[House Hearing, 109 Congress]
[From the U.S. Government Publishing 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 II)

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

                                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

                               __________

                              MAY 4, 2006

                               __________

                           Serial No. 109-151

                               __________

         Printed for the use of the Committee on the Judiciary


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


                                 _____

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27-335 PDF              WASHINGTON : 2006
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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

                              ----------                              

                              MAY 4, 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.......................     2

                               WITNESSES

The Honorable Zach Wamp, a Representative in Congress from the 
  State of Tennessee
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
The Honorable Tom Udall, a Representative in Congress from the 
  State of New Mexico
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
The Honorable Doc Hastings, a Representative in Congress from the 
  State of Washington
  Oral Testimony.................................................    11
  Prepared Statement.............................................    14
The Honorable Mark Udall, a Representative in Congress from the 
  State of Colorado
  Oral Testimony.................................................    17
  Prepared Statement.............................................    19

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Maxine Waters, a 
  Representative in Congress from the State of California........    36
Sample report sent to claimants regarding their dose 
  reconstruction, submitted by the Honorable Tom Udall, a 
  Representative in Congress from the State of New Mexico........    37
``Web Site Disclosure Statement (Biosketch)'' of Roger B. Falk, 
  employee of Oak Ridge Associated Universities, submitted by the 
  Honorable Mark Udall, a Representative in Congress from the 
  State of Colorado..............................................    47


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

                              ----------                              


                         THURSDAY, MAY 4, 2006

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 11:35 a.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 second in a series of oversight 
hearings the Subcommittee will be holding on the Energy 
Employees Occupational Illness Compensation Program Act, or 
EEOICPA.
    When we announced the Subcommittee was holding the first 
EEOICPA hearing, several Members of Congress who have 
facilities covered under that act, contacted the Subcommittee 
to inquire whether there would be an opportunity for Member 
testimony about the program.
    There are facilities covered under this nuclear worker 
compensation program in 37 States and U.S. territories.
    This hearing was scheduled to give those Members that 
contacted the Subcommittee that opportunity to testify on 
behalf of their constituents who are subject to the processes 
of the program.
    The Members of Congress appearing today represent 
facilities across the country: Tennessee, New Mexico, Colorado 
and Washington State. All four represent facilities where a 
petition has been filed for workers to become members of the 
Special Exposure Cohort, SEC. If designated a SEC member, 
individuals do not have to go through dose reconstruction and 
will receive a $150,000 lump sum payment plus medical benefits 
if diagnosed with 1 of 22 radiosensitive cancers.
    At our last oversight hearing on this matter, an OMB 
``passback'' document was discussed that laid out five options 
for consideration with regard to the SEC petition process and 
review mechanisms. The purpose of those five options was to 
contain costs associated with the granting of new SEC 
petitions.
    It is anticipated that the Members of Congress testifying 
today may weigh in on the impact they believe implementation of 
those options would have on the claimant community in their 
districts, as well as across the country. As I indicated at our 
last hearing, hopefully, we will all be better educated about 
this program by the end of the hearing, as well as more clearly 
see the priority issues that need to be addressed in subsequent 
hearings.
    I am sure we will hear today about the problems 
consistently faced by claimants when filing a claim or petition 
under this program and assist the Congress in targeting the 
issues with the highest priority for reform.
    At this time, the Chair recognizes the Ranking Member from 
Texas, Ms. Jackson Lee, for 5 minutes for purposes of an 
opening statement.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. I am 
very delighted that we were able to work together on what I 
think is a very important hearing.
    It is important because Members are here because potential 
changes are directly impacting constituents that they 
represent. That is the basis of this process, to have the 
opportunity to listen to legislators in order to make the 
correct and appropriate decisions. This Committee has a 
responsibility, as the Subcommittee on Immigration and Claims.
    Let me thank Mr. Wamp of Tennessee, Mr. Udall of New 
Mexico, Mr. Hastings of Washington, and Mr. Udall of Colorado, 
for your interest, and of course, your insight on effectively 
helping to secure safety and responsible response by this 
Government to those who have been injured by this particular 
occupational illness.
    From the World War II Manhattan Project to the present, 
thousands of nuclear weapons workers have been employed to 
develop, build and test nuclear weapons. Many of them exposed 
to radiation day after day for years, and the vast majority of 
these workers were employed at facilities that were owned and 
operated under the direct regulatory control of the United 
States Government. The Energy Employees Occupational Illness 
Compensation Act of 2000 established a Federal remedy for these 
workers. If they have contracted radiation-related cancers, 
beryllium disease, or silicosis, they may be eligible for a 
lump sum payment of 150,000 in addition to prospective medical 
benefits.
    For radiation-related cancer claims the Department of 
Health and Human Services, through the National Institute of 
Occupational Safety and Health, is required to estimate a 
worker's radiation dose. It is not always possible, however, to 
estimate a worker's radiation dose. And 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 was inadequate. Also, some 
records have been lost or destroyed.
    So this act is an act that provides wholeness. It provides, 
if you will, a safety net, provides a remedy for cases where it 
is not feasible to estimate radiation doses, and it is clear 
from job types that the worker's health may have been in danger 
by radiation exposure.
    Workers may petition to be administratively designated as a 
Special Exposures Cohort, which establishes an unrebuttable 
presumption that certain cancers are work related. Many of the 
Special Exposure Cohort are eligible for benefits if they have 
one of 22 specified radiosensitive cancers, and in general if 
they have worked at a covered facility for at least 1 year in a 
job that exposed them to radiation. Special Exposure Cohort 
petition goes through an initial evaluation, and its 
recommendation is then reviewed by the Advisory Board before it 
goes to HHS Secretary for a decision. I think it is important 
to note, Mr. Chairman, that there are overlapping checks and 
balances. The Secretary makes a Special Exposure Cohort 
designation.
    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 passback.'' 
The passback recommends establishing a White House-led 
interagency work group to develop options for administrative 
procedures that will contain the growth in the cost and 
benefits provided by the program.
    At a previous hearing before this Subcommittee on March 
1st, 2006, Shelby Hallmark, the Director of Department Labor's 
compensation program, stated that cost containment is not a 
factor in deciding which claims to pay. But OMB has recommended 
the development of cost containment procedures.
    Mr. Chairman, I think when you do have this difference of 
opinion between executive representatives, it's important for 
the Congress to intercede and make a balanced judgment on what 
is best for the American people.
    I would point out also that specific options are mentioned 
in the passback, and these options reflect concern that the 
present system is biased in favor of granting Special Exposure 
Cohort Status. OMB recommends requiring Administration 
clearance of Special Exposure Cohort determination; addressing 
any imbalance in membership of President's Advisory Board on 
Radiation and Worker Health; requiring an expedited review by 
outside experts of SEC recommendations, requiring the agency to 
apply conflict of interest rules and constraints to the 
Advisory Board's contractor, and requiring that the agency 
demonstrate that its site profiles and other dose 
reconstruction guidance are balanced.
    If these problems are existing within the system for 
granting Special Exposure Cohort status, the problems should be 
identified and corrected under the present umbrella, under the 
present structure. The objective of the passback 
recommendations, however, is to implement cost containment 
methods, not to identify and correct problems. The Department 
of Labor has said there are no cost containment problems.
    I will close by pointing out that bias in favor of 
compensation is not a flaw in the system for granting benefits. 
The act intends for the workers to have the benefit of the 
doubt when their claims are being adjudicated because of the 
difficult process of ascertaining their present situation.
    I will just simply say to you, Mr. Chairman, that there are 
family members who also would like to testify. We hope to 
submit their testimony into the record, but I can say to you 
that there are devastating cases that we need to respond to.
    And I yield back.
    Mr. Hostettler. I thank the gentlelady, and without 
objection, the comments from family members, as well as others, 
can be entered into the record, and the record should also 
reflect that in the future hearings we will have claimants as 
well as family members testify before the Subcommittee.
    [The information referred to was not available at the time 
this hearing was printed.]
    Mr. Hostettler. Let me now turn to introductions of our 
panel of witnesses, a very distinguished panel of witnesses, I 
will say at the outset. As I was looking at my notes for the 
introduction, I did have to do some rearranging of my notes, in 
that my notes had Congressman Tom Udall and Congressman Mark 
Udall sitting next to each other, but I guess some action was 
taken on the part of the Subcommittee staff to separate the 
two. And I don't know what's behind that. [Laughter.]
    But I guess Congressman Doc Hastings will know more about 
that by the end of this hearing.
    Ms. Jackson Lee. He's the referee.
    Mr. Hostettler. That's right.
    Congressman Zach Wamp is currently serving his sixth term 
representing Tennessee's 3rd District. Before coming to 
Congress, the Congressman spent 12 years as a small business 
man and commercial real estate broker. He is a Chattanooga 
native, and he and his family still make Chattanooga their 
home.
    Congressman Wamp has three facilities in his district, the 
Y-12 National Security Complex, the Oak Ridge National Labs, 
and the now closed Oak Ridge K-25 Gaseous Diffusion Plant.
    An SEC petition and recommendation for a partial Special 
Cohort for some Y-12 workers is being evaluated by the Advisory 
Board on radiation and worker health, and several others are 
being evaluated by NIOSH. K-25 facility workers were designated 
SEC members when the law was enacted in 2000. Mr. Wamp was a 
cosponsor of EEOICPA and testified before the Subcommittee on 
the legislation in 2000. Congressman Wamp's district is also 
home to Oak Ridge Associated Universities, the primary 
contractor performing radiation dose reconstruction and 
evaluating Special Cohort petitions.
    Congressman Tom Udall is currently serving his fourth term 
in Congress, representing the 3rd District of New Mexico. Mr. 
Udall graduated from Prescott College, began his education in 
law at Cambridge University in England, and ultimately 
graduated with a juris doctor from the University of New Mexico 
School of Law. He then was the law clerk of Chief Justice 
Oliver Seth of the U.S. Tenth Circuit Court of Appeals, served 
as Assistant Attorney General in the Criminal Division, and was 
Chief Counsel to the Department of Health and Environment. Tom 
Udall served as New Mexico's Attorney General. He comes from 
the Udall family, who is famous for their public service. His 
father, Stewart Udall, was elected four times to Congress, and 
then was Secretary of the Interior for Presidents Kennedy and 
Johnson.
    Congressman Tom Udall represents Los Alamos National 
Laboratory, one of the Nation's two nuclear weapons 
laboratories. An SEC petition is pending at Los Alamos. Tom 
Udall was a cosponsor--and my notes got separate here--and 
testified before the Subcommittee in 2000.
    Congressman Doc Hastings represents the 4th District of 
Washington State. This is his sixth term in the U.S. House of 
Representatives. Before coming to Washington, Congressman 
Hastings, a native and current resident of Pasco, Washington, 
spent 8 years in the Washington State Legislature.
    Prior to his political career, he studies business 
administration at Columbia Basin College and at Central 
Washington University, and then ran his family's business, 
Columbia Basin Paper and Supply in Pasco.
    The Hanford facility is located in Congressman Hastings' 
district. An SEC petition is pending before NIOSH for 
individuals who worked at Hanford in the 1940's. The Hanford 
Reservation is also home to Pacific Northwest Laboratories.
    Congressman Mark Udall is serving his fourth representing 
Colorado's 2nd Congressional District. A graduate of Williams 
College, he began his professional career with the Colorado 
Outward Bound School as a course director and educator, and 
then as executive director.
    Mark Udall entered politics in 1997 as a representative in 
the Colorado State House. He then followed in his father's, 
``Mo'' Udall's footsteps, a Member of Congress for 30 years, by 
running for Congress.
    Congressman Mark Udall represents the individuals who 
worked at the Rocky Flats Plant facility. It was closed and 
cleanup finished in 2005. An SEC petition and a NIOSH 
recommendation on that petition are currently being evaluated 
by the Advisory Board on Radiation and Worker Health. Mr. Udall 
was a cosponsor of EEOICPA in 2000, and testified before the 
Subcommittee in 2000.
    Once again, gentlemen, thank you for your presence here. At 
this time we will turn to your testimony. As you all are 
painfully familiar with the 5-minute rule, if you can summarize 
your remarks within that 5 minutes, and without objection, your 
written testimony will be made a part of the record.
    The Chair recognizes Congressman Wamp from Tennessee.

 TESTIMONY OF ZACH WAMP, A REPRESENTATIVE IN CONGRESS FROM THE 
                       STATE OF TENNESSEE

    Mr. Wamp. Mr. Chairman, beyond the traditional gratitude to 
the Subcommittee, the Chairman and Ranking Member and all the 
Members, for the ability to appear here today, I just want to 
say to you, Mr. Chairman, rarely do you see a Subcommittee 
Chairman, particularly from a State who is not directly 
affected by a program like this, take such a personal interest, 
and I'm grateful that you have dug into the details here, and 
with the person to your immediate right, really learned a lot 
about this program that sometimes Members of Congress would not 
take the time to learn.
    Our Nation's nuclear workers and their families deserve 
fair and timely compensation for work-related illnesses. Having 
met with many of these workers over the years, my heart goes 
out to all those who have sacrificed their health for the 
defense of our country. I've worked hard with a bipartisan 
group in Congress to compensate workers who were harmed by 
their work at Oak Ridge and other DOE facilities. Our efforts 
paid off with the creation of EEOICPA.
    EEOICPA has been a tremendous success in many ways. 
According to the Department of Labor, more than $330 million in 
compensation has been paid to some 2,000 Tennessee workers or 
their families. Since the beginning of this program the Federal 
Government has also made more than $25 million in medical 
payments to sick workers in our State. We celebrate the 
successes in helping these families who sacrificed so much.
    But it is clear that not everyone Congress intended to be 
compensated by this program has been helped. Since passage of 
EEOICPA, my office has worked with hundreds of East Tennesseans 
to guide them through this new and complex payment system. The 
compensation program took the Department of Energy and the 
Department of Labor much too long to set up.
    Many former workers say the entire process still takes too 
long. My offices report that difficult cases often take several 
years to complete. Some claimants feel they can't get adequate 
updates from NIOSH, the National Institute for Occupational 
Safety and Health. Many of my constituents want to see changes 
made in the law.
    I have the highest regard for the work of the Oak Ridge 
Associated Universities, which is playing a key role in the 
compensation process. ORAU was awarded the contract to provide 
radiation dose reconstruction in support of the EEOICPA 
program. This organization has an exceptional track record of 
quality performance in its work.
    ORAU has completed almost 14,000 dose reconstructions to 
date, and approximately one in four of the dose reconstruction 
claims have qualified for compensation. To perform this work, 
ORAU has gathered nearly 2 million pages of records and 
developed more than 150 detailed documents about DOE 
facilities.
    While there have been some major challenges in performing 
this complex work, ORAU tells me that when there is a question 
about an exposure, the benefit of the doubt goes to the worker. 
When assumptions or estimates are necessary, they made to favor 
the claimant.
    ORAU's goal is to use the very best science currently 
available to produce dose reconstructions with sufficient 
accuracy to fairly determine compensation under the EEOICPA 
program.
    While parts of EEOICPA have been slow to evolve, it is my 
personal hope that the program will become an accurate and 
efficient tool to compensate workers for their illnesses. This 
was the intent of our original legislation.
    As your Subcommittee continues to investigate this process, 
I hope to work with you, Mr. Chairman, and the Members of this 
Subcommittee, and your staff, to provide you with good 
information from my constituents about their experiences to 
help you make changes to improve the program, so that no 
justified workers are left without proper compensation for 
their essential services to our Nation.
    I thank you again for bringing attention to this important 
issue, and for allowing me to testify here today, and I yield 
back.
    [The prepared statement of Mr. Wamp follows:]
  Prepared Statement of the Honorable Zach Wamp, a Representative in 
                  Congress from the State of Tennessee
    I would like to thank Chairman Hostetler, Ranking Member Jackson 
Lee and members of the subcommittee for inviting me to testify here 
today on this very important issue of the Energy Employees Occupational 
Illness Compensation Program Act (EEOICPA).
    Our nation's nuclear workers and their families deserve fair and 
timely compensation for work-related illnesses. Having met with many of 
these workers over the years, my heart goes out to all those who have 
sacrificed their health for the defense of this country. I have worked 
hard with a bipartisan group in Congress to compensate workers who were 
harmed by their work at Oak Ridge and other DOE facilities. Our efforts 
paid off with the creation of EEOICPA.
    EEOICPA has been a tremendous success in many ways. According to 
the Department of Labor, more than 330 million dollars in compensation 
has been paid to some 2,000 Tennessee workers or their families. Since 
the beginning of this program, the federal government has also made 
more than 25 million dollars in medical payments to sick workers in our 
state. We celebrate the successes in helping these families who 
sacrificed so much.
    But it is clear that not everyone Congress intended to be 
compensated by this program has been helped. Since passage of EEOICPA, 
my office has worked with hundreds of East Tennesseans to guide them 
through this new and complex payment system. The compensation program 
took the Department of Energy and the Department of Labor much too long 
to set up.
    Many former workers say the entire process still takes too long. My 
offices report that difficult cases often take several years to 
complete. And some claimants feel they can't get adequate updates from 
NIOSH, the National Institute for Occupational Safety and Health. Many 
of my constituents want to see changes made in the law.
    I have the highest regard for the work of the Oak Ridge Associated 
Universities which is playing a key role in the compensation process. 
ORAU was awarded the contract to provide radiation dose reconstruction 
in support of the EEOICPA program. This organization has an exceptional 
track record of quality performance in its work.
    ORAU has completed almost 14 thousand dose reconstructions to date 
and approximately one in four of the dose reconstruction claims have 
qualified for compensation. To perform this work, ORAU has gathered 
nearly two million pages of records and developed more than 150 
detailed documents about DOE facilities.
    While there have been some major challenges in performing this 
complex work, ORAU tells me that when there is a question about an 
exposure, the benefit of the doubt goes to the worker. When assumptions 
or estimates are necessary, they are made to favor the claimant.
    ORAU's goal is to use the very best science currently available to 
produce dose reconstructions with sufficient accuracy to fairly 
determine compensation under the EEOICPA program.
    While parts of EEOICPA have been slow to evolve, it is my personal 
hope that the program will become an accurate and efficient tool to 
compensate workers for their illnesses. This was the intent of our 
original legislation.
    As your subcommittee continues to investigate this process, I would 
hope to work with you, Mr. Chairman, the members of your subcommittee 
and your staff to provide you with good information from my 
constituents about their experiences to help you make changes to 
improve the program, so that no justified workers are left without 
proper compensation for their essential services to our nation.
    I thank you again for bringing attention to this important issue 
and for allowing me to testify here today.

    Mr. Hostettler. Thank you, Congressman Wamp.
    The Chair now recognizes Congressman Tom Udall for 5 
minutes.

 TESTIMONY OF TOM UDALL, A REPRESENTATIVE IN CONGRESS FROM THE 
                      STATE OF NEW MEXICO

    Mr. Tom Udall. Thank you, Mr. Chairman. We appreciate you 
holding this hearing, and very much appreciate being here 
today. I'd also like to thank you for your work on this issue, 
and appreciate Sheila Jackson Lee's interest in this issue 
also.
    My constituents and I know we have friends on this 
Committee. Mr. Chairman, I have submitted longer remarks for 
the record, but will highlight some of my points in the time 
allotted.
    I represent constituents who are sick and dying as a result 
of being exposed to harmful doses of radiation by working at 
Los Alamos National Laboratory. These men and women are, and 
have been, awaiting compensation. The creation of the Energy 
Employees Occupational Illness Program came with promises to 
provide timely, uniform and adequate compensation to these Cold 
War veterans.
    Unfortunately, Mr. Chairman, we are finding that these 
promises are not being met. In fact, at LANL, in the last 5\1/
2\ years since enactment of the EEOICPA, only 326 out of 800 
dose reconstruction cases have been completed. In many LANL 
cases, delays in receiving compensation stem from missing or 
misreported dosimetry measurements.
    As an example, I have with me an internal dose chart for 
one of my constituents that I would like to submit for the 
record. This constituent began working at LANL in 1948, and his 
file shows many exposures to plutonium, americium and other 
toxic substances. In this particular case, the information 
submitted by LANL to NIOSH for dose reconstruction, omits 
measurements for the year 1950. Looking at other documents in 
his file, however, shows that he experienced numerous exposures 
to radiation in 1950. This same internal dosimetry chart 
contains measurement estimates for the claimant through the 
year 1999. Sadly, the claimant died in 1982.
    It's my understanding that NIOSH may currently be using 
additional data, but this information has not been shared with 
any of my constituent claimants.
    Due to the unreliable nature of radiation dose records such 
as this example in these early years of LANL operations, a 
petition has been submitted to NIOSh for a Special Exposure 
Cohort. The SEC would cover all Los Alamos workers from 1944 to 
1971. I introduced legislation during the 108th Congress, and 
am planning to introduce again, calling for SEC status for LANL 
claimants.
    My bill is only one of several SEC measures proposed by 
many in Congress. Unfortunately, as we know, legislation and 
SEC petitions face an uphill battle. The uphill battle was 
apparent even before the OMB passback memo recently surfaced, 
discussing efforts to quote--and I quote from the memo--
``contain the growth and the cost of benefits provided by the 
program.''
    This is clearly contrary to the intention of the program 
and must be fought. By itself, the cost containment mentioned 
in the passback memo is alarming. Coupled with the recent 
actions in the President's Advisory Board on Radiation and 
Worker Health, it is downright disturbing.
    Recently, one of my constituents, Richard Espinoza, was 
removed from the Advisory Board without any apparent cause. I'm 
concerned that his removal, and one other Board member, has 
shifted the prospectus of the Board from one that was evenly 
balanced to one that is hostile to claimants.
    One other point I would like to touch on, Mr. Chairman, is 
the NIOSH contract with ORAU. Any Federal contract that 
balloons from 70 million to 200 million should be closely 
examined, and we commend the Committee for looking into this. 
Huge administrative costs for troubling results are 
inexcusable.
    Also, of the 19-member ORAU team responsible for the LANL 
site profile, 7 are current, and 3 are retired employees of 
LANL's radiation safety programs. 8 of these 10 employees do 
not have conflict of interest disclosure statements posted on 
the ORAU website. This is in contravention of ORAU's contract 
with NIOSH. The failure to police conflict of interest, and 
recycling those who defended these claims for the Government, 
is unacceptable.
    I'm eager to work with my colleagues to address these and 
other glaring deficiencies in the implementation of the 
EEOICPA. We must address them so that these courageous Cold War 
veterans can finally receive the relief and compensation they 
so rightly deserve.
    Thank you again for allowing me to testify, and I welcome 
any questions the Committee may have.
    [The prepared statement of Mr. Tom Udall follows:]
  Prepared Statement of the Honorable Tom Udall, a Representative in 
                 Congress from the State of New Mexico
    Mr. Chairman, thank you for inviting me to testify today on behalf 
of my constituents in New Mexico who are sick and dying while awaiting 
compensation as a result of their work at our nation's nuclear weapons 
facilities.
    My congressional district contains many DOE contractor facilities, 
the largest of which is the Los Alamos National Laboratory which has 
been in operation since 1942. Scientists at LANL developed the atomic 
bomb and today the lab serves as one of two major weapons design 
laboratories. I, along with my New Mexico colleague Senator Jeff 
Bingaman, hosted the first public hearings in New Mexico on this issue 
and worked to ensure that our constituents would be covered as part of 
the Energy Employees Occupational Illness Program Act of 2000. I 
supported passage of this legislation with the understanding that 
EEOICPA would provide ``timely, uniform, and adequate'' compensation to 
these Cold War veterans.
    Unfortunately, the agencies implementing this program have not 
fulfilled the promise of a ``timely, uniform and adequate'' program 
that was made to the cold war veterans of the national labs in New 
Mexico when the law was enacted. Progress has been slow for Subtitle E 
claims for those made ill by exposure to toxic substances at DOE 
facilities. In the 5\1/2\ years since enactment, only 326 out of 800 
dose reconstruction cases have been completed at LANL.
    At the time of EEOICPA's passage, DOE contractor employees and 
their families expected that the involvement of NIOSH, an agency of the 
Department of Health and Human Services, would carry out radiation dose 
reconstructions used for compensation decisions in a manner independent 
of the Department of Energy and its contractors. To maintain public 
confidence, Congress allowed only a minor role for DOE--mainly records 
recovery. The DOE's historically flawed radiation protection programs 
gave rise to the problem, and secrecy policies kept information 
concealed for decades.
    Under EEOICPA, DOE is explicitly excluded from the development of 
methods for dose reconstruction. DOE is supposed to be confined to the 
retrieval of information. However, NIOSH contracted with Oak Ridge 
Associated Universities (ORAU) and Battelle, two large DOE contractors 
to carry out dose reconstruction work, and evaluate SEC petitions. The 
ORAU Team is dominated by consultants and subcontractors entwined with 
DOE and site contractors. In some cases, these consultants have pre-
EEOICPA records of working as expert witnesses against state workers' 
compensation claimants at the very sites where they now perform dose 
reconstructions. Nowhere in the legislative history of EEOICPA did we 
envision turning this program back to the DOE site technicians who were 
part of the programs which necessitated passage of EEOICPA in the first 
place.
    My constituents have raised concerns about the integrity of data 
which is being provided to NIOSH. For example, at Los Alamos, data on 
internal doses of plutonium and americium which NIOSH uses in dose 
reconstruction comes from a data base that was assembled by the site 
contractor several years before enactment of EEOICPA. NIOSH has not 
systematically compared these numbers to primary historical 
documentation of contamination episodes, a process called verification 
and validation (or ``V and V''), despite the fact that the primary 
historical documentation is available at Los Alamos. Some of my 
constituents' dose reconstructions entailed little more than NIOSH 
``plugging and chugging'' the numbers provided by the site contractor. 
Other reports consist of a series of default assumptions made in the 
absence of recorded badge readings. Public confidence is eroded every 
time NIOSH reports a radiation dose that is simply cut and pasted from 
the site contractor's records.
    My offices in New Mexico stay busy assisting these EEOICPA 
claimants. In an effort to determine why so many of my constituents' 
claims are being denied, it appears that in many cases, dosimetry 
measurements are missing for entire years of employment and in other 
cases those measurements are misreported. I have with me an internal 
dose chart for one of my constituents who began his work at LANL in 
1948 and whose file contains many exposures to plutonium, americium and 
other toxic substances. I would like to submit this chart for the 
record if I may. In this particular case, the information submitted by 
LANL to NIOSH for dose reconstruction omits measurements for the year 
1950, although elsewhere in his file, there are documents indicating 
that he experienced numerous exposures to radiation in 1950. This same 
internal dosimetry chart contains measurements for the claimant through 
the year 1999. Unfortunately, the claimant died in 1982.
    This problem is further illustrated in another example from my 
congressional district. A New Mexico legislator, the late Ray Ruiz, 
grew up in Los Alamos and worked at the Lab as an ironworker in his 
younger days. His wife, Harriet Ruiz, who now serves in the state 
legislature, remembers a period of time in about 1964 when Ray 
accidentally received an internal dose of radiation at work. Some of 
the standard procedures for a worker who was ``hot'' in those days were 
followed--removal from radioactive work areas, periodic monitoring. At 
home, Harriet remembers how they were trying to get pregnant for a 
third time. Ray's sperm count, in turned out, was so low for him to be 
considered ``sterile,'' according to one of the doctors they visited. 
They gave birth to a healthy baby in 1966.
    Decades later, following Ray's passing due to asbestos-related 
cancer, Harriet obtained his medical file from the Lab. Curiously, the 
radiation dosimetry report shows ``all zeroes'' for that period of time 
in the mid-1960's. The file contains no documentation of the internal 
contamination episode.
    State Representative Ruiz is now spearheading a petition to NIOSH 
for a special exposure cohort to cover all Los Alamos workers from 1944 
to about 1971, due to the unreliable nature of radiation dose records 
in these early years of LANL operations.
    In addition, during the last Congress I introduced, and am planning 
to introduce again, legislation calling for an SEC status for LANL 
claimants, but my bill is one of several SEC measures proposed by 
members of Congress. My bill and the SEC filed by Harriett Ruiz are 
both headed for an uphill battle. I believe that any attempts by the 
White House to influence SEC designations by ``tilting'' the membership 
of the President's Advisory Board on Radiation and Worker Health or 
introducing additional bureaucratic layers in the approval process, 
would be devastating to future SEC petitions.
    I am very concerned about the current composition of the Advisory 
Board. 42 USC 7384(o)(a)(2) requires ``a balance of scientific, medical 
and worker perspectives.'' Recently, one of my constituents, Richard 
Espinosa, was removed from the Advisory Board without any apparent 
cause. The OMB Passback for the Department of Labor indicates a desire 
to contain the cost of benefits under EEOICPA. One of the mechanisms 
identified was to ``address any imbalance in the membership for the 
Advisory Board on Radiation and Worker Health.'' I do not know if this 
explains his removal, but we are troubled that of the eleven members 
currently on the board, only two are workers. A fair reading of the law 
would require 4 workers out of 12 members.
    A similar bias seems to exist on the 19-member ORAU team 
responsible for the LANL site profile. This team has a majority 
membership of seven current and three retired employees of LANL's 
radiation safety programs. Eight of these ten employees do not even 
have conflict of interest disclosure statements posted on the ORAU 
website, in contravention of ORAU's contract with NIOSH.
    In addition, the NIOSH contract with ORAU is of grave concern. Any 
federal contract that mushrooms from $70 million to $200 million should 
be closely examined, and we commend the Committee for looking into 
this. The draft site profile document for Los Alamos prepared by ORAU 
for NIOSH is riddled with omissions and erroneous assumptions. For 
example, the site profile lacks credibility on the simple issue of 
collective (``population'') doses incurred by the workforce in years 
past. For selected years during the 1970's and early 1990's, the 
collective doses in the site profile are 10% to 50% lower than those 
reported at the time by DOE in a widely available series of reports.
    In sum, huge administrative costs for troubling results are 
inexcusable. The failure to police conflicts of interest and recycling 
those who defended these claims for the government is unacceptable.
    To remedy these glaring deficiencies in the implementation of 
EEOICPA, I am eager to work with my fellow members of Congress to:

        1.  Restore balance to the Advisory Board on Radiation and 
        Worker Health by amending the Act to give Congress a role in 
        appointing members of the Board.

        2.  Ensure that the Advisory Board and its audit contractor 
        have the funds they need to do the job. DOL has proposed 
        cutting these funds in its FY 07 budget request.

        3.  Impose and enforce stringent conflict of interest criteria 
        on ORAU and its staff, and install leadership in NIOSH that 
        will restore the necessary expertise and independence to make 
        timely and credible decisions.

        4.  Adopt authorizing legislation to establish a technical 
        assistance program for citizens, workers and families seeking 
        to file petitions for Special Exposure Cohort status. Ordinary 
        citizens are at a serious disadvantage when it comes to 
        retaining technical expertise, and are ill equipped to command 
        the necessary expertise in health physics. Several universities 
        would be well-qualified to provide this technical assistance.

    I want to thank the Chairman and Ranking Member for holding this 
hearing today and for your efforts in conducting oversight on the 
Energy Employees Occupational Illness Compensation Program Act.
    I look forward to working with you and my fellow members of 
Congress as we explore ways to remedy these glaring deficiencies so 
that these courageous Cold War veterans can finally receive the relief 
and compensation they so rightly deserve.

    Mr. Hostettler. Thank you. Without objection, your paper 
will be submitted for the record.
    The Chair now recognizes Congressman Hastings for 5 
minutes.

 TESTIMONY OF DOC HASTINGS, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF WASHINGTON

    Mr. Hastings. Thank you very much. Chairman Hostettler and 
Ranking Member Jackson Lee and Members of the Committee, I 
appreciate your holding this hearing and your interest in 
making certain that this compensation program is working for 
those who had suffered illness due to their work at Federal 
nuclear site, including Hanford in my district.
    Let's not forget that the nuclear production work performed 
at these sites and at Hanford helped with World War II and the 
Cold War. We owe a huge debt of gratitude to those workers for 
their contributions to our Nation's security. As we do with our 
veterans, the Federal Government has a moral responsibility to 
aid in the care of those who have been made ill as a direct 
result of their work in service to our Nation.
    With my support, Congress enacted legislation in October of 
2000 to establish a compensation program for these workers, and 
I was pleased to stand with Energy Secretary Bill Richardson at 
the unveiling of the new Energy Employees Occupational Illness 
Compensation Program.
    However, nearly 5 years since this program began accepting 
claims in July of 2001, it has not lived up to the expectations 
of Congress and it has left thousands of workers and their 
families waiting and wondering. While a great deal of taxpayer 
money has been spent administering this program, results have 
been achieved for only a small percentage of the workers.
    A 2004 GAO report noted that during the first 30 months of 
the program, the Department of Energy had completely processed 
only 6 percent of the cases that had been filed under that part 
of the program. That means 94 percent of those who had filed a 
claim were left with no decision after 2\1/2\ years.
    The record was completely unacceptable, and as a result, 
Congress responded. With my support, the Department of Energy's 
portion of the program was transferred to the Department of 
Labor. Given the Labor Department's extensive experience with 
compensation claims, we felt this change would result in a 
quicker processing of workers' claims. Unfortunately, the 
progress is still slow, and thousands still wait.
    Today, nearly 6 years after the program was created, only 
10.5 percent of the claims filed nationally under this 
transferred portion of the program have been processed. And at 
Hanford, less than 10 percent of the cases have been processed.
    We all recognize that this is a complex program. It often 
involves going back in time some 60 years to try to assess 
radiation exposure with little records to guide decisions. Yet, 
this is no excuse.
    But to give a little perspective, consider this: In 1943, 
during the height of World War II, in the middle of a remote 
desert in central Washington State, and under the secrecy of 
the Manhattan Project, 51,000 workers labored to build the 
Hanford site infrastructure and the B Reactor, the world's 
first full-scale plutonium production reactor. It took 13 
months to construct the B Reactor, which produced the nuclear 
material for the first ever nuclear explosion, the Trinity test 
in New Mexico, and for the bomb that dropped on Nagasaki that 
helped win the Second World War.
    Mr. Chairman, if workers can build the world's first 
nuclear reactor in 13 months starting from scratch, surely the 
Federal Government should be capable of getting these claims 
processed after 5 years. Unfortunately, this has not been the 
case.
    The slow pace of claims processing is not the only concern. 
Mr. Chairman, as you have addressed in your previous hearings 
on this issue, the Office of Management and Budget has 
exchanged documents with the Department of Labor that are 
focused upon controlling cost. There is nothing wrong with 
controlling cost. But unfortunately, the focus is not on the 
cost associated with the Department's administration of the 
program or making the bureaucracy function more efficiently, 
where the emphasis ought to be, in my view, but rather on the 
payment of compensation to workers for their illness. This 
amounts to injecting a political, budgetary element into 
independent science and fact-based decisions on the payment of 
workers' claims.
    As thousands of workers still wait for answers on their 
claims, the Government should be looking for ways to make this 
program work better, not ways to cut corners and deny workers 
their due.
    These workers played a vital role in our Nation's defense 
for many years. They deserve a timely decision on their claim. 
They deserve a fair decision based on scientific facts. And if 
it is found that their illness has been caused by their work, 
then they deserve just compensation.
    Congress reacted to create this program. Congress acted 
when DOE failed in its implementation of this program. Our 
intent is clear and the law is clear: it is time for these 
claims to be reviewed and resolved in a timely manner without 
political interference and with a deep respect for the workers 
who made these contributions to our Nation at a very real cost 
to their health.
    Again, I want to thank the Committee for their interest, 
and holding this hearing and a series of later hearings on this 
issue, and I look forward to working with you on a resolution 
to some of the problems that we face.
    Thank you very much.
    [The prepared statement of Mr. Hastings follows:]
 Prepared Statement of the Honorable Doc Hastings, a Representative in 
                 Congress from the State of Washington






    Mr. Hostettler. Thank you, Congressman Hastings.
    Congressman Mark Udall, you are recognized

TESTIMONY OF MARK UDALL, A REPRESENTATIVE IN CONGRESS FROM THE 
                       STATE OF COLORADO

    Mr. Mark Udall. Thank you, Mr. Chairman. I too want to 
associate myself with my colleagues here on the panel, thanking 
you and Ranking Member Jackson Lee for your leadership on this 
very important issue.
    If I might, I'd turn my attention and the Subcommittee's 
attention to the situation at Rocky Flats and provide you with 
a little bit of background there.
    Many of the Coloradans who worked there, like those who 
worked at other nuclear weapons plants, were exposed to 
beryllium, radiation and other hazards, and as a result, many 
of them died and others are suffering. Along with this team 
here, I've worked, since I came to Congress, to bring a measure 
of justice to these Cold War veterans.
    And that is the purpose, as you heard, of the Energy 
Employees Occupational Illness Compensation Program. And with 
other Members on both sides of the aisle, I was an original 
sponsor of that legislation, and I'm very concerned about how 
it's being implemented.
    I have a particular concern about the deficiencies of the 
exposure records and other information regarding Rocky Flats 
workers who have filed claims for compensation.
    To address that problem, I've introduced legislation to 
include Rocky Flats workers under the act's Special Exposure 
Cohort. And with other members of the Colorado delegation, I've 
been seeking assurances from the Administration that their 
consideration will be given to a pending petition to include 
Rocky Flats workers in the cohort.
    So I was concerned when the President's latest budget said 
that the Administration expects a reduction of about $686 
million in compensation payments in fiscal year 2007, and my 
concern became alarm, again, along with all my fellow 
panelists, when I saw the OMB passback document, indicating the 
Administration plans to take administrative action to change 
the procedures for handling SEC petitions.
    Mr. Chairman, I think you put it well in a previous hearing 
when you said the OMB documents ``sets out a plan to base SEC 
status approvals on budget concerns rather than the scientific 
basis mandated by law.'' In my opinion, that hits the nail 
right on the head.
    The OMB document outlines an outrageous attempt to subvert 
congressional intent at the expense of Cold War veterans, who 
as you noted, ``had the least knowledge of how hazardous their 
work conditions really were because of the lack of exposure 
information in their cases.''
    On March 16th, Senator Ken Salazar wrote to Secretaries 
Chao and Leavitt and to Joshua Bolten, who was then the OMB 
Director. In the letter we said that we agreed with your 
assessment of the OMB document, Mr. Chairman, and asked for 
prompt answers to several specific questions about it.
    Number one, we want to know whether the working group 
mentioned in the OMB document had been established and whether 
some or all of the options mentioned in the document had been 
adopted. And two, we asked what steps the Administration would 
take to assure Congress and the public that it would fully 
comply with the letter and spirit of the compensation law. So 
far we have not received an answer from the Labor Department, 
from the Department of Health and Human Services, or from OMB.
    I think you know, and the Members of the Subcommittee know, 
Mr. Chairman, this is not just about money. It is about the 
Government's honor and the honor of our country. These nuclear 
weapons workers served America well, and honor demands that 
they be well served in return. if there are those who doubt it, 
I invite them to come to Colorado and meet with people like 
Charlie Wolf, who's one of those who worked out at Rocky Flats.
    When he heard about your hearings, Mr. Wolf sent me a 
letter that I've attached to this testimony. He's suffering 
from a brain tumor so serious that the average life expectancy 
of someone with that condition is 54 to 66 weeks. In his letter 
he says: ``I'm lucky that I'm a 3\1/2\-year survivor. There are 
many others that have cancer that are hoping for help from the 
Energy Compensation Act of 2000.''
    Mr. Wolf goes on to say: ``Instead of the Cold War heroes 
getting support, they now want to cut it even further. The 
workers did their job, and again, they're on the losing team.''
    Mr. Chairman and Members of the Subcommittee, I would like 
to be able to tell Mr. Wolf that he's wrong. I would like to be 
able to tell him that Congress meant what it said, and that we 
will insist that the law be implemented in the way we intended.
    I think and hope that all of you share that goal. If so, 
you can count on me to help in any way possible.
    Mr. Chairman, in conclusion, I have to tell you, as I saw 
this slow-walk process, my heart was really heavy, but when I 
heard that you were on the case, along with Ranking Member 
Jackson Lee, that load lifted off my heart. But we have a lot 
more work to do. There's no time to waste, as the rest of the 
panel has mentioned. So thank you so much for the leadership 
you are providing.
    [The prepared statement of Mr. Mark Udall follows:]
  Prepared Statement of the Honorable Mark Udall, a Representative in 
                  Congress from the State of Colorado










    Mr. Hostettler. Thank you, Congressman Udall, and you can 
assure Mr. Wolf that one way or another, it will get done.
    We'll turn now to questions to the panel. Congressman Wamp, 
with regard to the problems that have been brought to you by 
your constituents that you've mentioned, have you seen positive 
efforts made by the Government to resolve those problems? Can 
you give the Subcommittee some examples of any improvements 
where there doesn't appear to be adequate effort made to 
address your constituents' concerns on the other hand?
    Mr. Wamp. Well, even though I may have been one of the 
later people to come to this, really when Department of Labor 
took over the part of this program that they actually 
administer, I do think things sped up. So I think that while 
all along this was going to be a very problematic process, 
clearly, that has helped dramatically. I think, frankly, in 
East Tennessee, while there are really a few bad cases that we 
have to stay on top of, the overall story is pretty positive.
    And that's why I wanted to come today, to say that this GAO 
report, I think--or the audit that is pending, I encourage it. 
As a matter of fact, I hope it doesn't slow the process down. 
Some of these GAO reports take years, and we need to get this 
one done in weeks, and move quickly so that we can get to the 
bottom of this, and because these people's health and lives are 
hanging in the balance, but overall, in East Tennessee we got a 
pretty good story, Mr. Chairman.
    Mr. Hostettler. Thank you.
    Congressman Tom Udall, individuals who ran the dosimetry 
programs and/or were expert witnesses for DOE and its 
contractors in litigation, are now working for NIOSH providing 
input on key decisions and deciding the merits of SEC, Special 
Exposure Cohort, petitions, based on their certification of the 
validity of the data created under their watch. Should 
individuals from a site be restricted from working on claims or 
SEC petitions for that site? Does this issue warrant moving 
legislation to bar their substantive participation in any 
decisionmaking or involvement in the creation of the base 
information used in the decisionmaking process at their former 
site?
    Mr. Tom Udall. Mr. Chairman, I think that that is a very, 
very good question, and it goes right to the heart of what the 
problem is. In many cases you may have a situation where there 
are problems with the dosimetry, with the doses, with the 
reconstruction, and in order to be independent and in order to 
be fair, I think the thing that should be done is to have 
people part of the NIOSH process that are looking at this 
independently. I mean, that's the way to go, and I think it 
makes good sense to lay that out in terms of legislation.
    As I said in my testimony, there are people that are 
working on these that haven't even filed conflict of interest 
forms that are required by NIOSH, and so we don't even know if 
there are any conflicts there. So I would like to see as much 
independence as we could get in this process in terms of 
dealing with claims, and I'd be happy to work with the Chairman 
or the Ranking Member on legislation that would clarify the 
kinds of independence that we need.
    Mr. Hostettler. Thank you.
    Congressman Hastings, HHS asserts that if classified 
information must be used to adjudicate a claim, the information 
can be used to deny either a claim or a petition for SEC 
status, even though the claimant or petitioner's due process 
rights to an appeal are limited to the Government representing 
them in a closed hearing with the judge. The Government is 
also, in that closed hearing, defending their claim's denial, 
so they're on both sides of the issue.
    Do you think that this is a fair arrangement, and if not--
not only the arrangement about the Government pleading both 
sides of the case in a sense--but also in the use of classified 
information that the claimant would not have access to? Do you 
think that this is a fair arrangement, and if not, do you have 
any suggestions about a better way to address the problem?
    Mr. Hastings. In short, in the case of a denial, I think 
that there has to be a way to somehow bridge that gap. If 
somebody is denied a claim simply because it's classified 
material and we can't see what the classified material is, 
that's obviously not fair to that individual, so there has to 
be some way to bridge that gap.
    But just to go back--and I am one that believes that 
classified information is important--I mean, the whole Hanford 
site, for example, was built in 1943. I mentioned in my 
testimony there were 51,000 people out there. They didn't know 
what they were building. They didn't know what the end result 
was. It was all classified. In fact, the day that the bomb was 
dropped on Nagasaki, the headlines in at that time the only 
weekly paper around was that it was a bomb.
    But with the decisions that were made--and I might add also 
that during that time period, you know, the waste that was 
created was not taken care of properly either because we didn't 
know where we were. But now, looking back in retrospect, if 
people are hurt because of those actions, just because it's 
classified, should not be, in my view, a sole reason for 
denial. There has to be a way to bridge that and yet to keep in 
mind the purpose of classified material.
    Mr. Hostettler. Thank you.
    Congressman Mark Udall, the law sets forth 180 days for 
NIOSH to evaluate Special Cohort petitions, but NIOSH took 
about 425 days from the date they received the Rocky Flats 
petition. NIOSH recommended a denial, and the Board is 
reviewing the matter. Because the plant has closed and computer 
systems have been shut down, claimants are having an extreme 
difficulty in accessing their records. Do you have any 
suggestions on what can be done to ease the burden on SEC 
petitioners when Government delays have stalled the process for 
so long that access to records is severely diminished?
    Mr. Mark Udall. Thank you, Mr. Chairman, for giving me a 
chance to comment on that particular situation. Regarding the 
Rocky Flats petition, I'm more, at this point, worried about a 
belated rush to judgment resulting in an unwarranted denial of 
the petition. That's why I joined Senator Salazar in asking the 
Board to delay its decision until the audit contractor can 
finish its work. That request has been granted, I'm glad to 
say. I think you're aware of that.
    But the problem you described is a real one for the Rocky 
Flats petitioners, and it's my intent to work with the rest of 
the delegation from Colorado, and others, including Members of 
your Subcommittee, to see what can be done to improve the 
access to records and avoid the chance of a miscarriage of 
justice.
    And, Mr. Chairman, if I could add one other comment, 
perhaps two other comments. I think what's really important 
about this--and I know I'm in agreement with all my co-
panelists here--is that there's a moral and an honor component 
to this program, but there's also a practical application, and 
that is that we're continuing to do this remarkable job of 
cleanup across the country. Rocky Flats is closed. I would love 
for you to see what these workers did. It's unbelievable. But 
we've asked workers across the country in these other sites to 
literally work themselves out of a job in order to make their 
local communities safer and to make our country safer.
    And if we don't keep these commitments to the Rocky Flats 
workers, then that sends a real message to workers in other 
spots around the country that the Federal Government may not 
keep those commitments, and therefore, how can we ask them to 
put themselves on the line day-in and day-out, because this 
work is dangerous. And in the end, as I mentioned, they work 
themselves out of a job, and then they're literally on the 
street.
    And the second comment I want to make, that's what's worse 
about Rocky Flats, is we've done the job, so it's easy to go to 
a place which is out of sight, out of mind, and to forget about 
these people. That's why I'm so passionate about seeing that 
justice is done here.
    Thank you.
    Mr. Hostettler. Thank you.
    The Chair now recognizes the Ranking Member for questions.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. I want 
to refer to a comment that I made earlier to sort of lay out 
the parameters of our problem, and that is that these are both 
World War II workers and those who were in the Cold War, and it 
is clear--and I think the Administration accepts this as a 
fact--that during those years, during the early years of the 
nuclear weapons programs, especially between the 1940's and the 
1970's, some workers were not monitored, and the monitoring 
that was done sometimes was inadequate.
    So what we face here are people who factually were working, 
can prove that they were exposed, but because of our technology 
of the time, may not have the kind of documentation that would 
make them in the best position. So this legislation really is 
to make them whole in as fair a manner as possible, fair for 
the worker and fair for the Governmental process.
    Mr. Wamp, I would be interested in your response to 
language by the OMB that seems to focus on the passback being a 
method of cost containment. The language specifically says, 
``to develop options for administrative procedures that will 
contain the growth and the cost of benefits provided by the 
program.'' Do you agree that we need to have--to contain the 
growth in this instance, in the Federal Energy Employee 
Occupational Illness Compensation Program Act, and what would 
be your suggestions in working with OMB?
    Mr. Wamp. This may get me in trouble, but let me just say 
that when the program was created, there was a lot of 
discussion--and I remember Senator Thompson and I had direct 
negotiations with the leadership of the Senate and the House at 
the time to try to make way for this program. At that time we 
were coming on the heels of the budget surplus, and there was a 
lot of talk about how we might, as a country, invest the 
surplus that we had on paper at that time. Probably wasn't a 
real honest assessment of the surplus, but if you trust the 
Government that there was a surplus, we were trying to figure 
out what to do with it. And this program was advocated by us as 
the right way to invest any surplus.
    But there were discussions then that there was not going to 
be money in the future based on budget estimates at that time 
to actually pay for all those benefits. So there were actually 
honest conversations that this money to pay these benefits was 
just going to have to go against the national debt.
    Why would we go forward with something like that? Because 
it's the only right thing to do. You had to do it. You owe 
compensation to the people that the Government harmed. It's 
like a court order. It's like a judgment, effectively.
    My view with OMB is they can talk about cost containment 
all they want to, but what this Committee needs to do, and what 
this Chairman, I believe, intends to do, is make sure that the 
compensation is based on science, who was affected, who 
deserves it based on the statute, and get those benefits to 
them without concern of the financing of it, or how it impacts 
OMB's other considerations. I think that's at the heart of all 
this, is if they're entitled to it based on good solid science, 
make sure the Administration is limited and effective and 
accountable to the program, but make sure the benefits get to 
the people without regard to what it does to OMB.
    I mean, in all due respect, OMB is not charged with 
carrying out certain law. OMB is a function of the executive 
branch and budgeting. But we are, and we made the choice to do 
the right to these workers, and the costs, frankly, are 
secondary consideration. Equity is primary.
    Ms. Jackson Lee. Mr. Wamp, I think the two terms that you 
use can be an effective tool for this Committee, judgment, 
court order, and relief directly to the victims. And one of the 
issues that I think the Chairman and myself will look at is 
whether the cost is more in administering the program than 
getting the benefits directly to the victims. And I think we 
all can work collectively on that.
    I would just follow up with Congressman Mark Udall to tell 
me that the present process of the independent peer review, and 
sort of a tiered process under the Health and Human Services, 
has been--and then the Advisory Board--is this something that 
you're comfortable with? And a follow-up, because you 
mentioned, as I know all of the Members have, your 
constituents, do we need restrictions on the designation of the 
SEC? But in terms of the peer review process, are you 
comfortable with that? And then are you comfortable with the 
suggestion of putting restrictions on the SEC, which is being 
suggested by OMB?
    Mr. Mark Udall. Congresswoman Jackson Lee, I'm not 
comfortable with the restrictions, as I understand them, that 
are being put on the Special Exposure Cohort. I would associate 
myself with the remarks of Congressman Wamp, and I'm more than 
willing to get in trouble with him, if that's helpful. But I do 
believe that this is about, as Mr. Wamp suggested, it's about 
the science, it's not about budget control. And my suggestion 
would be that the OMB abandon its plan, say this short and 
sweet and simple. I think it would be appropriate for our 
former colleague, Congressman Portman, still the U.S. Trade 
Rep, to announce that the plan is being abandoned, and OMB will 
go back to the drawing board and work with the Congress, which 
after all, let its will be known in 2000 as to how we wanted 
these veterans, these Cold War warriors, these American heroes, 
to be treated.
    Ms. Jackson Lee. Mr. Hastings, and then I will ask Mr. 
Udall of New Mexico. There is a suggestion by the OMB to have 
an expedited review--and I mentioned earlier that we are faced 
against the lack of technology that we had or lack of being 
able to assess these particular injuries or exposure to 
radiation--but an expedited review of Special Exposure Cohort 
applications. And they have recommended this, which I perceive 
to be duplicating the work of the Advisory Board that is 
structured under HHS. Do you have any insight on that process 
that they're trying to suggest? And maybe why they're trying to 
do so?
    Mr. Hastings. It seems like one of the responses that we 
always make in Congress is another review of some sort. I mean 
I think there's enough data out there. It's how you collect 
that data and put it into place.
    Now, admittedly--and you referenced this twice in your 
opening remarks and in the start of the questioning--in the 
early part of the whole process of building nuclear weapons, 
the emphasis clearly wasn't on recordkeeping. I mean we were--
especially during the '40's. We didn't know if we were behind 
or not Nazi Germany, and we had to catch up. And so the 
recordkeeping wasn't all that good.
    But I made the point in my remarks that for goodness sakes, 
if we can build a nuclear reactor in 13 months, certainly we 
can find a way in 5 years to come up with some program that's 
going to take care of those--and my emphasis, by the way, in my 
testimony is on Part E more than Part B. Part B has been fairly 
good, at least percentage wise in my area, but it's been very, 
very slow in Part E.
    So maybe a review is in order, but I would just simple say, 
after 5 years, I think we really ought to get on with this 
thing. There may be data out there. Maybe the fact that you are 
holding hearings will prompt that.
    We've spent hundreds of millions dollars on administrating 
this program, and yet, I think all of us, when we signed on in 
support of the original legislation, the expectation, as 
Congressman Wamp said, if there was any surpluses, that would 
not go to the administration, it would go to the victims. And 
so I'm not saying we shouldn't look at data, but I can't say--I 
think there's probably enough out there. Let's get on with 
trying to break through this and make sure the victims get 
compensated.
    Ms. Jackson Lee. We need to get to results. Is that what 
you're saying?
    Mr. Hastings. Thank you for putting words in my mouth. I'll 
accept that. [Laughter.]
    Ms. Jackson Lee. In this room of harmony, we will do in the 
right spirit.
    Congressman Udall, as your work in the Attorney General's 
arena and your representation of Los Alamos, one of the more 
well-known entities, are you concerned where we are with 
respect to victims, and do you have some assessment of how slow 
this has been going even under the present system, and that any 
interference by OMB at this point would do nothing more but to 
further delay, and to, I think, cast doubt on these brave 
Americans as to whether or not their country cares for them?
    I think one of the suggestions was to question the 
objectivity of the Advisory Board. Is that where we need to be 
now, or do we need to be functioning on trying to render 
compensation to the victims?
    Mr. Tom Udall. I very much appreciate your questions and 
the concern of the Chairman. I think the thrust here--and my 
fellow panelists I think drove this home very powerfully--is 
the thrust should be fairness and equity, and as you said, 
results. That is what the law intended. If you go back and you 
look at the legislative history, you sense the urgency from all 
of the claimants. We've got to move this forward and we've got 
to get it done. The numbers that I gave you in my testimony 
show that we're not moving forward, that there's injustice out 
there, and that people are dying.
    And the one other point that I would like to make is, you 
know, we talk about making people whole--and I think we tried 
to do as good a job as we could in the statute, but let's not 
forget if people were litigating these claims out in the 
private sector, and you take somebody away that's making a 
significant amount of money, and take them away from the 
workforce for 10 or 15 years because of an early death, you're 
probably talking about an award in terms of millions of dollars 
to the family, if it's only the family that's left, or to the 
claimant. And so here we've tried to approximate--and we've 
taken $150,000, and we've taken medical benefits, and I think 
all of the claimants felt very good about that. But the old 
saying that justice delayed is justice denied is what applies 
here.
    What we really need to do is try to look at what people are 
entitled to under the law, and see that they get this in an 
orderly way. And that's not happening in Los Alamos. Part of 
the reason is because these claims are so old, and we're 
talking about the '40's, as Doc said. We're talking about the 
failure to really understand what they were dealing with, the 
failure to keep records, and so we need to move forward 
aggressively with these Special Exposure Cohorts, and establish 
the dosimetry and then move along with the claims.
    And we very much appreciate your interest in this issue, 
and look forward to working with you on it.
    Ms. Jackson Lee. Thank you very much.
    Thank you very much, Mr. Chairman.
    Mr. Hostettler. The Chair now recognizes the gentlelady 
from California for 5 minutes for questioning, Ms. Waters.
    Ms. Waters. Thank you very much, Mr. Chairman, and to our 
Ranking Member for holding this hearing today. I have lots of 
questions, and some of them have been answered with the 
dialogue that I just heard between Congresswoman Jackson Lee 
and you, Mr. Chairman. However, I do have a few questions.
    One of them is about DOE. DOE has conceded that they fought 
claims for workers' compensation, particularly radiation-
related claims, without regards to merit. Some of the same 
individuals who served as expert witnesses for DOE and its 
contractors are now employed by the NIOSH Compensation Program, 
providing advice on key decisions and assessing the merits of 
SEC petitions. Should someone who was an expert witness 
opposing workers' claims at a given site be restricted from 
working on EEOICPA's claims or Special Cohort petitions? Who 
would like to answer that?
    Mr. Wamp. Well, I'll say, since the contractor that was 
chosen happens to be from my district, that that's why the GAO 
report needs to be done and done quickly, is to get to the 
bottom of all of this, because I think that improvements can be 
made and efficiencies can be created, but the facts will speak 
for themselves. And if there is a conflict, that needs to be 
identified. But I do think that they're working in good faith 
to try to find people that understand the history and 
understand the program, and try to get the benefits out as 
quick as possible.
    And I think dose reconstruction and the job that ORAU and 
Oak Ridge is tasked with doing, is coming along quite nicely, 
but I think there should be a review. Anytime, as the Committee 
said--I think the Chairman in his introduction--that a program 
is this large and benefits are this great, and management of a 
program is this extensive, there should be a review, there 
should be a GAO review. That's why we have them. And so that's 
what we need to do, and have it done quickly, and they will 
identify areas that need to be improved in efficiency and 
accountability, but I'm not going to make any allegations 
myself because I don't know. But I do know that they need 
oversight, and that's the arm that we have for oversight.
    Thank you.
    Ms. Waters. Does anyone know whether or not it's true that 
these same expert witnesses are now working for DOE? I mean, is 
that a fact? Is that true? Anyone have that information? Mr. 
Udall, do you know?
    [Pause.]
    Mr. Mark Udall. I'm informed, Congresswoman, that there's a 
gentleman, Mr. Falk, who has testified in the past in regards 
to the Rocky Flats Special Cohort. It's my sense that it's 
always better to avoid a perception of bias, and if there are 
ways to, of course, find the expertise, because this is a very 
specialized area, with people who didn't argue on the other 
side of this set of issues when they were involved with DOE, we 
would be better served. But I take into account what 
Congressman Wamp also suggested about the good faith intentions 
of the company that he mentioned.
    Ms. Waters. Thank you very much.
    Mr. Chairman, that's all. I yield back the balance of my 
time.
    Ms. Jackson Lee. Mr. Chairman, may I just indicate I have 
an amendment on the floor for port security. And there will be 
a second round. I may try to come back.
    Thank you, gentlemen, very much for very provocative 
testimony. Thank you.
    Mr. Hostettler. Thank the gentlelady.
    We'll now turn to a second rounds of questions, just have a 
few questions for the Chair. And that is, first of all, 
Congressman Udall from New Mexico, I have a question with 
regard to the use of data in the creation of SEC, in the 
support or denial of SEC petitions. When Congress enacted 
provisions for SECs, for Special Exposure Cohorts, did you 
expect that NIOSH would deny SECs for workers when there was no 
data or inadequate data of that individual or group of 
individuals' dose? And then secondly, did you expect that SECs 
would be denied based on dose reconstructions as a result of 
data from other facilities, other nuclear facilities?
    Mr. Tom Udall. Mr. Chairman, I didn't expect either one of 
those things. I thought that the whole creation in the law of 
an SEC was to get to the heart of the problem, which was in 
many of the older facilities where you didn't have records, to 
reconstruct and to get quickly to what kind of exposures we 
had. And I think it surprised a lot of us in looking at the way 
this has been approached, that there have been denials in those 
circumstances that you just talked about.
    Mr. Hostettler. And site specific information was 
important, as opposed to generalizing from site to site.
    Mr. Tom Udall. To use another site's information to deny--
for example, to use one of Zach's Oak Ridge, or someplace, 
information there to deny a Los Alamos SEC, to me makes no 
sense. I mean, I'm not--I'm just using that as a hypothetical, 
but you need the information to be site specific, and that's 
what you've emphasized in your question. We need to move 
forward with these SECs, rather than have the attitude be of 
blocking and stopping and trying to prevent us to get to the 
heart of are these people entitled to this compensation, and 
what were their doses they received, and are they likely to be 
covered under the statute?
    Mr. Hostettler. Thank you. I have one final question 
dealing with the issue of equity that Mr. Wamp and others have 
talked about here, which is really at the heart of the purpose 
for these hearings and the program. And from all four of you, 
if you could give me perspectives from your specific locations 
and your specific experience. Do you think that the quality of 
the assistance that's being provided to claimants under the 
program acknowledges the importance or the contribution that 
the workers at your perspective plants made to our national 
defense? If you could just give us your own impression of that.
    Mr. Wamp. Yes is the short answer. But I think that like 
any other major Federal Government program, the appearance is 
that the inefficiency and the bureaucracy is not as sympathetic 
to the people in the stories as they should be, and that's what 
we get every single day, including a letter this morning faxed 
to me from a friend whose family, friends, are directly 
affected, lost the claimant to death, waiting still to hear. 
Just another reminder.
    But in the bureaucracy, claims were slow, process was 
delayed. It looks like we don't care. The truth is this program 
never would have been created if we didn't care, and if we're 
not honoring their sacrifice and their incredible patriotism.
    But overall, yes, I do think so, but the Federal Government 
is the Federal Government. Unfortunately, it's very 
bureaucratic and burdensome.
    Mr. Hastings. I would say my criticism, as I mentioned in 
my prepared remarks and in response to a question, is not so 
much with Part B but with Part E. Percentage wise of those that 
at least are being looked at on Part B I find okay. My 
criticism of this--and it's complicated. We haven't touched on 
the complications of it. I've learned, because I represent 
Hanford, that there is a strong migration of workers that work 
at Hanford, Oak Ridge, Savannah River, Rocky Flats, sometimes 
two or three times around. And at all of those sites at 
sometime during the time that they were in production, workers 
could have been exposed. And it's not just the workers that 
worked right in the plant. It's the workers that took care of 
the waste.
    So it's a complicated issue. But my criticism only is, is 
that after 5 years, we don't seem to be making any headway on 
those--at least the Part E part of this program, and that 
concerns me. I wish I had a magic wand to tell you exactly, and 
to tell the Department, exactly how to do it, but the fact is, 
is we've spent, as I mentioned, hundreds of millions of dollars 
on the administration of this. Gosh, after 5 years you think 
you could come up with at least some sort of a template in 
order to look at this, and judge things accordingly. And it 
appears to me, at least in Part E, that that hasn't happened, 
notwithstanding the fact that we have transferred that part to 
Department of Labor from the Department of Energy.
    So I'm frustrated with that part, but from my perspective 
on Part B, again, percentage wise of those workers that are 
served by that, that seems to be responding.
    Mr. Tom Udall. Mr. Chairman, if I might, I think part of 
your question goes to the difficulty of establishing a Special 
Exposure Cohort. And if you look at all of the information that 
needs to be compiled, you look at the health physics and all of 
that being a part of it, I think these average citizens are at 
an extreme disadvantage when it comes to be advocating for a 
Special Cohort. And I would just--I think it's my testimony, 
but I would repeat it, that we should have authorizing 
legislation to establish a technical assistance program for 
citizens, workers and families seeking to file petitions for a 
Special Exposure Cohort.
    To me that makes a lot of sense, because you have to pull 
together such a significant amount of information, and you need 
special expertise. Many of these people are not capable of 
doing that, and we should give them some assistance.
    And so if you look at--when you asked a question--Cold War 
heroes on the one hand, and all of us acted in this law, and 
the Congress passed it, and Secretary Richardson and President 
Clinton, we talked about how they were Cold War heroes, but we 
haven't responded like they were Cold War heroes, and I think 
that's my complaint here today, is that we need to try--where 
there are roadblocks and obstacles in this statute, to try to 
figure ways to move this along and bring these cases to 
justice.
    Thank you.
    Mr. Mark Udall. I'm reluctant to try and improve on what 
Congressman Udall just had to say when he summarized the 
situation we're in, Mr. Chairman, but I'll give it my best.
    And I want to just start by talking about Rocky Flats 
specifically. If I had known how deficient the records were 
going to be, and in fact were, I would have worked to have 
included the Rocky Flats work team in the Special Cohort group 
initially in the legislation that we brought forward. That's 
why in a follow-on effort I've introduced legislation that 
would create the Rocky Flats Special Cohort.
    More generally to your question, there's been some spotty 
success. Let's be clear, here have been some improvements, 
particularly after this was moved to Labor. That's why all of 
us here at the panel and a number of others joined together to 
push to move this under the auspices of the Department of 
Labor. And of course, you can find people in my State who feel 
like they've been made whole, but I think on balance it's many 
more people who feel frustrated at best, and let down at worst.
    I would just conclude with this comment. I remember 
traveling down to the Department of Energy, and it was, I 
think, in the year 2000. I might be correct here, but it was 
certainly during the Clinton administration, where Secretary 
Richardson took the very significant step of basically saying 
the Federal Government needs to remedy a wrong here, the 
Federal Government has been traveling the wrong road. And I 
think we were all there. There were a number of Members of the 
other body. It was that important to the Senate, they were 
there. And Secretary Richardson conducted a teleconference all 
over the country with workers present, both in real time, 
physically here in Washington, but all over the country, 
announcing that we were going to, as the United States, make 
them whole. We were acknowledging they had been harmed. We were 
acknowledging they were heroes.
    I still remember that day like it was yesterday, and 
that's, I think what Congressman Udall was alluding to when we 
said we were going to treat them as heroes, and yet we haven't.
    Again, I want to just thank you for your attention to this 
matter, because it's a very, very serious and important matter 
for all of the reasons that have been discussed here today. 
Thank you.
    Mr. Hostettler. Thank you, gentlemen. Thank you for your 
experience and your insight into this important issue. You made 
very valuable contributions to the record in this, the second 
of what will be a series of hearings.
    I would just, for the record, advise the Subcommittee that 
Members will have 5 legislative days to make additions, 
contributions to the record.
    The business before the Subcommittee being completed, 
without objection, we are adjourned.
    [Whereupon, at 12:43 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 Maxine Waters, a Representative in 
                 Congress from the State of California


 Sample report sent to claimants regarding their dose reconstruction, 
submitted by the Honorable Tom Udall, a Representative in Congress from 
                        the State of New Mexico




















    ``Web Site Disclosure Statement (Biosketch)'' of Roger B. Falk, 
    employee of Oak Ridge Associated Universities, submitted by the 
 Honorable Mark Udall, a Representative in Congress from the State of 
                                Colorado


                                 
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