Subcommittee today to discuss the 
Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA). While we are proud of the progress DOL has made in 
implementing both Parts B and E of the Act, the EEOICPA has been and 
continues to be an interdepartmental activity, involving the closely 
coordinated efforts of the Departments of Energy (DOE), Health and 
Human Services (HHS), Department of Justice (DOJ), as well as Labor.

                            PROGRAM HISTORY

    The EEOICPA was initially enacted on October 30, 2000. It 
established a federal payment program (Part B) under which DOE 
contractor employees and certain other employees and their eligible 
survivors are entitled to receive monetary compensation and medical 
benefits from the federal government for radiation-induced cancer, 
beryllium disease or silicosis. Executive Order 13179 of December 7, 
2000, assigned primary responsibility for Part B's administration to 
DOL to ensure that the program was up and running by July 31, 2001. We 
succeeded in issuing interim final regulations in May of that year and 
established a fully functioning program on schedule. Secretary of Labor 
Elaine Chao presented the first EEOICPA check on August 9, 2001.
    Since then, DOL has received over 71,800 Part B claims covering 
51,200 cases. (Each case relates to a single employee; more than one 
claim can be associated with a single case when multiple survivors are 
involved.) Our district office staff have made recommended decisions or 
referred a case to NIOSH for dose reconstruction in over 95 percent of 
the cases received. There have been 47,877 Final Decisions with 19,280 
approvals and 28,597 denials. DOL has issued in excess of $1.3 billion 
in Part B compensation payments to over 17,600 claimants. Additionally, 
over $88 million in medical benefits has been paid. The vast majority 
of denied claims are for conditions claimed that are non-covered 
conditions under Part B, largely due to confusion between Part B, which 
covers only three types of conditions, and the other segment of the 
statute, which covers all diseases caused by toxic exposures.
    EEOICPA originally included a second assistance program, under 
Subpart D of the Act, that established a process under which DOE 
contractor employees and their eligible survivors could seek assistance 
from DOE in obtaining state workers' compensation benefits. Under this 
program, if a contractor employee's claim satisfied certain preliminary 
criteria, DOE was required to submit the employee's claim to a 
Physicians Panel, to determine whether the employee had contracted a 
covered illness as a result of exposure to a toxic substance at a DOE 
facility. If the Panel returned a positive finding that was accepted by 
the agency, DOE was authorized, to the extent permitted by law, to 
direct the DOE contractor not to contest the claim for state workers' 
compensation benefits.
    In the Ronald W. Reagan National Defense Authorization Act for 
Fiscal Year 2005, Pub. L. 108-375 (October 28, 2004), Congress 
abolished Part D of EEOICPA. In its place, a new Part E was created, 
and administration of the new program was assigned to DOL. Part E 
establishes a new system of federal payments for DOE contractor 
employees and eligible survivors of such employees. Part E benefits 
were also extended to uranium miners, millers and ore transporters 
covered by section 5 of the Radiation Exposure Compensation Act. 
Congress also amended certain other provisions contained in EEOICPA 
that applied to Part B and specified that DOL prescribe interim final 
regulations implementing the amendments to EEOICPA within 210 days of 
enactment.
    When the amendment was passed in October 2004, there were more than 
25,000 cases pending with the old Part D program, many for more than 
four years, thus creating an instant backlog for the new program. 
Accordingly, DOL identified certain types of claims that met specific, 
straightforward criteria contained in the amendment itself that could 
be adjudicated without detailed regulations. Within two months of 
enactment, DOL began providing compensation under the newly established 
Part E of the EEOICPA, using preliminary procedural guidance. Under the 
preliminary procedures, DOL issued over $55 million to 447 recipients 
prior to the issuance of regulations.
    On May 26, 2005, DOL successfully met the congressionally mandated 
deadline to prescribe regulations and begin full implementation of the 
new Part E. The release of interim final rules (IFR), published in the 
Federal Register on June 8, 2005, provided guidance regarding DOL's 
administration of the Act and how the claims adjudication process will 
function. With the rule in effect, DOL can render decisions on all 
aspects of program. To further facilitate this process, DOL issued 
additional comprehensive procedural guidance in May 2005 and conducted 
training for all District Office field staff regarding the proper 
implementation of the new amendment. These procedures will be updated 
based upon the issuance of the Final Rule, and additional training will 
be conducted as needed.
    DOL can and will make changes to the new regulations that are 
appropriate given public comment and its actual experience in 
implementing the Act when it issues final regulations. Because of DOL's 
experience in administering similar programs, and because of the close 
relationship of Part E of EEOICPA to the existing Part B, DOL is 
confident that this process will again work well.
    As noted, many claimants whose cases were transferred to DOL from 
DOE had been waiting for a decision for four years. To demonstrate our 
sense of urgency in addressing these claims, the Labor Department 
established a primary goal to issue 1,200 Part E payments by the end of 
FY 2005, less than a year following enactment of the program. That goal 
was exceeded. By September 30, 2005, 1,535 payments totaling over $194 
million in compensation benefits had been issued. The bulk of these 
compensation payments were made to surviving family members because the 
process for assessing impairment and wage loss to living workers was 
complex and took longer to establish under statutory and regulatory 
guidelines. Payments are now also being made to living employees, and 
DOL is committed to the swift, sure, and accurate adjudication of these 
cases as quickly as possible.
    Between the effective date of the enactment of the EEOICPA 
amendments on October 28, 2004, and February 21, 2006, DOL received the 
25,000 plus occupational illness claims from the previous DOE program, 
as well as over 12,800 new Part E claims. We have made more than 7,200 
Part E recommended decisions (the initial determination made in one of 
our four district offices), and more than 3,400 of those have gone 
through to final decision (the administrative judgment rendered by our 
Final Adjudication Branch). Compensation in excess of $292 million has 
been issued to 2,319 recipients under the new Part E program. An 
additional 1,359 cases are in the pipeline for payment.
    The DOL also initiated a series of Town Hall meetings to explain to 
affected workers or their survivors the benefits available, as well as 
explaining the IFR and other issues related to the implementation of 
Part E to affected workers or their survivors. Eighty-two meetings were 
held in cities that had the most claimants and potential claimants, 
such as Los Alamos, New Mexico; Oak Ridge, Tennessee; and Hanford, 
Washington.
    For greater efficiency and speed, OWCP is implementing the October 
28, 2004, EEOICPA amendments, to the extent possible, by adjudicating 
all claims for benefits under Parts B and E of the EEOICPA as one 
EEOICPA claim. Where possible, decisions will be issued addressing both 
Part B and Part E simultaneously. However, partial decisions will be 
issued in cases where benefits under some provisions can be awarded but 
claims under other provisions require further development and 
documentation.

                       ADMINISTRATION OF EEOICPA

    EEOICPA is administered by the Division of Energy Employees 
Occupational Illness Compensation (DEEOIC) in OWCP. Claim adjudication 
is accomplished through four EEOICPA District Offices located in the 
OWCP regional offices. These District offices are located in 
Jacksonville, FL; Cleveland, OH; Denver, CO; and Seattle, WA with 
jurisdiction based on the location of the employee's last employment. 
Headquarters, in Washington, DC, provides planning, budgeting, 
performance measures, accountability evaluations, policy, central 
medical bill processing, and administrative leadership. Additionally, 
final decisions are issued by the Final Adjudication Branch (FAB), 
which is independent from the District offices, through a National FAB 
office in Washington, DC, and four District FAB offices collocated with 
the District offices. DOL has hired over 180 additional personnel to 
administer both Parts B and E.
    DEEOIC Resource Centers continue to assist employees and families 
filing claims. Assistance is provided through eleven strategically 
placed Resource Centers located in Oak Ridge, TN; North Augusta, SC; 
Paducah, KY; Portsmouth, OH; Denver, CO; Espanola, NM; Livermore, CA; 
Idaho Falls, ID; Richland, WA; Las Vegas, NV; and Amherst, NY. As a 
result of a successful cost-comparison competition under OMB Circular 
A-76, the resource centers, as part of the government's Most Efficient 
Organization (MEO), assumed additional responsibilities in employment 
verification and developing occupational histories for new Part E 
claims. Since August 2005, the resource centers fully completed 4,028 
initial employment verification requests and 3,151 Occupational History 
Questionnaires.

                             EEOICPA PART B

    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 future medical 
treatment for the covered condition (medical services and evaluations 
only for beryllium sensitivity). Qualified survivors of deceased 
covered employees may also be eligible for the lump sum compensation 
amount of $150,000. The EEOICPA also provides compensation in the 
amount of $50,000 to individuals or their eligible survivors awarded 
benefits by the Department of Justice (DOJ) under Section 5 of the 
Radiation Exposure Compensation Act (RECA).
    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 (DOJ) 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.
    DOL can move directly to a decision on cases involving a 
``specified cancer'' at an SEC facility because the Act provided a 
presumption that any of the twenty-two listed cancers incurred by an 
SEC worker was caused by radiation exposure at the SEC facility. In 
cases involving cancers other than the twenty-two specified cancers in 
the Act, the case will be referred to the National Institute for 
Occupational Safety and Health (NIOSH) for a dose reconstruction so 
that a determination can be made whether to award benefits based upon 
the probability that radiation caused the cancer. The dose is the 
relevant amount and character of radiation to which the individual was 
exposed related to his or her employment in the nuclear weapons 
complex.
    After NIOSH completes the dose reconstruction and calculates a dose 
estimate for the worker, DOL takes this estimate and applies the 
methodology also promulgated by the Department of Health and Human 
Services in its probability of causation regulation to determine if the 
statutory causality test is met. The standard is met if the cancer was 
``at least as likely as not'' related to the covered employment, as 
indicated by a determination of at least a 50 percent probability. 
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.
    NIOSH recently designated several classes for inclusion in the 
Special Exposure Cohort. To date, these include the Uranium Division of 
Mallinckrodt Chemical Works at the Destrehan Street facility (St. 
Louis, MO) from 1942-1948 and from 1949-1957; AEC operations during the 
period from March 1949 through 1974 for the Iowa Army Ammunition Plant 
(IAAP); IAAP employees who worked as radiographers from May 1948 to 
March 1949 in support of AEC operations; employees involved in uranium 
enrichment operations or other radiological activities at the Y-12 
Plant from March 1943 through December 1947; and certain employees at 
the Linde Ceramics Plant in Tonawanda, New York, 1942-1947. DEEOIC has 
issued special procedures for the proper handling of these claims and 
stands poised to develop and adjudicate claims arising out of these and 
any future new SEC designations.
    The DEEOIC strives to achieve quality agency decisions and provide 
clear and effective communications to its customers and stakeholders. 
In its September 2004 report entitled ``Energy Employees Compensation; 
Many Claims Have Been Processed, but Action Is Needed to Expedite 
Processing of Claims Requiring Radiation Exposure Estimates,'' the 
Government Accountability Office (GAO) evaluated ``how. . . Labor's 
procedures and practices ensure timely and consistent processing of 
claims not referred to NIOSH.'' Through January 2004, 83% of all claims 
not requiring NIOSH dose reconstruction were fully processed. GAO 
indicated it saw no need ``to issue formal recommendations regarding 
DOL performance.''
    The Final Adjudication Branch (FAB) continues to perform well. To 
accommodate the anticipated Part E caseload, staff for the FAB has been 
doubled. In FY 2005 FAB issued 11,709 claim-level final decisions under 
Part B and 2,110 claim-level final decisions under Part E, 
significantly surpassing the operational plan goals. FAB conducted 656 
hearings and responded to 897 requests from claimants for review of the 
written record during the year.

                             EEOICPA PART E

    The creation of Part E of EEOICPA established a new system of 
federal payments for DOE contractor employees and eligible survivors of 
such employees for illnesses determined to result from exposures to any 
toxic substances at a DOE facility. These benefits are also provided to 
uranium miners, millers, and ore transporters covered by Section 5 of 
the Radiation Exposure Compensation Act (RECA). Part E provides up to 
$250,000 in compensation and medical benefits for accepted illnesses. 
Benefits are provided for any illness if it is established that it is 
at least as likely as not that exposure to a toxic substance was a 
significant factor in causing, contributing to, or aggravating an 
illness or death of the employee. Additionally, the Act provides that 
any determination to award benefits under Part B (including for RECA 
Section 5 claims), as well as any positive finding by DOE under Part D, 
is an automatic acceptance of causation under Part E.
    Part E compensation determinations involve components of 
impairment, wage-loss, and survivor benefits. The maximum benefit is 
$250,000 for all claims relating to any individual employee. Medical 
benefits do not count against the maximum compensation cap. Living 
employees are eligible for benefits based on impairment and years of 
qualifying wage-loss and survivors are eligible for survivor benefits 
that include additional benefits if there were also significant years 
of qualifying wage-loss associated with the accepted illness.
    The statute defines survivors under Part E as a living spouse who 
was married to the employee for at least one year immediately prior to 
the death of the employee, and certain dependent children. If there is 
no living spouse, unlike in Part B, children are only eligible 
survivors if at the time of death of the employee they were under the 
age of 18 years old, under 23 years old and a full time student 
continuously since age 18, or any age if incapable of self support.
    The Act provides a ``basic'' lump sum benefit of $125,000 to 
eligible survivors where it is established that the employee was 
exposed to a toxic substance at a DOE facility; that it is at least as 
likely as not that the exposure caused, contributed to, or aggravated 
an illness; and, that the illness then caused, or contributed to the 
death of the employee. It also provides $25,000 in additional benefits 
to eligible survivors of a deceased Part E employee, beyond the 
``basic'' lump-sum payment in the amount of $125,000, if the deceased 
employee had, up to his or her ``normal retirement age'' under the 
Social Security Act, at least ten aggregate calendar years of wage-loss 
of at least 50 percent of his ``average annual wage.'' If an employee 
had at least twenty such years, the additional amount paid to an 
eligible survivor of such employee increases to $50,000.
    DEEOIC has contracted with a variety of health care professionals 
from a diverse background of medical disciplines to evaluate claims for 
causation and impairment. DEEOIC is assembling a network of physicians 
to review case files and will have physicians on-site at each of our 
four district offices to provide input to its claims professionals 
regarding complex medical issues. In addition, DEEOIC added a Medical 
Director to its National Office staff to assist with case file review 
and policy determinations.

                       ADMINISTRATIVE CHALLENGES

    The primary difficulty in implementing both parts of EEOICPA has 
been to get an effective claims processing system up and running in a 
very short period of time, so as to address large initial backlogs.

                                 PART B

    The statistics provided above indicate that we have been largely 
successful in addressing the Part B backlog, with the exception of 
those cases that require a dose reconstruction. More than 21,000 cases 
have been referred to NIOSH for dose reconstruction since the program's 
inception, and about 11,600 dose reconstructions have been completed, 
leaving roughly 8,500 cases pending at NIOSH. This time-consuming 
process has been the source of significant concern, and NIOSH has taken 
numerous steps to speed up its production of completed reconstructions. 
During FY 2006, NIOSH has returned an average of 500 completed dose 
reconstructions per month, and they project resolving a large portion 
of the current inventory by the end of this fiscal year.
    The creation of new SEC classes requires close coordination between 
DOL and NIOSH to determine which cases at the site in question have 
been affected by the new class and which continue to require dose 
reconstruction. Because each new SEC class designation has been unique 
in its rationale and in its impact on how (or if) dose reconstruction 
can be done for cancers that are not granted presumptive coverage, DOL 
and NIOSH have had to work out unique procedures for each class for 
determining how such cases will be processed. The return of large 
numbers of SEC cases also creates large unanticipated workload 
increases in DOL's district offices, and DEEOIC leadership has had to 
respond to those bulges in workload by shifting caseloads among the 
four district offices.
    Once a class is added, DOL must also use the designated class 
definition to identify claims that meet the requirements for 
adjudication as an SEC claim. Recent additions to the SEC have proven 
to be problematic due to ambiguous or inconsistent class definitions. 
For example, the HHS designation document defined the Oak Ridge Y-12 
class as employees who worked in uranium enrichment operations or 
``other radiological activities.'' It is not clear what functions or 
employee groups are covered by the latter term. Numerous claims from 
employees such as calutron building custodians, security workers, 
laborers, and others who could have been exposed in these facilities 
may not meet the definition as designated. Conversely, individuals who 
were likely not significantly exposed may be included in the SEC class 
due to the ambiguity of the class definition. DOL continues to 
coordinate with HHS/NIOSH to achieve the clearest and most accurate 
class definitions possible, so that claims decisions flowing from these 
determinations are understandable and fair.

                                 PART E

    While we are proud of our ability to get the new program up and 
running on time and within Congressional deadlines--and particularly of 
our ability to make a significant number of payments in the first 
year--Part E is more complex than the older program and has presented 
challenges in ensuring that all aspects are fully operational. In 
addition, efforts to ramp up case processing under the new Part E must 
be balanced with continued timely support of Part B claims processing, 
which has itself become more complicated with the declaration of 
several new SEC classes.
    The start-up time for Part E was somewhat more protracted than we 
had hoped, especially with respect to the full implementation of 
procedures for handling wage-loss and impairment rating determinations. 
These processes required the development of complex procedural 
guidance, engagement of medical consultants and retainers to carry out 
case evaluations, and extensive staff training. As a result, the great 
majority of payments made under Part E to date have gone to survivors, 
whose benefits are much simpler to compute.
    Nevertheless, all the necessary components of the Part E program 
are now in place and, for the remainder of FY 2006, we anticipate a 
substantial increase in both the total number of cases being 
adjudicated and the numbers and types of payments being issued.

                        OFFICE OF THE OMBUDSMAN

    The 2004 amendments also created an Office of the Ombudsman. In 
compliance with statutory requirements, on February 24, 2005, the 
Secretary appointed Donald Shalhoub to serve as the Ombudsman. The role 
of the Ombudsman is to conduct outreach to claimants and potential 
claimants; make recommendations to the Secretary of Labor on where to 
locate Resource Centers; submit an Annual Report to Congress by 
February 15, setting forth the number and types of complaints, 
grievances and requests for assistance received by the Ombudsman, and 
an assessment of the most common difficulties encountered by claimants 
and potential claimants under Part E. In making her selection, the 
Secretary picked an extremely qualified individual with long experience 
in addressing occupational safety and health issues and a commitment to 
assisting workers.
    As you know, Mr. Shalhoub recently submitted his first Report to 
Congress. While his report naturally highlights the complaints and 
concerns some 600 claimants brought to his attention, we believe it is 
important to compare this number to the more than 45,000 individuals 
who have filed a Part E claim thus far. We believe the great majority 
of this community understands that DOL is working hard to respond to 
their needs, and recognizes that a new program of this kind will take 
some time to address everyone's claim, particularly since we inherited 
a backlog of 25,000 claims.
    A significant percentage of the specific concerns raised by 
claimants relate to statutory restrictions (e.g., the exclusion of 
adult children from survivor benefits under Part E) which are beyond 
the purview of DOL. An additional group complains about the dose 
reconstruction process, which is being addressed by HHS/NIOSH. With 
respect to issues that do relate to DOL's administrative 
responsibilities, we take the concerns expressed in the Report 
seriously and will use them to improve our processes and especially our 
offices' communications with claimants.
    In several areas, the issues raised indicate confusion about how 
existing policies and procedures actually work, or a lack of clarity of 
the program documentation we provide. To address these concerns and the 
Ombudsman's related recommendations, we will, among other actions, work 
with NIOSH and our own staff to ensure that the waiver and appeals 
processes involving dose reconstruction and the related Part B and Part 
E adjudications are more clearly explained; ensure that DEEOIC 
decisions and other documents make it clear whether they apply to Part 
B, Part E, or both; and issue general information materials explaining 
in more detail how wage-loss and impairment rating decisions will be 
handled.
    The Report discloses that the Ombudsman received 23 complaints that 
claims examiners do not always return phone calls. DOL is working hard 
to avoid such service lapses. We carefully track phone calls received 
from claimants and hold our employees accountable for meeting program 
standards for prompt response. In FY 2005, OWCP received 53,164 
EEOICPA-related telephone calls, of which 37,060 were responded to at 
the time of the call. Of the remaining 16,104 which required a return 
call, over 96 percent were completed within 2 days. The program is 
striving to improve upon its customer service, and will seek to better 
those statistics in FY 2006.
    The Report stated that 10 claimants believe that OWCP's District 
Offices do not share their sense of urgency because their claims have 
been reassigned to new claims examiners. We hope that the public will 
recognize that such reassignments have been necessary due to the 
addition of nearly 200 new employees during the past year and are part 
of our effort to expedite case processing across-the-board. We 
understand the concern and frustration of claimants who have been 
awaiting a decision for several years, we are committed to working as 
quickly as possible to resolve these cases, and we are keenly aware of 
the urgency for claimants who are ill, and in many cases, very elderly.
    A number of claimants' comments stated that they believe the burden 
of presenting employment and exposure records rests solely on 
claimants. However, OWCP and NIOSH systematically gather employment and 
exposure information from DOE, the Former Worker Medical Screening 
programs, contractors who employed covered employees, the Social 
Security Administration, and many other sources. Thus, the vast 
majority of information used by NIOSH in creating a dose reconstruction 
is obtained from sources other than claimants. Similarly, most of the 
employment documentation used by OWCP in determining covered employment 
is obtained by OWCP from sources other than claimants, and we have 
created a database called ``site exposure matrices'' to assist claims 
examiners in determining the types of chemicals and toxic substances 
that existed at the major DOE facilities. These databases also help 
DEEOIC claims professionals assess relationships between potential 
exposures and a claimed illness. In addition, DEEOIC has added 
industrial hygienists and a toxicologist to its National Office staff 
to assist in exposure evaluation. It should be noted that no Part E 
claim was denied based on inadequate evidence of toxic exposure during 
2005.

                   DOL PERFORMANCE GOALS AND OUTCOMES

    The Labor Department is committed to the accomplishment of 
measurable outcomes and to holding ourselves accountable for achieving 
the fundamental goals of all the programs we administer. With respect 
to Part B of the EEOICPA, the DEEOIC 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 (FY 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 
from RECA claims, and within 180 days for Atomic Weapons Employer, 
beryllium vendor, and subcontractor cases (for which employment and 
other critical information is generally more difficult to obtain). 
Because we had received nearly 30,000 cases when our authority under 
Part B commenced on July 31, 2001, 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, 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 full year of operation (FY 
2002), despite the backlog of cases from the previous year. The smaller 
number of final decisions completed in FY 2002 met our GPRA timeliness 
goals in 76 percent of cases.
    During FY 2003, the DOL program was able to eliminate the initial 
backlog of claims, leaving only a working inventory of about two to 
three months' incoming claims pending in our district offices. At the 
same time, and despite making decisions on many older cases as we 
cleared the backlog, the program was able to exceed its GPRA timeliness 
goals. Our district offices issued initial decisions within the target 
timeframe in 79 percent of all cases processed, in excess of the 75 
percent goal. Our Final Adjudication Branch issued 77 percent of its 
final decisions within the program standards, also in excess of a goal 
of 75 percent.
    During FY 2004, we continued to improve on these results, exceeding 
our GPRA standards on all counts and driving down the average times to 
complete each phase of the different types of Part B claims. For 
example, the average time to complete an initial decision for cases 
from DOE facilities has been reduced from 98 to 73 days, and the 
average for cases from all other facilities and subcontractors is down 
from 123 to 99 days.
    During implementation of Part E during FY 2005 our district offices 
continued to adjudicate Part B claims timely in 81 percent of the 
cases, exceeding the 80 percent goal. The Final Adjudication Branch 
issued 95 percent of its final decisions timely, well in excess of the 
80 percent goal.
    Accomplishment of these goals took the persistent, case-by-case 
effort of the entire staff, as well as the continuing support of our 
Solicitor's Office. Close and frequent coordination with HHS allowed us 
to move cases smoothly and efficiently to NIOSH when dose 
reconstruction is needed. In addition, DOL and DOE worked cooperatively 
to improve the employment verification process and reduce the average 
time for completion of DOE verifications from nearly 90 days at the 
beginning of FY 2003 to a current average of less than 45 days. These 
cooperative measures were instrumental in reducing Part B processing 
times.
    The number of requests for administrative review has been 
relatively low, and only three Part B cases have been appealed in 
Federal district court, suggesting that the new program has reached a 
level of accuracy that builds credibility for its decisions.
    With respect to Part E, as previously noted, DOL exceeded its FY 
2005 GPRA goal for this Part by issuing more than 1,500 payments during 
the first 10 months following enactment. Cognizant of the long wait 
experienced by those who filed originally with the DOE Part D program, 
our GPRA goal for FY 2006 is to complete initial processing for at 
least 75% of the more than 25,000 cases transferred from DOE.
    NIOSH projected that by the end of FY 2006 most of the backlog of 
cases pending for dose reconstruction would be finalized and returned 
to DOL as well. Largely for these two reasons, we projected a major 
bulge (an increase of nearly $1 billion) in EEOICPA payouts for FY 
2006. We anticipate receiving a stable stream of new claims in FY 2006 
and FY 2007 (approximately 10,000 under each Part); but, whereas many 
payments are expected to result in FY 2006 from the backlog clearance 
efforts both with respect to the old Part D claims and the cases 
pending at NIOSH, that volume was projected to decline in FY 2007, 
resulting in total payouts that will substantially exceed the FY 2005 
experience, but will be much lower than FY 2006.
    The estimated decrease in Part B benefits from FY 2006 to FY 2007 
is not based on any projection of reductions or limitations in the 
number of additions to the Special Exposure Cohort. The budget impact 
of the Special Exposure Cohort process is not readily predictable 
because too many factors are unknown, e.g., which petitions will be 
successful, how many employees are involved, what new petitions will be 
forthcoming, etc. Since the compensation benefits are mandatory 
funding, if additions to the Special Exposure Cohort were greater than 
anticipated, benefits would still be paid regardless of the projections 
presented in the President's Budget.
    In summary, I am pleased to report that all aspects of the EEOICPA, 
both Part B and E, are fully operational, and we anticipate 
accomplishing our challenging performance goals for both programs in FY 
2006. We believe we have established a credible program and forged 
effective working relationships with our participating agencies--DOE, 
HHS and DOJ, as well as DOE contractors and labor unions. Between FY 
2001 and FY 2006, DOL implemented two brand-new compensation programs 
with widely divergent benefit schemes. We promulgated new regulations, 
formalized procedures, hired and trained nearly 500 Federal employees 
nationwide, and administered benefit disbursement in accord with 
congressionally mandated criteria. We are confident that we will be 
able to rise to the challenge of resolving the remaining backlog of 
Part E cases, and, working with NIOSH, to similarly resolve the dose 
reconstruction backlog. Every member of the DEEOIC staff is keenly 
aware that many workers have been waiting many years for compensation 
and we are doing our best to serve them.
    Thank you for the opportunity to describe our efforts in 
implementing EEOICPA. I would be pleased to answer any questions the 
Subcommittee may have.

    Mr. Hostettler. Thank you, Mr. Hallmark.
    Dr. Howard.

  TESTIMONY OF JOHN HOWARD, M.D., M.P.H., 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, and Members of the 
Subcommittee. I'm pleased to appear before you today to talk 
about the HHS activities.
    In 2002, HHS promulgated two regulations on the same day, 
one a dose reconstruction regulation and the other to assist 
the Department of Labor in determining probability of 
causation. In 2004, HHS promulgated a third regulation on the 
special exposure cohort petition and petition evaluation 
processes.
    NIOSH began developing a dose reconstruction program in the 
summer of 2001, establishing a robust scientific foundation as 
the basis for our program. We've hired two contractors to 
assist us with that activity. The first contract was awarded in 
2003 to the Oak Ridge Associated Universities, and the second 
was awarded in 2005 to Battelle Science and Technology 
International. Of the 21,123 cases that we have received from 
the Department of Labor for dose reconstruction, we have 
returned to DOL as completed cases 13,813 or 65 percent of our 
program's caseload.
    In addition to processing individual dose reconstructions, 
we've also been actively working on evaluating special exposure 
cohort petitions. Since HHS promulgated our role in 2004, we've 
received a total of 55 submissions for adding classes to the 
SEC. Of those, 26 did not qualify for evaluation, 14 are in the 
stage of being qualified, six have qualified as petitions and 
are being evaluated now, and nine were approved for addition to 
the SEC representing six classes of employees at four sites. 
Five of these six classes were initiated by petitions by former 
employees, survivors, or their representatives. One class, 
however, Linde Ceramics Plant, was added because NIOSH, on its 
own initiative, determined that data to estimate radiation 
doses with sufficient accuracy was not available for a 
specified time period.
    To date, 20 submissions have been closed because they did 
not qualify. Some of these petitions were withdrawn by the 
applicants. Some lacked appropriate evidence despite 
substantial assistance from NIOSH, and some requested the 
addition of classes that were already statutorily included in 
the congressional cohort.
    Finally, the President charged HHS with administering a new 
Federal Advisory Committee, the Advisory Board on Radiation and 
Worker Health, to advise the Secretary of HHS. The Board is 
chaired by Dr. Paul Ziemer, an internationally-recognized 
health physicist, and consists of 12 distinguished members, one 
who is present here today, representing scientists, physicians, 
and representative workers, a membership which reflects the 
act's requirement that the Board include a balance of 
scientific medical and worker perspectives.
    Since the Board first met in January 2002, Board members 
have met a total of 46 times in work groups, Subcommittees, or 
as the full Board. The Board made recommendation to the 
Secretary for the addition of all of the six SEC classes that 
have been added thus far. A technical support contractor was 
secured in 2003 to address the Board's request for assistance 
in better managing its workload. Many of the review comments of 
this contractor have been extremely constructive to us and to 
the Board and very useful in making sure that we have rigorous 
scientific peer review of our work.
    Thank you, Mr. Chairman. I would be happy to answer any 
questions you have.
    [The prepared statement of Dr. Howard follows:]

                   Prepared Statement of John Howard

    Mr. Chairman and Members of the Subcommittee, my name is John 
Howard and I am director of the National Institute for Occupational 
Safety and Health (NIOSH), part of the Centers for Disease Control and 
Prevention (CDC) within the Department of Health and Human Services 
(HHS). I am joined today by Mr. Larry Elliott, Director of the NIOSH 
Office of Compensation Analysis and Support, and Dr. Lewis Wade, Senior 
Science Advisor at NIOSH. I am pleased to appear before you today to 
provide testimony on the status of HHS activities under the Energy 
Employees Occupational Illness Compensation Program Act of 2000 (``the 
Act'').
    I will describe and summarize the progress of the HHS 
responsibilities under the Act, delegated by the President under 
Executive Order 13179 issued on December 7, 2000:

          Develop scientific guidelines for determining whether 
        a worker's cancer is related to the worker's occupational 
        exposure to radiation (``probability of causation'') and 
        methods to estimate worker exposure to radiation (``dose 
        reconstruction''),

          Use the dose reconstruction regulation to develop 
        estimates of radiation dose for workers who apply for 
        compensation,

          Establish a process by which classes of workers can 
        be considered for inclusion in the Special Exposure Cohort, and

          Provide support for the Advisory Board on Radiation 
        and Worker Health
       regulations for dose reconstructions and cancer causation
    HHS was charged with promulgating two regulations. One regulation 
establishes methods for conducting radiation dose reconstructions for 
cancer claimants (42 C.F.R. pt. 82). Dose reconstruction is a science-
based process for retrospectively estimating the amounts and types of 
radiation doses incurred by a person. This effort included substantial 
scientific work by NIOSH to develop specialized analytical methods and 
tools needed to estimate the occupational radiation doses of nuclear 
weapons workers.
    The second HHS-promulgated regulation establishes guidelines by 
which the Department of Labor (DOL) determines whether the cancer of an 
employee is ``at least as likely as not' related to the radiation doses 
estimated for that employee through a dose reconstruction (42 C.F.R. 
pt. 81). This regulation is for determining the ``probability of 
causation,'' which is the probability that a person's cancer was 
related to radiation from employment at the specified facility, 
required the further development of a scientific tool, the 
``Interactive RadioEpidemiological Program'' (IREP). IREP is a computer 
program that uses ``risk models'' for associating radiation doses with 
risk information on different cancers. IREP estimates the probability 
of disease causation specific to each employee's unique history of 
exposures to different types and quantities of radiation during the 
course of his or her employment. In the final development of this tool, 
NIOSH collaborated with the National Cancer Institute, which had 
created the initial paper version in the 1980s and was in the process 
of updating it in response to an extensive scientific review by the 
National Research Council.
    In promulgating the two regulations, HHS invited and considered 
comments of the public and the Presidentially-appointed Advisory Board 
on Radiation and Worker Health (``the Board''). The Board reviewed and 
advised HHS on both of these rules during the public comment and 
supported the final rules, which were finalized on May 2, 2002. The 
regulations are designed to provide efficiencies in dose reconstruction 
efforts for purposes of arriving at timely decisions on compensation. 
The regulations allow for new scientific findings and consensus to be 
integrated after proper scientific consideration.
    An example of this recently occurred when NIOSH published a Federal 
Register Notice and provided an opportunity for the public to comment 
on a proposed change in the process for selection of target organs used 
in dose reconstructions for energy employees with lymphoma cancers. 
This change was in response to an evaluation by NIOSH of current 
scientific data on lymphoma, which revealed that the site of the 
radiation injury can differ from the site of the tumor or cancer origin 
documented in the medical files of a lymphoma cancer patient. On 
February 15, 2006, NIOSH finalized the new process (for selecting the 
dose reconstruction target organs for energy employees with lymphoma 
cancers). The new process selects the organ that would have received 
the highest radiation dose from among relevant, possibly irradiated 
organs, as determined through the dose reconstruction process, when the 
identity of the target organ is in question. This change is now being 
used to complete dose reconstructions for lymphoma cases and may result 
in DOL calculating a higher probability of causation determinations for 
select lymphoma cases. NIOSH is also reviewing the dose reconstructions 
for lymphoma cases that have already been completed and returned to 
DOL. If the new process will result in DOL calculating a higher
probability of causation that will result in approval of a denied 
case, a new dose reconstruction will be provided to the claimant and to 
DOL.

                      DOSE RECONSTRUCTION PROGRAM

    The second responsibility of HHS, delegated to NIOSH, is the 
development and administration of a dose reconstruction program to 
serve cancer claimants under the Act. This is the largest and most 
challenging responsibility assigned to HHS. The production scale and 
scientific complexity of the dose reconstruction program required by 
the Act are significant compared to other Federal compensation programs 
requiring dose reconstructions.
    NIOSH began developing a dose reconstruction program in the summer 
of 2001. In accordance with its responsibilities to date, NIOSH 
established a broad scientific foundation, the cornerstones of which 
are the radiation dose reconstruction methods and cancer risk models 
for occupational radiation exposures. The scientific fields and 
disciplines needed for dose reconstructions include mathematics; health 
physics; bio-kinetic modeling; statistical treatment, analyses, and 
testing; exposure assessment; and nuclear engineering. The development 
and maintenance of the cancer risk models for this compensation program 
require epidemiology; statistical treatment, analyses, and testing; 
medical interpretation; and risk assessment modeling and communication.
    To assist in conducting individual dose reconstructions, NIOSH 
develops different kinds of informational documents and updates them as 
necessary if more information is obtained.
    Site Profile documents provide information on the radiation 
protection practices of a facility. The six sections of a Site Profile 
document are called Technical Basis Documents, and each address a 
specific topic, such as a site description, occupational medical dose, 
or occupational internal dose. Completion of individual dose 
reconstructions may require all, none, or only certain sections of a 
Site Profile document. As each Technical Basis Document is completed, 
it is used to complete dose reconstructions and assure consistency.
    We also develop Technical Information Bulletins, which provide 
clarification on how a specific method can be used to complete a dose 
reconstruction, on how the information in a Technical Basis Document or 
Site Profile can be used to meet a specific need in the dose 
reconstruction process, or on how to provide specific technical 
information that supports or justifies the tables or information 
included in a Technical Basis Document or Site Profile.
    NIOSH also developed and implemented procedures for performing dose 
reconstructions; developed a records and data management system; and 
initiated numerous records retrieval efforts. NIOSH established and 
coordinated efforts with DOL, the Department of Energy (DOE), and the 
Defense Threat Reduction Agency in the Department of Defense.
    NIOSH has two contractors to assist with the development of site 
profile information and completion of dose reconstructions. The first 
contract was awarded on October 12, 2003, to Oak Ridge Associated 
Universities (ORAU). The contract involves personal interviews with the 
claimants, retrieval and validation of individual monitoring data, 
reconstruction of exposure conditions at various DOE and DOE contractor 
facilities (site profile development), and the completion of individual 
dose reconstructions. The second contract was awarded on October 12, 
2005, to Battelle Science and Technology International (Battelle). The 
contract involves the reconstruction of exposure conditions at various 
Atomic Weapons Employer facilities and the completion of individual 
dose reconstructions.
    Following are the status and accomplishments of the dose 
reconstruction program:
General Claim Information
          EEOICPA encompasses 362 covered sites. NIOSH has 
        received claims from 195 of those sites, over 100 of which have 
        five or fewer claims.

          Of the 362 covered sites, approximately 40 are DOE 
        sites and represent the majority of claims; more than 300 sites 
        are Atomic Weapons Employer sites (sites which processed or 
        produced material that emitted radiation and was used in the 
        production of atomic weapons, excluding uranium mining and 
        milling).
Dose Reconstructions
          Cases sent to NIOSH by DOL for dose reconstruction: 
        21,092

          Cases returned to DOL: 13,742 (65% of total 21,092)

    The chart below illustrates NIOSH progress in monthly caseloads:

    
    

Documents
          Developed 129 Technical Basis Documents, 40 Technical 
        Information Bulletins

          Developed 63 implementation procedures (45 ORAU 
        procedures and 18 OCAS procedures)

                        SPECIAL EXPOSURE COHORT

    The next responsibilities of HHS are directly related to the dose 
reconstruction program: defining the requirements for adding classes of 
employees to the Special Exposure Cohort (``the Cohort'') and 
developing a process for receiving, evaluating, and processing Cohort 
submissions received.
    Under the Act, claims for members of the Cohort who have any of 22 
specified cancers designated by the Act would not require dose 
reconstructions or a determination by DOL of probability of causation. 
Congress included in the Cohort certain employees of three DOE 
facilities, known as the gaseous diffusion plants, as well as employees 
of a nuclear weapons test site in Amchitka, Alaska. In addition, the 
President has authority, delegated to HHS, to designate additional 
classes of employees to be members of the Cohort, subject to 
Congressional review, if two tests are met:

        (1)  it is not feasible to estimate with sufficient accuracy 
        the radiation dose that the class received; and

        (2)  there is a reasonable likelihood that such radiation dose 
        may have endangered the health of members of the class.

    On May 28, 2004, HHS promulgated a regulation to allow it to 
implement this authority--Procedures for Designating Classes of 
Employees as Members to the Special Exposure Cohort under EEOICPA (42 
C.F.R. pt. 83). The guidelines used to evaluate the feasibility of 
reconstructing doses for a proposed Cohort class are established in 
this rule. It states that dose reconstructions can be performed with 
sufficient accuracy if: ``NIOSH has established that it has access to 
sufficient information to estimate the maximum radiation dose for every 
type of cancer for which radiation doses are reconstructed, that could 
have been incurred in plausible circumstances by any member of the 
class or if NIOSH has established that it has access to sufficient 
information to estimate the radiation doses of members of the class 
more precisely than an estimate of the maximum radiation dose.''
    The regulation provides for petitions in two circumstances. One 
circumstance is when NIOSH has attempted to conduct a dose 
reconstruction for a cancer claimant and finds that the dose 
reconstruction cannot be completed because there is insufficient 
information to estimate the radiation doses of the claimant with 
sufficient accuracy. The second circumstance includes all other 
possibilities. For example, a petition may be submitted representing a 
class of employees whose members have yet to file claims under EEOICPA, 
or even have yet to be diagnosed with cancer.
    Once the Cohort regulation was promulgated, NIOSH was able to begin 
considering petitions, working closely with petitioners to assist with 
their Cohort submissions in order to qualify the submission as a 
petition for evaluation. To qualify for evaluation, a submission must 
contain sufficient information to establish that the radiation 
exposures sustained by employees at a site were not monitored, either 
through personal or area monitoring; or that such records have been 
lost, falsified, or destroyed; or that there is no information 
regarding monitoring, source, source term, or process from the site. 
This information may be provided by documents, affidavits, reports from 
a health physicist or other individual with expertise, or a government 
report of a scientific or technical nature.
    NIOSH uses a hierarchical approach to evaluate the types of 
information available to reconstruct doses. The primary data used for 
determining internal exposures are from personal monitoring data, such 
as urinalysis, fecal samples, and whole body counting results. If these 
are unavailable, the air monitoring data from breathing zone and area 
monitoring is used to estimate the potential internal exposure. If 
personal monitoring and area monitoring are unavailable, internal 
exposure estimates can be made from modeling potential exposures from 
the source term and process information. The source term is developed 
from the quantity of the radioactive material(s) involved or the 
exposure potential of the radiation generating device.
    The same hierarchy is used for determining the external exposures 
to the cancer site. Personal monitoring data from film badges or 
thermal luminescent detectors are the primary data used for determining 
external exposures to the cancer site. If there are no personal 
monitoring data, exposure rate surveys and source term modeling can be 
used to determine the potential external exposure. In addition to the 
occupational external exposures from facility operations, occupational 
medical exposures from routine X-ray examinations given to the energy 
employee as a condition of employment are also included in the external 
exposures. These exposures are estimated using technical information 
relative to the type of X-ray equipment used at a point-in-time at the 
facility. When all of the sources of data described above have been 
determined to be unsuitable for establishing maximum plausible 
radiation doses, it can be concluded that doses cannot be reconstructed 
with sufficient accuracy.
    Once a submission has qualified for evaluation, NIOSH evaluates the 
petition based on the issues discussed above. A completed evaluation 
report is sent to both the petitioners and the Board. The Board reviews 
the petition and provides a recommendation to the Secretary of HHS on 
the feasibility of conducting dose reconstructions for members of the 
petitioning class. As required by the Act, the final step in the 
petitioning process is an opportunity for Congress to review certain 
designations by the Secretary of HHS. These decisions become effective 
in 30 days, unless Congress provides otherwise.
Current Cohort Information
          Six classes of employees at four sites have been 
        added to the cohort. Three of these classes (Mallinckrodt 
        Chemical Company--Destrehan Street; Iowa Army Ammunition Plant; 
        and Y-12 Facility) were added due to petitions received from 
        former employees, survivors, or their authorized 
        representatives. One class, Linde Ceramics Plant, was added 
        because NIOSH determined that data to estimate radiation doses 
        with sufficient accuracy were not available for a specified 
        time period.

          NIOSH is currently evaluating six submissions and 
        will send completed evaluation reports to the petitioners and 
        the Board. These submissions are Pacific Proving Grounds, Y-12 
        (Oak Ridge), Rocky Flats Plant, Oak Ridge Institute for Nuclear 
        Studies, Ames Laboratory, and Chapman Valve.

          NIOSH notifies applicants of any requirements that 
        are not met by the submission and assists the applicants with 
        guidance through phone consultations and written communication 
        in developing necessary information. Currently, NIOSH is 
        providing such assistance to applicants involved with 11 
        submissions. It is not known which, if any, of these 
        submissions will ultimately qualify for evaluation as a Cohort 
        petition.

          To date, 20 submissions have failed to qualify for 
        evaluation as Cohort petitions, and have been closed. Some 
        submissions have been withdrawn by the applicants, and some 
        submissions requested the addition of classes of employees to 
        the Cohort that were already included in the statutory Cohort. 
        Other submissions lacked appropriate evidence despite 
        substantial assistance from NIOSH.

          On December 22, 2005, NIOSH published a notice in the 
        Federal Register requesting public review and comment on 
        proposed changes to the Cohort rule (42 C.F.R. pt. 83) to 
        address changes to the Act authorized by the National Defense 
        Authorization Act for Fiscal Year 2005 (codified as amended in 
        scattered sections of 42 U.S.C.). Comments on the interim final 
        Cohort ruled will be accepted until March 23, 2006.

             ADVISORY BOARD ON RADIATION AND WORKER HEALTH

    Finally, the President charged HHS with administering a new Federal 
advisory committee, the Advisory Board on Radiation and Worker Health 
(``the Board''), to advise the Secretary of HHS. Members are invited to 
serve overlapping terms of up to four years, except that any member 
appointed to fill a vacancy for an unexpired term shall be appointed 
for the remainder of that term. HHS provides administrative services, 
funds, facilities, staff, and other necessary support services.
    HHS nominated and the President appointed the initial member of the 
Board in 2001. The Board is chaired by Dr. Paul Ziemer, an 
internationally recognized health physicist, and consists of 12 members 
representing scientists, physicians, or representatives of nuclear 
weapons workers--a membership which reflects the Act's requirements 
that the Board include a balance of scientific, medical, and worker 
perspectives.

Board Accomplishments
          Since the first Board meeting in January 2002, Board 
        members have met a total of 46 times in workgroups, 
        subcommittees, as the full Board. The most recent meeting 
        occurred this week.

          CDC secured a technical support contractor, Sanford 
        Cohen & Associates (SC&A), on October 10, 2003 to address the 
        Board's request for assistance in better managing its workload. 
        SC&A is currently assisting the Board with their work on dose 
        reconstruction reviews, site profile reviews, and the Cohort 
        petitioning process.

          The Board has reviewed 60 dose reconstructions and 21 
        procedures of the NIOSH program. The Board's review of dose 
        reconstruction procedures has been constructive. Many of the 
        review comments raised by the Board's contractor, SC&A, have 
        already been examined and changes for improvement have been 
        made or are underway. Other comments are being addressed with 
        feedback to the Board.

          The Board has made eight recommendations to the 
        Secretary of HHS.

                                SUMMARY

    In conclusion, NIOSH has made much progress in carrying out the 
responsibilities of HHS under EEOICPA and looks forward to continuing 
to improve its performance to assist workers who have cancer as a 
result of exposure to unique hazards in building the Nation's nuclear 
defense.
    Thank you again for the opportunity to testify. I'm happy to answer 
any questions you may have.

    Mr. Hostettler. Thank you, Dr. Howard.
    Dr. Melius.

TESTIMONY OF JAMES MELIUS, M.D., DRPH, ADMINISTRATOR, NEW YORK 
  STATE LABORERS HEALTH AND SAFETY TRUST FUND, MEMBER OF THE 
         ADVISORY BOARD ON RADIATION AND WORKER HEALTH

    Dr. Melius. Thank you for inviting me to speak today. 
Although I will not be speaking on behalf of the Advisory 
Board, I will be speaking as a member of that Advisory Board 
and certainly can reflect the work of the Advisory Board that 
Dr. Howard described, has done as part of this program.
    In your opening statement and others, you pointed out the 
problem for the many people that worked at these site, the 
secrecy. They were not given complete information about what 
they worked with. I think that's very important to understand. 
These people, they did this work willingly. They understood the 
importance of this program for their country, but now that that 
has passed and now that there are compensation programs in 
place for them and one that is well-justified by their 
exposures as well as their sacrifices, I think it's very 
important that we maintain a fair program, a transparent, open 
program, that they feel that they are being treated fairly at 
this point in time. And one of the things that we've worked 
through the Advisory Board is to ensure that fairness and 
openness--that people see what the reasons are and that we have 
a sound and open process.
    I am extremely concerned by some of the suggested changes. 
That we would lose that openness, that we would lose that 
perception of fairness, and therefore, lose the whole 
credibility of this program.
    As Dr. Howard has mentioned, the Advisory Board as 
established under the act are 12 members. We have distinct 
duties under the act that we need to carry out, and really in 
order to do them, in order to do really the volume of work 
required, we requested an outside contractor be hired to assist 
us. We went to hire that contractor through an open procurement 
process, a typical Government process, brought on Sanford, 
Cohen and Associates, and I would share with Dr. Howard that 
they have done an excellent job. They provide excellent and 
outstanding technical and scientific review and really what we 
would call in the scientific community peer review of the many 
technical documents, the many scientific issues that we need to 
deal with.
    We also pay special attention to conflict of interest 
issues, both for everyone involved in it, the contractor that 
NIOSH has hired, but also for our own contractor (the Board's 
contractor), and the members of the Board, and we put our 
contractor through requirements that were much more stringent 
for some of the other groups that were involved in working on 
this program because we wanted to make sure that the claimants 
were reassured that they were receiving fair and unbiased 
review of their claims--that whoever was checking on them was 
not being tainted by past work or past associations or 
whatever, so take the extra step to make sure with that.
    We've also used that contractor recently in reviewing the 
special exposure cohort petitions, and NIOSH, as Dr. Howard 
mentioned, produces a report. The Board then has to review 
this, again a lot of technical information that has to be dealt 
with in doing this, and it's taken time. We've paid a lot of 
attention to this area to make sure that we are reaching 
correct recommendations that were then passed on to the 
Secretary of Health and Human Services, and our contractor 
again played a critical role in helping us to do that, again an 
open, transparent process. People petitioning for the special 
cohort, exposure cohort, are allowed to speak and to present 
their case and really to be part of all the proceedings that 
take place for this.
    After we have gained some experience recently in doing 
this, especially particularly the initial eight special 
exposure cohort petitions that we were reviewing, we have sort 
of stepped back and we formed a small work group of the 
Advisory Board. I chaired that Board, and we developed a set of 
guidelines that we thought would improve the efficiency of the 
review process as well as provide a fair assessment and one 
that we could do in a way that would assure that from petition 
to petition that we were providing the same type of criteria 
for each petition. (We were treating everybody fairly.)
    That report, I attached to my testimony. It's been made 
public. We received comments from the public and we'll continue 
to do so, again, what can we do to improve the process, make it 
more efficient, but maintain the fairness and openness of this 
process.
    Recently the Office of Management and Budget have suggested 
a number of changes to the program. You've listed those changes 
in your opening remarks. I think it's important to realize that 
we have a process in place that works. This is a process that 
was envisioned in the act. It's open. It provides sound 
technical peer review of these evaluations for special exposure 
cohort consideration. We don't need to make changes in it. We 
can improve it in some ways. The process really is good. It 
provides a balanced scientific and technical review, and I 
think to make the changes that have been suggested in the OMB 
document would simply destroy the credibility of this program. 
We can't have a secret review process underway.
    Let me end my testimony there. I will be glad to answer 
questions at the appropriate time.
    [The prepared statement of Dr. Melius follows:]

                   Prepared Statement of James Melius

    Thank you for the opportunity to testify here today before the 
Subcommittee on Immigration. Border Security, and Claims regarding the 
Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA). Over my past twenty-years of work in occupational and 
environmental health, I have considerable experience evaluating 
occupational illness issues at Department of Energy nuclear weapons 
facilities while working for the National Institute for Occupational 
Safety and Health and later as a member of various review and advisory 
committees including the Advisory Board on Radiation and Worker Health 
established under EEOICPA. I appreciate the Subcommittee's exercising 
its oversight with regard to this important program.
    I should note that I testify here today as a member of the Advisory 
Board on Radiation and Worker Health but do not speak on behalf of the 
Board. However, I can address the workings of the Board and its stated 
positions on various issues relevant to this hearing.

     ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT

    EEOCIPA was established to address the work-related cancers and 
other illnesses suffered by the thousands of men and women who helped 
build and maintain our nation's nuclear weapons starting during World 
War II and continuing into the present time. Especially during the 
early years of the program, these people worked under very difficult 
conditions. They worked under very tight deadlines using new 
manufacturing processes handling very dangerous materials, often with 
minimal protection from exposure to dangerous radioactive elements. 
They also worked under great secrecy, facing severe criminal penalties 
for any breach of secrecy. Often they were given very minimal 
information about the materials that they worked with and the potential 
health consequences of their exposures.
    I want to emphasize that these people worked under these conditions 
willingly, knowing the critical importance of their work to our 
nation's security. However, many of these people and their families are 
now angry that this past secrecy and those difficult working conditions 
have not been acknowledged and have been used to deny their past claims 
for work-related illnesses. The credibility of the EEOICPA program to 
these people is very dependent on the fairness and transparency of the 
program's procedures.
    As a consequence of this work, these workers are at increased risk 
of developing cancer and other occupational illnesses. Because 
information on the exposures and the consequent health risks were 
hidden from these workers for so many years, Congress established the 
Energy Employees Occupational Illness Program in 2000 to provide some 
compensation to these workers and their survivors for their work-
related health problems. In doing so, Congress recognized that 
attempting to provide fair and equitable compensation for people 
working at these facilities for the past 50 years or more was difficult 
and, in many cases, would not fully compensate these people or their 
families for their suffering and sacrifice for our country.
    The part of the Act under consideration at this hearing involves 
compensation for people with work-related cancer due to radiation 
exposures. The program as established in EEOICPA and implemented 
through the Department of Labor and the National Institute for 
Occupational Safety and Health (NIOSH) attempts to evaluate the past 
radiation exposures for the claimants at nuclear weapons facilities and 
then calculates the probability that their cancer was caused by 
exposures at the facility(s).
    NIOSH's major task under this part of EEOICPA is to obtain past 
monitoring records for the claimant along with other technical 
information on the facility(s) where they worked that would help to 
estimate the claimant's exposure. NIOSH then utilizes this information 
to estimate the cumulative radiation exposure for that individual. This 
is a complex task requiring review of many different sources of records 
and other information. A claimant may have had exposure to many 
different radioactive elements and have been exposed in many different 
manners. The monitoring records may extend back over 50 years and 
reflect time periods when monitoring methods were less precise than 
today. NIOSH has had to develop new procedures and correction factors 
to appropriately estimate these past exposures.
    If a ``reasonable'' estimate of a claimant's exposure can be made, 
the probability that a claimant's cancer was due to this exposure is 
estimated. This procedure (established by the EEOICPA) utilizes a 
mathematical model developed by the National Cancer Institute and 
modified by NIOSH for use in this compensation program. The model is 
based on cancer studies of people exposed to radiation whose health 
status was traced for many years (mainly those exposed from the atomic 
weapon explosions in Japan during World War II). The procedure 
established under EEOICPA takes into account the risk that the 
claimant's particular cancer could be caused by their radiation 
exposures as well as the precision of that estimate (i.e., the possible 
error in the estimate due to the limitations of the health and exposure 
data). NIOSH then provides these data to the Department of Labor who 
performs the final calculations for the purposes of accepting or 
denying the cancer claim.

                        SPECIAL EXPOSURE COHORT

    In establishing this program, Congress recognized that there would 
be circumstances where dose reconstruction would not be feasible due to 
the lack of adequate information on the claimant's exposure at the 
nuclear weapons facilities. Exposure records may not be available. The 
claimant may not have had their exposure to a particular radioactive 
material monitored during that time period. A method for measuring that 
particular exposure may not have been available at that time. Rather 
than requiring the claimant to somehow prove that they had sufficient 
exposures to warrant compensation (an almost impossible task given the 
length of time involved and the secrecy in place at the facilities), 
Congress established the Special Exposure Cohort.
    The Special Exposure Cohort provides compensation for claimants 
with 22 specified cancers who worked at certain facilities for a 
specified length of time. Congress established four such groups in the 
legislation and gave the Department of Health and Human Services the 
power to add additional groups. Individuals or groups representing 
claimants or potential claimants can petition NIOSH requesting that a 
specific group be added to the Special Exposure Cohort. If the petition 
is deemed valid by NIOSH, NIOSH then evaluates the merits of the 
petition and presents a report to the Advisory Board regarding the 
merits of adding the group to the Special Exposure Cohort. The Act 
provides that a new group may be added to the Special Exposure Cohort 
when the ``it is not feasible to estimate the dose that they received 
with sufficient accuracy'' and if their health was endangered as a 
result of their exposures. The Board then reviews the NIOSH evaluation 
report and makes an independent recommendation to the Secretary of HHS 
regarding the petition.

             ADVISORY BOARD ON RADIATION AND WORKER HEALTH

    The Advisory Board on Radiation and Worker Health was established 
under EEOICPA to review the regulations establishing the methods to be 
used in the dose reconstruction effort and Special Exposure Cohort 
evaluations; to review the scientific validity and quality of the dose 
reconstruction effort; and to review the additional groups proposed for 
inclusion in the Special Exposure Cohort (described above). The Board 
is required to represent ``a balance of scientific, medical, and worker 
perspectives''.
    The Board is appointed by the President. The Board has had up to 
thirteen members. One resigned due to a conflict of interest, and 
another died. Recently, two members were dismissed from the Board, and 
three new members were added. The current Board represents diverse view 
points including people who formerly worked for the Department of 
Energy or their nuclear facility contractors as well as union 
representatives from DOE nuclear facilities. This balance of diverse 
perspectives helps to ensure that the Board's deliberations are 
thorough and that different views on issues are discussed.
    The Board meets approximately four or five times per year with most 
meetings lasting three days. Public meetings by conference call take 
place between meetings. In addition, work groups set up by the Board 
also meet by phone or in person between meetings. Most of these work 
group meetings are open to parties involved in the facility under 
consideration. Transcripts of these Work Group meetings are also made 
and posted on the NIOSH OCAS website.
    Given the considerable workload required by the Act to review the 
dose reconstruction program, the Advisory Board has obtained the 
services of a technical contractor (Sanford Cohen and Associates) to 
assist in the technical review of dose reconstructions, related 
technical procedure documents, and the special cohort evaluation 
technical documents. This contractor was selected through a full and 
open government procurement process. The contractor provides a number 
of highly qualified technical specialists to assist the Board and has 
greatly facilitated the work of the Board.
    Working with the contractor, the Board has established a program 
for reviewing dose reconstructions for a sample of individual claims 
and the NIOSH procedures and developed technical documents that provide 
the basis for NIOSH's dose reconstruction program. The Board's 
contractor conducts its review under the direction of the Board and the 
contractor's technical review is presented to the Board for discussion 
before being finalized and transmitted to the Secretary of HHS. The 
procedures used by the contractor for its audit were established and 
approved by the Board. After the initial review of cases, procedures, 
and/or documents by the contractor, the Board has established a 
standard process to ensure that NIOSH has the opportunity to review and 
comment on the contractor's review before the Board finalizes our 
comments to the Secretary. The review covers a wide range of technical 
issues related to individual dose reconstruction to ensure that the 
dose reconstructions are being done in a scientifically sound and 
balanced manner.
    The Board has paid special attention to issues of potential 
conflict of interest among all groups working on this program. Given 
the concern of the people who worked at these facilities about ensuring 
that the compensation program is handled in a fair and impartial 
manner, strong conflict of interest provisions are necessary to ensure 
the credibility of the program. In selecting a contractor for assisting 
the Board, specific conflict of interest requirements were included in 
the review and operation of this contract. Conflict of interest 
information for our contractor and for Board members are available to 
the public through the NIOSH website for this program.

         THE ADVISORY BOARD AND SPECIAL EXPOSURE COHORT REVIEWS

    The Advisory Board has reviewed approximately 8 new special 
exposure cohort groups (NIOSH has sometimes combined petitions or split 
proposed groups into different time periods). Seven have been approved, 
and one denied by the Board. Several are pending including one that was 
reviewed at a recent Board meeting and then deferred pending the 
receipt of further information from NIOSH (Pacific Proving Ground).
    All of these petitions have involved the early years of nuclear 
weapons production when monitoring data were sparse. In some cases, 
NIOSH's recommendation has been followed, while in others the Board's 
recommendation has differed from that of NIOSH. In some cases, the 
discussion of the petition has stretched over several Board meetings. 
In nearly, all cases the Board's vote on our recommendation has been 
close to unanimous despite the diversity of viewpoints on the Board.
    The Board has worked with NIOSH to establish a sound and thorough 
independent technical and scientific review of the NIOSH evaluation of 
the special exposure cohort petition. I believe that this is what is 
envisioned under EEOICPA. The Board's contractor has done substantial 
work to review relevant scientific and technical documents and data, 
and there has been a thorough discussion of the scientific issues at 
the meetings. The petitioners have had good access to the review 
process and a fair opportunity to provide their input.
    Recently, the Board has worked with NIOSH to improve the process. 
Late last year, the Board established a working group of four Board 
members that I chaired to review our procedures for evaluating Special 
Exposure Cohort petitions and evaluations. The Working Group held a 
meeting in November 2005 with NIOSH staff participating to develop 
draft guidelines for our review. Draft guidelines were developed, and 
this document was reviewed by other Board members and by NIOSH and made 
available to the public for review and comment. After some revisions 
based on comments from Board members, the draft guidelines were 
discussed at our January Board meeting. The Board voted to adopt the 
guidelines with the understanding that they could be modified at a 
later time based on additional comments received from outside parties. 
I have attached a copy of the guidelines with my testimony.
    These guidelines provide a framework for the Board's review of 
Special Exposure Cohort petitions and NIOSH's evaluation of those 
petitions. The guidelines provide general criteria for evaluating 
information that might be used for dose reconstruction to determine 
whether or not that information provides a basis for adequate dose 
reconstruction (i.e., ``feasible to estimate the dose that they 
received with sufficient accuracy''). The Board believes that the 
guidelines will help to make the Special Exposure Cohort process more 
efficient, more timely, and provide a fair process for all groups 
seeking that status. The Advisory Board has also established a specific 
role for our contractor to assist in the review of Special Exposure 
Cohort actions.
    My understanding is that the Department of Labor and the Office of 
Management and Budget have suggested some actions to address a 
perception that the current Special Exposure Cohort process is not 
working adequately. On the contrary, I believe that the current 
procedures provide what was called for in the EEOICPA legislation. 
First, the process is open to the public and to input from the public. 
Failure to ensure this level of transparency would severely damage the 
credibility of the program. Secondly, the process provides for sound 
scientific and technical review of any SEC recommendation by an 
independent advisory board with the assistance of a contractor with 
relevant scientific and technical expertise. This review process is 
similar to the scientific peer review programs in place for other 
government programs that are based on scientific and technical 
information. Thirdly, the recent changes to the process in accordance 
with the working group report should help to facilitate a more timely 
review process and, at the same, time one that ensures consistency and 
fairness in SEC recommendations.
    In summary, I believe that the Advisory Board with the assistance 
of our technical contractor is providing sound and fair independent 
reviews of groups proposed for inclusion in the Special Exposure Cohort 
as required by the EEOICPA legislation. I would be glad to answer any 
questions that you may have.

    Mr. Hostettler. Thank you, Dr. Melius.
    Mr. Miller.

    TESTIMONY OF RICHARD D. MILLER, SENIOR POLICY ANALYST, 
               GOVERNMENT ACCOUNTABILITY PROJECT

    Mr. Miller. Thank you, Mr. Chairman.
    My name is Richard Miller. I'm a Senior Policy Analyst for 
the Government Accountability Project. Among its functions, GAP 
oversees agencies implementing the Energy Employees 
Compensation Program and serves as an information hub for 
claimants, Congress, and the media. I have been privileged to 
work on the bipartisan effort that led to the enactment of this 
landmark legislation in 2000, which included testifying before 
this Subcommittee in September of 2000. We appreciate the 
opportunity to testify again before the Subcommittee and 
commend the Chairman of the Subcommittee for using the 
Committee's jurisdiction to conduct oversight hearings.
    Congressional investigations an numerous oversight reports 
have documented that radiation dose records of the Department 
of Energy and its vendors were, as you have stated earlier, 
nonexistent, incomplete, or unreliable. My written statement 
lists three examples in Nevada, Iowa, and Kentucky, but there 
are many more. In cases where there is inadequate monitoring, 
Congress wanted to ensure that nuclear weapons workers with 
cancer would not face an insurmountable burden of proof when 
they filed a claim. Congress put in place a relief valve that 
when it is not feasible to estimate dose with sufficient 
accuracy and there is a reasonable likelihood that the class of 
workers may have been endangered from radiation exposure. They 
have a remedy, and that is to be designated as a member of the 
special exposure cohort.
    There is a four-step process for evaluating these special 
exposure cohorts --with built-in checks and balances to ensure 
that all viewpoints are heard and that each SEC designation is 
scientifically credible. The Secretary of HHS, as you have 
heard, makes the final decision after receiving a 
recommendation from the Advisory Board.
    While there are six special exposure cohorts that have been 
approved to date, HHS has denied two and disqualified nearly 20 
at its earliest stages of review, and the inference in the OMB 
pass-back document that these are being handed out like candy 
simply is not supported by the record. We have seen in 
particular well-merited approvals at Mallinckrodt in St. Louis, 
at the Iowa Army Ammunition Plant in Burlington, Iowa, at Linde 
in Tonowanda, New York, and for the Y-12 Calutron workers in 
Oak Ridge, Tennessee.
    Today my testimony will primarily focus on the pass-back 
memo which outlines five options to reduce the number of SECs 
approved by the Secretary of HHS in order to, quote, contain 
the growth in benefit costs. OMB has proposed four actions in a 
document which, I note, was not included in the President's 
budget request. That came to light independently and 
separately, which if adopted constitute a direct attack on the 
checks and balances set forth in the law: One, by requiring the 
Secretary to secure through the Administration or White House-
led task force before making any approvals; by addressing this 
so-called, ``imbalance,'' in the Advisory Board; by adding yet 
another outside review on top of the Advisory Board's review; 
and by imposing unspecified constraints, quote-unquote, on the 
Advisory Board's audit contractor.
    These administrative changes if implemented in whole or in 
part will undermine the credibility of benefit determinations. 
By requiring Administration clearance, the OMB memo implies a 
lack of trust in the Secretary of HHS's decisions. 
Administration clearance--and I want to be very clear on this 
point. Administration clearance is not merely an innocent call 
for improved communications as we have heard from OMB and other 
witnesses here today. This is not about drawing sharper 
boundaries about SECs in order to more precisely adjudicate 
claims. It is a plan for preempting the legal authority and the 
professional judgment of the Secretary and the Advisory Board. 
The term ``imbalance'' and ``constraints'' that are discussed 
in this OMB memo must be defined. Frankly, the memo committed 
the error of candor by using those words.
    It appears that the OMB considers the advice provided by 
the President's Advisory Board and even perhaps its audit 
contractor as not trustworthy and that absent Administration 
intervention, unwarranted benefits are going to be paid out 
through special exposure cohorts, and yet, as we have heard, 
the Advisory Board is required by law to have a balance of 
medical, scientific, and worker perspectives and as well there 
has to be a balance proscribed under the Federal Advisory 
Committee Act.
    It's with that in mind that we note that two members of the 
Advisory Board were removed without cause in January of 2006, 
and three members were appointed, including two with potential 
conflicts of interest. That too is troubling.
    Given the OMB's goal of reducing special group cohort 
approvals as a way to cut benefit costs, the call to address 
any imbalances in the Advisory Board looks like a prescription 
to add new Board members with a philosophical tilt against 
special cohorts. Indeed, the Office of Management and Budget 
memo commends the Employment Standards Administration within 
the Labor Department for bringing concerns about SEC benefits 
costs to the attention of OMB. DOL's fingerprints on this OMB 
memo has regrettably stained its reputation as a dispassionate 
claims adjudicator.
    The Energy Employee Compensation Act was an apology for 
putting defense nuclear workers in harm's way and not 
adequately protecting them, and in turn these workers expect 
that the Government will honor its commitment to provide fair 
compensation decisions. Yet this OMB memo suggests that they, 
the Administration, are intent on dishonoring this commitment. 
It rubs salt in the wounds of these patriotic Cold War workers 
to hear that the goal is to constrain benefit costs.
    There are six new special exposure cohort petitions 
currently under evaluation, and this pass-back memo hangs 
ominously over these and future SEC evaluations. If HHS is 
directed to deny SECs as a way to reduce benefits costs, even 
though there are inadequate records to make a fair compensation 
decision, then these workers and their families have every 
reason to be cynical.
    In conclusion, unless the OMB's options outlined in this 
pass-back memo are disavowed at the highest levels of the 
Administration, these Cold War veterans can justifiably 
question whether each SEC denial is a product of OMB budget-
cutting and political meddling rather than a scientifically-
credible decision. It is imperative that we restore the 
program's credibility.
    I thank you for your time.
    [The prepared statement of Mr. Miller follows:]

                Prepared Statement of Richard D. Miller




    Mr. Hostettler. Thank you, Mr. Miller.
    At this time, we will move to questions from the 
Subcommittee.
    First of all, Mr. Hallmark, I'd like to ask you about the 
issue of balance. Do you believe that the Advisory Board is 
unbalanced? According to the OMB memo, there is a desire for 
there to be balance on the Advisory Board, and what type of 
balance would be required to assist in what the OMB seems to 
say should be the mission of containing costs for the program?
    Mr. Hallmark. Well, Mr. Chairman, as I said, cost 
containment is not part of any strategy or involvement that the 
Department of Labor has had in this process. I would say, 
however, that the Board is a balanced FACA committee in the 
sense that it's representing different groups involved in the 
activity; however, from our perspective, we have seen 
indications, especially in terms of the presentations of the 
Board's contractor, of a not complete adherence to the 
instructions given by Congress to the Board, that is, that the 
Congress gave the Board the responsibility to evaluate the 
``scientific validity and quality'' of dose reconstruction 
activities.
    It appears from our hearing and reading of the activities 
of the Board and the contractor that the criterion has been 
shifted to be one of ``can dose reconstructions become more 
overestimated than they started out to be.'' To back up a 
little bit, the statute rightly and NIOSH I think correctly 
makes every effort to give the benefit of the doubt to the 
worker and to provide where estimation ranges are open, to 
provide as much overestimation as is appropriate to make sure 
that the individual is getting a fair shake and that obstacles 
are removed. That's the baseline.
    The discussion that has occurred in the Board and 
especially from the contractor has been almost exclusively 
focused on whether or not further examples or further additions 
of overestimation can be added to that process. There has been 
almost no discussion about whether any of the dose 
reconstructions under review are, in fact, overestimates beyond 
plausibility that yield an outcome that is not what was 
intended by Congress.
    That's the balance issue that I would say needs to be 
addressed with respect to the Board.
    Mr. Hostettler. I appreciate the fact that you point out 
that cost containment was not something that the law called for 
and that DOL does not recognize that, but it's my understanding 
that the pass-back memo actually commends a DOL employee for 
potentially large expansion of the benefits due to special 
exposure cohorts. Who at the Department at Labor would have 
suggested the impetus for the OMB pass-back memo regarding the 
expansion of benefits and the cost containment? Because either 
the Department of Labor was not thinking about that issue or 
they were asked by OMB, but somehow OMB took what DOL gave them 
and created a discussion memo talking about containing costs.
    Who at DOL gave that input to OMB?
    Mr. Hallmark. Well, I am the face of DOL with regard to 
this program with respect to the interfaces with NIOSH, the 
Department of Energy, OMB, and others. So if there's a party 
who is involved in those kind of discussions, and as I said, 
the Department of Labor believes close coordination and 
discussion is appropriate in this multi-department entity and 
we have pursued that. It wouldn't be appropriate for me to 
discuss the internal discussions about budget, which are always 
outside of the general discussion, but that's part of my role.
    Mr. Hostettler. All right. Thank you.
    Dr. Howard, what do you make of the five options that are 
listed in the OMB document? OMD's suggestion that, first of 
all, the SEC, special exposure cohort, designation should be 
okayed by the Administration as opposed to the Secretary of HHS 
would tend to inform us that somebody at OMB or the 
Administration does not trust the Secretary to make this 
determination. I don't want to put words in your mouth, but 
that's kind of what it looks like at its surface.
    Is there some reason for us to believe that?
    Dr. Howard. I don't think so, Mr. Chairman. We're very 
proud of our Secretary, Secretary Michael Leavitt, and he does 
an excellent job with understanding our program and receiving 
our information that comes to us through this process that we 
start out with the petitioner, our evaluation, the Board 
presentation, the Board deliberation, their contractor's 
review, their vote, and finally it goes through me to the 
Secretary.
    I think it's fair to say that in terms of the balances 
issue, one could say that balance, like beauty, is sometimes in 
the eye of the beholder, and we try very hard at NIOSH as the 
primary source to receive nominations that eventually work 
their way through our department to the White House that makes 
the final decision about individuals. That's an open process. 
We invite anyone who has a nominee that fits in to these three 
categories that are statutorily based--the medical, scientific, 
and worker perspectives--invite them to give us those names and 
to vet them and bring them through the process.
    So we think, as Dr. Melius mentioned, even to the point of 
nomination of members to the Board, we want to be as 
transparent as possible.
    Despite having those folks in those capacities, when you 
get on Board, as we all are, we're biased in various ways, and 
I think Mr. Miller referred to conflict of interest issues. 
We're trying to have the state-of-the-art conflict of interest 
for us, for our contractors, for the Board members. So we hope 
that despite whatever biases members bring to the Board, that 
they work hard on these very difficult scientific issues, and 
for the last 4 years that I've been in this program, I really 
have to applaud each of them for doing that. They spend 
countless hours going through extremely technical material, and 
I think they are personally very assiduously aware of their own 
biases and controlling that and looking at the science.
    So I would say that we're trying very hard to achieve 
balance in every way possible.
    Mr. Hostettler. Have you been informed, has NIOSH or the 
department been informed, in general of this notion of a two-
track approval of SEC designation?
    Dr. Howard. Well, we are aware of that language. I would 
just say from the transactional process point of view, we have 
some very stringent statutory time lines that we honor, we try 
to honor in every way possible. We're not perfect in that, but 
we certainly try very hard. I don't see how there is room time-
wise for any other kind of review, even if such a review was 
thought to be in the best interest of the Government. It's a 
very tight process. So I don't see how it's practicable.
    Mr. Hostettler. Thank you. I agree, Dr. Howard.
    Then one more question. My clock hasn't been up, and so we 
will officially designate my time as 5 minutes.
    Dr. Melius, you referred to the OMB document as creating 
changes in the program, and do you believe that the document 
actually creates substantive changes in the program if the 
document is enforced, executed, if the provisions of the 
document are enforced?
    Dr. Melius. It certainly would, because it would change the 
whole process of the program, would make large parts of the 
process closed because it would be done within the 
Administration, not as part of an open review process, and as 
well as--you know, again, it's hard to tell what's meant by 
balance of the Board, but one would then also change the Board. 
So the whole workings of the program be changed, but 
particularly the lack of transparency to the process for what I 
see to be very little gain. I mean, we have I think a strong 
peer review. We continue to work to make it stronger, a 
scientific review. As I said, we have an excellent contractor 
as well as Board members, and I think it's important to clarify 
our contractor doesn't tell us what to do. We tell the 
contractor what to do.
    The reviews that they do are under our direction. The 
reports that are submitted to the Secretary and the final 
recommendations are made by the Board members, not by our 
contractor. We asked our contractor to look at issues such as 
the benefit of the doubt or claimant favorability. That was one 
of the criteria they are supposed to look at in doing the 
reviews. So we have in essence tried to have a full and open 
review process, and I think the proposed changes would just 
change that so drastically. As I said in my testimony, I think 
it would very seriously undermine the whole credibility of the 
program, which is critical.
    Mr. Hostettler. Thank you, Dr. Melius.
    The Chair recognizes the gentlelady from the Texas, Ms. 
Jackson, for questions.
    Ms. Jackson Lee. Thank you again, Mr. Chairman, and again I 
offer my appreciation.
    Let me say to the witnesses that I found your testimony to 
a one very instructive. Forgive me if I have to leave after 
this first line of questioning inasmuch as another Committee 
will be having a classified briefing in a few minutes, and so I 
will have to depart. I know that we'll have a follow-up meeting 
and hearing where other officials will provide information as 
well.
    Let me ask, Mr. Hallmark, is the Department of Labor 
attempting to cut the benefits of these potential victims?
    Mr. Hallmark. No, we are not. As I said in my comments 
earlier, Ms. Jackson Lee, the department's interest is to make 
sure that the program is, in fact, fair and consistent. The 
benefits that we pay are mandatory entitlement benefits. They 
are adjudicated case by case, and the Treasury fills our 
funding to make sure that the moneys are there to pay whatever 
cases we approve.
    We're not in business of trying to change the outcome in 
that respect, nor do we have particular views of a particular 
class being included or not included as an SEC.
    Ms. Jackson Lee. In the course of attempting to, and I put 
this in quotes, fix the Advisory Board or fix the problem, did 
OMB engage the Department of Labor in your assessment of the 
program or your assessment of their potential changes? Did you 
have discussions with OMB?
    Mr. Hallmark. As I said earlier, the discussions within the 
realm of putting together the President's budget are not open 
to the public, obviously, but we do talk about costs and 
streams of benefits and projections and so on as a normal 
discussion that goes on back and forth between Federal agencies 
and OMB each year.
    Ms. Jackson Lee. Well, would you have made recommendations 
for this program to be cut?
    Mr. Hallmark. No. Are you referring, perhaps, to the 
projections in the 2007 budget?
    Ms. Jackson Lee. I am and the fact that the program is 
perceived as being costly and that some of the procedural 
changes that OMB may be offering go more to saving money than 
to the substance of the program. So in the course of having to 
report on your budget, would DOL have inadvertently recommended 
that this program be cut?
    Mr. Hallmark. No, not at all.
    Ms. Jackson Lee. Inadvertently or advertently.
    Mr. Hallmark. No. I don't think that happened at all. The 
issue is with respect to projected budget outlays that are in 
the President's 2007 budget. These are estimates that we make 
based on our experience with the program to date and our 
understanding of the flow of cases through the pipeline. There 
is a reduction between 2007 and 2006 because we estimated a 
large increase in 2006, over $1.5 billion being paid out this 
year with a reduction back to a more normal level in 2007. That 
had nothing to do with any assumption of changes to the program 
or policy implications at all. It was strictly based on our 
best understanding of how cases would be adjudicated in that 
time period.
    Ms. Jackson Lee. So there was no advocacy on your part to 
eliminate and/or downsize the program?
    Mr. Hallmark. Not at all, no. As I said, we want to see 
this program work as it was intended by Congress to work, and 
that's been our goal right from the beginning.
    Ms. Jackson Lee. Thank you.
    Dr. Melius, thank you for your presentation. You are a 
Board member at this point. What is your tenure, sir? When were 
you appointed?
    Dr. Melius. I was appointed as part of the original Board. 
So I think we started meeting in 2002.
    Ms. Jackson Lee. And do you have a sense of when your term 
ends?
    Dr. Melius. My term is actually up, I believe. There have 
been delays in--we're continuing to serve. There are delays in 
the process, and we will see what happens. I don't know what 
will happen.
    Ms. Jackson Lee. And the Board is comprised of how many 
members?
    Dr. Melius. Currently, 12 members, and with the three 
additional members, I believe that brings us up to 13.
    Ms. Jackson Lee. And are they all filled at this point?
    Dr. Melius. They are all filled. We have three new Board 
members that have--as I mentioned before, two of the Board 
members were dismissed that had served really since the 
beginning, essentially, and then three new Board members were 
added. Those Board members will officially start serving at our 
next meeting, I believe, in April.
    Ms. Jackson Lee. Obviously you may not be able to speak to 
the new Board members, but the distinguished members who 
served, were they competent and concerned about the program to 
your understanding or maybe what you saw of their work?
    Dr. Melius. Yes. They've all spent a lot of hours, a lot of 
time devoted to this program. They represent--it's a diverse 
group. We represent a range of backgrounds, a range of views on 
a number of issues. We have struggled and had disagreements on 
certain issues, and we have worked very hard to try to reach 
consensus. I think most of our votes on issues, such as SEC 
recommendations, have been not unanimous, but close to 
unanimous. We work hard to reach agreement, to reach a complete 
understanding of the issues and so forth. We all have different 
backgrounds. I think that's helpful to the process.
    Ms. Jackson Lee. You have offered some very important 
testimony.
    Mr. Chairman, I hope that we take note of Dr. Melius, who I 
understand is an M.D. and a Ph.D. and seems to be competent to 
me, and we should track whether or not after he leaves this 
room today he gets a very open-ended letter thanking him for 
his service. I will be outraged and I would like us to be 
collectively outraged, and I would like to insist upon his 
ability to continue his work. The fact that he has extended 
himself to come to this hearing should be noted.
    Dr. Melius, you mentioned secrecy, and obviously that's not 
what we went intend to do with the Advisory Board, but on the 
other hand seeks to ensure fairness. The outside contractor was 
to add to that fairness and transparency. So, in essence, what 
could we possibly be fixing with the new options that seem to 
now being recommended? And let me share them with you: 
requiring the Administration clearance for all special exposure 
cohort designations, requiring an expedited review to outside 
experts, addressing any imbalance in membership of the 
President's Advisory Board on Radiation Worker Health, and 
imposing constraints on the Advisory Board's audit contractor.
    What help does that give the decision-making and the 
ability for petitions or claimants to be heard?
    Dr. Melius. As I said in my testimony, I think we have a 
good sound process in place. The changes proposed, I do not 
think will add significantly to that. As Dr. Howard has pointed 
out, the only thing that some of those changes would add would 
be more time, and we already have a significant problem with 
this program, people waiting many years for their claims to be 
reviewed and adjudicated. We don't need to add that to the 
special exposure cohort process.
    So I can see no significant benefit to the proposed changes 
and I can see losses in terms of time and timeliness and losses 
in terms of credibility by not maintaining an open and 
transparent process.
    Ms. Jackson Lee. In the work that you do, is your work 
paperwork, or do you actually get to see the claimants?
    Dr. Melius. Our Advisory Board holds meetings. Dr. Howard 
was warning me. We actually have to be careful not to interact 
too much on specific claims.
    Ms. Jackson Lee. I understand.
    Dr. Melius. Because of legal issues that are beyond me, but 
they are real. However, we do hold all of our Advisory Board 
meetings, nearly all of them at sites that are near the 
Department of Energy sites. We have public meetings usually in 
the evening so it's more convenient for people. So we hear from 
many of the claimants and their families in that general 
session.
    Ms. Jackson Lee. And that's where I'm going. In the course 
of hearing from individuals, can you say that you have heard 
some very powerful stories, some very devastating stories, that 
most of what you've heard would err on the side of overwhelming 
as opposed to frivolous?
    Dr. Melius. Oh, absolutely. These are not frivolous claims. 
These are people with cancer. Often we've had people come 
before our Board who are literally dying of cancer and are 
obviously frustrated by the delays in adjudicating their 
claims. We also have survivor family members with some very 
heart-wrenching stories about what their father did in working 
at the facility and with their frustration at not being able to 
have some of that information understood or not understanding 
why it takes so long for their claims to be adjudicated, but 
these are all people that, again, who worked so hard and 
sacrificed so much for our country.
    I've spent 20 years working around these sites with doing 
studies and meeting with people, and people are all so 
dedicated and work so hard and again are just so frustrated by 
the secrecy, the denial, the initial denial that there was any 
problem, very happy that Congress recognized that something 
needed to be done, that they deserved compensation with this 
program, and some continued frustration with the fact that it 
takes time, that it's such a complicated and difficult program, 
and I think we need to keep that in mind as we work on this 
program and certainly in anything we do to try the fix this 
program.
    Ms. Jackson Lee. I'd like to thank you very much.
    If the Chairman would indulge me just to pose a question to 
Mr. Miller since he was so intimately involved in the 
constructing of this process, Mr. Miller, you mostly likely 
have been engaged in, I guess, partly the writing or the 
necessity of this legislation. One, do you have any knowledge 
of whether there's any whistle-blower protection for the Board 
or advisory members? Would that be a worthy addition? Do you 
know of the number of former representatives of unions that may 
be on the Board? And then, lastly, would you just comment for 
me your view as to whether or not the layering that seems to be 
offered by OMB is more stifling and stymieing the work of the 
Advisory Board or does it help the claimant in terms of making 
his or her case?
    Mr. Miller. Let me answer your questions, if I may, in 
reverse order.
    First, I'd just like to point out that the OMB pass-back 
memo is, in fact, part of the deliberative process that Mr. 
Hallmark was talking about and was not made public, and had it 
not been made public, we would not know that this was the real 
hidden hand influencing who is on the Board, what happened to 
the audit contractor, and that the White House was second-
guessing these decisions. So I'm very pleased, at least, that 
you held this hearing to air this out.
    I think the problems are fairly straightforward. If the 
Government is going to stack the deck by dictating to HHS that 
they must deny special cohorts as a way to save money, then the 
credibility of the program crumbles. Period. It's not a 
science-driven process. It's a budget-driven process, and what 
Mr. Hallmark said here, frankly, is that the Department of 
Labor is very concerned about this becoming a budget-driven 
process, and while they may profess that it is not, his 
fingerprints or that of his colleagues are all over this 
document.
    So I'm concerned that we have a process where 
scientifically-credible decisions are going to be subordinated 
to White House demands for budget cost constraints, and I think 
at the end OMB may have already started to play their hand in 
this process, as we've seen with the recent Board changes.
    Secondly, with respect to the question of whistle-blower 
status for Board members, you point out that perhaps Dr. Melius 
took some courage to appear here today since his tenure is up, 
as is it for three other members and that the question of, 
``balance'' as implied at least in this memo is that they need 
a balance of people who are going to put their elbow on the 
scale to deny benefits. The balance that I would hope the Board 
would have would be a six to six balance, which we have had 
over the previous three or 4 years, and in a genuinely balanced 
situation--and I have been to 32 of 34 open Board meetings--
what we witness is a debate going on amongst the various 
perspectives and viewpoints and expertise that actually forces 
consensus decisions. If one side dominates over the other, you 
rubber stamp decisions or you allow people's biases to run 
amuck. It is my concern that the two Board members that were 
dismissed without cause and replaced with three new members 
may, in fact, affect that balance going forward.
    Whether Advisory Board members need whistle-blower 
protection is a good question. I think everyone deserves and 
should have whistle-blower protection, particularly those who 
come to Congress and express their views and concerns. I 
believe there's a bill called the Paul Revere Act which 
specifically addresses that point.
    Having said that, I would hope that you all would continue 
your vigilance with respect to what happens to the Board 
members as we go forward, and I very much appreciate it. Chills 
went up my spine when I noted that you picked up on the risk 
and exposure that these Board members have.
    Thank you.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Might I just say that as I depart, I know there are other 
questions, that with all of our work that we have to do with 
the raging debate on immigration, I can't imagine that this is 
no less important, and I hope we'll follow this through to very 
end.
    And I yield back. Thank you.
    Mr. Hostettler. Thank you. The Chair recognizes the 
gentleman from California for questions.
    Mr. Gallegly. I thank for the Chairman for yielding, and I 
won't take my full 5 minutes because I know the witnesses 
probably wouldn't appreciate an hour and 20 minutes of my 
questions.
    In any event, I'd just like to preface my remarks. I'm sure 
some of you are aware that I have represented the folks in the 
21st, the 23rd, and the 24th Congressional District over the 
past 20 years which takes in the Santa Susana site, better 
known by many as Rockadine. In fact, my home has been within 
just a few miles of that site for the last 40 years.
    I'd like to pose a question to both or either or Dr. Howard 
or Mr. Hallmark going back to my opening statement. In fact, I 
made reference to the fact that this site study or side profile 
or the threshold studies had not been completed yet. Some of 
these claims, the 31 specifically had been returned from NIOSH 
with instructions, and I do understand. The two questions I 
have, number one, is it is my understanding that as of two 
o'clock this afternoon, the study was reported out on the web 
site after we had sent many letters and made many phone calls, 
and I found it interesting that it was posted at two o'clock 
this afternoon, yet it was dated February 22nd. Now, I know it 
takes a long time to get through that little wire, and I'm not 
really totally computer literate, but it seems like even the 
mail service is faster than that.
    So in any event, maybe you can explain that little detail, 
but more importantly than that is the issue of how you can 
explain 31 claims being sent back with instructions before you 
had a study to refer to. Either Mr. Hallmark or Dr. Howard.
    Dr. Howard. I guess I'm being volunteered to start, and I 
may have to get back to you on the record on the details of 
this, sir, but as I understand it, in terms of the claims that 
we had at NIOSH that were pulled, the issue was over the 
eligibility of the claimants. My understanding is that the site 
is quite large. Portion of it are covered. Portions of it are 
not covered. And it was not a data access problem. I've been 
told that the site contact that we have for data is excellent 
and quite capable and is giving us any data that we require to 
do individual dose reconstructions.
    That's my understanding right now, the information that I 
have with regard to this. Which portions of the site is 
covered, where the cases that we have, the employees that we 
have, which part of the site did they work at in terms of being 
eligible or not eligible, those are the issues that I think 
NIOSH was dealing with, and since those are not issues that we 
determine, those are more eligibility issues between DOE and 
DOL. That's my understanding.
    Mr. Gallegly. For the record then, just so I understand, 
the 31 claims that had been returned, the threshold studies or 
the site profile would have been irrelevant for those specific 
31 cases.
    Dr. Howard. I don't think we got to the science issues in 
those cases. We were still at the eligibility issues.
    Mr. Hallmark. John, if I can interrupt, I think it is 
possible and does happen often that even if the site profiles 
have not all been completed at a given site, there are some 
cases which on their face can be addressed without that further 
documentation. In other words, the case may be clearly 
compensable or clearly not compensable.
    Mr. Gallegly. Can you say specifically for the record that 
was the case in these 31 cases?
    Mr. Hallmark. I cannot say that for the record today.
    Mr. Gallegly. I would appreciate, Mr. Chairman, if we could 
make the request that the Committee direct DOL to get us a 
formal response on that, because I think it's a very legitimate 
question.
    Mr. Hallmark. It's a very legitimate question.
    Mr. Gallegly. And it's hard for me as a layperson to 
comprehend how you can make a final determination on something 
as important as this without the information necessary to make 
the adjudication, and so from a layman's standpoint, I ask that 
question, but that's one of the purposes of us being up here, 
to ask those type of questions.
    Mr. Hallmark, I know that my friend from Houston, Ms. 
Jackson Lee, made a reference to the funding and the 
differential between '06 and '07.
    Mr. Hallmark. Yes.
    Mr. Gallegly. And yet I'm still having a little problem 
with that, and maybe you can help me, because of the 434 cases 
that I'm aware of, only 10 have actually received any form of 
compensation through EEOICPA. I guess that's the way some 
pronounce it. In any event, you know what I mean.
    Mr. Hallmark. Yes.
    Mr. Gallegly. If only 10 of 434 have received compensation, 
it's hard for me to understand why the budget is being cut in 
the future, through the next year from the present year, when 
you have basically maybe 5 percent, if that, and 95 percent 
that haven't been adjudicated.
    Mr. Hallmark. First of all, you weren't in the room when I 
addressed the question earlier, I believe. The issue here with 
regard to the budget is we make projections of what we think 
the outlays are going to be.
    Mr. Gallegly. Pardon me, but I was in the room and I did 
hear you say that, and I did make reference to Ms. Jackson 
Lee's question was, but my question was I still wasn't clear 
because there wasn't the analogy of 10 of 434, and that's why 
I'd like to have that part addressed.
    Mr. Hallmark. The projections for the large increase in the 
pipeline were for 2006, that a very large number of cases would 
be cleared out of the pipeline both under Part B, because my 
good friend Dr. Howard's staff would be clearing a lot of the 
cases that are currently in their jurisdiction and would come 
to us and then we would be able to pay them at the Department 
of Labor. With respect to the new Part E, a large number of the 
cases which we inherited from the Department of Energy would be 
moving through our adjudication process and reaching fruition 
in 2006.
    So we projected that compared to a $600 million pay-out in 
'05, we would have a $1.5 billion paid out in '06, then falling 
back to, I believe, around $800 million in '07. That appears to 
be a reduction in the '07 context, but it's really just the 
projections as best we make them about how cases were going to 
come to fruition. Now, obviously, if they don't, if fewer cases 
get adjudicated in '06, then that 1.5 number will turn out to 
be too high and more cases will probably end up falling into 
the 2007, and whatever money is required to make these payments 
will be provided by the Treasury.
    Mr. Gallegly. Would it be safe for me then to say that my 
question is answered with great optimism on the part of the 
department, that the real answer to the question is we should 
be excited about the fact that it is going to be less next year 
than this year because it's your projection of those 434 cases, 
the overwhelming majority of them will be resolved this year 
even though only a pittance has been resolved in the past?
    Mr. Hallmark. Well, first of all, the 400 is a small 
percentage of the total value volume we're talking about.
    Mr. Gallegly. I understand that, but I would think that 
Santa Susana should be represented pretty much as well as the 
other sites, and, believe me, I'm as concerned about the other 
sites as I am this. I'm just more intimately involved in this 
with the sheer numbers, and I would think that that percentage 
would bear pretty much a fair relationship across the country.
    Mr. Hallmark. Well, I would actually have to take issue 
with that notion in the case of Santa Susana, because as Dr. 
Howard alluded, there was a fairly substantial delay in coming 
to closure on what the actual dimensions of coverage are at 
that site under this program. This had to do with the 
designation that was originally produced by the Department of 
Energy with respect to which parts of the Santa Susana/E-Tech 
Rocketdyne facility were, in fact, to be covered, and there was 
a lengthy period of trying to come to closure on that. A 
relatively narrow original designation has now been broadened 
to cover a much larger area. That decision was reached in 
September of 2005, but as a result of the interplay that went 
on before that, these cases, the cases that you're particularly 
concerned about, and I understand why that is, were not moving 
forward on the same track as at many other sites.
    So, in fact, while we will do our best, and I'm sure Dr. 
Howard's staff will do their best, to move them forward, now 
that those issues have been put behind us. They are behind the 
curve vis-a-vis a number of other facilities.
    Mr. Gallegly. Well, to say that I haven't been aware of 
what's gone on for the past 20 years there would be an 
understatement or an overstatement, however you want to refer 
to it, but I don't think there's been a meeting in the last at 
least 19 years where my staffers or myself, where someone 
hasn't been present; and prior to that, I happened to be Mayor 
of the city for 7 years of Simi Valley. So for 27 years, I have 
been very well connected with the problems of what we refer to 
as ``on the hill''.
    I hope that now that we've got some of these roadblocks or 
diversions behind us that there will be an extra effort to 
clear these files, because folks, these people are dying. There 
are people that are dying, and the clock means more to them 
than it does to maybe some other Federal projects that we might 
have out there, if it was a bridge or a highway or whatever, 
because these folks are living with a very short clock, and I 
would just appeal to you from a humanitarian standpoint to try 
to do the right thing. I've got a lot of folks that are 
directly physically affected by this, and I make that appeal to 
you.
    With that, Mr. Chairman, I yield back.
    Mr. Hostettler. I thank the gentleman. I'm going to have a 
few more questions, not many, but I would like to elaborate on 
the budgetary implications of the OMB memo vis-a-vis the actual 
budget, and to quote from the OMB memo, quote, ESA, the 
Employment Standards Administration is to be commended for 
identifying the potential for large expansion of EEOICPA Part B 
benefits with the designation of special exposure cohorts, or 
SEC, unquote. Now, as far as the budget is concerned, if there 
is a large expansion of Part B benefits without the creation of 
a new regime or significant changes to the program, I would 
think that the budget would reflect a, ``large expansion or 
increase in expenditures on the part of the EEOICPA Part B 
benefits.''
    But as I look at the actual budget appendix on page 733, 
the estimated expenditures for 2006 are $460 million and the 
budget estimation for 2007 is $277 million, a significant 
reduction in Part B benefits to be paid out, and we're 
discussing this memo in depth, at length. So if there hasn't 
been significant changes and the Department of Labor is 
suggesting to OMB that there's going to be to a large expansion 
of benefits, how are we--once again, without substantial 
changes to the program, how are we projecting significant 
reductions in the expenditure of Part B benefits?
    Mr. Hallmark. Mr. Chairman, the estimates for both Part B 
and Part E are based on our actuarial projections, primarily 
based on the experience to date with some input of information 
about known incoming changes in the process through the 
pipeline, as I've mentioned earlier. In the case of Part B as 
in the case of Part E, we projected an increase in '06. In the 
case of Part B, that was because we anticipated a larger number 
of cases coming back from NIOSH than in the past, and the 
anticipation was that that was then going to taper off in 2007. 
That's the reason for the number going somewhat down in 2007.
    We did not try to make the projections contingent upon the 
outcome of the SEC class determination process as that is in a 
sense unpredictable in terms of which classes might be acted 
upon at which timeframe. So those kinds of forecasts are not 
included in the projections that are in the President's budget.
    Mr. Hostettler. But these are mandatory expenditures. I 
guess my question is which one is right. Is the memo right? 
Because if they're mandatory expenditures, there would have to 
be the provision, if there was--if they're mandatory 
expenditures and they are being projected to be a large 
expansion in mandatory expenditures, I guess my question is, 
once again, which one is right? Is the budget right or is the 
identification of large expansion of Part B benefits right?
    Mr. Hallmark. Well, if there were a large number of broad 
SEC classes created, that would change the budget projections 
that we have presented.
    Mr. Hostettler. Actually, that would change the actual 
outlays.
    Mr. Hallmark. The projections are what they are, but it 
would change the outlays, and that would cause a differential 
vis-a-vis what we've projected.
    Mr. Hostettler. Right. And I guess what my question is, is 
that OMB creates the budget, that helps in the budget process, 
is being informed by DOL that there's going be a large 
expansion of benefits just as they would be from HHS with 
regard to a large expansion of prescription drug benefits for 
seniors through Part D. They would reflect that in their budget 
authority requested. Now, if instead of a third of seniors 
signing up for prescription drugs, two-thirds of seniors signed 
up, then the outlays would far outpace the B.A., that was 
projected, but if everyone recognized that probably two-thirds 
of seniors were going to sign up the B.A. request, the budget 
authority request, would reflect that. They would be 
consistent. I guess that's my question. I appreciate the 
response. It's just a little confusing.
    If I can go on to Mr. Miller. Let me ask you about the 
audit contractor's work. Is it your understanding, your 
experience, that the audit contractor's work product is 
satisfactory and useful to the process?
    Mr. Miller. Thank you, Mr. Chairman. The audit contractor's 
process is governed by the series of procedures that the 
Advisory Board had to put in place first, and so they work 
within a set of very standardized sets of questions. If they 
review a site profile, they look at data adequacy, compliance 
with regulations. Yes, they do look at questions of claimant 
favorability, because that's written into virtually every 
single NIOSH guidance document, and so to that extent, Mr. 
Hallmark is right. Where Mr. Hallmark, though, perhaps may be 
overstating the case is that this audit contractor has produced 
audits that I have reviewed, redacted, that show overestimates 
and they flag it when NIOSH or its dose reconstruction staff 
have overestimated cases. They have recently identified cases 
that were referenced at the most recent Advisory Board meeting 
where the improper procedures were used and it may have led to 
significant overestimates which may have actually even led to 
inappropriate compensation, although we don't know that because 
that has yet to be revealed; but the very fact that they put up 
a red flag and call it as they see no matter what is I think 
what you want to count on in a peer review process.
    The characterization I think that Mr. Hallmark made was 
both unfair and unsupported by the record. From a claimant's 
perspective, there is something very important about having 
this audit contractor. They do not bring to the table a set of 
baggage from having been at the Department of Energy creating 
and running those dosimetry programs, and they take a wire 
brush over the assumptions that NIOSH and its dose 
reconstruction contractor--which is a major DOE contractor--and 
they bring, they dig right into the assumptions and the roots 
and the adequacy of the data and the validity of what's being 
looked at.
    They ask the questions which, frankly, claimants lack the 
expertise to even dig into. And in the end, claimants if their 
claim is denied, don't have ability to say you're misestimating 
my dose unless it's something really obvious and glaring, and 
they're counting on the Advisory Board and a truly independent 
audit contractor to give credibility to the process that the 
problems are caught wholesale, that the procedures that are 
found get fixed across the Board. Claimants aren't bringing 
individual claims and saying I want to appeal to the Advisory 
Board. They're not allowed to do that, but the generic problems 
that have to get rooted out can't get rooted out there, 
particularly, as Dr. Howard was saying, they're very focused, I 
think recently, on conflict of interest. But as our testimony 
points out, many of the people writing the core guidance 
documents for this dose reconstruction program managed the 
health physics programs at DOE sites. They have significant 
professional conflicts of interest, and we have documented that 
this has tainted the quality of science coming out of this 
program, and the only way to effectively get at the taint and 
the quality of the science in this program is for there to be 
an effective check and balance. Without that, we all have to 
walk away, throw up our hands, and say it lacks credibility.
    And so for the OMB document and Mr. Hallmark to try to 
knock the knees out from underneath this check and balance, 
this peer review process, it is really quite troubling, because 
at the end of the day, if he prevails and the OMB prevails in 
this process, I'm not sure claimants are going to have much 
confidence at all that they have anybody who is really looking 
at it, looking at all these assumptions under a microscope and 
scrubbing them.
    Mr. Hallmark. Mr. Chairman, if I could respond.
    Mr. Hostettler. Yes, Mr. Hallmark.
    Mr. Hallmark. I'm sorry to interrupt, but since I've been 
taken issue with, I'd like to just respond a moment.
    I think it's fair to say that the SC&A folks have a clear 
statement of conflict of interest with respect to having 
responsibilities or having prior experience in dealing with DOE 
contractors as support for DOE contractors or working for DOE 
contractors. They do not, however, come to table with no 
baggage since many of the analysts for SC&A, in fact SC&A 
itself, have served as retainers for individuals who are suing 
either the Department of Energy or the United States Government 
or similar entities. So they're on the other side of the table.
    So Mr. Miller's view of balance in this respect is 
different than mine. I believe that conflict of interest 
requirements should apply on both sides of the house and that 
we should look to see whether individuals who are making 
judgments about a particular site have had involvement at that 
site on the DOE side or on the other side.
    Mr. Hostettler. I appreciate that. I think we received 
testimony from Dr. Melius that there was stringent conflict of 
interest provisions from the audit contractor that even 
exceeded those of the dose reconstruction contractor.
    Is that not accurate, Dr. Melius? Is that what I heard?
    Dr. Melius. Correct.
    Mr. Hallmark. I believe that the stringency is on the issue 
of making sure that the SC&A individuals have had no dealings 
whatever as support for DOE. I'm looking at the SC&A disclosure 
documents that are on their web site now, and the question that 
is answered is have they served as an expert witness in 
litigation defending workers' compensation or other radiation 
claims, and the answer is no. The answer, I think would be, 
yes, however, if the question were posed have you served as an 
expert witness in litigation for the plaintiff's side, and in 
my view, that kind of involvement is also a potential conflict 
of interest and has not been addressed, at least in the 
documents that SC&A has on its web site.
    Mr. Miller. Mr. Chairman, if I could respond.
    Mr. Hostettler. If I could just ask a question, and the 
question, I guess, is why isn't that question asked?
    Mr. Hallmark. The issue of plaintiff status?
    Mr. Hostettler. Yes.
    Mr. Hallmark. I assume because the answer would be yes, and 
that would raise the question of whether there was, in fact, a 
conflict of interest that should bar at least the participation 
of those individuals at particular sites where they have a 
current interest.
    Mr. Hostettler. I guess my question is isn't that the 
purpose of an audit contractor--to actually give a reason for 
the claimant community to believe that the process is 
transparent. I mean, if I were going to choose one, and I think 
actually Dr. Howard pointed out the very true fact of human 
nature that we're all going to come to the table with some 
perspective, some bent, and that's totally understandable. As a 
person who is a budget hawk, potentially sometimes to a fault, 
I would come to a lot of these issues looking at the dollar 
figures. This does not happen to be one of those and is far 
from it, but so we all come to the table with a certain 
perspective.
    So as an audit contractor, I would think we would want 
someone that if they had a bent, then they would have a bent 
toward the claimant community. I think we would recognize that. 
But the individual that is actually the entity that is actually 
doing the science, is the dose reconstruction contractor, and 
would be the one that we would want to have as little conflicts 
of interest because science, being somewhat familiar with it as 
I am, is not an issue of interest. It is an issue of science, 
and so we would want that standard, and then we would want this 
other entity that would be more like I said, because as Mr. 
Miller pointed out, the claimant community, by and large lay 
people, they want somebody that's looking into this situation, 
that's asking all the right questions, that are meddling, 
however you want to put it, and are keeping us all honest, 
including Congress, about this process.
    So you have a very good point, Mr. Hallmark. I understand 
that, and I would presume that the audit contractor would be 
bent that way, because, in fact, the Federal Government harmed 
these people knowingly, and so I would want somebody in the 
process that would be looking over our shoulder, because if we 
did it once, we might be predisposed to doing it again, 
collectively, all of us. All of us, not any one particular 
entity, not any one Administration, Congress, nobody, no one 
person.
    So anyway, the point is very well taken.
    Mr. Hallmark. If I could extend my remark for a moment, I 
think I want to repeat that NIOSH came into this process 
following congressional guidance to ensure that dose 
reconstruction was done on a basis that leaned over backwards 
to be favorable to the claimant, and I think they've done that 
from the very start of this program.
    I think the point that I'm trying to make with regard to 
the issue of balance is that if the Board's review of what 
NIOSH does only looks at one-half of the equation, could they 
lean further over. Then it raises the question about is there a 
point about which plausibility is lost? And if no one is really 
looking at plausibility, then there is no check and balance in 
the system. The system is going to be focused entirely on 
moving the bar to the side of further exaggeration or further 
overestimation.
    This is a non-adversarial program. So there is no party 
that has standing within the EEOICPA program to say, no, we 
object; that claim is too far; that's gone beyond plausibility. 
There is no employer interest, or the Department of Energy has 
no standing in this program to appeal or to argue. So if the 
Board and its contractor look only at one side of the equation, 
then the entire program will move that way, because I would 
also submit that science is in this case part of a discussion, 
and the science is open a range of possibilities, and NIOSH is 
reasonably guided by what their Board tells them, and I think 
the outcome of that can be other than balanced and objective in 
the long run if, in fact, there is only one equation, only one 
criterion being applied.
    I think that's the substance of what we're trying to say.
    Mr. Hostettler. Sure. I appreciate it.
    Dr. Melius, yes.
    Dr. Melius. I'll try to do this very briefly. Two points: 
One is the Board had long discussions on the conflict of 
interest issue and how to achieve a correct balance and this 
issue of which side people had appeared on in various 
situations, and we actually reached the same conclusion that 
you just stated--that we needed to pay special attention to the 
issue of people that had worked for the Department of Energy 
facilities giving the past history of what went on. The other 
issue was subordinate to that, not totally ignored, but it was 
subordinate to that.
    Secondly, to Mr. Hallmark's last statement, I would just 
reiterate that the Board does look at both sides of this, of 
these issues, that we're trying to reach a fair and balanced 
view of this. I shouldn't use the word ``balance'' probably 
anymore here, or imbalanced or whatever, but we want to come up 
with a fair assessment, and we have instructed our audit 
contractor to look at a range of issues, some of which would 
lead to overestimates, some which might lead to underestimates, 
and then we try to reach our conclusions based on what is the 
right balance dealing with that.
    I think it's important to note that much of the recent 
deliberation of the Board has involved special exposure cohorts 
where there large numbers of records are missing and going back 
in time, and without going into technical details, they are 
difficult to do. So NIOSH is often trying to make the best it 
can do if it is going to be able to do dose reconstruction 
based on very little data. So there really is a fundamental 
question. If you're only using a very small amount of data, is 
that fair to the claimant to do it in that way.
    So we may have looked a little bit more on the side of, 
well, how do you extrapolate from little data to a lot of data. 
You don't want to punish the person for there not being records 
of their exposures. So maybe much of the discussion has been 
more on that side, but overall, as Mr. Miller has pointed out, 
if you want to look through the reviews that the contractor has 
done on individual cases, there's a mix. Some cases 
overestimate. Sometimes underestimations of the exposures or 
whatever is being specifically looked at, and then we need to 
step back and say, Well, what's the right way of doing a fair 
overall estimate of that person's dose.
    So we ask the contractor to look at all sides and then 
report back to us.
    Mr. Hostettler. Thank you, Dr. Melius.
    And Mr. Miller.
    Mr. Miller. Mr. Chairman, thank you. I would just like to 
draw your attention to page 14 of our testimony where we cite 
five separate examples where the NIOSH through its contractor, 
Oak Ridge Associated Universities, has hired individuals who 
managed the health physics programs and in some cases served as 
expert witnesses defending workers' radiation compensation 
claims. For example, at the Idaho laboratories in Idaho, there 
is an individual who wrote the guidance document, the threshold 
document that Mr. Gallegly was talking about, that was used for 
evaluating compensation claims, and so in numerous, numerous 
cases defending compensation claims for radiation-related 
illness.
    If Mr. Hallmark wanted to apply his conflict of interest 
criteria to Oak Ridge Associated Universities, you would have 
an exodus out the door of health physicists and a paucity of 
individuals to work on those cases. So the question then 
becomes checks and balances, and it goes back to that earlier 
point. If the pool of health physicists out there is relatively 
shallow, which it is, and many of them come directly out of the 
revolving door of managing the health physics programs and at 
the same time bring their own perspectives and biases, 
including having testified on the record as an expert witness 
in defending these claims at these sites, and are writing the 
guidance documents, they themselves are caught between what 
they've said on the public record and what they're obligated to 
do for NIOSH, and the question is who technically is out there 
that's going to ask the pointed questions in a technically 
astute manner.
    If I can just give you one example, in the case of Paducah, 
Kentucky, NIOSH hired an individual who wrote an internal dose 
assessment report for Martin Marrieta who ran that plant. She 
cut and pasted her own previous work directly into the NIOSH 
site profile which had been found previously to incorrectly 
minimize exposures to the very isotopes of concern, and then 
NIOSH went through going through four tiers of review, rubber 
stamped it, sent it out the door, and adjudicated cases 
accordingly.
    Now, fortunately in this instance, Senator McConnell picked 
up on this and has asked NIOSH to review this again and they 
have agreed to do so, but I would only use this as an example 
of someone who brought her own bias to the table, cut and 
pasted her work in. It was incorrect to start with. It had been 
criticized in the open literature, and who is going to be out 
there that's going to be astute enough to catch that if you are 
relying on the same individuals in the system to serve as your 
audit contractor? You need a set of fresh eyes that aren't 
wedded to that system. That's what Sanford, Cohen brings.
    Mr. Hostettler. Thank you.
    Thank you, gentlemen. We are concluded. I want to thank you 
for your testimony and your appearance here today. This is a 
very difficult issue, and I commend you for the work that 
you're doing to resolve these differences.
    Our next hearing on this issue will be held next week on 
Thursday. We will continue in this. Your contributions have 
been extraordinary to the record on this. Congress had 
intentions when we originally passed the law to right this 
wrong that was done by the Federal Government so many years ago 
to these people. Once again, I want to thank you for your 
participation and the work.
    The Subcommittee being completed, we are adjourned.
    [Whereupon, at 6:01 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
Representative in Congress from the State of Texas, and Ranking Member, 
        Subcommittee on Immigration, Border Security, and Claims

    Today's hearing will focus on Subtitle B of the Energy Employees 
Occupational Illness Compensation Act. Subtitle B covers 3 types of 
occupational illness associated with making nuclear weapons, 
``cancer,'' where it can be shown that the cancer is at least as likely 
as not related to ionizing radiation exposure while employed at a 
nuclear weapons facility; ``chronic beryllium disease,'' and ``chronic 
silicosis.''
    Energy Department federal, contractor, and vendor employees who 
have contracted one of these illnesses, or their survivors, may be 
eligible for a lump sum of $150,000 and prospective medical benefits. 
The Act also provides for a $50,000 supplemental payment to uranium 
miners/millers, or their survivors, who were eligible to receive 
$100,000 under the Radiation Exposure Compensation Act.
    For radiation related cancer claims, the Department of Health and 
Human Services (HHS), through the National Institute for Occupational 
Safety and Health (NIOSH), is required to estimate a worker's radiation 
dose if dose records are available. However, during the earlier years 
of the nuclear weapons programs, especially between the 1940s and the 
1970s, some workers were not monitored and the monitoring that was done 
sometimes was inadequate. Also, some records from this period were lost 
or destroyed.
    The Act provides a remedy for cases where it is not feasible to 
estimate radiation doses with sufficient accuracy, and it is clear from 
job types that the workers' health may have been endangered by 
radiation exposure. Under these provisions, workers (or their unions) 
may petition to be administratively designated as a ``Special Exposure 
Cohort,'' which establishes an unrebuttable presumption that certain 
cancers are work related. Members of a Special Exposure Cohort are 
eligible for the $150,000 lump sum benefit if they have one of 22 
radiosensitive cancers and, in general, if they have worked at a 
covered facility for at least one year in a job that exposed them to 
radiation.
    The HHS Secretary, subject to a review and recommendation from the 
Advisory Board on Radiation and Worker Health, makes the ``Special 
Exposure Cohort'' designations. To date, the Secretary has denied 2 
Special Exposure Cohort petitions and approved 6 involving 
approximately 1,100 cases.
    The Administration recently declared its intention to reduce the 
number of Special Exposure Cohorts in a memorandum referred to as an, 
``Office of Management and Budget (OMB) passback.'' The passback 
provides for establishing a White House-led interagency work group ``to 
develop options for administrative procedures that will contain the 
growth in the cost of benefits provided by the program.''
    Options to be considered include requiring an administration 
clearance for all Special Exposure Cohort designations; requiring an 
expedited review by outside experts; addressing any imbalance in 
membership of the President's Advisory Board on Radiation and Worker 
Health; and imposing constraints on the Advisory Board's audit 
contractor.
    Currently, a Special Exposure Cohort petition goes through an 
initial evaluation by NIOSH, and its recommendation is then peer 
reviewed by the Advisory Board before it goes to the Secretary for a 
decision. These reviews are conducted in the open and on the record 
with an opportunity for input from experts and the petitioners.
    We need to be concerned about this system if it is broken or HHS is 
approving Special Exposure Cohort petitions that should be denied. We 
will hear testimony on that issue today.
    Five-and-a-half years have passed since the Energy Employees 
Occupational Illness Compensation Act was enacted, and the sick workers 
who were supposed to be served by its programs are dying. The 
Administration should be doing more to help these workers, not trying 
to make it more difficult for them to establish eligibility for 
compensation. It is too difficult already.
    These workers made a commitment to our country when the country 
needed them. Now, it is our turn to help them in their time of need.

                               __________

    Prepared Statement of John Mauro, Ph.D., CHP, Project Manager, 
                   S. Cohen & Associates (SC&A, Inc.)

    Chairman Hostettler, Ranking Member Jackson-Lee, and Members of the 
Subcommittee, thank you for the opportunity to submit testimony 
regarding the role my firm, S. Cohen & Associates (SC&A, Inc.), plays 
in supporting the critical independent advisory function of the 
Advisory Board on Radiation and Worker Health (the Board) under the 
Energy Employees Occupational Illness Compensation Program Act (the Act 
or EEOICPA).
    First, I would like to provide an overview of who we are, our role, 
and how we have approached our technical work for the Board over the 
past two years. This will be followed by a more detailed description of 
our contractual requirements and accomplishments. I will conclude by 
briefly offering our perspective on the value of the technical 
inquiries that we have made.
    SC&A is a small business providing professional services in the 
radiation sciences. The majority of our work over the past 25 years has 
been for government clients, including the Environmental Protection 
Agency, Nuclear Regulatory Commission, Centers for Disease Control and 
Prevention, and Defense Nuclear Facilities Safety Board. Our reputation 
has been built on our technical expertise and on the ethical standards 
that we have brought to our work on sensitive public issues, such as 
nuclear waste management, contaminated site cleanup, and the health 
risks of radiation. While this past experience is deep and diverse, it 
does not include radiation protection support for the Department of 
Energy or its operating contractors.

                SC&A CONTRACT ROLES AND RESPONSIBILITIES

    On October 14, 2003, a three-year, task order contract (200-2004-
03805) was executed between the Centers for Disease Control and 
Prevention (CDC) and SC&A. Under this contract, SC&A's role is to 
provide technical assistance to the Board in fulfilling its mandate 
under EEOICPA, which has amongst its charges the task of reviewing a 
reasonable sample of dose reconstructions for scientific validity and 
quality, assessing the methods and procedures for dose reconstruction, 
reviewing Special Exposure Cohort (SEC) petitions, and advising the 
Secretary of Health and Human Services (HHS) in these matters.
    All tasks under this contract are performed in accordance with 
Federal acquisition regulations and protocols mandated by the Federal 
Advisory Committee Act (FACA). In summary, the Board, in open session, 
identifies tasks that they would like SC&A to perform, and that are 
within SC&A's contractual statement of work. The NIOSH Designated 
Federal Official, who currently also serves as the NIOSH Project 
Officer for this contract, and the NIOSH Contracting Officer 
participate in this process. Once the Board agrees on the scope of a 
given task order, the Board, in cooperation with the NIOSH Project 
Officer and Contracting Officer, issues a Task Order Request for 
Proposal (TORP). In response to the TORP, SC&A prepares a proposal of 
work, which includes the task order scope of work, a budget, schedule, 
technical approach, and assigned personnel. The Board and the NIOSH 
Contracting Officer review SC&A's proposal, provide any comments or 
additional direction to SC&A, and SC&A submits a revised proposal, as 
required. During open session, the Board approves the proposal of work, 
and work begins.
    Before work on a task order can begin, SC&A is required to submit a 
quality assurance plan and a conflict of interest plan to implement 
controls over documents as needed in order to meet the requirements of 
the Privacy Act, and to prepare written technical procedures that must 
be reviewed and approved by the Board in open session. The procedures 
that SC&A has prepared to date flow directly from the Act and the 
regulations that implement the Act, namely 42 CFR Part 82, which deals 
with dose reconstructions, and 42 CFR Part 83, which deals with SEC 
petitions. Hence, everything we do is designed to assess the degree to 
which NIOSH work products under the Act meet the letter and intent of 
the Act and its implementing regulations.
    To date, SC&A has been authorized by the Board to perform a number 
of task orders (six in total, at a projected cost of $6.5 million 
through September 31, 2006; i.e., about $2 million per year), which can 
be conveniently grouped into four categories of services, as follows:

        1.  Review of the procedures, guidelines, and other ``tools'' 
        being used by NIOSH to perform dose reconstructions: To date, 
        SC&A has either reviewed or is in the process of reviewing a 
        total of about 60 NIOSH and NIOSH contractor procedures, and 
        approximately 30 workbooks. Workbooks are computer programs 
        that help NIOSH dose reconstructors perform their work in 
        accordance with the dose reconstruction procedures.

        2.  Review of site profiles: To date, SC&A has either reviewed 
        or is in the process of reviewing 15 site profiles pertaining 
        to specific Department of Energy (DOE) or Atomic Weapons 
        Employee (AWE) facilities. Site profiles are technical 
        documents that provide background information and technical 
        direction to dose reconstructors on how to go about 
        reconstructing doses for particular facilities.

        3.  Review of adjudicated dose reconstructions: To date, SC&A 
        has reviewed or is in the process of reviewing 80 dose 
        reconstructions performed by NIOSH. The dose reconstructions 
        performed by NIOSH are being used by the Department of Labor in 
        support of compensation decision-making under the Act.

        4.  Technical support to the Board in matters related to 
        Special Exposure Cohort petitions: To date, SC&A has been 
        requested by the Board to perform the following SEC-related 
        tasks: (1) prepare a report that presents a review of the 
        procedures developed by NIOSH for use in evaluating SEC 
        petitions, (2) prepare procedures to be used by SC&A and the 
        Board for reviewing SEC petitions and/or SEC evaluations 
        prepared by NIOSH, (3) review the Ames Laboratory SEC petition, 
        and (4) perform focused reviews of Board-selected issues 
        related to the Y-12 and Rocky Flats SEC petitions. We have also 
        provided technical support to the Board on the Mallinckrodt and 
        Iowa Army Ammunition Plant SEC petitions by evaluating the 
        relevance of certain issues raised in the site-profile review 
        process for determining the feasibility of dose reconstruction 
        under the SEC regulation (42 CFR Part 83).

    All of our work products are either delivered to designated Board 
members as preliminary draft reports, which are works in progress and 
are not distributed to the public, or are delivered to the full Board 
as draft reports that are immediately made available to the public. The 
draft reports contain SC&A findings resulting from our reviews of NIOSH 
procedures, guidelines, workbooks, site profiles, dose reconstructions, 
and SEC evaluation reports. The delivery of these reports triggers an 
issues-resolution process under the direction of a Board-designated 
working group. A working group consists of a chairperson, about three 
other Board members, representatives of NIOSH, and representatives of 
SC&A. The mandate of the working group is to discuss the technical 
details of SC&A findings with an aim toward resolution of the issues. 
Working group meetings often involve participation by interested 
members of the public, and the meetings are transcribed and are a part 
of a public record.
    The implementation of the working group concept has become 
increasingly more productive and efficient as experience has been 
gained and the process streamlined. SC&A's analyses have often been 
pivotal in the Board's findings on the NIOSH dose reconstruction 
program, including instances where over-conservatism in technical 
approach could lead to significant overestimates of radiation doses, 
and those where the NIOSH procedures being reviewed were not resolving 
uncertainties in favor of the claimant in a manner laid out in the 
regulation (42 CFR Part 82). SC&A has recognized the pragmatic approach 
that is incumbent upon NIOSH in balancing science with delivering 
defensible dose-reconstruction determinations. While SC&A takes this 
perspective into account in its reviews, we see our function as 
ensuring that the work done in dose reconstruction and SEC petition 
evaluation conforms to the standards of sound science and resolution of 
uncertainties that exist in favor of the claimant, as required by the 
regulations. We believe the results achieved to date speak for 
themselves and will be enumerated in more detail later in this 
statement.
    At full Board meetings, in open session, the Chairman of the 
working group reports progress on the issues-resolution process to the 
Board. If it appears that the working group has gone as far as it can 
in resolving issues, the Board holds an issues-resolution session, 
where each issue is discussed in open session, and the issue is closed 
out to the extent possible. Closeout of an issue involves a statement 
by the Board that either (1) SC&A withdraws its findings based on 
additional information provided by NIOSH, (2) NIOSH concurs with SC&A's 
findings and has taken action or plans to implement an action that 
resolves the issue to the satisfaction of the Board and its contractor, 
or (3) the issue remains unresolved to varying degrees, and there is no 
further action necessary by SC&A to participate in the resolution 
process for that issue.
    The important point to be made here is that all activities by the 
Board and its contractor are fully transparent and traceable back to 
the Act and its implementing regulations.

                 SC&A EVALUATIONS HAVE BEEN VALUE-ADDED

    To date (i.e., since the beginning of the project on October 14, 
2003), SC&A has delivered 32 reports to NIOSH and the Board at a cost 
of $3.7 million. While the detailed analyses contained in, and hence 
the length of, the reports is one indication of the amount of work that 
has gone into them, we have tried to review for this hearing some of 
the more important accomplishments in programmatic terms. The 10 most 
important of these, culled from a larger list, are described as 
follows:

         1.  SC&A's reviews of NIOSH and ORAUT dose reconstruction 
        procedures and dose reconstructions identified a substantial 
        number of technical errors and have entailed programmatic 
        corrections, procedural changes, and re-reviews of adjudicated 
        cases. For example, seventy-five percent of dose conversion 
        factors (DCFs) used to convert the readout on a personnel 
        dosimeter to the dose to the organ of concern were in error and 
        are being corrected. SC&A also identified an error in the 
        methods used to reconstruct the doses to lymph modes. NIOSH has 
        acknowledged this oversight, revised its procedures, and is 
        currently planning to review about 1,000 previously adjudicated 
        cases.

         2.  Our review of several site profiles revealed incomplete 
        radionuclide lists or inadequate consideration of radionuclide 
        concentrations, leading to serious underestimation of doses or 
        to incorrect conclusions about the feasibility of dose 
        reconstruction or both. For instance, for the Mallinckrodt 
        Chemical Works (MCW) facility, the site profile coverage of 
        several radionuclides--thorium-230, protactinium-231, and 
        actinium-227--was deficient. SC&A's assessment showed that in 
        many cases these radionuclides would be the largest 
        contributors to radiation dose. SC&A's analysis showed that the 
        methods proposed by NIOSH in the site profile would have led to 
        significant underestimates of radiation dose to many MCW 
        workers. Similarly, at Y-12, Savannah River Site, and other 
        sites, SC&A has identified radionuclides that were omitted from 
        consideration or inadequately considered. For instance, SC&A's 
        reviews showed that inadequate evaluation of trace 
        radionuclides in recycled uranium, including plutonium and 
        neptunium, would also lead to significant underestimates of 
        dose.

         3.  The methods adopted by NIOSH to reconstruct the doses for 
        early workers at the Iowa Army Ammunition Plant (IAAP) were 
        found by SC&A to be so overly conservative (i.e., result in 
        excessively high dose estimates) that they would have resulted 
        in inequities in compensation for post-1963 workers who did the 
        same work as workers in 1950s and early-1960s. The latter would 
        have been compensated due, in part, to an effort to protect 
        classified data, but the former would have been denied 
        compensation for the same cancers and the same work.

         4.  SC&A's review of several site profiles revealed that NIOSH 
        often has not paid adequate attention to the problem of data 
        integrity (i.e., can we trust the completeness, 
        representativeness, and accuracy of the data?). SC&A's work has 
        uncovered data integrity problems at Rocky Flats and the Nevada 
        Test Site. Those issues are currently undergoing investigation 
        by NIOSH.

         5.  SC&A's review and analysis of several of the site profiles 
        has shown that many of the concerns of claimants, site experts, 
        and members of the public had technical merit and had not been 
        given adequate consideration. Examples include incidents such 
        as cobbling of uranium rods at Bethlehem Steel, high-fired 
        plutonium oxides at Rocky Flats, and trace radionuclides, such 
        as protactinium-231 and actinium-227 at Mallinckrodt. More 
        recently, the identification of a data integrity problem in 
        part of the external dose record at the Nevada Test Site has 
        revealed a critical issue for NIOSH review, which had not been 
        identified in its site profile for that site.

         6.  SC&A's review of the Bethlehem Steel site profile 
        identified numerous deficiencies in the methods used for 
        performing dose reconstruction. This has resulted in 
        significant changes to the Bethlehem Steel site profile and the 
        direction being given by NIOSH to the dose reconstructors. The 
        degree to which these changes may affect adjudicated claims is 
        under review by NIOSH.

         7.  SC&A's review of the application of NIOSH's dose 
        reconstruction procedures revealed that in some cases these 
        procedures were inappropriately applied and resulted in large 
        overestimates of the reconstructed doses for some workers. 
        Specifically, NIOSH developed certain procedures, such as 
        ORAUT-OTIB-0004, for the express purpose of maximizing doses 
        for cases that were clearly non-compensable. This strategy of 
        deliberately overestimating doses for non-compensable cases is 
        appropriate as a means to expedite the dose reconstruction 
        process and is in accordance with the provisions of 42 CFR Part 
        82. However, SC&A identified cases where these procedures were 
        misapplied, resulting in potential inequities in compensation.

         8.  SC&A's reviews of site profiles and dose reconstructions 
        revealed the use of inappropriate technical assumptions that 
        result in scientifically implausible intakes of radionuclides. 
        In many instances, NIOSH employed standardized simplifying 
        assumptions in performing dose reconstructions as a means to 
        expedite the dose reconstruction process. However, in many 
        instances, these assumptions were inappropriate to the exposure 
        setting experienced by the worker. One example is the 
        application of a set of default radionuclides that apply to 
        specific classes of facilities (such as nuclear reactors), but 
        not to others (such as at non-reactor facilities). This results 
        in dose reconstructions that are without scientific basis.

         9.  SC&A's review of NIOSH's procedures for performing 
        claimant interviews indicates that there are inequities in the 
        interview process for survivor claimants. Specifically, it is 
        often not possible for survivor claimants to answer the 
        questions posed in an interview, resulting in a degree of 
        frustration on the part of the claimants. SC&A has suggested 
        procedures for remedying these inequities. The Board working 
        group, SC&A, and NIOSH are currently discussing this issue.

        10.  SC&A's review of site profiles (and complex-wide 
        procedures) revealed that the guidance contained therein is at 
        times without technical basis, often confusing, and has 
        resulted in erroneous dose reconstructions. For example, SC&A 
        identified recurring problems regarding neutron dosimetry and 
        protocols for assigning neutron doses. One facility that is 
        affected by these issues is Hanford. Also, NIOSH's procedures 
        are often confusing and contradictory, resulting in numerous 
        errors in dose reconstructions, especially in the assignment of 
        uncertainty in the reconstructed doses. NIOSH is remedying this 
        situation by revising its procedures and preparing computerized 
        workbooks that help to avoid these problems.

    The preceding illustrative findings are not presented to emphasize 
fault with NIOSH's program--the scale and scope of the agency's dose 
reconstruction mandate under EEOICPA is particularly daunting and 
technically complex. It is to underscore the integral role that SC&A 
has already played in support of the Board to bring important issues 
and deficiencies to the attention of NIOSH, so that suitable actions 
can be taken.

        SC&A ASSURES INDEPENDENCE AND EXPERTISE OF ITS WORKFORCE

    The worth and integrity of SC&A's technical work derives directly 
from our corporate ethic and the people that staff this project. As 
with our other contracts, SC&A has assigned only the most qualified 
professionals to this contract. These include specialists in internal 
and external radiation dosimetry, environmental and medical 
radiological programs, and nuclear facility operations and safety. We 
have strived for a diversity of expertise and experience, because we 
believe that gives us the capability to add true value to the highly 
technical assessments that NIOSH performs, and facilitates professional 
discourse on issues of science and technical judgment. We have also 
looked for individuals who have a proven talent for analyzing complex 
technical issues that require inquisitiveness and a probing mind to 
uncover errors and discrepancies. Finally, while we rigorously and 
openly apply internal conflict-of-interest requirements to preclude 
individual conflicts of interest, we have also been open to a diversity 
of backgrounds, including former DOE federal auditors, non-profit 
interests, and industry consultants, with the common denominator being 
professionals who do not have conflicts of interest, who are experts on 
the subject, and who are experienced in performing independent 
technical inquiries.
    Before closing, it is important to emphasize that the very nature 
of the support services SC&A provides to the government requires the 
highest level of oversight of conflict-of-interest issues. This is 
especially true for the services we are providing to the Board under 
this contract. SC&A's conflict-of-interest plan was submitted in final 
form in October 2004, and was approved by the Board. Fundamental 
provisions of the plan include that no individual can work on this 
project if (1) they currently work for NIOSH or (2) if they have ever 
defended the government against workers compensation claims. In 
addition, no SC&A team member that has worked in the past at a Federal 
facility can serve in a lead capacity on any task issued under this 
contract dealing with that facility. These and other conflict-of-
interest requirements are enforced by SC&A's COI Plan Administrator, 
and each member of the project team is required to submit a conflict-
of-interest disclosure statement that is maintained current and 
published on SC&A's web site (http://www.scainc.com/niosh--
disclosures.html).

                               CONCLUSION

    In closing, we believe the audit role that SC&A has provided in 
support of the Board for the EEOICPA program has proven effective and 
is becoming more influential and efficient as experience is gained by 
all parties. We believe our success to date results from our efforts to 
build program value by focusing on high priority findings, balancing 
scientific soundness with the practical constraints of a compensation 
program, and identifying instances of over-conservatism as well as 
deficiencies requiring more claimant favorability. We appreciate the 
imperative of avoiding conflicts of interest amongst our staff and 
organization, and have a very rigorous conflict-of-interest program in 
place. Moreover, we believe that the diversity of our team and its 
dedication to scientific rigor have resulted in the objective and 
careful analyses mandated by the charge of the Board. We also believe 
that the careful consideration that SC&A has given to claimant, site 
expert, and public comments has led to better science, fairer 
procedures for dose reconstruction, and higher confidence of the public 
in the program.
    As various SC&A reviews progress, we are addressing a number of 
issues that are common to many future DOE and AWE sites, thereby 
providing a generic means to achieve closure at multiple sites with an 
anticipated net savings in time and costs. Increasing efficiencies 
being realized due to experience gained by all parties--particularly 
more recently with SEC evaluations--are likewise leading to 
efficiencies that should translate into cost savings.
    We appreciate the opportunity to submit this testimony and to be a 
part of this important national program to compensate civilian veterans 
of the Cold War.

Responses of Shelby Hallmark, Director, Office of Workers Compensation 
Programs, U.S. Department of Labor, to post-hearing questions from the 
                      Honorable John N. Hostettler



 Responses of John Howard, M.D., M.P.H., Director, National Institute 
  for Occupational Safety and Health, Centers for Disease Control and 
   Prevention, U.S. Department of Health and Human Services, to post-
        hearing questions from the Honorable John N. Hostettler




 Responses of James Melius, M.D., DRPH, Administrator, New York State 
Laborers Health and Safety Trust Fund, Member of the Advisory Board on 
    Radiation and Worker Health, to post-hearing questions from the 
                      Honorable John N. Hostettler



   Responses of Richard D. Miller, Senior Policy Analyst, Government 
 Accountability Project, to post-hearing questions from the Honorable 
                           John N. Hostettler



    Letter from Sanford Cohen, President, S. Cohen Associates, Inc.