[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 III)

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

                                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

                               __________

                             JULY 20, 2006

                               __________

                           Serial No. 109-139

                               __________

         Printed for the use of the Committee on the Judiciary


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

                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
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_____________________________________________________________________________
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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

                              ----------                              

                             JULY 20, 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.......................     4

                               WITNESSES

Mr. Austin Smythe, Acting Deputy Director, Office of Management 
  and Budget
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
Mr. Lewis Wade, Ph.D., Senior Science Advisor, Special Assistant 
  to the Director, National Institute for Occupational Safety and 
  Health (NIOSH)
  Oral Testimony.................................................    13
  Prepared Statement.............................................    14
Ms. Denise Brock, Director and Founder, United Nuclear Weapons 
  Workers
  Oral Testimony.................................................    15
  Prepared Statement.............................................    19

                                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.........................................................    41


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

                              ----------                              


                        THURSDAY, JULY 20, 2006

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:13 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable John 
Hostettler (Chairman of the Subcommittee) presiding.
    Mr. Hostettler. The Subcommittee will come to order.
    And we welcome the witnesses today. There has been a little 
change in rotation here of our hearing, and if you could--thank 
you for the attendance, and I apologize for the change in the 
schedule.
    Today's hearing is the third in a series of hearings the 
Subcommittee is holding on the Energy Employees Occupational 
Illness Compensation Program Act, or EEOICPA.
    Just to refresh everybody's memory, the impetus for these 
hearings was the receipt by the Subcommittee of an internal OMB 
memo sent to the Department of Labor in late 2005.
    The document outlined five policy options to be developed 
by a White House-led interagency work group to reduce the 
number of Special Exposure Cohorts, or SECs, as a way to 
``contain the growth and benefit under the program,'' including 
requiring Administration clearance of SEC petitions and 
altering the composition of the Advisory Board on Radiation and 
Worker Health.
    Special Exposure Cohort status may be applied for and 
received by sick workers whose radiation dose exposures cannot 
be estimated adequately with existing records and who worked in 
an area where it is reasonably likely that they were exposed to 
enough dose to endanger their health.
    If approved, workers in the cohort can receive benefits 
under the program if they have one of 22 cancers. Prior to the 
Subcommittee's first EEOICPA hearing on March 1, 2006, document 
requests were made to the Department of Labor and the 
Department of Health and Human Services in order to review 
agency actions with regard to the passback memo on the program.
    Until recently, those attempts at performing oversight have 
been resisted and have added to the concern that these agencies 
may not wish Congress to adequately execute our oversight 
obligations.
    In the interim, the Office of Management and Budget issued 
letters to individual congressmen and senators concerning the 
options outlined in the passback document.
    While those communications provide general assurances that 
there won't be any implementation of the passback items, there 
is no mention of any steps that are planned to police the 
program officials within the Administration whose agendas 
include a reduction in the approval of SECs or mention of what 
steps have been taken to reverse or rectify actions that have 
occurred which mirror the principles contained in the passback.
    For example, one of the OMB letters states, ``The 
Administration will continue to meet the statutory requirement 
that the advisory board reflect a balance of scientific, 
medical and worker perspectives.''
    Something can't continue when it is not already occurring. 
At present, the 11-member board only has two worker 
representatives. The math does not add up.
    It is the Subcommittee's understanding that Presidential 
personnel was provided with a group of suitable candidates for 
appointment to the board but no action to supplement the lack 
of worker representatives has been taken to meet the statutory 
requirement for balance.
    While the Subcommittee applauds OMB's general response that 
it is ``not pursuing any program changes to modify benefit 
costs'' or ``reduce the amount of SEC approvals in order to 
minimize benefit costs,'' until significant steps are taken to 
clarify the Administration's position, a cloud will remain over 
this program and those implementing it.
    It is encouraging that the Office of Management and Budget, 
under the leadership of their new director, Rob Portman, is 
providing a witness for our hearing today. A satisfactory 
resolution of this controversy is a must in reinstating the 
program's integrity.
    There is an appearance that the document requests made over 
4 months ago to the other agencies involved is being partially 
addressed. Hopefully, the Department of Labor and Health and 
Human Services' leadership will follow the lead of OMB and 
thoroughly cooperate in providing documents in their possession 
pertinent to the Subcommittee's oversight.
    There has been a long-running discussion between the 
Subcommittee and the Administration on what the limitations are 
on the Administration providing information available to the 
Committees with oversight over subject matter when suspect 
actions are taken by executive branch officials with regard to 
that subject matter.
    Some within the Administration have, in the Subcommittee's 
view and the view of legal experts, invoked protections 
inappropriately. For example, in the response to follow-up 
questions after our March 1 hearing, the DOL witness invoked 
``internal budget discussions'' as the reason he couldn't say 
who created the passback list or answer whether he himself had 
created the list.
    The budget process is over and can't be negatively affected 
by divulging such information, so that protection is not 
applicable.
    It is unfortunate that no one is willing to be honest about 
their actions and admit their error or supply their 
justification for determining that groups of claimants seeking 
SEC status are not worthy of certification.
    The loss of this program's credibility in large part lays 
at the feet of individuals at senior levels in the Labor 
Department. Indications are that those officials have been 
constantly sounding alarms that special cohort approvals were 
going to open a floodgate of benefit costs.
    When NIOSH and the advisory board initiated approval of an 
SEC for the Mallinckrodt plant in St. Louis, it was asserted 
that the precedent set by that approval would cause a flood of 
similar SEC applications from sites throughout the weapons 
complex, threaten the stability of Part B of the program and 
possibly cause a $7 billion increase in program costs over 10 
years.
    Some of those officials, it appears, promoted the view that 
HHS has, to some degree, let claimants, the advisory board and 
political pressure control the SEC process. They have accused 
the advisory board of becoming a worker advocacy organization 
and making ``unwise'' decisions in approving SECs.
    It appears no effort, however, is made to acknowledge or 
challenge the real fact that NIOSH found few dose records were 
available and that the integrity and validity of that data was 
in serious doubt.
    DOL has publicly asserted that they have no role in 
determining whether SECs should be approved or not. The 
evidence is strong, contrary to that assertion, that they are 
heavily involved in the SEC process and apparently seek even 
more involvement. Perhaps that is how the OMB passback contents 
came to be in the first place.
    DOL's constant hysteria campaign was conveyed to OMB and 
thus the passback contained the tools for DOL to control SEC 
decisions, the advisory board composition and the work of its 
audit contractor.
    The United States steps up and provides billions of dollars 
without a blink when there is a natural disaster and people are 
harmed throughout the world. We as a government are not to 
blame for that natural disaster or that harm.
    In this case, we as a government did the harm, knew we were 
doing the harm and intentionally deceived people working to 
protect this nation from harm.
    How can any one of us, including the individuals within the 
Administration tasked with carrying out the program, take the 
position that these claimants are unworthy of our assistance?
    Unlike assistance programs where millions of dollars are 
paid out on fraudulent claims of harm, the claimants under this 
program can't fake cancer. It is true that some of these 
workers' cancer may not have been caused by their exposures.
    But we all should remember that the chance that their 
cancer may have been caused by their exposures is possible in 
many cases only because of the Government's willingness to put 
them in harm's way to manipulating the record of their 
exposures or outright deceit about the safety of their 
workplace.
    Having lost my mom and dad to cancer, at least I am assured 
that these workers did not acquire that dreaded disease in an 
attempt to scam the program.
    We as a government are to blame. And unlike some involved 
in this program, we should step up and take responsibility for 
what has happened with integrity and purpose. Pinching pennies 
never looked so inappropriate as it does when addressing the 
plight of these workers.
    Those who have made it their mission to use any method 
possible to justify denial of assistance to these workers 
should be ashamed of themselves.
    We should ensure this program works as it should in 
acknowledging the harm this Government potentially caused these 
workers without their knowledge so as a Government we can take 
pride at least in that acknowledgment.
    Hopefully the witnesses today will help us take steps 
toward reaching that goal.
    At this time, the Chair recognizes the gentlelady from 
Texas, Ms. Jackson Lee, for purposes of an opening statement.
    Ms. Jackson Lee. Let me thank you so very much, Mr. 
Chairman, and I think your remarks are pointed, that we do 
believe that promises have been broken and promises now need to 
be kept.
    And I would like to just introduce victims who are not in 
the room to the American public by suggesting that these brave 
Americans who were engaged in nuclear facilities in the 1940's 
and 1950's and later were, in fact, there to protect America.
    It disappoints me, Mr. Chairman, that we have come to this 
place where victims are fighting for protection. From the 
Manhattan Project to the present, tens of thousands of workers 
have been employed to develop, build and test nuclear weapons 
for the Department of Energy and its predecessor, the Atomic 
Energy Commission.
    The Energy Employees Occupational Illness Compensation 
Program Act of 2000 provides compensation if they have 
contracted a radiation-related cancer, beryllium disease, 
silicosis from employment-related exposure to radiation. They 
may be eligible for a lump-sum payment of $150,000 and 
prospective medical benefits. Fair enough.
    But yet some have been denied and the Administration is 
rumored to be trying to change the formula so that many might 
be denied. In processing radiation-related cancer claims, the 
Department of Health and Human Services, acting through the 
National Institute for Occupational Safety and Health, NIOSH is 
required to estimate a worker's exposure to radiation which is 
referred to as a radiation dose.
    Sometimes this is not possible. During the early years of 
the nuclear weapons program, some of the workers were not 
monitored for radiation exposure and records have been lost, 
destroyed or altered. We understand. People worked. People were 
dedicated. Record keeping was not that effective. The Internet 
didn't work then.
    The act provides a remedy for cases in which it is not 
feasible to estimate a radiation dose but it is clear that the 
health of the workers may have been endangered by radiation 
exposure. Workers facing the situation may petition to be 
administratively designated as members of a special exposure 
cohort which provides an unrebuttable presumption that certain 
cancers are related.
    Members of a special exposure cohort may be eligible for 
benefits if they have had one of 22 specified radio-sensitive 
cancers and they have worked at a covered facility for at least 
1 year in a job that exposed them to radiation.
    Petitions for a special exposure cohort designation are 
evaluated by NIOSH. NIOSH's recommendation is reviewed by the 
Advisory Board on Radiation and Worker Health, and then the 
petition is sent to HHS for a decision.
    In a recent memorandum to the Department of Labor which is 
referred to as an Office of Management and Budget passback, OMB 
commends the Employment Standards Administration for 
identifying the potential for a large expansion of the EEOICPA 
benefits through the designation of Special Exposure Cohorts.
    OMB states that the Administration will convene a White 
House-led interagency work group to develop options for 
administrative procedures to contain growth in the cost of 
benefits provided by the program, which include discussions of 
the following options.
    Mr. Chairman, we do not need cost containment programs. 
Denise Brock's father did not need cost containment programs 
when he worked and then he lost his life. Citizens in my home 
State of Texas City who worked with subcontractors don't need 
cost containment programs. They need relief.
    And Channel 11 KHOU interviewed hundreds of workers who 
seemingly had been forgotten. I discovered that brave Americans 
were not being protected by the American Government.
    The options require Administration clearance of Special 
Exposure Cohort determinations, address any imbalance in the 
membership of the advisory board, require an expedited review 
by outside experts of NIOSH's recommendations, require NIOSH to 
apply conflict of interest rules and constraints to the 
advisory board contractors, and requires NIOSH to demonstrate 
that its site profiles and other dose reconstruction guidance 
are balanced.
    Notwithstanding that the memorandum--the director of the 
Department of Labor's compensation program testified at a 
recent hearing before this Subcommittee that the cost 
containment is not a factor in deciding which claim to pay.
    This did not eliminate my concern that OMB's recommendation 
will be implemented and that they will have an adverse effect 
on the independence of the process for evaluating Special 
Exposure Cohort petitions. The process has worked. We just need 
to make sure that it continues to work.
    Because of that, Mr. Chairman, I have introduced a bill to 
address this problem, the Energy Employees Occupational Illness 
Compensation Program Improvement Act of 2006, and I really look 
forward to this Committee working together to generate 
bipartisan response.
    Particularly this bill adds the subcontractors represented 
by those in Texas City who have been left out and left alone. 
Among other things, it would shift the authority for making 
advisory board appointments to the Congress.
    It would require the HHS Secretary to abide by the 
recommendations of the advisory board unless there is a clear 
error and would establish enforceable conflict of interest 
requirements with respect to NIOSH's dose reconstruction 
contractors.
    And it would eliminate the unfairness by making benefits 
available to some subcontract employees who work at atomic 
weapon employer facilities that presently are not covered by 
the act.
    Mr. Chairman, this is a very important hearing. I want to 
thank you for your interest. And I do want to acknowledge that 
some categories of subcontractors may be covered, but not all. 
Let this be an opportunity, Mr. Chairman, to really raise the 
umbrella of the American safety net, the love and affection we 
have for the American people.
    I would also like to thank Nolan Rappaport on my staff for 
his commitment and energy behind this legislation.
    And, Mr. Chairman, I understand it seems that there may be 
votes. I just wanted to put on the record that if I depart I 
have an family emergency at home with one of my children who is 
in need of medical emergency. And so if I am not returning, I 
apologize and will work with you, Mr. Chairman, for that. Thank 
you.
    Mr. Hostettler. I look forward to working with the 
gentlelady, and we will be remembering you and your son in our 
prayers.
    We have been called to votes, and so I ask for the 
indulgence of the panel. The Subcommittee will reconvene 
immediately after the conclusion of the votes in the House. And 
so therefore, we are recessed without objection.
    [Recess.]
    Mr. Hostettler. The Subcommittee will come to order. We 
will now turn to our introductions of the witnesses.
    Austin Smythe is currently acting in the position of Deputy 
Director and is the Executive Associate Director at the Office 
of Management and Budget.
    In this senior role, Mr. Smythe assists the OMB director in 
the development of the budget and other management functions. 
Prior to joining OMB, Mr. Smythe served as a vice president in 
Lehman Brothers' Washington, D.C. office for a year and a half. 
He monitored and analyzed appropriations, budget, energy, 
natural resources and tax issues for the firm's equity research 
division.
    From 1983 to 1999, Mr. Smythe served on the staff of the 
Senate Budget Committee under the chairmanship of Senator Pete 
Domenici. As assistant staff director, he played a key role in 
the development and implementation of the annual Federal 
budget.
    Lewis Wade is Senior Science Advisor and Special Assistant 
to the Director at the National Institute for Occupational 
Safety and Health, or NIOSH.
    He serves as the designated Federal official for the 
Advisory Board for Radiation and Worker Health, or the board, 
and the technical project officer for the board's contract with 
Sanford Cohen & Associates for technical support.
    Dr. Wade's previous role at NIOSH was the Associate 
Director for Mining. Prior to NIOSH he worked at the Bureau of 
Mines, the Department of Energy and the United States Geologic 
Society. Dr. Wade received his Ph.D. in civil engineering at 
Carnegie Mellon University.
    Denise Brock is the founder and director of the United 
Nuclear Weapons Workers and is a workers advocate consultant to 
attorneys regarding EEOICPA.
    Ms. Brock's father worked at the Mallinckrodt facility from 
1945 to 1958. He was diagnosed with an oat-cell carcinoma of 
the lung that was later metastatic to the brain and liver. He 
passed away when Ms. Brock was still quite young.
    Ms. Brock took a keen interest in EEOICPA early in the 
program, filing a claim on her 78-year-old mother's behalf in 
July 2001. Finding the claims process a frustrating and arduous 
task, Ms. Brock resolved to help other nuclear workers and 
their families deal with the program.
    Her mother eventually became the first person compensated 
in the Mallinckrodt cases.
    Members of the panel, will you please stand and take the 
oath, which is the custom of our Subcommittee and Committee? 
Will you raise your right hand?
    Do you swear that the testimony you are about to give 
before this Subcommittee will be the truth, the whole truth and 
nothing but the truth, so help you God?
    Thank you very much. And please be seated.
    The record will reflect that the witnesses answered in the 
affirmative.
    Mr. Smythe, thank you for being here today.
    And without objection, all of your written testimonies will 
be made a part of the record, and you will see that there is a 
series of lights in front of you. And if you could summarize 
within 5 minutes it would be greatly appreciated.
    Mr. Smythe?

 TESTIMONY OF AUSTIN SMYTHE, ACTING DEPUTY DIRECTOR, OFFICE OF 
                     MANAGEMENT AND BUDGET

    Mr. Smythe. Mr. Chairman, Members of the Subcommittee, my 
name is Austin Smythe, and I am the Acting Deputy Director of 
OMB. At the request of the Subcommittee, I am appearing before 
you today to discuss the Energy Employees Occupational Illness 
Compensation Program Act, EEOICPA.
    As the Director wrote in his recent correspondence to the 
Members of the Congress, the Administration deeply appreciates 
the sacrifices that workers across the nation have made in 
building the nation's nuclear defense.
    We are committed to ensuring that all workers who are 
entitled to benefits under this program receive their full 
benefits in accordance with the law.
    As a multiagency program, EEOICPA requires coordination 
among its partner agencies--the Department of Justice, Labor, 
Energy and Health and Human Services--to make sure the program 
operates as intended and assists claimants as efficiently as 
possible.
    OMB does not have an operational role in this program but 
does carry out its responsibilities within the framework of the 
responsibilities of each agency as designated by statute, 
regulation and Executive Order 13179. OMB has performed this 
role since the program was enacted in 2000.
    Since the program began paying benefits in 2001, EEOICPA 
has paid more than $2 billion to 23,000 claimants. I understand 
the Subcommittee is concerned about what it believes are 
Administration plans to change the EEOICPA program structure or 
cut benefits to workers and their survivors.
    The Director has written to Members of Congress on this 
issue, and I submitted with my written testimony a copy of one 
such letter.
    As the Director has clearly stated in this letter, the 
Administration is not pursuing any program changes to contain 
the cost of EEOICPA benefits and is not instituting a White 
House-led EEOICPA-related interagency work group or any new 
internal procedures concerning the Advisory Board on Radiation 
and Worker Health.
    In addition, no steps are being taken by the Administration 
to reduce the amount of Special Exposure Cohort petition 
approvals in order to minimize benefit payments.
    The Administration is working to provide workers with the 
benefits legally provided in that act in a timely and fair 
manner and to ensure that all agencies comply with the law as 
it was written by the Congress and signed into law by the 
President.
    I also want to address specifically the concern that the 
2007 budget reflects an expected reduction in approval of SEC 
petitions. This is not the case. As you know, EEOICPA benefits 
are an entitlement. We have no budget policy proposals to 
reduce or otherwise modify these benefits.
    Under current law, the Administration is obligated to make 
these benefit payments. Like other entitlement programs, we are 
required to estimate the outlays from this entitlement program 
to determine overall spending levels.
    As a result, the budget presents the Administration's best 
estimates of program cost based on anticipated claims 
processing under current law. The budget does not impose a 
ceiling on these benefit payments, nor does it anticipate 
changes to the SEC process or reflect future HHS actions on 
pending SEC petitions.
    The Subcommittee has also expressed a concern about policy 
options being used to reduce EEOICPA Part B benefits by 
limiting the designation of additional SEC classes. Executive 
Order 13179 delegates the President's responsibility for SEC 
decisions to the Secretary of HHS.
    By law, the advisory board provides recommendations to the 
Secretary on these petitions and also reviews dose 
reconstructions to ensure their scientific validity and 
quality.
    The Administration does not intend to take any action to 
change this arrangement, nor does it intend to pre-clear SEC 
determinations. These approvals will be made fairly and in 
accordance with program procedures, guidelines, regulations and 
the law.
    As it has done in the past, the Administration will provide 
public notice of the regulations and formal procedures issued 
with respect to this program. And any regulations will follow 
the notice and comment procedures of the Administrative 
Procedure Act.
    In conclusion, the Administration will continue to 
faithfully out EEOICPA to provide for timely, uniform and 
entitled compensation of covered employees and, where 
applicable, their survivors, suffering from illnesses incurred 
by such employees in the performance of their duties.
    The Administration also will continue to ensure that 
scientific determinations and the law govern the provision of 
compensation under this program and will not use budgetary 
concerns to override those determinations.
    With that, Mr. Chairman, I would be happy to answer any 
questions the Subcommittee may have.
    [The prepared statement of Mr. Smythe follows:]

                  Prepared Statement of Austin Smythe



                               ATTACHMENT



    Mr. Hostettler. Thank you, Mr. Smythe.
    The Chair now recognizes Dr. Wade for 5 minutes.

TESTIMONY OF LEWIS WADE, PH.D., SENIOR SCIENCE ADVISOR, SPECIAL 
ASSISTANT TO THE DIRECTOR, NATIONAL INSTITUTE FOR OCCUPATIONAL 
                   SAFETY AND HEALTH (NIOSH)

    Mr. Wade. Mr. Chairman and Members of the Subcommittee, my 
name is Lewis Wade, and I am the Senior Science Advisor at the 
National Institute for Occupational Safety and Health, or 
NIOSH. NIOSH is part of the Centers for Disease Control and 
Prevention within the Department of Health and Human Services.
    I bring you warm regards from Dr. John Howard, the NIOSH 
Director.
    I am pleased to appear before you today to provide an 
update on the status of HHS activities under the Energy 
Employees Occupational Illness Compensation Program Act of 
2000. I consider the work that HHS does in support of the act 
to be tremendously important.
    In fact, in my 30-plus years of Federal service, I have 
worked on few things as important as my work on this program.
    The role of HHS in this program is to focus on the science 
of doing dose reconstruction and SEC petitions. Other areas of 
the program, such as processing of claims or payment of claims, 
are the responsibility of the Department of Labor, which has 
the lead responsibility for administering this act.
    Let me briefly update you on the progress NIOSH has made to 
date. In October 2001, NIOSH received from the Department of 
Labor the first cases for dose reconstruction. To date, NIOSH 
has returned 14,000 cases to the Department of Labor with 
completed dose reconstructions. That represents about two-
thirds of the cases that have been referred to NIOSH by the 
Department of Labor.
    NIOSH leadership, personally led by Dr. John Howard, has 
focused significant attention on processing dose 
reconstructions in timely and quality manners. In addition, six 
classes of workers have been added to the Special Exposure 
Cohort to date, with another two just about to be added.
    At the June meeting of the advisory board, the Department 
of Labor reported that almost one-half $1 billion has been paid 
to claimants through completed dose reconstructions or as 
members of an SEC class. This is as the result of NIOSH's work.
    Fourteen thousand completed dose reconstructions, and 
almost a half billion dollars to claimants--NIOSH is proud of 
the work that it has done to implement the act. However, we are 
aware of and understand the concerns of claimants that it takes 
NIOSH too long to act upon their cases or SEC petitions.
    And we as an agency are committed to continuing to improve 
our processes to address these concerns.
    Let me briefly turn to the work of the advisory board. The 
advisory board focuses on the scientific detail that is 
necessary to oversee such a program, and it makes use of 
vigorous peer review in the accomplishment of its work.
    Anyone who has attended a board meeting understands the 
high level of detail that the board brings to its work. As you 
know, the board schedules its meetings in close geographic 
proximity to the workers likely to be impacted by the current 
work of the board.
    Through public comment sessions at these meetings, the 
board hears firsthand from claimants about their concerns and 
their frustrations with the program. The board is constantly 
hearing from a wide variety of involved parties about those 
parties particular interest in the board's work.
    However, I personally have observed that the board's 
decisions have been driven by the scientific consideration of 
information before the board.
    As evidence of the independence of the board's work in the 
area of SEC petitions, for example, the board has taken actions 
consistent with as well as taken actions contrary to the 
recommendations of NIOSH.
    As evidence of the quality of the board's work, the 
Secretary of HHS has followed board recommendations on SEC 
petitions in all cases but one, and that involved a 
circumstantial change in the case following the board's action 
and before the Secretary's action.
    In summary, NIOSH has made significant progress in the 6 
years since the inception of this program. However, we 
recognize that there are still many former energy workers, or 
in many cases their spouses or children, who are awaiting final 
decisions on claims, and we are committed to continue to work 
to improve the program to better serve them and honor their 
service to the country.
    Thank you again personally for the opportunity to testify, 
and I would be happy to answer questions.
    [The prepared statement of Mr. Wade follows:]

                    Prepared Statement of Lewis Wade

    Mr. Chairman and Members of the Subcommittee, my name is Lewis Wade 
and I am the Senior Science Advisor at 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 bring you warm regards from Dr. John Howard, the 
Director of NIOSH, who had the opportunity to appear before this 
Subcommittee in March. My duties at NIOSH include serving as the 
Designated Federal Official for the Advisory Board on Radiation and 
Worker Health (``the Board''). In that capacity, I represent the 
Secretary of HHS on the Board and have the responsibility of overseeing 
the Board's work to ensure that it meets the needs of the Secretary. I 
also serve as the Technical Project Officer on the contract with 
Sanford Cohen and Associates (SC&A), which provides scientific and 
technical support to the Board on a range of topics, including review 
of individual dose reconstructions and site profiles and providing 
recommendations on adding classes of employees to the Special Exposure 
Cohort (SEC).
    I am pleased to appear before you today to provide an update on the 
status of HHS activities under the Energy Employees Occupational 
Illness Compensation Program Act of 2000 (``EEOICPA'' or ``the Act''). 
I consider the work that NIOSH does in support of the Act to be 
tremendously important. The role of HHS in this program is to focus on 
the science of doing dose reconstructions and the related issue of 
considering and deciding petitions from classes of employees wishing to 
be added to the SEC. HHS also developed the probability of causation 
guidelines that are used by the Department of Labor (DOL) in 
adjudicating claims for compensation. Other areas of this program 
(e.g., processing and payment of claims) are under the purview of DOL, 
which has lead responsibility for administering EEOICPA. Let me briefly 
update you on the progress NIOSH has made to date.
    In October 2001, NIOSH received from DOL the first cases for dose 
reconstruction. To date, NIOSH has returned 14,511 cases to DOL with 
completed dose reconstructions or for handling under the SEC 
presumptive rules. That represents 66 percent of the 21,988 dose 
reconstruction cases that have been referred to NIOSH by DOL. NIOSH 
leadership has focused significant attention on processing dose 
reconstructions in a timely manner, and by aggressively and proactively 
managing the process we have improved from processing an average of 100 
dose reconstructions per week in 2004 to an average of 160 per week 
thus far in 2006. Six classes of workers have been added to the SEC to 
date. Two additional classes recently have been approved by the 
Secretary for addition to the SEC--they were sent to Congress on June 
26, 2006 and will be effective on July 26 unless Congress determines 
otherwise. At the June meeting of the Advisory Board, DOL reported that 
the SEC classes approved by that date had led to compensation for 468 
cases. Overall, DOL reported that more than $472 million has been paid 
to claimants with completed dose reconstructions or who are members of 
an SEC class.
    The accomplishments are significant especially in light of the fact 
that of the 325 facilities covered by EEOICPA, many are unique and 
require a significant amount of time and effort to obtain the 
information and records--sometimes over 60 years old--necessary to 
conduct dose reconstructions. We have received claims for 190 of these 
covered facilities, and of these, NIOSH has completed 80 percent or 
more of the dose reconstructions for 38 facilities. This includes 14 
facilities for which NIOSH has completed 100 percent of the dose 
reconstructions for the cases received from DOL.
    NIOSH is proud of the work it has done to implement EEOICPA. 
However, we are aware of and understand the concerns of some claimants 
that it takes NIOSH too long to act upon their cases and SEC petitions, 
and we as an agency are committed to continuing to improve our 
processes to address these concerns.
    Let me turn briefly to the work of the Advisory Board. The Board 
focuses on the scientific detail that is necessary to oversee such a 
program; and it makes use of rigorous peer review in the accomplishment 
of its work. Anyone who has attended a Board meeting understands the 
high level of detail that the Board brings to its work. To give you a 
sense of the Board's involvement in the program, between now and the 
end of the fiscal year, there are scheduled two Board meetings and four 
Working Group meetings on issues including site profile reviews, SEC 
petition reviews, and review of our conflict of interest policy.
    As you know, the Board schedules its meetings in close geographic 
proximity to the workers likely to be impacted by the current work of 
the Board. Through public comment sessions at these meetings, the Board 
hears first-hand from claimants about their concerns and frustrations 
with the program. The Board often finds itself under intense pressure 
from claimants and their advocates. However, NIOSH has observed that 
the Board's decisions have been driven by the information before it. In 
the area of SEC petitions, for example, while the Board has taken 
actions consistent with NIOSH recommendations to add or deny adding a 
class, the Board also has taken a position contrary to a NIOSH 
recommendation to deny adding a class. With one exception, the 
decisions of the Secretary of HHS have been consistent with all of the 
Board's recommendations on SEC petitions (the exception being when the 
Board's recommendation on a facility was followed by a decision by the 
Department of Energy to remove the facility from the list of covered 
facilities, thus precluding a Secretarial decision on the petition).
    In summary, NIOSH has made significant progress in the six years 
since the inception of this program in performing the important duties 
with which it has been charged. However, we recognize that there are 
still many former energy workers, or in many cases their spouses or 
children, who are awaiting final decisions on their claims, and we are 
committed to continuing to work to improve the program to serve them 
better and honor their service to our country.
    Thank you again for the opportunity to testify. I would be happy to 
answer any questions you may have.

    Mr. Hostettler. Thank you, Dr. Wade.
    Ms. Brock?

TESTIMONY OF DENISE BROCK, DIRECTOR AND FOUNDER, UNITED NUCLEAR 
                        WEAPONS WORKERS

    Ms. Brock. My name is Denise Brock, and I am the founder 
and Director of the United Nuclear Weapons Workers in St. 
Louis, Missouri. I would like to thank you for the opportunity 
to appear before you today.
    My father, Christopher Davis, worked for Mallinckrodt 
Chemical Works in St. Louis from 1945 until 1958. Mallinckrodt 
was processing an African ore. It was called Belgian Congo 
pitchblende. Workers were receiving radiation doses in excess 
of 1,000 rem to the lung. Today, the maximum allowable dose is 
five rem per year to the whole body.
    When I was about 7 years old, my father was diagnosed with 
lung cancer that later went to the brain and the liver. Some 
years later he also was diagnosed with a second primary of 
leukemia and passed away when I was quite young.
    My statement today will relay my experience as a lead 
petitioner for a Special Exposure Cohort for the Mallinckrodt 
employees, which cover the years of 1942 through 1957.
    I am aware of the OMB passback memo that was the focus of 
the March 1st, 2006 hearing before this Subcommittee. I am 
concerned that the policies outlined in that memo are designed 
to prevent deserving workers from receiving benefits when there 
are inadequate records to reconstruct radiation dose.
    I testify here today as an advocate for claimants, workers 
and for survivors of former workers. I am not a doctor nor a 
health physicist nor a Government scientist. I am just a 
regular person who witnessed firsthand the nearly 
insurmountable hurdles that ordinary people must endure just to 
make it through the claims process.
    I am a person who has stood by countless bedsides as 
workers and survivors alike died while waiting for 
compensation. I am a person who knows quite well that without 
the remedy of a Special Exposure Cohort and a balanced advisory 
board, too many deserving claimants with inadequate dose 
records will be wrongly denied.
    In July of 2001, I filed a claim on my mother's behalf. 
After months of no movement, I began to call meetings, conduct 
research and videotape workers.
    I learned that not one Mallinckrodt claim had been paid nor 
at that point even dose reconstructed, so I filed FOIA requests 
and gained access to private archives which yielded thousands 
of internal company and Government memos and documents.
    I was astounded and in utter disbelief at the appalling and 
horrific conditions that these employees worked in. Some were 
excreting milligram quantities of uranium per day in their 
urine and some were showing signs of kidney failure.
    The AEC and Mallinckrodt management both saw this as an 
opportunity for studying the effects of radiation on workers, 
although simultaneously wary of the liability to the Government 
and contractor.
    There were memos indicating scant if nonexistent monitoring 
data for the earlier years, documents that questioned the 
reliability of the exposure data, and there was no individual 
employee monitoring for actinium, thorium or protactinium.
    In October 2003, my mother's claim was dose reconstructed 
and a positive finding was rendered. I felt deeply that 
although we were greatly blessed with this decision, in light 
of what I had found I owed it to my father's co-workers to 
continue to help them. And I also promised God that it would 
help these workers.
    In July of 2004, I filed an SEC petition for the period of 
1942 through 1957 at Mallinckrodt St. Louis plant. NIOSH broke 
this petition into three parts because they intended to 
recommend approval for certain years and denial of others.
    In February 2005--I am sorry, at the same February 2005 
meeting, NIOSH recommended that the board deny the SEC for the 
1949 to 1957 time frame. I apologize, I missed one.
    In February 2005, NIOSH recommended a partial approval of 
the SEC covering the 1942 to 1948 time frame. The advisory 
board concurred in a March 11th, 2005 letter to Secretary 
Michael Leavitt.
    At that same February 2005 meeting, NIOSH recommended that 
the board deny the SEC for the 1949 to 1957 time frame. 
However, the board did not vote on NIOSH's recommendation for 
this time period for several reasons.
    First, the board and myself were told that NIOSH had just 
found five to six additional boxes of monitoring records that 
covered the post-1949 time frame.
    Second, NIOSH stated that the audit contractor's review of 
the Mallinckrodt site profile was now obsolete, because NIOSH 
had already developed a revised site profile. The board wanted 
an up-to-date audit on NIOSH's most recent site profile.
    Thirdly, NIOSH announced to us in the midst of 
deliberations that they had just obtained a 33-page memo which 
they asserted would indicate that records that had been 
previously believed to be missing, destroyed or unreliable were 
now presumed found, preserved and transferred.
    The board, as well as myself, demanded to see this memo. It 
later turned out that the memo had been available to NIOSH for 
months and that claims NIOSH made regarding this memo were 
exaggerated.
    This seemed to me to be a tactic of sandbagging and to 
defeat the SEC petition for the latter years. The February 
meeting was, as it turned out, just the beginning of a board 
review lasting 6 months.
    The board examined the fact that there was no monitoring 
data for the most radio-toxic substances at that plant. 
Finally, on August 27th, 2005, the board met in St. Louis.
    After 2 years of work on the Mallinckrodt site profile, 6 
months of advisory board deliberation, four separate audit 
reports, four board meetings, four Subcommittee or working 
group meetings and numerous conference calls, memos and 
hundreds of hours spent by NIOSH, SCNA, the advisory board 
members as well as myself, new data continued to emerge, even 
as late as the day of the advisory board meeting.
    The board voted 6-4 to recommend approval for the SEC from 
1949 to 1957, noting that a certain point of a decision had to 
be made with data in hand and not what might be developed in 
the future.
    As I look back, I realized how difficult this process is 
for a layperson. New data was constantly being discovered. They 
were changing technical approaches and modified evaluation 
reports. It was like shooting at a moving target.
    Without a balanced advisory board and an audit contractor 
with unimpeachable scientific integrity, our SEC would have 
never received a fair hearing. We also had a dedicated support 
from the Missouri congressional delegation, especially Senator 
Kit Bond, who spoke at three board meetings and whose staff 
reviewed every document.
    Without a powerful legislator pushing back on our behalf, I 
fear that we would have been undermined by those who wanted to 
defeat this Special Exposure Cohort.
    Mr. Hostettler. Ms. Brock, could you summarize, as time has 
expired?
    Ms. Brock. I can. This is the last one.
    Mr. Hostettler. Okay.
    Ms. Brock. The entire process requires an enormous amount 
of effort even from the very beginning, and as a petitioner I 
was already at an automatic disadvantage.
    I was up against others who had enormous resources at their 
command to defend their view. They brought to the table their 
own biases, and it is just a terribly difficult process.
    And I thank you for the time, and I would be happy to 
answer any questions.
    [The prepared statement of Ms. Brock follows:]

                   Prepared Statement of Denise Brock




    Mr. Hostettler. Thank you.
    At this time, the Chair, with unanimous consent, recognizes 
the gentlelady from Texas, Ms. Jackson Lee, for purposes of 
questioning.
    Ms. Jackson Lee. Mr. Chairman, thank you very much, and I 
will have to be brief.
    But, Ms. Brock, your statement, ``the complexity is 
overpowering and overwhelming''--and it confirms that we must 
have a fix.
    My simple question to you, Mr. Smythe, is a yes or a no, 
and that is I heard the details that OMB had not planned or was 
not engaged in changes. Can you affirm, confirm in writing, 
that the Administration is not in the process of looking for 
cost containment and therefore, if you will, through that 
process inhibiting this normal flow of petitions by the special 
cohorts?
    Mr. Smythe. I am sorry, I didn't understand, course 
containment?
    Ms. Jackson Lee. Cost containment.
    Mr. Smythe. We are not making any changes to achieve cost 
containment.
    Ms. Jackson Lee. Thank you.
    Ms. Brock, it is a question of including everyone, frankly, 
and the legislation that we have authored includes the atomic 
workers. My question, is that a good thing to do, to include 
those who likewise were not able to document their particular 
exposure because they happened to be subcontractors?
    Ms. Brock. It is a tremendous thing, and I am very excited 
about that. It is just a matter of equity. And I am very 
pleased.
    Ms. Jackson Lee. Let me, first of all, express my sympathy 
for your father. But your detailed explanation will give us a 
road map to be more effective. And I believe this Committee, as 
you have determined, is sincere.
    And I believe that as the evidence is put forward--and I 
know there will be more detailed questions for you, Mr. 
Smythe--that we will find a way to ensure that cost containment 
is not going to determine who receives benefits under this 
regulation.
    And I hope the legislation will help clarify it and help 
continue to provide relief to those who need to provide relief.
    I yield back to the Chairman.
    Mr. Hostettler. I thank the gentlelady.
    At this time, I have questions for the panel.
    First of all, Mr. Smythe, there are five options to control 
the cost of benefits under EEOICPA suggested in the passback. I 
would like to review the OMB's position on each of the five 
options outlined therein, so I have a series of questions.
    Will there be any Administration clearance of SECs?
    Mr. Smythe. No.
    Mr. Hostettler. Has the Administration reviewed the balance 
of the advisory board in the past 7 months since the passback 
was developed?
    Mr. Smythe. By balance, do you mean the membership?
    Mr. Hostettler. Yes. Yes, I am sorry.
    Mr. Smythe. I really can't speak to the membership of the 
board. That is not something that OMB has a role in.
    I can say that as Director Portman wrote to Members of 
Congress on this issue that the Administration is committed to 
maintaining the statutory requirement of a balance of 
scientific, medical and worker perspectives on the board.
    Mr. Hostettler. Thank you. Has OMB made presidential 
personnel aware of the contents of the passback?
    Mr. Smythe. I don't know the answer to that. I think it is 
probably useful if I could take a minute to describe what a 
passback is.
    Mr. Hostettler. Sure.
    Mr. Smythe. I think there has been a great deal of 
confusion about what is going on here and a misunderstanding 
that we are trying to clarify. First of all, a passback is not 
the Administration's policy. It is not the President's budget, 
not the President's policy, not the Administration's policy.
    A passback, just to give the Subcommittee some background--
there is a process that we use to put together the budget. That 
process begins in September when the agencies submit to us 
their proposals, all of their proposals in terms of what they 
want to do in the budget.
    We review those proposals in the October time frame, and 
some time usually in late November we pass back our proposals 
back to them. It doesn't represent the--the agency's 
submissions to us don't represent Administration policy and our 
passbacks back to them does not represent Administration 
policy.
    This is a very rigorous process where we go through various 
options and so forth. In this instance, none of these options 
were accepted in terms of what the President's ultimate policy 
was and what was in the President's budget.
    So we are not pursuing any of these items that were listed. 
It was inappropriately leaked. It has now been inappropriately 
characterized as Administration policy, which it is not.
    Our policy is to implement EEOICPA and to make sure that it 
is implemented pursuant to the law and that sick workers get 
their full entitled benefits in a timely manner.
    Mr. Hostettler. Right. And I appreciate that description, 
and as you have just said that none of the issues in the 
passback have been implemented by the Administration, is that--
that is true----
    Mr. Smythe. That is correct.
    Mr. Hostettler [continuing]. That you have just mentioned? 
And you could understand our concern, because it is--although 
probably possibly inappropriately leaked, as you characterize, 
it is insight for Congress and the American people to see the 
process, because we don't see, as a matter of presidential 
privilege, executive privilege, what happens on either end of 
that passback situation.
    And we did get a glimpse of what was being discussed in 
that passback. And because of that, because of those concerns, 
because of concerns arising out of that and the deviation from 
the intent of the law that could have been--could have resulted 
from the creation of any of these or all of these suggestions 
into the administration of the program caused our concern.
    And I appreciate your testimony that none of those have 
taken place. It is very, very helpful.
    Dr. Wade, your position must give you a more comprehensive 
insight into the positive or negative impact any one component 
of the program has on the success of the program and the 
confidence of the claimant community in the claims processing 
system.
    Can you share your thoughts about what is wrong and right 
with the program as it is currently functioning?
    Mr. Wade. Yes. I mean, to the issue of claimant confidence 
within the program, as Congress enacted this program, it is not 
that people who have cancer would be compensated if they worked 
at these facilities.
    The Congress decided that a scientific determination needed 
to be made if an employee's cancer was more likely than not the 
result of that exposure.
    And my agency is in the position of trying to reconstruct 
the exposure or the dose of individuals and then provide that 
information to the Department of Labor, who would then make a 
determination as to compensability.
    In the work that we have done to this date following the 
best science that we can, it turns out that, on average, 70 
percent of the people who make application are denied. Twenty-
seven-plus percent are approved, but a greater percentage is 
denied.
    So the difficulty the program has is that a Government that 
they believe once lied to them about their exposure and their 
work and what they were doing is now telling them that the 
cancer that they suffer from or that their loved ones died from 
is not the result of that exposure.
    And that is an extremely difficult task for us to undertake 
from a communications point of view. That is one of the major 
hurdles we face in the program, is to--how to practice the 
science, but how to communicate the results of the science in a 
way that is sympathetic and understandable to people who feel 
that they have been lied to. And that is a huge problem and a 
huge hurdle that we face within the program.
    I think on the positive side of the administration of the 
program, the process has been extremely transparent. The work 
of the advisory board is there for all to see and to comment 
upon.
    And the advisory board has made use of a contractor that 
has supported them in as many ways as possible, picking apart 
the work that the Government has done, trying to find fault 
with it, in this way, as you said at the last hearing, 
representing the best interest of the workers. Somebody is 
looking out for their best interest and looking at their 
perspective and bringing those interests forward.
    So I do think that the transparency of the program and the 
use of an aggressive process of peer review is the strength of 
the program. I also think that the strength of the program is 
that we have accomplished now 14,000 dose reconstructions. 
There has been over half a billion dollars of compensation 
resulting from that.
    Hopefully that will show people that the Government is 
serious about it work and its program. It will never answer the 
hard questions that were in people's minds when the Government 
says your cancer was not caused by the exposure based upon a 
scientific process that is very hard to understand and a 
Government that has lied to them before.
    So we have done a lot of positive things in the program, 
but this fundamental issue of communicating to workers that 
have felt that they have been lied to before is a tremendous 
challenge for the program, and one we need to continue to work 
to overcome, but it is a very, very difficult challenge that we 
face.
    Mr. Hostettler. Thank you, Dr. Wade.
    The Chair recognizes the gentleman from South Carolina for 
5 minutes for questions.
    Mr. Inglis. Thank you, Mr. Chairman.
    Mr. Smythe, as I understand it, the program has paid 
benefits of more than $2 billion to date and is projected to 
spend an additional $4.3 billion, I believe it is, over the 
next 5 years, which is considerably above the original estimate 
of $2.3 billion for the same period.
    Are those numbers about right?
    Mr. Smythe. That is correct.
    Mr. Inglis. So I assume it is part of the job of OMB to 
oversee the implementation of major programs like this. Is that 
right? I mean, that is what you do.
    Mr. Smythe. Yes. Yes, we go through the budget, the annual 
budget cycle. We review all programs and all spending. We both 
look at various options in terms of how to address those 
programs and we also are in the process of constantly revising 
the estimates in terms of what these programs are going to 
cost.
    In this case, this program is an entitlement. So we are 
constantly taking a look at it and working with the agencies to 
get a good sense in terms of what the costs are going to be for 
the program.
    Mr. Inglis. And as I understand it, though, from your 
testimony here and from other sources, there is no effort by 
OMB or the Administration to reduce that level of funding.
    Mr. Smythe. No, sir.
    Mr. Inglis. So having--I suppose your job is you are 
monitoring the growth of the program, figuring out where to get 
the dollars to cover it, I suppose, but there is no effort by 
the Administration to reduce the expenditures.
    Mr. Smythe. No, the problem has grown. Our current 
estimates that--the program total outlays are going to be $854 
million the year we are in, 2006. We estimate that that will 
climb in the--pardon me, it is $870 million, climbing to $1.1 
billion in 2007 on the program.
    Our policy, as I have stated in my testimony, is to--this 
is an entitlement program. Our policy is to implement it. We 
have paid during the Bush administration over $2 billion in 
benefits. We have done 23,000 claims.
    This is a program where workers--as Ms. Jackson Lee said, 
these are workers that helped build the nuclear weapons 
complex. They helped us win the Cold War. They are due 
compensation according to the law, and we want to provide them 
that compensation but in accordance with the law.
    Congress specified procedures that Dr. Wade specified, and 
we want to make sure that those procedures are followed to get 
people their full compensation in a timely manner.
    Mr. Inglis. And so I am sure it is important to a lot of 
people, including some people in South Carolina at the Savannah 
River site in Aiken, South Carolina, not in the 4th District of 
South Carolina, but close enough to be very concerned about 
those folks.
    Is the reason for the growth in the program expenditures 
increased health care cost, maybe people getting into the more 
expensive phase of the disease of cancer, or is it more 
awareness of the program or is it all three of the above?
    Mr. Smythe. I probably ought to defer to Dr. Wade or 
someone else who would be more familiar with the details of the 
program. I think the program did--it took a while in terms of 
getting this program started.
    There are at least--there is HHS, and the Department of 
Labor is involved. They have to gather data from the Department 
of Energy. There is an advisory board. So it took them a while 
to get started.
    As I understand it, there are lump-sum benefits that can be 
made, but I believe prospective medical care is also provided. 
I don't know how that factors into the cost of the program. I 
would be happy to take a look at that and try to submit 
something to the record for that.
    Mr. Inglis. And, Dr. Wade, do you have any sense about what 
is the cause of the growth?
    Mr. Wade. I mean, it would be speculation on my part, but I 
would offer some. I do think that when the specific work of 
gathering the information, putting the record together and 
attempting to reconstruct dose was undertaken, I think many of 
us found that the information that we hoped to find was not as 
complete as we might have expected.
    I think that has led to two things. I think the act itself 
says to us use science when at all possible, but if science is 
not available then give the benefit of the doubt to the 
claimant.
    So I think as you encounter situations where the data is 
not complete or as complete as people might have expected it to 
be, then giving the benefit of the doubt to claimant might have 
resulted in a greater level of compensation.
    I think it also goes to the issue, then, of the Special 
Exposure Cohort. If the data is not available that would allow 
us to estimate the upper limit of dose, then we are brought to 
the provision of the Special Exposure Cohort.
    And I think if you sort of track the history of that 
process as the board has deliberated and as the HHS Secretary 
has decided, possibly the data that we thought would be there 
is not there as completely as might have been hoped. And I 
think that has led to possibly a greater use of the Special 
Exposure Cohort than might have imagined.
    So I think it is really a byproduct of investigating what 
data is available and then making the appropriate judgments 
based upon what was found.
    Mr. Inglis. Thank you.
    Thank you, Mr. Chairman.
    Ms. Brock. Mr. Chairman, I am sorry. Could I add something 
to that?
    Mr. Hostettler. I am going to go into a second round of 
questions and, Ms. Brock, I actually have some questions for 
you, and you can address that question at that time.
    Ms. Brock. Okay.
    Mr. Hostettler. I do have a question for you, Mr. Smythe. 
Have you just testified that the OMB projected an increase in 
Part B payments? Because that is what the passback memo that we 
are discussing today is discussing--is subject to.
    ESA, the Employment Standards Administration, is to be 
commended for identifying the potential for a large expansion 
of the EEOICPA Part B benefits through the expansion of Special 
Exposure Cohorts.
    Is it your testimony that the Administration and the OMB 
projected an increase in Part B payments?
    Mr. Smythe. I just have total data. I can provide for the 
record in terms of what are assumptions are or our estimates 
are for the breakup for the various programs.
    In our latest--we just sent up to Congress an updated 
budget forecast. It is called a mid-session review. It was 
submitted a week or so ago. In that, the most recent actual for 
total expenditures for this program is $615 million.
    In February, we thought that that would grow to $1.6 
billion in 2006. It did not reach that. It is now projected to 
grow to $870 million in 2006, and it is projected to grow to 
$1.1 billion in 2007.
    Mr. Hostettler. And that is for all of EEOICPA.
    Mr. Smythe. Yes, that is all in. That is all of EEOICPA, 
yes.
    Mr. Hostettler. Right. And you are familiar with the 
passback memo that we are discussing.
    Mr. Smythe. Yes. I am very familiar with the passback memo, 
and again, these numbers aren't associated with the passback 
memo.
    Mr. Hostettler. Right.
    Mr. Smythe. These numbers are what we think is going to 
happen under current law and under our current policy, which is 
not the passback memo.
    Mr. Hostettler. Right, and the passback memo does not 
address those issues. It addresses specifically, and the 
concerns we have address specifically, one part of it, which is 
the topic of the hearing, and that is the Part B payments.
    And I appreciate your testimony, but if you could provide 
for us your understanding of the presidential budget projection 
for this entitlement program initially for Part B, which is the 
subject of the hearing, and we can get the interim mid-session 
projection from OMB.
    And once again, we appreciate the understanding of the 
entire--scope of the entire EEOICPA program, but the memo and 
the subject of the hearing have to do with the Part B that is 
being--where the concerns are being relayed.
    Mr. Smythe. I just want to make sure that there is not an 
issue here. These numbers aren't based on the passback memo. I 
want to be very clear on that.
    Mr. Hostettler. No, no, and----
    Mr. Smythe. These numbers are based on the Administration's 
policies which are to fully implement the law, and it just 
turned out that as we updated those estimates and worked with 
the various agencies, the cost in 2006 declined. The estimates 
of what the cost would be in 2006 declined. And they rose in 
2007.
    Just for the Subcommittee's information, the Congressional 
Budget Office does the same thing. They make estimates of 
entitlement programs. Their estimates are lower than ours in 
terms of what this program's going to cost.
    Mr. Hostettler. Yes. Yes. And my concern was the cost for 
2006 and the projected cost for 2007.
    Mr. Smythe. We will get you the Part B estimates, though.
    Mr. Hostettler. Yes. Yes.
    Ms. Brock, first of all, if you could elaborate on the 
point that you wished to elaborate on earlier.
    Ms. Brock. And I hope I am understanding this correctly, 
but the CBO scoring for subtitle B was $1.8 billion for this 
program over 10 years, and that is including the supplemental 
payment of $50,000 for the uranium miners and their survivors 
covered under RECA.
    So to date, nearly 6 years after the enactment, Department 
of Labor has paid out $1.59 billion in lump-sum benefits plus 
approximately $100 million for medical benefits under subtitle 
B, and this is including supplemental payments to RECA-covered 
uranium miners.
    Mr. Hostettler. Okay. Thank you. What is your response to 
the contention that the advisory board made an unwise decision 
in approving the SEC at Mallinckrodt?
    Ms. Brock. I have not ever heard that, but if that was said 
I am completely offended. I think it was a very wise decision. 
As I said, after 2 years going over this, over the site 
profile--just the timeliness of the second one. I mean, these 
people were put on hold for months upon months.
    And we know that these workers were exposed to things--very 
highly radio-toxic things they were never monitored for. They 
were experimented on. And just the whole thought of every time 
we would go in there were either additional boxes of something, 
there was new methodology on how to dose reconstruct--it was 
constantly something.
    And I think the board made a wise decision. They didn't do 
it frivolously. Sometimes people think they hand this out like 
candy on Halloween. That is not the case, believe me. This was 
a hard fight. And the board deliberated and just did a 
wonderful job, and I think they made the right decision.
    And I am hurt and offended if anyone would ever think 
otherwise, not just for myself but for that board.
    Mr. Hostettler. Thank you.
    My time has expired.
    The Chair recognizes the gentleman from South Carolina.
    I will now turn to just one last question to Mr. Smythe. A 
lot of discussion is had about the entitlement status of this 
program, which is it. With your budget experience, could you 
relate to the Subcommittee possibly a difference in the type of 
entitlement that this program is compared to, say, Social 
Security benefits, whereby an individual is entitled as a 
result of the determination that they are of a particular age 
or particular health status for SSI and the like, but 
especially an entitlement such as Social Security benefits, 
retirement benefits?
    What is the similarities and the differences between the 
designation of someone being entitled to a benefit?
    Mr. Smythe. For Social Security, you know, it is first 
probably important to understand what an entitlement is. Unlike 
an appropriation for a project or an activity--the 
appropriation for OMB--we are bound by our appropriation. We 
cannot exceed the $70 million that is appropriated to operate 
OMB. So we are bound by that amount.
    An entitlement is different. An entitlement is you set 
specific criteria in law, and if those criteria are met, the 
Government is obligated to make a payment to you regardless of 
what the cost is. It is just whatever it costs, that payment is 
made.
    In this particular program--on Social Security, just sort 
of thinking out loud, you know, Social Security is based on 
your work history, the amount of time you worked. It is based 
on your wages, I believe, in terms of what you are paid. It is 
based on your age when you retire. So those are the factors. 
And based on those factors, a payment is made.
    I think in this program, there are--it involved a number of 
other issues in terms of your work history--and again, I am not 
an expert on this. You probably ought to get HHS to speak to 
it. But again, my sort of understanding of the program is it 
involves doing dose reconstructions in these special cohorts 
and so forth.
    But once those determinations are made that an individual 
is entitled to the benefit, the Government is obligated to make 
that payment. And it doesn't matter what is in a budget. It 
doesn't matter what level is assumed. Whatever it costs, we 
make that payment.
    Mr. Hostettler. That is an excellent suggestion.
    Dr. Wade, let me ask you. And I don't want you to go into 
the nuances of Social Security, but just me ask you, the level 
of subjectivity in the process for a Social Security payment 
versus certification as an SEC--an individual has to, for 
example, be determined to be 65 years of age, 40 quarters of 
work experience, and the like.
    That is relatively objective data, is it not?
    Mr. Wade. Correct.
    Mr. Hostettler. For Social Security.
    Mr. Wade. Yes.
    Mr. Hostettler. Can you compare the level of objectively, 
subjectivity in the designation of the two entitlement 
programs? And once again, you don't have to go into the nuance 
of Social Security. I couldn't do that for you.
    But when we talk about entitlement programs, we have to 
ultimately understand that the Government deems a person 
entitled. A person is not entitled because they show up and ask 
for a check. They are entitled as the result of the Government 
deeming them entitled.
    And can you give me a comparison on the level of 
objectively and subjectivity between the two?
    Mr. Wade. Okay. Well, let me talk a little bit about the 
EEOICPA program and then answer your question very 
specifically. As I understand the law, it says that a worker's 
cancer is shown to be more likely than not the result of their 
exposure.
    It is not whether they have cancer or not. That is a given 
that they have developed cancer. The question is, is that 
cancer more likely than not the result of their exposure?
    So what happens from a scientific point of view is you look 
at that worker and you try and reconstruct the dose that they 
were exposed to in their working life. This might come from 
individual monitoring samples about the worker. It might come 
from area samples about the location that they worked. It might 
come from the nature of the radioactive material that was 
present where they worked.
    So a rigorous scientific process is undertaken to estimate 
the dose that they received. Then there is another step, and 
that is given that dose, what is the probability of causation 
that their cancer resulted from that dose.
    There you make use of scientific evidence that has been 
collected through various studies of worker exposure and the 
occurrence of illness. There is a great deal of the data 
results from a view of what those people who were exposed to 
atomic weapons in Japan experienced in terms of the occurrence 
of disease.
    So you have these two steps. First you reconstruct the 
dose. And then you determine what that dose means in terms of 
the likelihood that the disease resulted from the dose.
    To go back to your question, this adds tremendous levels of 
complexity--you could use the word subjectivity--uncertainty to 
the process. It is much more prevalent in the process that we 
practice than it is in the Social Security process.
    Mr. Smythe. Mr. Chairman, may I add one thing?
    Mr. Hostettler. Sure. Yes.
    Mr. Smythe. I think Social Security, as you point out, is 
probably more straightforward in terms of making the benefit 
determination. But there are other entitlement programs where 
there are similar challenges in terms of identifying whether 
someone is entitled to benefits.
    Just thinking off the top of my head, the EIPC is a program 
where there are certain things that have to--standards that 
have to be met. It is a complicated program for taxpayers to 
deal with before people are eligible for cash payments under 
that program.
    SSI, food stamps--there are several programs throughout the 
Federal Government--there is a whole host of them where certain 
determinations and judgments have to be made. And in some 
cases, programs are going to run into similar complexity that 
this program would.
    Mr. Hostettler. And that is true. I appreciate that. And in 
all of those programs that you have mentioned, over the last 
several years we have determined that there has been high 
levels of fraud involved in those programs and have resulted in 
significant overpayments in those programs and conferring of 
benefits in all those programs.
    I don't think that that can--that charge can be made for 
this program. But you are absolutely right, there is a level of 
complexity, of uncertainty that is there. And that is--and that 
is well noted.
    And, Ms. Brock, once again, we have heard testimony today 
that--the OMB has testified that none of the five options that 
were discussed in the passback have been implemented, have been 
put in place.
    But the mere discussion of those five options gives some 
uncertainty to the claimant community that everything--gives 
heightened uncertainty to the uncertainty that is inherent in 
the system, inherent in the science, would it not, do you 
believe?
    Ms. Brock. I believe that completely. They are very 
mistrusting. And just something even insinuating something of 
such does exactly that.
    And I know my testimony ran over, but I had actually 
prepared five recommendations just because of that, the fear 
that that could possibly happen.
    Mr. Hostettler. Thank you very much. And we have gone over 
our time, and I want to thank all of the witnesses for your 
contributions to the record. It is a very important issue, and 
you have been very helpful to the record and to the 
Subcommittee and the Congress.
    Mr. Smythe. I have some data for you. You asked for some 
data.
    Mr. Hostettler. Yes.
    Mr. Smythe. Just on the Part B 2006 outlays, our estimate 
is $485 million. 2007 outlays, our estimate is $551 million.
    Mr. Hostettler. Thank you. Thank you very much.
    The business before the Subcommittee being complete, 
without objection, we are adjourned.
    [Whereupon, at 3:52 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

    From the Manhattan Project to the present, tens of thousands of 
workers have been employed to develop, build, and test nuclear weapons 
for the Department of Energy and its predecessor, the Atomic Energy 
Commission. The Energy Employees Occupational Illness Compensation 
Program Act of 2000 (the Act) provides compensation if they have 
contracted radiation-related cancers, beryllium disease, or silicosis 
from employment-related exposure to radiation. They may be eligible for 
a lump sum payment of $150,000 and prospective medical benefits.
    In Processing radiation related cancer claims, the Department of 
Health and Human Services (HHS), acting through the National Institute 
for Occupational Safety and Health (NIOSH), is required to estimate a 
worker's exposure to radiation, which is referred to as a ``radiation 
dose.'' Sometimes, this is not possible. During the early years of the 
nuclear weapons programs, some of the workers were not monitored for 
radiation exposure, and records have been lost, destroyed, or altered.
    The Act provides a remedy for cases in which it is not feasible to 
estimate radiation doses but it is clear that the health of workers may 
have been endangered by radiation exposure. Workers facing this 
situation may petition to be administratively designated as members of 
a ``Special Exposure Cohort,'' which provides an unrebuttable 
presumption that certain cancers are work related. Members of a Special 
Exposure Cohort may be eligible for benefits if they have one of 22 
specified radiosensitive cancers, and they have worked at a covered 
facility for at least one year in a job that exposed them to radiation.
    Petitions for a Special Exposure Cohort designation are evaluated 
by NIOSH. NIOSH's recommendation is reviewed by the Advisory Board on 
Radiation and Worker Health, and then the petition is sent to HHS for a 
decision.
    In a recent memorandum to the Department of Labor which is referred 
to as an, ``Office of Management and Budget (OMB) passback,'' OMB 
commends the Employment Standards Administration for identifying the 
potential for a large expansion of EEOICPA benefits through the 
designation of Special Exposure Cohorts. OMB states that the 
Administration will convene a White House-led interagency work group to 
develop options for administrative procedures to contain growth in the 
cost of benefits provided by the program, which include discussions of 
the following options.
    Require Administration clearance of Special Exposure Cohort 
determination; address any imbalance in membership of the Advisory 
Board; require an expedited review by outside experts of NIOSH's 
recommendations; require NIOSH to apply conflict of interest rules and 
constraints to the Advisory Board's contractor; and require NIOSH to 
demonstrate that its site profiles and other dose reconstruction 
guidance are balanced. Notwithstanding that memorandum, the Director of 
the Department of Labor's compensation program testified at a recent 
hearing before this subcommittee that cost containment is not a factor 
in deciding which claims to pay. This did not eliminate my concern that 
OMB's recommendations will be implemented and that they will have an 
adverse effect on the independence of the process for evaluating 
Special Exposure Cohort petitions. I have introduced a bill to address 
this problem, the Energy Employees Occupational Illness Compensation 
Program Improvement Act of 2006.
    Among other things, it would shift the authority for making 
Advisory Board appointments to the Congress. It would require the HHS 
Secretary to abide by the recommendations of the Advisory Board, unless 
there is a clear error. It would establish enforceable conflict of 
interest requirements with respect to NIOSH's dose reconstruction 
contractors. And, it would eliminate unfairness by making benefits 
available to some subcontractor employees who worked at atomic weapons 
employer facilities but presently are not covered by the Act.

                                 
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